Chapter VIII: The Federal Constitution—Part V
Advantages Of The Federal System In General, And Its Special Utility In America.
Happiness and freedom of small nations—Power of great nations—Great
empires favorable to the growth of civilization—Strength often the
first element of national prosperity—Aim of the Federal system to
unite the twofold advantages resulting from a small and from a large
territory—Advantages derived by the United States from this system—The
law adapts itself to the exigencies of the population; population does
not conform to the exigencies of the law—Activity, amelioration, love
and enjoyment of freedom in the American communities—Public spirit of
the Union the abstract of provincial patriotism—Principles and things
circulate freely over the territory of the United States—The Union is
happy and free as a little nation, and respected as a great empire.
In small nations the scrutiny of society penetrates into every part, and
the spirit of improvement enters into the most trifling details; as the
ambition of the people is necessarily checked by its weakness, all the
efforts and resources of the citizens are turned to the internal benefit
of the community, and are not likely to evaporate in the fleeting
breath of glory. The desires of every individual are limited, because
extraordinary faculties are rarely to be met with. The gifts of an equal
fortune render the various conditions of life uniform, and the manners
of the inhabitants are orderly and simple. Thus, if one estimate the
gradations of popular morality and enlightenment, we shall generally
find that in small nations there are more persons in easy circumstances,
a more numerous population, and a more tranquil state of society, than
in great empires.
When tyranny is established in the bosom of a small nation, it is more
galling than elsewhere, because, as it acts within a narrow circle,
every point of that circle is subject to its direct influence. It
supplies the place of those great designs which it cannot entertain by
a violent or an exasperating interference in a multitude of minute
details; and it leaves the political world, to which it properly
belongs, to meddle with the arrangements of domestic life. Tastes as
well as actions are to be regulated at its pleasure; and the families of
the citizens as well as the affairs of the State are to be governed by
its decisions. This invasion of rights occurs, however, but seldom,
and freedom is in truth the natural state of small communities. The
temptations which the Government offers to ambition are too weak, and
the resources of private individuals are too slender, for the sovereign
power easily to fall within the grasp of a single citizen; and should
such an event have occurred, the subjects of the State can without
difficulty overthrow the tyrant and his oppression by a simultaneous
effort.
Small nations have therefore ever been the cradle of political liberty;
and the fact that many of them have lost their immunities by extending
their dominion shows that the freedom they enjoyed was more a
consequence of the inferior size than of the character of the people.
The history of the world affords no instance of a great nation retaining
the form of republican government for a long series of years /8-37/,
and this has led to the conclusion that such a state of things is
impracticable. For my own part, I cannot but censure the imprudence of
attempting to limit the possible and to judge the future on the part of
a being who is hourly deceived by the most palpable realities of life,
and who is constantly taken by surprise in the circumstances with which
he is most familiar. But it may be advanced with confidence that the
existence of a great republic will always be exposed to far greater
perils than that of a small one.
All the passions which are most fatal to republican institutions spread
with an increasing territory, whilst the virtues which maintain their
dignity do not augment in the same proportion. The ambition of the
citizens increases with the power of the State; the strength of parties
with the importance of the ends they have in view; but that devotion to
the common weal which is the surest check on destructive passions is
not stronger in a large than in a small republic. It might, indeed, be
proved without difficulty that it is less powerful and less sincere. The
arrogance of wealth and the dejection of wretchedness, capital cities of
unwonted extent, a lax morality, a vulgar egotism, and a great confusion
of interests, are the dangers which almost invariably arise from the
magnitude of States. But several of these evils are scarcely prejudicial
to a monarchy, and some of them contribute to maintain its existence.
In monarchical States the strength of the government is its own; it may
use, but it does not depend on, the community, and the authority of the
prince is proportioned to the prosperity of the nation; but the only
security which a republican government possesses against these evils
lies in the support of the majority. This support is not, however,
proportionably greater in a large republic than it is in a small one;
and thus, whilst the means of attack perpetually increase both in number
and in influence, the power of resistance remains the same, or it may
rather be said to diminish, since the propensities and interests of
the people are diversified by the increase of the population, and the
difficulty of forming a compact majority is constantly augmented. It
has been observed, moreover, that the intensity of human passions is
heightened, not only by the importance of the end which they propose to
attain, but by the multitude of individuals who are animated by them at
the same time. Every one has had occasion to remark that his emotions
in the midst of a sympathizing crowd are far greater than those which he
would have felt in solitude. In great republics the impetus of political
passion is irresistible, not only because it aims at gigantic purposes,
but because it is felt and shared by millions of men at the same time.
It may therefore be asserted as a general proposition that nothing is
more opposed to the well-being and the freedom of man than vast empires.
Nevertheless it is important to acknowledge the peculiar advantages of
great States. For the very reason which renders the desire of power
more intense in these communities than amongst ordinary men, the love of
glory is also more prominent in the hearts of a class of citizens,
who regard the applause of a great people as a reward worthy of their
exertions, and an elevating encouragement to man. If we would learn why
it is that great nations contribute more powerfully to the spread of
human improvement than small States, we shall discover an adequate cause
in the rapid and energetic circulation of ideas, and in those great
cities which are the intellectual centres where all the rays of human
genius are reflected and combined. To this it may be added that most
important discoveries demand a display of national power which the
Government of a small State is unable to make; in great nations the
Government entertains a greater number of general notions, and is more
completely disengaged from the routine of precedent and the egotism
of local prejudice; its designs are conceived with more talent, and
executed with more boldness.
In time of peace the well-being of small nations is undoubtedly more
general and more complete, but they are apt to suffer more acutely from
the calamities of war than those great empires whose distant frontiers
may for ages avert the presence of the danger from the mass of the
people, which is therefore more frequently afflicted than ruined by the
evil.
But in this matter, as in many others, the argument derived from the
necessity of the case predominates over all others. If none but small
nations existed, I do not doubt that mankind would be more happy and
more free; but the existence of great nations is unavoidable.
This consideration introduces the element of physical strength as a
condition of national prosperity. It profits a people but little to
be affluent and free if it is perpetually exposed to be pillaged
or subjugated; the number of its manufactures and the extent of its
commerce are of small advantage if another nation has the empire of the
seas and gives the law in all the markets of the globe. Small nations
are often impoverished, not because they are small, but because they are
weak; the great empires prosper less because they are great than
because they are strong. Physical strength is therefore one of the first
conditions of the happiness and even of the existence of nations. Hence
it occurs that, unless very peculiar circumstances intervene, small
nations are always united to large empires in the end, either by force
or by their own consent: yet I am unacquainted with a more deplorable
spectacle than that of a people unable either to defend or to maintain
its independence.
The Federal system was created with the intention of combining the
different advantages which result from the greater and the lesser
extent of nations; and a single glance over the United States of America
suffices to discover the advantages which they have derived from its
adoption.
