Democracy In America

By Alexis De Tocqueville

Translator - Henry Reeve

 

Book One

Introduction

Special Introduction By Hon. John T. Morgan

In the eleven years that separated the Declaration of the

Independence of the United States from the completion of that act

in the ordination of our written Constitution, the great minds of

America were bent upon the study of the principles of government

that were essential to the preservation of the liberties which

had been won at great cost and with heroic labors and sacrifices.

Their studies were conducted in view of the imperfections that

experience had developed in the government of the Confederation,

and they were, therefore, practical and thorough.

When the Constitution was thus perfected and established, a

new form of government was created, but it was neither

speculative nor experimental as to the principles on which it was

based. If they were true principles, as they were, the

government founded upon them was destined to a life and an

influence that would continue while the liberties it was intended

to preserve should be valued by the human family. Those

liberties had been wrung from reluctant monarchs in many

contests, in many countries, and were grouped into creeds and

established in ordinances sealed with blood, in many great

struggles of the people. They were not new to the people. They

were consecrated theories, but no government had been previously

established for the great purpose of their preservation and

enforcement. That which was experimental in our plan of

government was the question whether democratic rule could be so

organized and conducted that it would not degenerate into license

and result in the tyranny of absolutism, without saving to the

people the power so often found necessary of repressing or

destroying their enemy, when he was found in the person of a

single despot.

When, in 1831, Alexis de Tocqueville came to study Democracy

in America, the trial of nearly a half-century of the working of

our system had been made, and it had been proved, by many crucial

tests, to be a government of "liberty regulated by law," with

such results in the development of strength, in population,

wealth, and military and commercial power, as no age had ever

witnessed.

[See Alexis De Tocqueville]

De Tocqueville had a special inquiry to prosecute, in his

visit to America, in which his generous and faithful soul and the

powers of his great intellect were engaged in the patriotic

effort to secure to the people of France the blessings that

Democracy in America had ordained and established throughout

nearly the entire Western Hemisphere. He had read the story of

the FrenchRevolution, much of which had been recently written in

the blood of men and women of great distinction who were his

progenitors; and had witnessed the agitations and terrors of the

Restoration and of the Second Republic, fruitful in crime and

sacrifice, and barren of any good to mankind.

He had just witnessed the spread of republican government

through all the vast continental possessions of Spain in America,

and the loss of her great colonies. He had seen that these

revolutions were accomplished almost without the shedding of

blood, and he was filled with anxiety to learn the causes that

had placed republican government, in France, in such contrast

with Democracy in America.

De Tocqueville was scarcely thirty years old when he began

his studies of Democracy in America. It was a bold effort for

one who had no special training in government, or in the study of

political economy, but he had the example of Lafayette in

establishing the military foundation of these liberties, and of

Washington, Jefferson, Madison, and Hamilton, all of whom were

young men, in building upon the Independence of the United States

that wisest and best plan of general government that was ever

devised for a free people.

He found that the American people, through their chosen

representatives who were instructed by their wisdom and

experience and were supported by their virtues - cultivated,

purified and ennobled by self-reliance and the love of God - had

matured, in the excellent wisdom of their counsels, a new plan of

government, which embraced every security for their liberties and

equal rights and privileges to all in the pursuit of happiness.

He came as an honest and impartial student and his great

commentary, like those of Paul, was written for the benefit of

all nations and people and in vindication of truths that will

stand for their deliverance from monarchical rule, while time

shall last.

A French aristocrat of the purest strain of blood and of the

most honorable lineage, whose family influence was coveted by

crowned heads; who had no quarrel with the rulers of the nation,

and was secure against want by his inherited estates; was moved

by the agitations that compelled France to attempt to grasp

suddenly the liberties and happiness we had gained in our

revolution and, by his devout love of France, to search out and

subject to the test of reason the basic principles of free

government that had been embodied in our Constitution. This was

the mission of De Tocqueville, and no mission was ever more

honorably or justly conducted, or concluded with greater eclat,

or better results for the welfare of mankind.

His researches were logical and exhaustive. They included

every phase of every question that then seemed to be apposite to

the great inquiry he was making.

The judgment of all who have studied his commentaries seems

to have been unanimous, that his talents and learning were fully

equal to his task. He began with the physical geography of this

country, and examined the characteristics of the people, of all

races and conditions, their social and religious sentiments,

their education and tastes; their industries, their commerce,

their local governments, their passions and prejudices, and their

ethics and literature; leaving nothing unnoticed that might

afford an argument to prove that our plan and form of government

was or was not adapted especially to a peculiar people, or that

it would be impracticable in any different country, or among any

different people.

The pride and comfort that the American people enjoy in the

great commentaries of De Tocqueville are far removed from the

selfish adulation that comes from a great and singular success.

It is the consciousness of victory over a false theory of

government which has afflicted mankind for many ages, that gives

joy to the true American, as it did to De Tocqueville in his

great triumph.

When De Tocqueville wrote, we had lived less than fifty

years under our Constitution. In that time no great national

commotion had occurred that tested its strength, or its power of

resistance to internal strife, such as had converted his beloved

France into fields of slaughter torn by tempests of wrath.

He had a strong conviction that no government could be

ordained that could resist these internal forces, when, they are

directed to its destruction by bad men, or unreasoning mobs, and

many then believed, as some yet believe, that our government is

unequal to such pressure, when the assault is thoroughly

desperate.

Had De Tocqueville lived to examine the history of the

United States from 1860 to 1870, his misgivings as to this power

of self- preservation would, probably, have been cleared off. He

would have seen that, at the end of the most destructive civil

war that ever occurred, when animosities of the bitterest sort

had banished all good feeling from the hearts of our people, the

States of the American Union, still in complete organization and

equipped with all their official entourage, aligned themselves in

their places and took up the powers and duties of local

government in perfect order and without embarrassment. This

would have dispelled his apprehensions, if he had any, about the

power of the United States to withstand the severest shocks of

civil war. Could he have traced the further course of events

until they open the portals of the twentieth century, he would

have cast away his fears of our ability to restore peace, order,

and prosperity, in the face of any difficulties, and would have

rejoiced to find in the Constitution of the United States the

remedy that is provided for the healing of the nation.

De Tocqueville examined, with the care that is worthy the

importance of the subject, the nature and value of the system of

"local self-government," as we style this most important feature

of our plan, and (as has often happened) when this or any subject

has become a matter of anxious concern, his treatment of the

questions is found to have been masterly and his preconceptions

almost prophetic.

We are frequently indebted to him for able expositions and

true doctrines relating to subjects that have slumbered in the

minds of the people until they were suddenly forced on our

attention by unexpected events.

In his introductory chapter, M. De Tocqueville says:

"Amongst the novel objects that attracted my attention during my

stay in the United States, nothing struck me more forcibly than

the general equality of conditions." He referred, doubtless, to

social and political conditions among the people of the white

race, who are described as "We, the people," in the opening

sentence of the Constitution. The last three amendments of the

Constitution have so changed this, that those who were then negro

slaves are clothed with the rights of citizenship, including the

right of suffrage. This was a political party movement, intended

to be radical and revolutionary, but it will, ultimately, react

because it has not the sanction of public opinion.

If M. De Tocqueville could now search for a law that would

negative this provision in its effect upon social equality, he

would fail to find it. But he would find it in the unwritten law

of the natural aversion of the races. He would find it in public

opinion, which is the vital force in every law in a free

government. This is a subject that our Constitution failed to

regulate, because it was not contemplated by its authors. It is

a question that will settle itself, without serious difficulty.

The equality in the suffrage, thus guaranteed to the negro race,

alone - for it was not intended to include other colored races -

creates a new phase of political conditions that M. De

Tocqueville could not foresee. Yet, in his commendation of the

local town and county governments, he applauds and sustains that

elementary feature of our political organization which, in the

end, will render harmless this wide departure from the original

plan and purpose of American Democracy. "Local Self-Government,"

independent of general control, except for general purposes, is

the root and origin of all free republican government, and is the

antagonist of all great political combinations that threaten the

rights of minorities. It is the public opinion formed in the

independent expressions of towns and other small civil districts

that is the real conservatism of free government. It is equally

the enemy of that dangerous evil, the corruption of the

ballot-box, from which it is now apprehended that one of our

greatest troubles is to arise.

The voter is selected, under our laws, because he has

certain physical qualifications - age and sex. His

disqualifications, when any are imposed, relate to his education

or property, and to the fact that he has not been convicted of

crime. Of all men he should be most directly amenable to public

opinion.

The test of moral character and devotion to the duties of

good citizenship are ignored in the laws, because the courts can

seldom deal with such questions in a uniform and satisfactory

way, under rules that apply alike to all. Thus the voter,

selected by law to represent himself and four other non-voting

citizens, is often a person who is unfit for any public duty or

trust. In a town government, having a small area of

jurisdiction, where the voice of the majority of qualified voters

is conclusive, the fitness of the person who is to exercise that

high representative privilege can be determined by his neighbors

and acquaintances, and, in the great majority of cases, it will

be decided honestly and for the good of the country. In such

meetings, there is always a spirit of loyalty to the State,

because that is loyalty to the people, and a reverence for God

that gives weight to the duties and responsibilities of

citizenship.

M. De Tocqueville found in these minor local jurisdictions

the theoretical conservatism which, in the aggregate, is the

safest reliance of the State. So we have found them, in

practice, the true protectors of the purity of the ballot,

without which all free government will degenerate into

absolutism.

In the future of the Republic, we must encounter many

difficult and dangerous situations, but the principles

established in the Constitution and the check upon hasty or

inconsiderate legislation, and upon executive action, and the

supreme arbitrament of the courts, will be found sufficient for

the safety of personal rights, and for the safety of the

government, and the prophetic outlook of M. De Tocqueville will

be fully realized through the influence of Democracy in America.

Each succeeding generation of Americans will find in the pure and

impartial reflections of De Tocqueville a new source of pride in

our institutions of government, and sound reasons for patriotic

effort to preserve them and to inculcate their teachings. They

have mastered the power of monarchical rule in the American

Hemisphere, freeing religion from all shackles, and will spread,

by a quiet but resistless influence, through the islands of the

seas to other lands, where the appeals of De Tocqueville for

human rights and liberties have already inspired the souls of the

people.

 

Hon. John T. Morgan

Special Introduction By Hon. John J. Ingalls

Nearly two-thirds of a century has elapsed since the

appearance of "Democracy in America," by Alexis Charles Henri

Clerel de Tocqueville, a French nobleman, born at Paris, July 29,

1805.

Bred to the law, he exhibited an early predilection for

philosophy and political economy, and at twenty-two was appointed

judge-auditor at the tribunal of Versailles.

In 1831, commissioned ostensibly to investigate the

penitentiary system of the United States, he visited this

country, with his friend, Gustave de Beaumont, travelling

extensively through those parts of the Republic then subdued to

settlement, studying the methods of local, State, and national

administration, and observing the manners and habits, the daily

life, the business, the industries and occupations of the people.

"Democracy in America," the first of four volumes upon

"American Institutions and their Influence," was published in

1835. It was received at once by the scholars and thinkers of

Europe as a profound, impartial, and entertaining exposition of

the principles of popular, representative self-government.

Napoleon, "The mighty somnambulist of a vanished dream," had

abolished feudalism and absolutism, made monarchs and dynasties

obsolete, and substituted for the divine right of kings the

sovereignty of the people.

Although by birth and sympathies an aristocrat, M. de

Tocqueville saw that the reign of tradition and privilege at last

was ended. He perceived that civilization, after many bloody

centuries, had entered a new epoch. He beheld, and deplored, the

excesses that had attended the genesis of the democratic spirit

in France, and while he loved liberty, he detested the crimes

that had been committed in its name. Belonging neither to the

class which regarded the social revolution as an innovation to be

resisted, nor to that which considered political equality the

universal panacea for the evils of humanity, he resolved by

personal observation of the results of democracy in the New World

to ascertain its natural consequences, and to learn what the

nations of Europe had to hope or fear from its final supremacy.

That a youth of twenty-six should entertain a design so

broad and bold implies singular intellectual intrepidity. He had

neither model nor precedent. The vastness and novelty of the

undertaking increase admiration for the remarkable ability with

which the task was performed.

Were literary excellence the sole claim of "Democracy in

America" to distinction, the splendor of its composition alone

would entitle it to high place among the masterpieces of the

century. The first chapter, upon the exterior form of North

America, as the theatre upon which the great drama is to be

enacted, for graphic and picturesque description of the physical

characteristics of the continent is not surpassed in literature:

nor is there any subdivision of the work in which the severest

philosophy is not invested with the grace of poetry, and the

driest statistics with the charm of romance. Western emigration

seemed commonplace and prosaic till M. de Tocqueville said, "This

gradual and continuous progress of the European race toward the

Rocky Mountains has the solemnity of a providential event; it is

like a deluge of men rising unabatedly, and daily driven onward

by the hand of God!"

The mind of M. de Tocqueville had the candor of the

photographic camera. It recorded impressions with the

impartiality of nature. The image was sometimes distorted, and

the perspective was not always true, but he was neither a

panegyrist, nor an advocate, nor a critic. He observed American

phenomena as illustrations, not as proof nor arguments; and

although it is apparent that the tendency of his mind was not

wholly favorable to the democratic principle, yet those who

dissent from his conclusions must commend the ability and courage

with which they are expressed.

Though not originally written for Americans, "Democracy in

America" must always remain a work of engrossing and constantly

increasing interest to citizens of the United States as the first

philosophic and comprehensive view of our society, institutions,

and destiny. No one can rise even from the most cursory perusal

without clearer insight and more patriotic appreciation of the

blessings of liberty protected by law, nor without encouragement

for the stability and perpetuity of the Republic. The causes

which appeared to M. de Tocqueville to menace both, have gone.

The despotism of public opinion, the tyranny of majorities, the

absence of intellectual freedom which seemed to him to degrade

administration and bring statesmanship, learning, and literature

to the level of the lowest, are no longer considered. The

violence of party spirit has been mitigated, and the judgment of

the wise is not subordinated to the prejudices of the ignorant.

Other dangers have come. Equality of conditions no longer

exists. Prophets of evil predict the downfall of democracy, but

the student of M. de Tocqueville will find consolation and

encouragement in the reflection that the same spirit which has

vanquished the perils of the past, which he foresaw, will be

equally prepared for the responsibilities of the present and the

future.

The last of the four volumes of M. de Tocqueville's work

upon American institutions appeared in 1840.

In 1838 he was chosen member of the Academy of Moral and

Political Sciences. In 1839 he was elected to the Chamber of

Deputies. He became a member of the French Academy in 1841.

In 1848 he was in the Assembly, and from June 2nd to October

31st he was Minister of Foreign Affairs. The coup d'etat of

December 2, 1851 drove him from the public service. In 1856 he

published "The Old Regime and the Revolution." He died at Cannes,

April 15, 1859, at the age of fifty-four.

Hon. John J. Ingalls

 

Introductory Chapter

Amongst the novel objects that attracted my attention during

my stay in the United States, nothing struck me more forcibly

than the general equality of conditions. I readily discovered

the prodigious influence which this primary fact exercises on the

whole course of society, by giving a certain direction to public

opinion, and a certain tenor to the laws; by imparting new maxims

to the governing powers, and peculiar habits to the governed. I

speedily perceived that the influence of this fact extends far

beyond the political character and the laws of the country, and

that it has no less empire over civil society than over the

Government; it creates opinions, engenders sentiments, suggests

the ordinary practices of life, and modifies whatever it does not

produce. The more I advanced in the study of American society,

the more I perceived that the equality of conditions is the

fundamental fact from which all others seem to be derived, and

the central point at which all my observations constantly

terminated.

I then turned my thoughts to our own hemisphere, where I

imagined that I discerned something analogous to the spectacle

which the New World presented to me. I observed that the

equality of conditions is daily progressing towards those extreme

limits which it seems to have reached in the United States, and

that the democracy which governs the American communities appears

to be rapidly rising into power in Europe. I hence conceived the

idea of the book which is now before the reader.

It is evident to all alike that a great democratic

revolution is going on amongst us; but there are two opinions as

to its nature and consequences. To some it appears to be a novel

accident, which as such may still be checked; to others it seems

irresistible, because it is the most uniform, the most ancient,

and the most permanent tendency which is to be found in history.

Let us recollect the situation of France seven hundred years ago,

when the territory was divided amongst a small number of

families, who were the owners of the soil and the rulers of the

inhabitants; the right of governing descended with the family

inheritance from generation to generation; force was the only

means by which man could act on man, and landed property was the

sole source of power. Soon, however, the political power of the

clergy was founded, and began to exert itself: the clergy opened

its ranks to all classes, to the poor and the rich, the villein

and the lord; equality penetrated into the Government through the

Church, and the being who as a serf must have vegetated in

perpetual bondage took his place as a priest in the midst of

nobles, and not infrequently above the heads of kings.

The different relations of men became more complicated and

more numerous as society gradually became more stable and more

civilized. Thence the want of civil laws was felt; and the order

of legal functionaries soon rose from the obscurity of the

tribunals and their dusty chambers, to appear at the court of the

monarch, by the side of the feudal barons in their ermine and

their mail. Whilst the kings were ruining themselves by their

great enterprises, and the nobles exhausting their resources by

private wars, the lower orders were enriching themselves by

commerce. The influence of money began to be perceptible in

State affairs. The transactions of business opened a new road to

power, and the financier rose to a station of political influence

in which he was at once flattered and despised. Gradually the

spread of mental acquirements, and the increasing taste for

literature and art, opened chances of success to talent; science

became a means of government, intelligence led to social power,

and the man of letters took a part in the affairs of the State.

The value attached to the privileges of birth decreased in the

exact proportion in which new paths were struck out to

advancement. In the eleventh century nobility was beyond all

price; in the thirteenth it might be purchased; it was conferred

for the first time in 1270; and equality was thus introduced into

the Government by the aristocracy itself.

In the course of these seven hundred years it sometimes

happened that in order to resist the authority of the Crown, or

to diminish the power of their rivals, the nobles granted a

certain share of political rights to the people. Or, more

frequently, the king permitted the lower orders to enjoy a degree

of power, with the intention of repressing the aristocracy. In

France the kings have always been the most active and the most

constant of levellers. When they were strong and ambitious they

spared no pains to raise the people to the level of the nobles;

when they were temperate or weak they allowed the people to rise

above themselves. Some assisted the democracy by their talents,

others by their vices. Louis XI and Louis XIV reduced every rank

beneath the throne to the same subjection; Louis XV descended,

himself and all his Court, into the dust.

As soon as land was held on any other than a feudal tenure,

and personal property began in its turn to confer influence and

power, every improvement which was introduced in commerce or

manufacture was a fresh element of the equality of conditions.

Henceforward every new discovery, every new want which it

engendered, and every new desire which craved satisfaction, was a

step towards the universal level. The taste for luxury, the love

of war, the sway of fashion, and the most superficial as well as

the deepest passions of the human heart, co-operated to enrich

the poor and to impoverish the rich.

From the time when the exercise of the intellect became the

source of strength and of wealth, it is impossible not to

consider every addition to science, every fresh truth, and every

new idea as a germ of power placed within the reach of the

people. Poetry, eloquence, and memory, the grace of wit, the

glow of imagination, the depth of thought, and all the gifts

which are bestowed by Providence with an equal hand, turned to

the advantage of the democracy; and even when they were in the

possession of its adversaries they still served its cause by

throwing into relief the natural greatness of man; its conquests

spread, therefore, with those of civilization and knowledge, and

literature became an arsenal where the poorest and the weakest

could always find weapons to their hand.

In perusing the pages of our history, we shall scarcely meet

with a single great event, in the lapse of seven hundred years,

which has not turned to the advantage of equality. The Crusades

and the wars of the English decimated the nobles and divided

their possessions; the erection of communities introduced an

element of democratic liberty into the bosom of feudal monarchy;

the invention of fire-arms equalized the villein and the noble on

the field of battle; printing opened the same resources to the

minds of all classes; the post was organized so as to bring the

same information to the door of the poor man's cottage and to the

gate of the palace; and Protestantism proclaimed that all men are

alike able to find the road to heaven. The discovery of America

offered a thousand new paths to fortune, and placed riches and

power within the reach of the adventurous and the obscure. If we

examine what has happened in France at intervals of fifty years,

beginning with the eleventh century, we shall invariably perceive

that a twofold revolution has taken place in the state of

society. The noble has gone down on the social ladder, and the

roturier has gone up; the one descends as the other rises. Every

half century brings them nearer to each other, and they will very

shortly meet.

Nor is this phenomenon at all peculiar to France.

Whithersoever we turn our eyes we shall witness the same

continual revolution throughout the whole of Christendom. The

various occurrences of national existence have everywhere turned

to the advantage of democracy; all men have aided it by their

exertions: those who have intentionally labored in its cause, and

those who have served it unwittingly; those who have fought for

it and those who have declared themselves its opponents, have all

been driven along in the same track, have all labored to one end,

some ignorantly and some unwillingly; all have been blind

instruments in the hands of God.

The gradual development of the equality of conditions is

therefore a providential fact, and it possesses all the

characteristics of a divine decree: it is universal, it is

durable, it constantly eludes all human interference, and all

events as well as all men contribute to its progress. Would it,

then, be wise to imagine that a social impulse which dates from

so far back can be checked by the efforts of a generation? Is it

credible that the democracy which has annihilated the feudal

system and vanquished kings will respect the citizen and the

capitalist? Will it stop now that it has grown so strong and its

adversaries so weak? None can say which way we are going, for

all terms of comparison are wanting: the equality of conditions

is more complete in the Christian countries of the present day

than it has been at any time or in any part of the world; so that

the extent of what already exists prevents us from foreseeing

what may be yet to come.

The whole book which is here offered to the public has been

written under the impression of a kind of religious dread

produced in the author's mind by the contemplation of so

irresistible a revolution, which has advanced for centuries in

spite of such amazing obstacles, and which is still proceeding in

the midst of the ruins it has made. It is not necessary that God

himself should speak in order to disclose to us the

unquestionable signs of His will; we can discern them in the

habitual course of nature, and in the invariable tendency of

events: I know, without a special revelation, that the planets

move in the orbits traced by the Creator's finger. If the men of

our time were led by attentive observation and by sincere

reflection to acknowledge that the gradual and progressive

development of social equality is at once the past and future of

their history, this solitary truth would confer the sacred

character of a Divine decree upon the change. To attempt to

check democracy would be in that case to resist the will of God;

and the nations would then be constrained to make the best of the

social lot awarded to them by Providence.

The Christian nations of our age seem to me to present a

most alarming spectacle; the impulse which is bearing them along

is so strong that it cannot be stopped, but it is not yet so

rapid that it cannot be guided: their fate is in their hands; yet

a little while and it may be so no longer. The first duty which

is at this time imposed upon those who direct our affairs is to

educate the democracy; to warm its faith, if that be possible; to

purify its morals; to direct its energies; to substitute a

knowledge of business for its inexperience, and an acquaintance

with its true interests for its blind propensities; to adapt its

government to time and place, and to modify it in compliance with

the occurrences and the actors of the age. A new science of

politics is indispensable to a new world. This, however, is what

we think of least; launched in the middle of a rapid stream, we

obstinately fix our eyes on the ruins which may still be

described upon the shore we have left, whilst the current sweeps

us along, and drives us backwards towards the gulf.

