Chapter VII: Political Jurisdiction In T_Democracy in America

Chapter Summary

Definition of political jurisdiction—What is understood by political

jurisdiction in France, in England, and in the United States—In America

the political judge can only pass sentence on public officers—He more

frequently passes a sentence of removal from office than a

penalty—Political jurisdiction as it exists in the United States is,

notwithstanding its mildness, and perhaps in consequence of that

mildness, a most powerful instrument in the hands of the majority.

Political Jurisdiction In The United States

I understand, by political jurisdiction, that temporary right of

pronouncing a legal decision with which a political body may be

invested.

In absolute governments no utility can accrue from the introduction of

extraordinary forms of procedure; the prince in whose name an offender

is prosecuted is as much the sovereign of the courts of justice as of

everything else, and the idea which is entertained of his power is of

itself a sufficient security. The only thing he has to fear is, that

the external formalities of justice should be neglected, and that his

authority should be dishonored from a wish to render it more absolute.

But in most free countries, in which the majority can never exercise

the same influence upon the tribunals as an absolute monarch, the

judicial power has occasionally been vested for a time in the

representatives of the nation. It has been thought better to introduce

a temporary confusion between the functions of the different

authorities than to violate the necessary principle of the unity of

government.

England, France, and the United States have established this political

jurisdiction by law; and it is curious to examine the different

adaptations which these three great nations have made of the principle.

In England and in France the House of Lords and the Chambre des Paris

*a constitute the highest criminal court of their respective nations,

and although they do not habitually try all political offences, they

are competent to try them all. Another political body enjoys the right

of impeachment before the House of Lords: the only difference which

exists between the two countries in this respect is, that in England

the Commons may impeach whomsoever they please before the Lords, whilst

in France the Deputies can only employ this mode of prosecution against

the ministers of the Crown.

[ [As it existed under the constitutional monarchy down to 1848.]]

In both countries the Upper House may make use of all the existing

penal laws of the nation to punish the delinquents.

In the United States, as well as in Europe, one branch of the

legislature is authorized to impeach and another to judge: the House of

Representatives arraigns the offender, and the Senate awards his

sentence. But the Senate can only try such persons as are brought

before it by the House of Representatives, and those persons must

belong to the class of public functionaries. Thus the jurisdiction of

the Senate is less extensive than that of the Peers of France, whilst

the right of impeachment by the Representatives is more general than

that of the Deputies. But the great difference which exists between

Europe and America is, that in Europe political tribunals are empowered

to inflict all the dispositions of the penal code, while in America,

when they have deprived the offender of his official rank, and have

declared him incapable of filling any political office for the future,

their jurisdiction terminates and that of the ordinary tribunals

begins.

Suppose, for instance, that the President of the United States has

committed the crime of high treason; the House of Representatives

impeaches him, and the Senate degrades him; he must then be tried by a

jury, which alone can deprive him of his liberty or his life. This

accurately illustrates the subject we are treating. The political

jurisdiction which is established by the laws of Europe is intended to

try great offenders, whatever may be their birth, their rank, or their

powers in the State; and to this end all the privileges of the courts

of justice are temporarily extended to a great political assembly. The

legislator is then transformed into the magistrate; he is called upon

to admit, to distinguish, and to punish the offence; and as he

exercises all the authority of a judge, the law restricts him to the

observance of all the duties of that high office, and of all the

formalities of justice. When a public functionary is impeached before

an English or a French political tribunal, and is found guilty, the

sentence deprives him ipso facto of his functions, and it may pronounce

him to be incapable of resuming them or any others for the future. But

in this case the political interdict is a consequence of the sentence,

and not the sentence itself. In Europe the sentence of a political

tribunal is to be regarded as a judicial verdict rather than as an

administrative measure. In the United States the contrary takes place;

and although the decision of the Senate is judicial in its form, since

the Senators are obliged to comply with the practices and formalities

of a court of justice; although it is judicial in respect to the

motives on which it is founded, since the Senate is in general obliged

to take an offence at common law as the basis of its sentence;

nevertheless the object of the proceeding is purely administrative. If

it had been the intention of the American legislator to invest a

political body with great judicial authority, its action would not have

been limited to the circle of public functionaries, since the most

dangerous enemies of the State may be in the possession of no functions

at all; and this is especially true in republics, where party influence

is the first of authorities, and where the strength of many a reader is

increased by his exercising no legal power.

If it had been the intention of the American legislator to give society

the means of repressing State offences by exemplary punishment,

according to the practice of ordinary justice, the resources of the

penal code would all have been placed at the disposal of the political

tribunals. But the weapon with which they are intrusted is an imperfect

one, and it can never reach the most dangerous offenders, since men who

aim at the entire subversion of the laws are not likely to murmur at a

political interdict.

The main object of the political jurisdiction which obtains in the

United States is, therefore, to deprive the ill-disposed citizen of an

authority which he has used amiss, and to prevent him from ever

acquiring it again. This is evidently an administrative measure

sanctioned by the formalities of a judicial decision. In this matter

the Americans have created a mixed system; they have surrounded the act

which removes a public functionary with the securities of a political

trial; and they have deprived all political condemnations of their

severest penalties. Every link of the system may easily be traced from

this point; we at once perceive why the American constitutions subject

all the civil functionaries to the jurisdiction of the Senate, whilst

the military, whose crimes are nevertheless more formidable, are

exempted from that tribunal. In the civil service none of the American

functionaries can be said to be removable; the places which some of

them occupy are inalienable, and the others are chosen for a term which

cannot be shortened. It is therefore necessary to try them all in order

to deprive them of their authority. But military officers are dependent

on the chief magistrate of the State, who is himself a civil

functionary, and the decision which condemns him is a blow upon them

all.

If we now compare the American and the European systems, we shall meet

with differences no less striking in the different effects which each

of them produces or may produce. In France and in England the

jurisdiction of political bodies is looked upon as an extraordinary

resource, which is only to be employed in order to rescue society from

unwonted dangers. It is not to be denied that these tribunals, as they

are constituted in Europe, are apt to violate the conservative

principle of the balance of power in the State, and to threaten

incessantly the lives and liberties of the subject. The same political

jurisdiction in the United States is only indirectly hostile to the

balance of power; it cannot menace the lives of the citizens, and it

does not hover, as in Europe, over the heads of the community, since

those only who have submitted to its authority on accepting office are

exposed to the severity of its investigations. It is at the same time

less formidable and less efficacious; indeed, it has not been

considered by the legislators of the United States as a remedy for the

more violent evils of society, but as an ordinary means of conducting

the government. In this respect it probably exercises more real

influence on the social body in America than in Europe. We must not be

misled by the apparent mildness of the American legislation in all that

relates to political jurisdiction. It is to be observed, in the first

place, that in the United States the tribunal which passes sentence is

composed of the same elements, and subject to the same influences, as

the body which impeaches the offender, and that this uniformity gives

an almost irresistible impulse to the vindictive passions of parties.

