A Brief Enquiry into the Nature and Character of our Federal Government/X

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A Brief Enquiry into the Nature and Character of our Federal Government by Abel P. Upshur
Chapter X
Chapter breaks are not found in the original; they were added in an 1868 edition. References to "our author" or "the author" refer to Joseph Story, the author of the work being critiqued by Upshur.

I have thus finished the examination of the political part of these commentaries, and this is the only object with which this review was commenced. There are, however, a few topics yet remaining, of great public concern, and which ought not to be omitted. Some of these, as it seems to me, have been presented by the author in false and deceptive lights, and others of them, from their intrinsic importance, cannot be too often pressed upon public attention. I do not propose to examine them minutely, but simply to present them in a few of their strongest lights.

In his examination of the structure and functions of the house of representatives, the author has given his views of that clause of the Constitution which allows representation to three-fifths of the slaves. He considers the compromise upon this subject as unjust in principle, and decidedly injurious to the people of the non-slaveholding States. He admits that an equivalent for this supposed concession to the South was intended to be secured by another provision, which directs that "Representatives and direct taxes shall be apportioned among the several States, according to their respective numbers;" but he considers this provision "more specious than solid; for while in the levy of taxes it apportions them on three-fifths of persons not free, it on the other hand, really exempts the other two-fifths from being taxed at all as property. Whereas, if direct taxes had been apportioned, as upon principle they ought to be, according to the real value of property within the State, the whole of the slaves would have been taxable as property. But a far more striking inequality has been disclosed [ *109 ] *by the practical operations of the government. The principle of representation is constant and uniform; the levy of direct taxes is occasional and rare. In the course of forty years, no more than three direct taxes have been levied, and those only under very extraordinary and pressing circumstances. The ordinary expenditures of the government are, and always have been, derived from other sources. Imposts upon foreign importations have supplied, and will generally supply, all the common wants; and if these should not furnish an adequate revenue, excises are next resorted to, as the surest and most convenient mode of taxation. Direct taxes constitute the last resort; and, as might have been foreseen, would never be laid until other resources had failed."

This is a very imperfect, and, as it seems to me, not a very candid view of a grave and important subject. It would have been well to avoid it altogether, if it had been permitted; for the public mind needs no encouragement to dwell, with unpleasant reflections, upon the topics it suggests. In an examination of the Constitution of the United States, however, some notice of this peculiar feature of it was unavoidable; but we should not have expected the author to dismiss it with such criticism only as tends to show that it is unjust to his own peculiar part of the country. It is manifest to every one that the arrangement rests upon no particular principle, but is a mere compromise between conflicting interests and opinions. It is much to be regretted that it is not on all hands acquiesced in and approved, upon that ground; for no public necessity requires that it should be discussed, and it cannot now be changed without serious danger to the whole fabric. The people of the slave-holding States themselves have never shown a disposition to agitate the question at all, but, on the contrary, have generally sought to avoid it. It has, however, always "been complained of as a grievance," by the non-slaveholding States, and that too in language which leaves little doubt that a wish is very generally entertained to change it. A grave author, like Judge Story, who tells the people, as it were ex cathedra, that the thing is unjust in itself, will scarcely repress the dissatisfaction, which such an announcement, falling in with preconceived opinions, will create, by a simple recommendation to acquiesce in it as a compromise, tending upon the whole to good results. His remarks may render the public mind more unquiet than it now is; they can scarcely tranquillize or reconcile it. For myself, I am very far from wishing to bring the subject into serious discussion, with any view to change; but I cannot agree that an arrangement, obviously injurious to the South, should be [ *110 ] *held up as giving her advantages of which the North has reason to complain.

I will not pause to inquire whether the rule apportioning representatives according to numbers, which, after much contest, was finally adopted by the convention, be the correct one or not. Supposing that it is so, the rule which apportions taxation in the same way, follows as matter of course. The difficulties under which the convention seem to have labored, in regard to this subject, may well excite our surprise, at the present day. If the North really supposed that they conceded any thing to the South, by allowing representation to three-fifths of their slaves, they were certainly but poorly compensated for the concession, by that provision of the Constitution which apportions taxation according to representation. This principle was universally acknowledged throughout the United States, and is, in fact, only a modification of the great principle upon which the revolution itself was based. That taxation should be apportioned to representation, results from the federative character of our government; and the fact that this rule was adopted, sustains the views which have been presented, upon this point. It would have been indeed strange, if some one State, having only half the representatives of its neighbor State, might yet have been subjected to twice the amount of taxation; Delaware, for instance, with her one representative, to twice the taxes of Pennsylvania, with her twenty-eight. A different rule from that which prevails might subject the weaker States to intolerable oppression. A combination among a few of the strongest States might, by a little management, throw the whole burthen of taxation upon the others, by selecting only such subjects of taxation as they themselves did not possess, or which they possessed only to a comparatively small extent. It never would have answered to entrust the power of taxation to congress, without some check against these and similar abuses, and no check could have been devised, more effective or more appropriate than the provision now under consideration. All the States were interested in it; and the South much more deeply than the North. The slaves of the South afford the readiest of all possible subjects for this sort of practice; and it would be going too far to say that they would not, at some day or other, be selected for it, if this provision of the Constitution did not stand in the way. The Southern States would certainly never have adopted the Constitution, without some such guaranty as this, against those oppressions to which their peculiar institutions exposed them; and the weaker States, whether north or south, would never have adopted it, because it might lead to [ *111 ] *their utter annihilation in the confederacy. This provision of the constitution, therefore, can scarcely be considered as an equivalent for any thing conceded by some of the States to others. It resulted necessarily from the very nature of their union: it is an appropriate and necessary feature in every confederacy between sovereign States. We ought, then, to regard that provision of the Constitution, which allows representation to only three-fifths of the slaves, as a concession made by the South; and one for which they received no equivalent, except in the harmony which it served to produce.

