I have inquired into the legislative and executive power of the Union,

and the judicial power now remains to be examined; but in this place I

cannot conceal my fears from the reader. Their judicial institutions

exercise a great influence on the condition of the Anglo-Americans, and

they occupy a prominent place amongst what are probably called

political institutions: in this respect they are peculiarly deserving

of our attention. But I am at a loss to explain the political action of

the American tribunals without entering into some technical details of

their constitution and their forms of proceeding; and I know not how to

descend to these minutiae without wearying the curiosity of the reader

by the natural aridity of the subject, or without risking to fall into

obscurity through a desire to be succinct. I can scarcely hope to

escape these various evils; for if I appear too lengthy to a man of the

world, a lawyer may on the other hand complain of my brevity. But these

are the natural disadvantages of my subject, and more especially of the

point which I am about to discuss.

The great difficulty was, not to devise the Constitution to the Federal

Government, but to find out a method of enforcing its laws. Governments

have in general but two means of overcoming the opposition of the

people they govern, viz., the physical force which is at their own

disposal, and the moral force which they derive from the decisions of

the courts of justice.

A government which should have no other means of exacting obedience

than open war must be very near its ruin, for one of two alternatives

would then probably occur: if its authority was small and its character

temperate, it would not resort to violence till the last extremity, and

it would connive at a number of partial acts of insubordination, in

which case the State would gradually fall into anarchy; if it was

enterprising and powerful, it would perpetually have recourse to its

physical strength, and would speedily degenerate into a military

despotism. So that its activity would not be less prejudicial to the

community than its inaction.

The great end of justice is to substitute the notion of right for that

of violence, and to place a legal barrier between the power of the

government and the use of physical force. The authority which is

awarded to the intervention of a court of justice by the general

opinion of mankind is so surprisingly great that it clings to the mere

formalities of justice, and gives a bodily influence to the shadow of

the law. The moral force which courts of justice possess renders the

introduction of physical force exceedingly rare, and is very frequently

substituted for it; but if the latter proves to be indispensable, its

power is doubled by the association of the idea of law.

A federal government stands in greater need of the support of judicial

institutions than any other, because it is naturally weak and exposed

to formidable opposition. *c If it were always obliged to resort to

violence in the first instance, it could not fulfil its task. The

Union, therefore, required a national judiciary to enforce the

obedience of the citizens to the laws, and to repeal the attacks which

might be directed against them. The question then remained as to what

tribunals were to exercise these privileges; were they to be entrusted

to the courts of justice which were already organized in every State?

or was it necessary to create federal courts? It may easily be proved

that the Union could not adapt the judicial power of the States to its

wants. The separation of the judiciary from the administrative power of

the State no doubt affects the security of every citizen and the

liberty of all. But it is no less important to the existence of the

nation that these several powers should have the same origin, should

follow the same principles, and act in the same sphere; in a word, that

they should be correlative and homogeneous. No one, I presume, ever

suggested the advantage of trying offences committed in France by a

foreign court of justice, in order to secure the impartiality of the

judges. The Americans form one people in relation to their Federal

Government; but in the bosom of this people divers political bodies

have been allowed to subsist which are dependent on the national

Government in a few points, and independent in all the rest; which have

all a distinct origin, maxims peculiar to themselves, and special means

of carrying on their affairs. To entrust the execution of the laws of

the Union to tribunals instituted by these political bodies would be to

allow foreign judges to preside over the nation. Nay, more; not only is

each State foreign to the Union at large, but it is in perpetual

opposition to the common interests, since whatever authority the Union

loses turns to the advantage of the States. Thus to enforce the laws of

the Union by means of the tribunals of the States would be to allow not

only foreign but partial judges to preside over the nation.

c

[ Federal laws are those which most require courts of justice, and

those at the same time which have most rarely established them. The

reason is that confederations have usually been formed by independent

States, which entertained no real intention of obeying the central

Government, and which very readily ceded the right of command to the

federal executive, and very prudently reserved the right of

non-compliance to themselves.]

But the number, still more than the mere character, of the tribunals of

the States rendered them unfit for the service of the nation. When the

Federal Constitution was formed there were already thirteen courts of

justice in the United States which decided causes without appeal. That

number is now increased to twenty-four. To suppose that a State can

subsist when its fundamental laws may be subjected to four-and-twenty

different interpretations at the same time is to advance a proposition

alike contrary to reason and to experience.

The American legislators therefore agreed to create a federal judiciary

power to apply the laws of the Union, and to determine certain

questions affecting general interests, which were carefully determined

beforehand. The entire judicial power of the Union was centred in one

tribunal, which was denominated the Supreme Court of the United States.

But, to facilitate the expedition of business, inferior courts were

appended to it, which were empowered to decide causes of small

importance without appeal, and with appeal causes of more magnitude.

The members of the Supreme Court are named neither by the people nor

the legislature, but by the President of the United States, acting with

the advice of the Senate. In order to render them independent of the

other authorities, their office was made inalienable; and it was

determined that their salary, when once fixed, should not be altered by

the legislature. *d It was easy to proclaim the principle of a Federal

judiciary, but difficulties multiplied when the extent of its

jurisdiction was to be determined.

d

[ The Union was divided into districts, in each of which a resident

Federal judge was appointed, and the court in which he presided was

termed a “District Court.” Each of the judges of the Supreme Court

annually visits a certain portion of the Republic, in order to try the

most important causes upon the spot; the court presided over by this

magistrate is styled a “Circuit Court.” Lastly, all the most serious

cases of litigation are brought before the Supreme Court, which holds a

solemn session once a year, at which all the judges of the Circuit

Courts must attend. The jury was introduced into the Federal Courts in

the same manner, and in the same cases, as into the courts of the

States.