If political judges in the United States cannot inflict such heavy

penalties as those of Europe, there is the less chance of their

acquitting a prisoner; and the conviction, if it is less formidable, is

more certain. The principal object of the political tribunals of Europe

is to punish the offender; the purpose of those in America is to

deprive him of his authority. A political condemnation in the United

States may, therefore, be looked upon as a preventive measure; and

there is no reason for restricting the judges to the exact definitions

of criminal law. Nothing can be more alarming than the excessive

latitude with which political offences are described in the laws of

America. Article II., Section 4, of the Constitution of the United

States runs thus:—“The President, Vice-President, and all civil

officers of the United States shall be removed from office on

impeachment for, and conviction of, treason, bribery, or other high

crimes and misdemeanors.” Many of the Constitutions of the States are

even less explicit. “Public officers,” says the Constitution of

Massachusetts, *b “shall be impeached for misconduct or

maladministration;” the Constitution of Virginia declares that all the

civil officers who shall have offended against the State, by

maladministration, corruption, or other high crimes, may be impeached

by the House of Delegates; in some constitutions no offences are

specified, in order to subject the public functionaries to an unlimited

responsibility. *c But I will venture to affirm that it is precisely

their mildness which renders the American laws most formidable in this

respect. We have shown that in Europe the removal of a functionary and

his political interdiction are the consequences of the penalty he is to

undergo, and that in America they constitute the penalty itself. The

consequence is that in Europe political tribunals are invested with

rights which they are afraid to use, and that the fear of punishing too

much hinders them from punishing at all. But in America no one

hesitates to inflict a penalty from which humanity does not recoil. To

condemn a political opponent to death, in order to deprive him of his

power, is to commit what all the world would execrate as a horrible

assassination; but to declare that opponent unworthy to exercise that

authority, to deprive him of it, and to leave him uninjured in life and

limb, may be judged to be the fair issue of the struggle. But this

sentence, which it is so easy to pronounce, is not the less fatally

severe to the majority of those upon whom it is inflicted. Great

criminals may undoubtedly brave its intangible rigor, but ordinary

offenders will dread it as a condemnation which destroys their position

in the world, casts a blight upon their honor, and condemns them to a

shameful inactivity worse than death. The influence exercised in the

United States upon the progress of society by the jurisdiction of

political bodies may not appear to be formidable, but it is only the

more immense. It does not directly coerce the subject, but it renders

the majority more absolute over those in power; it does not confer an

unbounded authority on the legislator which can be exerted at some

momentous crisis, but it establishes a temperate and regular influence,

which is at all times available. If the power is decreased, it can, on

the other hand, be more conveniently employed and more easily abused.

By preventing political tribunals from inflicting judicial punishments

the Americans seem to have eluded the worst consequences of legislative

tyranny, rather than tyranny itself; and I am not sure that political

jurisdiction, as it is constituted in the United States, is not the

most formidable weapon which has ever been placed in the rude grasp of

a popular majority. When the American republics begin to degenerate it

will be easy to verify the truth of this observation, by remarking

whether the number of political impeachments augments.*d

[ Chap. I. sect. ii. Section 8.]

[ See the constitutions of Illinois, Maine, Connecticut, and Georgia.]

[ See Appendix, N.

[The impeachment of President Andrew Johnson in 1868—which was resorted

to by his political opponents solely as a means of turning him out of

office, for it could not be contended that he had been guilty of high

crimes and misdemeanors, and he was in fact honorably acquitted and

reinstated in office—is a striking confirmation of the truth of this

remark.—Translator’s Note, 1874.]]

Chapter VIII: The Federal Constitution—Part I

I have hitherto considered each State as a separate whole, and I have

explained the different springs which the people sets in motion, and

the different means of action which it employs. But all the States

which I have considered as independent are forced to submit, in certain

cases, to the supreme authority of the Union. The time is now come for

me to examine separately the supremacy with which the Union has been

invested, and to cast a rapid glance over the Federal Constitution.

Chapter Summary

Origin of the first Union—Its weakness—Congress appeals to the

constituent authority—Interval of two years between this appeal and the

promulgation of the new Constitution.

History Of The Federal Constitution

The thirteen colonies which simultaneously threw off the yoke of

England towards the end of the last century professed, as I have

already observed, the same religion, the same language, the same

customs, and almost the same laws; they were struggling against a

common enemy; and these reasons were sufficiently strong to unite them

one to another, and to consolidate them into one nation. But as each of

them had enjoyed a separate existence and a government within its own

control, the peculiar interests and customs which resulted from this

system were opposed to a compact and intimate union which would have

absorbed the individual importance of each in the general importance of

all. Hence arose two opposite tendencies, the one prompting the

Anglo-Americans to unite, the other to divide their strength. As long

as the war with the mother-country lasted the principle of union was

kept alive by necessity; and although the laws which constituted it

were defective, the common tie subsisted in spite of their

imperfections. *a But no sooner was peace concluded than the faults of

the legislation became manifest, and the State seemed to be suddenly

dissolved. Each colony became an independent republic, and assumed an

absolute sovereignty. The federal government, condemned to impotence by

its constitution, and no longer sustained by the presence of a common

danger, witnessed the outrages offered to its flag by the great nations

of Europe, whilst it was scarcely able to maintain its ground against

the Indian tribes, and to pay the interest of the debt which had been

contracted during the war of independence. It was already on the verge

of destruction, when it officially proclaimed its inability to conduct

the government, and appealed to the constituent authority of the

nation. *b If America ever approached (for however brief a time) that

lofty pinnacle of glory to which the fancy of its inhabitants is wont

to point, it was at the solemn moment at which the power of the nation

abdicated, as it were, the empire of the land. All ages have furnished

the spectacle of a people struggling with energy to win its

independence; and the efforts of the Americans in throwing off the

English yoke have been considerably exaggerated. Separated from their

enemies by three thousand miles of ocean, and backed by a powerful

ally, the success of the United States may be more justly attributed to

their geographical position than to the valor of their armies or the

patriotism of their citizens. It would be ridiculous to compare the

American was to the wars of the French Revolution, or the efforts of

the Americans to those of the French when they were attacked by the

whole of Europe, without credit and without allies, yet capable of

opposing a twentieth part of their population to the world, and of

bearing the torch of revolution beyond their frontiers whilst they

stifled its devouring flame within the bosom of their country. But it

is a novelty in the history of society to see a great people turn a

calm and scrutinizing eye upon itself, when apprised by the legislature

that the wheels of government are stopped; to see it carefully examine

the extent of the evil, and patiently wait for two whole years until a

remedy was discovered, which it voluntarily adopted without having

wrung a tear or a drop of blood from mankind. At the time when the

inadequacy of the first constitution was discovered America possessed

the double advantage of that calm which had succeeded the effervescence

of the revolution, and of those great men who had led the revolution to

a successful issue. The assembly which accepted the task of composing

the second constitution was small; *c but George Washington was its

President, and it contained the choicest talents and the noblest hearts

which had ever appeared in the New World. This national commission,

after long and mature deliberation, offered to the acceptance of the

people the body of general laws which still rules the Union. All the

States adopted it successively. *d The new Federal Government commenced

its functions in 1789, after an interregnum of two years. The

Revolution of America terminated when that of France began.

[ See the articles of the first confederation formed in 1778. This

constitution was not adopted by all the States until 1781. See also the

analysis given of this constitution in “The Federalist” from No. 15 to

No. 22, inclusive, and Story’s “Commentaries on the Constitution of the

United States,” pp. 85-115.]

[ Congress made this declaration on February 21, 1787.]

[ It consisted of fifty-five members; Washington, Madison, Hamilton,

and the two Morrises were amongst the number.]

[ It was not adopted by the legislative bodies, but representatives

were elected by the people for this sole purpose; and the new

constitution was discussed at length in each of these assemblies.]

Summary Of The Federal Constitution

Division of authority between the Federal Government and the States—The

Government of the States is the rule, the Federal Government the

exception.

The first question which awaited the Americans was intricate, and by no

means easy of solution: the object was so to divide the authority of

the different States which composed the Union that each of them should

continue to govern itself in all that concerned its internal

prosperity, whilst the entire nation, represented by the Union, should

continue to form a compact body, and to provide for the general

exigencies of the people. It was as impossible to determine beforehand,

with any degree of accuracy, the share of authority which each of two

governments was to enjoy, as to foresee all the incidents in the

existence of a nation.

