Society in America. Harriet Martineau

in certain specified relations.

      The general objects of the instrument are easily stated; and an apparently clear case of separation between the general and state governments drawn out upon paper. But the application of the instrument to practice is the difficulty.

      In this, there are two grand difficulties, among many of inferior importance. The one is, to construe the instrument; the other is, to bridge over its awful chasms of compromise.

      There has never been a solemn instrument drawn up yet without leaving room for varieties of construction. There never can be, under our present use of abstract terms; no two men's abstractions being alike, or discoverably so. Of course, the profession in this case is, that words are to be taken according to their just and natural import; that there is to be no straining; that they are to be judged of according to common sense; and so on. The old jests against etymologists are enough to prove how far men are from agreeing what straining is. As to common sense, men respond in unison to a revelation of it; but they rarely agree, à priori, as to what it is. This difficulty is a wholly unavoidable one. The refuge under it is in the maxim "the majority are right." If the case in dispute be one of judicial import, the citizen may appeal to the Supreme Court. If it be of a different nature, it must be left to that other kind of supreme court—the majority—and the verdict will be given through the ballot-boxes.

      The other difficulty, that of compromise, is declared to have been equally unavoidable. Concession, large mutual concession, was clearly necessary. To what extent, may be faintly conceived from the following extract from the Federalist. To some readers, who are more interested in the present workings of the government, than in the embarrassments of its inventors, this extract may appear dull. But it is useful to be presented with an outline of the difficulties incurred in legislating for a federal republic, both as a fact in political science; as a means of forming something like a just judgment of the framers of the constitution; and as a ground of hope that, so much danger having been surmounted, that which remains may be also overcome.

"This one tells us, that the proposed constitution ought to be rejected, because it is not a confederation of the States, but a government over individuals. Another admits, that it ought to be a government over individuals, to a certain extent, but by no means to the extent proposed. A third does not object to the government over individuals, or to the extent proposed; but to the want of a Bill of Rights. A fourth concurs in the absolute necessity of a Bill of Rights, but contends that it ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the States in their political capacity. A fifth is of opinion that a Bill of Rights of any sort would be superfluous and misplaced; and that the plan would be unexceptionable, but for the fatal power of regulating the times and places of election. An objector in a large State exclaims loudly against the unreasonable equality of representation in the senate. An objector in a small State is equally loud against the dangerous inequality in the House of Representatives. From one quarter, we are alarmed with the amazing expense, from the number of persons who are to administer the new government. From another quarter, and sometimes from the same quarter on another occasion, the cry is that the Congress will be but the shadow of a representation; and that the government would be far less objectionable, if the number of the expenses were doubled. A patriot in a State that does not import or export, discerns insuperable objections against the power of direct taxation. The patriotic adversary, in a State of great exports and imports, is not less dissatisfied that the whole burthen of taxes may be thrown on consumption. This politician discovers in the constitution a direct and irresistible tendency to monarchy. That, is equally sure that it will end in aristocracy. Another is puzzled to say which of these shapes it will ultimately assume, but sees clearly it must be one or other of them. While a fourth is not wanting, who, with no less confidence, affirms, that the constitution is so far from having a bias towards either of these dangers, that the weight on that side will not be sufficient to keep it upright and firm against its opposite propensities. With another class of adversaries to the constitution, the language is, that the legislative, executive, and judiciary departments are intermixed in such a manner as to contradict all the ideas of regular government, and all the requisite precautions in favour of liberty. Whilst this objection circulates in vague and general expressions, there are not a few who lend their sanction to it. Let each one come forward with his particular explanation, and scarcely any two are exactly agreed on the subject. In the eyes of one, the junction of the senate with the president, in the responsible function of appointing to offices, instead of vesting this power in the executive alone, is the vicious part of the organisation. To another, the exclusion of the House of Representatives, whose numbers alone could be a due security against corruption and partiality in the exercise of such a power, is equally obnoxious. With a third, the admission of the president into any share of a power, which must ever be a dangerous engine in the hands of the executive magistrate, is an unpardonable violation of the maxims of republican jealousy. No part of the arrangement, according to some, is more inadmissible than the trial of impeachments by the Senate, which is alternately a member both of the legislative and executive departments, when this power so evidently belonged to the judiciary department. We concur fully, reply others, in the objection to this part of the plan; but we can never agree that a reference of impeachments to the judiciary authority would be an amendment of the error: our principal dislike to the organisation arises from the extensive powers already lodged in that department. Even among the zealous patrons of a council of state, the most irreconcilable variance is discovered, concerning the mode in which it ought to be constituted. The demand of one gentleman is, that the council should consist of a small number, to be appointed by the most numerous branch of the legislature. Another would prefer a larger number, and considers it a fundamental condition, that the appointment should be made by the president himself."[3]

      It must have cost Mr. Madison some trouble to vary the mode of expression in putting this host of objections. We cannot but admire the ingenuity with which he has brought them into view. But what should we say to the management which should reconcile the differences themselves? Concessions, various and large, were obviously necessary. I am not about to give a catalogue of what these actually were. They may be learned from any history of the period. Suffice it that the general and state governments not only urged and established claims, but admitted a set of prohibitions on themselves.

      In all this there appears no fatal compromise. But there were some which made the wisest men of the time tremble for the stability of their noble work. There seems peril enough in the liability to the occurrence of new questions, which could not be foreseen, and for which an opening might, or might not, happen to be left. When, in addition to such, there were some questions left to be settled by a future government, from the inability of the statesmen of 1787 to agree upon them, these statesmen might well be uneasy about the stability of their work. Of the first order of questions is that which is now debated with great animosity—whether Congress has power to abolish slavery in the District of Columbia: a disputed point of construction, on which it seems to me that no plain person can be blamed for not anticipating any difference of opinion. Of the second class is that great question, or nest of questions, respecting Reserved Rights. It was agreed that all unforeseen questions which might arise with regard to the respective powers of the general and state governments, should be settled by the state governments; but then, there was an indefinite limitation introduced in the clause, that the general government should have all powers necessary for the prosecution of such and such purposes. This vague clause has been the occasion of the Union being shaken to its centre; and it may be thus shaken again, before the questions arising out of it are all settled.

      Even these, being open questions, are less formidable than the compromise of the true republican principle which is apparent in some provisions of the constitution, and in some of the most important institutions of the country. The northern States, which had abolished, on principle, a far milder slavery than that of the cotton and sugar-growing south, agreed to admit slavery in the south as a basis for direct taxation, and for representation. They did worse. They agreed to act in behalf of their southern fellow-citizens in the capture and restitution of runaway slaves, and in the defence of masters against rebellious slaves. What bitter sorrows of conscience and of feeling this compromise has cost their children, it is impossible fully to describe. Of course, the law, being against conscience,