It will be observed that no analogy exists between the Supreme Court of

the United States and the French Cour de Cassation, since the latter

only hears appeals on questions of law. The Supreme Court decides upon

the evidence of the fact as well as upon the law of the case, whereas

the Cour de Cassation does not pronounce a decision of its own, but

refers the cause to the arbitration of another tribunal. See the law of

September 24, 1789, “Laws of the United States,” by Story, vol. i. p.

53.]

Means Of Determining The Jurisdiction Of The Federal Courts Difficulty

of determining the jurisdiction of separate courts of justice in

confederations—The courts of the Union obtained the right of fixing

their own jurisdiction—In what respect this rule attacks the portion of

sovereignty reserved to the several States—The sovereignty of these

States restricted by the laws, and the interpretation of the

laws—Consequently, the danger of the several States is more apparent

than real.

As the Constitution of the United States recognized two distinct powers

in presence of each other, represented in a judicial point of view by

two distinct classes of courts of justice, the utmost care which could

be taken in defining their separate jurisdictions would have been

insufficient to prevent frequent collisions between those tribunals.

The question then arose to whom the right of deciding the competency of

each court was to be referred.

In nations which constitute a single body politic, when a question is

debated between two courts relating to their mutual jurisdiction, a

third tribunal is generally within reach to decide the difference; and

this is effected without difficulty, because in these nations the

questions of judicial competency have no connection with the privileges

of the national supremacy. But it was impossible to create an arbiter

between a superior court of the Union and the superior court of a

separate State which would not belong to one of these two classes. It

was, therefore, necessary to allow one of these courts to judge its own

cause, and to take or to retain cognizance of the point which was

contested. To grant this privilege to the different courts of the

States would have been to destroy the sovereignty of the Union de facto

after having established it de jure; for the interpretation of the

Constitution would soon have restored that portion of independence to

the States of which the terms of that act deprived them. The object of

the creation of a Federal tribunal was to prevent the courts of the

States from deciding questions affecting the national interests in

their own department, and so to form a uniform body of jurisprudene for

the interpretation of the laws of the Union. This end would not have

been accomplished if the courts of the several States had been

competent to decide upon cases in their separate capacities from which

they were obliged to abstain as Federal tribunals. The Supreme Court of

the United States was therefore invested with the right of determining

all questions of jurisdiction. *e

e

[ In order to diminish the number of these suits, it was decided that

in a great many Federal causes the courts of the States should be

empowered to decide conjointly with those of the Union, the losing

party having then a right of appeal to the Supreme Court of the United

States. The Supreme Court of Virginia contested the right of the

Supreme Court of the United States to judge an appeal from its

decisions, but unsuccessfully. See “Kent’s Commentaries,” vol. i. p.

300, pp. 370 et seq.; Story’s “Commentaries,” p. 646; and “The Organic

Law of the United States,” vol. i. p. 35.]

This was a severe blow upon the independence of the States, which was

thus restricted not only by the laws, but by the interpretation of

them; by one limit which was known, and by another which was dubious;

by a rule which was certain, and a rule which was arbitrary. It is true

the Constitution had laid down the precise limits of the Federal

supremacy, but whenever this supremacy is contested by one of the

States, a Federal tribunal decides the question. Nevertheless, the

dangers with which the independence of the States was threatened by

this mode of proceeding are less serious than they appeared to be. We

shall see hereafter that in America the real strength of the country is

vested in the provincial far more than in the Federal Government. The

Federal judges are conscious of the relative weakness of the power in

whose name they act, and they are more inclined to abandon a right of

jurisdiction in cases where it is justly their own than to assert a

privilege to which they have no legal claim.

Different Cases Of Jurisdiction

The matter and the party are the first conditions of the Federal

jurisdiction—Suits in which ambassadors are engaged—Suits of the

Union—Of a separate State—By whom tried—Causes resulting from the laws

of the Union—Why judged by the Federal tribunals—Causes relating to the

performance of contracts tried by the Federal courts—Consequence of

this arrangement.

After having appointed the means of fixing the competency of the

Federal courts, the legislators of the Union defined the cases which

should come within their jurisdiction. It was established, on the one

hand, that certain parties must always be brought before the Federal

courts, without any regard to the special nature of the cause; and, on

the other, that certain causes must always be brought before the same

courts, without any regard to the quality of the parties in the suit.

These distinctions were therefore admitted to be the basis of the

Federal jurisdiction.

Ambassadors are the representatives of nations in a state of amity with

the Union, and whatever concerns these personages concerns in some

degree the whole Union. When an ambassador is a party in a suit, that

suit affects the welfare of the nation, and a Federal tribunal is

naturally called upon to decide it.

The Union itself may be invoked in legal proceedings, and in this case

it would be alike contrary to the customs of all nations and to common

sense to appeal to a tribunal representing any other sovereignty than

its own; the Federal courts, therefore, take cognizance of these

affairs.

When two parties belonging to two different States are engaged in a

suit, the case cannot with propriety be brought before a court of

either State. The surest expedient is to select a tribunal like that of

the Union, which can excite the suspicions of neither party, and which

offers the most natural as well as the most certain remedy.

When the two parties are not private individuals, but States, an

important political consideration is added to the same motive of

equity. The quality of the parties in this case gives a national

importance to all their disputes; and the most trifling litigation of

the States may be said to involve the peace of the whole Union. *f

f

[ The Constitution also says that the Federal courts shall decide

“controversies between a State and the citizens of another State.” And

here a most important question of a constitutional nature arose, which

was, whether the jurisdiction given by the Constitution in cases in

which a State is a party extended to suits brought against a State as

well as by it, or was exclusively confined to the latter. The question

was most elaborately considered in the case of Chisholm v. Georgia, and

was decided by the majority of the Supreme Court in the affirmative.