Reverting to the rule, that representation shall be apportioned to population, and supposing that all parties acquiesce in the propriety of it, upon what principle is the rule itself founded? We have already seen that the whole country had adopted the principle, that taxation should be apportioned to representation, and, of course, in fixing the principle of representation, the question of taxation was necessarily involved. There is no perfectly just rule of taxation, but property; every man should contribute to the support of the government, according to his ability, that is, according to the value of that property to which government extends its protection. But this rule never can be applied in practice; because it is impossible to discover what is the amount of the property, either of individuals or nations. In regard to states, population is the best measure of this value which can be found, and is, in most cases, a sufficiently accurate one. Although the wealth of a state cannot be ascertained, its people can be easily counted, and hence the number of its people gives the best rule for its representation, and consequently, for its taxation.

The population of a state is received as the best measure of the value of its property, because it is in general true, that the greater the number of people, the greater is the amount of productive industry. But of what consequence is it, by what sort of people this amount of production is afforded? It was required that each State of our Union should contribute its due proportion to the common treasury; a proportion ascertained by the number of its people. Of what consequence is it, whether this contribution be made by the labor of slaves, or by that of freemen? All that the States had a right to require of one another was, that each should contribute its allotted proportion; but no State had a right to enquire from what particular sources that contribution arose. Each State having a perfect right to frame its own municipal regulations for itself, the other States had no right to subject her to any disabilities or disadvantages on account of them. If Massachusetts had a right to object to the representation [ *112 ] *of the slaves of Virginia, Virginia had the same right to object to the representation of the apprentices, the domestic servants, or even the mechanics of Massachusetts. The peculiar private condition and relations of the people of a State to one another could not properly be enquired into by any other State. That is a subject which each State regulates for itself; and it cannot enter into the question of the influence which such State ought to possess, in the common government of all the States. It is enough that the State brings into the common stock a certain amount of wealth, resulting from the industry of her people. Whether those people be men or women, bond or free, or bound to service for a limited time only, is the exclusive concern of the State itself, and is a matter with which the other States cannot intermeddle, without impertinence, injustice and oppression. So far, then, from limiting representation to three-fifths of the slaves, they ought all to be represented, for all contribute to the aggregate of the productive industry of the country. And, even then, the rule would operate injuriously upon the slave-holding States; for, if the labor of a slave be as productive as that of a free man, (and in agriculture it is so,) the cost of supporting him is much less. Therefore, of the same amount of food and clothing, raised by the two classes, a greater surplus will remain of that of the slave, and of course a greater amount subject to the demands of the public necessities.

The remarks of John Adams, delivered in convention,[1] are very forcible upon this point. According to Mr. Jefferson's report of them, he observed, "that the numbers of people are taken as an index of the wealth of the state, and not as subjects of taxation; that, as to this matter it was of no consequence by what name you called your people, whether by that of freemen or of slaves; that in some countries the laboring poor are called freemen, in others they are called slaves; but that the difference, as to the state, was imaginary only. What matters it whether a landlord, employing ten laborers on his farm, gives them annually as much money as will buy them the necessaries of life, or gives them those necessaries at short hand? The ten laborers add as much wealth to the state, increase its exports as much, in the one case as in the other. Certainly five hundred freemen produce no more profits, no greater surplus for the payment of taxes, than five hundred slaves. Therefore the State, in which are the laborers called freemen, should be taxed no more than that in which are the laborers called slaves. Suppose by an extraordinary operation of nature or of law, one-half the laborers of a State could, in the course of one night, be transformed into slaves, would the State be [ *113 ] *made poorer or less able to pay taxes? That the condition of the laboring poor in most countries, that of the fishermen particularly of the Northern States, is as abject as that of slaves. It is the number of laborers which produces the surplus for taxation, and numbers therefore, indiscriminately, are the fair index to wealth."

It is obvious that these remarks were made for a very different purpose from that which I have in view. The subject then before the convention was the proper rule of taxation, and it was Mr. Adams' purpose to show that, as to that matter, slaves should be considered only as people, and, consequently, as an index of the amount of taxable wealth. The convention had not then determined that representatives and direct taxes should be regulated by the same ratio. When they did determine this, the remarks of Mr. Adams seem to me conclusive, to show that representation of all the slaves ought to have been allowed; nor do I see how those who held his opinions could possibly have voted otherwise. If slaves are people, as forming the measure of national wealth, and consequently of taxation, and if taxation and representation be placed upon the same principle, and regulated by the same ratio, then that slaves are people, in fixing the ratio of representation, is a logical sequitur which no one can possibly deny.

But it is objected that slaves are property, and, for that reason, are not more entitled to representation than any other species of property. But they are also people, and, upon analogous principles, are entitled to representation as people. It is in this character alone that the non-slave-holding States have a right to consider them, as has already been shown, and in this character alone is it just to consider them. "We ought to presume that every slave occupies a place which, but for his presence, would be occupied by a free white man; and, if this were so, every one, and not three-fifths only, would be represented. But the States who hold no slaves have no right to complain that this is not the case in other States, so long as the labor of the slave contributes as much to the common stock of productive industry, as the labor of the white man. It is enough that a State possesses a certain number of people, of living, rational beings. We are not to enquire whether they be black, or white, or tawny, nor what are their peculiar relations among one another. If the slave of the south be property, of what nature is that property, and what kind of interest has the owner in it? He has a right to the profits of the slave's labor. And so, the master of an indented apprentice has a right to the profits of his labor. It is true, one holds the right for the life of the slave, and [ *114 ] *the other only for a time limited in the apprentices' indentures; but this is a difference only in the extent, and not in the nature of the interest. It is also true, that the owner of a slave has, in most States, a right to sell him; but this is only because the laws of the State authorize him to do so. And, in like manner, the indentures of an apprentice may be transferred if the laws of the State will allow it. In all these respects, therefore, the slave and the indented apprentice stand upon precisely the same principle. To a certain extent, they are both property, and neither of them can be regarded as a free man; and if the one be not entitled to representation, the other also should be denied that right. Whatever be the difference of their relations to the separate members of the community, in the eye of that community they are both people. Here, again, Mr. Adams shall speak for me; and our country has produced few men Avho could speak more wisely. "A slave may indeed, from the custom of speech, be more properly called the wealth of his master, than the free laborer might be called the wealth of his employer; but as to the State, both are equally its wealth, and should therefore equally add to the quota of its tax." Yes; and, consequently, they should equally add to the quota of its representation.

