North America

Part 5 out of 7

The arrangement, as written in the Constitution, is that each State
shall appoint a body of electors equal in number to the Senators and
Representatives sent by that State to Congress, and that thus a body
or college of electors shall be formed equal in number to the two
joint Houses of Congress, by which the President shall be elected.
No member of Congress, however, can be appointed an elector. Thus
New York, with thirty-three Representatives in the Lower House,
would name thirty-five electors; and Rhode Island, with two members
in the Lower House, would name four electors--in each case two being
added for the two Senators.

It may, perhaps, be doubted whether this theory of an election by
electors has ever been truly carried out. It was probably the case
even at the election of the first Presidents after Washington, that
the electors were pledged in some informal way as to the candidate
for whom they should vote; but the very idea of an election by
electors has been abandoned since the Presidency of General Jackson.
According to the theory of the Constitution, the privilege and the
duty of selecting a best man as President was to be delegated to
certain best men chosen for that purpose. This was the intention of
those who framed the Constitution. It may, as I have said, be
doubted whether this theory has ever availed for action; but since
the days of Jackson it has been absolutely abandoned. The intention
was sufficiently conservative. The electors to whom was to be
confided this great trust, were to be chosen in their own States as
each State might think fit. The use of universal suffrage for this
purpose was neither enjoined nor forbidden in the separate States--
was neither treated as desirable or undesirable by the Constitution.
Each State was left to judge how it would elect its own electors.
But the President himself was to be chosen by those electors and not
by the people at large. The intention is sufficiently conservative,
but the intention is not carried out.

The electors are still chosen by the different States in conformity
with the bidding of the Constitution. The Constitution is exactly
followed in all its biddings, as far as the wording of it is
concerned; but the whole spirit of the document has been evaded in
the favor of democracy, and universal suffrage in the presidential
elections has been adopted. The electors are still chosen, it is
true; but they are only chosen as the mouth-piece of the people's
choice, and not as the mind by which that choice shall be made. We
have all heard of Americans voting for a ticket--for the Democratic
ticket, or the Republican ticket. All political voting in the
States is now managed by tickets. As regards these presidential
elections, each party decides on a candidate. Even this primary
decision is a matter of voting among the party itself. When Mr.
Lincoln was nominated as its candidate by the republican party, the
names of no less than thirteen candidates were submitted to the
delegates who were sent to a convention at Chicago, assembled for
the purpose of fixing upon a candidate. At that convention Mr.
Lincoln was chosen as the Republican candidate and in that
convention was in fact fought the battle which was won in Mr.
Lincoln's favor, although that convention was what we may call a
private arrangement, wholly irrespective of any constitutional
enactment. Mr. Lincoln was then proclaimed as the Republican
candidate, and all Republicans were held as bound to support him.
When the time came for the constitutional election of the electors,
certain names were got together in each State as representing the
Republican interest. These names formed the Republican ticket, and
any man voting for them voted in fact for Lincoln. There were three
other parties, each represented by a candidate, and each had its own
ticket in the different States. It is not to be supposed that the
supporters of Mr. Lincoln were very anxious about their ticket in
Alabama, or those of Mr. Breckinridge as to theirs in Massachusetts.
In Alabama, a Democratic slave ticket would, of course, prevail. In
Massachusetts, a Republican free-soil ticket would do so. But it
may, I think, be seen that in this way the electors have in reality
ceased to have any weight in the elections--have in very truth
ceased to have the exercise of any will whatever. They are mere
names, and no more. Stat nominis umbra. The election of the
President is made by universal suffrage, and not by a college of
electors. The words as they are written are still obeyed; but the
Constitution in fact has been violated, for the spirit of it has
been changed in its very essence.

The President must have been born a citizen of the United States.
This is not necessary for the holder of any other office or for a
Senator or Representative; he must be thirty-four years old at the
time of his election.

His executive power is almost unbounded. He is much more powerful
than any minister can be with us, and is subject to a much lighter
responsibility. He may be impeached by the House of Representatives
before the Senate, but that impeachment only goes to the removal
from office and permanent disqualification for office. But in these
days, as we all practically understand, responsibility does not mean
the fear of any great punishment, but the necessity of accounting
from day to day for public actions. A leading statesman has but
slight dread of the axe, but is in hourly fear of his opponent's
questions. The President of the United States is subject to no such
questionings, and as he does not even require a majority in either
House for the maintenance of his authority, his responsibility sets
upon him very slightly. Seeing that Mr. Buchanan has escaped any
punishment for maladministration, no President need fear the anger
of the people.

The President is commander-in-chief of the army and of the navy. He
can grant pardons--as regards all offenses committed against the
United States. He has no power to pardon an offense committed
against the laws of any State, and as to which the culprit has been
tried before the tribunals of that State. He can make treaties; but
such treaties are not valid till they have been confirmed by two-
thirds of the Senators present in executive session. He appoints
all ambassadors and other public officers--but subject to the
confirmation of the Senate. He can convene either or both Houses of
Congress at irregular times, and under certain circumstances can
adjourn them, his executive power is, in fact, almost unlimited; and
this power is solely in his own hands, as the Constitution knows
nothing of the President's ministers. According to the Constitution
these officers are merely the heads of his bureaus. An Englishman,
however, in considering the executive power of the President, and in
making any comparison between that and the executive power of any
officer or officers attached to the Crown in England, should always
bear in mind that the President's power, and even authority, is
confined to the Federal government, and that he has none with
reference to the individual States, religion, education, the
administration of the general laws which concern every man and
woman, and the real de facto government which comes home to every
house,--these things are not in any way subject to the President of
the United States.

His legislative power is also great. He has a veto upon all acts of
Congress, This veto is by no means a dead letter, as is the veto of
the Crown with us; but it is not absolute. The President, if he
refuses his sanction to a bill sent up to him from Congress, returns
it to that House in which it originated, with his objections in
writing. If, after that, such bill shall again pass through both
the Senate and the House of Representatives, receiving in each House
the approvals of two-thirds of those present, then such bill becomes
law without the President's sanction. Unless this be done, the
President's veto stops the bill. This veto has been frequently
used, but no bill has yet been passed in opposition to it.

The third article of the Constitution treats of the judiciary of the
United States; but as I purpose to write a chapter devoted to the
law courts and lawyers of the States, I need not here describe at
length the enactments of the Constitution on this head. It is
ordained that all criminal trials, except in cases of impeachment,
shall be by jury.

There are after this certain miscellaneous articles, some of which
belong to the Constitution as it stood at first, and others of which
have been since added as amendments. A citizen of one State is to
be a citizen of every State. Criminals from one State shall not be
free from pursuit in other States. Then comes a very material
enactment: "No person held to service or labor in one State, under
the laws thereof, escaping into another, shall, in consequence of
any law or regulation therein, be discharged from such service or
labor; but shall be delivered up on claim of the party to whom such
service or labor may be due." In speaking of a person held to labor
the Constitution intends to speak of a slave, and the article
amounts to a fugitive slave law. If a slave run away out of South
Carolina and find his way into Massachusetts, Massachusetts shall
deliver him up when called upon to do so by South Carolina. The
words certainly are clear enough. But Massachusetts strongly
objects to the delivery of such men when so desired. Such men she
has delivered up, with many groanings and much inward perturbation
of spirit. But it is understood, not in Massachusetts only, but in
the free-soil States generally, that fugitive slaves shall not be
delivered up by the ordinary action of the laws. There is a feeling
strong as that which we entertain with reference to the rendition of
slaves from Canada. With such a clause in the Constitution as that,
it is hardly too much to say that no free-soil Slate will consent to
constitutional action. Were it expunged from the Constitution, no
slave State would consent to live under it. It is a point as to
which the advocates of slavery and the enemies of slavery cannot be
brought to act in union. But on this head I have already said what
little I have to say.

New States may be admitted by Congress, but the bounds of no old
State shall be altered without the consent of such State. Congress
shall have power to rule and dispose of the Territories and property
of the United States. The United States guarantee every State a
republican form of government; but the Constitution does not define
that form of government. An ordinary citizen of the United States,
if asked, would probably say that it included that description of
franchise which I have called universal suffrage. Such, however,
was not the meaning of those who framed the Constitution. The
ordinary citizen would probably also say that it excluded the use of
a king, though he would, I imagine, be able to give no good reason
for saying so. I take a republican government to be that in which
the care of the people is in the hands of the people. They may use
an elected president, a hereditary king, or a chief magistrate
called by any other name. But the magistrate, whatever be his name,
must be the servant of the people and not their lord. He must act
for them and at their bidding--not they at his. If he do so, he is
the chief officer of a republic--as is our Queen with us.

The United States Constitution also guarantees to each State
protection against invasion, and, if necessary, against domestic
violence--meaning, I presume, internal violence. The words domestic
violence might seem to refer solely to slave insurrections; but such
is not the meaning of the words. The free State of New York would
be entitled to the assistance of the Federal government in putting
down internal violence, if unable to quell such violence by her own
power.

This Constitution, and the laws of the United States made in
pursuance of it, are to be held as the supreme law of the land. The
judges of every State are to be bound thereby, let the laws or
separate constitution of such State say what they will to the
contrary. Senators and others are to be bound by oath to support
the Constitution; but no religious test shall be required as a
qualification to any office.

In the amendments to the Constitution, it is enacted that Congress
shall make no law as to the establishment of any religion, or
prohibiting the free exercise thereof; and also that it shall not
abridge the freedom of speech, or of the press, or of petition. The
government, however, as is well known, has taken upon itself to
abridge the freedom of the press. The right of the people to bear
arms shall not be infringed. Then follow various clauses intended
for the security of the people in reference to the administration of
the laws. They shall not be troubled by unreasonable searches.
They shall not be made to answer for great offenses except by
indictment of a grand jury. They shall not be put twice in jeopardy
for the same offense. They shall not be compelled to give evidence
against themselves. Private property shall not be taken for public
use without compensation. Accused persons in criminal proceedings
shall be entitled to speedy and public trial. They shall be
confronted with the witnesses against them, and shall have
assistance of counsel. Suits in which the value controverted is
above twenty dollars (4l.) shall be tried before juries. Excessive
bail shall not be required, nor cruel and unusual punishments
inflicted. In all which enactments we see, I think, a close
resemblance to those which have been time honored among ourselves.

The remaining amendments apply to the mode in which the President
and Vice-President shall be elected, and of them I have already
spoken.

The Constitution is signed by Washington as President--as President
and Deputy from Virginia. It is signed by deputies from all the
other States, except Rhode Island. Among the signatures is that of
Alexander Hamilton, from New York; of Franklin, heading a crowd in
Pennsylvania, in the capital of which State the convention was held;
and that of James Madison, the future President, from Virginia.

