Democracy In America, Alexis de Tocqueville, 1831
Volume 1, Chapter 8, The Federal Constitution
I have hitherto considered each state as a separate whole and have explained the different springs which the people there put in motion, and the different means of action which it employs. But all the states which I have considered as independent are yet forced to submit, in certain cases, to the supreme authority of the Union. The time has now come to examine the portion of sovereignty that has been granted to the Union, and to cast a rapid glance over the Federal Constitution.
HISTORY OF THE FEDERAL CONSTITUTION. Origin of the first Union –Its weakness–Congress appeals to the constituent authority –Interval of two years between this appeal and the promulgation of the new Constitution.
THE thirteen colonies, which simultaneously threw off the yoke of England towards the end of the last century, had, as I have already said, the same religion, the same language, the same customs, and almost the same laws; they were struggling against a common enemy; and these reasons were sufficiently strong to unite them to one another and to consolidate them into one nation. But as each of them had always had a separate existence and a government within its reach, separate interests and peculiar customs had sprung up which were opposed to such a compact and intimate union as would have absorbed the individual importance of each in the general importance of all. Hence arose two opposite tendencies, the one prompting the Anglo-Americans to unite, the other to divide, their strength.
As long as the war with the mother country lasted, the principle of union was kept alive by necessity; and although the laws that constituted it were defective, the common tie subsisted in spite of their imperfections.1 But no sooner was peace concluded than the faults of this legislation became manifest, and the state seemed to be suddenly dissolved. Each colony became an independent republic, and assumed an absolute sovereignty. The Federal government, condemned to impotence by its Constitution and no longer sustained by the presence of a common danger, witnessed the outrages offered to its flag by the great nations of Europe, while it was scarcely able to maintain its ground against the Indian tribes, and to pay the interest of the debt which had been contracted during the War of Independence. It was already on the verge of destruction when it officially proclaimed its inability to conduct the government and appealed to the constituent authority.2
If America ever approached (for however brief a time) that lofty pinnacle of glory to which the proud imagination of its inhabitants is wont to point, it was at this solemn moment, when the national power abdicated, as it were, its authority. All ages have furnished the spectacle of a people struggling with energy to win its independence, and the efforts of the Americans in throwing off the English yoke have been considerably exaggerated. Separated from their enemies by three thousand miles of ocean, and backed by a powerful ally, the United States owed their victory much more to their geographical position than to the valor of their armies or the patriotism of their citizens. It would be ridiculous to compare the American war to the wars of the French Revolution, or the efforts of the Americans to those of the French when France, attacked by the whole of Europe, without money, without credit, without allies, threw forward a twentieth part of her population to meet her enemies and with one hand carried the torch of revolution beyond the frontiers, while she stifled with the other a flame that was devouring the country within. But it is new in the history of society to see a great people turn a calm and scrutinizing eye upon itself when apprised by the legislature that the wheels of its government are stopped, to see it carefully examine the extent of the evil, and patiently wait two whole years until a remedy is discovered, to which it voluntarily submitted without its costing a tear or a drop of blood from mankind.
When the inadequacy of the first Constitution was discovered, America had the double advantage of that calm which had succeeded the effervescence of the Revolution, and of the aid of those great men whom the Revolution had created. The assembly which accepted the task of composing the second Constitution was small;3 but George Washington was its President, and it contained the finest minds and the noblest characters that had ever appeared in the New World. This national Convention, after long and mature deliberation, offered for the acceptance of the people the body of general laws which still rules the Union. All the states adopted it successively.4 The new Federal government commenced its functions in 1789, after an interregnum of two years. The Revolution of America terminated precisely when that of France began.
SUMMARY OF THE FEDERAL CONSTITUTION. Division of authority the Federal government and the states–The government of the states is the rule, the Federal government the exception.
THE first question which awaited the Americans was so to divide the sovereignty that each of the different states which composed the Union should continue to govern itself in all that concerned its internal prosperity, while the entire nation, represented by the Union, should continue to form a compact body and to provide for all general exigencies. The problem was a complex and difficult one. It was as impossible to determine beforehand, with any degree of accuracy, the share of authority that each of the two governments was to enjoy as to foresee all the incidents in the life of a nation.
The obligations and the claims of the Federal government were simple and easily definable because the Union had been formed with the express purpose of meeting certain great general wants; but the claims and obligations of the individual states, on the other hand, were complicated and various because their government had penetrated into all the details of social life. The attributes of the Federal government were therefore carefully defined, and all that was not included among them was declared to remain to the governments of the several states. Thus the government of the states remained the rule, and that of the confederation was the exception.5
But as it was foreseen that, in practice, questions might arise as to the exact limits of this exceptional authority, and it would be dangerous to submit these questions to the decision of the ordinary courts of justice, established in the different states by the states themselves, a high Federal court was created,6 one of whose duties was to maintain the balance of power between the two rival governments as it had been established by the Constitution.7
POWERS OF THE FEDERAL GOVERNMENT. Power of declaring war, making peace, and levying general taxes vested in the Federal government–What part of the internal policy of the country it may direct–The government of the Union in some respects more centralized than the king’s government in the old French monarchy.
THE people in themselves are only individuals; and the special reason why they need to be united under one government is that they may appear to advantage before foreigners. The exclusive right of making peace and war, of concluding treaties of commerce, raising armies, and equipping fleets, was therefore granted to the Union.8 The necessity of a national government was less imperiously felt in the conduct of the internal affairs of society; but there are certain general interests that can only be attended to with advantage by a general authority. The Union was invested with the power of controlling the monetary system, carrying the mails, and opening the great roads that were to unite the different parts of the country.9 The independence of the government of each state in its sphere was recognized; yet the Federal government was authorized to interfere in the internal affairs of the states 10 in a few predetermined cases in which an indiscreet use of their independence might compromise the safety of the whole Union. Thus, while the power of modifying and changing their legislation at pleasure was preserved to each of the confederate republics, they are forbidden to enact ex post facto laws or to grant any titles of nobility. Lastly, as it was necessary that the federal government should be able to fulfill its engagements, it has an unlimited power of levying taxes.11
In examining the division of powers as established by the Federal Constitution, remarking on the one hand the portion of sovereignty which has been reserved to the several states, and on the other the share of power which has been given to the Union, it is evident that the Federal legislators entertained very clear and accurate notions respecting the centralization of government. The United States form not only a republic but a confederation; yet the national authority is more centralized there than it was in several of the absolute monarchies of Europe. I will cite only two examples.
Thirteen supreme courts of justice existed in France, which, generally speaking, had the right of interpreting the law without appeal; and those provinces that were styled pays d’etat were authorized to refuse their assent to an impost which had been levied by the sovereign, who represented the nation.
In the Union there is but one tribunal to interpret, as there is one legislature to make, the laws; and a tax voted by the representatives of the nation is binding upon all the citizens. In these two essential points, therefore, the Union is more centralized than the French monarchy, although the Union is only an assemblage of confederate republics.
In Spain certain provinces had the right of establishing a system of custom-house duties peculiar to themselves, although that privilege belongs, by its very nature, to the national sovereignty. In America Congress alone has the right of regulating the commercial relations of the states with each other. The government of the confederation is therefore more centralized in this respect than the Kingdom of Spain. It is true that the power of the crown in France or Spain was always able to obtain by force whatever the constitution of the country denied, and that the ultimate result was consequently the same; but I am here discussing the theory of the constitution.
After having settled the limits within which the Federal government was to act, the next point was to determine how it should be put in action.
LEGISLATIVE POWERS OF THE FEDERAL GOVERNMENT. Division of the legislative body into two branches–Difference in the manner of forming the two houses–The principle of the independence of the states predominates in the formation of the Senate–That of the sovereignty of the nation in the composition of the House of Representatives–Singular effect of the fact that a constitution can be logical only when the nation is young.
THE plan which had been laid down beforehand in the constitutions of the several states was followed, in many respects, in the organization of the powers of the Union. The Federal legislature of the Union was composed of a Senate and a House of Representatives. A spirit of compromise caused these two assemblies to be constituted on different principles. I have already shown that two interests were opposed to each other in the establishment of the Federal Constitution. These two interests had given rise to two opinions. It was the wish of one party to convert the Union into a league of independent states, or a sort of congress, at which the representatives of the several nations would meet to discuss certain points of common interest. The other party desired to unite the inhabitants of the American colonies into one and the same people and to establish a government that should act as the sole representative of the nation, although in a limited sphere. The practical consequences of these two theories were very different.
If the object was that a league should be established instead of a national government, then the majority of the states, instead of the majority of the inhabitants of the Union, would make the laws; for every state, great or small, would then remain in full independence and enter the Union upon a footing of perfect equality. If, however, the inhabitants of the United States were to be considered as belonging to one and the same nation, it would be natural that the majority of the citizens of the Union should make the law. Of course, the lesser states could not subscribe to the application of this doctrine without in fact abdicating their existence in respect to the sovereignty of the confederation, since they would cease to be a coequal and coauthoritative power and become an insignificant fraction of a great people. The former system would have invested them with excessive authority, the latter would have destroyed their influence altogether. Under these circumstances the result was that the rules of logic were broken, as is usually the case when interests are opposed to arguments. The legislators hit upon a middle course which brought together by force two systems theoretically irreconcilable.
