by the president himself."[3]
It must have cost Mr. Madison some trouble to vary the mode of expression in putting this host of objections. We cannot but admire the ingenuity with which he has brought them into view. But what should we say to the management which should reconcile the differences themselves? Concessions, various and large, were obviously necessary. I am not about to give a catalogue of what these actually were. They may be learned from any history of the period. Suffice it that the general and state governments not only urged and established claims, but admitted a set of prohibitions on themselves.
In all this there appears no fatal compromise. But there were some which made the wisest men of the time tremble for the stability of their noble work. There seems peril enough in the liability to the occurrence of new questions, which could not be foreseen, and for which an opening might, or might not, happen to be left. When, in addition to such, there were some questions left to be settled by a future government, from the inability of the statesmen of 1787 to agree upon them, these statesmen might well be uneasy about the stability of their work. Of the first order of questions is that which is now debated with great animosity—whether Congress has power to abolish slavery in the District of Columbia: a disputed point of construction, on which it seems to me that no plain person can be blamed for not anticipating any difference of opinion. Of the second class is that great question, or nest of questions, respecting Reserved Rights. It was agreed that all unforeseen questions which might arise with regard to the respective powers of the general and state governments, should be settled by the state governments; but then, there was an indefinite limitation introduced in the clause, that the general government should have all powers necessary for the prosecution of such and such purposes. This vague clause has been the occasion of the Union being shaken to its centre; and it may be thus shaken again, before the questions arising out of it are all settled.
Even these, being open questions, are less formidable than the compromise of the true republican principle which is apparent in some provisions of the constitution, and in some of the most important institutions of the country. The northern States, which had abolished, on principle, a far milder slavery than that of the cotton and sugar-growing south, agreed to admit slavery in the south as a basis for direct taxation, and for representation. They did worse. They agreed to act in behalf of their southern fellow-citizens in the capture and restitution of runaway slaves, and in the defence of masters against rebellious slaves. What bitter sorrows of conscience and of feeling this compromise has cost their children, it is impossible fully to describe. Of course, the law, being against conscience, i.e. the law of man coming into collision with the law of God, is constantly broken; and causes of dissension hence arise. I know that slavery is only recognised by the constitution as a matter of fact; and that it is only twice mentioned; in connexion with representation, and with the restitution to their masters of "persons held to labour escaping into another State:" but the fact remains that a man who abhors slavery is compellable by the law which his fathers made, to deliver up to the owner a slave whose act of absconding he approves. It is impossible to estimate the evils which have proceeded from, and which will yet arise out of this guilty but "necessary" compromise.
There was difficulty in bringing the greater and smaller States into union. The smaller States could not agree to such an unequal representation as should render them liable to be swallowed up by the larger; while the larger could not consent to be reduced to an equality with the smaller. The Senate was established to afford an equal state representation; while the House of Representatives affords a fair representation of the nation in the aggregate, according to numbers. But the principle of the general government is, that it governs the entire people as one nation, and not as a league of States. There ought, in consistency with this, to be no state representation at all; and the Senate is an anomaly. An anomalous institution cannot be very long-lived. A second chamber, on a more consistent principle, will probably be established in its place, to fulfil its functions as a Court of Review, and as a check upon the precipitation of the other house, and, if need be, upon the encroachments of the executive. There is yet more of compromise involved in this institution of the Senate; as might be expected, since there is no end of compromise when principle is once departed from; yet there are statesmen who defend it on other grounds than that its establishment was necessary to the foundation of any federal government at all. One observed to me, "Some things look well in theory, and fail in practice. This may not be justifiable in theory; but it works well." If this last sentence be true, the well-working of the Senate is only a temporary affair; an accident. Its radical change becomes a question of time merely; and the recent agitation of the question of Instructions seems to indicate that the time is not very far distant.
The appointment of the judges for life is another departure from the absolute republican principle. There is no actual control over them. Theirs is a virtually irresponsible office. Much can be and is said in defence of this arrangement; and whatever is said, is most powerfully enforced by the weight of character possessed by the judiciary, up to this day. But all this does not alter the fact that irresponsible offices are an inconsistency in a republic. With regard to all this compromise, no plea of expediency can alter the fact that, while the House of Representatives is mainly republican, the Senate is only partially so, being anomalous in its character, and its members not being elected immediately by the people; and that the judiciary is not republican at all, since the judges are independent of the nation, from the time of their appointment.
I was told, on high authority, that the assent of the first nine States to the constitution, in 1788, was obtained by means not absolutely fair. What devices were used to procure an apparent majority, I was not informed; but it is generally supposed that if there had been no legislatures active on the occasion, if it had been put to the vote throughout the nation, the ratification would not have taken place when it did. Chief Justice Marshall gives testimony to this effect in his Life of Washington. "So small, in many instances, was the majority in favour of the constitution, as to afford strong ground for the opinion that, had the influence of character been removed, the intrinsic merits of the instrument would not have secured its adoption. Indeed, it is scarcely to be doubted that, in some of the adopting States, a majority of the people were in opposition."
That a constitution, so framed, and so carried, should have worked as well as it has done, seems to point out two very encouraging things; that we may, without rashness, speak of it as Washington did, when he said, "I was convinced it approached nearer to perfection than any government hitherto instituted among men;" and that the world may quietly and hopefully await the further proceedings of the American people, in their advances towards an uncompromising democracy. There will be changes, but not therefore convulsion. There will be the change which Jefferson foresaw, and provided for without dread. "Still," says he, so lately as June, 1824, "we consider our constitutions not otherwise changeable than by the authority of the people, on a special election of representatives for that very purpose: they are, until then, the lex legum. But can they be made unchangeable? Can one generation bind another, and all others, in succession for ever? I think not. The Creator has made the earth for the living, not the dead."—"A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and inalienable rights of man."[4]
Nothing can be more striking to a stranger than the experience gained, after some residence in the United States, of the ultimate ascendency of the will of the majority—i.e. of the right—in defiance of all appearances to the contrary. The review of what I witnessed of this kind, in the course of two years, with regard to the conduct of Congress alone, surprises and cheers me. It is true that I see several wrongs unredressed; several wounds inflicted on the people's liberties yet unhealed; but these are cases in which the people do not yet understand what has been done; or have not yet roused themselves to show that they do.
In the Senate, the people's right of petition is invaded. Last session, it was ordained that