In no country in Europe has the great social revolution

which I have been describing made such rapid progress as in

France; but it has always been borne on by chance. The heads of

the State have never had any forethought for its exigencies, and

its victories have been obtained without their consent or without

their knowledge. The most powerful, the most intelligent, and

the most moral classes of the nation have never attempted to

connect themselves with it in order to guide it. The people has

consequently been abandoned to its wild propensities, and it has

grown up like those outcasts who receive their education in the

public streets, and who are unacquainted with aught but the vices

and wretchedness of society. The existence of a democracy was

seemingly unknown, when on a sudden it took possession of the

supreme power. Everything was then submitted to its caprices; it

was worshipped as the idol of strength; until, when it was

enfeebled by its own excesses, the legislator conceived the rash

project of annihilating its power, instead of instructing it and

correcting its vices; no attempt was made to fit it to govern,

but all were bent on excluding it from the government.

The consequence of this has been that the democratic

revolution has been effected only in the material parts of

society, without that concomitant change in laws, ideas, customs,

and manners which was necessary to render such a revolution

beneficial. We have gotten a democracy, but without the

conditions which lessen its vices and render its natural

advantages more prominent; and although we already perceive the

evils it brings, we are ignorant of the benefits it may confer.

While the power of the Crown, supported by the aristocracy,

peaceably governed the nations of Europe, society possessed, in

the midst of its wretchedness, several different advantages which

can now scarcely be appreciated or conceived. The power of a

part of his subjects was an insurmountable barrier to the tyranny

of the prince; and the monarch, who felt the almost divine

character which he enjoyed in the eyes of the multitude, derived

a motive for the just use of his power from the respect which he

inspired. High as they were placed above the people, the nobles

could not but take that calm and benevolent interest in its fate

which the shepherd feels towards his flock; and without

acknowledging the poor as their equals, they watched over the

destiny of those whose welfare Providence had entrusted to their

care. The people never having conceived the idea of a social

condition different from its own, and entertaining no expectation

of ever ranking with its chiefs, received benefits from them

without discussing their rights. It grew attached to them when

they were clement and just, and it submitted without resistance

or servility to their exactions, as to the inevitable visitations

of the arm of God. Custom, and the manners of the time, had

moreover created a species of law in the midst of violence, and

established certain limits to oppression. As the noble never

suspected that anyone would attempt to deprive him of the

privileges which he believed to be legitimate, and as the serf

looked upon his own inferiority as a consequence of the immutable

order of nature, it is easy to imagine that a mutual exchange of

good-will took place between two classes so differently gifted by

fate. Inequality and wretchedness were then to be found in

society; but the souls of neither rank of men were degraded. Men

are not corrupted by the exercise of power or debased by the

habit of obedience, but by the exercise of a power which they

believe to be illegal and by obedience to a rule which they

consider to be usurped and oppressive. On one side was wealth,

strength, and leisure, accompanied by the refinements of luxury,

the elegance of taste, the pleasures of wit, and the religion of

art. On the other was labor and a rude ignorance; but in the

midst of this coarse and ignorant multitude it was not uncommon

to meet with energetic passions, generous sentiments, profound

religious convictions, and independent virtues. The body of a

State thus organized might boast of its stability, its power,

and, above all, of its glory.

But the scene is now changed, and gradually the two ranks

mingle; the divisions which once severed mankind are lowered,

property is divided, power is held in common, the light of

intelligence spreads, and the capacities of all classes are

equally cultivated; the State becomes democratic, and the empire

of democracy is slowly and peaceably introduced into the

institutions and the manners of the nation. I can conceive a

society in which all men would profess an equal attachment and

respect for the laws of which they are the common authors; in

which the authority of the State would be respected as necessary,

though not as divine; and the loyalty of the subject to its chief

magistrate would not be a passion, but a quiet and rational

persuasion. Every individual being in the possession of rights

which he is sure to retain, a kind of manly reliance and

reciprocal courtesy would arise between all classes, alike

removed from pride and meanness. The people, well acquainted

with its true interests, would allow that in order to profit by

the advantages of society it is necessary to satisfy its demands.

In this state of things the voluntary association of the citizens

might supply the individual exertions of the nobles, and the

community would be alike protected from anarchy and from

oppression.

I admit that, in a democratic State thus constituted,

society will not be stationary; but the impulses of the social

body may be regulated and directed forwards; if there be less

splendor than in the halls of an aristocracy, the contrast of

misery will be less frequent also; the pleasures of enjoyment may

be less excessive, but those of comfort will be more general; the

sciences may be less perfectly cultivated, but ignorance will be

less common; the impetuosity of the feelings will be repressed,

and the habits of the nation softened; there will be more vices

and fewer crimes. In the absence of enthusiasm and of an ardent

faith, great sacrifices may be obtained from the members of a

commonwealth by an appeal to their understandings and their

experience; each individual will feel the same necessity for

uniting with his fellow-citizens to protect his own weakness; and

as he knows that if they are to assist he must co-operate, he

will readily perceive that his personal interest is identified

with the interest of the community. The nation, taken as a

whole, will be less brilliant, less glorious, and perhaps less

strong; but the majority of the citizens will enjoy a greater

degree of prosperity, and the people will remain quiet, not

because it despairs of amelioration, but because it is conscious

of the advantages of its condition. If all the consequences of

this state of things were not good or useful, society would at

least have appropriated all such as were useful and good; and

having once and for ever renounced the social advantages of

aristocracy, mankind would enter into possession of all the

benefits which democracy can afford.

But here it may be asked what we have adopted in the place

of those institutions, those ideas, and those customs of our

forefathers which we have abandoned. The spell of royalty is

broken, but it has not been succeeded by the majesty of the laws;

the people has learned to despise all authority, but fear now

extorts a larger tribute of obedience than that which was

formerly paid by reverence and by love.

I perceive that we have destroyed those independent beings

which were able to cope with tyranny single-handed; but it is the

Government that has inherited the privileges of which families,

corporations, and individuals have been deprived; the weakness of

the whole community has therefore succeeded that influence of a

small body of citizens, which, if it was sometimes oppressive,

was often conservative. The division of property has lessened

the distance which separated the rich from the poor; but it would

seem that the nearer they draw to each other, the greater is

their mutual hatred, and the more vehement the envy and the dread

with which they resist each other's claims to power; the notion

of Right is alike insensible to both classes, and Force affords

to both the only argument for the present, and the only guarantee

for the future. The poor man retains the prejudices of his

forefathers without their faith, and their ignorance without

their virtues; he has adopted the doctrine of self-interest as

the rule of his actions, without understanding the science which

controls it, and his egotism is no less blind than his

devotedness was formerly. If society is tranquil, it is not

because it relies upon its strength and its well-being, but

because it knows its weakness and its infirmities; a single

effort may cost it its life; everybody feels the evil, but no one

has courage or energy enough to seek the cure; the desires, the

regret, the sorrows, and the joys of the time produce nothing

that is visible or permanent, like the passions of old men which

terminate in impotence.

We have, then, abandoned whatever advantages the old state

of things afforded, without receiving any compensation from our

present condition; we have destroyed an aristocracy, and we seem

inclined to survey its ruins with complacency, and to fix our

abode in the midst of them.

The phenomena which the intellectual world presents are not

less deplorable. The democracy of France, checked in its course

or abandoned to its lawless passions, has overthrown whatever

crossed its path, and has shaken all that it has not destroyed.

Its empire on society has not been gradually introduced or

peaceably established, but it has constantly advanced in the

midst of disorder and the agitation of a conflict. In the heat

of the struggle each partisan is hurried beyond the limits of his

opinions by the opinions and the excesses of his opponents, until

he loses sight of the end of his exertions, and holds a language

which disguises his real sentiments or secret instincts. Hence

arises the strange confusion which we are witnessing. I cannot

recall to my mind a passage in history more worthy of sorrow and

of pity than the scenes which are happening under our eyes; it is

as if the natural bond which unites the opinions of man to his

tastes and his actions to his principles was now broken; the

sympathy which has always been acknowledged between the feelings

and the ideas of mankind appears to be dissolved, and all the

laws of moral analogy to be dissolved, and all the laws of moral

analogy to be abolished.

Zealous Christians may be found amongst us whose minds are

nurtured in the love and knowledge of a future life, and who

readily espouse the cause of human liberty as the source of all

moral greatness. Christianity, which has declared that all men

are equal in the sight of God, will not refuse to acknowledge

that all citizens are equal in the eye of the law. But, by a

singular concourse of events, religion is entangled in those

institutions which democracy assails, and it is not unfrequently

brought to reject the equality it loves, and to curse that cause

of liberty as a foe which it might hallow by its alliance.

By the side of these religious men I discern others whose

looks are turned to the earth more than to Heaven; they are the

partisans of liberty, not only as the source of the noblest

virtues, but more especially as the root of all solid advantages;

and they sincerely desire to extend its sway, and to impart its

blessings to mankind. It is natural that they should hasten to

invoke the assistance of religion, for they must know that

liberty cannot be established without morality, nor morality

without faith; but they have seen religion in the ranks of their

adversaries, and they inquire no further; some of them attack it

openly, and the remainder are afraid to defend it.

In former ages slavery has been advocated by the venal and

slavish-minded, whilst the independent and the warm-hearted were

struggling without hope to save the liberties of mankind. But

men of high and generous characters are now to be met with, whose

opinions are at variance with their inclinations, and who praise

that servility which they have themselves never known. Others,

on the contrary, speak in the name of liberty, as if they were

able to feel its sanctity and its majesty, and loudly claim for

humanity those rights which they have always disowned. There are

virtuous and peaceful individuals whose pure morality, quiet

habits, affluence, and talents fit them to be the leaders of the

surrounding population; their love of their country is sincere,

and they are prepared to make the greatest sacrifices to its

welfare, but they confound the abuses of civilization with its

benefits, and the idea of evil is inseparable in their minds from

that of novelty.

Not far from this class is another party, whose object is to

materialize mankind, to hit upon what is expedient without

heeding what is just, to acquire knowledge without faith, and

prosperity apart from virtue; assuming the title of the champions

of modern civilization, and placing themselves in a station which

they usurp with insolence, and from which they are driven by

their own unworthiness. Where are we then? The religionists are

the enemies of liberty, and the friends of liberty attack

religion; the high- minded and the noble advocate subjection, and

the meanest and most servile minds preach independence; honest

and enlightened citizens are opposed to all progress, whilst men

without patriotism and without principles are the apostles of

civilization and of intelligence. Has such been the fate of the

centuries which have preceded our own? and has man always

inhabited a world like the present, where nothing is linked

together, where virtue is without genius, and genius without

honor; where the love of order is confounded with a taste for

oppression, and the holy rites of freedom with a contempt of law;

where the light thrown by conscience on human actions is dim, and

where nothing seems to be any longer forbidden or allowed,

honorable or shameful, false or true? I cannot, however, believe

that the Creator made man to leave him in an endless struggle

with the intellectual miseries which surround us: God destines a

calmer and a more certain future to the communities of Europe; I

am unacquainted with His designs, but I shall not cease to

believe in them because I cannot fathom them, and I had rather

mistrust my own capacity than His justice.

There is a country in the world where the great revolution

which I am speaking of seems nearly to have reached its natural

limits; it has been effected with ease and simplicity, say rather

that this country has attained the consequences of the democratic

revolution which we are undergoing without having experienced the

revolution itself. The emigrants who fixed themselves on the

shores of America in the beginning of the seventeenth century

severed the democratic principle from all the principles which

repressed it in the old communities of Europe, and transplanted

it unalloyed to the New World. It has there been allowed to

spread in perfect freedom, and to put forth its consequences in

the laws by influencing the manners of the country.

It appears to me beyond a doubt that sooner or later we

shall arrive, like the Americans, at an almost complete equality

of conditions. But I do not conclude from this that we shall

ever be necessarily led to draw the same political consequences

which the Americans have derived from a similar social

organization. I am far from supposing that they have chosen the

only form of government which a democracy may adopt; but the

identity of the efficient cause of laws and manners in the two

countries is sufficient to account for the immense interest we

have in becoming acquainted with its effects in each of them.

It is not, then, merely to satisfy a legitimate curiosity

that I have examined America; my wish has been to find

instruction by which we may ourselves profit. Whoever should

imagine that I have intended to write a panegyric will perceive

that such was not my design; nor has it been my object to

advocate any form of government in particular, for I am of

opinion that absolute excellence is rarely to be found in any

legislation; I have not even affected to discuss whether the

social revolution, which I believe to be irresistible, is

advantageous or prejudicial to mankind; I have acknowledged this

revolution as a fact already accomplished or on the eve of its

accomplishment; and I have selected the nation, from amongst

those which have undergone it, in which its development has been

the most peaceful and the most complete, in order to discern its

natural consequences, and, if it be possible, to distinguish the

means by which it may be rendered profitable. I confess that in

America I saw more than America; I sought the image of democracy

itself, with its inclinations, its character, its prejudices, and

its passions, in order to learn what we have to fear or to hope

from its progress.

In the first part of this work I have attempted to show the

tendency given to the laws by the democracy of America, which is

abandoned almost without restraint to its instinctive

propensities, and to exhibit the course it prescribes to the

Government and the influence it exercises on affairs. I have

sought to discover the evils and the advantages which it

produces. I have examined the precautions used by the Americans

to direct it, as well as those which they have not adopted, and I

have undertaken to point out the causes which enable it to govern

society. I do not know whether I have succeeded in making known

what I saw in America, but I am certain that such has been my

sincere desire, and that I have never, knowingly, moulded facts

to ideas, instead of ideas to facts.

Whenever a point could be established by the aid of written

documents, I have had recourse to the original text, and to the

most authentic and approved works. I have cited my authorities

in the notes, and anyone may refer to them. Whenever an opinion,

a political custom, or a remark on the manners of the country was

concerned, I endeavored to consult the most enlightened men I met

with. If the point in question was important or doubtful, I was

not satisfied with one testimony, but I formed my opinion on the

evidence of several witnesses. Here the reader must necessarily

believeme upon my word. I could frequently have quoted names

which are either known to him, or which deserve to be so, in

proof of what I advance; but I have carefully abstained from this

practice. A stranger frequently hears important truths at the

fire-side of his host, which the latter would perhaps conceal

from the ear of friendship; he consoles himself with his guest

for the silence to which he is restricted, and the shortness of

the traveller's stay takes away all fear of his indiscretion. I

carefully noted every conversation of this nature as soon as it

occurred, but these notes will never leave my writing-case; I had

rather injure the success of my statements than add my name to

the list of those strangers who repay the generous hospitality

they have received by subsequent chagrin and annoyance.

I am aware that, notwithstanding my care, nothing will be

easier than to criticise this book, if anyone ever chooses to

criticise it. Those readers who may examine it closely will

discover the fundamental idea which connects the several parts

together. But the diversity of the subjects I have had to treat

is exceedingly great, and it will not be difficult to oppose an

isolated fact to the body of facts which I quote, or an isolated

idea to the body of ideas I put forth. I hope to be read in the

spirit which has guided my labors, and that my book may be judged

by the general impression it leaves, as I have formed my own

judgment not on any single reason, but upon the mass of evidence.

It must not be forgotten that the author who wishes to be

understood is obliged to push all his ideas to their utmost

theoretical consequences, and often to the verge of what is false

or impracticable; for if it be necessary sometimes to quit the

rules of logic in active life, such is not the case in discourse,

and a man finds that almost as many difficulties spring from

inconsistency of language as usually arise from inconsistency of

conduct.

I conclude by pointing out myself what many readers will

consider the principal defect of the work. This book is written

to favor no particular views, and in composing it I have

entertained no designs of serving or attacking any party; I have

undertaken not to see differently, but to look further than

parties, and whilst they are busied for the morrow I have turned

my thoughts to the Future.

 

Chapter I:
Exterior Form Of North America

Chapter Summary

North America divided into two vast regions, one inclining

towards the Pole, the other towards the Equator - Valley of the

Mississippi - Traces of the Revolutions of the Globe - Shore of

the Atlantic Ocean where the English Colonies were founded -

Difference in the appearance of North and of South America at the

time of their Discovery - Forests of North America - Prairies

-Wandering Tribes of Natives - Their outward appearance, manners,

and language - Traces of an unknown people.

Exterior Form Of North America

North America presents in its external form certain general

features which it is easy to discriminate at the first glance. A

sort of methodical order seems to have regulated the separation

of land and water, mountains and valleys. A simple, but grand,

arrangement is discoverable amidst the confusion of objects and

the prodigious variety of scenes. This continent is divided,

almost equally, into two vast regions, one of which is bounded on

the north by the Arctic Pole, and by the two great oceans on the

east and west. It stretches towards the south, forming a triangle

whose irregular sides meet at length below the great lakes of

Canada. The second region begins where the other terminates, and

includes all the remainder of the continent. The one slopes

gently towards the Pole, the other towards the Equator.

The territory comprehended in the first region descends

towards the north with so imperceptible a slope that it may

almost be said to form a level plain. Within the bounds of this

immense tract of country there are neither high mountains nor

deep valleys. Streams meander through it irregularly: great

rivers mix their currents, separate and meet again, disperse and

form vast marshes, losing all trace of their channels in the

labyrinth of waters they have themselves created; and thus, at

length, after innumerable windings, fall into the Polar Seas.

The great lakes which bound this first region are not walled in,

like most of those in the Old World, between hills and rocks.

Their banks are flat, and rise but a few feet above the level of

their waters; each of them thus forming a vast bowl filled to the

brim. The slightest change in the structure of the globe would

cause their waters to rush either towards the Pole or to the

tropical sea.

The second region is more varied on its surface, and better

suited for the habitation of man. Two long chains of mountains

divide it from one extreme to the other; the Alleghany ridge

takes the form of the shores of the Atlantic Ocean; the other is

parallel with the Pacific. The space which lies between these

two chains of mountains contains 1,341,649 square miles. *a Its

surface is therefore about six times as great as that of France.

This vast territory, however, forms a single valley, one side of

which descends gradually from the rounded summits of the

Alleghanies, while the other rises in an uninterrupted course

towards the tops of the Rocky Mountains. At the bottom of the

valley flows an immense river, into which the various streams

issuing from the mountains fall from all parts. In memory of

their native land, the French formerly called this river the St.

Louis. The Indians, in their pompous language, have named it the

Father of Waters, or the Mississippi.

[Footnote a: Darby's "View of the United States."]

The Mississippi takes its source above the limit of the two

great regions of which I have spoken, not far from the highest

point of the table-land where they unite. Near the same spot

rises another river, *b which empties itself into the Polar seas.

The course of the Mississippi is at first dubious: it winds

several times towards the north, from whence it rose; and at

length, after having been delayed in lakes and marshes, it flows

slowly onwards to the south. Sometimes quietly gliding along the

argillaceous bed which nature has assigned to it, sometimes

swollen by storms, the Mississippi waters 2,500 miles in its

course. *c At the distance of 1,364 miles from its mouth this

river attains an average depth of fifteen feet; and it is

navigated by vessels of 300 tons burden for a course of nearly

500 miles. Fifty-seven large navigable rivers contribute to

swell the waters of the Mississippi; amongst others, the

Missouri, which traverses a space of 2,500 miles; the Arkansas of

1,300 miles, the Red River 1,000 miles, four whose course is from

800 to 1,000 miles in length, viz., the Illinois, the St.

Peter's, the St. Francis, and the Moingona; besides a countless

multitude of rivulets which unite from all parts their tributary

streams.

[Footnote b: The Red River.]

[Footnote c: Warden's "Description of the United States."]

The valley which is watered by the Mississippi seems formed

to be the bed of this mighty river, which, like a god of

antiquity, dispenses both good and evil in its course. On the

shores of the stream nature displays an inexhaustible fertility;

in proportion as you recede from its banks, the powers of

vegetation languish, the soil becomes poor, and the plants that

survive have a sickly growth. Nowhere have the great convulsions

of the globe left more evident traces than in the valley of the

Mississippi; the whole aspect of the country shows the powerful

effects of water, both by its fertility and by its barrenness.

The waters of the primeval ocean accumulated enormous beds of

vegetable mould in the valley, which they levelled as they

retired. Upon the right shore of the river are seen immense

plains, as smooth as if the husbandman had passed over them with

his roller. As you approach the mountains the soil becomes more

and more unequal and sterile; the ground is, as it were, pierced

in a thousand places by primitive rocks, which appear like the

bones of a skeleton whose flesh is partly consumed. The surface

of the earth is covered with a granite sand and huge irregular

masses of stone, among which a few plants force their growth, and

give the appearance of a green field covered with the ruins of a

vast edifice. These stones and this sand discover, on

examination, a perfect analogy with those which compose the arid

and broken summits of the Rocky Mountains. The flood of waters

which washed the soil to the bottom of the valley afterwards

carried away portions of the rocks themselves; and these, dashed

and bruised against the neighboring cliffs, were left scattered

like wrecks at their feet. *d The valley of the Mississippi is,

upon the whole, the most magnificent dwelling-place prepared by

God for man's abode; and yet it may be said that at present it is

but a mighty desert.

[Footnote d: See Appendix, A.]

On the eastern side of the Alleghanies, between the base of

these mountains and the Atlantic Ocean, there lies a long ridge

of rocks and sand, which the sea appears to have left behind as

it retired. The mean breadth of this territory does not exceed

one hundred miles; but it is about nine hundred miles in length.

This part of the American continent has a soil which offers every

obstacle to the husbandman, and its vegetation is scanty and

unvaried.

Upon this inhospitable coast the first united efforts of

human industry were made. The tongue of arid land was the cradle

of those English colonies which were destined one day to become

the United States of America. The centre of power still remains

here; whilst in the backwoods the true elements of the great

people to whom the future control of the continent belongs are

gathering almost in secrecy together.

When the Europeans first landed on the shores of the West

Indies, and afterwards on the coast of South America, they

thought themselves transported into those fabulous regions of

which poets had sung. The sea sparkled with phosphoric light,

and the extraordinary transparency of its waters discovered to

the view of the navigator all that had hitherto been hidden in

the deep abyss. *e Here and there appeared little islands

perfumed with odoriferous plants, and resembling baskets of

flowers floating on the tranquil surface of the ocean. Every

object which met the sight, in this enchanting region, seemed

prepared to satisfy the wants or contribute to the pleasures of

man. Almost all the trees were loaded with nourishing fruits, and

those which were useless as food delighted the eye by the

brilliancy and variety of their colors. In groves of fragrant

lemon-trees, wild figs, flowering myrtles, acacias, and

oleanders, which were hung with festoons of various climbing

plants, covered with flowers, a multitude of birds unknown in

Europe displayed their bright plumage, glittering with purple and

azure, and mingled their warbling with the harmony of a world

teeming with life and motion. *f Underneath this brilliant

exterior death was concealed. But the air of these climates had

so enervating an influence that man, absorbed by present

enjoyment, was rendered regardless of the future.

[Footnote e: Malte Brun tells us (vol. v. p. 726) that the water

of the Caribbean Sea is so transparent that corals and fish are

discernible at a depth of sixty fathoms. The ship seemed to

float in air, the navigator became giddy as his eye penetrated

through the crystal flood, and beheld submarine gardens, or beds

of shells, or gilded fishes gliding among tufts and thickets of

seaweed.]

[Footnote f: See Appendix, B.]

North America appeared under a very different aspect; there

everything was grave, serious, and solemn: it seemed created to

be the domain of intelligence, as the South was that of sensual

delight. A turbulent and foggy ocean washed its shores. It was

girt round by a belt of granite rocks, or by wide tracts of sand.

