Democracy In America, Volume 1
by
Alexis de Toqueville
Part 4 out of 11
33,000 inhabitants. The last Act, which was passed in 1832,
fixes the proportion at one for 48,000. The population
represented is composed of all the free men and of three-fifths
of the slaves.
[The last Act of apportionment, passed February 2, 1872,
fixes the representation at one to 134,684 inhabitants. There
are now (1875) 283 members of the lower House of Congress, and 9
for the States at large, making in all 292 members. The old
States have of course lost the representatives which the new
States have gained. - Translator's Note.]]
These facts show how rare and how difficult it is rationally
and logically to combine all the several parts of legislation.
In the course of time different interests arise, and different
principles are sanctioned by the same people; and when a general
constitution is to be established, these interests and principles
are so many natural obstacles to the rigorous application of any
political system, with all its consequences. The early stages of
national existence are the only periods at which it is possible
to maintain the complete logic of legislation; and when we
perceive a nation in the enjoyment of this advantage, before we
hasten to conclude that it is wise, we should do well to remember
that it is young. When the Federal Constitution was formed, the
interests of independence for the separate States, and the
interest of union for the whole people, were the only two
conflicting interests which existed amongst the Anglo-Americans,
and a compromise was necessarily made between them.
It is, however, just to acknowledge that this part of the
Constitution has not hitherto produced those evils which might
have been feared. All the States are young and contiguous; their
customs, their ideas, and their exigencies are not dissimilar;
and the differences which result from their size or inferiority
do not suffice to set their interests at variance. The small
States have consequently never been induced to league themselves
together in the Senate to oppose the designs of the larger ones;
and indeed there is so irresistible an authority in the
legitimate expression of the will of a people that the Senate
could offer but a feeble opposition to the vote of the majority
of the House of
Representatives.
It must not be forgotten, on the other hand, that it was not
in the power of the American legislators to reduce to a single
nation the people for whom they were making laws. The object of
the Federal Constitution was not to destroy the independence of
the States, but to restrain it. By acknowledging the real
authority of these secondary communities (and it was impossible
to deprive them of it), they disavowed beforehand the habitual
use of constraint in enforcing g the decisions of the majority.
Upon this principle the introduction of the influence of the
States into the mechanism of the Federal Government was by no
means to be wondered at, since it only attested the existence of
an acknowledged power, which was to be humored and not forcibly
checked.
A Further Difference Between The Senate And The House Of
Representatives
The Senate named by the provincial legislators, the
Representatives by the people - Double election of the former;
single election of the latter - Term of the different offices -
Peculiar functions of each House.
The Senate not only differs from the other House in the
principle which it represents, but also in the mode of its
election, in the term for which it is chosen, and in the nature
of its functions. The House of Representatives is named by the
people, the Senate by the legislators of each State; the former
is directly elected, the latter is elected by an elected body;
the term for which the representatives are chosen is only two
years, that of the senators is six. The functions of the House
of Representatives are purely legislative, and the only share it
takes in the judicial power is in the impeachment of public
officers. The Senate co-operates in the work of legislation, and
tries those political offences which the House of Representatives
submits to its decision. It also acts as the great executive
council of the nation; the treaties which are concluded by the
President must be ratified by the Senate, and the appointments he
may make must be definitely approved by the same body. *o
[Footnote o: See "The Federalist," Nos. 52-56, inclusive; Story,
pp. 199-314; Constitution of the United States, sects. 2 and 3.]
The Executive Power *p
[Footnote p: See "The Federalist," Nos. 67-77; Constitution of
the United States, art. 2; Story, p. 315, pp. 615-780; Kent's
"Commentaries," p. 255.]
Dependence of the President - He is elective and responsible - He
is free to act in his own sphere under the inspection, but not
under the direction, of the Senate - His salary fixed at his
entry into office - Suspensive veto.
The American legislators undertook a difficult task in
attempting to create an executive power dependent on the majority
of the people, and nevertheless sufficiently strong to act
without restraint in its own sphere. It was indispensable to the
maintenance of the republican form of government that the
representative of the executive power should be subject to the
will of the nation.
The President is an elective magistrate. His honor, his
property, his liberty, and his life are the securities which the
people has for the temperate use of his power. But in the
exercise of his authority he cannot be said to be perfectly
independent; the Senate takes cognizance of his relations with
foreign powers, and of the distribution of public appointments,
so that he can neither be bribed nor can he employ the means of
corruption. The legislators of the Union acknowledged that the
executive power would be incompetent to fulfil its task with
dignity and utility, unless it enjoyed a greater degree of
stability and of strength than had been granted to it in the
separate States.
The President is chosen for four years, and he may be
reelected; so that the chances of a prolonged administration may
inspire him with hopeful undertakings for the public good, and
with the means of carrying them into execution. The President
was made the sole representative of the executive power of the
Union, and care was taken not to render his decisions subordinate
to the vote of a council - a dangerous measure, which tends at
the same time to clog the action of the Government and to
diminish its responsibility. The Senate has the right of
annulling g certain acts of the President; but it cannot compel
him to take any steps, nor does it participate in the exercise of
the executive power.
The action of the legislature on the executive power may be
direct; and we have just shown that the Americans carefully
obviated this influence; but it may, on the other hand, be
indirect. Public assemblies which have the power of depriving an
officer of state of his salary encroach upon his independence;
and as they are free to make the laws, it is to be feared lest
they should gradually appropriate to themselves a portion of that
authority which the Constitution had vested in his hands. This
dependence of the executive power is one of the defects inherent
in republican constitutions. The Americans have not been able to
counteract the tendency which legislative assemblies have to get
possession of the government, but they have rendered this
propensity less irresistible. The salary of the President is
fixed, at the time of his entering upon office, for the whole
period of his magistracy. The President is, moreover, provided
with a suspensive veto, which allows him to oppose the passing of
such laws as might destroy the portion of independence which the
Constitution awards him. The struggle between the President and
the legislature must always be an unequal one, since the latter
is certain of bearing down all resistance by persevering in its
plans; but the suspensive veto forces it at least to reconsider
the matter, and, if the motion be persisted in, it must then be
backed by a majority of two-thirds of the whole house. The veto
is, in fact, a sort of appeal to the people. The executive power,
which, without this security, might have been secretly oppressed,
adopts this means of pleading its cause and stating its motives.
But if the legislature is certain of overpowering all resistance
by persevering in its plans, I reply, that in the constitutions
of all nations, of whatever kind they may be, a certain point
exists at which the legislator is obliged to have recourse to the
good sense and the virtue of his fellow-citizens. This point is
more prominent and more discoverable in republics, whilst it is
more remote and more carefully concealed in monarchies, but it
always exists somewhere. There is no country in the world in
which everything can be provided for by the laws, or in which
political institutions can prove a substitute for common sense
and public morality.
Differences Between The Position Of The President Of The United
States And That Of A Constitutional King Of France
Executive power in the Northern States as limited and as partial
as the supremacy which it represents - Executive power in France
as universal as the supremacy it represents - The King a branch
of the legislature - The President the mere executor of the law -
Other differences resulting from the duration of the two powers -
The President checked in the exercise of the executive authority
- The King independent in its exercise - Notwithstanding these
discrepancies France is more akin to a republic than the Union to
a monarchy -Comparison of the number of public officers depending
upon the executive power in the two countries.
The executive power has so important an influence on the
destinies of nations that I am inclined to pause for an instant
at this portion of my subject, in order more clearly to explain
the part it sustains in America. In order to form an accurate
idea of the position of the President of the United States, it
may not be irrelevant to compare it to that of one of the
constitutional kings of Europe. In this comparison I shall pay
but little attention to the external signs of power, which are
more apt to deceive the eye of the observer than to guide his
researches. When a monarchy is being gradually transformed into a
republic, the executive power retains the titles, the honors, the
etiquette, and even the funds of royalty long after its authority
has disappeared. The English, after having cut off the head of
one king and expelled another from his throne, were accustomed to
accost the successor of those princes upon their knees. On the
other hand, when a republic falls under the sway of a single
individual, the demeanor of the sovereign is simple and
unpretending, as if his authority was not yet paramount. When
the emperors exercised an unlimited control over the fortunes and
the lives of their fellow-citizens, it was customary to call them
Caesar in conversation, and they were in the habit of supping
without formality at their friends' houses. It is therefore
necessary to look below the surface.
The sovereignty of the United States is shared between the
Union and the States, whilst in France it is undivided and
compact: hence arises the first and the most notable difference
which exists between the President of the United States and the
King of France. In the United States the executive power is as
limited and partial as the sovereignty of the Union in whose name
it acts; in France it is as universal as the authority of the
State. The Americans have a federal and the French a national
Government.
Chapter VIII: The Federal Constitution - Part II
This cause of inferiority results from the nature of things,
but it is not the only one; the second in importance is as
follows: Sovereignty may be defined to be the right of making
laws: in France, the King really exercises a portion of the
sovereign power, since the laws have no weight till he has given
his assent to them; he is, moreover, the executor of all they
ordain. The President is also the executor of the laws, but he
does not really co-operate in their formation, since the refusal
of his assent does not annul them. He is therefore merely to be
considered as the agent of the sovereign power. But not only
does the King of France exercise a portion of the sovereign
power, he also contributes to the nomination of the legislature,
which exercises the other portion. He has the privilege of
appointing the members of one chamber, and of dissolving the
other at his pleasure; whereas the President of the United States
has no share in the formation of the legislative body, and cannot
dissolve any part of it. The King has the same right of bringing
forward measures as the Chambers; a right which the President
does not possess. The King is represented in each assembly by
his ministers, who explain his intentions, support his opinions,
and maintain the principles of the Government. The President and
his ministers are alike excluded from Congress; so that his
influence and his opinions can only penetrate indirectly into
that great body. The King of France is therefore on an equal
footing with the legislature, which can no more act without him
than he can without it. The President exercises an authority
inferior to, and depending upon, that of the legislature.
