American Institutions and Their Influence
by
Alexis de Tocqueville et al
Part 4 out of 11
sometimes made a subject of complaint, that in the constitutional
monarchies of Europe the fate of the humbler servants of an
administration depends upon that of the ministers. But in elective
governments this evil is far greater. In a constitutional monarchy
successive ministers are rapidly formed; but as the principal
representative of the executive power does not change, the spirit of
innovation is kept within bounds; the changes which take place are in
the details rather than in the principles of the administrative system;
but to substitute one system for another, as is done in America every
four years by law, is to cause a sort of revolution. As to the
misfortunes which may fall upon individuals in consequence of this state
of things, it must be allowed that the uncertain situation of the public
officers is less fraught with evil consequences in America than
elsewhere. It is so easy to acquire an independent position in the
United States, that the public officer who loses his place may be
deprived of the comforts of life, but not of the means of subsistence.
I remarked at the beginning of this chapter that the dangers of the
elective system applied to the head of the state, are augmented or
decreased by the peculiar circumstances of the people which adopts it.
However the functions of the executive power may be restricted, it must
always exercise a great influence upon the foreign policy of the
country, for a negotiation cannot be opened or successfully carried on
otherwise than by a single agent. The more precarious and the more
perilous the position of a people becomes, the more absolute is the want
of a fixed and consistent external policy, and the more dangerous does
the elective system of the chief magistrate become. The policy of the
Americans in relation to the whole world is exceedingly simple; and it
may almost be said that no country stands in need of them, nor do they
require the co-operation of any other people. Their independence is
never threatened. In their present condition, therefore, the functions
of the executive power are no less limited by circumstances, than by the
laws; and the president may frequently change his line of policy without
involving the state in difficulty or destruction.
Whatever the prerogatives of the executive power may be, the period
which immediately precedes an election, and the moment of its duration,
must always be considered as a national crisis, which is perilous in
proportion to the internal embarrassments and the external dangers of
the country. Few of the nations of Europe could escape the calamities of
anarchy or of conquest, every time they might have to elect a new
sovereign. In America society is so constituted that it can stand
without assistance upon its own basis; nothing is to be feared from the
pressure of external dangers; and the election of the president is a
cause of agitation, but not of ruin.
* * * * *
MODE OF ELECTION.
Skill of the American Legislators shown in the Mode of Election adopted
by them.--Creation of a special electoral Body.--Separate Votes of these
Electors.--Case in which the House of Representatives is called upon to
choose the President.--Results of the twelve Elections which have taken
Place since the Constitution has been established.
Beside the dangers which are inherent in the system, many other
difficulties may arise from the mode of election, which may be obviated
by the precaution of the legislator. When a people met in arms on some
public spot to choose its head, it was exposed to all the chances of
civil war resulting from so martial a mode of proceeding, beside the
dangers of the elective system in itself. The Polish laws, which
subjected the election of the sovereign to the veto of a single
individual, suggested the murder of that individual, or prepared the way
to anarchy.
In the examination of the institutions, and the political as well as the
social condition of the United States, we are struck by the admirable
harmony of the gifts of fortune and the efforts of man. That nation
possessed two of the main causes of internal peace; it was a new
country, but it was inhabited by a people grown old in the exercise of
freedom. America had no hostile neighbors to dread; and the American
legislators, profiting by these favorable circumstances, created a weak
and subordinate executive power, which could without danger be made
elective.
It then only remained for them to choose the least dangerous of the
various modes of election; and the rules which they laid down upon this
point admirably complete the securities which the physical and political
constitution of the country already afforded. Their object was to find
the mode of election which would best express the choice of the people
with the least possible excitement and suspense. It was admitted in the
first place that the _simple_ majority should be decisive; but the
difficulty was to obtain this majority without an interval of delay
which it was most important to avoid. It rarely happens that an
individual can at once collect the majority of the suffrages of a great
people; and this difficulty is enhanced in a republic of confederate
states, where local influences are apt to preponderate. The means by
which it was proposed to obviate this second obstacle was to delegate
the electoral powers of the nation to a body of representatives. The
mode of election rendered a majority more probable; for the fewer the
electors are, the greater is the chance of their coming to a final
decision. It also offered an additional probability of a judicious
choice. It then remained to be decided whether this right of election
was to be intrusted to the legislative body, the habitual representative
assembly of the nation, or whether an electoral assembly should be
formed for the express purpose of proceeding to the nomination of a
president. The Americans chose the latter alternative, from a belief
that the individuals who were returned to make the laws were incompetent
to represent the wishes of the nation in the election of its chief
magistrate; and that as they are chosen for more than a year, the
constituency they represented might have changed its opinion in that
time. It was thought that if the legislature was empowered to elect the
head of the executive power, its members would, for some time before the
election, be exposed to the manoeuvres of corruption, and the tricks of
intrigue; whereas, the special electors would, like a jury, remain mixed
up with the crowd till the day of action, when they would appear for the
sole purpose of giving their votes.
It was therefore established that every state should name a certain
number of electors,[138] who in their turn should elect the president;
and as it had been observed that the assemblies to which the choice of a
chief magistrate had been intrusted in elective countries, inevitably
became the centres of passion and of cabal; that they sometimes usurped
an authority which did not belong to them: and that their proceedings,
or the uncertainty which resulted from them, were sometimes prolonged so
much as to endanger the welfare of the state, it was determined that the
electors should all vote upon the same day, without being convoked to
the same place.[139] This double election rendered a majority probable,
though not certain; for it was possible that as many differences might
exist between the electors as between their constituents. In this case
it was necessary to have recourse to one of three measures; either to
appoint new electors, or to consult a second time those already
appointed, or to defer the election to another authority. The first two
of these alternatives, independently of the uncertainty of their
results, were likely to delay the final decision, and to perpetuate an
agitation which must always be accompanied with danger. The third
expedient was therefore adopted, and it was agreed that the votes should
be transmitted sealed to the president of the senate, and that they
should be opened and counted in the presence of the senate and the house
of representatives. If none of the candidates has a majority, the house
of representatives then proceeds immediately to elect the president; but
with the condition that it must fix upon one of the three candidates who
have the highest numbers.[140]
Thus it is only in case of an event which cannot often happen, and which
can never be foreseen, that the election is intrusted to the ordinary
representatives of the nation; and even then they are obliged to choose
a citizen who has already been designated by a powerful minority of the
special electors. It is by this happy expedient that the respect due to
the popular voice is combined with the utmost celerity of execution and
those precautions which the peace of the country demands. But the
decision of the question by the house of representatives does not
necessarily offer an immediate solution of the difficulty, for the
majority of that assembly may still be doubtful, and in this case the
constitution prescribes no remedy. Nevertheless, by restricting the
number of candidates to three, and by referring the matter to the
judgment of an enlightened public body, it has smoothed all the
obstacles[141] which are not inherent in the elective system.
In the forty years which have elapsed since the promulgation of the
federal constitution, the United States have twelve times chosen a
president. Ten of these elections took place simultaneously by the votes
of the special electors in the different states. The house of
representatives has only twice exercised its conditional privilege of
deciding in cases of uncertainty: the first time was at the election of
Mr. Jefferson in 1801; the second was in 1825, when Mr. John Quincy
Adams was chosen.
* * * * *
CRISIS OF THE ELECTION.
The election may be considered as a national Crisis.--Why?--Passions of
the People.--Anxiety of the President.--Calm which succeeds the
Agitation of the Election.
I have shown what the circumstances are which favored the adoption of
the elective system in the United States, and what precautions were
taken by the legislators to obviate its dangers. The Americans are
accustomed to all kinds of elections; and they know by experience the
utmost degree of excitement which is compatible with security. The vast
extent of the country, and the dissemination of the inhabitants, render
a collision between parties less probable and less dangerous there than
elsewhere. The political circumstances under which the elections have
hitherto been carried on, have presented no real embarrassments to the
nation.
Nevertheless, the epoch of the election of a president of the United
States may be considered as a crisis in the affairs of the nation. The
influence which he exercises on public business is no doubt feeble and
indirect; but the choice of the president, which is of small importance
to each individual citizen, concerns the citizens collectively; and
however trifling an interest may be, it assumes a great degree of
importance as soon as it becomes general. The president possesses but
few means of rewarding his supporters in comparison to the kings of
Europe; but the places which are at his disposal are sufficiently
numerous to interest, directly or indirectly, several thousand electors
in his success. Moreover, political parties in the United States, as
well as elsewhere, are led to rally around an individual, in order to
acquire a more tangible shape in the eyes of the crowd, and the name of
the candidate for the presidency is put forth as the symbol and
personification of their theories. For these reasons parties are
strongly interested in gaining the election, not so much with a view to
the triumph of their principles under the auspices of the president
elected, as to show, by the majority which returned him, the strength of
the supporters of those principles.
For a long while before the appointed time is at hand, the election
becomes the most important and the all-engrossing topic of discussion.
The ardor of faction is redoubled; and all the artificial passions which
the imagination can create in the bosom of a happy and peaceful land are
agitated and brought to light. The president, on the other hand, is
absorbed by the cares of self-defence. He no longer governs for the
interest of the state, but for that of his re-election; he does homage
to the majority, and instead of checking its passions, as his duty
commands him to do, he frequently courts its worst caprices. As the
election draws near, the activity of intrigue and the agitation of the
populace increase; the citizens are divided into several camps, each of
which assumes the name of its favorite candidate; the whole nation glows
with feverish excitement; the election is the daily theme of the public
papers, the subject of private conversation, the end of every thought
and every action, the sole interest of the present. As soon as the
choice is determined, this ardor is dispelled; and as a calmer season
returns, the current of the state, which has nearly broken its banks,
sinks to its usual level; but who can refrain from astonishment at the
causes of the storm?
* * * * *
RE-ELECTION OF THE PRESIDENT.
When the Head of the executive Power is re-eligible, it is the State
which is the Source of Intrigue and Corruption.--The desire of being
re-elected, the chief Aim of a President of the United States.--
Disadvantage of the System peculiar to America.--The natural Evil of
Democracy is that it subordinates all Authority to the slightest Desires
of the Majority.--The Re-election of the President encourages this Evil.
It may be asked whether the legislators of the United States did right
or wrong in allowing the re-election of the president. It seems at first
sight contrary to all reason to prevent the head of the executive power
from being elected a second time. The influence which the talents and
the character of a single individual may exercise upon the fate of a
whole people, especially in critical circumstances or arduous times, is
well known: a law preventing the re-election of the chief magistrate
would deprive the citizens of the surest pledge of the prosperity and
the security of the commonwealth; and, by a singular inconsistency, a
man would be excluded from the government at the very time when he had
shown his ability in conducting its affairs.
