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American Institutions and Their Influence by Alexis de Tocqueville et al

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the transient greatness of a man, but it cannot ensure the durable
prosperity of a people.

If we pay proper attention, we shall find that whenever it is said that
a state cannot act because it has no central point, it is the
centralisation of the government in which it is deficient. It is
frequently asserted, and we are prepared to assent to the proposition,
that the German empire was never able to bring all its powers into
action. But the reason was, that the state has never been able to
enforce obedience to its general laws, because the several members of
that great body always claimed the right, or found the means, of
refusing their co-operation to the representatives of the common
authority, even in the affairs which concerned the mass of the people;
in other words, because there was no centralisation of government. The
same remark is applicable to the middle ages; the cause of all the
confusion of feudal society was that the control, not only of local but
of general interests, was divided among a thousand hands, and broken up
in a thousand different ways; the absence of a central government
prevented the nations of Europe from advancing with energy in any
straightforward course.

We have shown that in the United States no central administration, and
no dependent series of public functionaries, exist. Local authority has
been carried to lengths which no European nation could endure without
great inconvenience, and which have even produced some disadvantageous
consequences in America. But in the United States the centralisation of
the government is complete; and it would be easy to prove that the
national power is more compact than it has ever been in the old
monarchies of Europe. Not only is there but one legislative body in each
state; not only does there exist but one source of political authority;
but numerous district assemblies and county courts have in general been
avoided, lest they should be tempted to exceed their administrative
duties and interfere with the government. In America the legislature of
each state is supreme; nothing can impede its authority; neither
privileges, nor local immunities, nor personal influence, nor even the
empire of reason, since it represents that majority which claims to be
the sole organ of reason. Its own determination is, therefore, the only
limit to its action. In juxtaposition to it, and under its immediate
control, is the representative of the executive power, whose duty it is
to constrain the refractory to submit by superior force. The only
symptom of weakness lies in certain details of the action of the
government. The American republics have no standing armies to intimidate
a discontented minority; but as no minority has as yet been reduced to
declare open war, the necessity of an army has not been felt. The state
usually employs the officers of the township or the county, to deal with
the citizens. Thus, for instance, in New England the assessor fixes the
rate of taxes; the collector receives them; the town treasurer transmits
the amount to the public treasury; and the disputes which may arise are
brought before the ordinary courts of justice. This method of collecting
taxes is slow as well as inconvenient, and it would prove a perpetual
hindrance to a government whose pecuniary demands were large. In general
it is desirable that in what ever materially affects its existence, the
government should be served by officers of its own, appointed by itself,
removable at pleasure, and accustomed to rapid methods of proceeding.
But it will always be easy for the central government, organized as it
is in America, to introduce new and more efficacious modes of action
proportioned to its wants.

The absence of a central government will not, then, as has often been
asserted, prove the destruction of the republics of the New World; far
from supposing that the American governments are not sufficiently
centralized, I shall prove hereafter that they are too much so. The
legislative bodies daily encroach upon the authority of the government,
and their tendency, like that of the French convention, is to
appropriate it entirely to themselves. Under these circumstances the
social power is constantly changing hands, because it is subordinate to
the power of the people, which is too apt to forget the maxims of wisdom
and of foresight in the consciousness of its strength: hence arises its
danger; and thus its vigor, and not its impotence, will probably be the
cause of its ultimate destruction.

The system of local administration produces several different effects in
America. The Americans seem to me to have outstepped the limits of sound
policy, in isolating the administration of the government; for order,
even in second-rate affairs, is a matter of national importance.[109] As
the state has no administrative functionaries of its own, stationed on
different parts of its territory, to whom it can give a common impulse,
the consequence is that it rarely attempts to issue any general police
regulations. The want of these regulations is severely felt, and is
frequently observed by Europeans. The appearance of disorder which
prevails on the surface, leads them at first to imagine that society is
in a state of anarchy; nor do they perceive their mistake till they have
gone deeper into the subject. Certain undertakings are of importance to
the whole state; but they cannot be put in execution, because there is
no national administration to direct them. Abandoned to the exertions of
the towns or counties, under the care of elected or temporary agents,
they lead to no result, or at least to no durable benefit.

The partisans of centralisation in Europe maintain that the government
directs the affairs of each locality better than the citizens could do
it for themselves: this may be true when the central power is
enlightened, and when the local districts are ignorant; when it is as
alert as they are slow; when it is accustomed to act, and they to obey.
Indeed, it is evident that this double tendency must augment with the
increase of centralisation, and that the readiness of the one, and the
incapacity of the others, must become more and more prominent. But I
deny that such is the case when the people is as enlightened, as awake
to its interests, and as accustomed to reflect on them, as the Americans
are. I am persuaded, on the contrary, that in this case the collective
strength of the citizens will always conduce more efficaciously to the
public welfare than the authority of the government. It is difficult to
point out with certainty the means of arousing a sleeping population,
and of giving it passions and knowledge which it does not possess; it
is, I am well aware, an arduous task to persuade men to busy themselves
about their own affairs; and it would frequently be easier to interest
them in the punctilios of court etiquette than in the repairs of their
common dwelling. But whenever a central administration affects to
supersede the persons most interested, I am inclined to suppose that it
is either misled, or desirous to mislead. However enlightened and
however skilful a central power may be, it cannot of itself embrace all
the details of the existence of a great nation. Such vigilance exceeds
the powers of man. And when it attempts to create and set in motion so
many complicated springs, it must submit to a very imperfect result, or
consume itself in bootless efforts.

Centralisation succeeds more easily, indeed, in subjecting the external
actions of men to a certain uniformity, which at last commands our
regard, independently of the objects to which it is applied, like those
devotees who worship the statue and forget the deity it represents.
Centralisation imparts without difficulty an admirable regularity to the
routine of business; rules the details of the social police with
sagacity; represses the smallest disorder and the most petty
misdemeanors; maintains society in a _status quo_, alike secure from
improvement and decline; and perpetuates a drowsy precision in the
conduct of affairs, which is hailed by the heads of the administration
as a sign of perfect order and public tranquillity;[110] in short, it
excels more in prevention than in action. Its force deserts it when
society is to be disturbed or accelerated in its course; and if once the
co-operation of private citizens is necessary to the furtherance of its
measures, the secret of its impotence is disclosed. Even while it
invokes their assistance, it is on the condition that they shall act
exactly as much as the government chooses, and exactly in the manner it
appoints. They are to take charge of the details, without aspiring to
guide the system; they are to work in a dark and subordinate sphere, and
only to judge the acts in which they have themselves co-operated, by
their results. These, however, are not conditions on which the alliance
of the human will is to be obtained; its carriage must be free, and its
actions responsible, or (such is the constitution of man) the citizen
had rather remain a passive spectator than a dependent actor in schemes
with which he is unacquainted.

It is undeniable, that the want of those uniform regulations which
control the conduct of every inhabitant of France is not unfrequently
felt in the United States. Gross instances of social indifference and
neglect are to be met with; and from time to time disgraceful blemishes
are seen, in complete contrast with the surrounding civilisation. Useful
undertakings, which cannot succeed without perpetual attention and
rigorous exactitude, are very frequently abandoned in the end; for in
America, as well as in other countries, the people is subject to sudden
impulses and momentary exertions. The European who is accustomed to find
a functionary always at hand to interfere with all he undertakes, has
some difficulty in accustoming himself to the complex mechanism of the
administration of the townships. In general it may be affirmed that the
lesser details of the police, which render life easy and comfortable,
are neglected in America; but that the essential guarantees of man in
society are as strong there as elsewhere. In America the power which
conducts the government is far less regular, less enlightened, and less
learned, but a hundredfold more authoritative, than in Europe. In no
country in the world do the citizens make such exertions for the common
weal; and I am acquainted with no people which has established schools
as numerous and as efficacious, places of public worship better suited
to the wants of the inhabitants, or roads kept in better repair.
Uniformity or permanence of design, the minute arrangement of
details,[111] and the perfection of an ingenious administration, must
not be sought for in the United States; but it will be easy to find, on
the other hand, the symptoms of a power, which, if it is somewhat
barbarous, is at least robust; and of an existence, which is checkered
with accidents indeed, but cheered at the same time by animation and
effort.

Granting for an instant that the villages and counties of the United
States would be more usefully governed by a remote authority, which they
had never seen, than by functionaries taken from the midst of
them--admitting, for the sake of argument, that the country would be
more secure, and the resources of society better employed, if the whole
administration centred in a single arm, still the _political_ advantages
which the Americans derive from their system would induce me to prefer
it to the contrary plan. It profits me but little, after all, that a
vigilant authority protects the tranquillity of my pleasures, and
constantly averts all danger from my path, without my care or my
concern, if the same authority is the absolute mistress of my liberty
and of my life, and if it so monopolises all the energy of existence,
that when it languishes everything languishes around it, that when it
sleeps everything must sleep, that when it dies the state itself must
perish.

In certain countries of Europe the natives consider themselves as a kind
of settlers, indifferent to the fate of the spot upon which they live.
The greatest changes are effected without their concurrence and (unless
chance may have apprised them of the event) without their knowledge; nay
more, the citizen is unconcerned as to the condition of his village, the
police of his street, the repairs of the church or the parsonage; for he
looks upon all these things as unconnected with himself, and as the
property of a powerful stranger whom he calls the government. He has
only a life-interest in these possessions, and he entertains no notions
of ownership or of improvement. This want of interest in his own affairs
goes so far, that if his own safety or that of his children is
endangered, instead of trying to avert the peril, he will fold his arms,
and wait till the nation comes to his assistance. This same individual,
who has so completely sacrificed his own free will, has no natural
propensity to obedience; he cowers, it is true, before the pettiest
officer; but he braves the law with the spirit of a conquered foe as
soon as its superior force is removed: his oscillations between
servitude and license are perpetual. When a nation has arrived at this
state, it must either change its customs and its laws, or perish: the
source of public virtue is dry; and though it may contain subjects, the
race of citizens is extinct. Such communities are a natural prey to
foreign conquest; and if they do not disappear from the scene of life,
it is because they are surrounded by other nations similar or inferior
to themselves; it is because the instinctive feeling of their country's
claims still exists in their hearts; and because an involuntary pride in
the name it bears, or the vague reminiscence of its by-gone fame,
suffices to give them the impulse of self-preservation.