The principle of the independence of the states triumphed in the formation of the Senate, and that of the sovereignty of the nation in the composition of the House of Representatives. Each state was to send two senators to Congress, and a number of representatives proportioned to its population.12 It results from this arrangement that the state of New York has at the present day thirty-three representatives, and only two senators; the state of Delaware has two senators, and only one representative; the state of Delaware is therefore equal to the state of New York in the Senate, while the latter has thirty-three times the influence of the former in the House of Representatives. Thus the minority of the nation in the Senate may paralyze the decisions of the majority represented in the other house, which is contrary to the spirit of constitutional government.
These facts show how rare and difficult it is rationally and logically to combine all the several parts of legislation. The course of time always gives birth to different interests, and sanctions different principles, among 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 make legislation strictly logical; and when we perceive a nation in the enjoyment of this advantage, we should not hastily conclude that it is wise, but only remember that it is young. When the Federal Constitution was formed, the interest of independence for the separate states and the interest of union for the whole people were the only two conflicting interests that existed among the Anglo-Americans, and a compromise was necessarily made between them.
It is just to acknowledge, however, 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 wants are not dissimilar; and the differences which result from their size are not enough to set their interests much at variance. The small states have consequently never leagued themselves together in the Senate to oppose the designs of the larger ones. Besides, there is so irresistible an authority in the legal expression of the will of a people that the Senate could offer but a feeble opposition to the vote of the majority expressed by the House of Representatives.
It must not be forgotten, moreover, 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 power of these secondary communities (and it was impossible to deprive them of it) they disavowed beforehand the habitual use of compulsion in enforcing the decisions of the majority. This being laid down, 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 state legislatures; 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 differs from the other house not only in the very principle of representation, 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 chosen by the people, the Senate by the legislatures of the states; 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 offenses which the House of Representatives submits to its decision. It also acts as the great executive council of the nation; the treaties that are concluded by the President must be ratified by the Senate, and the appointments he may make, in order to be legally effective, must be approved by the same body.13
THE EXECUTIVE POWER.14 Dependence of the President–He is elective and responsible–Free 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 have for the temperate use of his power. But in the exercise of his authority he is not perfectly independent; the Senate takes cognizance of his relations with foreign powers, and of his distribution of public appointments, so that he can neither corrupt nor be corrupted. The legislators of the Union acknowledge that the executive power could not fulfill its task with dignity and advantage unless it enjoyed more stability and strength than had been granted it in the separate states.
The President is chosen for four years, and he may be re-elected, so that the chances of a future administration may inspire him with hopeful undertakings for the public good and give him 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 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 I have just shown that the Americans carefully obviated this influence; but it may, on the other hand, be indirect. Legislative 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, moreover, is armed with a suspensive veto, which allows him to oppose the passing of such laws as might destroy the portion of independence that the Constitution awards him. Yet 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, moreover, is 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 perseveres in its design, can it not always overpower all resistance? I reply that in the constitutions of all nations, of whatever kind they may be, a certain point exists at which the legislator must have recourse to the good sense and the virtue of his fellow citizens. This point is nearer and more prominent in republics, while it is more remote and more carefully concealed in monarchies; but it always exists somewhere. There is no country 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.
IN WHAT THE POSITION OF A PRESIDENT OF THE UNITED STATES DIFFERS FROM THAT OF A CONSTITUTIONAL KING OF FRANCE. Executive power in the United States as limited and exceptional as the sovereignty that it represents–Executive power in France, like the state’s sovereignty, extends to everything–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 executive authority–The King independent in its exercise-In spite of these differences, practice 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 wish to dwell for an instant on this portion of my subject in order more clearly to explain the part it sustains in America. In order to form a clear and precise idea of the position of the President of the United States it may be well to compare it with that of one of the constitutional kings of France. 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 real authority has disappeared. The English, after having cut off the head of one king, and expelled another from his throne, were still wont to address the successors of those princes only upon their knees. On the other hand, when a republic falls under the sway of a single man, the demeanor of the sovereign remains as 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 C’sar 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, while in France it is undivided and compact; hence arises the first and most notable difference that exists between the President of the United States and the King of France. In the United States the executive power is as limited and exceptional as the sovereignty 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.
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 if he refuses to sanction 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 making them, since the refusal of his assent does not prevent their passage. He is not, therefore, a part of the sovereign power, but only its agent. But not only does the King of France constitute a portion of the sovereign power; he also contributes to the nomination of the legislature, which is the other portion. He participates in it through appointing the members of one chamber and 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 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 is placed beside the legislature like an inferior and dependent power.
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 a hereditary sovereign.
In the exercise of the executive power the President of the United States is constantly subject to a jealous supervision. He may prepare, but he cannot conclude, a treaty; he may nominate but he cannot appoint, a public officer 15. The King of France is absolute within the sphere of executive power. The President of the United States is responsible for his actions; but the person of the King is declared inviolable by French law. Nevertheless, public opinion as a directing power 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 it really exists there. In America it acts by elections and decrees; in France it proceeds by revolutions. Thus, notwithstanding the different constitutions of these two countries, public opinion is the predominant authority in both of them. The principle of legislation, a principle essentially republican, is the same in both countries, although its developments may be more or less free and its consequences different. Thus 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 all that precedes I have touched only upon the main points of distinction; if I could have entered into details, the contrast would have been 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, while 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 these may be, and penetrates in a thousand different ways into the administration of private interests. Among 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 executive government. This number now exceeds all previous limits; it amounts to 138,000 16 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 12,000.17
ACCIDENTAL CAUSES WHICH MAY INCREASE THE INFLUENCE OF EXECUTIVE GOVERNMENT. External security of the Union-Army of six thousand men–Few ships–The President has great prerogatives, but no opportunity of exercising them–In the prerogatives which he does exercise he is weak.
IF the executive government is feebler in America than in France the cause is perhaps 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 finds occasion to exert its skill and its strength. If the existence of the Union were perpetually threatened, 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 to those which it would execute. The President of the United States, it is true, is the commander-in-chief of the army, but the army is 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 is 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, it has no enemies, and its interests rarely come into contact with those of any other nation of the globe. This proves that the practical operation of the government must not be judged by the theory of its constitution. The President of the United States possesses almost royal prerogatives, which he has no opportunity of exercising; and the privileges which he can at present use are very circumscribed. The laws allow him to be strong, but circumstances keep him weak.
On the other hand, the great strength of the loyal prerogative in France arises from circumstances far more than from the laws. There the executive government is constantly struggling against immense obstacles, and has immense resources in order to overcome them; so that it is enlarged 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 that of the American Union, its influence would soon become still more preponderant.
WHY THE PRESIDENT OF THE UNITED STATES DOES NOT NEED A MAJORITY IN THE TWO HOUSES IN ORDER TO CARRY ON THE GOVERNMENT
IT is an established axiom in Europe that a constitutional king cannot govern when opposed by the two 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 any serious evil upon society. I have heard this fact quoted to prove 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 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 force if it opposes his designs. He requires the assistance of the legislative assemblies to make the law, but those assemblies need his aid to execute it. These two authorities cannot function 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 in carrying on public affairs, but is not indispensable. In all his important acts he is directly or indirectly subject to the legislature, and of his own free authority he can do but little. It is therefore his weakness, and not his power, that enables him to remain in opposition to Congress. In Europe harmony must reign between the crown and 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. The 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–How circumstances favor the establishment of the elective system–Why the election of the President does not change 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 chief of the executive government of a great people, have been sufficiently exemplified by experience and by history. I wish to speak of them in reference to America alone.
These dangers may be more or less formidable in proportion to the place that 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 infrequently seize what right denies. It IS clear that the greater the prerogatives of 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 the state The revolutions of Poland are attributable not solely 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 customs, and the opinions of the people among whom it is to be introduced will permit 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 by degrees to live without its protection. But this is what the republicans of Europe never think of doing as many of them hate tyranny only because they are exposed to its severity, it is oppression and not the extent of the executive power that excites their hostility; and they attack the former without perceiving how nearly it is connected with the latter.
Hitherto no citizen has cared 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 simple reason that when he is at the head of the government, he has but little power, little wealth, and little glory to share among his friends; and his influence in the state is too small for the success or the ruin of a faction to depend upon his elevation 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, these state interests are never neglected for a moment, and if the affairs of a monarchy are not better conducted than those of a republic, at least there is always someone 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 thinks only of the struggle that is coming on; he no longer has anything to look forward to; he can undertake nothing new, and 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 January 21, 1809, six weeks before the election [sic; actually, six weeks before he left office], “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 centered 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 that is accustomed to the government or, still more, one used to the administration of a powerful executive authority would be infallibly convulsed by an election. In the United States the action of the government may be slackened with impunity, because it is always weak and circumscribed.
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 acutely 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 a hereditary assembly, possessed the directing authority. In most of the European monarchies, if the king were elective, the kingdom would be revolutionized 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 fixity of the government. But the want of fixed principles is an evil so inherent in the elective system that it is still very perceptible in the narrow sphere to which the authority of the President extends.