The decision created general alarm among the States, and an amendment

was proposed and ratified by which the power was entirely taken away,

so far as it regards suits brought against a State. See Story’s

“Commentaries,” p. 624, or in the large edition Section 1677.]

The nature of the cause frequently prescribes the rule of competency.

Thus all the questions which concern maritime commerce evidently fall

under the cognizance of the Federal tribunals. *g Almost all these

questions are connected with the interpretation of the law of nations,

and in this respect they essentially interest the Union in relation to

foreign powers. Moreover, as the sea is not included within the limits

of any peculiar jurisdiction, the national courts can only hear causes

which originate in maritime affairs.

g

[ As for instance, all cases of piracy.]

The Constitution comprises under one head almost all the cases which by

their very nature come within the limits of the Federal courts. The

rule which it lays down is simple, but pregnant with an entire system

of ideas, and with a vast multitude of facts. It declares that the

judicial power of the Supreme Court shall extend to all cases in law

and equity arising under the laws of the United States.

Two examples will put the intention of the legislator in the clearest

light:

The Constitution prohibits the States from making laws on the value and

circulation of money: If, notwithstanding this prohibition, a State

passes a law of this kind, with which the interested parties refuse to

comply because it is contrary to the Constitution, the case must come

before a Federal court, because it arises under the laws of the United

States. Again, if difficulties arise in the levying of import duties

which have been voted by Congress, the Federal court must decide the

case, because it arises under the interpretation of a law of the United

States.

This rule is in perfect accordance with the fundamental principles of

the Federal Constitution. The Union, as it was established in 1789,

possesses, it is true, a limited supremacy; but it was intended that

within its limits it should form one and the same people. *h Within

those limits the Union is sovereign. When this point is established and

admitted, the inference is easy; for if it be acknowledged that the

United States constitute one and the same people within the bounds

prescribed by their Constitution, it is impossible to refuse them the

rights which belong to other nations. But it has been allowed, from the

origin of society, that every nation has the right of deciding by its

own courts those questions which concern the execution of its own laws.

To this it is answered that the Union is in so singular a position that

in relation to some matters it constitutes a people, and that in

relation to all the rest it is a nonentity. But the inference to be

drawn is, that in the laws relating to these matters the Union

possesses all the rights of absolute sovereignty. The difficulty is to

know what these matters are; and when once it is resolved (and we have

shown how it was resolved, in speaking of the means of determining the

jurisdiction of the Federal courts) no further doubt can arise; for as

soon as it is established that a suit is Federal—that is to say, that

it belongs to the share of sovereignty reserved by the Constitution of

the Union—the natural consequence is that it should come within the

jurisdiction of a Federal court.

h

[ This principle was in some measure restricted by the introduction of

the several States as independent powers into the Senate, and by

allowing them to vote separately in the House of Representatives when

the President is elected by that body. But these are exceptions, and

the contrary principle is the rule.]

Whenever the laws of the United States are attacked, or whenever they

are resorted to in self-defence, the Federal courts must be appealed

to. Thus the jurisdiction of the tribunals of the Union extends and

narrows its limits exactly in the same ratio as the sovereignty of the

Union augments or decreases. We have shown that the principal aim of

the legislators of 1789 was to divide the sovereign authority into two

parts. In the one they placed the control of all the general interests

of the Union, in the other the control of the special interests of its

component States. Their chief solicitude was to arm the Federal

Government with sufficient power to enable it to resist, within its

sphere, the encroachments of the several States. As for these

communities, the principle of independence within certain limits of

their own was adopted in their behalf; and they were concealed from the

inspection, and protected from the control, of the central Government.

In speaking of the division of authority, I observed that this latter

principle had not always been held sacred, since the States are

prevented from passing certain laws which apparently belong to their

own particular sphere of interest. When a State of the Union passes a

law of this kind, the citizens who are injured by its execution can

appeal to the Federal courts.

Thus the jurisdiction of the Federal courts extends not only to all the

cases which arise under the laws of the Union, but also to those which

arise under laws made by the several States in opposition to the

Constitution. The States are prohibited from making ex post facto laws

in criminal cases, and any person condemned by virtue of a law of this

kind can appeal to the judicial power of the Union. The States are

likewise prohibited from making laws which may have a tendency to

impair the obligations of contracts. *i If a citizen thinks that an

obligation of this kind is impaired by a law passed in his State, he

may refuse to obey it, and may appeal to the Federal courts. *j

i

[ It is perfectly clear, says Mr. Story (“Commentaries,” p. 503, or in

the large edition Section 1379), that any law which enlarges, abridges,

or in any manner changes the intention of the parties, resulting from

the stipulations in the contract, necessarily impairs it. He gives in

the same place a very long and careful definition of what is understood

by a contract in Federal jurisprudence. A grant made by the State to a

private individual, and accepted by him, is a contract, and cannot be

revoked by any future law. A charter granted by the State to a company

is a contract, and equally binding to the State as to the grantee. The

clause of the Constitution here referred to insures, therefore, the

existence of a great part of acquired rights, but not of all. Property

may legally be held, though it may not have passed into the possessor’s

hands by means of a contract; and its possession is an acquired right,

not guaranteed by the Federal Constitution.]

j

[ A remarkable instance of this is given by Mr. Story (p. 508, or in

the large edition Section 1388): “Dartmouth College in New Hampshire

had been founded by a charter granted to certain individuals before the

American Revolution, and its trustees formed a corporation under this

charter. The legislature of New Hampshire had, without the consent of

this corporation, passed an act changing the organization of the

original provincial charter of the college, and transferring all the

rights, privileges, and franchises from the old charter trustees to new

trustees appointed under the act. The constitutionality of the act was

contested, and, after solemn arguments, it was deliberately held by the

Supreme Court that the provincial charter was a contract within the

meaning of the Constitution (Art. I. Section 10), and that the

emendatory act was utterly void, as impairing the obligation of that

charter. The college was deemed, like other colleges of private

foundation, to be a private eleemosynary institution, endowed by its

charter with a capacity to take property unconnected with the

Government. Its funds were bestowed upon the faith of the charter, and

those funds consisted entirely of private donations. It is true that

the uses were in some sense public, that is, for the general benefit,

and not for the mere benefit of the corporators; but this did not make

the corporation a public corporation. It was a private institution for

general charity. It was not distinguishable in principle from a private

donation, vested in private trustees, for a public charity, or for a

particular purpose of beneficence. And the State itself, if it had

bestowed funds upon a charity of the same nature, could not resume

those funds.”]