In great centralized nations the legislator is obliged to impart a
character of uniformity to the laws which does not always suit the
diversity of customs and of districts; as he takes no cognizance of
special cases, he can only proceed upon general principles; and the
population is obliged to conform to the exigencies of the legislation,
since the legislation cannot adapt itself to the exigencies and the
customs of the population, which is the cause of endless trouble and
misery. This disadvantage does not exist in confederations. Congress
regulates the principal measures of the national Government, and all
the details of the administration are reserved to the provincial
legislatures. It is impossible to imagine how much this division of
sovereignty contributes to the well-being of each of the States which
compose the Union. In these small communities, which are never agitated
by the desire of aggrandizement or the cares of self-defence, all public
authority and private energy is employed in internal amelioration. The
central government of each State, which is in immediate juxtaposition to
the citizens, is daily apprised of the wants which arise in society; and
new projects are proposed every year, which are discussed either at town
meetings or by the legislature of the State, and which are transmitted
by the press to stimulate the zeal and to excite the interest of
the citizens. This spirit of amelioration is constantly alive in
the American republics, without compromising their tranquillity; the
ambition of power yields to the less refined and less dangerous love of
comfort. It is generally believed in America that the existence and the
permanence of the republican form of government in the New World depend
upon the existence and the permanence of the Federal system; and it is
not unusual to attribute a large share of the misfortunes which have
befallen the new States of South America to the injudicious erection of
great republics, instead of a divided and confederate sovereignty.
It is incontestably true that the love and the habits of republican
government in the United States were engendered in the townships and in
the provincial assemblies. In a small State, like that of Connecticut
for instance, where cutting a canal or laying down a road is a momentous
political question, where the State has no army to pay and no wars to
carry on, and where much wealth and much honor cannot be bestowed upon
the chief citizens, no form of government can be more natural or more
appropriate than that of a republic. But it is this same republican
spirit, it is these manners and customs of a free people, which are
engendered and nurtured in the different States, to be afterwards
applied to the country at large. The public spirit of the Union is, so
to speak, nothing more than an abstract of the patriotic zeal of the
provinces. Every citizen of the United States transfuses his attachment
to his little republic in the common store of American patriotism. In
defending the Union he defends the increasing prosperity of his own
district, the right of conducting its affairs, and the hope of causing
measures of improvement to be adopted which may be favorable to his own
interest; and these are motives which are wont to stir men more readily
than the general interests of the country and the glory of the nation.
On the other hand, if the temper and the manners of the inhabitants
especially fitted them to promote the welfare of a great republic, the
Federal system smoothed the obstacles which they might have encountered.
The confederation of all the American States presents none of the
ordinary disadvantages resulting from great agglomerations of men. The
Union is a great republic in extent, but the paucity of objects for
which its Government provides assimilates it to a small State. Its acts
are important, but they are rare. As the sovereignty of the Union is
limited and incomplete, its exercise is not incompatible with liberty;
for it does not excite those insatiable desires of fame and power which
have proved so fatal to great republics. As there is no common centre to
the country, vast capital cities, colossal wealth, abject poverty, and
sudden revolutions are alike unknown; and political passion, instead
of spreading over the land like a torrent of desolation, spends its
strength against the interests and the individual passions of every
State.
Nevertheless, all commodities and ideas circulate throughout the Union
as freely as in a country inhabited by one people. Nothing checks the
spirit of enterprise. Government avails itself of the assistance of all
who have talents or knowledge to serve it. Within the frontiers of the
Union the profoundest peace prevails, as within the heart of some great
empire; abroad, it ranks with the most powerful nations of the earth;
two thousand miles of coast are open to the commerce of the world; and
as it possesses the keys of the globe, its flags is respected in the
most remote seas. The Union is as happy and as free as a small people,
and as glorious and as strong as a great nation.
Why The Federal System Is Not Adapted To All Peoples, And How The Anglo-Americans Were Enabled To Adopt It.
Every Federal system contains defects which baffle the efforts of the
legislator—The Federal system is complex—It demands a daily exercise
of discretion on the part of the citizens—Practical knowledge of
government common amongst the Americans—Relative weakness of the
Government of the Union, another defect inherent in the Federal
system—The Americans have diminished without remedying it—The
sovereignty of the separate States apparently weaker, but really
stronger, than that of the Union—Why?—Natural causes of union must
exist between confederate peoples besides the laws—What these causes
are amongst the Anglo-Americans—Maine and Georgia, separated by a
distance of a thousand miles, more naturally united than Normandy and
Brittany—War, the main peril of confederations—This proved even by
the example of the United States—The Union has no great wars to
fear—Why?—Dangers to which Europeans would be exposed if they adopted
the Federal system of the Americans.
When a legislator succeeds, after persevering efforts, in exercising an
indirect influence upon the destiny of nations, his genius is lauded
by mankind, whilst, in point of fact, the geographical position of the
country which he is unable to change, a social condition which arose
without his co-operation, manners and opinions which he cannot trace to
their source, and an origin with which he is unacquainted, exercise so
irresistible an influence over the courses of society that he is himself
borne away by the current, after an ineffectual resistance. Like the
navigator, he may direct the vessel which bears him along, but he can
neither change its structure, nor raise the winds, nor lull the waters
which swell beneath him.
I have shown the advantages which the Americans derive from their
federal system; it remains for me to point out the circumstances which
rendered that system practicable, as its benefits are not to be enjoyed
by all nations. The incidental defects of the Federal system which
originate in the laws may be corrected by the skill of the legislator,
but there are further evils inherent in the system which cannot be
counteracted by the peoples which adopt it. These nations must therefore
find the strength necessary to support the natural imperfections of
their Government.
The most prominent evil of all Federal systems is the very complex
nature of the means they employ. Two sovereignties are necessarily in
presence of each other. The legislator may simplify and equalize the
action of these two sovereignties, by limiting each of them to a sphere
of authority accurately defined; but he cannot combine them into one, or
prevent them from coming into collision at certain points. The Federal
system therefore rests upon a theory which is necessarily complicated,
and which demands the daily exercise of a considerable share of
discretion on the part of those it governs.
A proposition must be plain to be adopted by the understanding of a
people. A false notion which is clear and precise will always meet with
a greater number of adherents in the world than a true principle which
is obscure or involved. Hence it arises that parties, which are like
small communities in the heart of the nation, invariably adopt some
principle or some name as a symbol, which very inadequately represents
the end they have in view and the means which are at their disposal, but
without which they could neither act nor subsist. The governments which
are founded upon a single principle or a single feeling which is easily
defined are perhaps not the best, but they are unquestionably the
strongest and the most durable in the world.
In examining the Constitution of the United States, which is the most
perfect federal constitution that ever existed, one is startled, on
the other hand, at the variety of information and the excellence of
discretion which it presupposes in the people whom it is meant to
govern. The government of the Union depends entirely upon legal
fictions; the Union is an ideal nation which only exists in the mind,
and whose limits and extent can only be discerned by the understanding.