Even in the exercise of the executive power, properly so
called - the point upon which his position seems to be most
analogous to that of the King of France - the President labors
under several causes of inferiority. The authority of the King,
in France, has, in the first place, the advantage of duration
over that of the President, and durability is one of the chief
elements of strength; nothing is either loved or feared but what
is likely to endure. The President of the United States is a
magistrate elected for four years; the King, in France, is an
hereditary sovereign. In the exercise of the executive power the
President of the United States is constantly subject to a jealous
scrutiny. He may make, but he cannot conclude, a treaty; he may
designate, but he cannot appoint, a public officer. *q The King
of France is absolute within the limits of his authority. The
President of the United States is responsible for his actions;
but the person of the King is declared inviolable by the French
Charter. *r
[Footnote q: The Constitution had left it doubtful whether the
President was obliged to consult the Senate in the removal as
well as in the appointment of Federal officers. "The Federalist"
(No. 77) seemed to establish the affirmative; but in 1789
Congress formally decided that, as the President was responsible
for his actions, he ought not to be forced to employ agents who
had forfeited his esteem. See Kent's "Commentaries, vol. i. p.
289.]
[Footnote r: [This comparison applied to the Constitutional King
of France and to the powers he held under the Charter of 1830,
till the overthrow of the monarchy in 1848. - Translator's
Note.]]
Nevertheless, the supremacy of public opinion is no less
above the head of the one than of the other. This power is less
definite, less evident, and less sanctioned by the laws in France
than in America, but in fact it exists. In America, it acts by
elections and decrees; in France it proceeds by revolutions; but
notwithstanding the different constitutions of these two
countries, public opinion is the predominant authority in both of
them. The fundamental principle of legislation - a principle
essentially republican - is the same in both countries, although
its consequences may be different, and its results more or less
extensive. Whence I am led to conclude that France with its King
is nearer akin to a republic than the Union with its President is
to a monarchy.
In what I have been saying I have only touched upon the main
points of distinction; and if I could have entered into details,
the contrast would have been rendered still more striking.
I have remarked that the authority of the President in the
United States is only exercised within the limits of a partial
sovereignty, whilst that of the King in France is undivided. I
might have gone on to show that the power of the King's
government in France exceeds its natural limits, however
extensive they may be, and penetrates in a thousand different
ways into the administration of private interests. Amongst the
examples of this influence may be quoted that which results from
the great number of public functionaries, who all derive their
appointments from the Government. This number now exceeds all
previous limits; it amounts to 138,000 *s nominations, each of
which may be considered as an element of power. The President of
the United States has not the exclusive right of making any
public appointments, and their whole number scarcely exceeds
12,000. *t
[Footnote s: The sums annually paid by the State to these
officers amount to 200,000,000 fr. ($40,000,000).]
[Footnote t: This number is extracted from the "National
Calendar" for 1833. The "National Calendar" is an American
almanac which contains the names of all the Federal officers. It
results from this comparison that the King of France has eleven
times as many places at his disposal as the President, although
the population of France is not much more than double that of the
Union.
[I have not the means of ascertaining the number of
appointments now at the disposal of the President of the United
States, but his patronage and the abuse of it have largely
increased since 1833. - Translator's Note, 1875.]]
Accidental Causes Which May Increase The Influence Of The
Executive Government
External security of the Union - Army of six thousand men - Few
ships - The President has no opportunity of exercising his great
prerogatives - In the prerogatives he exercises he is weak.
If the executive government is feebler in America than in
France, the cause is more attributable to the circumstances than
to the laws of the country.
It is chiefly in its foreign relations that the executive
power of a nation is called upon to exert its skill and its
vigor. If the existence of the Union were perpetually
threatened, and if its chief interests were in daily connection
with those of other powerful nations, the executive government
would assume an increased importance in proportion to the
measures expected of it, and those which it would carry into
effect. The President of the United States is the
commander-in-chief of the army, but of an army composed of only
six thousand men; he commands the fleet, but the fleet reckons
but few sail; he conducts the foreign relations of the Union, but
the United States are a nation without neighbors. Separated from
the rest of the world by the ocean, and too weak as yet to aim at
the dominion of the seas, they have no enemies, and their
interests rarely come into contact with those of any other nation
of the globe.
The practical part of a Government must not be judged by the
theory of its constitution. The President of the United States
is in the possession of almost royal prerogatives, which he has
no opportunity of exercising; and those privileges which he can
at present use are very circumscribed. The laws allow him to
possess a degree of influence which circumstances do not permit
him to employ.
On the other hand, the great strength of the royal
prerogative in France arises from circumstances far more than
from the laws. There the executive government is constantly
struggling against prodigious obstacles, and exerting all its
energies to repress them; so that it increases by the extent of
its achievements, and by the importance of the events it
controls, without modifying its constitution. If the laws had
made it as feeble and as circumscribed as it is in the Union, its
influence would very soon become still more preponderant.
Why The President Of The United States Does Not Require The
Majority Of The Two Houses In Order To Carry On The Government
It is an established axiom in Europe that a constitutional
King cannot persevere in a system of government which is opposed
by the two other branches of the legislature. But several
Presidents of the United States have been known to lose the
majority in the legislative body without being obliged to abandon
the supreme power, and without inflicting a serious evil upon
society. I have heard this fact quoted as an instance of the
independence and the power of the executive government in
America: a moment's reflection will convince us, on the contrary,
that it is a proof of its extreme weakness.
A King in Europe requires the support of the legislature to
enable him to perform the duties imposed upon him by the
Constitution, because those duties are enormous. A
constitutional King in Europe is not merely the executor of the
law, but the execution of its provisions devolves so completely
upon him that he has the power of paralyzing its influence if it
opposes his designs. He requires the assistance of the
legislative assemblies to make the law, but those assemblies
stand in need of his aid to execute it: these two authorities
cannot subsist without each other, and the mechanism of
government is stopped as soon as they are at variance.
In America the President cannot prevent any law from being
passed, nor can he evade the obligation of enforcing it. His
sincere and zealous co-operation is no doubt useful, but it is
not indispensable, in the carrying on of public affairs. All his
important acts are directly or indirectly submitted to the
legislature, and of his own free authority he can do but little.
It is therefore his weakness, and not his power, which enables
him to remain in opposition to Congress. In Europe, harmony must
reign between the Crown and the other branches of the
legislature, because a collision between them may prove serious;
in America, this harmony is not indispensable, because such a
collision is impossible.
Election Of The President
Dangers of the elective system increase in proportion to the
extent of the prerogative - This system possible in America
because no powerful executive authority is required - What
circumstances are favorable to the elective system - Why the
election of the President does not cause a deviation from the
principles of the Government - Influence of the election of the
President on secondary functionaries.
The dangers of the system of election applied to the head of
the executive government of a great people have been sufficiently
exemplified by experience and by history, and the remarks I am
about to make refer to America alone. These dangers may be more
or less formidable in proportion to the place which the executive
power occupies, and to the importance it possesses in the State;
and they may vary according to the mode of election and the
circumstances in which the electors are placed. The most weighty
argument against the election of a chief magistrate is, that it
offers so splendid a lure to private ambition, and is so apt to
inflame men in the pursuit of power, that when legitimate means
are wanting force may not unfrequently seize what right denied.
It is clear that the greater the privileges of the executive
authority are, the greater is the temptation; the more the
ambition of the candidates is excited, the more warmly are their
interests espoused by a throng of partisans who hope to share the
power when their patron has won the prize. The dangers of the
elective system increase, therefore, in the exact ratio of the
influence exercised by the executive power in the affairs of
State. The revolutions of Poland were not solely attributable to
the elective system in general, but to the fact that the elected
monarch was the sovereign of a powerful kingdom. Before we can
discuss the absolute advantages of the elective system we must
make preliminary inquiries as to whether the geographical
position, the laws, the habits, the manners, and the opinions of
the people amongst whom it is to be introduced will admit of the
establishment of a weak and dependent executive government; for
to attempt to render the representative of the State a powerful
sovereign, and at the same time elective, is, in my opinion, to
entertain two incompatible designs. To reduce hereditary royalty
to the condition of an elective authority, the only means that I
am acquainted with are to circumscribe its sphere of action
beforehand, gradually to diminish its prerogatives, and to
accustom the people to live without its protection. Nothing,
however, is further from the designs of the republicans of Europe
than this course: as many of them owe their hatred of tyranny to
the sufferings which they have personally undergone, it is
oppression, and not the extent of the executive power, which
excites their hostility, and they attack the former without
perceiving how nearly it is connected with the latter.
Hitherto no citizen has shown any disposition to expose his
honor and his life in order to become the President of the United
States; because the power of that office is temporary, limited,
and subordinate. The prize of fortune must be great to encourage
adventurers in so desperate a game. No candidate has as yet been
able to arouse the dangerous enthusiasm or the passionate
sympathies of the people in his favor, for the very simple reason
that when he is at the head of the Government he has but little
power, but little wealth, and but little glory to share amongst
his friends; and his influence in the State is too small for the
success or the ruin of a faction to depend upon the elevation of
an individual to power.
The great advantage of hereditary monarchies is, that as the
private interest of a family is always intimately connected with
the interests of the State, the executive government is never
suspended for a single instant; and if the affairs of a monarchy
are not better conducted than those of a republic, at least there
is always some one to conduct them, well or ill, according to his
capacity. In elective States, on the contrary, the wheels of
government cease to act, as it were, of their own accord at the
approach of an election, and even for some time previous to that
event. The laws may indeed accelerate the operation of the
election, which may be conducted with such simplicity and
rapidity that the seat of power will never be left vacant; but,
notwithstanding these precautions, a break necessarily occurs in
the minds of the people.
At the approach of an election the head of the executive
government is wholly occupied by the coming struggle; his future
plans are doubtful; he can undertake nothing new, and the he will
only prosecute with indifference those designs which another will
perhaps terminate. "I am so near the time of my retirement from
office," said President Jefferson on the 21st of January, 1809
(six weeks before the election), "that I feel no passion, I take
no part, I express no sentiment. It appears to me just to leave
to my successor the commencement of those measures which he will
have to prosecute, and for which he will be responsible."