This provision appears to me to be the most serious attack upon the

independence of the States. The rights awarded to the Federal

Government for purposes of obvious national importance are definite and

easily comprehensible; but those with which this last clause invests it

are not either clearly appreciable or accurately defined. For there are

vast numbers of political laws which influence the existence of

obligations of contracts, which may thus furnish an easy pretext for

the aggressions of the central authority.

Chapter VIII: The Federal Constitution—Part IV

Procedure Of The Federal Courts

Natural weakness of the judiciary power in confederations—Legislators

ought to strive as much as possible to bring private individuals, and

not States, before the Federal Courts—How the Americans have succeeded

in this—Direct prosecution of private individuals in the Federal

Courts—Indirect prosecution of the States which violate the laws of the

Union—The decrees of the Supreme Court enervate but do not destroy the

provincial laws.

I have shown what the privileges of the Federal courts are, and it is

no less important to point out the manner in which they are exercised.

The irresistible authority of justice in countries in which the

sovereignty in undivided is derived from the fact that the tribunals of

those countries represent the entire nation at issue with the

individual against whom their decree is directed, and the idea of power

is thus introduced to corroborate the idea of right. But this is not

always the case in countries in which the sovereignty is divided; in

them the judicial power is more frequently opposed to a fraction of the

nation than to an isolated individual, and its moral authority and

physical strength are consequently diminished. In federal States the

power of the judge is naturally decreased, and that of the justiciable

parties is augmented. The aim of the legislator in confederate States

ought therefore to be to render the position of the courts of justice

analogous to that which they occupy in countries where the sovereignty

is undivided; in other words, his efforts ought constantly to tend to

maintain the judicial power of the confederation as the representative

of the nation, and the justiciable party as the representative of an

individual interest.

Every government, whatever may be its constitution, requires the means

of constraining its subjects to discharge their obligations, and of

protecting its privileges from their assaults. As far as the direct

action of the Government on the community is concerned, the

Constitution of the United States contrived, by a master-stroke of

policy, that the federal courts, acting in the name of the laws, should

only take cognizance of parties in an individual capacity. For, as it

had been declared that the Union consisted of one and the same people

within the limits laid down by the Constitution, the inference was that

the Government created by this Constitution, and acting within these

limits, was invested with all the privileges of a national government,

one of the principal of which is the right of transmitting its

injunctions directly to the private citizen. When, for instance, the

Union votes an impost, it does not apply to the States for the levying

of it, but to every American citizen in proportion to his assessment.

The Supreme Court, which is empowered to enforce the execution of this

law of the Union, exerts its influence not upon a refractory State, but

upon the private taxpayer; and, like the judicial power of other

nations, it is opposed to the person of an individual. It is to be

observed that the Union chose its own antagonist; and as that

antagonist is feeble, he is naturally worsted.

But the difficulty increases when the proceedings are not brought

forward by but against the Union. The Constitution recognizes the

legislative power of the States; and a law so enacted may impair the

privileges of the Union, in which case a collision in unavoidable

between that body and the State which has passed the law: and it only

remains to select the least dangerous remedy, which is very clearly

deducible from the general principles I have before established. *k

k

[ See Chapter VI. on “Judicial Power in America.”]

It may be conceived that, in the case under consideration, the Union

might have used the State before a Federal court, which would have

annulled the act, and by this means it would have adopted a natural

course of proceeding; but the judicial power would have been placed in

open hostility to the State, and it was desirable to avoid this

predicament as much as possible. The Americans hold that it is nearly

impossible that a new law should not impair the interests of some

private individual by its provisions: these private interests are

assumed by the American legislators as the ground of attack against

such measures as may be prejudicial to the Union, and it is to these

cases that the protection of the Supreme Court is extended.

Suppose a State vends a certain portion of its territory to a company,

and that a year afterwards it passes a law by which the territory is

otherwise disposed of, and that clause of the Constitution which

prohibits laws impairing the obligation of contracts violated. When the

purchaser under the second act appears to take possession, the

possessor under the first act brings his action before the tribunals of

the Union, and causes the title of the claimant to be pronounced null

and void. *l Thus, in point of fact, the judicial power of the Union is

contesting the claims of the sovereignty of a State; but it only acts

indirectly and upon a special application of detail: it attacks the law

in its consequences, not in its principle, and it rather weakens than

destroys it.

l

[ See Kent’s “Commentaries,” vol. i. p. 387.]

The last hypothesis that remained was that each State formed a

corporation enjoying a separate existence and distinct civil rights,

and that it could therefore sue or be sued before a tribunal. Thus a

State could bring an action against another State. In this instance the

Union was not called upon to contest a provincial law, but to try a

suit in which a State was a party. This suit was perfectly similar to

any other cause, except that the quality of the parties was different;

and here the danger pointed out at the beginning of this chapter exists

with less chance of being avoided. The inherent disadvantage of the

very essence of Federal constitutions is that they engender parties in

the bosom of the nation which present powerful obstacles to the free

course of justice.

High Rank Of The Supreme Court Amongst The Great Powers Of State No

nation ever constituted so great a judicial power as the

Americans—Extent of its prerogative—Its political influence—The

tranquillity and the very existence of the Union depend on the

discretion of the seven Federal Judges.