When once the general theory is comprehended, numberless difficulties
remain to be solved in its application; for the sovereignty of the
Union is so involved in that of the States that it is impossible to
distinguish its boundaries at the first glance. The whole structure
of the Government is artificial and conventional; and it would be ill
adapted to a people which has not been long accustomed to conduct
its own affairs, or to one in which the science of politics has not
descended to the humblest classes of society. I have never been more
struck by the good sense and the practical judgment of the Americans
than in the ingenious devices by which they elude the numberless
difficulties resulting from their Federal Constitution. I scarcely
ever met with a plain American citizen who could not distinguish, with
surprising facility, the obligations created by the laws of Congress
from those created by the laws of his own State; and who, after having
discriminated between the matters which come under the cognizance of the
Union and those which the local legislature is competent to regulate,
could not point out the exact limit of the several jurisdictions of the
Federal courts and the tribunals of the State.
The Constitution of the United States is like those exquisite
productions of human industry which ensure wealth and renown to their
inventors, but which are profitless in any other hands. This truth is
exemplified by the condition of Mexico at the present time. The Mexicans
were desirous of establishing a federal system, and they took the
Federal Constitution of their neighbors, the Anglo-Americans, as their
model, and copied it with considerable accuracy /8-38/. But although they
had borrowed the letter of the law, they were unable to create or
to introduce the spirit and the sense which give it life. They were
involved in ceaseless embarrassments between the mechanism of their
double government; the sovereignty of the States and that of the Union
perpetually exceeded their respective privileges, and entered into
collision; and to the present day Mexico is alternately the victim of
anarchy and the slave of military despotism.
The second and the most fatal of all the defects I have alluded to,
and that which I believe to be inherent in the federal system, is the
relative weakness of the government of the Union. The principle upon
which all confederations rest is that of a divided sovereignty. The
legislator may render this partition less perceptible, he may even
conceal it for a time from the public eye, but he cannot prevent it from
existing, and a divided sovereignty must always be less powerful than an
entire supremacy. The reader has seen in the remarks I have made on
the Constitution of the United States that the Americans have displayed
singular ingenuity in combining the restriction of the power of
the Union within the narrow limits of a federal government with the
semblance and, to a certain extent, with the force of a national
government. By this means the legislators of the Union have succeeded
in diminishing, though not in counteracting the natural danger of
confederations.
It has been remarked that the American Government does not apply itself
to the States, but that it immediately transmits its injunctions to the
citizens, and compels them as isolated individuals to comply with its
demands. But if the Federal law were to clash with the interests and the
prejudices of a State, it might be feared that all the citizens of
that State would conceive themselves to be interested in the cause of a
single individual who should refuse to obey. If all the citizens of
the State were aggrieved at the same time and in the same manner by the
authority of the Union, the Federal Government would vainly attempt to
subdue them individually; they would instinctively unite in a common
defence, and they would derive a ready-prepared organization from the
share of sovereignty which the institution of their State allows them
to enjoy. Fiction would give way to reality, and an organized portion
of the territory might then contest the central authority. The same
observation holds good with regard to the Federal jurisdiction. If the
courts of the Union violated an important law of a State in a private
case, the real, if not the apparent, contest would arise between the
aggrieved State represented by a citizen and the Union represented by
its courts of justice /8-39/.
He would have but a partial knowledge of the world who should imagine
that it is possible, by the aid of legal fictions, to prevent men from
finding out and employing those means of gratifying their passions which
have been left open to them; and it may be doubted whether the American
legislators, when they rendered a collision between the two sovereigns
less probable, destroyed the cause of such a misfortune. But it may even
be affirmed that they were unable to ensure the preponderance of the
Federal element in a case of this kind. The Union is possessed of money
and of troops, but the affections and the prejudices of the people are
in the bosom of the States. The sovereignty of the Union is an abstract
being, which is connected with but few external objects; the sovereignty
of the States is hourly perceptible, easily understood, constantly
active; and if the former is of recent creation, the latter is coeval
with the people itself. The sovereignty of the Union is factitious, that
of the States is natural, and derives its existence from its own simple
influence, like the authority of a parent. The supreme power of
the nation only affects a few of the chief interests of society; it
represents an immense but remote country, and claims a feeling of
patriotism which is vague and ill defined; but the authority of the
States controls every individual citizen at every hour and in all
circumstances; it protects his property, his freedom, and his life; and
when we recollect the traditions, the customs, the prejudices of local
and familiar attachment with which it is connected, we cannot doubt of
the superiority of a power which is interwoven with every circumstance
that renders the love of one's native country instinctive in the human
heart.
Since legislators are unable to obviate such dangerous collisions as
occur between the two sovereignties which coexist in the federal system,
their first object must be, not only to dissuade the confederate States
from warfare, but to encourage such institutions as may promote the
maintenance of peace. Hence it results that the Federal compact cannot
be lasting unless there exists in the communities which are leagued
together a certain number of inducements to union which render their
common dependence agreeable, and the task of the Government light,
and that system cannot succeed without the presence of favorable
circumstances added to the influence of good laws. All the peoples which
have ever formed a confederation have been held together by a certain
number of common interests, which served as the intellectual ties of
association.
But the sentiments and the principles of man must be taken into
consideration as well as his immediate interests. A certain uniformity
of civilization is not less necessary to the durability of a
confederation than a uniformity of interests in the States which compose
it. In Switzerland the difference which exists between the Canton of Uri
and the Canton of Vaud is equal to that between the fifteenth and the
nineteenth centuries; and, properly speaking, Switzerland has never
possessed a federal government. The union between these two cantons only
subsists upon the map, and their discrepancies would soon be perceived
if an attempt were made by a central authority to prescribe the same
laws to the whole territory.
One of the circumstances which most powerfully contribute to support the
Federal Government in America is that the States have not only similar
interests, a common origin, and a common tongue, but that they are also
arrived at the same stage of civilization; which almost always renders
a union feasible. I do not know of any European nation, how small soever
it may be, which does not present less uniformity in its different
provinces than the American people, which occupies a territory as
extensive as one-half of Europe. The distance from the State of Maine
to that of Georgia is reckoned at about one thousand miles; but the
difference between the civilization of Maine and that of Georgia is
slighter than the difference between the habits of Normandy and those
of Brittany. Maine and Georgia, which are placed at the opposite
extremities of a great empire, are consequently in the natural
possession of more real inducements to form a confederation than
Normandy and Brittany, which are only separated by a bridge.
The geographical position of the country contributed to increase the
facilities which the American legislators derived from the manners and
customs of the inhabitants; and it is to this circumstance that
the adoption and the maintenance of the Federal system are mainly
attributable.
