Source: Diman, J. Lewis. The Nation and the Constitution: An Oration Delivered Before the City Authorities and Citizens of Providence, July 4, 1866. Providence: Providence Press Company, 1866. Digitized by Google from the library of Harvard University. Internet Archive.

The Nation and the Constitution

An Oration

Delivered before the City Authorities and Citizens of Providence July 4, 1866 by J. Lewis Diman

Providence: Providence Press Company, Printers to the City 1866

The City of Providence

Samuel W. Brown, City Clerk

Resolutions of the City Council

Passed July 9, 1866

Resolved, That the thanks of the City Council be, and they are hereby, tendered to Professor J. Lewis Diman for the able and eloquent Oration delivered by him at the late municipal celebration of the anniversary of American Independence.

Resolved, That the Committee of Arrangements for the Fourth of July Celebration be, and they are hereby, authorized to request of Professor Diman a copy of the Oration delivered by him on that day, and to cause the same to be published in such manner as they may deem expedient for the use of the City Council.

A true copy: Witness, Samuel W. Brown, City Clerk

Oration

Who among us, fellow-citizens, can have forgotten how much this festival, in former years, was graced by the presence of revolutionary heroes, whose venerable aspect was itself a benediction, as with mute eloquence, more expressive than the living voice, they reminded us of the great price with which our liberties were purchased. Long as they were spared, the conspicuous feature in each procession, we needed nothing to tell us of Bunker Hill, and Saratoga, and Yorktown.

One by one they have passed away. I know not whether, as I speak, the last survives to hear the ringing of bells and the roar of artillery that certify to our ears the constant and indissoluble alliance of Liberty and Union. They have passed away, but their departure has taken nothing from the sacredness of our festival, for we greet today another presence, inspiring the same reverence and gratitude; and when, in all the years to come, we, and our children, and our children's children, gather to these annual rites, the day shall still seem apparelled with the same sacred memories, as we shall say:

“These were the men who flew with Burnside to the Capital; who braved with him the storm at Hatteras; who held with him the bridge at Antietam; who bore with him the bitter anguish at Fredericksburg; who tasted with him the ecstasy of the supreme hour when the serpent’s head was bruised at Richmond.”

Long as these men survive, how can this day return without awakening in all our breasts a devout emotion? Let it be a day, throughout all the land, of glad rejoicing. Let every bell ring its loudest peal; let cannon thunder to cannon from every city and village; let age forget its infirmity, let labor cast aside its burden. But let it also be a day dedicated to a study of the sacred obligations which those sufferings and sacrifices have imposed.

From the triumphal arch that spans our streets, ’76 and ’66 look down upon us.

Through the tremendous struggle which the fortitude and valor of these men have brought to a successful close, we have passed to a higher plane of political experience. Like the patriarch crowned with the power of a new name by his mysterious wrestling with an unseen enemy, we have come from the night of conflict with a new sense of our nationality, with a far profounder appreciation of the meaning of our institutions.

The day that broke over our Peniel saw realized the splendid dream of Milton—

“A noble and puissant nation rousing herself like a strong man after sleep, and shaking her invincible locks.”

We had cast off forever the miserable sophistries which for a time had paralyzed political opinion, and stood erect in the consciousness of assured nationality. The night was indeed dark and terrible through which we passed, but remembering the watchful Providence that sustained us, we too may say, “We have seen God face to face.”

It is, then, no disparagement of the good and wise who have gone before us to claim that we have been brought to a deeper perception of the foundations of our nationality, and to a more correct interpretation of those great ideas which are incorporated into our body politic. There are things which experience alone can teach, and doubly sad would seem our bitter sacrifices should they leave us no compensating lessons.

Against our will the appeal to arms was made, and in the unerring course of that righteous Providence which holds nations no less than men to an account, they that imagined a vain thing were ruled with a rod of iron and dashed in pieces like a potter’s vessel. But in such a political system as ours, the sword can never be the final arbiter. It flashes from its scabbard at the bidding of ideas.

The mutual recognition, by the mass of the people, of fundamental principles of policy is the only safeguard of public peace. “The foundation of government,” said one of the fathers of the Republic, “is some principle or passion in the minds of the people.”