Nor can the prodigious exertions made by certain people in the defence
of a country, in which they may almost be said to have lived as aliens,
be adduced in favor of such a system; for it will be found that in these
cases their main incitement was religion. The permanence, the glory, and
the prosperity of the nation, were become parts of their faith; and in
defending the country they inhabited, they defended that holy city of
which they were all citizens. The Turkish tribes have never taken an
active share in the conduct of the affairs of society, but they
accomplished stupendous enterprises as long as the victories of the
sultans were the triumphs of the Mohammedan faith. In the present age
they are in rapid decay, because their religion is departing, and
despotism only remains. Montesquieu, who attributed to absolute power an
authority peculiar to itself, did it, as I conceive, undeserved honor;
for despotism, taken by itself, can produce no durable results. On close
inspection we shall find that religion, and not fear, has ever been the
cause of the long-lived prosperity of absolute governments. Whatever
exertions may be made, no true power can be founded among men which does
not depend upon the free union of their inclinations; and patriotism and
religion are the only two motives in the world which can permanently
direct the whole of a body politic to one end.

Laws cannot succeed in rekindling the ardor of an extinguished faith;
but men may be interested in the fate of their country by the laws. By
this influence, the vague impulse of patriotism, which never abandons
the human heart, may be directed and revived: and if it be connected
with the thoughts, the passions and daily habits of life, it may be
consolidated into a durable and rational sentiment. Let it not be said
that the time for the experiment is already past; for the old age of
nations is not like the old age of men, and every fresh generation is a
new people ready for the care of the legislator.

It is not the _administrative_, but the _political_ effects of the local
system that I most admire in America. In the United States the interests
of the country are everywhere kept in view; they are an object of
solicitude to the people of the whole Union, and every citizen is as
warmly attached to them as if they were his own. He takes pride in the
glory of his nation; he boasts of his success, to which he conceives
himself to have contributed; and he rejoices in the general prosperity
by which he profits. The feeling he entertains toward the state is
analogous to that which unites him to his family, and it is by a kind of
egotism that he interests himself in the welfare of his country.

The European generally submits to a public officer because he represents
a superior force; but to an American he represents a right. In America
it may be said that no one renders obedience to man, but to justice and
to law. If the opinion which the citizen entertains of himself is
exaggerated, it is at least salutary; he unhesitatingly confides in his
own powers, which appear to him to be all-sufficient. When a private
individual meditates an undertaking, however directly connected it may
be with the welfare of society, he never thinks of soliciting the
co-operation of the government: but he publishes his plan, offers to
execute it himself, courts the assistance of other individuals, and
struggles manfully against all obstacles. Undoubtedly he is less
successful than the state might have been in his position; but in the
end, the sum of these private undertakings far exceeds all that the
government could effect.

As the administrative authority is within the reach of the citizens,
whom it in some degree represents, it excites neither their jealousy nor
their hatred: as its resources are limited, every one feels that he must
not rely solely on its assistance. Thus when the administration thinks
fit to interfere, it is not abandoned to itself as in Europe; the duties
of the private citizens are not supposed to have lapsed because the
state assists in their fulfilment; but every one is ready, on the
contrary, to guide and to support it. This action of individual
exertions, joined to that of the public authorities, frequently performs
what the most energetic central administration would be unable to
execute. It would be easy to adduce several facts in proof of what I
advance, but I had rather give only one, with which I am more thoroughly
acquainted.[112] In America, the means which the authorities have at
their disposal for the discovery of crimes and the arrest of criminals
are few. A state police does not exist, and passports are unknown. The
criminal police of the United States cannot be compared with that of
France; the magistrates and public prosecutors are not numerous, and the
examinations of prisoners are rapid and oral. Nevertheless in no country
does crime more rarely elude punishment. The reason is that every one
conceives himself to be interested in furnishing evidence of the act
committed, and in stopping the delinquent. During my stay in the United
States, I saw the spontaneous formation of committees for the pursuit
and prosecution of a man who had committed a great crime in a certain
county. In Europe a criminal is an unhappy being, who is struggling for
his life against the ministers of justice, while the population is
merely a spectator of the conflict: in America he is looked upon as an
enemy of the human race, and the whole of mankind is against him.

I believe that provincial institutions are useful to all nations, but
nowhere do they appear to me to be more indispensable than among a
democratic people. In an aristocracy, order can always be maintained in
the midst of liberty; and as the rulers have a great deal to lose, order
is to them a first-rate consideration. In like manner an aristocracy
protects the people from the excesses of despotism, because it always
possesses an organized power ready to resist a despot. But a democracy
without provincial institutions has no security against these evils. How
can a populace, unaccustomed to freedom in small concerns, learn to use
it temperately in great affairs? What resistance can be offered to
tyranny in a country where every private individual is impotent, and
where the citizens are united by no common tie? Those who dread the
license of the mob, and those who fear the rule of absolute power, ought
alike to desire the progressive growth of provincial liberties.

On the other hand, I am convinced that democratic nations are most
exposed to fall beneath the yoke of a central administration, for
several reasons, among which is the following:--

The constant tendency of these nations is to concentrate all the
strength of the government in the hands of the only power which directly
represents the people: because, beyond the people nothing is to be
perceived but a mass of equal individuals confounded together. But when
the same power is already in possession of all the attributes of the
government, it can scarcely refrain from penetrating into the details of
the administration; and an opportunity of doing so is sure to present
itself in the end, as was the case in France. In the French revolution
there were two impulses in opposite directions, which must never be
confounded; the one was favorable to liberty, the other to despotism.
Under the ancient monarchy the king was the sole author of the laws; and
below the power of the sovereign, certain vestiges of provincial
institutions half-destroyed, were still distinguishable. These
provincial institutions were incoherent, ill-compacted, and frequently
absurd; in the hands of the aristocracy they had sometimes been
converted into instruments of oppression. The revolution declared itself
the enemy of royalty and of provincial institutions at the same time; it
confounded all that had preceded it--despotic power and the checks to
its abuses--in an indiscriminate hatred; and its tendency was at once to
republicanism and to centralisation. This double character of the French
revolution is a fact which has been adroitly handled by the friends of
absolute power. Can they be accused of laboring in the cause of
despotism, when they are defending of the revolution?[113] In this
manner popularity may be conciliated with hostility to the rights of the
people, and the secret slave of tyranny may be the professed admirer of
freedom.

I have visited the two nations in which the system of provincial liberty
has been most perfectly established, and I have listened to the opinions
of different parties in those countries. In America I met with men who
secretly aspired to destroy the democratic institutions of the Union; in
England, I found others who attacked aristocracy openly; but I know of
no one who does not regard provincial independence as a great benefit.
In both countries I have heard a thousand different causes assigned for
the evils of the state; but the local system was never mentioned among
them. I have heard citizens attribute the power and prosperity of their
country to a multitude of reasons: but they _all_ placed the advantages
of local institutions in the foremost rank.

Am I to suppose that when men who are naturally so divided on religious
opinions, and on political theories, agree on one point (and that, one
of which they have daily experience), they are all in error? The only
nations which deny the utility of provincial liberties are those which
have fewest of them; in other words, those who are unacquainted with the
institution are the only persons who pass a censure upon it.

* * * * *

Notes:

[63] It is by this periphrasis that I attempt to render the French
expressions "_Commune_" and "_Systeme Communal_." I am not aware that
any English word precisely corresponds to the general term of the
original. In France every association of human dwellings forms a
_commune_, and every commune is governed by a _maire_ and a _conseil
municipal_. In other words, the _mancipium_ or municipal privilege,
which belongs in England to chartered corporations alone, is alike
extended to every commune into which the cantons and departments of
France were divided at the revolution. Thence the different application
of the expression, which is general in one country and restricted in the
other. In America, the counties of the northern states are divided into
townships, those of the southern into parishes; besides which, municipal
bodies, bearing the name of corporations, exist in the cities. I shall
apply these several expressions to render the term _commune_. The term
"parish," now commonly used in England, belongs exclusively to the
ecclesiastical division; it denotes the limits over which a _parson's_
(_personae ecclesiae_ or perhaps _parochianus_) rights extend.--
_Translator's Note_.

[64] In 1830, there were 305 townships in the state of Massachusetts and
610,014 inhabitants; which gives an average of about 2,000 inhabitants
to each township.

[65] The same rules are not applicable to the great towns, which
generally have a mayor, and a corporation divided into two bodies; this,
however, is an exception which requires a sanction of a law. See the act
of 22d February, 1822, for appointing the authorities of the city of
Boston. It frequently happens that small towns as well as cities are
subject to a peculiar administration. In 1832, 104 townships in the
state of New York were governed in this manner.--_Williams's Register_.

[66] Three selectmen are appointed in the small townships, and nine in
the large ones. See "The Town Officer," p. 186. See also the principal
laws of the state of Massachusetts relative to the selectmen:--

Act of the 20th February, 1786, vol. i, p. 219; 24th February, 1796,
vol. i., p. 488, 7th March, 1801, vol. ii., p. 45; 16th June, 1795, vol.
i., p. 475; 12th March, 1808, vol. ii., p. 186; 28th February, 1787,
vol. i., p. 302; 22d June, 1797, vol. i., p. 539.

[67] See laws of Massachusetts, vol. i., p. 150 Act of the 25th March,
1786.

[68] All these magistrates actually exist; their different functions are
all detailed in a book called, "The Town Officer," by Isaac Goodwin,
Worcester, 1827; and in the Collection of the General Laws of
Massachusetts, 3 vols., Boston, 1823.

[69] See the act of 14th February, 1821. Laws of Massachusetts, vol i.,
p. 551.

[70] See the act of 20th February, 1819. Laws of Massachusetts, vol ii.,
p. 494.