In the beginning of this chapter I have spoken of the splendid
results attained by those who drew up the Constitution; and then, as
though in opposition to the praise thus given to their work, I have
insisted throughout the chapter both on the insufficiency of the
Constitution and on the breaches to which it has been subjected. I
have declared my opinion that it is inefficient for some of its
required purposes, and have said that, whether inefficient or
efficient, it has been broken and in some degree abandoned. I
maintain, however, that in this I have not contradicted myself. A
boy, who declares his purpose of learning the AEneid by heart, will
be held as being successful if at the end of the given period he can
repeat eleven books out of the twelve. Nevertheless the reporter,
in summing up the achievement, is bound to declare that that other
book has not been learned. Under this Constitution of which I have
been speaking, the American people have achieved much material
success and great political power. As a people they have been happy
and prosperous. Their freedom has been secured to them, and for a
period of seventy-five years they have lived and prospered without
subjection to any form of tyranny. This in itself is much, and
should, I think, be held as a preparation for greater things to
follow. Such, I think, should be our opinion, although the nation
is at the present burdened by so heavy a load of troubles. That any
written constitution should serve its purposes and maintain its
authority in a nation for a dozen years is in itself much for its
framers. Where are now the constitutions which were written for
France? But this Constitution has so wound itself into the
affections of the people, has become a mark for such reverence and
love, has, after a trial of three-quarters of a century, so
recommended itself to the judgment of men, that the difficulty
consists in touching it, not in keeping it. Eighteen or twenty
millions of people who have lived under it,--in what way do they
regard it? Is not that the best evidence that can be had respecting
it? Is it to them an old woman's story, a useless parchment, a
thing of old words at which all must now smile? Heaven mend them,
if they reverence it more, as I fear they do, than they reverence
their Bible. For them, after seventy-five years of trial, it has
almost the weight of inspiration. In this respect, with reference
to this worship of the work of their forefathers, they may be in
error. But that very error goes far to prove the excellence of the
code. When a man has walked for six months over stony ways in the
same boots, he will be believed when he says that his boots are good
boots. No assertion to the contrary from any by-stander will
receive credence, even though it be shown that a stitch or two has
come undone, and that some required purpose has not effectually been
carried out. The boots have carried the man over his stony roads
for six months, and they must be good boots. And so I say that the
Constitution must be a good constitution.

As to that positive breach of the Constitution which has, as I
maintain, been committed by the present government, although I have
been at some trouble to prove it, I must own that I do not think
very much of it. It is to be lamented; but the evil admits, I
think, of easy repair. It has happened at a period of unwonted
difficulty, when the minds of men were intent rather on the support
of that nationality which guarantees their liberties, than on the
enjoyment of those liberties themselves, and the fault may be
pardoned if it be acknowledged. But it is essential that it should
be acknowledged. In such a matter as that there should at any rate
be no doubt. Now, in this very year of the rebellion, it may be
well that no clamor against government should arise from the people,
and thus add to the difficulties of the nation. But it will be bad,
indeed, for the nation if such a fault shall have been committed by
this government and shall be allowed to pass unacknowledged,
unrebuked--as though it were a virtue and no fault. I cannot but
think that the time will soon come in which Mr. Seward's reading of
the Constitution and Mr. Lincoln's assumption of illegal power under
that reading will receive a different construction in the States
than that put upon it by Mr. Binney.

But I have admitted that the Constitution itself is not perfect. It
seems to me that it requires to be amended on two separate points--
especially on two; and I cannot but acknowledge that there would be
great difficulty in making such amendments. That matter of direct
taxation is the first. As to that I shall speak again in referring
to the financial position of the country. I think, however, that it
must be admitted, in any discussion held on the Constitution of the
United States, that the theory of taxation as there laid down will
not suffice for the wants of a great nation. If the States are to
maintain their ground as a great national power, they must agree
among themselves to bear the cost of such greatness. While a custom
duty was sufficient for the public wants of the United States, this
fault in the Constitution was not felt. But now that standing
armies have been inaugurated, that iron-clad ships are held as
desirable, that a great national debt has been founded, custom
duties will suffice no longer, nor will excise duties suffice.
Direct taxation must be levied, and such taxation cannot be fairly
levied without a change in the Constitution. But such a change may
be made in direct accordance with the spirit of the Constitution,
and the necessity for such an alteration cannot be held as proving
any inefficiency in the original document for the purposes
originally required.

As regards the other point which seems to me to require amendment, I
must acknowledge that I am about to express simply my own opinion.
Should Americans read what I write, they may probably say that I am
recommending them to adopt the blunders made by the English in their
practice of government. Englishmen, on the other hand, may not
improbably conceive that a system which works well here under a
monarchy, would absolutely fail under a presidency of four years'
duration. Nevertheless I will venture to suggest that the
government of the United States would be improved in all respects if
the gentlemen forming the President's cabinet were admitted to seats
in Congress. At present they are virtually irresponsible. They are
constitutionally little more than head clerks. This was all very
well while the government of the United States was as yet a small
thing; but now it is no longer a small thing. The President himself
cannot do all, nor can he be in truth responsible for all. A
cabinet, such as is our cabinet, is necessary to him. Such a
cabinet does exist, and the members of it take upon themselves the
honors which are given to our cabinet ministers. But they are
exempted from all that parliamentary contact which, in fact, gives
to our cabinet ministers their adroitness, their responsibility, and
their position in the country. On this subject also I must say
another word or two farther on.

But how am I to excuse the Constitution on those points as to which
it has, as I have said, fallen through, in respect to which it has
shown itself to be inefficient by the weakness of its own words?
Seeing that all the executive power is intrusted to the President,
it is especially necessary that the choice of the President should
be guarded by constitutional enactments; that the President should
be chosen in such a manner as may seem best to the concentrated
wisdom of the country. The President is placed in his seat for four
years. For that term he is irremovable. He acts without any
majority in either of the legislative houses. He must state reasons
for his conduct, but he is not responsible for those reasons. His
own judgment is his sole guide. No desire of the people can turn
him out; nor need he fear any clamor from the press. If an officer
so high in power be needed, at any rate the choice of such an
officer should be made with the greatest care. The Constitution has
decreed how such care should be exercised, but the Constitution has
not been able to maintain its own decree. The constituted electors
of the President have become a mere name; and that officer is chosen
by popular election, in opposition to the intention of those who
framed the Constitution. The effect of this may be seen in the
characters of the men so chosen. Washington, Jefferson, Madison,
the two Adamses, and Jackson were the owners of names that have
become known in history. They were men who have left their marks
behind them. Those in Europe who have read of anything, have read
of them. Americans, whether as Republicans they admire Washington
and the Adamses, or as Democrats hold by Jefferson, Madison, and
Jackson, do not at any rate blush for their old Presidents. But who
has heard of Polk, of Pierce, of Buchanan? What American is proud
of them? In the old days the name of a future President might be
surmised. He would probably be a man honored in the nation; but who
now can make a guess as to the next President? In one respect a
guess may be made with some safety. The next President will be a
man whose name has as yet offended no one by its prominence. But
one requisite is essential for a President; he must be a man whom
none as yet have delighted to honor.

This has come of universal suffrage; and seeing that it has come in
spite of the Constitution, and not by the Constitution, it is very
bad. Nor in saying this am I speaking my own conviction so much as
that of all educated Americans with whom I have discussed the
subject. At the present moment universal suffrage is not popular.
Those who are the highest among the people certainly do not love it.
I doubt whether the masses of the people have ever craved it. It
has been introduced into the presidential elections by men called
politicians; by men who have made it a matter of trade to dabble in
State affairs, and who have gradually learned to see how the
constitutional law, with reference to the presidential electors,
could be set aside without any positive breach of the Constitution.*

* On this matter one of the best, and best-informed Americans that I
have known, told me that he differed from me. "It introduced
itself," said he. "It was the result of social and political
forces. Election of the President by popular choice became a
necessity." The meaning of this is, that in regard to their
presidential elections the United States drifted into universal
suffrage. I do not know that his theory is one more comfortable for
his country than my own.

Whether or no any backward step can now be taken--whether these
elections can again be put into the hands of men fit to exercise a
choice in such a matter--may well be doubted. Facilis descensus
Averni. But the recovery of the downward steps is very difficult.
On that subject, however, I hardly venture here to give an opinion.
I only declare what has been done, and express my belief that it has
not been done in conformity with the wishes of the people, as it
certainly has not been done in conformity with the intention of the
Constitution.

In another matter a departure has been made from the conservative
spirit of the Constitution. This departure is equally grave with
the other, but it is one which certainly does admit of correction.
I allude to the present position assumed by many of the Senators,
and to the instructions given to them by the State legislatures as
to the votes which they shall give in the Senate. An obedience on
their part to such instructions is equal in its effects to the
introduction of universal suffrage into the elections. It makes
them hang upon the people, divests them of their personal
responsibility, takes away all those advantages given to them by a
six years' certain tenure of office, and annuls the safety secured
by a conservative method of election. Here again I must declare my
opinion that this democratic practice has crept into the Senate
without any expressed wish of the people. In all such matters the
people of the nation has been strangely undemonstrative. It has
been done as part of a system which has been used for transferring
the political power of the nation to a body of trading politicians
who have become known and felt as a mass, and not known and felt as
individuals. I find it difficult to describe the present political
position of the States in this respect. The millions of the people
are eager for the Constitution, are proud of their power as a
nation, and are ambitious of national greatness. But they are not,
as I think, especially desirous of retaining political influences in
their own hands. At many of the elections it is difficult to induce
them to vote. They have among them a half-knowledge that politics
is a trade in the hands of the lawyers, and that they are the
capital by which those political tradesmen carry on their business.
These politicians are all lawyers. Politics and law go together as
naturally as the possession of land and the exercise of magisterial
powers do with us. It may be well that it should be so, as the
lawyers are the best-educated men of the country, and need not
necessarily be the most dishonest. Political power has come into
their hands, and it is for their purposes and by their influences
that the spread of democracy has been encouraged.

As regards the Senate, the recovery of its old dignity and former
position is within its own power. No amendment of the Constitution
is needed here, nor has the weakness come from any insufficiency of
the Constitution. The Senate can assume to itself to-morrow its own
glories, and can, by doing so, become the saviour of the honor and
glory of the nation. It is to the Senate that we must look for that
conservative element which may protect the United States from the
violence of demagogues on one side, and from the despotism of
military power on the other. The Senate, and the Senate only, can
keep the President in check. The Senate also has a power over the
Lower House with reference to the disposal of money, which deprives
the House of Representatives of that exclusive authority which
belongs to our House of Commons. It is not simply that the House of
Representatives cannot do what is done by the House of Commons.
There is more than this. To the Senate, in the minds of all
Americans, belongs that superior prestige, that acknowledged
possession of the greater power and fuller scope for action, which
is with us as clearly the possession of the House of Commons. The
United States Senate can be conservative, and can be so by virtue of
the Constitution. The love of the Constitution in the hearts of all
Americans is so strong that the exercise of such power by the Senate
would strengthen rather than endanger its position. I could wish
that the Senators would abandon their money payments, but I do not
imagine that that will be done exactly in these days.

I have now endeavored to describe the strength of the Constitution
of the United States, and to explain its weakness. The great
question is at this moment being solved, whether or no that
Constitution will still be found equal to its requirements. It has
hitherto been the main-spring in the government of the people. They
have trusted with almost childlike confidence to the wisdom of their
founders, and have said to their rulers--"There! in those words you
must find the extent and the limit of your powers. It is written
down for you, so that he who runs may read." That writing down, as
it were, at a single sitting, of a sufficient code of instructions
for the governors of a great nation, had not hitherto in the world's
history been found to answer. In this instance it has, at any rate,
answered better than in any other, probably because the words so
written contained in them less pretense of finality in political
wisdom than other written constitutions have assumed. A young tree
must bend, or the winds will certainly break it. For myself I can
honestly express my hope that no storm may destroy this tree.

CHAPTER X.

THE GOVERNMENT.

