in question invests the federal government "are not clearly appreciable
or accurately defined," proceeds upon a mistaken view of the clause
itself. It relates to the _obligation_ of a contract, and forbids any
act by which that obligation is impaired. To American lawyers, this
seems to be as precise and definite as any rule can be made by human
language. The distinction between the _right_ to the fruits of a
contract, and the time, tribunal, and manner, in which that right is to
be enforced, seems very palpable. At all events, since the decision
of the supreme court of the United States in those cases in which this
clause has been discussed, no difficulty is found, practically, in
understanding the exact limits of the prohibition.
The next observation of the author, that "there are vast numbers of
political laws which influence the obligations of contracts, which
may thus furnish an easy pretext for the aggressions of the central
authority," is rather obscure. Is it intended that political laws may
be passed by the central authority, influencing the obligation of a
contract, and thus the contracts themselves be destroyed? The answer
to this would be, that the question would not arise under the clause
forbidding laws impairing the obligation of contracts, for that clause
applies only to the states and not to the federal government.
If it be intended, that the states may find it necessary to pass
political laws, which affect contracts, and that under the pretence of
vindicating the obligation of contracts, the central authority may make
aggressions on the states and annul their political laws:--the answer
is, that the motive to the adoption of the clause was to reach laws of
every description, political as well as all others, and that it was the
abuse by the states of what may be called political laws, viz.: acts
confiscating demands of foreign creditors, that gave rise to the
prohibition. The settled doctrine now is, that states may pass laws in
respect to the making of contracts, may prescribe what contracts shall
be made, and how, but that they cannot impair any that are already made.
The writer of this note is unwilling to dismiss the subject, without
remarking upon what he must think a fundamental error of the author,
which is exhibited in the passage commented on, as well as in other
passages:--and that is, in supposing the judiciary of the United States,
and particularly the supreme court, to be a part of the _political_
federal government, and as the ready instrument to execute its designs
upon the state authorities. Although the judges are in form commissioned
by the United States, yet, in fact, they are appointed by the delegates
of the state, in the senate of the United States, concurrently with, and
acting upon, the nomination of the president. If the legislature of each
state in the Union were to elect a judge of the supreme court, he would
not be less a political officer of the United States than he now is.
In truth, the judiciary have no political duties to perform; they are
arbiters chosen by the federal and state governments, jointly, and when
appointed, as independent of the one as of the other. They cannot be
removed without the consent of the states represented in the senate, and
they can be removed without the consent of the president, and against
his wishes. Such is the theory of the constitution. And it has been
felt practically, in the rejection by the senate of persons nominated
as judges, by a president of the same political party with a majority
of the senators. Two instances of this kind occurred during the
administration of Mr. Jefferson.
If it be alleged that they are exposed to the influence of the executive
of the United States, by the expectation of offices in his gift, the
answer is, that judges of state courts are equally exposed to the same
influence--that all state officers, from the highest to the lowest, are
in the same predicament; and that this circumstance does not, therefore,
deprive them of the character of impartial and independent arbiters.
These observations receive confirmation from every recent decision
of the supreme court of the United States, in which certain laws of
individual states have been sustained, in cases where, to say the least,
it was very questionable whether they did not infringe the provisions of
the constitution, and where a disposition to construe those previsions
broadly and extensively, would have found very plausible grounds to
indulge itself in annulling the state laws referred to. See the cases of
_City of New York vs. Miln_, 11th _Peters_, 103; _Briscoe vs. the Bank
of the Commonwealth of Kentucky_, ib., 257; _Charles River Bridge vs.
Warren Bridge_, ib., 420.--_American Ed._]
* * * * *
PROCEDURE OF THE FEDERAL COURTS.
Natural Weakness of the judiciary Power in Confederations.--Legislators
ought to strive as much as possible to bring private Individuals, and
not States, before the federal Courts.--How the Americans have succeeded
in this.--Direct Prosecutions of private Individuals in the federal
Courts.--Indirect Prosecution in the States which violate the Laws of
the Union.--The Decrees of the Supreme Court enervate but do not destroy
the provincial Laws.
I have shown what the privileges of the federal courts are, and it is no
less important to point out the manner in which they are exercised. The
irresistible authority of justice in countries in which the sovereignty
is undivided, is derived from the fact that the tribunals of those
countries represent the entire nation at issue with the individual
against whom their decree is directed; and the idea of power is thus
introduced to corroborate the idea of right. But this is not always
the case in countries in which the sovereignty is divided: in them the
judicial power is more frequently opposed to a fraction of the nation
than to an isolated individual, and its moral authority and physical
strength are consequently diminished. In federal states the power of
the judge is naturally decreased, and that of the justiciable parties
is augmented. The aim of the legislator in confederate states ought
therefore to be, to render the position of the courts of justice
analogous to that which they occupy in countries where the sovereignty
is undivided; in other words, his efforts ought constantly to tend to
maintain the judicial power of the confederation as the representative
of the nation, and the justiciable party as the representative of an
individual interest.
Every government, whatever may be its constitution, requires the means
of constraining its subjects to discharge their obligations, and of
protecting its privileges from their assaults. As far as the direct
action of the government on the community is concerned, the constitution
of the United States contrived, by a master-stroke of policy, that
the federal courts, acting in the name of the laws, should only take
cognizance of parties in an individual capacity. For, as it had been
declared that the Union consisted of one and the same people within
the limits laid down by the constitution, the inference was that the
government created by this constitution, and acting within these limits,
was invested with all the privileges of a national government, one of
the principal of which is the right of transmitting its injunctions
directly to the private citizen. When, for instance, the Union votes an
impost, it does not apply to the states for the levying of it, but to
every American citizen, in proportion to his assessment. The supreme
court, which is empowered to enforce the execution of this law of the
Union, exerts its influence not upon a refractory state, but upon the
private taxpayer; and, like the judicial power of other nations, it is
opposed to the person of an individual. It is to be observed that the
Union chose its own antagonist; and as that antagonist is feeble, he is
naturally worsted.
But the difficulty increases when the proceedings are not brought
forward _by_ but _against_ the Union. The constitution recognizes the
legislative power of the state; and a law so enacted may impair the
privileges of the Union, in which case a collision is unavoidable
between that body and the state which had passed the law; and it only
remains to select the least dangerous remedy, which is very clearly
deducible from the general principles I have before established.[151]
It may be conceived that, in the case under consideration, the Union
might have sued the state before a federal court, which would have
annulled the act; and by this means it would have adopted a natural
course of proceeding: but the judicial power would have been placed
in open hostility to the state, and it was desirable to avoid this
predicament as much as possible. The Americans hold that it is nearly
impossible that a new law should not impair the interests of some
private individuals by its provisions: these private interests are
assumed by the American legislators as the ground of attack against such
measures as may be prejudicial to the Union, and it is to these cases
that the protection of the supreme court is extended.
Suppose a state vends a certain portion of its territory to a company,
and that a year afterwards it passes a law by which the territory
is otherwise disposed of, and that clause of the constitution, which
prohibits laws impairing the obligation of contracts, is violated.
When the purchaser under the second act appears to take possession, the
possessor under the first act brings his action before the tribunals of
the Union, and causes the title of the claimant to be pronounced null
and void.[152] This, in point of fact, the judicial power of the Union
is contesting the claims of the sovereignty of a state; but it only acts
indirectly and upon a special application of detail: it attacks the law
in its consequences, not in its principle, and it rather weakens than
destroys it.
The last hypothesis that remained was that each state formed a
corporation enjoying a separate existence and distinct civil rights, and
that it could therefore sue or be sued before a tribunal. Thus a state
could bring an action against another state. In this instance, the Union
was not called upon to contest a provincial law, but to try a suit in
which a state was a party. This suit was perfectly similar to any other
cause, except that the quality of the parties was different; and here
the danger pointed out at the beginning of this chapter exists with less
chance of being avoided. The inherent disadvantage of the very essence
of federal constitutions is, that they engender parties in the bosom
of the nation which present powerful obstacles to the free course of
justice.