[71] The council of the governor is an elective body.

[72] See the act of 2d November, 1791. Laws of Massachusetts, vol i., p.
61.

[73] See "The Town Officer," especially at the words SELECTMEN,
ASSESSORS, COLLECTORS, SCHOOLS, SURVEYORS OF HIGHWAYS. I take one
example in a thousand: the state prohibits travelling on a Sunday; the
_tything-men_, who are town-officers, are especially charged to keep
watch and to execute the law. See the laws of Massachusetts, vol. i., p.
410. The selectmen draw up the lists of electors for the election of the
governor, and transmit the result of the ballot to the secretary of the
state. See act of 24th February, 1796; _Ib_., vol. i., p. 488.

[74] Thus, for instance, the selectmen authorise the construction of
drains, point out the proper sites for slaughter-houses and other trades
which are a nuisance to the neighborhood. See the act of 7th June, 1735;
Laws of Massachusetts, vol. i., p. 193.

[75] The selectmen take measures for the security of the public in case
of contagious disease, conjointly with the justices of the peace. See
the act of 22d June, 1797; vol. i., p. 539.

[76] I say _almost_, for there are various circumstances in the annals
of a township which are regulated by the justice of the peace in his
individual capacity, or by the justices of the peace, assembled in the
chief town of the county; thus licenses are granted by the justices. See
the act of 28th Feb., 1787; vol. i., p. 297.

[77] Thus licenses are only granted to such persons as can produce a
certificate of good conduct from the selectmen. If the selectmen refuse
to give the certificate, the party may appeal to the justices assembled
in the court of sessions; and they may grant the license. See the act of
12th March, 1808; vol. ii., p. 186.

The townships have the right to make by-laws, and to enforce them by
fines which are fixed by law; but these by-laws must be approved by the
court of sessions. See the act of 23d March, 1786; vol. i., p. 254.

[78] In Massachusetts the county-magistrates are frequently called upon
to investigate the acts of the town-magistrates; but it will be shown
farther on that this investigation is a consequence, not of their
administrative, but of their judicial power.

[79] The town committees of schools are obliged to make an annual report
to the secretary of the state on the condition of the School. See the
act of 10th March, 1827; vol. iii., p. 183.

[80] We shall hereafter learn what a governor is; I shall content myself
with remarking in this place, that he represents the executive power of
the whole state.

[81] See the constitution of Massachusetts, chap ii., sec. 1; chap iii.,
sec. 3.

[82] Thus, for example, a stranger arrives in a township from a country
where a contagious disease prevails, and he falls ill. Two justices of
the peace can, with the assent of the selectmen, order the sheriff of
the county to remove and take care of him. Act of 22d June, 1797; vol.
i., p. 540.

In general the justices interfere in all the important acts of the
administration, and give them a semi-judicial character.

[83] I say the greater number because certain administrative
misdemeanors are brought before the ordinary tribunals. If, for
instance, a township refuses to make the necessary expenditure for its
schools, or to name a school-committee, it is liable to a heavy fine.
But this penalty is pronounced by the supreme judicial court or the
court of common pleas. See the act of 10th March, 1827; laws of
Massachusetts, vol. iii., p. 190. Or when a township neglects to provide
the necessary war-stores. Act of 21st February, 1822; Id. vol. ii., p.
570.

[84] In their individual capacity, the justices of the peace take a part
in the business of the counties and townships. The more important acts
of the municipal government are rarely decided upon without the
co-operation of one of their body.

[85] These affairs may be brought under the following heads: 1. The
erection of prisons and courts of justice. 2. The county budget, which
is afterward voted by the state. 3. The assessment of the taxes so
voted. 4. Grants of certain patents. 5. The laying down and repairs of
the county roads.

[86] Thus, when a road is under consideration, almost all difficulties
are disposed of by the aid of the jury.

[87] See the act of the 20th February, 1786; laws of Massachusetts, vol.
1., p. 217.

[88] There is an indirect method of enforcing the obedience of a
township. Suppose that the funds which the law demands for the
maintenance of the roads have not been voted; the town-surveyor is then
authorized, _ex-officio_, to levy the supplies. As he is personally
responsible to private individuals for the state of the roads, and
indictable before the court of sessions, he is sure to employ the
extraordinary right which the law gives him against the township. Thus
by threatening the officer, the court of sessions exacts compliance from
the town. See the act of 5th March, 1787; laws of Massachusetts, vol.
1., p. 305.

[89] Laws of Massachusetts, vol. 2., p. 45.

[90] If, for instance, a township persists in refusing to name its
assessors, the court of sessions nominates them; and the magistrates
thus appointed are invested with the same authority as elected officers
See the act quoted above, 20th February, 1787.

[91] I say the court of sessions, because in common courts there is a
magistrate who exercises some of the functions of a public prosecutor.

[92] The grand-jurors are, for instance, bound to inform the court of
the bad state of the roads. Laws of Massachusetts, vol. i., p. 308.

[93] If, for instance, the treasurer of the county holds back his
account. Laws of Massachusetts, vol. i., p. 406.

[94] Thus, if a private individual breaks down or is wounded in
consequence of the badness of a road, he can sue the township or the
county for damages at the sessions. Laws of Massachusetts, vol. i., p.
309.

[95] In cases of invasion or insurrection, if the town officers neglect
to furnish the necessary stores and ammunition for the militia, the
township may be condemned to a fine of from two to five hundred dollars.
It may readily be imagined that in such a case it might happen that no
one cared to prosecute: hence the law adds that all the citizens may
indict offences of this kind, and that half the fine shall belong to the
plaintiff. See the act of 6th March, 1810; vol. ii., p. 236. The same
clause is frequently to be met with in the laws of Massachusetts. Not
only are private individuals thus incited to prosecute public officers,
but the public officers are encouraged in the same manner to bring the
disobedience of private individuals to justice. If a citizen refuses to
perform the work which has been assigned to him upon a road, the
road-surveyor may prosecute him, and he receives half the penalty for
himself. See the laws above quoted, vol. i., p. 308.

[96] For details, see Revised Statutes of the state of New York, part I,
chap, xi., vol. i., pp. 336-364, entitled, "Of the Powers, Duties, and
Privileges of Towns."

See in the digest of the laws of Pennsylvania, the words, ASSESSORS,
COLLECTOR, CONSTABLES, OVERSEER OF THE POOR, SUPERVISORS OF HIGHWAYS:
and in the acts of a general nature of the state of Ohio, the act of
25th February, 1834, relating to townships, p. 412; beside the peculiar
dispositions relating to divers town officers, such as township's
clerks, trustees, overseers of the poor, fence-viewers, appraisers of
property, township's treasurer, constables, supervisors of highways.

[97] The author means the state legislature. The congress has no control
over the expenditure of the counties or of the states.

[98] See the Revised Statutes of the state of New York, part i., chap.
xi., vol. i., p. 410. _Idem_, chap, xii., p. 366: also in the acts of
the state of Ohio, an act relating to county commissioners, 26th
February, 1824, p. 263. See the Digest of the Laws of Pennsylvania, at
the words, COUNTY-RATES AND LEVIES, p. 170.

In the state of New York, each township elects a representative, who has
a share in the administration of the county as well as in that of the
township.

[99] In some of the southern states the county-courts are charged with
all the details of the administration. See the Statutes of the State of
Tennessee, _arts._ JUDICIARY, TAXES, &c.

[100] For instance, the direction of public instruction centres in the
hands of the government. The legislature names the members of the
university, who are denominated regents; the governor and
lieutenant-governor of the state are necessarily of the number. Revised
Statutes, vol. i., p. 455. The regents of the university annually visit
the colleges and academies, and make their report to the legislature.
Their superintendence is not inefficient, for several reasons: the
colleges in order to become corporations stand in need of a charter,
which is only granted on the recommendation of the regents: every year
funds are distributed by the state for the encouragement of learning,
and the regents are the distributors of this money. See chap. xv.,
"Public Instruction," Revised Statutes, vol i., p. 455.

The school commissioners are obliged to send an annual report to the
superintendent of the state. _Idem_, p. 448.

A similar report is annually made to the same person on the number and
condition of the poor. _Idem_, p. 631.

[101] If any one conceives himself to be wronged by the school
commissioners (who are town-officers), he can appeal to the
superintendent of the primary schools, whose decision is final. Revised
Statutes, vol. i., p. 487.

Provisions similar to those above cited are to be met with from time to
time in the laws of the state of New York: but in general these attempts
at centralisation are weak and unproductive. The great authorities of
the state have the right of watching and controlling the subordinate
agents, without that of rewarding or punishing them. The same individual
is never empowered to give an order and to punish disobedience; he has
therefore the right of commanding, without the means of exacting
compliance. In 1830 the superintendent of schools complained in his
annual report addressed to the legislature, that several school
commissioners had neglected, notwithstanding his application, to furnish
him with the accounts which were due. He added, that if this omission
continued, he should be obliged to prosecute them, as the law directs,
before the proper tribunals.

[102] Thus the district-attorney is directed to recover all fines,
unless such a right has been specially awarded to another magistrate.
Revised Statutes, vol. i., p. 383.

[103] Several traces of centralisation may be discovered in
Massachusetts, for instance, the committees of the town-schools are
directed to make an annual report to the secretary of state. See Laws of
Massachusetts, vol. i., p. 367.

[104] See the constitution of New York.

[105] In Massachusetts the Senate is not invested with any
administrative functions.

[106] As in the state of New York.

[107] Practically speaking, it is not always the governor who executes
the plans of the legislature; it often happens that the latter, in
voting a measure, names special agents to superintend the execution of
it.

[108] In some of the states the Justices of the peace are not nominated
by the governor.

[109] The authority which represents the state ought not, I think, to
waive the right of inspecting the local administration, even when it
does not interfere more actively. Suppose, for instance, that an agent
of the government was stationed at some appointed spot, in the county,
to prosecute the misdemeanors of the town and county officers, would not
a more uniform order be the result, without in any way compromising the
independence of the township? Nothing of the kind, however, exists in
America; there is nothing above the county courts, which have, as it
were, only an accidental cognizance of the offences they are meant to
repress.