But if these arguments are strong, perhaps still more powerful reasons
may be advanced against them. Intrigue and corruption are the natural
defects of elective government; but when the head of the state can be
re-elected, these evils rise to a great height, and compromise the very
existence of the country. When a simple candidate seeks to rise by
intrigue, his manoeuvres must necessarily be limited to a narrow sphere;
but when the chief magistrate enters the lists, he borrows the strength
of the government for his own purposes. In the former case the feeble
resources of an individual are in action; in the latter, the state
itself, with all its immense influence, is busied in the work of
corruption and cabal. The private citizen, who employs the most immoral
practices to acquire power, can only act in a manner indirectly
prejudicial to the public prosperity. But if the representative of the
executive descends into the lists, the cares of government dwindle into
second-rate importance, and the success of his election is his first
concern. All laws and negotiations are then to him nothing more than
electioneering schemes; places become the reward of services rendered,
not to the nation, but to its chief; and the influence of the
government, if not injurious to the country, is at least no longer
beneficial to the community for which it was created.
It is impossible to consider the ordinary course of affairs in the
United States without perceiving that the desire of being re-elected is
the chief aim of the president; that his whole administration, and even
his most indifferent measures, tend to this object; and that, as the
crisis approaches, his personal interest takes the place of his interest
in the public good. The principle of re-eligibility renders the corrupt
influence of elective governments still more extensive and pernicious.
It tends to degrade the political morality of the people, and to
substitute adroitness for patriotism.
In America it exercises a still more fatal influence on the sources of
national existence. Every government seems to be afflicted by some evil
inherent in its nature, and the genius of the legislator is shown in
eluding its attacks. A state may survive the influence of a host of bad
laws, and the mischief they cause is frequently exaggerated; but a law
which encourages the growth of the canker within must prove fatal in the
end, although its bad consequences may not be immediately perceived.
The principle of destruction in absolute monarchies lies in the
excessive and unreasonable extension of the prerogative of the crown;
and a measure tending to remove the constitutional provisions which
counterbalance this influence would be radically bad, even if its
consequences should long appear to be imperceptible. By a parity of
reasoning, in countries governed by a democracy, where the people is
perpetually drawing all authority to itself, the laws which increase or
accelerate its action are the direct assailants of the very principle of
the government.
The greatest proof of the ability of the American legislators is, that
they clearly discerned this truth, and that they had the courage to act
up to it. They conceived that a certain authority above the body of the
people was necessary, which should enjoy a degree of independence,
without however being entirely beyond the popular control; an authority
which would be forced to comply with the _permanent_ determinations of
the majority, but which would be able to resist its caprices, and to
refuse its most dangerous demands. To this end they centred the whole
executive power of the nation in a single arm; they granted extensive
prerogatives to the president, and they armed him with the veto to
resist the encroachments of the legislature.
But by introducing the principle of re-election, they partly destroyed
their work; and they rendered the president but little inclined to exert
the great power they had invested in his hands. If ineligible a second
time, the president would be far from independent of the people, for his
responsibility would not be lessened; but the favor of the people would
not be so necessary to him as to induce him to court it by humoring its
desires. If re-eligible (and this is more especially true at the present
day, when political morality is relaxed, and when great men are rare),
the president of the United States becomes an easy tool in the hands of
the majority. He adopts its likings and its animosities, he hastens to
anticipate its wishes, he forestalls its complaints, he yields to its
idlest cravings, and instead of guiding it, as the legislature intended
that he should do, he is ever ready to follow its bidding. Thus, in
order not to deprive the state of the talents of an individual, those
talents have been rendered almost useless, and to reserve an expedient
for extraordinary perils the country has been exposed to daily dangers.
[The question of the propriety of leaving the president re-eligible, is
one of that class which probably must for ever remain undecided. The
author himself, at page 125, gives a strong reason for re-eligibility,
"so that the chance of a prolonged administration may inspire him with
hopeful undertakings for the public good, and with the means of carrying
them into execution,"--considerations of great weight. There is an
important fact bearing upon this question, which should be stated in
connexion with it. President Washington established the practice of
declining a third election, and every one of his successors, either from
a sense of its propriety or from apprehensions of the force of public
opinion, has followed the example. So that it has become as much a part
of the constitution, that no citizen can be a third time elected
president, as if it were expressed in that instrument in words. This may
perhaps be considered a fair adjustment of objections on either side.
Those against a continued and perpetual re-eligibility are certainly
met: while the arguments in favor of an opportunity to prolong an
administration under circumstances that may justify it, are allowed
their due weight. One effect of this practical interpolation of the
constitution unquestionably is, to increase the chances of a president's
being once re-elected; as men will be more disposed to acquiesce in a
measure that thus practically excludes the individual from ever again
entering the field of competition.--_American Editor_]
* * * * *
FEDERAL COURTS.[142]
Political Importance of the Judiciary in the United States.--Difficulty
of treating this Subject.--Utility of judicial Power in Confederations--
What Tribunals could be introduced into the Union.--Necessity of
establishing federal Courts of Justice.--Organization of the national
Judiciary.--The Supreme Court.--In what it differs from all known
Tribunals.
I have inquired into the legislative and executive power of the Union,
and the judicial power now remains to be examined; but in this place I
cannot conceal my fears from the reader. Judicial institutions exercise
a great influence on the condition of the Anglo-Americans, and they
occupy a prominent place among what are properly called political
institutions: in this respect they are peculiarly deserving of our
attention. But I am at a loss to explain the political action of the
American tribunals without entering into some technical details on their
constitution and their forms of proceeding; and I know not how to
descend to these minutiae without wearying the curiosity of the reader
by the natural aridity of the subject, or without risking to fall into
obscurity through a desire to be succinct. I can scarcely hope to escape
these various evils; for if I appear too prolix to a man of the world, a
lawyer may on the other hand complain of my brevity. But these are the
natural disadvantages of my subject, and more especially of the point
which I am about to discuss.
The great difficulty was, not to devise the constitution of the federal
government, but to find out a method of enforcing its laws. Governments
have in general but two means of overcoming the opposition of the people
they govern, viz., the physical force which is at their own disposal,
and the moral force which they derive from the decisions of the courts
of justice.
A government which should have no other means of exacting obedience than
open war, must be very near its ruin; for one of two alternatives would
then probably occur: if its authority was small, and its character
temperate, it would not resort to violence till the last extremity, and
it would connive at a number of partial acts of insubordination, in
which case the state would gradually fall into anarchy; if it was
enterprising and powerful, it would perpetually have recourse to its
physical strength, and would speedily degenerate into a military
despotism. So that its activity would not be less prejudicial to the
community than its inaction.
The great end of justice is to substitute the notion of right for that
of violence; and to place a legal barrier between the power of the
government and the use of physical force. The authority which is awarded
to the intervention of a court of justice by the general opinion of
mankind is so surprisingly great, that it clings to the mere formalities
of justice, and gives a bodily influence to the shadow of the law. The
moral force which courts of justice possess renders the introduction of
physical force exceedingly rare, and it is very frequently substituted
for it; but if the latter proves to be indispensable, its power is
doubled by the association of the idea of law.
A federal government stands in greater need of the support of judicial
institutions than any other, because it is naturally weak, and opposed
to formidable opposition.[143] If it were always obliged to resort to
violence in the first instance, it could not fulfil its task. The Union,
therefore, required a national judiciary to enforce the obedience of the
citizens to the laws, and to repel the attacks which might be directed
against them. The question then remained what tribunals were to exercise
these privileges; were they to be intrusted to the courts of justice
which were already organized in every state? or was it necessary to
create federal courts? It may easily be proved that the Union could not
adapt the judicial power of the state to its wants. The separation of
the judiciary from the administrative power of the state, no doubt
affects the security of every citizen, and the liberty of all. But it is
no less important to the existence of the nation that these several
powers should have the same origin, should follow the same principles,
and act in the same sphere; in a word, that they should be correlative
and homogeneous. No one, I presume, ever suggested the advantage of
trying offences committed in France, by a foreign court of justice, in
order to ensure the impartiality of the judges. The Americans form one
people in relation to their federal government; but in the bosom of this
people divers political bodies have been allowed to subsist, which are
dependent on the national government in a few points, and independent in
all the rest--which have all a distinct origin, maxims peculiar to
themselves, and special means of carrying on their affairs. To intrust
the execution of the laws of the Union to tribunals instituted by these
political bodies, would be to allow foreign judges to preside over the
nation. Nay more, not only is each state foreign to the Union at large,
but it is in perpetual opposition to the common interests, since
whatever authority the Union loses turns to the advantage of the states.
Thus to enforce the laws of the Union by means of the tribunals of the
states, would be to allow not only foreign, but partial judges to
preside over the nation.
But the number, still more than the mere character, of the tribunals of
the states rendered them unfit for the service of the nation. When the
federal constitution was formed, there were already thirteen courts of
justice in the United States which decided causes without appeal. That
number is now increased to twenty-four. To suppose that a state can
subsist, when its fundamental laws may be subjected to four-and-twenty
different interpretations at the same time, is to advance a proposition
alike contrary to reason and to experience.
The American legislators therefore agreed to create a federal judiciary
power to apply the laws of the Union, and to determine certain questions
affecting general interests, which were carefully determined beforehand.
The entire judicial power of the Union was centred in one tribunal,
which was denominated the supreme court of the United States. But, to
facilitate the expedition of business, inferior courts were appended to
it, which were empowered to decide causes of small importance without
appeal, and with appeal causes of more magnitude. The members of the
supreme court are named neither by the people nor the legislature, but
by the president of the United States, acting with the advice of the
senate. In order to render them independent of the other authorities,
their office was made inalienable; and it was determined that their
salary, when once fixed, should not be altered by the legislature.[144]
It was easy to proclaim the principle of a federal judiciary, but
difficulties multiplied when the extent of its jurisdiction was to be
determined.
* * * * *
MEANS OF DETERMINING THE JURISDICTION OF THE FEDERAL COURTS.
Difficulty of determining the Jurisdiction of separate courts of Justice
in Confederation.--The Courts of the Union obtained the Right of fixing
their own Jurisdiction.--In what Respect this Rule attacks the Portion
of Sovereignty reserved to the several States.--The Sovereignty of these
States restricted by the Laws, and the Interpretation of the Laws.--
Consequently, the Danger of the several States is more apparent than
real.
As the constitution of the United States recognized two distinct powers,
in presence of each other, represented in a judicial point of view by
two distinct classes of courts of justice, the utmost care which could
be taken in defining their separate jurisdictions would have been
insufficient to prevent frequent collisions between those tribunals. The
question then arose, to whom the right of deciding the competency of
each court was to be referred.