On the other hand, the eyes of the nation are centred on a
single point; all are watching the gradual birth of so important
an event. The wider the influence of the executive power
extends, the greater and the more necessary is its constant
action, the more fatal is the term of suspense; and a nation
which is accustomed to the government, or, still more, one used
to the administrative protection of a powerful executive
authority would be infallibly convulsed by an election of this
kind. In the United States the action of the Government may be
slackened with impunity, because it is always weak and
circumscribed. *u
[Footnote u: [This, however, may be a great danger. The period
during which Mr. Buchanan retained office, after the election of
Mr. Lincoln, from November, 1860, to March, 1861, was that which
enabled the seceding States of the South to complete their
preparations for the Civil War, and the Executive Government was
paralyzed. No greater evil could befall a nation. -Translator's
Note.]]
One of the principal vices of the elective system is that it
always introduces a certain degree of instability into the
internal and external policy of the State. But this disadvantage
is less sensibly felt if the share of power vested in the elected
magistrate is small. In Rome the principles of the Government
underwent no variation, although the Consuls were changed every
year, because the Senate, which was an hereditary assembly,
possessed the directing authority. If the elective system were
adopted in Europe, the condition of most of the monarchical
States would be changed at every new election. In America the
President exercises a certain influence on State affairs, but he
does not conduct them; the preponderating power is vested in the
representatives of the whole nation. The political maxims of the
country depend therefore on the mass of the people, not on the
President alone; and consequently in America the elective system
has no very prejudicial influence on the fixed principles of the
Government. But the want of fixed principles is an evil so
inherent in the elective system that it is still extremely
perceptible in the narrow sphere to which the authority of the
President extends.
The Americans have admitted that the head of the executive
power, who has to bear the whole responsibility of the duties he
is called upon to fulfil, ought to be empowered to choose his own
agents, and to remove them at pleasure: the legislative bodies
watch the conduct of the President more than they direct it. The
consequence of this arrangement is, that at every new election
the fate of all the Federal public officers is in suspense. Mr.
Quincy Adams, on his entry into office, discharged the majority
of the individuals who had been appointed by his predecessor: and
I am not aware that General Jackson allowed a single removable
functionary employed in the Federal service to retain his place
beyond the first year which succeeded his election. It is
sometimes made a subject of complaint that in the constitutional
monarchies of Europe the fate of the humbler servants of an
Administration depends upon that of the Ministers. But in
elective Governments this evil is far greater. In a
constitutional monarchy successive ministries are rapidly formed;
but as the principal representative of the executive power does
not change, the spirit of innovation is kept within bounds; the
changes which take place are in the details rather than in the
principles of the administrative system; but to substitute one
system for another, as is done in America every four years, by
law, is to cause a sort of revolution. As to the misfortunes
which may fall upon individuals in consequence of this state of
things, it must be allowed that the uncertain situation of the
public officers is less fraught with evil consequences in America
than elsewhere. It is so easy to acquire an independent position
in the United States that the public officer who loses his place
may be deprived of the comforts of life, but not of the means of
subsistence.
I remarked at the beginning of this chapter that the dangers
of the elective system applied to the head of the State are
augmented or decreased by the peculiar circumstances of the
people which adopts it. However the functions of the executive
power may be restricted, it must always exercise a great
influence upon the foreign policy of the country, for a
negotiation cannot be opened or successfully carried on otherwise
than by a single agent. The more precarious and the more perilous
the position of a people becomes, the more absolute is the want
of a fixed and consistent external policy, and the more dangerous
does the elective system of the Chief Magistrate become. The
policy of the Americans in relation to the whole world is
exceedingly simple; for it may almost be said that no country
stands in need of them, nor do they require the co-operation of
any other people. Their independence is never threatened. In
their present condition, therefore, the functions of the
executive power are no less limited by circumstances than by the
laws; and the President may frequently change his line of policy
without involving the State in difficulty or destruction.
Whatever the prerogatives of the executive power may be, the
period which immediately precedes an election and the moment of
its duration must always be considered as a national crisis,
which is perilous in proportion to the internal embarrassments
and the external dangers of the country. Few of the nations of
Europe could escape the calamities of anarchy or of conquest
every time they might have to elect a new sovereign. In America
society is so constituted that it can stand without assistance
upon its own basis; nothing is to be feared from the pressure of
external dangers, and the election of the President is a cause of
agitation, but not of ruin.
Mode Of Election
Skill of the American legislators shown in the mode of election
adopted by them - Creation of a special electoral body - Separate
votes of these electors - Case in which the House of
Representatives is called upon to choose the President - Results
of the twelve elections which have taken place since the
Constitution has been established.
Besides the dangers which are inherent in the system, many
other difficulties may arise from the mode of election, which may
be obviated by the precaution of the legislator. When a people
met in arms on some public spot to choose its head, it was
exposed to all the chances of civil war resulting from so martial
a mode of proceeding, besides the dangers of the elective system
in itself. The Polish laws, which subjected the election of the
sovereign to the veto of a single individual, suggested the
murder of that individual or prepared the way to anarchy.
In the examination of the institutions and the political as
well as social condition of the United States, we are struck by
the admirable harmony of the gifts of fortune and the efforts of
man. The nation possessed two of the main causes of internal
peace; it was a new country, but it was inhabited by a people
grown old in the exercise of freedom. America had no hostile
neighbors to dread; and the American legislators, profiting by
these favorable circumstances, created a weak and subordinate
executive power which could without danger be made elective.
It then only remained for them to choose the least dangerous
of the various modes of election; and the rules which they laid
down upon this point admirably correspond to the securities which
the physical and political constitution of the country already
afforded. Their object was to find the mode of election which
would best express the choice of the people with the least
possible excitement and suspense. It was admitted in the first
place that the simple majority should be decisive; but the
difficulty was to obtain this majority without an interval of
delay which it was most important to avoid. It rarely happens
that an individual can at once collect the majority of the
suffrages of a great people; and this difficulty is enhanced in a
republic of confederate States, where local influences are apt to
preponderate. The means by which it was proposed to obviate this
second obstacle was to delegate the electoral powers of the
nation to a body of representatives. This mode of election
rendered a majority more probable; for the fewer the electors
are, the greater is the chance of their coming to a final
decision. It also offered an additional probability of a
judicious choice. It then remained to be decided whether this
right of election was to be entrusted to a legislative body, the
habitual representative assembly of the nation, or whether an
electoral assembly should be formed for the express purpose of
proceeding to the nomination of a President. The Americans chose
the latter alternative, from a belief that the individuals who
were returned to make the laws were incompetent to represent the
wishes of the nation in the election of its chief magistrate; and
that, as they are chosen for more than a year, the constituency
they represent might have changed its opinion in that time. It
was thought that if the legislature was empowered to elect the
head of the executive power, its members would, for some time
before the election, be exposed to the manoeuvres of corruption
and the tricks of intrigue; whereas the special electors would,
like a jury, remain mixed up with the crowd till the day of
action, when they would appear for the sole purpose of giving
their votes.
It was therefore established that every State should name a
certain number of electors, *v who in their turn should elect the
President; and as it had been observed that the assemblies to
which the choice of a chief magistrate had been entrusted in
elective countries inevitably became the centres of passion and
of cabal; that they sometimes usurped an authority which did not
belong to them; and that their proceedings, or the uncertainty
which resulted from them, were sometimes prolonged so much as to
endanger the welfare of the State, it was determined that the
electors should all vote upon the same day, without being
convoked to the same place. *w This double election rendered a
majority probable, though not certain; for it was possible that
as many differences might exist between the electors as between
their constituents. In this case it was necessary to have
recourse to one of three measures; either to appoint new
electors, or to consult a second time those already appointed,or
to defer the election to another authority. The first two of
these alternatives, independently of the uncertainty of their
results, were likely to delay the final decision, and to
perpetuate an agitation which must always be accompanied with
danger. The third expedient was therefore adopted, and it was
agreed that the votes should be transmitted sealed to the
President of the Senate, and that they should be opened and
counted in the presence of the Senate and the House of
Representatives. If none of the candidates has a majority, the
House of Representatives then proceeds immediately to elect a
President, but with the condition that it must fix upon one of
the three candidates who have the highest numbers. *x
[Footnote v: As many as it sends members to Congress. The number
of electors at the election of 1833 was 288. (See "The National
Calendar," 1833.)]
[Footnote w: The electors of the same State assemble, but they
transmit to the central government the list of their individual
votes, and not the mere result of the vote of the majority.]
[Footnote x: In this case it is the majority of the States, and
not the majority of the members, which decides the question; so
that New York has not more influence in the debate than Rhode
Island. Thus the citizens of the Union are first consulted as
members of one and the same community; and, if they cannot agree,
recourse is had to the division of the States, each of which has
a separate and independent vote. This is one of the
singularities of the Federal Constitution which can only be
explained by the jar of conflicting interests.]
Thus it is only in case of an event which cannot often
happen, and which can never be foreseen, that the election is
entrusted to the ordinary representatives of the nation; and even
then they are obliged to choose a citizen who has already been
designated by a powerful minority of the special electors. It is
by this happy expedient that the respect which is due to the
popular voice is combined with the utmost celerity of execution
and those precautions which the peace of the country demands.
But the decision of the question by the House of Representatives
does not necessarily offer an immediate solution of the
difficulty, for the majority of that assembly may still be
doubtful, and in this case the Constitution prescribes no remedy.
Nevertheless, by restricting the number of candidates to three,
and by referring the matter to the judgment of an enlightened
public body, it has smoothed all the obstacles *y which are not
inherent in the elective system.
[Footnote y: Jefferson, in 1801, was not elected until the
thirty- sixth time of balloting.]
In the forty-four years which have elapsed since the
promulgation of the Federal Constitution the United States have
twelve times chosen a President. Ten of these elections took
place simultaneously by the votes of the special electors in the
different States. The House of Representatives has only twice
exercised its conditional privilege of deciding in cases of
uncertainty; the first time was at the election of Mr. Jefferson
in 1801; the second was in 1825, when Mr. Quincy Adams was named.
*z
[Footnote z: [General Grant is now (1874) the eighteenth
President of the United States.]]
Crises Of The Election
The Election may be considered as a national crisis - Why? -
Passions of the people - Anxiety of the President - Calm which
succeeds the agitation of the election.