* * * * *
HIGH RANK OF THE SUPREME COURTS AMONG THE GREAT POWERS OF STATE.
No Nation ever constituted so great a judicial Power as the Americans.
Extent of its Prerogative.--Its political Influence.--The Tranquillity
and the very Existence of the Union depend on the Discretion of the
seven federal Judges.
When we have successfully examined in detail the organization of the
supreme court, and the entire prerogatives which it exercises, we shall
readily admit that a more imposing judicial power was never constituted
by any people. The supreme court is placed at the head of all known
tribunals, both by the nature of its rights and the class of justiciable
parties which it controls.
In all the civilized countries of Europe, the government has always
shown the greatest repugnance to allow the cases to which it was itself
a party to be decided by the ordinary course of justice. This repugnance
naturally attains its utmost height in an absolute government; and, on
the other hand, the privileges of the courts of justice are extended
with the increasing liberties of the people; but no European nation has
at present held that all judicial controversies, without regard to their
origin, can be decided by the judges of common law.
In America this theory has been actually put in practice; and the
supreme court of the United States is the sole tribunal of the nation.
Its power extends to all the cases arising under laws and treaties made
by the executive and legislative authorities, to all cases of admiralty
and maritime jurisdiction, and in general to all points which affect the
law of nations. It may even be affirmed that, although its constitution
is essentially judicial, its prerogatives are almost entirely political.
Its sole object is to enforce the execution of the laws of the Union;
and the Union only regulates the relations of the government with
the citizens, and of the nation with foreign powers: the relations
of citizens among themselves are almost exclusively regulated by the
sovereignty of the states.
A second and still greater cause of the preponderance of this court
may be adduced. In the nations of Europe the courts of justice are only
called upon to try the controversies of private individuals; but the
supreme court of the United States summons sovereign powers to its bar.
When the clerk of the court advances on the steps of the tribunal, and
simply says, "The state of New York _versus_ the state of Ohio," it is
impossible not to feel that the court which he addresses is no ordinary
body; and when it is recollected that one of these parties represents
one million, and the other two millions of men, one is struck by the
responsibility of the seven judges whose decision is about to satisfy or
to disappoint so large a number of their fellow-citizens.
The peace, the prosperity, and the very existence of the Union,
are invested in the hands of the seven judges. Without their active
co-operation the constitution would be a dead letter: the executive
appeals to them for assistance against the encroachments of the
legislative powers; the legislature demands their protection from the
designs of the executive; they defend the Union from the disobedience
of the states, the states from the exaggerated claims of the Union,
the public interest against the interests of private citizens, and
the conservative spirit of order against the fleeting innovations of
democracy. Their power is enormous, but it is clothed in the authority
of public opinion. They are the all-powerful guardians of a people which
respects law; but they would be impotent against popular neglect or
popular contempt. The force of public opinion is the most intractable of
agents, because its exact limits cannot be defined; and it is not less
dangerous to exceed, than to remain below the boundary prescribed.
The federal judges must not only be good citizens, and men possessed of
that information and integrity which are indispensable to magistrates,
but they must be statesmen--politicians, not unread in the signs of the
times, not afraid to brave the obstacles which can be subdued, nor slow
to turn aside such encroaching elements as may threaten the supremacy of
the Union and the obedience which is due to the laws.
The president, who exercises a limited power, may err without causing
great mischief in the state. Congress may decide amiss without
destroying the Union, because the electoral body in which congress
originates may cause it to retract its decision by changing its members.
But if the supreme court is ever composed of imprudent men or bad
citizens, the Union may be plunged into anarchy or civil war.
The real cause of this danger, however, does not lie in the constitution
of the tribunal, but in the very nature of federal governments. We
have observed that in confederate peoples it is especially necessary to
consolidate the judicial authority, because in no other nations do those
independent persons who are able to cope with the social body, exist, in
greater power or in a better condition to resist the physical strength
of the government. But the more a power requires to be strengthened, the
more extensive and independent it must be made; and the dangers
which its abuse may create are heightened by its independence and its
strength. The source of the evil is not, therefore, in the constitution
of the power, but in the constitution of those states which renders its
existence necessary.
* * * * *
IN WHAT RESPECTS THE FEDERAL CONSTITUTION IS SUPERIOR TO THAT OF THE
STATES.
In what respects the Constitution of the Union can be compared to
that of the States.--Superiority of the Constitution of the Union
attributable to the Wisdom of the federal Legislators.--Legislature
of the Union less dependent on the People than that of the
States.--Executive Power more independent in its Sphere.--Judicial
Power less subjected to the Inclinations of the Majority.--Practical
Consequences of these Facts.--The Dangers inherent in a democratic
Government eluded by the federal Legislators, and increased by the
Legislators of the States.
The federal constitution differs essentially from that of the states in
the ends which it is intended to accomplish; but in the means by which
these ends are promoted, a greater analogy exists between them. The
objects of the governments are different, but their forms are the same;
and in this special point of view there is some advantage in comparing
them together.
I am of opinion that the federal constitution is superior to all the
constitutions of the states, for several reasons.
The present constitution of the Union was formed at a later period
than those of the majority of the states, and it may have derived some
melioration from past experience. But we shall be led to acknowledge
that this is only a secondary cause of its superiority, when we
recollect that eleven new states have been added to the American
confederation since the promulgation of the federal constitution, and
that these new republics have always rather exaggerated than avoided the
defects which existed in the former constitutions.
The chief cause of the superiority of the federal constitution lay in
the character of the legislators who composed it. At the time when it
was formed the dangers of the confederation were imminent, and its ruin
seemed inevitable. In this extremity the people chose the men who most
deserved the esteem, rather than those who had gained the affections of
the country. I have already observed, that distinguished as almost all
the legislators of the Union were for their intelligence, they were
still more so for their patriotism. They had all been nurtured at a time
when the spirit of liberty was braced by a continual struggle against
a powerful and predominant authority. When the contest was terminated,
while the excited passions of the populace persisted in warring with
dangers which had ceased to threaten them, these men stopped short in
their career; they cast a calmer and more penetrating look upon
the country which was now their own; they perceived that the war of
independence was definitely ended, and that the only dangers which
America had to fear were those which might result from the abuse of the
freedom she had won. They had the courage to say what they believed
to be true, because they were animated by a warm and sincere love of
liberty; and they ventured to propose restrictions, because they were
resolutely opposed to destruction.[153]
The greater number of the constitutions of the states assign one year
for the duration of the house of representatives, and two years for that
of the senate; so that members of the legislative body are constantly
and narrowly tied down by the slightest desires of their constituents.
The legislators of the Union were of opinion that this excessive
dependence of the legislature tended to alter the nature of the main
consequences of the representative system, since it vested the source
not only of authority, but of government, in the people. They increased
the length of the time for which the representatives were returned, in
order to give them freer scope for the exercise of their own judgment.
The federal constitution, as well as the constitutions of the different
states, divided the legislative body into two branches. But in the
states these two branches were composed of the same elements and
elected in the same manner. The consequence was that the passions
and inclinations of the populace were as rapidly and as energetically
represented in one chamber as in the other, and that laws were made with
all the characteristics of violence and precipitation. By the federal
constitution the two houses originate in like manner in the choice of
the people; but the conditions of eligibility and the mode of election
were changed, to the end that if, as is the case in certain nations, one
branch of the legislature represents the same interests as the other, it
may at least represent a superior degree of intelligence and discretion.
A mature age was made one of the conditions of the senatorial dignity,
and the upper house was chosen by an elected assembly of a limited
number of members.
To concentrate the whole social force in the hands of the legislative
body is the natural tendency of democracies; for as this is the
power which emanates the most directly from the people, it is made to
participate most fully in the preponderating authority of the multitude,
and it is naturally led to monopolise every species of influence. This
concentration is at once prejudicial to a well-conducted administration,
and favorable to the despotism of the majority. The legislators of the
states frequently yielded to these democratic propensities, which were
invariably and courageously resisted by the founders of the Union.