In nations which constitute a single body politic, when a question is
debated between two courts relating to their mutual jurisdiction, a
third tribunal is generally within reach to decide the difference; and
this is effected without difficulty, because in these nations the
questions of judicial competency have no connexion with the privileges
of the national supremacy. But it was impossible to create an arbiter
between a superior court of the Union and the superior court of a
separate state, which would not belong to one of these two classes. It
was therefore necessary to allow one of these courts to judge its own
cause, and to take or to retain cognizance of the point which was
contested. To grant this privilege to the different courts of the
states, would have been to destroy the sovereignty of the Union _de
facto_, after having established it _de jure_; for the interpretation of
the constitution would soon have restored that portion of independence
to the states of which the terms of that act deprived them. The object
of the creation of a federal tribunal was to prevent the courts of the
states from deciding questions affecting the national interests in their
own department, and so to form a uniform body of jurisprudence for the
interpretation of the laws of the Union. This end would not have been
accomplished if the courts of the several states had been competent to
decide upon cases in their separate capacities, from which they were
obliged to abstain as federal tribunals. The supreme court of the United
States was therefore invested with the right of determining all
questions of jurisdiction.[145]
This was a severe blow upon the independence of the states, which was
thus restricted not only by the laws, but by the interpretation of them;
by one limit which was known, and by another which was dubious; by a
rule which was certain, and a rule which was arbitrary. It is true the
constitution had laid down the precise limits of the federal supremacy,
but whenever this supremacy is contested by one of the states, a federal
tribunal decides the question. Nevertheless, the dangers with which the
independence of the states was threatened by this mode of proceeding are
less serious than they appear to be. We shall see hereafter that in
America the real strength of the country is vested in the provincial far
more than in the federal government. The federal judges are conscious of
the relative weakness of the power in whose name they act, and they are
more inclined to abandon a right of jurisdiction in cases where it is
justly their own, than to assert a privilege to which they have no legal
claim.
* * * * *
DIFFERENT CASES OF JURISDICTION.
The Matter and the Party are the first Conditions of the federal
Jurisdiction.--Suits in which Ambassadors are engaged.--Suits of the
Union.--Of a separate State.--By whom tried.--Causes resulting from the
Laws of the Union.--Why judged by the federal Tribunal.--Causes relating
to the Non-performance of Contracts tried by the federal Courts.--
Consequences of this Arrangement.
After having appointed the means of fixing the competency of the federal
courts, the legislators of the Union defined the cases which should come
within their jurisdiction. It was established, on the one hand, that
certain parties must always be brought before the federal courts,
without any regard to the special nature of the cause; and, on the
other, that certain causes must always be brought before the same
courts, without any regard to the quality of the parties in the suit.
These distinctions were therefore admitted to be the bases of the
federal jurisdiction.
Ambassadors are the representatives of nations in a state of amity with
the Union, and whatever concerns these personages concerns in some
degree the whole Union. When I an ambassador is a party in a suit, that
suit affects the welfare of the nation, and a federal tribunal is
naturally called upon to decide it.
The Union itself may be involved in legal proceedings, and in this case
it would be alike contrary to the customs of all nations, and to common
sense, to appeal to a tribunal representing any other sovereignty than
its own; the federal courts, therefore, take cognizance of these
affairs.
When two parties belonging to two different states are engaged in a
suit, the case cannot with propriety be brought before a court of either
state. The surest expedient is to select a tribunal like that of the
Union, which can excite the suspicions of neither party, and which
offers the most natural as well as the most certain remedy.
When the two parties are not private individuals, but states, an
important political consideration is added to the same motive of equity.
The quality of the parties, in this case, gives a national importance to
all their disputes; and the most trifling litigation of the states may
be said to involve the peace of the whole Union.[146]
The nature of the cause frequently prescribes the rule of competency.
Thus all the questions which concern maritime commerce evidently fall
under the cognizance of the federal tribunals.[147] Almost all these
questions are connected with the interpretation of the law of nations;
and in this respect they essentially interest the Union in relation to
foreign powers. Moreover, as the sea is not included within the limits
of any peculiar jurisdiction, the national courts can only hear causes
which originate in maritime affairs.
The constitution comprises under one head almost all the cases which by
their very nature come within the limits of the federal courts. The rule
which it lays down is simple, but pregnant with an entire system of
ideas, and with a vast multitude of facts. It declares that the judicial
power of the supreme court shall extend to all cases in law and equity
_arising under the laws of the United States_.
Two examples will put the intentions of the legislator in the clearest
light:--
The constitution prohibits the states from making laws on the value and
circulation of money: if, notwithstanding this prohibition, a state
passes a law of this kind, with which the interested parties refuse to
comply because it is contrary to the constitution, the case must come
before a federal court, because it arises under the laws of the United
States. Again, if difficulties arise in the levying of import duties
which have been voted by congress, the federal court must decide the
case, because it arises under the interpretation of a law of the United
States.
This rule is in perfect accordance with the fundamental principles of
the federal constitution. The Union as it was established in 1789,
possesses, it is true, a limited supremacy; but it was intended that
within its limits it should form one and the same people.[148] Within
those limits the Union is sovereign. When this point is established and
admitted, the inference is easy; for if it be acknowledged that the
United States constitute one and the same people within the bounds
prescribed by their constitution, it is impossible to refuse them the
rights which belong to other nations. But it has been allowed, from the
origin of society, that every nation has the right of deciding by its
own courts those questions which concern the execution of its own laws.
To this it is answered, that the Union is in so singular a position,
that in relation to some matters it constitutes a people, and that in
relation to all the rest it is a nonentity. But the inference to be
drawn is, that in the laws relating to these matters the Union possesses
all the rights of absolute sovereignty. The difficulty is to know what
these matters are; and when once it is resolved (and we have shown how
it was resolved, in speaking of the means of determining the
jurisdiction of the federal courts), no farther doubt can arise; for as
soon as it is established that a suit is federal, that is to say, that
it belongs to the share of sovereignty reserved by the constitution to
the Union, the natural consequence is that it should come within the
jurisdiction of a federal court.
Whenever the laws of the United States are attacked, or whenever they
are resorted to in self-defence, the federal courts must be appealed to.
Thus the jurisdiction of the tribunals of the Union extends and narrows
its limits exactly in the same ratio as the sovereignty of the Union
augments or decreases. We have shown that the principal aim of the
legislators of 1789 was to divide the sovereign authority into two
parts. In the one they placed the control of all the general interests
of the Union, in the other the control of the special interest of its
component states. Their chief solicitude was to arm the federal
government with sufficient power to enable it to resist, within its
sphere, the encroachments of the several states. As for these
communities, the principle of independence within certain limits of
their own was adopted in their behalf; and they were concealed from the
inspection, and protected from the control, of the central government.
In speaking of the division of the authority, I observed that this
latter principle had not always been held sacred, since the states are
prevented from passing certain laws, which apparently belong to their
own particular sphere of interest. When a state of the Union passes a
law of this kind, the citizens who are injured by its execution can
appeal to the federal courts.
[The remark of the author, that whenever the laws of the United States
are attacked, or whenever they are resorted to in self-defence, the
federal courts _must be_ appealed to, which is more strongly expressed
in the original, is erroneous and calculated to mislead on a point of
some importance. By the grant of power to the courts of the United
States to decide certain cases, the powers of the state courts are not
suspended, but are exercised concurrently, subject to an appeal to the
courts of the United States. But if the decision of the state court is
_in favor_ of the right, title, or privilege claimed under the
constitution, a treaty, or under a law of congress, no appeal lies to
the federal courts. The appeal is given only when the decision _is
against_ the claimant under the treaty or law. See 3d Cranch, 268. 1
Wheaton, 304.--_American Editor._]
Thus the jurisdiction of the general courts extends not only to all the
cases which arise under the laws of the Union, but also to those which
arise under laws made by the several states in opposition to the
constitution. The states are prohibited from making _ex-post-facto_ laws
in criminal cases; and any person condemned by virtue of a law of this
kind can appeal to the judicial power of the Union. The states are
likewise prohibited from making laws which may have a tendency to impair
the obligations of contracts.[149] If a citizen thinks that an
obligation of this kind is impaired by a law passed in his state, he may
refuse to obey it, and may appeal to the federal courts.[150]
This provision appears to me to be the most serious attack upon the
independence of the states. The rights awarded to the federal government
for purposes of obvious national importance are definite and easily
comprehensible; but those with which this last clause invests it are not
either clearly appreciable or accurately defined. For there are vast
numbers of political laws which influence the obligations of contracts,
which may thus furnish an easy pretext for the aggressions of the
central authority.
[The fears of the author respecting the danger to the independence of
the states of that provision of the constitution, which gives to the
federal courts the authority of deciding when a state law impairs the
obligation of a contract, are deemed quite unfounded. The citizens of
every state have a deep interest in preserving the obligation of the
contracts entered into by them in other states: indeed without such a
controlling power, "commerce among several states" could not exist. The
existence of this common arbiter is of the last importance to the
continuance of the Union itself, for if there were no peaceable means of
enforcing the obligations of contracts, independent of all state
authority, the states themselves would inevitably come in collision in
their efforts to protect their respective citizens from the consequences
of the legislation of another state.
M. De Tocqueville's observation, that the rights with which the clause
in question invests the federal government "are not clearly appreciable
or accurately defined," proceeds upon a mistaken view of the clause
itself. It relates to the _obligation_ of a contract, and forbids any
act by which that obligation is impaired. To American lawyers, this
seems to be as precise and definite as any rule can be made by human
language. The distinction between the _right_ to the fruits of a
contract, and the time, tribunal, and manner, in which that right is to
be enforced, seems very palpable. At all events, since the decision of
the supreme court of the United States in those cases in which this
clause has been discussed, no difficulty is found, practically, in
understanding the exact limits of the prohibition.
The next observation of the author, that "there are vast numbers of
political laws which influence the obligations of contracts, which may
thus furnish an easy pretext for the aggressions of the central
authority," is rather obscure. Is it intended that political laws may be
passed by the central authority, influencing the obligation of a
contract, and thus the contracts themselves be destroyed? The answer to
this would be, that the question would not arise under the clause
forbidding laws impairing the obligation of contracts, for that clause
applies only to the states and not to the federal government.
If it be intended, that the states may find it necessary to pass
political laws, which affect contracts, and that under the pretence of
vindicating the obligation of contracts, the central authority may make
aggressions on the states and annul their political laws:--the answer
is, that the motive to the adoption of the clause was to reach laws of
every description, political as well as all others, and that it was the
abuse by the states of what may be called political laws, viz.: acts
confiscating demands of foreign creditors, that gave rise to the
prohibition. The settled doctrine now is, that states may pass laws in
respect to the making of contracts, may prescribe what contracts shall
be made, and how, but that they cannot impair any that are already made.
The writer of this note is unwilling to dismiss the subject, without
remarking upon what he must think a fundamental error of the author,
which is exhibited in the passage commented on, as well as in other
passages:--and that is, in supposing the judiciary of the United States,
and particularly the supreme court, to be a part of the _political_
federal government, and as the ready instrument to execute its designs
upon the state authorities. Although the judges are in form commissioned
by the United States, yet, in fact, they are appointed by the delegates
of the state, in the senate of the United States, concurrently with, and
acting upon, the nomination of the president. If the legislature of each
state in the Union were to elect a judge of the supreme court, he would
not be less a political officer of the United States than he now is. In
truth, the judiciary have no political duties to perform; they are
arbiters chosen by the federal and state governments, jointly, and when
appointed, as independent of the one as of the other. They cannot be
removed without the consent of the states represented in the senate, and
they can be removed without the consent of the president, and against
his wishes. Such is the theory of the constitution. And it has been felt
practically, in the rejection by the senate of persons nominated as
judges, by a president of the same political party with a majority of
the senators. Two instances of this kind occurred during the
administration of Mr. Jefferson.
