THE FEDERAL CONSTITUTION.
I have hitherto considered each state as a separate whole, and I have
explained the different springs which the people sets in motion, and the
different means of action which it employs. But all the states which I
have considered as independent are forced to submit, in certain cases,
to the supreme authority of the Union. The time is now come for me to
examine the partial sovereignty which has been conceded to the Union,
and to cast a rapid glance over the federal constitution.[119]
* * * * *
HISTORY OF THE FEDERAL CONSTITUTION.
Origin of the first Union.--Its Weakness.--Congress appeals to the
constituent Authority.--Interval of two Years between the Appeal and the
Promulgation of the new Constitution.
The thirteen colonies which simultaneously threw off the yoke of
England toward the end of the last century, possessed, as I have already
observed, the same religion, the same language, the same customs, and
almost the same laws; they were struggling against a common enemy; and
these reasons were sufficiently strong to unite them one to another, and
to consolidate them into one nation. But as each of them had enjoyed
a separate existence, and a government within its own control, the
peculiar interests and customs which resulted from this system, were
opposed to a compact and intimate union, which would have absorbed the
individual importance of each in the general importance of all. Hence
arose two opposite tendencies, the one prompting the Anglo-Americans to
unite, the other to divide their strength. As long as the war with
the mother-country lasted, the principle of union was kept alive by
necessity; and although the laws which constituted it were defective,
the common tie subsisted in spite of their imperfections.[120] But no
sooner was peace concluded than the faults of the legislation became
manifest, and the state seemed to be suddenly dissolved. Each colony
became an independent republic, and assumed an absolute sovereignty. The
federal government, condemned to impotence by its constitution, and no
longer sustained by the presence of a common danger, saw 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 of the nation.[121]
If America ever approached (for however brief a time) that lofty
pinnacle of glory to which the proud fancy of its inhabitants is wont
to point, it was at the solemn moment at which the power of the nation
abdicated, as it were, the empire of the land. All ages have
furnished the spectacle of a people struggling with energy to win its
independence; and the efforts of the Americans in throwing off the
English yoke have been considerably exaggerated. Separated from their
enemies by three thousand miles of ocean, and backed by a powerful ally,
the success of the United States may be more justly attributed to
their geographical position, than to the valor of their armies or the
patriotism of their citizens. It would be ridiculous to compare the
American war to the wars of the French revolution, or the efforts of the
Americans to those of the French, who, when they were attacked by the
whole of Europe, without credit and without allies, were still capable
of opposing a twentieth part of their population to their foes, and
of bearing the torch of revolution beyond their frontiers while they
stifled its devouring flame within the bosom of their country. But it
is a novelty in the history of society to see a great people turn a calm
and scrutinizing eye upon itself when apprised by the legislature that
the wheels of government had stopped; to see it carefully examine the
extent of the evil, and patiently wait for two whole years until a
remedy was discovered, which it voluntarily adopted without having wrung
a tear or a drop of blood from mankind. At the time when the inadequacy
of the first constitution was discovered, America possessed the double
advantage of that calm which had succeeded the effervescence of the
revolution, and of those great men who had led the revolution to a
successful issue. The assembly which accepted the task of composing
the second constitution was small;[122] but George Washington was its
president, and it contained the choicest talents and the noblest hearts
which had ever appeared in the New World. This national commission,
after long and mature deliberation, offered to the acceptance of the
people the body of general laws which still rules the Union. All
the states adopted it successively.[123] The new federal government
commenced its functions in 1789, after an interregnum of two years. The
revolution of America terminated when that of France began.
* * * * *
SUMMARY OF THE FEDERAL CONSTITUTION.
Division of Authority between the Federal Government and the
States.--The Government of the States is the Rule: the Federal
Government the Exception.
The first question which awaited the Americans was intricate, and by no
means easy of solution; the object was so to divide the authority of
the different states which composed the Union, that each of them should
continue to govern itself in all that concerned its internal prosperity,
while the entire nation, represented by the Union, should continue to
form a compact body, and to provide for the exigencies of the people. It
was as impossible to determine beforehand, with any degree of accuracy,
the share of authority which each of the two governments was to enjoy,
as to foresee all the incidents in the existence of a nation.
The obligations and the claims of the federal government were simple
and easily definable, because the Union had been formed with the express
purpose of meeting the general exigencies of the people; but the claims
and obligations of the states were, on the other hand, complicated and
various, because those governments penetrated into all the details of
social life. The attributes of the federal government were, therefore,
carefully enumerated, and all that was not included among them
was declared to constitute a part of the privileges of the several
governments of the states. Thus the government of the states remained
the rule, and that of the confederation became the exception.[124]
But as it was foreseen, that, in practice, questions might arise as to
the exact limits of this exceptional authority, and that it would be
dangerous to submit these questions to the decision of the ordinary
courts of justice, established in the states by the states themselves,
a high federal court was created,[125] which was destined, among other
functions, to maintain the balance of power which had been established
by the constitution between the two rival governments.[126]
* * * * *
PREROGATIVE OF THE FEDERAL GOVERNMENT.
Power of declaring War, making Peace, and levying general Taxes vested
in the Federal Government.--What Part of the internal Policy of the
Country it may direct.--The Government of the Union in some respects
more central than the King's Government in the old French monarchy.
The external relations of a people may be compared to those of private
individuals, and they cannot be advantageously maintained without the
agency of the single head of a government. The exclusive right of making
peace and war, of concluding treaties of commerce, of raising armies,
and equipping fleets, was therefore granted to the Union.[127] 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 which can only be attended to with advantage by a
general authority. The Union was invested with the power of controlling
the monetary system, of directing the post-office, and of opening the
great roads which were to establish communication between the different
parts of the country.[128] The independence of the government of each
state was formally recognized in its sphere; nevertheless the federal
government was authorized to interfere in the internal affairs of the
states[129] in a few predetermined cases, in which an indiscreet abuse
of their independence might compromise the security of the Union at
large. Thus, while the power of modifying and changing their legislation
at pleasure was preserved in all the republics, they were forbidden
to enact _ex post facto_ laws, or to create a class of nobles in their
community.[130] Lastly, as it was necessary that the federal government
should be able to fulfil its engagements, it was endowed with an
unlimited power of levying taxes.[131]
In examining the balance of power as established by the federal
constitution; in remarking on the one hand the portion of sovereignty
which has been reserved to the several states, and on the other the
share of power which the Union has assumed, it is evident that the
federal legislators entertained the clearest and most accurate notions
on the nature of the centralisation of government. The United States
form not only a republic, but a confederation; nevertheless the
authority of the nation is more central than it was in several of the
monarchies of Europe when the American constitution was formed. Take,
for instance, the two following examples:--
Thirteen supreme courts of justice existed in France, which, generally
speaking, had the right of interpreting the law without appeal; and
those provinces, styled _pays d'etats_, were authorized to refuse
their assent to an impost which had been levied by the sovereign who
represented the nation.
In the Union there is but one tribunal to interpret, as there is one
legislature to make the laws; and an impost voted by the representatives
of the nation is binding upon all the citizens.
In these two essential points, therefore, the Union exercises more
central authority than the French monarchy possessed, although the Union
is only an assemblage of confederate republics.
In Spain certain provinces had the right of establishing a system of
customhouse duties peculiar to themselves, although that privilege
belongs, by its very nature, to the national sovereignty. In America the
congress alone has the right of regulating the commercial relations
of the states. The government of the confederation is therefore more
centralized in this respect than the kingdom of Spain. It is true that
the power of the crown in France or in Spain was always able to obtain
by force whatever the constitution of the country denied, and that the
ultimate result was consequently the same; and I am here discussing the
theory of the constitution.
* * * * *
FEDERAL POWERS.
After having settled the limits within which the federal government
was to act, the next point was to determine the powers which it was to
exert.