I have shown what the circumstances are which favored the
adoption of the elective system in the United States, and what
precautions were taken by the legislators to obviate its dangers.
The Americans are habitually accustomed to all kinds of
elections, and they know by experience the utmost degree of
excitement which is compatible with security. The vast extent of
the country and the dissemination of the inhabitants render a
collision between parties less probable and less dangerous there
than elsewhere. The political circumstances under which the
elections have hitherto been carried on have presented no real
embarrassments to the nation.
Nevertheless, the epoch of the election of a President of
the United States may be considered as a crisis in the affairs of
the nation. The influence which he exercises on public business
is no doubt feeble and indirect; but the choice of the President,
which is of small importance to each individual citizen, concerns
the citizens collectively; and however trifling an interest may
be, it assumes a great degree of importance as soon as it becomes
general. The President possesses but few means of rewarding his
supporters in comparison to the kings of Europe, but the places
which are at his disposal are sufficiently numerous to interest,
directly or indirectly, several thousand electors in his success.
Political parties in the United States are led to rally round an
individual, in order to acquire a more tangible shape in the eyes
of the crowd, and the name of the candidate for the Presidency is
put forward as the symbol and personification of their theories.
For these reasons parties are strongly interested in gaining the
election, not so much with a view to the triumph of their
principles under the auspices of the President-elect as to show
by the majority which returned him, the strength of the
supporters of those principles.
For a long while before the appointed time is at hand the
election becomes the most important and the all-engrossing topic
of discussion. The ardor of faction is redoubled; and all the
artificial passions which the imagination can create in the bosom
of a happy and peaceful land are agitated and brought to light.
The President, on the other hand, is absorbed by the cares of
self- defence. He no longer governs for the interest of the
State, but for that of his re-election; he does homage to the
majority, and instead of checking its passions, as his duty
commands him to do, he frequently courts its worst caprices. As
the election draws near, the activity of intrigue and the
agitation of the populace increase; the citizens are divided into
hostile camps, each of which assumes the name of its favorite
candidate; the whole nation glows with feverish excitement; the
election is the daily theme of the public papers, the subject of
private conversation, the end of every thought and every action,
the sole interest of the present. As soon as the choice is
determined, this ardor is dispelled; and as a calmer season
returns, the current of the State, which had nearly broken its
banks, sinks to its usual level: *a but who can refrain from
astonishment at the causes of the storm.
[Footnote a: [Not always. The election of President Lincoln was
the signal of civil war. - Translator's Note.]]
Chapter VIII: The Federal Constitution - Part III
Re-election Of The President
When the head of the executive power is re-eligible, it is the
State which is the source of intrigue and corruption - The desire
of being re-elected the chief aim of a President of the United
States - Disadvantage of the system peculiar to America - The
natural evil of democracy is that it subordinates all authority
to the slightest desires of the majority - The re-election of the
President encourages this evil.
It may be asked whether the legislators of the United States
did right or wrong in allowing the re-election of the President.
It seems at first sight contrary to all reason to prevent the
head of the executive power from being elected a second time.
The influence which the talents and the character of a single
individual may exercise upon the fate of a whole people, in
critical circumstances or arduous times, is well known: a law
preventing the re-election of the chief magistrate would deprive
the citizens of the surest pledge of the prosperity and the
security of the commonwealth; and, by a singular inconsistency, a
man would be excluded from the government at the very time when
he had shown his ability in conducting its affairs.
But if these arguments are strong, perhaps still more
powerful reasons may be advanced against them. Intrigue and
corruption are the natural defects of elective government; but
when the head of the State can be re-elected these evils rise to
a great height, and compromise the very existence of the country.
When a simple candidate seeks to rise by intrigue, his manoeuvres
must necessarily be limited to a narrow sphere; but when the
chief magistrate enters the lists, he borrows the strength of the
government for his own purposes. In the former case the feeble
resources of an individual are in action; in the latter, the
State itself, with all its immense influence, is busied in the
work of corruption and cabal. The private citizen, who employs
the most immoral practices to acquire power, can only act in a
manner indirectly prejudicial to the public prosperity. But if
the representative of the executive descends into the combat, the
cares of government dwindle into second-rate importance, and the
success of his election is his first concern. All laws and all
the negotiations he undertakes are to him nothing more than
electioneering schemes; places become the reward of services
rendered, not to the nation, but to its chief; and the influence
of the government, if not injurious to the country, is at least
no longer beneficial to the community for which it was created.
It is impossible to consider the ordinary course of affairs
in the United States without perceiving that the desire of being
re- elected is the chief aim of the President; that his whole
administration, and even his most indifferent measures, tend to
this object; and that, as the crisis approaches, his personal
interest takes the place of his interest in the public good. The
principle of re-eligibility renders the corrupt influence of
elective government still more extensive and pernicious.
In America it exercises a peculiarly fatal influence on the
sources of national existence. Every government seems to be
afflicted by some evil which is inherent in its nature, and the
genius of the legislator is shown in eluding its attacks. A
State may survive the influence of a host of bad laws, and the
mischief they cause is frequently exaggerated; but a law which
encourages the growth of the canker within must prove fatal in
the end, although its bad consequences may not be immediately
perceived.
The principle of destruction in absolute monarchies lies in
the excessive and unreasonable extension of the prerogative of
the crown; and a measure tending to remove the constitutional
provisions which counterbalance this influence would be radically
bad, even if its immediate consequences were unattended with
evil. By a parity of reasoning, in countries governed by a
democracy, where the people is perpetually drawing all authority
to itself, the laws which increase or accelerate its action are
the direct assailants of the very principle of the government.
The greatest proof of the ability of the American
legislators is, that they clearly discerned this truth, and that
they had the courage to act up to it. They conceived that a
certain authority above the body of the people was necessary,
which should enjoy a degree of independence, without, however,
being entirely beyond the popular control; an authority which
would be forced to comply with the permanent determinations of
the majority, but which would be able to resist its caprices, and
to refuse its most dangerous demands. To this end they centred
the whole executive power of the nation in a single arm; they
granted extensive prerogatives to the President, and they armed
him with the veto to resist the encroachments of the legislature.
But by introducing the principle of re-election they partly
destroyed their work; and they rendered the President but little
inclined to exert the great power they had vested in his hands.
If ineligible a second time, the President would be far from
independent of the people, for his responsibility would not be
lessened; but the favor of the people would not be so necessary
to him as to induce him to court it by humoring its desires. If
re- eligible (and this is more especially true at the present
day, when political morality is relaxed, and when great men are
rare), the President of the United States becomes an easy tool in
the hands of the majority. He adopts its likings and its
animosities, he hastens to anticipate its wishes, he forestalls
its complaints, he yields to its idlest cravings, and instead of
guiding it, as the legislature intended that he should do, he is
ever ready to follow its bidding. Thus, in order not to deprive
the State of the talents of an individual, those talents have
been rendered almost useless; and to reserve an expedient for
extraordinary perils, the country has been exposed to daily
dangers.
Federal Courts *b
[Footnote b: See chap. VI, entitled "Judicial Power in the
United States." This chapter explains the general principles of
the American theory of judicial institutions. See also the
Federal Constitution, Art. 3. See "The Federalists," Nos.
78-83, inclusive; and a work entitled "Constitutional Law," being
a view of the practice and jurisdiction of the courts of the
United States, by Thomas Sergeant. See Story, pp. 134, 162, 489,
511, 581, 668; and the organic law of September 24, 1789, in the
"Collection of the Laws of the United States," by Story, vol. i.
p. 53.]
Political importance of the judiciary in the United States -
Difficulty of treating this subject - Utility of judicial power
in confederations - What tribunals could be introduced into the
Union - Necessity of establishing federal courts of justice -
Organization of the national judiciary - The Supreme Court - In
what it differs from all known tribunals.
I have inquired into the legislative and executive power of
the Union, and the judicial power now remains to be examined; but
in this place I cannot conceal my fears from the reader. Their
judicial institutions exercise a great influence on the condition
of the Anglo-Americans, and they occupy a prominent place amongst
what are probably called political institutions: in this respect
they are peculiarly deserving of our attention. But I am at a
loss to explain the political action of the American tribunals
without entering into some technical details of their
constitution and their forms of proceeding; and I know not how to
descend to these minutiae without wearying the curiosity of the
reader by the natural aridity of the subject, or without risking
to fall into obscurity through a desire to be succinct. I can
scarcely hope to escape these various evils; for if I appear too
lengthy to a man of the world, a lawyer may on the other hand
complain of my brevity. But these are the natural disadvantages
of my subject, and more especially of the point which I am about
to discuss.
The great difficulty was, not to devise the Constitution to
the Federal Government, but to find out a method of enforcing its
laws. Governments have in general but two means of overcoming
the opposition of the people they govern, viz., the physical
force which is at their own disposal, and the moral force which
they derive from the decisions of the courts of justice.
A government which should have no other means of exacting
obedience than open war must be very near its ruin, for one of
two alternatives would then probably occur: if its authority was
small and its character temperate, it would not resort to
violence till the last extremity, and it would connive at a
number of partial acts of insubordination, in which case the
State would gradually fall into anarchy; if it was enterprising
and powerful, it would perpetually have recourse to its physical
strength, and would speedily degenerate into a military
despotism. So that its activity would not be less prejudicial to
the community than its inaction.
The great end of justice is to substitute the notion of
right for that of violence, and to place a legal barrier between
the power of the government and the use of physical force. The
authority which is awarded to the intervention of a court of
justice by the general opinion of mankind is so surprisingly
great that it clings to the mere formalities of justice, and
gives a bodily influence to the shadow of the law. The moral
force which courts of justice possess renders the introduction of
physical force exceedingly rare, and is very frequently
substituted for it; but if the latter proves to be indispensable,
its power is doubled by the association of the idea of law.
A federal government stands in greater need of the support
of judicial institutions than any other, because it is naturally
weak and exposed to formidable opposition. *c If it were always
obliged to resort to violence in the first instance, it could not
fulfil its task. The Union, therefore, required a national
judiciary to enforce the obedience of the citizens to the laws,
and to repeal the attacks which might be directed against them.