If it be alleged that they are exposed to the influence of the executive
of the United States, by the expectation of offices in his gift, the
answer is, that judges of state courts are equally exposed to the same
influence--that all state officers, from the highest to the lowest, are
in the same predicament; and that this circumstance does not, therefore,
deprive them of the character of impartial and independent arbiters.
These observations receive confirmation from every recent decision of
the supreme court of the United States, in which certain laws of
individual states have been sustained, in cases where, to say the least,
it was very questionable whether they did not infringe the provisions of
the constitution, and where a disposition to construe those previsions
broadly and extensively, would have found very plausible grounds to
indulge itself in annulling the state laws referred to. See the cases of
_City of New York vs. Miln_, 11th _Peters_, 103; _Briscoe vs. the Bank
of the Commonwealth of Kentucky_, ib., 257; _Charles River Bridge vs.
Warren Bridge_, ib., 420.--_American Ed._]
* * * * *
PROCEDURE OF THE FEDERAL COURTS.
Natural Weakness of the judiciary Power in Confederations.--Legislators
ought to strive as much as possible to bring private Individuals, and
not States, before the federal Courts.--How the Americans have succeeded
in this.--Direct Prosecutions of private Individuals in the federal
Courts.--Indirect Prosecution in the States which violate the Laws of
the Union.--The Decrees of the Supreme Court enervate but do not destroy
the provincial Laws.
I have shown what the privileges of the federal courts are, and it is no
less important to point out the manner in which they are exercised. The
irresistible authority of justice in countries in which the sovereignty
is undivided, is derived from the fact that the tribunals of those
countries represent the entire nation at issue with the individual
against whom their decree is directed; and the idea of power is thus
introduced to corroborate the idea of right. But this is not always the
case in countries in which the sovereignty is divided: in them the
judicial power is more frequently opposed to a fraction of the nation
than to an isolated individual, and its moral authority and physical
strength are consequently diminished. In federal states the power of the
judge is naturally decreased, and that of the justiciable parties is
augmented. The aim of the legislator in confederate states ought
therefore to be, to render the position of the courts of justice
analogous to that which they occupy in countries where the sovereignty
is undivided; in other words, his efforts ought constantly to tend to
maintain the judicial power of the confederation as the representative
of the nation, and the justiciable party as the representative of an
individual interest.
Every government, whatever may be its constitution, requires the means
of constraining its subjects to discharge their obligations, and of
protecting its privileges from their assaults. As far as the direct
action of the government on the community is concerned, the constitution
of the United States contrived, by a master-stroke of policy, that the
federal courts, acting in the name of the laws, should only take
cognizance of parties in an individual capacity. For, as it had been
declared that the Union consisted of one and the same people within the
limits laid down by the constitution, the inference was that the
government created by this constitution, and acting within these limits,
was invested with all the privileges of a national government, one of
the principal of which is the right of transmitting its injunctions
directly to the private citizen. When, for instance, the Union votes an
impost, it does not apply to the states for the levying of it, but to
every American citizen, in proportion to his assessment. The supreme
court, which is empowered to enforce the execution of this law of the
Union, exerts its influence not upon a refractory state, but upon the
private taxpayer; and, like the judicial power of other nations, it is
opposed to the person of an individual. It is to be observed that the
Union chose its own antagonist; and as that antagonist is feeble, he is
naturally worsted.
But the difficulty increases when the proceedings are not brought
forward _by_ but _against_ the Union. The constitution recognizes the
legislative power of the state; and a law so enacted may impair the
privileges of the Union, in which case a collision is unavoidable
between that body and the state which had passed the law; and it only
remains to select the least dangerous remedy, which is very clearly
deducible from the general principles I have before established.[151]
It may be conceived that, in the case under consideration, the Union
might have sued the state before a federal court, which would have
annulled the act; and by this means it would have adopted a natural
course of proceeding: but the judicial power would have been placed in
open hostility to the state, and it was desirable to avoid this
predicament as much as possible. The Americans hold that it is nearly
impossible that a new law should not impair the interests of some
private individuals by its provisions: these private interests are
assumed by the American legislators as the ground of attack against such
measures as may be prejudicial to the Union, and it is to these cases
that the protection of the supreme court is extended.
Suppose a state vends a certain portion of its territory to a company,
and that a year afterwards it passes a law by which the territory is
otherwise disposed of, and that clause of the constitution, which
prohibits laws impairing the obligation of contracts, is violated. When
the purchaser under the second act appears to take possession, the
possessor under the first act brings his action before the tribunals of
the Union, and causes the title of the claimant to be pronounced null
and void.[152] This, in point of fact, the judicial power of the Union
is contesting the claims of the sovereignty of a state; but it only acts
indirectly and upon a special application of detail: it attacks the law
in its consequences, not in its principle, and it rather weakens than
destroys it.
The last hypothesis that remained was that each state formed a
corporation enjoying a separate existence and distinct civil rights, and
that it could therefore sue or be sued before a tribunal. Thus a state
could bring an action against another state. In this instance, the Union
was not called upon to contest a provincial law, but to try a suit in
which a state was a party. This suit was perfectly similar to any other
cause, except that the quality of the parties was different; and here
the danger pointed out at the beginning of this chapter exists with less
chance of being avoided. The inherent disadvantage of the very essence
of federal constitutions is, that they engender parties in the bosom of
the nation which present powerful obstacles to the free course of
justice.
* * * * *
HIGH RANK OF THE SUPREME COURTS AMONG THE GREAT POWERS OF STATE.
No Nation ever constituted so great a judicial Power as the Americans.
Extent of its Prerogative.--Its political Influence.--The Tranquillity
and the very Existence of the Union depend on the Discretion of the
seven federal Judges.
When we have successfully examined in detail the organization of the
supreme court, and the entire prerogatives which it exercises, we shall
readily admit that a more imposing judicial power was never constituted
by any people. The supreme court is placed at the head of all known
tribunals, both by the nature of its rights and the class of justiciable
parties which it controls.
In all the civilized countries of Europe, the government has always
shown the greatest repugnance to allow the cases to which it was itself
a party to be decided by the ordinary course of justice. This repugnance
naturally attains its utmost height in an absolute government; and, on
the other hand, the privileges of the courts of justice are extended
with the increasing liberties of the people; but no European nation has
at present held that all judicial controversies, without regard to their
origin, can be decided by the judges of common law.
In America this theory has been actually put in practice; and the
supreme court of the United States is the sole tribunal of the nation.
Its power extends to all the cases arising under laws and treaties made
by the executive and legislative authorities, to all cases of admiralty
and maritime jurisdiction, and in general to all points which affect the
law of nations. It may even be affirmed that, although its constitution
is essentially judicial, its prerogatives are almost entirely political.
Its sole object is to enforce the execution of the laws of the Union;
and the Union only regulates the relations of the government with the
citizens, and of the nation with foreign powers: the relations of
citizens among themselves are almost exclusively regulated by the
sovereignty of the states.
A second and still greater cause of the preponderance of this court may
be adduced. In the nations of Europe the courts of justice are only
called upon to try the controversies of private individuals; but the
supreme court of the United States summons sovereign powers to its bar.
When the clerk of the court advances on the steps of the tribunal, and
simply says, "The state of New York _versus_ the state of Ohio," it is
impossible not to feel that the court which he addresses is no ordinary
body; and when it is recollected that one of these parties represents
one million, and the other two millions of men, one is struck by the
responsibility of the seven judges whose decision is about to satisfy or
to disappoint so large a number of their fellow-citizens.
The peace, the prosperity, and the very existence of the Union, are
invested in the hands of the seven judges. Without their active
co-operation the constitution would be a dead letter: the executive
appeals to them for assistance against the encroachments of the
legislative powers; the legislature demands their protection from the
designs of the executive; they defend the Union from the disobedience of
the states, the states from the exaggerated claims of the Union, the
public interest against the interests of private citizens, and the
conservative spirit of order against the fleeting innovations of
democracy. Their power is enormous, but it is clothed in the authority
of public opinion. They are the all-powerful guardians of a people which
respects law; but they would be impotent against popular neglect or
popular contempt. The force of public opinion is the most intractable of
agents, because its exact limits cannot be defined; and it is not less
dangerous to exceed, than to remain below the boundary prescribed.
The federal judges must not only be good citizens, and men possessed of
that information and integrity which are indispensable to magistrates,
but they must be statesmen--politicians, not unread in the signs of the
times, not afraid to brave the obstacles which can be subdued, nor slow
to turn aside such encroaching elements as may threaten the supremacy of
the Union and the obedience which is due to the laws.
The president, who exercises a limited power, may err without causing
great mischief in the state. Congress may decide amiss without
destroying the Union, because the electoral body in which congress
originates may cause it to retract its decision by changing its members.
But if the supreme court is ever composed of imprudent men or bad
citizens, the Union may be plunged into anarchy or civil war.
The real cause of this danger, however, does not lie in the constitution
of the tribunal, but in the very nature of federal governments. We have
observed that in confederate peoples it is especially necessary to
consolidate the judicial authority, because in no other nations do those
independent persons who are able to cope with the social body, exist, in
greater power or in a better condition to resist the physical strength
of the government. But the more a power requires to be strengthened, the
more extensive and independent it must be made; and the dangers which
its abuse may create are heightened by its independence and its
strength. The source of the evil is not, therefore, in the constitution
of the power, but in the constitution of those states which renders its
existence necessary.
* * * * *
IN WHAT RESPECTS THE FEDERAL CONSTITUTION IS SUPERIOR TO THAT OF THE
STATES.
In what respects the Constitution of the Union can be compared to that
of the States.--Superiority of the Constitution of the Union
attributable to the Wisdom of the federal Legislators.--Legislature of
the Union less dependent on the People than that of the States.--
Executive Power more independent in its Sphere.--Judicial Power less
subjected to the Inclinations of the Majority.--Practical Consequences
of these Facts.--The Dangers inherent in a democratic Government eluded
by the federal Legislators, and increased by the Legislators of the
States.
The federal constitution differs essentially from that of the states in
the ends which it is intended to accomplish; but in the means by which
these ends are promoted, a greater analogy exists between them. The
objects of the governments are different, but their forms are the same;
and in this special point of view there is some advantage in comparing
them together.
I am of opinion that the federal constitution is superior to all the
constitutions of the states, for several reasons.
The present constitution of the Union was formed at a later period than
those of the majority of the states, and it may have derived some
melioration from past experience. But we shall be led to acknowledge
that this is only a secondary cause of its superiority, when we
recollect that eleven new states have been added to the American
confederation since the promulgation of the federal constitution, and
that these new republics have always rather exaggerated than avoided the
defects which existed in the former constitutions.
