Such are the executive powers of the Senate; and it is, I think, remarkable that the Senate has always used these powers with extreme moderation. It has never shown a factious inclination to hinder Government by unnecessary interference, or a disposition to clip the President's wings by putting itself altogether at variance with him. I am not quite sure whether some fault may not have lain on the other side; whether the Senate may not have been somewhat slack in exercising the protective privileges given to it by the constitution. And here I cannot but remark how great is the deference paid to all governors and edicts of Government throughout the United States. One would have been disposed to think that such a feeling would be stronger in an old country such as Great Britain than in a young country such as the States. But I think that it is not so. There is less disposition to question the action of government either at Washington or at New York, than there is in London. Men in America seem to be content when they have voted in their governors, and to feel that for them all political action is over until the time shall come for voting for others. And this feeling, which seems to prevail among the people, prevails also in both Houses of Congress. Bitter denunciations against the President's policy or the President's ministers are seldom heard. Speeches are not often made with the object of impeding the action of Government. That so small and so grave a body as the Senate should abstain from factious opposition to the Government when employed on executive functions was perhaps to be expected. It is of course well that it should be so. I confess, however, that it has appeared to me that the Senate has not used the power placed in its hands as freely as the constitution has intended. But I look at the matter as an Englishman, and as an Englishman I can endure no government action which is not immediately subject to Parliamentary control.
Such are the governing powers of the United States. I think it will be seen that they are much more limited in their scope of action than with us; but within that scope of action much more independent and self-sufficient. And, in addition to this, those who exercise power in the United States are not only free from immediate responsibility, but are not made subject to the hope or fear of future judgment. Success will bring no award, and failure no punishment. I am not aware that any political delinquency has ever yet brought down retribution on the head of the offender in the United States, or that any great deed has been held as entitling the doer of it to his country's gratitude. Titles of nobility they have none; pensions they never give; and political disgrace is unknown. The line of politics would seem to be cold and unalluring. It is cold;—and would be unalluring, were it not that as a profession it is profitable. In much of this I expect that a change will gradually take place. The theory has been that public affairs should be in the hands of little men. The theory was intelligible while the public affairs were small; but they are small no longer, and that theory, I fancy, will have to alter itself. Great men are needed for the government, and in order to produce great men a career of greatness must be opened to them. I can see no reason why the career and the men should not be forthcoming.
CHAPTER XI.
THE LAW COURTS AND LAWYERS
OF THE UNITED STATES.
I do not propose to make any attempt to explain in detail the practices and rules of the American Courts of Law. No one but a lawyer should trust himself with such a task, and no lawyer would be enabled to do so in the few pages which I shall here devote to the subject. My present object is to explain, as far as I may be able to do so, the existing political position of the country. As this must depend more or less upon the power vested in the hands of the judges, and upon the tenure by which those judges hold their offices, I shall endeavour to describe the circumstances of the position in which the American judges are placed; the mode in which they are appointed; the difference which exists between the national judges and the State judges; and the extent to which they are or are not held in high esteem by the general public whom they serve.
It will, I think, be acknowledged that this last matter is one of almost paramount importance to the welfare of a country. At home in England we do not realize the importance to us in a political as well as social view of the dignity and purity of our judges, because we take from them all that dignity and purity can give as a matter of course. The honesty of our bench is to us almost as the honesty of heaven. No one dreams that it can be questioned or become questionable, and therefore there are but few who are thankful for its blessings. Few Englishmen care to know much about their own courts of law, or are even aware that the judges are the protectors of their liberties and property. There are the men, honoured on all sides, trusted by every one, removed above temptation, holding positions which are coveted by all lawyers. That it is so is enough for us; and as the good thence derived comes to us so easily, we forget to remember that we might possibly be without it. The law courts of the States have much in their simplicity and the general intelligence of their arrangements to recommend them. In all ordinary causes justice is done with economy, with expedition, and I believe with precision. But they strike an Englishman at once as being deficient in splendour and dignity, as wanting that reverence which we think should be paid to words falling from the bench, and as being in danger as to that purity, without which a judge becomes a curse among a people, a chief of thieves, and an arch-minister of the Evil One. I say as being in danger;—not that I mean to hint that such want of purity has been shown, or that I wish it to be believed that judges with itching palms do sit upon the American bench; but because the present political tendency of the State arrangements threatens to produce such danger. We in England trust implicitly in our judges,—not because they are Englishmen, but because they are Englishmen carefully selected for their high positions. We should soon distrust them if they were elected by universal suffrage from all the barristers and attorneys practising in the different courts; and so elected only for a period of years, as is the case with reference to many of the State judges in America. Such a mode of appointment would, in our estimation, at once rob them of their prestige. And our distrust would not be diminished if the pay accorded to the work were so small that no lawyer in good practice could afford to accept the situation. When we look at a judge in court, venerable beneath his wig and adorned with his ermine, we do not admit to ourselves that that high officer is honest because he is placed above temptation by the magnitude of his salary. We do not suspect that he, as an individual, would accept bribes and favour suitors if he were in want of money. But, still, we know as a fact that an honest man, like any other good article, must be paid for at a high price. Judges and bishops expect those rewards which all men win who rise to the highest steps on the ladder of their profession. And the better they are paid, within measure, the better they will be as judges and bishops. Now, the judges in America are not well paid, and the best lawyers cannot afford to sit upon the bench.