In the states the executive power is vested in the hands of a
magistrate, who is apparently placed upon a level with the legislature,
but who is in reality nothing more than the blind agent and the passive
instrument of its decisions. He can derive no influence from the
duration of his functions, which terminate with the revolving year, or
from the exercise of prerogatives which can scarcely be said to exist.
The legislature can condemn him to inaction by intrusting the execution
of the laws to special committees of its own members, and can annul
his temporary dignity by depriving him of his salary. The federal
constitution vests all the privileges and all the responsibility of the
executive power in a single individual. The duration of the presidency
is fixed at four years; the salary of the individual who fills that
office cannot be altered during the term of his functions; he is
protected by a body of official dependents, and armed with a suspensive
veto. In short, every effort was made to confer a strong and independent
position upon the executive authority, within the limits which had been
prescribed to it.
In the constitution of all the states the judicial power is that which
remains the most independent of the legislative authority: nevertheless,
in all the states the legislature has reserved to itself the right of
regulating the emoluments of the judges, a practice which necessarily
subjects these magistrates to its immediate influence. In some states
the judges are only temporarily appointed, which deprives them of
a great portion of their power and their freedom. In others the
legislative and judicial powers are entirely confounded: thus the senate
of New York, for instance, constitutes in certain cases the superior
court of the state. The federal constitution, on the other hand,
carefully separates the judicial authority from all external influences:
and it provides for the independence of the judges, by declaring that
their salary shall not be altered, and that their functions shall be
inalienable.
[It is not universally correct, as supposed by the author, that the
state legislatures can deprive their governor of his salary at pleasure.
In the constitution of New York it is provided, that the governor "shall
receive for his services a compensation which shall neither be increased
nor diminished during the term for which he shall have been elected;"
and similar provisions are believed to exist in other states. Nor is the
remark strictly correct, that the federal constitution "provides for the
independence of the judges, by declaring that their salary shall not be
_altered_." The provision of the constitution is, that they shall, "at
stated times, receive for their services a compensation which shall not
be diminished during their continuance in office."--_American Editor_.]
The practical consequences of these different systems may easily be
perceived. An attentive observer will soon remark that the business of
the Union is incomparably better conducted than that of any individual
state. The conduct of the federal government is more fair and more
temperate than that of the states; its designs are more fraught with
wisdom, its projects are more durable and more skilfully combined, its
measures are put into execution with more vigor and consistency.
I recapitulate the substance of this chapter in a few words:--
The existence of democracies is threatened by two dangers, viz.: the
complete subjection of the legislative body to the caprices of
the electoral body; and the concentration of all the powers of the
government in the legislative authority.
The growth of these evils has been encouraged by the policy of the
legislators of the states; but it has been resisted by the legislators
of the Union by every means which lay within their control.
* * * * *
CHARACTERISTICS WHICH DISTINGUISH THE FEDERAL CONSTITUTION OF THE UNITED
STATES OF AMERICA FROM ALL OTHER FEDERAL CONSTITUTIONS.
American Union appears to resemble all other
Confederations.--Nevertheless its Effects are different.--Reason of
this.--Distinctions between the Union and all other Confederations.--The
American Government not a Federal, but an imperfect National Government.
The United States of America do not afford either the first or the only
instance of confederate states, several of which have existed in modern
Europe, without adverting to those of antiquity. Switzerland, the
Germanic empire, and the republic of the United Provinces, either have
been or still are confederations. In studying the constitutions of these
different countries, the politician is surprised to observe that the
powers with which they invested the federal government are nearly
identical with the privileges awarded by the American constitution to
the government of the United States. They confer upon the central power
the same rights of making peace and war, of raising money and troops,
and of providing for the general exigencies and the common interests
of the nation. Nevertheless the federal government of these different
people has always been as remarkable for its weakness and inefficiency
as that of the Union is for its vigorous and enterprising spirit. Again,
the first American confederation perished through the excessive weakness
of its government; and this weak government was, notwithstanding, in
possession of rights even more extensive than those of the federal
government of the present day. But the more recent constitution of
the United States contains certain principles which exercise a most
important influence, although they do not at once strike the observer.
This constitution, which may at first sight be confounded with the
federal constitutions which preceded it, rests upon a novel theory,
which may be considered as a great invention in modern political
science. In all the confederations which had been formed before the
American constitution of 1789, the allied states agreed to obey the
injunctions of a federal government: but they reserved to themselves the
right of ordaining and enforcing the execution of the laws of the Union.
The American states which combined in 1789 agreed that the federal
government should not only dictate the laws, but it should execute its
own enactments. In both cases the right is the same, but the exercise of
the right is different; and this alteration produced the most momentous
consequences.
In all the confederations which have been formed before the American
Union, the federal government demanded its supplies at the hands of the
separate governments; and if the measure it prescribed was onerous to
any one of those bodies, means were found to evade its claims: if the
state was powerful, it had recourse to arms; if it was weak, it connived
at the resistance which the law of the Union, its sovereign, met with,
and resorted to inaction under the plea of inability. Under these
circumstances one of two alternatives has invariably occurred: either
the most preponderant of the allied peoples has assumed the privileges
of the federal authority, and ruled all the other states in its
name,[154] or the federal government has been abandoned by its natural
supporters, anarchy has arisen between the confederates, and the Union
has lost all power of action.[155]
In America the subjects of the Union are not states, but private
citizens: the national government levies a tax, not upon the state of
Massachusetts, but upon each inhabitant of Massachusetts. All former
confederate governments presided over communities, but that of the Union
rules individuals; its force is not borrowed, but self-derived; and it
is served by its own civil and military officers, by its own army, and
its own courts of justice. It cannot be doubted that the spirit of the
nation, the passions of the multitude, and the provincial prejudices
of each state, tend singularly to diminish the authority of a federal
authority thus constituted, and to facilitate the means of resistance to
its mandates; but the comparative weakness of a restricted sovereignty
is an evil inherent in the federal system. In America, each state
has fewer opportunities of resistance, and fewer temptations to
non-compliance; nor can such a design be put in execution (if indeed it
be entertained), without an open violation of the laws of the Union,
a direct interruption of the ordinary course of justice, and a bold
declaration of revolt; in a word, without a decisive step, which men
hesitate to adopt.
In all former confederations, the privileges of the Union furnished more
elements of discord than of power, since they multiplied the claims
of the nation without augmenting the means of enforcing them: and in
accordance with this fact it may be remarked, that the real weakness of
federal governments has almost always been in the exact ratio of their
nominal power. Such is not the case with the American Union, in which,
as in ordinary governments, the federal government has the means of
enforcing all it is empowered to demand.
The human understanding more easily invents new things than new words,
and we are thence constrained to employ a multitude of improper and
inadequate expressions. When several nations form a permanent league,
and establish a supreme authority, which, although it has not the same
influence over the members of the community as a national government,
acts upon each of the confederate states in a body, this government,
which is so essentially different from all others, is denominated a
federal one. Another form of society is afterward discovered, in which
several peoples are fused into one and the same nation with regard to
certain common interests, although they remain distinct, or at least
only confederate, with regard to all their other concerns. In this case
the central power acts directly upon those whom it governs, whom it
rules, and whom it judges, in the same manner as, but in a more limited
circle than, a national government. Here the term of federal government
is clearly no longer applicable to a state of things which must be
styled an incomplete national government: a form of government has been
found out which is neither exactly national nor federal; but no farther
progress has been made, and the new word which will one day designate
this novel invention does not yet exist.
The absence of this new species of confederation has been the cause
which has brought all unions to civil war, to subjection, or to a
stagnant apathy; and the peoples which formed these leagues have been
either too dull to discern, or too pusillanimous to apply this great
remedy. The American confederation perished by the same defects.