The most important occurrence which can mark the annals of a people is
the breaking out of a war. In war a people struggles with the energy
of a single man against foreign nations in the defence of its very
existence. The skill of a government, the good sense of the community,
and the natural fondness which men entertain for their country, may
suffice to maintain peace in the interior of a district, and to favor
its internal prosperity; but a nation can only carry on a great war at
the cost of more numerous and more painful sacrifices; and to suppose
that a great number of men will of their own accord comply with these
exigencies of the State is to betray an ignorance of mankind. All the
peoples which have been obliged to sustain a long and serious warfare
have consequently been led to augment the power of their government.
Those which have not succeeded in this attempt have been subjugated.
A long war almost always places nations in the wretched alternative
of being abandoned to ruin by defeat or to despotism by success. War
therefore renders the symptoms of the weakness of a government most
palpable and most alarming; and I have shown that the inherent defeat of
federal governments is that of being weak.
The Federal system is not only deficient in every kind of centralized
administration, but the central government itself is imperfectly
organized, which is invariably an influential cause of inferiority when
the nation is opposed to other countries which are themselves governed
by a single authority. In the Federal Constitution of the United States,
by which the central government possesses more real force, this evil
is still extremely sensible. An example will illustrate the case to the
reader.
The Constitution confers upon Congress the right of calling forth
militia to execute the laws of the Union, suppress insurrections, and
repel invasions; and another article declares that the President of the
United States is the commander-in-chief of the militia. In the war of
1812 the President ordered the militia of the Northern States to march
to the frontiers; but Connecticut and Massachusetts, whose interests
were impaired by the war, refused to obey the command. They argued that
the Constitution authorizes the Federal Government to call forth the
militia in case of insurrection or invasion, but that in the present
instance there was neither invasion nor insurrection. They added,
that the same Constitution which conferred upon the Union the right
of calling forth the militia reserved to the States that of naming
the officers; and that consequently (as they understood the clause) no
officer of the Union had any right to command the militia, even during
war, except the President in person; and in this case they were ordered
to join an army commanded by another individual. These absurd and
pernicious doctrines received the sanction not only of the governors
and the legislative bodies, but also of the courts of justice in both
States; and the Federal Government was constrained to raise elsewhere
the troops which it required /8-40/.
The only safeguard which the American Union, with all the relative
perfection of its laws, possesses against the dissolution which would
be produced by a great war, lies in its probable exemption from that
calamity. Placed in the centre of an immense continent, which offers
a boundless field for human industry, the Union is almost as much
insulated from the world as if its frontiers were girt by the ocean.
Canada contains only a million of inhabitants, and its population is
divided into two inimical nations. The rigor of the climate limits the
extension of its territory, and shuts up its ports during the six months
of winter. From Canada to the Gulf of Mexico a few savage tribes are
to be met with, which retire, perishing in their retreat, before six
thousand soldiers. To the South, the Union has a point of contact with
the empire of Mexico; and it is thence that serious hostilities may one
day be expected to arise. But for a long while to come the uncivilized
state of the Mexican community, the depravity of its morals, and its
extreme poverty, will prevent that country from ranking high amongst
nations. As for the Powers of Europe, they are too distant to be
formidable.
The great advantage of the United States does not, then, consist in a
Federal Constitution which allows them to carry on great wars, but in
a geographical position which renders such enterprises extremely
improbable.
No one can be more inclined than I am myself to appreciate the
advantages of the federal system, which I hold to be one of the
combinations most favorable to the prosperity and freedom of man. I
envy the lot of those nations which have been enabled to adopt it; but I
cannot believe that any confederate peoples could maintain a long or an
equal contest with a nation of similar strength in which the government
should be centralized. A people which should divide its sovereignty into
fractional powers, in the presence of the great military monarchies of
Europe, would, in my opinion, by that very act, abdicate its power, and
perhaps its existence and its name. But such is the admirable position
of the New World that man has no other enemy than himself; and that,
in order to be happy and to be free, it suffices to seek the gifts of
prosperity and the knowledge of freedom.
Notes
/1-1/
The Red River.
/1-2/
See Appendix A.
/1-3/
See Appendix B.
/1-4/
With the progress of discovery some resemblance has been
found to exist between the physical conformation, the language, and
the habits of the Indians of North America, and those of the Tongous,
Mantchous, Mongols, Tartars, and other wandering tribes of Asia. The
land occupied by these tribes is not very distant from Behring's Strait,
which allows of the supposition, that at a remote period they gave
inhabitants to the desert continent of America. But this is a point
which has not yet been clearly elucidated by science. See Malte Brun,
vol. v.; the works of Humboldt; Fischer, "Conjecture sur l'Origine des
Americains"; Adair, "History of the American Indians."
/1-5/
See Appendix C.
/1-6/
We learn from President Jefferson's "Notes upon Virginia,"
p. 148, that among the Iroquois, when attacked by a superior force, aged
men refused to fly or to survive the destruction of their country; and
they braved death like the ancient Romans when their capital was sacked
by the Gauls. Further on, p. 150, he tells us that there is no example
of an Indian who, having fallen into the hands of his enemies, begged
for his life; on the contrary, the captive sought to obtain death at the
hands of his conquerors by the use of insult and provocation.
/1-7/
See "Histoire de la Louisiane," by Lepage Dupratz;
Charlevoix, "Histoire de la Nouvelle France"; "Lettres du Rev. G.
Hecwelder;" "Transactions of the American Philosophical Society," v. I;
Jefferson's "Notes on Virginia," pp. 135-190. What is said by Jefferson
is of especial weight, on account of the personal merit of the writer,
of his peculiar position, and of the matter-of-fact age in which he
lived.
/1-8/
See Appendix D.
/2-1/
The charter granted by the Crown of England in 1609
stipulated, amongst other conditions, that the adventurers should pay
to the Crown a fifth of the produce of all gold and silver mines. See
Marshall's "Life of Washington," vol. i. pp. 18-66.
/2-2/
A large portion of the adventurers, says Stith ("History of Virginia"),
were unprincipled young men of family, whom their parents were glad to
ship off, discharged servants, fraudulent bankrupts, or debauchees; and
others of the same class, people more apt to pillage and destroy than
to assist the settlement, were the seditious chiefs, who easily led this
band into every kind of extravagance and excess. See for the history of
Virginia the following works:—
"History of Virginia, from the First Settlements in the year 1624," by
Smith.
"History of Virginia," by William Stith.
"History of Virginia, from the Earliest Period," by Beverley.
/2-3/
It was not till some time later that a certain number of
rich English capitalists came to fix themselves in the colony.
/2-4/
Slavery was introduced about the year 1620 by a Dutch
vessel which landed twenty negroes on the banks of the river James. See
Chalmer.
/2-5/
The States of New England are those situated to the east of
the Hudson; they are now six in number: 1, Connecticut; 2, Rhode Island;
3, Massachusetts; 4, Vermont; 5, New Hampshire; 6, Maine.
