North America — Volume 2

by Anthony Trollope

If I follow Mr. Binney's argument, it amounts to so much. But it seems to me that Mr. Binney is wrong in his premises, and wrong in his conclusion. The article of the constitution in question does not define the conditions under which the privilege of the writ shall be suspended. It simply states that this privilege shall never be suspended, except under certain conditions. It shall not be suspended unless when the public safety may require such suspension on account of rebellion or invasion. Rebellion or invasion is not necessarily to produce such suspension. There is indeed no naked matter of fact to guide either President or Congress in the matter, and therefore I say that Mr. Binney is wrong in his premises. Rebellion or invasion might occur twenty times over, and might even endanger the public safety, without justifying the suspension of the privilege of the writ under the constitution. I say also that Mr. Binney is wrong in his conclusion. The public safety must require the suspension before the suspension can be justified, and such requirement must be a matter for judgment, and for the exercise of discretion. Whether or no there shall be any suspension is a matter for deliberation,—not one simply for executive action, as though it were already ordered. There is no matter-of-fact conclusion from facts. Should invasion or rebellion occur, and should the public safety, in consequence of such rebellion or invasion, require the suspension of the privilege of the writ, then, and only then, may the privilege be suspended. But to whom is the power, or rather the duty, of exercising this discretion delegated? Mr. Binney says that "there is no express delegation of the power in the constitution." I maintain that Mr. Binney is again wrong, and that the constitution does expressly delegate the power, not to the President, but to Congress. This is done so clearly, to my mind, that I cannot understand the misunderstanding which has existed in the States upon the subject. The first article of the constitution treats "of the legislature." The second article treats "of the executive." The third treats "of the judiciary." After that there are certain "miscellaneous articles," so called. The eighth section of the first article gives, as I have said before, a list of things which the legislature or Congress shall do. The ninth section gives a list of things which the legislature or Congress shall not do. The second item in this list is the prohibition of any suspension of the privilege of the writ of habeas corpus, except under certain circumstances. This prohibition is therefore expressly placed upon Congress, and this prohibition contains the only authority under which the privilege can be constitutionally suspended. Then comes the article on the executive, which defines the powers that the President shall exercise. In that article there is no word referring to the suspension of the privilege of the writ. He that runs may read.

I say, therefore, that Mr. Lincoln's Government has committed a breach of the constitution in taking upon itself to suspend the privilege;—a breach against the letter of the constitution. It has assumed a power which the constitution has not given it,—which, indeed, the constitution, by placing it in the hands of another body, has manifestly declined to put into the hands of the executive; and it has also committed a breach against the spirit of the constitution. The chief purport of the constitution is to guard the liberties of the people, and to confide to a deliberative body the consideration of all circumstances by which those liberties may be affected. The President shall command the army; but Congress shall raise and support the army. Congress shall declare war. Congress shall coin money. Congress, by one of its bodies, shall sanction treaties. Congress shall establish such law courts as are not established by the constitution. Under no circumstances is the President to decree what shall be done. But he is to do those things which the constitution has decreed or which Congress shall decree. It is monstrous to suppose that power over the privilege of the writ of habeas corpus would, among such a people, and under such a constitution, be given without limit to the chief officer, the only condition being that there should be some rebellion. Such rebellion might be in Utah territory; or some trouble in the uttermost bounds of Texas would suffice. Any invasion, such as an inroad by the savages of Old Mexico upon New Mexico, would justify an arbitrary President in robbing all the people of all the States of their liberties! A squabble on the borders of Canada would put such a power into the hands of the President for four years; or the presence of an English frigate in the St. Juan channel might be held to do so. I say that such a theory is monstrous.