With us the practice of the law and the judicature of our law courts are divided. We have Chancery barristers and Common Law barristers; and we have Chancery Courts and Courts of Common Law. In the States there is no such division. It prevails neither in the national or federal courts of the United States, nor in the courts of any of the separate States. The code of laws used by the Americans is taken almost entirely from our English laws,—or rather, I should say, the federal code used by the nation is so taken, and also the various codes of the different States,—as each State takes whatever laws it may think fit to adopt. Even the precedents of our courts are held as precedents in the American courts, unless they chance to jar against other decisions given specially in their own courts with reference to cases of their own. In this respect the founders of the American law proceedings have shown a conservation bias and a predilection for English written and traditional law, which are much at variance with that general democratic passion for change by which we generally presume the Americans to have been actuated at their revolution. But though they have kept our laws, and still respect our reading of those laws, they have greatly altered and simplified our practice. Whether a double set of courts for Law and Equity are or are not expedient, either in the one country or in the other, I do not pretend to know. It is, however, the fact that there is no such division in the States.
Moreover there is no division in the legal profession. With us we have barristers and attorneys. In the States the same man is both barrister and attorney; and, which is perhaps in effect more startling, every lawyer is presumed to undertake law cases of every description. The same man makes your will, sells your property, brings an action for you of trespass against your neighbour, defends you when you are accused of murder, recovers for you two-and-sixpence, and pleads for you in an argument of three days' length when you claim to be the sole heir to your grandfather's enormous property. I need not describe how terribly distinct with us is the difference between an attorney and a barrister, or how much further than the poles asunder is the future Lord Chancellor, pleading before the Lords Justices at Lincoln's Inn, from the gentleman who at the Old Bailey is endeavouring to secure the personal liberty of the ruffian who a week or two since walked off with all your silver spoons. In the States no such differences are known. A lawyer there is a lawyer, and is supposed to do for any client any work that a lawyer may be called on to perform. But though this is the theory, and as regards any difference between attorney and barrister is altogether the fact, the assumed practice is not, and cannot be maintained as regards the various branches of a lawyer's work. When the population was smaller, and the law cases were less complicated, the theory and the practice were no doubt alike. As great cities have grown up, and properties large in amount have come under litigation, certain lawyers have found it expedient and practicable to devote themselves to special branches of their profession. But this, even up to the present time, has not been done openly as it were, or with any declaration made by a man as to his own branch of his calling. I believe that no such declaration on his part would be in accordance with the rules of the profession. He takes a partner, however, and thus attains his object;—or more than one partner, and then the business of the house is divided among them according to their individual specialities. One will plead in court, another will give chamber-counsel, and a third will take that lower business which must be done, but which first-rate men hardly like to do.
It will easily be perceived that law in this way will be made cheaper to the litigant. Whether or no that may be an unadulterated advantage, I have my doubts. I fancy that the united professional incomes of all the lawyers in the States would exceed in amount those made in England. In America every man of note seems to be a lawyer, and I am told that any lawyer who will work may make a sure income. If it be so, it would seem that Americans per head pay as much or more for their law as men do in England. It may be answered that they get more law for their money. That may be possible, and even yet they may not be gainers. I have been inclined to think that there is an unnecessarily slow and expensive ceremonial among us in the employment of barristers through a third party; it has seemed that the man of learning, on whose efforts the litigant really depends, is divided off from his client and employer by an unfair barrier, used only to enhance his own dignity and give an unnecessary grandeur to his position. I still think that the fault with us lies in this direction. But I feel that I am less inclined to demand an immediate alteration in our practice than I was before I had seen any of the American courts of law.
It should be generally understood that lawyers are the leading men in the States, and that the governance of the country has been almost entirely in their hands ever since the political life of the nation became full and strong. All public business of importance falls naturally into their hands, as with us it falls into the hands of men of settled wealth and landed property. Indeed, the fact on which I insist is much more clear and defined in the States than it is with us. In England the lawyers also obtain no inconsiderable share of political and municipal power. The latter is perhaps more in the hands of merchants and men in trade than of any other class; and even the highest seats of political greatness are more open with us to the world at large than they seem to be in the States to any that are not lawyers. Since the days of Washington every President of the United States has, I think, been a lawyer, excepting General Taylor. Other Presidents have been generals, but then they have also been lawyers. General Jackson was a successful lawyer. Almost all the leading politicians of the present day are lawyers. Seward, Cameron, Welles, Stanton, Chase, Sumner, Crittenden, Harris, Fessenden, are all lawyers. Webster, Clay, Calhoun, and Cass were lawyers. Hamilton and Jay were lawyers. Any man with an ambition to enter upon public life becomes a lawyer as a matter of course. It seems as though a study and practice of the law were necessary ingredients in a man's preparation for political life. I have no doubt that a very large proportion of both Houses of legislature would be found to consist of lawyers. I do not remember that I know of the circumstance of more than one senator who is not a lawyer. Lawyers form the ruling class in America as the landowners do with us. With us that ruling class is the wealthiest class; but this is not so in the States. It might be wished that it were so.
The great and ever-present difference between the national or federal affairs of the United States government, and the affairs of the government of each individual State should be borne in mind at all times by those who desire to understand the political position of the States. Till this be realized no one can have any correct idea of the bearings of politics in that country. As a matter of course we in England have been inclined to regard the Government and Congress of Washington as paramount throughout the States, in the same way that the Government of Downing Street and the Parliament of Westminster are paramount through the British isles. Such a mistake is natural; but not the less would it be a fatal bar to any correct understanding of the constitution of the United States. The national and State governments are independent of each other, and so also are the national and State tribunals. Each of these separate tribunals has its own judicature, its own judges, its own courts, and its own functions. Nor can the supreme tribunal at Washington exercise any authority over the proceedings of the Courts in the different States, or influence the decisions of their judges. For not only are the national judges and the State judges independent of each other; but the laws in accordance with which they are bound to act, may be essentially different. The two tribunals, those of the nation and of the State, are independent and final in their several spheres. On a matter of State jurisprudence no appeal lies from the supreme tribunal of New York or Massachusetts to the supreme tribunal of the nation at Washington.