* * * * *
LEGISLATIVE POWERS.
Division of the legislative Body into two Branches.--Difference in the
Manner of forming the two Houses.--The Principle of the Independence of
the States predominates in the Formation of the Senate.--The Principle
of the Sovereignty of the Nation in the Composition of the House of
Representatives.--Singular Effects of the Fact that a Constitution can
only be Logical in the early Stages of a Nation.
The plan which had been laid down beforehand for the constitution of the
several states was followed, in many points, in the organization of the
powers of the Union. The federal legislature of the Union was composed
of a senate and a house of Representatives. A spirit of conciliation
prescribed the observance of distinct principles in the formation of
each of these two assemblies. I have already shown that two contrary
interests were opposed to each other in the establishment of the federal
constitution. These two interests had given rise to two opinions. It was
the wish of one party to convert the Union into a league of independent
states, or a sort of congress, at which the representatives of the
several peoples would meet to discuss certain points of their common
interests. The other party desired to unite the inhabitants of the
American colonies into one sole nation, and to establish a government,
which should act as the sole representative of the nation, as far as the
limited sphere of its authority would permit. The practical consequences
of these two theories were exceedingly different.
The question was, whether a league was to be established instead of a
national government; whether the majority of the states, instead of a
majority of the inhabitants of the Union, was to give the law; for every
state, the small as well as the great, then retained the character of
an independent power, and entered the Union upon a footing of perfect
equality. If, on the contrary, the inhabitants of the United States were
to be considered as belonging to one and the same nation, it was natural
that the majority of the citizens of the Union should prescribe the law.
Of course the lesser states could not subscribe to the application of
this doctrine without, in fact, abdicating their existence in relation
to the sovereignty of the confederation; since they would have passed
from the condition of a co-equal and co-legislative authority, to that
of an insignificant fraction of a great people. The former system would
have invested them with an excessive authority, the latter would have
annulled their influence altogether. Under these circumstances, the
result was, that the strict rules of logic were evaded, as is usually
the case when interests are opposed to arguments. A middle course was
hit upon by the legislators, which brought together by force two systems
theoretically irreconcilable.
The principle of the independence of the states prevailed in the
formation of the senate, and that of the sovereignty of the nation
predominated in the composition of the house of representatives. It
was decided that each state should send two senators to congress, and
a number of representatives proportioned to its population.[132] It
results from this arrangement that the state of New York has at the
present day forty representatives, and only two senators; the state of
Delaware has two senators, and only one representative; the state of
Delaware is therefore equal to the state of New York in the senate,
while the latter has forty times the influence of the former in
the house of representatives. Thus, if the minority of the nation
preponderates in the senate, it may paralyze the decisions of the
majority represented in the other house, which is contrary to the spirit
of constitutional government.
The facts show how rare and how difficult it is rationally and logically
to combine all the several parts of legislation. In the course of time
different interests arise, and different principles are sanctioned by
the same people; and when a general constitution is to be established,
these interests and principles are so many natural obstacles to the
rigorous application of any political system, with all its consequences.
The early stages of national existence are the only periods at which it
is possible to maintain the complete logic of legislation; and when we
perceive a nation in the enjoyment of this advantage, before we hasten
to conclude that it is wise, we should do well to remember that it
is young. When the federal constitution was formed, the interest of
independence for the separate states, and the interest of union for
the whole people, were the only two conflicting interests which existed
among the Anglo-Americans; and a compromise was necessarily made between
them.
It is, however, just to acknowledge that this part of the constitution
has not hitherto produced those evils which might have been feared. All
the states are young and contiguous; their customs, their ideas, and
their wants, are not dissimilar; and the differences which result from
their size or inferiority do not suffice to set their interests at
variance. The small states have consequently never been induced to
league themselves together in the senate to oppose the designs of the
larger ones; and indeed there is so irresistible an authority in the
legitimate expression of the will of a people, that the senate could
offer but a feeble opposition to the vote of the majority of the house
of representatives.
It must not be forgotten, on the other hand, that it was not in the
power of the American legislators to reduce to a single nation the
people for whom they were making laws. The object of the federal
constitution was not to destroy the independence of the states, but
to restrain it. By acknowledging the real authority of these secondary
communities (and it was impossible to deprive them of it), they
disavowed beforehand the habitual use of constraint in enforcing the
decisions of the majority. Upon this principle the introduction of the
influence of the states into the mechanism of the federal government was
by no means to be wondered at; since it only attested the existence
of an acknowledged power, which was to be humored, and not forcibly
checked.
* * * * *
A FARTHER DIFFERENCE BETWEEN THE SENATE AND THE HOUSE OF
REPRESENTATIVES.
The Senate named by the provincial Legislature--the Representatives,
by the People.--Double Election of the Former--Single Election of the
Latter.--Term of the different Offices.--Peculiar Functions of each
House.
The senate not only differs from the other house in the principle which
it represents, but also in the mode of its election, in the term for
which it is chosen, and in the nature of its functions. The house of
representatives is named by the people, the senate by the legislators of
each state; the former is directly elected; the latter is elected by an
elected body; the term for which the representatives are chosen is only
two years, that of the senators is six. The functions of the house of
representatives are purely legislative, and the only share it takes in
the judicial power is in the impeachment of public officers. The senate
co-operates in the work of legislation, and tries those political
offences which the house of representatives submits to its decision.
It also acts as the great executive council of the nation; the treaties
which are concluded by the president must be ratified by the senate; and
the appointments he may make must be definitively approved by the same
body.[133]
* * * * *
THE EXECUTIVE POWER.[134]
Dependence of the President--He is Elective and Responsible.--He is
Free to act in his own Sphere under the Inspection, but not under
the Direction, of the Senate.--His Salary fixed at his Entry into
Office.--Suspensive Veto.
The American legislators undertook a difficult task in attempting to
create an executive power dependent on the majority of the people and
nevertheless sufficiently strong to act without restraint in its own
sphere. It was indispensable to the maintenance of the republican form
of government that the representatives of the executive power should be
subject to the will of the nation.
The president is an elective magistrate. His honor, his property, his
liberty, and his life, are the securities which the people has for the
temperate use of his power. But in the exercise of his authority he
cannot be said to be perfectly independent; the senate takes cognizance
of his relations with foreign powers, and of the distribution of public
appointments, so that he can neither be bribed, nor can he employ the
means of corruption. The legislators of the Union acknowledged that the
executive power would be incompetent to fulfill its task with dignity
and utility, unless it enjoyed a greater degree of stability and of
strength than had been granted to it in the separate states.
The president is chosen for four years, and he may be re-elected; so
that the chances of a prolonged administration may inspire him with
hopeful undertakings for the public good, and with the means of carrying
them into execution. The president was made the sole representative of
the executive power of the Union; and care was taken not to render his
decisions subordinate to the vote of a council--a dangerous measure,
which tends at the same time to clog the action of the government and
to diminish its responsibility. The senate has the right of annulling
certain acts of the president; but it cannot compel him to take any
steps, nor does it participate in the exercise of the executive power.
The action of the legislature on the executive power may be direct; and
we have just shown that the Americans carefully obviated this influence;
but it may, on the other hand, be indirect. Public assemblies which have
the power of depriving an officer of state of his salary, encroach upon
his independence; and as they are free to make the laws, it is to be
feared lest they should gradually appropriate to themselves a portion
of that authority which the constitution had vested in his hands. This
dependence of the executive power is one of the defects inherent in
republican constitutions. The Americans have not been able to counteract
the tendency which legislative assemblies have to get possession of the
government, but they have rendered this propensity less irresistible.