Our author supposes that it is a great advantage to the slave-holding States that, while three-fifths of the slaves are entitled to representation, two-fifths are exempted from taxation. Why confine it to three-fifths? Suppose that none of them were entitled to representation, the only consequence would be, that the State would have fewer representatives, and, for that reason, would have a less amount of taxes to pay. In this case, all the slaves would be exempted from taxation; and, according to our author, the slave-holding States would have great reason to be content with so distinguishing an advantage. And, for the same reason, every other State would have cause to rejoice at the diminution of the number of its people, for although its representation would thereby be decreased, its taxes would be decreased in the same proportion. This is the true mode of testing the author's position. It will be found that every State values the right of representation at a price infinitely beyond the amount of direct taxes to which that right may subject it; and, of course, the Southern States have little reason to be thankful that two-fifths of their slaves are exempted from taxation, since they lose, in consequence of it, the right of representation to the same extent. The author, however, seems to have forgotten this connexion between representation and taxation; he looks only at the sources whence the Union may draw wealth from [ *115 ] *the South, without enquiring into the principles upon which her representation may be enlarged. He thinks that direct taxes ought to be apportioned, "according to the real value of property within the State;" in which case "the whole of the slaves would have been taxable as property." I have already remarked that this is, indeed, the true rule; but it is wholly impracticable. It would be alike impossible to fix a satisfactory standard of valuation, and to discover the taxable subjects. No approximation to the truth could be hoped for, without a host of officers, whose compensations would consume a large proportion of the tax, while, from the very nature of their duties, they would be forced into minute examinations, inconsistent with the freedom of our institutions, harassing and vexatious in their details, and leading inevitably to popular resistance and tumult. And this process must be gone through at every new tax; for the relative wealth of the States would be continually changing. Hence, population has been selected as the proper measure of the wealth of the States. But, upon our author's principle, the South would be, indeed, little better off than the lamb in the embrace of the wolf. The slaves are easily found; they can neither be buried under ground, nor hid in the secret drawers of a bureau. They are peculiar, too, to a particular region; and other regions, having none of them, would yet have a voice in fixing their value as subjects of taxation. That they would bear something more than their due share of this burthen, is just as certain as that man, under all circumstances, will act according to his nature. In the mean time, not being considered as people, they would have no right to be heard in their own defence, through their representatives in the federal councils. On the other hand, the non-slave-holding States would be represented in proportion to the whole numbers of their people, and would be taxed only according to that part of their wealth which they might choose to disclose, or which they could not conceal. And in the estimate of this wealth, their people would not be counted as taxable subjects, although they hold to their respective States precisely the same relation, as laborers and contributors to the common treasury, as is held by the slaves of the South to their respective States. The rule, then, which considers slaves only as property to be taxed, and not as people to be represented, is little else than a rule imposing on the Southern States almost the entire burthens of the government, and allowing to them only the shadow of influence in the measures of that government.

The truth is, the slave-holding States have always contributed more than their just proportion to the wealth and strength of the country [ *116 ] *and not less than their just proportion to its intelligence and public virtue. This is the only perfectly just measure of political influence; but it is a measure which cannot be applied in practice. We receive population as the best practicable substitute for it; and as all people, whatever be their private and peculiar conditions and relations, are presumed to contribute their share to the stock of general wealth, intelligence and virtue, they are all entitled to their respective shares of influence in the measures of government. The slave-holding States, therefore, had a right to demand that all their slaves should be represented; they yielded too much in agreeing that only three-fifths of them should possess that right. I cannot doubt that this would have been conceded by the convention, had the principle, that representatives and direct taxes should be apportioned according to the same ratio, been then adopted into the Constitution. It would have been perceived that, while the representation of the Southern States would thus have been increased, their share of the public taxes would have been increased in the same proportion; and thus they would have stood, in all respects, upon the same footing with the other States. The Northern States would have said to them, "Count your people; it is of no consequence to us what is their condition at home; they are laborers, and therefore they contribute the same amount of taxable subjects, whether black or white, bond or free. We therefore recognize them as people, and give them representation as such. All that we require is, that when we come to lay direct taxes, they shall be regarded as people still, and you shall contribute for them precisely as we contribute for our people." This is the plain justice of the case; and this alone would be consistent with the great principles which ought to regulate the subject. It is a result which is no longer attainable, and the South will, as they ought to do, acquiesce in the arrangement as it now stands. But they have reason to complain that grave authors, in elaborate works designed to form the opinions of rising generations, should so treat the subject as to create an impression that the Southern States are enjoying advantages under our Constitution, to which they are not fairly entitled, and which they owe only to the liberality of the other States; for the South feels that these supposed advantages are, in fact, sacrifices, which she has made only to a spirit of conciliation and harmony, and which neither justice nor sound principle would ever have exacted of her.

The most defective part of the Federal Constitution, beyond all question, is that which relates to the executive department. It is impossible to read that instrument, without being forcibly struck with [ *117 ] *the loose and unguarded terms in which the powers and duties of the President are pointed out. So far as the legislature is concerned, the limitations of the Constitution are, perhaps, as precise and strict as they could safely have been made; but in regard to the executive, the convention appear to have studiously selected such loose and general expressions, as would enable the President, by implication and construction, either to neglect his duties, or to enlarge his powers. We have heard it gravely asserted in congress, that whatever power is neither legislative nor judiciary, is, of course, executive, and, as such, belongs to the President, under the Constitution! How far a majority of that body would have sustained a doctrine so monstrous, and so utterly at war with the whole genius of our government, it is impossible to say; but this, at least, we know, that it met with no rebuke from those who supported the particular act of executive power, in defence of which it was urged. Be this as it may, it is a reproach to the Constitution, that the executive trust is so ill-defined, as to leave any plausible pretence, even to the insane zeal of party devotion, for attributing to the President of the United States the powers of a despot; powers which are wholly unknown in any limited monarchy in the world.