The chief cause of the superiority of the federal constitution lay in
the character of the legislators who composed it. At the time when it
was formed the dangers of the confederation were imminent, and its ruin
seemed inevitable. In this extremity the people chose the men who most
deserved the esteem, rather than those who had gained the affections of
the country. I have already observed, that distinguished as almost all
the legislators of the Union were for their intelligence, they were
still more so for their patriotism. They had all been nurtured at a time
when the spirit of liberty was braced by a continual struggle against a
powerful and predominant authority. When the contest was terminated,
while the excited passions of the populace persisted in warring with
dangers which had ceased to threaten them, these men stopped short in
their career; they cast a calmer and more penetrating look upon the
country which was now their own; they perceived that the war of
independence was definitely ended, and that the only dangers which
America had to fear were those which might result from the abuse of the
freedom she had won. They had the courage to say what they believed to
be true, because they were animated by a warm and sincere love of
liberty; and they ventured to propose restrictions, because they were
resolutely opposed to destruction.[153]
The greater number of the constitutions of the states assign one year
for the duration of the house of representatives, and two years for that
of the senate; so that members of the legislative body are constantly
and narrowly tied down by the slightest desires of their constituents.
The legislators of the Union were of opinion that this excessive
dependence of the legislature tended to alter the nature of the main
consequences of the representative system, since it vested the source
not only of authority, but of government, in the people. They increased
the length of the time for which the representatives were returned, in
order to give them freer scope for the exercise of their own judgment.
The federal constitution, as well as the constitutions of the different
states, divided the legislative body into two branches. But in the
states these two branches were composed of the same elements and elected
in the same manner. The consequence was that the passions and
inclinations of the populace were as rapidly and as energetically
represented in one chamber as in the other, and that laws were made with
all the characteristics of violence and precipitation. By the federal
constitution the two houses originate in like manner in the choice of
the people; but the conditions of eligibility and the mode of election
were changed, to the end that if, as is the case in certain nations, one
branch of the legislature represents the same interests as the other, it
may at least represent a superior degree of intelligence and discretion.
A mature age was made one of the conditions of the senatorial dignity,
and the upper house was chosen by an elected assembly of a limited
number of members.
To concentrate the whole social force in the hands of the legislative
body is the natural tendency of democracies; for as this is the power
which emanates the most directly from the people, it is made to
participate most fully in the preponderating authority of the multitude,
and it is naturally led to monopolise every species of influence. This
concentration is at once prejudicial to a well-conducted administration,
and favorable to the despotism of the majority. The legislators of the
states frequently yielded to these democratic propensities, which were
invariably and courageously resisted by the founders of the Union.
In the states the executive power is vested in the hands of a
magistrate, who is apparently placed upon a level with the legislature,
but who is in reality nothing more than the blind agent and the passive
instrument of its decisions. He can derive no influence from the
duration of his functions, which terminate with the revolving year, or
from the exercise of prerogatives which can scarcely be said to exist.
The legislature can condemn him to inaction by intrusting the execution
of the laws to special committees of its own members, and can annul his
temporary dignity by depriving him of his salary. The federal
constitution vests all the privileges and all the responsibility of the
executive power in a single individual. The duration of the presidency
is fixed at four years; the salary of the individual who fills that
office cannot be altered during the term of his functions; he is
protected by a body of official dependents, and armed with a suspensive
veto. In short, every effort was made to confer a strong and independent
position upon the executive authority, within the limits which had been
prescribed to it.
In the constitution of all the states the judicial power is that which
remains the most independent of the legislative authority: nevertheless,
in all the states the legislature has reserved to itself the right of
regulating the emoluments of the judges, a practice which necessarily
subjects these magistrates to its immediate influence. In some states
the judges are only temporarily appointed, which deprives them of a
great portion of their power and their freedom. In others the
legislative and judicial powers are entirely confounded: thus the senate
of New York, for instance, constitutes in certain cases the superior
court of the state. The federal constitution, on the other hand,
carefully separates the judicial authority from all external influences:
and it provides for the independence of the judges, by declaring that
their salary shall not be altered, and that their functions shall be
inalienable.
[It is not universally correct, as supposed by the author, that the
state legislatures can deprive their governor of his salary at pleasure.
In the constitution of New York it is provided, that the governor "shall
receive for his services a compensation which shall neither be increased
nor diminished during the term for which he shall have been elected;"
and similar provisions are believed to exist in other states. Nor is the
remark strictly correct, that the federal constitution "provides for the
independence of the judges, by declaring that their salary shall not be
_altered_." The provision of the constitution is, that they shall, "at
stated times, receive for their services a compensation which shall not
be diminished during their continuance in office."--_American Editor_.]
The practical consequences of these different systems may easily be
perceived. An attentive observer will soon remark that the business of
the Union is incomparably better conducted than that of any individual
state. The conduct of the federal government is more fair and more
temperate than that of the states; its designs are more fraught with
wisdom, its projects are more durable and more skilfully combined, its
measures are put into execution with more vigor and consistency.
I recapitulate the substance of this chapter in a few words:--
The existence of democracies is threatened by two dangers, viz.: the
complete subjection of the legislative body to the caprices of the
electoral body; and the concentration of all the powers of the
government in the legislative authority.
The growth of these evils has been encouraged by the policy of the
legislators of the states; but it has been resisted by the legislators
of the Union by every means which lay within their control.
* * * * *
CHARACTERISTICS WHICH DISTINGUISH THE FEDERAL CONSTITUTION OF THE UNITED
STATES OF AMERICA FROM ALL OTHER FEDERAL CONSTITUTIONS.
American Union appears to resemble all other Confederations.--
Nevertheless its Effects are different.--Reason of this.--Distinctions
between the Union and all other Confederations.--The American Government
not a Federal, but an imperfect National Government.
The United States of America do not afford either the first or the only
instance of confederate states, several of which have existed in modern
Europe, without adverting to those of antiquity. Switzerland, the
Germanic empire, and the republic of the United Provinces, either have
been or still are confederations. In studying the constitutions of these
different countries, the politician is surprised to observe that the
powers with which they invested the federal government are nearly
identical with the privileges awarded by the American constitution to
the government of the United States. They confer upon the central power
the same rights of making peace and war, of raising money and troops,
and of providing for the general exigencies and the common interests of
the nation. Nevertheless the federal government of these different
people has always been as remarkable for its weakness and inefficiency
as that of the Union is for its vigorous and enterprising spirit. Again,
the first American confederation perished through the excessive weakness
of its government; and this weak government was, notwithstanding, in
possession of rights even more extensive than those of the federal
government of the present day. But the more recent constitution of the
United States contains certain principles which exercise a most
important influence, although they do not at once strike the observer.
This constitution, which may at first sight be confounded with the
federal constitutions which preceded it, rests upon a novel theory,
which may be considered as a great invention in modern political
science. In all the confederations which had been formed before the
American constitution of 1789, the allied states agreed to obey the
injunctions of a federal government: but they reserved to themselves the
right of ordaining and enforcing the execution of the laws of the Union.
The American states which combined in 1789 agreed that the federal
government should not only dictate the laws, but it should execute its
own enactments. In both cases the right is the same, but the exercise of
the right is different; and this alteration produced the most momentous
consequences.
In all the confederations which have been formed before the American
Union, the federal government demanded its supplies at the hands of the
separate governments; and if the measure it prescribed was onerous to
any one of those bodies, means were found to evade its claims: if the
state was powerful, it had recourse to arms; if it was weak, it connived
at the resistance which the law of the Union, its sovereign, met with,
and resorted to inaction under the plea of inability. Under these
circumstances one of two alternatives has invariably occurred: either
the most preponderant of the allied peoples has assumed the privileges
of the federal authority, and ruled all the other states in its
name,[154] or the federal government has been abandoned by its natural
supporters, anarchy has arisen between the confederates, and the Union
has lost all power of action.[155]
In America the subjects of the Union are not states, but private
citizens: the national government levies a tax, not upon the state of
Massachusetts, but upon each inhabitant of Massachusetts. All former
confederate governments presided over communities, but that of the Union
rules individuals; its force is not borrowed, but self-derived; and it
is served by its own civil and military officers, by its own army, and
its own courts of justice. It cannot be doubted that the spirit of the
nation, the passions of the multitude, and the provincial prejudices of
each state, tend singularly to diminish the authority of a federal
authority thus constituted, and to facilitate the means of resistance to
its mandates; but the comparative weakness of a restricted sovereignty
is an evil inherent in the federal system. In America, each state has
fewer opportunities of resistance, and fewer temptations to
non-compliance; nor can such a design be put in execution (if indeed it
be entertained), without an open violation of the laws of the Union, a
direct interruption of the ordinary course of justice, and a bold
declaration of revolt; in a word, without a decisive step, which men
hesitate to adopt.
In all former confederations, the privileges of the Union furnished more
elements of discord than of power, since they multiplied the claims of
the nation without augmenting the means of enforcing them: and in
accordance with this fact it may be remarked, that the real weakness of
federal governments has almost always been in the exact ratio of their
nominal power. Such is not the case with the American Union, in which,
as in ordinary governments, the federal government has the means of
enforcing all it is empowered to demand.
The human understanding more easily invents new things than new words,
and we are thence constrained to employ a multitude of improper and
inadequate expressions. When several nations form a permanent league,
and establish a supreme authority, which, although it has not the same
influence over the members of the community as a national government,
acts upon each of the confederate states in a body, this government,
which is so essentially different from all others, is denominated a
federal one. Another form of society is afterward discovered, in which
several peoples are fused into one and the same nation with regard to
certain common interests, although they remain distinct, or at least
only confederate, with regard to all their other concerns. In this case
the central power acts directly upon those whom it governs, whom it
rules, and whom it judges, in the same manner as, but in a more limited
circle than, a national government. Here the term of federal government
is clearly no longer applicable to a state of things which must be
styled an incomplete national government: a form of government has been
found out which is neither exactly national nor federal; but no farther
progress has been made, and the new word which will one day designate
this novel invention does not yet exist.
The absence of this new species of confederation has been the cause
which has brought all unions to civil war, to subjection, or to a
stagnant apathy; and the peoples which formed these leagues have been
either too dull to discern, or too pusillanimous to apply this great
remedy. The American confederation perished by the same defects.
But the confederate states of America had been long accustomed to form a
portion of one empire before they had won their independence: they had
not contracted the habit of governing themselves, and their national
prejudices had not taken deep root in their minds. Superior to the rest
of the world in political knowledge, and sharing that knowledge equally
among themselves, they were little agitated by the passions which
generally oppose the extension of federal authority in a nation, and
those passions were checked by the wisdom of the chief citizens.
The Americans applied the remedy with prudent firmness as soon as they
were conscious of the evil; they amended their laws, and they saved
their country.
* * * * *
ADVANTAGES OF THE FEDERAL SYSTEM IN GENERAL, AND ITS SPECIAL UTILITY IN
AMERICA.
Happiness and Freedom of small Nations.--Power of Great Nations.--Great
Empires favorable to the Growth of Civilisation.--Strength often the
first Element of national Prosperity.--Aim of the federal System to
unite the twofold Advantages resulting from a small and from a large
Territory.--Advantages derived by the United States from this
System.--The Law adapts itself to the Exigencies of the Population;
Population does not conform to the Exigencies of the Law.--Activity,
Melioration, Love, and Enjoyment of Freedom in the American
Communities.--Public Spirit of the Union the abstract of provincial
Patriotism.--Principles and Things circulate freely over the Territory
of the United States.--The Union is happy and free as a little Nation,
and respected as a great Empire.