The foliage of its woods was dark and gloomy, for they were

composed of firs, larches, evergreen oaks, wild olive-trees, and

laurels. Beyond this outer belt lay the thick shades of the

central forest, where the largest trees which are produced in the

two hemispheres grow side by side. The plane, the catalpa, the

sugar- maple, and the Virginian poplar mingled their branches

with those of the oak, the beech, and the lime. In these, as in

the forests of the Old World, destruction was perpetually going

on. The ruins of vegetation were heaped upon each other; but

there was no laboring hand to remove them, and their decay was

not rapid enough to make room for the continual work of

reproduction. Climbing plants, grasses, and other herbs forced

their way through the mass of dying trees; they crept along their

bending trunks, found nourishment in their dusty cavities, and a

passage beneath the lifeless bark. Thus decay gave its

assistance to life, and their respective productions were mingled

together. The depths of these forests were gloomy and obscure,

undirected in their course by human industry, preserved in them a

constant moisture. It was rare to meet with flowers, wild

fruits, or birds beneath their shades. The fall of a tree

overthrown by age, the rushing torrent of a cataract, the lowing

of the buffalo, and the howling of the wind were the only sounds

which broke the silence of nature.

To the east of the great river, the woods almost

disappeared; in their stead were seen prairies of immense extent.

Whether Nature in her infinite variety had denied the germs of

trees to these fertile plains, or whether they had once been

covered with forests, subsequently destroyed by the hand of man,

is a question which neither tradition nor scientific research has

been able to resolve.

These immense deserts were not, however, devoid of human

inhabitants. Some wandering tribes had been for ages scattered

among the forest shades or the green pastures of the prairie.

From the mouth of the St. Lawrence to the delta of the

Mississippi, and from the Atlantic to the Pacific Ocean, these

savages possessed certain points of resemblance which bore

witness of their common origin; but at the same time they

differed from all other known races of men: *g they were neither

white like the Europeans, nor yellow like most of the Asiatics,

nor black like the negroes. Their skin was reddish brown, their

hair long and shining, their lips thin, and their cheekbones very

prominent. The languages spoken by the North American tribes are

various as far as regarded their words, but they were subject to

the same grammatical rules. These rules differed in several

points from such as had been observed to govern the origin of

language. The idiom of the Americans seemed to be the product of

new combinations, and bespoke an effort of the understanding of

which the Indians of our days would be incapable. *h

[Footnote g: 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."]

[Footnote h: See Appendix, C.]

The social state of these tribes differed also in many

respects from all that was seen in the Old World. They seemed to

have multiplied freely in the midst of their deserts without

coming in contact with other races more civilized than their own.

Accordingly, they exhibited none of those indistinct, incoherent

notions of right and wrong, none of that deep corruption of

manners, which is usually joined with ignorance and rudeness

among nations which, after advancing to civilization, have

relapsed into a state of barbarism. The Indian was indebted to

no one but himself; his virtues, his vices, and his prejudices

were his own work; he had grown up in the wild independence of

his nature.

If, in polished countries, the lowest of the people are rude

and uncivil, it is not merely because they are poor and ignorant,

but that, being so, they are in daily contact with rich and

enlightened men. The sight of their own hard lot and of their

weakness, which is daily contrasted with the happiness and power

of some of their fellow-creatures, excites in their hearts at the

same time the sentiments of anger and of fear: the consciousness

of their inferiority and of their dependence irritates while it

humiliates them. This state of mind displays itself in their

manners and language; they are at once insolent and servile. The

truth of this is easily proved by observation; the people are

more rude in aristocratic countries than elsewhere, in opulent

cities than in rural districts. In those places where the rich

and powerful are assembled together the weak and the indigent

feel themselves oppressed by their inferior condition. Unable to

perceive a single chance of regaining their equality, they give

up to despair, and allow themselves to fall below the dignity of

human nature.

This unfortunate effect of the disparity of conditions is

not observable in savage life: the Indians, although they are

ignorant and poor, are equal and free. At the period when

Europeans first came among them the natives of North America were

ignorant of the value of riches, and indifferent to the

enjoyments which civilized man procures to himself by their

means. Nevertheless there was nothing coarse in their demeanor;

they practised an habitual reserve and a kind of aristocratic

politeness. Mild and hospitable when at peace, though merciless

in war beyond any known degree of human ferocity, the Indian

would expose himself to die of hunger in order to succor the

stranger who asked admittance by night at the door of his hut;

yet he could tear in pieces with his hands the still quivering

limbs of his prisoner. The famous republics of antiquity never

gave examples of more unshaken courage, more haughty spirits, or

more intractable love of independence than were hidden in former

times among the wild forests of the New World. *i The Europeans

produced no great impression when they landed upon the shores of

North America; their presence engendered neither envy nor fear.

What influence could they possess over such men as we have

described? The Indian could live without wants, suffer without

complaint, and pour out his death-song at the stake. *j Like all

the other members of the great human family, these savages

believed in the existence of a better world, and adored under

different names, God, the creator of the universe. Their notions

on the great intellectual truths were in general simple and

philosophical. *k

[Footnote i: 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.]

[Footnote j: 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.]

[Footnote k: See Appendix, D.]

Although we have here traced the character of a primitive

people, yet it cannot be doubted that another people, more

civilized and more advanced in all respects, had preceded it in

the same regions.

An obscure tradition which prevailed among the Indians to

the north of the Atlantic informs us that these very tribes

formerly dwelt on the west side of the Mississippi. Along the

banks of the Ohio, and throughout the central valley, there are

frequently found, at this day, tumuli raised by the hands of men.

On exploring these heaps of earth to their centre, it is usual to

meet with human bones, strange instruments, arms and utensils of

all kinds, made of metal, or destined for purposes unknown to the

present race. The Indians of our time are unable to give any

information relative to the history of this unknown people.

Neither did those who lived three hundred years ago, when America

was first discovered, leave any accounts from which even an

hypothesis could be formed. Tradition - that perishable, yet

ever renewed monument of the pristine world - throws no light

upon the subject. It is an undoubted fact, however, that in this

part of the globe thousands of our fellow-beings had lived. When

they came hither, what was their origin, their destiny, their

history, and how they perished, no one can tell. How strange does

it appear that nations have existed, and afterwards so completely

disappeared from the earth that the remembrance of their very

names is effaced; their languages are lost; their glory is

vanished like a sound without an echo; though perhaps there is

not one which has not left behind it some tomb in memory of its

passage! The most durable monument of human labor is that which

recalls the wretchedness and nothingness of man.

Although the vast country which we have been describing was

inhabited by many indigenous tribes, it may justly be said at the

time of its discovery by Europeans to have formed one great

desert. The Indians occupied without possessing it. It is by

agricultural labor that man appropriates the soil, and the early

inhabitants of North America lived by the produce of the chase.

Their implacable prejudices, their uncontrolled passions, their

vices, and still more perhaps their savage virtues, consigned

them to inevitable destruction. The ruin of these nations began

from the day when Europeans landed on their shores; it has

proceeded ever since, and we are now witnessing the completion of

it. They seem to have been placed by Providence amidst the

riches of the New World to enjoy them for a season, and then

surrender them. Those coasts, so admirably adapted for commerce

and industry; those wide and deep rivers; that inexhaustible

valley of the Mississippi; the whole continent, in short, seemed

prepared to be the abode of a great nation, yet unborn.

In that land the great experiment was to be made, by

civilized man, of the attempt to construct society upon a new

basis; and it was there, for the first time, that theories

hitherto unknown, or deemed impracticable, were to exhibit a

spectacle for which the world had not been prepared by the

history of the past.

 

Chapter I:
Exterior Form Of North America

Chapter Summary

North America divided into two vast regions, one inclining

towards the Pole, the other towards the Equator - Valley of the

Mississippi - Traces of the Revolutions of the Globe - Shore of

the Atlantic Ocean where the English Colonies were founded -

Difference in the appearance of North and of South America at the

time of their Discovery - Forests of North America - Prairies

-Wandering Tribes of Natives - Their outward appearance, manners,

and language - Traces of an unknown people.

Exterior Form Of North America

 

North America presents in its external form certain general

features which it is easy to discriminate at the first glance. A

sort of methodical order seems to have regulated the separation

of land and water, mountains and valleys. A simple, but grand,

arrangement is discoverable amidst the confusion of objects and

the prodigious variety of scenes. This continent is divided,

almost equally, into two vast regions, one of which is bounded on

the north by the Arctic Pole, and by the two great oceans on the

east and west. It stretches towards the south, forming a triangle

whose irregular sides meet at length below the great lakes of

Canada. The second region begins where the other terminates, and

includes all the remainder of the continent. The one slopes

gently towards the Pole, the other towards the Equator.

The territory comprehended in the first region descends

towards the north with so imperceptible a slope that it may

almost be said to form a level plain. Within the bounds of this

immense tract of country there are neither high mountains nor

deep valleys. Streams meander through it irregularly: great

rivers mix their currents, separate and meet again, disperse and

form vast marshes, losing all trace of their channels in the

labyrinth of waters they have themselves created; and thus, at

length, after innumerable windings, fall into the Polar Seas.

The great lakes which bound this first region are not walled in,

like most of those in the Old World, between hills and rocks.

Their banks are flat, and rise but a few feet above the level of

their waters; each of them thus forming a vast bowl filled to the

brim. The slightest change in the structure of the globe would

cause their waters to rush either towards the Pole or to the

tropical sea.

The second region is more varied on its surface, and better

suited for the habitation of man. Two long chains of mountains

divide it from one extreme to the other; the Alleghany ridge

takes the form of the shores of the Atlantic Ocean; the other is

parallel with the Pacific. The space which lies between these

two chains of mountains contains 1,341,649 square miles. *a Its

surface is therefore about six times as great as that of France.

This vast territory, however, forms a single valley, one side of

which descends gradually from the rounded summits of the

Alleghanies, while the other rises in an uninterrupted course

towards the tops of the Rocky Mountains. At the bottom of the

valley flows an immense river, into which the various streams

issuing from the mountains fall from all parts. In memory of

their native land, the French formerly called this river the St.

Louis. The Indians, in their pompous language, have named it the

Father of Waters, or the Mississippi.

[Footnote a: Darby's "View of the United States."]

The Mississippi takes its source above the limit of the two

great regions of which I have spoken, not far from the highest

point of the table-land where they unite. Near the same spot

rises another river, *b which empties itself into the Polar seas.

The course of the Mississippi is at first dubious: it winds

several times towards the north, from whence it rose; and at

length, after having been delayed in lakes and marshes, it flows

slowly onwards to the south. Sometimes quietly gliding along the

argillaceous bed which nature has assigned to it, sometimes

swollen by storms, the Mississippi waters 2,500 miles in its

course. *c At the distance of 1,364 miles from its mouth this

river attains an average depth of fifteen feet; and it is

navigated by vessels of 300 tons burden for a course of nearly

500 miles. Fifty-seven large navigable rivers contribute to

swell the waters of the Mississippi; amongst others, the

Missouri, which traverses a space of 2,500 miles; the Arkansas of

1,300 miles, the Red River 1,000 miles, four whose course is from

800 to 1,000 miles in length, viz., the Illinois, the St.

Peter's, the St. Francis, and the Moingona; besides a countless

multitude of rivulets which unite from all parts their tributary

streams.

[Footnote b: The Red River.]

[Footnote c: Warden's "Description of the United States."]

The valley which is watered by the Mississippi seems formed

to be the bed of this mighty river, which, like a god of

antiquity, dispenses both good and evil in its course. On the

shores of the stream nature displays an inexhaustible fertility;

in proportion as you recede from its banks, the powers of

vegetation languish, the soil becomes poor, and the plants that

survive have a sickly growth. Nowhere have the great convulsions

of the globe left more evident traces than in the valley of the

Mississippi; the whole aspect of the country shows the powerful

effects of water, both by its fertility and by its barrenness.

The waters of the primeval ocean accumulated enormous beds of

vegetable mould in the valley, which they levelled as they

retired. Upon the right shore of the river are seen immense

plains, as smooth as if the husbandman had passed over them with

his roller. As you approach the mountains the soil becomes more

and more unequal and sterile; the ground is, as it were, pierced

in a thousand places by primitive rocks, which appear like the

bones of a skeleton whose flesh is partly consumed. The surface

of the earth is covered with a granite sand and huge irregular

masses of stone, among which a few plants force their growth, and

give the appearance of a green field covered with the ruins of a

vast edifice. These stones and this sand discover, on

examination, a perfect analogy with those which compose the arid

and broken summits of the Rocky Mountains. The flood of waters

which washed the soil to the bottom of the valley afterwards

carried away portions of the rocks themselves; and these, dashed

and bruised against the neighboring cliffs, were left scattered

like wrecks at their feet. *d The valley of the Mississippi is,

upon the whole, the most magnificent dwelling-place prepared by

God for man's abode; and yet it may be said that at present it is

but a mighty desert.

[Footnote d: See Appendix, A.]

 

On the eastern side of the Alleghanies, between the base of

these mountains and the Atlantic Ocean, there lies a long ridge

of rocks and sand, which the sea appears to have left behind as

it retired. The mean breadth of this territory does not exceed

one hundred miles; but it is about nine hundred miles in length.

This part of the American continent has a soil which offers every

obstacle to the husbandman, and its vegetation is scanty and

unvaried.

Upon this inhospitable coast the first united efforts of

human industry were made. The tongue of arid land was the cradle

of those English colonies which were destined one day to become

the United States of America. The centre of power still remains

here; whilst in the backwoods the true elements of the great

people to whom the future control of the continent belongs are

gathering almost in secrecy together.

When the Europeans first landed on the shores of the West

Indies, and afterwards on the coast of South America, they

thought themselves transported into those fabulous regions of

which poets had sung. The sea sparkled with phosphoric light,

and the extraordinary transparency of its waters discovered to

the view of the navigator all that had hitherto been hidden in

the deep abyss. *e Here and there appeared little islands

perfumed with odoriferous plants, and resembling baskets of

flowers floating on the tranquil surface of the ocean. Every

object which met the sight, in this enchanting region, seemed

prepared to satisfy the wants or contribute to the pleasures of

man. Almost all the trees were loaded with nourishing fruits, and

those which were useless as food delighted the eye by the

brilliancy and variety of their colors. In groves of fragrant

lemon-trees, wild figs, flowering myrtles, acacias, and

oleanders, which were hung with festoons of various climbing

plants, covered with flowers, a multitude of birds unknown in

Europe displayed their bright plumage, glittering with purple and

azure, and mingled their warbling with the harmony of a world

teeming with life and motion. *f Underneath this brilliant

exterior death was concealed. But the air of these climates had

so enervating an influence that man, absorbed by present

enjoyment, was rendered regardless of the future.

[Footnote e: Malte Brun tells us (vol. v. p. 726) that the water

of the Caribbean Sea is so transparent that corals and fish are

discernible at a depth of sixty fathoms. The ship seemed to

float in air, the navigator became giddy as his eye penetrated

through the crystal flood, and beheld submarine gardens, or beds

of shells, or gilded fishes gliding among tufts and thickets of

seaweed.]

[Footnote f: See Appendix, B.]

North America appeared under a very different aspect; there

everything was grave, serious, and solemn: it seemed created to

be the domain of intelligence, as the South was that of sensual

delight. A turbulent and foggy ocean washed its shores. It was

girt round by a belt of granite rocks, or by wide tracts of sand.

The foliage of its woods was dark and gloomy, for they were

composed of firs, larches, evergreen oaks, wild olive-trees, and

laurels. Beyond this outer belt lay the thick shades of the

central forest, where the largest trees which are produced in the

two hemispheres grow side by side. The plane, the catalpa, the

sugar- maple, and the Virginian poplar mingled their branches

with those of the oak, the beech, and the lime. In these, as in

the forests of the Old World, destruction was perpetually going

on. The ruins of vegetation were heaped upon each other; but

there was no laboring hand to remove them, and their decay was

not rapid enough to make room for the continual work of

reproduction. Climbing plants, grasses, and other herbs forced

their way through the mass of dying trees; they crept along their

bending trunks, found nourishment in their dusty cavities, and a

passage beneath the lifeless bark. Thus decay gave its

assistance to life, and their respective productions were mingled

together. The depths of these forests were gloomy and obscure,

and a thousand rivulets, undirected in their course by human

industry, preserved in them a constant moisture. It was rare to

meet with flowers, wild fruits, or birds beneath their shades.

The fall of a tree overthrown by age, the rushing torrent of a

cataract, the lowing of the buffalo, and the howling of the wind

were the only sounds which broke the silence of nature.

To the east of the great river, the woods almost

disappeared; in their stead were seen prairies of immense extent.

Whether Nature in her infinite variety had denied the germs of

trees to these fertile plains, or whether they had once been

covered with forests, subsequently destroyed by the hand of man,

is a question which neither tradition nor scientific research has

been able to resolve.

These immense deserts were not, however, devoid of human

inhabitants. Some wandering tribes had been for ages scattered

among the forest shades or the green pastures of the prairie.

From the mouth of the St. Lawrence to the delta of the

Mississippi, and from the Atlantic to the Pacific Ocean, these

savages possessed certain points of resemblance which bore

witness of their common origin; but at the same time they

differed from all other known races of men: *g they were neither

white like the Europeans, nor yellow like most of the Asiatics,

nor black like the negroes. Their skin was reddish brown, their

hair long and shining, their lips thin, and their cheekbones very

prominent. The languages spoken by the North American tribes are

various as far as regarded their words, but they were subject to

the same grammatical rules. These rules differed in several

points from such as had been observed to govern the origin of

language. The idiom of the Americans seemed to be the product of

new combinations, and bespoke an effort of the understanding of

which the Indians of our days would be incapable. *h

[Footnote g: 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."]

[Footnote h: See Appendix, C.]

The social state of these tribes differed also in many

respects from all that was seen in the Old World. They seemed to

have multiplied freely in the midst of their deserts without

coming in contact with other races more civilized than their own.

Accordingly, they exhibited none of those indistinct, incoherent

notions of right and wrong, none of that deep corruption of

manners, which is usually joined with ignorance and rudeness

among nations which, after advancing to civilization, have

relapsed into a state of barbarism. The Indian was indebted to

no one but himself; his virtues, his vices, and his prejudices

were his own work; he had grown up in the wild independence of

his nature.

If, in polished countries, the lowest of the people are rude

and uncivil, it is not merely because they are poor and ignorant,

but that, being so, they are in daily contact with rich and

enlightened men. The sight of their own hard lot and of their

weakness, which is daily contrasted with the happiness and power

of some of their fellow-creatures, excites in their hearts at the

same time the sentiments of anger and of fear: the consciousness

of their inferiority and of their dependence irritates while it

humiliates them. This state of mind displays itself in their

manners and language; they are at once insolent and servile. The

truth of this is easily proved by observation; the people are

more rude in aristocratic countries than elsewhere, in opulent

cities than in rural districts. In those places where the rich

and powerful are assembled together the weak and the indigent

feel themselves oppressed by their inferior condition. Unable to

perceive a single chance of regaining their equality, they give

up to despair, and allow themselves to fall below the dignity of

human nature.

This unfortunate effect of the disparity of conditions is

not observable in savage life: the Indians, although they are

ignorant and poor, are equal and free. At the period when

Europeans first came among them the natives of North America were

ignorant of the value of riches, and indifferent to the

enjoyments which civilized man procures to himself by their

means. Nevertheless there was nothing coarse in their demeanor;

they practised an habitual reserve and a kind of aristocratic

politeness. Mild and hospitable when at peace, though merciless

in war beyond any known degree of human ferocity, the Indian

would expose himself to die of hunger in order to succor the

stranger who asked admittance by night at the door of his hut;

yet he could tear in pieces with his hands the still quivering

limbs of his prisoner. The famous republics of antiquity never

gave examples of more unshaken courage, more haughty spirits, or

more intractable love of independence than were hidden in former

times among the wild forests of the New World. *i The Europeans

produced no great impression when they landed upon the shores of

North America; their presence engendered neither envy nor fear.

What influence could they possess over such men as we have

described? The Indian could live without wants, suffer without

complaint, and pour out his death-song at the stake. *j Like all

the other members of the great human family, these savages

believed in the existence of a better world, and adored under

different names, God, the creator of the universe. Their notions

on the great intellectual truths were in general simple and

philosophical. *k

[Footnote i: 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.]

[Footnote j: 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.]

[Footnote k: See Appendix, D.]

Although we have here traced the character of a primitive

people, yet it cannot be doubted that another people, more

civilized and more advanced in all respects, had preceded it in

the same regions.

An obscure tradition which prevailed among the Indians to

the north of the Atlantic informs us that these very tribes

formerly dwelt on the west side of the Mississippi. Along the

banks of the Ohio, and throughout the central valley, there are

frequently found, at this day, tumuli raised by the hands of men.

On exploring these heaps of earth to their centre, it is usual to

meet with human bones, strange instruments, arms and utensils of

all kinds, made of metal, or destined for purposes unknown to the

present race. The Indians of our time are unable to give any

information relative to the history of this unknown people.

Neither did those who lived three hundred years ago, when America

was first discovered, leave any accounts from which even an

hypothesis could be formed. Tradition - that perishable, yet

ever renewed monument of the pristine world - throws no light

upon the subject. It is an undoubted fact, however, that in this

part of the globe thousands of our fellow-beings had lived. When

they came hither, what was their origin, their destiny, their

history, and how they perished, no one can tell. How strange does

it appear that nations have existed, and afterwards so completely

disappeared from the earth that the remembrance of their very

names is effaced; their languages are lost; their glory is

vanished like a sound without an echo; though perhaps there is

not one which has not left behind it some tomb in memory of its

passage! The most durable monument of human labor is that which

recalls the wretchedness and nothingness of man.

Although the vast country which we have been describing was

inhabited by many indigenous tribes, it may justly be said at the

time of its discovery by Europeans to have formed one great

desert. The Indians occupied without possessing it. It is by

agricultural labor that man appropriates the soil, and the early

inhabitants of North America lived by the produce of the chase.

Their implacable prejudices, their uncontrolled passions, their

vices, and still more perhaps their savage virtues, consigned

them to inevitable destruction. The ruin of these nations began

from the day when Europeans landed on their shores; it has

proceeded ever since, and we are now witnessing the completion of

it. They seem to have been placed by Providence amidst the

riches of the New World to enjoy them for a season, and then

surrender them. Those coasts, so admirably adapted for commerce

and industry; those wide and deep rivers; that inexhaustible

valley of the Mississippi; the whole continent, in short, seemed

prepared to be the abode of a great nation, yet unborn.

In that land the great experiment was to be made, by

civilized man, of the attempt to construct society upon a new

basis; and it was there, for the first time, that theories

hitherto unknown, or deemed impracticable, were to exhibit a

spectacle for which the world had not been prepared by the

history of the past.

 

Chapter II:
Origin Of The Anglo-Americans -
Part I

Chapter Summary

Utility of knowing the origin of nations in order to

understand their social condition and their laws - America the

only country in which the starting-point of a great people has

been clearly observable - In what respects all who emigrated to

British America were similar - In what they differed - Remark

applicable to all Europeans who established themselves on the

shores of the New World - Colonization of Virginia - Colonization

of New England - Original character of the first inhabitants of

New England - Their arrival - Their first laws - Their social

contract - Penal code borrowed from the Hebrew legislation -

Religious fervor -Republican spirit - Intimate union of the

spirit of religion with the spirit of liberty.