The national tribunals are of two classes. First, there is the Supreme Court specially ordained by the constitution. And then there are such inferior courts as Congress may from time to time see fit to establish. Congress has no power to abolish the Supreme Court, or to erect another tribunal superior to it. This court sits at Washington, and is a final court of appeal from the inferior national courts of the federal empire. A system of inferior courts, inaugurated by Congress, has existed for about sixty years. Each State for purposes of national jurisprudence is constituted as a district; some few large States, such as New York, Pennsylvania, and Illinois, being divided into two districts. Each district has one district court presided over by one judge. National causes in general, both civil and criminal, are commenced in these district courts, and those involving only small amounts are ended there. Above these district courts are the national circuit courts, the districts or States having been grouped into circuits as the counties are grouped with us. To each of these circuits is assigned one of the judges of the Supreme Court of Washington, who is the ex-officio judge of that circuit, and who therefore travels as do our Common Law judges. In each district he sits with the judge of that district, and they two together form the circuit court. Appeals from the district court lie to the circuit court in cases over a certain amount, and also in certain criminal cases. It follows therefore that appeals lie from one judge to the same judge when sitting with another,—an arrangement which would seem to be fraught with some inconvenience. Certain causes, both civil and criminal, are commenced in the circuit courts. From the circuit courts the appeal lies to the Supreme Court at Washington; but such appeal beyond the circuit court is not allowed in cases which are of small magnitude or which do not involve principles of importance. If there be a division of opinion in the circuit court the case goes to the Supreme Court;—from whence it might be inferred that all cases brought from the district court to the circuit court would be sent on to the Supreme Court, unless the circuit judge agreed with the district judge; for the district judge having given his judgment in the inferior court, would probably adhere to it in the superior court. No appeal lies to the Supreme Court at Washington in criminal cases.
All questions that concern more than one State, or that are litigated between citizens of different States, or which are international in their bearing, come before the national judges. All cases in which foreigners are concerned, or the rights of foreigners, are brought or may be brought into the national courts. So also are all causes affecting the Union itself, or which are governed by the laws of Congress and not by the laws of any individual State. All questions of Admiralty law and maritime jurisdiction, and cases affecting ambassadors or consuls, are there tried. Matters relating to the Post-office, to the Customs, the collection of national taxes, to patents, to the army and navy, and to the mint, are tried in the national courts. The theory is that the national tribunals shall expound and administer the national laws and treaties, protect national offices and national rights; and that foreigners and citizens of other States shall not be required to submit to the decisions of the State tribunals;—in fact, that national tribunals shall take cognizance of all matters as to which the general government of the nation is responsible. In most of such cases the national tribunals have exclusive jurisdiction. In others it is optional with the plaintiff to select his tribunal. It is then optional with the defendant, if brought into a State court, to remain there or to remove his cause into the national tribunal. The principle is, that either at the beginning, or ultimately, such questions shall or may be decided by the national tribunals. If in any suit properly cognizable in a State court the decision should turn on a clause in the constitution, or on a law of the United States, or on the act of a national offence, or on the validity of a national act, an appeal lies to the Supreme Court of the United States and to its officers. The object has been to give to the national tribunals of the nation full cognizance of its own laws, treaties, and congressional acts.
The judges of all the national tribunals, of whatever grade or rank, hold their offices for life, and are removable only on impeachment. They are not even removable on an address of Congress; thus holding on a firmer tenure even than our own judges, who may, I believe, be moved on an address by Parliament. The judges in America are not entitled to any pension or retiring allowances; and as there is not, as regards the judges of the national courts, any proviso that they shall cease to sit after a certain age, they are, in fact, immoveable whatever may be their infirmities. Their position in this respect is not good, seeing that their salaries will hardly admit of their making adequate provision for the evening of life. The salary of the Chief Justice of the United States is only £1300 per annum. All judges of the national courts of whatever rank are appointed by the President, but their appointments must be confirmed by the Senate. This proviso, however, gives to the Senate practically but little power, and is rarely used in opposition to the will of the President. If the President name one candidate, who on political grounds is distasteful to a majority of the Senate, it is not probable that a second nomination made by him will be more satisfactory. This seems now to be understood, and the nomination of the cabinet ministers and of the judges, as made by the President, are seldom set aside or interfered with by the Senate, unless on grounds of purely personal objection.
The position of the national judges as to their appointments and mode of tenure is very different from that of the State judges, to whom in a few lines I shall more specially allude. This should, I think, be specially noticed by Englishmen when criticising the doings of the American courts. I have observed statements made to the effect that decisions given by American judges as to international or maritime affairs affecting English interests could not be trusted, because the judges so giving them would have been elected by popular vote, and would be dependent on the popular voice for reappointment. This is not so. Judges are appointed by popular vote in very many of the States. But all matters affecting shipping, and all questions touching foreigners are tried in the national courts before judges who have been appointed for life. I should not myself have had any fear with reference to the ultimate decision in the affair of Slidell and Mason had the "Trent" been carried into New York. I would, however, by no means say so much had the cause been one for trial before the tribunals of the State of New York.
I have been told that we in England have occasionally fallen into the error of attributing to the Supreme Court at Washington a quasi political power which it does not possess. This court can give no opinion to any department of the Government, nor can it decide upon or influence any subject that has not come before it as a regularly litigated case in law. Though especially founded by the constitution, it has no peculiar power under the constitution, and stands in no peculiar relation either to that or to Acts of Congress. It has no other power to decide on the constitutional legality of an act of Congress or an act of a State legislature or of a public officer than every court, State and national, high and low, possesses and is bound to exercise. It is simply the national court of last appeal.