In small nations the scrutiny of society penetrates into every part, and
the spirit of improvement enters into the most trifling details; as the
ambition of the people is necessarily checked by its weakness, all the
efforts and resources of the citizens are turned to the internal benefit
of the community, and are not likely to evaporate in the fleeting breath
of glory. The desires of every individual are limited, because
extraordinary faculties are rarely to be met with. The gifts of an equal
fortune render the various conditions of life uniform; and the manners
of the inhabitants are orderly and simple. Thus, if we estimate the
gradations of popular morality and enlightenment, we shall generally
find that in small nations there are more persons in easy circumstances,
a more numerous population, and a more tranquil state of society than in
great empires.
When tyranny is established in the bosom of a small nation, it is more
galling than elsewhere, because, as it acts within a narrow circle,
every point of that circle is subject to its direct influence. It
supplies the place of those great designs which it cannot entertain, by
a violent or an exasperating interference in a multitude of minute
details; and it leaves the political world to which it properly belongs,
to meddle with the arrangements of domestic life. Tastes as well as
actions are to be regulated at its pleasure; and the families of the
citizens as well as the affairs of the state are to be governed by its
decisions. This invasion of rights occurs, however, but seldom, and
freedom is in truth the natural state of small communities. The
temptations which the government offers to ambition are too weak, and
the resources of private individuals are too slender, for the sovereign
power easily to fall within the grasp of a single citizen: and should
such an event have occurred, the subjects of the state can without
difficulty overthrow the tyrant and his oppression by a simultaneous
effort.
Small nations have therefore ever been the cradles of political liberty:
and the fact that many of them have lost their immunities by extending
their dominion, shows that the freedom they enjoyed was more a
consequence of their inferior size than of the character of the people.
The history of the world affords no instance of a great nation retaining
the form of a republican government for a long series of years,[156] and
this had led to the conclusion that such a state of things is
impracticable. For my own part, I cannot but censure the imprudence of
attempting to limit the possible, and to judge the future, on the part
of a being who is hourly deceived by the most palpable realities of
life, and who is constantly taken by surprise in the circumstances with
which he is most familiar. But it may be advanced with confidence that
the existence of a great republic will always be exposed to far greater
perils than that of a small one.
All the passions which are most fatal to republican institutions spread
with an increasing territory, while the virtues which maintain their
dignity do not augment in the same proportion. The ambition of the
citizens increases with the power of the state; the strength of parties,
with the importance of the ends they have in view; but that devotion to
the common weal, which is the surest check on destructive passions, is
not stronger in a large than in a small republic. It might, indeed, be
proved without difficulty that it is less powerful and less sincere. The
arrogance of wealth and the dejection of wretchedness, capital cities of
unwonted extent, a lax morality, a vulgar egotism, and a great confusion
of interests, are the dangers which almost invariably arise from the
magnitude of states. But several of these evils are scarcely prejudicial
to a monarchy, and some of them contribute to maintain its existence. In
monarchical states the strength of the government is its own; it may
use, but it does not depend on, the community: and the authority of the
prince is proportioned to the prosperity of the nation: but the only
security which a republican government possesses against these evils
lies in the support of the majority. This support is not, however,
proportionably greater in a large republic than it is in a small one;
and thus while the means of attack perpetually increase both in number
and in influence, the power of resistance remains the same; or it may
rather be said to diminish, since the propensities and interests of the
people are diversified by the increase of the population, and the
difficulty of forming a compact majority is constantly augmented. It has
been observed, moreover, that the intensity of human passions is
heightened, not only by the importance of the end which they propose to
attain, but by the multitude of individuals who are animated by them at
the same time. Every one has had occasion to remark that his emotions in
the midst of a sympathizing crowd are far greater than those which he
would have felt in solitude. In great republics the impetus of political
passion is irresistible, not only because it aims at gigantic purposes,
but because it is felt and shared by millions of men at the same time.
It may therefore be asserted as a general proposition, that nothing is
more opposed to the well-being and the freedom of man than vast empires.
Nevertheless it is important to acknowledge the peculiar advantages of
great states. For the very reason which renders the desire of power more
intense in these communities than among ordinary men, the love of glory
is also more prominent in the hearts of a class of citizens, who regard
the applause of a great people as a reward worthy of their exertions,
and an elevating encouragement to man. If we would learn why it is that
great nations contribute more powerfully to the spread of human
improvement than small states, we shall discover an adequate cause in
the rapid and energetic circulation of ideas, and in those great cities
which are the intellectual centres where all the rays of human genius
are reflected and combined. To this it may be added that most important
discoveries demand a display of national power which the government of a
small state is unable to make; in great nations the government
entertains a greater number of general notions, and is more completely
disengaged from the routine of precedent and the egotism of local
prejudice; its designs are conceived with more talent, and executed with
more boldness.
In time of peace the well-being of small nations is undoubtedly more
general and more complete; but they are apt to suffer more acutely from
the calamities of war than those great empires whose distant frontiers
may for ages avert the presence of the danger from the mass of the
people, which is more frequently afflicted than ruined by the evil.
But in this matter, as in many others, the argument derived from the
necessity of the case predominates over all others. If none but small
nations existed, I do not doubt that mankind would be more happy and
more free; but the existence of great nations is unavoidable.
This consideration introduces the element of physical strength as a
condition of national prosperity.
It profits a people but little to be affluent and free, if it is
perpetually exposed to be pillaged or subjugated; the number of its
manufactures and the extent of its commerce are of small advantage, if
another nation has the empire of the seas and gives the law in all the
markets of the globe. Small nations are often impoverished, not because
they are small, but because they are weak; and great empires prosper
less because they are great than because they are strong. Physical
strength is therefore one of the first conditions of the happiness and
even of the existence of nations. Hence it occurs, that unless very
peculiar circumstances intervene, small nations are always united to
large empires in the end, either by force or by their own consent; yet I
am unacquainted with a more deplorable spectacle than that of a people
unable either to defend or to maintain its independence.
The federal system was created with the intention of combining the
different advantages which result from the greater and the lesser extent
of nations; and a single glance over the United States of America
suffices to discover the advantages which they have derived from its
adoption.
In great centralized nations the legislator is obliged to impart a
character of uniformity to the laws, which does not always suit the
diversity of customs and of districts; as he takes no cognizance of
special cases, he can only proceed upon general principles; and the
population is obliged to conform to the exigencies of the legislation,
since the legislation cannot adapt itself to the exigencies and customs
of the population; which is the cause of endless trouble and misery.
This disadvantage does not exist in confederations; congress regulates
the principal measures of the national government, and all the details
of the administration are reserved to the provincial legislatures. It is
impossible to imaging how much this division of sovereignty contributes
to the well-being of each of the states which compose the Union. In
these small communities, which are never agitated by the desire of
aggrandizement or the cares of self-defence, all public authority and
private energy is employed in internal melioration. The central
government of each state, which is in immediate juxtaposition to the
citizens, is daily apprised of the wants which arise in society; and new
projects are proposed every year, which are discussed either at
town-meetings or by the legislature of the state, and which are
transmitted by the press to stimulate the zeal and to excite the
interest of the citizens. This spirit of melioration is constantly alive
in the American republics, without compromising their tranquillity; the
ambition of power yields to the less refined and less dangerous love of
comfort. It is generally believed in America that the existence and the
permanence of the republican form of government in the New World depend
upon the existence and the permanence of the federal system; and it is
not unusual to attribute a large share of the misfortunes which have
befallen the new states of South America to the injudicious erection of
great republics, instead of a divided and confederate sovereignty.
It is incontestably true that the love and the habits of republican
government in the United States were engendered in the townships and in
the provincial assemblies. In a small state, like that of Connecticut
for instance, where cutting a canal or laying down a road is a momentous
political question, where the state has no army to pay and no wars to
carry on, and where much wealth and much honor cannot be bestowed upon
the chief citizens, no form of government can be more natural or more
appropriate than that of a republic. But it is this same republican
spirit, it is these manners and customs of a free people, which are
engendered and nurtured in the different states, to be afterward applied
to the country at large. The public spirit of the Union is, so to speak,
nothing more than an abstract of the patriotic zeal of the provinces.
Every citizen of the United States transfuses his attachment to his
little republic into the common store of American patriotism. In
defending the Union, he defends the increasing prosperity of his own
district, the right of conducting its affairs, and the hope of causing
measures of improvement to be adopted which may be favorable to his own
interests; and these are motives which are wont to stir men more readily
than the general interests of the country and the glory of the nation.
On the other hand, if the temper and the manners of the inhabitants
especially fitted them to promote the welfare of a great republic, the
federal system smoothed the obstacles which they might have encountered.
The confederation of all the American states presents none of the
ordinary disadvantages resulting from great agglomerations of men. The
Union is a great republic in extent, but the paucity of objects for
which its government provides assimilates it to a small state. Its acts
are important, but they are rare. As the sovereignty of the Union is
limited and incomplete, its exercise is not incompatible with liberty;
for it does not excite those insatiable desires of fame and power which
have proved so fatal to great republics. As there is no common centre to
the country, vast capital cities, colossal wealth, abject poverty, and
sudden revolutions are alike unknown; and political passion, instead of
spreading over the land like a torrent of desolation, spends its
strength against the interests and the individual passions of every
state.
Nevertheless, all commodities and ideas circulate throughout the Union
as freely as in a country inhabited by one people. Nothing checks the
spirit of enterprise. The government avails itself of the assistance of
all who have talents or knowledge to serve it. Within the frontiers of
the Union the profoundest peace prevails, as within the heart of some
great empire; abroad, it ranks with the most powerful nations of the
earth: two thousand miles of coast are open to the commerce of the
world; and as it possesses the keys of the globe, its flag is respected
in the most remote seas. The Union is as happy and as free as a small
people, and as glorious and as strong as a great nation.
* * * * *
WHY THE FEDERAL SYSTEM IS NOT ADAPTED TO ALL PEOPLES, AND HOW THE
ANGLO-AMERICANS WERE ENABLED TO ADOPT IT.
Every federal System contains defects which baffle the efforts of the
Legislator.--The federal System is complex.--It demands a daily Exercise
of Discretion on the Part of the Citizens.--Practical knowledge of the
Government common among the Americans.--Relative weakness of the
Government of the Union another defect inherent in the federal
System.--The Americans have diminished without remedying it.--The
Sovereignty of the separate States apparently weaker, but really
stronger, than that of the Union.--Why.--Natural causes of Union must
exist between confederate Peoples beside the Laws.--What these Causes
are among the Anglo-Americans.--Maine and Georgia, separated by a
Distance of a thousand Miles, more naturally united than Normandy and
Britany.--War, the main Peril of Confederations.--This proved even by
the Example of the United States.--The Union has no great Wars to
fear.--Why.--Dangers to which Europeans would be exposed if they adopted
the federal System of the Americans.
When a legislator succeeds, after persevering efforts, in exercising an
indirect influence upon the destiny of nations, his genius is lauded by
mankind, while in point of fact, the geographical position of the
country which he is unable to change, a social condition which arose
without his co-operation, manners and opinions which he cannot trace to
their source, and an origin with which he is unacquainted, exercise so
irresistible an influence over the courses of society, that he is
himself borne away by the current, after an ineffectual resistance. Like
the navigator, he may direct the vessel which bears him along, but he
can neither change its structure, nor raise the winds, nor lull the
waters which swell beneath him.