The Americans have admitted that the head of the executive power, in order to discharge his duty and bear the whole weight of responsibility, ought to be free 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 is that at every new election the fate of all the Federal public officers is in suspense. It is sometimes made a subject of complaint that in the constitutional monarchies of Europe the fate of the humbler servants of an administration often depends upon that of the ministers. But in elective governments this evil is far greater; and the reason therefor is very obvious. In a constitutional monarchy successive ministries are rapidly formed; but as the principal representative of the executive power is never changed, the spirit of innovation is kept within bounds; the changes that take place are in the details of the administrative system rather than in its principles; 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 tenure of the public offices does not produce the evil consequences in America which might be expected from it 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 system of electing the chief magistrate become. The policy of the Americans in relation to the whole world is exceedingly simple; and it may almost be said that nobody stands in need of them, nor do they stand in need of anybody. 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 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 that during which the election is taking place, 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 that have taken place since the Constitution was established.
BESIDES the dangers that are inherent in the system, many others may arise from the mode of election; but these may be obviated by the precautions 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 such 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 for 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. That nation possessed two of the main causes of internal peace it was a new country, but it was inhabited by a people grown old in the exercise of freedom. Besides, 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 remained for them only to choose the least dangerous of the various modes of election; and the rules that 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 that 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 decide the point; 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 receive at the first trial a majority of the suffrages of a great people; and this difficulty is enhanced in a republic of confederate states, where local influences are far more developed and more powerful. The means by which it was proposed to obviate this second obstacle was to delegate the electoral powers of the nation to a body that should represent it. This mode of election rendered a majority more probable; for the fewer the electors are, the greater is the chance of their coming to an agreement. 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 the legislature itself, the ordinary representative of the nation, or whether a special electoral college should be formed for the sole purpose of choosing a President. The Americans chose the latter alternative, from a belief that those who were chosen only to make the laws would represent but imperfectly the wishes of the nation in the election of its chief magistrate; and that, as they are chosen for more than a year, the constituency they represented might have changed its opinion in that time. It was thought that if the legislature was empowered to elect the head of the executive power, its members would, for some time before the election, be exposed to the maneuvers 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 a moment only to give their votes.
It was therefore determined that every state should name a certain number of electors,18 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 centers of passion and cabal; that they sometimes usurped powers 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 on the same day, without being convoked to the same place.19 This double election rendered a majority probable, though not certain; for it was possible that the electors might not, any more than their constituents, come to an agreement. In that case it would be 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 give 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 on an appointed day, in the presence of the Senate and the House of Representatives. If none of the candidates has received a majority, the House of Representatives then proceeds immediately to elect the President, but with the condition that it must fix upon one of the three candidates who have the highest number of votes in the electoral college.20
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 due to the popular voice is combined with the utmost celerity of execution, and with those precautions which the interests of the country demand. 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 that 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 21 that are not inherent in the elective system itself.
In the forty-four years that have elapsed since the promulgation of the Federal Constitution, the United States have twelve times chosen a President. Ten of these elections took place at once by the simultaneous 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. J. Quincy Adams was named.
CRISIS OF THE ELECTION. The election may be considered as a moment of 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 that favored the adoption of the elective system in the United States and what precautions were taken by the legislators to obviate its dangers. The Americans are accustomed to all kinds of elections; and they knew 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 been carried on have not as yet caused any real danger. Still, the epoch of the election of the President of the United States may be considered as a crisis in the affairs of the nation.
The influence which the President exercises on public business is no doubt feeble and indirect; but the choice of the President though 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. In comparison with the kings of Europe, the President possesses but few means of creating partisans; but the places that are at his disposal are sufficiently numerous to interest, directly or indirectly, several thousand electors in his success. Moreover, political parties in the United States 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 winning 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 his election that the supporters of those principles now form the majority. For a long while before the appointed time has come, the election becomes the important and, so to speak, the all-engrossing topic of discussion. Factional ardor is redoubled, and all the artificial passions which the imagination can create in a happy and peaceful land are agitated and brought to light. The President, moreover, is absorbed by the cares of self-defense. 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, 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 press, the subject of private conversation, the end of every thought and every action, the sole interest of the present. It is true that as soon as the choice is determined, this ardor is dispelled, calm returns, and the river, which had nearly broken its banks, sinks to its usual level; but who can refrain from astonishment that such a storm should have arisen?
RE-ELECTION OF THE PRESIDENT. When the head of the executive is re-eligible, it is the state that is the source of intrigue and corruption–The desire to be re-elected is the chief aim of a President of the United States–Disadvantage of the re-election peculiar to America–The natural evil of democracy is that it gradually subordinate.s all authority to the slightest desires of the majority–The re-election of the President encourages this evil.
WERE the legislators of the United States right or wrong in allowing the re-election of the President? At first sight is seems contrary to all reason to prevent the head of the executive power from being elected a second time. The influence that the talents and the character of a single individual may exercise upon the fate of a whole people, especially in critical circumstances or arduous times, is well known. A law preventing the re-election of the chief magistrate would deprive the citizens of their best means of ensuring 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 proved his ability to govern well.
But if these arguments are strong, perhaps still more powerful reasons may be advanced against them. Intrigue and corruption are the natural vices 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 maneuvers must be limited to a very 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 its immense influence, is busied in the work of corruption and cabal. The private citizen who employs culpable practices to acquire power can act in a manner only indirectly prejudicial to the public prosperity. But if the representative of the executive descends into the combat, the cares of government dwindle for him into second-rate importance, and the success of his election is his first concern. All public negotiations, as well as all laws, 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 to be re-elected is the chief aim of the President; that the whole policy of his administration, and even his most indifferent measures, tend to this object; and that, especially as the crisis approaches, his personal interest takes the place of his interest in the public good. The principle of re-eligibility renders the corrupting influence of elective government still more extensive and pernicious. It tends to degrade the political morality of the people and to substitute management and intrigue for patriotism.
In America it injures still more directly the very sources of national existence. Every government seems to be afflicted by some evil inherent in its nature, and the genius of the legislator consists in having a clear view of this evil. A state may survive the influence of a host of bad laws, and the mischief they cause is frequently exaggerated; but a law that 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 unlimited and unreasonable extension of the royal power, and a measure tending to remove the constitutional provisions that counterbalance this influence would be radically bad even if its immediate consequences were unattended with evil. By parity of reasoning, in countries governed by a democracy, where the people is perpetually drawing all authority to itself, the laws that increase or accelerate this action directly attack the very principle of the government.
The greatest merit of the American legislators is that they clearly discerned this truth and 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 in its sphere without 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 refuse its most dangerous demands. To this end they centered the whole executive power of the nation in a single arm; they granted extensive prerogatives to the President and 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; they conferred on the President a great power, but made him little inclined to use it. If ineligible a second time, the President would not be independent of the people, for his responsibility would not cease; but the favor of the people would not be so necessary to him as to induce him to submit in every respect to its desires. If re-eligible (and this is 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 anticipates 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 merely follows 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 retain an expedient for extraordinary perils, the country has been exposed to continual dangers.
FEDERAL COURTS OF JUSTICE.22 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 other tribunals.
I HAVE examined the legislative and executive power of the Union, and the judicial power now remains to be considered; but here 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 very important place among political institutions, properly so called: in this respect they are peculiarly deserving of our attention. But I am at a loss how to explain the political action of the American tribunals without entering into some technical details respecting their constitution and their forms of proceeding; and I cannot descend to these minutiae without wearying the reader by the natural dryness of the subject. Yet how can I be clear and at the same time brief? I can scarcely hope to escape these different evils. Ordinary readers will complain that I am tedious, lawyers that I am too concise. But these are the natural disadvantages of my subject, and especially of the point that I am now to discuss.
The great difficulty was, not to know how to constitute the Federal government, but to find out a method of enforcing its laws. Governments have generally but two means of overcoming the opposition of the governed: namely, the physical force that is at their own disposal, and the moral force that 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 things would then probably happen to it. If it was weak and temperate, it would resort to violence only at the last extremity and would connive at many partial acts of insubordination; then the state would gradually fall into anarchy. If it was enterprising and powerful, it would every day have recourse to physical strength, and thus would soon fall into a military despotism. Thus its activity and its inertness would be equally prejudicial to the community.
The great end of justice is to substitute the notion of right for that of violence and to place a legal barrier between the government and the use of physical force. It is a strange thing, the authority that is accorded to the intervention of a court of justice by the general opinion of mankind! It clings even to the mere formalities of justice, and gives a bodily influence to the mere shadow of the law. The moral force which courts of justice possess renders the use of physical force very rare and is frequently substituted for it; but if force proves to be indispensable, its power is doubled by the association of the idea of law.
A federal government stands in greater need than any other of the support of judicial institutions, because it is naturally weak and exposed to formidable opposition.23 If it were always obliged to resort to violence in the first instance, it could not fulfill its task. The Union, therefore, stood in special need of a judiciary to make its citizens obey the laws and to repel the attacks that might be directed against them. But 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 to its wants the judicial power of the states. The separation of the judiciary from the other powers of the state is necessary for the security of each and the liberty of all. But it is no less important to the existence of the nation that the several powers of the state should have the same origin, 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 thought of causing offenses committed in France to be tried by a foreign court of justice in order to ensure the impartiality of the judges. The Americans form but one people in relation to their Federal government; but in the bosom of this people divers political bodies have been allowed to exist, 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 a perpetual adversary, 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 state tribunals would be to allow not only foreign, but partial judges to preside over the nation.