[This note seems to have been written without reference to the provision
existing, it is believed in every state of the Union, by which a local
officer is appointed in each county, to conduct all public prosecutions
at the expense of the state. And in each county, a grand-jury is
assembled three or four times at least in every year, to which all who
are aggrieved have free access, and where every complaint, particularly
those against public officers, which has the least color of truth, is
sure to be heard and investigated.

Such an agent as the author suggests would soon come to be considered a
public informer, the most odious of all characters in the United States;
and he would lose all efficiency and strength. With the provision above
mentioned, there is little danger that a citizen, oppressed by a public
officer, would find any difficulty in becoming his own informer, and
inducing a rigid inquiry into the alleged misconduct.--_American
Editor_.]

[110] China appears to me to present the most perfect instance of that
species of well-being which a completely central administration may
furnish to the nations among which it exists. Travellers assure us that
the Chinese have peace without happiness, industry without improvement,
stability without strength, and public order without public morality.
The condition of society is always tolerable, never excellent. I am
convinced that, when China is opened to European observation, it will be
found to contain the most perfect model of a central administration
which exists in the universe.

[111] A writer of talent, who, in the comparison which he has drawn
between the finances of France and those of the United States, has
proved that ingenuity cannot always supply the place of a knowledge of
facts, very justly reproaches the Americans for the sort of confusion
which exists in the accounts of the expenditure in the townships; and
after giving the model of a departmental budget in France, he adds: "We
are indebted to centralisation, that admirable invention of a great man,
for the uniform order and method which prevail alike in all the
municipal budgets, from the largest town to the humblest commune."
Whatever may be my admiration of this result, when I see the communes of
France, with their excellent system of accounts, plunged in the grossest
ignorance of their true interests, and abandoned to so incorrigible an
apathy that they seem to vegetate rather than to live; when, on the
other hand, I observe the activity, the information, and the spirit of
enterprise which keeps society in perpetual labor, in those American
townships whose budgets are drawn up with small method and with still
less uniformity, I am struck by the spectacle; for to my mind the end of
a good government is to ensure the welfare of a people, and not to
establish order and regularity in the midst of its misery and its
distress. I am therefore led to suppose that the prosperity of the
American townships and the apparent confusion of their accounts, the
distress of the French communes and the perfection of their budget, may
be attributable to the same cause. At any rate I am suspicious of a
benefit which is united to so many evils, and I am not averse to an evil
which is compensated by so many benefits.

[112] See Appendix I.

[113] See Appendix K.

CHAPTER VI.

JUDICIAL POWER IN THE UNITED STATES, AND ITS INFLUENCE ON POLITICAL
SOCIETY.

The Anglo-Americans have retained the Characteristics of judicial Power
which are common to all Nations.--They have, however, made it a powerful
political Organ.--How.--In what the judicial System of the
Anglo-Americans differs from that of all other Nations.--Why the
American Judges have the right of declaring the Laws to be
Unconstitutional.--How they use this Right.--Precautions taken by the
Legislator to prevent its abuse.

I have thought it essential to devote a separate chapter to the judicial
authorities of the United States, lest their great political importance
should be lessened in the reader's eyes by a merely incidental mention
of them. Confederations have existed in other countries beside America;
and republics have not been established on the shores of the New World
alone: the representative system of government has been adopted in
several states of Europe; but I am not aware that any nation of the
globe has hitherto organized a judicial power on the principle adopted
by the Americans. The judicial organization of the United States is the
institution which the stranger has the greatest difficulty in
understanding. He hears the authority of a judge invoked in the
political occurrences of every day, and he naturally concludes that in
the United States the judges are important political functionaries:
nevertheless, when he examines the nature of the tribunals, they offer
nothing which is contrary to the usual habits and privileges of those
bodies; and the magistrates seem to him to interfere in public affairs
by chance, but by a chance which recurs every day.

When the Parliament of Paris remonstrated, or refused to enregister an
edict, or when it summoned a functionary accused of malversation to its
bar, its political influence as a judicial body was clearly visible; but
nothing of the kind is to be seen in the United States. The Americans
have retained all the ordinary characteristics of judicial authority,
and have carefully restricted its action to the ordinary circle of its
functions.

The first characteristic of judicial power in all nations is the duty of
arbitration. But rights must be contested in order to warrant the
interference of a tribunal; and an action must be brought to obtain the
decision of a judge. As long, therefore, as a law is uncontested, the
judicial authority is not called upon to discuss it, and it may exist
without being perceived. When a judge in a given case attacks a law
relating to that case, he extends the circle of his customary duties,
without, however, stepping beyond it; since he is in some measure
obliged to decide upon the law, in order to decide the case. But if he
pronounces upon a law without resting upon a case, he clearly steps
beyond his sphere, and invades that of the legislative authority.

The second characteristic of judicial power is, that it pronounces on
special cases, and not upon general principles. If a judge, in deciding
a particular point, destroys a general principle, by passing a judgment
which tends to reject all the inferences from that principle, and
consequently to annul it, he remains within the ordinary limits of his
functions. But if he directly attacks a general principle without having
a particular case in view, he leaves the circle in which all nations
have agreed to confine his authority; he assumes a more important, and
perhaps a more useful influence than that of the magistrate, but he
ceases to represent the judicial power.

The third characteristic of the judicial power is its inability to act
unless it is appealed to, or until it has taken cognizance of an affair.
This characteristic is less general than the other two; but
notwithstanding the exceptions, I think it may be regarded as essential.
The judicial power is by its nature devoid of action; it must be put in
motion in order to produce a result. When it is called upon to repress a
crime, it punishes the criminal; when a wrong is to be redressed, it is
ready to redress it; when an act requires interpretation, it is prepared
to interpret it; but it does not pursue criminals, hunt out wrongs, or
examine into evidence of its own accord. A judicial functionary who
should open proceedings, and usurp the censorship of the laws, would in
some measure do violence to the passive nature of his authority.

The Americans have retained these three distinguishing characteristics
of the judicial power; an American judge can only pronounce a decision
when litigation has arisen, he is only conversant with special cases,
and he cannot act until the cause has been duly brought before the
court. His position is therefore perfectly similar to that of the
magistrate of other nations; and he is nevertheless invested with
immense political power. If the sphere of his authority and his means of
action are the same as those of other judges, it may be asked whence he
derives a power which they do not possess. The cause of this difference
lies in the simple fact that the Americans have acknowledged the right
of the judges to found their decisions on the constitution, rather than
on the laws. In other words, they have left them at liberty not to apply
such laws as may appear to them to be unconstitutional.

I am aware that a similar right has been claimed--but claimed in
vain--by courts of justice in other countries; but in America it is
recognized by all the authorities; and not a party, nor so much as an
individual, is found to contest it. This fact can only be explained by
the principles of the American constitution. In France the constitution
is (or at least is supposed to be) immutable; and the received theory is
that no power has the right of changing any part of it. In England, the
parliament has an acknowledged right to modify the constitution: as,
therefore, the constitution may undergo perpetual changes, it does not
in reality exist; the parliament is at once a legislative and a
constituent assembly. The political theories of America are more simple
and more rational. An American constitution is not supposed to be
immutable as in France; nor is it susceptible of modification by the
ordinary powers of society as in England. It constitutes a detached
whole, which, as it represents the determination of the whole people, is
no less binding on the legislator than on the private citizen, but which
may be altered by the will of the people in predetermined cases,
according to established rules. In America the constitution may,
therefore, vary, but as long as it exists it is the origin of all
authority, and the sole vehicle of the predominating force.[114]

It is easy to perceive in what manner these differences must act upon
the position and the rights of the judicial bodies in the three
countries I have cited. If in France the tribunals were authorized to
disobey the laws on the ground of their being opposed to the
constitution, the supreme power would in fact be placed in their hands,
since they alone would have the right of interpreting a constitution,
the clauses of which can be modified by no authority. They would,
therefore, take the place of the nation, and exercise as absolute a sway
over society as the inherent weakness of judicial power would allow them
to do. Undoubtedly, as the French judges are incompetent to declare a
law to be unconstitutional, the power of changing the constitution is
indirectly given to the legislative body, since no legal barrier would
oppose the alterations which it might prescribe. But it is better to
grant the power of changing the constitution of the people to men who
represent (however imperfectly) the will of the people, than to men who
represent no one but themselves.

It would be still more unreasonable to invest the English judges with
the right of resisting the decisions of the legislative body, since the
parliament which makes the laws also makes the constitution; and
consequently a law emanating from the three powers of the state can in
no case be unconstitutional. But neither of these remarks is applicable
to America.[115]

In the United States the constitution governs the legislator as much as
the private citizen: as it is the first of laws, it cannot be modified
by a law; and it is therefore just that the tribunals should obey the
constitution in preference to any law. This condition is essential to
the power of the judicature; for to select that legal obligation by
which he is most strictly bound, is the natural right of every
magistrate.

In France the constitution is also the first of laws, and the judges
have the same right to take it as the ground of their decisions; but
were they to exercise this right, they must perforce encroach on rights
more sacred than their own, namely, on those of society, in whose name
they are acting. In this case the state motive clearly prevails over the
motives of an individual. In America, where the nation can always reduce
its magistrates to obedience by changing its constitution, no danger of
this kind is to be feared. Upon this point therefore the political and
the logical reason agree, and the people as well as the judges preserve
their privileges.

Whenever a law which the judge holds to be unconstitutional is argued in
a tribunal of the United States, he may refuse to admit it as a rule;
this power is the only one which is peculiar to the American magistrate,
but it gives rise to immense political influence. Few laws can escape
the searching analysis; for there are few which are not prejudicial to
some private interest or other, and none which may not be brought before
a court of justice by the choice of parties, or by the necessity of the
case. But from the time that a judge has refused to apply any given law
in a case, that law loses a portion of its moral sanction. The persons
to whose interest it is prejudicial, learn that means exist of evading
its authority; and similar suits are multiplied, until it becomes
powerless. One of two alternatives must then be resorted to: the people
must alter the constitution, or the legislature must repeal the law.