The salary of the president is fixed, at the time of his entering
upon office, for the whole period of his magistracy. The president is,
moreover, provided with a suspensive veto, which allows him to oppose
the passing of such laws as might destroy the portion of independence
which the constitution awards him. The struggle between the president
and the legislature must always be an unequal one, since the latter is
certain of bearing down all resistance by persevering in its plans; but
the suspensive veto forces it at least to reconsider the matter, and,
if the motion be persisted in, it must then be backed by a majority of
two-thirds of the whole house. The veto is, in fact, a sort of appeal
to the people. The executive power, which, without this security, might
have been secretly oppressed, adopts this means of pleading its
cause and stating its motives. But if the legislature is certain of
overpowering all resistance by persevering in its plans, I reply, that
in the constitutions of all nations, of whatever kind they may be, a
certain point exists at which the legislator is obliged to have recourse
to the good sense and the virtue of his fellow-citizens. This point
is more prominent and more discoverable in republics, while it is more
remote and more carefully concealed in monarchies, but it always exists
somewhere. There is no country in the world in which everything can be
provided for by the laws, or in which political institutions can prove a
substitute for common sense and public morality.
* * * * *
DIFFERENCE BETWEEN THE POSITION OF THE PRESIDENT OF THE UNITED STATES
AND THAT OF A CONSTITUTIONAL KING OF FRANCE.
Executive Power in the United States as Limited and as Partial as the
Supremacy which it Represents.--Executive Power in France as
Universal as the Supremacy it Represents.--The King a Branch of the
Legislature.--The President the mere Executor of the Law.--Other
Differences resulting from the Duration of the two Powers.--The
President checked in the Exercise of the executive Authority.--The
King Independent in its Exercise.--Notwithstanding these
Discrepancies, France is more akin to a Republic than the Union to a
Monarchy.--Comparison of the Number of public Officers depending upon
the executive Power in the two countries.
The executive power has so important an influence on the destinies of
nations that I am inclined to pause for an instant at this portion of
my subject, in order more clearly to explain the part it sustains
in America. In order to form an accurate idea of the position of the
president of the United States, it may not be irrelevant to compare it
to that of one of the constitutional kings of Europe. In this comparison
I shall pay but little attention to the external signs of power, which
are more apt to deceive the eye of the observer than to guide his
researches. When a monarchy is being gradually transformed into a
republic, the executive power retains the titles, the honors, the
etiquette, and even the funds of royalty, long after its authority has
disappeared. The English, after having cut off the head of one king,
and expelled another from his throne, were accustomed to accost the
successors of those princes upon their knees. On the other hand, when
a republic falls under the sway of a single individual, the demeanor of
the sovereign is simple and unpretending, as if his authority was not
yet paramount. When the emperors exercised an unlimited control over
the fortunes and the lives of their fellow-citizens, it was customary to
call them Caesar in conversation, and they were in the habit of supping
without formality at their friends' houses. It is therefore necessary to
look below the surface.
The sovereignty of the United States is shared between the Union and the
states, while in France it is undivided and compact: hence arises the
first and the most notable difference which exists between the president
of the United States and the king of France. In the United States the
executive power is as limited and partial as the sovereignty of the
Union in whose name it acts; in France it is as universal as the
authority of the state. The Americans have a federal, and the French a
national government.
The first cause of inferiority results from the nature of things, but it
is not the only one; the second in importance is as follows: sovereignty
may be defined to be the right of making laws: in France, the king
really exercises a portion of the sovereign power, since the laws have
no weight till he has given his assent to them; he is moreover the
executor of all they ordain. The president is also the executor of the
laws, but he does not really co-operate in their formation, since the
refusal of his assent does not annul them. He is therefore merely to be
considered as the agent of the sovereign power. But not only does
the king of France exercise a portion of the sovereign power, he also
contributes to the nomination of the legislature, which exercises the
other portion. He has the privilege of appointing the members of one
chamber, and of dissolving the other at his pleasure; whereas the
president of the United States has no share in the formation of the
legislative body, and cannot dissolve any part of it. The king has the
same right of bringing forward measures as the chambers; a right which
the president does not possess. The king is represented in each assembly
by his ministers, who explain his intentions, support his opinions,
and maintain the principles of the government. The president and his
ministers are alike excluded from congress; so that his influence and
his opinions can only penetrate indirectly into that great body. The
king of France is therefore on an equal footing with the legislature,
which can no more act without him, than he can without it. The president
exercises an authority inferior to, and depending upon, that of the
legislature.
Even in the exercise of the executive power, properly so called, the
point upon which his position seems to be almost analogous to that
of the king of France--the president labors under several causes of
inferiority. The authority of the king, in France, has, in the first
place, the advantage of duration over that of the president: and
durability is one of the chief elements of strength; nothing is either
loved or feared but what is likely to endure. The president of the
United States is a magistrate elected for four years. The king, in
France, is an hereditary sovereign.
In the exercise of the executive power the president of the United
States is constantly subject to jealous scrutiny. He may make, but he
cannot conclude a treaty; he may designate, but he cannot appoint, a
public officer.[135] The king of France is absolute in the sphere of the
executive power.
The president of the United States is responsible for his actions; but
the person of the king is declared inviolable by the French charter.
Nevertheless, the supremacy of public opinion is no less above the head
of one than of the other. This power is less definite, less evident,
and less sanctioned by the laws in France than in America, but in
fact exists. In America it acts by elections and decrees; in France it
proceeds by revolutions; but notwithstanding the different constitutions
of these two countries, public opinion is the predominant authority
in both of them. The fundamental principle of legislation--a principle
essentially republican--is the same in both countries, although its
consequences may be different, and its results more or less extensive.
Whence I am led to conclude, that France with its king is nearer akin to
a republic, than the Union with its president is to a monarchy.
In what I have been saying I have only touched upon the main points
of distinction; and if I could have entered into details, the contrast
would have been rendered still more striking.
I have remarked that the authority of the president in the United States
is only exercised within the limits of a partial sovereignty, 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 they 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
government. This number now exceeds all previous limits; it amounts to
138,000[136] 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.[137]
[Those who are desirous of tracing the question respecting the power
of the president to remove every executive officer of the government
without the sanction of the senate, will find some light upon it by
referring to 5th Marshall's Life of Washington, p. 196: 5 Sergeant and
Rawle's Reports (Pennsylvania), 451: Elliot's Debates on the Federal
Constitution, vol iv., p. 355, contains the debate in the House of
Representatives, June 16, 1799, when the question was first mooted:
Report of a committee of the senate in 1822, in Niles's Register of 29th
August in that year. It is certainly very extraordinary that such a vast
power, and one so extensively affecting the whole administration of the
government, should rest on such slight foundations, as an _inference_
from an act of congress, providing that when the secretary of the
treasury should be removed by the president, his assistant should
discharge the duties of the office. How congress could confer the
power, even by a direct act, is not perceived. It must be a necessary
implication from the words of the constitution, or it does not exist.
It has been repeatedly denied in and out of congress, and must be
considered, as yet, an unsettled question.--_American Editor_.]
* * * * *
ACCIDENTAL CAUSES WHICH MAY INCREASE THE INFLUENCE OF THE EXECUTIVE.
External security of the Union.--Army of six thousand Men.--Few
Ships.--The President has no Opportunity of exercising his great
Prerogatives.--In the Prerogatives he exercises he is weak.
If the executive power is feebler in America than in France, the cause
is more attributable to the circumstances than to the laws of the
country.
It is chiefly in its foreign relations that the executive power of a
nation is called upon to exert its skill and vigor. If the existence of
the Union were perpetually threatened, and its chief interest were in
daily connexion with those of other powerful nations, the executive
government would assume an increased importance in proportion to the
measures expected of it, and those which it would carry into effect. The
president of the United States is the commander-in-chief of the army,
but of an army composed of only six thousand men; he commands the fleet,
but the fleet reckons but few sail; he conducts the foreign relations
of the Union, but the United States are a nation without neighbors.