The question then remained as to what tribunals were to exercise
these privileges; were they to be entrusted to the courts of
justice which were already organized in every State? or was it
necessary to create federal courts? It may easily be proved that
the Union could not adapt the judicial power of the States to its
wants. The separation of the judiciary from the administrative
power of the State no doubt affects the security of every citizen
and the liberty of all. But it is no less important to the
existence of the nation that these several powers should have the
same origin, should follow the same principles, and act in the
same sphere; in a word, that they should be correlative and
homogeneous. No one, I presume, ever suggested the advantage of
trying offences committed in France by a foreign court of
justice, in order to secure the impartiality of the judges. The
Americans form one people in relation to their Federal
Government; but in the bosom of this people divers political
bodies have been allowed to subsist which are dependent on the
national Government in a few points, and independent in all the
rest; which have all a distinct origin, maxims peculiar to
themselves, and special means of carrying on their affairs. To
entrust the execution of the laws of the Union to tribunals
instituted by these political bodies would be to allow foreign
judges to preside over the nation. Nay, more; not only is each
State foreign to the Union at large, but it is in perpetual
opposition to the common interests, since whatever authority the
Union loses turns to the advantage of the States. Thus to
enforce the laws of the Union by means of the tribunals of the
States would be to allow not only foreign but partial judges to
preside over the nation.
[Footnote c: Federal laws are those which most require courts of
justice, and those at the same time which have most rarely
established them. The reason is that confederations have usually
been formed by independent States, which entertained no real
intention of obeying the central Government, and which very
readily ceded the right of command to the federal executive, and
very prudently reserved the right of non-compliance to
themselves.]
But the number, still more than the mere character, of the
tribunals of the States rendered them unfit for the service of
the nation. When the Federal Constitution was formed there were
already thirteen courts of justice in the United States which
decided causes without appeal. That number is now increased to
twenty-four. To suppose that a State can subsist when its
fundamental laws may be subjected to four-and-twenty different
interpretations at the same time is to advance a proposition
alike contrary to reason and to experience.
The American legislators therefore agreed to create a
federal judiciary power to apply the laws of the Union, and to
determine certain questions affecting general interests, which
were carefully determined beforehand. The entire judicial power
of the Union was centred in one tribunal, which was denominated
the Supreme Court of the United States. But, to facilitate the
expedition of business, inferior courts were appended to it,
which were empowered to decide causes of small importance without
appeal, and with appeal causes of more magnitude. The members of
the Supreme Court are named neither by the people nor the
legislature, but by the President of the United States, acting
with the advice of the Senate. In order to render them
independent of the other authorities, their office was made
inalienable; and it was determined that their salary, when once
fixed, should not be altered by the legislature. *d It was easy
to proclaim the principle of a Federal judiciary, but
difficulties multiplied when the extent of its jurisdiction was
to be determined.
[Footnote d: The Union was divided into districts, in each of
which a resident Federal judge was appointed, and the court in
which he presided was termed a "District Court." Each of the
judges of the Supreme Court annually visits a certain portion of
the Republic, in order to try the most important causes upon the
spot; the court presided over by this magistrate is styled a
"Circuit Court." Lastly, all the most serious cases of litigation
are brought before the Supreme Court, which holds a solemn
session once a year, at which all the judges of the Circuit
Courts must attend. The jury was introduced into the Federal
Courts in the same manner, and in the same cases, as into the
courts of the States.
It will be observed that no analogy exists between the
Supreme Court of the United States and the French Cour de
Cassation, since the latter only hears appeals on questions of
law. The Supreme Court decides upon the evidence of the fact as
well as upon the law of the case, whereas the Cour de Cassation
does not pronounce a decision of its own, but refers the cause to
the arbitration of another tribunal. See the law of September
24, 1789, "Laws of the United States," by Story, vol. i. p. 53.]
Means Of Determining The Jurisdiction Of The Federal Courts
Difficulty of determining the jurisdiction of separate courts of
justice in confederations - The courts of the Union obtained the
right of fixing their own jurisdiction - In what respect this
rule attacks the portion of sovereignty reserved to the several
States - The sovereignty of these States restricted by the laws,
and the interpretation of the laws - Consequently, the danger of
the several States is more apparent than real.
As the Constitution of the United States recognized two
distinct powers in presence of each other, represented in a
judicial point of view by two distinct classes of courts of
justice, the utmost care which could be taken in defining their
separate jurisdictions would have been insufficient to prevent
frequent collisions between those tribunals. The question then
arose to whom the right of deciding the competency of each court
was to be referred.
In nations which constitute a single body politic, when a
question is debated between two courts relating to their mutual
jurisdiction, a third tribunal is generally within reach to
decide the difference; and this is effected without difficulty,
because in these nations the questions of judicial competency
have no connection with the privileges of the national supremacy.
But it was impossible to create an arbiter between a superior
court of the Union and the superior court of a separate State
which would not belong to one of these two classes. It was,
therefore, necessary to allow one of these courts to judge its
own cause, and to take or to retain cognizance of the point which
was contested. To grant this privilege to the different courts
of the States would have been to destroy the sovereignty of the
Union de facto after having established it de jure; for the
interpretation of the Constitution would soon have restored that
portion of independence to the States of which the terms of that
act deprived them. The object of the creation of a Federal
tribunal was to prevent the courts of the States from deciding
questions affecting the national interests in their own
department, and so to form a uniform body of jurisprudene for the
interpretation of the laws of the Union. This end would not have
been accomplished if the courts of the several States had been
competent to decide upon cases in their separate capacities from
which they were obliged to abstain as Federal tribunals. The
Supreme Court of the United States was therefore invested with
the right of determining all questions of jurisdiction. *e
[Footnote e: In order to diminish the number of these suits, it
was decided that in a great many Federal causes the courts of the
States should be empowered to decide conjointly with those of the
Union, the losing party having then a right of appeal to the
Supreme Court of the United States. The Supreme Court of
Virginia contested the right of the Supreme Court of the United
States to judge an appeal from its decisions, but unsuccessfully.
See "Kent's Commentaries," vol. i. p. 300, pp. 370 et seq.;
Story's "Commentaries," p. 646; and "The Organic Law of the
United States," vol. i. p. 35.]
This was a severe blow upon the independence of the States,
which was thus restricted not only by the laws, but by the
interpretation of them; by one limit which was known, and by
another which was dubious; by a rule which was certain, and a
rule which was arbitrary. It is true the Constitution had laid
down the precise limits of the Federal supremacy, but whenever
this supremacy is contested by one of the States, a Federal
tribunal decides the question. Nevertheless, the dangers with
which the independence of the States was threatened by this mode
of proceeding are less serious than they appeared to be. We
shall see hereafter that in America the real strength of the
country is vested in the provincial far more than in the Federal
Government. The Federal judges are conscious of the relative
weakness of the power in whose name they act, and they are more
inclined to abandon a right of jurisdiction in cases where it is
justly their own than to assert a privilege to which they have no
legal claim.
Different Cases Of Jurisdiction
The matter and the party are the first conditions of the Federal
jurisdiction - Suits in which ambassadors are engaged - Suits of
the Union - Of a separate State - By whom tried - Causes
resulting from the laws of the Union - Why judged by the Federal
tribunals - Causes relating to the performance of contracts tried
by the Federal courts - Consequence of this arrangement.
After having appointed the means of fixing the competency of
the Federal courts, the legislators of the Union defined the
cases which should come within their jurisdiction. It was
established, on the one hand, that certain parties must always be
brought before the Federal courts, without any regard to the
special nature of the cause; and, on the other, that certain
causes must always be brought before the same courts, without any
regard to the quality of the parties in the suit. These
distinctions were therefore admitted to be the basis of the
Federal jurisdiction.
Ambassadors are the representatives of nations in a state of
amity with the Union, and whatever concerns these personages
concerns in some degree the whole Union. When an ambassador is a
party in a suit, that suit affects the welfare of the nation, and
a Federal tribunal is naturally called upon to decide it.
The Union itself may be invoked in legal proceedings, and in
this case it would be alike contrary to the customs of all
nations and to common sense to appeal to a tribunal representing
any other sovereignty than its own; the Federal courts,
therefore, take cognizance of these affairs.
When two parties belonging to two different States are
engaged in a suit, the case cannot with propriety be brought
before a court of either State. The surest expedient is to
select a tribunal like that of the Union, which can excite the
suspicions of neither party, and which offers the most natural as
well as the most certain remedy.
When the two parties are not private individuals, but
States, an important political consideration is added to the same
motive of equity. The quality of the parties in this case gives
a national importance to all their disputes; and the most
trifling litigation of the States may be said to involve the
peace of the whole Union. *f
[Footnote f: The Constitution also says that the Federal courts
shall decide "controversies between a State and the citizens of
another State." And here a most important question of a
constitutional nature arose, which was, whether the jurisdiction
given by the Constitution in cases in which a State is a party
extended to suits brought against a State as well as by it, or
was exclusively confined to the latter. The question was most
elaborately considered in the case of Chisholm v. Georgia, and
was decided by the majority of the Supreme Court in the
affirmative. The decision created general alarm among the
States, and an amendment was proposed and ratified by which the
power was entirely taken away, so far as it regards suits brought
against a State. See Story's "Commentaries," p. 624, or in the
large edition Section 1677.]
The nature of the cause frequently prescribes the rule of
competency. Thus all the questions which concern maritime
commerce evidently fall under the cognizance of the Federal
tribunals. *g Almost all these questions are connected with the
interpretation of the law of nations, and in this respect they
essentially interest the Union in relation to foreign powers.
Moreover, as the sea is not included within the limits of any
peculiar jurisdiction, the national courts can only hear causes
which originate in maritime affairs.
[Footnote g: As for instance, all cases of piracy.]
The Constitution comprises under one head almost all the
cases which by their very nature come within the limits of the
Federal courts. The rule which it lays down is simple, but
pregnant with an entire system of ideas, and with a vast
multitude of facts. It declares that the judicial power of the
Supreme Court shall extend to all cases in law and equity arising
under the laws of the United States.
