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.
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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.
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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]
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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.
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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]
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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.
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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.
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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.
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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]
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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