When we have successively examined in detail the organization of the

Supreme Court, and the entire prerogatives which it exercises, we shall

readily admit that a more imposing judicial power was never constituted

by any people. The Supreme Court is placed at the head of all known

tribunals, both by the nature of its rights and the class of

justiciable parties which it controls.

In all the civilized countries of Europe the Government has always

shown the greatest repugnance to allow the cases to which it was itself

a party to be decided by the ordinary course of justice. This

repugnance naturally attains its utmost height in an absolute

Government; and, on the other hand, the privileges of the courts of

justice are extended with the increasing liberties of the people: but

no European nation has at present held that all judicial controversies,

without regard to their origin, can be decided by the judges of common

law.

In America this theory has been actually put in practice, and the

Supreme Court of the United States is the sole tribunal of the nation.

Its power extends to all the cases arising under laws and treaties made

by the executive and legislative authorities, to all cases of admiralty

and maritime jurisdiction, and in general to all points which affect

the law of nations. It may even be affirmed that, although its

constitution is essentially judicial, its prerogatives are almost

entirely political. Its sole object is to enforce the execution of the

laws of the Union; and the Union only regulates the relations of the

Government with the citizens, and of the nation with Foreign Powers:

the relations of citizens amongst themselves are almost exclusively

regulated by the sovereignty of the States.

A second and still greater cause of the preponderance of this court may

be adduced. In the nations of Europe the courts of justice are only

called upon to try the controversies of private individuals; but the

Supreme Court of the United States summons sovereign powers to its bar.

When the clerk of the court advances on the steps of the tribunal, and

simply says, “The State of New York versus the State of Ohio,” it is

impossible not to feel that the Court which he addresses is no ordinary

body; and when it is recollected that one of these parties represents

one million, and the other two millions of men, one is struck by the

responsibility of the seven judges whose decision is about to satisfy

or to disappoint so large a number of their fellow-citizens.

The peace, the prosperity, and the very existence of the Union are

vested in the hands of the seven judges. Without their active

co-operation the Constitution would be a dead letter: the Executive

appeals to them for assistance against the encroachments of the

legislative powers; the Legislature demands their protection from the

designs of the Executive; they defend the Union from the disobedience

of the States, the States from the exaggerated claims of the Union, the

public interest against the interests of private citizens, and the

conservative spirit of order against the fleeting innovations of

democracy. Their power is enormous, but it is clothed in the authority

of public opinion. They are the all-powerful guardians of a people

which respects law, but they would be impotent against popular neglect

or popular contempt. The force of public opinion is the most

intractable of agents, because its exact limits cannot be defined; and

it is not less dangerous to exceed than to remain below the boundary

prescribed.

The Federal judges must not only be good citizens, and men possessed of

that information and integrity which are indispensable to magistrates,

but they must be statesmen—politicians, not unread in the signs of the

times, not afraid to brave the obstacles which can be subdued, nor slow

to turn aside such encroaching elements as may threaten the supremacy

of the Union and the obedience which is due to the laws.

The President, who exercises a limited power, may err without causing

great mischief in the State. Congress may decide amiss without

destroying the Union, because the electoral body in which Congress

originates may cause it to retract its decision by changing its

members. But if the Supreme Court is ever composed of imprudent men or

bad citizens, the Union may be plunged into anarchy or civil war.

The real cause of this danger, however, does not lie in the

constitution of the tribunal, but in the very nature of Federal

Governments. We have observed that in confederate peoples it is

especially necessary to consolidate the judicial authority, because in

no other nations do those independent persons who are able to cope with

the social body exist in greater power or in a better condition to

resist the physical strength of the Government. But the more a power

requires to be strengthened, the more extensive and independent it must

be made; and the dangers which its abuse may create are heightened by

its independence and its strength. The source of the evil is not,

therefore, in the constitution of the power, but in the constitution of

those States which render its existence necessary.

In What Respects The Federal Constitution Is Superior To That Of The

States

In what respects the Constitution of the Union can be compared to that

of the States—Superiority of the Constitution of the Union attributable

to the wisdom of the Federal legislators—Legislature of the Union less

dependent on the people than that of the States—Executive power more

independent in its sphere—Judicial power less subjected to the

inclinations of the majority—Practical consequence of these facts—The

dangers inherent in a democratic government eluded by the Federal

legislators, and increased by the legislators of the States.

The Federal Constitution differs essentially from that of the States in

the ends which it is intended to accomplish, but in the means by which

these ends are promoted a greater analogy exists between them. The

objects of the Governments are different, but their forms are the same;

and in this special point of view there is some advantage in comparing

them together.

I am of opinion that the Federal Constitution is superior to all the

Constitutions of the States, for several reasons.

The present Constitution of the Union was formed at a later period than

those of the majority of the States, and it may have derived some

ameliorations from past experience. But we shall be led to acknowledge

that this is only a secondary cause of its superiority, when we

recollect that eleven new States *n have been added to the American

Confederation since the promulgation of the Federal Constitution, and

that these new republics have always rather exaggerated than avoided

the defects which existed in the former Constitutions.

n

[ [The number of States has now risen to 46 (1874), besides the

District of Columbia.]]