I have shown the advantages which the Americans derive from their
federal system; it remains for me to point out the circumstances which
render that system practicable, as its benefits are not to be enjoyed by
all nations. The incidental defects of the federal system which
originate in the laws may be corrected by the skill of the legislator,
but there are farther evils inherent in the system which cannot be
counteracted by the peoples which adopt it. These nations must therefore
find the strength necessary to support the natural imperfections of the
government.
The most prominent evil of all federal systems is the very complex
nature of the means they employ. Two sovereignties are necessarily in
the presence of each other. The legislator may simplify and equalize the
action of these two sovereignties, by limiting each of them to a sphere
of authority accurately defined; but he cannot combine them into one, or
prevent them from running into collision at certain points. The federal
system therefore rests upon a theory which is necessarily complicated,
and which demands the daily exercise of a considerable share of
discretion on the part of those it governs.
A proposition must be plain to be adopted by the understanding of a
people. A false notion, which is clear and precise, will always meet
with a greater number of adherents in the world than a true principle
which is obscure or involved. Hence it arises that parties, which are
like small communities in the heart of the nation, invariably adopt some
principle or some name as a symbol, which very inadequately represents
the end they have in view, and the means which are at their disposal,
but without which they could neither act nor subsist. The governments
which are founded upon a single principle or a single feeling which is
easily defined, are perhaps not the best, but they are unquestionably
the strongest and the most durable in the world.
In examining the constitution of the United States, which is the most
perfect federal constitution that ever existed, one is startled, on the
other hand, at the variety of information and the excellence of
discretion which it presupposes in the people whom it is meant to
govern. The government of the Union depends entirely upon legal
fictions; the Union is an ideal notion which only exists in the mind,
and whose limits and extent can only be discerned by the understanding.
When once the general theory is comprehended, numerous difficulties
remain to be solved in its application; for the sovereignty of the Union
is so involved in that of the states, that it is impossible to
distinguish its boundaries at the first glance. The whole structure of
the government is artificial and conventional; and it would be
ill-adapted to a people which has not long been accustomed to conduct
its own affairs, or to one in which the science of politics has not
descended to the humblest classes of society. I have never been more
struck by the good sense and the practical judgment of the Americans
than in the ingenious devices by which they elude the numberless
difficulties resulting from their federal constitution. I scarcely ever
met with a plain American citizen who could not distinguish, with
surprising facility, the obligations created by the laws of congress
from those created by the laws of his own state; and who, after having
discriminated between the matters which come under the cognizance of the
Union, and those which the local legislature is competent to regulate,
could not point out the exact limit of the several jurisdictions of the
federal courts and the tribunals of the state.
The constitution of the United States is like those exquisite
productions of human industry which ensure wealth and renown to their
inventors, but which are profitless in any other hands. This truth is
exemplified by the condition of Mexico at the present time. The Mexicans
were desirous of establishing a federal system, and they took the
federal constitution of their neighbors the Anglo-Americans as their
model, and copied it with considerable accuracy.[157] But although they
had borrowed the letter of the law, they were unable to create or to
introduce the spirit and the sense which gave it life. They were
involved in ceaseless embarrassments between the mechanism of their
double government; the sovereignty of the states and that of the Union
perpetually exceeded their respective privileges, and entered into
collision; and to the present day Mexico is alternately the victim of
anarchy and the slave of military despotism.
The second and the most fatal of all the defects I have alluded to, and
that which I believe to be inherent in the federal system, is the
relative weakness of the government of the Union. The principle upon
which all confederations rest is that of a divided sovereignty. The
legislator may render this partition less perceptible, he may even
conceal it for a time from the public eye, but he cannot prevent it from
existing; and a divided sovereignty must always be less powerful than an
entire supremacy. The reader has seen in the remarks I have made on the
constitution of the United States, that the Americans have displayed
singular ingenuity in combining the restriction of the power of the
Union within the narrow limits of the federal government, with the
semblance, and to a certain extent with the force of a national
government. By this means the legislators of the Union have succeeded in
diminishing, though not in counteracting, the natural danger of
confederations.
It has been remarked that the American government does not apply itself
to the states, but that it immediately transmits its injunctions to the
citizens, and compels them as isolated individuals to comply with its
demands. But if the federal law were to clash with the interests and
prejudices of a state, it might be feared that all the citizens of that
state would conceive themselves to be interested in the cause of a
single individual who should refuse to obey. If all the citizens of the
state were aggrieved at the same time and in the same manner by the
authority of the Union, the federal government would vainly attempt to
subdue them individually; they would instinctively unite in the common
defence, and they would derive a ready-prepared organization from the
share of sovereignty which the institution of their state allows them to
enjoy. Fiction would give way to reality, and an organized portion of
the territory might then contest the central authority.
The same observation holds good with regard to the federal jurisdiction.
If the courts of the Union violated an important law of a state in a
private case, the real, if not the apparent contest would arise between
the aggrieved state, represented by a citizen, and the Union,
represented by its courts of justice.[158]
He would have but a partial knowledge of the world who should imagine
that it is possible, by the aid of legal fictions, to prevent men from
finding out and employing those means of gratifying their passions which
have been left open to them; and it may be doubted whether the American
legislators, when they rendered a collision between the two
sovereignties less probable, destroyed the causes of such a misfortune.
But it may even be affirmed that they were unable to ensure the
preponderance of the federal element in a case of this kind. The Union
is possessed of money and of troops, but the affections and the
prejudices of the people are in the bosom of the states. The sovereignty
of the Union is an abstract being, which is connected with but few
external objects; the sovereignty of the states is hourly perceptible,
easily understood, constantly active; and if the former is of recent
creation, the latter is coeval with the people itself. The sovereignty
of the Union is factitious, that of the states is natural, and derives
its existence from its own simple influence, like the authority of a
parent. The supreme power of the nation affects only a few of the chief
interests of society; it represents an immense but remote country, and
claims a feeling of patriotism which is vague and ill-defined; but the
authority of the states controls every individual citizen at every hour
and in all circumstances; it protects his property, his freedom, and his
life; and when we recollect the traditions, the customs, the prejudices
of local and familiar attachment with which it is connected, we cannot
doubt the superiority of a power which is interwoven with every
circumstance that renders the love of one's native country instinctive
to the human heart.
Since legislators are unable to obviate such dangerous collisions as
occur between the two sovereignties which co-exist in the federal
system, their first object must be, not only to dissuade the confederate
states from warfare, but to encourage such institutions as may promote
the maintenance of peace. Hence it results that the federal compact
cannot be lasting unless there exists in the communities which are
leagued together, a certain number of inducements to union which render
their common dependance agreeable, and the task of the government light;
and that system cannot succeed without the presence of favorable
circumstances added to the influence of good laws. All the people which
have ever formed a confederation have been held together by a certain
number of common interests, which served as the intellectual ties of
association.
But the sentiments and the principles of man must be taken into
consideration as well as his immediate interest. A certain uniformity of
civilisation is not less necessary to the durability of a confederation,
than a uniformity of interests in the states which compose it. In
Switzerland the difference which exists between the canton of Uri and
the canton of Vaud is equal to that between the fifteenth and nineteenth
centuries; and, properly speaking, Switzerland has never possessed a
federal government. The Union between these two cantons only subsists
upon the map; and their discrepancies would soon be perceived if an
attempt were made by a central authority to prescribe the same laws to
the whole territory.
One of the circumstances which most powerfully contribute to support the
federal government in America, is that the states have not only similar
interests, a common origin, and a common tongue, but that they are also
arrived at the same stage of civilisation; which almost always renders a
union feasible. I do not know of any European nation, how small soever
it may be, which does not present less uniformity in its different
provinces than the American people, which occupies a territory as
extensive as one half of Europe. The distance from the state of Maine to
that of Georgia is reckoned at about one thousand miles; but the
difference between the civilisation of Maine and that of Georgia is
slighter than the difference between the habits of Normandy and those of
Britany. Maine and Georgia, which are placed at the opposite extremities
of a great empire, are consequently in the natural possession of more
real inducements to form a confederation than Normandy and Britany,
which are only separated by a bridge.
The geographical position of the country contributed to increase the
facilities which the American legislators derived from the manners and
customs of the inhabitants; and it is to this circumstance that the
adoption and the maintenance of the federal system are mainly
attributable.
The most important occurrence which can mark the annals of a people is
the breaking out of a war. In war a people struggle with the energy of a
single man against foreign nations, in the defence of its very
existence. The skill of a government, the good sense of the community,
and the natural fondness which men entertain for their country, may
suffice to maintain peace in the interior of a district, and to favor
its internal prosperity; but a nation can only carry on a great war at
the cost of more numerous and more painful sacrifices; and to suppose
that a great number of men will of their own accord comply with the
exigencies of the state, is to betray an ignorance of mankind. All the
peoples which have been obliged to sustain a long and serious warfare
have consequently been led to augment the power of their government.
Those which have not succeeded in this attempt have been subjugated. A
long war almost always places nations in the wretched alternative of
being abandoned to ruin by defeat, or to despotism by success. War
therefore renders the symptoms of the weakness of a government most
palpable and most alarming; and I have shown that the inherent defect of
federal governments is that of being weak.
The federal system is not only deficient in every kind of centralized
administration, but the central government itself is imperfectly
organized, which is invariably an influential cause of inferiority when
the nation is opposed to other countries which are themselves governed
by a single authority. In the federal constitution of the United States,
by which the central government possesses more real force, this evil is
still extremely sensible. An example will illustrate the case to the
reader.
The constitution confers upon congress the right of "calling forth
militia to execute the laws of the Union, suppress insurrections, and
repel invasions;" and another article declares that the president of the
United States is the commander-in-chief of the militia. In the war of
1812, the president ordered the militia of the northern states to march
to the frontiers; but Connecticut and Massachusetts, whose interests
were impaired by the war, refused to obey the command. They argued that
the constitution authorizes the federal government to call forth the
militia in cases of insurrection or invasion, but that, in the present
instance, there was neither invasion nor insurrection. They added, that
the same constitution which conferred upon the Union the right of
calling forth the militia, reserved to the states that of naming the
officers; and that consequently (as they understood the clause) no
officer of the Union had any right to command the militia, even during
war, except the president in person: and in this case they were ordered
to join an army commanded by another individual. These absurd and
pernicious doctrines received the sanction not only of the governors and
legislative bodies, but also of the courts of justice in both states;
and the federal government was constrained to raise elsewhere the troops
which it required.[159]
The only safeguard which the American Union, with all the relative
perfection of its laws, possesses against the dissolution which would be
produced by a great war, lies in its probable exemption from that
calamity. Placed in the centre of an immense continent, which offers a
boundless field for human industry, the Union is almost as much
insulated from the world as if its frontiers were girt by the ocean.
