Democracy In America, Volume 1
by
Alexis de Toqueville
Part 3 out of 11
school-committee, it is liable to a heavy fine. But this penalty
is pronounced by the Supreme Judicial Court or the Court of
Common Pleas. See Act of March 10, 1827, Laws of Massachusetts,
vol. iii. p. 190. Or when a township neglects to provide the
necessary war-stores. - Act of February 21, 1822: Id., vol. ii.
p. 570.]
[Footnote t: In their individual capacity the justices of the
peace take a part in the business of the counties and townships.]
[Footnote u: These affairs may be brought under the following
heads: - 1. The erection of prisons and courts of justice. 2.
The county budget, which is afterwards voted by the State. 3.
The distribution of the taxes so voted. 4. Grants of certain
patents. 5. The laying down and repairs of the country roads.]
[Footnote v: Thus, when a road is under consideration, almost all
difficulties are disposed of by the aid of the jury.]
The first difficulty is to procure the obedience of an
authority as entirely independent of the general laws of the
State as the township is. We have stated that assessors are
annually named by the town-meetings to levy the taxes. If a
township attempts to evade the payment of the taxes by neglecting
to name its assessors, the Court of Sessions condemns it to a
heavy penalty. *w The fine is levied on each of the inhabitants;
and the sheriff of the county, who is the officer of justice,
executes the mandate. Thus it is that in the United States the
authority of the Government is mysteriously concealed under the
forms of a judicial sentence; and its influence is at the same
time fortified by that irresistible power with which men have
invested the formalities of law.
[Footnote w: See Act of February 20, 1786, Laws of Massachusetts,
vol. i. p. 217.]
These proceedings are easy to follow and to understand. The
demands made upon a township are in general plain and accurately
defined; they consist in a simple fact without any complication,
or in a principle without its application in detail. *x But the
difficulty increases when it is not the obedience of the
township, but that of the town officers which is to be enforced.
All the reprehensible actions of which a public functionary may
be guilty are reducible to the following heads:
[Footnote x: There is an indirect method of enforcing the
obedience of a township. Suppose that the funds which the law
demands for the maintenance of the roads have not been voted, the
town surveyor is then authorized, ex officio, to levy the
supplies. As he is personally responsible to private individuals
for the state of the roads, and indictable before the Court of
Sessions, he is sure to employ the extraordinary right which the
law gives him against the township. Thus by threatening the
officer the Court of Sessions exacts compliance from the town.
See Act of March 5, 1787, Id., vol. i. p. 305.]
He may execute the law without energy or zeal;
He may neglect to execute the law;
He may do what the law enjoins him not to do.
The last two violations of duty can alone come under the
cognizance of a tribunal; a positive and appreciable fact is the
indispensable foundation of an action at law. Thus, if the
selectmen omit to fulfil the legal formalities usual at town
elections, they may be condemned to pay a fine; *y but when the
public officer performs his duty without ability, and when he
obeys the letter of the law without zeal or energy, he is at
least beyond the reach of judicial interference. The Court of
Sessions, even when it is invested with its official powers, is
in this case unable to compel him to a more satisfactory
obedience. The fear of removal is the only check to these
quasi-offences; and as the Court of Sessions does not originate
the town authorities, it cannot remove functionaries whom it does
not appoint. Moreover, a perpetual investigation would be
necessary to convict the officer of negligence or lukewarmness;
and the Court of Sessions sits but twice a year and then only
judges such offences as are brought before its notice. The only
security of that active and enlightened obedience which a court
of justice cannot impose upon public officers lies in the
possibility of their arbitrary removal. In France this security
is sought for in powers exercised by the heads of the
administration; in America it is sought for in the principle of
election.
[Footnote y: Laws of Massachusetts, vol. ii. p. 45.]
Thus, to recapitulate in a few words what I have been
showing: If a public officer in New England commits a crime in
the exercise of his functions, the ordinary courts of justice are
always called upon to pass sentence upon him. If he commits a
fault in his official capacity, a purely administrative tribunal
is empowered to punish him; and, if the affair is important or
urgent, the judge supplies the omission of the functionary. *z
Lastly, if the same individual is guilty of one of those
intangible offences of which human justice has no cognizance, he
annually appears before a tribunal from which there is no appeal,
which can at once reduce him to insignificance and deprive him of
his charge. This system undoubtedly possesses great advantages,
but its execution is attended with a practical difficulty which
it is important to point out.
[Footnote z: If, for instance, a township persists in refusing to
name its assessors, the Court of Sessions nominates them; and the
magistrates thus appointed are invested with the same authority
as elected officers. See the Act quoted above, February 20,
1787.]
I have already observed that the administrative tribunal,
which is called the Court of Sessions, has no right of inspection
over the town officers. It can only interfere when the conduct
of a magistrate is specially brought under its notice; and this
is the delicate part of the system. The Americans of New England
are unacquainted with the office of public prosecutor in the
Court of Sessions, *a and it may readily be perceived that it
could not have been established without difficulty. If an
accusing magistrate had merely been appointed in the chief town
of each county, and if he had been unassisted by agents in the
townships, he would not have been better acquainted with what was
going on in the county than the members of the Court of Sessions.
But to appoint agents in each township would have been to centre
in his person the most formidable of powers, that of a judicial
administration. Moreover, laws are the children of habit, and
nothing of the kind exists in the legislation of England. The
Americans have therefore divided the offices of inspection and of
prosecution, as well as all the other functions of the
administration. Grand jurors are bound by the law to apprise the
court to which they belong of all the misdemeanors which may have
been committed in their county. *b There are certain great
offences which are officially prosecuted by the States; *c but
more frequently the task of punishing delinquents devolves upon
the fiscal officer, whose province it is to receive the fine:
thus the treasurer of the township is charged with the
prosecution of such administrative offences as fall under his
notice. But a more special appeal is made by American
legislation to the private interest of the citizen; *d and this
great principle is constantly to be met with in studying the laws
of the United States. American legislators are more apt to give
men credit for intelligence than for honesty, and they rely not a
little on personal cupidity for the execution of the laws. When
an individual is really and sensibly injured by an administrative
abuse, it is natural that his personal interest should induce him
to prosecute. But if a legal formality be required, which,
however advantageous to the community, is of small importance to
individuals, plaintiffs may be less easily found; and thus, by a
tacit agreement, the laws may fall into disuse. Reduced by their
system to this extremity, the Americans are obliged to encourage
informers by bestowing on them a portion of the penalty in
certain cases, *e and to insure the execution of the laws by the
dangerous expedient of degrading the morals of the people. The
only administrative authority above the county magistrates is,
properly speaking, that of the Government.
[Footnote a: I say the Court of Sessions, because in common
courts there is a magistrate who exercises some of the functions
of a public prosecutor.]
[Footnote b: The grand-jurors are, for instance, bound to inform
the court of the bad state of the roads. - Laws of Massachusetts,
vol. i. p. 308.]
[Footnote c: If, for instance, the treasurer of the county holds
back his accounts. - Laws of Massachusetts, vol. i. p. 406.]
[Footnote d: Thus, if a private individual breaks down or is
wounded in consequence of the badness of a road, he can sue the
township or the county for damages at the sessions. - Laws of
Massachusetts, vol. i. p. 309.]
[Footnote e: In cases of invasion or insurrection, if the town-
officers neglect to furnish the necessary stores and ammunition
for the militia, the township may be condemned to a fine of from
$200 to $500. It may readily be imagined that in such a case it
might happen that no one cared to prosecute; hence the law adds
that all the citizens may indict offences of this kind, and that
half of the fine shall belong to the plaintiff. See Act of March
6, 1810, vol. ii. p. 236. The same clause is frequently to be
met with in the law of Massachusetts. Not only are private
individuals thus incited to prosecute the public officers, but
the public officers are encouraged in the same manner to bring
the disobedience of private individuals to justice. If a citizen
refuses to perform the work which has been assigned to him upon a
road, the road surveyor may prosecute him, and he receives half
the penalty for himself. See the Laws above quoted, vol. i. p.
308.]
General Remarks On The Administration Of The United States
Differences of the States of the Union in their system of
administration -Activity and perfection of the local authorities
decrease towards the South -Power of the magistrate increases;
that of the elector diminishes -Administration passes from the
township to the county - States of New York, Ohio, Pennsylvania -
Principles of administration applicable to the whole Union -
Election of public officers, and inalienability of their
functions -Absence of gradation of ranks - Introduction of
judicial resources into the administration.
I have already premised that, after having examined the
constitution of the township and the county of New England in
detail, I should take a general view of the remainder of the
Union. Townships and a local activity exist in every State; but
in no part of the confederation is a township to be met with
precisely similar to those of New England. The more we descend
towards the South, the less active does the business of the
township or parish become; the number of magistrates, of
functions, and of rights decreases; the population exercises a
less immediate influence on affairs; town meetings are less
frequent, and the subjects of debate less numerous. The power of
the elected magistrate is augmented and that of the elector
diminished, whilst the public spirit of the local communities is
less awakened and less influential. *f These differences may be
perceived to a certain extent in the State of New York; they are
very sensible in Pennsylvania; but they become less striking as
we advance to the northwest. The majority of the emigrants who
settle in the northwestern States are natives of New England, and
they carry the habits of their mother country with them into that
which they adopt. A township in Ohio is by no means dissimilar
from a township in Massachusetts.
[Footnote f: For details see the Revised Statutes of the State of
New York, part i. chap. xi. vol. i. pp. 336-364, entitled, "Of
the Powers, Duties, and Privileges of Towns."
See in the Digest of the Laws of Pennsylvania, the words
Assessors, Collector, Constables, Overseer of the Poor,
Supervisors of Highways; and in the Acts of a general nature of
the State of Ohio, the Act of February 25, 1834, relating to
townships, p. 412; besides the peculiar dispositions relating to
divers town-officers, such as Township's Clerk, Trustees,
Overseers of the Poor, Fence Viewers, Appraisers of Property,
Township's Treasurer, Constables, Supervisors of Highways.]