Separated from the rest of the world by the ocean, and too weak as yet
to aim at the dominion of the seas, they have no enemies, and their
interests rarely come into contact with those of any other nation of the
globe.
The practical part of a government must not be judged by the theory
of its constitution. The president of the United States is in the
possession of almost royal prerogatives, which he has no opportunity of
exercising; and those privileges which he can at present use are very
circumscribed: the laws allow him to possess a degree of influence which
circumstances do not permit him to employ.
On the other hand, the great strength of the royal prerogative in
France arises from circumstances far more than from the laws. There
the executive government is constantly struggling against prodigious
obstacles, and exerting all its energies to repress them; so that it
increases by the extent of its achievements, and by the importance
of the events it controls, without, for that reason, modifying its
constitution. If the laws had made it as feeble and as circumscribed as
it is in the Union, its influence would very soon become much greater.
* * * * *
WHY THE PRESIDENT OF THE UNITED STATES DOES NOT REQUIRE THE MAJORITY OF
THE TWO HOUSES IN ORDER TO CARRY ON THE GOVERNMENT.
It is an established axiom in Europe that a constitutional king cannot
persevere in a system of government which is opposed by the two other
branches of the legislature. But several presidents of the United States
have been known to lose the majority in the legislative body, without
being obliged to abandon the supreme power, and without inflicting a
serious evil upon society. I have heard this fact quoted as an instance
of the independence and power of executive government in America: a
moment's reflection will convince us, on the contrary, that it is a
proof of its extreme weakness.
A king in Europe requires the support of the legislature to enable him
to perform the duties imposed upon him by the constitution, because
those duties are enormous. A constitutional king in Europe is not merely
the executor of the law, but the execution of its provisions devolves so
completely upon him, that he has the power of paralyzing its influence
if it opposes his designs. He requires the assistance of the legislative
assemblies to make the law, but those assemblies stand in need of his
aid to execute it: these two authorities cannot subsist without each
other, and the mechanism of government is stopped as soon as they are at
variance.
In America the president cannot prevent any law from being passed, nor
can he evade the obligation of enforcing it. His sincere and zealous
co-operation is no doubt useful, but it is not indispensable in the
carrying on of public affairs. All his important acts are directly or
indirectly submitted to the legislature; and where he is independent
of it he can do but little. It is therefore his weakness, and not his
power, which enables him to remain in opposition to congress. In Europe,
harmony must reign between the crown and the other branches of the
legislature, because a collision between them may prove serious; in
America, this harmony is not indispensable, because such a collision is
impossible.
* * * * *
ELECTION OF THE PRESIDENT.
Dangers of the elective System increase in Proportion to the Extent of
the Prerogative.--This System possible in America because no powerful
executive Authority is required.--What Circumstances are favorable to
the elective System.--Why the Election of the President does not cause
a Deviation from the Principles of the Government.--Influence of the
Election of the President on secondary Functionaries.
The dangers of the system of election applied to the head of the
executive government of a great people, have been sufficiently
exemplified by experience and by history; and the remarks I am about
to make refer to America alone. These dangers may be more or less
formidable in proportion to the place which the executive power
occupies, and to the importance it possesses in the state; and they may
vary according to the mode of election, and the circumstances in which
the electors are placed. The most weighty argument against the election
of a chief-magistrate is, that it offers so splendid a lure to private
ambition, and is so apt to inflame men in the pursuit of power, that
when legitimate means are wanting, force may not unfrequently seize what
right denies.
It is clear that the greater the privileges of the executive authority
are, the greater is the temptation; the more the ambition of the
candidates is excited, the more warmly are their interests espoused by
a throng of partisans who hope to share the power when their patron has
won the prize. The dangers of the elective system increase, therefore,
in the exact ratio of the influence exercised by the executive power
in the affairs of state. The revolutions of Poland are not solely
attributable to the elective system in general, but to the fact that the
elected magistrate was the head of a powerful monarchy. Before we can
discuss the absolute advantages of the elective system, we must make
preliminary inquiries as to whether the geographical position, the laws,
the habits, the manners, and the opinions of the people among whom it
is to be introduced, will admit of the establishment of a weak
and dependent executive government; for to attempt to render the
representative of the state a powerful sovereign, and at the same time
elective, is, in my opinion, to entertain two incompatible designs. To
reduce hereditary royalty to the condition of an elective authority, the
only means that I am acquainted with are to circumscribe its sphere
of action beforehand, gradually to diminish its prerogatives, and to
accustom the people to live without its protection. Nothing, however, is
farther from the designs of the republicans of Europe than this course:
as many of them only owe their hatred of tyranny to the sufferings which
they have personally undergone, the extent of the executive power does
not excite their hostility, and they only attack its origin without
perceiving how nearly the two things are connected.
Hitherto no citizen has shown any disposition to expose his honor and
his life, in order to become the president of the United States; because
the power of that office is temporary, limited, and subordinate. The
prize of fortune must be great to encourage adventurers in so desperate
a game. No candidate has as yet been able to arouse the dangerous
enthusiasm or the passionate sympathies of the people in his favor, for
the very simple reason, that when he is at the head of the government he
has but little power, but little wealth, and but little glory to share
among his friends; and his influence in the state is too small for the
success or the ruin of a faction to depend upon the elevation of an
individual to power.
The great advantage of hereditary monarchies is, that as the private
interest of a family is always intimately connected with the interests
of the state, the executive government is never suspended for a single
instant; and if the affairs of a monarchy are not better conducted than
those of a republic, at least there is always some one to conduct them,
well or ill, according to his capacity. In elective states, on the
contrary, the wheels of government cease to act, as it were of their own
accord, at the approach of an election, and even for some time previous
to that event. The laws may indeed accelerate the operation of the
election, which may be conducted with such simplicity and rapidity that
the seat of power will never be left vacant; but, notwithstanding these
precautions, a break necessarily occurs in the minds of the people.
At the approach of an election the head of the executive government is
wholly occupied by the coming struggle; his future plans are doubtful;
he can undertake nothing new, and he will only prosecute with
indifference those designs which another will perhaps terminate. "I am
so near the time of my retirement from office," said President Jefferson
on the 21st of January, 1809 (six weeks before the election), "that I
feel no passion, I take no part, I express no sentiment. It appears
to me just to leave to my successor the commencement of those measures
which he will have to prosecute, and for which he will be responsible."
On the other hand, the eyes of the nation are centred on a single point;
all are watching the gradual birth of so important an event. The wider
the influence of the executive power extends, the greater and the
more necessary is its constant action, the more fatal is the term of
suspense; and a nation which is accustomed to the government, or, still
more, one used to the administrative protection of a powerful executive
authority, would be infallibly convulsed by an election of this kind.
In the United States the action of the government may be slackened with
impunity, because it is always weak and circumscribed.
One of the principal vices of the elective system is, that it always
introduces a certain degree of instability into the internal and
external policy of the state. But this disadvantage is less sensibly
felt if the share of power vested in the elected magistrate is small. In
Rome the principles of the government underwent no variation, although
the consuls were changed every year, because the senate, which was an
hereditary assembly, possessed the directing authority. If the elective
system were adopted in Europe, the condition of most of the monarchical
states would be changed at every new election. In America the president
exercises a certain influence on state affairs, but he does not conduct
them; the preponderating power is vested in the representatives of the
whole nation. The political maxims of the country depend therefore on
the mass of the people, not on the president alone; and consequently
in America the elective system has no very prejudicial influence on the
fixed principles of the government. But the want of fixed principles is
an evil so inherent in the elective system, that it is still extremely
perceptible in the narrow sphere to which the authority of the president
extends.
