Part 3 (1/2)

For the rest two great practical measures which involved no overbold challenge to State Sovereignty were wisely planned to b.u.t.tress the Union and render it permanent. A clause in the Const.i.tution forbade tariffs between the States and established complete Free Trade within the limits of the Union. An even more important step was that by which the various States which claimed territory in the as yet undeveloped interior were induced to surrender such territory to the collective owners.h.i.+p of the Federation. This at once gave the States a new motive for unity, a common inheritance which any State refusing or abandoning union must surrender.

Meanwhile it would be unjust to the supporters of State Rights to deny the excellence and importance of their contribution to the Const.i.tutional settlement. To them is due the establishment of local liberties with safeguards such as no other Const.i.tution gives. And, in spite of the military victory which put an end to the disputes about State Sovereignty and finally established the Federalist interpretation of the Const.i.tution, this part of their work endures. The internal affairs of every State remain as the Const.i.tution left them, absolutely in its own control. The Federal Government never interferes save for purposes of public taxation, and, in the rare case of necessity, of national defence. For the rest nine-tenths of the laws under which an American citizen lives, nearly all the laws that make a practical difference to his life, are State laws. Under the Const.i.tution, as framed, the States were free to form their separate State Const.i.tutions according to their own likings, and to arrange the franchise and the test of citizens.h.i.+p, even for Federal purposes, in their own fas.h.i.+on.

This, with the one stupid and mischievous exception made by the ill-starred Fifteenth Amendment, remains the case to this day, with the curious consequence, among others, that it is now theoretically possible for a woman to become President of the United States, if she is the citizen of a State where female suffrage is admitted.

Turning to the structure of the central authority which the Const.i.tution sought to establish, the first thing that strikes us--in the teeth of the a.s.sertion of most British and some American writers--is that it was emphatically _not_ a copy of the British Const.i.tution in any sense whatever. It is built on wholly different principles, drawn mostly from the French speculations of that age. Especially one notes, alongside of the careful and wise separation of the judiciary from the executive, the sound principle enunciated by Montesquieu and other French thinkers of the eighteenth century, but rejected and contemned by England (to her great hurt) as a piece of impracticable logic--the separation of the executive and legislative powers. It was this principle which made possible the later transformation of the Presidency into a sort of Elective Monarchy.

This result was not designed or foreseen; or rather it was to an extent foreseen, and deliberately though unsuccessfully guarded against. The American revolutionists were almost as much under the influence of cla.s.sical antiquity as the French. From it they drew the n.o.ble conception of ”the Republic,” the public thing acting with impersonal justice towards all citizens. But with it they also drew an exaggerated dread of what they called ”Caesarism,” and with it they mixed the curious but characteristic illusion of that age--an illusion from which, by the way, Rousseau himself was conspicuously free--that the most satisfactory because the most impersonal organ of the general will is to be found in an elected a.s.sembly. They had as yet imperfectly learnt that such an a.s.sembly must after all consist of persons, more personal because less public than an acknowledged ruler. They did not know that, while a despot may often truly represent the people, a Senate, however chosen, always tends to become an oligarchy. Therefore they surrounded the presidential office with checks which in mere words made the President seem less powerful than an English King. Yet he has always in fact been much more powerful. And the reason is to be found in the separation of the executive from the legislature. The President, while his term lasted, had the full powers of a real executive. Congress could not turn him out, though it could in various ways check his actions. He could appoint his own Ministers (though the Senate must ratify the choice) and they were wisely excluded from the legislature. An even wiser provision limited the appointment of Members of Congress to positions under the executive. Thus both executive and legislature were kept, so far as human frailty permitted, pure in their normal functions. The Presidency remained a real Government. Congress remained a real check.

In England, where the opposite principle was adopted, the Ministry became first the committee of an oligarchical Parliament and later a close corporation nominating the legislature which is supposed to check it.

The same fear of arbitrary power was exhibited, and that in fas.h.i.+on really inconsistent with the democratic principles which the American statesmen professed, in the determination that the President should be chosen by the people only in an indirect fas.h.i.+on, through an Electoral College. This error has been happily overruled by events. Since the Electoral College was to be chosen _ad hoc_ for the single purpose of choosing a President, it soon became obvious that pledges could easily be exacted from its members in regard to their choice. By degrees the pretence of deliberate action by the College wore thinner and thinner.

Finally it was abandoned altogether, and the President is now chosen, as the first magistrate of a democracy ought to be chosen, if election is resorted to at all, by the direct vote of the nation. At the time, however, it was supposed that the Electoral College would be an independent deliberative a.s.sembly. It was further provided that the second choice of the Electoral College should be Vice-President, and succeed to the Presidency in the event of the President dying during his term of office. If there was a ”tie” or if no candidate had an absolute majority in the College, the election devolved on the House of Representatives voting in this instance by States.