The political power which the Americans have intrusted to their courts
of justice is therefore immense; but the evils of this power are
considerably diminished, by the obligation which has been imposed of
attacking the laws through the courts of justice alone. If the judge had
been empowered to contest the laws on the ground of theoretical
generalities; if he had been enabled to open an attack or to pass a
censure on the legislator, he would have played a prominent part in the
political sphere; and as the champion or the antagonist of a party, he
would have arrayed the hostile passions of the nation in the conflict.
But when a judge contests a law, applied to some particular case in an
obscure proceeding, the importance of his attack is concealed from the
public gaze; his decision bears upon the interest of an individual, and
if the law is slighted, it is only collaterally. Moreover, although it
be censured, it is not abolished; its moral force may be diminished, but
its cogency is by no means suspended; and its final destruction can only
be accomplished by the reiterated attacks of judicial functionaries. It
will readily be understood that by connecting the censorship of the laws
with the private interests of members of the community, and by
intimately uniting the prosecution of the law with the prosecution of an
individual, the legislation is protected from wanton assailants, and
from the daily aggressions of party spirit. The errors of the legislator
are exposed whenever their evil consequences are most felt; and it is
always a positive and appreciable fact which serves as the basis of a
prosecution.

I am inclined to believe this practice of the American courts to be at
once the most favorable to liberty as well as to public order. If the
judge could only attack the legislator openly and directly, he would
sometimes be afraid to oppose any resistance to his will; and at other
moments party spirit might encourage him to brave it every day. The laws
would consequently be attacked when the power from which they emanate is
weak, and obeyed when it is strong. That is to say, when it would be
useful to respect them, they would be contested; and when it would be
easy to convert them into an instrument of oppression, they would be
respected. But the American judge is brought into the political arena
independently of his own will. He only judges the law because he is
obliged to judge a case. The political question which he is called upon
to resolve is connected with the interest of the parties, and he cannot
refuse to decide it without abdicating the duties of his post. He
performs his functions as a citizen by fulfilling the strict duties
which belong to his profession as a magistrate. It is true that upon
this system the judicial censorship which is exercised by the courts of
justice over the legislation cannot extend to all laws indiscriminately,
inasmuch as some of them can never give rise to that precise species of
contestation which is termed a lawsuit; and even when such a
contestation is possible, it may happen that no one cares to bring it
before a court of justice. The Americans have often felt this
disadvantage, but they have left the remedy incomplete, lest they should
give it efficacy which in some cases might prove dangerous. Within these
limits, the power vested in the American courts of justice of
pronouncing a statute to be unconstitutional, forms one of the most
powerful barriers which have ever been devised against the tyranny of
political assemblies.

* * * * *

OTHER POWERS GRANTED TO THE AMERICAN JUDGES.

In the United States all the Citizens have the Right of indicting the
public Functionaries before the ordinary Tribunals.--How they use this
Right.--Art. 75 of the An VIII.--The Americans and the English cannot
understand the Purport of this Clause.

It is perfectly natural that in a free country like America all the
citizens should have the right of indicting public functionaries before
the ordinary tribunals, and that all the judges should have the power of
punishing public offences. The right granted to the courts of justice,
of judging the agents of the executive government, when they have
violated the laws, is so natural a one that it cannot be looked upon as
an extraordinary privilege. Nor do the springs of government appear to
me to be weakened in the United States by the custom which renders all
public officers responsible to the judges of the land. The Americans
seem, on the contrary, to have increased by this means that respect
which is due to the authorities, and at the same time to have rendered
those who are in power more scrupulous of offending public opinion. I
was struck by the small number of political trials which occur in the
United States; but I have no difficulty in accounting for this
circumstance. A lawsuit, of whatever nature it may be, is always a
difficult and expensive undertaking. It is easy to attack a public man
in a journal, but the motives which can warrant an action at law must be
serious. A solid ground of complaint must therefore exist, to induce an
individual to prosecute a public officer, and public officers careful
not to furnish these grounds of complaint, when they are afraid of being
prosecuted.

This does not depend upon the republican form of the American
institutions, for the same facts present themselves in England. These
two nations do not regard the impeachment of the principal officers of
state as a sufficient guarantee of their independence. But they hold
that the right of minor prosecutions, which are within the reach of the
whole community, is a better pledge of freedom than those great judicial
actions which are rarely employed until it is too late.

In the middle ages, when it was very difficult to overtake offenders,
the judges inflicted the most dreadful tortures on the few who were
arrested, which by no means diminished the number of crimes. It has
since been discovered that when justice is more certain and more mild,
it is at the same time more efficacious. The English and the Americans
hold that tyranny and oppression are to be treated like any other crime,
by lessening the penalty and facilitating conviction.

In the year VIII. of the French republic, a constitution was drawn up in
which the following clause was introduced: "Art. 75. All the agents of
the government below the rank of ministers can only be prosecuted for
offences relating to their several functions by virtue of a decree of
the conseil d'etat; in which case the prosecution takes place before the
ordinary tribunals." This clause survived the "Constitution de l'an
VIII.," and it is still maintained in spite of the just complaints of
the nation. I have always found the utmost difficulty in explaining its
meaning to Englishmen or Americans. They were at once led to conclude
that the conseil d'etat in France was a great tribunal, established in
the centre of the kingdom, which exercised a preliminary and somewhat
tyrannical jurisdiction in all political causes. But when I told them
that the conseil d'etat was not a judicial body, in the common sense of
the term, but an administrative council composed of men dependent on the
crown--so that the king, after having ordered one of his servants,
called a prefect, to commit an injustice, has the power of commanding
another of his servants, called a councillor of state, to prevent the
former from being punished--when I demonstrated to them that the citizen
who had been injured by the order of the sovereign is obliged to solicit
from the sovereign permission to obtain redress, they refused to credit
so flagrant an abuse, and were tempted to accuse me of falsehood or of
ignorance. It frequently happened before the revolution that a
parliament issued a warrant against a public officer who had committed
an offence; and sometimes the proceedings were annulled by the authority
of the crown. Despotism then displayed itself openly, and obedience was
extorted by force. We have then retrograded from the point which our
forefathers had reached, since we allow things to pass under the color
of justice and the sanction of the law, which violence alone could
impose upon them.

* * * * *

Notes:

[114] See Appendix L.

[115] See Appendix M.

CHAPTER VII.

POLITICAL JURISDICTION IN THE UNITED STATES.

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.

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 may be neglected, and that his authority
may 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
society. 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 in their laws; and it is curious to examine the different
use which these three great nations have made of the principle. In
England and in France the house of lords and the chambre des pairs
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, while in
France the deputies can only employ this mode of prosecution against the
ministers of the crown.

In both countries the upper house 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, while 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 a 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
therefore 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 favor is
the first of authorities, and where the strength of many a leader 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
judgment, 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 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 judicial investigation. 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, while the military,
whose crimes are nevertheless more formidable, are exempt from that
tribunal. In the civil service none of the American functionaries can be
said to be removeable; the places which some of them occupy are
inalienable, and the others derive their rights from a power which
cannot be abrogated. 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 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 before-hand submitted
to its authority upon accepting office are exposed to its severity. 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 iv., of the constitution of the
United States runs thus: "The president, vice-president, and all the
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,[116] "shall be impeached for misconduct or
mal-administration." The constitution of Virginia declares that all the
civil officers who shall have offended against the state by
mal-administration, 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.[117] 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 consequences of the penalty he is to
undergo, and that in America they constitute the penalty itself. The
result 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 liberty, may
appear to be the fair issue of the struggle. But this sentence, which 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 act directly
upon the governed, but it renders the majority more absolute over those
who govern; it does not confer an unbounded authority on the legislator
which can only 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 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.[118]

* * * * *

Notes:

[116] Chapter I., sect. ii., sec. 8.

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

[118] See Appendix N.

CHAPTER VIII.

THE FEDERAL CONSTITUTION.

I have hitherto considered each state as a separate whole, and I have
explained the different springs which the people sets in motion, and the
different means of action which it employs. But all the states which I
have considered as independent are forced to submit, in certain cases,
to the supreme authority of the Union. The time is now come for me to
examine the partial sovereignty which has been conceded to the Union,
and to cast a rapid glance over the federal constitution.[119]

* * * * *

HISTORY OF THE FEDERAL CONSTITUTION.

Origin of the first Union.--Its Weakness.--Congress appeals to the
constituent Authority.--Interval of two Years between the Appeal and the
Promulgation of the new Constitution.