But the confederate states of America had been long accustomed to form
a portion of one empire before they had won their independence: they
had not contracted the habit of governing themselves, and their national
prejudices had not taken deep root in their minds. Superior to the rest
of the world in political knowledge, and sharing that knowledge equally
among themselves, they were little agitated by the passions which
generally oppose the extension of federal authority in a nation, and
those passions were checked by the wisdom of the chief citizens.
The Americans applied the remedy with prudent firmness as soon as they
were conscious of the evil; they amended their laws, and they saved
their country.
* * * * *
ADVANTAGES OF THE FEDERAL SYSTEM IN GENERAL, AND ITS SPECIAL UTILITY IN
AMERICA.
Happiness and Freedom of small Nations.--Power of Great Nations.--Great
Empires favorable to the Growth of Civilisation.--Strength often the
first Element of national Prosperity.--Aim of the federal System to
unite the twofold Advantages resulting from a small and from a
large Territory.--Advantages derived by the United States from this
System.--The Law adapts itself to the Exigencies of the Population;
Population does not conform to the Exigencies of the Law.--Activity,
Melioration, Love, and Enjoyment of Freedom in the American
Communities.--Public Spirit of the Union the abstract of provincial
Patriotism.--Principles and Things circulate freely over the Territory
of the United States.--The Union is happy and free as a little Nation,
and respected as a great Empire.
In small nations the scrutiny of society penetrates into every part, and
the spirit of improvement enters into the most trifling details; as the
ambition of the people is necessarily checked by its weakness, all the
efforts and resources of the citizens are turned to the internal benefit
of the community, and are not likely to evaporate in the fleeting
breath of glory. The desires of every individual are limited, because
extraordinary faculties are rarely to be met with. The gifts of an equal
fortune render the various conditions of life uniform; and the manners
of the inhabitants are orderly and simple. Thus, if we estimate the
gradations of popular morality and enlightenment, we shall generally
find that in small nations there are more persons in easy circumstances,
a more numerous population, and a more tranquil state of society than in
great empires.
When tyranny is established in the bosom of a small nation, it is more
galling than elsewhere, because, as it acts within a narrow circle,
every point of that circle is subject to its direct influence. It
supplies the place of those great designs which it cannot entertain,
by a violent or an exasperating interference in a multitude of minute
details; and it leaves the political world to which it properly belongs,
to meddle with the arrangements of domestic life. Tastes as well as
actions are to be regulated at its pleasure; and the families of the
citizens as well as the affairs of the state are to be governed by its
decisions. This invasion of rights occurs, however, but seldom,
and freedom is in truth the natural state of small communities. The
temptations which the government offers to ambition are too weak, and
the resources of private individuals are too slender, for the sovereign
power easily to fall within the grasp of a single citizen: and should
such an event have occurred, the subjects of the state can without
difficulty overthrow the tyrant and his oppression by a simultaneous
effort.
Small nations have therefore ever been the cradles of political liberty:
and the fact that many of them have lost their immunities by extending
their dominion, shows that the freedom they enjoyed was more a
consequence of their inferior size than of the character of the people.
The history of the world affords no instance of a great nation retaining
the form of a republican government for a long series of years,[156]
and this had led to the conclusion that such a state of things is
impracticable. For my own part, I cannot but censure the imprudence of
attempting to limit the possible, and to judge the future, on the part
of a being who is hourly deceived by the most palpable realities of
life, and who is constantly taken by surprise in the circumstances with
which he is most familiar. But it may be advanced with confidence that
the existence of a great republic will always be exposed to far greater
perils than that of a small one.
All the passions which are most fatal to republican institutions spread
with an increasing territory, while the virtues which maintain their
dignity do not augment in the same proportion. The ambition of the
citizens increases with the power of the state; the strength of parties,
with the importance of the ends they have in view; but that devotion to
the common weal, which is the surest check on destructive passions, is
not stronger in a large than in a small republic. It might, indeed, be
proved without difficulty that it is less powerful and less sincere. The
arrogance of wealth and the dejection of wretchedness, capital cities of
unwonted extent, a lax morality, a vulgar egotism, and a great confusion
of interests, are the dangers which almost invariably arise from the
magnitude of states. But several of these evils are scarcely prejudicial
to a monarchy, and some of them contribute to maintain its existence.
In monarchical states the strength of the government is its own; it may
use, but it does not depend on, the community: and the authority of the
prince is proportioned to the prosperity of the nation: but the only
security which a republican government possesses against these evils
lies in the support of the majority. This support is not, however,
proportionably greater in a large republic than it is in a small one;
and thus while the means of attack perpetually increase both in number
and in influence, the power of resistance remains the same; or it may
rather be said to diminish, since the propensities and interests of
the people are diversified by the increase of the population, and the
difficulty of forming a compact majority is constantly augmented. It
has been observed, moreover, that the intensity of human passions is
heightened, not only by the importance of the end which they propose to
attain, but by the multitude of individuals who are animated by them at
the same time. Every one has had occasion to remark that his emotions
in the midst of a sympathizing crowd are far greater than those which he
would have felt in solitude. In great republics the impetus of political
passion is irresistible, not only because it aims at gigantic purposes,
but because it is felt and shared by millions of men at the same time.
It may therefore be asserted as a general proposition, that nothing is
more opposed to the well-being and the freedom of man than vast empires.
Nevertheless it is important to acknowledge the peculiar advantages of
great states. For the very reason which renders the desire of power more
intense in these communities than among ordinary men, the love of glory
is also more prominent in the hearts of a class of citizens, who regard
the applause of a great people as a reward worthy of their exertions,
and an elevating encouragement to man. If we would learn why it is
that great nations contribute more powerfully to the spread of human
improvement than small states, we shall discover an adequate cause in
the rapid and energetic circulation of ideas, and in those great cities
which are the intellectual centres where all the rays of human genius
are reflected and combined. To this it may be added that most important
discoveries demand a display of national power which the government of
a small state is unable to make; in great nations the government
entertains a greater number of general notions, and is more completely
disengaged from the routine of precedent and the egotism of local
prejudice; its designs are conceived with more talent, and executed with
more boldness.
In time of peace the well-being of small nations is undoubtedly more
general and more complete; but they are apt to suffer more acutely from
the calamities of war than those great empires whose distant frontiers
may for ages avert the presence of the danger from the mass of the
people, which is more frequently afflicted than ruined by the evil.
But in this matter, as in many others, the argument derived from the
necessity of the case predominates over all others. If none but small
nations existed, I do not doubt that mankind would be more happy and
more free; but the existence of great nations is unavoidable.
This consideration introduces the element of physical strength as a
condition of national prosperity.
It profits a people but little to be affluent and free, if it is
perpetually exposed to be pillaged or subjugated; the number of its
manufactures and the extent of its commerce are of small advantage, if
another nation has the empire of the seas and gives the law in all the
markets of the globe. Small nations are often impoverished, not because
they are small, but because they are weak; and great empires prosper
less because they are great than because they are strong. Physical
strength is therefore one of the first conditions of the happiness and
even of the existence of nations. Hence it occurs, that unless very
peculiar circumstances intervene, small nations are always united to
large empires in the end, either by force or by their own consent; yet
I am unacquainted with a more deplorable spectacle than that of a people
unable either to defend or to maintain its independence.
The federal system was created with the intention of combining the
different advantages which result from the greater and the lesser
extent of nations; and a single glance over the United States of America
suffices to discover the advantages which they have derived from its
adoption.
In great centralized nations the legislator is obliged to impart a
character of uniformity to the laws, which does not always suit the
diversity of customs and of districts; as he takes no cognizance of
special cases, he can only proceed upon general principles; and the
population is obliged to conform to the exigencies of the legislation,
since the legislation cannot adapt itself to the exigencies and customs
of the population; which is the cause of endless trouble and misery.