The chief cause of the superiority of the Federal Constitution lay in

the character of the legislators who composed it. At the time when it

was formed the dangers of the Confederation were imminent, and its ruin

seemed inevitable. In this extremity the people chose the men who most

deserved the esteem, rather than those who had gained the affections,

of the country. I have already observed that distinguished as almost

all the legislators of the Union were for their intelligence, they were

still more so for their patriotism. They had all been nurtured at a

time when the spirit of liberty was braced by a continual struggle

against a powerful and predominant authority. When the contest was

terminated, whilst the excited passions of the populace persisted in

warring with dangers which had ceased to threaten them, these men

stopped short in their career; they cast a calmer and more penetrating

look upon the country which was now their own; they perceived that the

war of independence was definitely ended, and that the only dangers

which America had to fear were those which might result from the abuse

of the freedom she had won. They had the courage to say what they

believed to be true, because they were animated by a warm and sincere

love of liberty; and they ventured to propose restrictions, because

they were resolutely opposed to destruction. *o

o

[ At this time Alexander Hamilton, who was one of the principal

founders of the Constitution, ventured to express the following

sentiments in “The Federalist,” No. 71:—

“There are some who would be inclined to regard the servile pliancy of

the Executive to a prevailing current, either in the community or in

the Legislature, as its best recommendation. But such men entertain

very crude notions, as well of the purposes for which government was

instituted as of the true means by which the public happiness may be

promoted. The Republican principle demands that the deliberative sense

of the community should govern the conduct of those to whom they

entrust the management of their affairs; but it does not require an

unqualified complaisance to every sudden breeze of passion, or to every

transient impulse which the people may receive from the arts of men who

flatter their prejudices to betray their interests. It is a just

observation, that the people commonly intend the public good. This

often applies to their very errors. But their good sense would despise

the adulator who should pretend that they always reason right about the

means of promoting it. They know from experience that they sometimes

err; and the wonder is that they so seldom err as they do, beset, as

they continually are, by the wiles of parasites and sycophants; by the

snares of the ambitious, the avaricious, the desperate; by the

artifices of men who possess their confidence more than they deserve

it, and of those who seek to possess rather than to deserve it. When

occasions present themselves in which the interests of the people are

at variance with their inclinations, it is the duty of persons whom

they have appointed to be the guardians of those interests to withstand

the temporary delusion, in order to give them time and opportunity for

more cool and sedate reflection. Instances might be cited in which a

conduct of this kind has saved the people from very fatal consequences

of their own mistakes, and has procured lasting monuments of their

gratitude to the men who had courage and magnanimity enough to serve

them at the peril of their displeasure.”]

The greater number of the Constitutions of the States assign one year

for the duration of the House of Representatives, and two years for

that of the Senate; so that members of the legislative body are

constantly and narrowly tied down by the slightest desires of their

constituents. The legislators of the Union were of opinion that this

excessive dependence of the Legislature tended to alter the nature of

the main consequences of the representative system, since it vested the

source, not only of authority, but of government, in the people. They

increased the length of the time for which the representatives were

returned, in order to give them freer scope for the exercise of their

own judgment.

The Federal Constitution, as well as the Constitutions of the different

States, divided the legislative body into two branches. But in the

States these two branches were composed of the same elements, and

elected in the same manner. The consequence was that the passions and

inclinations of the populace were as rapidly and as energetically

represented in one chamber as in the other, and that laws were made

with all the characteristics of violence and precipitation. By the

Federal Constitution the two houses originate in like manner in the

choice of the people; but the conditions of eligibility and the mode of

election were changed, to the end that, if, as is the case in certain

nations, one branch of the Legislature represents the same interests as

the other, it may at least represent a superior degree of intelligence

and discretion. A mature age was made one of the conditions of the

senatorial dignity, and the Upper House was chosen by an elected

assembly of a limited number of members.

To concentrate the whole social force in the hands of the legislative

body is the natural tendency of democracies; for as this is the power

which emanates the most directly from the people, it is made to

participate most fully in the preponderating authority of the

multitude, and it is naturally led to monopolize every species of

influence. This concentration is at once prejudicial to a

well-conducted administration, and favorable to the despotism of the

majority. The legislators of the States frequently yielded to these

democratic propensities, which were invariably and courageously

resisted by the founders of the Union.

In the States the executive power is vested in the hands of a

magistrate, who is apparently placed upon a level with the Legislature,

but who is in reality nothing more than the blind agent and the passive

instrument of its decisions. He can derive no influence from the

duration of his functions, which terminate with the revolving year, or

from the exercise of prerogatives which can scarcely be said to exist.

The Legislature can condemn him to inaction by intrusting the execution

of the laws to special committees of its own members, and can annul his

temporary dignity by depriving him of his salary. The Federal

Constitution vests all the privileges and all the responsibility of the

executive power in a single individual. The duration of the Presidency

is fixed at four years; the salary of the individual who fills that

office cannot be altered during the term of his functions; he is

protected by a body of official dependents, and armed with a suspensive

veto. In short, every effort was made to confer a strong and

independent position upon the executive authority within the limits

which had been prescribed to it.

In the Constitutions of all the States the judicial power is that which

remains the most independent of the legislative authority;

nevertheless, in all the States the Legislature has reserved to itself

the right of regulating the emoluments of the judges, a practice which

necessarily subjects these magistrates to its immediate influence. In

some States the judges are only temporarily appointed, which deprives

them of a great portion of their power and their freedom. In others the

legislative and judicial powers are entirely confounded; thus the

Senate of New York, for instance, constitutes in certain cases the

Superior Court of the State. The Federal Constitution, on the other

hand, carefully separates the judicial authority from all external

influences; and it provides for the independence of the judges, by

declaring that their salary shall not be altered, and that their

functions shall be inalienable.

The practical consequences of these different systems may easily be

perceived. An attentive observer will soon remark that the business of

the Union is incomparably better conducted than that of any individual

State. The conduct of the Federal Government is more fair and more

temperate than that of the States, its designs are more fraught with

wisdom, its projects are more durable and more skilfully combined, its

measures are put into execution with more vigor and consistency.

I recapitulate the substance of this chapter in a few words: The

existence of democracies is threatened by two dangers, viz., the

complete subjection of the legislative body to the caprices of the

electoral body, and the concentration of all the powers of the

Government in the legislative authority. The growth of these evils has

been encouraged by the policy of the legislators of the States, but it

has been resisted by the legislators of the Union by every means which

lay within their control.