In speaking of the American Constitution I have said so much of the
American form of government that but little more is left to me to
say under that heading. Nevertheless, I should hardly go through
the work which I have laid out for myself if I did not endeavor to
explain more continuously, and perhaps more graphically, than I
found myself able to do in the last chapter, the system on which
public affairs are managed in the United States.

And here I must beg my readers again to bear in mind how moderate is
the amount of governing which has fallen to the lot of the
government of the United States; how moderate, as compared with the
amount which has to be done by the Queen's officers of state for
Great Britain, or by the Emperor, with such assistance as he may
please to accept from his officers of state, for France. That this
is so must be attributed to more than one cause; but the chief cause
is undoubtedly to be found in the very nature of a federal
government. The States are individually sovereign, and govern
themselves as to all internal matters. All the judges in England
are appointed by the Crown; but in the United States only a small
proportion of the judges are nominated by the President. The
greater number are servants of the different States. The execution
of the ordinary laws for the protection of men and property does not
fall on the government of the United States, but on the executives
of the individual States--unless in some special matters, which will
be defined in the next chapter. Trade, education, roads, religion,
the passing of new measures for the internal or domestic comfort of
the people,--all these things are more or less matters of care to
our government. In the States they are matters of care to the
governments of each individual State, but are not so to the central
government at Washington.

But there are other causes which operate in the same direction, and
which have hitherto enabled the Presidents of the United States,
with their ministers, to maintain their positions without much
knowledge of statecraft, or the necessity for that education in
state matters which is so essential to our public men. In the first
place, the United States have hitherto kept their hands out of
foreign politics. If they have not done so altogether, they have so
greatly abstained from meddling in them that none of that thorough
knowledge of the affairs of other nations has been necessary to them
which is so essential with us, and which seems to be regarded as the
one thing needed in the cabinets of other European nations. This
has been a great blessing to the United States, but it has not been
an unmixed blessing. It has been a blessing because the absence of
such care has saved the country from trouble and from expense. But
such a state of things was too good to last; and the blessing has
not been unmixed, seeing that now, when that absence of concern in
foreign matters has been no longer possible, the knowledge necessary
for taking a dignified part in foreign discussions has been found
wanting. Mr. Seward is now the Minister for Foreign Affairs in the
States, and it is hardly too much to say that he has made himself a
laughing-stock among the diplomatists of Europe, by the mixture of
his ignorance and his arrogance. His reports to his own ministers
during the single year of his office, as published by himself
apparently with great satisfaction, are a monument not so much of
his incapacity as of his want of training for such work. We all
know his long state-papers on the "Trent" affair. What are we to
think of a statesman who acknowledges the action of his country's
servant to have been wrong, and in the same breath declares that he
would have held by that wrong, had the material welfare of his
country been thereby improved? The United States have now created a
great army and a great debt. They will soon also have created a
great navy. Affairs of other nations will press upon them, and they
will press against the affairs of other nations. In this way
statecraft will become necessary to them; and by degrees their
ministers will become habile, graceful, adroit, and perhaps crafty,
as are the ministers of other nations.

And, moreover, the United States have had no outlying colonies or
dependencies, such as an India and Canada are to us, as Cuba is and
Mexico was to Spain, and as were the provinces of the Roman empire.
Territories she has had, but by the peculiar beneficence of her
political arrangements, these Territories have assumed the guise of
sovereign States, and been admitted into federal partnership on
equal terms, with a rapidity which has hardly left to the central
government the reality of any dominion of its own. We are inclined
to suppose that these new States have been allowed to assume their
equal privileges and State rights because they have been contiguous
to the old States, as though it were merely an extension of
frontier. But this has not been so. California and Oregon have
been very much farther from Washington than the Canadas are from
London. Indeed they are still farther, and I hardly know whether
they can be brought much nearer than Canada is to us, even with the
assistance of railways. But nevertheless California and Oregon were
admitted as States, the former as quickly and the latter much more
quickly than its population would seem to justify Congress in doing,
according to the received ratio of population. A preference in this
way has been always given by the United States to a young population
over one that was older. Oregon with its 60,000 inhabitants has one
Representative. New York with 4,000,000 inhabitants has thirty-
three. But in order to be equal with Oregon, New York should have
sixty-six. In this way the outlying populations have been
encouraged to take upon themselves their own governance, and the
governing power of the President and his cabinet has been kept
within moderate limits.

But not the less is the position of the President very dominant in
the eyes of us Englishmen by reason of the authority with which he
is endowed. It is not that the scope of his power is great, but
that he is so nearly irresponsible in the exercise of that power.
We know that he can be impeached by the Representatives and expelled
from his office by the verdict of the Senate; but this in fact does
not amount to much. Responsibility of this nature is doubtless very
necessary, and prevents ebullitions of tyranny such as those in
which a sultan or an emperor may indulge; but it is not that
responsibility which especially recommends itself to the minds of
free men. So much of responsibility they take as a matter of
course, as they do the air which they breathe. It would be nothing
to us to know that Lord Palmerston could be impeached for robbing
the treasury, or Lord Russell punished for selling us to Austria.
It is well that such laws should exist, but we do not in the least
suspect those noble lords of such treachery. We are anxious to
know, not in what way they may be impeached and beheaded for great
crimes, but by what method they may be kept constantly straight in
small matters. That they are true and honest is a matter of course.
But they must be obedient also, discreet, capable, and, above all
things, of one mind with the public. Let them be that; or if not
they, then with as little delay as may be, some others in their
place. That with us is the meaning of ministerial responsibility.
To that responsibility all the cabinet is subject. But in the
government of the United States there is no such responsibility.
The President is placed at the head of the executive for four years,
and while he there remains no man can question him. It is not that
the scope of his power is great. Our own Prime Minister is
doubtless more powerful--has a wider authority. But it is that
within the scope of his power the President is free from all check.
There are no reins, constitutional or unconstitutional, by which he
can be restrained. He can absolutely repudiate a majority of both
Houses, and refuse the passage of any act of Congress even though
supported by those majorities. He can retain the services of
ministers distasteful to the whole country. He can place his own
myrmidons at the head of the army and navy, or can himself take the
command immediately on his own shoulders. All this he can do, and
there is no one that can question him.

It is hardly necessary that I should point out the fundamental
difference between our king or queen, and the President of the
United States. Our sovereign, we all know, is not responsible.
Such is the nature of our constitution. But there is not on that
account any analogy between the irresponsibility of the Queen and
that of the President. The Queen can do no wrong; but therefore, in
all matters of policy and governance, she must be ruled by advice.
For that advice her ministers are responsible; and no act of policy
or governance can be done in England as to which responsibility does
not immediately settle on the shoulders appointed to bear it. But
this is not so in the States. The President is nominally
responsible. But from that every-day working responsibility, which
is to us so invaluable, the President is in fact free.

I will give an instance of this. Now, at this very moment of my
writing, news has reached us that President Lincoln has relieved
General McClellan from the command of the whole army, that he has
given separate commands to two other generals--to General Halleck,
namely, and, alas! to General Fremont, and that he has altogether
altered the whole organization of the military command as it
previously existed. This he did not only during war, but with
reference to a special battle, for the special fighting of which he,
as ex-officio commander-in-chief of the forces, had given orders. I
do not hereby intend to criticise this act of the President's, or to
point out that that has been done which had better have been left
undone. The President, in a strategetical point of view, may have
been, very probably has been, quite right. I, at any rate, cannot
say that he has been wrong. But then neither can anybody else say
so with any power of making himself heard. Of this action of the
President's, so terribly great in its importance to the nation, no
one has the power of expressing any opinion to which the President
is bound to listen. For four years he has this sway, and at the end
of four years he becomes so powerless that it is not then worth the
while of any demagogue in a fourth-rate town to occupy his voice
with that President's name. The anger of the country as to the
things done both by Pierce and Buchanan is very bitter. But who
wastes a thought upon either of these men? A past President in the
United States is of less consideration than a past mayor in an
English borough. Whatever evil he may have done during his office,
when out of office he is not worth the powder which would be
expended in an attack.

But the President has his ministers as our Queen has hers. In one
sense he has such ministers. He has high State servants who under
him take the control of the various departments, and exercise among
them a certain degree of patronage and executive power. But they
are the President's ministers, and not the ministers of the people.
Till lately there has been no chief minister among them, nor am I
prepared to say that there is any such chief at present. According
to the existing theory of the government these gentlemen have simply
been the confidential servants of the commonwealth under the
President, and have been attached each to his own department without
concerted political alliance among themselves, without any
acknowledged chief below the President, and without any combined
responsibility even to the President. If one minister was in fault--
let us say the Postmaster-General--he alone was in fault, and it
did not fall to the lot of any other minister either to defend him,
or to declare that his conduct was indefensible. Each owed his duty
and his defense to the President alone and each might be removed
alone, without explanation given by the President to the others. I
imagine that the late practice of the President's cabinet has in
some degree departed from this theory; but if so, the departure has
sprung from individual ambition rather than from any pre-concerted
plan. Some one place in the cabinet has seemed to give to some one
man an opportunity of making himself pre-eminent, and of this
opportunity advantage has been taken. I am not now intending to
allude to any individual, but am endeavoring to indicate the way in
which a ministerial cabinet, after the fashion of our British
cabinet, is struggling to get itself righted. No doubt the position
of Foreign Secretary has for some time past been considered as the
most influential under the President. This has been so much the
case that many have not hesitated to call the Secretary of State the
chief minister. At the present moment, May, l862, the gentleman who
is at the head of the War Department has, I think, in his own hands
greater power than any of his colleagues.

It will probably come to pass before long that one special minister
will be the avowed leader of the cabinet, and that he will be
recognized as the chief servant of the States under the President.
Our own cabinet, which now-a-days seems with us to be an institution
as fixed as Parliament and as necessary as the throne, has grown by
degrees into its present shape, and is not in truth nearly so old as
many of us suppose it to be. It shaped itself, I imagine, into its
present form, and even into its present joint responsibility, during
the reign of George III. It must be remembered that even with us
there is no such thing as a constitutional Prime Minister, and that
our Prime Minister is not placed above the other ministers in any
manner that is palpable to the senses. He is paid no more than the
others; he has no superior title; he does not take the highest rank
among them; he never talks of his subordinates, but always of his
colleagues; he has a title of his own, that of First Lord of the
Treasury, but it implies no headship in the cabinet. That he is the
head of all political power in the nation, the Atlas who has to bear
the globe, the god in whose hands rest the thunderbolts and the
showers, all men do know. No man's position is more assured to him.
But the bounds of that position are written in no book, are defined
by no law, have settled themselves not in accordance with the
recorded wisdom of any great men, but as expediency and the fitness
of political things in Great Britain have seemed from time to time
to require. This drifting of great matters into their proper places
is not as closely in accordance with the idiosyncrasies of the
American people as it is with our own. They would prefer to define
by words, as the French do, what shall be the exact position of
every public servant connected with their government; or rather of
every public servant with whom the people shall be held as having
any concern. But nevertheless, I think it will come to pass that a
cabinet will gradually form itself at Washington as it has done at
London, and that of that cabinet there will be some recognized and
ostensible chief.

