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"We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

So much for the authority, and the objects of this celebrated constitution, as set forth in its preamble.

Its provisions are so well known that it is needful only to indicate them. In Europe, the difficulty is to avoid supposing the state governments to be subordinate to the general. "They are coordinate departments of one simple and integral whole." State government legislates and administers in all affairs which concern its own citizens. To the federal government are consigned all affairs which concern citizens, as foreigners from other states, or as fellow-citizens with all in certain specified relations.

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

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

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

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

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

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

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

Even these, being open questions, are less formidable than the compromise of the true republican principle which is apparent in some provisions of the constitution, and in some of the most important institutions of the country. The northern States, which had abolished, on principle, a far milder slavery than that of the cotton and sugar-growing south, agreed to admit slavery in the south as a basis for direct taxation, and for representation. They did worse. They agreed to act in behalf of their southern fellow-citizens in the capture and restitution of runaway slaves, and in the defence of masters against rebellious slaves. What bitter sorrows of conscience and of feeling this compromise has cost their children, it is impossible fully to describe. Of course, the law, being against conscience, 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 all petitions and memorials relating to a particular subject—slavery in the District of Columbia—should be laid on the table unread, and never recurred to. Of course, the people will not long submit to this. What has been already achieved in Congress on this topic is a security that the rest will follow. When I entered the United States, there was an absolute and most ominous silence in Congress about slavery. Almost every leading man there told me in conversation that it was the grand question of all; that every member's mind was full of it; that nearly all other questions were much affected, or wholly determined by it; yet no one even alluded to it in public. Before I left, it had found its way into both houses. The houses had, in some sort, come to a vote upon it, which showed the absolute abolition strength in the House of Representatives to be forty-seven. The entering wedge having been thus far driven, it is inconceivable that the nation will allow it to be withdrawn by surrendering their right of petition. When I left, however, the people had virtually no right of petition with regard to the District over which they—i.e. their Congress—have an exclusive jurisdiction.

Again. There were loud and extensive complaints, last session, of the despotism of the chair in the House of Representatives, chiefly in connexion with the subject of slavery. No members, it was said, were allowed a fair hearing but those who sat in a particular part of the house. If this complaint arises out of the peevishness of political disappointment, it will soon be contradicted by facts. If it is true, it is a grave injury. In either case, the chair will not long possess this power of despotism. If the favoured are few, as the complaint states, the injured many will demand and obtain the power to make themselves heard in turn; and no spirit of party can long stand in the way of a claim so just.

Again. After the gentlemen of Charleston had disgraced their city and country, by breaking into the post-office, and burning the contents of the mail-bags, in their dread of abolition papers, a post-master wrote to a member of the cabinet, desiring his approbation for having examined and refused to forward certain papers mailed at his office. The member of the cabinet, Kendall, gave the desired sanction to this audacious stoppage of the post-office function, declaring that the good of the community (as judged of by the individual) is a consideration above the law. The strangers in the land knew not what to make of the fool-hardiness of hazarding such a declaration, in a man of Kendall's wit. It was known that he desired the office of post-master-general; that the president wished him to have it, and that the doubt was whether the Senate would confirm the appointment. Soon after this apparently fatal declaration, he was nominated, and the Senate confirmed his appointment. The declaration, no doubt, seated him in office. The southern members were won by it. Kendall calculated rightly for his immediate object. What is to become of him when the people shall at length recognise the peril and insult to themselves of one of their favoured servants declaring the will of an individual to be occasionally subversive of the law—i.e. of the will of the majority—remains to be seen. Meantime, the continuance in office of the person whose declaration to the above effect remains unretracted, may be regarded as one of the deepest wounds which has been inflicted on the liberties of the nation.