We have seen that in Massachusetts the mainspring of public
administration lies in the township. It forms the common centre
of the interests and affections of the citizens. But this ceases
to be the case as we descend to States in which knowledge is less
generally diffused, and where the township consequently offers
fewer guarantees of a wise and active administration. As we
leave New England, therefore, we find that the importance of the
town is gradually transferred to the county, which becomes the
centre of administration, and the intermediate power between the
Government and the citizen. In Massachusetts the business of the
county is conducted by the Court of Sessions, which is composed
of a quorum named by the Governor and his council; but the county
has no representative assembly, and its expenditure is voted by
the national legislature. In the great State of New York, on the
contrary, and in those of Ohio and Pennsylvania, the inhabitants
of each county choose a certain number of representatives, who
constitute the assembly of the county. *g The county assembly has
the right of taxing the inhabitants to a certain extent; and in
this respect it enjoys the privileges of a real legislative body:
at the same time it exercises an executive power in the county,
frequently directs the administration of the townships, and
restricts their authority within much narrower bounds than in
Massachusetts.
[Footnote g: See the Revised Statutes of the State of New York,
part i. chap. xi. vol. i. p. 340. Id. chap. xii. p. 366; also in
the Acts of the State of Ohio, an act relating to county
commissioners, February 25, 1824, p. 263. See the Digest of the
Laws of Pennsylvania, at the words County-rates and Levies, p.
170.
In the State of New York each township elects a
representative, who has a share in the administration of the
county as well as in that of the township.]
Such are the principal differences which the systems of
county and town administration present in the Federal States.
Were it my intention to examine the provisions of American law
minutely, I should have to point out still further differences in
the executive details of the several communities. But what I
have already said may suffice to show the general principles on
which the administration of the United States rests. These
principles are differently applied; their consequences are more
or less numerous in various localities; but they are always
substantially the same. The laws differ, and their outward
features change, but their character does not vary. If the
township and the county are not everywhere constituted in the
same manner, it is at least true that in the United States the
county and the township are always based upon the same principle,
namely, that everyone is the best judge of what concerns himself
alone, and the most proper person to supply his private wants.
The township and the county are therefore bound to take care of
their special interests: the State governs, but it does not
interfere with their administration. Exceptions to this rule may
be met with, but not a contrary principle.
The first consequence of this doctrine has been to cause all
the magistrates to be chosen either by or at least from amongst
the citizens. As the officers are everywhere elected or appointed
for a certain period, it has been impossible to establish the
rules of a dependent series of authorities; there are almost as
many independent functionaries as there are functions, and the
executive power is disseminated in a multitude of hands. Hence
arose the indispensable necessity of introducing the control of
the courts of justice over the administration, and the system of
pecuniary penalties, by which the secondary bodies and their
representatives are constrained to obey the laws. This system
obtains from one end of the Union to the other. The power of
punishing the misconduct of public officers, or of performing the
part of the executive in urgent cases, has not, however, been
bestowed on the same judges in all the States. The
Anglo-Americans derived the institution of justices of the peace
from a common source; but although it exists in all the States,
it is not always turned to the same use. The justices of the
peace everywhere participate in the administration of the
townships and the counties, *h either as public officers or as
the judges of public misdemeanors, but in most of the States the
more important classes of public offences come under the
cognizance of the ordinary tribunals.
[Footnote h: In some of the Southern States the county courts are
charged with all the details of the administration. See the
Statutes of the State of Tennessee, arts. Judiciary, Taxes,
etc.]
The election of public officers, or the inalienability of
their functions, the absence of a gradation of powers, and the
introduction of a judicial control over the secondary branches of
the administration, are the universal characteristics of the
American system from Maine to the Floridas. In some States (and
that of New York has advanced most in this direction) traces of a
centralized administration begin to be discernible. In the State
of New York the officers of the central government exercise, in
certain cases, a sort of inspection or control over the secondary
bodies. *i
[Footnote i: For instance, the direction of public instruction
centres in the hands of the Government. The legislature names
the members of the University, who are denominated Regents; the
Governor and Lieutentant-Governor of the State are necessarily of
the number. - Revised Statutes, vol. i. p. 455. The Regents of
the University annually visit the colleges and academies, and
make their report to the legislature. Their superintendence is
not inefficient, for several reasons: the colleges in order to
become corporations stand in need of a charter, which is only
granted on the recommendation of the Regents; every year funds
are distributed by the State for the encouragement of learning,
and the Regents are the distributors of this money. See chap.
xv. Instruction," Revised Statutes, vol. i. p. 455.
The school-commissioners are obliged to send an annual
report to the Superintendent of the Republic. - Id. p. 488.
A similar report is annually made to the same person on the
number and condition of the poor. - Id. p. 631.]
At other times they constitute a court of appeal for the
decision of affairs. *j In the State of New York judicial
penalties are less used than in other parts as a means of
administration, and the right of prosecuting the offences of
public officers is vested in fewer hands. *k The same tendency is
faintly observable in some other States; *l but in general the
prominent feature of the administration in the United States is
its excessive local independence.
[Footnote j: If any one conceives himself to be wronged by the
school-commissioners (who are town-officers), he can appeal to
the superintendent of the primary schools, whose decision is
final. - Revised Statutes, vol. i. p. 487.
Provisions similar to those above cited are to be met with
from time to time in the laws of the State of New York; but in
general these attempts at centralization are weak and
unproductive. The great authorities of the State have the right
of watching and controlling the subordinate agents, without that
of rewarding or punishing them. The same individual is never
empowered to give an order and to punish disobedience; he has
therefore the right of commanding, without the means of exacting
compliance. In 1830 the Superintendent of Schools complained in
his Annual Report addressed to the legislature that several
school-commissioners had neglected, notwithstanding his
application, to furnish him with the accounts which were due. He
added that if this omission continued he should be obliged to
prosecute them, as the law directs, before the proper tribunals.]
[Footnote k: Thus the district-attorney is directed to recover
all fines below the sum of fifty dollars, unless such a right has
been specially awarded to another magistrate. - Revised Statutes,
vol. i. p. 383.]
[Footnote l: Several traces of centralization may be discovered
in Massachusetts; for instance, the committees of the
town-schools are directed to make an annual report to the
Secretary of State. See Laws of Massachusetts, vol. i. p. 367.]
Of The State
I have described the townships and the administration; it
now remains for me to speak of the State and the Government.
This is ground I may pass over rapidly, without fear of being
misunderstood; for all I have to say is to be found in written
forms of the various constitutions, which are easily to be
procured. These constitutions rest upon a simple and rational
theory; their forms have been adopted by all constitutional
nations, and are become familiar to us. In this place,
therefore, it is only necessary for me to give a short analysis;
I shall endeavor afterwards to pass judgment upon what I now
describe.
Chapter V: Necessity Of Examining The Condition Of The States -
Part III
Legislative Power Of The State
Division of the Legislative Body into two Houses - Senate - House
of Representatives - Different functions of these two Bodies.
The legislative power of the State is vested in two
assemblies, the first of which generally bears the name of the
Senate. The Senate is commonly a legislative body; but it
sometimes becomes an executive and judicial one. It takes a part
in the government in several ways, according to the constitution
of the different States; *m but it is in the nomination of public
functionaries that it most commonly assumes an executive power.
It partakes of judicial power in the trial of certain political
offences, and sometimes also in the decision of certain civil
cases. *n The number of its members is always small. The other
branch of the legislature, which is usually called the House of
Representatives, has no share whatever in the administration, and
only takes a part in the judicial power inasmuch as it impeaches
public functionaries before the Senate. The members of the two
Houses are nearly everywhere subject to the same conditions of
election. They are chosen in the same manner, and by the same
citizens. The only difference which exists between them is, that
the term for which the Senate is chosen is in general longer than
that of the House of Representatives. The latter seldom remain in
office longer than a year; the former usually sit two or three
years. By granting to the senators the privilege of being chosen
for several years, and being renewed seriatim, the law takes care
to preserve in the legislative body a nucleus of men already
accustomed to public business, and capable of exercising a
salutary influence upon the junior members.
[Footnote m: In Massachusetts the Senate is not invested with any
administrative functions.]
[Footnote n: As in the State of New York.]
The Americans, plainly, did not desire, by this separation
of the legislative body into two branches, to make one house
hereditary and the other elective; one aristocratic and the other
democratic. It was not their object to create in the one a
bulwark to power, whilst the other represented the interests and
passions of the people. The only advantages which result from
the present constitution of the United States are the division of
the legislative power and the consequent check upon political
assemblies; with the creation of a tribunal of appeal for the
revision of the laws.
Time and experience, however, have convinced the Americans
that if these are its only advantages, the division of the
legislative power is still a principle of the greatest necessity.
Pennsylvania was the only one of the United States which at first
attempted to establish a single House of Assembly, and Franklin
himself was so far carried away by the necessary consequences of
the principle of the sovereignty of the people as to have
concurred in the measure; but the Pennsylvanians were soon
obliged to change the law, and to create two Houses. Thus the
principle of the division of the legislative power was finally
established, and its necessity may henceforward be regarded as a
demonstrated truth. This theory, which was nearly unknown to the
republics of antiquity - which was introduced into the world
almost by accident, like so many other great truths - and
misunderstood by several modern nations, is at length become an
axiom in the political science of the present age.
[See Benjamin Franklin]
The Executive Power Of The State
Office of Governor in an American State - The place he occupies
in relation to the Legislature - His rights and his duties - His
dependence on the people.
The executive power of the State may with truth be said to
be represented by the Governor, although he enjoys but a portion
of its rights. The supreme magistrate, under the title of
Governor, is the official moderator and counsellor of the
legislature. He is armed with a veto or suspensive power, which
allows him to stop, or at least to retard, its movements at
pleasure. He lays the wants of the country before the legislative
body, and points out the means which he thinks may be usefully
employed in providing for them; he is the natural executor of its
decrees in all the undertakings which interest the nation at
large. *o In the absence of the legislature, the Governor is
bound to take all necessary steps to guard the State against
violent shocks and unforeseen dangers. The whole military power
of the State is at the disposal of the Governor. He is the
commander of the militia, and head of the armed force. When the
authority, which is by general consent awarded to the laws, is
disregarded, the Governor puts himself at the head of the armed
force of the State, to quell resistance, and to restore order.