Canada contains only a million of inhabitants, and its population is
divided into two inimical nations. The rigor of the climate limits the
extension of its territory, and shuts up its ports during the six months
of winter. From Canada to the Gulf of Mexico a few savage tribes are to
be met with, which retire, perishing in their retreat, before six
thousand soldiers. To the south, the Union has a point of contact with
the empire of Mexico; and it is thence that serious hostilities may one
day be expected to arise. But for a long while to come, the uncivilized
state of the Mexican community, the depravity of its morals, and its
extreme poverty, will prevent that country from ranking high among
nations. As for the powers of Europe, they are too distant to be
formidable.[160]
The great advantage of the United States does not, then, consist in a
federal constitution which allows them to carry on great wars, but in a
geographical position, which renders such enterprises improbable.
No one can be more inclined than I am myself to appreciate the
advantages of the federal system, which I hold to be one of the
combinations most favorable to the prosperity and freedom of man. I envy
the lot of those nations which have been enabled to adopt it; but I
cannot believe that any confederate peoples could maintain a long or an
equal contest with a nation of similar strength in which the government
should be centralised. A people which should divide its sovereignty into
fractional powers, in the presence of the great military monarchies of
Europe, would, in my opinion, by that very act, abdicate its power, and
perhaps its existence and its name. But such is the admirable position
of the New World, that man has no other enemy than himself; and that in
order to be happy and to be free, it suffices to seek the gifts of
prosperity and the knowledge of freedom.
* * * * *
Notes:
[119] See the constitution of the United States.
[120] See the articles of the first confederation formed in 1778. This
constitution was not adopted by all the states until 1781. See also the
analysis given of this constitution in the Federalist, from No. 15 to
No. 22 inclusive, and Story's "Commentary on the Constitution of the
United States," pp. 85-115.
[121] Congress made this declaration on the 21st of February, 1787.
[122] It consisted of fifty-five members: Washington, Madison, Hamilton,
and the two Morrises, were among the number.
[123] It was not adopted by the legislative bodies, but representatives
were elected by the people for this sole purpose; and the new
constitution was discussed at length in each of these assemblies.
[124] See the amendment to the federal constitution; Federalist, No. 32.
Story, p. 711. Kent's Commentaries, Vol. i., p. 364.
It is to be observed, that whenever the _exclusive_ right of regulating
certain matters is not reserved to congress by the constitution, the
states may take up the affair, until it is brought before the national
assembly. For instance, congress has the right of making a general law
of bankruptcy, which, however, it neglects to do. Each state is then at
liberty to make a law for itself. This point, however, has been
established by discussion in the law-courts, and may be said to belong
more properly to jurisprudence.
[125] The action of this court is indirect, as we shall hereafter show.
[126] It is thus that the Federalist, No. 45, explains the division of
supremacy between the union and the states: "The powers delegated by the
constitution to the federal government are few and defined. Those which
are to remain in the state governments are numerous and indefinite. The
former will be exercised principally on external objects, as war, peace,
negotiation, and foreign commerce. The powers reserved to the several
states will extend to all the objects which, in the ordinary course of
affairs, concern the internal order and prosperity of the state."
I shall often have occasion to quote the Federalist in this work. When
the bill which has since become the constitution of the United States
was submitted to the approval of the people, and the discussions were
still pending, three men who had already acquired a portion of that
celebrity which they have since enjoyed, John Jay, Hamilton, and
Madison, formed an association with the intention of explaining to the
nation the advantages of the measure which was proposed. With this view
they published a series of articles in the shape of a journal, which now
form a complete treatise. They entitled their journal, "The Federalist,"
a name which has been retained in the work. The Federalist is an
excellent book, which ought to be familiar to the statesmen of all
countries, although it especially concerns America.
[127] See constitution, sect. 8. Federalist, Nos. 41 and 42. Kent's
Commentaries, vol. i., p. 207. Story, pp. 358-382; 409-426.
[128] Several other privileges of the same kind exist, such as that
which empowers the Union to legislate on bankruptcy, to grant patents,
and other matters in which its intervention is clearly necessary.
[129] Even in these cases its interference is indirect. The Union
interferes by means of the tribunals, as will be hereafter shown.
[130] Federal Constitution, sect. 10, art. 1.
[131] Constitution, sect. 8, 9, and 10. Federalist, Nos. 30-36
inclusive, and 41-44. Kent's Commentaries, vol. i., pp. 207 and 381.
Story pp. 329 and 514.
[132] Every ten years congress fixes anew the number of representatives
which each state is to furnish. The total number was 69 in 1789, and 240
in 1833. (See American Almanac, 1834, p. 194.)
The constitution decided that there should not be more than one
representative for every 30,000 persons; but no minimum was fixed upon.
The congress has not thought fit to augment the number of
representatives in proportion to the increase of population. The first
act which was passed on the subject (14th April, 1792: see Laws of the
United States, by Story, vol. i., p. 235) decided that there should be
one representative for every 33,000 inhabitants. The last act, which was
passed in 1822, fixes the proportion at one for 48,000. The population
represented is composed of all the freemen and of three-fifths of the
slaves.
[133] See the Federalist, Nos. 52-66, inclusive. Story, pp. 199-314
Constitution of the United States, sections 2 and 3.
[134] See the Federalist, Nos. 67-77. Constitution of the United States,
a. t. 2. Story, pp. 115; 515-780. Kent's Commentaries, p. 255.
[135] The constitution had left it doubtful whether the president was
obliged to consult the senate in the removal as well as in the
appointment of federal officers. The Federalist (No. 77) seemed to
establish the affirmative; but in 1789, congress formally decided that
as the president was responsible for his actions, he ought not to be
forced to employ agents who had forfeited his esteem. See Kent's
Commentaries, vol. i., p. 289.
[136] The sums annually paid by the state to these officers amount to
200,000,000 francs (eight millions sterling).
[137] This number is extracted from the "National Calendar," for 1833.
The National Calendar is an American almanac which contains the names of
all the federal officers.
It results from this comparison that the king of France has eleven times
as many places at his disposal as the president, although the population
of France is not much more than double that of the Union.
[138] As many as it sends members to congress. The number of electors at
the election of 1833 was 288. (See the National Calendar, 1833.)
[139] The electors of the same state assemble, but they transmit to the
central government the list of their individual votes, and not the mere
result of the vote of the majority.
[140] In this case it is the majority of the states, and not the
majority of the members, which decides the question; so that New York
has not more influence in the debate than Rhode Island. Thus the
citizens of the Union are first consulted as members of one and the same
community; and, if they cannot agree, recourse is had to the division of
the states, each of which has a separate and independent vote. This is
one of the singularities of the federal constitution which can only be
explained by the jar of conflicting interests.
[141] Jefferson, in 1801, was not elected until the thirty-sixth time of
balloting.
[142] See chapter vi., entitled, "Judicial Power in the United States."
This chapter explains the general principles of the American theory of
judicial institutions. See also the federal constitution, art. 3. See
the Federalist, Nos. 78-83, inclusive: and a work entitled,
"Constitutional Law, being a View of the Practice and Jurisdiction of
the Courts of the United States," by Thomas Sergeant. See Story, pp.
134, 162, 489, 511, 581, 668; and the organic law of the 24th September,
1789, in the collection of the laws of the United States, by Story, vol.
i., p. 53.
[143] Federal laws are those which most require courts of justice, and
those at the same time which have most rarely established them. The
reason is that confederations have usually been formed by independent
states, which entertained no real intention of obeying the central
government, and which very readily ceded the right of commanding to the
federal executive, and very prudently reserved the right of
non-compliance to themselves.
[144] The Union was divided into districts, in each of which a resident
federal judge was appointed, and the court in which he presided was
termed a "district court." Each of the judges of the supreme court
annually visits a certain portion of the Republic, in order to try the
most important causes upon the spot; the court presided over by this
magistrate is styled a "circuit court." Lastly, all the most serious
cases of litigation are brought before the supreme court, which holds a
solemn session once a year, at which all the judges of the circuit
courts must attend. The jury was introduced into the federal courts in
the same manner, and in the same cases as into the courts of the states.
It will be observed that no analogy exists between the supreme court of
the United States and the French cour de cassation, since the latter
only hears appeals. The supreme court decides upon the evidence of the
fact, as well as upon the law of the case, whereas the cour de cassation
does not pronounce a decision of its own, but refers the cause to the
arbitration of another tribunal. See the law of 24th September, 1789,
laws of the United States, by Story, vol. i., p. 53.
[145] In order to diminish the number of these suits, it was decided
that in a great many federal causes, the courts of the states should be
empowered to decide conjointly with those of the Union, the losing party
having then a right of appeal to the supreme court of the United States.
The supreme court of Virginia contested the right of the supreme court
of the United States to judge an appeal from its decisions, but
unsuccessfully. See Kent's Commentaries, vol. i., pp. 350, 370, _et
seq._; Story's Commentaries, p. 646; and "The Organic Law of the United
States," vol. i., p. 35
[146] The constitution also says that the federal courts shall decide
"controversies between a state and the citizens of another state." And
here a most important question of a constitutional nature arose, which
was, whether the jurisdiction given by the constitution in cases in
which a state is a party, extended to suits brought _against_ a state as
well as _by_ it, or was exclusively confined to the latter. This
question was most elaborately considered in the case of _Chisholme_ v.
_Georgia_, and was decided by the majority of the supreme court in the
affirmative. The decision created general alarm among the states, and an
amendment was proposed and ratified by which the power was entirely
taken away so far as it regards suits brought against a state. See
Story's Commentaries, p. 624, or in the large edition, sec. 1677.
[147] As, for instance, all cases of piracy.
[148] This principle was in some measure restricted by the introduction
of the several states as independent powers into the senate, and by
allowing them to vote separately in the house of representatives when
the president is elected by that body; but these are exceptions, and the
contrary principle is the rule.
[149] It is perfectly clear, says Mr. Story (Commentaries, p. 503, or in
the large edition, sec. 1379), that any law which enlarges, abridges, or in
any manner changes the intention of the parties, resulting from the
stipulations in the contract, necessarily impairs it. He gives in the
same place a very long and careful definition of what is understood by a
contract in federal jurisprudence. A grant made by the state to a
private individual, and accepted by him, is a contract, and cannot be
revoked by any future law. A charter granted by the state to a company
is a contract, and equally binding to the state as to the grantee. The
clause of the constitution here referred to ensures, therefore, the
existence of a great part of acquired rights, but not of all. Property
may legally be held, though it may not have passed into the possessor's
hands by means of a contract; and its possession is an acquired right,
not guaranteed by the federal constitution.
[150] A remarkable instance of this is given by Mr. Story (p. 508, or in
the large edition, sec. 1388). "Dartmouth college in New Hampshire had
been founded by a charter granted to certain individuals before the
American revolution, and its trustees formed a corporation under this
charter. The legislature of New Hampshire had, without the consent of
this corporation, passed an act changing the organization of the
original provincial charter of the college, and transferring all the
rights, privileges, and franchises, from the old charter trustees to new
trustees appointed under the act. The constitutionality of the act was
contested, and after solemn arguments, it was deliberately held by the
supreme court that the provincial charter was a contract within the
meaning of the constitution (art. i, sect. 10), and that the amendatory
act was utterly void, as impairing the obligation of that charter. The
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