In connection with the election both of Executive and Legislature, the old State Rights problem rose in another form. Were all the States to have equal weight and representation, as had been the case in the old Continental Congress, or was their weight and representation to be proportional to their population? On this point a compromise was made.

The House of Representatives was to be chosen directly by the people on a numerical basis, and in the Electoral College which chose the President the same principle was adopted. In the Senate all States were to have equal representation; and the Senators were to be chosen by the legislatures of the States; they were regarded rather as amba.s.sadors than as delegates. The term of a Senator was fixed for six years, a third of the Senate resigning in rotation every two years. The House of Representatives was to be elected in a body for two years. The President was elected for four years, at the end of which time he could be re-elected.

Such were the main lines of the compromises which were effected between the conflicting views of the extreme Federalists and extreme State Rights advocates, and the conflicting interests of the larger and smaller States.

But there was another threatened conflict, more formidable and, as the event proved, more enduring, with which the framers of the Const.i.tution had to deal. Two different types of civilization had grown up on opposite sides of the Mason-Dixon line. How far Slavery was the cause and how far a symptom of this divergence will be discussed more fully in future chapters. At any rate it was its most conspicuous mark or label. North and South differed so conspicuously not only in their social organization but in every habit of life and thought that neither would tamely bear to be engulfed in a union in which the other was to be predominant. To keep an even balance between them was long the princ.i.p.al effort of American statesmans.h.i.+p. That effort began in the Convention which framed the Const.i.tution. It did not cease till the very eve of the Civil War.

The problem with which the Convention had to deal was defined within certain well-understood limits. No one proposed that Slavery should be abolished by Federal enactment. It was universally acknowledged that Slavery within a State, however much of an evil it might be, was an evil with which State authority alone had a right to deal. On the other hand, no one proposed to make Slavery a national inst.i.tution. Indeed, all the most eminent Southern statesmen of that time, and probably the great majority of Southerners, regarded it as a reproach, and sincerely hoped that it would soon disappear. There remained, however, certain definite subjects of dispute concerning which an agreement had to be reached if the States were to live in peace in the same household.

First, not perhaps in historic importance, but in the insistence of its demand for an immediate settlement, was the question of representation.

It had been agreed that in the House of Representatives and in the Electoral College this should be proportionate to population. The urgent question at once arose: should free white citizens only be counted, or should the count include the Negro slaves? When it is remembered that these latter numbered something like half the population of the Southern States, the immediate political importance of the issue will at once be recognized. If they were omitted the weight of the South in the Federation would be halved. In the opposite alternative it would be doubled. By the compromise eventually adopted it was agreed that the whole white population should be counted and three-fifths of the slaves.

The second problem was this: if Slavery was to be legal in one State and illegal in another, what was to be the status of a slave escaping from a Slave State into a free? Was such an act to be tantamount to an emanc.i.p.ation? If such were to be the case, it was obvious that slave property, especially in the border States, would become an extremely insecure investment. The average Southerner of that period was no enthusiast for Slavery. He was not unwilling to listen to plans of gradual and compensated emanc.i.p.ation. But he could not be expected to contemplate losing in a night property for which he had perhaps paid hundreds of dollars, without even the hope of recovery. On this point it was found absolutely necessary to give way to the Southerners, though Franklin, for one, disliked this concession more than any other. It was determined that ”persons held to service or labour” escaping into another State should be returned to those ”to whom such service or labour may be due.”

The last and on the whole the least defensible of the concessions made in this matter concerned the African Slave Trade. That odious traffic was condemned by almost all Americans--even by those who were accustomed to domestic slavery, and could see little evil in it. Jefferson, in the original draft of the Declaration of Independence, had placed amongst the accusations against the English King the charge that he had forced the slave trade on reluctant colonies. The charge was true so far at any rate as Virginia was concerned, for both that State and its neighbour, Maryland, had pa.s.sed laws against the traffic and had seen them vetoed by the Crown. But the extreme South, where the cotton trade was booming, wanted more Negro labour; South Carolina objected, and found an expected ally in Ma.s.sachusetts. Boston had profited more by the Slave Trade than any other American city. She could hardly condemn King George without condemning herself. And, though her interest in the traffic had diminished, it had not wholly ceased. The paragraph in question was struck out of the Declaration, and when the Convention came to deal with the question the same curious alliance thwarted the efforts of those who demanded the immediate prohibition of the trade. Eventually the Slave Trade was suffered to continue for twenty years, at the end of which time Congress might forbid it. This was done in 1808, when the term of suffrance had expired.

Thus was Negro Slavery placed under the protection of the Const.i.tution.

It would be a grave injustice to the founders of the American Commonwealth to make it seem that any of them liked doing this.