Lastly, the Governor takes no share in the administration of
townships and counties, except it be indirectly in the nomination
of Justices of the Peace, which nomination he has not the power
to cancel. *p The Governor is an elected magistrate, and is
generally chosen for one or two years only; so that he always
continues to be strictly dependent upon the majority who returned
him.
[Footnote o: Practically speaking, it is not always the Governor
who executes the plans of the Legislature; it often happens that
the latter, in voting a measure, names special agents to
superintend the execution of it.]
[Footnote p: In some of the States the justices of the peace are
not elected by the Governor.]
Political Effects Of The System Of Local Administration In The
United States
Necessary distinction between the general centralization of
Government and the centralization of the local administration -
Local administration not centralized in the United States: great
general centralization of the Government - Some bad consequences
resulting to the United States from the local administration -
Administrative advantages attending this order of things - The
power which conducts the Government is less regular, less
enlightened, less learned, but much greater than in Europe -
Political advantages of this order of things - In the United
States the interests of the country are everywhere kept in view -
Support given to the Government by the community - Provincial
institutions more necessary in proportion as the social condition
becomes more democratic - Reason of this.
Centralization is become a word of general and daily use,
without any precise meaning being attached to it. Nevertheless,
there exist two distinct kinds of centralization, which it is
necessary to discriminate with accuracy. Certain interests are
common to all parts of a nation, such as the enactment of its
general laws and the maintenance of its foreign relations. Other
interests are peculiar to certain parts of the nation; such, for
instance, as the business of different townships. When the power
which directs the general interests is centred in one place, or
vested in the same persons, it constitutes a central government.
In like manner the power of directing partial or local interests,
when brought together into one place, constitutes what may be
termed a central administration.
Upon some points these two kinds of centralization coalesce;
but by classifying the objects which fall more particularly
within the province of each of them, they may easily be
distinguished. It is evident that a central government acquires
immense power when united to administrative centralization. Thus
combined, it accustoms men to set their own will habitually and
completely aside; to submit, not only for once, or upon one
point, but in every respect, and at all times. Not only,
therefore, does this union of power subdue them compulsorily, but
it affects them in the ordinary habits of life, and influences
each individual, first separately and then collectively.
These two kinds of centralization mutually assist and
attract each other; but they must not be supposed to be
inseparable. It is impossible to imagine a more completely
central government than that which existed in France under Louis
XIV.; when the same individual was the author and the interpreter
of the laws, and the representative of France at home and abroad,
he was justified in asserting that the State was identified with
his person. Nevertheless, the administration was much less
centralized under Louis XIV. than it is at the present day.
In England the centralization of the government is carried
to great perfection; the State has the compact vigor of a man,
and by the sole act of its will it puts immense engines in
motion, and wields or collects the efforts of its authority.
Indeed, I cannot conceive that a nation can enjoy a secure or
prosperous existence without a powerful centralization of
government. But I am of opinion that a central administration
enervates the nations in which it exists by incessantly
diminishing their public spirit. If such an administration
succeeds in condensing at a given moment, on a given point, all
the disposable resources of a people, it impairs at least the
renewal of those resources. It may ensure a victory in the hour
of strife, but it gradually relaxes the sinews of strength. It
may contribute admirably to the transient greatness of a man, but
it cannot ensure the durable prosperity of a nation.
If we pay proper attention, we shall find that whenever it
is said that a State cannot act because it has no central point,
it is the centralization of the government in which it is
deficient. It is frequently asserted, and we are prepared to
assent to the proposition, that the German empire was never able
to bring all its powers into action. But the reason was, that
the State was never able to enforce obedience to its general
laws, because the several members of that great body always
claimed the right, or found the means, of refusing their
co-operation to the representatives of the common authority, even
in the affairs which concerned the mass of the people; in other
words, because there was no centralization of government. The
same remark is applicable to the Middle Ages; the cause of all
the confusion of feudal society was that the control, not only of
local but of general interests, was divided amongst a thousand
hands, and broken up in a thousand different ways; the absence of
a central government prevented the nations of Europe from
advancing with energy in any straightforward course.
We have shown that in the United States no central
administration and no dependent series of public functionaries
exist. Local authority has been carried to lengths which no
European nation could endure without great inconvenience, and
which has even produced some disadvantageous consequences in
America. But in the United States the centralization of the
Government is complete; and it would be easy to prove that the
national power is more compact than it has ever been in the old
nations of Europe. Not only is there but one legislative body in
each State; not only does there exist but one source of political
authority; but district assemblies and county courts have not in
general been multiplied, lest they should be tempted to exceed
their administrative duties, and interfere with the Government.
In America the legislature of each State is supreme; nothing can
impede its authority; neither privileges, nor local immunities,
nor personal influence, nor even the empire of reason, since it
represents that majority which claims to be the sole organ of
reason. Its own determination is, therefore, the only limit to
this action. In juxtaposition to it, and under its immediate
control, is the representative of the executive power, whose duty
it is to constrain the refractory to submit by superior force.
The only symptom of weakness lies in certain details of the
action of the Government. The American republics have no
standing armies to intimidate a discontented minority; but as no
minority has as yet been reduced to declare open war, the
necessity of an army has not been felt. *q The State usually
employs the officers of the township or the county to deal with
the citizens. Thus, for instance, in New England, the assessor
fixes the rate of taxes; the collector receives them; the
town-treasurer transmits the amount to the public treasury; and
the disputes which may arise are brought before the ordinary
courts of justice. This method of collecting taxes is slow as
well as inconvenient, and it would prove a perpetual hindrance to
a Government whose pecuniary demands were large. It is desirable
that, in whatever materially affects its existence, the
Government should be served by officers of its own, appointed by
itself, removable at pleasure, and accustomed to rapid methods of
proceeding. But it will always be easy for the central
government, organized as it is in America, to introduce new and
more efficacious modes of action, proportioned to its wants.
[Footnote q: [The Civil War of 1860-65 cruelly belied this
statement, and in the course of the struggle the North alone
called two millions and a half of men to arms; but to the honor
of the United States it must be added that, with the cessation of
the contest, this army disappeared as rapidly as it had been
raised. - Translator's Note.]]
The absence of a central government will not, then, as has
often been asserted, prove the destruction of the republics of
the New World; far from supposing that the American governments
are not sufficiently centralized, I shall prove hereafter that
they are too much so. The legislative bodies daily encroach upon
the authority of the Government, and their tendency, like that of
the French Convention, is to appropriate it entirely to
themselves. Under these circumstances the social power is
constantly changing hands, because it is subordinate to the power
of the people, which is too apt to forget the maxims of wisdom
and of foresight in the consciousness of its strength: hence
arises its danger; and thus its vigor, and not its impotence,
will probably be the cause of its ultimate destruction.
The system of local administration produces several
different effects in America. The Americans seem to me to have
outstepped the limits of sound policy in isolating the
administration of the Government; for order, even in second-rate
affairs, is a matter of national importance. *r As the State has
no administrative functionaries of its own, stationed on
different points of its territory, to whom it can give a common
impulse, the consequence is that it rarely attempts to issue any
general police regulations. The want of these regulations is
severely felt, and is frequently observed by Europeans. The
appearance of disorder which prevails on the surface leads him at
first to imagine that society is in a state of anarchy; nor does
he perceive his mistake till he has gone deeper into the subject.
Certain undertakings are of importance to the whole State; but
they cannot be put in execution, because there is no national
administration to direct them. Abandoned to the exertions of the
towns or counties, under the care of elected or temporary agents,
they lead to no result, or at least to no durable benefit.
[Footnote r: The authority which represents the State ought not,
I think, to waive the right of inspecting the local
administration, even when it does not interfere more actively.
Suppose, for instance, that an agent of the Government was
stationed at some appointed spot in the country, to prosecute the
misdemeanors of the town and county officers, would not a more
uniform order be the result, without in any way compromising the
independence of the township? Nothing of the kind, however,
exists in America: there is nothing above the county-courts,
which have, as it were, only an incidental cognizance of the
offences they are meant to repress.]
The partisans of centralization in Europe are wont to
maintain that the Government directs the affairs of each locality
better than the citizens could do it for themselves; this may be
true when the central power is enlightened, and when the local
districts are ignorant; when it is as alert as they are slow;
when it is accustomed to act, and they to obey. Indeed, it is
evident that this double tendency must augment with the increase
of centralization, and that the readiness of the one and the
incapacity of the others must become more and more prominent.
But I deny that such is the case when the people is as
enlightened, as awake to its interests, and as accustomed to
reflect on them, as the Americans are. I am persuaded, on the
contrary, that in this case the collective strength of the
citizens will always conduce more efficaciously to the public
welfare than the authority of the Government. It is difficult to
point out with certainty the means of arousing a sleeping
population, and of giving it passions and knowledge which it does
not possess; it is, I am well aware, an arduous task to persuade
men to busy themselves about their own affairs; and it would
frequently be easier to interest them in the punctilios of court
etiquette than in the repairs of their common dwelling. But
whenever a central administration affects to supersede the
persons most interested, I am inclined to suppose that it is
either misled or desirous to mislead. However enlightened and
however skilful a central power may be, it cannot of itself
embrace all the details of the existence of a great nation. Such
vigilance exceeds the powers of man. And when it attempts to
create and set in motion so many complicated springs, it must
submit to a very imperfect result, or consume itself in bootless
efforts.