But the number, still more than the mere character, of the state tribunals made 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 has now increased to twenty-four. To suppose that a state can exist when its fundamental laws are subjected to four-and-twenty different interpretations at the same time is to advance a proposition contrary alike to reason and to experience.
The American legislators therefore agreed to create a Federal judicial power to apply the laws of the Union and to determine certain questions affecting general interests, which were carefully defined beforehand. The entire judicial power of the Union was centered in one tribunal, called the Supreme Court of the United States. But to facilitate the expedition of business, inferior courts were added 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 appointed neither by the people nor by 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 diminished by the legislature.24 It was easy to proclaim the principle of a Federal judiciary, but difficulties multiplied when the extent of its jurisdiction was to be determined.
MEANS OF DETERMINING THE JURISDICTION OF THE FEDERAL COURTS. of determining the jurisdiction of the different courts of justice in confederations–The courts of the Union obtained the right of fixing their own jurisdiction–In what respects this rule attacks the portion of sovereignty reserved to the several states–The sovereignty of these states restricted by the laws and by the interpretation of the laws–Danger thus incurred by the several states more apparent than real.
As the Constitution of the United States recognized two distinct sovereignties, in presence of each other, represented in a judicial point of view by two distinct classes of courts of justice, the utmost care 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 that constitute a single body politic, when a question of jurisdiction is debated between two courts, a third tribunal is generally within reach to decide the difference; and this is effected without difficulty because in these nations questions of judicial competence have no connection with questions of national sovereignty. 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 that 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 to the states that portion of independence of which the terms of the Constitution deprived them. The object of creating a Federal tribunal was to prevent the state courts from deciding, each after its own fashion, questions affecting the national interests, and so to form a uniform body of jurisprudence for the interpretation of the laws of the Union. This end would not have been attained if the courts of the several states, even while they abstained from deciding cases avowedly Federal in their nature, had been able to decide them by pretending that they were not Federal. The Supreme Court of the United States was therefore invested with the right of determining all questions of jurisdiction.25
This was a severe blow to the sovereignty 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 unknown, by a rule which was certain and one 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 is threatened by this mode of proceeding are less serious than they appear to be. We shall see hereafter that in America the real power is vested in the states 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 the right of jurisdiction in cases where the law gives it to them 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–Or the Union–Or a separate state –By whom tried–Causes resulting from the laws of the Union –Why judged by the Federal tribunals–Causes relating to the of contracts tried by the Federal courts-Consequences of this arrangement.
AFTER establishing the competence of the Federal courts the legislators of the Union defined the cases that should come within their jurisdiction. It was determined, on the one hand, that certain parties must always be brought before the Federal courts, without regard to the special nature of the suit; and, on the other, that certain causes must always be brought before the same courts, no matter who were the parties to them. The party and the cause were therefore admitted to be the two bases of Federal jurisdiction.
Ambassadors represent nations in amity with the Union, and whatever concerns these personages concerns in some degree the whole Union. When an ambassador, therefore, is a party in a suit, its issue affects the welfare of the nation, and a Federal tribunal is naturally called upon to decide it.
The Union itself may be involved in legal proceedings, and in this case it would be contrary to reason and to the customs of all nations to appeal to a tribunal representing any other sovereignty than its own; the Federal courts alone, 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 which can excite the suspicions of neither party, and this is naturally a Federal court.
When the two parties are not private individuals, but states, an important political motive is added to the same consideration of equity. The quality of the parties, in this case, gives a national importance to all their disputes; and the most trifling litigation between two states may be said to involve the peace of the whole Union.26
The nature of the cause frequently prescribes the rule of competency. Thus, all questions which concern maritime affairs evidently fall under the cognizance of the Federal tribunals.27 Almost all these questions depend on 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 one state jurisdiction rather than another, only the national courts can hear causes which originate in maritime affairs.
The Constitution comprises under one head almost all the cases which by their very nature come before the Federal courts. The rule that it lays down is simple, but pregnant with an entire system of ideas and with a 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 that 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 sovereignty; but it was intended that within its limits it should form one and the same people.28 Within those limits the Union is sovereign. When this point is established and admitted, the inference is easy, for if it is acknowledged that the United States, within the bounds prescribed by their Constitution, constitute but one people, 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 such a singular position that in relation to some matters it constitutes but one people, and 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 settled ( and in speaking of the means of determining the jurisdiction of the Federal courts I have shown how it was settled ), 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 to the Union –the natural consequence is that it should come within the jurisdiction of a Federal court.
Whenever the laws of the United States are attacked, or whenever they are resorted to in self-defense, 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. I 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 concern 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 general principle of independence within certain limits of their own was adopted on their behalf; there the central government cannot control, nor even inspect, their conduct. In speaking of the division of authority, I observed that this latter principle had not always been respected, 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 posto 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 that may impair the obligation of contracts.29 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.30
This provision appears to me to be the most serious attack upon the independence of the states. The rights accorded to the Federal government for purposes obviously national are definite and easily understood; but those with which this clause invests it are neither clearly appreciable nor accurately defined. For there are many political laws that affect the existence of contracts, which might thus furnish a pretext for the encroachments of the central authority.
PROCEDURE OF THE FEDERAL COURTS. Natural weakness of the judicial power in confederations–Legislators ought, 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, state laws.
I HAVE shown what the rights of the Federal courts are, and it is no less important to show how they are exercised. The irresistible authority of justice in countries in which the sovereignty is undivided is derived from the fact that the tribunals of those countries represent the entire nation at issue with the individual against whom their decree is directed, and the idea of power is thus introduced to corroborate the idea of right. But it is not always so 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 take cognizance only 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, of which one of the principal 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 acts only upon 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 enacted by that power may violate the rights of the Union. In this case a collision is unavoidable between that body and the state which has passed the law, and it only remains to select the least dangerous remedy. The general principles that I have before established show what this remedy is.31
It may be conceived that in the case under consideration the Union might have sued the state before a Federal court, which would have annulled the act; this would have been the most natural proceeding. But the judicial power would thus have been placed in direct opposition 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 injure some private interests by its provisions. These private interests are assumed by the American legislators as the means of assailing such measures as may be prejudicial to the Union, and it is to these interests that the protection of the Supreme Court is extended.
Suppose a state sells a portion of its public lands to a company, and that a year afterwards it passes a law by which the lands are otherwise disposed of and that clause of the Constitution which prohibits laws impairing the obligation of contracts is thereby 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.32 Thus, in point of fact, the judicial power of the Union is contesting the claims of the sovereignty of a state; but it acts only indirectly and upon an application of detail. It attacks the law in its consequences, not in its principle, and rather weakens than destroys it.
The last case to be provided for 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 state 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 still exists, with less chance of being avoided. It is inherent in the very essence of Federal constitutions that they should create parties in the bosom of the nation which present powerful obstacles to the free course of justice.
HIGH RANK OF THE SUPREME COURT AMONG THE GREAT POWERS OF STATE. No nation ever constituted so great a judicial power as the Americans–Extent of its prerogatives–Its political influence –The tranquillity and the very existence of the Union depend on the discretion of the seven Federal judges. WHEN we have 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 higher than any other known tribunal, 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 reluctance to allow the cases in which it was itself interested to be decided by the ordinary course of justice. This repugnance is naturally greater as the government is more absolute; 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 yet held that all judicial controversies, without regard to their origin, can be left to the judges of common
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 cases arising under laws and treaties made by the national authorities, to all cases of admiralty and maritime jurisdiction, and, in general, to all points that 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 regulates only the relations of the government with the citizens, and of the nation with foreign powers; the relations of citizens among themselves are almost all 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 called upon to try only 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 Federal judges. Without them the Constitution would be a dead letter: the executive appeals to them for assistance against the encroachments of the legislative power, the legislature demands their protection against the assaults 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 private interests, and the conservative spirit of stability against the fickleness of the democracy. Their power is enormous, but it is the power of public opinion. They are all-powerful as long as the people respect the law; but they would be impotent against popular neglect or contempt of the law. 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.
Not only must the Federal judges be good citizens, and men of that information and integrity which are indispensable to all magistrates, but they must be statesmen, wise to discern the signs of the times, not afraid to brave the obstacles that can be subdued, nor slow to turn away from the current when it threatens to sweep them off, and the supremacy of the Union and the obedience due to the laws along with them.
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 the Congress originates may cause it to retract its decision by changing its members. But if the Supreme Court is ever composed of imprudent or bad men, the Union may be plunged into anarchy or civil war.
The original cause of this danger, however, does not lie in the constitution of the tribunal, but in the very nature of federal governments. We have seen that in confederate states it is especially necessary to strengthen the judicial power, because in no other nations do those independent persons who are able to contend 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 the state which renders the existence of such a power necessary.
IN WHAT RESPECTS THE FEDERAL CONSTITUTION IS SUPERIOR TO THAT OF THE STATES. How the Constitution of the Union can be compared with 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 will of the majority–Practical consequence of these facts–The in a democratic government diminished by 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 attained 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 with each other.
I am of opinion, for several reasons, that the Federal Constitution is superior to any of the state constitutions.