The Americans have admitted that the head of the executive power, who
has to bear the whole responsibility of the duties he is called upon to
fulfil, ought to be empowered to choose his own agents, and to remove
them at pleasure: the legislative bodies watch the conduct of the
president more than they direct it. The consequence of this arrangement
is, that at every new election the fate of all the federal public
officers is in suspense. Mr. Quincy Adams, on his entry into office,
discharged the majority of the individuals who had been appointed by his
predecessor; and I am not aware that General Jackson allowed a single
removeable functionary employed in the federal service to retain
his place beyond the first year which succeeded his election. It is
sometimes made a subject of complaint, that in the constitutional
monarchies of Europe the fate of the humbler servants of an
administration depends upon that of the ministers. But in elective
governments this evil is far greater. In a constitutional monarchy
successive ministers are rapidly formed; but as the principal
representative of the executive power does not change, the spirit of
innovation is kept within bounds; the changes which take place are in
the details rather than in the principles of the administrative system;
but to substitute one system for another, as is done in America
every four years by law, is to cause a sort of revolution. As to the
misfortunes which may fall upon individuals in consequence of this state
of things, it must be allowed that the uncertain situation of the
public officers is less fraught with evil consequences in America than
elsewhere. It is so easy to acquire an independent position in the
United States, that the public officer who loses his place may be
deprived of the comforts of life, but not of the means of subsistence.
I remarked at the beginning of this chapter that the dangers of the
elective system applied to the head of the state, are augmented or
decreased by the peculiar circumstances of the people which adopts it.
However the functions of the executive power may be restricted, it
must always exercise a great influence upon the foreign policy of the
country, for a negotiation cannot be opened or successfully carried
on otherwise than by a single agent. The more precarious and the more
perilous the position of a people becomes, the more absolute is the want
of a fixed and consistent external policy, and the more dangerous does
the elective system of the chief magistrate become. The policy of the
Americans in relation to the whole world is exceedingly simple; and it
may almost be said that no country stands in need of them, nor do they
require the co-operation of any other people. Their independence is
never threatened. In their present condition, therefore, the functions
of the executive power are no less limited by circumstances, than by the
laws; and the president may frequently change his line of policy without
involving the state in difficulty or destruction.
Whatever the prerogatives of the executive power may be, the period
which immediately precedes an election, and the moment of its duration,
must always be considered as a national crisis, which is perilous in
proportion to the internal embarrassments and the external dangers of
the country. Few of the nations of Europe could escape the calamities
of anarchy or of conquest, every time they might have to elect a new
sovereign. In America society is so constituted that it can stand
without assistance upon its own basis; nothing is to be feared from the
pressure of external dangers; and the election of the president is a
cause of agitation, but not of ruin.
* * * * *
MODE OF ELECTION.
Skill of the American Legislators shown in the Mode of Election adopted
by them.--Creation of a special electoral Body.--Separate Votes of these
Electors.--Case in which the House of Representatives is called upon to
choose the President.--Results of the twelve Elections which have taken
Place since the Constitution has been established.
Beside the dangers which are inherent in the system, many other
difficulties may arise from the mode of election, which may be obviated
by the precaution of the legislator. When a people met in arms on some
public spot to choose its head, it was exposed to all the chances of
civil war resulting from so martial a mode of proceeding, beside
the dangers of the elective system in itself. The Polish laws, which
subjected the election of the sovereign to the veto of a single
individual, suggested the murder of that individual, or prepared the way
to anarchy.
In the examination of the institutions, and the political as well as the
social condition of the United States, we are struck by the admirable
harmony of the gifts of fortune and the efforts of man. That nation
possessed two of the main causes of internal peace; it was a new
country, but it was inhabited by a people grown old in the exercise of
freedom. America had no hostile neighbors to dread; and the American
legislators, profiting by these favorable circumstances, created a weak
and subordinate executive power, which could without danger be made
elective.
It then only remained for them to choose the least dangerous of the
various modes of election; and the rules which they laid down upon this
point admirably complete the securities which the physical and political
constitution of the country already afforded. Their object was to find
the mode of election which would best express the choice of the people
with the least possible excitement and suspense. It was admitted in
the first place that the _simple_ majority should be decisive; but the
difficulty was to obtain this majority without an interval of delay
which it was most important to avoid. It rarely happens that an
individual can at once collect the majority of the suffrages of a great
people; and this difficulty is enhanced in a republic of confederate
states, where local influences are apt to preponderate. The means by
which it was proposed to obviate this second obstacle was to delegate
the electoral powers of the nation to a body of representatives. The
mode of election rendered a majority more probable; for the fewer the
electors are, the greater is the chance of their coming to a final
decision. It also offered an additional probability of a judicious
choice. It then remained to be decided whether this right of election
was to be intrusted to the legislative body, the habitual representative
assembly of the nation, or whether an electoral assembly should be
formed for the express purpose of proceeding to the nomination of a
president. The Americans chose the latter alternative, from a belief
that the individuals who were returned to make the laws were incompetent
to represent the wishes of the nation in the election of its chief
magistrate; and that as they are chosen for more than a year, the
constituency they represented might have changed its opinion in that
time. It was thought that if the legislature was empowered to elect the
head of the executive power, its members would, for some time before the
election, be exposed to the manoeuvres of corruption, and the tricks of
intrigue; whereas, the special electors would, like a jury, remain mixed
up with the crowd till the day of action, when they would appear for the
sole purpose of giving their votes.
It was therefore established that every state should name a certain
number of electors,[138] who in their turn should elect the president;
and as it had been observed that the assemblies to which the choice of
a chief magistrate had been intrusted in elective countries, inevitably
became the centres of passion and of cabal; that they sometimes usurped
an authority which did not belong to them: and that their proceedings,
or the uncertainty which resulted from them, were sometimes prolonged so
much as to endanger the welfare of the state, it was determined that the
electors should all vote upon the same day, without being convoked to
the same place.[139] This double election rendered a majority probable,
though not certain; for it was possible that as many differences might
exist between the electors as between their constituents. In this case
it was necessary to have recourse to one of three measures; either
to appoint new electors, or to consult a second time those already
appointed, or to defer the election to another authority. The first
two of these alternatives, independently of the uncertainty of their
results, were likely to delay the final decision, and to perpetuate
an agitation which must always be accompanied with danger. The third
expedient was therefore adopted, and it was agreed that the votes should
be transmitted sealed to the president of the senate, and that they
should be opened and counted in the presence of the senate and the house
of representatives. If none of the candidates has a majority, the house
of representatives then proceeds immediately to elect the president; but
with the condition that it must fix upon one of the three candidates who
have the highest numbers.[140]
Thus it is only in case of an event which cannot often happen, and which
can never be foreseen, that the election is intrusted to the ordinary
representatives of the nation; and even then they are obliged to choose
a citizen who has already been designated by a powerful minority of the
special electors. It is by this happy expedient that the respect due to
the popular voice is combined with the utmost celerity of execution
and those precautions which the peace of the country demands. But
the decision of the question by the house of representatives does not
necessarily offer an immediate solution of the difficulty, for the
majority of that assembly may still be doubtful, and in this case the
constitution prescribes no remedy. Nevertheless, by restricting the
number of candidates to three, and by referring the matter to the
judgment of an enlightened public body, it has smoothed all the
obstacles[141] which are not inherent in the elective system.
In the forty years which have elapsed since the promulgation of the
federal constitution, the United States have twelve times chosen a
president. Ten of these elections took place simultaneously by the
votes of the special electors in the different states. The house of
representatives has only twice exercised its conditional privilege of
deciding in cases of uncertainty: the first time was at the election
of Mr. Jefferson in 1801; the second was in 1825, when Mr. John Quincy
Adams was chosen.
* * * * *
CRISIS OF THE ELECTION.
The election may be considered as a national Crisis.--Why?--Passions
of the People.--Anxiety of the President.--Calm which succeeds the
Agitation of the Election.