But a Prime Minister in the United States can never take the place
there which is taken here by our Premier. Over our Premier there is
no one politically superior. The highest political responsibility
of the nation rests on him. In the States this must always rest on
the President, and any minister, whatever may be his name or assumed
position, can only be responsible through the President. And it is
here especially that the working of the United States system of
government seems to me deficient--appears as though it wanted
something to make it perfect and round at all points. Our ministers
retire from their offices as do the Presidents; and indeed the
ministerial term of office with us, though of course not fixed, is
in truth much shorter than the presidential term of four years. But
our ministers do not in fact ever go out. At one time they take one
position, with pay, patronage, and power; and at another time
another position, without these good things; but in either position
they are acting as public men, and are in truth responsible for what
they say and do. But the President, on whom it is presumed that the
whole of the responsibility of the United States government rests,
goes out at a certain day, and of him no more is heard. There is no
future before him to urge him on to constancy; no hope of other
things beyond, of greater honors and a wider fame, to keep him
wakeful in his country's cause. He has already enrolled his name on
the list of his country's rulers, and received what reward his
country can give him. Conscience, duty, patriotism may make him
true to his place. True to his place, in a certain degree, they
will make him. But ambition and hope of things still to come are
the moving motives of the minds of most men. Few men can allow
their energies to expand to their fullest extent in the cold
atmosphere of duty alone. The President of the States must feel
that he has reached the top of the ladder, and that he soon will
have done with life. As he goes out he is a dead man. And what can
be expected from one who is counting the last lingering hours of his
existence? "It will not be in my time," Mr. Buchanan is reported to
have said, when a friend spoke to him with warning voice of the
coming rebellion. "It will not be in my time." In the old days,
before democracy had prevailed in upsetting that system of
presidential election which the Constitution had intended to fix as
permanent, the Presidents were generally re-elected for a second
term. Of the first seven Presidents five were sent back to the
White House for a second period of four years. But this has never
been done since the days of General Jackson; nor will it be done,
unless a stronger conservative reaction takes place than the country
even as yet seems to promise. As things have lately ordered
themselves, it may almost be said that no man in the Union would be
so improbable a candidate for the Presidency as the outgoing
President. And it has been only natural that it should be so.
Looking at the men themselves who have lately been chosen, the fault
has not consisted in their non-re-election, but in their original
selection. There has been no desire for great men; no search after
a man of such a nature that, when tried, the people should be
anxious to keep him. "It will not be in my time," says the expiring
President. And so, without dismay, he sees the empire of his
country slide away from him.

A President, with the possibility of re-election before him, would
be as a minister who goes out knowing that he may possibly come in
again before the session is over, and, perhaps, believing that the
chances of his doing so are in his favor. Under the existing
political phase of things in the United States, no President has any
such prospect; but the ministers of the President have that chance.
It is no uncommon thing at present for a minister under one
President to reappear as a minister under another; but a statesman
has no assurance that he will do so because he has shown ministerial
capacity. We know intimately the names of all our possible
ministers--too intimately as some of us think--and would be taken
much by surprise if a gentleman without an official reputation were
placed at the head of a high office. If something of this feeling
prevailed as to the President's cabinet, if there were some
assurance that competent statesmen would be appointed as Secretaries
of State, a certain amount of national responsibility would by
degrees attach itself to them, and the President's shoulders would,
to that amount, be lightened. As it is, the President pretends to
bear a burden which, if really borne, would indicate the possession
of Herculean shoulders. But, in fact, the burden at present is
borne by no one. The government of the United States is not in
truth responsible either to the people or to Congress.

But these ministers, if it be desired that they shall have weight in
the country, should sit in Congress either as Senators or as
Representatives. That they cannot so sit without an amendment of
the Constitution, I have explained in the previous chapter; and any
such amendment cannot be very readily made. Without such seats they
cannot really share the responsibility of the President, or be in
any degree amenable to public opinion for the advice which they give
in their public functions. It will be said that the Constitution
has expressly intended that they should not be responsible, and
such, no doubt, has been the case. But the Constitution, good as it
is, cannot be taken as perfect. The government has become greater
than seems to have been contemplated when that code was drawn up.
It has spread itself as it were over a wider surface, and has
extended to matters which it was not necessary then to touch. That
theory of governing by the means of little men was very well while
the government itself was small. A President and his clerks may
have sufficed when there were from thirteen to eighteen States;
while there were no Territories, or none at least that required
government; while the population was still below five millions;
while a standing army was an evil not known and not feared; while
foreign politics was a troublesome embroglio in which it was quite
unnecessary that the United States should take a part. Now there
are thirty-four States. The territories populated by American
citizens stretch from the States on the Atlantic to those on the
Pacific. There is a population of thirty million souls. At the
present moment the United States are employing more soldiers than
any other nation, and have acknowledged the necessity of maintaining
a large army even when the present troubles shall be over. In
addition to this the United States have occasion for the use of
statecraft with all the great kingdoms of Europe. That theory of
ruling by little men will not do much longer. It will be well that
they should bring forth their big men and put them in the place of
rulers.

The President has at present seven ministers. They are the
Secretary of State, who is supposed to have the direction of foreign
affairs; the Secretary of the Treasury, who answers to our
Chancellor of the Exchequer; the Secretaries of the Army and of the
Navy; the Minister of the Interior; the Attorney-General; and the
Postmaster-General. If these officers were allowed to hold seats in
one House or the other--or rather if the President were enjoined to
place in these offices men who were known as members of Congress,
not only would the position of the President's ministers be enhanced
and their weight increased, but the position also of Congress would
be enhanced and the weight of Congress would be increased. I may,
perhaps, best exemplify this by suggesting what would be the effect
on our Parliament by withdrawing from it the men who at the present
moment--or at any moment--form the Queen's cabinet. I will not say
that by adding to Congress the men who usually form the President's
cabinet, a weight would be given equal to that which the withdrawal
of the British cabinet would take from the British Parliament. I
cannot pay that compliment to the President's choice of servants.
But the relationship between Congress and the President's ministers
would gradually come to resemble that which exists between
Parliament and the Queen's ministers. The Secretaries of State and
of the Treasury would after awhile obtain that honor of leading the
Houses which is exercised by our high political officers, and the
dignity added to the positions would make the places worthy of the
acceptance of great men. It is hardly so at present. The career of
one of the President's ministers is not a very high career as things
now stand; nor is the man supposed to have achieved much who has
achieved that position. I think it would be otherwise if the
ministers were the leaders of the legislative houses. To Congress
itself would be given the power of questioning and ultimately of
controlling these ministers. The power of the President would no
doubt be diminished as that of Congress would be increased. But an
alteration in that direction is in itself desirable. It is the
fault of the present system of government in the United States that
the President has too much of power and weight, while the Congress
of the nation lacks power and weight. As matters now stand,
Congress has not that dignity of position which it should hold; and
it is without it because it is not endowed with that control over
the officers of the government which our Parliament is enabled to
exercise.

The want of this close connection with Congress and the President's
ministers has been so much felt that it has been found necessary to
create a medium of communication. This has been done by a system
which has now become a recognized part of the machinery of the
government, but which is, I believe, founded on no regularly
organized authority; at any rate, no provision is made for it in the
Constitution, nor, as far as I am aware, has it been established by
any special enactment or written rule. Nevertheless, I believe I am
justified in saying that it has become a recognized link in the
system of government adopted by the United States. In each House
standing committees are named, to which are delegated the special
consideration of certain affairs of State. There are, for instance,
Committees of Foreign Affairs, of Finance, the Judiciary Committee,
and others of a similar nature. To these committees are referred
all questions which come before the House bearing on the special
subject to which each is devoted. Questions of taxation are
referred to the Finance Committee before they are discussed in the
House; and the House, when it goes into such discussion, has before
it the report of the committee. In this way very much of the work
of the legislature is done by branches of each House, and by
selected men whose time and intellects are devoted to special
subjects. It is easy to see that much time and useless debate may
be thus saved; and I am disposed to believe that this system of
committees has worked efficiently and beneficially. The mode of
selection of the members has been so contrived as to give to each
political party that amount of preponderance in each committee which
such party holds in the House. If the Democrats have in the Senate
a majority, it would be within their power to vote none but
Democrats into the Committee on Finance; but this would be
manifestly unjust to the Republican party, and the injustice would
itself frustrate the object of the party in power; therefore the
Democrats simply vote to themselves a majority in each committee,
keeping to themselves as great a preponderance in the committee as
they have in the whole House, and arranging also that the chairman
of the committee shall belong to their own party. By these
committees the chief legislative measures of the country are
originated and inaugurated, as they are with us by the ministers of
the Crown; and the chairman of each committee is supposed to have a
certain amicable relation with that minister who presides over the
office with which his committee is connected. Mr. Sumner is at
present chairman of the Committee on Foreign Affairs, and he is
presumed to be in connection with Mr. Seward, who, as Secretary of
State, has the management of the foreign relations of the
government.

But it seems to me that this supposed connection between the
committees and the ministers is only a makeshift, showing by its
existence the absolute necessity of close communication between the
executive and the legislative, but showing also by its imperfections
the great want of some better method of communication. In the first
place, the chairman of the committee is in no way bound to hold any
communication with the minister. He is simply a Senator, and as
such has no ministerial duties and can have none. He holds no
appointment under the President, and has no palpable connection with
the executive. And then, it is quite as likely that he may be
opposed in politics to the minister as that he may agree with him.
If the two be opposed to each other on general politics, it may be
presumed that they cannot act together in union on one special
subject; nor, whether they act in union or do not so act, can either
have any authority over the other. The minister is not responsible
to Congress, nor is the chairman of the committee in any way bound
to support the minister. It is presumed that the chairman must know
the minister's secrets; but the chairman may be bound by party
considerations to use those secrets against the minister.

The system of committees appears to me to be good as regards the
work of legislation. It seems well adapted to effect economy of
time and the application of special men to special services. But I
am driven to think that that connection between the chairmen of the
committees and the ministers which I have attempted to describe is
an arrangement very imperfect in itself, but plainly indicating the
necessity of some such close relation between the executive and the
legislature of the United States as does exist in the political
system of Great Britain. With us the Queen's minister has a greater
weight in Parliament than the President's minister could hold in
Congress, because the Queen is bound to employ a minister in whom
the Parliament has confidence. As soon as such confidence ceases,
the minister ceases to be minister. As the Crown has no politics of
its own, it is simply necessary that the minister of the day should
hold the politics of the people as testified by their
representatives. The machinery of the President's government cannot
be made to work after this fashion. The President himself is a
political officer, and the country is bound to bear with his
politics for four years, whatever those politics may be. The
ministry which he selects, on coming to his seat, will probably
represent a majority in Congress, seeing that the same suffrages
which have elected the President will also have elected the
Congress. But there exists no necessity on the part of the
President to employ ministers who shall carry with them the support
of Congress. If, however, the minister sat in Congress--if it were
required of each minister that he should have a seat either in one
House or in the other--the President would, I think, find himself
constrained to change a ministry in which Congress should decline to
confide. It might not be so at first, but there would be a tendency
in that direction.