The obligations and the claims of the Federal Government were simple

and easily definable, because the Union had been formed with the

express purpose of meeting the general exigencies of the people; but

the claims and obligations of the States were, on the other hand,

complicated and various, because those Governments had penetrated into

all the details of social life. The attributes of the Federal

Government were therefore carefully enumerated and all that was not

included amongst them was declared to constitute a part of the

privileges of the several Governments of the States. Thus the

government of the States remained the rule, and that of the

Confederation became the exception. *e

[ See the Amendment to the Federal Constitution; “Federalist,” No. 32;

Story, p. 711; Kent’s “Commentaries,” vol. i. p. 364.

It is to be observed that whenever the exclusive right of regulating

certain matters is not reserved to Congress by the Constitution, the

States may take up the affair until it is brought before the National

Assembly. For instance, Congress has the right of making a general law

on bankruptcy, which, however, it neglects to do. Each State is then at

liberty to make a law for itself. This point has been established by

discussion in the law-courts, and may be said to belong more properly

to jurisprudence.]

But as it was foreseen that, in practice, questions might arise as to

the exact limits of this exceptional authority, and that it would be

dangerous to submit these questions to the decision of the ordinary

courts of justice, established in the States by the States themselves,

a high Federal court was created, *f which was destined, amongst other

functions, to maintain the balance of power which had been established

by the Constitution between the two rival Governments. *g

[ The action of this court is indirect, as we shall hereafter show.]

[ It is thus that “The Federalist,” No. 45, explains the division of

supremacy between the Union and the States: “The powers delegated by

the Constitution to the Federal Government are few and defined. Those

which are to remain in the State Governments are numerous and

indefinite. The former will be exercised principally on external

objects, as war, peace, negotiation, and foreign commerce. The powers

reserved to the several States will extend to all the objects which, in

the ordinary course of affairs, concern the internal order and

prosperity of the State.” I shall often have occasion to quote “The

Federalist” in this work. When the bill which has since become the

Constitution of the United States was submitted to the approval of the

people, and the discussions were still pending, three men, who had

already acquired a portion of that celebrity which they have since

enjoyed—John Jay, Hamilton, and Madison—formed an association with the

intention of explaining to the nation the advantages of the measure

which was proposed. With this view they published a series of articles

in the shape of a journal, which now form a complete treatise. They

entitled their journal “The Federalist,” a name which has been retained

in the work. “The Federalist” is an excellent book, which ought to be

familiar to the statesmen of all countries, although it especially

concerns America.]

Prerogative Of The Federal Government

Power of declaring war, making peace, and levying general taxes vested

in the Federal Government—What part of the internal policy of the

country it may direct—The Government of the Union in some respects more

central than the King’s Government in the old French monarchy.

The external relations of a people may be compared to those of private

individuals, and they cannot be advantageously maintained without the

agency of a single head of a Government. The exclusive right of making

peace and war, of concluding treaties of commerce, of raising armies,

and equipping fleets, was granted to the Union. *h The necessity of a

national Government was less imperiously felt in the conduct of the

internal policy of society; but there are certain general interests

which can only be attended to with advantage by a general authority.

The Union was invested with the power of controlling the monetary

system, of directing the post office, and of opening the great roads

which were to establish a communication between the different parts of

the country. *i The independence of the Government of each State was

formally recognized in its sphere; nevertheless, the Federal Government

was authorized to interfere in the internal affairs of the States *j in

a few predetermined cases, in which an indiscreet abuse of their

independence might compromise the security of the Union at large. Thus,

whilst the power of modifying and changing their legislation at

pleasure was preserved in all the republics, they were forbidden to

enact ex post facto laws, or to create a class of nobles in their

community. *k Lastly, as it was necessary that the Federal Government

should be able to fulfil its engagements, it was endowed with an

unlimited power of levying taxes. *l

[ See Constitution, sect. 8; “Federalist,” Nos. 41 and 42; Kent’s

“Commentaries,” vol. i. p. 207; Story, pp. 358-382; Ibid. pp. 409-426.]

[ 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.]

[ Even in these cases its interference is indirect. The Union

interferes by means of the tribunals, as will be hereafter shown.]

[ Federal Constitution, sect. 10, art. I.]

[ Constitution, sects. 8, 9, and 10; “Federalist,” Nos. 30-36,

inclusive, and 41-44; Kent’s “Commentaries,” vol. i. pp. 207 and 381;

Story, pp. 329 and 514.]

In examining the balance of power as established by the Federal

Constitution; in remarking on the one hand the portion of sovereignty

which has been reserved to the several States, and on the other the

share of power which the Union has assumed, it is evident that the

Federal legislators entertained the clearest and most accurate notions

on the nature of the centralization of government. The United States

form not only a republic, but a confederation; nevertheless the

authority of the nation is more central than it was in several of the

monarchies of Europe when the American Constitution was formed. Take,

for instance, the two following examples.

Thirteen supreme courts of justice existed in France, which, generally

speaking, had the right of interpreting the law without appeal; and

those provinces which were styled pays d’etats were authorized to

refuse their assent to an impost which had been levied by the sovereign

who represented the nation. In the Union there is but one tribunal to

interpret, as there is one legislature to make the laws; and an impost

voted by the representatives of the nation is binding upon all the

citizens. In these two essential points, therefore, the Union exercises

more central authority than the French monarchy possessed, although the

Union is only an assemblage of confederate republics.

In Spain certain provinces had the right of establishing a system of

custom-house duties peculiar to themselves, although that privilege

belongs, by its very nature, to the national sovereignty. In America

the Congress alone has the right of regulating the commercial relations

of the States. The government of the Confederation is therefore more

centralized in this respect than the kingdom of Spain. It is true that

the power of the Crown in France or in Spain was always able to obtain

by force whatever the Constitution of the country denied, and that the

ultimate result was consequently the same; but I am here discussing the

theory of the Constitution.

Federal Powers

After having settled the limits within which the Federal Government was

to act, the next point was to determine the powers which it was to

exert.

Legislative Powers *m

[ [In this chapter the author points out the essence of the conflict

between the seceding States and the Union which caused the Civil War of

1861.]]

Division of the Legislative Body into two branches—Difference in the

manner of forming the two Houses—The principle of the independence of

the States predominates in the formation of the Senate—The principle of

the sovereignty of the nation in the composition of the House of

Representatives—Singular effects of the fact that a Constitution can

only be logical in the early stages of a nation.

The plan which had been laid down beforehand for the Constitutions of

the several States was followed, in many points, in the organization of

the powers of the Union. The Federal legislature of the Union was

composed of a Senate and a House of Representatives. A spirit of

conciliation prescribed the observance of distinct principles in the

formation of these two assemblies. I have already shown that two

contrary interests were opposed to each other in the establishment of

the Federal Constitution. These two interests had given rise to two

opinions. It was the wish of one party to convert the Union into a

league of independent States, or a sort of congress, at which the

representatives of the several peoples would meet to discuss certain

points of their common interests. The other party desired to unite the

inhabitants of the American colonies into one sole nation, and to

establish a Government which should act as the sole representative of

the nation, as far as the limited sphere of its authority would permit.

The practical consequences of these two theories were exceedingly

different.

The question was, whether a league was to be established instead of a

national Government; whether the majority of the State, instead of the

majority of the inhabitants of the Union, was to give the law: for

every State, the small as well as the great, would then remain in the

full enjoyment of its independence, and enter the Union upon a footing

of perfect equality. If, however, the inhabitants of the United States

were to be considered as belonging to one and the same nation, it would

be just that the majority of the citizens of the Union should prescribe

the law. Of course the lesser States could not subscribe to the

application of this doctrine without, in fact, abdicating their

existence in relation to the sovereignty of the Confederation; since

they would have passed from the condition of a co-equal and

co-legislative authority to that of an insignificant fraction of a

great people. But if the former system would have invested them with an

excessive authority, the latter would have annulled their influence

altogether. Under these circumstances the result was, that the strict

rules of logic were evaded, as is usually the case when interests are

opposed to arguments. A middle course was hit upon by the legislators,

which brought together by force two systems theoretically

irreconcilable.