Two examples will put the intention of the legislator in the
clearest light:
The Constitution prohibits the States from making laws on
the value and circulation of money: If, notwithstanding this
prohibition, a State passes a law of this kind, with which the
interested parties refuse to comply because it is contrary to the
Constitution, the case must come before a Federal court, because
it arises under the laws of the United States. Again, if
difficulties arise in the levying of import duties which have
been voted by Congress, the Federal court must decide the case,
because it arises under the interpretation of a law of the United
States.
This rule is in perfect accordance with the fundamental
principles of the Federal Constitution. The Union, as it was
established in 1789, possesses, it is true, a limited supremacy;
but it was intended that within its limits it should form one and
the same people. *h Within those limits the Union is sovereign.
When this point is established and admitted, the inference is
easy; for if it be acknowledged that the United States constitute
one and the same people within the bounds prescribed by their
Constitution, it is impossible to refuse them the rights which
belong to other nations. But it has been allowed, from the
origin of society, that every nation has the right of deciding by
its own courts those questions which concern the execution of its
own laws. To this it is answered that the Union is in so
singular a position that in relation to some matters it
constitutes a people, and that in relation to all the rest it is
a nonentity. But the inference to be drawn is, that in the laws
relating to these matters the Union possesses all the rights of
absolute sovereignty. The difficulty is to know what these
matters are; and when once it is resolved (and we have shown how
it was resolved, in speaking of the means of determining the
jurisdiction of the Federal courts) no further doubt can arise;
for as soon as it is established that a suit is Federal - that is
to say, that it belongs to the share of sovereignty reserved by
the Constitution of the Union - the natural consequence is that
it should come within the jurisdiction of a Federal court.
[Footnote h: This principle was in some measure restricted by the
introduction of the several States as independent powers into the
Senate, and by allowing them to vote separately in the House of
Representatives when the President is elected by that body. But
these are exceptions, and the contrary principle is the rule.]
Whenever the laws of the United States are attacked, or
whenever they are resorted to in self-defence, the Federal courts
must be appealed to. Thus the jurisdiction of the tribunals of
the Union extends and narrows its limits exactly in the same
ratio as the sovereignty of the Union augments or decreases. We
have shown that the principal aim of the legislators of 1789 was
to divide the sovereign authority into two parts. In the one
they placed the control of all the general interests of the
Union, in the other the control of the special interests of its
component States. Their chief solicitude was to arm the Federal
Government with sufficient power to enable it to resist, within
its sphere, the encroachments of the several States. As for these
communities, the principle of independence within certain limits
of their own was adopted in their behalf; and they were concealed
from the inspection, and protected from the control, of the
central Government. In speaking of the division of authority, I
observed that this latter principle had not always been held
sacred, since the States are prevented from passing certain laws
which apparently belong to their own particular sphere of
interest. When a State of the Union passes a law of this kind,
the citizens who are injured by its execution can appeal to the
Federal courts.
Thus the jurisdiction of the Federal courts extends not only
to all the cases which arise under the laws of the Union, but
also to those which arise under laws made by the several States
in opposition to the Constitution. The States are prohibited
from making ex post facto laws in criminal cases, and any person
condemned by virtue of a law of this kind can appeal to the
judicial power of the Union. The States are likewise prohibited
from making laws which may have a tendency to impair the
obligations of contracts. *i If a citizen thinks that an
obligation of this kind is impaired by a law passed in his State,
he may refuse to obey it, and may appeal to the Federal courts.
*j
[Footnote i: It is perfectly clear, says Mr. Story
("Commentaries," p. 503, or in the large edition Section 1379),
that any law which enlarges, abridges, or in any manner changes
the intention of the parties, resulting from the stipulations in
the contract, necessarily impairs it. He gives in the same place
a very long and careful definition of what is understood by a
contract in Federal jurisprudence. A grant made by the State to
a private individual, and accepted by him, is a contract, and
cannot be revoked by any future law. A charter granted by the
State to a company is a contract, and equally binding to the
State as to the grantee. The clause of the Constitution here
referred to insures, therefore, the existence of a great part of
acquired rights, but not of all. Property may legally be held,
though it may not have passed into the possessor's hands by means
of a contract; and its possession is an acquired right, not
guaranteed by the Federal Constitution.]
[Footnote j: A remarkable instance of this is given by Mr. Story
(p. 508, or in the large edition Section 1388): "Dartmouth
College in New Hampshire had been founded by a charter granted to
certain individuals before the American Revolution, and its
trustees formed a corporation under this charter. The
legislature of New Hampshire had, without the consent of this
corporation, passed an act changing the organization of the
original provincial charter of the college, and transferring all
the rights, privileges, and franchises from the old charter
trustees to new trustees appointed under the act. The
constitutionality of the act was contested, and, after solemn
arguments, it was deliberately held by the Supreme Court that the
provincial charter was a contract within the meaning of the
Constitution (Art. I. Section 10), and that the emendatory act
was utterly void, as impairing the obligation of that charter.
The college was deemed, like other colleges of private
foundation, to be a private eleemosynary institution, endowed by
its charter with a capacity to take property unconnected with the
Government. Its funds were bestowed upon the faith of the
charter, and those funds consisted entirely of private donations.
It is true that the uses were in some sense public, that is, for
the general benefit, and not for the mere benefit of the
corporators; but this did not make the corporation a public
corporation. It was a private institution for general charity.
It was not distinguishable in principle from a private donation,
vested in private trustees, for a public charity, or for a
particular purpose of beneficence. And the State itself, if it
had bestowed funds upon a charity of the same nature, could not
resume those funds."]
This provision appears to me to be the most serious attack
upon the independence of the States. The rights awarded to the
Federal Government for purposes of obvious national importance
are definite and easily comprehensible; but those with which this
last clause invests it are not either clearly appreciable or
accurately defined. For there are vast numbers of political laws
which influence the existence of obligations of contracts, which
may thus furnish an easy pretext for the aggressions of the
central authority.
Chapter VIII: The Federal Constitution - Part IV
Procedure Of The Federal Courts
Natural weakness of the judiciary power in confederations -
Legislators ought to strive as much as possible to bring private
individuals, and not States, before the Federal Courts - How the
Americans have succeeded in this - Direct prosecution of private
individuals in the Federal Courts - Indirect prosecution of the
States which violate the laws of the Union - The decrees of the
Supreme Court enervate but do not destroy the provincial laws.
I have shown what the privileges of the Federal courts are,
and it is no less important to point out the manner in which they
are exercised. The irresistible authority of justice in
countries in which the sovereignty in undivided is derived from
the fact that the tribunals of those countries represent the
entire nation at issue with the individual against whom their
decree is directed, and the idea of power is thus introduced to
corroborate the idea of right. But this is not always the case
in countries in which the sovereignty is divided; in them the
judicial power is more frequently opposed to a fraction of the
nation than to an isolated individual, and its moral authority
and physical strength are consequently diminished. In federal
States the power of the judge is naturally decreased, and that of
the justiciable parties is augmented. The aim of the legislator
in confederate States ought therefore to be to render the
position of the courts of justice analogous to that which they
occupy in countries where the sovereignty is undivided; in other
words, his efforts ought constantly to tend to maintain the
judicial power of the confederation as the representative of the
nation, and the justiciable party as the representative of an
individual interest.
Every government, whatever may be its constitution, requires
the means of constraining its subjects to discharge their
obligations, and of protecting its privileges from their
assaults. As far as the direct action of the Government on the
community is concerned, the Constitution of the United States
contrived, by a master-stroke of policy, that the federal courts,
acting in the name of the laws, should only take cognizance of
parties in an individual capacity. For, as it had been declared
that the Union consisted of one and the same people within the
limits laid down by the Constitution, the inference was that the
Government created by this Constitution, and acting within these
limits, was invested with all the privileges of a national
government, one of the principal of which is the right of
transmitting its injunctions directly to the private citizen.
When, for instance, the Union votes an impost, it does not apply
to the States for the levying of it, but to every American
citizen in proportion to his assessment. The Supreme Court,
which is empowered to enforce the execution of this law of the
Union, exerts its influence not upon a refractory State, but upon
the private taxpayer; and, like the judicial power of other
nations, it is opposed to the person of an individual. It is to
be observed that the Union chose its own antagonist; and as that
antagonist is feeble, he is naturally worsted.
But the difficulty increases when the proceedings are not
brought forward by but against the Union. The Constitution
recognizes the legislative power of the States; and a law so
enacted may impair the privileges of the Union, in which case a
collision in unavoidable between that body and the State which
has passed the law: and it only remains to select the least
dangerous remedy, which is very clearly deducible from the
general principles I have before established. *k
[Footnote k: See Chapter VI. on "Judicial Power in America."]
It may be conceived that, in the case under consideration,
the Union might have used the State before a Federal court, which
would have annulled the act, and by this means it would have
adopted a natural course of proceeding; but the judicial power
would have been placed in open hostility to the State, and it was
desirable to avoid this predicament as much as possible. The
Americans hold that it is nearly impossible that a new law should
not impair the interests of some private individual by its
provisions: these private interests are assumed by the American
legislators as the ground of attack against such measures as may
be prejudicial to the Union, and it is to these cases that the
protection of the Supreme Court is extended.
Suppose a State vends a certain portion of its territory to
a company, and that a year afterwards it passes a law by which
the territory is otherwise disposed of, and that clause of the
Constitution which prohibits laws impairing the obligation of
contracts violated. When the purchaser under the second act
appears to take possession, the possessor under the first act
brings his action before the tribunals of the Union, and causes
the title of the claimant to be pronounced null and void. *l
Thus, in point of fact, the judicial power of the Union is
contesting the claims of the sovereignty of a State; but it only
acts indirectly and upon a special application of detail: it
attacks the law in its consequences, not in its principle, and it
rather weakens than destroys it.
[Footnote l: See Kent's "Commentaries," vol. i. p. 387.]
The last hypothesis that remained was that each State formed
a corporation enjoying a separate existence and distinct civil
rights, and that it could therefore sue or be sued before a
tribunal. Thus a State could bring an action against another
State. In this instance the Union was not called upon to contest
a provincial law, but to try a suit in which a State was a party.