This disadvantage does not exist in confederations; congress regulates
the principal measures of the national government, and all the details
of the administration are reserved to the provincial legislatures. It is
impossible to imaging how much this division of sovereignty contributes
to the well-being of each of the states which compose the Union. In
these small communities, which are never agitated by the desire of
aggrandizement or the cares of self-defence, all public authority
and private energy is employed in internal melioration. The central
government of each state, which is in immediate juxtaposition to the
citizens, is daily apprised of the wants which arise in society; and
new projects are proposed every year, which are discussed either
at town-meetings or by the legislature of the state, and which are
transmitted by the press to stimulate the zeal and to excite the
interest of the citizens. This spirit of melioration is constantly alive
in the American republics, without compromising their tranquillity; the
ambition of power yields to the less refined and less dangerous love of
comfort. It is generally believed in America that the existence and the
permanence of the republican form of government in the New World depend
upon the existence and the permanence of the federal system; and it is
not unusual to attribute a large share of the misfortunes which have
befallen the new states of South America to the injudicious erection of
great republics, instead of a divided and confederate sovereignty.
It is incontestably true that the love and the habits of republican
government in the United States were engendered in the townships and in
the provincial assemblies. In a small state, like that of Connecticut
for instance, where cutting a canal or laying down a road is a momentous
political question, where the state has no army to pay and no wars to
carry on, and where much wealth and much honor cannot be bestowed upon
the chief citizens, no form of government can be more natural or more
appropriate than that of a republic. But it is this same republican
spirit, it is these manners and customs of a free people, which are
engendered and nurtured in the different states, to be afterward applied
to the country at large. The public spirit of the Union is, so to speak,
nothing more than an abstract of the patriotic zeal of the provinces.
Every citizen of the United States transfuses his attachment to his
little republic into the common store of American patriotism. In
defending the Union, he defends the increasing prosperity of his own
district, the right of conducting its affairs, and the hope of causing
measures of improvement to be adopted which may be favorable to his own
interests; and these are motives which are wont to stir men more readily
than the general interests of the country and the glory of the nation.
On the other hand, if the temper and the manners of the inhabitants
especially fitted them to promote the welfare of a great republic, the
federal system smoothed the obstacles which they might have encountered.
The confederation of all the American states presents none of the
ordinary disadvantages resulting from great agglomerations of men. The
Union is a great republic in extent, but the paucity of objects for
which its government provides assimilates it to a small state. Its acts
are important, but they are rare. As the sovereignty of the Union is
limited and incomplete, its exercise is not incompatible with liberty;
for it does not excite those insatiable desires of fame and power which
have proved so fatal to great republics. As there is no common centre to
the country, vast capital cities, colossal wealth, abject poverty, and
sudden revolutions are alike unknown; and political passion, instead
of spreading over the land like a torrent of desolation, spends its
strength against the interests and the individual passions of every
state.
Nevertheless, all commodities and ideas circulate throughout the Union
as freely as in a country inhabited by one people. Nothing checks the
spirit of enterprise. The government avails itself of the assistance of
all who have talents or knowledge to serve it. Within the frontiers of
the Union the profoundest peace prevails, as within the heart of some
great empire; abroad, it ranks with the most powerful nations of the
earth: two thousand miles of coast are open to the commerce of the
world; and as it possesses the keys of the globe, its flag is respected
in the most remote seas. The Union is as happy and as free as a small
people, and as glorious and as strong as a great nation.
* * * * *
WHY THE FEDERAL SYSTEM IS NOT ADAPTED TO ALL PEOPLES, AND HOW THE
ANGLO-AMERICANS WERE ENABLED TO ADOPT IT.
Every federal System contains defects which baffle the efforts of the
Legislator.--The federal System is complex.--It demands a daily Exercise
of Discretion on the Part of the Citizens.--Practical knowledge of
the Government common among the Americans.--Relative weakness of
the Government of the Union another defect inherent in the federal
System.--The Americans have diminished without remedying it.--The
Sovereignty of the separate States apparently weaker, but really
stronger, than that of the Union.--Why.--Natural causes of Union must
exist between confederate Peoples beside the Laws.--What these Causes
are among the Anglo-Americans.--Maine and Georgia, separated by a
Distance of a thousand Miles, more naturally united than Normandy and
Britany.--War, the main Peril of Confederations.--This proved even
by the Example of the United States.--The Union has no great Wars to
fear.--Why.--Dangers to which Europeans would be exposed if they adopted
the federal System of the Americans.
When a legislator succeeds, after persevering efforts, in exercising an
indirect influence upon the destiny of nations, his genius is lauded
by mankind, while in point of fact, the geographical position of the
country which he is unable to change, a social condition which arose
without his co-operation, manners and opinions which he cannot trace to
their source, and an origin with which he is unacquainted, exercise
so irresistible an influence over the courses of society, that he is
himself borne away by the current, after an ineffectual resistance. Like
the navigator, he may direct the vessel which bears him along, but he
can neither change its structure, nor raise the winds, nor lull the
waters which swell beneath him.
I have shown the advantages which the Americans derive from their
federal system; it remains for me to point out the circumstances which
render that system practicable, as its benefits are not to be enjoyed
by all nations. The incidental defects of the federal system which
originate in the laws may be corrected by the skill of the legislator,
but there are farther evils inherent in the system which cannot be
counteracted by the peoples which adopt it. These nations must therefore
find the strength necessary to support the natural imperfections of the
government.
The most prominent evil of all federal systems is the very complex
nature of the means they employ. Two sovereignties are necessarily in
the presence of each other. The legislator may simplify and equalize the
action of these two sovereignties, by limiting each of them to a sphere
of authority accurately defined; but he cannot combine them into one, or
prevent them from running into collision at certain points. The federal
system therefore rests upon a theory which is necessarily complicated,
and which demands the daily exercise of a considerable share of
discretion on the part of those it governs.
A proposition must be plain to be adopted by the understanding of a
people. A false notion, which is clear and precise, will always meet
with a greater number of adherents in the world than a true principle
which is obscure or involved. Hence it arises that parties, which are
like small communities in the heart of the nation, invariably adopt some
principle or some name as a symbol, which very inadequately represents
the end they have in view, and the means which are at their disposal,
but without which they could neither act nor subsist. The governments
which are founded upon a single principle or a single feeling which is
easily defined, are perhaps not the best, but they are unquestionably
the strongest and the most durable in the world.
In examining the constitution of the United States, which is the most
perfect federal constitution that ever existed, one is startled, on
the other hand, at the variety of information and the excellence of
discretion which it presupposes in the people whom it is meant to
govern. The government of the Union depends entirely upon legal
fictions; the Union is an ideal notion which only exists in the mind,
and whose limits and extent can only be discerned by the understanding.
When once the general theory is comprehended, numerous difficulties
remain to be solved in its application; for the sovereignty of the
Union is so involved in that of the states, that it is impossible to
distinguish its boundaries at the first glance. The whole structure
of the government is artificial and conventional; and it would be
ill-adapted to a people which has not long been accustomed to conduct
its own affairs, or to one in which the science of politics has not
descended to the humblest classes of society. I have never been more
struck by the good sense and the practical judgment of the Americans
than in the ingenious devices by which they elude the numberless
difficulties resulting from their federal constitution. I scarcely
ever met with a plain American citizen who could not distinguish, with
surprising facility, the obligations created by the laws of congress
from those created by the laws of his own state; and who, after having
discriminated between the matters which come under the cognizance of the
Union, and those which the local legislature is competent to regulate,
could not point out the exact limit of the several jurisdictions of the
federal courts and the tribunals of the state.
The constitution of the United States is like those exquisite
productions of human industry which ensure wealth and renown to their
inventors, but which are profitless in any other hands. This truth is
exemplified by the condition of Mexico at the present time. The Mexicans
were desirous of establishing a federal system, and they took the
federal constitution of their neighbors the Anglo-Americans as their
model, and copied it with considerable accuracy.[157] But although they
had borrowed the letter of the law, they were unable to create or
to introduce the spirit and the sense which gave it life. They were
involved in ceaseless embarrassments between the mechanism of their
double government; the sovereignty of the states and that of the Union
perpetually exceeded their respective privileges, and entered into
collision; and to the present day Mexico is alternately the victim of
anarchy and the slave of military despotism.