The principle of the independence of the States prevailed in the

formation of the Senate, and that of the sovereignty of the nation

predominated in the composition of the House of Representatives. It was

decided that each State should send two senators to Congress, and a

number of representatives proportioned to its population. *n It results

from this arrangement that the State of New York has at the present day

forty representatives and only two senators; the State of Delaware has

two senators and only one representative; the State of Delaware is

therefore equal to the State of New York in the Senate, whilst the

latter has forty times the influence of the former in the House of

Representatives. Thus, if the minority of the nation preponderates in

the Senate,. it may paralyze the decisions of the majority represented

in the other House, which is contrary to the spirit of constitutional

government.

[ Every ten years Congress fixes anew the number of representatives

which each State is to furnish. The total number was 69 in 1789, and

240 in 1833. (See “American Almanac,” 1834, p. 194.) The Constitution

decided that there should not be more than one representative for every

30,000 persons; but no minimum was fixed on. The Congress has not

thought fit to augment the number of representatives in proportion to

the increase of population. The first Act which was passed on the

subject (April 14, 1792: see “Laws of the United States,” by Story,

vol. i. p. 235) decided that there should be one representative for

every 33,000 inhabitants. The last Act, which was passed in 1832, fixes

the proportion at one for 48,000. The population represented is

composed of all the free men and of three-fifths of the slaves.

[The last Act of apportionment, passed February 2, 1872, fixes the

representation at one to 134,684 inhabitants. There are now (1875) 283

members of the lower House of Congress, and 9 for the States at large,

making in all 292 members. The old States have of course lost the

representatives which the new States have gained.—Translator’s Note.]]

These facts show how rare and how difficult it is rationally and

logically to combine all the several parts of legislation. In the

course of time different interests arise, and different principles are

sanctioned by the same people; and when a general constitution is to be

established, these interests and principles are so many natural

obstacles to the rigorous application of any political system, with all

its consequences. The early stages of national existence are the only

periods at which it is possible to maintain the complete logic of

legislation; and when we perceive a nation in the enjoyment of this

advantage, before we hasten to conclude that it is wise, we should do

well to remember that it is young. When the Federal Constitution was

formed, the interests of independence for the separate States, and the

interest of union for the whole people, were the only two conflicting

interests which existed amongst the Anglo-Americans, and a compromise

was necessarily made between them.

It is, however, just to acknowledge that this part of the Constitution

has not hitherto produced those evils which might have been feared. All

the States are young and contiguous; their customs, their ideas, and

their exigencies are not dissimilar; and the differences which result

from their size or inferiority do not suffice to set their interests at

variance. The small States have consequently never been induced to

league themselves together in the Senate to oppose the designs of the

larger ones; and indeed there is so irresistible an authority in the

legitimate expression of the will of a people that the Senate could

offer but a feeble opposition to the vote of the majority of the House

of Representatives.

It must not be forgotten, on the other hand, that it was not in the

power of the American legislators to reduce to a single nation the

people for whom they were making laws. The object of the Federal

Constitution was not to destroy the independence of the States, but to

restrain it. By acknowledging the real authority of these secondary

communities (and it was impossible to deprive them of it), they

disavowed beforehand the habitual use of constraint in enforcing g the

decisions of the majority. Upon this principle the introduction of the

influence of the States into the mechanism of the Federal Government

was by no means to be wondered at, since it only attested the existence

of an acknowledged power, which was to be humored and not forcibly

checked.

A Further Difference Between The Senate And The House Of

Representatives

The Senate named by the provincial legislators, the Representatives by

the people—Double election of the former; single election of the

latter—Term of the different offices—Peculiar functions of each House.

The Senate not only differs from the other House in the principle which

it represents, but also in the mode of its election, in the term for

which it is chosen, and in the nature of its functions. The House of

Representatives is named by the people, the Senate by the legislators

of each State; the former is directly elected, the latter is elected by

an elected body; the term for which the representatives are chosen is

only two years, that of the senators is six. The functions of the House

of Representatives are purely legislative, and the only share it takes

in the judicial power is in the impeachment of public officers. The

Senate co-operates in the work of legislation, and tries those

political offences which the House of Representatives submits to its

decision. It also acts as the great executive council of the nation;

the treaties which are concluded by the President must be ratified by

the Senate, and the appointments he may make must be definitely

approved by the same body. *o

[ See “The Federalist,” Nos. 52-56, inclusive; Story, pp. 199-314;

Constitution of the United States, sects. 2 and 3.] The Executive Power

[ See “The Federalist,” Nos. 67-77; Constitution of the United States,

art. 2; Story, p. 315, pp. 615-780; Kent’s “Commentaries,” p. 255.]

Dependence of the President—He is elective and responsible—He is free

to act in his own sphere under the inspection, but not under the

direction, of the Senate—His salary fixed at his entry into

office—Suspensive veto.

The American legislators undertook a difficult task in attempting to

create an executive power dependent on the majority of the people, and

nevertheless sufficiently strong to act without restraint in its own

sphere. It was indispensable to the maintenance of the republican form

of government that the representative of the executive power should be

subject to the will of the nation.

The President is an elective magistrate. His honor, his property, his

liberty, and his life are the securities which the people has for the

temperate use of his power. But in the exercise of his authority he

cannot be said to be perfectly independent; the Senate takes cognizance

of his relations with foreign powers, and of the distribution of public

appointments, so that he can neither be bribed nor can he employ the

means of corruption. The legislators of the Union acknowledged that the

executive power would be incompetent to fulfil its task with dignity

and utility, unless it enjoyed a greater degree of stability and of

strength than had been granted to it in the separate States.

The President is chosen for four years, and he may be reelected; so

that the chances of a prolonged administration may inspire him with

hopeful undertakings for the public good, and with the means of

carrying them into execution. The President was made the sole

representative of the executive power of the Union, and care was taken

not to render his decisions subordinate to the vote of a council—a

dangerous measure, which tends at the same time to clog the action of

the Government and to diminish its responsibility. The Senate has the

right of annulling g certain acts of the President; but it cannot

compel him to take any steps, nor does it participate in the exercise

of the executive power.

The action of the legislature on the executive power may be direct; and

we have just shown that the Americans carefully obviated this

influence; but it may, on the other hand, be indirect. Public

assemblies which have the power of depriving an officer of state of his

salary encroach upon his independence; and as they are free to make the

laws, it is to be feared lest they should gradually appropriate to

themselves a portion of that authority which the Constitution had

vested in his hands. This dependence of the executive power is one of

the defects inherent in republican constitutions. The Americans have

not been able to counteract the tendency which legislative assemblies

have to get possession of the government, but they have rendered this

propensity less irresistible. The salary of the President is fixed, at

the time of his entering upon office, for the whole period of his

magistracy. The President is, moreover, provided with a suspensive

veto, which allows him to oppose the passing of such laws as might

destroy the portion of independence which the Constitution awards him.

The struggle between the President and the legislature must always be

an unequal one, since the latter is certain of bearing down all

resistance by persevering in its plans; but the suspensive veto forces

it at least to reconsider the matter, and, if the motion be persisted

in, it must then be backed by a majority of two-thirds of the whole

house. The veto is, in fact, a sort of appeal to the people. The

executive power, which, without this security, might have been secretly

oppressed, adopts this means of pleading its cause and stating its

motives. But if the legislature is certain of overpowering all

resistance by persevering in its plans, I reply, that in the

constitutions of all nations, of whatever kind they may be, a certain

point exists at which the legislator is obliged to have recourse to the

good sense and the virtue of his fellow-citizens. This point is more

prominent and more discoverable in republics, whilst it is more remote

and more carefully concealed in monarchies, but it always exists

somewhere. There is no country in the world in which everything can be

provided for by the laws, or in which political institutions can prove

a substitute for common sense and public morality.