The governing powers do not rest exclusively with the President or
with the President and his ministers; they are shared in a certain
degree with the Senate, which sits from time to time in executive
session, laying aside at such periods its legislative character. It
is this executive authority which lends so great a dignity to the
Senate, gives it the privilege of preponderating over the other
House, and makes it the political safeguard of the nation. The
questions of government as to which the Senate is empowered to
interfere are soon told. All treaties made by the President must be
sanctioned by the Senate; and all appointments made by the President
must be confirmed by the Senate. The list is short; and one is
disposed to think, when first hearing it, that the thing itself does
not amount to much. But it does amount to very much; it enables the
Senate to fetter the President, if the Senate should be so inclined,
both as regards foreign politics and home politics. A Secretary for
Foreign Affairs at Washington may write what dispatches he pleases
without reference to the Senate; but the Senate interferes before
those dispatches can have resulted in any fact which may be
detrimental to the nation. It is not only that the Senate is
responsible for such treaties as are made, but that the President is
deterred from the making of treaties for which the Senate would
decline to make itself responsible. Even though no treaty should
ever be refused its sanction by the Senate, the protecting power of
the Senate in that matter would not on that account have been less
necessary or less efficacious. Though the bars with which we
protect our house may never have been tried by a thief, we do not
therefore believe that our house would have been safe if such bars
had been known to be wanting. And then, as to that matter of State
appointments, is it not the fact that all governing power consists
in the selection of the agents by whom the action of government
shall be carried on? It must come to this, I imagine, when the
argument is pushed home. The power of the most powerful man depends
only on the extent of his authority over his agents. According to
the Constitution of the United States, the President can select no
agent either at home or abroad, for purposes either of peace or war,
or to the employment of whom the Senate does not agree with him.
Such a rule as this should save the nation from the use of
disreputable agents as public servants. It might perhaps have done
much more toward such salvation than it has as yet effected, and it
may well be hoped that it will in future do more.

Such are the executive powers of the Senate; and it is, I think,
remarkable that the Senate has always used these powers with extreme
moderation. It has never shown a factious inclination to hinder
government by unnecessary interference, or a disposition to clip the
President's wings by putting itself altogether at variance with him.
I am not quite sure whether some fault may not have lain on the
other side; whether the Senate may not have been somewhat slack in
exercising the protective privileges given to it by the
Constitution. And here I cannot but remark how great is the
deference paid to all governors and edicts of government throughout
the United States. One would have been disposed to think that such
a feeling would be stronger in an old country such as Great Britain
than in a young country such as the States. But I think that it is
not so. There is less disposition to question the action of
government either at Washington or at New York, than there is in
London. Men in America seem to be content when they have voted in
their governors, and to feel that for them all political action is
over until the time shall come for voting for others. And this
feeling, which seems to prevail among the people, prevails also in
both Houses of Congress. Bitter denunciations against the
President's policy or the President's ministers are seldom heard.
Speeches are not often made with the object of impeding the action
of government. That so small and so grave a body as the Senate
should abstain from factious opposition to the government when
employed on executive functions, was perhaps to be expected. It is
of course well that it should be so. I confess, however, that it
has appeared to me that the Senate has not used the power placed in
its hands as freely as the Constitution has intended, But I look at
the matter as an Englishman, and as an Englishman I can endure no
government action which is not immediately subject to parliamentary
control.

Such are the governing powers of the United States. I think it will
be seen that they are much more limited in their scope of action
than with us; but within that scope of action much more independent
and self-sufficient. And, in addition to this, those who exercise
power in the United States are not only free from immediate
responsibility, but are not made subject to the hope or fear of
future judgment. Success will bring no award, and failure no
punishment. I am not aware that any political delinquency has ever
yet brought down retribution on the head of the offender in the
United States, or that any great deed has been held as entitling the
doer of it to his country's gratitude. Titles of nobility they have
none; pensions they never give; and political disgrace is unknown.
The line of politics would seem to be cold and unalluring. It is
cold; and would be unalluring, were it not that as a profession it
is profitable. In much of this I expect that a change will
gradually take place. The theory has been that public affairs
should be in the hands of little men. The theory was intelligible
while the public affairs were small; but they are small no longer,
and that theory, I fancy, will have to alter itself. Great men are
needed for the government, and in order to produce great men a
career of greatness must be opened to them. I can see no reason why
the career and the men should not be forthcoming.

CHAPTER XI.

THE LAW COURTS AND LAWYERS OF THE UNITED STATES.

I do not propose to make any attempt to explain in detail the
practices and rules of the American courts of law. No one but a
lawyer should trust himself with such a task, and no lawyer would be
enabled to do so in the few pages which I shall here devote to the
subject. My present object is to explain, as far as I may be able
to do so, the existing political position of the country. As this
must depend more or less upon the power vested in the hands of the
judges, and upon the tenure by which those judges hold their
offices, I shall endeavor to describe the circumstances of the
position in which the American judges are placed; the mode in which
they are appointed; the difference which exists between the National
judges and the State judges, and the extent to which they are or are
not held in high esteem by the general public whom they serve.

It will, I think, be acknowledged that this last matter is one of
almost paramount importance to the welfare of a country. At home in
England we do not realize the importance to us in a political as
well as social view of the dignity and purity of our judges, because
we take from them all that dignity and purity can give as a matter
of course. The honesty of our bench is to us almost as the honesty
of heaven. No one dreams that it can be questioned or become
questionable, and therefore there are but few who are thankful for
its blessings. Few Englishmen care to know much about their own
courts of law, or are even aware that the judges are the protectors
of their liberties and property. There are the men, honored on all
sides, trusted by every one, removed above temptation, holding
positions which are coveted by all lawyers. That it is so is enough
for us; and as the good thence derived comes to us so easily, we
forget to remember that we might possibly be without it. The law
courts of the States have much in their simplicity and the general
intelligence of their arrangements to recommend them. In all
ordinary causes justice is done with economy, with expedition, and I
believe with precision. But they strike an Englishman at once as
being deficient in splendor and dignity, as wanting that reverence
which we think should be paid to words falling from the bench, and
as being in danger as to that purity without which a judge becomes a
curse among a people, a chief of thieves, and an arch-minister of
the Evil One. I say as being in danger; not that I mean to hint
that such want of purity has been shown, or that I wish it to be
believed that judges with itching palms do sit upon the American
bench; but because the present political tendency of the State
arrangements threatens to produce such danger. We in England trust
implicitly in our judges--not because they are Englishmen, but
because they are Englishmen carefully selected for their high
positions. We should soon distrust them if they were elected by
universal suffrage from all the barristers and attorneys practicing
in the different courts; and so elected only for a period of years,
as is the case with reference to many of the State judges in
America. Such a mode of appointment would, in our estimation, at
once rob them of their prestige. And our distrust would not be
diminished if the pay accorded to the work were so small that no
lawyer in good practice could afford to accept the situation. When
we look at a judge in court, venerable beneath his wig and adorned
with his ermine, we do not admit to ourselves that that high officer
is honest because he is placed above temptation by the magnitude of
his salary. We do not suspect that he, as an individual, would
accept bribes and favor suitors if he were in want of money. But,
still, we know as a fact that an honest man, like any other good
article, must be paid for at a high price. Judges and bishops
expect those rewards which all men win who rise to the highest steps
on the ladder of their profession. And the better they are paid,
within measure, the better they will be as judges and bishops. Now,
the judges in America are not well paid, and the best lawyers cannot
afford to sit upon the bench.

With us the practice of the law and the judicature of our law courts
are divided. We have chancery barristers and common law barristers;
and we have chancery courts and courts of common law. In the States
there is no such division. It prevails neither in the National or
Federal courts of the United States, nor in the courts of any of the
separate States. The code of laws used by the Americans is taken
almost entirely from our English laws--or rather, I should say, the
Federal code used by the nation is so taken, and also the various
codes of the different States--as each State takes whatever laws it
may think fit to adopt. Even the precedents of our courts are held
as precedents in the American courts, unless they chance to jar
against other decisions given specially in their own courts with
reference to cases of their own. In this respect the founders of
the American law proceedings have shown a conservation bias and a
predilection for English written and traditional law which are much
at variance with that general democratic passion for change by which
we generally presume the Americans to have been actuated at their
Revolution. But though they have kept our laws, and still respect
our reading of those laws, they have greatly altered and simplified
our practice. Whether a double set of courts of law and equity are
or are not expedient, either in the one country or in the other, I
do not pretend to know. It is, however, the fact that there is no
such division in the States.

Moreover, there is no division in the legal profession. With us we
have barristers and attorneys. In the States the same man is both
barrister and attorney; and--which is perhaps in effect more
startling--every lawyer is presumed to undertake law cases of every
description. The same man makes your will, sells your property,
brings an action for you of trespass against your neighbor, defends
you when you are accused of murder, recovers for you two and
sixpence, and pleads for you in an argument of three days' length
when you claim to be the sole heir to your grandfather's enormous
property. I need not describe how terribly distinct with us is the
difference between an attorney and a barrister, or how much farther
than poles asunder is the future Lord Chancellor, pleading before
the Lords Justices at Lincoln's Inn, from the gentleman who, at the
Old Bailey, is endeavoring to secure the personal liberty of the
ruffian who, a week or two since, walked off with all your silver
spoons. In the States no such differences are known. A lawyer
there is a lawyer, and is supposed to do for any client any work
that a lawyer may be called on to perform. But though this is the
theory--and as regards any difference between attorney and barrister
is altogether the fact--the assumed practice is not, and cannot be,
maintained as regards the various branches of a lawyer's work. When
the population was smaller, and the law cases were less complicated,
the theory and the practice were no doubt alike. As great cities
have grown up, and properties large in amount have come under
litigation, certain lawyers have found it expedient and practicable
to devote themselves to special branches of their profession. But
this, even up to the present time, has not been done openly, as it
were, or with any declaration made by a man as to his own branch of
his calling. I believe that no such declaration on his part would
be in accordance with the rules of the profession. He takes a
partner, however, and thus attains his object; or more than one
partner, and then the business of the house is divided among them
according to their individual specialties. One will plead in court,
another will give chamber counsel, and a third will take that lower
business which must be done, but which first-rate men hardly like to
do.

It will easily be perceived that law in this way will be made
cheaper to the litigant. Whether or no that may be an unadulterated
advantage, I have my doubts. I fancy that the united professional
incomes of all the lawyers in the States would exceed in amount
those made in England. In America every man of note seems to be a
lawyer; and I am told that any lawyer who will work may make a sure
income. If it be so, it would seem that Americans per head pay as
much (or more) for their law as men do in England. It may be
answered that they get more law for their money. That may be
possible, and even yet they may not be gainers. I have been
inclined to think that there was an unnecessarily slow and expensive
ceremonial among us in the employment of barristers through a third
party; it has seemed that the man of learning, on whose efforts the
litigant really depends, is divided off from his client and employer
by an unfair barrier, used only to enhance his own dignity and give
an unnecessary grandeur to his position. I still think that the
fault with us lies in this direction. But I feel that I am less
inclined to demand an immediate alteration in our practice than I
was before I had seen any of the American courts of law.

It should be generally understood that lawyers are the leading men
in the States, and that the governance of the country has been
almost entirely in their hands ever since the political life of the
nation became full and strong. All public business of importance
falls naturally into their hands, as with us it falls into the hands
of men of settled wealth and landed property. Indeed, the fact on
which I insist is much more clear and defined in the States than it
is with us. In England the lawyers also obtain no inconsiderable
share of political and municipal power. The latter is perhaps more
in the hands of merchants and men in trade than of any other class;
and even the highest seats of political greatness are more open with
us to the world at large than they seem to be in the States to any
that are not lawyers. Since the days of Washington every President
of the United States has, I think, been a lawyer, excepting General
Taylor. Other Presidents have been generals, but then they have
also been lawyers. General Jackson was a successful lawyer. Almost
all the leading politicians of the present day are lawyers. Seward,
Cameron, Welles, Stanton, Chase, Sumner, Crittenden, Harris,
Fessenden, are all lawyers. Webster, Clay, Calhoun, and Cass were
lawyers. Hamilton and Jay were lawyers. Any man with an ambition
to enter upon public life becomes a lawyer as a matter of course.
It seems as though a study and practice of the law were necessary
ingredients in a man's preparation for political life. I have no
doubt that a very large proportion of both houses of legislature
would be found to consist of lawyers. I do not remember that I know
of the circumstance of more than one Senator who is not a lawyer.
Lawyers form the ruling class in America, as the landowners do with
us. With us that ruling class is the wealthiest class; but this is
not so in the States. It might be wished that it were so.