Centralization succeeds more easily, indeed, in subjecting
the external actions of men to a certain uniformity, which at
least commands our regard, independently of the objects to which
it is applied, like those devotees who worship the statue and
forget the deity it represents. Centralization imparts without
difficulty an admirable regularity to the routine of business;
provides for the details of the social police with sagacity;
represses the smallest disorder and the most petty misdemeanors;
maintains society in a status quo alike secure from improvement
and decline; and perpetuates a drowsy precision in the conduct of
affairs, which is hailed by the heads of the administration as a
sign of perfect order and public tranquillity: *s in short, it
excels more in prevention than in action. Its force deserts it
when society is to be disturbed or accelerated in its course; and
if once the co-operation of private citizens is necessary to the
furtherance of its measures, the secret of its impotence is
disclosed. Even whilst it invokes their assistance, it is on the
condition that they shall act exactly as much as the Government
chooses, and exactly in the manner it appoints. They are to take
charge of the details, without aspiring to guide the system; they
are to work in a dark and subordinate sphere, and only to judge
the acts in which they have themselves cooperated by their
results.: These, however, are not conditions on which the
alliance of the human will is to be obtained; its carriage must
be free and its actions responsible, or (such is the constitution
of man) the citizen had rather remain a passive spectator than a
dependent actor in schemes with which he is unacquainted.
[Footnote s: China appears to me to present the most perfect
instance of that species of well-being which a completely central
administration may furnish to the nations among which it exists.
Travellers assure us that the Chinese have peace without
happiness, industry without improvement, stability without
strength, and public order without public morality. The
condition of society is always tolerable, never excellent. I am
convinced that, when China is opened to European observation, it
will be found to contain the most perfect model of a central
administration which exists in the universe.]
It is undeniable that the want of those uniform regulations
which control the conduct of every inhabitant of France is not
unfrequently felt in the United States. Gross instances of
social indifference and neglect are to be met with, and from time
to time disgraceful blemishes are seen in complete contrast with
the surrounding civilization. Useful undertakings which cannot
succeed without perpetual attention and rigorous exactitude are
very frequently abandoned in the end; for in America, as well as
in other countries, the people is subject to sudden impulses and
momentary exertions. The European who is accustomed to find a
functionary always at hand to interfere with all he undertakes
has some difficulty in accustoming himself to the complex
mechanism of the administration of the townships. In general it
may be affirmed that the lesser details of the police, which
render life easy and comfortable, are neglected in America; but
that the essential guarantees of man in society are as strong
there as elsewhere. In America the power which conducts the
Government is far less regular, less enlightened, and less
learned, but an hundredfold more authoritative than in Europe.
In no country in the world do the citizens make such exertions
for the common weal; and I am acquainted with no people which has
established schools as numerous and as efficacious, places of
public worship better suited to the wants of the inhabitants, or
roads kept in better repair. Uniformity or permanence of design,
the minute arrangement of details, *t and the perfection of an
ingenious administration, must not be sought for in the United
States; but it will be easy to find, on the other hand, the
symptoms of a power which, if it is somewhat barbarous, is at
least robust; and of an existence which is checkered with
accidents indeed, but cheered at the same time by animation and
effort.
[Footnote t: A writer of talent, who, in the comparison which he
has drawn between the finances of France and those of the United
States, has proved that ingenuity cannot always supply the place
of a knowledge of facts, very justly reproaches the Americans for
the sort of confusion which exists in the accounts of the
expenditure in the townships; and after giving the model of a
departmental budget in France, he adds: - "We are indebted to
centralization, that admirable invention of a great man, for the
uniform order and method which prevail alike in all the municipal
budgets, from the largest town to the humblest commune." Whatever
may be my admiration of this result, when I see the communes of
France, with their excellent system of accounts, plunged into the
grossest ignorance of their true interests, and abandoned to so
incorrigible an apathy that they seem to vegetate rather than to
live; when, on the other hand, I observe the activity, the
information, and the spirit of enterprise which keep society in
perpetual labor, in those American townships whose budgets are
drawn up with small method and with still less uniformity, I am
struck by the spectacle; for to my mind the end of a good
government is to ensure the welfare of a people, and not to
establish order and regularity in the midst of its misery and its
distress. I am therefore led to suppose that the prosperity of
the American townships and the apparent confusion of their
accounts, the distress of the French communes and the perfection
of their budget, may be attributable to the same cause. At any
rate I am suspicious of a benefit which is united to so many
evils, and I am not averse to an evil which is compensated by so
many benefits.]
Granting for an instant that the villages and counties of
the United States would be more usefully governed by a remote
authority which they had never seen than by functionaries taken
from the midst of them - admitting, for the sake of argument,
that the country would be more secure, and the resources of
society better employed, if the whole administration centred in a
single arm - still the political advantages which the Americans
derive from their system would induce me to prefer it to the
contrary plan. It profits me but little, after all, that a
vigilant authority should protect the tranquillity of my
pleasures and constantly avert all dangers from my path, without
my care or my concern, if this same authority is the absolute
mistress of my liberty and of my life, and if it so monopolizes
all the energy of existence that when it languishes everything
languishes around it, that when it sleeps everything must sleep,
that when it dies the State itself must perish.
In certain countries of Europe the natives consider
themselves as a kind of settlers, indifferent to the fate of the
spot upon which they live. The greatest changes are effected
without their concurrence and (unless chance may have apprised
them of the event) without their knowledge; nay more, the citizen
is unconcerned as to the condition of his village, the police of
his street, the repairs of the church or of the parsonage; for he
looks upon all these things as unconnected with himself, and as
the property of a powerful stranger whom he calls the Government.
He has only a life-interest in these possessions, and he
entertains no notions of ownership or of improvement. This want
of interest in his own affairs goes so far that, if his own
safety or that of his children is endangered, instead of trying
to avert the peril, he will fold his arms, and wait till the
nation comes to his assistance. This same individual, who has so
completely sacrificed his own free will, has no natural
propensity to obedience; he cowers, it is true, before the
pettiest officer; but he braves the law with the spirit of a
conquered foe as soon as its superior force is removed: his
oscillations between servitude and license are perpetual. When a
nation has arrived at this state it must either change its
customs and its laws or perish: the source of public virtue is
dry, and, though it may contain subjects, the race of citizens is
extinct. Such communities are a natural prey to foreign
conquests, and if they do not disappear from the scene of life,
it is because they are surrounded by other nations similar or
inferior to themselves: it is because the instinctive feeling of
their country's claims still exists in their hearts; and because
an involuntary pride in the name it bears, or a vague
reminiscence of its bygone fame, suffices to give them the
impulse of self- preservation.
Nor can the prodigious exertions made by tribes in the
defence of a country to which they did not belong be adduced in
favor of such a system; for it will be found that in these cases
their main incitement was religion. The permanence, the glory, or
the prosperity of the nation were become parts of their faith,
and in defending the country they inhabited they defended that
Holy City of which they were all citizens. The Turkish tribes
have never taken an active share in the conduct of the affairs of
society, but they accomplished stupendous enterprises as long as
the victories of the Sultan were the triumphs of the Mohammedan
faith. In the present age they are in rapid decay, because their
religion is departing, and despotism only remains. Montesquieu,
who attributed to absolute power an authority peculiar to itself,
did it, as I conceive, an undeserved honor; for despotism, taken
by itself, can produce no durable results. On close inspection
we shall find that religion, and not fear, has ever been the
cause of the long-lived prosperity of an absolute government.
Whatever exertions may be made, no true power can be founded
among men which does not depend upon the free union of their
inclinations; and patriotism and religion are the only two
motives in the world which can permanently direct the whole of a
body politic to one end.
Laws cannot succeed in rekindling the ardor of an
extinguished faith, but men may be interested in the fate of
their country by the laws. By this influence the vague impulse
of patriotism, which never abandons the human heart, may be
directed and revived; and if it be connected with the thoughts,
the passions, and the daily habits of life, it may be
consolidated into a durable and rational sentiment.
Let it not be said that the time for the experiment is
already past; for the old age of nations is not like the old age
of men, and every fresh generation is a new people ready for the
care of the legislator.
It is not the administrative but the political effects of
the local system that I most admire in America. In the United
States the interests of the country are everywhere kept in view;
they are an object of solicitude to the people of the whole
Union, and every citizen is as warmly attached to them as if they
were his own. He takes pride in the glory of his nation; he
boasts of its success, to which he conceives himself to have
contributed, and he rejoices in the general prosperity by which
he profits. The feeling he entertains towards the State is
analogous to that which unites him to his family, and it is by a
kind of egotism that he interests himself in the welfare of his
country.
The European generally submits to a public officer because
he represents a superior force; but to an American he represents
a right. In America it may be said that no one renders obedience
to man, but to justice and to law. If the opinion which the
citizen entertains of himself is exaggerated, it is at least
salutary; he unhesitatingly confides in his own powers, which
appear to him to be all-sufficient. When a private individual
meditates an undertaking, however directly connected it may be
with the welfare of society, he never thinks of soliciting the
co-operation of the Government, but he publishes his plan, offers
to execute it himself, courts the assistance of other
individuals, and struggles manfully against all obstacles.
Undoubtedly he is often less successful than the State might have
been in his position; but in the end the sum of these private
undertakings far exceeds all that the Government could have done.
As the administrative authority is within the reach of the
citizens, whom it in some degree represents, it excites neither
their jealousy nor their hatred; as its resources are limited,
every one feels that he must not rely solely on its assistance.
Thus, when the administration thinks fit to interfere, it is not
abandoned to itself as in Europe; the duties of the private
citizens are not supposed to have lapsed because the State
assists in their fulfilment, but every one is ready, on the
contrary, to guide and to support it. This action of individual
exertions, joined to that of the public authorities, frequently
performs what the most energetic central administration would be
unable to execute. It would be easy to adduce several facts in
proof of what I advance, but I had rather give only one, with
which I am more thoroughly acquainted. *u In America the means
which the authorities have at their disposal for the discovery of
crimes and the arrest of criminals are few. The State police
does not exist, and passports are unknown. The criminal police
of the United States cannot be compared to that of France; the
magistrates and public prosecutors are not numerous, and the
examinations of prisoners are rapid and oral. Nevertheless in no
country does crime more rarely elude punishment. The reason is,
that every one conceives himself to be interested in furnishing
evidence of the act committed, and in stopping the delinquent.