Characteristics Which Distinguish The Federal Constitution Of The

United States Of America From All Other Federal Constitutions American

Union appears to resemble all other confederations—Nevertheless its

effects are different—Reason of this—Distinctions between the Union and

all other confederations—The American Government not a federal but an

imperfect national Government.

The United States of America do not afford either the first or the only

instance of confederate States, several of which have existed in modern

Europe, without adverting to those of antiquity. Switzerland, the

Germanic Empire, and the Republic of the United Provinces either have

been or still are confederations. In studying the constitutions of

these different countries, the politician is surprised to observe that

the powers with which they invested the Federal Government are nearly

identical with the privileges awarded by the American Constitution to

the Government of the United States. They confer upon the central power

the same rights of making peace and war, of raising money and troops,

and of providing for the general exigencies and the common interests of

the nation. Nevertheless the Federal Government of these different

peoples has always been as remarkable for its weakness and inefficiency

as that of the Union is for its vigorous and enterprising spirit.

Again, the first American Confederation perished through the excessive

weakness of its Government; and this weak Government was,

notwithstanding, in possession of rights even more extensive than those

of the Federal Government of the present day. But the more recent

Constitution of the United States contains certain principles which

exercise a most important influence, although they do not at once

strike the observer.

This Constitution, which may at first sight be confounded with the

federal constitutions which preceded it, rests upon a novel theory,

which may be considered as a great invention in modern political

science. In all the confederations which had been formed before the

American Constitution of 1789 the allied States agreed to obey the

injunctions of a Federal Government; but they reserved to themselves

the right of ordaining and enforcing the execution of the laws of the

Union. The American States which combined in 1789 agreed that the

Federal Government should not only dictate the laws, but that it should

execute it own enactments. In both cases the right is the same, but the

exercise of the right is different; and this alteration produced the

most momentous consequences.

In all the confederations which had been formed before the American

Union the Federal Government demanded its supplies at the hands of the

separate Governments; and if the measure it prescribed was onerous to

any one of those bodies means were found to evade its claims: if the

State was powerful, it had recourse to arms; if it was weak, it

connived at the resistance which the law of the Union, its sovereign,

met with, and resorted to inaction under the plea of inability. Under

these circumstances one of the two alternatives has invariably

occurred; either the most preponderant of the allied peoples has

assumed the privileges of the Federal authority and ruled all the

States in its name, *p or the Federal Government has been abandoned by

its natural supporters, anarchy has arisen between the confederates,

and the Union has lost all powers of action. *q

p

[ This was the case in Greece, when Philip undertook to execute the

decree of the Amphictyons; in the Low Countries, where the province of

Holland always gave the law; and, in our own time, in the Germanic

Confederation, in which Austria and Prussia assume a great degree of

influence over the whole country, in the name of the Diet.]

q

[ Such has always been the situation of the Swiss Confederation, which

would have perished ages ago but for the mutual jealousies of its

neighbors.]

In America the subjects of the Union are not States, but private

citizens: the national Government levies a tax, not upon the State of

Massachusetts, but upon each inhabitant of Massachusetts. All former

confederate governments presided over communities, but that of the

Union rules individuals; its force is not borrowed, but self-derived;

and it is served by its own civil and military officers, by its own

army, and its own courts of justice. It cannot be doubted that the

spirit of the nation, the passions of the multitude, and the provincial

prejudices of each State tend singularly to diminish the authority of a

Federal authority thus constituted, and to facilitate the means of

resistance to its mandates; but the comparative weakness of a

restricted sovereignty is an evil inherent in the Federal system. In

America, each State has fewer opportunities of resistance and fewer

temptations to non-compliance; nor can such a design be put in

execution (if indeed it be entertained) without an open violation of

the laws of the Union, a direct interruption of the ordinary course of

justice, and a bold declaration of revolt; in a word, without taking a

decisive step which men hesitate to adopt.

In all former confederations the privileges of the Union furnished more

elements of discord than of power, since they multiplied the claims of

the nation without augmenting the means of enforcing them: and in

accordance with this fact it may be remarked that the real weakness of

federal governments has almost always been in the exact ratio of their

nominal power. Such is not the case in the American Union, in which, as

in ordinary governments, the Federal Government has the means of

enforcing all it is empowered to demand.

The human understanding more easily invents new things than new words,

and we are thence constrained to employ a multitude of improper and

inadequate expressions. When several nations form a permanent league

and establish a supreme authority, which, although it has not the same

influence over the members of the community as a national government,

acts upon each of the Confederate States in a body, this Government,

which is so essentially different from all others, is denominated a

Federal one. Another form of society is afterwards discovered, in which

several peoples are fused into one and the same nation with regard to

certain common interests, although they remain distinct, or at least

only confederate, with regard to all their other concerns. In this case

the central power acts directly upon those whom it governs, whom it

rules, and whom it judges, in the same manner, as, but in a more

limited circle than, a national government. Here the term Federal

Government is clearly no longer applicable to a state of things which

must be styled an incomplete national Government: a form of government

has been found out which is neither exactly national nor federal; but

no further progress has been made, and the new word which will one day

designate this novel invention does not yet exist.

The absence of this new species of confederation has been the cause

which has brought all Unions to Civil War, to subjection, or to a

stagnant apathy, and the peoples which formed these leagues have been

either too dull to discern, or too pusillanimous to apply this great

remedy. The American Confederation perished by the same defects.

But the Confederate States of America had been long accustomed to form

a portion of one empire before they had won their independence; they

had not contracted the habit of governing themselves, and their

national prejudices had not taken deep root in their minds. Superior to

the rest of the world in political knowledge, and sharing that

knowledge equally amongst themselves, they were little agitated by the

passions which generally oppose the extension of federal authority in a

nation, and those passions were checked by the wisdom of the chief

citizens. The Americans applied the remedy with prudent firmness as

soon as they were conscious of the evil; they amended their laws, and

they saved their country.