Differences Between The Position Of The President Of The United States

And That Of A Constitutional King Of France

Executive power in the Northern States as limited and as partial as the

supremacy which it represents—Executive power in France as universal as

the supremacy it represents—The King a branch of the legislature—The

President the mere executor of the law—Other differences resulting from

the duration of the two powers—The President checked in the exercise of

the executive authority—The King independent in its

exercise—Notwithstanding these discrepancies France is more akin to a

republic than the Union to a monarchy—Comparison of the number of

public officers depending upon the executive power in the two

countries.

The executive power has so important an influence on the destinies of

nations that I am inclined to pause for an instant at this portion of

my subject, in order more clearly to explain the part it sustains in

America. In order to form an accurate idea of the position of the

President of the United States, it may not be irrelevant to compare it

to that of one of the constitutional kings of Europe. In this

comparison I shall pay but little attention to the external signs of

power, which are more apt to deceive the eye of the observer than to

guide his researches. When a monarchy is being gradually transformed

into a republic, the executive power retains the titles, the honors,

the etiquette, and even the funds of royalty long after its authority

has disappeared. The English, after having cut off the head of one king

and expelled another from his throne, were accustomed to accost the

successor of those princes upon their knees. On the other hand, when a

republic falls under the sway of a single individual, the demeanor of

the sovereign is simple and unpretending, as if his authority was not

yet paramount. When the emperors exercised an unlimited control over

the fortunes and the lives of their fellow-citizens, it was customary

to call them Caesar in conversation, and they were in the habit of

supping without formality at their friends’ houses. It is therefore

necessary to look below the surface.

The sovereignty of the United States is shared between the Union and

the States, whilst in France it is undivided and compact: hence arises

the first and the most notable difference which exists between the

President of the United States and the King of France. In the United

States the executive power is as limited and partial as the sovereignty

of the Union in whose name it acts; in France it is as universal as the

authority of the State. The Americans have a federal and the French a

national Government.

Chapter VIII: The Federal Constitution—Part II

This cause of inferiority results from the nature of things, but it is

not the only one; the second in importance is as follows: Sovereignty

may be defined to be the right of making laws: in France, the King

really exercises a portion of the sovereign power, since the laws have

no weight till he has given his assent to them; he is, moreover, the

executor of all they ordain. The President is also the executor of the

laws, but he does not really co-operate in their formation, since the

refusal of his assent does not annul them. He is therefore merely to be

considered as the agent of the sovereign power. But not only does the

King of France exercise a portion of the sovereign power, he also

contributes to the nomination of the legislature, which exercises the

other portion. He has the privilege of appointing the members of one

chamber, and of dissolving the other at his pleasure; whereas the

President of the United States has no share in the formation of the

legislative body, and cannot dissolve any part of it. The King has the

same right of bringing forward measures as the Chambers; a right which

the President does not possess. The King is represented in each

assembly by his ministers, who explain his intentions, support his

opinions, and maintain the principles of the Government. The President

and his ministers are alike excluded from Congress; so that his

influence and his opinions can only penetrate indirectly into that

great body. The King of France is therefore on an equal footing with

the legislature, which can no more act without him than he can without

it. The President exercises an authority inferior to, and depending

upon, that of the legislature.

Even in the exercise of the executive power, properly so called—the

point upon which his position seems to be most analogous to that of the

King of France—the President labors under several causes of

inferiority. The authority of the King, in France, has, in the first

place, the advantage of duration over that of the President, and

durability is one of the chief elements of strength; nothing is either

loved or feared but what is likely to endure. The President of the

United States is a magistrate elected for four years; the King, in

France, is an hereditary sovereign. In the exercise of the executive

power the President of the United States is constantly subject to a

jealous scrutiny. He may make, but he cannot conclude, a treaty; he may

designate, but he cannot appoint, a public officer. *q The King of

France is absolute within the limits of his authority. The President of

the United States is responsible for his actions; but the person of the

King is declared inviolable by the French Charter. *r

[ 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.]

[ [This comparison applied to the Constitutional King of France and to

the powers he held under the Charter of 1830, till the overthrow of the

monarchy in 1848.—Translator’s Note.]]

Nevertheless, the supremacy of public opinion is no less above the head

of the one than of the other. This power is less definite, less

evident, and less sanctioned by the laws in France than in America, but

in fact it exists. In America, it acts by elections and decrees; in

France it proceeds by revolutions; but notwithstanding the different

constitutions of these two countries, public opinion is the predominant

authority in both of them. The fundamental principle of legislation—a

principle essentially republican—is the same in both countries,

although its consequences may be different, and its results more or

less extensive. Whence I am led to conclude that France with its King

is nearer akin to a republic than the Union with its President is to a

monarchy.

In what I have been saying I have only touched upon the main points of

distinction; and if I could have entered into details, the contrast

would have been rendered still more striking. I have remarked that the

authority of the President in the United States is only exercised

within the limits of a partial sovereignty, whilst that of the King in

France is undivided. I might have gone on to show that the power of the

King’s government in France exceeds its natural limits, however

extensive they may be, and penetrates in a thousand different ways into

the administration of private interests. Amongst the examples of this

influence may be quoted that which results from the great number of

public functionaries, who all derive their appointments from the

Government. This number now exceeds all previous limits; it amounts to

138,000 *s nominations, each of which may be considered as an element

of power. The President of the United States has not the exclusive

right of making any public appointments, and their whole number

scarcely exceeds 12,000. *t

[ The sums annually paid by the State to these officers amount to

200,000,000 fr. ($40,000,000).]

[ This number is extracted from the “National Calendar” for 1833. The

“National Calendar” is an American almanac which contains the names of

all the Federal officers. It results from this comparison that the King

of France has eleven times as many places at his disposal as the

President, although the population of France is not much more than

double that of the Union.

[I have not the means of ascertaining the number of appointments now at

the disposal of the President of the United States, but his patronage

and the abuse of it have largely increased since 1833.—Translator’s

Note, 1875.]]

Accidental Causes Which May Increase The Influence Of The Executive

Government

External security of the Union—Army of six thousand men—Few ships—The

President has no opportunity of exercising his great prerogatives—In

the prerogatives he exercises he is weak.

If the executive government is feebler in America than in France, the

cause is more attributable to the circumstances than to the laws of the

country.

It is chiefly in its foreign relations that the executive power of a

nation is called upon to exert its skill and its vigor. If the

existence of the Union were perpetually threatened, and if its chief

interests were in daily connection with those of other powerful

nations, the executive government would assume an increased importance

in proportion to the measures expected of it, and those which it would

carry into effect. The President of the United States is the

commander-in-chief of the army, but of an army composed of only six

thousand men; he commands the fleet, but the fleet reckons but few

sail; he conducts the foreign relations of the Union, but the United

States are a nation without neighbors. Separated from the rest of the

world by the ocean, and too weak as yet to aim at the dominion of the

seas, they have no enemies, and their interests rarely come into

contact with those of any other nation of the globe.

The practical part of a Government must not be judged by the theory of

its constitution. The President of the United States is in the

possession of almost royal prerogatives, which he has no opportunity of

exercising; and those privileges which he can at present use are very

circumscribed. The laws allow him to possess a degree of influence

which circumstances do not permit him to employ.

On the other hand, the great strength of the royal prerogative in

France arises from circumstances far more than from the laws. There the

executive government is constantly struggling against prodigious

obstacles, and exerting all its energies to repress them; so that it

increases by the extent of its achievements, and by the importance of

the events it controls, without modifying its constitution. If the laws

had made it as feeble and as circumscribed as it is in the Union, its

influence would very soon become still more preponderant.