It is remarkable that the Constitution is wholly silent in regard to the power of removal from office. The appointing power is in the President and senate; the President nominating, and the senate confirming; but the power to remove from office seems never to have been contemplated by the convention at all, for they have given no directions whatever upon the subject. The consequence has been precisely such as might have been expected, a severe contest for the possession of that power, and the ultimate usurpation of it, by that department of the government to which it ought never to be entrusted. In the absence of all precise directions upon the subject, it would seem that the power to remove ought to attend the power to appoint; for those whose duty it is to fill the offices of the country with competent incumbents, cannot possibly execute that trust fully and well, unless they have power to correct their own errors and mistakes, by removing the unworthy, and substituting better men in their places. This, I have no doubt, is the true construction of our Constitution. It was for a long time strenuously contended for by a large party in the country, and was finally yielded, rather to the confidence which the country reposed in the virtues of Washington, than to any conviction that it was properly an executive power, belonging only to the President. It is true of Washington alone of all the truly [ *118 ] *great of the earth, that he never inflicted an injury upon his country, except only such as proceeded from the excess of his own virtues. His known patriotism, wisdom and purity, inspired us with a confidence and a feeling of security against the abuses of power, which has led to the establishment of many precedents, dangerous to public liberty in the hands of any other man. Of these, the instance before us is not the least important. The power to remove from office is, in effect, the power to appoint to office. What does it avail that the senate must be consulted in appointing to office, if the President may, the very next moment, annul the act by removing the person appointed! The senate has no right to select; they can do nothing more than confirm or reject the person nominated by the President. The President may nominate his own devoted creatures; if the senate should disapprove any one of them, he has only to nominate another, and another, and another; for there is no danger that the list will be exhausted, until the senate will be persuaded or worried into compliance. And when the appointment is made, the incumbent knows that he is a mere tenant at will, and necessarily becomes the mere tool and slave of the man at whose sole pleasure he eats his daily bread. Surely, it is a great and alarming defect in our Constitution, that so vast and dangerous a power as this should be held by one man. Nothing more is required to place the liberties of the country at the feet of the President, than to authorize him to fill, and to vacate and to fill again, at his sole will and pleasure, all the offices of the country.

The necessary consequence of enabling the President to remove from office at his mere pleasure is, that the officer soon learns to consider himself the officer of the President, and not of the country. The nature of his responsibility is changed; he answers not to the people for his conduct, for he is beyond their reach; he looks only to the President, and, satisfied with his approval, is regardless of every thing else. In fact, his office, however obscure it may be, soon comes to be considered only a part of the great executive power lodged in the President. The President is the village postmaster, the collector of the customs, the marshal, and every thing else; and the incumbents of those offices are but his agents, through whom, for the sake of convenience, he exercises so much of his gigantic powers. One step farther, and the agency of the senate in these appointments will be no longer invoked. A little more of that construction and implication to which the looseness of the Constitution, on this point, holds out the strongest invitation, and the President will say to the senate, "This collectorship is a part of the great executive trust which is lodged in [ *119 ] *me; I have a right to discharge it in person, if I please, and, consequently, I have a right to discharge it by my own agent. It is my duty to see that the laws are executed; and if I do so, that is all that the country can require of me. I have a right to do so in my own way." There is no extravagance in this supposition; nothing in the past history of the country which teaches us to consider it an improbable result. Who does not perceive that the claims which have already been made, in behalf of executive power upon this very point, must of necessity change the whole nature and spirit of our institutions? Their fundamental principle is, that all power is in the people, and that public officers are but their trustees and servants, responsible to them for the execution of their trusts. And yet, in the various ramifications of the executive power, in the thousand agencies necessary to the convenience and interests of the people, which belong to that department, there is, in effect, no responsibility whatever. The injured citizen can make his complaint only to the President, and the President's creature knows that he is perfectly secure of his protection, because he has already purchased it by slavish subserviency. Is it enough that the President himself is responsible? We shall soon see that his responsibility is nominal only; a mere formal mockery. And responsible for what? Will you impeach the President because a postmaster has robbed the public mail, or a collector of the customs stolen the public money? There is absurdity in the very idea. Will you impeach him because he does not remove these unfaithful agents, and appoint others? He will tell you that, according to the construction which has been given to the Constitution, and in which you yourselves have acquiesced, that matter depends solely on his own will, and you have no right to punish him for what the Constitution authorizes him to do. What then is the result? The President claims every power which, by the most labored constructions, and the most forced implications, can be considered as executive. No matter in how many hands they are distributed, he wields them all; and when we call on him to answer for an abuse of those powers, he gravely tells us, that his agents have abused them, and not he. And when we call on those agents to answer, they impudently reply, that it is no concern of ours, they will answer to the President! Thus powers may be multiplied and abused without end, and the people, the real sovereigns, the depositaries of all power, can neither check nor punish them!

This subject certainly calls loudly for public attention. We ought not to lose sight of the rapid progress we have made in the decline of [ *120 ] *public virtue. It becomes us to understand that we have, no longer, Washingtons among us, to whose pure hands the greatest powers may be safely entrusted. We are now in that precise stage of our progress, when reform is not impossible, and when the practical operation of the government has shown us in what particulars reform is necessary. If we regard our government, not as the mere institution of the hour, but as a system which is to last through many successive generations, protecting and blessing them, it becomes us to correct its faults, to prune its redundancies, to supply its defects, to strengthen its weak points, and check its tendency to run into irresponsible power. If this be not speedily done, it requires no prophet's eye to see that it will not be done at all. And whenever this great and necessary work shall be undertaken, the single reform which is here suggested will accomplish half that is required.