In the different States such tribunals have been established as each State by its constitution and legislation has seen fit to adopt. The States are entirely free on this point. The usual course is to have one Supreme Court, sometimes called by that name, sometimes the Court of Appeals, and sometimes the Court of Errors. Then they have such especial courts as their convenience may dictate. The State jurisprudence includes all causes not expressly or by necessary implication secured to the national courts. The tribunals of the States have exclusive control over domestic relations, religion, education, the tenure and descent of land, the inheritance of property, police regulations, municipal economy, and all matters of internal trade. In this category of course come the relations of husband and wife, parent and child, master and servant, owner and slave, guardian and ward, tradesman and apprentice. So also do all police and criminal regulations not external in their character,—highways, railroads, canals, schools, colleges, the relief of paupers, and those thousand other affairs of the world by which men are daily surrounded in their own homes and their own districts. As to such subjects Congress can make no law, and over them Congress and the national tribunals have no jurisdiction. Congress cannot say that a man shall be hung for murder in New York; nor if a man be condemned to be hung in New York can the President pardon him. The legislature of New York must say whether or no hanging shall be the punishment adjudged to murder in that State; and the Governor of the State of New York must pronounce the man's pardon,—if it be that he is to be pardoned. But Congress must decide whether or no a man shall be hung for murder committed on the high seas, or in the national forts or arsenals; and in such a case it is for the President to give or to refuse the pardon.
The judges of the States are appointed as the constitution or the laws of each State may direct in that matter. The appointments, I think, in all the old States were formerly vested in the Governor. In some States such is still the case. In some, if I am not mistaken, the nomination is now made, directly, by the legislature. But in most of the States the power of appointing has been claimed by the people, and the judges are voted in by popular election, just as the President of the Union and the Governors of the different States are voted in. There has for some years been a growing tendency in this direction, and the people in most of the States have claimed the power;—or rather the power has been given to the people by politicians who have wished to get into their hands in this way the patronage of the courts. But now, at the present moment, there is arising a strong feeling of the inexpediency of appointing judges in such a manner. An antidemocratic bias is taking possession of men's minds, causing a reaction against that tendency to universal suffrage in everything which prevailed before the war began. As to this matter of the mode of appointing judges, I have heard but one opinion expressed; and I am inclined to think that a change will be made in one State after another, as the constitutions of the different States are revised. Such revisions take place generally at periods of about twenty-five years' duration. If, therefore, it be acknowledged that the system be bad, the error can be soon corrected.
Nor is this mode of appointment the only evil that has been adopted in the State judicatures. The judges in most of the States are not appointed for life, nor even during good behaviour. They enter their places for a certain term of years, varying from fifteen down, I believe, to seven. I do not know whether any are appointed for a term of less than seven years. When they go out they have no pensions; and as a lawyer who has been on the bench for seven years can hardly recall his practice, and find himself at once in receipt of his old professional income, it may easily be imagined how great will be the judge's anxiety to retain his position on the bench. This he can do only by the universal suffrages of the people, by political popularity, and a general standing of that nature which enables a man to come forth as the favourite candidate of the lower orders. This may or may not be well when the place sought for is one of political power,—when the duties required are political in all their bearings. But no one can think it well when the place sought for is a judge's seat on the bench;—when the duties required are solely judicial. Whatever hitherto may have been the conduct of the judges in the courts of the different States, whether or no impurity has yet crept in, and the sanctity of justice has yet been outraged, no one can doubt the tendency of such an arrangement. At present even a few visits to the courts constituted in this manner will convince an observer that the judges on the bench are rather inferior than superior to the lawyers who practise before them. The manner of address, the tone of voice, the lack of dignity in the judge, and the assumption by the lawyer before him of a higher authority than his, all tell this tale. And then the judges in these courts are not paid at a rate which will secure the services of the best men. They vary in the different States, running from about £600 to about £1000 per annum. But a successful lawyer practising in the courts in which these judges sit, not unfrequently earns £3000 a year. A professional income of £2000 a year is not considered very high. When the different conditions of the bench are considered, when it is remembered that the judge may lose his place after a short term of years, and that during that short term of years he receives a payment much less than that earned by his successful professional brethren, it can hardly be expected that first-rate judges should be found. The result is seen daily in society. You meet Judge This and Judge That, not knowing whether they are ex-judges or in-judges; but you soon learn that your friends do not hold any very high social position on account of their forensic dignity.
It is, perhaps, but just to add that in Massachusetts, which I cannot but regard as in many respects the noblest of the States, the judges are appointed by the Governor, and are appointed for life.
CHAPTER XII.
THE FINANCIAL POSITION.
The Americans are proud of much that they have done in this war, and indeed much has been done which may justify pride; but of nothing are they so proud as of the noble dimensions and quick growth of their Government debt. That Mr. Secretary Chase, the American Chancellor of the Exchequer, participates in this feeling I will not venture to say; but if he do not, he is well nigh the only man in the States who does not do so. The amount of expenditure has been a subject of almost national pride, and the two million of dollars a day which has been roughly put down as the average cost of the war, has always been mentioned by northern men in a tone of triumph. This feeling is, I think, intelligible; and although we cannot allude to it without a certain amount of inward sarcasm,—a little gentle laughing in the sleeve, at the nature of this national joy, I am not prepared to say that it is altogether ridiculous. If the country be found able and willing to pay the bill, this triumph in the amount of the cost will hereafter be regarded as having been anything but ridiculous. In private life an individual will occasionally be known to lavish his whole fortune on the accomplishment of an object which he conceives to be necessary to his honour. If the object be in itself good, and if the money be really paid, we do not laugh at such a man for the sacrifices which he makes.
