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the Federal constitution the States fix the electoral qualification for voting at a Presidential election. The primary element in a free government—the determination how many people shall have a share in it-in America depends not on the government but on certain subordinate local, and sometimes, as in the South now, hostile bodies.
Doubtless the framers of the constitution had not much choice in the matter. The wisest of them were anxious to get as much power for the central government, and to leave as little to the local governments as they could. But a cry was got up that this wisdom would create a tyranny and impair freedom, and with that help, local jealousy triumphed easily. All Federal government is, in truth, a case in which what I have called the dignified elements of government do not coincide with the serviceable elements. At the beginning of every league the separate States are the old governments which attract and keep the love and loyalty of the people; the Federal government is a useful thing, but new and unattractive. It must concede much to the State governments, for it is indebted to them for motive power: they are the governments which the people voluntarily obey. When the State governments are not thus loved, they vanish as the little Italian and the little German potentates vanished; no federation is needed; a single central government rules all.
: But the division of the sovereign authority in the American constitution is far more complex than this. The part of that authority left to the Federal govern
ment is itself divided and subdivided. The greatest instance is the most obvious. The Congress rules the law, but the President rules the administration. One means of unity the constitution does give; the President can veto laws he does not like. But when two-thirds of both houses, are unanimous (as has lately happened), they can overrule the President and make the laws without him ; so here there are three separate repositories of the legislative power in different cases : first, Congress and the President when they agree; next, the President when he effectually exerts his power; then the requisite two-thirds of Congress when they overrule the President. And the President need not be over-active in carrying out a law he does not approve of. He may indeed be impeached for gross neglect; but between criminal non-feasance and zealous activity there are infinite degrees. Mr. Johnson does not carry out the Freedman's Bureau Bill as Mr. Lincoln, who approved of it, would have carried it out. The American constitution has a special contrivance for varying the supreme legislative authority in different cases, and dividing the administrative authority from it in all cases.
But the administrative power itself is not left thus simple and undivided. One most important part of administration is international policy, and the supreme authority here is not in the President, still less in the House of Representatives, but in the Senate. The President can only make treaties, “provided two-thirds of Senators present " concur. The sovereignty therefore for
” the greatest international questions is in a different
part of the State altogether from any common adminis-
Again, the Congress declares war, but they would find it
"unquestionable power of the President to issue papermoney may give him the power to continue the war though Parliament (as we should speak) may enjoin the war to
And lastly, the whole region of the very highest questions is withdrawn from the ordinary authorities of the State, and reserved for special authorities. The “ constitution” cannot be altered by any authorities within the constitution, but only by authorities without it. Every alteration of it, however urgent or however trifling, must be sanctioned by a complicated proportion of States or legislatures. The consequence is that the most obvious evils cannot be quickly remedied; that the most absurd fictions must be framed to evade the plain sense of mischievous clauses ; that a clumsy working and curious technicality mark the politics of a rough-and-ready people. The practical arguments and the legal disquisitions in America are often like those of trustees carrying out a misdrawn will—the sense of what they mean is good, but it can never be worked out fully or defended simply, so hampered is it by the old words of an old testament.
These instances (and others might be added) prove, as history proves too, what was the principal thought of the American constitution-makers. They shrank from placing sovereign power anywhere. They feared that it would generate tyranny; George III. had been a tyrant to them, and come what might, they would not make a George III. Accredited theories said that the English Constitution divided the sovereign authority, and in imitation the Americans split up theirs.
The result is seen now. At the critical moment of their history there is no ready, deciding power. The South, after a great rebellion, lies at the feet of its conquerors.; its conquerors have to settle what to do with it.* They must decide the conditions upon which the Secessionists shall again become fellow citizens, shall again vote, again be represented, again perhaps govern. The most difficult of problems is how to change late foes into free friends. The safety of their great public debt, and with that debt their future credit and their whole power in future wars, may depend on their not giving too much power to those who must see in the debt the cost of their own subjugation, and who must have an inclination towards the repudiation of it, now that their own debt,—the cost of their defence, -has been repudiated. A race, too, formerly enslaved, is now at the mercy of men who hate and despise it, and those who set it free are bound to give it a fair chance for new life. The slave was formerly protected by his chains; he was an article of value; but now he belongs to himself, no one but himself has an interest in his life; and he is at the mercy of the “mean whites," whose labour he depreciates, and who regard him with a loathing hatred. The greatest moral duty ever set before a government, and the most fearful political problem ever set before a government, are now set before the American. But there is no decision, and no possibility of a decision. The President wants one course, and has power to prevent any other; the Congress wants another course,
* This was written just after the close of the civil war, but I do not know that the great problem stated in it has as yet been adequately solved.