Constrained by a cruel necessity, they acquiesced for the time in an evil which they hoped that time would remedy. Their mind is significantly mirrored by the fact that not once in the Const.i.tution are the words ”slave” or ”slavery” mentioned. Some euphemism is always used, as ”persons held to service or labour,” ”the importation of persons,”

”free persons,” contrasted with ”other persons,” and so on. Lincoln, generations later, gave what was undoubtedly the true explanation of this shrinking from the name of the thing they were tolerating and even protecting. They hoped that the Const.i.tution would survive Negro Slavery, and they would leave no word therein to remind their children that they had spared it for a season. Beyond question they not only hoped but expected that the concession which for the sake of the national unity they made to an inst.i.tution which they hated and deplored would be for a season only. The influence of time and the growth of those great doctrines which were embodied in the Declaration of Independence could not but persuade all men at last; and the day, they thought, could not be far distant when the Slave States themselves would concur in some prudent scheme of emanc.i.p.ation, and make of Negro Slavery an evil dream that had pa.s.sed away. None the less not a few of them did what they had to do with sorrowful and foreboding hearts, and the author of the Declaration of Independence has left on record his own verdict, that he trembled for his country when he remembered that G.o.d was just.

CHAPTER IV

THE MANTLE OF WAs.h.i.+NGTON

The compromises of the Const.i.tution, on whatever grounds they may be criticized, were so far justified that they gained their end. That end was the achievement of union; and union was achieved. This was not done easily nor without opposition. In some cities anti-Const.i.tutional riots took place. Several States refused to ratify. The opposition had the support of the great name of Patrick Henry, who had been the soul of the resistance to the Stamp Act, and who now declared that under the specious name of ”Federation” Liberty had been betrayed. The defence was conducted in a publication called _The Federalist_ largely by two men afterwards to be a.s.sociated with fiercely contending parties, Alexander Hamilton and James Madison. But more persuasive than any arguments that the ablest advocate could use were the iron necessities of the situation. The Union was an accomplished fact. For any State, and especially for a small State--and it was the small States that hesitated most--to refuse to enter it would be so plainly disastrous to its interests that the strongest objections and the most rooted suspicions had eventually to give way. Some States hung back long: some did not ratify the Const.i.tution until its machinery was actually working, until the first President had been chosen and the first Congress had met. But all ratified it at last, and before the end of Was.h.i.+ngton's first Presidency the complement of Stars and Stripes was made up.

The choice of a President was a foregone conclusion. Everyone knew that Was.h.i.+ngton was the man whom the hour and the nation demanded. He was chosen without a contest by the Electoral College, and would undoubtedly have been chosen with the same practical unanimity by the people had the choice been theirs. So long as he retained his position he retained along with it the virtually unchallenged pre-eminence which all men acknowledged. There had been cabals against him as a general, and there were signs of a revival of them when his Presidency was clearly foreshadowed. The impulse came mostly from the older and wealthier gentry of his own State--the Lees for example--who tended to look down upon him as a ”new man.” Towards the end of his political life he was to some extent the object of attack from the opposite quarter; his fame was a.s.sailed by the fiercer and less prudent of the Democratic publicists.

But, throughout, the great ma.s.s of the American people trusted him as their representative man, as those who abused him or conspired against him did so to their own hurt. A less prudent man might easily have worn out his popularity and alienated large sections of opinion, but Was.h.i.+ngton's characteristic sagacity, which had been displayed so constantly during the war, stood him in as good stead in matters of civil government. He propitiated Nemesis and gave no just provocation to any party to risk its popularity by attacking him. While he was President the mantle of his great fame was ample enough to cover the deep and vital divisions which were appearing even in his own Cabinet, and were soon to convulse the nation in a dispute for the inheritance of his power.

His Secretary to the Treasury was Alexander Hamilton. This extraordinary man presents in more than one respect a complex problem to the historian. He has an unquestionable right to a place and perhaps to a supreme place among the builders of the American Republic, and much of its foundation-laying was his work. Yet he shows in history as a defeated man, and for at least a generation scarcely anyone dared to give him credit for the great work that he really did. To-day the injustice is perhaps the other way. In American histories written since the Civil War he is not only acclaimed as a great statesman, but his overthrow at the hands of the Jeffersonians is generally pointed at as a typical example of the folly and ingrat.i.tude of the mob. This version is at least as unjust to the American people as the depreciation of the Democrats was to him. The fact is that Hamilton's work had a double aspect. In so far as it was directed to the cementing of a permanent union and the building of a strong central authority it was work upon the lines along which the nation was moving, and towards an end which the nation really, if subconsciously, desired. But closely a.s.sociated with this object in Hamilton's mind was another which the nation did not desire and which was alien to its instincts and destiny. All this second part of his work failed, and involved him in its ruin.

Hamilton had fought bravely in the Revolutionary War, but for the ideals which had become more and more the inspiration of the Revolution he cared nothing, and was too honest to pretend to care. He had on the other hand a strong and genuine American patriotism. Perhaps his origin helped him to a larger view in this matter than was common among his contemporaries. He was not born in any of the revolted colonies, but in Bermuda, of good blood but with the bar sinister stamped upon his birth.