For myself, I think that the object of the northern States in this war has been good. I think that they could not have avoided the war without dishonour, and that it was incumbent on them to make themselves the arbiters of the future position of the South, whether that future position shall or shall not be one of secession. This they could only do by fighting. Had they acceded to secession without a civil war, they would have been regarded throughout Europe as having shown themselves inferior to the South, and would for many years to come have lost that prestige which their spirit and energy had undoubtedly won for them; and in their own country such submission on their part would have practically given to the South the power of drawing the line of division between the two new countries. That line, so drawn, would have given Virginia, Maryland, Kentucky, and Missouri to the southern Republic. The great effect of the war to the North will be, that the northern men will draw the line of secession, if any such line be drawn. I still think that such line will ultimately be drawn, and that the southern States will be allowed to secede. But if it be so, Virginia, Maryland, Kentucky, and Missouri will not be found among these seceding States; and the line may not improbably be driven south of North Carolina and Tennessee. If this can be so, the object of the war will, I think, hereafter be admitted to have been good. Whatever may be the cost in money of joining the States which I have named to a free-soil northern people, instead of allowing them to be buried in that dismal swamp, which a confederacy of southern slave States will produce, that cost can hardly be too much. At the present moment there exists in England a strong sympathy with the South, produced partly by the unreasonable vituperation with which the North treated our Government at the beginning of the war, and by the capture of Mason and Slidell; partly also by that feeling of good-will which a looker-on at a combat always has for the weaker side. But, although this sympathy does undoubtedly exist, I do not imagine that many Englishmen are of opinion that a confederacy of southern slave States will ever offer to the general civilization of the world very many attractions. It cannot be thought that the South will equal the North in riches, in energy, in education, or general well-being. Such has not been our experience of any slave country; such has not been our experience of any tropical country; and such especially has not been our experience of the southern States of the North American Union. I am no abolitionist; but to me it seems impossible that any Englishman should really advocate the cause of slavery against the cause of free soil. There are the slaves, and I know that they cannot be abolished,—neither they nor their chains; but, for myself, I will not willingly join my lot with theirs. I do not wish to have dealings with the African negro either as a free man or as a slave, if I can avoid them, believing that his employment by me in either capacity would lead to my own degradation.* Such, I think, are the feelings of Englishmen generally on this matter. And if such be the case, will it not be acknowledged that the northern men have done well to fight for a line which shall add five or six States to that Union which will in truth be a union of free men, rather than to that Confederacy which, even if successful, must owe its success to slavery?
*In saying this I fear that I shall be misunderstood, let me use what foot-note or other mode of protestation I may to guard myself. In thus speaking of the African negro, I do not venture to despise the work of God's hands. That He has made the negro, for His own good purposes, as He has the Esquimaux, I am aware. And I am aware that it is my duty, as it is the duty of us all, to see that no injury be done to him, and, if possible, to assist him in his condition. When I declare that I desire no dealings with the negro, I speak of him in the position in which I now find him, either as a free servant or a slave. In either position he impedes the civilization and the progress of the white man. [back]
In considering this matter it must be remembered that the five or six States of which we are speaking are at present slave States, but that, with the exception of Virginia,—of part only of Virginia,—they are not wedded to slavery. But even in Virginia, great as has been the gain which has accrued to that unhappy State from the breeding of slaves for the southern market,—even in Virginia slavery would soon die out if she were divided from the South, and joined to the North. In those other States, in Maryland, in Kentucky, and in Missouri there is no desire to perpetuate the institution. They have been slave States, and as such have resented the rabid abolition of certain northern orators. Had it not been for those orators, and their oratory, the soil of Kentucky would now have been free. Those five or six States are now slave States; but a line of secession drawn south of them will be the line which cuts off slavery from the North. If those States belong to the North when secession shall be accomplished, they will belong to it as free States; but if they belong to the South, they will belong to the South as slave States. If they belong to the North, they will become rich as the North is, and will share in the education of the North. If they belong to the South they will become poor as the South is, and will share in the ignorance of the South. If we presume that secession will be accomplished,—and I for one am of that opinion,—has it not been well that a war should be waged with such an object as this? If those five or six States can be gained, stretching east and west from the Atlantic to the centre of the continent, hundreds of miles beyond the Mississippi, and north and south over four degrees of latitude,—if that extent of continent can be added to the free soil of the northern territory, will not the contest that has done this have been worth any money that can have been spent on it?
So much as to the object to be gained by the money spent on the war! And I think that in estimating the nature of the financial position which the war has produced, it was necessary that we should consider the value of the object which has been in dispute. The object I maintain has been good. Then comes the question whether or no the bill will be fairly paid;—whether they who have spent the money will set about that disagreeable task of settling the account with a true purpose and an honest energy. And this question splits itself into two parts. Will the Americans honestly wish to pay the bill; and if they do so wish, will they have the power to pay it? Again that last question must be once more divided. Will they have the power to pay, as regards the actual possession of the means, and if possessing them, will they have the power of access to those means?
The nation has obtained for itself an evil name for repudiation. We all know that Pennsylvania behaved badly about her money affairs, although she did at last pay her debts. We all know that Mississippi has behaved very badly about her money affairs, and has never paid her debts, nor does she intend to pay them. And, which is worse than this, for it applies to the nation generally and not to individual States, we all know that it was made a matter of boast in the States that in the event of a war with England the enormous amount of property held by Englishmen in the States should be confiscated. That boast was especially made in the mercantile city of New York; and when the matter was discussed it seemed as though no American realized the iniquity of such a threat. It was not apparently understood that such a confiscation on account of a war would be an act of national robbery justified simply by the fact that the power of committing it would be in the hands of the robbers. Confiscation of so large an amount of wealth would be a smart thing, and men did not seem to perceive that any disgrace would attach to it in the eyes of the world at large. I am very anxious not to speak harsh words of the Americans; but when questions arise as to pecuniary arrangements I find myself forced to acknowledge that great precaution is at any rate necessary.