The present Constitution of the Union was formed at a later period than those of the majority of the states, and it may have profited by this additional experience. But we shall be convinced that this is only a secondary cause of its superiority, when we recollect that eleven new states have since been added to the Union, and that these new republics have almost always rather exaggerated than remedied the defects that existed in the former constitutions.
The chief cause of the superiority of the Federal Constitution lay in the character of the legislators who composed it. At the time when it was formed, the ruin of the Confederation seemed imminent, and its danger was universally known. 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 dominant authority. When the contest was terminated, while the excited passions of the populace persisted, as usual, in warring against dangers which had ceased to exist, these men stopped short; they cast a calmer and more penetrating look upon their country; they perceived that a definitive revolution had been accomplished, and that the only dangers which America had now to fear were those which might result from the abuse of freedom. 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.33
Most of the state constitutions 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 altered the nature of the main consequences of the representative system, since it vested not only the source of authority, but the government, in the people. They increased the length of the term in order to give the representatives freer scope for the exercise of their own judgment.
The Federal Constitution, as well as the state constitutions, 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 easily represented in one chamber as in the other, and that laws were made with 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 in order that if, as is the case in certain nations, one branch of the legislature should not represent the same interests as the other, it might at least represent more wisdom. A mature age was necessary to become a Senator, and the Senate 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 that emanates the most directly from the people, it has the greater share of the people’s overwhelming power, and it is naturally led to monopolize every species of influence. This concentration of power is at once very 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 only the blind agent and the passive instrument of its will. He can derive no power from the duration of his office, which terminates in one year, or from the exercise of prerogatives, for he can scarcely be said to have any. The legislature can condemn him to inaction by entrusting the execution of its laws to special committees of its own members, and can annul his temporary dignity by cutting down 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 cannot be altered during this term; the President 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 that were prescribed to it.
In the state constitutions, the judicial power is that which is 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 that necessarily subjects them to its immediate influence. In some states the judges are appointed only temporarily, which deprives them of a great portion of their power and their freedom. In others the legislative and judicial powers are entirely confounded. 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 power from all the others; and it provides for the independence of the judges, by declaring that their salary shall not be diminished, and that their functions shall be inalienable.
The practical consequences of these different systems may easily be perceived. An attentive observer will soon notice 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 temperate than that of the states; it has more prudence and discretion, its projects are more durable and more skillfully combined, its measures are executed with more vigor and consistency.
I recapitulate the substance of this chapter in a few words.
The existence of democracies is threatened by two principal dangers: namely, the complete subjection of the legislature to the will of the electoral body, and the concentration of all the other powers of the government in the legislative branch.
The development of these evils has been favored by the legislators of the states; but the legislators of the Union have done all they could to render them less formidable.
CHARACTERISTICS OF THE FEDERAL CONSTITUTION OF THE UNITED STATES OF AMERICA AS COMPARED WITH ALL OTHER FEDERAL CONSTITUTIONS. The American Union appears to resemble all other confederations–Yet its effects are different–Reason for this–In what this Union differs from all other confederations –The American government not a Federal but an imperfect national government.
THE United States of America does not afford the first or the only instance of a confederation, several of which have existed in modern Europe, without referring to those of antiquity. Switzerland, the Germanic Empire, and the Republic of the Low Countries either have been or still are confederations. In studying the constitutions of these different countries one is surprised to see that the powers with which they invested the federal government are nearly the same as those 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 states has always been as remarkable for its weakness and inefficiency as that of the American Union is for its vigor and capacity. Again, the first American Confederation perished through the excessive weakness of its government; and yet this weak government had as large rights and privileges as those of the Federal government of the present day, and in some respects even larger. But the present Constitution of the United States contains certain novel principles which exercise a most important influence, although they do not at once strike the observer.
This Constitution, which may at first sight be confused with the federal constitutions that have preceded it, rests in truth upon a wholly novel theory, which may be considered as a great discovery in modern political science. In all the confederations that preceded the American Constitution of 1789, the states allied for a common object 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 execute its own enactments. In both cases the right is the same, but the exercise of the right is different; and this difference produced the most momentous consequences.
In all the confederations that preceded the American Union the federal government, in order to provide for its wants, had to apply to the separate governments; and if what it prescribed was disagreeable to any one of them, means were found to evade its claims. If it was powerful, it then had recourse to arms; if it was weak, it connived at the resistance which the law of the union, its sovereign, met with, and did nothing, under the plea of inability. Under these circumstances one of two results invariably followed: either the strongest of the allied states assumed the privileges of the federal authority and ruled all the others in its name; 34 or the federal government was abandoned by its natural supporters, anarchy arose between the confederates, and the union lost all power of action.35
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. The old confederate governments presided over communities, but that of the Union presides over individuals. Its force is not borrowed, but self-derived; and it is served by its own civil and military officers, its own army, and its own courts of justice. It cannot be doubted that the national spirit, the passions of the multitude, and the provincial prejudices of each state still tend singularly to diminish the extent of the Federal authority thus constituted and to facilitate 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 and temptations to resist; 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 the decisive step that men always 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 hence 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 power 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 hence constrained to employ many improper and inadequate expressions. When several nations form a permanent league and establish a supreme authority, which, although it cannot act upon private individuals like a national government, still acts upon each of the confederate states in a body, this government, which is so essentially different from all others is called Federal. Another form of society is afterwards discovered in which several states are fused into one with regard to certain common interests, although they remain distinct, or only confederate, with regard to all other concerns. In this case the central power acts directly upon the governed, whom it rules and judges in the same manner as a national government, but in a more limited circle. Evidently this is no longer a federal government, but an incomplete national government, which is neither exactly national nor exactly federal; but the new word which ought to express this novel thing does not yet exist.
Ignorance of this new species of confederation has been the cause that has brought all unions to civil war, to servitude, or to inertness; and the states which formed these leagues have been either too dull to discern, or too pusillanimous to apply, this great remedy. The first American Confederation perished by the same defects.
But in America the confederate states 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 completely; and their national prejudices had not taken deep root in their minds. Superior to the rest of the world in political knowledge, and sharing that knowledge equally among themselves, they were little agitated by the passions that generally oppose the extension of federal authority in a nation, and those passions were checked by the wisdom of their greatest men. The Americans applied the remedy with firmness as soon as they were conscious of the evil; they amended their laws and saved the country.
ADVANTAGES OF THE FEDERAL SYSTEM IN GENERAL, AND ITS SPECIAL UTILITY IN AMERICA. Happiness and freedom of small nations –Power of great nations–Great empires favorable to the growth of civilization–Strength of ten 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 thissystem–The law adapts itself to the exigencies of the population; population does not conform to the exigencies of the law –Activity, progress, the love and enjoyment of freedom, in American communities–Public spirit of the Union is only the aggregate of provincial patriotism–Principles and things circulate freely over the territory of the United States–TheUnion is happy and free as a little nation, and respected as a great one.
IN small states, the watchfulness of society penetrates everywhere, and a desire for improvement pervades the smallest details, the ambition of the people being necessarily checked by its weakness, all the efforts and resources of the citizens are turned to the internal well-being of the community and are not likely to be wasted upon an empty pursuit of glory. The powers of every individual being generally limited, his desires are proportionally small. Mediocrity of fortune makes the various conditions of life nearly equal, and the manners of the inhabitants are orderly and simple. Thus, all things considered, and allowance being made for the various degrees of morality and enlightenment, we shall generally find more persons in easy circumstances, more contentment and tranquillity, in small nations than in large ones.
When tyranny is established in the bosom of a small state, it is more galling than elsewhere, because, acting in a narrower circle, everything in that circle is affected by it. It supplies the place of those great designs which it cannot entertain, by a violent or 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 private life. Tastes as well as actions are to be regulated; and the families of the citizens, as well as the state, are to be governed. This invasion of rights occurs but seldom, however, freedom being in truth the natural state of small communities. The temptations that the government offers to ambition are too weak and the resources of private individuals are too slender for the sovereign power easily to fall into the grasp of a single man; and should such an event occur, the subjects of the state can easily unite and overthrow the tyrant and the tyranny at once by a common effort.
Small nations have therefore always been the cradle of political liberty; and the fact that many of them have lost their liberty by becoming larger shows that their freedom was more a consequence of their small size than of the character of the people.
The history of the world affords no instance of a great nation retaining the form of republican government for a long series of years; 36 and this has led to the conclusion that such a thing is impracticable. For my own part, I think it imprudent for men who are every day deceived in relation to the actual and the present, and often taken by surprise in the circumstances with which they are most familiar, to attempt to limit what is possible and to judge the future. But it may be said with confidence, that a great republic will always be exposed to more perils than a small one.