Another striking imperfection of the Constitution, as respects the executive department, is found in the veto power. The right to forbid the people to pass whatever laws they please, is the right to deprive them of self-government. It is a power which can never be entrusted to one man, or any number of men short of the people themselves, without the certain destruction of public liberty. It is true that each department of the government should be armed with a certain power of self-protection against the assaults of the other departments; and the executive, probably, stands most in need of such protection. But the veto power, as it stands in the Constitution, goes far beyond this object. It is, in effect, a power in the executive department to forbid all action in any other. It is true that, notwithstanding the veto of the President, a law may still be passed, provided two-thirds of each house of congress agree therein; but it is obvious that the cases are very rare, in which such concurrence could be expected. In cases of plain necessity or policy the veto would not be applied; and those of doubtful necessity or policy would rarely be carried by a majority so large as two-thirds of each house. And yet in these it may be just as important that the public will should be carried out, as in cases of less doubt and difficulty. It may be, also, that a President may oppose the passage of laws of the plainest and most pressing necessity. And if he should do so, it would certainly give him a most improper power over the people, to enable him to prevent the most necessary legislation, with only one-third of each house of congress in his favor. There is something incongruous in this union of legislative and executive powers in the same man. Perhaps it is proper that there should be a power somewhere, to check hasty and [ *121 ] *ill-considered legislation, and that power may be as well entrusted to the President as to any other authority. But it is not necessary that it should be great enough to prevent all legislation, nor to control in any respect the free exercise of the legislative will. It would be quite enough for the security of the rights of the executive, and quite enough to ensure temperate and wise legislation, to authorize the President merely to send back to the legislature for reconsideration any law which he disapproved. By thus affording to that body time and opportunity for reflection, with all the additional lights which the President himself could throw upon the subject, we should have every reasonable security for the due exercise of the legislative wisdom, and a fair expression of the public will. But if, after all this, the legislature, in both its branches, should still adhere to their opinion, the theory and the sound practice of all our institutions require that their decision should be binding and final.

But the great defect of the Constitution in relation to this department is, that the responsibility of the President is not duly secured. I am sensible of the great difficulty which exists in arranging this subject properly. It is scarcely possible to lodge the power of impeachment any where, without subjecting it to the danger of corrupting influences; and it is equally difficult so to limit the extent and direct the exercise of that power, as to reconcile a proper responsibility in the officer, with a proper independence and sense of security, in the discharge of his duties. The power to try impeachments is correctly lodged with the senate, the representative of the States; for, as the government, with all its offices, was created by the States, the States alone should have the right to try and to remove the delinquent incumbents. But in the exercise of this power, the concurrence of too large a proportion is made necessary to conviction. The same reasoning applies here which was applied to the veto power. Nothing short of the most flagrant and indisputable guilt will ever subject a president to removal by impeachment. He must be, indeed, but little practiced in the ways of men, or strangely misled and infatuated, if, with all the means which his office places within his control, he cannot bring over at least one-third of the senate to his support.

It is scarcely to be supposed that a man elected by the suffrages of a majority of the States would, within the short period of four years, so far forfeit his standing with the public, as not to retain the confidence of at least one-third of them. Besides, he has abundant means of influencing the conduct of his triers, however strong may be public opinion against him. To require, therefore, the concurrence of two-thirds [ *122 ] *of the senators present, is, in effect, to render the whole process an idle form. It might not be safe, however, to repose this high trust in a bare majority. The object to be attained is, on the one hand, to make the number authorized to convict so large, as to afford a reasonable assurance that there will be no conviction without clear proof of guilt, and, on the other, to make it so small, as to afford equal assurance that the guilty will not escape. I do not pretend to suggest how large the majority ought to be, in order to ensure this result; but it is perfectly certain that, as the matter now stands, in nine-tenths of the cases in which the power may be called into exercise, it will be found utterly unavailing for any good purpose. Indeed, it can scarcely fail to be extremely mischievous; for a charge of guilt preferred, and not sustained, will always strengthen the President, by enlisting public sympathy in his favor, and will thus indirectly sanction the very abuse for which he was subjected to trial. A President tried and acquitted will always be more powerful than he would have been, had he done nothing to bring his conduct into question.

There is a species of responsibility to which the President is subjected, in the fact that the people may refuse to re-elect him. This will certainly be felt in some degree, by those Presidents for whom a re-election possesses greater charms than any possible abuse of power. But this is, under any circumstances, a feeble security to the people; and it will be found of no value whatever, as soon as the government shall have approached a little nearer, than at present, to the confines of absolute power. Besides, the reasoning could not apply to a President in his second term, and who, according to the established usage, could not expect to be re-elected. This is the period through which he may revel in all the excesses of usurped authority, without responsibility, and almost without check or control.

The re-eligibility of the President, from term to term, is the necessary source of numberless abuses. The fact that the same President may be elected, not for a second term only, but for a third, or fourth, or twentieth,[supp 1] will ere long suggest to him the most corrupting uses of his powers, in order to secure that object. At present there is no danger of this. Presidents are now made, not by the free suffrages of the people, but by party management; and there are always more than one in the successful party, who are looking to their own turn in the presidential office. It is too early yet for a monopoly of that high honor; but the time will come, when the actual incumbent will find means to buy off opposition, and to ensure a continuance in office, by prostituting the trusts which belong to it. This is so obviously within [ *123 ] *the natural course of things, that it may well excite our surprise that the convention should have left the public liberty wholly unguarded, at so assailable a point. It is surely a plain dictate of wisdom, and a necessary provision in every free government, that there should be some definite limit to the duration of executive power, in the same hands. We cannot hope to be free from the corruptions which result from an abuse of presidential power and patronage, until that officer shall be eligible only for one term—a long term if you please—and until he shall be rendered more easily and directly responsible to the power which appoints him.