The thirteen colonies which simultaneously threw off the yoke of England
toward the end of the last century, possessed, as I have already
observed, the same religion, the same language, the same customs, and
almost the same laws; they were struggling against a common enemy; and
these reasons were sufficiently strong to unite them one to another, and
to consolidate them into one nation. But as each of them had enjoyed a
separate existence, and a government within its own control, the
peculiar interests and customs which resulted from this system, were
opposed to a compact and intimate union, which would have absorbed the
individual importance of each in the general importance of all. Hence
arose two opposite tendencies, the one prompting the Anglo-Americans to
unite, the other to divide their strength. As long as the war with the
mother-country lasted, the principle of union was kept alive by
necessity; and although the laws which constituted it were defective,
the common tie subsisted in spite of their imperfections.[120] But no
sooner was peace concluded than the faults of the legislation became
manifest, and the state seemed to be suddenly dissolved. Each colony
became an independent republic, and assumed an absolute sovereignty. The
federal government, condemned to impotence by its constitution, and no
longer sustained by the presence of a common danger, saw the outrages
offered to its flag by the great nations of Europe, while it was
scarcely able to maintain its ground against the Indian tribes, and to
pay the interest of the debt which had been contracted during the war of
independence. It was already on the verge of destruction, when it
officially proclaimed its inability to conduct the government, and
appealed to the constituent authority of the nation.[121]

If America ever approached (for however brief a time) that lofty
pinnacle of glory to which the proud fancy of its inhabitants is wont to
point, it was at the solemn moment at which the power of the nation
abdicated, as it were, the empire of the land. All ages have furnished
the spectacle of a people struggling with energy to win its
independence; and the efforts of the Americans in throwing off the
English yoke have been considerably exaggerated. Separated from their
enemies by three thousand miles of ocean, and backed by a powerful ally,
the success of the United States may be more justly attributed to their
geographical position, than to the valor of their armies or the
patriotism of their citizens. It would be ridiculous to compare the
American war to the wars of the French revolution, or the efforts of the
Americans to those of the French, who, when they were attacked by the
whole of Europe, without credit and without allies, were still capable
of opposing a twentieth part of their population to their foes, and of
bearing the torch of revolution beyond their frontiers while they
stifled its devouring flame within the bosom of their country. But it is
a novelty in the history of society to see a great people turn a calm
and scrutinizing eye upon itself when apprised by the legislature that
the wheels of government had stopped; to see it carefully examine the
extent of the evil, and patiently wait for two whole years until a
remedy was discovered, which it voluntarily adopted without having wrung
a tear or a drop of blood from mankind. At the time when the inadequacy
of the first constitution was discovered, America possessed the double
advantage of that calm which had succeeded the effervescence of the
revolution, and of those great men who had led the revolution to a
successful issue. The assembly which accepted the task of composing the
second constitution was small;[122] but George Washington was its
president, and it contained the choicest talents and the noblest hearts
which had ever appeared in the New World. This national commission,
after long and mature deliberation, offered to the acceptance of the
people the body of general laws which still rules the Union. All the
states adopted it successively.[123] The new federal government
commenced its functions in 1789, after an interregnum of two years. The
revolution of America terminated when that of France began.

* * * * *

SUMMARY OF THE FEDERAL CONSTITUTION.

Division of Authority between the Federal Government and the
States.--The Government of the States is the Rule: the Federal
Government the Exception.

The first question which awaited the Americans was intricate, and by no
means easy of solution; the object was so to divide the authority of the
different states which composed the Union, that each of them should
continue to govern itself in all that concerned its internal prosperity,
while the entire nation, represented by the Union, should continue to
form a compact body, and to provide for the exigencies of the people. It
was as impossible to determine beforehand, with any degree of accuracy,
the share of authority which each of the two governments was to enjoy,
as to foresee all the incidents in the existence of a nation.

The obligations and the claims of the federal government were simple and
easily definable, because the Union had been formed with the express
purpose of meeting the general exigencies of the people; but the claims
and obligations of the states were, on the other hand, complicated and
various, because those governments penetrated into all the details of
social life. The attributes of the federal government were, therefore,
carefully enumerated, and all that was not included among them was
declared to constitute a part of the privileges of the several
governments of the states. Thus the government of the states remained
the rule, and that of the confederation became the exception.[124]

But as it was foreseen, that, in practice, questions might arise as to
the exact limits of this exceptional authority, and that it would be
dangerous to submit these questions to the decision of the ordinary
courts of justice, established in the states by the states themselves, a
high federal court was created,[125] which was destined, among other
functions, to maintain the balance of power which had been established
by the constitution between the two rival governments.[126]

* * * * *

PREROGATIVE OF THE FEDERAL GOVERNMENT.

Power of declaring War, making Peace, and levying general Taxes vested
in the Federal Government.--What Part of the internal Policy of the
Country it may direct.--The Government of the Union in some respects
more central than the King's Government in the old French monarchy.

The external relations of a people may be compared to those of private
individuals, and they cannot be advantageously maintained without the
agency of the single head of a government. The exclusive right of making
peace and war, of concluding treaties of commerce, of raising armies,
and equipping fleets, was therefore granted to the Union.[127] The
necessity of a national government was less imperiously felt in the
conduct of the internal affairs of society; but there are certain
general interests which can only be attended to with advantage by a
general authority. The Union was invested with the power of controlling
the monetary system, of directing the post-office, and of opening the
great roads which were to establish communication between the different
parts of the country.[128] The independence of the government of each
state was formally recognized in its sphere; nevertheless the federal
government was authorized to interfere in the internal affairs of the
states[129] in a few predetermined cases, in which an indiscreet abuse
of their independence might compromise the security of the Union at
large. Thus, while the power of modifying and changing their legislation
at pleasure was preserved in all the republics, they were forbidden to
enact _ex post facto_ laws, or to create a class of nobles in their
community.[130] Lastly, as it was necessary that the federal government
should be able to fulfil its engagements, it was endowed with an
unlimited power of levying taxes.[131]

In examining the balance of power as established by the federal
constitution; in remarking on the one hand the portion of sovereignty
which has been reserved to the several states, and on the other the
share of power which the Union has assumed, it is evident that the
federal legislators entertained the clearest and most accurate notions
on the nature of the centralisation of government. The United States
form not only a republic, but a confederation; nevertheless the
authority of the nation is more central than it was in several of the
monarchies of Europe when the American constitution was formed. Take,
for instance, the two following examples:--

Thirteen supreme courts of justice existed in France, which, generally
speaking, had the right of interpreting the law without appeal; and
those provinces, styled _pays d'etats_, were authorized to refuse their
assent to an impost which had been levied by the sovereign who
represented the nation.

In the Union there is but one tribunal to interpret, as there is one
legislature to make the laws; and an impost voted by the representatives
of the nation is binding upon all the citizens.

In these two essential points, therefore, the Union exercises more
central authority than the French monarchy possessed, although the Union
is only an assemblage of confederate republics.

In Spain certain provinces had the right of establishing a system of
customhouse duties peculiar to themselves, although that privilege
belongs, by its very nature, to the national sovereignty. In America the
congress alone has the right of regulating the commercial relations of
the states. The government of the confederation is therefore more
centralized in this respect than the kingdom of Spain. It is true that
the power of the crown in France or in Spain was always able to obtain
by force whatever the constitution of the country denied, and that the
ultimate result was consequently the same; and I am here discussing the
theory of the constitution.

* * * * *

FEDERAL POWERS.

After having settled the limits within which the federal government was
to act, the next point was to determine the powers which it was to
exert.

* * * * *

LEGISLATIVE POWERS.

Division of the legislative Body into two Branches.--Difference in the
Manner of forming the two Houses.--The Principle of the Independence of
the States predominates in the Formation of the Senate.--The Principle
of the Sovereignty of the Nation in the Composition of the House of
Representatives.--Singular Effects of the Fact that a Constitution can
only be Logical in the early Stages of a Nation.

The plan which had been laid down beforehand for the constitution of the
several states was followed, in many points, in the organization of the
powers of the Union. The federal legislature of the Union was composed
of a senate and a house of Representatives. A spirit of conciliation
prescribed the observance of distinct principles in the formation of
each of these two assemblies. I have already shown that two contrary
interests were opposed to each other in the establishment of the federal
constitution. These two interests had given rise to two opinions. It was
the wish of one party to convert the Union into a league of independent
states, or a sort of congress, at which the representatives of the
several peoples would meet to discuss certain points of their common
interests. The other party desired to unite the inhabitants of the
American colonies into one sole nation, and to establish a government,
which should act as the sole representative of the nation, as far as the
limited sphere of its authority would permit. The practical consequences
of these two theories were exceedingly different.

The question was, whether a league was to be established instead of a
national government; whether the majority of the states, instead of a
majority of the inhabitants of the Union, was to give the law; for every
state, the small as well as the great, then retained the character of an
independent power, and entered the Union upon a footing of perfect
equality. If, on the contrary, the inhabitants of the United States were
to be considered as belonging to one and the same nation, it was natural
that the majority of the citizens of the Union should prescribe the law.
Of course the lesser states could not subscribe to the application of
this doctrine without, in fact, abdicating their existence in relation
to the sovereignty of the confederation; since they would have passed
from the condition of a co-equal and co-legislative authority, to that
of an insignificant fraction of a great people. The former system would
have invested them with an excessive authority, the latter would have
annulled their influence altogether. Under these circumstances, the
result was, that the strict rules of logic were evaded, as is usually
the case when interests are opposed to arguments. A middle course was
hit upon by the legislators, which brought together by force two systems
theoretically irreconcilable.

The principle of the independence of the states prevailed in the
formation of the senate, and that of the sovereignty of the nation
predominated in the composition of the house of representatives. It was
decided that each state should send two senators to congress, and a
number of representatives proportioned to its population.[132] It
results from this arrangement that the state of New York has at the
present day forty representatives, and only two senators; the state of
Delaware has two senators, and only one representative; the state of
Delaware is therefore equal to the state of New York in the senate,
while the latter has forty times the influence of the former in the
house of representatives. Thus, if the minority of the nation
preponderates in the senate, it may paralyze the decisions of the
majority represented in the other house, which is contrary to the spirit
of constitutional government.

The facts show how rare and how difficult it is rationally and logically
to combine all the several parts of legislation. In the course of time
different interests arise, and different principles are sanctioned by
the same people; and when a general constitution is to be established,
these interests and principles are so many natural obstacles to the
rigorous application of any political system, with all its consequences.
The early stages of national existence are the only periods at which it
is possible to maintain the complete logic of legislation; and when we
perceive a nation in the enjoyment of this advantage, before we hasten
to conclude that it is wise, we should do well to remember that it is
young. When the federal constitution was formed, the interest of
independence for the separate states, and the interest of union for the
whole people, were the only two conflicting interests which existed
among the Anglo-Americans; and a compromise was necessarily made between
them.

It is, however, just to acknowledge that this part of the constitution
has not hitherto produced those evils which might have been feared. All
the states are young and contiguous; their customs, their ideas, and
their wants, are not dissimilar; and the differences which result from
their size or inferiority do not suffice to set their interests at
variance. The small states have consequently never been induced to
league themselves together in the senate to oppose the designs of the
larger ones; and indeed there is so irresistible an authority in the
legitimate expression of the will of a people, that the senate could
offer but a feeble opposition to the vote of the majority of the house
of representatives.