The second and the most fatal of all the defects I have alluded to,
and that which I believe to be inherent in the federal system, is the
relative weakness of the government of the Union. The principle upon
which all confederations rest is that of a divided sovereignty. The
legislator may render this partition less perceptible, he may even
conceal it for a time from the public eye, but he cannot prevent it from
existing; and a divided sovereignty must always be less powerful than an
entire supremacy. The reader has seen in the remarks I have made on the
constitution of the United States, that the Americans have displayed
singular ingenuity in combining the restriction of the power of the
Union within the narrow limits of the federal government, with the
semblance, and to a certain extent with the force of a national
government. By this means the legislators of the Union have succeeded
in diminishing, though not in counteracting, the natural danger of
confederations.
It has been remarked that the American government does not apply itself
to the states, but that it immediately transmits its injunctions to the
citizens, and compels them as isolated individuals to comply with its
demands. But if the federal law were to clash with the interests and
prejudices of a state, it might be feared that all the citizens of
that state would conceive themselves to be interested in the cause of a
single individual who should refuse to obey. If all the citizens of
the state were aggrieved at the same time and in the same manner by the
authority of the Union, the federal government would vainly attempt to
subdue them individually; they would instinctively unite in the common
defence, and they would derive a ready-prepared organization from the
share of sovereignty which the institution of their state allows them
to enjoy. Fiction would give way to reality, and an organized portion of
the territory might then contest the central authority.
The same observation holds good with regard to the federal jurisdiction.
If the courts of the Union violated an important law of a state in a
private case, the real, if not the apparent contest would arise
between the aggrieved state, represented by a citizen, and the Union,
represented by its courts of justice.[158]
He would have but a partial knowledge of the world who should imagine
that it is possible, by the aid of legal fictions, to prevent men from
finding out and employing those means of gratifying their passions which
have been left open to them; and it may be doubted whether the
American legislators, when they rendered a collision between the two
sovereignties less probable, destroyed the causes of such a misfortune.
But it may even be affirmed that they were unable to ensure the
preponderance of the federal element in a case of this kind. The
Union is possessed of money and of troops, but the affections and the
prejudices of the people are in the bosom of the states. The sovereignty
of the Union is an abstract being, which is connected with but few
external objects; the sovereignty of the states is hourly perceptible,
easily understood, constantly active; and if the former is of recent
creation, the latter is coeval with the people itself. The sovereignty
of the Union is factitious, that of the states is natural, and derives
its existence from its own simple influence, like the authority of a
parent. The supreme power of the nation affects only a few of the chief
interests of society; it represents an immense but remote country, and
claims a feeling of patriotism which is vague and ill-defined; but the
authority of the states controls every individual citizen at every hour
and in all circumstances; it protects his property, his freedom, and his
life; and when we recollect the traditions, the customs, the prejudices
of local and familiar attachment with which it is connected, we
cannot doubt the superiority of a power which is interwoven with every
circumstance that renders the love of one's native country instinctive
to the human heart.
Since legislators are unable to obviate such dangerous collisions
as occur between the two sovereignties which co-exist in the federal
system, their first object must be, not only to dissuade the confederate
states from warfare, but to encourage such institutions as may promote
the maintenance of peace. Hence it results that the federal compact
cannot be lasting unless there exists in the communities which are
leagued together, a certain number of inducements to union which render
their common dependance agreeable, and the task of the government
light; and that system cannot succeed without the presence of favorable
circumstances added to the influence of good laws. All the people which
have ever formed a confederation have been held together by a certain
number of common interests, which served as the intellectual ties of
association.
But the sentiments and the principles of man must be taken into
consideration as well as his immediate interest. A certain uniformity of
civilisation is not less necessary to the durability of a confederation,
than a uniformity of interests in the states which compose it. In
Switzerland the difference which exists between the canton of Uri and
the canton of Vaud is equal to that between the fifteenth and nineteenth
centuries; and, properly speaking, Switzerland has never possessed a
federal government. The Union between these two cantons only subsists
upon the map; and their discrepancies would soon be perceived if an
attempt were made by a central authority to prescribe the same laws to
the whole territory.
One of the circumstances which most powerfully contribute to support the
federal government in America, is that the states have not only similar
interests, a common origin, and a common tongue, but that they are also
arrived at the same stage of civilisation; which almost always renders
a union feasible. I do not know of any European nation, how small soever
it may be, which does not present less uniformity in its different
provinces than the American people, which occupies a territory as
extensive as one half of Europe. The distance from the state of Maine
to that of Georgia is reckoned at about one thousand miles; but the
difference between the civilisation of Maine and that of Georgia is
slighter than the difference between the habits of Normandy and those of
Britany. Maine and Georgia, which are placed at the opposite extremities
of a great empire, are consequently in the natural possession of more
real inducements to form a confederation than Normandy and Britany,
which are only separated by a bridge.
The geographical position of the country contributed to increase the
facilities which the American legislators derived from the manners and
customs of the inhabitants; and it is to this circumstance that
the adoption and the maintenance of the federal system are mainly
attributable.
The most important occurrence which can mark the annals of a people is
the breaking out of a war. In war a people struggle with the energy of
a single man against foreign nations, in the defence of its very
existence. The skill of a government, the good sense of the community,
and the natural fondness which men entertain for their country, may
suffice to maintain peace in the interior of a district, and to favor
its internal prosperity; but a nation can only carry on a great war at
the cost of more numerous and more painful sacrifices; and to suppose
that a great number of men will of their own accord comply with the
exigencies of the state, is to betray an ignorance of mankind. All the
peoples which have been obliged to sustain a long and serious warfare
have consequently been led to augment the power of their government.
Those which have not succeeded in this attempt have been subjugated.
A long war almost always places nations in the wretched alternative
of being abandoned to ruin by defeat, or to despotism by success. War
therefore renders the symptoms of the weakness of a government most
palpable and most alarming; and I have shown that the inherent defect of
federal governments is that of being weak.
The federal system is not only deficient in every kind of centralized
administration, but the central government itself is imperfectly
organized, which is invariably an influential cause of inferiority when
the nation is opposed to other countries which are themselves governed
by a single authority. In the federal constitution of the United States,
by which the central government possesses more real force, this evil
is still extremely sensible. An example will illustrate the case to the
reader.
The constitution confers upon congress the right of "calling forth
militia to execute the laws of the Union, suppress insurrections, and
repel invasions;" and another article declares that the president of the
United States is the commander-in-chief of the militia. In the war of
1812, the president ordered the militia of the northern states to march
to the frontiers; but Connecticut and Massachusetts, whose interests
were impaired by the war, refused to obey the command. They argued that
the constitution authorizes the federal government to call forth the
militia in cases of insurrection or invasion, but that, in the present
instance, there was neither invasion nor insurrection. They added,
that the same constitution which conferred upon the Union the right of
calling forth the militia, reserved to the states that of naming the
officers; and that consequently (as they understood the clause) no
officer of the Union had any right to command the militia, even during
war, except the president in person: and in this case they were ordered
to join an army commanded by another individual. These absurd and
pernicious doctrines received the sanction not only of the governors and
legislative bodies, but also of the courts of justice in both states;
and the federal government was constrained to raise elsewhere the troops
which it required.[159]
The only safeguard which the American Union, with all the relative
perfection of its laws, possesses against the dissolution which would
be produced by a great war, lies in its probable exemption from that
calamity. Placed in the centre of an immense continent, which offers
a boundless field for human industry, the Union is almost as much
insulated from the world as if its frontiers were girt by the ocean.
Canada contains only a million of inhabitants, and its population is
divided into two inimical nations. The rigor of the climate limits the
extension of its territory, and shuts up its ports during the six months
of winter. From Canada to the Gulf of Mexico a few savage tribes are
to be met with, which retire, perishing in their retreat, before six
thousand soldiers. To the south, the Union has a point of contact with
the empire of Mexico; and it is thence that serious hostilities may one
day be expected to arise. But for a long while to come, the uncivilized
state of the Mexican community, the depravity of its morals, and its
extreme poverty, will prevent that country from ranking high among
nations. As for the powers of Europe, they are too distant to be
formidable.[160]
The great advantage of the United States does not, then, consist in a
federal constitution which allows them to carry on great wars, but in a
geographical position, which renders such enterprises improbable.