Nations are only larger men, like men endowed with individual life, obeying analogous laws of growth—subject, alas, as the silent gates of Thebes, the tottering columns of the Acropolis, the sunken pavement of the Forum alike testify, to the same decay. And like the individual, the nation comes only in the course of years to know itself, to interpret its deeper tendencies and instincts. Its moral greatness and energy are always proportioned to this self-consciousness.

Americans have been laughed at for their faith in manifest destiny. Like all supreme convictions of the soul, when not viewed in relation to the whole scope of duty, it may prove the pathway to transgression and ruin. But a “sense sublime” of some indissoluble relation to the vast range and purposes of that divine administration which overarches all ages and nations—and whose triumphant issue shines from the serene splendors of the latter day—can alone lift any nation to the level of historic greatness.

The absence of this conviction leaves the annals of the great Oriental monarchies as flat and dry as the Desert of Sahara; its presence renders the three great successive commonwealths—the Hebrew, the Roman, and our own—the noblest growth of time.

Instead, then, of remitting our faith in manifest destiny, we ought to covet an ampler sense of our historic mission. Of necessity absorbed in the unexampled growth of a material civilization, the meaning of our own recorded past has remained hitherto an enigma to us. There has been little in its outward form to awaken interest. It is the history, for the most part, of plain, honest men. It is decorated with none of the illusions of antiquity and romance. No venerable monuments of bygone ages overshadow us with a legendary lore that silently infuses its fascinating lessons. We have lived in the future more than in the past. Not the most hurtful, discordant, contradictory views aroused us to a just appreciation of our annals.

Need I mention, in proof of the slight degree to which the nation has reflected on itself, the fact—known to all—that the first philosophic study of our institutions proceeded from a foreigner? Nor was this fact without momentous consequences; for, great and undeniable as were the merits of De Tocqueville’s book, and far as I would be from detracting anything from its well-deserved repute, yet no one today can doubt that his strange assertion “that the Union was an accident,” and his confident prediction that in case of a collision between the States and the Federal authority the latter must inevitably yield, had a vast and pernicious influence in shaping the public sentiment of England at the outset of our civil conflict.

The conclusions of the fair-minded Frenchman were accepted without dispute, and were the source of those opinions so freely expressed in Parliament and in many public meetings. And had England incurred the deep damnation of the step to which at one time she approached so near—had she recognized as one of the family of nations the Confederacy whose cornerstone was an arrogant denial of what England for years had made her boast—the direful consequences might justly have been traced to this fundamental error respecting the nature of our Federal system which the authority of De Tocqueville had done so much to disseminate.

Such is the vital importance of knowing for ourselves—and making others comprehend—the true foundations of our nationality.

The author of the Palmetto Geography, published during the war for the benefit of Southern youths, who derived the common law from the book of Leviticus, did not in fact shoot wider of the mark than many English writers who have aimed to enlighten their countrymen respecting our institutions. Well read in Thucydides and Aristotle but ignorant of Hamilton and Madison, they have reasoned from the narrow municipal life of the ancient democracies to our essentially original and imperial system.

Misled by names, they have overlooked real distinctions. They have repeated stale aphorisms respecting republican institutions, forgetting—or not caring to remember—that the term republic has been equally applied to:

• the Dutch Confederation, in which dwelt no direct principle of popular liberty;
• Poland, the most oppressive compound the world has ever seen of monarchy and aristocracy;
• the Italian cities of the Middle Ages, which were mere oligarchies;
• and imperial Rome, where the distinguishing feature of American republicanism—the representative system—was never recognized.

Strange to say, the sole English statesman of any note who seems to have seized the fact that there was anything distinctive in our liberties was the leader of the Tory party in the House of Commons, Mr. Disraeli, who termed the United States a “territorial democracy”—an apt designation, provided the immense difference be recognized between an American farmer and a European peasant, one of a class never yet proved capable of local self-government.

We cannot too deeply engrave on our minds the fact that our political system is an essentially new experiment in the life of States. The form of government here established has no prototype in any former age. It refuses to conform to the well-known divisions of Aristotle. We seek in vain to explain it by Greek or Roman analogies. It embodies novel political ideas, and can be explained only from analysis of its own interior principles.

For purposes of comparison we may class it, as a recent English writer has done, with the Achaian League, with the Swiss Cantons, with the Seven United Provinces of the Netherlands; but the resemblance is superficial.