During my stay in the United States I witnessed the spontaneous
formation of committees for the pursuit and prosecution of a man
who had committed a great crime in a certain county. In Europe a
criminal is an unhappy being who is struggling for his life
against the ministers of justice, whilst the population is merely
a spectator of the conflict; in America he is looked upon as an
enemy of the human race, and the whole of mankind is against him.
[Footnote u: See Appendix, I.]
I believe that provincial institutions are useful to all
nations, but nowhere do they appear to me to be more
indispensable than amongst a democratic people. In an
aristocracy order can always be maintained in the midst of
liberty, and as the rulers have a great deal to lose order is to
them a first-rate consideration. In like manner an aristocracy
protects the people from the excesses of despotism, because it
always possesses an organized power ready to resist a despot.
But a democracy without provincial institutions has no security
against these evils. How can a populace, unaccustomed to freedom
in small concerns, learn to use it temperately in great affairs?
What resistance can be offered to tyranny in a country where
every private individual is impotent, and where the citizens are
united by no common tie? Those who dread the license of the mob,
and those who fear the rule of absolute power, ought alike to
desire the progressive growth of provincial liberties.
On the other hand, I am convinced that democratic nations
are most exposed to fall beneath the yoke of a central
administration, for several reasons, amongst which is the
following. The constant tendency of these nations is to
concentrate all the strength of the Government in the hands of
the only power which directly represents the people, because
beyond the people nothing is to be perceived but a mass of equal
individuals confounded together. But when the same power is
already in possession of all the attributes of the Government, it
can scarcely refrain from penetrating into the details of the
administration, and an opportunity of doing so is sure to present
itself in the end, as was the case in France. In the French
Revolution there were two impulses in opposite directions, which
must never be confounded - the one was favorable to liberty, the
other to despotism. Under the ancient monarchy the King was the
sole author of the laws, and below the power of the sovereign
certain vestiges of provincial institutions, half destroyed, were
still distinguishable. These provincial institutions were
incoherent, ill compacted, and frequently absurd; in the hands of
the aristocracy they had sometimes been converted into
instruments of oppression. The Revolution declared itself the
enemy of royalty and of provincial institutions at the same time;
it confounded all that had preceded it -despotic power and the
checks to its abuses - in indiscriminate hatred, and its tendency
was at once to overthrow and to centralize. This double
character of the French Revolution is a fact which has been
adroitly handled by the friends of absolute power. Can they be
accused of laboring in the cause of despotism when they are
defending that central administration which was one of the great
innovations of the Revolution? *v In this manner popularity may
be conciliated with hostility to the rights of the people, and
the secret slave of tyranny may be the professed admirer of
freedom.
[Footnote v: See Appendix K.]
I have visited the two nations in which the system of
provincial liberty has been most perfectly established, and I
have listened to the opinions of different parties in those
countries. In America I met with men who secretly aspired to
destroy the democratic institutions of the Union; in England I
found others who attacked the aristocracy openly, but I know of
no one who does not regard provincial independence as a great
benefit. In both countries I have heard a thousand different
causes assigned for the evils of the State, but the local system
was never mentioned amongst them. I have heard citizens
attribute the power and prosperity of their country to a
multitude of reasons, but they all placed the advantages of local
institutions in the foremost rank. Am I to suppose that when men
who are naturally so divided on religious opinions and on
political theories agree on one point (and that one of which they
have daily experience), they are all in error? The only nations
which deny the utility of provincial liberties are those which
have fewest of them; in other words, those who are unacquainted
with the institution are the only persons who pass a censure upon
it.
Chapter VI: Judicial Power In The United States
Chapter Summary
The Anglo-Americans have retained the characteristics of judicial
power which are common to all nations - They have, however, made
it a powerful political organ - How - In what the judicial system
of the Anglo-Americans differs from that of all other nations -
Why the American judges have the right of declaring the laws to
be unconstitutional - How they use this right -Precautions taken
by the legislator to prevent its abuse.
Judicial Power In The United States And Its Influence On
Political Society
I have thought it essential to devote a separate chapter to
the judicial authorities of the United States, lest their great
political importance should be lessened in the reader's eyes by a
merely incidental mention of them. Confederations have existed in
other countries beside America, and republics have not been
established upon the shores of the New World alone; the
representative system of government has been adopted in several
States of Europe, but I am not aware that any nation of the globe
has hitherto organized a judicial power on the principle now
adopted by the Americans. The judicial organization of the United
States is the institution which a stranger has the greatest
difficulty in understanding. He hears the authority of a judge
invoked in the political occurrences of every day, and he
naturally concludes that in the United States the judges are
important political functionaries; nevertheless, when he examines
the nature of the tribunals, they offer nothing which is contrary
to the usual habits and privileges of those bodies, and the
magistrates seem to him to interfere in public affairs of chance,
but by a chance which recurs every day.
When the Parliament of Paris remonstrated, or refused to
enregister an edict, or when it summoned a functionary accused of
malversation to its bar, its political influence as a judicial
body was clearly visible; but nothing of the kind is to be seen
in the United States. The Americans have retained all the
ordinary characteristics of judicial authority, and have
carefully restricted its action to the ordinary circle of its
functions.
The first characteristic of judicial power in all nations is
the duty of arbitration. But rights must be contested in order
to warrant the interference of a tribunal; and an action must be
brought to obtain the decision of a judge. As long, therefore,
as the law is uncontested, the judicial authority is not called
upon to discuss it, and it may exist without being perceived.
When a judge in a given case attacks a law relating to that case,
he extends the circle of his customary duties, without however
stepping beyond it; since he is in some measure obliged to decide
upon the law in order to decide the case. But if he pronounces
upon a law without resting upon a case, he clearly steps beyond
his sphere, and invades that of the legislative authority.
The second characteristic of judicial power is that it
pronounces on special cases, and not upon general principles. If
a judge in deciding a particular point destroys a general
principle, by passing a judgment which tends to reject all the
inferences from that principle, and consequently to annul it, he
remains within the ordinary limits of his functions. But if he
directly attacks a general principle without having a particular
case in view, he leaves the circle in which all nations have
agreed to confine his authority, he assumes a more important, and
perhaps a more useful, influence than that of the magistrate, but
he ceases to be a representative of the judicial power.
The third characteristic of the judicial power is its
inability to act unless it is appealed to, or until it has taken
cognizance of an affair. This characteristic is less general than
the other two; but, notwithstanding the exceptions, I think it
may be regarded as essential. The judicial power is by its
nature devoid of action; it must be put in motion in order to
produce a result. When it is called upon to repress a crime, it
punishes the criminal; when a wrong is to be redressed, it is
ready to redress it; when an act requires interpretation, it is
prepared to interpret it; but it does not pursue criminals, hunt
out wrongs, or examine into evidence of its own accord. A
judicial functionary who should open proceedings, and usurp the
censorship of the laws, would in some measure do violence to the
passive nature of his authority.
The Americans have retained these three distinguishing
characteristics of the judicial power; an American judge can only
pronounce a decision when litigation has arisen, he is only
conversant with special cases, and he cannot act until the cause
has been duly brought before the court. His position is
therefore perfectly similar to that of the magistrate of other
nations; and he is nevertheless invested with immense political
power. If the sphere of his authority and his means of action
are the same as those of other judges, it may be asked whence he
derives a power which they do not possess. The cause of this
difference lies in the simple fact that the Americans have
acknowledged the right of the judges to found their decisions on
the constitution rather than on the laws. In other words, they
have left them at liberty not to apply such laws as may appear to
them to be unconstitutional.
I am aware that a similar right has been claimed - but
claimed in vain -by courts of justice in other countries; but in
America it is recognized by all authorities; and not a party, nor
so much as an individual, is found to contest it. This fact can
only be explained by the principles of the American constitution.
In France the constitution is (or at least is supposed to be)
immutable; and the received theory is that no power has the right
of changing any part of it. In England the Parliament has an
acknowledged right to modify the constitution; as, therefore, the
constitution may undergo perpetual changes, it does not in
reality exist; the Parliament is at once a legislative and a
constituent assembly. The political theories of America are more
simple and more rational. An American constitution is not
supposed to be immutable as in France, nor is it susceptible of
modification by the ordinary powers of society as in England. It
constitutes a detached whole, which, as it represents the
determination of the whole people, is no less binding on the
legislator than on the private citizen, but which may be altered
by the will of the people in predetermined cases, according to
established rules. In America the constitution may therefore
vary, but as long as it exists it is the origin of all authority,
and the sole vehicle of the
predominating force. *a
[Footnote a: [The fifth article of the original Constitution of
the United States provides the mode in which amendments of the
Constitution may be made. Amendments must be proposed by
two-thirds of both Houses of Congress, and ratified by the
Legislatures of three-fourths of the several States. Fifteen
amendments of the Constitution have been made at different times
since 1789, the most important of which are the Thirteenth,
Fourteenth, and Fifteenth, framed and ratified after the Civil
War. The original Constitution of the United States, followed by
these fifteen amendments, is printed at the end of this edition.
- Translator's Note, 1874.]]
It is easy to perceive in what manner these differences must
act upon the position and the rights of the judicial bodies in
the three countries I have cited. If in France the tribunals
were authorized to disobey the laws on the ground of their being
opposed to the constitution, the supreme power would in fact be
placed in their hands, since they alone would have the right of
interpreting a constitution, the clauses of which can be modified
by no authority. They would therefore take the place of the
nation, and exercise as absolute a sway over society as the
inherent weakness of judicial power would allow them to do.
Undoubtedly, as the French judges are incompetent to declare a
law to be unconstitutional, the power of changing the
constitution is indirectly given to the legislative body, since
no legal barrier would oppose the alterations which it might
prescribe. But it is better to grant the power of changing the
constitution of the people to men who represent (however
imperfectly) the will of the people, than to men who represent no
one but themselves.
It would be still more unreasonable to invest the English
judges with the right of resisting the decisions of the
legislative body, since the Parliament which makes the laws also
makes the constitution; and consequently a law emanating from the
three powers of the State can in no case be unconstitutional.
But neither of these remarks is applicable to America.