Regarding this work of Judge Story as a whole, it is impossible not to be struck with the laborious industry which he has displayed, in the collection and preparation of his materials. He does not often indulge himself in speculations upon the general principles of government, but confines himself, with great strictness, to the particular form before him. Considering him as a mere lawyer, his work does honor to his learning and research, and will form a very useful addition to our law libraries. But it is not in this light only that we are to view it. The author is a politician, as well as a lawyer, and has taken unusual pains to justify and recommend his own peculiar opinions. This he has done, often at the expense of candor and fairness, and, almost invariably, at the expense of historical truth. We may well doubt, therefore, whether his book will not produce more evil than good, to the country; since the false views which it presents, of the nature and character of our government, are calculated to exert an influence over the public mind, too seriously mischievous to be compensated by any new lights which it sheds upon other parts of our Constitution. Indeed, it is little else than a labored panegyric upon that instrument. Having made it, by forced constructions, and strange misapprehensions of history, to conform to his own beau ideal of a perfect government, he can discern in it nothing that is deficient, nothing that is superfluous. And it is his particular pleasure to arm it with strong powers, and surround it with imposing splendors. In his examination of the legislative department, he has displayed an extraordinary liberality of concession, in this respect. There is not a single important power ever exercised or claimed for congress, which he does not vindicate and maintain. The long contested powers to protect manufactures, to construct roads, with an endless list of similar objects to which the public money may be applied, present no serious difficulty to his mind. An examination of these several subjects, in detail, would swell this review beyond its proper limits, and is rendered [ *124 ] *unnecessary by the great principles which it has been my object to establish. I allude to them here, only as illustrating the general character of this book, and as showing the dangerous tendency of its political principles. It is, indeed, a strong argument in favor of federal power; and when we have said this, we have given it the character which the author will most proudly recognize. And it is not for the legislature alone, that these unbounded powers are claimed; the other departments come in for a full share of his favor. Even when he is forced to condemn, he does it with a censure so faint, and so softened and palliated, as to amount to positive praise.

It is too late for the people of these States to indulge themselves in these undiscriminating eulogies of their Constitution. We have, indeed, every reason to admire and to love it, and to place it far above every other system, in all the essentials of good government. Still, it is far from being perfect, and we should be careful not to suffer our admiration of what is undoubtedly good in it, to make us blind to what is as undoubtedly evil. When we consider the difficulties under which the convention labored, the great variety of interests and opinions which it was necessary for them to reconcile, it is matter of surprise that they should have framed a government so little liable to objection. But the government which they framed is not that which our author has portrayed. Even upon the guarded principles for which I have contended in this review, the action of the whole system tends too strongly towards consolidation. Much of this tendency, it is true, might be corrected by ordinary legislation; but, even then, there would remain in the federal government an aggregate of powers, which nothing but an enlightened and ever-vigilant public opinion could confine within safe limits. But if our author's principles be correct, if ours be, indeed, a consolidated and not a federative system, I, at least, have no praises to bestow on it. Monarchy in form, open and acknowledged, is infinitely preferable to monarchy in disguise.

The principle that ours is a consolidated government of all the people of the United States, and not a confederation of sovereign States, must necessarily render it little less than omnipotent. That principle, carried out to its legitimate results, will assuredly render the federal government the strongest in the world. The powers of such a government are supposed to reside in a majority of the people; and, as its responsibility is only to the people, that majority may make it whatever they please. To whom is that majority itself responsible? Upon the theory that it possesses all the powers of the government, [ *125 ] *there is nothing to check, nothing to control it. In a population strictly homogeneous in interests, character and pursuits, there is no danger in this principle. We adopt it in all our State governments, and in them it is the true principle; because the majority can pass no law which will not affect themselves, in mode and degree, precisely as it affects others. But in a country so extensive as the United States, with great differences of character, interests and pursuits, and with these differences, too, marked by geographical lines, a fair opportunity is afforded for the exercise of an oppressive tyranny, by the majority over the minority. Large masses of mankind are not apt to be swayed, except by interest alone; and wherever that interest is distinct and clear, it presents a motive of action too strong to be controlled. Let it be supposed that a certain number of States, containing a majority of the people of all the States, should find it to their interest to pass laws oppressive to the minority, and violating their rights as secured by the Constitution. What redress is there, upon the principles of our author? Is it to be found in the federal tribunals? They are themselves a part of the oppressing government, and are, therefore, not impartial judges of the powers of that government. Is it to be found in the virtue and intelligence of the people? This is the author's great reliance. He acknowledges that the system, as he understands it, is liable to great abuses; but he supposes that the virtue and intelligence of the people will, under all circumstances, prove a sufficient corrective. Of what people? Of that very majority who have committed the injustice complained of, and who, according to the author's theory, are the sole judges whether they have power to do it or not, and whether it be injustice or not. Under such a system as this, it is a cruel mockery to talk of the rights of the minority. If they possess rights, they have no means to vindicate them. The majority alone possess the government; they alone measure its powers, and wield them without control or responsibility. This is despotism of the worst sort, in a system like ours. More tolerable, by far, is the despotism of one man, than that of a party, ruling without control, consulting its own interests, and justifying its excesses under the name of republican liberty. Free government, so far as its protecting power is concerned, is made for minorities alone.