But, nevertheless, I am not sure that we shall be fair if we allow ourselves to argue as to the national purpose in this matter from such individual instances of dishonesty as those which I have mentioned. I do not think it is to be presumed that the United States as a nation will repudiate its debts because two separate States may have been guilty of repudiation. Nor am I disposed to judge of the honesty of the people generally from the dishonest threatenings of New York, made at a moment in which a war with England was considered imminent. I do believe that the nation, as a nation, will be as ready to pay for the war as it has been ready to carry on the war. That "ignorant impatience of taxation," to which it is supposed that we Britons are very subject, has not been a complaint rife among the Americans generally. We, in England, are inclined to believe that hitherto they have known nothing of the merits and demerits of taxation, and have felt none of its annoyances, because their entire national expenditure has been defrayed by light Custom duties; but the levies made in the separate States for State purposes, or chiefly for municipal purposes, have been very heavy. They are, however, collected easily, and, as far as I am aware, without any display of ignorant impatience. Indeed, an American is rarely impatient of any ordained law. Whether he be told to do this, or to pay for that, or to abstain from the other, he does do and pay and abstain without grumbling, provided that he has had a hand in voting for those who made the law and for those who carry out the law. The people generally have, I think, recognized the fact that they will have to put their necks beneath the yoke, as the peoples of other nations have put theirs, and support the weight of a great national debt. When the time comes for the struggle,—for the first uphill heaving against the terrible load which they will henceforth have to drag with them in their career, I think it will be found that they are not ill-inclined to put their shoulders to the work.
Then as to their power of paying the bill! We are told that the wealth of a nation consists in its labour, and that that nation is the most wealthy which can turn out of hand the greatest amount of work. If this be so the American States must form a very wealthy nation, and as such be able to support a very heavy burden. No one, I presume, doubts that that nation which works the most, or works rather to the best effect, is the richest. On this account England is richer than other countries, and is able to bear, almost without the sign of an effort, a burden which would crush any other land. But of this wealth the States own almost as much as Great Britain owns. The population of the northern States is industrious, ambitious of wealth, and capable of work as is our population. It possesses, or is possessed by, that restless longing for labour which creates wealth almost unconsciously. Whether this man be rich or be a bankrupt, whether the bankers of that city fail or make their millions, the creative energies of the American people will not become dull. Idleness is impossible to them, and therefore poverty is impossible. Industry and intellect together will always produce wealth; and neither industry nor intellect is ever wanting to an American. They are the two gifts with which the fairy has endowed him. When she shall have added honesty as a third, the tax-gatherer can desire no better country in which to exercise his calling.
I cannot myself think that all the millions that are being spent would weigh upon the country with much oppression, if the weight were once properly placed upon the muscles that will have to bear it. The difficulty will be in the placing of the weight. It has, I know, been argued that the circumstances under which our national debt has extended itself to its present magnificent dimensions cannot be quoted as parallel to those of the present American debt, because we, while we were creating the debt, were taxing ourselves very heavily, whereas the Americans have gone a-head with the creation of their debt before they have levied a shilling on themselves towards the payment of those expenses for which the debt has been encountered. But this argument, even if it were true in its gist, goes no way towards proving that the Americans will be unable to pay. The population of the present free-soil States is above eighteen millions; that of the States which will probably belong to the Union if secession be accomplished is about twenty-two millions. At a time when our debt had amounted to six hundred millions sterling, we had no population such as that to bear the burden. It may be said that we had more amassed wealth than they have. But I take it that the amassed wealth of any country can go but a very little way in defraying the wants or in paying the debts of a people. We again come back to the old maxim, that the labour of a country is its wealth; and that a country will be rich or poor in accordance with the intellectual industry of its people.
But the argument drawn from that comparison between our own conduct when we were creating our debt, and the conduct of the Americans while they have been creating their debt,—during the twelve months from April 1, 1861, to March 31, 1862, let us say,—is hardly a fair argument. We, at any rate, knew how to tax ourselves,—if only the taxes might be forthcoming. We were already well used to the work; and a minister with a willing House of Commons had all his material ready to his hand. It has not been so in the United States. The difficulty has not been with the people who should pay the taxes, but with the minister and the Congress which did not know how to levy them. Certainly not as yet have those who are now criticising the doings on the other side of the water, a right to say that the American people are unwilling to make personal sacrifices for the carrying out of this war. No sign has as yet been shown of an unwillingness on the part of the people to be taxed. But wherever a sign could be given, it has been given on the other side. The separate States have taxed themselves very heavily for the support of the families of the absent soldiers. The extra allowances made to maimed men, amounting generally to twenty-four shillings a month, have been paid by the States themselves, and have been paid almost with too much alacrity.
I am of opinion that the Americans will show no unwillingness to pay the amount of taxation which must be exacted from them; and I also think that as regards their actual means they will have the power to pay it. But as regards their power of obtaining access to those means, I must confess that I see many difficulties in their way. In the first place they have no financier,—no man who by natural aptitude and by long continued contact with great questions of finance, has enabled himself to handle the money affairs of a nation with a master's hand. In saying this I do not intend to impute any blame to Mr. Chase, the present Secretary at the Treasury. Of his ability to do the work properly, had he received the proper training, I am not able to judge. It is not that Mr. Chase is incapable. He may be capable or incapable. But it is that he has not had the education of a national financier, and that he has no one at his elbow to help him who has had that advantage.