Chapter VIII: The Federal Constitution—Part V

Advantages Of The Federal System In General, And Its Special Utility In

America.

Happiness and freedom of small nations—Power of great nations—Great

empires favorable to the growth of civilization—Strength often the

first element of national prosperity—Aim of the Federal system to unite

the twofold advantages resulting from a small and from a large

territory—Advantages derived by the United States from this system—The

law adapts itself to the exigencies of the population; population does

not conform to the exigencies of the law—Activity, amelioration, love

and enjoyment of freedom in the American communities—Public spirit of

the Union the abstract of provincial patriotism—Principles and things

circulate freely over the territory of the United States—The Union is

happy and free as a little nation, and respected as a great empire.

In small nations the scrutiny of society penetrates into every part,

and the spirit of improvement enters into the most trifling details; as

the ambition of the people is necessarily checked by its weakness, all

the efforts and resources of the citizens are turned to the internal

benefit of the community, and are not likely to evaporate in the

fleeting breath of glory. The desires of every individual are limited,

because extraordinary faculties are rarely to be met with. The gifts of

an equal fortune render the various conditions of life uniform, and the

manners of the inhabitants are orderly and simple. Thus, if one

estimate the gradations of popular morality and enlightenment, we shall

generally find that in small nations there are more persons in easy

circumstances, a more numerous population, and a more tranquil state of

society, than in great empires.

When tyranny is established in the bosom of a small nation, it is more

galling than elsewhere, because, as it acts within a narrow circle,

every point of that circle is subject to its direct influence. It

supplies the place of those great designs which it cannot entertain by

a violent or an exasperating interference in a multitude of minute

details; and it leaves the political world, to which it properly

belongs, to meddle with the arrangements of domestic life. Tastes as

well as actions are to be regulated at its pleasure; and the families

of the citizens as well as the affairs of the State are to be governed

by its decisions. This invasion of rights occurs, however, but seldom,

and freedom is in truth the natural state of small communities. The

temptations which the Government offers to ambition are too weak, and

the resources of private individuals are too slender, for the sovereign

power easily to fall within the grasp of a single citizen; and should

such an event have occurred, the subjects of the State can without

difficulty overthrow the tyrant and his oppression by a simultaneous

effort.

Small nations have therefore ever been the cradle 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 the 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 republican government for a long series of years,

*r and this has 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.

r

[ I do not speak of a confederation of small republics, but of a great

consolidated Republic.]

All the passions which are most fatal to republican institutions spread

with an increasing territory, whilst 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, whilst 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 amongst 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 therefore 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; the 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 the

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 imagine 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

amelioration. 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 amelioration 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 afterwards 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 in 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 interest; 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. 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 flags 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

government common amongst 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 besides the laws—What these causes

are amongst the Anglo-Americans—Maine and Georgia, separated by a

distance of a thousand miles, more naturally united than Normandy and

Brittany—War, the main peril of confederations—This proved even by the

example of the United States—The Union has no great wars to

fear—Why?—Dangers 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, whilst, 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

rendered 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 further 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 their Government.

The most prominent evil of all Federal systems is the very complex

nature of the means they employ. Two sovereignties are necessarily in

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 coming 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 nation 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, numberless difficulties

remain to be solved in its application; for the sovereignty of the

Union is so involved in that of the States that it is impossible to

distinguish its boundaries at the first glance. The whole structure of

the Government is artificial and conventional; and it would be ill

adapted to a people which has not been long accustomed to conduct its

own affairs, or to one in which the science of politics has not

descended to the humblest classes of society. I have never been more

struck by the good sense and the practical judgment of the Americans

than in the 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. *s But although

they had borrowed the letter of the law, they were unable to create or

to introduce the spirit and the sense which give 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.

s

[ See the Mexican Constitution of 1824.]

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 a 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

the prejudices of a State, it might be feared that all the citizens of

that State would conceive themselves to be interested in the cause of a

single individual who 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 a 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. *t 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. *u

t

[ [This is precisely what occurred in 1862, and the following paragraph

describes correctly the feelings and notions of the South. General Lee

held that his primary allegiance was due, not to the Union, but to

Virginia.]]

u

[ 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 names of the

purchasers from the State of Ohio and the purchasers from the Union,

and not in the names of Ohio and the Union. But what would become of

this legal fiction if the Federal purchaser was confirmed in his right

by the courts of the Union, whilst the other competitor was ordered to

retain possession by the tribunals of the State of Ohio?]

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

sovereigns less probable, destroyed the cause 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 only affects 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 of the

superiority of a power which is interwoven with every circumstance that

renders the love of one’s native country instinctive in the human

heart.

Since legislators are unable to obviate such dangerous collisions as

occur between the two sovereignties which coexist in the federal

system, their first object must be, not only to dissuade the

confederate States from warfare, but to encourage such 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 dependence 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

peoples 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 interests. A certain uniformity

of civilization 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 the 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 civilization; 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 civilization of Maine and that of

Georgia is slighter than the difference between the habits of Normandy

and those of Brittany. Maine and Georgia, which are placed at the

opposite extremities of a great empire, are consequently in the natural

possession of more real inducements to form a confederation than

Normandy and Brittany, 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 struggles 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 these

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 defeat

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 case 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 the 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. *v

v

[ 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. [All doubt as to the

powers of the Federal Executive was, however, removed by its efforts in

the Civil War, and those powers were largely extended.]]

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 amongst nations. *w As for the Powers of Europe, they are too

distant to be formidable.

w

[ [War broke out between the United States and Mexico in 1846, and

ended in the conquest of an immense territory, including California.]]

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 extremely

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 centralized. 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.