And the effect of this breach of the constitution at the present day has been very disastrous. It has taught those who have not been close observers of the American struggle to believe that, after all, the Americans are indifferent as to their liberties. Such pranks have been played before high heaven by men utterly unfitted for the use of great power, as have scared all the nations. Mr. Lincoln, the President by whom this unconstitutional act has been done, apparently delegated his assumed authority to his minister, Mr. Seward. Mr. Seward has revelled in the privilege of unrestrained arrests, and has locked men up with reason and without. He has instituted passports and surveillance; and placed himself at the head of an omnipresent police system with all the gusto of a Fouché, though luckily without a Fouché's craft or cunning. The time will probably come when Mr. Seward must pay for this,—not with his life or liberty, but with his reputation and political name. But in the mean time his lettres de cachet have run everywhere through the States. The pranks which he played were absurd, and the arrests which he made were grievous. After a while, when it became manifest that Mr. Seward had not found a way to success, when it was seen that he had inaugurated no great mode of putting down rebellion, he apparently lost his power in the cabinet. The arrests ceased, the passports were discontinued, and the prison-doors were gradually opened. Mr. Seward was deposed, not from the cabinet, but from the premiership of the cabinet. The suspension of the privilege of the writ of habeas corpus was not countermanded, but the operation of the suspension was allowed to become less and less onerous; and now, in April, 1862, within a year of the commencement of the suspension, it has, I think, nearly died out. The object in hand now is rather that of getting rid of political prisoners, than of taking others.

This assumption by the government of an unconstitutional power has, as I have said, taught many lookers-on to think that the Americans are indifferent to their liberties. I myself do not believe that such a conclusion would be just. During the present crisis the strong feeling of the people—that feeling which for the moment has been dominant—has been one in favour of the government as against rebellion. There has been a passionate resolution to support the nationality of the nation. Men have felt that they must make individual sacrifices, and that such sacrifices must include a temporary suspension of some of their constitutional rights. But I think that this temporary suspension is already regarded with jealous eyes;—with an increasing jealousy which will have created a reaction against such policy as that which Mr. Seward has attempted, long before the close of Mr. Lincoln's Presidency. I know that it is wrong in a writer to commit himself to prophecies, but I find it impossible to write upon this subject without doing so. As I must express a surmise on this subject, I venture to prophesy that the Americans of the States will soon show that they are not indifferent to the suspension of the privilege of the writ of habeas corpus. On that matter of the illegality of the suspension by the President I feel in my own mind that there is no doubt.

The second article of the constitution treats of the executive, and is very short. It places the whole executive power in the hands of the President, and explains with more detail the mode in which the President shall be chosen, than the manner after which the duties shall be performed. The first section states that the executive shall be vested in a President, who shall hold his office for four years. With him shall be chosen a Vice-President. I may here explain that the Vice-President, as such, has no power either political or administrative. He is, ex officio, the speaker of the Senate; and should the President die, or be by other cause rendered unable to act as President, the Vice-President becomes President either for the remainder of the Presidential term or for the period of the President's temporary absence. Twice since the constitution was written, the President has died and the Vice-President has taken his place. No President has vacated his position, even for a period, through any cause other than death.

Then come the rules under which the President and Vice-President shall be elected,—with reference to which there has been an amendment of the constitution subsequent to the fourth presidential election. This was found to be necessary by the circumstances of the contest between John Adams, Thomas Jefferson, and Aaron Burr. It was then found that the complications in the method of election created by the original clause were all but unendurable, and the constitution was amended.

I will not describe in detail the present mode of election, as the doing so would be tedious and unnecessary. Two facts I wish, however, to make specially noticeable and clear. The first is, that the President of the United States is now chosen by universal suffrage; and the second is, that the constitution expressly intended that the President should not be chosen by universal suffrage, but by a body of men who should enjoy the confidence and fairly represent the will of the people. The framers of the constitution intended so to write the words, that the people themselves should have no more immediate concern in the nomination of the President than in that of the Senate. They intended to provide that the election should be made in a manner which may be described as thoroughly conservative. Those words, however, have been inefficient for their purpose. They have not been violated. But the spirit has been violated, while the words have been held sacred,—and the Presidential elections are now conducted on the widest principles of universal suffrage. They are essentially democratic.

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 favour 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 mouthpiece 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 favour, 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.