No one can be more inclined than I am myself to appreciate the
advantages of the federal system, which I hold to be one of the
combinations most favorable to the prosperity and freedom of man. I
envy the lot of those nations which have been enabled to adopt it; but I
cannot believe that any confederate peoples could maintain a long or an
equal contest with a nation of similar strength in which the government
should be centralised. A people which should divide its sovereignty into
fractional powers, in the presence of the great military monarchies of
Europe, would, in my opinion, by that very act, abdicate its power, and
perhaps its existence and its name. But such is the admirable position
of the New World, that man has no other enemy than himself; and that
in order to be happy and to be free, it suffices to seek the gifts of
prosperity and the knowledge of freedom.
* * * * *
Notes:
[119] See the constitution of the United States.
[120] See the articles of the first confederation formed in 1778. This
constitution was not adopted by all the states until 1781. See also the
analysis given of this constitution in the Federalist, from No. 15 to
No. 22 inclusive, and Story's "Commentary on the Constitution of the
United States," pp. 85-115.
[121] Congress made this declaration on the 21st of February, 1787.
[122] It consisted of fifty-five members: Washington, Madison, Hamilton,
and the two Morrises, were among the number.
[123] It was not adopted by the legislative bodies, but representatives
were elected by the people for this sole purpose; and the new
constitution was discussed at length in each of these assemblies.
[124] See the amendment to the federal constitution; Federalist, No. 32.
Story, p. 711. Kent's Commentaries, Vol. i., p. 364.
It is to be observed, that whenever the _exclusive_ right of regulating
certain matters is not reserved to congress by the constitution, the
states may take up the affair, until it is brought before the national
assembly. For instance, congress has the right of making a general law
of bankruptcy, which, however, it neglects to do. Each state is then
at liberty to make a law for itself. This point, however, has been
established by discussion in the law-courts, and may be said to belong
more properly to jurisprudence.
[125] The action of this court is indirect, as we shall hereafter show.
[126] It is thus that the Federalist, No. 45, explains the division of
supremacy between the union and the states: "The powers delegated by the
constitution to the federal government are few and defined. Those which
are to remain in the state governments are numerous and indefinite. The
former will be exercised principally on external objects, as war, peace,
negotiation, and foreign commerce. The powers reserved to the several
states will extend to all the objects which, in the ordinary course of
affairs, concern the internal order and prosperity of the state."
I shall often have occasion to quote the Federalist in this work. When
the bill which has since become the constitution of the United States
was submitted to the approval of the people, and the discussions were
still pending, three men who had already acquired a portion of that
celebrity which they have since enjoyed, John Jay, Hamilton, and
Madison, formed an association with the intention of explaining to the
nation the advantages of the measure which was proposed. With this view
they published a series of articles in the shape of a journal, which now
form a complete treatise. They entitled their journal, "The Federalist,"
a name which has been retained in the work. The Federalist is an
excellent book, which ought to be familiar to the statesmen of all
countries, although it especially concerns America.
[127] See constitution, sect. 8. Federalist, Nos. 41 and 42. Kent's
Commentaries, vol. i., p. 207. Story, pp. 358-382; 409-426.
[128] Several other privileges of the same kind exist, such as that
which empowers the Union to legislate on bankruptcy, to grant patents,
and other matters in which its intervention is clearly necessary.
[129] Even in these cases its interference is indirect. The Union
interferes by means of the tribunals, as will be hereafter shown.
[130] Federal Constitution, sect. 10, art. 1.
[131] Constitution, sect. 8, 9, and 10. Federalist, Nos. 30-36
inclusive, and 41-44. Kent's Commentaries, vol. i., pp. 207 and 381.
Story pp. 329 and 514.
[132] Every ten years congress fixes anew the number of representatives
which each state is to furnish. The total number was 69 in 1789, and 240
in 1833. (See American Almanac, 1834, p. 194.)
The constitution decided that there should not be more than one
representative for every 30,000 persons; but no minimum was fixed
upon. The congress has not thought fit to augment the number of
representatives in proportion to the increase of population. The first
act which was passed on the subject (14th April, 1792: see Laws of the
United States, by Story, vol. i., p. 235) decided that there should be
one representative for every 33,000 inhabitants. The last act, which was
passed in 1822, fixes the proportion at one for 48,000. The population
represented is composed of all the freemen and of three-fifths of the
slaves.
[133] See the Federalist, Nos. 52-66, inclusive. Story, pp. 199-314
Constitution of the United States, sections 2 and 3.
[134] See the Federalist, Nos. 67-77. Constitution of the United States,
a. t. 2. Story, pp. 115; 515-780. Kent's Commentaries, p. 255.
[135] The constitution had left it doubtful whether the president
was obliged to consult the senate in the removal as well as in the
appointment of federal officers. The Federalist (No. 77) seemed to
establish the affirmative; but in 1789, congress formally decided that
as the president was responsible for his actions, he ought not to
be forced to employ agents who had forfeited his esteem. See Kent's
Commentaries, vol. i., p. 289.
[136] The sums annually paid by the state to these officers amount to
200,000,000 francs (eight millions sterling).
[137] This number is extracted from the "National Calendar," for 1833.
The National Calendar is an American almanac which contains the names of
all the federal officers.
It results from this comparison that the king of France has eleven times
as many places at his disposal as the president, although the population
of France is not much more than double that of the Union.
[138] As many as it sends members to congress. The number of electors at
the election of 1833 was 288. (See the National Calendar, 1833.)
[139] The electors of the same state assemble, but they transmit to the
central government the list of their individual votes, and not the mere
result of the vote of the majority.
[140] In this case it is the majority of the states, and not the
majority of the members, which decides the question; so that New
York has not more influence in the debate than Rhode Island. Thus the
citizens of the Union are first consulted as members of one and the same
community; and, if they cannot agree, recourse is had to the division of
the states, each of which has a separate and independent vote. This is
one of the singularities of the federal constitution which can only be
explained by the jar of conflicting interests.
[141] Jefferson, in 1801, was not elected until the thirty-sixth time of
balloting.
[142] See chapter vi., entitled, "Judicial Power in the United States."
This chapter explains the general principles of the American theory of
judicial institutions. See also the federal constitution, art. 3.
See the Federalist, Nos. 78-83, inclusive: and a work entitled,
"Constitutional Law, being a View of the Practice and Jurisdiction of
the Courts of the United States," by Thomas Sergeant. See Story, pp.
134, 162, 489, 511, 581, 668; and the organic law of the 24th September,
1789, in the collection of the laws of the United States, by Story, vol.
i., p. 53.
[143] Federal laws are those which most require courts of justice, and
those at the same time which have most rarely established them. The
reason is that confederations have usually been formed by independent
states, which entertained no real intention of obeying the central
government, and which very readily ceded the right of commanding to
the federal executive, and very prudently reserved the right of
non-compliance to themselves.
[144] The Union was divided into districts, in each of which a resident
federal judge was appointed, and the court in which he presided was
termed a "district court." Each of the judges of the supreme court
annually visits a certain portion of the Republic, in order to try the
most important causes upon the spot; the court presided over by this
magistrate is styled a "circuit court." Lastly, all the most serious
cases of litigation are brought before the supreme court, which holds
a solemn session once a year, at which all the judges of the circuit
courts must attend. The jury was introduced into the federal courts in
the same manner, and in the same cases as into the courts of the states.
It will be observed that no analogy exists between the supreme court
of the United States and the French cour de cassation, since the latter
only hears appeals. The supreme court decides upon the evidence of the
fact, as well as upon the law of the case, whereas the cour de cassation
does not pronounce a decision of its own, but refers the cause to the
arbitration of another tribunal. See the law of 24th September, 1789,
laws of the United States, by Story, vol. i., p. 53.