Origin Of The Anglo-Americans, And Its Importance In Relation To

Their Future Condition

After the birth of a human being his early years are

obscurely spent in the toils or pleasures of childhood. As he

grows up the world receives him, when his manhood begins, and he

enters into contact with his fellows. He is then studied for the

first time, and it is imagined that the germ of the vices and the

virtues of his maturer years is then formed. This, if I am not

mistaken, is a great error. We must begin higher up; we must

watch the infant in its mother's arms; we must see the first

images which the external world casts upon the dark mirror of his

mind; the first occurrences which he witnesses; we must hear the

first words which awaken the sleeping powers of thought, and

stand by his earliest efforts, if we would understand the

prejudices, the habits, and the passions which will rule his

life. The entire man is, so to speak, to be seen in the cradle

of the child.

The growth of nations presents something analogous to this:

they all bear some marks of their origin; and the circumstances

which accompanied their birth and contributed to their rise

affect the whole term of their being. If we were able to go back

to the elements of states, and to examine the oldest monuments of

their history, I doubt not that we should discover the primal

cause of the prejudices, the habits, the ruling passions, and, in

short, of all that constitutes what is called the national

character; we should then find the explanation of certain customs

which now seem at variance with the prevailing manners; of such

laws as conflict with established principles; and of such

incoherent opinions as are here and there to be met with in

society, like those fragments of broken chains which we sometimes

see hanging from the vault of an edifice, and supporting nothing.

This might explain the destinies of certain nations, which seem

borne on by an unknown force to ends of which they themselves are

ignorant. But hitherto facts have been wanting to researches of

this kind: the spirit of inquiry has only come upon communities

in their latter days; and when they at length contemplated their

origin, time had already obscured it, or ignorance and pride

adorned it with truth-concealing fables.

America is the only country in which it has been possible to

witness the natural and tranquil growth of society, and where the

influences exercised on the future condition of states by their

origin is clearly distinguishable. At the period when the peoples

of Europe landed in the New World their national characteristics

were already completely formed; each of them had a physiognomy of

its own; and as they had already attained that stage of

civilization at which men are led to study themselves, they have

transmitted to us a faithful picture of their opinions, their

manners, and their laws. The men of the sixteenth century are

almost as well known to us as our contemporaries. America,

consequently, exhibits in the broad light of day the phenomena

which the ignorance or rudeness of earlier ages conceals from our

researches. Near enough to the time when the states of America

were founded, to be accurately acquainted with their elements,

and sufficiently removed from that period to judge of some of

their results, the men of our own day seem destined to see

further than their predecessors into the series of human events.

Providence has given us a torch which our forefathers did not

possess, and has allowed us to discern fundamental causes in the

history of the world which the obscurity of the past concealed

from them. If we carefully examine the social and political

state of America, after having studied its history, we shall

remain perfectly convinced that not an opinion, not a custom, not

a law, I may even say not an event, is upon record which the

origin of that people will not explain. The readers of this book

will find the germ of all that is to follow in the present

chapter, and the key to almost the whole work.

The emigrants who came, at different periods to occupy the

territory now covered by the American Union differed from each

other in many respects; their aim was not the same, and they

governed themselves on different principles. These men had,

however, certain features in common, and they were all placed in

an analogous situation. The tie of language is perhaps the

strongest and the most durable that can unite mankind. All the

emigrants spoke the same tongue; they were all offsets from the

same people. Born in a country which had been agitated for

centuries by the struggles of faction, and in which all parties

had been obliged in their turn to place themselves under the

protection of the laws, their political education had been

perfected in this rude school, and they were more conversant with

the notions of right and the principles of true freedom than the

greater part of their European contemporaries. At the period of

their first emigrations the parish system, that fruitful germ of

free institutions, was deeply rooted in the habits of the

English; and with it the doctrine of the sovereignty of the

people had been introduced into the bosom of the monarchy of the

House of Tudor.

The religious quarrels which have agitated the Christian

world were then rife. England had plunged into the new order of

things with headlong vehemence. The character of its

inhabitants, which had always been sedate and reflective, became

argumentative and austere. General information had been

increased by intellectual debate, and the mind had received a

deeper cultivation. Whilst religion was the topic of discussion,

the morals of the people were reformed. All these national

features are more or less discoverable in the physiognomy of

those adventurers who came to seek a new home on the opposite

shores of the Atlantic.

Another remark, to which we shall hereafter have occasion to

recur, is applicable not only to the English, but to the French,

the Spaniards, and all the Europeans who successively established

themselves in the New World. All these European colonies

contained the elements, if not the development, of a complete

democracy. Two causes led to this result. It may safely be

advanced, that on leaving the mother-country the emigrants had in

general no notion of superiority over one another. The happy and

the powerful do not go into exile, and there are no surer

guarantees of equality among men than poverty and misfortune. It

happened, however, on several occasions, that persons of rank

were driven to America by political and religious quarrels. Laws

were made to establish a gradation of ranks; but it was soon

found that the soil of America was opposed to a territorial

aristocracy. To bring that refractory land into cultivation, the

constant and interested exertions of the owner himself were

necessary; and when the ground was prepared, its produce was

found to be insufficient to enrich a master and a farmer at the

same time. The land was then naturally broken up into small

portions, which the proprietor cultivated for himself. Land is

the basis of an aristocracy, which clings to the soil that

supports it; for it is not by privileges alone, nor by birth, but

by landed property handed down from generation to generation,

that an aristocracy is constituted. A nation may present immense

fortunes and extreme wretchedness, but unless those fortunes are

territorial there is no aristocracy, but simply the class of the

rich and that of the poor.

All the British colonies had then a great degree of

similarity at the epoch of their settlement. All of them, from

their first beginning, seemed destined to witness the growth, not

of the aristocratic liberty of their mother-country, but of that

freedom of the middle and lower orders of which the history of

the world had as yet furnished no complete example.

In this general uniformity several striking differences were

however discernible, which it is necessary to point out. Two

branches may be distinguished in the Anglo-American family, which

have hitherto grown up without entirely commingling; the one in

the South, the other in the North.

Virginia received the first English colony; the emigrants

took possession of it in 1607. The idea that mines of gold and

silver are the sources of national wealth was at that time

singularly prevalent in Europe; a fatal delusion, which has done

more to impoverish the nations which adopted it, and has cost

more lives in America, than the united influence of war and bad

laws. The men sent to Virginia *a were seekers of gold,

adventurers, without resources and without character, whose

turbulent and restless spirit endangered the infant colony, *b

and rendered its progress uncertain. The artisans and

agriculturists arrived afterwards; and, although they were a more

moral and orderly race of men, they were in nowise above the

level of the inferior classes in England. *c No lofty

conceptions, no intellectual system, directed the foundation of

these new settlements. The colony was scarcely established when

slavery was introduced, *d and this was the main circumstance

which has exercised so prodigious an influence on the character,

the laws, and all the future prospects of the South. Slavery, as

we shall afterwards show, dishonors labor; it introduces idleness

into society, and with idleness, ignorance and pride, luxury and

distress. It enervates the powers of the mind, and benumbs the

activity of man. The influence of slavery, united to the English

character, explains the manners and the social condition of the

Southern States.

[Footnote a: 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.]

[Footnote b: 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.]

[Footnote c: It was not till some time later that a certain

number of rich English capitalists came to fix themselves in the

colony.]

[Footnote d: Slavery was introduced about the year 1620 by a

Dutch vessel which landed twenty negroes on the banks of the

river James. See Chalmer.]

In the North, the same English foundation was modified by

the most opposite shades of character; and here I may be allowed

to enter into some details. The two or three main ideas which

constitute the basis of the social theory of the United States

were first combined in the Northern English colonies, more

generally denominated the States of New England. *e The

principles of New England spread at first to the neighboring

states; they then passed successively to the more distant ones;

and at length they imbued the whole Confederation. They now

extend their influence beyond its limits over the whole American

world. The civilization of New England has been like a beacon

lit upon a hill, which, after it has diffused its warmth around,

tinges the distant horizon with its glow.

[Footnote e: 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.]

The foundation of New England was a novel spectacle, and all

the circumstances attending it were singular and original. The

large majority of colonies have been first inhabited either by

men without education and without resources, driven by their

poverty and their misconduct from the land which gave them birth,

or by speculators and adventurers greedy of gain. Some

settlements cannot even boast so honorable an origin; St. Domingo

was founded by buccaneers; and the criminal courts of England

originally supplied the population of Australia.

The settlers who established themselves on the shores of New

England all belonged to the more independent classes of their

native country. Their union on the soil of America at once

presented the singular phenomenon of a society containing neither

lords nor common people, neither rich nor poor. These men

possessed, in proportion to their number, a greater mass of

intelligence than is to be found in any European nation of our

own time. All, without a single exception, had received a good

education, and many of them were known in Europe for their

talents and their acquirements. The other colonies had been

founded by adventurers without family; the emigrants of New

England brought with them the best elements of order and morality

-they landed in the desert accompanied by their wives and

children. But what most especially distinguished them was the

aim of their undertaking. They had not been obliged by necessity

to leave their country; the social position they abandoned was

one to be regretted, and their means of subsistence were certain.

Nor did they cross the Atlantic to improve their situation or to

increase their wealth; the call which summoned them from the

comforts of their homes was purely intellectual; and in facing

the inevitable sufferings of exile their object was the triumph

of an idea.

The emigrants, or, as they deservedly styled themselves, the

Pilgrims, belonged to that English sect the austerity of whose

principles had acquired for them the name of Puritans.

Puritanism was not merely a religious doctrine, but it

corresponded in many points with the most absolute democratic and

republican theories. It was this tendency which had aroused its

most dangerous adversaries. Persecuted by the Government of the

mother-country, and disgusted by the habits of a society opposed

to the rigor of their own principles, the Puritans went forth to

seek some rude and unfrequented part of the world, where they

could live according to their own opinions, and worship God in

freedom.

A few quotations will throw more light upon the spirit of

these pious adventures than all we can say of them. Nathaniel

Morton, *f the historian of the first years of the settlement,

thus opens his subject:

[Footnote f: "New England's Memorial," p. 13; Boston, 1826. See

also "Hutchinson's History," vol. ii. p. 440.]

"Gentle Reader, - I have for some length of time looked upon

it as a duty incumbent, especially on the immediate successors of

those that have had so large experience of those many memorable

and signal demonstrations of God's goodness, viz., the first

beginners of this Plantation in New England, to commit to writing

his gracious dispensations on that behalf; having so many

inducements thereunto, not onely otherwise but so plentifully in

the Sacred Scriptures: that so, what we have seen, and what our

fathers have told us (Psalm lxxviii. 3, 4), we may not hide from

our children, showing to the generations to come the praises of

the Lord; that especially the seed of Abraham his servant, and

the children of Jacob his chosen (Psalm cv. 5, 6), may remember

his marvellous works in the beginning and progress of the

planting of New England, his wonders and the judgments of his

mouth; how that God brought a vine into this wilderness; that he

cast out the heathen, and planted it; that he made room for it

and caused it to take deep root; and it filled the land (Psalm

lxxx. 8, 9). And not onely so, but also that he hath guided his

people by his strength to his holy habitation and planted them in

the mountain of his inheritance in respect of precious Gospel

enjoyments: and that as especially God may have the glory of all

unto whom it is most due; so also some rays of glory may reach

the names of those blessed Saints that were the main instruments

and the beginning of this happy enterprise."

It is impossible to read this opening paragraph without an

involuntary feeling of religious awe; it breathes the very savor

of Gospel antiquity. The sincerity of the author heightens his

power of language. The band which to his eyes was a mere party

of adventurers gone forth to seek their fortune beyond seas

appears to the reader as the germ of a great nation wafted by

Providence to a predestined shore.

The author thus continues his narrative of the departure of

the first pilgrims: -

"So they left that goodly and pleasant city of Leyden, *g

which had been their resting-place for above eleven years; but

they knew that they were pilgrims and strangers here below, and

looked not much on these things, but lifted up their eyes to

Heaven, their dearest country, where God hath prepared for them a

city (Heb. xi. 16), and therein quieted their spirits. When they

came to Delfs- Haven they found the ship and all things ready;

and such of their friends as could not come with them followed

after them, and sundry came from Amsterdam to see them shipt, and

to take their leaves of them. One night was spent with little

sleep with the most, but with friendly entertainment and

Christian discourse, and other real expressions of true Christian

love. The next day they went on board, and their friends with

them, where truly doleful was the sight of that sad and mournful

parting, to hear what sighs and sobs and prayers did sound

amongst them; what tears did gush from every eye, and pithy

speeches pierced each other's heart, that sundry of the Dutch

strangers that stood on the Key as spectators could not refrain

from tears. But the tide (which stays for no man) calling them

away, that were thus loth to depart, their Reverend Pastor

falling down on his knees, and they all with him, with watery

cheeks commended them with most fervent prayers unto the Lord and

his blessing; and then, with mutual embraces and many tears they

took their leaves one of another, which proved to be the last

leave to many of them."

[Footnote g: The emigrants were, for the most part, godly

Christians from the North of England, who had quitted their

native country because they were "studious of reformation, and

entered into covenant to walk with one another according to the

primitive pattern of the Word of God." They emigrated to Holland,

and settled in the city of Leyden in 1610, where they abode,

being lovingly respected by the Dutch, for many years: they left

it in 1620 for several reasons, the last of which was, that their

posterity would in a few generations become Dutch, and so lose

their interest in the English nation; they being desirous rather

to enlarge His Majesty's dominions, and to live under their

natural prince. - Translator's Note.]

The emigrants were about 150 in number, including the women

and the children. Their object was to plant a colony on the

shores of the Hudson; but after having been driven about for some

time in the Atlantic Ocean, they were forced to land on that arid

coast of New England which is now the site of the town of

Plymouth. The rock is still shown on which the pilgrims

disembarked. *h

[Footnote h: 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?]

"But before we pass on," continues our historian, "let the

reader with me make a pause and seriously consider this poor

people's present condition, the more to be raised up to

admiration of God's goodness towards them in their preservation:

for being now passed the vast ocean, and a sea of troubles before

them in expectation, they had now no friends to welcome them, no

inns to entertain or refresh them, no houses, or much less towns

to repair unto to seek for succour: and for the season it was

winter, and they that know the winters of the country know them

to be sharp and violent, subject to cruel and fierce storms,

dangerous to travel to known places, much more to search unknown

coasts. Besides, what could they see but a hideous and desolate

wilderness, full of wilde beasts, and wilde men? and what

multitudes of them there were, they then knew not: for which way

soever they turned their eyes (save upward to Heaven) they could

have but little solace or content in respect of any outward

object; for summer being ended, all things stand in appearance

with a weather-beaten face, and the whole country full of woods

and thickets, represented a wild and savage hew; if they looked

behind them, there was the mighty ocean which they had passed,

and was now as a main bar or gulph to separate them from all the

civil parts of the world."

It must not be imagined that the piety of the Puritans was

of a merely speculative kind, or that it took no cognizance of

the course of worldly affairs. Puritanism, as I have already

remarked, was scarcely less a political than a religious

doctrine. No sooner had the emigrants landed on the barren coast

described by Nathaniel Morton than it was their first care to

constitute a society, by passing the following Act:

"In the name of God. Amen. We, whose names are

underwritten, the loyal subjects of our dread Sovereign Lord King

James, etc., etc., Having undertaken for the glory of God, and

advancement of the Christian Faith, and the honour of our King

and country, a voyage to plant the first colony in the northern

parts of Virginia; Do by these presents solemnly and mutually, in

the presence of God and one another, covenant and combine

ourselves together into a civil body politick, for our better

ordering and preservation, and furtherance of the ends aforesaid:

and by virtue hereof do enact, constitute and frame such just and

equal laws, ordinances, acts, constitutions, and officers, from

time to time, as shall be thought most meet and convenient for

the general good of the Colony: unto which we promise all due

submission and obedience," etc. *i

[Footnote i: 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.]

This happened in 1620, and from that time forwards the

emigration went on. The religious and political passions which

ravaged the British Empire during the whole reign of Charles I

drove fresh crowds of sectarians every year to the shores of

America. In England the stronghold of Puritanism was in the

middle classes, and it was from the middle classes that the

majority of the emigrants came. The population of New England

increased rapidly; and whilst the hierarchy of rank despotically

classed the inhabitants of the mother-country, the colony

continued to present the novel spectacle of a community

homogeneous in all its parts. A democracy, more perfect than any

which antiquity had dreamt of, started in full size and panoply

from the midst of an ancient feudal society.

 

Chapter II:
Origin Of The Anglo-Americans -
Part II

The English Government was not dissatisfied with an

emigration which removed the elements of fresh discord and of

further revolutions. On the contrary, everything was done to

encourage it, and great exertions were made to mitigate the

hardships of those who sought a shelter from the rigor of their

country's laws on the soil of America. It seemed as if New

England was a region given up to the dreams of fancy and the

unrestrained experiments of innovators.

The English colonies (and this is one of the main causes of

their prosperity) have always enjoyed more internal freedom and

more political independence than the colonies of other nations;

but this principle of liberty was nowhere more extensively

applied than in the States of New England.

It was generally allowed at that period that the territories

of the New World belonged to that European nation which had been

the first to discover them. Nearly the whole coast of North

America thus became a British possession towards the end of the

sixteenth century. The means used by the English Government to

people these new domains were of several kinds; the King

sometimes appointed a governor of his own choice, who ruled a

portion of the New World in the name and under the immediate

orders of the Crown; *j this is the colonial system adopted by

other countries of Europe. Sometimes grants of certain tracts

were made by the Crown to an individual or to a company, *k in

which case all the civil and political power fell into the hands

of one or more persons, who, under the inspection and control of

the Crown, sold the lands and governed the inhabitants. Lastly,

a third system consisted in allowing a certain number of

emigrants to constitute a political society under the protection

of the mother-country, and to govern themselves in whatever was

not contrary to her laws. This mode of colonization, so

remarkably favorable to liberty, was only adopted in New England.

*l

[Footnote j: This was the case in the State of New York.]

[Footnote k: Maryland, the Carolinas, Pennsylvania, and New

Jersey were in this situation. See "Pitkin's History," vol. i.

pp. 11-31.]

[Footnote l: 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.]

In 1628 *m a charter of this kind was granted by Charles I

to the emigrants who went to form the colony of Massachusetts.

But, in general, charters were not given to the colonies of New

England till they had acquired a certain existence. Plymouth,

Providence, New Haven, the State of Connecticut, and that of

Rhode Island *n were founded without the co-operation and almost

without the knowledge of the mother-country. The new settlers

did not derive their incorporation from the seat of the empire,

although they did not deny its supremacy; they constituted a

society of their own accord, and it was not till thirty or forty

years afterwards, under Charles II. that their existence was

legally recognized by a royal charter.

[Footnote m: See "Pitkin's History," p, 35. See the "History of

the Colony of Massachusetts Bay," by Hutchinson, vol. i. p. 9.]

[Footnote n: See "Pitkin's History," pp. 42, 47.]

This frequently renders its it difficult to detect the link

which connected the emigrants with the land of their forefathers

in studying the earliest historical and legislative records of

New England. They exercised the rights of sovereignty; they

named their magistrates, concluded peace or declared war, made

police regulations, and enacted laws as if their allegiance was

due only to God. *o Nothing can be more curious and, at the same

time more instructive, than the legislation of that period; it is

there that the solution of the great social problem which the

United States now present to the world is to be found.

[Footnote o: 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.]

Amongst these documents we shall notice, as especially

characteristic, the code of laws promulgated by the little State

of Connecticut in 1650. *p The legislators of Connecticut *q

begin with the penal laws, and, strange to say, they borrow their

provisions from the text of Holy Writ. "Whosoever shall worship

any other God than the Lord," says the preamble of the Code,

"shall surely be put to death." This is followed by ten or twelve

enactments of the same kind, copied verbatim from the books of

Exodus, Leviticus, and Deuteronomy. Blasphemy, sorcery,

adultery, *r and rape were punished with death; an outrage

offered by a son to his parents was to be expiated by the same

penalty. The legislation of a rude and half-civilized people was

thus applied to an enlightened and moral community. The

consequence was that the punishment of death was never more

frequently prescribed by the statute, and never more rarely

enforced towards the guilty.

[Footnote p: Code of 1650, p. 28; Hartford, 1830.]

[Footnote q: 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.]

[Footnote r: 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.]

The chief care of the legislators, in this body of penal

laws, was the maintenance of orderly conduct and good morals in

the community: they constantly invaded the domain of conscience,

and there was scarcely a sin which was not subject to magisterial

censure. The reader is aware of the rigor with which these laws

punished rape and adultery; intercourse between unmarried persons

was likewise severely repressed. The judge was empowered to

inflict a pecuniary penalty, a whipping, or marriage *s on the

misdemeanants; and if the records of the old courts of New Haven

may be believed, prosecutions of this kind were not unfrequent.

We find a sentence bearing date the first of May, 1660,

inflicting a fine and reprimand on a young woman who was accused

of using improper language, and of allowing herself to be kissed.

*t The Code of 1650 abounds in preventive measures. It punishes

idleness and drunkenness with severity. *u Innkeepers are

forbidden to furnish more than a certain quantity of liquor to

each consumer; and simple lying, whenever it may be injurious, *v

is checked by a fine or a flogging. In other places, the

legislator, entirely forgetting the great principles of religious

toleration which he had himself upheld in Europe, renders

attendance on divine service compulsory, *w and goes so far as to

visit with severe punishment, ** and even with death, the

Christians who chose to worship God according to a ritual

differing from his own. *x Sometimes indeed the zeal of his

enactments induces him to descend to the most frivolous

particulars: thus a law is to be found in the same Code which

prohibits the use of tobacco. *y It must not be forgotten that

these fantastical and vexatious laws were not imposed by

authority, but that they were freely voted by all the persons

interested, and that the manners of the community were even more

austere and more puritanical than the laws. In 1649 a solemn

association was formed in Boston to check the worldly luxury of

long hair. *z

[Footnote s: 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.]

[Footnote t: "New Haven Antiquities," p. 104. See also

"Hutchinson's History," for several causes equally

extraordinary.]

[Footnote u: Code of 1650, pp. 50, 57.]

[Footnote v: Ibid., p. 64.]

[Footnote w: Ibid., p. 44.]

[Footnote *: 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.]

[Footnote x: 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.]

[Footnote y: Code of 1650, p. 96.]

[Footnote z: "New England's Memorial," p. 316. See Appendix, E.]

These errors are no doubt discreditable to human reason;

they attest the inferiority of our nature, which is incapable of

laying firm hold upon what is true and just, and is often reduced

to the alternative of two excesses. In strict connection with

this penal legislation, which bears such striking marks of a

narrow sectarian spirit, and of those religious passions which

had been warmed by persecution and were still fermenting among

the people, a body of political laws is to be found, which,

though written two hundred years ago, is still ahead of the

liberties of our age. The general principles which are the

groundwork of modern constitutions - principles which were

imperfectly known in Europe, and not completely triumphant even

in Great Britain, in the seventeenth century - were all

recognized and determined by the laws of New England: the

intervention of the people in public affairs, the free voting of

taxes, the responsibility of authorities, personal liberty, and

trial by jury, were all positively established without

discussion. From these fruitful principles consequences have

been derived and applications have been made such as no nation in

Europe has yet ventured to attempt.

In Connecticut the electoral body consisted, from its

origin, of the whole number of citizens; and this is readily to

be understood, *a when we recollect that this people enjoyed an

almost perfect equality of fortune, and a still greater

uniformity of opinions. *b In Connecticut, at this period, all

the executive functionaries were elected, including the Governor

of the State. *c The citizens above the age of sixteen were

obliged to bear arms; they formed a national militia, which

appointed its own officers, and was to hold itself at all times

in readiness to march for the defence of the country. *d

[Footnote a: Constitution of 1638, p. 17.]