This suit was perfectly similar to any other cause, except that
the quality of the parties was different; and here the danger
pointed out at the beginning of this chapter exists with less
chance of being avoided. The inherent disadvantage of the very
essence of Federal constitutions is that they engender parties in
the bosom of the nation which present powerful obstacles to the
free course of justice.
High Rank Of The Supreme Court Amongst The Great Powers Of State
No nation ever constituted so great a judicial power as the
Americans - Extent of its prerogative - Its political influence -
The tranquillity and the very existence of the Union depend on
the discretion of the seven Federal Judges.
When we have successively examined in detail the
organization of the Supreme Court, and the entire prerogatives
which it exercises, we shall readily admit that a more imposing
judicial power was never constituted by any people. The Supreme
Court is placed at the head of all known tribunals, both by the
nature of its rights and the class of justiciable parties which
it controls.
In all the civilized countries of Europe the Government has
always shown the greatest repugnance to allow the cases to which
it was itself a party to be decided by the ordinary course of
justice. This repugnance naturally attains its utmost height in
an absolute Government; and, on the other hand, the privileges of
the courts of justice are extended with the increasing liberties
of the people: but no European nation has at present held that
all judicial controversies, without regard to their origin, can
be decided by the judges of common law.
In America this theory has been actually put in practice,
and the Supreme Court of the United States is the sole tribunal
of the nation. Its power extends to all the cases arising under
laws and treaties made by the executive and legislative
authorities, to all cases of admiralty and maritime jurisdiction,
and in general to all points which affect the law of nations. It
may even be affirmed that, although its constitution is
essentially judicial, its prerogatives are almost entirely
political. Its sole object is to enforce the execution of the
laws of the Union; and the Union only regulates the relations of
the Government with the citizens, and of the nation with Foreign
Powers: the relations of citizens amongst themselves are almost
exclusively regulated by the sovereignty of the States.
A second and still greater cause of the preponderance of
this court may be adduced. In the nations of Europe the courts
of justice are only called upon to try the controversies of
private individuals; but the Supreme Court of the United States
summons sovereign powers to its bar. When the clerk of the court
advances on the steps of the tribunal, and simply says, "The
State of New York versus the State of Ohio," it is impossible not
to feel that the Court which he addresses is no ordinary body;
and when it is recollected that one of these parties represents
one million, and the other two millions of men, one is struck by
the responsibility of the seven judges whose decision is about to
satisfy or to disappoint so large a number of their
fellow-citizens.
The peace, the prosperity, and the very existence of the
Union are vested in the hands of the seven judges. Without their
active co-operation the Constitution would be a dead letter: the
Executive appeals to them for assistance against the
encroachments of the legislative powers; the Legislature demands
their protection from the designs of the Executive; they defend
the Union from the disobedience of the States, the States from
the exaggerated claims of the Union, the public interest against
the interests of private citizens, and the conservative spirit of
order against the fleeting innovations of democracy. Their power
is enormous, but it is clothed in the authority of public
opinion. They are the all- powerful guardians of a people which
respects law, but they would be impotent against popular neglect
or popular contempt. The force of public opinion is the most
intractable of agents, because its exact limits cannot be
defined; and it is not less dangerous to exceed than to remain
below the boundary prescribed.
The Federal judges must not only be good citizens, and men
possessed of that information and integrity which are
indispensable to magistrates, but they must be statesmen -
politicians, not unread in the signs of the times, not afraid to
brave the obstacles which can be subdued, nor slow to turn aside
such encroaching elements as may threaten the supremacy of the
Union and the obedience which is due to the laws.
The President, who exercises a limited power, may err
without causing great mischief in the State. Congress may decide
amiss without destroying the Union, because the electoral body in
which Congress originates may cause it to retract its decision by
changing its members. But if the Supreme Court is ever composed
of imprudent men or bad citizens, the Union may be plunged into
anarchy or civil war.
The real cause of this danger, however, does not lie in the
constitution of the tribunal, but in the very nature of Federal
Governments. We have observed that in confederate peoples it is
especially necessary to consolidate the judicial authority,
because in no other nations do those independent persons who are
able to cope with the social body exist in greater power or in a
better condition to resist the physical strength of the
Government. But the more a power requires to be strengthened,
the more extensive and independent it must be made; and the
dangers which its abuse may create are heightened by its
independence and its strength. The source of the evil is not,
therefore, in the constitution of the power, but in the
constitution of those States which render its existence
necessary.
In What Respects The Federal Constitution Is Superior To That Of
The States
In what respects the Constitution of the Union can be compared to
that of the States - Superiority of the Constitution of the Union
attributable to the wisdom of the Federal legislators -
Legislature of the Union less dependent on the people than that
of the States - Executive power more independent in its sphere -
Judicial power less subjected to the inclinations of the majority
-Practical consequence of these facts - The dangers inherent in a
democratic government eluded by the Federal legislators, and
increased by the legislators of the States.
The Federal Constitution differs essentially from that of
the States in the ends which it is intended to accomplish, but in
the means by which these ends are promoted a greater analogy
exists between them. The objects of the Governments are
different, but their forms are the same; and in this special
point of view there is some advantage in comparing them together.
I am of opinion that the Federal Constitution is superior to
all the Constitutions of the States, for several reasons.
The present Constitution of the Union was formed at a later
period than those of the majority of the States, and it may have
derived some ameliorations from past experience. But we shall be
led to acknowledge that this is only a secondary cause of its
superiority, when we recollect that eleven new States *n have
been added to the American Confederation since the promulgation
of the Federal Constitution, and that these new republics have
always rather exaggerated than avoided the defects which existed
in the former Constitutions.
[Footnote n: [The number of States has now risen to 46 (1874),
besides the District of Columbia.]]
The chief cause of the superiority of the Federal
Constitution lay in the character of the legislators who composed
it. At the time when it was formed the dangers of the
Confederation were imminent, and its ruin seemed inevitable. In
this extremity the people chose the men who most deserved the
esteem, rather than those who had gained the affections, of the
country. I have already observed that distinguished as almost
all the legislators of the Union were for their intelligence,
they were still more so for their patriotism. They had all been
nurtured at a time when the spirit of liberty was braced by a
continual struggle against a powerful and predominant authority.
When the contest was terminated, whilst the excited passions of
the populace persisted in warring with dangers which had ceased
to threaten them, these men stopped short in their career; they
cast a calmer and more penetrating look upon the country which
was now their own; they perceived that the war of independence
was definitely ended, and that the only dangers which America had
to fear were those which might result from the abuse of the
freedom she had won. They had the courage to say what they
believed to be true, because they were animated by a warm and
sincere love of liberty; and they ventured to propose
restrictions, because they were resolutely opposed to
destruction. *o
[Footnote o: At this time Alexander Hamilton, who was one of the
principal founders of the Constitution, ventured to express the
following sentiments in "The Federalist," No. 71: -
"There are some who would be inclined to regard the servile
pliancy of the Executive to a prevailing current, either in the
community or in the Legislature, as its best recommendation. But
such men entertain very crude notions, as well of the purposes
for which government was instituted as of the true means by which
the public happiness may be promoted. The Republican principle
demands that the deliberative sense of the community should
govern the conduct of those to whom they entrust the management
of their affairs; but it does not require an unqualified
complaisance to every sudden breeze of passion, or to every
transient impulse which the people may receive from the arts of
men who flatter their prejudices to betray their interests. It
is a just observation, that the people commonly intend the public
good. This often applies to their very errors. But their good
sense would despise the adulator who should pretend that they
always reason right about the means of promoting it. They know
from experience that they sometimes err; and the wonder is that
they so seldom err as they do, beset, as they continually are, by
the wiles of parasites and sycophants; by the snares of the
ambitious, the avaricious, the desperate; by the artifices of men
who possess their confidence more than they deserve it, and of
those who seek to possess rather than to deserve it. When
occasions present themselves in which the interests of the people
are at variance with their inclinations, it is the duty of
persons whom they have appointed to be the guardians of those
interests to withstand the temporary delusion, in order to give
them time and opportunity for more cool and sedate reflection.
Instances might be cited in which a conduct of this kind has
saved the people from very fatal consequences of their own
mistakes, and has procured lasting monuments of their gratitude
to the men who had courage and magnanimity enough to serve them
at the peril of their displeasure."]
The greater number of the Constitutions of the States assign
one year for the duration of the House of Representatives, and
two years for that of the Senate; so that members of the
legislative body are constantly and narrowly tied down by the
slightest desires of their constituents. The legislators of the
Union were of opinion that this excessive dependence of the
Legislature tended to alter the nature of the main consequences
of the representative system, since it vested the source, not
only of authority, but of government, in the people. They
increased the length of the time for which the representatives
were returned, in order to give them freer scope for the exercise
of their own judgment.
The Federal Constitution, as well as the Constitutions of
the different States, divided the legislative body into two
branches. But in the States these two branches were composed of
the same elements, and elected in the same manner. The
consequence was that the passions and inclinations of the
populace were as rapidly and as energetically represented in one
chamber as in the other, and that laws were made with all the
characteristics of violence and precipitation. By the Federal
Constitution the two houses originate in like manner in the
choice of the people; but the conditions of eligibility and the
mode of election were changed, to the end that, if, as is the
case in certain nations, one branch of the Legislature represents
the same interests as the other, it may at least represent a
superior degree of intelligence and discretion. A mature age was
made one of the conditions of the senatorial dignity, and the
Upper House was chosen by an elected assembly of a limited number
of members.
To concentrate the whole social force in the hands of the
legislative body is the natural tendency of democracies; for as
this is the power which emanates the most directly from the
people, it is made to participate most fully in the
preponderating authority of the multitude, and it is naturally
led to monopolize every species of influence. This concentration
is at once prejudicial to a well-conducted administration, and
favorable to the despotism of the majority. The legislators of
the States frequently yielded to these democratic propensities,
which were invariably and courageously resisted by the founders
of the Union.