[145] In order to diminish the number of these suits, it was decided
that in a great many federal causes, the courts of the states should be
empowered to decide conjointly with those of the Union, the losing party
having then a right of appeal to the supreme court of the United States.
The supreme court of Virginia contested the right of the supreme
court of the United States to judge an appeal from its decisions, but
unsuccessfully. See Kent's Commentaries, vol. i., pp. 350, 370, _et
seq._; Story's Commentaries, p. 646; and "The Organic Law of the United
States," vol. i., p. 35
[146] The constitution also says that the federal courts shall decide
"controversies between a state and the citizens of another state." And
here a most important question of a constitutional nature arose, which
was, whether the jurisdiction given by the constitution in cases in
which a state is a party, extended to suits brought _against_ a state
as well as _by_ it, or was exclusively confined to the latter. This
question was most elaborately considered in the case of _Chisholme_ v.
_Georgia_, and was decided by the majority of the supreme court in the
affirmative. The decision created general alarm among the states, and
an amendment was proposed and ratified by which the power was entirely
taken away so far as it regards suits brought against a state. See
Story's Commentaries, p. 624, or in the large edition, § 1677.
[147] As, for instance, all cases of piracy.
[148] This principle was in some measure restricted by the introduction
of the several states as independent powers into the senate, and by
allowing them to vote separately in the house of representatives when
the president is elected by that body; but these are exceptions, and the
contrary principle is the rule.
[149] It is perfectly clear, says Mr. Story (Commentaries, p. 503, or in
the large edition, § 1379), that any law which enlarges, abridges, or
in any manner changes the intention of the parties, resulting from the
stipulations in the contract, necessarily impairs it. He gives in the
same place a very long and careful definition of what is understood by
a contract in federal jurisprudence. A grant made by the state to a
private individual, and accepted by him, is a contract, and cannot be
revoked by any future law. A charter granted by the state to a company
is a contract, and equally binding to the state as to the grantee. The
clause of the constitution here referred to ensures, therefore, the
existence of a great part of acquired rights, but not of all. Property
may legally be held, though it may not have passed into the possessor's
hands by means of a contract; and its possession is an acquired right,
not guaranteed by the federal constitution.
[150] A remarkable instance of this is given by Mr. Story (p. 508, or in
the large edition, § 1388). "Dartmouth college in New Hampshire had been
founded by a charter granted to certain individuals before the American
revolution, and its trustees formed a corporation under this charter.
The legislature of New Hampshire had, without the consent of this
corporation, passed an act changing the organization of the original
provincial charter of the college, and transferring all the rights,
privileges, and franchises, from the old charter trustees to new
trustees appointed under the act. The constitutionality of the act was
contested, and after solemn arguments, it was deliberately held by the
supreme court that the provincial charter was a contract within the
meaning of the constitution (art. i, sect. 10), and that the amendatory
act was utterly void, as impairing the obligation of that charter. The
college was deemed, like other colleges of private foundation, to be a
private eleemosynary institution, endowed by its charter with a capacity
to take property unconnected with the government. Its funds were
bestowed upon the faith of the charter, and those funds consisted
entirely of private donations. It is true that the uses were in some
sense public, that is, for the general benefit, and not for the mere
benefit of the corporators; but this did not make the corporation a
public corporation. It was a private institution for general charity. It
was not distinguishable in principle from a private donation, vested in
private trustees, for a public charity, or for a particular purpose
of beneficence. And the state itself, if it had bestowed funds upon a
charity of the same nature, could not resume those funds."
[151] See chapter vi., on judicial power in America.
[152] See Kent's Commentaries, vol. i., p. 387.
[153] At this time Alexander Hamilton, who was one of the principal
founders of the constitution, ventured to express the following
sentiments in the Federalist, No. 71: "There are some who would be
inclined to regard the servile pliancy of the executive to a prevailing
current, either in the community or in the legislature, as its best
recommendation. But such men entertain very crude notions, as well of
the purpose 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 intrust the managements of their affairs;
but it does not require an unqualified complaisance to every sudden
breeze of passion, or to every transient impulse which the people may
receive from the arts of men who flatter their prejudices to betray
their interests. It is a just observation that the people commonly
_intend_ the _public good_. This often applies to their very errors. But
their good sense would despise the adulator who should pretend that they
would always _reason right_, about the _means_ of promoting it. They
know from experience that they sometimes err; and the wonder is that
they so seldom err as they do, beset, as they continually are, by the
wiles of parasites and sycophants; by the snares of the ambitious, the
avaricious, the desperate; by the artifices of men who possess their
confidence more than they deserve it; and of those who seek to possess
rather than to deserve it. When occasions present themselves in which
the interests of the people are at variance with their inclinations, it
is the duty of persons whom they have appointed to be the guardians of
those interests, to withstand the temporary delusion, in order to give
them time and opportunity for more cool and sedate reflection. Instances
might be cited in which a conduct of this kind has saved the people from
very fatal consequences of their own mistakes, and has procured lasting
monuments of their gratitude to the men who had courage and magnanimity
enough to serve at the peril of their displeasure."
[154] This was the case in Greece, when Philip undertook to execute the
decree of the Amphictyons; in the Low Countries, where the province
of Holland always gave the law; and in our time in the Germanic
confederation, in which Austria and Prussia assume a great degree of
influence over the whole country, in the name of the Diet.
[155] Such has always been the situation of the Swiss confederation,
which would have perished ages ago but for the mutual jealousies of its
neighbors.
[156] I do not speak of a confederation of small republics, but of a
great consolidated republic.
[157] See the Mexican constitution of 1824.
[158] For instance, the Union possesses by the constitution the right of
selling unoccupied lands for its own profit. Supposing that the state of
Ohio should claim the same right in behalf of certain territories lying
within its boundaries, upon the plea that the constitution refers
to those lands alone 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 in the name 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 confirmed 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?
[The difficulty supposed by the author in this note is imaginary. The
question of title to the lands in the case put, must depend upon the
constitution, treaties, and laws of the United States; and a decision in
the state court adverse to the claim or title set up under those laws,
must, by the very words of the constitution and of the judiciary act,
be subject to review by the supreme court of the United States, whose
decision is final.
The remarks in the text of this page upon the relative weakness of
the government of the Union, are equally applicable to any form of
republican or democratic government, and are not peculiar to a federal
system. Under the circumstances supposed by the author, of all the
citizens of a state, or a large majority of them, aggrieved at the
same time and in the same manner, by the operation of any law, the same
difficulty would arise in executing the laws of the state as those of
the Union. Indeed, such instances of the total inefficacy of state
laws are not wanting. The fact is, that all republics depend on the
willingness of the people to execute the laws. If they will not enforce
them, there is, so far, an end to the government, for it possesses no
power adequate to the control of the physical power of the people.
Not only in theory, but in fact, a republican government must be
administered by the people themselves. They, and they alone, must
execute the laws. And hence, the first principles in such governments,
that on which all others depend, and without which no other can exist,
is and must be, obedience to the existing laws at all times and under
all circumstances. It is the vital condition of the social compact.
He who claims a dispensing power for himself, by which he suspends the
operation of the law in his own case, is worse than a usurper, for
he not only tramples under foot the constitution of his country,
but violates the reciprocal pledge which he has given to his
fellow-citizens, and has received from them, that he will abide by the
laws constitutionally enacted; upon the strength of which pledge, his
own personal rights and acquisitions are protected by the rest of the
community.--_American Editor_.]
[159] Kent's Commentaries, vol. i., p. 244. I have selected an example
which relates to a time posterior to 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 enthusiastic excitement; the revolution was
represented by a man who was the idol of the people; but at that very
period congress had, to say the truth, no resources at all at its
disposal. Troops and supplies were perpetually wanting. The best devised
projects failed in the execution, and the Union, which was constantly on
the verge of destruction, was saved by the weakness of its enemies far
more than by its own strength.
[160] Appendix O.