All the passions that are most fatal to republican institutions increase with an increasing territory, while the virtues that favor them do not augment in the same proportion. The ambition of private citizens increases with the power of the state; the strength of parties with the importance of the ends they have in view; but the love of country, which ought to check these destructive agencies, is not stronger in a large than in a small republic. It might, indeed, be easily proved that it is less powerful and less developed. Great wealth and extreme poverty, capital cities of large size, a lax morality, selfishness, and antagonism of interests are the dangers which almost invariably arise from the magnitude of states. Several of these evils scarcely injure a monarchy, and some of them even contribute to its strength and duration. In monarchical states the government has its peculiar strength; it may use, but it does not depend on, the community; and the more numerous the people, the stronger is the prince. But the only security that a republican government possesses against these evils lies in the support of the majority. This support is not, however, proportionably greater in a large republic than in a small one; and thus, while the means of attack perpetually increase, in both number and influence, the power of resistance remains the same; or it may rather be said to diminish, since the inclinations and interests of the people are more diversified by the increase of the population, and the difficulty of forming a compact majority is constantly augmented. It has been observed, moreover, that the intensity of human passions is heightened not only by the importance of the end which they propose to attain, but by the multitude of individuals who are animated by them at the same time. Everyone has had occasion to remark that his emotions in the midst of a sympathizing crowd are far greater than those which he would have felt in solitude. In great republics, political passions become irresistible, not only because they aim at gigantic objects, but because they are felt and shared by millions of men at the same time.
It may therefore be asserted as a general proposition that nothing is more opposed to the well-being and the freedom of men than vast empires. Nevertheless, it is important to acknowledge the peculiar advantages of great states. For the very reason that the desire for power is more intense in these communities than among ordinary men, the love of glory is also more developed in the hearts of certain citizens, who regard the applause of a great people as a reward worthy of their exertions and an elevating encouragement to man. If we would learn why great nations contribute more powerfully to the increase of knowledge and the advance of civilization than small states, we shall discover an adequate cause in the more rapid and energetic circulation of ideas and in those great cities which are the intellectual centers where all the rays of human genius are reflected and combined. To this it may be added that most important discoveries demand a use of national power which the government of a small state is unable to make: in great nations the government has more enlarged ideas, and is more completely disengaged from the routine of precedent and the selfishness of local feeling; its designs are conceived with more talent and executed with more boldness.
In time of peace the well-being of small nations is undoubtedly more general and complete; but they are apt to suffer more acutely from the calamities of war than those great empires whose distant frontiers may long avert the presence of the danger from the mass of the people, who are therefore more frequently afflicted than ruined by the contest.
But in this matter, as in many others, the decisive argument is the necessity of the case. If none but small nations existed, I do not doubt that mankind would be more happy and more free; but the existence of great nations is unavoidable.
Political strength thus becomes a condition of national prosperity. It profits a state but little to be affluent and free if it is perpetually exposed to be pillaged or subjugated; its manufactures and commerce are of small advantage if another nation has the empire of the seas and gives the law in all the markets of the globe. Small nations are often miserable, not because they are small, but because they are weak; and great empires prosper less because they are great than because they are strong. Physical strength is therefore one of the first conditions of the happiness and even of the existence of nations. Hence it occurs that, unless very peculiar circumstances intervene, small nations are always united to large empires in the end, either by force or by their own consent. I do not know a more deplorable condition than that of a people unable to defend itself or to provide for its own wants.
The federal system was created with the intention of combining the different advantages which result from the magnitude and the littleness of nations; and a glance at the United States of America discovers the advantages which they have derived from its adoption
In great centralized nations the legislator is obliged to give a character of uniformity to the laws, which does not always suit the diversity of customs and of districts; as he takes no cognizance of special cases, he can only proceed upon general principles; and the population are obliged to conform to the requirements of the laws, since legislation cannot adapt itself to the exigencies and the customs of the population, which is a great cause of trouble and misery. This disadvantage does not exist in confederations; Congress regulates the principal measures of the national government, and all the details of the administration are reserved to the provincial legislatures. One can hardly imagine how much this division of sovereignty contributes to the well-being of each of the states that compose the Union. In these small communities, which are never agitated by the desire of aggrandizement or the care of self-defense, all public authority and private energy are turned towards internal improvements. The central government of each state, which is in immediate relationship with the citizens, is daily apprised of the wants that arise in society; and new projects are proposed every year, which are discussed at town meetings or by the legislature, and which are transmitted by the press to stimulate the zeal and to excite the interest of the citizens. This spirit of improvement is constantly alive in the American republics, without compromising their tranquillity; the ambition of power yields to the less refined and less dangerous desire for well- being. It is generally believed in America that the existence and the permanence of the republican form of government in the New World depend upon the existence and the duration of the federal system; and it is not unusual to attribute a large share of the misfortunes that have befallen the new states of South America to the injudicious erection of great republics instead of a divided and confederate sovereignty.
It is incontestably true that the tastes and the habits of republican government in the United States were first created in the townships and the provincial assemblies. In a small state, like that of Connecticut, for instance, where cutting a canal or laying down a road is a great political question, where the state has no army to pay and no wars to carry on, and where much wealth or much honor cannot be given to the rulers, no form of government can be more natural or more appropriate than a republic. But it is this same republican spirit, it is these manners and customs of a free people, which have been created and nurtured in the different states, that must be afterwards applied to the country at large. The public spirit of the Union is, so to speak, nothing more than an aggregate or summary of the patriotic zeal of the separate provinces. Every citizen of the United States transfers, so to speak, his attachment to his little republic into the common store of American patriotism defending the Union he defends the increasing prosperity of his own state or county, the right of conducting its affairs, and the hope of causing measures of improvement to be adopted in it which may be favorable to his own interests; and these are motives that are wont to stir men more than the general interests of the country and the glory of the nation.
On the other hand, if the temper and the manners of the inhabitants especially fitted them to promote the welfare of a great republic, the federal system renders their task less difficult. The confederation of all the American states presents none of the ordinary inconveniences resulting from large associations of men. The Union is a great republic in extent, but the paucity of objects for which its government acts assimilates it to a small state. Its acts are important, but they are rare. As the sovereignty of the Union is limited and incomplete, its exercise is not dangerous to liberty; for it does not excite those insatiable desires for fame and power which have proved so fatal to great republics. As there is no common center to the country, great capital cities, colossal wealth, abject poverty, and sudden revolutions are alike unknown; and political passion, instead of spreading over the land like a fire on the prairies, spends its strength against the interests and the individual passions of every state.
Nevertheless, tangible objects and ideas circulate throughout the Union as freely as in a country inhabited by one people. Nothing checks the spirit of enterprise. The government invites the aid of all who have talents or knowledge to serve it. Inside of the frontiers of the Union profound peace prevails, as within the heart of some great empire; abroad it ranks with the most powerful nations of the earth: two thousand miles of coast are open to the commerce of the world; and as it holds the keys of a new world, its flag is respected in the most remote seas. The Union is happy and free as a small people, and glorious and strong as a great nation.
WHY THE FEDERAL SYSTEM IS NOT PRACTICABLE FOR ALL NATIONS, AND HOW THE ANGLO-AMERICANS WERE ENABLED TO ADOPT IT. Every federal system has inherent faults that baffle the efforts of the legislator–The federal system is complex–It demands a daily exercise of the intelligence of the citizens–Practical knowledge of government common among the Americans-Relative weakness of the government of the Union another defect inherent in the federal system–The Americans have diminished without remedying it–The sovereignty of the separate states apparently weaker, but really stronger, than that of the Union–Why–Natural causes of Union, then, must exist between confederate nations besides the laws–What these causes are among the Anglo-Americans–Maine and Georgia, separated by a distance of a thousand miles, more naturally united than Normandy and Brittany–War the main peril of confederations–This proved even by the example of the United States–The Union has no great wars to fear–Why –Dangers which Europeans would incur if they adopted the federal system of the Americans.
WHEN, after many efforts, a legislator succeeds in exercising an indirect influence upon the destiny of nations, his genius is lauded by mankind, while, in point of fact, the geographical position of the country, which he is unable to change, a social condition which arose without his co-operation, customs and opinions which he cannot trace to their source, and an origin with which he is unacquainted exercise so irresistible an influence over the courses of society that he is himself borne away by the current after an in effectual resistance. Like the navigator, he may direct the vessel which bears him, but he can neither change its structure, nor raise the winds, nor lull the waters that swell beneath him.
I have shown the advantages that the Americans derive from their federal system; it remains for me to point out the circumstances that enabled them to adopt it, as its benefits cannot be enjoyed by all nations. The accidental defects of the federal system which originate in the laws may be corrected by the skill of the legislator, but there are evils inherent in the system which cannot be remedied by any effort. The people must therefore find in themselves the strength necessary to bear the natural imperfections of their government.. Two sovereignties are necessarily in presence of each other. The legislator may simplify and equalize as far as possible the action of these two sovereignties, by limiting each of them to a sphere of authority accurately defined; but he cannot combine them into one or prevent them from coming into collision at certain points. The federal system, therefore, rests upon a theory which is complicated at the best, and which demands the daily exercise of a considerable share of discretion on the part of those it governs.
A proposition must be plain, to be adopted by the understanding of a people. A false notion which is clear and precise will always have more power in the world than a true principle which is obscure or involved. Thus it happens that parties, which are like small communities in the heart of the nation, invariably adopt some principle or name as a symbol, which very inadequately represents the end they have in view and the means that they employ, but without which they could neither act nor exist. The governments that are founded upon a single principle or a single feeling which is easily defined are perhaps not the best, but they are unquestionably the strongest and the most durable in the world.
In examining the Constitution of the United States, which is the most perfect constitution that ever existed, one is startled at the variety of information and the amount of discernment that it presupposes in the people whom it is meant to govern. The government of the Union depends almost entirely upon legal fictions; the Union is an ideal nation, which exists, so to speak, only in the mind, and whose limits and extent can only be discerned by the understanding.