[Footnote b: 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.]

[Footnote c: "Pitkin's History," p. 47.]

[Footnote d: Constitution of 1638, p. 12.]

In the laws of Connecticut, as well as in all those of New

England, we find the germ and gradual development of that

township independence which is the life and mainspring of

American liberty at the present day. The political existence of

the majority of the nations of Europe commenced in the superior

ranks of society, and was gradually and imperfectly communicated

to the different members of the social body. In America, on the

other hand, it may be said that the township was organized before

the county, the county before the State, the State before the

Union. In New England townships were completely and definitively

constituted as early as 1650. The independence of the township

was the nucleus round which the local interests, passions,

rights, and duties collected and clung. It gave scope to the

activity of a real political life most thoroughly democratic and

republican. The colonies still recognized the supremacy of the

mother-country; monarchy was still the law of the State; but the

republic was already established in every township. The towns

named their own magistrates of every kind, rated themselves, and

levied their own taxes. *e In the parish of New England the law

of representation was not adopted, but the affairs of the

community were discussed, as at Athens, in the market-place, by a

general assembly of the citizens.

[Footnote e: Code of 1650, p. 80.]

In studying the laws which were promulgated at this first

era of the American republics, it is impossible not to be struck

by the remarkable acquaintance with the science of government and

the advanced theory of legislation which they display. The ideas

there formed of the duties of society towards its members are

evidently much loftier and more comprehensive than those of the

European legislators at that time: obligations were there imposed

which were elsewhere slighted. In the States of New England,

from the first, the condition of the poor was provided for; *f

strict measures were taken for the maintenance of roads, and

surveyors were appointed to attend to them; *g registers were

established in every parish, in which the results of public

deliberations, and the births, deaths, and marriages of the

citizens were entered; *h clerks were directed to keep these

registers; *i officers were charged with the administration of

vacant inheritances, and with the arbitration of litigated

landmarks; and many others were created whose chief functions

were the maintenance of public order in the community. *j The law

enters into a thousand useful provisions for a number of social

wants which are at present very inadequately felt in France.

[Footnote f: Ibid., p. 78.]

[Footnote g: Ibid., p. 49.]

[Footnote h: See "Hutchinson's History," vol. i. p. 455.]

[Footnote i: Code of 1650, p. 86.]

[Footnote j: Ibid., p. 40.]

But it is by the attention it pays to Public Education that

the original character of American civilization is at once placed

in the clearest light. "It being," says the law, "one chief

project of Satan to keep men from the knowledge of the Scripture

by persuading from the use of tongues, to the end that learning

may not be buried in the graves of our forefathers, in church and

commonwealth, the Lord assisting our endeavors. . . ." *k Here

follow clauses establishing schools in every township, and

obliging the inhabitants, under pain of heavy fines, to support

them. Schools of a superior kind were founded in the same manner

in the more populous districts. The municipal authorities were

bound to enforce the sending of children to school by their

parents; they were empowered to inflict fines upon all who

refused compliance; and in case of continued resistance society

assumed the place of the parent, took possession of the child,

and deprived the father of those natural rights which he used to

so bad a purpose. The reader will undoubtedly have remarked the

preamble of these enactments: in America religion is the road to

knowledge, and the observance of the divine laws leads man to

civil freedom.

[Footnote k: Ibid., p. 90.]

If, after having cast a rapid glance over the state of

American society in 1650, we turn to the condition of Europe, and

more especially to that of the Continent, at the same period, we

cannot fail to be struck with astonishment. On the Continent of

Europe, at the beginning of the seventeenth century, absolute

monarchy had everywhere triumphed over the ruins of the

oligarchical and feudal liberties of the Middle Ages. Never were

the notions of right more completely confounded than in the midst

of the splendor and literature of Europe; never was there less

political activity among the people; never were the principles of

true freedom less widely circulated; and at that very time those

principles, which were scorned or unknown by the nations of

Europe, were proclaimed in the deserts of the New World, and were

accepted as the future creed of a great people. The boldest

theories of the human reason were put into practice by a

community so humble that not a statesman condescended to attend

to it; and a legislation without a precedent was produced offhand

by the imagination of the citizens. In the bosom of this obscure

democracy, which had as yet brought forth neither generals, nor

philosophers, nor authors, a man might stand up in the face of a

free people and pronounce the following fine definition of

liberty. *l

[Footnote l: 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.]

"Nor would I have you to mistake in the point of your own

liberty. There is a liberty of a corrupt nature which is effected

both by men and beasts to do what they list, and this liberty is

inconsistent with authority, impatient of all restraint; by this

liberty 'sumus omnes deteriores': 'tis the grand enemy of truth

and peace, and all the ordinances of God are bent against it. But

there is a civil, a moral, a federal liberty which is the proper

end and object of authority; it is a liberty for that only which

is just and good: for this liberty you are to stand with the

hazard of your very lives and whatsoever crosses it is not

authority, but a distemper thereof. This liberty is maintained in

a way of subjection to authority; and the authority set over you

will, in all administrations for your good, be quietly submitted

unto by all but such as have a disposition to shake off the yoke

and lose their true liberty, by their murmuring at the honor and

power of authority."

The remarks I have made will suffice to display the

character of Anglo-American civilization in its true light. It

is the result (and this should be constantly present to the mind

of two distinct elements, which in other places have been in

frequent hostility, but which in America have been admirably

incorporated and combined with one another. I allude to the

spirit of Religion and the spirit of Liberty.

The settlers of New England were at the same time ardent

sectarians and daring innovators. Narrow as the limits of some

of their religious opinions were, they were entirely free from

political prejudices. Hence arose two tendencies, distinct but

not opposite, which are constantly discernible in the manners as

well as in the laws of the country.

It might be imagined that men who sacrificed their friends,

their family, and their native land to a religious conviction

were absorbed in the pursuit of the intellectual advantages which

they purchased at so dear a rate. The energy, however, with

which they strove for the acquirement of wealth, moral enjoyment,

and the comforts as well as liberties of the world, is scarcely

inferior to that with which they devoted themselves to Heaven.

Political principles and all human laws and institutions

were moulded and altered at their pleasure; the barriers of the

society in which they were born were broken down before them; the

old principles which had governed the world for ages were no

more; a path without a turn and a field without an horizon were

opened to the exploring and ardent curiosity of man: but at the

limits of the political world he checks his researches, he

discreetly lays aside the use of his most formidable faculties,

he no longer consents to doubt or to innovate, but carefully

abstaining from raising the curtain of the sanctuary, he yields

with submissive respect to truths which he will not discuss.

Thus, in the moral world everything is classed, adapted, decided,

and foreseen; in the political world everything is agitated,

uncertain, and disputed: in the one is a passive, though a

voluntary, obedience; in the other an independence scornful of

experience and jealous of authority.

These two tendencies, apparently so discrepant, are far from

conflicting; they advance together, and mutually support each

other. Religion perceives that civil liberty affords a noble

exercise to the faculties of man, and that the political world is

a field prepared by the Creator for the efforts of the

intelligence. Contented with the freedom and the power which it

enjoys in its own sphere, and with the place which it occupies,

the empire of religion is never more surely established than when

it reigns in the hearts of men unsupported by aught beside its

native strength. Religion is no less the companion of liberty in

all its battles and its triumphs; the cradle of its infancy, and

the divine source of its claims. The safeguard of morality is

religion, and morality is the best security of law and the surest

pledge of freedom. *m

[Footnote m: See Appendix, F.]

Reasons Of Certain Anomalies
Which The Laws And Customs
Of The Anglo-Americans Present

Remains of aristocratic institutions in the midst of a complete

democracy -Why? - Distinction carefully to be drawn between what

is of Puritanical and what is of English origin.

The reader is cautioned not to draw too general or too

absolute an inference from what has been said. The social

condition, the religion, and the manners of the first emigrants

undoubtedly exercised an immense influence on the destiny of

their new country. Nevertheless they were not in a situation to

found a state of things solely dependent on themselves: no man

can entirely shake off the influence of the past, and the

settlers, intentionally or involuntarily, mingled habits and

notions derived from their education and from the traditions of

their country with those habits and notions which were

exclusively their own. To form a judgment on the Anglo-Americans

of the present day it is therefore necessary to distinguish what

is of Puritanical and what is of English origin.

Laws and customs are frequently to be met with in the United

States which contrast strongly with all that surrounds them.

These laws seem to be drawn up in a spirit contrary to the

prevailing tenor of the American legislation; and these customs

are no less opposed to the tone of society. If the English

colonies had been founded in an age of darkness, or if their

origin was already lost in the lapse of years, the problem would

be insoluble.

I shall quote a single example to illustrate what I advance.

The civil and criminal procedure of the Americans has only two

means of action -committal and bail. The first measure taken by

the magistrate is to exact security from the defendant, or, in

case of refusal, to incarcerate him: the ground of the accusation

and the importance of the charges against him are then discussed.

It is evident that a legislation of this kind is hostile to the

poor man, and favorable only to the rich. The poor man has not

always a security to produce, even in a civil cause; and if he is

obliged to wait for justice in prison, he is speedily reduced to

distress. The wealthy individual, on the contrary, always

escapes imprisonment in civil causes; nay, more, he may readily

elude the punishment which awaits him for a delinquency by

breaking his bail. So that all the penalties of the law are, for

him, reducible to fines. *n Nothing can be more aristocratic than

this system of legislation. Yet in America it is the poor who

make the law, and they usually reserve the greatest social

advantages to themselves. The explanation of the phenomenon is

to be found in England; the laws of which I speak are English, *o

and the Americans have retained them, however repugnant they may

be to the tenor of their legislation and the mass of their ideas.

Next to its habits, the thing which a nation is least apt to

change is its civil legislation. Civil laws are only familiarly

known to legal men, whose direct interest it is to maintain them

as they are, whether good or bad, simply because they themselves

are conversant with them. The body of the nation is scarcely

acquainted with them; it merely perceives their action in

particular cases; but it has some difficulty in seizing their

tendency, and obeys them without premeditation. I have quoted

one instance where it would have been easy to adduce a great

number of others. The surface of American society is, if I may

use the expression, covered with a layer of democracy, from

beneath which the old aristocratic colors sometimes peep.

[Footnote n: Crimes no doubt exist for which bail is

inadmissible, but they are few in number.]

[Footnote o: See Blackstone; and Delolme, book I chap. x.]

Chapter III: Social Conditions Of The Anglo-Americans

Chapter Summary

A Social condition is commonly the result of circumstances,

sometimes of laws, oftener still of these two causes united; but

wherever it exists, it may justly be considered as the source of

almost all the laws, the usages, and the ideas which regulate the

conduct of nations; whatever it does not produce it modifies. It

is therefore necessary, if we would become acquainted with the

legislation and the manners of a nation, to begin by the study of

its social condition.

The Striking Characteristic Of
The Social Condition Of The Anglo-
Americans In Its Essential Democracy

The first emigrants of New England - Their equality -

Aristocratic laws introduced in the South - Period of the

Revolution - Change in the law of descent - Effects produced by

this change - Democracy carried to its utmost limits in the new

States of the West - Equality of education.

Many important observations suggest themselves upon the

social condition of the Anglo-Americans, but there is one which

takes precedence of all the rest. The social condition of the

Americans is eminently democratic; this was its character at the

foundation of the Colonies, and is still more strongly marked at

the present day. I have stated in the preceding chapter that

great equality existed among the emigrants who settled on the

shores of New England. The germ of aristocracy was never planted

in that part of the Union. The only influence which obtained

there was that of intellect; the people were used to reverence

certain names as the emblems of knowledge and virtue. Some of

their fellow-citizens acquired a power over the rest which might

truly have been called aristocratic, if it had been capable of

transmission from father to son.

This was the state of things to the east of the Hudson: to

the south-west of that river, and in the direction of the

Floridas, the case was different. In most of the States situated

to the south- west of the Hudson some great English proprietors

had settled, who had imported with them aristocratic principles

and the English law of descent. I have explained the reasons why

it was impossible ever to establish a powerful aristocracy in

America; these reasons existed with less force to the south-west

of the Hudson. In the South, one man, aided by slaves, could

cultivate a great extent of country: it was therefore common to

see rich landed proprietors. But their influence was not

altogether aristocratic as that term is understood in Europe,

since they possessed no privileges; and the cultivation of their

estates being carried on by slaves, they had no tenants depending

on them, and consequently no patronage. Still, the great

proprietors south of the Hudson constituted a superior class,

having ideas and tastes of its own, and forming the centre of

political action. This kind of aristocracy sympathized with the

body of the people, whose passions and interests it easily

embraced; but it was too weak and too short-lived to excite

either love or hatred for itself. This was the class which

headed the insurrection in the South, and furnished the best

leaders of the American revolution.

At the period of which we are now speaking society was

shaken to its centre: the people, in whose name the struggle had

taken place, conceived the desire of exercising the authority

which it had acquired; its democratic tendencies were awakened;

and having thrown off the yoke of the mother-country, it aspired

to independence of every kind. The influence of individuals

gradually ceased to be felt, and custom and law united together

to produce the same result.

But the law of descent was the last step to equality. I am

surprised that ancient and modern jurists have not attributed to

this law a greater influence on human affairs. *a It is true that

these laws belong to civil affairs; but they ought nevertheless

to be placed at the head of all political institutions; for,

whilst political laws are only the symbol of a nation's

condition, they exercise an incredible influence upon its social

state. They have, moreover, a sure and uniform manner of

operating upon society, affecting, as it were, generations yet

unborn.

[Footnote a: 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.]

Through their means man acquires a kind of preternatural

power over the future lot of his fellow-creatures. When the

legislator has regulated the law of inheritance, he may rest from

his labor. The machine once put in motion will go on for ages,

and advance, as if self-guided, towards a given point. When

framed in a particular manner, this law unites, draws together,

and vests property and power in a few hands: its tendency is

clearly aristocratic. On opposite principles its action is still

more rapid; it divides, distributes, and disperses both property

and power. Alarmed by the rapidity of its progress, those who

despair of arresting its motion endeavor to obstruct it by

difficulties and impediments; they vainly seek to counteract its

effect by contrary efforts; but it gradually reduces or destroys

every obstacle, until by its incessant activity the bulwarks of

the influence of wealth are ground down to the fine and shifting

sand which is the basis of democracy. When the law of

inheritance permits, still more when it decrees, the equal

division of a father's property amongst all his children, its

effects are of two kinds: it is important to distinguish them

from each other, although they tend to the same end.

In virtue of the law of partible inheritance, the death of

every proprietor brings about a kind of revolution in property;

not only do his possessions change hands, but their very nature

is altered, since they are parcelled into shares, which become

smaller and smaller at each division. This is the direct and, as

it were, the physical effect of the law. It follows, then, that

in countries where equality of inheritance is established by law,

property, and especially landed property, must have a tendency to

perpetual diminution. The effects, however, of such legislation

would only be perceptible after a lapse of time, if the law was

abandoned to its own working; for supposing the family to consist

of two children (and in a country people as France is the average

number is not above three), these children, sharing amongst them

the fortune of both parents, would not be poorer than their

father or mother.

But the law of equal division exercises its influence not

merely upon the property itself, but it affects the minds of the

heirs, and brings their passions into play. These indirect

consequences tend powerfully to the destruction of large

fortunes, and especially of large domains. Among nations whose

law of descent is founded upon the right of primogeniture landed

estates often pass from generation to generation without

undergoing division, the consequence of which is that family

feeling is to a certain degree incorporated with the estate. The

family represents the estate, the estate the family; whose name,

together with its origin, its glory, its power, and its virtues,

is thus perpetuated in an imperishable memorial of the past and a

sure pledge of the future.

When the equal partition of property is established by law,

the intimate connection is destroyed between family feeling and

the preservation of the paternal estate; the property ceases to

represent the family; for as it must inevitably be divided after

one or two generations, it has evidently a constant tendency to

diminish, and must in the end be completely dispersed. The sons

of the great landed proprietor, if they are few in number, or if

fortune befriends them, may indeed entertain the hope of being as

wealthy as their father, but not that of possessing the same

property as he did; the riches must necessarily be composed of

elements different from his.

Now, from the moment that you divest the landowner of that

interest in the preservation of his estate which he derives from

association, from tradition, and from family pride, you may be

certain that sooner or later he will dispose of it; for there is

a strong pecuniary interest in favor of selling, as floating

capital produces higher interest than real property, and is more

readily available to gratify the passions of the moment.

Great landed estates which have once been divided never come

together again; for the small proprietor draws from his land a

better revenue, in proportion, than the large owner does from

his, and of course he sells it at a higher rate. *b The

calculations of gain, therefore, which decide the rich man to

sell his domain will still more powerfully influence him against

buying small estates to unite them into a large one.

[Footnote b: 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.]

What is called family pride is often founded upon an

illusion of self-love. A man wishes to perpetuate and

immortalize himself, as it were, in his great-grandchildren.

Where the esprit de famille ceases to act individual selfishness

comes into play. When the idea of family becomes vague,

indeterminate, and uncertain, a man thinks of his present

convenience; he provides for the establishment of his succeeding

generation, and no more. Either a man gives up the idea of

perpetuating his family, or at any rate he seeks to accomplish it

by other means than that of a landed estate. Thus not only does

the law of partible inheritance render it difficult for families

to preserve their ancestral domains entire, but it deprives them

of the inclination to attempt it, and compels them in some

measure to co-operate with the law in their own extinction.

The law of equal distribution proceeds by two methods: by

acting upon things, it acts upon persons; by influencing persons,

it affects things. By these means the law succeeds in striking

at the root of landed property, and dispersing rapidly both

families and fortunes. *c

[Footnote c: 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.]

Most certainly it is not for us Frenchmen of the nineteenth

century, who daily witness the political and social changes which

the law of partition is bringing to pass, to question its

influence. It is perpetually conspicuous in our country,

overthrowing the walls of our dwellings and removing the

landmarks of our fields. But although it has produced great

effects in France, much still remains for it to do. Our

recollections, opinions, and habits present powerful obstacles to

its progress.

In the United States it has nearly completed its work of

destruction, and there we can best study its results. The

English laws concerning the transmission of property were

abolished in almost all the States at the time of the Revolution.

The law of entail was so modified as not to interrupt the free

circulation of property. *d The first generation having passed

away, estates began to be parcelled out, and the change became

more and more rapid with the progress of time. At this moment,

after a lapse of a little more than sixty years, the aspect of

society is totally altered; the families of the great landed

proprietors are almost all commingled with the general mass. In

the State of New York, which formerly contained many of these,

there are but two who still keep their heads above the stream,

and they must shortly disappear. The sons of these opulent

citizens are become merchants, lawyers, or physicians. Most of

them have lapsed into obscurity. The last trace of hereditary

ranks and distinctions is destroyed - the law of partition has

reduced all to one level. [Footnote d: See Appendix, G.]

I do not mean that there is any deficiency of wealthy

individuals in the United States; I know of no country, indeed,

where the love of money has taken stronger hold on the affections

of men, and where the profounder contempt is expressed for the

theory of the permanent equality of property. But wealth

circulates with inconceivable rapidity, and experience shows that

it is rare to find two succeeding generations in the full

enjoyment of it.

This picture, which may perhaps be thought to be

overcharged, still gives a very imperfect idea of what is taking

place in the new States of the West and South-west. At the end

of the last century a few bold adventurers began to penetrate

into the valleys of the Mississippi, and the mass of the

population very soon began to move in that direction: communities

unheard of till then were seen to emerge from the wilds: States

whose names were not in existence a few years before claimed

their place in the American Union; and in the Western settlements

we may behold democracy arrived at its utmost extreme. In these

States, founded off-hand, and, as it were, by chance, the

inhabitants are but of yesterday. Scarcely known to one another,

the nearest neighbors are ignorant of each other's history. In

this part of the American continent, therefore, the population

has not experienced the influence of great names and great

wealth, nor even that of the natural aristocracy of knowledge and

virtue. None are there to wield that respectable power which men

willingly grant to the remembrance of a life spent in doing good

before their eyes. The new States of the West are already

inhabited, but society has no existence among them. *e

[Footnote e: This may have been true in 1832, but is not so in

1874, when great cities like Chicago and San Francisco have

sprung up in the Western States. But as yet the Western States

exert no powerful influence on American society. - Translator's

Note.]

It is not only the fortunes of men which are equal in

America; even their requirements partake in some degree of the

same uniformity. I do not believe that there is a country in the

world where, in proportion to the population, there are so few

uninstructed and at the same time so few learned individuals.

Primary instruction is within the reach of everybody; superior

instruction is scarcely to be obtained by any. This is not

surprising; it is in fact the necessary consequence of what we

have advanced above. Almost all the Americans are in easy

circumstances, and can therefore obtain the first elements of

human knowledge.

In America there are comparatively few who are rich enough

to live without a profession. Every profession requires an

apprenticeship, which limits the time of instruction to the early

years of life. At fifteen they enter upon their calling, and

thus their education ends at the age when ours begins. Whatever

is done afterwards is with a view to some special and lucrative

object; a science is taken up as a matter of business, and the

only branch of it which is attended to is such as admits of an

immediate practical application. In America most of the rich men

were formerly poor; most of those who now enjoy leisure were

absorbed in business during their youth; the consequence of which

is, that when they might have had a taste for study they had no

time for it, and when time is at their disposal they have no

longer the inclination.

There is no class, then, in America, in which the taste for

intellectual pleasures is transmitted with hereditary fortune and

leisure, and by which the labors of the intellect are held in

honor. Accordingly there is an equal want of the desire and the

power of application to these objects.

A middle standard is fixed in America for human knowledge.

All approach as near to it as they can; some as they rise, others

as they descend. Of course, an immense multitude of persons are

to be found who entertain the same number of ideas on religion,

history, science, political economy, legislation, and government.

The gifts of intellect proceed directly from God, and man cannot

prevent their unequal distribution. But in consequence of the

state of things which we have here represented it happens that,

although the capacities of men are widely different, as the

Creator has doubtless intended they should be, they are submitted

to the same method of treatment.

In America the aristocratic element has always been feeble

from its birth; and if at the present day it is not actually

destroyed, it is at any rate so completely disabled that we can

scarcely assign to it any degree of influence in the course of

affairs. The democratic principle, on the contrary, has gained

so much strength by time, by events, and by legislation, as to

have become not only predominant but all-powerful. There is no

family or corporate authority, and it is rare to find even the

influence of individual character enjoy any durability.

America, then, exhibits in her social state a most

extraordinary phenomenon. Men are there seen on a greater

equality in point of fortune and intellect, or, in other words,

more equal in their strength, than in any other country of the

world, or in any age of which history has preserved the

remembrance.

Political Consequences Of The Social Condition Of The Anglo-

Americans

The political consequences of such a social condition as

this are easily deducible. It is impossible to believe that

equality will not eventually find its way into the political

world as it does everywhere else. To conceive of men remaining

forever unequal upon one single point, yet equal on all others,

is impossible; they must come in the end to be equal upon all.

Now I know of only two methods of establishing equality in the

political world; every citizen must be put in possession of his

rights, or rights must be granted to no one. For nations which

are arrived at the same stage of social existence as the

Anglo-Americans, it is therefore very difficult to discover a

medium between the sovereignty of all and the absolute power of

one man: and it would be vain to deny that the social condition

which I have been describing is equally liable to each of these

consequences.