It must not be forgotten, on the other hand, that it was not in the
power of the American legislators to reduce to a single nation the
people for whom they were making laws. The object of the federal
constitution was not to destroy the independence of the states, but to
restrain it. By acknowledging the real authority of these secondary
communities (and it was impossible to deprive them of it), they
disavowed beforehand the habitual use of constraint in enforcing the
decisions of the majority. Upon this principle the introduction of the
influence of the states into the mechanism of the federal government was
by no means to be wondered at; since it only attested the existence of
an acknowledged power, which was to be humored, and not forcibly
checked.

* * * * *

A FARTHER DIFFERENCE BETWEEN THE SENATE AND THE HOUSE OF
REPRESENTATIVES.

The Senate named by the provincial Legislature--the Representatives, by
the People.--Double Election of the Former--Single Election of the
Latter.--Term of the different Offices.--Peculiar Functions of each
House.

The senate not only differs from the other house in the principle which
it represents, but also in the mode of its election, in the term for
which it is chosen, and in the nature of its functions. The house of
representatives is named by the people, the senate by the legislators of
each state; the former is directly elected; the latter is elected by an
elected body; the term for which the representatives are chosen is only
two years, that of the senators is six. The functions of the house of
representatives are purely legislative, and the only share it takes in
the judicial power is in the impeachment of public officers. The senate
co-operates in the work of legislation, and tries those political
offences which the house of representatives submits to its decision. It
also acts as the great executive council of the nation; the treaties
which are concluded by the president must be ratified by the senate; and
the appointments he may make must be definitively approved by the same
body.[133]

* * * * *

THE EXECUTIVE POWER.[134]

Dependence of the President--He is Elective and Responsible.--He is Free
to act in his own Sphere under the Inspection, but not under the
Direction, of the Senate.--His Salary fixed at his Entry into
Office.--Suspensive Veto.

The American legislators undertook a difficult task in attempting to
create an executive power dependent on the majority of the people and
nevertheless sufficiently strong to act without restraint in its own
sphere. It was indispensable to the maintenance of the republican form
of government that the representatives of the executive power should be
subject to the will of the nation.

The president is an elective magistrate. His honor, his property, his
liberty, and his life, are the securities which the people has for the
temperate use of his power. But in the exercise of his authority he
cannot be said to be perfectly independent; the senate takes cognizance
of his relations with foreign powers, and of the distribution of public
appointments, so that he can neither be bribed, nor can he employ the
means of corruption. The legislators of the Union acknowledged that the
executive power would be incompetent to fulfill its task with dignity
and utility, unless it enjoyed a greater degree of stability and of
strength than had been granted to it in the separate states.

The president is chosen for four years, and he may be re-elected; so
that the chances of a prolonged administration may inspire him with
hopeful undertakings for the public good, and with the means of carrying
them into execution. The president was made the sole representative of
the executive power of the Union; and care was taken not to render his
decisions subordinate to the vote of a council--a dangerous measure,
which tends at the same time to clog the action of the government and to
diminish its responsibility. The senate has the right of annulling
certain acts of the president; but it cannot compel him to take any
steps, nor does it participate in the exercise of the executive power.

The action of the legislature on the executive power may be direct; and
we have just shown that the Americans carefully obviated this influence;
but it may, on the other hand, be indirect. Public assemblies which have
the power of depriving an officer of state of his salary, encroach upon
his independence; and as they are free to make the laws, it is to be
feared lest they should gradually appropriate to themselves a portion of
that authority which the constitution had vested in his hands. This
dependence of the executive power is one of the defects inherent in
republican constitutions. The Americans have not been able to counteract
the tendency which legislative assemblies have to get possession of the
government, but they have rendered this propensity less irresistible.
The salary of the president is fixed, at the time of his entering upon
office, for the whole period of his magistracy. The president is,
moreover, provided with a suspensive veto, which allows him to oppose
the passing of such laws as might destroy the portion of independence
which the constitution awards him. The struggle between the president
and the legislature must always be an unequal one, since the latter is
certain of bearing down all resistance by persevering in its plans; but
the suspensive veto forces it at least to reconsider the matter, and, if
the motion be persisted in, it must then be backed by a majority of
two-thirds of the whole house. The veto is, in fact, a sort of appeal to
the people. The executive power, which, without this security, might
have been secretly oppressed, adopts this means of pleading its cause
and stating its motives. But if the legislature is certain of
overpowering all resistance by persevering in its plans, I reply, that
in the constitutions of all nations, of whatever kind they may be, a
certain point exists at which the legislator is obliged to have recourse
to the good sense and the virtue of his fellow-citizens. This point is
more prominent and more discoverable in republics, while it is more
remote and more carefully concealed in monarchies, but it always exists
somewhere. There is no country in the world in which everything can be
provided for by the laws, or in which political institutions can prove a
substitute for common sense and public morality.

* * * * *

DIFFERENCE BETWEEN THE POSITION OF THE PRESIDENT OF THE UNITED STATES
AND THAT OF A CONSTITUTIONAL KING OF FRANCE.

Executive Power in the United States as Limited and as Partial as the
Supremacy which it Represents.--Executive Power in France as Universal
as the Supremacy it Represents.--The King a Branch of the Legislature.--
The President the mere Executor of the Law.--Other Differences resulting
from the Duration of the two Powers.--The President checked in the
Exercise of the executive Authority.--The King Independent in its
Exercise.--Notwithstanding these Discrepancies, France is more akin to a
Republic than the Union to a Monarchy.--Comparison of the Number of
public Officers depending upon the executive Power in the two countries.

The executive power has so important an influence on the destinies of
nations that I am inclined to pause for an instant at this portion of my
subject, in order more clearly to explain the part it sustains in
America. In order to form an accurate idea of the position of the
president of the United States, it may not be irrelevant to compare it
to that of one of the constitutional kings of Europe. In this comparison
I shall pay but little attention to the external signs of power, which
are more apt to deceive the eye of the observer than to guide his
researches. When a monarchy is being gradually transformed into a
republic, the executive power retains the titles, the honors, the
etiquette, and even the funds of royalty, long after its authority has
disappeared. The English, after having cut off the head of one king, and
expelled another from his throne, were accustomed to accost the
successors of those princes upon their knees. On the other hand, when a
republic falls under the sway of a single individual, the demeanor of
the sovereign is simple and unpretending, as if his authority was not
yet paramount. When the emperors exercised an unlimited control over the
fortunes and the lives of their fellow-citizens, it was customary to
call them Caesar in conversation, and they were in the habit of supping
without formality at their friends' houses. It is therefore necessary to
look below the surface.

The sovereignty of the United States is shared between the Union and the
states, while in France it is undivided and compact: hence arises the
first and the most notable difference which exists between the president
of the United States and the king of France. In the United States the
executive power is as limited and partial as the sovereignty of the
Union in whose name it acts; in France it is as universal as the
authority of the state. The Americans have a federal, and the French a
national government.

The first cause of inferiority results from the nature of things, but it
is not the only one; the second in importance is as follows: sovereignty
may be defined to be the right of making laws: in France, the king
really exercises a portion of the sovereign power, since the laws have
no weight till he has given his assent to them; he is moreover the
executor of all they ordain. The president is also the executor of the
laws, but he does not really co-operate in their formation, since the
refusal of his assent does not annul them. He is therefore merely to be
considered as the agent of the sovereign power. But not only does the
king of France exercise a portion of the sovereign power, he also
contributes to the nomination of the legislature, which exercises the
other portion. He has the privilege of appointing the members of one
chamber, and of dissolving the other at his pleasure; whereas the
president of the United States has no share in the formation of the
legislative body, and cannot dissolve any part of it. The king has the
same right of bringing forward measures as the chambers; a right which
the president does not possess. The king is represented in each assembly
by his ministers, who explain his intentions, support his opinions, and
maintain the principles of the government. The president and his
ministers are alike excluded from congress; so that his influence and
his opinions can only penetrate indirectly into that great body. The
king of France is therefore on an equal footing with the legislature,
which can no more act without him, than he can without it. The president
exercises an authority inferior to, and depending upon, that of the
legislature.

Even in the exercise of the executive power, properly so called, the
point upon which his position seems to be almost analogous to that of
the king of France--the president labors under several causes of
inferiority. The authority of the king, in France, has, in the first
place, the advantage of duration over that of the president: and
durability is one of the chief elements of strength; nothing is either
loved or feared but what is likely to endure. The president of the
United States is a magistrate elected for four years. The king, in
France, is an hereditary sovereign.

In the exercise of the executive power the president of the United
States is constantly subject to jealous scrutiny. He may make, but he
cannot conclude a treaty; he may designate, but he cannot appoint, a
public officer.[135] The king of France is absolute in the sphere of the
executive power.

The president of the United States is responsible for his actions; but
the person of the king is declared inviolable by the French charter.

Nevertheless, the supremacy of public opinion is no less above the head
of one than of the other. This power is less definite, less evident, and
less sanctioned by the laws in France than in America, but in fact
exists. In America it acts by elections and decrees; in France it
proceeds by revolutions; but notwithstanding the different constitutions
of these two countries, public opinion is the predominant authority in
both of them. The fundamental principle of legislation--a principle
essentially republican--is the same in both countries, although its
consequences may be different, and its results more or less extensive.
Whence I am led to conclude, that France with its king is nearer akin to
a republic, than the Union with its president is to a monarchy.

In what I have been saying I have only touched upon the main points of
distinction; and if I could have entered into details, the contrast
would have been rendered still more striking.