But the system of our author, while it invites the majority to tyrannize over the minority, and gives the minority no redress, is not safe even for that majority itself. It is a system unbalanced, unchecked, without any definite rules to prevent it from running into abuse, and becoming a victim to its own excesses. The separation and complete [ *126 ] *independence of the several departments of the government is usually supposed to afford a sufficient security against an undue enlargement of the powers of any one of them. This is said to be the only real discovery in politics, which can be claimed by modern times; and it is generally considered a very great discovery, and, perhaps, the only contrivance by which public liberty can be preserved. The idea is wholly illusory. It is true, that public liberty could scarcely exist without such separation, and, for that reason, it was wisely adopted in our systems. But we should not rely on it, with too implicit a confidence, as affording in itself, any adequate barrier against the encroachments of power, or any adequate security for the rights and liberties of the people. I have little faith in these balances of government; because there is neither knowledge nor wisdom enough in man to render them accurate and permanent. In spite of every precaution against it, some one department will acquire an undue preponderance over the rest. The first excesses are apt to be committed by the legislature; and, in a consolidated government, such as the author supposes ours to be, there is a peculiar proneness to this. In all free governments, the democratic principle is continually extending itself. The people being possessed of all power, and feeling that they are subject to no authority except their own, learn, in the end, to consider the very restraints which they have voluntarily imposed upon themselves, in their constitution of government, as the mere creatures of their own will, which their own will may at any time destroy. Hence the legislature, the immediate representatives of the popular will, naturally assume upon themselves every power which is necessary to carry that will into effect. This is not liberty. True political liberty demands many and severe restraints; it requires protection against itself, and is no longer safe, when it refuses to submit to its own self-imposed discipline. But whatever power the legislature may assume, they seldom retain it long. They win it, not for themselves, but for the executive. All experience proves that this is a usual result, in every form of free government. In every age of the world, the few have found means to steal power from the many. But in our government, if it be indeed a consolidated one, such a result is absolutely inevitable. The powers which are expressly lodged in the executive, and the still greater powers which are assumed, because the Constitution does not expressly deny them, a patronage which has no limit, and acknowledges no responsibility, all these are quite enough to bring the legislature to the feet of the executive. Every new power, therefore, which is assumed by the federal government, does but add [ *127 ] *so much to the powers of the President. One by one, the powers of the other departments are swept away, or are wielded only at the will of the executive. This is not speculation; it is history; and those who have been so eager to increase the powers, and to diminish the responsibilities, of the federal government, may know, from their own experience, that they have labored only to aggrandize the executive department, and raise the President above the people. That officer is not, by the Constitution, and never was designed to be, anything more than a simple executive of the laws; but the principle which consolidates all power in the federal government clothes him with royal authority, and subjects every right and every interest of the people to his will. The boasted balance, which is supposed to be found in the separation and independence of the departments, is proved, even by our own experience, apart from all reasoning, to afford no sufficient security against this accumulation of powers. It is to be feared that the reliance which we place on it may serve to quiet our apprehensions, and render us less vigilant, than we ought to be, of the progress, sly, yet sure, which a vicious and cunning President may make towards absolute power.

And let us not sleep in the delusion that we shall derive all needful security from our own "intelligence and virtue." The people may, indeed, preserve their liberties forever, if they will take care to be always virtuous, always wise, and always vigilant. And they will be equally secure, if they can assure themselves that the rulers they may select will never abuse their trust, but will always understand and always pursue the true interests of the people. But, unhappily, there are no such people, and no such rulers. A government must be imperfect, indeed, if it require such a degree of virtue in the people as renders all government unnecessary. Government is founded, not in the virtues, but in the vices of mankind; not in their knowledge and wisdom, but in their ignorance and folly. Its object is to protect the weak, to restrain the violent, to punish the vicious, and to compel all to the performance of the duty which man owes to man in a social state. It is not a self-acting machine, which will go on and perform its work without human agency; it cannot be separated from the human beings who fill its places, set it in motion, and regulate and direct its operations. So long as these are liable to err in judgment, or to fail in virtue, so long will government be liable to run into abuses. Until all men shall become so perfect as not to require to be ruled, all governments professing to be free will require to be watched, guarded, checked and controlled. To do this effectually requires more than [ *128 ] *we generally find of public virtue and public intelligence. A great majority of mankind are much more sensible to their interests than to their rights. Whenever the people can be persuaded that it is their greatest interest to maintain their rights, then, and then only, will free government be safe from abuses.

Looking to our own federal government, apart from the States, and regarding it, as our author would have us, as a consolidated government of all the people of the United States, we shall not find in it this salutary countervailing interest. In an enlarged sense, it is, indeed, the greatest interest of all to support that government in its purity; for, although it is undoubtedly defective in many important respects, it is much the best that has yet been devised. Unhappily, however, the greatest interest of the whole is not felt to be, although in truth it is, the greatest interest of all the parts. This results from the fact, that our character is not homogeneous, and our pursuits are wholly different. Rightly understood, this fact should tend to bind us the more closely together, by showing us our dependence upon each other; and it should teach us the necessity of watching, with the greater jealousy, every departure from the strict principles of our union. It is a truth, however, no less melancholy than incontestable, that if this ever was the view of the people, it has ceased to be so. And it could not be otherwise. Whatever be the theory of our Constitution, its practice, of late years, has made it a consolidated government; the government of an irresponsible majority. If that majority can find, either in the pursuits of their own peculiar industry, or in the offices and emoluments which flow from the patronage of the government, an interest distinct from that of the minority, they will pursue that interest, and nothing will be left to the minority but the poor privilege of complaining. Thus the government becomes tyrannous and oppressive, precisely in proportion as its democratic principle is extended; and instead of the enlarged and general interest which should check and restrain it, a peculiar interest is enlisted, to extend its powers and sustain its abuses. Public virtue and intelligence avail little, in such a condition of things as this. That virtue falls before the temptations of interest which you present to it, and that intelligence, thus deprived of its encouraging hopes, serves only to point out new objects of unlawful pursuit, and suggest new and baser methods of attaining them.

This result could scarcely be brought about, if the federal government were allowed to rest on the principles upon which I have endeavored to place it. The checking and controlling influences which [ *129 ] *afford safety to public liberty, are not to be found in the government itself. The people cannot always protect themselves against their rulers; if they could, no free government, in past times, would have been overthrown. Power and patronage cannot easily be so limited and defined, as to rob them of their corrupting influences over the public mind. It is truly and wisely remarked by the Federalist, that "a power over a man's subsistence is a power over his will." As little as possible of this power should be entrusted to the federal government, and even that little should be watched by a power authorized and competent to arrest its abuses. That power can be found only in the States. In this consists the great superiority of the federative system over every other. In that system, the federal government is responsible, not directly to the people en masse, but to the people in their character of distinct political corporations. However easy it may be to steal power from the people, governments do not so readily yield it to one another. The confederated States confer on their common government only such power as they themselves cannot separately exercise, or such as can be better exercised by that government. They have, therefore, an equal interest, to give it power enough, and to prevent it from assuming too much. In their hands the power of interposition is attended with no danger; it may be safely lodged where there is no interest to abuse it.