There is, in fact, a manly and lawful passion for equality

which excites men to wish all to be powerful and honored. This

passion tends to elevate the humble to the rank of the great; but

there exists also in the human heart a depraved taste for

equality, which impels the weak to attempt to lower the powerful

to their own level, and reduces men to prefer equality in slavery

to inequality with freedom. Not that those nations whose social

condition is democratic naturally despise liberty; on the

contrary, they have an instinctive love of it. But liberty is

not the chief and constant object of their desires; equality is

their idol: they make rapid and sudden efforts to obtain liberty,

and if they miss their aim resign themselves to their

disappointment; but nothing can satisfy them except equality, and

rather than lose it they resolve to perish.

On the other hand, in a State where the citizens are nearly

on an equality, it becomes difficult for them to preserve their

independence against the aggressions of power. No one among them

being strong enough to engage in the struggle with advantage,

nothing but a general combination can protect their liberty. And

such a union is not always to be found.

From the same social position, then, nations may derive one

or the other of two great political results; these results are

extremely different from each other, but they may both proceed

from the same cause.

The Anglo-Americans are the first nations who, having been

exposed to this formidable alternative, have been happy enough to

escape the dominion of absolute power. They have been allowed by

their circumstances, their origin, their intelligence, and

especially by their moral feeling, to establish and maintain the

sovereignty of the people.

 

Chapter IV:
The Principle Of The Sovereignty
Of The People In America

Chapter Summary

It predominates over the whole of society in America -

Application made of this principle by the Americans even before

their Revolution - Development given to it by that Revolution -

Gradual and irresistible extension of the elective qualification.

The Principle Of The Sovereignty Of The People In America

Whenever the political laws of the United States are to be

discussed, it is with the doctrine of the sovereignty of the

people that we must begin. The principle of the sovereignty of

the people, which is to be found, more or less, at the bottom of

almost all human institutions, generally remains concealed from

view. It is obeyed without being recognized, or if for a moment

it be brought to light, it is hastily cast back into the gloom of

the sanctuary. "The will of the nation" is one of those

expressions which have been most profusely abused by the wily and

the despotic of every age. To the eyes of some it has been

represented by the venal suffrages of a few of the satellites of

power; to others by the votes of a timid or an interested

minority; and some have even discovered it in the silence of a

people, on the supposition that the fact of submission

established the right of command.

In America the principle of the sovereignty of the people is

not either barren or concealed, as it is with some other nations;

it is recognized by the customs and proclaimed by the laws; it

spreads freely, and arrives without impediment at its most remote

consequences. If there be a country in the world where the

doctrine of the sovereignty of the people can be fairly

appreciated, where it can be studied in its application to the

affairs of society, and where its dangers and its advantages may

be foreseen, that country is assuredly America.

I have already observed that, from their origin, the

sovereignty of the people was the fundamental principle of the

greater number of British colonies in America. It was far,

however, from then exercising as much influence on the government

of society as it now does. Two obstacles, the one external, the

other internal, checked its invasive progress. It could not

ostensibly disclose itself in the laws of colonies which were

still constrained to obey the mother-country: it was therefore

obliged to spread secretly, and to gain ground in the provincial

assemblies, and especially in the townships.

American society was not yet prepared to adopt it with all

its consequences. The intelligence of New England, and the

wealth of the country to the south of the Hudson (as I have shown

in the preceding chapter), long exercised a sort of aristocratic

influence, which tended to retain the exercise of social

authority in the hands of a few. The public functionaries were

not universally elected, and the citizens were not all of them

electors. The electoral franchise was everywhere placed within

certain limits, and made dependent on a certain qualification,

which was exceedingly low in the North and more considerable in

the South.

The American revolution broke out, and the doctrine of the

sovereignty of the people, which had been nurtured in the

townships and municipalities, took possession of the State: every

class was enlisted in its cause; battles were fought, and

victories obtained for it, until it became the law of laws.

A no less rapid change was effected in the interior of

society, where the law of descent completed the abolition of

local influences.

At the very time when this consequence of the laws and of

the revolution was apparent to every eye, victory was irrevocably

pronounced in favor of the democratic cause. All power was, in

fact, in its hands, and resistance was no longer possible. The

higher orders submitted without a murmur and without a struggle

to an evil which was thenceforth inevitable. The ordinary fate

of falling powers awaited them; each of their several members

followed his own interests; and as it was impossible to wring the

power from the hands of a people which they did not detest

sufficiently to brave, their only aim was to secure its good-will

at any price. The most democratic laws were consequently voted

by the very men whose interests they impaired; and thus, although

the higher classes did not excite the passions of the people

against their order, they accelerated the triumph of the new

state of things; so that by a singular change the democratic

impulse was found to be most irresistible in the very States

where the aristocracy had the firmest hold. The State of

Maryland, which had been founded by men of rank, was the first to

proclaim universal suffrage, and to introduce the most democratic

forms into the conduct of its government.

When a nation modifies the elective qualification, it may

easily be foreseen that sooner or later that qualification will

be entirely abolished. There is no more invariable rule in the

history of society: the further electoral rights are extended,

the greater is the need of extending them; for after each

concession the strength of the democracy increases, and its

demands increase with its strength. The ambition of those who

are below the appointed rate is irritated in exact proportion to

the great number of those who are above it. The exception at

last becomes the rule, concession follows concession, and no stop

can be made short of universal suffrage.

At the present day the principle of the sovereignty of the

people has acquired, in the United States, all the practical

development which the imagination can conceive. It is

unencumbered by those fictions which have been thrown over it in

other

countries, and it appears in every possible form according to the

exigency of the occasion. Sometimes the laws are made by the

people in a body, as at Athens; and sometimes its

representatives, chosen by universal suffrage, transact business

in its name, and almost under its immediate control.

In some countries a power exists which, though it is in a

degree foreign to the social body, directs it, and forces it to

pursue a certain track. In others the ruling force is divided,

being partly within and partly without the ranks of the people.

But nothing of the kind is to be seen in the United States; there

society governs itself for itself. All power centres in its

bosom; and scarcely an individual is to be meet with who would

venture to conceive, or, still less, to express, the idea of

seeking it elsewhere. The nation participates in the making of

its laws by the choice of its legislators, and in the execution

of them by the choice of the agents of the executive government;

it may almost be said to govern itself, so feeble and so

restricted is the share left to the administration, so little do

the authorities forget their popular origin and the power from

which they emanate. *a

[Footnote a: See Appendix, H.]

 

Chapter V:
Necessity Of Examining The
Condition Of The States -
Part I

Necessity Of Examining The Condition Of
The States Before That Of The Union At Large

It is proposed to examine in the following chapter what is

the form of government established in America on the principle of

the sovereignty of the people; what are its resources, its

hindrances, its advantages, and its dangers. The first

difficulty which presents itself arises from the complex nature

of the constitution of the United States, which consists of two

distinct social structures, connected and, as it were, encased

one within the other; two governments, completely separate and

almost independent, the one fulfilling the ordinary duties and

responding to the daily and indefinite calls of a community, the

other circumscribed within certain limits, and only exercising an

exceptional authority over the general interests of the country.

In short, there are twenty- four small sovereign nations, whose

agglomeration constitutes the body of the Union. To examine the

Union before we have studied the States would be to adopt a

method filled with obstacles. The form of the Federal Government

of the United States was the last which was adopted; and it is in

fact nothing more than a modification or a summary of those

republican principles which were current in the whole community

before it existed, and independently of its existence. Moreover,

the Federal Government is, as I have just observed, the

exception; the Government of the States is the rule. The author

who should attempt to exhibit the picture as a whole before he

had explained its details would necessarily fall into obscurity

and repetition.

The great political principles which govern American society

at this day undoubtedly took their origin and their growth in the

State. It is therefore necessary to become acquainted with the

State in order to possess a clue to the remainder. The States

which at present compose the American Union all present the same

features, as far as regards the external aspect of their

institutions. Their political or administrative existence is

centred in three focuses of action, which may not inaptly be

compared to the different nervous centres which convey motion to

the human body. The township is the lowest in order, then the

county, and lastly the State; and I propose to devote the

following chapter to the examination of these three divisions.

The American System Of Townships And Municipal Bodies

Why the Author begins the examination of the political

institutions with the township - Its existence in all nations -

Difficulty of establishing and preserving municipal independence

- Its importance - Why the Author has selected the township

system of New England as the main topic of his discussion.

It is not undesignedly that I begin this subject with the

Township. The village or township is the only association which

is so perfectly natural that wherever a number of men are

collected it seems to constitute itself.

The town, or tithing, as the smallest division of a

community, must necessarily exist in all nations, whatever their

laws and customs may be: if man makes monarchies and establishes

republics, the first association of mankind seems constituted by

the hand of God. But although the existence of the township is

coeval with that of man, its liberties are not the less rarely

respected and easily destroyed. A nation is always able to

establish great political assemblies, because it habitually

contains a certain number of individuals fitted by their talents,

if not by their habits, for the direction of affairs. The

township is, on the contrary, composed of coarser materials,

which are less easily fashioned by the legislator. The

difficulties which attend the consolidation of its independence

rather augment than diminish with the increasing enlightenment of

the people. A highly civilized community spurns the attempts of

a local independence, is disgusted at its numerous blunders, and

is apt to despair of success before the experiment is completed.

Again, no immunities are so ill protected from the encroachments

of the supreme power as those of municipal bodies in general:

they are unable to struggle, single- handed, against a strong or

an enterprising government, and they cannot defend their cause

with success unless it be identified with the customs of the

nation and supported by public opinion. Thus until the

independence of townships is amalgamated with the manners of a

people it is easily destroyed, and it is only after a long

existence in the laws that it can be thus amalgamated. Municipal

freedom is not the fruit of human device; it is rarely created;

but it is, as it were, secretly and spontaneously engendered in

the midst of a semi-barbarous state of society. The constant

action of the laws and the national habits, peculiar

circumstances, and above all time, may consolidate it; but there

is certainly no nation on the continent of Europe which has

experienced its advantages. Nevertheless local assemblies of

citizens constitute the strength of free nations. Town-meetings

are to liberty what primary schools are to science; they bring it

within the people's reach, they teach men how to use and how to

enjoy it. A nation may establish a system of free government,

but without the spirit of municipal institutions it cannot have

the spirit of liberty. The transient passions and the interests

of an hour, or the chance of circumstances, may have created the

external forms of independence; but the despotic tendency which

has been repelled will, sooner or later, inevitably reappear on

the surface.

In order to explain to the reader the general principles on

which the political organization of the counties and townships of

the United States rests, I have thought it expedient to choose

one of the States of New England as an example, to examine the

mechanism of its constitution, and then to cast a general glance

over the country. The township and the county are not organized

in the same manner in every part of the Union; it is, however,

easy to perceive that the same principles have guided the

formation of both of them throughout the Union. I am inclined to

believe that these principles have been carried further in New

England than elsewhere, and consequently that they offer greater

facilities to the observations of a stranger. The institutions

of New England form a complete and regular whole; they have

received the sanction of time, they have the support of the laws,

and the still stronger support of the manners of the community,

over which they exercise the most prodigious influence; they

consequently deserve our attention on every account.

Limits Of The Township

The township of New England is a division which stands

between the commune and the canton of France, and which

corresponds in general to the English tithing, or town. Its

average population is from two to three thousand; *a so that, on

the one hand, the interests of its inhabitants are not likely to

conflict, and, on the other, men capable of conducting its

affairs are always to be found among its citizens.

[Footnote a: 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.]

Authorities Of The Township In New England

The people the source of all power here as elsewhere - Manages

its own affairs - No corporation - The greater part of the

authority vested in the hands of the Selectmen - How the

Selectmen act - Town-meeting - Enumeration of the public officers

of the township - Obligatory and remunerated functions.

In the township, as well as everywhere else, the people is

the only source of power; but in no stage of government does the

body of citizens exercise a more immediate influence. In America

the people is a master whose exigencies demand obedience to the

utmost limits of possibility.

In New England the majority acts by representatives in the

conduct of the public business of the State; but if such an

arrangement be necessary in general affairs, in the townships,

where the legislative and administrative action of the government

is in more immediate contact with the subject, the system of

representation is not adopted. There is no corporation; but the

body of electors, after having designated its magistrates,

directs them in everything that exceeds the simple and ordinary

executive business of the State. *b

[Footnote b: 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.]

This state of things is so contrary to our ideas, and so

different from our customs, that it is necessary for me to adduce

some examples to explain it thoroughly.

The public duties in the township are extremely numerous and

minutely divided, as we shall see further on; but the larger

proportion of administrative power is vested in the hands of a

small number of individuals, called "the Selectmen." *c The

general laws of the State impose a certain number of obligations

on the selectmen, which they may fulfil without the authorization

of the body they represent, but which they can only neglect on

their own responsibility. The law of the State obliges them, for

instance, to draw up the list of electors in their townships; and

if they omit this part of their functions, they are guilty of a

misdemeanor. In all the affairs, however, which are determined

by the town-meeting, the selectmen are the organs of the popular

mandate, as in France the Maire executes the decree of the

municipal council. They usually act upon their own

responsibility, and merely put in practice principles which have

been previously recognized by the majority. But if any change is

to be introduced in the existing state of things, or if they wish

to undertake any new enterprise, they are obliged to refer to the

source of their power. If, for instance, a school is to be

established, the selectmen convoke the whole body of the electors

on a certain day at an appointed place; they explain the urgency

of the case; they give their opinion on the means of satisfying

it, on the probable expense, and the site which seems to be most

favorable. The meeting is consulted on these several points; it

adopts the principle, marks out the site, votes the rate, and

confides the execution of its resolution to the selectmen.

[Footnote c: 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.]

The selectmen have alone the right of calling a

town-meeting, but they may be requested to do so: if ten citizens

are desirous of submitting a new project to the assent of the

township, they may demand a general convocation of the

inhabitants; the selectmen are obliged to comply, but they have

only the right of presiding at the meeting. *d

[Footnote d: See Laws of Massachusetts, vol. i. p. 150, Act of

March 25, 1786.]

The selectmen are elected every year in the month of April

or of May. The town-meeting chooses at the same time a number of

other municipal magistrates, who are entrusted with important

administrative functions. The assessors rate the township; the

collectors receive the rate. A constable is appointed to keep

the peace, to watch the streets, and to forward the execution of

the laws; the town-clerk records all the town votes, orders,

grants, births, deaths, and marriages; the treasurer keeps the

funds; the overseer of the poor performs the difficult task of

superintending the action of the poor-laws; committee-men are

appointed to attend to the schools and to public instruction; and

the road-surveyors, who take care of the greater and lesser

thoroughfares of the township, complete the list of the principal

functionaries. They are, however, still further subdivided; and

amongst the municipal officers are to be found parish

commissioners, who audit the expenses of public worship;

different classes of inspectors, some of whom are to direct the

citizens in case of fire; tithing-men, listers, haywards,

chimney-viewers, fence-viewers to maintain the bounds of

property, timber-measurers, and sealers of weights and measures.

*e

[Footnote e: 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.]

There are nineteen principal officers in a township. Every

inhabitant is constrained, on the pain of being fined, to

undertake these different functions; which, however, are almost

all paid, in order that the poorer citizens may be able to give

up their time without loss. In general the American system is

not to grant a fixed salary to its functionaries. Every service

has its price, and they are remunerated in proportion to what

they have done.

Existence Of The Township

Every one the best judge of his own interest - Corollary of the

principle of the sovereignty of the people - Application of those

doctrines in the townships of America - The township of New

England is sovereign in all that concerns itself alone: subject

to the State in all other matters - Bond of the township and the

State - In France the Government lends its agent to the Commune -

In America the reverse occurs.

I have already observed that the principle of the

sovereignty of the people governs the whole political system of

the Anglo- Americans. Every page of this book will afford new

instances of the same doctrine. In the nations by which the

sovereignty of the people is recognized every individual

possesses an equal share of power, and participates alike in the

government of the State. Every individual is, therefore,

supposed to be as well informed, as virtuous, and as strong as

any of his fellow-citizens. He obeys the government, not because

he is inferior to the authorities which conduct it, or that he is

less capable than his neighbor of governing himself, but because

he acknowledges the utility of an association with his

fellow-men, and because he knows that no such association can

exist without a regulating force. If he be a subject in all that

concerns the mutual relations of citizens, he is free and

responsible to God alone for all that concerns himself. Hence

arises the maxim that every one is the best and the sole judge of

his own private interest, and that society has no right to

control a man's actions, unless they are prejudicial to the

common weal, or unless the common weal demands his co-operation.

This doctrine is universally admitted in the United States. I

shall hereafter examine the general influence which it exercises

on the ordinary actions of life; I am now speaking of the nature

of municipal bodies.

The township, taken as a whole, and in relation to the

government of the country, may be looked upon as an individual to

whom the theory I have just alluded to is applied. Municipal

independence is therefore a natural consequence of the principle

of the sovereignty of the people in the United States: all the

American republics recognize it more or less; but circumstances

have peculiarly favored its growth in New England.

In this part of the Union the impulsion of political

activity was given in the townships; and it may almost be said

that each of them originally formed an independent nation. When

the Kings of England asserted their supremacy, they were

contented to assume the central power of the State. The

townships of New England remained as they were before; and

although they are now subject to the State, they were at first

scarcely dependent upon it. It is important to remember that

they have not been invested with privileges, but that they have,

on the contrary, forfeited a portion of their independence to the

State. The townships are only subordinate to the State in those

interests which I shall term social, as they are common to all

the citizens. They are independent in all that concerns

themselves; and amongst the inhabitants of New England I believe

that not a man is to be found who would acknowledge that the

State has any right to interfere in their local interests. The

towns of New England buy and sell, sue or are sued, augment or

diminish their rates, without the slightest opposition on the

part of the administrative authority of the State.

They are bound, however, to comply with the demands of the

community. If the State is in need of money, a town can neither

give nor withhold the supplies. If the State projects a road,

the township cannot refuse to let it cross its territory; if a

police regulation is made by the State, it must be enforced by

the town. A uniform system of instruction is organized all over

the country, and every town is bound to establish the schools

which the law ordains. In speaking of the administration of the

United States I shall have occasion to point out the means by

which the townships are compelled to obey in these different

cases: I here merely show the existence of the obligation. Strict

as this obligation is, the government of the State imposes it in

principle only, and in its performance the township resumes all

its independent rights. Thus, taxes are voted by the State, but

they are levied and collected by the township; the existence of a

school is obligatory, but the township builds, pays, and

superintends it. In France the State- collector receives the

local imposts; in America the town-collector receives the taxes

of the State. Thus the French Government lends its agents to the

commune; in America the township is the agent of the Government.

This fact alone shows the extent of the differences which exist

between the two nations.

Public Spirit Of The
Townships Of New England

How the township of New England wins the affections of its

inhabitants -Difficulty of creating local public spirit in Europe

- The rights and duties of the American township favorable to it

- Characteristics of home in the United States - Manifestations

of public spirit in New England - Its happy effects.

In America, not only do municipal bodies exist, but they are

kept alive and supported by public spirit. The township of New

England possesses two advantages which infallibly secure the

attentive interest of mankind, namely, independence and

authority. Its sphere is indeed small and limited, but within

that sphere its action is unrestrained; and its independence

gives to it a real importance which its extent and population may

not always ensure.

It is to be remembered that the affections of men generally

lie on the side of authority. Patriotism is not durable in a

conquered nation. The New Englander is attached to his township,

not only because he was born in it, but because it constitutes a

social body of which he is a member, and whose government claims

and deserves the exercise of his sagacity. In Europe the absence

of local public spirit is a frequent subject of regret to those

who are in power; everyone agrees that there is no surer

guarantee of order and tranquility, and yet nothing is more

difficult to create. If the municipal bodies were made powerful

and independent, the authorities of the nation might be disunited

and the peace of the country endangered. Yet, without power and

independence, a town may contain good subjects, but it can have

no active citizens. Another important fact is that the township

of New England is so constituted as to excite the warmest of

human affections, without arousing the ambitious passions of the

heart of man. The officers of the country are not elected, and

their authority is very limited. Even the State is only a

second-rate community, whose tranquil and obscure administration

offers no inducement sufficient to draw men away from the circle

of their interests into the turmoil of public affairs. The

federal government confers power and honor on the men who conduct

it; but these individuals can never be very numerous. The high

station of the Presidency can only be reached at an advanced

period of life, and the other federal functionaries are generally

men who have been favored by fortune, or distinguished in some

other career. Such cannot be the permanent aim of the ambitious.

But the township serves as a centre for the desire of public

esteem, the want of exciting interests, and the taste for

authority and popularity, in the midst of the ordinary relations

of life; and the passions which commonly embroil society change

their character when they find a vent so near the domestic hearth

and the family circle.

In the American States power has been disseminated with

admirable skill for the purpose of interesting the greatest

possible number of persons in the common weal. Independently of

the electors who are from time to time called into action, the

body politic is divided into innumerable functionaries and

officers, who all, in their several spheres, represent the same

powerful whole in whose name they act. The local administration

thus affords an unfailing source of profit and interest to a vast

number of individuals.

The American system, which divides the local authority among

so many citizens, does not scruple to multiply the functions of

the town officers. For in the United States it is believed, and

with truth, that patriotism is a kind of devotion which is

strengthened by ritual observance. In this manner the activity

of the township is continually perceptible; it is daily

manifested in the fulfilment of a duty or the exercise of a

right, and a constant though gentle motion is thus kept up in

society which animates without disturbing it.

The American attaches himself to his home as the mountaineer

clings to his hills, because the characteristic features of his

country are there more distinctly marked than elsewhere. The

existence of the townships of New England is in general a happy

one. Their government is suited to their tastes, and chosen by

themselves. In the midst of the profound peace and general

comfort which reign in America the commotions of municipal

discord are unfrequent. The conduct of local business is easy.

The political education of the people has long been complete; say

rather that it was complete when the people first set foot upon

the soil. In New England no tradition exists of a distinction of

ranks; no portion of the community is tempted to oppress the

remainder; and the abuses which may injure isolated individuals

are forgotten in the general contentment which prevails. If the

government is defective (and it would no doubt be easy to point

out its deficiencies), the fact that it really emanates from

those it governs, and that it acts, either ill or well, casts the

protecting spell of a parental pride over its faults. No term of

comparison disturbs the satisfaction of the citizen: England

formerly governed the mass of the colonies, but the people was

always sovereign in the township where its rule is not only an

ancient but a primitive state.

The native of New England is attached to his township

because it is independent and free: his co-operation in its

affairs ensures his attachment to its interest; the well-being it

affords him secures his affection; and its welfare is the aim of

his ambition and of his future exertions: he takes a part in

every occurrence in the place; he practises the art of government

in the small sphere within his reach; he accustoms himself to

those forms which can alone ensure the steady progress of

liberty; he imbibes their spirit; he acquires a taste for order,

comprehends the union or the balance of powers, and collects

clear practical notions on the nature of his duties and the

extent of his rights.

The Counties Of New England

The division of the countries in America has considerable

analogy with that of the arrondissements of France. The limits

of the counties are arbitrarily laid down, and the various

districts which they contain have no necessary connection, no

common tradition or natural sympathy; their object is simply to

facilitate the administration of justice.

The extent of the township was too small to contain a system

of judicial institutions; each county has, however, a court of

justice, *f a sheriff to execute its decrees, and a prison for

criminals. There are certain wants which are felt alike by all

the townships of a county; it is therefore natural that they

should be satisfied by a central authority. In the State of

Massachusetts this authority is vested in the hands of several

magistrates, who are appointed by the Governor of the State, with

the advice *g of his council. *h The officers of the county have

only a limited and occasional authority, which is applicable to

certain predetermined cases. The State and the townships possess

all the power requisite to conduct public business. The budget

of the county is drawn up by its officers, and is voted by the

legislature, but there is no assembly which directly or

indirectly represents the county. It has, therefore, properly

speaking, no political existence.