/2-6/
"New England's Memorial," p. 13; Boston, 1826. See also
"Hutchinson's History," vol. ii. p. 440.
/2-7/
This rock is become an object of veneration in the United
States. I have seen bits of it carefully preserved in several towns of
the Union. Does not this sufficiently show how entirely all human power
and greatness is in the soul of man? Here is a stone which the feet of
a few outcasts pressed for an instant, and this stone becomes famous; it
is treasured by a great nation, its very dust is shared as a relic: and
what is become of the gateways of a thousand palaces?
/2-8/
The emigrants who founded the State of Rhode Island in
1638, those who landed at New Haven in 1637, the first settlers in
Connecticut in 1639, and the founders of Providence in 1640, began in
like manner by drawing up a social contract, which was acceded to by all
the interested parties. See "Pitkin's History," pp. 42 and 47.
[Tocqueville here quotes the Mayflower Compact of 1620. --DT]
/2-9/
This was the case in the State of New York.
/2-10/
Maryland, the Carolinas, Pennsylvania, and New Jersey were
in this situation. See "Pitkin's History," vol. i. pp. 11-31.
/2-11/
See the work entitled "Historical Collection of State
Papers and other authentic Documents intended as materials for a History
of the United States of America, by Ebenezer Hasard. Philadelphia,
1792," for a great number of documents relating to the commencement
of the colonies, which are valuable from their contents and their
authenticity: amongst them are the various charters granted by the King
of England, and the first acts of the local governments.
See also the analysis of all these charters given by Mr. Story, Judge
of the Supreme Court of the United States, in the Introduction to his
"Commentary on the Constitution of the United States." It results from
these documents that the principles of representative government and
the external forms of political liberty were introduced into all the
colonies at their origin. These principles were more fully acted upon in
the North than in the South, but they existed everywhere. [Joseph Story's three-volume
Commentaries on the Constitution of the United States were published in 1833. --DT]
/2-12/
See "Pitkin's History," p, 35. See the "History of the Colony of Massachusetts Bay," by Hutchinson, vol. i. p. 9.
/2-13/
See "Pitkin's History," pp. 42, 47.
/2-14/
The inhabitants of Massachusetts had deviated from the
forms which are preserved in the criminal and civil procedure of
England; in 1650 the decrees of justice were not yet headed by the royal
style. See Hutchinson, vol. i. p. 452.
/2-15/
Code of 1650, p. 28; Hartford, 1830.
/2-16/
See also in "Hutchinson's History," vol. i. pp. 435,
456, the analysis of the penal code adopted in 1648 by the Colony of
Massachusetts: this code is drawn up on the same principles as that of
Connecticut.
/2-17/
Adultery was also punished with death by the law of
Massachusetts: and Hutchinson, vol. i. p. 441, says that several persons
actually suffered for this crime. He quotes a curious anecdote on
this subject, which occurred in the year 1663. A married woman had had
criminal intercourse with a young man; her husband died, and she married
the lover. Several years had elapsed, when the public began to suspect
the previous intercourse of this couple: they were thrown into prison,
put upon trial, and very narrowly escaped capital punishment.
/2-18/
Code of 1650, p. 48. It seems sometimes to have happened
that the judges superadded these punishments to each other, as is seen
in a sentence pronounced in 1643 (p. 114, "New Haven Antiquities"), by
which Margaret Bedford, convicted of loose conduct, was condemned to be
whipped, and afterwards to marry Nicholas Jemmings, her accomplice.
/2-19/
"New Haven Antiquities," p. 104. See also "Hutchinson's
History," for several causes equally extraordinary.
/2-20/
Code of 1650, pp. 50, 57.
/2-21/
Ibid., p. 64.
/2-22/
Ibid., p. 44.
/2-23/
This was not peculiar to Connecticut. See, for instance,
the law which, on September 13, 1644, banished the Anabaptists from the
State of Massachusetts. ("Historical Collection of State Papers," vol.
i. p. 538.) See also the law against the Quakers, passed on October 14,
1656: "Whereas," says the preamble, "an accursed race of heretics called
Quakers has sprung up," etc. The clauses of the statute inflict a
heavy fine on all captains of ships who should import Quakers into
the country. The Quakers who may be found there shall be whipped and
imprisoned with hard labor. Those members of the sect who should defend
their opinions shall be first fined, then imprisoned, and finally driven
out of the province.—"Historical Collection of State Papers," vol. i.
p. 630.
/2-24/
By the penal law of Massachusetts, any Catholic priest who
should set foot in the colony after having been once driven out of it
was liable to capital punishment.
/2-25/
Code of 1650, p. 96.
/2-26/
"New England's Memorial," p. 316. See Appendix E.
/2-27/
Constitution of 1638, p. 17.
/2-28/
In 1641 the General Assembly of Rhode Island unanimously
declared that the government of the State was a democracy, and that the
power was vested in the body of free citizens, who alone had the right
to make the laws and to watch their execution.—Code of 1650, p. 70.
/2-29/
"Pitkin's History," p. 47.
/2-30/
Constitution of 1638, p. 12.
/2-31/
Code of 1650, p. 80.
/2-32/
Ibid., p. 78.
/2-33/
Ibid., p. 49.
/2-34/
See "Hutchinson's History," vol. i. p. 455.
/2-35/
Code of 1650, p. 86.
/2-36/
Ibid., p. 40.
/2-37/
Ibid., p. 90.
/2-38/
Mather's "Magnalia Christi Americana," vol. ii. p. 13.
This speech was made by Winthrop; he was accused of having committed
arbitrary actions during his magistracy, but after having made
the speech of which the above is a fragment, he was acquitted by
acclamation, and from that time forwards he was always re-elected
governor of the State. See Marshal, vol. i. p. 166.
/2-39/
See Appendix F.
/2-40/
Crimes no doubt exist for which bail is inadmissible, but they are few in number.
/2-41/
See Blackstone; and Delolme, book I chap. x.
/3-1/
I understand by the law of descent all those laws whose
principal object is to regulate the distribution of property after the
death of its owner. The law of entail is of this number; it certainly
prevents the owner from disposing of his possessions before his death;
but this is solely with the view of preserving them entire for the heir.
The principal object, therefore, of the law of entail is to regulate the
descent of property after the death of its owner: its other provisions
are merely means to this end.
/3-2/
I do not mean to say that the small proprietor cultivates
his land better, but he cultivates it with more ardor and care; so that
he makes up by his labor for his want of skill.
/3-3/
Land being the most stable kind of property, we find, from
time to time, rich individuals who are disposed to make great sacrifices
in order to obtain it, and who willingly forfeit a considerable part of
their income to make sure of the rest. But these are accidental cases.