Neither in the constitution of our Federal system, nor in the elements out of which the Federal system itself is formed, is there any real analogy. As our democracy is an original and unexampled democracy, so our Federal system is an original and unexampled Federal system. We shall halt and stumble in all our conclusions if we do not reason from this postulate.

Settled for the most part as English colonies, inheriting English maxims and usages, copying to a great extent in the method of our colonial administration English parliamentary forms; above all, bringing with us across the sea the boon of the Common Law, it has been our habit to regard England as the exclusive source of our political existence. Nor has the error been confined to our side of the Atlantic. England has loved to speak of America as an unruly but vigorous offspring. That our institutions are a mere offshoot of theirs has been a favorite opinion, especially with that class of Englishmen who have given us their most hearty sympathy. America, they have repeated, is but another England without her battlemented castles, her ivied manor-houses, her gray cathedrals, her court and her upper class. New York and Philadelphia and Boston are Liverpool and Manchester and Edinburgh. In other words, that famous English middle class, whose characteristics Matthew Arnold has so keenly analyzed, reaches in America its perfect growth.

Without wishing to depreciate the debt we owe to England, I maintain that this theory of the genesis of our political ideas is a radical mistake. We brought much from the mother land—so much that, notwithstanding the mean subserviency to selfish interests that has crept over English politics since the treaty of Utrecht, she is old England still—but the fact cannot be overlooked that into the earliest shaping of our institutions there entered elements not of English growth, elements that were not subordinate and evanescent, but controlling and permanent. We brought from England, it is true, the grand distinguishing feature of modern society, the representative system; but how altered and expanded, from the narrow notions of a privilege conferred by royal grace on certain favored corporations, was the right here so soon asserted as inseparable from every local municipality. In that one step—from a privilege to a right—was involved the immense transition from the middle ages to modern times. The first perpetuated a class; the second proclaimed the existence of a people.

When, in the following century, the colonies contended that representation and taxation were inseparable, though they claimed to be standing on the platform of old English liberty, yet it was evident that they asserted a theory of representation unknown to English law. The clearest judicial mind then living, Lord Mansfield, saw the difference, and in his place in the House of Lords he declared that the claim of the colonies, if grounded in right, went to the whole constitution of the British Empire. As a lawyer, Lord Mansfield’s position was impregnable, for English representation from the beginning was prescriptive—the representation of classes—and to-day England is struggling for what America from the beginning has enjoyed: a true representation of the people.

Nor need we search far for the source of this new character which representative institutions here assumed. The elder Adams, in a letter to the Abbé de Mably in 1782, declares that the characteristic feature of New England institutions, which more than anything else gave an impulse to the Revolution, was the system of town government. But the New England towns were the children of the New England churches; the distinctive characteristics of the civil being derived from the ecclesiastical democracy. If, therefore, we would know whence came the distinctive principles that have moulded the New England character, and which, issuing from New England, have done so much to shape the political institutions of the new world, we must go back—not to the Common Law, not to the writs of Simon de Montfort—but to the mighty dialectics of a French refugee, who, from his asylum amid the Alps, with a zeal consuming as Loyola’s and a logic daring as Rousseau’s, scattered the firebrands of revolution in the disguise of divine decrees. It is a memorable fact that the political institutions of this country thus received their most energetic impulse not from England, but from France; and the abstract, ideal stamp then impressed upon them has not been effaced to the present day.

This abstract, ideal tendency, that so much marks American political ideas as distinguished from the traditional, prescriptive character of English liberty, is shown in the first assertion of that Declaration which has been read to us to-day—an assertion once hastily condemned by a famous New England orator as a “glittering generality,” but which, he should have known, was old as the jurisprudence of the Antonines; affirmed, indeed, by the Roman lawyers as a mere legal maxim, but taken up and expanded by the great French jurisconsults, till a legal rule was clothed with the force and influence of a social principle; and passing from the hands of lawyers to the hands of scholars, became a principle of politics which promises, at the present time, to modify more powerfully than any other the destinies of States. Not, then, to the English, but to the Roman law, do we owe the most characteristic features of our body politic; and our historic mission is not to perpetuate the limited, prescriptive rights that have sprung from the middle age, but to complete the illustrious fabric of Roman liberty, which, unlike the systems reared by the barbarian conquerors of Europe, recognized power not as an estate held for the benefit of the possessors, but as a trust to be exercised for the common good. Whatever may be the analogies between American and English institutions, there is a radical distinction between a system which consists in the perpetual balance of separate estates, and a system based on one undivided sovereignty.