[Footnote f: See the Act of February 14, 1821, Laws of

Massachusetts, vol. i. p. 551.]

[Footnote g: See the Act of February 20, 1819, Laws of

Massachusetts, vol. ii. p. 494.]

[Footnote h: The council of the Governor is an elective body.]

A twofold tendency may be discerned in the American

constitutions, which impels the legislator to centralize the

legislative and to disperse the executive power. The township of

New England has in itself an indestructible element of

independence; and this distinct existence could only be

fictitiously introduced into the county, where its utility has

not been felt. But all the townships united have but one

representation, which is the State, the centre of the national

authority: beyond the action of the township and that of the

nation, nothing can be said to exist but the influence of

individual exertion.

Administration In New England

Administration not perceived in America - Why? - The Europeans

believe that liberty is promoted by depriving the social

authority of some of its rights; the Americans, by dividing its

exercise - Almost all the administration confined to the

township, and divided amongst the town-officers - No trace of an

administrative body to be perceived, either in the township or

above it -The reason of this - How it happens that the

administration of the State is uniform - Who is empowered to

enforce the obedience of the township and the county to the law -

The introduction of judicial power into the administration -

Consequence of the extension of the elective principle to all

functionaries - The Justice of the Peace in New England - By whom

appointed - County officer: ensures the administration of the

townships - Court of Sessions - Its action - Right of inspection

and indictment disseminated like the other administrative

functions - Informers encouraged by the division of fines.

Nothing is more striking to an European traveller in the

United States than the absence of what we term the Government, or

the Administration. Written laws exist in America, and one sees

that they are daily executed; but although everything is in

motion, the hand which gives the impulse to the social machine

can nowhere be discovered. Nevertheless, as all peoples are

obliged to have recourse to certain grammatical forms, which are

the foundation of human language, in order to express their

thoughts; so all communities are obliged to secure their

existence by submitting to a certain dose of authority, without

which they fall a prey to anarchy. This authority may be

distributed in several ways, but it must always exist somewhere.

There are two methods of diminishing the force of authority

in a nation: The first is to weaken the supreme power in its very

principle, by forbidding or preventing society from acting in its

own defence under certain circumstances. To weaken authority in

this manner is what is generally termed in Europe to lay the

foundations of freedom. The second manner of diminishing the

influence of authority does not consist in stripping society of

any of its rights, nor in paralyzing its efforts, but in

distributing the exercise of its privileges in various hands, and

in multiplying functionaries, to each of whom the degree of power

necessary for him to perform his duty is entrusted. There may be

nations whom this distribution of social powers might lead to

anarchy; but in itself it is not anarchical. The action of

authority is indeed thus rendered less irresistible and less

perilous, but it is not totally suppressed.

The revolution of the United States was the result of a

mature and dignified taste for freedom, and not of a vague or

ill-defined craving for independence. It contracted no alliance

with the turbulent passions of anarchy; but its course was

marked, on the contrary, by an attachment to whatever was lawful

and orderly.

It was never assumed in the United States that the citizen

of a free country has a right to do whatever he pleases; on the

contrary, social obligations were there imposed upon him more

various than anywhere else. No idea was ever entertained of

attacking the principles or of contesting the rights of society;

but the exercise of its authority was divided, to the end that

the office might be powerful and the officer insignificant, and

that the community should be at once regulated and free. In no

country in the world does the law hold so absolute a language as

in America, and in no country is the right of applying it vested

in so many hands. The administrative power in the United States

presents nothing either central or hierarchical in its

constitution, which accounts for its passing, unperceived. The

power exists, but its representative is not to be perceived.

We have already seen that the independent townships of New

England protect their own private interests; and the municipal

magistrates are the persons to whom the execution of the laws of

the State is most frequently entrusted. *i Besides the general

laws, the State sometimes passes general police regulations; but

more commonly the townships and town officers, conjointly with

justices of the peace, regulate the minor details of social life,

according to the necessities of the different localities, and

promulgate such enactments as concern the health of the

community, and the peace as well as morality of the citizens. *j

Lastly, these municipal magistrates provide, of their own accord

and without any delegated powers, for those unforeseen

emergencies which frequently occur in society. *k

[Footnote i: 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.]

[Footnote j: 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.]

[Footnote k: 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.]

It results from what we have said that in the State of

Massachusetts the administrative authority is almost entirely

restricted to the township, *l but that it is distributed among a

great number of individuals. In the French commune there is

properly but one official functionary, namely, the Maire; and in

New England we have seen that there are nineteen. These nineteen

functionaries do not in general depend upon one another. The law

carefully prescribes a circle of action to each of these

magistrates; and within that circle they have an entire right to

perform their functions independently of any other authority.

Above the township scarcely any trace of a series of official

dignitaries is to be found. It sometimes happens that the county

officers alter a decision of the townships or town magistrates,

*m but in general the authorities of the county have no right to

interfere with the authorities of the township, *n except in such

matters as concern the county.

[Footnote l: 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.]

[Footnote m: 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.]

[Footnote n: 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.]

The magistrates of the township, as well as those of the

county, are bound to communicate their acts to the central

government in a very small number of predetermined cases. *o But

the central government is not represented by an individual whose

business it is to publish police regulations and ordinances

enforcing the execution of the laws; to keep up a regular

communication with the officers of the township and the county;

to inspect their conduct, to direct their actions, or to

reprimand their faults. There is no point which serves as a

centre to the radii of the administration.

[Footnote o: 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.]

 

Chapter V:
Necessity Of Examining The
Condition Of The States -
Part II

What, then, is the uniform plan on which the government is

conducted, and how is the compliance of the counties and their

magistrates or the townships and their officers enforced? In the

States of New England the legislative authority embraces more

subjects than it does in France; the legislator penetrates to the

very core of the administration; the law descends to the most

minute details; the same enactment prescribes the principle and

the method of its application, and thus imposes a multitude of

strict and rigorously defined obligations on the secondary

functionaries of the State. The consequence of this is that if

all the secondary functionaries of the administration conform to

the law, society in all its branches proceeds with the greatest

uniformity: the difficulty remains of compelling the secondary

functionaries of the administration to conform to the law. It

may be affirmed that, in general, society has only two methods of

enforcing the execution of the laws at its disposal: a

discretionary power may be entrusted to a superior functionary of

directing all the others, and of cashiering them in case of

disobedience; or the courts of justice may be authorized to

inflict judicial penalties on the offender: but these two methods

are not always available.

The right of directing a civil officer presupposes that of

cashiering him if he does not obey orders, and of rewarding him

by promotion if he fulfils his duties with propriety. But an

elected magistrate can neither be cashiered nor promoted. All

elective functions are inalienable until their term is expired.

In fact, the elected magistrate has nothing either to expect or

to fear from his constituents; and when all public offices are

filled by ballot there can be no series of official dignities,

because the double right of commanding and of enforcing obedience

can never be vested in the same individual, and because the power

of issuing an order can never be joined to that of inflicting a

punishment or bestowing a reward.

The communities therefore in which the secondary

functionaries of the government are elected are perforce obliged

to make great use of judicial penalties as a means of

administration. This is not evident at first sight; for those in

power are apt to look upon the institution of elective

functionaries as one concession, and the subjection of the

elected magistrate to the judges of the land as another. They

are equally averse to both these innovations; and as they are

more pressingly solicited to grant the former than the latter,

they accede to the election of the magistrate, and leave him

independent of the judicial power. Nevertheless, the second of

these measures is the only thing that can possibly counterbalance

the first; and it will be found that an elective authority which

is not subject to judicial power will, sooner or later, either

elude all control or be destroyed. The courts of justice are the

only possible medium between the central power and the

administrative bodies; they alone can compel the elected

functionary to obey, without violating the rights of the elector.

The extension of judicial power in the political world ought

therefore to be in the exact ratio of the extension of elective

offices: if these two institutions do not go hand in hand, the

State must fall into anarchy or into subjection.

It has always been remarked that habits of legal business do

not render men apt to the exercise of administrative authority.

The Americans have borrowed from the English, their fathers, the

idea of an institution which is unknown upon the continent of

Europe: I allude to that of the Justices of the Peace. The

Justice of the Peace is a sort of mezzo termine between the

magistrate and the man of the world, between the civil officer

and the judge. A justice of the peace is a well-informed citizen,

though he is not necessarily versed in the knowledge of the laws.

His office simply obliges him to execute the police regulations

of society; a task in which good sense and integrity are of more

avail than legal science. The justice introduces into the

administration a certain taste for established forms and

publicity, which renders him a most unserviceable instrument of

despotism; and, on the other hand, he is not blinded by those

superstitions which render legal officers unfit members of a

government. The Americans have adopted the system of the English

justices of the peace, but they have deprived it of that

aristocratic character which is discernible in the

mother-country. The Governor of Massachusetts *p appoints a

certain number of justices of the peace in every county, whose

functions last seven years. *q He further designates three

individuals from amongst the whole body of justices who form in

each county what is called the Court of Sessions. The justices

take a personal share in public business; they are sometimes

entrusted with administrative functions in conjunction with

elected officers, *r they sometimes constitute a tribunal, before

which the magistrates summarily prosecute a refractory citizen,

or the citizens inform against the abuses of the magistrate. But

it is in the Court of Sessions that they exercise their most

important functions. This court meets twice a year in the county

town; in Massachusetts it is empowered to enforce the obedience

of the greater number *s of public officers. *t It must be

observed, that in the State of Massachusetts the Court of

Sessions is at the same time an administrative body, properly so

called, and a political tribunal. It has been asserted that the

county is a purely administrative division. The Court of

Sessions presides over that small number of affairs which, as

they concern several townships, or all the townships of the

county in common, cannot be entrusted to any one of them in

particular. *u In all that concerns county business the duties of

the Court of Sessions are purely administrative; and if in its

investigations it occasionally borrows the forms of judicial

procedure, it is only with a view to its own information, *v or

as a guarantee to the community over which it presides. But when

the administration of the township is brought before it, it

always acts as a judicial body, and in some few cases as an

official assembly.

[Footnote p: 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.]

[Footnote q: See the Constitution of Massachusetts, chap. II.

sect. 1. Section 9; chap. III. Section 3.]

[Footnote r: 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.]

[Footnote s: 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.]

[Footnote t: In their individual capacity the justices of the

peace take a part in the business of the counties and townships.]

[Footnote u: 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.]

[Footnote v: Thus, when a road is under consideration, almost all

difficulties are disposed of by the aid of the jury.]

The first difficulty is to procure the obedience of an

authority as entirely independent of the general laws of the

State as the township is. We have stated that assessors are

annually named by the town-meetings to levy the taxes. If a

township attempts to evade the payment of the taxes by neglecting

to name its assessors, the Court of Sessions condemns it to a

heavy penalty. *w The fine is levied on each of the inhabitants;

and the sheriff of the county, who is the officer of justice,

executes the mandate. Thus it is that in the United States the

authority of the Government is mysteriously concealed under the

forms of a judicial sentence; and its influence is at the same

time fortified by that irresistible power with which men have

invested the formalities of law.

[Footnote w: See Act of February 20, 1786, Laws of Massachusetts,

vol. i. p. 217.]

These proceedings are easy to follow and to understand. The

demands made upon a township are in general plain and accurately

defined; they consist in a simple fact without any complication,

or in a principle without its application in detail. *x But the

difficulty increases when it is not the obedience of the

township, but that of the town officers which is to be enforced.

All the reprehensible actions of which a public functionary may

be guilty are reducible to the following heads:

[Footnote x: 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.]

He may execute the law without energy or zeal;

He may neglect to execute the law;

He may do what the law enjoins him not to do.

The last two violations of duty can alone come under the

cognizance of a tribunal; a positive and appreciable fact is the

indispensable foundation of an action at law. Thus, if the

selectmen omit to fulfil the legal formalities usual at town

elections, they may be condemned to pay a fine; *y but when the

public officer performs his duty without ability, and when he

obeys the letter of the law without zeal or energy, he is at

least beyond the reach of judicial interference. The Court of

Sessions, even when it is invested with its official powers, is

in this case unable to compel him to a more satisfactory

obedience. The fear of removal is the only check to these

quasi-offences; and as the Court of Sessions does not originate

the town authorities, it cannot remove functionaries whom it does

not appoint. Moreover, a perpetual investigation would be

necessary to convict the officer of negligence or lukewarmness;

and the Court of Sessions sits but twice a year and then only

judges such offences as are brought before its notice. The only

security of that active and enlightened obedience which a court

of justice cannot impose upon public officers lies in the

possibility of their arbitrary removal. In France this security

is sought for in powers exercised by the heads of the

administration; in America it is sought for in the principle of

election.

[Footnote y: Laws of Massachusetts, vol. ii. p. 45.]

Thus, to recapitulate in a few words what I have been

showing: If a public officer in New England commits a crime in

the exercise of his functions, the ordinary courts of justice are

always called upon to pass sentence upon him. If he commits a

fault in his official capacity, a purely administrative tribunal

is empowered to punish him; and, if the affair is important or

urgent, the judge supplies the omission of the functionary. *z

Lastly, if the same individual is guilty of one of those

intangible offences of which human justice has no cognizance, he

annually appears before a tribunal from which there is no appeal,

which can at once reduce him to insignificance and deprive him of

his charge. This system undoubtedly possesses great advantages,

but its execution is attended with a practical difficulty which

it is important to point out.

[Footnote z: 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.]

I have already observed that the administrative tribunal,

which is called the Court of Sessions, has no right of inspection

over the town officers. It can only interfere when the conduct

of a magistrate is specially brought under its notice; and this

is the delicate part of the system. The Americans of New England

are unacquainted with the office of public prosecutor in the

Court of Sessions, *a and it may readily be perceived that it

could not have been established without difficulty. If an

accusing magistrate had merely been appointed in the chief town

of each county, and if he had been unassisted by agents in the

townships, he would not have been better acquainted with what was

going on in the county than the members of the Court of Sessions.

But to appoint agents in each township would have been to centre

in his person the most formidable of powers, that of a judicial

administration. Moreover, laws are the children of habit, and

nothing of the kind exists in the legislation of England. The

Americans have therefore divided the offices of inspection and of

prosecution, as well as all the other functions of the

administration. Grand jurors are bound by the law to apprise the

court to which they belong of all the misdemeanors which may have

been committed in their county. *b There are certain great

offences which are officially prosecuted by the States; *c but

more frequently the task of punishing delinquents devolves upon

the fiscal officer, whose province it is to receive the fine:

thus the treasurer of the township is charged with the

prosecution of such administrative offences as fall under his

notice. But a more special appeal is made by American

legislation to the private interest of the citizen; *d and this

great principle is constantly to be met with in studying the laws

of the United States. American legislators are more apt to give

men credit for intelligence than for honesty, and they rely not a

little on personal cupidity for the execution of the laws. When

an individual is really and sensibly injured by an administrative

abuse, it is natural that his personal interest should induce him

to prosecute. But if a legal formality be required, which,

however advantageous to the community, is of small importance to

individuals, plaintiffs may be less easily found; and thus, by a

tacit agreement, the laws may fall into disuse. Reduced by their

system to this extremity, the Americans are obliged to encourage

informers by bestowing on them a portion of the penalty in

certain cases, *e and to insure the execution of the laws by the

dangerous expedient of degrading the morals of the people. The

only administrative authority above the county magistrates is,

properly speaking, that of the Government.

[Footnote a: I say the Court of Sessions, because in common

courts there is a magistrate who exercises some of the functions

of a public prosecutor.]

[Footnote b: 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.]

[Footnote c: If, for instance, the treasurer of the county holds

back his accounts. - Laws of Massachusetts, vol. i. p. 406.]

[Footnote d: 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.]

[Footnote e: 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.]

General Remarks On The Administration Of The United States

Differences of the States of the Union in their system of

administration -Activity and perfection of the local authorities

decrease towards the South -Power of the magistrate increases;

that of the elector diminishes -Administration passes from the

township to the county - States of New York, Ohio, Pennsylvania -

Principles of administration applicable to the whole Union -

Election of public officers, and inalienability of their

functions -Absence of gradation of ranks - Introduction of

judicial resources into the administration.

 

I have already premised that, after having examined the

constitution of the township and the county of New England in

detail, I should take a general view of the remainder of the

Union. Townships and a local activity exist in every State; but

in no part of the confederation is a township to be met with

precisely similar to those of New England. The more we descend

towards the South, the less active does the business of the

township or parish become; the number of magistrates, of

functions, and of rights decreases; the population exercises a

less immediate influence on affairs; town meetings are less

frequent, and the subjects of debate less numerous. The power of

the elected magistrate is augmented and that of the elector

diminished, whilst the public spirit of the local communities is

less awakened and less influential. *f These differences may be

perceived to a certain extent in the State of New York; they are

very sensible in Pennsylvania; but they become less striking as

we advance to the northwest. The majority of the emigrants who

settle in the northwestern States are natives of New England, and

they carry the habits of their mother country with them into that

which they adopt. A township in Ohio is by no means dissimilar

from a township in Massachusetts.

[Footnote f: 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.]

We have seen that in Massachusetts the mainspring of public

administration lies in the township. It forms the common centre

of the interests and affections of the citizens. But this ceases

to be the case as we descend to States in which knowledge is less

generally diffused, and where the township consequently offers

fewer guarantees of a wise and active administration. As we

leave New England, therefore, we find that the importance of the

town is gradually transferred to the county, which becomes the

centre of administration, and the intermediate power between the

Government and the citizen. In Massachusetts the business of the

county is conducted by the Court of Sessions, which is composed

of a quorum named by the Governor and his council; but the county

has no representative assembly, and its expenditure is voted by

the national legislature. In the great State of New York, on the

contrary, and in those of Ohio and Pennsylvania, the inhabitants

of each county choose a certain number of representatives, who

constitute the assembly of the county. *g The county assembly has

the right of taxing the inhabitants to a certain extent; and in

this respect it enjoys the privileges of a real legislative body:

at the same time it exercises an executive power in the county,

frequently directs the administration of the townships, and

restricts their authority within much narrower bounds than in

Massachusetts.

[Footnote g: 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.]

Such are the principal differences which the systems of

county and town administration present in the Federal States.

Were it my intention to examine the provisions of American law

minutely, I should have to point out still further differences in

the executive details of the several communities. But what I

have already said may suffice to show the general principles on

which the administration of the United States rests. These

principles are differently applied; their consequences are more

or less numerous in various localities; but they are always

substantially the same. The laws differ, and their outward

features change, but their character does not vary. If the

township and the county are not everywhere constituted in the

same manner, it is at least true that in the United States the

county and the township are always based upon the same principle,

namely, that everyone is the best judge of what concerns himself

alone, and the most proper person to supply his private wants.

The township and the county are therefore bound to take care of

their special interests: the State governs, but it does not

interfere with their administration. Exceptions to this rule may

be met with, but not a contrary principle.

The first consequence of this doctrine has been to cause all

the magistrates to be chosen either by or at least from amongst

the citizens. As the officers are everywhere elected or appointed

for a certain period, it has been impossible to establish the

rules of a dependent series of authorities; there are almost as

many independent functionaries as there are functions, and the

executive power is disseminated in a multitude of hands. Hence

arose the indispensable necessity of introducing the control of

the courts of justice over the administration, and the system of

pecuniary penalties, by which the secondary bodies and their

representatives are constrained to obey the laws. This system

obtains from one end of the Union to the other. The power of

punishing the misconduct of public officers, or of performing the

part of the executive in urgent cases, has not, however, been

bestowed on the same judges in all the States. The

Anglo-Americans derived the institution of justices of the peace

from a common source; but although it exists in all the States,

it is not always turned to the same use. The justices of the

peace everywhere participate in the administration of the

townships and the counties, *h either as public officers or as

the judges of public misdemeanors, but in most of the States the

more important classes of public offences come under the

cognizance of the ordinary tribunals.

[Footnote h: 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.]

The election of public officers, or the inalienability of

their functions, the absence of a gradation of powers, and the

introduction of a judicial control over the secondary branches of

the administration, are the universal characteristics of the

American system from Maine to the Floridas. In some States (and

that of New York has advanced most in this direction) traces of a

centralized administration begin to be discernible. In the State

of New York the officers of the central government exercise, in

certain cases, a sort of inspection or control over the secondary

bodies. *i

[Footnote i: 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.]

At other times they constitute a court of appeal for the

decision of affairs. *j In the State of New York judicial

penalties are less used than in other parts as a means of

administration, and the right of prosecuting the offences of

public officers is vested in fewer hands. *k The same tendency is

faintly observable in some other States; *l but in general the

prominent feature of the administration in the United States is

its excessive local independence.

[Footnote j: 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.]

[Footnote k: 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.]

[Footnote l: 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.]

Of The State

I have described the townships and the administration; it

now remains for me to speak of the State and the Government.

This is ground I may pass over rapidly, without fear of being

misunderstood; for all I have to say is to be found in written

forms of the various constitutions, which are easily to be

procured. These constitutions rest upon a simple and rational

theory; their forms have been adopted by all constitutional

nations, and are become familiar to us. In this place,

therefore, it is only necessary for me to give a short analysis;

I shall endeavor afterwards to pass judgment upon what I now

describe.

Chapter V:
Necessity Of Examining The
Condition Of The States -
Part III

Legislative Power Of The State

Division of the Legislative Body into two Houses - Senate - House

of Representatives - Different functions of these two Bodies.

The legislative power of the State is vested in two

assemblies, the first of which generally bears the name of the

Senate. The Senate is commonly a legislative body; but it

sometimes becomes an executive and judicial one. It takes a part

in the government in several ways, according to the constitution

of the different States; *m but it is in the nomination of public

functionaries that it most commonly assumes an executive power.

It partakes of judicial power in the trial of certain political

offences, and sometimes also in the decision of certain civil

cases. *n The number of its members is always small. The other

branch of the legislature, which is usually called the House of

Representatives, has no share whatever in the administration, and

only takes a part in the judicial power inasmuch as it impeaches

public functionaries before the Senate. The members of the two

Houses are nearly everywhere subject to the same conditions of

election. They are chosen in the same manner, and by the same

citizens. The only difference which exists between them is, that

the term for which the Senate is chosen is in general longer than

that of the House of Representatives. The latter seldom remain in

office longer than a year; the former usually sit two or three

years. By granting to the senators the privilege of being chosen

for several years, and being renewed seriatim, the law takes care

to preserve in the legislative body a nucleus of men already

accustomed to public business, and capable of exercising a

salutary influence upon the junior members.

[Footnote m: In Massachusetts the Senate is not invested with any

administrative functions.]

[Footnote n: As in the State of New York.]

The Americans, plainly, did not desire, by this separation

of the legislative body into two branches, to make one house

hereditary and the other elective; one aristocratic and the other

democratic. It was not their object to create in the one a

bulwark to power, whilst the other represented the interests and

passions of the people. The only advantages which result from

the present constitution of the United States are the division of

the legislative power and the consequent check upon political

assemblies; with the creation of a tribunal of appeal for the

revision of the laws.

Time and experience, however, have convinced the Americans

that if these are its only advantages, the division of the

legislative power is still a principle of the greatest necessity.