The preference for landed property is no longer found habitually in any
class but among the poor. The small landowner, who has less information,
less imagination, and fewer passions than the great one, is generally
occupied with the desire of increasing his estate: and it often happens
that by inheritance, by marriage, or by the chances of trade, he is
gradually furnished with the means. Thus, to balance the tendency which
leads men to divide their estates, there exists another, which incites
them to add to them. This tendency, which is sufficient to prevent
estates from being divided ad infinitum, is not strong enough to create
great territorial possessions, certainly not to keep them up in the same
family.
/3-4/
See Appendix G.
/4-1/
See Appendix H.
/5-1/
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.
/5-2/
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 the sanction of a law.—See the
Act of February 22, 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' Register.
/5-3/
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 February 20, 1786, vol. i. p. 219; February 24, 1796, vol. i. p.
488; March 7, 1801, vol. ii. p. 45; June 16, 1795, vol. i. p. 475; March
12, 1808, vol. ii. p. 186; February 28, 1787, vol. i. p. 302; June 22,
1797, vol. i. p. 539.
/5-4/
See Laws of Massachusetts, vol. i. p. 150, Act of March 25, 1786.
/5-5/
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.
/5-6/
See the Act of February 14, 1821, Laws of Massachusetts,
vol. i. p. 551.
/5-7/
See the Act of February 20, 1819, Laws of Massachusetts,
vol. ii. p. 494.
/5-8/
The council of the Governor is an elective body.
/5-9/
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 the Sunday; the
tything-men, who are town-officers, are specially 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 February 24, 1796: Id., vol. i. p. 488.
/5-10/
Thus, for instance, the selectmen authorize 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 June 7, 1785: Id., vol. i. p. 193.
/5-11/
The selectmen take measures for the security of the public
in case of contagious diseases, conjointly with the justices of the
peace. See Act of June 22, 1797, vol. i. p. 539.
/5-12/
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 February 28, 1787, vol. i. p. 297.
/5-13/
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 Act of March 12, 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 Act of March 23, 1786, vol. i. p. 254.
/5-14/
In Massachusetts the county magistrates are frequently
called upon to investigate the acts of the town magistrates; but it will
be shown further on that this investigation is a consequence, not of
their administrative, but of their judicial power.
/5-15/
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 Act of March 10, 1827, vol. iii. p. 183.
/5-16/
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.
/5-17/
See the Constitution of Massachusetts, chap. II. sect. 1.
Section 9; chap. III. Section 3.
/5-18/
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 June 22,
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.
/5-19/
I say the greater number, because certain administrative misdemeanors are
brought before 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 Act of March 10, 1827, Laws of Massachusetts, vol. iii. p. 190. Or
when a township neglects to provide the necessary war-stores.—Act of
February 21, 1822: Id., vol. ii. p. 570.
/5-20/
In their individual capacity the justices of the peace
take a part in the business of the counties and townships.
/5-21/
These affairs may be brought under the following heads:—1. The erection
of prisons and courts of justice. 2. The county budget, which is
afterwards voted by the State. 3. The distribution of the taxes so
voted. 4. Grants of certain patents. 5. The laying down and repairs of
the country roads.
/5-22/
Thus, when a road is under consideration, almost all
difficulties are disposed of by the aid of the jury.
/5-23/
See Act of February 20, 1786, Laws of Massachusetts, vol.i. p. 217.
/5-24/
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 Act of March 5, 1787, Id., vol. i. p. 305.
/5-25/
Laws of Massachusetts, vol. ii. p. 45.
/5-26/
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, February 20, 1787.
/5-27/
I say the Court of Sessions, because in common courts
there is a magistrate who exercises some of the functions of a public
prosecutor.
/5-28/
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.
/5-29/
If, for instance, the treasurer of the county holds back
his accounts.—Laws of Massachusetts, vol. i. p. 406.
/5-30/
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.
/5-31/
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 $200 to $500. 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 of the fine shall belong to the
plaintiff. See Act of March 6, 1810, vol. ii. p. 236. The same clause
is frequently to be met with in the law of Massachusetts. Not only are
private individuals thus incited to prosecute the 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.
/5-32/
For details see the 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
February 25, 1834, relating to townships, p. 412; besides the peculiar
dispositions relating to divers town-officers, such as Township's Clerk,
Trustees, Overseers of the Poor, Fence Viewers, Appraisers of Property,
Township's Treasurer, Constables, Supervisors of Highways.
/5-33/
See the Revised Statutes of the State of New York, part i.
chap. xi. vol. i. p. 340. Id. chap. xii. p. 366; also in the Acts of
the State of Ohio, an act relating to county commissioners, February 25,
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.
/5-34/
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, etc.
/5-35/
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 Lieutentant-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. "Instruction," Revised Statutes, vol. i. p. 455.
The school-commissioners are obliged to send an annual report to the
Superintendent of the Republic.—Id. p. 488.
A similar report is annually made to the same person on the number and
condition of the poor.—Id. p. 631.
/5-36/
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 centralization 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.
/5-37/
Thus the district-attorney is directed to recover all fines
below the sum of fifty dollars, unless such a right has been specially
awarded to another magistrate.—Revised Statutes, vol. i. p. 383.
/5-38/
Several traces of centralization 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.
/5-39/
In Massachusetts the Senate is not invested with any
administrative functions.
/5-40/
As in the State of New York.
/5-41/
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.
/5-42/
In some of the States the justices of the peace are not
elected by the Governor.
/5-43/
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
country, 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 incidental cognizance of the offences
they are meant to repress.
/5-44/
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.
/5-45/
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 centralization, 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 into
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 keep 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.
/5-46/
See Appendix I.
/5-47/
See Appendix K.
/6-1/
See Appendix L.
/6-2/
See Appendix M.
/7-1/
The House of Lords in England is also the court of last resort in certain civil cases. See Blackstone, Bk III, ch 4.
/7-2/
An officer cannot be removed from his grade, but he can be relieved of his command.
/7-3/
See the Constitution of Massachusetts Chap. I. sect. ii. Section 8.
/7-4/
See the constitutions of Illinois, Maine, Connecticut, and Georgia.
/7-5/
See Appendix N.
/8-1/
See the Articles of Confederation (1778).
This constitution was not adopted by all the States until 1781. See also
the analysis given of this constitution in The Federalist from No. 15
to No. 22, inclusive, and Story's "Commentaries on the Constitution of
the United States," pp. 85-115.
/8-2/
Congress made this declaration on February 21, 1787.
/8-3/
It consisted of fifty-five members; Washington, Madison, Hamilton, and the two Morrises were amongst the number.
/8-4/
It was not adopted by the legislative bodies, but
representatives were elected by the people for this sole purpose;
and the new constitution was discussed at length in each of these
assemblies.
/8-5/
See the Amendment to the Federal Constitution;
The Federalist, No. 32; Story, p. 711; Kent's "Commentaries," vol. i. p. 364.