Why The President Of The United States Does Not Require The Majority Of

The Two Houses In Order To Carry On The Government It is an established

axiom in Europe that a constitutional King cannot persevere in a system

of government which is opposed by the two other branches of the

legislature. But several Presidents of the United States have been

known to lose the majority in the legislative body without being

obliged to abandon the supreme power, and without inflicting a serious

evil upon society. I have heard this fact quoted as an instance of the

independence and the power of the executive government in America: a

moment’s reflection will convince us, on the contrary, that it is a

proof of its extreme weakness.

A King in Europe requires the support of the legislature to enable him

to perform the duties imposed upon him by the Constitution, because

those duties are enormous. A constitutional King in Europe is not

merely the executor of the law, but the execution of its provisions

devolves so completely upon him that he has the power of paralyzing its

influence if it opposes his designs. He requires the assistance of the

legislative assemblies to make the law, but those assemblies stand in

need of his aid to execute it: these two authorities cannot subsist

without each other, and the mechanism of government is stopped as soon

as they are at variance.

In America the President cannot prevent any law from being passed, nor

can he evade the obligation of enforcing it. His sincere and zealous

co-operation is no doubt useful, but it is not indispensable, in the

carrying on of public affairs. All his important acts are directly or

indirectly submitted to the legislature, and of his own free authority

he can do but little. It is therefore his weakness, and not his power,

which enables him to remain in opposition to Congress. In Europe,

harmony must reign between the Crown and the other branches of the

legislature, because a collision between them may prove serious; in

America, this harmony is not indispensable, because such a collision is

impossible.

Election Of The President

Dangers of the elective system increase in proportion to the extent of

the prerogative—This system possible in America because no powerful

executive authority is required—What circumstances are favorable to the

elective system—Why the election of the President does not cause a

deviation from the principles of the Government—Influence of the

election of the President on secondary functionaries.

The dangers of the system of election applied to the head of the

executive government of a great people have been sufficiently

exemplified by experience and by history, and the remarks I am about to

make refer to America alone. These dangers may be more or less

formidable in proportion to the place which the executive power

occupies, and to the importance it possesses in the State; and they may

vary according to the mode of election and the circumstances in which

the electors are placed. The most weighty argument against the election

of a chief magistrate is, that it offers so splendid a lure to private

ambition, and is so apt to inflame men in the pursuit of power, that

when legitimate means are wanting force may not unfrequently seize what

right denied.

It is clear that the greater the privileges of the executive authority

are, the greater is the temptation; the more the ambition of the

candidates is excited, the more warmly are their interests espoused by

a throng of partisans who hope to share the power when their patron has

won the prize. The dangers of the elective system increase, therefore,

in the exact ratio of the influence exercised by the executive power in

the affairs of State. The revolutions of Poland were not solely

attributable to the elective system in general, but to the fact that

the elected monarch was the sovereign of a powerful kingdom. Before we

can discuss the absolute advantages of the elective system we must make

preliminary inquiries as to whether the geographical position, the

laws, the habits, the manners, and the opinions of the people amongst

whom it is to be introduced will admit of the establishment of a weak

and dependent executive government; for to attempt to render the

representative of the State a powerful sovereign, and at the same time

elective, is, in my opinion, to entertain two incompatible designs. To

reduce hereditary royalty to the condition of an elective authority,

the only means that I am acquainted with are to circumscribe its sphere

of action beforehand, gradually to diminish its prerogatives, and to

accustom the people to live without its protection. Nothing, however,

is further from the designs of the republicans of Europe than this

course: as many of them owe their hatred of tyranny to the sufferings

which they have personally undergone, it is oppression, and not the

extent of the executive power, which excites their hostility, and they

attack the former without perceiving how nearly it is connected with

the latter.

Hitherto no citizen has shown any disposition to expose his honor and

his life in order to become the President of the United States; because

the power of that office is temporary, limited, and subordinate. The

prize of fortune must be great to encourage adventurers in so desperate

a game. No candidate has as yet been able to arouse the dangerous

enthusiasm or the passionate sympathies of the people in his favor, for

the very simple reason that when he is at the head of the Government he

has but little power, but little wealth, and but little glory to share

amongst his friends; and his influence in the State is too small for

the success or the ruin of a faction to depend upon the elevation of an

individual to power.

The great advantage of hereditary monarchies is, that as the private

interest of a family is always intimately connected with the interests

of the State, the executive government is never suspended for a single

instant; and if the affairs of a monarchy are not better conducted than

those of a republic, at least there is always some one to conduct them,

well or ill, according to his capacity. In elective States, on the

contrary, the wheels of government cease to act, as it were, of their

own accord at the approach of an election, and even for some time

previous to that event. The laws may indeed accelerate the operation of

the election, which may be conducted with such simplicity and rapidity

that the seat of power will never be left vacant; but, notwithstanding

these precautions, a break necessarily occurs in the minds of the

people.

At the approach of an election the head of the executive government is

wholly occupied by the coming struggle; his future plans are doubtful;

he can undertake nothing new, and the he will only prosecute with

indifference those designs which another will perhaps terminate. “I am

so near the time of my retirement from office,” said President

Jefferson on the 21st of January, 1809 (six weeks before the election),

“that I feel no passion, I take no part, I express no sentiment. It

appears to me just to leave to my successor the commencement of those

measures which he will have to prosecute, and for which he will be

responsible.”

On the other hand, the eyes of the nation are centred on a single

point; all are watching the gradual birth of so important an event. The

wider the influence of the executive power extends, the greater and the

more necessary is its constant action, the more fatal is the term of

suspense; and a nation which is accustomed to the government, or, still

more, one used to the administrative protection of a powerful executive

authority would be infallibly convulsed by an election of this kind. In

the United States the action of the Government may be slackened with

impunity, because it is always weak and circumscribed. *u

[ [This, however, may be a great danger. The period during which Mr.

Buchanan retained office, after the election of Mr. Lincoln, from

November, 1860, to March, 1861, was that which enabled the seceding

States of the South to complete their preparations for the Civil War,

and the Executive Government was paralyzed. No greater evil could

befall a nation.—Translator’s Note.]]

One of the principal vices of the elective system is that it always

introduces a certain degree of instability into the internal and

external policy of the State. But this disadvantage is less sensibly

felt if the share of power vested in the elected magistrate is small.

In Rome the principles of the Government underwent no variation,

although the Consuls were changed every year, because the Senate, which

was an hereditary assembly, possessed the directing authority. If the

elective system were adopted in Europe, the condition of most of the

monarchical States would be changed at every new election. In America

the President exercises a certain influence on State affairs, but he

does not conduct them; the preponderating power is vested in the

representatives of the whole nation. The political maxims of the

country depend therefore on the mass of the people, not on the

President alone; and consequently in America the elective system has no

very prejudicial influence on the fixed principles of the Government.

But the want of fixed principles is an evil so inherent in the elective

system that it is still extremely perceptible in the narrow sphere to

which the authority of the President extends.

The Americans have admitted that the head of the executive power, who

has to bear the whole responsibility of the duties he is called upon to

fulfil, ought to be empowered to choose his own agents, and to remove

them at pleasure: the legislative bodies watch the conduct of the

President more than they direct it. The consequence of this arrangement

is, that at every new election the fate of all the Federal public

officers is in suspense. Mr. Quincy Adams, on his entry into office,

discharged the majority of the individuals who had been appointed by

his predecessor: and I am not aware that General Jackson allowed a

single removable functionary employed in the Federal service to retain

his place beyond the first year which succeeded his election. It is

sometimes made a subject of complaint that in the constitutional

monarchies of Europe the fate of the humbler servants of an

Administration depends upon that of the Ministers. But in elective

Governments this evil is far greater. In a constitutional monarchy

successive ministries are rapidly formed; but as the principal

representative of the executive power does not change, the spirit of

innovation is kept within bounds; the changes which take place are in

the details rather than in the principles of the administrative system;

but to substitute one system for another, as is done in America every

four years, by law, is to cause a sort of revolution. As to the

misfortunes which may fall upon individuals in consequence of this

state of things, it must be allowed that the uncertain situation of the

public officers is less fraught with evil consequences in America than

elsewhere. It is so easy to acquire an independent position in the

United States that the public officer who loses his place may be

deprived of the comforts of life, but not of the means of subsistence.