In the United States the constitution governs the legislator
as much as the private citizen; as it is the first of laws it
cannot be modified by a law, and it is therefore just that the
tribunals should obey the constitution in preference to any law.
This condition is essential to the power of the judicature, for
to select that legal obligation by which he is most strictly
bound is the natural right of every magistrate.
In France the constitution is also the first of laws, and
the judges have the same right to take it as the ground of their
decisions, but were they to exercise this right they must
perforce encroach on rights more sacred than their own, namely,
on those of society, in whose name they are acting. In this case
the State- motive clearly prevails over the motives of an
individual. In America, where the nation can always reduce its
magistrates to obedience by changing its constitution, no danger
of this kind is to be feared. Upon this point, therefore, the
political and the logical reasons agree, and the people as well
as the judges preserve their privileges.
Whenever a law which the judge holds to be unconstitutional
is argued in a tribunal of the United States he may refuse to
admit it as a rule; this power is the only one which is peculiar
to the American magistrate, but it gives rise to immense
political influence. Few laws can escape the searching analysis
of the judicial power for any length of time, for there are few
which are not prejudicial to some private interest or other, and
none which may not be brought before a court of justice by the
choice of parties, or by the necessity of the case. But from the
time that a judge has refused to apply any given law in a case,
that law loses a portion of its moral cogency. The persons to
whose interests it is prejudicial learn that means exist of
evading its authority, and similar suits are multiplied, until it
becomes powerless. One of two alternatives must then be resorted
to: the people must alter the constitution, or the legislature
must repeal the law. The political power which the Americans
have intrusted to their courts of justice is therefore immense,
but the evils of this power are considerably diminished by the
obligation which has been imposed of attacking the laws through
the courts of justice alone. If the judge had been empowered to
contest the laws on the ground of theoretical generalities, if he
had been enabled to open an attack or to pass a censure on the
legislator, he would have played a prominent part in the
political sphere; and as the champion or the antagonist of a
party, he would have arrayed the hostile passions of the nation
in the conflict. But when a judge contests a law applied to some
particular case in an obscure proceeding, the importance of his
attack is concealed from the public gaze, his decision bears upon
the interest of an individual, and if the law is slighted it is
only collaterally. Moreover, although it is censured, it is not
abolished; its moral force may be diminished, but its cogency is
by no means suspended, and its final destruction can only be
accomplished by the reiterated attacks of judicial functionaries.
It will readily be understood that by connecting the censorship
of the laws with the private interests of members of the
community, and by intimately uniting the prosecution of the law
with the prosecution of an individual, legislation is protected
from wanton assailants, and from the daily aggressions of party
spirit. The errors of the legislator are exposed whenever their
evil consequences are most felt, and it is always a positive and
appreciable fact which serves as the basis of a prosecution.
I am inclined to believe this practice of the American
courts to be at once the most favorable to liberty as well as to
public order. If the judge could only attack the legislator
openly and directly, he would sometimes be afraid to oppose any
resistance to his will; and at other moments party spirit might
encourage him to brave it at every turn. The laws would
consequently be attacked when the power from which they emanate
is weak, and obeyed when it is strong. That is to say, when it
would be useful to respect them they would be contested, and when
it would be easy to convert them into an instrument of oppression
they would be respected. But the American judge is brought into
the political arena independently of his own will. He only
judges the law because he is obliged to judge a case. The
political question which he is called upon to resolve is
connected with the interest of the suitors, and he cannot refuse
to decide it without abdicating the duties of his post. He
performs his functions as a citizen by fulfilling the precise
duties which belong to his profession as a magistrate. It is
true that upon this system the judicial censorship which is
exercised by the courts of justice over the legislation cannot
extend to all laws indiscriminately, inasmuch as some of them can
never give rise to that exact species of contestation which is
termed a lawsuit; and even when such a contestation is possible,
it may happen that no one cares to bring it before a court of
justice. The Americans have often felt this disadvantage, but
they have left the remedy incomplete, lest they should give it an
efficacy which might in some cases prove dangerous. Within these
limits the power vested in the American courts of justice of
pronouncing a statute to be unconstitutional forms one of the
most powerful barriers which has ever been devised against the
tyranny of political assemblies.
Other Powers Granted To American Judges
The United States all the citizens have the right of indicting
public functionaries before the ordinary tribunals - How they use
this right - Art. 75 of the French Constitution of the An VIII -
The Americans and the English cannot understand the purport of
this clause.
It is perfectly natural that in a free country like America
all the citizens should have the right of indicting public
functionaries before the ordinary tribunals, and that all the
judges should have the power of punishing public offences. The
right granted to the courts of justice of judging the agents of
the executive government, when they have violated the laws, is so
natural a one that it cannot be looked upon as an extraordinary
privilege. Nor do the springs of government appear to me to be
weakened in the United States by the custom which renders all
public officers responsible to the judges of the land. The
Americans seem, on the contrary, to have increased by this means
that respect which is due to the authorities, and at the same
time to have rendered those who are in power more scrupulous of
offending public opinion. I was struck by the small number of
political trials which occur in the United States, but I had no
difficulty in accounting for this circumstance. A lawsuit, of
whatever nature it may be, is always a difficult and expensive
undertaking. It is easy to attack a public man in a journal, but
the motives which can warrant an action at law must be serious.
A solid ground of complaint must therefore exist to induce an
individual to prosecute a public officer, and public officers are
careful not to furnish these grounds of complaint when they are
afraid of being prosecuted.
This does not depend upon the republican form of American
institutions, for the same facts present themselves in England.
These two nations do not regard the impeachment of the principal
officers of State as a sufficient guarantee of their
independence. But they hold that the right of minor
prosecutions, which are within the reach of the whole community,
is a better pledge of freedom than those great judicial actions
which are rarely employed until it is too late.
In the Middle Ages, when it was very difficult to overtake
offenders, the judges inflicted the most dreadful tortures on the
few who were arrested, which by no means diminished the number of
crimes. It has since been discovered that when justice is more
certain and more mild, it is at the same time more efficacious.
The English and the Americans hold that tyranny and oppression
are to be treated like any other crime, by lessening the penalty
and facilitating conviction.
In the year VIII of the French Republic a constitution was
drawn up in which the following clause was introduced: "Art. 75.
All the agents of the government below the rank of ministers can
only be prosecuted for offences relating to their several
functions by virtue of a decree of the Conseil d'Etat; in which
the case the prosecution takes place before the ordinary
tribunals." This clause survived the "Constitution de l'An VIII,"
and it is still maintained in spite of the just complaints of the
nation. I have always found the utmost difficulty in explaining
its meaning to Englishmen or Americans. They were at once led to
conclude that the Conseil d'Etat in France was a great tribunal,
established in the centre of the kingdom, which exercised a
preliminary and somewhat tyrannical jurisdiction in all political
causes. But when I told them that the Conseil d'Etat was not a
judicial body, in the common sense of the term, but an
administrative council composed of men dependent on the Crown, so
that the king, after having ordered one of his servants, called a
Prefect, to commit an injustice, has the power of commanding
another of his servants, called a Councillor of State, to prevent
the former from being punished; when I demonstrated to them that
the citizen who has been injured by the order of the sovereign is
obliged to solicit from the sovereign permission to obtain
redress, they refused to credit so flagrant an abuse, and were
tempted to accuse me of falsehood or of ignorance. It frequently
happened before the Revolution that a Parliament issued a warrant
against a public officer who had committed an offence, and
sometimes the proceedings were stopped by the authority of the
Crown, which enforced compliance with its absolute and despotic
will. It is painful to perceive how much lower we are sunk than
our forefathers, since we allow things to pass under the color of
justice and the sanction of the law which violence alone could
impose upon them.
Chapter VII: Political Jurisdiction In The United States
Chapter Summary
Definition of political jurisdiction - What is understood by
political jurisdiction in France, in England, and in the United
States - In America the political judge can only pass sentence on
public officers - He more frequently passes a sentence of removal
from office than a penalty - Political jurisdiction as it exists
in the United States is, notwithstanding its mildness, and
perhaps in consequence of that mildness, a most powerful
instrument in the hands of the majority.
Political Jurisdiction In The United States
I understand, by political jurisdiction, that temporary
right of pronouncing a legal decision with which a political body
may be invested.
In absolute governments no utility can accrue from the
introduction of extraordinary forms of procedure; the prince in
whose name an offender is prosecuted is as much the sovereign of
the courts of justice as of everything else, and the idea which
is entertained of his power is of itself a sufficient security.
The only thing he has to fear is, that the external formalities
of justice should be neglected, and that his authority should be
dishonored from a wish to render it more absolute. But in most
free countries, in which the majority can never exercise the same
influence upon the tribunals as an absolute monarch, the judicial
power has occasionally been vested for a time in the
representatives of the nation. It has been thought better to
introduce a temporary confusion between the functions of the
different authorities than to violate the necessary principle of
the unity of government.
England, France, and the United States have established this
political jurisdiction by law; and it is curious to examine the
different adaptations which these three great nations have made
of the principle. In England and in France the House of Lords
and the Chambre des Paris *a constitute the highest criminal
court of their respective nations, and although they do not
habitually try all political offences, they are competent to try
them all. Another political body enjoys the right of impeachment
before the House of Lords: the only difference which exists
between the two countries in this respect is, that in England the
Commons may impeach whomsoever they please before the Lords,
whilst in France the Deputies can only employ this mode of
prosecution against the ministers of the Crown.
[Footnote a: [As it existed under the constitutional monarchy
down to 1848.]]
In both countries the Upper House may make use of all the
existing penal laws of the nation to punish the delinquents.
In the United States, as well as in Europe, one branch of
the legislature is authorized to impeach and another to judge:
the House of Representatives arraigns the offender, and the
Senate awards his sentence. But the Senate can only try such
persons as are brought before it by the House of Representatives,
and those persons must belong to the class of public
functionaries. Thus the jurisdiction of the Senate is less
extensive than that of the Peers of France, whilst the right of
impeachment by the Representatives is more general than that of
the Deputies. But the great difference which exists between
Europe and America is, that in Europe political tribunals are
empowered to inflict all the dispositions of the penal code,
while in America, when they have deprived the offender of his
official rank, and have declared him incapable of filling any
political office for the future, their jurisdiction terminates
and that of the ordinary tribunals begins.