After the general theory is comprehended, many difficulties remain to be solved in its application; for the sovereignty of the Union is so involved in that of the states that it is impossible to distinguish its boundaries at the first glance. The whole structure of the government is artificial and conventional, and it would be ill adapted to a people which has not been long accustomed to conduct its own affairs, or to one in which the science of politics has not descended to the humblest classes of society. I have never been more struck by the good sense and the practical judgment of the Americans than in the manner in which they elude the numberless difficulties resulting from their Federal Constitution. I scarcely ever met with a plain American citizen who could not distinguish with surprising facility the obligations created by the laws of Congress from those created by the laws of his own state, and who, after having discriminated between the matters which come under the cognizance of the Union and those which the local legislature is competent to regulate, could not point out the exact limit of the separate jurisdictions of the Federal courts and the tribunals of the state.
The Constitution of the United States resembles those fine creations of human industry which ensure wealth and renown to their inventors, but which are profitless in other hands. This truth is exemplified by the condition of Mexico at the present time. The Mexicans were desirous of establishing a federal system, and they took the Federal Constitution of their neighbors, the Anglo-Americans, as their model and copied it almost entirely.37 But although they had borrowed the letter of the law, they could not carry over the spirit that gives it life. They were involved in ceaseless embarrassments by the mechanism of their dual government; the sovereignty of the states and that of the Union perpetually exceeded their respective privileges and came into collision; and to the present day Mexico is alternately the victim of anarchy and the slave of military despotism.
The second and most fatal of all defects, and that which I believe to be inherent in the federal system, is the relative weakness of the government of the Union. The principle upon which all confederations rest is that of a divided sovereignty. Legislators may render this partition less perceptible, they may even conceal it for a time from the public eye, but they cannot prevent it from existing; and a divided sovereignty must always be weaker than an entire one. The remarks made on the Constitution of the United States have shown with what skill the Americans, while restraining the power of the Union within the narrow limits of a federal government, have given it the semblance, and to a certain extent the force, of a national government. By this means the legislators of the Union have diminished the natural danger of confederations, but have not entirely obviated it.
The American government, it is said, does not address itself to the states, but transmits its injunctions directly to the citizens and compels them individually to comply with its demands. But if the Federal law were to clash with the interests and the prejudices of a state, it might be feared that all the citizens of that state would conceive themselves to be interested in the cause of a single individual who refused to obey. If all the citizens of the state were aggrieved at the same time and in the same manner by the authority of the Union, the Federal government would vainly attempt to subdue them individually; they would instinctively unite in a common defense and would find an organization already prepared for them in the sovereignty that their state is allowed to enjoy. Fiction would give way to reality, and an organized portion of the nation might then contest the central authority.
The same observation holds good with regard to the Federal jurisdiction. If the courts of the Union violated an important law of a state in a private case, the real though not the apparent contest would be between the aggrieved state represented by a citizen and the Union represented by its courts of justice.38
He would have but a partial knowledge of the world who should imagine that it is possible by the aid of legal fictions to prevent men from finding out and employing those means of gratifying their passions which have been left open to them. The American legislators, though they have rendered a collision between the two sovereignties less probable, have not destroyed the causes of such a misfortune. It may even be affirmed that, in case of such a collision, they have not been able to ensure the victory of the Federal element. The Union is possessed of money and troops, but the states have kept the affections and the prejudices of the people. The sovereignty of the Union is an abstract being, which is connected with but few external objects; the sovereignty of the states is perceptible by the senses, easily understood, and constantly active. The former is of recent creation, the latter is coeval with the people itself. The sovereignty of the Union is factitious, that of the states is natural and self-existent, without effort, like the authority of a parent. The sovereignty of the nation affects a few of the chief interests of society; it represents an immense but remote country, a vague and ill-defined sentiment. The authority of the states controls every individual citizen at every hour and in all circumstances; it protects his property, his freedom, and his life; it affects at every moment his well-being or his misery. When we recollect the traditions, the customs, the prejudices of local and familiar attachment with which it is connected, we cannot doubt the superiority of a power that rests on the instinct of patriotism, so natural to the human heart.
Since legislators cannot prevent such dangerous collisions as occur between the two sovereignties which coexist in the Federal system, their first object must be, not only to dissuade the confederate states from warfare, but to encourage such dispositions as lead to peace. Hence it is that the Federal compact cannot be lasting unless there exists in the communities which are leagued together a certain number of inducements to union which render their common dependence agreeable and the task of the government light. The Federal system cannot succeed without the presence of favorable circumstances added to the influence of good laws. All the nations that have ever formed a confederation have been held together by some common interests, which served as the intellectual ties of association.
But men have sentiments and principles as well as material interests. A certain uniformity of civilization is not less necessary to the durability of a confederation than a uniformity of interests in the states that compose it. In Switzerland the difference be tween the civilization of the Canton of Uri and that of the Canton of Vaud is like the difference between the fifteenth and the nineteenth centuries; therefore, properly speaking, Switzerland has never had a federal government. The union between these two cantons exists only on the map; and this would soon be perceived if an attempt were made by a central authority to prescribe the same laws to the whole territory.
The circumstance which makes it easy to maintain a Federal government in America is not only that the states have similar interests, a common origin, and a common language, but that they have also arrived at the same stage of civilization, which almost always renders a union feasible. I do not know of any European nation, however small, that does not present less uniformity in its different provinces than the American people, which occupy a territory as extensive as one half of Europe. The distance from Maine to Georgia is about one thousand miles; but the difference between the civilization of Maine and that of Georgia is slighter than the difference between the habits of Normandy and those of Brittany. Maine and Georgia, which are placed at the opposite extremities of a great empire, have therefore more real inducements to form a confederation than Normandy and Brittany, which are separated only by a brook.
The geographical position of the country increased the facilities that the American legislators derived from the usages and customs of the inhabitants; and it is to this circumstance that the adoption and the maintenance of the Federal system are mainly attributable.
The most important occurrence in the life of a nation is the breaking out of a war. In war a people act as one man against foreign nations in defense of their very existence. The skill of the government, the good sense of the community, and the natural fondness that men almost always entertain for their country may be enough as long as the only object is to maintain peace in the interior of the state and to favor its internal prosperity; but that the nation may carry on a great war the people must make more numerous and painful sacrifices; and to suppose that a great number of men will of their own accord submit to these exigencies is to betray an ignorance of human nature. All the nations that have been obliged to sustain a long and serious warfare have consequently been led to augment the power of their government. Those who have not succeeded in this attempt have been subjugated. A long war almost always reduces nations to the wretched alternative of being abandoned to ruin by defeat or to despotism by success. War therefore renders the weakness of a government most apparent and most alarming; and I have shown that the inherent defect of federal governments is that of being weak.
The federal system not only has no centralized administration, and nothing that resembles one, but the central government itself is imperfectly organized, which is always a great cause of weakness when the nation is opposed to other countries which are themselves governed by a single authority. In the Federal Constitution of the United States, where the central government has more real force than in any other confederation, this evil is still extremely evident. A single example will illustrate the case.
The Constitution confers upon Congress the right of “calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions”; and another article declares that the President of the United States is the commander-in-chief of the militia. In the war of 1812 the President ordered the militia of the Northern states to march to the frontiers; but Connecticut and Massachusetts, whose interests were impaired by the war, refused to obey the command. They argued that the Constitution authorizes the Federal government to call forth the militia in case of insurrection or invasion; but in the present instance there was neither invasion nor insurrection. They added that the same Constitution which conferred upon the Union the right of calling the militia into active service reserved to the states that of naming the officers; and consequently (as they understood the clause) no officer of the Union had any right to command the militia, even during war, except the President in person: and in this case they were ordered to join an army commanded by another individual. These absurd and pernicious doctrines received the sanction not only of the governors and the legislative bodies, but also of the courts of justice in both states; and the Federal government was forced to raise elsewhere the troops that it required.39
How does it happen, then, that the American Union, with all the relative perfection of its laws, is not dissolved by the occurrence of a great war? It is because it has no great wars to fear. Placed in the center of an immense continent, which offers a boundless field for human industry, the Union is almost as much insulated from the world as if all its frontiers were girt by the ocean. Canada contains only a million inhabitants, and its population is divided into two inimical nations. The rigor of the climate limits the extension of its territory, and shuts up its ports during the six months of winter. From Canada to the Gulf of Mexico a few savage tribes are to be met with, which retire, perishing in their retreat, before six thousand soldiers. To the south the Union has a point of contact with the empire of Mexico; and it is thence that serious hostilities may one day be expected to arise. But for a long while to come the uncivilized state of the Mexican people, the depravity of their morals, and their extreme poverty will prevent that country from ranking high among nations. As for the powers of Europe, they are too distant to be formidable.40
The great advantage of the United States does not, then, consist in a Federal Constitution which allows it to carry on great wars, but in a geographical position which renders such wars extremely improbable.
No one can be more inclined than I am to appreciate the advantages of the federal system, which I hold to be one of the combinations most favorable to the prosperity and freedom of man. I envy the lot of those nations which have been able to adopt it; but I cannot believe that any confederate people could maintain a long or an equal contest with a nation of similar strength in which the government is centralized. A people which, in the presence of the great military monarchies of Europe, should divide its sovereignty into fractional parts would, in my opinion, by that very act abdicate its power, and perhaps its existence and its name. But such is the admirable position of the New World that man has no other enemy than himself, and that, in order to be happy and to be free, he has only to determine that he will be so.