I remarked at the beginning of this chapter that the dangers of the

elective system applied to the head of the State are augmented or

decreased by the peculiar circumstances of the people which adopts it.

However the functions of the executive power may be restricted, it must

always exercise a great influence upon the foreign policy of the

country, for a negotiation cannot be opened or successfully carried on

otherwise than by a single agent. The more precarious and the more

perilous the position of a people becomes, the more absolute is the

want of a fixed and consistent external policy, and the more dangerous

does the elective system of the Chief Magistrate become. The policy of

the Americans in relation to the whole world is exceedingly simple; for

it may almost be said that no country stands in need of them, nor do

they require the co-operation of any other people. Their independence

is never threatened. In their present condition, therefore, the

functions of the executive power are no less limited by circumstances

than by the laws; and the President may frequently change his line of

policy without involving the State in difficulty or destruction.

Whatever the prerogatives of the executive power may be, the period

which immediately precedes an election and the moment of its duration

must always be considered as a national crisis, which is perilous in

proportion to the internal embarrassments and the external dangers of

the country. Few of the nations of Europe could escape the calamities

of anarchy or of conquest every time they might have to elect a new

sovereign. In America society is so constituted that it can stand

without assistance upon its own basis; nothing is to be feared from the

pressure of external dangers, and the election of the President is a

cause of agitation, but not of ruin.

Mode Of Election

Skill of the American legislators shown in the mode of election adopted

by them—Creation of a special electoral body—Separate votes of these

electors—Case in which the House of Representatives is called upon to

choose the President—Results of the twelve elections which have taken

place since the Constitution has been established.

Besides the dangers which are inherent in the system, many other

difficulties may arise from the mode of election, which may be obviated

by the precaution of the legislator. When a people met in arms on some

public spot to choose its head, it was exposed to all the chances of

civil war resulting from so martial a mode of proceeding, besides the

dangers of the elective system in itself. The Polish laws, which

subjected the election of the sovereign to the veto of a single

individual, suggested the murder of that individual or prepared the way

to anarchy.

In the examination of the institutions and the political as well as

social condition of the United States, we are struck by the admirable

harmony of the gifts of fortune and the efforts of man. The nation

possessed two of the main causes of internal peace; it was a new

country, but it was inhabited by a people grown old in the exercise of

freedom. America had no hostile neighbors to dread; and the American

legislators, profiting by these favorable circumstances, created a weak

and subordinate executive power which could without danger be made

elective.

It then only remained for them to choose the least dangerous of the

various modes of election; and the rules which they laid down upon this

point admirably correspond to the securities which the physical and

political constitution of the country already afforded. Their object

was to find the mode of election which would best express the choice of

the people with the least possible excitement and suspense. It was

admitted in the first place that the simple majority should be

decisive; but the difficulty was to obtain this majority without an

interval of delay which it was most important to avoid. It rarely

happens that an individual can at once collect the majority of the

suffrages of a great people; and this difficulty is enhanced in a

republic of confederate States, where local influences are apt to

preponderate. The means by which it was proposed to obviate this second

obstacle was to delegate the electoral powers of the nation to a body

of representatives. This mode of election rendered a majority more

probable; for the fewer the electors are, the greater is the chance of

their coming to a final decision. It also offered an additional

probability of a judicious choice. It then remained to be decided

whether this right of election was to be entrusted to a legislative

body, the habitual representative assembly of the nation, or whether an

electoral assembly should be formed for the express purpose of

proceeding to the nomination of a President. The Americans chose the

latter alternative, from a belief that the individuals who were

returned to make the laws were incompetent to represent the wishes of

the nation in the election of its chief magistrate; and that, as they

are chosen for more than a year, the constituency they represent might

have changed its opinion in that time. It was thought that if the

legislature was empowered to elect the head of the executive power, its

members would, for some time before the election, be exposed to the

manoeuvres of corruption and the tricks of intrigue; whereas the

special electors would, like a jury, remain mixed up with the crowd

till the day of action, when they would appear for the sole purpose of

giving their votes.

It was therefore established that every State should name a certain

number of electors, *v who in their turn should elect the President;

and as it had been observed that the assemblies to which the choice of

a chief magistrate had been entrusted in elective countries inevitably

became the centres of passion and of cabal; that they sometimes usurped

an authority which did not belong to them; and that their proceedings,

or the uncertainty which resulted from them, were sometimes prolonged

so much as to endanger the welfare of the State, it was determined that

the electors should all vote upon the same day, without being convoked

to the same place. *w This double election rendered a majority

probable, though not certain; for it was possible that as many

differences might exist between the electors as between their

constituents. In this case it was necessary to have recourse to one of

three measures; either to appoint new electors, or to consult a second

time those already appointed, or to defer the election to another

authority. The first two of these alternatives, independently of the

uncertainty of their results, were likely to delay the final decision,

and to perpetuate an agitation which must always be accompanied with

danger. The third expedient was therefore adopted, and it was agreed

that the votes should be transmitted sealed to the President of the

Senate, and that they should be opened and counted in the presence of

the Senate and the House of Representatives. If none of the candidates

has a majority, the House of Representatives then proceeds immediately

to elect a President, but with the condition that it must fix upon one

of the three candidates who have the highest numbers. *x

[ As many as it sends members to Congress. The number of electors at

the election of 1833 was 288. (See “The National Calendar,” 1833.)]

[ The electors of the same State assemble, but they transmit to the

central government the list of their individual votes, and not the mere

result of the vote of the majority.] [Footnote x: In this case it is

the majority of the States, and not the majority of the members, which

decides the question; so that New York has not more influence in the

debate than Rhode Island. Thus the citizens of the Union are first

consulted as members of one and the same community; and, if they cannot

agree, recourse is had to the division of the States, each of which has

a separate and independent vote. This is one of the singularities of

the Federal Constitution which can only be explained by the jar of

conflicting interests.]

Thus it is only in case of an event which cannot often happen, and

which can never be foreseen, that the election is entrusted to the

ordinary representatives of the nation; and even then they are obliged

to choose a citizen who has already been designated by a powerful

minority of the special electors. It is by this happy expedient that

the respect which is due to the popular voice is combined with the

utmost celerity of execution and those precautions which the peace of

the country demands. But the decision of the question by the House of

Representatives does not necessarily offer an immediate solution of the

difficulty, for the majority of that assembly may still be doubtful,

and in this case the Constitution prescribes no remedy. Nevertheless,

by restricting the number of candidates to three, and by referring the

matter to the judgment of an enlightened public body, it has smoothed

all the obstacles *y which are not inherent in the elective system.

[ Jefferson, in 1801, was not elected until the thirty-sixth time of

balloting.]

In the forty-four years which have elapsed since the promulgation of

the Federal Constitution the United States have twelve times chosen a

President. Ten of these elections took place simultaneously by the

votes of the special electors in the different States. The House of

Representatives has only twice exercised its conditional privilege of

deciding in cases of uncertainty; the first time was at the election of

Mr. Jefferson in 1801; the second was in 1825, when Mr. Quincy Adams

was named. *z

[ [General Grant is now (1874) the eighteenth President of the United

States.]]

Crises Of The Election

The Election may be considered as a national crisis—Why?—Passions of

the people—Anxiety of the President—Calm which succeeds the agitation

of the election.