Suppose, for instance, that the President of the United
States has committed the crime of high treason; the House of
Representatives impeaches him, and the Senate degrades him; he
must then be tried by a jury, which alone can deprive him of his
liberty or his life. This accurately illustrates the subject we
are treating. The political jurisdiction which is established by
the laws of Europe is intended to try great offenders, whatever
may be their birth, their rank, or their powers in the State; and
to this end all the privileges of the courts of justice are
temporarily extended to a great political assembly. The
legislator is then transformed into the magistrate; he is called
upon to admit, to distinguish, and to punish the offence; and as
he exercises all the authority of a judge, the law restricts him
to the observance of all the duties of that high office, and of
all the formalities of justice. When a public functionary is
impeached before an English or a French political tribunal, and
is found guilty, the sentence deprives him ipso facto of his
functions, and it may pronounce him to be incapable of resuming
them or any others for the future. But in this case the
political interdict is a consequence of the sentence, and not the
sentence itself. In Europe the sentence of a political tribunal
is to be regarded as a judicial verdict rather than as an
administrative measure. In the United States the contrary takes
place; and although the decision of the Senate is judicial in its
form, since the Senators are obliged to comply with the practices
and formalities of a court of justice; although it is judicial in
respect to the motives on which it is founded, since the Senate
is in general obliged to take an offence at common law as the
basis of its sentence; nevertheless the object of the proceeding
is purely administrative. If it had been the intention of the
American legislator to invest a political body with great
judicial authority, its action would not have been limited to the
circle of public functionaries, since the most dangerous enemies
of the State may be in the possession of no functions at all; and
this is especially true in republics, where party influence is
the first of authorities, and where the strength of many a reader
is increased by his exercising no legal power.
If it had been the intention of the American legislator to
give society the means of repressing State offences by exemplary
punishment, according to the practice of ordinary justice, the
resources of the penal code would all have been placed at the
disposal of the political tribunals. But the weapon with which
they are intrusted is an imperfect one, and it can never reach
the most dangerous offenders, since men who aim at the entire
subversion of the laws are not likely to murmur at a political
interdict.
The main object of the political jurisdiction which obtains
in the United States is, therefore, to deprive the ill-disposed
citizen of an authority which he has used amiss, and to prevent
him from ever acquiring it again. This is evidently an
administrative measure sanctioned by the formalities of a
judicial decision. In this matter the Americans have created a
mixed system; they have surrounded the act which removes a public
functionary with the securities of a political trial; and they
have deprived all political condemnations of their severest
penalties. Every link of the system may easily be traced from
this point; we at once perceive why the American constitutions
subject all the civil functionaries to the jurisdiction of the
Senate, whilst the military, whose crimes are nevertheless more
formidable, are exempted from that tribunal. In the civil
service none of the American functionaries can be said to be
removable; the places which some of them occupy are inalienable,
and the others are chosen for a term which cannot be shortened.
It is therefore necessary to try them all in order to deprive
them of their authority. But military officers are dependent on
the chief magistrate of the State, who is himself a civil
functionary, and the decision which condemns him is a blow upon
them all.
If we now compare the American and the European systems, we
shall meet with differences no less striking in the different
effects which each of them produces or may produce. In France
and in England the jurisdiction of political bodies is looked
upon as an extraordinary resource, which is only to be employed
in order to rescue society from unwonted dangers. It is not to
be denied that these tribunals, as they are constituted in
Europe, are apt to violate the conservative principle of the
balance of power in the State, and to threaten incessantly the
lives and liberties of the subject. The same political
jurisdiction in the United States is only indirectly hostile to
the balance of power; it cannot menace the lives of the citizens,
and it does not hover, as in Europe, over the heads of the
community, since those only who have submitted to its authority
on accepting office are exposed to the severity of its
investigations. It is at the same time less formidable and less
efficacious; indeed, it has not been considered by the
legislators of the United States as a remedy for the more violent
evils of society, but as an ordinary means of conducting the
government. In this respect it probably exercises more real
influence on the social body in America than in Europe. We must
not be misled by the apparent mildness of the American
legislation in all that relates to political jurisdiction. It is
to be observed, in the first place, that in the United States the
tribunal which passes sentence is composed of the same elements,
and subject to the same influences, as the body which impeaches
the offender, and that this uniformity gives an almost
irresistible impulse to the vindictive passions of parties. If
political judges in the United States cannot inflict such heavy
penalties as those of Europe, there is the less chance of their
acquitting a prisoner; and the conviction, if it is less
formidable, is more certain. The principal object of the
political tribunals of Europe is to punish the offender; the
purpose of those in America is to deprive him of his authority.
A political condemnation in the United States may, therefore, be
looked upon as a preventive measure; and there is no reason for
restricting the judges to the exact definitions of criminal law.
Nothing can be more alarming than the excessive latitude with
which political offences are described in the laws of America.
Article II., Section 4, of the Constitution of the United States
runs thus: - "The President, Vice-President, and all civil
officers of the United States shall be removed from office on
impeachment for, and conviction of, treason, bribery, or other
high crimes and misdemeanors." Many of the Constitutions of the
States are even less explicit. "Public officers," says the
Constitution of Massachusetts, *b "shall be impeached for
misconduct or maladministration;" the Constitution of Virginia
declares that all the civil officers who shall have offended
against the State, by maladministration, corruption, or other
high crimes, may be impeached by the House of Delegates; in some
constitutions no offences are specified, in order to subject the
public functionaries to an unlimited responsibility. *c But I
will venture to affirm that it is precisely their mildness which
renders the American laws most formidable in this respect. We
have shown that in Europe the removal of a functionary and his
political interdiction are the consequences of the penalty he is
to undergo, and that in America they constitute the penalty
itself. The consequence is that in Europe political tribunals
are invested with rights which they are afraid to use, and that
the fear of punishing too much hinders them from punishing at
all. But in America no one hesitates to inflict a penalty from
which humanity does not recoil. To condemn a political opponent
to death, in order to deprive him of his power, is to commit what
all the world would execrate as a horrible assassination; but to
declare that opponent unworthy to exercise that authority, to
deprive him of it, and to leave him uninjured in life and limb,
may be judged to be the fair issue of the struggle. But this
sentence, which it is so easy to pronounce, is not the less
fatally severe to the majority of those upon whom it is
inflicted. Great criminals may undoubtedly brave its intangible
rigor, but ordinary offenders will dread it as a condemnation
which destroys their position in the world, casts a blight upon
their honor, and condemns them to a shameful inactivity worse
than death. The influence exercised in the United States upon the
progress of society by the jurisdiction of political bodies may
not appear to be formidable, but it is only the more immense. It
does not directly coerce the subject, but it renders the majority
more absolute over those in power; it does not confer an
unbounded authority on the legislator which can be exerted at
some momentous crisis, but it establishes a temperate and regular
influence, which is at all times available. If the power is
decreased, it can, on the other hand, be more conveniently
employed and more easily abused. By preventing political
tribunals from inflicting judicial punishments the Americans seem
to have eluded the worst consequences of legislative tyranny,
rather than tyranny itself; and I am not sure that political
jurisdiction, as it is constituted in the United States, is not
the most formidable weapon which has ever been placed in the rude
grasp of a popular majority. When the American republics begin
to degenerate it will be easy to verify the truth of this
observation, by remarking whether the number of political
impeachments augments.*d
[Footnote b: Chap. I. sect. ii. Section 8.]
[Footnote c: See the constitutions of Illinois, Maine,
Connecticut, and Georgia.]
[Footnote d: See Appendix, N.
[The impeachment of President Andrew Johnson in 1868 - which
was resorted to by his political opponents solely as a means of
turning him out of office, for it could not be contended that he
had been guilty of high crimes and misdemeanors, and he was in
fact honorably acquitted and reinstated in office - is a striking
confirmation of the truth of this remark. - Translator's Note,
1874.]]
Chapter VIII: The Federal Constitution - Part I
I have hitherto considered each State as a separate whole,
and I have explained the different springs which the people sets
in motion, and the different means of action which it employs.
But all the States which I have considered as independent are
forced to submit, in certain cases, to the supreme authority of
the Union. The time is now come for me to examine separately the
supremacy with which the Union has been invested, and to cast a
rapid glance over the Federal Constitution.
Chapter Summary
Origin of the first Union - Its weakness - Congress appeals to
the constituent authority - Interval of two years between this
appeal and the promulgation of the new Constitution.
History Of The Federal Constitution
The thirteen colonies which simultaneously threw off the
yoke of England towards the end of the last century professed, as
I have already observed, the same religion, the same language,
the same customs, and almost the same laws; they were struggling
against a common enemy; and these reasons were sufficiently
strong to unite them one to another, and to consolidate them into
one nation. But as each of them had enjoyed a separate existence
and a government within its own control, the peculiar interests
and customs which resulted from this system were opposed to a
compact and intimate union which would have absorbed the
individual importance of each in the general importance of all.
Hence arose two opposite tendencies, the one prompting the
Anglo-Americans to unite, the other to divide their strength. As
long as the war with the mother-country lasted the principle of
union was kept alive by necessity; and although the laws which
constituted it were defective, the common tie subsisted in spite
of their imperfections. *a But no sooner was peace concluded than
the faults of the legislation became manifest, and the State
seemed to be suddenly dissolved. Each colony became an
independent republic, and assumed an absolute sovereignty. The
federal government, condemned to impotence by its constitution,
and no longer sustained by the presence of a common danger,
witnessed the outrages offered to its flag by the great nations
of Europe, whilst it was scarcely able to maintain its ground
against the Indian tribes, and to pay the interest of the debt
which had been contracted during the war of independence. It was
already on the verge of destruction, when it officially
proclaimed its inability to conduct the government, and appealed
to the constituent authority of the nation. *b If America ever
approached (for however brief a time) that lofty pinnacle of
glory to which the fancy of its inhabitants is wont to point, it
was at the solemn moment at which the power of the nation
abdicated, as it were, the empire of the land. All ages have
furnished the spectacle of a people struggling with energy to win
its independence; and the efforts of the Americans in throwing
off the English yoke have been considerably exaggerated.