I have shown what the circumstances are which favored the adoption of
the elective system in the United States, and what precautions were
taken by the legislators to obviate its dangers. The Americans are
accustomed to all kinds of elections; and they know by experience the
utmost degree of excitement which is compatible with security. The vast
extent of the country, and the dissemination of the inhabitants, render
a collision between parties less probable and less dangerous there than
elsewhere. The political circumstances under which the elections have
hitherto been carried on, have presented no real embarrassments to the
nation.
Nevertheless, the epoch of the election of a president of the United
States may be considered as a crisis in the affairs of the nation. The
influence which he exercises on public business is no doubt feeble and
indirect; but the choice of the president, which is of small importance
to each individual citizen, concerns the citizens collectively; and
however trifling an interest may be, it assumes a great degree of
importance as soon as it becomes general. The president possesses but
few means of rewarding his supporters in comparison to the kings of
Europe; but the places which are at his disposal are sufficiently
numerous to interest, directly or indirectly, several thousand electors
in his success. Moreover, political parties in the United States, as
well as elsewhere, are led to rally around an individual, in order to
acquire a more tangible shape in the eyes of the crowd, and the name
of the candidate for the presidency is put forth as the symbol and
personification of their theories. For these reasons parties are
strongly interested in gaining the election, not so much with a view
to the triumph of their principles under the auspices of the president
elected, as to show, by the majority which returned him, the strength of
the supporters of those principles.
For a long while before the appointed time is at hand, the election
becomes the most important and the all-engrossing topic of discussion.
The ardor of faction is redoubled; and all the artificial passions which
the imagination can create in the bosom of a happy and peaceful land
are agitated and brought to light. The president, on the other hand,
is absorbed by the cares of self-defence. He no longer governs for the
interest of the state, but for that of his re-election; he does homage
to the majority, and instead of checking its passions, as his duty
commands him to do, he frequently courts its worst caprices. As the
election draws near, the activity of intrigue and the agitation of the
populace increase; the citizens are divided into several camps, each of
which assumes the name of its favorite candidate; the whole nation glows
with feverish excitement; the election is the daily theme of the public
papers, the subject of private conversation, the end of every thought
and every action, the sole interest of the present. As soon as the
choice is determined, this ardor is dispelled; and as a calmer season
returns, the current of the state, which has nearly broken its banks,
sinks to its usual level; but who can refrain from astonishment at the
causes of the storm?
* * * * *
RE-ELECTION OF THE PRESIDENT.
When the Head of the executive Power is re-eligible, it is the State
which is the Source of Intrigue and Corruption.--The desire of
being re-elected, the chief Aim of a President of the United
States.--Disadvantage of the System peculiar to America.--The natural
Evil of Democracy is that it subordinates all Authority to the slightest
Desires of the Majority.--The Re-election of the President encourages
this Evil.
It may be asked whether the legislators of the United States did right
or wrong in allowing the re-election of the president. It seems at first
sight contrary to all reason to prevent the head of the executive power
from being elected a second time. The influence which the talents and
the character of a single individual may exercise upon the fate of a
whole people, especially in critical circumstances or arduous times,
is well known: a law preventing the re-election of the chief magistrate
would deprive the citizens of the surest pledge of the prosperity and
the security of the commonwealth; and, by a singular inconsistency, a
man would be excluded from the government at the very time when he had
shown his ability in conducting its affairs.
But if these arguments are strong, perhaps still more powerful reasons
may be advanced against them. Intrigue and corruption are the natural
defects of elective government; but when the head of the state can be
re-elected, these evils rise to a great height, and compromise the
very existence of the country. When a simple candidate seeks to rise by
intrigue, his manoeuvres must necessarily be limited to a narrow sphere;
but when the chief magistrate enters the lists, he borrows the strength
of the government for his own purposes. In the former case the feeble
resources of an individual are in action; in the latter, the state
itself, with all its immense influence, is busied in the work of
corruption and cabal. The private citizen, who employs the most
immoral practices to acquire power, can only act in a manner indirectly
prejudicial to the public prosperity. But if the representative of the
executive descends into the lists, the cares of government dwindle into
second-rate importance, and the success of his election is his first
concern. All laws and negotiations are then to him nothing more than
electioneering schemes; places become the reward of services rendered,
not to the nation, but to its chief; and the influence of the
government, if not injurious to the country, is at least no longer
beneficial to the community for which it was created.
It is impossible to consider the ordinary course of affairs in the
United States without perceiving that the desire of being re-elected is
the chief aim of the president; that his whole administration, and even
his most indifferent measures, tend to this object; and that, as the
crisis approaches, his personal interest takes the place of his interest
in the public good. The principle of re-eligibility renders the corrupt
influence of elective governments still more extensive and pernicious.
It tends to degrade the political morality of the people, and to
substitute adroitness for patriotism.
In America it exercises a still more fatal influence on the sources of
national existence. Every government seems to be afflicted by some evil
inherent in its nature, and the genius of the legislator is shown in
eluding its attacks. A state may survive the influence of a host of bad
laws, and the mischief they cause is frequently exaggerated; but a law
which encourages the growth of the canker within must prove fatal in the
end, although its bad consequences may not be immediately perceived.
The principle of destruction in absolute monarchies lies in the
excessive and unreasonable extension of the prerogative of the crown;
and a measure tending to remove the constitutional provisions which
counterbalance this influence would be radically bad, even if its
consequences should long appear to be imperceptible. By a parity of
reasoning, in countries governed by a democracy, where the people is
perpetually drawing all authority to itself, the laws which increase or
accelerate its action are the direct assailants of the very principle of
the government.
The greatest proof of the ability of the American legislators is, that
they clearly discerned this truth, and that they had the courage to act
up to it. They conceived that a certain authority above the body of
the people was necessary, which should enjoy a degree of independence,
without however being entirely beyond the popular control; an authority
which would be forced to comply with the _permanent_ determinations of
the majority, but which would be able to resist its caprices, and to
refuse its most dangerous demands. To this end they centred the whole
executive power of the nation in a single arm; they granted extensive
prerogatives to the president, and they armed him with the veto to
resist the encroachments of the legislature.
But by introducing the principle of re-election, they partly destroyed
their work; and they rendered the president but little inclined to exert
the great power they had invested in his hands. If ineligible a second
time, the president would be far from independent of the people, for his
responsibility would not be lessened; but the favor of the people would
not be so necessary to him as to induce him to court it by humoring its
desires. If re-eligible (and this is more especially true at the present
day, when political morality is relaxed, and when great men are rare),
the president of the United States becomes an easy tool in the hands of
the majority. He adopts its likings and its animosities, he hastens to
anticipate its wishes, he forestalls its complaints, he yields to its
idlest cravings, and instead of guiding it, as the legislature intended
that he should do, he is ever ready to follow its bidding. Thus, in
order not to deprive the state of the talents of an individual, those
talents have been rendered almost useless, and to reserve an expedient
for extraordinary perils the country has been exposed to daily dangers.
[The question of the propriety of leaving the president re-eligible,
is one of that class which probably must for ever remain undecided. The
author himself, at page 125, gives a strong reason for re-eligibility,
"so that the chance of a prolonged administration may inspire him with
hopeful undertakings for the public good, and with the means of carrying
them into execution,"--considerations of great weight. There is an
important fact bearing upon this question, which should be stated in
connexion with it. President Washington established the practice of
declining a third election, and every one of his successors, either from
a sense of its propriety or from apprehensions of the force of public
opinion, has followed the example. So that it has become as much a
part of the constitution, that no citizen can be a third time elected
president, as if it were expressed in that instrument in words. This may
perhaps be considered a fair adjustment of objections on either side.