And here we are again brought to that general absence of state craft which has been the result of the American system of government. I am not aware that our Chancellors of the Exchequer have in late years always been great masters of finance; but they have at any rate been among money men and money matters, and have had financiers at their elbows if they have not deserved the name themselves. The very fact that a Chancellor of the Exchequer sits in the House of Commons and is forced in that House to answer all questions on the subject of finance, renders it impossible that he should be ignorant of the rudiments of the science. If you put a white cap on a man's head and place him in a kitchen, he will soon learn to be a cook. But he will never be made a cook by standing in the dining-room and seeing the dishes as they are brought up. The Chancellor of the Exchequer is our cook; and the House of Commons, not the Treasury chambers, is his kitchen. Let the Secretary of the United States Treasury sit in the House of Representatives. He would learn more there by contest with opposing members than he can do by any amount of study in his own chamber.
But the House of Representatives itself has not as yet learned its own lesson with reference to taxation. When I say that the United States are in want of a financier, I do not mean that the deficiency rests entirely with Mr. Chase. This necessity for taxation, and for taxation at so tremendous a rate, has come suddenly, and has found the representatives of the people unprepared for such work. To us, as I conceive, the science of taxation, in which we certainly ought to be great, has come gradually. We have learned by slow lessons what taxes will be productive, under what circumstances they will be most productive, and at what point they will be made unproductive by their own weight. We have learned what taxes may be levied so as to afford funds themselves, without injuring the proceeds of other taxes, and we know what taxes should be eschewed as being specially oppressive to the general industry and injurious to the well-being of the nation. This has come of much practice, and even we, with all our experience, have even got something to learn. But the public men in the States who are now devoting themselves to this matter of taxing the people have, as yet, no such experience. That they have inclination enough for the work is, I think, sufficiently demonstrated by the national tax bill, the wording of which is now before me, and which will have been passed into law before this volume can be published. It contains a list of every taxable article on the earth or under the earth. A more sweeping catalogue of taxation was probably never put forth. The Americans, it has been said by some of us, have shown no disposition to tax themselves for this war; but before the war has as yet been well twelve months in operation, a bill has come out with a list of taxation so oppressive, that it must, as regards many of its items, act against itself and cut its own throat. It will produce terrible fraud in its evasion, and create an army of excise officers who will be as locusts over the face of the country. Taxes are to be laid on articles which I should have said that universal consent had declared to be unfit for taxation. Salt, soap, candles, oil, and other burning fluids, gas, pins, paper, ink, and leather, are to be taxed. It was at first proposed that wheat-flour should be taxed, but that item has, I believe, been struck out of the bill in its passage through the House. All articles manufactured of cotton, wool, silk, worsted, flax, hemp, jute, india-rubber, gutta percha, wood (?), glass, pottery wares, leather, paper, iron, steel, lead, tin, copper, zinc, brass, gold and silver, horn, ivory, bone, bristles, wholly or in part, or of other materials, are to be taxed;—provided always that books, magazines, pamphlets, newspapers, and reviews shall not be regarded as manufactures. It will be said that the amount of taxation to be levied on the immense number of manufactured articles which must be included in this list will be light,—the tax itself being only 3 per cent. ad valorem. But with reference to every article, there will be the necessity of collecting this 3 per cent.! As regards each article that is manufactured, some government official must interfere to appraise its value and to levy the tax. Who shall declare the value of a barrel of wooden nutmegs; or how shall the Excise-officer get his tax from every cobbler's stall in the country? And then tradesmen are to pay licences for their trades,—a confectioner £2, a tallow-chandler £2, a horsedealer £2. Every man whose business it is to sell horses shall be a horsedealer. True. But who shall say whether or no it be a man's business to sell horses? An apothecary £2, a photographer £2, a pedlar £4, £3, £2, or £1, according to his mode of travelling. But if the gross receipts of any of the confectioners, tallow-chandlers, horsedealers, apothecaries, photographers, pedlars, or the like do not exceed £200 a year, then such tradesmen shall not be required to pay for any licence at all. Surely such a proviso can only have been inserted with the express view of creating fraud and ill blood! But the greatest audacity has, I think, been shown in the levying of personal taxes,—such taxes as have been held to be peculiarly disagreeable among us, and have specially brought down upon us the contempt of lightly-taxed people, who, like the Americans, have known nothing of domestic interference. Carriages are to be taxed,—as they are with us. Pianos also are to be taxed, and plate. It is not signified by this clause that such articles shall pay a tax, once for all, while in the maker's hands, which tax would no doubt fall on the future owner of such piano or plate; in such case the owner would pay, but would pay without any personal contact with the tax-gatherer. But every owner of a piano or of plate is to pay annually according to the value of the articles he owns. But perhaps the most audacious of all the proposed taxes is that on watches. Every owner of a watch is to pay 4s. a year for a gold watch and 2s. a year for a silver watch! The American tax-gatherers will not like to be cheated. They will be very keen in searching for watches. But who can say whether they or the carriers of watches will have the best of it in such a hunt. The tax-gatherers will be as hounds ever at work on a cold scent. They will now be hot and angry, and then dull and disheartened. But the carriers of watches who do not choose to pay will generally, one may predict, be able to make their points good.