1 See the Articles of the first Confederation, formed in 1778 This constitution was not adopted by all the states until 1781 see also the analysis given of this constitution in The Federalist, from No 15 to No 22 inclusive and Story’s Commentaries on the Constitution of the United States, pp. 85- 115.
2 Congress made this declaration on February 21, 1787.
3 It consisted of fifty-five members; Washington, Madison, Hamilton, and the two Morrises were among the number.
4 It was not adopted by the legislatures, but representatives were elected by the people for this sole purpose; and the new Constitution was discussed at length in each of these assemblies.
5 See amendment to the Federal Constitution; The Federalist, No 31; Story, p. 711; Kent’s Commentaries, Vol I, p. 364. It is to be observed that whenever the exclusive right of regulating certain matters is not reserved to Congress by the Constitution, the states may legislate concerning them till Congress sees fit to act. For instance, Congress has the right of making a general law on bankruptcy, which, however, it has not done. Each state is then at liberty to make such a law for itself. This point, however, has been established only after discussion in the law courts, and may be said to belong more properly to jurisprudence.
6 The action of this court is indirect, as I shall hereafter show.
7 It is thus that The Federalist, No 45, explains this division of sovereignty between the Union and the states. “The powers delegated by the Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation. and foreign commerce. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the internal order and prosperity of the State.” I shall often have occasion to quote The Federalist in this work. When the bill which has since become the Constitution of the United States was before the people and the discussions were still pending, three men who had already acquired a portion of that celebrity which they have since enjoyed –John Jay, Hamilton, Madison–undertook together to explain to the nation the advantages of the measure that was proposed. With this view, they published in a journal a series of articles, which now form a complete treatise. They entitled their journal The Federalist, a name which has been retained in the work. The Federalist is an excellent book, which ought to be familiar to the statesmen of all countries, though it specially concerns America.
8 See Constitution, Article I, Sections 8, 10, #1; The Federalist, Nos 41 and 42; Kent’s Commentaries, Vol. I, pp 207 ff, Story, p 338-82, 409-26.
9 Several other powers of the same kind exist, such as that of legislating on bankruptcy and granting patents. The necessity of confiding such matters to the Federal government is obvious enough.
10 Even in these cases its interference is indirect The Union interferes by means of the tribunals, as will hereafter be shown
11 Constitution, Article I Sections 8, 9, and 10, The Federalist, Nos 30-36 inclusive; ibid, Nos 41, 42, 43, 44, Kent’s Commentaries, Vol. I, pp. 207, 381; Story, pp. 329, 514.
12 Every ten years Congress fixes anew the number of representatives which each state is to furnish. The total number was 69 in 1789, and 240 in 1833. American Almanac ( 1834), p. 194. The Constitution decided that there should not be more than one representative for every 30,000 persons; but no minimum was fixed on. Congress has not thought fit to augment the number of representatives in proportion to the increase of population. The first Act which was passed (April 14 1792) on the subject (see Story: Laws of the United States, Vol. I, p. 235) decided that there should be one representative for every 33,000 inhabitants.
13 See The Federalist, Nos. 52-66 inclusive; Story, pp. 199-314; Constitution, Article I, Sections 2 and 3.
14 The Federalist, Nos. 66-77 inclusive; Constitution, Article II; Story, pp. 315, 518-780; Kent’s Commentaries, p. 255.
15 The Constitution has left it doubtful whether the President is obliged to consult the Senate in the removal as well as in the appointment of Federal officers. The Federalist (No. 77) seems 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.
16 The sums annually paid by the state to these officers amount to 200,000,000 francs.
17 Each year an almanac called the National Calendar is published in the United States. It gives the names of all Federal office-holders. This number is extracted from the National Calendar for 1833. 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 one and one-half times that of the Union.
18 As many as it sends members to Congress. The number of electors at the election of 1833 was 288 (the National Calendar).
19 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.
20 In this case it is the majority of the states, and not the majority of the members, that decides the question; so that New York has no 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 be explained only by the jar of conflicting interests.
21 Jefferson, in 1801, was not elected until the thirty-sixth ballot.
22 See Chapter VI, entitled “Judicial Power in the United States.” This chapter explains the general principles of the American judiciary. See also the Federal Constitution, Article III; The Federalist, Nos. 78-83 inclusive; Constitutional Law, Being a View of the Practise and Jurisdiction of the Courts of the United States, by Thomas Sergeant; Story, pp. 134-62, 489511, 581, 668. See the organic law of September 24, 1789, in the collection entitled Laws of the United States, by Story, Vol. I, p. 53.
23 Federal laws are those which most require courts of justice, and at the same time those which have most rarely established them. The reason is that confederations have usually been formed by independent states, which had no real intention of obeying the central government, and though they readily ceded the right of command to the central government, they carefully reserved the right of non-compliance to themselves.
24 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 country, in order to try the most important causes on the spot: the court presided over by this magistrate is styled a “Circuit Court.” Lastly, all the most serious cases of litigation are brought, either directly or by appeal before the Supreme Court, which holds a solemn session once 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 for 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 our Cour de Cassation. The Supreme Court has original, the Cour de Cassation only appellate jurisdiction. The Supreme Court is in fact, as is the Cour de Cassation, a unique tribunal responsible for establishing a uniform jurisprudence; but the Supreme Court judges of the fact as well as the law and makes a final judgment without recourse to another tribunal, two things which the Cour de Cassation cannot do. See the organic law of September 24, 1789, Laws of the United States, by Story, Vol. I, p. 53.
25 In order to diminish the number of these suits, however, it was decided that in a great many Federal causes the courts of the states should be empowered to decide conjointly with those of the Union, the losing party having then a right of appeal to the Supreme Court of the United States. The Supreme Court of Virginia contested the right of the Supreme Court of the United States to judge an appeal from its decisions, but unsuccessfully. See Kent’s Commentaries, Vol. I, pp. 300, 370, et seq.; Story’s Commentaries, p. 646; and the organic law of 1789, Laws of the United States, Vol. I, p. 53.
26 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 arose, 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 Supreme Court decided in the affirmative. The decision created general alarm among the states which feared that they would be subjected to Federal justice in spite of themselves. An amendment was proposed and ratified by which the power was entirely taken away so far as it regards suits brought against a state by the citizens of another. See Story’s Commentaries, p. 624.
27 As, for instance, all cases of piracy.
28 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.
29 It is perfectly clear, says Mr. Story (Commentaries, p. 503), 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 careful definition of what is understood by a contract in Federal jurisprudence. The definition is very broad. 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 on the state as on the grantee. The clause of the Constitution here referred to ensures, therefore, the existence of a great part of acquired rights, but not of all. Property may legally be held, though it may not have passed into the possessor’s hands by means of a contract; and its possession is an acquired right, not guaranteed by the Federal Constitution.
30 A remarkable instance of this is given by Mr. Story (p.508). 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 terms of the original charter of the college, and transferring all the rights, privileges, and franchises derived from the old charter to new trustees appointed under the act. The constitutionality of the act was contested, and the cause was carried up to the Supreme (Federal) Court, where it was held, that since the original charter was an inviolable contract between the state and the incorporators, the new law could not change the terms of this charter without violating acquired rights as in a contract, and that therefore it violated Article I, Section 10 of the Constitution of the United States.
31 See Chapter VI, on “The Judicial Power in America.
32 See Kent’s Commentaries, Vol. I, p. 387.
33 At this time the celebrated 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 uch 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 in- erests. 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 the 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.”
34 This was the case in Greece when Philip undertook to execute the decrees 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 make themselves the agents of the Diet and rule the whole confederation in its name.
35 Such has always been the situation of the Swiss Confederation which would have perished ages ago but for the mutual jealousies of its neighbors.
36 I do not speak of a confederation of small republics, but of a great consolidated republic.
37 See the Mexican Constitution of 1824.
38 For instance, the Union possesses by the Constitution the right of selling unoccupied lands for its own profit. Suppose that the state of Ohio should claim the same right in behalf of certain tracts lying within its own boundaries, upon the plea that the Constitution refers only to those lands which do not belong to the jurisdiction of any particular state, and consequently should choose to dispose of them itself. The litigation would be carried on, it is true, in the names of the purchasers from the state of Ohio and the purchasers from the Union, and not in the names of Ohio and the Union. But what would become of this legal fiction if the Federal purchaser was con- firmed in his right by the courts of the Union while the other competitor was ordered to retain possession by the tribunals of the state of Ohio?
39 Kent’s Commentaries, Vol. I, p. 244. I have selected an example that relates to a time long after the promulgation of the present Constitution. If I had gone back to the days of the Confederation, I might have given still more striking instances. The whole nation was at that time in a state of high enthusiasm- the Revolution was represented by a man who was the idol of the people; but at that very period, Congress, to say the truth, had no resources at all at its disposal. Troops and supplies were perpetually wanting. The best-devised projects failed in their execution, and the Union, constantly on the verge of destruction, was saved by the weakness of its enemies far more than by its own strength.
40 See Appendix O.
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