The great and ever-present difference between the National or
Federal affairs of the United States government and the affairs of
the government of each individual State, should be borne in mind at
all times by those who desire to understand the political position
of the States. Till this be realized no one can have any correct
idea of the bearings of politics in that country. As a matter of
course we in England have been inclined to regard the government and
Congress of Washington as paramount throughout the States, in the
same way that the government of Downing Street and the Parliament of
Westminster are paramount through the British isles. Such a mistake
is natural; but not the less would it be a fatal bar to any correct
understanding of the Constitution of the United States. The
National and State governments are independent of each other, and so
also are the National and State tribunals. Each of these separate
tribunals has its own judicature, its own judges, its own courts,
and its own functions. Nor can the supreme tribunal at Washington
exercise any authority over the proceedings of the courts in the
different States, or influence the decision of their judges. For
not only are the National judges and State judges independent of
each other, but the laws in accordance with which they are bound to
act may be essentially different. The two tribunals--those of the
nation and of the State--are independent and final in their several
spheres. On a matter of State jurisprudence no appeal lies from the
supreme tribunal of New York or Massachusetts to the supreme
tribunal of the nation at Washington.

The National tribunals are of two classes. First, there is the
Supreme Court specially ordained by the Constitution. And then
there are such inferior courts as Congress may from time to time see
fit to establish. Congress has no power to abolish the Supreme
Court, or to erect another tribunal superior to it. This court sits
at Washington, and is a final court of appeal from the inferior
national courts of the Federal empire. A system of inferior courts,
inaugurated by Congress, has existed for about sixty years. Each
State for purposes of national jurisprudence is constituted as a
district; some few large States, such as New York, Pennsylvania, and
Illinois, being divided into two districts. Each district has one
district court, presided over by one judge. National causes in
general, both civil and criminal, are commenced in these district
courts, and those involving only small amounts are ended there.
Above these district courts are the National circuit courts, the
districts or States having been grouped into circuits as the
counties are grouped with us. To each of these circuits is assigned
one of the judges of the Supreme Court of Washington, who is the ex-
officio judge of that circuit, and who therefore travels as do our
common law judges. In each district he sits with the judge of that
district, and they two together form the circuit court. Appeals
from the district court lie to the circuit court in cases over a
certain amount, and also in certain criminal cases. It follows
therefore that appeals lie from one judge to the same judge when
sitting with another--an arrangement which would seem to be fraught
with some inconvenience. Certain causes, both civil and criminal,
are commenced in the circuit courts. From the circuit courts the
appeal lies to the Supreme Court at Washington; but such appeal
beyond the circuit court is not allowed in cases which are of small
magnitude or which do not involve principles of importance. If
there be a division of opinion in the circuit court the case goes to
the Supreme Court; from whence it might be inferred that all cases
brought from the district court to the circuit court would be sent
on to the Supreme Court, unless the circuit judge agreed with the
district judge; for the district judge having given his judgment in
the inferior court, would probably adhere to it in the superior
court. No appeal lies to the Supreme Court at Washington in
criminal cases.

All questions that concern more than one State, or that are
litigated between citizens of different States, or which are
international in their bearing, come before the national judges.
All cases in which foreigners are concerned, or the rights of
foreigners, are brought or may be brought into the national courts.
So also are all causes affecting the Union itself, or which are
governed by the laws of Congress and not by the laws of any
individual State. All questions of admiralty law and maritime
jurisdiction, and cases affecting ambassadors or consuls, are there
tried. Matters relating to the post-office, to the customs, the
collection of national taxes, to patents, to the army and navy, and
to the mint, are tried in the national courts. The theory is, that
the national tribunals shall expound and administer the national
laws and treaties, protect national offices and national rights; and
that foreigners and citizens of other States shall not be required
to submit to the decisions of the State tribunals; in fact, that
national tribunals shall take cognizance of all matters as to which
the general government of the nation is responsible. In most of
such cases the national tribunals have exclusive jurisdiction. In
others it is optional with the plaintiff to select his tribunal. It
is then optional with the defendant, if brought into a State court,
to remain there or to remove his cause into the national tribunal.
The principle is, that either at the beginning, or ultimately, such
questions shall or may be decided by the national tribunals. If in
any suit properly cognizable in a State court the decision should
turn on a clause in the Constitution, or on a law of the United
States, or on the act of a national offense, or on the validity of a
national act, an appeal lies to the Supreme Court of the United
States and to its officers. The object has been to give to the
national tribunals of the nation full cognizance of its own laws,
treaties, and congressional acts.

The judges of all the national tribunals, of whatever grade or rank,
hold their offices for life, and are removable only on impeachment.
They are not even removable on an address of Congress; thus holding
on a firmer tenure even than our own judges, who may, I believe, be
moved on an address by Parliament. The judges in America are not
entitled to any pension or retiring allowances; and as there is not,
as regards the judges of the national courts, any proviso that they
shall cease to sit after a certain age, they are in fact immovable
whatever may be their infirmities. Their position in this respect
is not good, seeing that their salaries will hardly admit of their
making adequate provision for the evening of life. The salary of
the Chief Justice of the United States is only 1300l. per annum.
All judges of the national courts, of whatever rank, are appointed
by the President, but their appointments must be confirmed by the
Senate. This proviso, however, gives to the Senate practically but
little power, and is rarely used in opposition to the will of the
President. If the President name one candidate, who on political
grounds is distasteful to a majority of the Senate, it is not
probable that a second nomination made by him will be more
satisfactory. This seems now to be understood, and the nomination
of the cabinet ministers and of the judges, as made by the
President, are seldom set aside or interfered with by the Senate,
unless on grounds of purely personal objection.

The position of the national judges as to their appointments and
mode of tenure is very different from that of the State judges, to
whom in a few lines I shall more specially allude. This should, I
think, be specially noticed by Englishmen when criticising the
doings of the American courts. I have observed statements made to
the effect that decisions given by American judges as to
international or maritime affairs affecting English interests could
not be trusted, because the judges so giving them would have been
elected by popular vote, and would be dependent on the popular voice
for reappointment. This is not so. Judges are appointed by popular
vote in very many of the States. But all matters affecting shipping
and all questions touching foreigners are tried in the national
courts before judges who have been appointed for life. I should not
myself have had any fear with reference to the ultimate decision in
the affair of Slidell and Mason had the "Trent" been carried into
New York. I would, however, by no means say so much had the cause
been one for trial before the tribunals of the State of New York.

I have been told that we in England have occasionally fallen into
the error of attributing to the Supreme Court at Washington a quasi
political power which it does not possess. This court can give no
opinion to any department of the government, nor can it decide upon
or influence any subject that has not come before it as a regularly
litigated case in law. Though especially founded by the
Constitution, it has no peculiar power under the Constitution, and
stands in no peculiar relation either to that or to acts of
Congress. It has no other power to decide on the constitutional
legality of an act of Congress or an act of a State legislature, or
of a public officer, than every court, State and National, high and
low, possesses and is bound to exercise. It is simply the national
court of last appeal.

In the different States such tribunals have been established as each
State by its constitution and legislation has seen fit to adopt.
The States are entirely free on this point. The usual course is to
have one Supreme Court, sometimes called by that name, sometimes the
Court of Appeals, and sometimes the Court of Errors. Then they have
such especial courts as their convenience may dictate. The State
jurisprudence includes all causes not expressly or by necessary
implication secured to the national courts. The tribunals of the
States have exclusive control over domestic relations, religion,
education, the tenure and descent of land, the inheritance of
property, police regulations, municipal economy, and all matters of
internal trade. In this category, of course, come the relations of
husband and wife, parent and child, master and servant, owner and
slave, guardian and ward, tradesman and apprentice. So also do all
police and criminal regulations not external in their character--
highways, railroads, canals, schools, colleges, the relief of
paupers, and those thousand other affairs of the world by which men
are daily surrounded in their own homes and their own districts. As
to such subjects Congress can make no law, and over them Congress
and the national tribunals have no jurisdiction. Congress cannot
say that a man shall be hung for murder in New York, nor if a man be
condemned to be hung in New York can the President pardon him. The
legislature of New York must say whether or no hanging shall be the
punishment adjudged to murder in that State; and the Governor of the
State of New York must pronounce the man's pardon--if it be that he
is to be pardoned. But Congress must decide whether or no a man
shall be hung for murder committed on the high seas, or in the
national forts or arsenals; and in such a case it is for the
President to give or to refuse the pardon.

The judges of the States are appointed as the constitution or the
laws of each State may direct in that matter. The appointments, I
think, in all the old States, were formerly vested in the governor.
In some States such is still the case. In some, if I am not
mistaken, the nomination is now made, directly, by the legislature.
But in most of the States the power of appointing has been claimed
by the people, and the judges are voted in by popular election, just
as the President of the Union and the Governors of the different
States are voted in. There has for some years been a growing
tendency in this direction, and the people in most of the States
have claimed the power--or rather the power has been given to the
people by politicians who have wished to get into their hands, in
this way, the patronage of the courts. But now, at the present
moment, there is arising a strong feeling of the inexpediency of
appointing judges in such a manner. An anti-democratic bias is
taking possession of men's minds, causing a reaction against that
tendency to universal suffrage in everything which prevailed before
the war began. As to this matter of the mode of appointing judges,
I have heard but one opinion expressed; and I am inclined to think
that a change will be made in one State after another, as the
constitutions of the different States are revised. Such revisions
take place generally at periods of about twenty-five years'
duration. If, therefore, it be acknowledged that the system be bad,
the error can be soon corrected.

Nor is this mode of appointment the only evil that has been adopted
in the State judicatures. The judges in most of the States are not
appointed for life, nor even during good behavior. They enter their
places for a certain term of years, varying from fifteen down, I
believe, to seven. I do not know whether any are appointed for a
term of less than seven years. When they go out they have no
pensions; and as a lawyer who has been on the bench for seven years
can hardly recall his practice, and find himself at once in receipt
of his old professional income, it may easily be imagined how great
will be the judge's anxiety to retain his position on the bench.
This he can do only by the universal suffrages of the people, by
political popularity, and a general standing of that nature which
enables a man to come forth as the favorite candidate of the lower
orders. This may or may not be well when the place sought for is
one of political power--when the duties required are political in
all their bearings. But no one can think it well when the place
sought for is a judge's seat on the bench--when the duties required
are solely judicial. Whatever hitherto may have been the conduct of
the judges in the courts of the different States, whether or no
impurity has yet crept in, and the sanctity of justice has yet been
outraged, no one can doubt the tendency of such an arrangement. At
present even a few visits to the courts constituted in this manner
will convince an observer that the judges on the bench are rather
inferior than superior to the lawyers who practice before them. The
manner of address, the tone of voice, the lack of dignity in the
judge, and the assumption by the lawyer before him of a higher
authority than his, all tell this tale. And then the judges in
these courts are not paid at a rate which will secure the services
of the best men. They vary in the different States, running from
about 600l. to about 1000l. per annum. But a successful lawyer,
practicing in the courts in which these judges sit, not unfrequently
earns 3000l. a year. A professional income of 2000l. a year is not
considered very high. When the different conditions of the bench
are considered, when it is remembered that the judge may lose his
place after a short term of years, and that during that short term
of years he receives a payment much less than that earned by his
successful professional brethren, it can hardly be expected that
first-rate judges should be found. The result is seen daily in
society. You meet Judge This and Judge That, not knowing whether
they are ex-judges or in-judges; but you soon learn that your
friends do not hold any very high social position on account of
their forensic dignity.