With such a tax bill,—which I believe came into action on the 1st of May, 1862,—the Americans are not fairly open to the charge of being unwilling to tax themselves. They have avoided none of the irritating annoyances of taxation, as also they have not avoided, or attempted to lighten for themselves, the dead weight of the burden. The dead weight they are right to endure without flinching; but their mode of laying it on their own backs justifies me, I think, in saying that they do not yet know how to obtain access to their own means. But this bill applies simply to matters of excise. As I have said before, Congress, which has hitherto supported the government by custom duties, has also the power of levying excise duties, and now, in its first session since the commencement of the war, has begun to use that power without much hesitation or bashfulness. As regards their taxes levied at the Custom House, the government of the United States has always been inclined to high duties, with the view of protecting the internal trade and manufactures of the country. The amount required for national expenses was easily obtained, and these duties were not regulated, as I think, so much with a view to the amount which might be collected, as to that of the effect which the tax might have in fostering native industry. That, if I understand it, was the meaning of Mr. Morrill's bill, which was passed immediately on the secession of the southern members of Congress, and which instantly enhanced the price of all foreign manufactured goods in the States. But now the desire for protection, simply as protection, has been swallowed up in the acknowledged necessity for revenue; and the only object to be recognized in the arrangement of the custom duties is the collection of the greatest number of dollars. This is fair enough. If the country can at such a crisis raise a better revenue by claiming a shilling a pound on coffee than it can by claiming sixpence, the shilling may be wisely claimed, even though many may thus be prohibited from the use of coffee. But then comes the great question, What duty will really give the greatest product? At what rate shall we tax coffee so as to get at the people's money? If it be so taxed that people won't use it, the tax cuts its own throat. There is some point at which the tax will be most productive; and also there is a point up to which the tax will not operate to the serious injury of the trade. Without the knowledge which should indicate these points, a Chancellor of the Exchequer, with his myrmidons, would be groping in the dark. As far as we can yet see, there is not much of such knowledge either in the Treasury Chambers or the House of Representatives at Washington.
But the greatest difficulty which the States will feel in obtaining access to their own means of taxation, is that which is created by the constitution itself, and to which I alluded when speaking of the taxing powers which the constitution had given to Congress, and those which it had denied to Congress. As to custom duties and excise duties, Congress can do what it pleases, as can the House of Commons. But Congress cannot levy direct taxation according to its own judgment. In those matters of customs and excise, Congress and the Secretary of the Treasury will probably make many blunders; but having the power they will blunder through, and the money will be collected. But direct taxation, in an available shape, is beyond the power of Congress under the existing rule of the constitution. No income-tax, for instance, can be laid on the general incomes of the United States, that shall be universal throughout the States. An income-tax can be levied, but it must be levied in proportion to the representation. It is as though our Chancellor of the Exchequer, in collecting an income-tax, were obliged to demand the same amount of contribution from the town of Chester as from the town of Liverpool, because both Chester and Liverpool return two Members to Parliament. In fitting his tax to the capacity of Chester, he would be forced to allow Liverpool to escape unscathed. No skill in money matters on the part of the Treasury Secretary, and no aptness for finance on the part of the Committee on Ways and Means, can avail here. The constitution must apparently be altered before any serviceable resort can be had to direct taxation. And yet, at such an emergency as that now existing, direct taxation would probably give more ready assistance than can be afforded either by the Customs or the Excise.
It has been stated to me that this difficulty in the way of direct taxation can be overcome without any change in the constitution. Congress could only levy from Rhode Island the same amount of income-tax that it might levy from Iowa; but it will be competent to the legislature of Rhode Island itself to levy what income-tax it may please on itself; and to devote the proceeds to national or federal purposes. Rhode Island may do so; and so may Massachusetts, New York, Connecticut, and the other rich Atlantic States. They may tax themselves according to their riches, while Iowa, Illinois, Wisconsin, and such-like States are taxing themselves according to their poverty. I cannot myself think that it would be well to trust to the generosity of the separate States for the finances needed by the national Government. We should not willingly trust to Yorkshire or Sussex to give us their contributions to the national income, especially if Yorkshire and Sussex had small Houses of Commons of their own, in which that question of giving might be debated. It may be very well for Rhode Island or New York to be patriotic! But what shall be done with any State that declines to evince such patriotism? The legislatures of the different States may be invited to impose a tax of 5 per cent. on all incomes in each State; but what will be done if Pennsylvania, for instance, should decline, or Illinois should hesitate? What if the legislature of Massachusetts should offer 6 per cent., or that of New Jersey decide that 4 per cent. was sufficient? For a while the arrangement might possibly be made to answer the desired purpose. During the first ebullition of high feeling, the different States concerned might possibly vote the amount of taxes required for federal purposes. I fear it would not be so, but we may allow that the chance is on the card. But it is not conceivable that such an arrangement should be continued when, after a year or two, men came to talk over the war with calmer feelings and a more critical judgment. The State legislatures would become inquisitive, opinionative, and probably factious. They would be unwilling to act in so great a matter under the dictation of the federal Congress; and by degrees one, and then another, would decline to give its aid to the central government. However broadly the acknowledgment may have been made, that the levying of direct taxes was necessary for the nation, each State would be tempted to argue that a wrong mode and a wrong rate of levying had been adopted, and words would be forthcoming instead of money. A resort to such a mode of taxation would be a bad security for government Stock.
All matters of taxation, moreover, should be free from any taint of generosity. A man who should attempt to lessen the burdens of his country by gifts of money to its Exchequer would be laying his country under an obligation, for which his country would not thank him. The gifts here would be from States, and not from individuals; but the principle would be the same. I cannot imagine that the United States' Government would be willing to owe its revenue to the good will of different States, or its want of revenue to their caprice. If under such an arrangement the western States were to decline to vote the quota of income-tax or property-tax to which the eastern States had agreed,—and in all probability they would decline,—they would in fact be seceding. They would thus secede from the burdens of their general country; but in such event no one could accuse such States of unconstitutional secession.
It is not easy to ascertain with precision what is the present amount
of debt due by the United States; nor probably has any tolerably
accurate guess been yet given of the amount to which it may be
extended during the present war. A statement made in the House of
Representatives, by Mr. Spaulding, a member of the Committee of Ways
and Means, on the 29th of January last, may perhaps be taken as
giving as trustworthy information as any that can be obtained. I have
changed Mr. Spaulding's figures from dollars into pounds, that they
may be more readily understood by English
readers.