Another attempt, brought on, no doubt, by Kendall's success, to derange or stop the functions of the post-office, has failed. Mr. Calhoun's Bill, commonly called the Gag Bill, prohibiting postmasters from receiving and forwarding any papers whatsoever containing anything relating to slavery, actually was brought to a third reading by the casting vote of the president of the Senate. There was fear, at the time, that this casting vote might ensure the success of the bill, from the popularity of the vice-president. But the bill was thrown out on the third reading; and the effect of the casting vote has been, not to aid the bill, but to injure materially the popularity of the vice-president. This is so far well. It shows that the people are preparing to grapple honestly with the great, the hideous question, out of which arise these minor encroachments upon their liberties.

Out of the slavery question arose the last monstrous usurpation of Congress, for which the emphatic rebuke of the nation awaits the sinning members. The story deserves to be told at length, on account both of its peculiarities, and of its furnishing a fair illustration of certain relations between the state and general governments.

Great Britain was not very learned in the geography of the new world, in the early days of her colonies there. She gave Virginia a patent for lands, including what is now Ohio, Indiana, Illinois, Michigan, Missouri, and on to the Pacific. Other colonies obtained grants of equal moderation as to size, and wisdom as to disposition. This absurd partition, it was found, must occasion irreconcilable quarrels among the members of the confederation; and Washington proposed that all, after fixing their own boundaries, should throw into the common stock the huge unoccupied domain. Virginia led the way in making this honourable sacrifice. She fixed her own boundary; and the articles of compact between the United States and the people of the territory north-west of the Ohio river, declared that the territory should be divided into not more than five, nor less than three States. This was in 1787. The boundary prescribed for Ohio and Michigan, was found to be "not convenient." That is, Ohio found it so; and Michigan was not in a situation, at the time when Ohio was admitted into the Union, to insist upon the ancient boundary, prescribed at the time of the cession of land by Virginia. When Ohio was made a State, the boundary she desired was, among other particulars, ratified by Congress.

In 1816, another portion of land, lying within what Michigan supposed to be her own territory, was taken from her, and added to Indiana, on the latter being made a State. An equivalent is offered to Michigan in a portion of land, to be taken out of Wisconsin, on the western side of Lake Michigan, which is the natural boundary of the territory. Michigan alleges that the inconvenience of a part of her territory lying on the other side of the lake would be so great, that the inhabitants would prefer belonging to Wisconsin; and the land would be ceded, as soon as Wisconsin becomes a State. The decision of the right of this case is the proper business of the Supreme Court, whenever the contesting parties shall have all come into the Union. Meantime, all parties are interested in bearing down the claims of Michigan. Ohio and Indiana desire to keep the lands Congress has authorised them to take. The slave States are anxious to hinder the increase in number of the free States; and by the ordinance of 1787, slavery is prohibited for ever, north-west of the Ohio. The slave States hope, by giving to Michigan a slice of Wisconsin, to make Wisconsin too small to be hereafter divided into two States. In this object, the south will be foiled. Even if slavery should exist till Wisconsin is ready for admission into the Union, there are two ways by which the desire of the south may and will be foiled. By the re-cession of the inconvenient portion by Michigan, as mentioned above; and by the willingness of these northern States to make themselves smaller, and add one to their number, as, by a proviso in the original compact, they have power to do, than let themselves be overborne by the south. This part of the contest, for "a balance of power," arises altogether out of the slavery question.

Soon after I entered the country, Michigan became qualified to request admission into the Union. She did so, declaring her discontent with the boundaries prescribed to her by Congress, and her intention to demand, in the Supreme Court, on her admission, the re-establishment of the old ones. I was amused with the different views of the affair presented to me in different parts of the country. At Cincinnati, in June, 1835, I was told that the President had just transmitted a threat to Ohio, that if she did not yield the boundary claimed by Michigan, he would send the United States troops to fight it out. It was added that the vice-president had thus far prevailed with the President; it being of importance to Mr. Van Buren, that Michigan, which he considered in his interest, should be admitted into the Union in time to vote for him in the presidential election of 1836. There was much talk at Cincinnati of the resources of Ohio. The people would turn out, to a man. The legislature had instantly voted 300,000 dollars to raise troops; and one hundred and fifty thousand men would immediately be in the field: while Michigan had neither men nor money;—had absolutely nothing to depend upon but the six thousand United States' soldiers. This seemed to me to be too clear a case to be a very true one: and the event belied the story in almost every particular. Michigan did raise men; (though there was no war:) she had not the United States' troops: she is not in the interest of Van Buren; and Ohio could bring no troops into the field.