It is, perhaps, but just to add that in Massachusetts, which I
cannot but regard as in many respects the noblest of the States, the
judges are appointed by the Governor, and are appointed for life.

CHAPTER XII.

THE FINANCIAL POSITION.

The Americans are proud of much that they have done in this war, and
indeed much has been done which may justify pride; but of nothing
are they so proud as of the noble dimensions and quick growth of
their government debt. That Mr. Secretary Chase, the American
Chancellor of the Exchequer, participates in this feeling I will not
venture to say; but if he do not, he is well-nigh the only man in
the States who does not do so. The amount of expenditure has been a
subject of almost national pride, and the two millions of dollars a
day, which has been roughly put down as the average cost of the war,
has always been mentioned by Northern men in a tone of triumph.
This feeling is, I think, intelligible; and although we cannot
allude to it without a certain amount of inward sarcasm, a little
gentle laughing in the sleeve, at the nature of this national joy, I
am not prepared to say that it is altogether ridiculous. If the
country be found able and willing to pay the bill, this triumph in
the amount of the cost will hereafter be regarded as having been
anything but ridiculous. In private life an individual will
occasionally be known to lavish his whole fortune on the
accomplishment of an object which he conceives to be necessary to
his honor. If the object be in itself good, and if the money be
really paid, we do not laugh at such a man for the sacrifices which
he makes.

For myself, I think that the object of the Northern States in this
war has been good. I think that they could not have avoided the war
without dishonor, and that it was incumbent on them to make
themselves the arbiters of the future position of the South, whether
that future position shall or shall not be one of secession. This
they could only do by fighting. Had they acceded to secession
without a civil war, they would have been regarded throughout Europe
as having shown themselves inferior to the South, and would for many
years to come have lost that prestige which their spirit and energy
had undoubtedly won for them; and in their own country such
submission on their part would have practically given to the South
the power of drawing the line of division between the two new
countries. That line, so drawn, would have given Virginia,
Maryland, Kentucky, and Missouri to the Southern Republic. The
great effect of the war to the North will be, that the Northern men
will draw the line of secession, if any such line be drawn. I still
think that such line will ultimately be drawn, and that the Southern
States will be allowed to secede. But if it be so, Virginia,
Maryland, Kentucky, and Missouri will not be found among these
seceding States; and the line may not improbably be driven south of
North Carolina and Tennessee. If this can be so, the object of the
war will, I think, hereafter be admitted to have been good.
Whatever may be the cost in money of joining the States which I have
named to a free-soil Northern people, instead of allowing them to be
buried in that dismal swamp which a confederacy of Southern slave
States will produce, that cost can hardly be too much. At the
present moment there exists in England a strong sympathy with the
South, produced partly by the unreasonable vituperation with which
the North treated our government at the beginning of the war, and by
the capture of Mason and Slidell; partly also by that feeling of
good-will which a looker on at a combat always has for the weaker
side. But, although this sympathy does undoubtedly exist, I do not
imagine that many Englishmen are of opinion that a confederacy of
Southern slave States will ever offer to the general civilization of
the world very many attractions. It cannot be thought that the
South will equal the North in riches, in energy, in education, or
general well-being. Such has not been our experience of any slave
country; such has not been our experience of any tropical country;
and such especially has not been our experience of the Southern
States of the North American Union. I am no abolitionist, but to me
it seems impossible that any Englishman should really advocate the
cause of slavery against the cause of free soil. There are the
slaves, and I know that they cannot be abolished--neither they nor
their chains; but, for myself, I will not willingly join my lot with
theirs. I do not wish to have dealings with the African negro,
either as a free man or as a slave, if I can avoid them, believing
that his employment by me in either capacity would lead to my own
degradation.* Such, I think, are the feelings of Englishmen
generally on this matter. And if such be the case, will it not be
acknowledged that the Northern men have done well to fight for a
line which shall add five or six States to that Union which will in
truth be a union of free men, rather than to that confederacy which,
even if successful, must owe its success to slavery?

* In saying this I fear that I shall be misunderstood, let me use
what foot note or other mode of protestation I may to guard myself.
In thus speaking of the African negro, I do not venture to despise
the work of God's hands. That He has made the negro, for His own
good purposes, as He has the Esquimaux, I am aware. And I am aware
that it is my duty, as it is the duty of us all, to see that no
injury be done to him, and, if possible, to assist him in his
condition. When I declare that I desire no dealings with the negro,
I speak of him in the position in which I now find him, either as a
free servant or a slave. In either position he impedes the
civilization and the progress of the white man.

In considering this matter it must be remembered that the five or
six States of which we are speaking are at present slave States, but
that, with the exception of Virginia--of part only of Virginia--they
are not wedded to slavery. But even in Virginia--great as has been
the gain which has accrued to that unhappy State from the breeding
of slaves for the Southern market--even in Virginia slavery would
soon die out if she were divided from the South and joined to the
North. In those other States, in Maryland, in Kentucky, and in
Missouri, there is no desire to perpetuate the institution. They
have been slave States, and as such have resented the rabid
abolition of certain Northern orators. Had it not been for those
orators, and their oratory, the soil of Kentucky would now have been
free. Those five or six States are now slave States; but a line of
secession drawn south of them will be the line which cuts off
slavery from the North. If those States belong to the North when
secession shall be accomplished, they will belong to it as free
States; but if they belong to the South, they will belong to the
South as slave States. If they belong to the North, they will
become rich as the North is, and will share in the education of the
North. If they belong to the South, they will become poor as the
South is, and will share in the ignorance of the South. If we
presume that secession will be accomplished--and I for one am of
that opinion--has it not been well that a war should be waged with
such an object as this? If those five or six States can be gained,
stretching east and west from the Atlantic to the center of the
continent, hundreds of miles beyond the Mississippi, and north and
south over four degrees of latitude--if that extent of continent can
be added to the free soil of the Northern territory, will not the
contest that has done this have been worth any money that can have
been spent on it?

So much as to the object to be gained by the money spent on the war!
And I think that in estimating the nature of the financial position
which the war has produced it was necessary that we should consider
the value of the object which has been in dispute. The object, I
maintain, has been good. Then comes the question whether or no the
bill will be fairly paid--whether they who have spent the money will
set about that disagreeable task of settling the account with a true
purpose and an honest energy. And this question splits itself into
two parts. Will the Americans honestly wish to pay the bill; and if
they do so wish, will they have the power to pay it? Again that
last question must be once more divided. Will they have the power
to pay, as regards the actual possession of the means, and if
possessing them, will they have the power of access to those means?

The nation has obtained for itself an evil name for repudiation. We
all know that Pennsylvania behaved badly about her money affairs,
although she did at last pay her debts. We all know that
Mississippi has behaved very badly about her money affairs, and has
never paid her debts, nor does she intend to pay them. And, which
is worse than this, for it applies to the nation generally and not
to individual States, we all know that it was made a matter of boast
in the States that in the event of a war with England the enormous
amount of property held by Englishmen in the States should be
confiscated. That boast was especially made in the mercantile City
of New York; and when the matter was discussed it seemed as though
no American realized the iniquity of such a threat. It was not
apparently understood that such a confiscation on account of a war
would be an act of national robbery justified simply by the fact
that the power of committing it would be in the hands of the
robbers. Confiscation of so large an amount of wealth would be a
smart thing, and men did not seem to perceive that any disgrace
would attach to it in the eyes of the world at large. I am very
anxious not to speak harsh words of the Americans; but when
questions arise as to pecuniary arrangements, I find myself forced
to acknowledge that great precaution is at any rate necessary.

But, nevertheless, I am not sure that we shall be fair if we allow
ourselves to argue as to the national purpose in this matter from
such individual instances of dishonesty as those which I have
mentioned. I do not think it is to be presumed that the United
States as a nation will repudiate its debts because two separate
States may have been guilty of repudiation. Nor am I disposed to
judge of the honesty of the people generally from the dishonest
threatenings of New York, made at a moment in which a war with
England was considered imminent. I do believe that the nation, as a
nation, will be as ready to pay for the war as it has been ready to
carry on the war. That "ignorant impatience of taxation," to which
it is supposed that we Britons are subject, has not been a complaint
rife among the Americans generally. We, in England, are inclined to
believe that hitherto they have known nothing of the merits and
demerits of taxation, and have felt none of its annoyances, because
their entire national expenditure has been defrayed by light custom
duties; but the levies made in the separate States for State
purposes, or chiefly for municipal purposes, have been very heavy.
They are, however, collected easily, and, as far as I am aware,
without any display of ignorant impatience. Indeed, an American is
rarely impatient of any ordained law. Whether he be told to do
this, or to pay for that, or to abstain from the other, he does do
and pay and abstain without grumbling, provided that he has had a
hand in voting for those who made the law and for those who carry
out the law. The people generally have, I think, recognized the
fact that they will have to put their necks beneath the yoke, as the
peoples of other nations have put theirs, and support the weight of
a great national debt. When the time comes for the struggle, for
the first uphill heaving against the terrible load which they will
henceforth have to drag with them in their career, I think it will
be found that they are not ill inclined to put their shoulders to
the work.

Then as to their power of paying the bill! We are told that the
wealth of a nation consists in its labor, and that that nation is
the most wealthy which can turn out of hand the greatest amount of
work. If this be so, the American States must form a very wealthy
nation, and as such be able to support a very heavy burden. No one,
I presume, doubts that that nation which works the most, or works
rather to the best effect, is the richest. On this account England
is richer than other countries, and is able to bear, almost without
the sign of an effort, a burden which would crush any other land.
But of this wealth the States own almost as much as Great Britain
owns. The population of the Northern States is industrious,
ambitious of wealth, and capable of work as is our population. It
possesses, or is possessed by, that restless longing for labor which
creates wealth almost unconsciously. Whether this man be rich or be
a bankrupt, whether the bankers of that city fail or make their
millions, the creative energies of the American people will not
become dull. Idleness is impossible to them, and therefore poverty
is impossible. Industry and intellect together will always produce
wealth; and neither industry nor intellect is ever wanting to an
American. They are the two gifts with which the fairy has endowed
him. When she shall have added honesty as a third, the tax-gatherer
can desire no better country in which to exercise his calling.

I cannot myself think that all the millions that are being spent
would weigh upon the country with much oppression, if the weight
were once properly placed upon the muscles that will have to bear
it. The difficulty will be in the placing of the weight. It has, I
know, been argued that the circumstances under which our national
debt has extended itself to its present magnificent dimensions
cannot be quoted as parallel to those of the present American debt,
because we, while we were creating the debt, were taxing ourselves
very heavily, whereas the Americans have gone ahead with the
creation of their debt before they have levied a shilling on
themselves toward the payment of those expenses for which the debt
has been encountered. But this argument, even if it were true in
its gist, goes no way toward proving that the Americans will be
unable to pay. The population of the present free-soil States is
above eighteen millions; that of the States which will probably
belong to the Union if secession be accomplished is about twenty-two
millions. At a time when our debt had amounted to six hundred
millions sterling we had no population such as that to bear the
burden. It may be said that we had more amassed wealth than they
have. But I take it that the amassed wealth of any country can go
but a very little way in defraying the wants or in paying the debts
of a people. We again come back to the old maxim, that the labor of
a country is its wealth; and that a country will be rich or poor in
accordance with the intellectual industry of its people.