Those against a continued and perpetual re-eligibility are certainly
met: while the arguments in favor of an opportunity to prolong an
administration under circumstances that may justify it, are allowed
their due weight. One effect of this practical interpolation of the
constitution unquestionably is, to increase the chances of a president's
being once re-elected; as men will be more disposed to acquiesce in a
measure that thus practically excludes the individual from ever again
entering the field of competition.--_American Editor_]
* * * * *
FEDERAL COURTS.[142]
Political Importance of the Judiciary in the United States.--Difficulty
of treating this Subject.--Utility of judicial Power in
Confederations--What Tribunals could be introduced into
the Union.--Necessity of establishing federal Courts of
Justice.--Organization of the national Judiciary.--The Supreme
Court.--In what it differs from all known Tribunals.
I have inquired into the legislative and executive power of the Union,
and the judicial power now remains to be examined; but in this place I
cannot conceal my fears from the reader. Judicial institutions exercise
a great influence on the condition of the Anglo-Americans, and they
occupy a prominent place among what are properly called political
institutions: in this respect they are peculiarly deserving of our
attention. But I am at a loss to explain the political action of the
American tribunals without entering into some technical details on
their constitution and their forms of proceeding; and I know not how to
descend to these minutiae without wearying the curiosity of the reader
by the natural aridity of the subject, or without risking to fall into
obscurity through a desire to be succinct. I can scarcely hope to escape
these various evils; for if I appear too prolix to a man of the world,
a lawyer may on the other hand complain of my brevity. But these are the
natural disadvantages of my subject, and more especially of the point
which I am about to discuss.
The great difficulty was, not to devise the constitution of the federal
government, but to find out a method of enforcing its laws. Governments
have in general but two means of overcoming the opposition of the people
they govern, viz., the physical force which is at their own disposal,
and the moral force which they derive from the decisions of the courts
of justice.
A government which should have no other means of exacting obedience than
open war, must be very near its ruin; for one of two alternatives would
then probably occur: if its authority was small, and its character
temperate, it would not resort to violence till the last extremity,
and it would connive at a number of partial acts of insubordination,
in which case the state would gradually fall into anarchy; if it was
enterprising and powerful, it would perpetually have recourse to
its physical strength, and would speedily degenerate into a military
despotism. So that its activity would not be less prejudicial to the
community than its inaction.
The great end of justice is to substitute the notion of right for that
of violence; and to place a legal barrier between the power of the
government and the use of physical force. The authority which is awarded
to the intervention of a court of justice by the general opinion of
mankind is so surprisingly great, that it clings to the mere formalities
of justice, and gives a bodily influence to the shadow of the law. The
moral force which courts of justice possess renders the introduction of
physical force exceedingly rare, and it is very frequently substituted
for it; but if the latter proves to be indispensable, its power is
doubled by the association of the idea of law.
A federal government stands in greater need of the support of judicial
institutions than any other, because it is naturally weak, and opposed
to formidable opposition.[143] If it were always obliged to resort to
violence in the first instance, it could not fulfil its task. The Union,
therefore, required a national judiciary to enforce the obedience of the
citizens to the laws, and to repel the attacks which might be directed
against them. The question then remained what tribunals were to exercise
these privileges; were they to be intrusted to the courts of justice
which were already organized in every state? or was it necessary to
create federal courts? It may easily be proved that the Union could not
adapt the judicial power of the state to its wants. The separation
of the judiciary from the administrative power of the state, no doubt
affects the security of every citizen, and the liberty of all. But it
is no less important to the existence of the nation that these several
powers should have the same origin, should follow the same principles,
and act in the same sphere; in a word, that they should be correlative
and homogeneous. No one, I presume, ever suggested the advantage of
trying offences committed in France, by a foreign court of justice, in
order to ensure the impartiality of the judges. The Americans form one
people in relation to their federal government; but in the bosom of this
people divers political bodies have been allowed to subsist, which are
dependent on the national government in a few points, and independent
in all the rest--which have all a distinct origin, maxims peculiar to
themselves, and special means of carrying on their affairs. To intrust
the execution of the laws of the Union to tribunals instituted by these
political bodies, would be to allow foreign judges to preside over the
nation. Nay more, not only is each state foreign to the Union at
large, but it is in perpetual opposition to the common interests, since
whatever authority the Union loses turns to the advantage of the states.
Thus to enforce the laws of the Union by means of the tribunals of
the states, would be to allow not only foreign, but partial judges to
preside over the nation.
But the number, still more than the mere character, of the tribunals of
the states rendered them unfit for the service of the nation. When the
federal constitution was formed, there were already thirteen courts of
justice in the United States which decided causes without appeal. That
number is now increased to twenty-four. To suppose that a state can
subsist, when its fundamental laws may be subjected to four-and-twenty
different interpretations at the same time, is to advance a proposition
alike contrary to reason and to experience.
The American legislators therefore agreed to create a federal judiciary
power to apply the laws of the Union, and to determine certain questions
affecting general interests, which were carefully determined beforehand.
The entire judicial power of the Union was centred in one tribunal,
which was denominated the supreme court of the United States. But, to
facilitate the expedition of business, inferior courts were appended to
it, which were empowered to decide causes of small importance without
appeal, and with appeal causes of more magnitude. The members of the
supreme court are named neither by the people nor the legislature, but
by the president of the United States, acting with the advice of the
senate. In order to render them independent of the other authorities,
their office was made inalienable; and it was determined that their
salary, when once fixed, should not be altered by the legislature.[144]
It was easy to proclaim the principle of a federal judiciary, but
difficulties multiplied when the extent of its jurisdiction was to be
determined.
* * * * *
MEANS OF DETERMINING THE JURISDICTION OF THE FEDERAL COURTS.
Difficulty of determining the Jurisdiction of separate courts of Justice
in Confederation.--The Courts of the Union obtained the Right of fixing
their own Jurisdiction.--In what Respect this Rule attacks the Portion
of Sovereignty reserved to the several States.--The Sovereignty of
these States restricted by the Laws, and the Interpretation of the
Laws.--Consequently, the Danger of the several States is more apparent
than real.
As the constitution of the United States recognized two distinct powers,
in presence of each other, represented in a judicial point of view by
two distinct classes of courts of justice, the utmost care which could
be taken in defining their separate jurisdictions would have been
insufficient to prevent frequent collisions between those tribunals.
The question then arose, to whom the right of deciding the competency of
each court was to be referred.
In nations which constitute a single body politic, when a question is
debated between two courts relating to their mutual jurisdiction, a
third tribunal is generally within reach to decide the difference;
and this is effected without difficulty, because in these nations the
questions of judicial competency have no connexion with the privileges
of the national supremacy. But it was impossible to create an arbiter
between a superior court of the Union and the superior court of a
separate state, which would not belong to one of these two classes. It
was therefore necessary to allow one of these courts to judge its
own cause, and to take or to retain cognizance of the point which
was contested. To grant this privilege to the different courts of the
states, would have been to destroy the sovereignty of the Union _de
facto_, after having established it _de jure_; for the interpretation of
the constitution would soon have restored that portion of independence
to the states of which the terms of that act deprived them. The object
of the creation of a federal tribunal was to prevent the courts of the
states from deciding questions affecting the national interests in their
own department, and so to form a uniform body of jurisprudence for the
interpretation of the laws of the Union. This end would not have been
accomplished if the courts of the several states had been competent to
decide upon cases in their separate capacities, from which they were
obliged to abstain as federal tribunals. The supreme court of the
United States was therefore invested with the right of determining all
questions of jurisdiction.[145]
This was a severe blow upon the independence of the states, which was
thus restricted not only by the laws, but by the interpretation of them;
by one limit which was known, and by another which was dubious; by a
rule which was certain, and a rule which was arbitrary. It is true the
constitution had laid down the precise limits of the federal supremacy,
but whenever this supremacy is contested by one of the states, a federal
tribunal decides the question. Nevertheless, the dangers with which the
independence of the states was threatened by this mode of proceeding
are less serious than they appear to be. We shall see hereafter that in
America the real strength of the country is vested in the provincial far
more than in the federal government. The federal judges are conscious of
the relative weakness of the power in whose name they act, and they are
more inclined to abandon a right of jurisdiction in cases where it is
justly their own, than to assert a privilege to which they have no legal
claim.