It is to be observed that whenever the exclusive right of regulating
certain matters is not reserved to Congress by the Constitution, the
States may take up the affair until it is brought before the National
Assembly. For instance, Congress has the right of making a general law
on bankruptcy, which, however, it neglects to do. Each State is then
at liberty to make a law for itself. This point has been established by
discussion in the law-courts, and may be said to belong more properly to
jurisprudence.
/8-6/
The action of this court is indirect, as we shall hereafter show.
/8-7/
It is thus that The Federalist, No. 45, explains the
division of supremacy between the Union and the States: "The powers
delegated by the Constitution to the Federal Government are few and
defined. Those which are to remain in the State Governments are numerous
and indefinite. The former will be exercised principally on external
objects, as war, peace, negotiation, and foreign commerce. The powers
reserved to the several States will extend to all the objects which,
in the ordinary course of affairs, concern the internal order and
prosperity of the State." I shall often have occasion to quote The
Federalist in this work. When the bill which has since become the
Constitution of the United States was submitted to the approval of
the people, and the discussions were still pending, three men, who
had already acquired a portion of that celebrity which they have since
enjoyed—John Jay, Hamilton, and Madison—formed an association with
the intention of explaining to the nation the advantages of the measure
which was proposed. With this view they published a series of articles
in the shape of a journal, which now form a complete treatise. They
entitled their journal The Federalist, a name which has been retained
in the work. The Federalist is an excellent book, which ought to
be familiar to the statesmen of all countries, although it especially
concerns America.
/8-8/
See Constitution, sect. 8; The Federalist, Nos. 41 and 42;
Kent's "Commentaries," vol. i. p. 207; Story, pp. 358-382; Ibid. pp.
409-426.
/8-9/
Several other privileges of the same kind exist, such
as that which empowers the Union to legislate on bankruptcy, to
grant patents, and other matters in which its intervention is clearly
necessary.
/8-10/
[ Even in these cases its interference is indirect. The Union
interferes by means of the tribunals, as will be hereafter shown.
/8-11/
Federal Constitution, Art. 1, Sec. 9.
/8-12/
Constitution, sects. 8, 9, and 10; The Federalist, Nos.
30-36, inclusive, and 41-44; Kent's "Commentaries," vol. i. pp. 207 and
381; Story, pp. 329 and 514.
/8-13/
Every ten years Congress fixes anew the number of
representatives which each State is to furnish. The total number was 69
in 1789, and 240 in 1833. (See "American Almanac," 1834, p. 194.)
The Constitution decided that there should not be more than one
representative for every 30,000 persons; but no minimum was fixed
on. The Congress has not thought fit to augment the number of
representatives in proportion to the increase of population. The first
Act which was passed on the subject (April 14, 1792: see "Laws of the
United States," by Story, vol. i. p. 235) decided that there should be
one representative for every 33,000 inhabitants. The last Act, which was
passed in 1832, fixes the proportion at one for 48,000. The population
represented is composed of all the free men and of three-fifths of the
slaves.
/8-14/
See The Federalist, Nos. 52-56, inclusive; Story, pp. 199-314;
Constitution of the United States, sects. 2 and 3.
/8-15/
See The Federalist, Nos. 67-77; Constitution of
the United States, art. 2; Story, p. 315, pp. 615-780; Kent's
"Commentaries," p. 255.
/8-16/
The Constitution had left it doubtful whether the President
was obliged to consult the Senate in the removal as well as in the
appointment of Federal officers. The Federalist (No. 77) seemed to
establish the affirmative; but in 1789 Congress formally decided that,
as the President was responsible for his actions, he ought not to
be forced to employ agents who had forfeited his esteem. See Kent's
"Commentaries", vol. i. p. 289.
/8-17/
The sums annually paid by the State to these officers
amount to 200,000,000 fr. ($40,000,000).
/8-18/
This number is extracted from the "National Calendar" for
1833. The "National Calendar" is an American almanac which contains the
names of all the Federal officers. It results from this comparison that
the King of France has eleven times as many places at his disposal as
the President, although the population of France is not much more than
double that of the Union.
/8-19/
As many as it sends members to Congress. The number of
electors at the election of 1833 was 288. (See "The National Calendar,"
1833.)
/8-20/
The electors of the same State assemble, but they transmit
to the central government the list of their individual votes, and not
the mere result of the vote of the majority.
/8-21/
In this case it is the majority of the States, and not the majority of the members,
which decides the question; so that New York has not more influence in
the debate than Rhode Island. Thus the citizens of the Union are first
consulted as members of one and the same community; and, if they cannot
agree, recourse is had to the division of the States, each of which has
a separate and independent vote. This is one of the singularities of
the Federal Constitution which can only be explained by the jar of
conflicting interests.
/8-22/
Jefferson, in 1801, was not elected until the thirty-sixth time of balloting.
/8-23/
See chap. VI, entitled "Judicial Power in the United
States." This chapter explains the general principles of the American
theory of judicial institutions. See also the Federal Constitution, Art.
3. See The Federalists, Nos. 78-83, inclusive; and a work entitled
"Constitutional Law," being a view of the practice and jurisdiction of
the courts of the United States, by Thomas Sergeant. See Story, pp. 134,
162, 489, 511, 581, 668; and the organic law of September 24, 1789, in
the "Collection of the Laws of the United States," by Story, vol. i. p. 53.
/8-24/
Federal laws are those which most require courts of
justice, and those at the same time which have most rarely established
them. The reason is that confederations have usually been formed by
independent States, which entertained no real intention of obeying the
central Government, and which very readily ceded the right of command
to the federal executive, and very prudently reserved the right of
non-compliance to themselves.
/8-25/
The Union was divided into districts, in each of which a
resident Federal judge was appointed, and the court in which he presided
was termed a "District Court." Each of the judges of the Supreme Court
annually visits a certain portion of the Republic, in order to try the
most important causes upon the spot; the court presided over by this
magistrate is styled a "Circuit Court." Lastly, all the most serious
cases of litigation are brought before the Supreme Court, which holds
a solemn session once a year, at which all the judges of the Circuit
Courts must attend. The jury was introduced into the Federal Courts
in the same manner, and in the same cases, as into the courts of the
States.
It will be observed that no analogy exists between the Supreme Court
of the United States and the French Cour de Cassation, since the latter
only hears appeals on questions of law. The Supreme Court decides upon
the evidence of the fact as well as upon the law of the case, whereas
the Cour de Cassation does not pronounce a decision of its own, but
refers the cause to the arbitration of another tribunal. See the law of
September 24, 1789, "Laws of the United States," by Story, vol. i. p. 53.
/8-26/
In order to diminish the number of these suits, it was
decided that in a great many Federal causes the courts of the States
should be empowered to decide conjointly with those of the Union, the
losing party having then a right of appeal to the Supreme Court of the
United States. The Supreme Court of Virginia contested the right of
the Supreme Court of the United States to judge an appeal from its
decisions, but unsuccessfully. See "Kent's Commentaries," vol. i. p.