I have shown what the circumstances are which favored the adoption of

the elective system in the United States, and what precautions were

taken by the legislators to obviate its dangers. The Americans are

habitually accustomed to all kinds of elections, and they know by

experience the utmost degree of excitement which is compatible with

security. The vast extent of the country and the dissemination of the

inhabitants render a collision between parties less probable and less

dangerous there than elsewhere. The political circumstances under which

the elections have hitherto been carried on have presented no real

embarrassments to the nation.

Nevertheless, the epoch of the election of a President of the United

States may be considered as a crisis in the affairs of the nation. The

influence which he exercises on public business is no doubt feeble and

indirect; but the choice of the President, which is of small importance

to each individual citizen, concerns the citizens collectively; and

however trifling an interest may be, it assumes a great degree of

importance as soon as it becomes general. The President possesses but

few means of rewarding his supporters in comparison to the kings of

Europe, but the places which are at his disposal are sufficiently

numerous to interest, directly or indirectly, several thousand electors

in his success. Political parties in the United States are led to rally

round an individual, in order to acquire a more tangible shape in the

eyes of the crowd, and the name of the candidate for the Presidency is

put forward as the symbol and personification of their theories. For

these reasons parties are strongly interested in gaining the election,

not so much with a view to the triumph of their principles under the

auspices of the President-elect as to show by the majority which

returned him, the strength of the supporters of those principles.

For a long while before the appointed time is at hand the election

becomes the most important and the all-engrossing topic of discussion.

The ardor of faction is redoubled; and all the artificial passions

which the imagination can create in the bosom of a happy and peaceful

land are agitated and brought to light. The President, on the other

hand, is absorbed by the cares of self-defence. He no longer governs

for the interest of the State, but for that of his re-election; he does

homage to the majority, and instead of checking its passions, as his

duty commands him to do, he frequently courts its worst caprices. As

the election draws near, the activity of intrigue and the agitation of

the populace increase; the citizens are divided into hostile camps,

each of which assumes the name of its favorite candidate; the whole

nation glows with feverish excitement; the election is the daily theme

of the public papers, the subject of private conversation, the end of

every thought and every action, the sole interest of the present. As

soon as the choice is determined, this ardor is dispelled; and as a

calmer season returns, the current of the State, which had nearly

broken its banks, sinks to its usual level: *a but who can refrain from

astonishment at the causes of the storm.

[ [Not always. The election of President Lincoln was the signal of

civil war.—Translator’s Note.]]

Chapter VIII: The Federal Constitution—Part III

Re-election Of The President

When the head of the executive power is re-eligible, it is the State

which is the source of intrigue and corruption—The desire of being

re-elected the chief aim of a President of the United

States—Disadvantage of the system peculiar to America—The natural evil

of democracy is that it subordinates all authority to the slightest

desires of the majority—The re-election of the President encourages

this evil.

It may be asked whether the legislators of the United States did right

or wrong in allowing the re-election of the President. It seems at

first sight contrary to all reason to prevent the head of the executive

power from being elected a second time. The influence which the talents

and the character of a single individual may exercise upon the fate of

a whole people, in critical circumstances or arduous times, is well

known: a law preventing the re-election of the chief magistrate would

deprive the citizens of the surest pledge of the prosperity and the

security of the commonwealth; and, by a singular inconsistency, a man

would be excluded from the government at the very time when he had

shown his ability in conducting its affairs.

But if these arguments are strong, perhaps still more powerful reasons

may be advanced against them. Intrigue and corruption are the natural

defects of elective government; but when the head of the State can be

re-elected these evils rise to a great height, and compromise the very

existence of the country. When a simple candidate seeks to rise by

intrigue, his manoeuvres must necessarily be limited to a narrow

sphere; but when the chief magistrate enters the lists, he borrows the

strength of the government for his own purposes. In the former case the

feeble resources of an individual are in action; in the latter, the

State itself, with all its immense influence, is busied in the work of

corruption and cabal. The private citizen, who employs the most immoral

practices to acquire power, can only act in a manner indirectly

prejudicial to the public prosperity. But if the representative of the

executive descends into the combat, the cares of government dwindle

into second-rate importance, and the success of his election is his

first concern. All laws and all the negotiations he undertakes are to

him nothing more than electioneering schemes; places become the reward

of services rendered, not to the nation, but to its chief; and the

influence of the government, if not injurious to the country, is at

least no longer beneficial to the community for which it was created.

It is impossible to consider the ordinary course of affairs in the

United States without perceiving that the desire of being re-elected is

the chief aim of the President; that his whole administration, and even

his most indifferent measures, tend to this object; and that, as the

crisis approaches, his personal interest takes the place of his

interest in the public good. The principle of re-eligibility renders

the corrupt influence of elective government still more extensive and

pernicious.

In America it exercises a peculiarly fatal influence on the sources of

national existence. Every government seems to be afflicted by some evil

which is inherent in its nature, and the genius of the legislator is

shown in eluding its attacks. A State may survive the influence of a

host of bad laws, and the mischief they cause is frequently

exaggerated; but a law which encourages the growth of the canker within

must prove fatal in the end, although its bad consequences may not be

immediately perceived.

The principle of destruction in absolute monarchies lies in the

excessive and unreasonable extension of the prerogative of the crown;

and a measure tending to remove the constitutional provisions which

counterbalance this influence would be radically bad, even if its

immediate consequences were unattended with evil. By a parity of

reasoning, in countries governed by a democracy, where the people is

perpetually drawing all authority to itself, the laws which increase or

accelerate its action are the direct assailants of the very principle

of the government.

The greatest proof of the ability of the American legislators is, that

they clearly discerned this truth, and that they had the courage to act

up to it. They conceived that a certain authority above the body of the

people was necessary, which should enjoy a degree of independence,

without, however, being entirely beyond the popular control; an

authority which would be forced to comply with the permanent

determinations of the majority, but which would be able to resist its

caprices, and to refuse its most dangerous demands. To this end they

centred the whole executive power of the nation in a single arm; they

granted extensive prerogatives to the President, and they armed him

with the veto to resist the encroachments of the legislature.

But by introducing the principle of re-election they partly destroyed

their work; and they rendered the President but little inclined to

exert the great power they had vested in his hands. If ineligible a

second time, the President would be far from independent of the people,

for his responsibility would not be lessened; but the favor of the

people would not be so necessary to him as to induce him to court it by

humoring its desires. If re-eligible (and this is more especially true

at the present day, when political morality is relaxed, and when great

men are rare), the President of the United States becomes an easy tool

in the hands of the majority. He adopts its likings and its

animosities, he hastens to anticipate its wishes, he forestalls its

complaints, he yields to its idlest cravings, and instead of guiding

it, as the legislature intended that he should do, he is ever ready to

follow its bidding. Thus, in order not to deprive the State of the

talents of an individual, those talents have been rendered almost

useless; and to reserve an expedient for extraordinary perils, the

country has been exposed to daily dangers.

Federal Courts *b

[ See chap. VI, entitled “Judicial Power in the United States.” This

chapter explains the general principles of the American theory of

judicial institutions. See also the Federal Constitution, Art. 3. See

“The Federalists,” Nos. 78-83, inclusive; and a work entitled

“Constitutional Law,” being a view of the practice and jurisdiction of

the courts of the United States, by Thomas Sergeant. See Story, pp.

134, 162, 489, 511, 581, 668; and the organic law of September 24,

1789, in the “Collection of the Laws of the United States,” by Story,

vol. i. p. 53.]

Political importance of the judiciary in the United States—Difficulty

of treating this subject—Utility of judicial power in

confederations—What tribunals could be introduced into the

Union—Necessity of establishing federal courts of justice—Organization

of the national judiciary—The Supreme Court—In what it differs from all

known tribunals.

Chapter VII: Political Jurisdiction In The United States