* * * * *
DIFFERENT CASES OF JURISDICTION.
The Matter and the Party are the first Conditions of the federal
Jurisdiction.--Suits in which Ambassadors are engaged.--Suits of the
Union.--Of a separate State.--By whom tried.--Causes resulting from the
Laws of the Union.--Why judged by the federal Tribunal.--Causes
relating to the Non-performance of Contracts tried by the federal
Courts.--Consequences of this Arrangement.
After having appointed the means of fixing the competency of the federal
courts, the legislators of the Union defined the cases which should come
within their jurisdiction. It was established, on the one hand, that
certain parties must always be brought before the federal courts,
without any regard to the special nature of the cause; and, on the
other, that certain causes must always be brought before the same
courts, without any regard to the quality of the parties in the suit.
These distinctions were therefore admitted to be the bases of the
federal jurisdiction.
Ambassadors are the representatives of nations in a state of amity
with the Union, and whatever concerns these personages concerns in some
degree the whole Union. When I an ambassador is a party in a suit,
that suit affects the welfare of the nation, and a federal tribunal is
naturally called upon to decide it.
The Union itself may be involved in legal proceedings, and in this case
it would be alike contrary to the customs of all nations, and to common
sense, to appeal to a tribunal representing any other sovereignty
than its own; the federal courts, therefore, take cognizance of these
affairs.
When two parties belonging to two different states are engaged in a
suit, the case cannot with propriety be brought before a court of either
state. The surest expedient is to select a tribunal like that of the
Union, which can excite the suspicions of neither party, and which
offers the most natural as well as the most certain remedy.
When the two parties are not private individuals, but states, an
important political consideration is added to the same motive of equity.
The quality of the parties, in this case, gives a national importance to
all their disputes; and the most trifling litigation of the states may
be said to involve the peace of the whole Union.[146]
The nature of the cause frequently prescribes the rule of competency.
Thus all the questions which concern maritime commerce evidently fall
under the cognizance of the federal tribunals.[147] Almost all these
questions are connected with the interpretation of the law of nations;
and in this respect they essentially interest the Union in relation to
foreign powers. Moreover, as the sea is not included within the limits
of any peculiar jurisdiction, the national courts can only hear causes
which originate in maritime affairs.
The constitution comprises under one head almost all the cases which by
their very nature come within the limits of the federal courts. The
rule which it lays down is simple, but pregnant with an entire system of
ideas, and with a vast multitude of facts. It declares that the judicial
power of the supreme court shall extend to all cases in law and equity
_arising under the laws of the United States_.
Two examples will put the intentions of the legislator in the clearest
light:--
The constitution prohibits the states from making laws on the value
and circulation of money: if, notwithstanding this prohibition, a state
passes a law of this kind, with which the interested parties refuse to
comply because it is contrary to the constitution, the case must come
before a federal court, because it arises under the laws of the United
States. Again, if difficulties arise in the levying of import duties
which have been voted by congress, the federal court must decide the
case, because it arises under the interpretation of a law of the United
States.
This rule is in perfect accordance with the fundamental principles
of the federal constitution. The Union as it was established in 1789,
possesses, it is true, a limited supremacy; but it was intended that
within its limits it should form one and the same people.[148] Within
those limits the Union is sovereign. When this point is established
and admitted, the inference is easy; for if it be acknowledged that
the United States constitute one and the same people within the bounds
prescribed by their constitution, it is impossible to refuse them the
rights which belong to other nations. But it has been allowed, from the
origin of society, that every nation has the right of deciding by its
own courts those questions which concern the execution of its own laws.
To this it is answered, that the Union is in so singular a position,
that in relation to some matters it constitutes a people, and that in
relation to all the rest it is a nonentity. But the inference to be
drawn is, that in the laws relating to these matters the Union possesses
all the rights of absolute sovereignty. The difficulty is to know what
these matters are; and when once it is resolved (and we have shown
how it was resolved, in speaking of the means of determining the
jurisdiction of the federal courts), no farther doubt can arise; for as
soon as it is established that a suit is federal, that is to say, that
it belongs to the share of sovereignty reserved by the constitution to
the Union, the natural consequence is that it should come within the
jurisdiction of a federal court.
Whenever the laws of the United States are attacked, or whenever they
are resorted to in self-defence, the federal courts must be appealed to.
Thus the jurisdiction of the tribunals of the Union extends and narrows
its limits exactly in the same ratio as the sovereignty of the Union
augments or decreases. We have shown that the principal aim of the
legislators of 1789 was to divide the sovereign authority into two
parts. In the one they placed the control of all the general interests
of the Union, in the other the control of the special interest of
its component states. Their chief solicitude was to arm the federal
government with sufficient power to enable it to resist, within
its sphere, the encroachments of the several states. As for these
communities, the principle of independence within certain limits of
their own was adopted in their behalf; and they were concealed from the
inspection, and protected from the control, of the central government.
In speaking of the division of the authority, I observed that this
latter principle had not always been held sacred, since the states are
prevented from passing certain laws, which apparently belong to their
own particular sphere of interest. When a state of the Union passes
a law of this kind, the citizens who are injured by its execution can
appeal to the federal courts.
[The remark of the author, that whenever the laws of the United States
are attacked, or whenever they are resorted to in self-defence, the
federal courts _must be_ appealed to, which is more strongly expressed
in the original, is erroneous and calculated to mislead on a point
of some importance. By the grant of power to the courts of the United
States to decide certain cases, the powers of the state courts are not
suspended, but are exercised concurrently, subject to an appeal to the
courts of the United States. But if the decision of the state court
is _in favor_ of the right, title, or privilege claimed under the
constitution, a treaty, or under a law of congress, no appeal lies
to the federal courts. The appeal is given only when the decision _is
against_ the claimant under the treaty or law. See 3d Cranch, 268. 1
Wheaton, 304.--_American Editor._]
Thus the jurisdiction of the general courts extends not only to all the
cases which arise under the laws of the Union, but also to those
which arise under laws made by the several states in opposition to the
constitution. The states are prohibited from making _ex-post-facto_ laws
in criminal cases; and any person condemned by virtue of a law of this
kind can appeal to the judicial power of the Union. The states are
likewise prohibited from making laws which may have a tendency to
impair the obligations of contracts.[149] If a citizen thinks that an
obligation of this kind is impaired by a law passed in his state, he may
refuse to obey it, and may appeal to the federal courts.[150]
This provision appears to me to be the most serious attack upon the
independence of the states. The rights awarded to the federal government
for purposes of obvious national importance are definite and easily
comprehensible; but those with which this last clause invests it are
not either clearly appreciable or accurately defined. For there are vast
numbers of political laws which influence the obligations of contracts,
which may thus furnish an easy pretext for the aggressions of the
central authority.
[The fears of the author respecting the danger to the independence of
the states of that provision of the constitution, which gives to the
federal courts the authority of deciding when a state law impairs the
obligation of a contract, are deemed quite unfounded. The citizens of
every state have a deep interest in preserving the obligation of the
contracts entered into by them in other states: indeed without such a
controlling power, "commerce among several states" could not exist.
The existence of this common arbiter is of the last importance to the
continuance of the Union itself, for if there were no peaceable means
of enforcing the obligations of contracts, independent of all state
authority, the states themselves would inevitably come in collision in
their efforts to protect their respective citizens from the consequences
of the legislation of another state.