Under a federative system, the people are not liable to be acted on, (at least, not to the same extent,) by those influences which are so apt to betray and enslave them, under a consolidated government. Popular masses, acting under the excitements of the moment, are easily led into fatal errors. History is full of examples of the good and great sacrificed to the hasty judgments of infuriated multitudes, and of the most fatal public measures adopted under the excitements of the moment. How easy is it for the adroit and cunning to avail themselves of such occasions, and how impossible is it, for a people so acted on, to watch their rulers wisely, and guard themselves against the encroachments of power? In a federative system, this danger is avoided, so far as their common government is concerned. The right of interposition belongs, not to the people in the aggregate, but to the people in separate and comparatively small subdivisions. And even in these subdivisions, they can act only through the forms of their own separate governments. These are necessarily slow and deliberate, affording time for excitement to subside, and for passion to cool. Having to pass through their own governments, before they can reach that of the United States, they are forbidden to act, until they have [ *130 ] *had time for reflection, and for the exercise of a cool and temperate judgment. Besides, they are taught to look, not to one government only, for the protection and security of their rights, and not to feel that they owe obedience only to that. Conscious that they can find, in their own State governments, protection against the wrongs of the federal government, their feeling of dependence is less oppressive, and their judgments more free. And while their efforts to throw off oppression are not repressed by a feeling that there is no power to which they can appeal, these efforts are kept under due restraints, by a consciousness that they cannot be unwisely exerted, except to the injury of the people themselves. It is difficult to perceive how a federal government, established on correct principles, can ever be overthrown, except by external violence, so long as the federative principle is duly respected and maintained. All the requisite checks and balances will be found, in the right of the States to keep their common government within its proper sphere; and a sufficient security for the due exercise of that right is afforded by the fact, that it is the interest of the States to exercise it discreetly. So far as our own government is concerned, I venture to predict that it will become absolute and irresponsible, precisely in proportion as the rights of the States shall cease to be respected, and their authority to interpose for the correction of federal abuses shall be denied and overthrown.

It should be the object of every patriot in the United States to encourage a high respect for the State governments. The people should be taught to regard them as their greatest interest, and as the first objects of their duty and affection. Maintained in their just rights and powers, they form the true balance-wheel, the only effectual check upon federal encroachments. And it possesses as a check these distinguishing advantages over every other, that it can never be applied without great deliberation and caution, that it is certain in its effects, and that it is but little liable to abuse. It is true that a State may use its power for improper purposes, or on improper occasions; but the federal government is, to say the least of it, equally liable to dangerous errors and violations of trust. Shall we then leave that government free from all restraint, merely because the proper countervailing power is liable to abuse? Upon the same principle, we should abandon all the guards and securities, which we have so carefully provided in the Federal Constitution itself. The truth is, all checks upon government are more or less imperfect; for if it were not so, government itself would be perfect. But this is no reason why we should abandon it to its own will. We have only to apply to this subject our [ *131 ] *best discretion and caution, to confer no more power than is absolutely necessary, and to guard that power as carefully as we can. Perfection is not to be hoped for; but an approximation to it, sufficiently near to afford a reasonable security to our rights and liberties, is not unattainable. In the formation of the federal government we have been careful to limit its powers, and define its duties. Our object was to render it such that the people should feel an interest in sustaining it in its purity, for otherwise it could not long subsist. Upon the same principle, we should enlist the same interest in the wise and proper application of those checks, which its unavoidable imperfections render necessary. That interest is found in the States. Having created the federal government at their own free will, and for their own uses, why should they seek to destroy it? Having clothed it with a certain portion of their own powers, for their own benefit alone, why should they desire to render those powers inoperative and nugatory? The danger is, not that the States will interpose too often, but that they will rather submit to federal usurpations, than incur the risk of embarrassing that government, by any attempts to check and control it. Flagrant abuses alone, and such as public liberty cannot endure, will ever call into action this salutary and conservative power of the States.

But whether this check be the best or the worst in its nature, it is at least one which our system allows. It is not found within the Constitution but exists independent of it. As that Constitution was formed by sovereign States, they alone are authorized, whenever the question arises between them and their common government, to determine, in the last resort, what powers they intended to confer on it. This is an inseparable incident of sovereignty; a right which belongs to the States, simply because they have never surrendered it to any other power. But to render this right available for any good purpose, it is indispensably necessary to maintain the States in their proper position. If their people suffer them to sink into the insignificance of mere municipal corporations, it will be vain to invoke their protection against the gigantic power of the federal government. This is the point to which the vigilance of the people should be chiefly directed. Their highest interest is at home; their palladium is their own State governments. They ought to know that they can look nowhere else with perfect assurance of safety and protection. Let them, then maintain those governments, not only in their rights, but in their dignity and influence. Make it the interest of their people to serve them; an interest strong enough to resist all the temptations of federal office and [ *132 ] *patronage. Then alone will their voice be heard with respect at Washington; then alone will their interposition avail to protect their own people against the usurpations of the great central power. It is vain to hope that the federative principle of our government can be preserved, or that any thing can prevent it from running into the absolutism of consolidation, if we suffer the rights of the States to be filched way, and their dignity and influence to be lost, through our carelessness or neglect.

Notes in the original[edit]

  1. Mr. Adams was not a member of the convention. This speech was made in congress in deliberating on the articles of confederation.—[Ed.]

Supplemental notes[edit]

  1. The 22nd Amendment, ratified in 1951, established presidential term limits. (Wikisource contributor note)