But the argument drawn from that comparison between our own conduct
when we were creating our debt, and the conduct of the Americans
while they have been creating their debt--during the twelve months
from April 1, 1861, to March 31, 1862, let us say--is hardly a fair
argument. We, at any rate, knew how to tax ourselves--if only the
taxes might be forthcoming. We were already well used to the work;
and a minister with a willing House of Commons had all his material
ready to his hand. It has not been so in the United States. The
difficulty has not been with the people who should pay the taxes,
but with the minister and the Congress which did not know how to
levy them. Certainly not as yet have those who are now criticising
the doings on the other side of the water a right to say that the
American people are unwilling to make personal sacrifices for the
carrying out of this war. No sign has as yet been shown of an
unwillingness on the part of the people to be taxed. But wherever a
sign could be given, it has been given on the other side. The
separate States have taxed themselves very heavily for the support
of the families of the absent soldiers. The extra allowances made
to maimed men, amounting generally to twenty-four shillings a month,
have been paid by the States themselves, and have been paid almost
with too much alacrity.

I am of opinion that the Americans will show no unwillingness to pay
the amount of taxation which must be exacted from them; and I also
think that as regards their actual means they will have the power to
pay it. But as regards their power of obtaining access to those
means, I must confess that I see many difficulties in their way. In
the first place they have no financier, no man who by natural
aptitude and by long-continued contact with great questions of
finance, has enabled himself to handle the money affairs of a nation
with a master's hand. In saying this I do not intend to impute any
blame to Mr. Chase, the present Secretary of the Treasury. Of his
ability to do the work properly had he received the proper training,
I am not able to judge. It is not that Mr. Chase is incapable. He
may be capable or incapable. But it is that he has not had the
education of a national financier, and that he has no one at his
elbow to help him who has had that advantage.

And here we are again brought to that general absence of statecraft
which has been the result of the American system of government. I
am not aware that our Chancellors of the Exchequer have in late
years always been great masters of finance; but they have at any
rate been among money men and money matters, and have had financiers
at their elbows if they have not deserved the name themselves. The
very fact that a Chancellor of the Exchequer sits in the house of
Commons and is forced in that House to answer all questions on the
subject of finance, renders it impossible that he should be ignorant
of the rudiments of the science. If you put a white cap on a man's
head and place him in a kitchen, he will soon learn to be a cook.
But he will never be made a cook by standing in the dining-room and
seeing the dishes as they are brought up. The Chancellor of the
Exchequer is our cook; and the House of Commons, not the Treasury
chambers, is his kitchen. Let the Secretary of the United States
Treasury sit in the House of Representatives! He would learn more
there by contest with opposing members than he can do by any amount
of study in his own chamber.

But the House of Representatives itself has not as yet learned its
own lesson with reference to taxation. When I say that the United
States are in want of a financier, I do not mean that the deficiency
rests entirely with Mr. Chase. This necessity for taxation, and for
taxation at so tremendous a rate, has come suddenly, and has found
the representatives of the people unprepared for such work. To us,
as I conceive, the science of taxation, in which we certainly ought
to be great, has come gradually. We have learned by slow lessons
what taxes will be productive, under what circumstances they will be
most productive, and at what point they will be made unproductive by
their own weight. We have learned what taxes may be levied so as to
afford funds themselves, without injuring the proceeds of other
taxes, and we know what taxes should be eschewed as being specially
oppressive to the general industry and injurious to the well-being
of the nation. This has come of much practice, and even we, with
all our experience, have even got something to learn. But the
public men in the States who are now devoting themselves to this
matter of taxing the people have, as yet, no such experience. That
they have inclination enough for the work is, I think, sufficiently
demonstrated by the national tax bill, the wording of which is now
before me, and which will have been passed into law before this
volume can be published. It contains a list of every taxable
article on the earth or under the earth. A more sweeping catalogue
of taxation was probably never put forth. The Americans, it has
been said by some of us, have shown no disposition to tax themselves
for this war; but before the war has as yet been well twelve months
in operation, a bill has come out with a list of taxation so
oppressive that it must, as regards many of its items, act against
itself and cut its own throat. It will produce terrible fraud in
its evasion, and create an army of excise officers who will be as
locusts over the face of the country. Taxes are to be laid on
articles which I should have said that universal consent had
declared to be unfit for taxation. Salt, soap, candles, oil, and
other burning fluids, gas, pins, paper, ink, and leather, are to be
taxed. It was at first proposed that wheat flour should be taxed,
but that item has, I believe, been struck out of the bill in its
passage through the House. All articles manufactured of cotton,
wool, silk, worsted, flax, hemp, jute, India-rubber, gutta-percha,
wood (?), glass, pottery wares, leather, paper, iron, steel, lead,
tin, copper, zinc, brass, gold and silver, horn, ivory, bone,
bristles, wholly or in part, or of other materials, are to be taxed--
provided always that books, magazines, pamphlets, newspapers, and
reviews shall not be regarded as manufactures. It will be said that
the amount of taxation to be levied on the immense number of
manufactured articles which must be included in this list will be
light, the tax itself being only 3 per cent. ad valorem. But with
reference to every article, there will be the necessity of
collecting this 3 per cent. As regards each article that is
manufactured, some government official must interfere to appraise
its value and to levy the tax. Who shall declare the value of a
barrel of wooden nutmegs; or how shall the excise officer get his
tax from every cobbler's stall in the country? And then tradesmen
are to pay licenses for their trades--a confectioner 2l., a tallow-
chandler 2l., a horse dealer 2l. Every man whose business it is to
sell horses shall be a horse dealer. True. But who shall say
whether or no it be a man's business to sell horses? An apothecary
2l., a photographer 2l., a peddler 4l., 3l., 2l., or 1l., according
to his mode of traveling. But if the gross receipts of any of the
confectioners, tallow-chandlers, horse dealers, apothecaries,
photographers, peddlers, or the like do not exceed 200l. a year,
then such tradesmen shall not be required to pay for any license at
all. Surely such a proviso can only have been inserted with the
express view of creating fraud and ill blood! But the greatest
audacity has, I think, been shown in the levying of personal taxes,--
such taxes as have been held to be peculiarly disagreeable among
us, and have specially brought down upon us the contempt of lightly-
taxed people, who, like the Americans, have known nothing of
domestic interference. Carriages are to be taxed, as they are with
us. Pianos also are to be taxed, and plate. It is not signified by
this clause that such articles shall pay a tax, once for all, while
in the maker's hands, which tax would no doubt fall on the future
owner of such piano or plate; in such case the owner would pay, but
would pay without any personal contact with the tax-gatherer. But
every owner of a piano or of plate is to pay annually according to
the value of the articles he owns. But perhaps the most audacious
of all the proposed taxes is that on watches. Every owner of a
watch is to pay 4s. a year for a gold watch and 2s. a year for a
silver watch! The American tax-gatherers will not like to be
cheated. They will be very keen in searching for watches. But who
can say whether they or the carriers of watches will have the best
of it in such a hunt. The tax-gatherers will be as hounds ever at
work on a cold scent. They will now be hot and angry, and then dull
and disheartened. But the carriers of watches who do not choose to
pay will generally, one may predict, be able to make their points
good.

With such a tax bill--which I believe came into action on the 1st of
May, 1862--the Americans are not fairly open to the charge of being
unwilling to tax themselves. They have avoided none of the
irritating annoyances of taxation, as also they have not avoided, or
attempted to lighten for themselves, the dead weight of the burden.
The dead weight they are right to endure without flinching; but
their mode of laying it on their own backs justifies me, I think, in
saying that they do not yet know how to obtain access to their own
means. But this bill applies simply to matters of excise. As I
have said before, Congress, which has hitherto supported the
government by custom duties, has also the power of levying excise
duties, and now, in its first session since the commencement of the
war, has begun to use that power without much hesitation or
bashfulness. As regards their taxes levied at the custom-house, the
government of the United States has always been inclined to high
duties, with the view of protecting the internal trade and
manufactures of the country. The amount required for national
expenses was easily obtained; and these duties were not regulated,
as I think, so much with a view to the amount which might be
collected as to that of the effect which the tax might have in
fostering native industry. That, if I understand it, was the
meaning of Mr. Morrill's bill, which was passed immediately on the
secession of the Southern members of Congress, and which instantly
enhanced the price of all foreign manufactured goods in the States.
But now the desire for protection, simply as protection, has been
swallowed up in the acknowledged necessity for revenue; and the only
object to be recognized in the arrangement of the custom duties is
the collection of the greatest number of dollars. This is fair
enough. If the country can, at such a crisis, raise a better
revenue by claiming a shilling a pound on coffee than it can by
claiming sixpence, the shilling may be wisely claimed, even though
many may thus be prohibited from the use of coffee. But then comes
the great question, What duty will really give the greatest product?
At what rate shall we tax coffee so as to get at the people's money?
If it be so taxed that people won't use it, the tax cuts its own
throat. There is some point at which the tax will be most
productive; and also there is a point up to which the tax will not
operate to the serious injury of the trade. Without the knowledge
which should indicate these points, a Chancellor of the Exchequer,
with his myrmidons, would be groping in the dark. As far as we can
yet see, there is not much of such knowledge either in the Treasury
chambers or the House of Representatives at Washington.

But the greatest difficulty which the States will feel in obtaining
access to their own means of taxation is that which is created by
the Constitution itself, and to which I alluded when speaking of the
taxing powers which the Constitution had given to Congress and those
which it had denied to Congress. As to custom duties and excise
duties, Congress can do what it pleases, as can the House of
Commons. But Congress cannot levy direct taxation according to its
own judgment. In those matters of customs and excise Congress and
the Secretary of the Treasury will probably make many blunders; but,
having the power, they will blunder through, and the money will be
collected. But direct taxation in an available shape is beyond the
power of Congress under the existing rule of the Constitution. No
income tax, for instance, can be laid on the general incomes of the
United States that shall be universal throughout the States. An
income tax can be levied, but it must be levied in proportion to the
representation. It is as though our Chancellor of the Exchequer, in
collecting an income tax, were obliged to demand the same amount of
contribution from the town of Chester as from the town of Liverpool,
because both Chester and Liverpool return two members to Parliament.
In fitting his tax to the capacity of Chester, he would be forced to
allow Liverpool to escape unscathed. No skill in money matters on
the part of the Treasury Secretary, and no aptness for finance on
the part of the Committee of Ways and Means, can avail here. The
Constitution must apparently be altered before any serviceable
resort can be had to direct taxation. And yet, at such an emergency
as that now existing, direct taxation would probably give more ready
assistance than can be afforded either by the customs or the excise.

It has been stated to me that this difficulty in the way of direct
taxation can be overcome without any change in the Constitution.
Congress could only levy from Rhode Island the same amount of income
tax that it might levy from Iowa; but it will be competent to the
legislature of Rhode Island itself to levy what income tax it may

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