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the following passage, as bearing upon the subject of the previous note, and as illustrative of the difficulties that beset the course of the statesmen of America, in their transition from the Confederation, which had so signally failed, to the Constitution; and of their fluctuations of mind before they could determine how to adjust the powers of the new government they were engaged in forming
“JOHN JAY TO WASHINGTON.
"New York, January 7, 1787. “Dear Sir,- They who regard the public good with more attention and attachment than they do mere personal concerns, must feel and confess the force of such sentiments as are expressed in your letter to me. The situation of affairs calls not only for reflection and prudence, but for exertion. What is to be done? is a common question, but it is a question not easy to
“Would the giving any further degree of power to Congress do the business? I am inclined to think it would not."
Mr. Jay proceeds to give his reasons for this opinion, founded on the selfishness and corruption already exhibited in that Assembly, and the tendencies of large assemblies “ to misunderstand or neglect the obligations of character, honour, and dignity;" and he then proposes a more distinct division of the powers of the Constitution into legislative, executive, and judicial.
He then adds :
“Shall we have a king? Not, in my opinion, while other expedients remain untried. Might we not have a Governor-General, limited in his prerogatives and duration? Might not Congress be divided into an Upper and a Lower House; the former appointed for life, the latter
annually; and let the Governor-General (to preserve the balance), with the advice of a Council, formed, for that purpose, of the great judicial officers, have a negative on their acts ? Our Government should, in some degree, be suited to our manners and circumstances; and they, you know, are not strictly democratical.” * The whole
of the learned work of John Adams,t (afterwards the second President of the Republic) written in the same year as the above letter (1787), is to prove, that no system of Constitutional Government can be just or durable that does not guard against the over-predominance of any one of its elements. And he illustrates this principle by passing in review, in the most masterly manner, the Governments of all the ancient and modern Republics, of which classical or recent writers have left descriptions.
He expresses his entire agreement with the principle laid down by Macchiavelli, in his remarkable letter to Leo X., on a scheme of reform for the State of Florence, in
“ Those who model a commonwealth must take such provisions as may gratify three sorts of men, the high, the middle sort, and the low." Of this Mr. Adams speaks as “this great truth, this eternal principle, without the knowledge of which every speculation upon government must be imperfect, and every scheme of a commonwealth essentially defective."
which he says,
* Vol. iv. p. 153.
+ The Defence of the American Constitutions. London, 1794, 3 vols.
I “Coloro che ordinano una Republica debbono dare luogo a tre qualità de uomini, che sono in tutte le città, cioè primi, mezzani, ed ultimi.”—Macchiavelli's Works, vol. v. p. 246. [Dare luogo, "assign a place to,” not "gratify."]
§ Vol. ii. p. 242.
In several parts of his work he points to the existence in the United States, in his time, of these several elements, “even in the northern States (especially in Massachusetts), as well as in the middle and southern;" and if he had any fears for the future, it was that “the natural and artificial aristocratical body in every State "would become too powerful.* He considers, however, that they are sufficiently kept in check by the arraugements of the Constitution, which were, in his opinion, as nearly similar to our own as circumstances permitted, though not so much so as he desired. Upon our own Constitution he pronounces this eulogy :
“I contend that the English Constitution is, in theory, the most stupendous fabric of human invention, both for the adjustment of the balance, and the prevention of its vibrations, and that the Americans ought to be applauded instead of censured for imitating it as far as they have. Not the formation of languages, not the whole art of navigation and ship-building, does more honour to the human understanding than this system of Government. The Americans have not indeed imitated it in giving a negative upon their Legislature to the Executive power; in this respect their balances are incomplete, very much tó my mortification."
The want of these due adjustments of the balance of power in a State must, he says, lead to continual changes and fluctuations. “The only way to prevent these evils is to establish the several classes and ordinances of the commonwealth in such a manner that they may support themselves; and that they will always be able to do, when each rank has its due share of the administration, when every one knows his proper sphere of action, and whom he can
* Vol. i. p. 371; vol. iii. p. 124.
+ Vol. i. p. 70.
confide in; and, lastly, when no one has any occasion to wish for a change of Government, either because his ambition is not thoroughly gratified, or that he does not think himself sufficiently secure under such an administration."*
NOTE III. (TO CHAPTER IX.)
“ A Constitution based upon extreme opinions leads infallibly to despotism.”
So spoke Niebuhr,t in accordance with all authorities who have dealt with the great question of political government in a truthful and impartial spirit, and on due acquaintance with the lessons of history.
"The tyranny of the majority” is the danger ever impending in free governments, in proportion as they approach to pure democracies.
This danger was present to the minds of the framers of the Constitution of the United States, and led them to bend their most earnest thoughts to devise the means by which “the superior force of an interested and overbearing majority" might be prevented from disregarding the interests, and violating the rights of the minority. I
Whatever may be the case up to this time with regard to the working of the general Government and Constitution of the United States, it is indisputable that in the individual States the complaints are frequent of the exercise of this species of tyranny by the majority which, for the
* Vol. ii. p. 250. + Life and Letters of Niebuhr, vol. iii. p. 119. London, 1852. # Federalist, No. 10.
time being, may wield the powers of the State Government.
Mr. Justice Kent argues strongly against the sudden changes in legislation in the individual States, which the alternate succession of opposite parties to power brings with it, each supported, perhaps, only by narrow majorities, and holding office but for a short period. He says : *~
“A mutable legislation is attended with a formidable train of mischiefs to the community. It weakens the Government, and increases the intricacy of the laws, hurts credit, lessens the value of property, and it is an infirmity very incident to republican establishments, and has been a constant source of anxiety and concern to their most enlightened admirers. A disposition to multiply and change
spur of the occasion, and to be making constant and restless experiments with the statute code, seems to be the natural disease of popular assemblies.”
And he commends the new Constitution of Rhode Island, adopted in 1843, for its tendency to prevent those evils.
“ The Constitution of Rhode Island, which was organised and went into operation in 1843, has constituted the Senate of that State upon conservative principles, while the House of Representatives is constructed upon
the basis of population, giving to each city and town a representation in a ratio to its number of inhabitants. The Senate is composed of only one member from each city and town, so that the legislative power cannot be wielded by overwhelming numbers in a few great manufacturing towns or cities, to the oppression of the agricultural towns. It is a salutary and provident check to the tyranny of majorities over minorities.”+
* Vol. i, of his Commentaries, p. 227. † Vol. i. p. 227, note.