I have remarked that the authority of the president in the United States
is only exercised within the limits of a partial sovereignty, while that
of the king, in France, is undivided. I might have gone on to show that
the power of the king's government in France exceeds its natural limits,
however extensive they may be, and penetrates in a thousand different
ways into the administration of private interests. Among the examples of
this influence may be quoted that which results from the great number of
public functionaries, who all derive their appointments from the
government. This number now exceeds all previous limits; it amounts to
138,000[136] nominations, each of which may be considered as an element
of power. The president of the United States has not the exclusive right
of making any public appointments, and their whole number scarcely
exceeds 12,000.[137]

[Those who are desirous of tracing the question respecting the power of
the president to remove every executive officer of the government
without the sanction of the senate, will find some light upon it by
referring to 5th Marshall's Life of Washington, p. 196: 5 Sergeant and
Rawle's Reports (Pennsylvania), 451: Elliot's Debates on the Federal
Constitution, vol iv., p. 355, contains the debate in the House of
Representatives, June 16, 1799, when the question was first mooted:
Report of a committee of the senate in 1822, in Niles's Register of 29th
August in that year. It is certainly very extraordinary that such a vast
power, and one so extensively affecting the whole administration of the
government, should rest on such slight foundations, as an _inference_
from an act of congress, providing that when the secretary of the
treasury should be removed by the president, his assistant should
discharge the duties of the office. How congress could confer the power,
even by a direct act, is not perceived. It must be a necessary
implication from the words of the constitution, or it does not exist. It
has been repeatedly denied in and out of congress, and must be
considered, as yet, an unsettled question.--_American Editor_.]

* * * * *

ACCIDENTAL CAUSES WHICH MAY INCREASE THE INFLUENCE OF THE EXECUTIVE.

External security of the Union.--Army of six thousand Men.--Few
Ships.--The President has no Opportunity of exercising his great
Prerogatives.--In the Prerogatives he exercises he is weak.

If the executive power is feebler in America than in France, the cause
is more attributable to the circumstances than to the laws of the
country.

It is chiefly in its foreign relations that the executive power of a
nation is called upon to exert its skill and vigor. If the existence of
the Union were perpetually threatened, and its chief interest were in
daily connexion with those of other powerful nations, the executive
government would assume an increased importance in proportion to the
measures expected of it, and those which it would carry into effect. The
president of the United States is the commander-in-chief of the army,
but of an army composed of only six thousand men; he commands the fleet,
but the fleet reckons but few sail; he conducts the foreign relations of
the Union, but the United States are a nation without neighbors.
Separated from the rest of the world by the ocean, and too weak as yet
to aim at the dominion of the seas, they have no enemies, and their
interests rarely come into contact with those of any other nation of the
globe.

The practical part of a government must not be judged by the theory of
its constitution. The president of the United States is in the
possession of almost royal prerogatives, which he has no opportunity of
exercising; and those privileges which he can at present use are very
circumscribed: the laws allow him to possess a degree of influence which
circumstances do not permit him to employ.

On the other hand, the great strength of the royal prerogative in France
arises from circumstances far more than from the laws. There the
executive government is constantly struggling against prodigious
obstacles, and exerting all its energies to repress them; so that it
increases by the extent of its achievements, and by the importance of
the events it controls, without, for that reason, modifying its
constitution. If the laws had made it as feeble and as circumscribed as
it is in the Union, its influence would very soon become much greater.

* * * * *

WHY THE PRESIDENT OF THE UNITED STATES DOES NOT REQUIRE THE MAJORITY OF
THE TWO HOUSES IN ORDER TO CARRY ON THE GOVERNMENT.

It is an established axiom in Europe that a constitutional king cannot
persevere in a system of government which is opposed by the two other
branches of the legislature. But several presidents of the United States
have been known to lose the majority in the legislative body, without
being obliged to abandon the supreme power, and without inflicting a
serious evil upon society. I have heard this fact quoted as an instance
of the independence and power of executive government in America: a
moment's reflection will convince us, on the contrary, that it is a
proof of its extreme weakness.

A king in Europe requires the support of the legislature to enable him
to perform the duties imposed upon him by the constitution, because
those duties are enormous. A constitutional king in Europe is not merely
the executor of the law, but the execution of its provisions devolves so
completely upon him, that he has the power of paralyzing its influence
if it opposes his designs. He requires the assistance of the legislative
assemblies to make the law, but those assemblies stand in need of his
aid to execute it: these two authorities cannot subsist without each
other, and the mechanism of government is stopped as soon as they are at
variance.

In America the president cannot prevent any law from being passed, nor
can he evade the obligation of enforcing it. His sincere and zealous
co-operation is no doubt useful, but it is not indispensable in the
carrying on of public affairs. All his important acts are directly or
indirectly submitted to the legislature; and where he is independent of
it he can do but little. It is therefore his weakness, and not his
power, which enables him to remain in opposition to congress. In Europe,
harmony must reign between the crown and the other branches of the
legislature, because a collision between them may prove serious; in
America, this harmony is not indispensable, because such a collision is
impossible.

* * * * *

ELECTION OF THE PRESIDENT.

Dangers of the elective System increase in Proportion to the Extent of
the Prerogative.--This System possible in America because no powerful
executive Authority is required.--What Circumstances are favorable to
the elective System.--Why the Election of the President does not cause a
Deviation from the Principles of the Government.--Influence of the
Election of the President on secondary Functionaries.

The dangers of the system of election applied to the head of the
executive government of a great people, have been sufficiently
exemplified by experience and by history; and the remarks I am about to
make refer to America alone. These dangers may be more or less
formidable in proportion to the place which the executive power
occupies, and to the importance it possesses in the state; and they may
vary according to the mode of election, and the circumstances in which
the electors are placed. The most weighty argument against the election
of a chief-magistrate is, that it offers so splendid a lure to private
ambition, and is so apt to inflame men in the pursuit of power, that
when legitimate means are wanting, force may not unfrequently seize what
right denies.

It is clear that the greater the privileges of the executive authority
are, the greater is the temptation; the more the ambition of the
candidates is excited, the more warmly are their interests espoused by a
throng of partisans who hope to share the power when their patron has
won the prize. The dangers of the elective system increase, therefore,
in the exact ratio of the influence exercised by the executive power in
the affairs of state. The revolutions of Poland are not solely
attributable to the elective system in general, but to the fact that the
elected magistrate was the head of a powerful monarchy. Before we can
discuss the absolute advantages of the elective system, we must make
preliminary inquiries as to whether the geographical position, the laws,
the habits, the manners, and the opinions of the people among whom it is
to be introduced, will admit of the establishment of a weak and
dependent executive government; for to attempt to render the
representative of the state a powerful sovereign, and at the same time
elective, is, in my opinion, to entertain two incompatible designs. To
reduce hereditary royalty to the condition of an elective authority, the
only means that I am acquainted with are to circumscribe its sphere of
action beforehand, gradually to diminish its prerogatives, and to
accustom the people to live without its protection. Nothing, however, is
farther from the designs of the republicans of Europe than this course:
as many of them only owe their hatred of tyranny to the sufferings which
they have personally undergone, the extent of the executive power does
not excite their hostility, and they only attack its origin without
perceiving how nearly the two things are connected.

Hitherto no citizen has shown any disposition to expose his honor and
his life, in order to become the president of the United States; because
the power of that office is temporary, limited, and subordinate. The
prize of fortune must be great to encourage adventurers in so desperate
a game. No candidate has as yet been able to arouse the dangerous
enthusiasm or the passionate sympathies of the people in his favor, for
the very simple reason, that when he is at the head of the government he
has but little power, but little wealth, and but little glory to share
among his friends; and his influence in the state is too small for the
success or the ruin of a faction to depend upon the elevation of an
individual to power.

The great advantage of hereditary monarchies is, that as the private
interest of a family is always intimately connected with the interests
of the state, the executive government is never suspended for a single
instant; and if the affairs of a monarchy are not better conducted than
those of a republic, at least there is always some one to conduct them,
well or ill, according to his capacity. In elective states, on the
contrary, the wheels of government cease to act, as it were of their own
accord, at the approach of an election, and even for some time previous
to that event. The laws may indeed accelerate the operation of the
election, which may be conducted with such simplicity and rapidity that
the seat of power will never be left vacant; but, notwithstanding these
precautions, a break necessarily occurs in the minds of the people.

At the approach of an election the head of the executive government is
wholly occupied by the coming struggle; his future plans are doubtful;
he can undertake nothing new, and he will only prosecute with
indifference those designs which another will perhaps terminate. "I am
so near the time of my retirement from office," said President Jefferson
on the 21st of January, 1809 (six weeks before the election), "that I
feel no passion, I take no part, I express no sentiment. It appears to
me just to leave to my successor the commencement of those measures
which he will have to prosecute, and for which he will be responsible."

On the other hand, the eyes of the nation are centred on a single point;
all are watching the gradual birth of so important an event. The wider
the influence of the executive power extends, the greater and the more
necessary is its constant action, the more fatal is the term of
suspense; and a nation which is accustomed to the government, or, still
more, one used to the administrative protection of a powerful executive
authority, would be infallibly convulsed by an election of this kind. In
the United States the action of the government may be slackened with
impunity, because it is always weak and circumscribed.

One of the principal vices of the elective system is, that it always
introduces a certain degree of instability into the internal and
external policy of the state. But this disadvantage is less sensibly
felt if the share of power vested in the elected magistrate is small. In
Rome the principles of the government underwent no variation, although
the consuls were changed every year, because the senate, which was an
hereditary assembly, possessed the directing authority. If the elective
system were adopted in Europe, the condition of most of the monarchical
states would be changed at every new election. In America the president
exercises a certain influence on state affairs, but he does not conduct
them; the preponderating power is vested in the representatives of the
whole nation. The political maxims of the country depend therefore on
the mass of the people, not on the president alone; and consequently in
America the elective system has no very prejudicial influence on the
fixed principles of the government. But the want of fixed principles is
an evil so inherent in the elective system, that it is still extremely
perceptible in the narrow sphere to which the authority of the president
extends.

The Americans have admitted that the head of the executive power, who
has to bear the whole responsibility of the duties he is called upon to
fulfil, ought to be empowered to choose his own agents, and to remove
them at pleasure: the legislative bodies watch the conduct of the
president more than they direct it. The consequence of this arrangement
is, that at every new election the fate of all the federal public
officers is in suspense. Mr. Quincy Adams, on his entry into office,
discharged the majority of the individuals who had been appointed by his
predecessor; and I am not aware that General Jackson allowed a single
removeable functionary employed in the federal service to retain his
place beyond the first year which succeeded his election. It is

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