In the States the executive power is vested in the hands of
a magistrate, who is apparently placed upon a level with the
Legislature, but who is in reality nothing more than the blind
agent and the passive instrument of its decisions. He can derive
no influence from the duration of his functions, which terminate
with the revolving year, or from the exercise of prerogatives
which can scarcely be said to exist. The Legislature can condemn
him to inaction by intrusting the execution of the laws to
special committees of its own members, and can annul his
temporary dignity by depriving him of his salary. The Federal
Constitution vests all the privileges and all the responsibility
of the executive power in a single individual. The duration of
the Presidency is fixed at four years; the salary of the
individual who fills that office cannot be altered during the
term of his functions; he is protected by a body of official
dependents, and armed with a suspensive veto. In short, every
effort was made to confer a strong and independent position upon
the executive authority within the limits which had been
prescribed to it.
In the Constitutions of all the States the judicial power is
that which remains the most independent of the legislative
authority; nevertheless, in all the States the Legislature has
reserved to itself the right of regulating the emoluments of the
judges, a practice which necessarily subjects these magistrates
to its immediate influence. In some States the judges are only
temporarily appointed, which deprives them of a great portion of
their power and their freedom. In others the legislative and
judicial powers are entirely confounded; thus the Senate of New
York, for instance, constitutes in certain cases the Superior
Court of the State. The Federal Constitution, on the other hand,
carefully separates the judicial authority from all external
influences; and it provides for the independence of the judges,
by declaring that their salary shall not be altered, and that
their functions shall be inalienable.
The practical consequences of these different systems may
easily be perceived. An attentive observer will soon remark that
the business of the Union is incomparably better conducted than
that of any individual State. The conduct of the Federal
Government is more fair and more temperate than that of the
States, its designs are more fraught with wisdom, its projects
are more durable and more skilfully combined, its measures are
put into execution with more vigor and consistency.
I recapitulate the substance of this chapter in a few words:
The existence of democracies is threatened by two dangers, viz.,
the complete subjection of the legislative body to the caprices
of the electoral body, and the concentration of all the powers of
the Government in the legislative authority. The growth of these
evils has been encouraged by the policy of the legislators of the
States, but it has been resisted by the legislators of the Union
by every means which lay within their control.
Characteristics Which Distinguish The Federal Constitution Of The
United States Of America From All Other Federal Constitutions
American Union appears to resemble all other confederations -
Nevertheless its effects are different - Reason of this -
Distinctions between the Union and all other confederations - The
American Government not a federal but an imperfect national
Government.
The United States of America do not afford either the first
or the only instance of confederate States, several of which have
existed in modern Europe, without adverting to those of
antiquity. Switzerland, the Germanic Empire, and the Republic of
the United Provinces either have been or still are
confederations. In studying the constitutions of these different
countries, the politician is surprised to observe that the powers
with which they invested the Federal Government are nearly
identical with the privileges awarded by the American
Constitution to the Government of the United States. They confer
upon the central power the same rights of making peace and war,
of raising money and troops, and of providing for the general
exigencies and the common interests of the nation. Nevertheless
the Federal Government of these different peoples has always been
as remarkable for its weakness and inefficiency as that of the
Union is for its vigorous and enterprising spirit. Again, the
first American Confederation perished through the excessive
weakness of its Government; and this weak Government was,
notwithstanding, in possession of rights even more extensive than
those of the Federal Government of the present day. But the more
recent Constitution of the United States contains certain
principles which exercise a most important influence, although
they do not at once strike the observer.
This Constitution, which may at first sight be confounded
with the federal constitutions which preceded it, rests upon a
novel theory, which may be considered as a great invention in
modern political science. In all the confederations which had
been formed before the American Constitution of 1789 the allied
States agreed to obey the injunctions of a Federal Government;
but they reserved to themselves the right of ordaining and
enforcing the execution of the laws of the Union. The American
States which combined in 1789 agreed that the Federal Government
should not only dictate the laws, but that it should execute it
own enactments. In both cases the right is the same, but the
exercise of the right is different; and this alteration produced
the most momentous consequences.
In all the confederations which had been formed before the
American Union the Federal Government demanded its supplies at
the hands of the separate Governments; and if the measure it
prescribed was onerous to any one of those bodies means were
found to evade its claims: if the State was powerful, it had
recourse to arms; if it was weak, it connived at the resistance
which the law of the Union, its sovereign, met with, and resorted
to inaction under the plea of inability. Under these
circumstances one of the two alternatives has invariably
occurred; either the most preponderant of the allied peoples has
assumed the privileges of the Federal authority and ruled all the
States in its name, *p or the Federal Government has been
abandoned by its natural supporters, anarchy has arisen between
the confederates, and the Union has lost all powers of action. *q
[Footnote p: This was the case in Greece, when Philip undertook
to execute the decree of the Amphictyons; in the Low Countries,
where the province of Holland always gave the law; and, in our
own time, in the Germanic Confederation, in which Austria and
Prussia assume a great degree of influence over the whole
country, in the name of the Diet.]
[Footnote q: Such has always been the situation of the Swiss
Confederation, which would have perished ages ago but for the
mutual jealousies of its neighbors.]
In America the subjects of the Union are not States, but
private citizens: the national Government levies a tax, not upon
the State of Massachusetts, but upon each inhabitant of
Massachusetts. All former confederate governments presided over
communities, but that of the Union rules individuals; its force
is not borrowed, but self-derived; and it is served by its own
civil and military officers, by its own army, and its own courts
of justice. It cannot be doubted that the spirit of the nation,
the passions of the multitude, and the provincial prejudices of
each State tend singularly to diminish the authority of a Federal
authority thus constituted, and to facilitate the means of
resistance to its mandates; but the comparative weakness of a
restricted sovereignty is an evil inherent in the Federal system.
In America, each State has fewer opportunities of resistance and
fewer temptations to non-compliance; nor can such a design be put
in execution (if indeed it be entertained) without an open
violation of the laws of the Union, a direct interruption of the
ordinary course of justice, and a bold declaration of revolt; in
a word, without taking a decisive step which men hesitate to
adopt.
In all former confederations the privileges of the Union
furnished more elements of discord than of power, since they
multiplied the claims of the nation without augmenting the means
of enforcing them: and in accordance with this fact it may be
remarked that the real weakness of federal governments has almost
always been in the exact ratio of their nominal power. Such is
not the case in the American Union, in which, as in ordinary
governments, the Federal Government has the means of enforcing
all it is empowered to demand.
The human understanding more easily invents new things than
new words, and we are thence constrained to employ a multitude of
improper and inadequate expressions. When several nations form a
permanent league and establish a supreme authority, which,
although it has not the same influence over the members of the
community as a national government, acts upon each of the
Confederate States in a body, this Government, which is so
essentially different from all others, is denominated a Federal
one. Another form of society is afterwards discovered, in which
several peoples are fused into one and the same nation with
regard to certain common interests, although they remain
distinct, or at least only confederate, with regard to all their
other concerns. In this case the central power acts directly
upon those whom it governs, whom it rules, and whom it judges, in
the same manner, as, but in a more limited circle than, a
national government. Here the term Federal Government is clearly
no longer applicable to a state of things which must be styled an
incomplete national Government: a form of government has been
found out which is neither exactly national nor federal; but no
further progress has been made, and the new word which will one
day designate this novel invention does not yet exist.
The absence of this new species of confederation has been
the cause which has brought all Unions to Civil War, to
subjection, or to a stagnant apathy, and the peoples which formed
these leagues have been either too dull to discern, or too
pusillanimous to apply this great remedy. The American
Confederation perished by the same defects.
But the Confederate States of America had been long
accustomed to form a portion of one empire before they had won
their independence; they had not contracted the habit of
governing themselves, and their national prejudices had not taken
deep root in their minds. Superior to the rest of the world in
political knowledge, and sharing that knowledge equally amongst
themselves, they were little agitated by the passions which
generally oppose the extension of federal authority in a nation,
and those passions were checked by the wisdom of the chief
citizens. The Americans applied the remedy with prudent firmness
as soon as they were conscious of the evil; they amended their
laws, and they saved their country.
Chapter VIII: The Federal Constitution - Part V
Advantages Of The Federal System In General, And Its Special
Utility In America
Happiness and freedom of small nations - Power of great nations -
Great empires favorable to the growth of civilization - Strength
often the first element of national prosperity - Aim of the
Federal system to unite the twofold advantages resulting from a
small and from a large territory -Advantages derived by the
United States from this system - The law adapts itself to the
exigencies of the population; population does not conform to the
exigencies of the law - Activity, amelioration, love and
enjoyment of freedom in the American communities - Public spirit
of the Union the abstract of provincial patriotism - Principles
and things circulate freely over the territory of the United
States - The Union is happy and free as a little nation, and
respected as a great empire.
In small nations the scrutiny of society penetrates into
every part, and the spirit of improvement enters into the most
trifling details; as the ambition of the people is necessarily
checked by its weakness, all the efforts and resources of the
citizens are turned to the internal benefit of the community, and
are not likely to evaporate in the fleeting breath of glory. The
desires of every individual are limited, because extraordinary
faculties are rarely to be met with. The gifts of an equal
fortune render the various conditions of life uniform, and the
manners of the inhabitants are orderly and simple. Thus, if one
estimate the gradations of popular morality and enlightenment, we
shall generally find that in small nations there are more persons
in easy circumstances, a more numerous population, and a more
tranquil state of society, than in great empires.
When tyranny is established in the bosom of a small nation,
it is more galling than elsewhere, because, as it acts within a
narrow circle, every point of that circle is subject to its
direct influence. It supplies the place of those great designs
which it cannot entertain by a violent or an exasperating
interference in a multitude of minute details; and it leaves the
political world, to which it properly belongs, to meddle with the
arrangements of domestic life. Tastes as well as actions are to
be regulated at its pleasure; and the families of the citizens as
well as the affairs of the State are to be governed by its
decisions. This invasion of rights occurs, however, but seldom,
and freedom is in truth the natural state of small communities.
The temptations which the Government offers to ambition are too
weak, and the resources of private individuals are too slender,
for the sovereign power easily to fall within the grasp of a
single citizen; and should such an event have occurred, the
subjects of the State can without difficulty overthrow the tyrant
and his oppression by a
simultaneous effort.
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