Separated from their enemies by three thousand miles of ocean,
and backed by a powerful ally, the success of the United States
may be more justly attributed to their geographical position than
to the valor of their armies or the patriotism of their citizens.
It would be ridiculous to compare the American was to the wars of
the French Revolution, or the efforts of the Americans to those
of the French when they were attacked by the whole of Europe,
without credit and without allies, yet capable of opposing a
twentieth part of their population to the world, and of bearing
the torch of revolution beyond their frontiers whilst they
stifled its devouring flame within the bosom of their country.
But it is a novelty in the history of society to see a great
people turn a calm and scrutinizing eye upon itself, when
apprised by the legislature that the wheels of government are
stopped; to see it carefully examine the extent of the evil, and
patiently wait for two whole years until a remedy was discovered,
which it voluntarily adopted without having wrung a tear or a
drop of blood from mankind. At the time when the inadequacy of
the first constitution was discovered America possessed the
double advantage of that calm which had succeeded the
effervescence of the revolution, and of those great men who had
led the revolution to a successful issue. The assembly which
accepted the task of composing the second constitution was small;
*c but George Washington was its President, and it contained the
choicest talents and the noblest hearts which had ever appeared
in the New World. This national commission, after long and
mature deliberation, offered to the acceptance of the people the
body of general laws which still rules the Union. All the States
adopted it successively. *d The new Federal Government commenced
its functions in 1789, after an interregnum of two years. The
Revolution of America terminated when that of France began.
[Footnote a: 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
"Commentaries on the Constitution of the United States," pp.
85-115.]
[Footnote b: Congress made this declaration on February 21,
1787.]
[Footnote c: It consisted of fifty-five members; Washington,
Madison, Hamilton, and the two Morrises were amongst the number.]
[Footnote d: 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.]
Summary Of The Federal Constitution
Division of authority between the Federal Government and the
States - The Government of the States is the rule, the Federal
Government the exception.
The first question which awaited the Americans was
intricate, and by no means easy of solution: the object was so to
divide the authority of the different States which composed the
Union that each of them should continue to govern itself in all
that concerned its internal prosperity, whilst the entire nation,
represented by the Union, should continue to form a compact body,
and to provide for the general exigencies of the people. It was
as impossible to determine beforehand, with any degree of
accuracy, the share of authority which each of two governments
was to enjoy, as to foresee all the incidents in the existence of
a nation.
The obligations and the claims of the Federal Government
were simple and easily definable, because the Union had been
formed with the express purpose of meeting the general exigencies
of the people; but the claims and obligations of the States were,
on the other hand, complicated and various, because those
Governments had penetrated into all the details of social life.
The attributes of the Federal Government were therefore carefully
enumerated and all that was not included amongst them was
declared to constitute a part of the privileges of the several
Governments of the States. Thus the government of the States
remained the rule, and that of the Confederation became the
exception. *e
[Footnote e: 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 on bankruptcy, which, however,
it neglects to do. Each State is then at liberty to make a law
for itself. This point has been established by discussion in the
law-courts, and may be said to belong more properly to
jurisprudence.]
But as it was foreseen that, in practice, questions might
arise as to the exact limits of this exceptional authority, and
that it would be dangerous to submit these questions to the
decision of the ordinary courts of justice, established in the
States by the States themselves, a high Federal court was
created, *f which was destined, amongst other functions, to
maintain the balance of power which had been established by the
Constitution between the two rival Governments. *g
[Footnote f: The action of this court is indirect, as we shall
hereafter show.]
[Footnote g: 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.]
Prerogative Of The Federal Government
Power of declaring war, making peace, and levying general taxes
vested in the Federal Government - What part of the internal
policy of the country it may direct - The Government of the Union
in some respects more central than the King's Government in the
old French monarchy.
The external relations of a people may be compared to those
of private individuals, and they cannot be advantageously
maintained without the agency of a single head of a Government.
The exclusive right of making peace and war, of concluding
treaties of commerce, of raising armies, and equipping fleets,
was granted to the Union. *h The necessity of a national
Government was less imperiously felt in the conduct of the
internal policy of society; but there are certain general
interests which can only be attended to with advantage by a
general authority. The Union was invested with the power of
controlling the monetary system, of directing the post office,
and of opening the great roads which were to establish a
communication between the different parts of the country. *i The
independence of the Government of each State was formally
recognized in its sphere; nevertheless, the Federal Government
was authorized to interfere in the internal affairs of the States
*j in a few predetermined cases, in which an indiscreet abuse of
their independence might compromise the security of the Union at
large. Thus, whilst the power of modifying and changing their
legislation at pleasure was preserved in all the republics, they
were forbidden to enact ex post facto laws, or to create a class
of nobles in their community. *k Lastly, as it was necessary that
the Federal Government should be able to fulfil its engagements,
it was endowed with an unlimited power of levying taxes. *l
[Footnote h: See Constitution, sect. 8; "Federalist," Nos. 41 and
42; Kent's "Commentaries," vol. i. p. 207; Story, pp. 358-382;
Ibid. pp. 409-426.]
[Footnote i: 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.]
[Footnote j: Even in these cases its interference is indirect.
The Union interferes by means of the tribunals, as will be
hereafter shown.]
[Footnote k: Federal Constitution, sect. 10, art. I.]
[Footnote l: Constitution, sects. 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.]
In examining the balance of power as established by the
Federal Constitution; in remarking on the one hand the portion of
sovereignty which has been reserved to the several States, and on
the other the share of power which the Union has assumed, it is
evident that the Federal legislators entertained the clearest and
most accurate notions on the nature of the centralization of
government. The United States form not only a republic, but a
confederation; nevertheless the authority of the nation is more
central than it was in several of the monarchies of Europe when
the American Constitution was formed. Take, for instance, the
two following examples.
Thirteen supreme courts of justice existed in France, which,
generally speaking, had the right of interpreting the law without
appeal; and those provinces which were styled pays d'etats were
authorized to refuse their assent to an impost which had been
levied by the sovereign who represented the nation. In the Union
there is but one tribunal to interpret, as there is one
legislature to make the laws; and an impost voted by the
representatives of the nation is binding upon all the citizens.
In these two essential points, therefore, the Union exercises
more central authority than the French monarchy possessed,
although the Union is only an assemblage of confederate
republics.
In Spain certain provinces had the right of establishing a
system of custom-house duties peculiar to themselves, although
that privilege belongs, by its very nature, to the national
sovereignty. In America the Congress alone has the right of
regulating the commercial relations of the States. The government
of the Confederation is therefore more centralized in this
respect than the kingdom of Spain. It is true that the power of
the Crown in France or in Spain was always able to obtain by
force whatever the Constitution of the country denied, and that
the ultimate result was consequently the same; but I am here
discussing the theory of the Constitution.
Federal Powers
After having settled the limits within which the Federal
Government was to act, the next point was to determine the powers
which it was to exert.
Legislative Powers *m
[Footnote m: [In this chapter the author points out the essence
of the conflict between the seceding States and the Union which
caused the Civil War of 1861.]]
Division of the Legislative Body into two branches - Difference
in the manner of forming the two Houses - The principle of the
independence of the States predominates in the formation of the
Senate - The principle of the sovereignty of the nation in the
composition of the House of Representatives - Singular effects of
the fact that a Constitution can only be logical in the early
stages of a nation.
The plan which had been laid down beforehand for the
Constitutions of the several States was followed, in many points,
in the organization of the powers of the Union. The Federal
legislature of the Union was composed of a Senate and a House of
Representatives. A spirit of conciliation prescribed the
observance of distinct principles in the formation of these two
assemblies. I have already shown that two contrary interests
were opposed to each other in the establishment of the Federal
Constitution. These two interests had given rise to two
opinions. It was the wish of one party to convert the Union into
a league of independent States, or a sort of congress, at which
the representatives of the several peoples would meet to discuss
certain points of their common interests. The other party
desired to unite the inhabitants of the American colonies into
one sole nation, and to establish a Government which should act
as the sole representative of the nation, as far as the limited
sphere of its authority would permit. The practical consequences
of these two theories were exceedingly different.
The question was, whether a league was to be established
instead of a national Government; whether the majority of the
State, instead of the majority of the inhabitants of the Union,
was to give the law: for every State, the small as well as the
great, would then remain in the full enjoyment of its
independence, and enter the Union upon a footing of perfect
equality. If, however, the inhabitants of the United States were
to be considered as belonging to one and the same nation, it
would be just that the majority of the citizens of the Union
should prescribe the law. Of course the lesser States could not
subscribe to the application of this doctrine without, in fact,
abdicating their existence in relation to the sovereignty of the
Confederation; since they would have passed from the condition of
a co-equal and co-legislative authority to that of an
insignificant fraction of a great people. But if the former
system would have invested them with an excessive authority, the
latter would have annulled their influence altogether. Under
these circumstances the result was, that the strict rules of
logic were evaded, as is usually the case when interests are
opposed to arguments. A middle course was hit upon by the
legislators, which brought together by force two systems
theoretically irreconcilable.
The principle of the independence of the States prevailed in
the formation of the Senate, and that of the sovereignty of the
nation predominated in the composition of the House of
Representatives. It was decided that each State should send two
senators to Congress, and a number of representatives
proportioned to its population. *n It results from this
arrangement that the State of New York has at the present day
forty representatives and only two senators; the State of
Delaware has two senators and only one representative; the State
of Delaware is therefore equal to the State of New York in the
Senate, whilst the latter has forty times the influence of the
former in the House of Representatives. Thus, if the minority of
the nation preponderates in the Senate,. it may paralyze the
decisions of the majority represented in the other House, which
is contrary to the spirit of constitutional
government.
[Footnote n: 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 on. 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 (April
14, 1792: see "Laws of the United States," by Story, vol. i. p.
235) decided that there should be one representative for every
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