300, pp. 370 et seq.; Story's "Commentaries," p. 646; and "The Organic
Law of the United States," vol. i. p. 35.
/8-27/
The Constitution also says that the Federal courts shall
decide "controversies between a State and the citizens of another
State." And here a most important question of a constitutional nature
arose, which was, whether the jurisdiction given by the Constitution in
cases in which a State is a party extended to suits brought against a
State as well as by it, or was exclusively confined to the latter. The
question was most elaborately considered in the case of Chisholm v.
Georgia, and was decided by the majority of the Supreme Court in the
affirmative. The decision created general alarm among the States, and
an amendment was proposed and ratified by which the power was entirely
taken away, so far as it regards suits brought against a State. See
Story's "Commentaries," p. 624, or in the large edition Section 1677.
/8-28/
As for instance, all cases of piracy.
/8-29/
This principle was in some measure restricted by the
introduction of the several States as independent powers into the
Senate, and by allowing them to vote separately in the House of
Representatives when the President is elected by that body. But these
are exceptions, and the contrary principle is the rule.
/8-30/
It is perfectly clear, says Mr. Story ("Commentaries," p.
503, or in the large edition Section 1379), that any law which enlarges,
abridges, or in any manner changes the intention of the parties,
resulting from the stipulations in the contract, necessarily impairs it.
He gives in the same place a very long and careful definition of what is
understood by a contract in Federal jurisprudence. A grant made by the
State to a private individual, and accepted by him, is a contract, and
cannot be revoked by any future law. A charter granted by the State to
a company is a contract, and equally binding to the State as to the
grantee. The clause of the Constitution here referred to insures,
therefore, the existence of a great part of acquired rights, but not of
all. Property may legally be held, though it may not have passed into
the possessor's hands by means of a contract; and its possession is an
acquired right, not guaranteed by the Federal Constitution.
/8-31/
A remarkable instance of this is given by Mr. Story (p.
508, or in the large edition Section 1388): "Dartmouth College in New
Hampshire had been founded by a charter granted to certain individuals
before the American Revolution, and its trustees formed a corporation
under this charter. The legislature of New Hampshire had, without the
consent of this corporation, passed an act changing the organization of
the original provincial charter of the college, and transferring all the
rights, privileges, and franchises from the old charter trustees to new
trustees appointed under the act. The constitutionality of the act was
contested, and, after solemn arguments, it was deliberately held by
the Supreme Court that the provincial charter was a contract within
the meaning of the Constitution (Art. I. Section 10), and that the
emendatory act was utterly void, as impairing the obligation of
that charter. The college was deemed, like other colleges of private
foundation, to be a private eleemosynary institution, endowed by
its charter with a capacity to take property unconnected with the
Government. Its funds were bestowed upon the faith of the charter, and
those funds consisted entirely of private donations. It is true that the
uses were in some sense public, that is, for the general benefit, and
not for the mere benefit of the corporators; but this did not make
the corporation a public corporation. It was a private institution for
general charity. It was not distinguishable in principle from a private
donation, vested in private trustees, for a public charity, or for
a particular purpose of beneficence. And the State itself, if it had
bestowed funds upon a charity of the same nature, could not resume those
funds."
/8-32/
See Chapter VI. on "Judicial Power in America."
/8-33/
See Kent's "Commentaries," vol. i. p. 387.
/8-34/
At this time Alexander Hamilton, who was one of the
principal founders of the Constitution, ventured to express the
following sentiments in The Federalist, No. 71:—
"There are some who would be inclined to regard the servile pliancy of
the Executive to a prevailing current, either in the community or in
the Legislature, as its best recommendation. But such men entertain
very crude notions, as well of the purposes for which government was
instituted as of the true means by which the public happiness may be
promoted. The Republican principle demands that the deliberative sense
of the community should govern the conduct of those to whom they entrust
the management of their affairs; but it does not require an unqualified
complaisance to every sudden breeze of passion, or to every transient
impulse which the people may receive from the arts of men who flatter
their prejudices to betray their interests. It is a just observation,
that the people commonly intend the public good. This often applies to
their very errors. But their good sense would despise the adulator
who should pretend that they always reason right about the means of
promoting it. They know from experience that they sometimes err; and the
wonder is that they so seldom err as they do, beset, as they continually
are, by the wiles of parasites and sycophants; by the snares of the
ambitious, the avaricious, the desperate; by the artifices of men who
possess their confidence more than they deserve it, and of those who
seek to possess rather than to deserve it. When occasions present
themselves in which the interests of the people are at variance with
their inclinations, it is the duty of persons whom they have appointed
to be the guardians of those interests to withstand the temporary
delusion, in order to give them time and opportunity for more cool and
sedate reflection. Instances might be cited in which a conduct of this
kind has saved the people from very fatal consequences of their own
mistakes, and has procured lasting monuments of their gratitude to the
men who had courage and magnanimity enough to serve them at the peril of
their displeasure."
/8-35/
This was the case in Greece, when Philip undertook to
execute the decree of the Amphictyons; in the Low Countries, where the
province of Holland always gave the law; and, in our own time, in the
Germanic Confederation, in which Austria and Prussia assume a great
degree of influence over the whole country, in the name of the Diet.
/8-36/
Such has always been the situation of the Swiss
Confederation, which would have perished ages ago but for the mutual
jealousies of its neighbors.
/8-37/
I do not speak of a confederation of small republics, but
of a great consolidated Republic.
/8-38/
See the Mexican Constitution of 1824.
/8-39/
For instance, the Union possesses by the Constitution the
right of selling unoccupied lands for its own profit. Supposing that
the State of Ohio should claim the same right in behalf of certain
territories lying within its boundaries, upon the plea that the
Constitution refers to those lands alone which do not belong to the
jurisdiction of any particular State, and consequently should choose to
dispose of them itself, the litigation would be carried on in the names
of the purchasers from the State of Ohio and the purchasers from the
Union, and not in the names of Ohio and the Union. But what would become
of this legal fiction if the Federal purchaser was confirmed in his
right by the courts of the Union, whilst the other competitor was
ordered to retain possession by the tribunals of the State of Ohio?
/8-40/
Kent's "Commentaries," vol. i. p. 244. I have selected an
example which relates to a time posterior to the promulgation of
the present Constitution. If I had gone back to the days of the
Confederation, I might have given still more striking instances. The
whole nation was at that time in a state of enthusiastic excitement; the
Revolution was represented by a man who was the idol of the people; but
at that very period Congress had, to say the truth, no resources at
all at its disposal. Troops and supplies were perpetually wanting. The
best-devised projects failed in the execution, and the Union, which was
constantly on the verge of destruction, was saved by the weakness of its
enemies far more than by its own strength.
The text of Democracy in America by Alexis de Tocqueville continues in Volume One, Part Two