The study of our institutions has been legal rather than historical. The lawyer, I know, may urge that we sacrifice the chief advantage of a written constitution if we do not observe the letter. But in politics, as in religion, the letter often killeth. To the legal training of George Grenville Burke attributed, in great part, that blindness as a statesman which did so much to precipitate the American Revolution. The ship of State can never be safely steered by slaves to precedent. In every country possessing a written constitution there must be, besides, an historic or providential constitution, and nothing can be more certain than that the former will never adequately express the latter. Nay, the written may not only fall short of—it may contradict—the unwritten. The Articles of Confederation, for example, were a written constitution, but they not only did not embody the actual living constitution that had controlled the united action of the colonies; they virtually subverted it. The colonies were less a nation under the Articles of Confederation than they had been while owning a common allegiance to the British Crown. Their inchoate nationality was only marred and defaced by that miserable makeshift, the child of narrow, local jealousies, which served no other purpose than to make them sigh for the unity they had thrown away.

The written Constitution may exist or not. It may be amended or set aside. It is a human work—the attempt of men to give legal expression to a general fact. But the providential constitution must exist. It is the nation’s organic life. It grows with the nation’s growth and strengthens with its strength; and no written constitution can have any worth, or can endure for any time, unless the unwritten infuses itself into it.

“There is a mystery in the soul of State, Which hath an operation more divine Than breath or pen can give expressure to.”

Let me not be understood to detract from the value or authority of a written constitution. Foreigners have wondered why we were willing to make such sacrifices and shed blood so freely for a piece of paper. They little realize the intensity of that inbred reverence for Law which with us amounts almost to a religion. We can never estimate too highly an instrument which is, beyond question, the most refined product of political wisdom the world has ever seen, and the successful establishing of which Lord Brougham himself, in his better days—before a soured and querulous old age had darkened the windows of his mind—declared to be “the most important event in the history of our species.” But the Constitution is not the State.

The maxim is often uttered—and great jurists have given it their endorsement—that ours is a government of laws and not of men. John Adams calls this maxim the very definition of a Republic. When set up as a stay to hasty or illegal action, the maxim is a sound and wholesome one. For it is unquestionably true that, with reference to any private action, the law is sovereign; the organic claims allegiance from the individual will. But the maxim ceases to be true when applied not to one individual, but to the whole body politic. Here, not the law, but the people, is supreme. Not the government, but the State, under God, is sovereign.

“In the political order,” says Mr. Brownson, “the fact precedes the law. The nation holds not from the law, but the law holds from the nation.”

For the public weal the people may adopt rules by which to regulate their action. These rules, until regularly amended or repealed, are the supreme method. Long as they remain in operation, they justly claim of every citizen not obedience simply, but reverence and honor; but to say that the law governs is to confuse the fundamental principles of a free society. “It is certain,” says one of the clearest political reasoners of our day, the late Sir Cornewall Lewis, “that in every sort of government the sovereign power must be legally unlimited; and that every government must be conducted by men.” To surrender this principle would be to exchange the progressive political development of Europe for the torpor of Mohammedan rule. To have first recognized this principle constitutes our distinction as a nation.

Pictures fade away before I would part with that; for not Gettysburg, nor Chattanooga, nor Petersburg, not Hooker fighting above the clouds, nor Farragut lashed to the mast-head, nor Sherman holding his mighty march to the sea that roared and clapped its hands as it sent to the sky the sheen of his terrible banners, was such a spectacle as the calm self-possession of that hour.

With such proofs of national capacity, can we doubt, fellow-citizens, that, with the blessing of Providence, the great problem before us will be solved?—that the nation, guided by the great principles which illuminate her history, will march on without faltering in the path on which the light shineth more and more; that, swayed by the increasing influences of a Christian civilization, recognizing no distinction of color or race, extending to all alike the blessings of liberty and the safeguards of law, the land of our fathers—coming from her baptism of blood, with the dove of divine peace resting upon her—will merit the benediction: “This is the people in which I am well pleased”?

By the mercy of God, while Europe rings with arms, we are left to pursue the nobler arts of peace. Let the victories of war be eclipsed by the grander victories of Justice and Truth.