Michigan proceeded to organise her state government, and sent her senators to Washington, during the session of 1835 and 1836. They were allowed to witness the proceedings, but not, of course, to vote. When I arrived at Detroit, the capital of Michigan, in the middle of June, 1836, the Governor told me that the Michiganians were in the singular position of having a state government in full operation, while they were excluded from the Union. The general opinion seemed to be that some concession must be made about the boundary line; in which case, Michigan would be admitted, in time to vote at the presidential election. I pursued my travels through and around the Territory; and when I returned to Detroit, a month afterwards, I found the place in a state of high excitement: an excitement fully warranted by the circumstances which had occurred.

Congress had acknowledged Michigan to be a sovereign State; and had offered to admit her into the Union, on condition of her surrendering all claim to the disputed portions of territory.

A grosser usurpation of power can hardly be conceived. Congress here usurped the function of the Supreme Court in passing sentence against Michigan: passing sentence, too, without hearing, or having a right to listen to, evidence on the case. Congress here required of Michigan to lay down her rights on the threshold of the Union, if she meant to be admitted. Mr. Adams intrepidly declared in the House of Representatives, that Michigan had more cause to ply the Nullification doctrine than South Carolina ever had. A South Carolina nullifier declared in conversation, that he believed the Michiganians' claims to be just: but that, sooner than give her the means of summoning another sovereign State before the Supreme Court, he would vote for her exclusion from the Union as long as he lives. A strange posture of affairs, where all justice seemed to be set aside, and the constitution to have become a dead letter!

The anxiety next was to know what Michigan would do. There seemed too many symptoms of yielding. It was mournful to those who felt that now was the time, now the opportunity, so often sighed for in the best moments of the best men, for making a heroic stand for the right, to hear the forebodings about the canal shares, the lake trade, the probable pecuniary loss in various ways, if there should be delay in the admission of Michigan into the Union. If we spoke of the constitution, we were answered with the canal. If we spoke of patriotism, we were answered with the surplus revenue—the share of it that would be lost. Then, there were fears of war. We were told that the alternative was—admission, with its advantages, and a surrender of the contested lands; and exclusion, with war between infant Michigan and Ohio, backed by the United States. The alternative was rather, admission, with submission to unconstitutional force; or exclusion, with the lonely enjoyment of an honest sovereignty. But this was not the only alternative. Remaining out of the Union did not involve war. Michigan might remain out of the Union, peaceably, and under protest, till the people of the United States should become fully possessed of her case, and aroused to do her justice. It was with heartfelt delight that I found, at length, that this last honest course is that which Michigan has determined to pursue. It is so common for communities, as for individuals, to miss the moment for doing the greatest of their deeds, to have the bright object of their preceding worship eclipsed at the critical moment, to pray incessantly that they may be honest, and then stand aghast, after all, at an honest deed, that the meeting of the Convention which was to consider of this affair, was watched with deep anxiety by the friends of Michigan. We, their visitors, gathered hope from the tone of the Governor, and others with whom we conversed; from the aspect of the legislators who were assembled to discuss the Governor's message;—men with earnest and sensible faces, who looked as if they were aware that their liberties were at stake; and from the spirited conduct of Michigan from the beginning of the quarrel. Still, we were doubtful whether the canal, the surplus revenue, and the probable war, would not be too much for the fortitude of so young a people. They have shamed our fears, and made a stand for constitutional liberty, which will secure to them the gratitude of the Union, to the latest day of its existence. They have refused to enter the Union on the unconstitutional terms proposed. The people will see that they are honourably admitted, and that Congress is duly rebuked.