Pennsylvania was the only one of the United States which at first

attempted to establish a single House of Assembly, and Franklin

himself was so far carried away by the necessary consequences of

the principle of the sovereignty of the people as to have

concurred in the measure; but the Pennsylvanians were soon

obliged to change the law, and to create two Houses. Thus the

principle of the division of the legislative power was finally

established, and its necessity may henceforward be regarded as a

demonstrated truth. This theory, which was nearly unknown to the

republics of antiquity - which was introduced into the world

almost by accident, like so many other great truths - and

misunderstood by several modern nations, is at length become an

axiom in the political science of the present age.

[See Benjamin Franklin]

The Executive Power Of The State

Office of Governor in an American State - The place he occupies

in relation to the Legislature - His rights and his duties - His

dependence on the people.

The executive power of the State may with truth be said to

be represented by the Governor, although he enjoys but a portion

of its rights. The supreme magistrate, under the title of

Governor, is the official moderator and counsellor of the

legislature. He is armed with a veto or suspensive power, which

allows him to stop, or at least to retard, its movements at

pleasure. He lays the wants of the country before the legislative

body, and points out the means which he thinks may be usefully

employed in providing for them; he is the natural executor of its

decrees in all the undertakings which interest the nation at

large. *o In the absence of the legislature, the Governor is

bound to take all necessary steps to guard the State against

violent shocks and unforeseen dangers. The whole military power

of the State is at the disposal of the Governor. He is the

commander of the militia, and head of the armed force. When the

authority, which is by general consent awarded to the laws, is

disregarded, the Governor puts himself at the head of the armed

force of the State, to quell resistance, and to restore order.

Lastly, the Governor takes no share in the administration of

townships and counties, except it be indirectly in the nomination

of Justices of the Peace, which nomination he has not the power

to cancel. *p The Governor is an elected magistrate, and is

generally chosen for one or two years only; so that he always

continues to be strictly dependent upon the majority who returned

him.

[Footnote o: 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.]

[Footnote p: In some of the States the justices of the peace are

not elected by the Governor.]

Political Effects Of The System Of Local
Administration In The United States

Necessary distinction between the general centralization of

Government and the centralization of the local administration -

Local administration not centralized in the United States: great

general centralization of the Government - Some bad consequences

resulting to the United States from the local administration -

Administrative advantages attending this order of things - The

power which conducts the Government is less regular, less

enlightened, less learned, but much greater than in Europe -

Political advantages of this order of things - In the United

States the interests of the country are everywhere kept in view -

Support given to the Government by the community - Provincial

institutions more necessary in proportion as the social condition

becomes more democratic - Reason of this.

Centralization is become a word of general and daily use,

without any precise meaning being attached to it. Nevertheless,

there exist two distinct kinds of centralization, which it is

necessary to discriminate with accuracy. Certain interests are

common to all parts of a nation, such as the enactment of its

general laws and the maintenance of its foreign relations. Other

interests are peculiar to certain parts of the nation; such, for

instance, as the business of different townships. When the power

which directs the general interests is centred in one place, or

vested in the same persons, it constitutes a central government.

In like manner the power of directing partial or local interests,

when brought together into one place, constitutes what may be

termed a central administration.

Upon some points these two kinds of centralization coalesce;

but by classifying the objects which fall more particularly

within the province of each of them, they may easily be

distinguished. It is evident that a central government acquires

immense power when united to administrative centralization. Thus

combined, it accustoms men to set their own will habitually and

completely aside; to submit, not only for once, or upon one

point, but in every respect, and at all times. Not only,

therefore, does this union of power subdue them compulsorily, but

it affects them in the ordinary habits of life, and influences

each individual, first separately and then collectively.

These two kinds of centralization mutually assist and

attract each other; but they must not be supposed to be

inseparable. It is impossible to imagine a more completely

central government than that which existed in France under Louis

XIV.; when the same individual was the author and the interpreter

of the laws, and the representative of France at home and abroad,

he was justified in asserting that the State was identified with

his person. Nevertheless, the administration was much less

centralized under Louis XIV. than it is at the present day.

In England the centralization of the government is carried

to great perfection; the State has the compact vigor of a man,

and by the sole act of its will it puts immense engines in

motion, and wields or collects the efforts of its authority.

Indeed, I cannot conceive that a nation can enjoy a secure or

prosperous existence without a powerful centralization of

government. But I am of opinion that a central administration

enervates the nations in which it exists by incessantly

diminishing their public spirit. If such an administration

succeeds in condensing at a given moment, on a given point, all

the disposable resources of a people, it impairs at least the

renewal of those resources. It may ensure a victory in the hour

of strife, but it gradually relaxes the sinews of strength. It

may contribute admirably to the transient greatness of a man, but

it cannot ensure the durable prosperity of a nation.

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 centralization 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 was never 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 centralization 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 amongst 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 has even produced some disadvantageous consequences in

America. But in the United States the centralization 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

nations 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 district assemblies and county courts have not in

general been multiplied, 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

this 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. *q 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. It is desirable

that, in whatever 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.

[Footnote q: [The Civil War of 1860-65 cruelly belied this

statement, and in the course of the struggle the North alone

called two millions and a half of men to arms; but to the honor

of the United States it must be added that, with the cessation of

the contest, this army disappeared as rapidly as it had been

raised. - Translator's Note.]]

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. *r As the State has

no administrative functionaries of its own, stationed on

different points 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 him at

first to imagine that society is in a state of anarchy; nor does

he perceive his mistake till he has 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.

[Footnote r: 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.]

The partisans of centralization in Europe are wont to

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 centralization, 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.

Centralization succeeds more easily, indeed, in subjecting

the external actions of men to a certain uniformity, which at

least 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. Centralization imparts without

difficulty an admirable regularity to the routine of business;

provides for 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: *s 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 whilst 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 cooperated 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.

[Footnote s: 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.]

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 civilization. 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 an 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, *t 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.

[Footnote t: 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.]

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 should protect the tranquillity of my

pleasures and constantly avert all dangers from my path, without

my care or my concern, if this same authority is the absolute

mistress of my liberty and of my life, and if it so monopolizes

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 of 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

conquests, 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 a vague

reminiscence of its bygone fame, suffices to give them the

impulse of self- preservation.

Nor can the prodigious exertions made by tribes in the

defence of a country to which they did not belong 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, or

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 Sultan 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, an 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 an absolute government.

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 the 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 its success, to which he conceives himself to have

contributed, and he rejoices in the general prosperity by which

he profits. The feeling he entertains towards 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 often 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 have done.

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. *u In America the means

which the authorities have at their disposal for the discovery of

crimes and the arrest of criminals are few. The State police

does not exist, and passports are unknown. The criminal police

of the United States cannot be compared to 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 witnessed 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, whilst 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.

[Footnote u: See Appendix, I.]

I believe that provincial institutions are useful to all

nations, but nowhere do they appear to me to be more

indispensable than amongst 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, amongst 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 indiscriminate hatred, and its tendency

was at once to overthrow and to centralize. 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 that central administration which was one of the great

innovations of the Revolution? *v 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.

[Footnote v: See Appendix K.]

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 the 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 amongst 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.

 

Chapter VI: Judicial Power
In The United States

Chapter Summary

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.

Judicial Power In The United States
And Its Influence On Political Society

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 upon 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 now

adopted by the Americans. The judicial organization of the United

States is the institution which a 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 of 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 the 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 be a representative of 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 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. *a

[Footnote a: [The fifth article of the original Constitution of

the United States provides the mode in which amendments of the

Constitution may be made. Amendments must be proposed by

two-thirds of both Houses of Congress, and ratified by the

Legislatures of three-fourths of the several States. Fifteen

amendments of the Constitution have been made at different times

since 1789, the most important of which are the Thirteenth,

Fourteenth, and Fifteenth, framed and ratified after the Civil

War. The original Constitution of the United States, followed by

these fifteen amendments, is printed at the end of this edition.

- Translator's Note, 1874.]]

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.

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 reasons 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

of the judicial power for any length of time, 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 cogency. The persons to

whose interests 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 is 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, 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 at every turn. 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 suitors, and he cannot refuse

to decide it without abdicating the duties of his post. He

performs his functions as a citizen by fulfilling the precise

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 exact 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 an

efficacy which might in some cases 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 has ever been devised against the

tyranny of political assemblies.

Other Powers Granted To American Judges

The United States all the citizens have the right of indicting

public functionaries before the ordinary tribunals - How they use

this right - Art. 75 of the French Constitution 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 had 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 are

careful not to furnish these grounds of complaint when they are

afraid of being prosecuted.

This does not depend upon the republican form of 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

the 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 has 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 stopped by the authority of the

Crown, which enforced compliance with its absolute and despotic

will. It is painful to perceive how much lower we are sunk than

our forefathers, since we allow things to pass under the color of

justice and the sanction of the law which violence alone could

impose upon them.

 

Chapter VII: Political
Jurisdiction In The United States

Chapter Summary

Definition of political jurisdiction - What is understood by

political jurisdiction in France, in England, and in the United

States - In America the political judge can only pass sentence on

public officers - He more frequently passes a sentence of removal

from office than a penalty - Political jurisdiction as it exists

in the United States is, notwithstanding its mildness, and

perhaps in consequence of that mildness, a most powerful

instrument in the hands of the majority.

Political Jurisdiction In The United States

I understand, by political jurisdiction, that temporary

right of pronouncing a legal decision with which a political body

may be invested.

In absolute governments no utility can accrue from the

introduction of extraordinary forms of procedure; the prince in

whose name an offender is prosecuted is as much the sovereign of

the courts of justice as of everything else, and the idea which

is entertained of his power is of itself a sufficient security.

The only thing he has to fear is, that the external formalities

of justice should be neglected, and that his authority should be

dishonored from a wish to render it more absolute. But in most

free countries, in which the majority can never exercise the same

influence upon the tribunals as an absolute monarch, the judicial

power has occasionally been vested for a time in the

representatives of the nation. It has been thought better to

introduce a temporary confusion between the functions of the

different authorities than to violate the necessary principle of

the unity of government.

England, France, and the United States have established this

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

different adaptations which these three great nations have made

of the principle. In England and in France the House of Lords

and the Chambre des Paris *a constitute the highest criminal

court of their respective nations, and although they do not

habitually try all political offences, they are competent to try

them all. Another political body enjoys the right of impeachment

before the House of Lords: the only difference which exists

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

Commons may impeach whomsoever they please before the Lords,

whilst in France the Deputies can only employ this mode of

prosecution against the ministers of the Crown.

[Footnote a: [As it existed under the constitutional monarchy

down to 1848.]]

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

existing penal laws of the nation to punish the delinquents.

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

the legislature is authorized to impeach and another to judge:

the House of Representatives arraigns the offender, and the

Senate awards his sentence. But the Senate can only try such

persons as are brought before it by the House of Representatives,

and those persons must belong to the class of public

functionaries. Thus the jurisdiction of the Senate is less

extensive than that of the Peers of France, whilst the right of

impeachment by the Representatives is more general than that of

the Deputies. But the great difference which exists between

Europe and America is, that in Europe political tribunals are

empowered to inflict all the dispositions of the penal code,

while in America, when they have deprived the offender of his

official rank, and have declared him incapable of filling any

political office for the future, their jurisdiction terminates

and that of the ordinary tribunals begins.

Suppose, for instance, that the President of the United

States has committed the crime of high treason; the House of

Representatives impeaches him, and the Senate degrades him; he

must then be tried by a jury, which alone can deprive him of his

liberty or his life. This accurately illustrates the subject we

are treating. The political jurisdiction which is established by

the laws of Europe is intended to try great offenders, whatever

may be their birth, their rank, or their powers in the State; and

to this end all the privileges of the courts of justice are

temporarily extended to a great political assembly. The

legislator is then transformed into the magistrate; he is called

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

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

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

all the formalities of justice. When a public functionary is

impeached before an English or a French political tribunal, and

is found guilty, the sentence deprives him ipso facto of his

functions, and it may pronounce him to be incapable of resuming

them or any others for the future. But in this case the

political interdict is a consequence of the sentence, and not the

sentence itself. In Europe the sentence of a political tribunal

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

administrative measure. In the United States the contrary takes

place; and although the decision of the Senate is judicial in its

form, since the Senators are obliged to comply with the practices

and formalities of a court of justice; although it is judicial in

respect to the motives on which it is founded, since the Senate

is in general obliged to take an offence at common law as the

basis of its sentence; nevertheless the object of the proceeding

is purely administrative. If it had been the intention of the

American legislator to invest a political body with great

judicial authority, its action would not have been limited to the

circle of public functionaries, since the most dangerous enemies

of the State may be in the possession of no functions at all; and

this is especially true in republics, where party influence is

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

is increased by his exercising no legal power.

If it had been the intention of the American legislator to

give society the means of repressing State offences by exemplary

punishment, according to the practice of ordinary justice, the

resources of the penal code would all have been placed at the

disposal of the political tribunals. But the weapon with which

they are intrusted is an imperfect one, and it can never reach

the most dangerous offenders, since men who aim at the entire

subversion of the laws are not likely to murmur at a political

interdict.

The main object of the political jurisdiction which obtains

in the United States is, therefore, to deprive the ill-disposed

citizen of an authority which he has used amiss, and to prevent

him from ever acquiring it again. This is evidently an

administrative measure sanctioned by the formalities of a

judicial decision. In this matter the Americans have created a

mixed system; they have surrounded the act which removes a public

functionary with the securities of a political trial; and they

have deprived all political condemnations of their severest

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

this point; we at once perceive why the American constitutions

subject all the civil functionaries to the jurisdiction of the

Senate, whilst the military, whose crimes are nevertheless more

formidable, are exempted from that tribunal. In the civil

service none of the American functionaries can be said to be

removable; the places which some of them occupy are inalienable,

and the others are chosen for a term which cannot be shortened.

It is therefore necessary to try them all in order to deprive

them of their authority. But military officers are dependent on

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

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

them all.

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

shall meet with differences no less striking in the different

effects which each of them produces or may produce. In France

and in England the jurisdiction of political bodies is looked

upon as an extraordinary resource, which is only to be employed

in order to rescue society from unwonted dangers. It is not to

be denied that these tribunals, as they are constituted in

Europe, are apt to violate the conservative principle of the

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

lives and liberties of the subject. The same political

jurisdiction in the United States is only indirectly hostile to

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

and it does not hover, as in Europe, over the heads of the

community, since those only who have submitted to its authority

on accepting office are exposed to the severity of its

investigations. It is at the same time less formidable and less

efficacious; indeed, it has not been considered by the

legislators of the United States as a remedy for the more violent

evils of society, but as an ordinary means of conducting the

government. In this respect it probably exercises more real

influence on the social body in America than in Europe. We must

not be misled by the apparent mildness of the American

legislation in all that relates to political jurisdiction. It is

to be observed, in the first place, that in the United States the

tribunal which passes sentence is composed of the same elements,

and subject to the same influences, as the body which impeaches

the offender, and that this uniformity gives an almost

irresistible impulse to the vindictive passions of parties. If

political judges in the United States cannot inflict such heavy

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

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

formidable, is more certain. The principal object of the

political tribunals of Europe is to punish the offender; the

purpose of those in America is to deprive him of his authority.

A political condemnation in the United States may, therefore, be

looked upon as a preventive measure; and there is no reason for

restricting the judges to the exact definitions of criminal law.

Nothing can be more alarming than the excessive latitude with

which political offences are described in the laws of America.

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

runs thus: - "The President, Vice-President, and all civil

officers of the United States shall be removed from office on

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

high crimes and misdemeanors." Many of the Constitutions of the

States are even less explicit. "Public officers," says the

Constitution of Massachusetts, *b "shall be impeached for

misconduct or maladministration;" the Constitution of Virginia

declares that all the civil officers who shall have offended

against the State, by maladministration, corruption, or other

high crimes, may be impeached by the House of Delegates; in some

constitutions no offences are specified, in order to subject the

public functionaries to an unlimited responsibility. *c But I

will venture to affirm that it is precisely their mildness which

renders the American laws most formidable in this respect. We

have shown that in Europe the removal of a functionary and his

political interdiction are the consequences of the penalty he is

to undergo, and that in America they constitute the penalty

itself. The consequence is that in Europe political tribunals

are invested with rights which they are afraid to use, and that

the fear of punishing too much hinders them from punishing at

all. But in America no one hesitates to inflict a penalty from

which humanity does not recoil. To condemn a political opponent

to death, in order to deprive him of his power, is to commit what

all the world would execrate as a horrible assassination; but to

declare that opponent unworthy to exercise that authority, to

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

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

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

fatally severe to the majority of those upon whom it is

inflicted. Great criminals may undoubtedly brave its intangible

rigor, but ordinary offenders will dread it as a condemnation

which destroys their position in the world, casts a blight upon

their honor, and condemns them to a shameful inactivity worse

than death. The influence exercised in the United States upon the

progress of society by the jurisdiction of political bodies may

not appear to be formidable, but it is only the more immense. It

does not directly coerce the subject, but it renders the majority

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

unbounded authority on the legislator which can be exerted at

some momentous crisis, but it establishes a temperate and regular

influence, which is at all times available. If the power is

decreased, it can, on the other hand, be more conveniently

employed and more easily abused. By preventing political

tribunals from inflicting judicial punishments the Americans seem

to have eluded the worst consequences of legislative tyranny,

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

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

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

grasp of a popular majority. When the American republics begin

to degenerate it will be easy to verify the truth of this

observation, by remarking whether the number of political

impeachments augments.*d

[Footnote b: Chap. I. sect. ii. Section 8.]

[Footnote c: See the constitutions of Illinois, Maine,

Connecticut, and Georgia.]

[Footnote d: See Appendix, N.

[The impeachment of President Andrew Johnson in 1868 - which

was resorted to by his political opponents solely as a means of

turning him out of office, for it could not be contended that he

had been guilty of high crimes and misdemeanors, and he was in

fact honorably acquitted and reinstated in office - is a striking

confirmation of the truth of this remark. - Translator's Note,

1874.]]

 

Chapter VIII:
The Federal Constitution - Part I

I have hitherto considered each State as a separate whole,

and I have explained the different springs which the people sets

in motion, and the different means of action which it employs.

But all the States which I have considered as independent are

forced to submit, in certain cases, to the supreme authority of

the Union. The time is now come for me to examine separately the

supremacy with which the Union has been invested, and to cast a

rapid glance over the Federal Constitution.

Chapter Summary

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

the constituent authority - Interval of two years between this

appeal and the promulgation of the new Constitution.

History Of The Federal Constitution

The thirteen colonies which simultaneously threw off the

yoke of England towards the end of the last century professed, as

I have already observed, the same religion, the same language,

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

against a common enemy; and these reasons were sufficiently

strong to unite them one to another, and to consolidate them into

one nation. But as each of them had enjoyed a separate existence

and a government within its own control, the peculiar interests

and customs which resulted from this system were opposed to a

compact and intimate union which would have absorbed the

individual importance of each in the general importance of all.

Hence arose two opposite tendencies, the one prompting the

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

long as the war with the mother-country lasted the principle of

union was kept alive by necessity; and although the laws which

constituted it were defective, the common tie subsisted in spite

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

the faults of the legislation became manifest, and the State

seemed to be suddenly dissolved. Each colony became an

independent republic, and assumed an absolute sovereignty. The

federal government, condemned to impotence by its constitution,

and no longer sustained by the presence of a common danger,

witnessed the outrages offered to its flag by the great nations

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

against the Indian tribes, and to pay the interest of the debt

which had been contracted during the war of independence. It was

already on the verge of destruction, when it officially

proclaimed its inability to conduct the government, and appealed

to the constituent authority of the nation. *b If America ever

approached (for however brief a time) that lofty pinnacle of

glory to which the fancy of its inhabitants is wont to point, it

was at the solemn moment at which the power of the nation

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

furnished the spectacle of a people struggling with energy to win

its independence; and the efforts of the Americans in throwing

off the English yoke have been considerably exaggerated.

Separated from their enemies by three thousand miles of ocean,

and backed by a powerful ally, the success of the United States

may be more justly attributed to their geographical position than

to the valor of their armies or the patriotism of their citizens.

It would be ridiculous to compare the American was to the wars of

the French Revolution, or the efforts of the Americans to those

of the French when they were attacked by the whole of Europe,

without credit and without allies, yet capable of opposing a

twentieth part of their population to the world, and of bearing

the torch of revolution beyond their frontiers whilst they

stifled its devouring flame within the bosom of their country.

But it is a novelty in the history of society to see a great

people turn a calm and scrutinizing eye upon itself, when

apprised by the legislature that the wheels of government are

stopped; to see it carefully examine the extent of the evil, and

patiently wait for two whole years until a remedy was discovered,

which it voluntarily adopted without having wrung a tear or a

drop of blood from mankind. At the time when the inadequacy of

the first constitution was discovered America possessed the

double advantage of that calm which had succeeded the

effervescence of the revolution, and of those great men who had

led the revolution to a successful issue. The assembly which

accepted the task of composing the second constitution was small;

*c but George Washington was its President, and it contained the

choicest talents and the noblest hearts which had ever appeared

in the New World. This national commission, after long and

mature deliberation, offered to the acceptance of the people the

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

adopted it successively. *d The new Federal Government commenced

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

Revolution of America terminated when that of France began.

[Footnote a: See the articles of the first confederation formed

in 1778. This constitution was not adopted by all the States

until 1781. See also the analysis given of this constitution in

"The Federalist" from No. 15 to No. 22, inclusive, and Story's

"Commentaries on the Constitution of the United States," pp.

85-115.]

[Footnote b: Congress made this declaration on February 21,

1787.]

[Footnote c: It consisted of fifty-five members; Washington,

Madison, Hamilton, and the two Morrises were amongst the number.]

[Footnote d: It was not adopted by the legislative bodies, but

representatives were elected by the people for this sole purpose;

and the new constitution was discussed at length in each of these

assemblies.]

Summary Of The Federal Constitution

Division of authority between the Federal Government and the

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

Government the exception.

The first question which awaited the Americans was

intricate, and by no means easy of solution: the object was so to

divide the authority of the different States which composed the

Union that each of them should continue to govern itself in all

that concerned its internal prosperity, whilst the entire nation,

represented by the Union, should continue to form a compact body,

and to provide for the general exigencies of the people. It was

as impossible to determine beforehand, with any degree of

accuracy, the share of authority which each of two governments

was to enjoy, as to foresee all the incidents in the existence of

a nation.

The obligations and the claims of the Federal Government

were simple and easily definable, because the Union had been

formed with the express purpose of meeting the general exigencies

of the people; but the claims and obligations of the States were,

on the other hand, complicated and various, because those

Governments had penetrated into all the details of social life.

The attributes of the Federal Government were therefore carefully

enumerated and all that was not included amongst them was

declared to constitute a part of the privileges of the several

Governments of the States. Thus the government of the States

remained the rule, and that of the Confederation became the

exception. *e

[Footnote e: See the Amendment to the Federal Constitution;

"Federalist," No. 32; Story, p. 711; Kent's "Commentaries," vol.

i. p. 364.

It is to be observed that whenever the exclusive right of

regulating certain matters is not reserved to Congress by the

Constitution, the States may take up the affair until it is

brought before the National Assembly. For instance, Congress has

the right of making a general law on bankruptcy, which, however,

it neglects to do. Each State is then at liberty to make a law

for itself. This point has been established by discussion in the

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

jurisprudence.]

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

arise as to the exact limits of this exceptional authority, and

that it would be dangerous to submit these questions to the

decision of the ordinary courts of justice, established in the

States by the States themselves, a high Federal court was

created, *f which was destined, amongst other functions, to

maintain the balance of power which had been established by the

Constitution between the two rival Governments. *g

[Footnote f: The action of this court is indirect, as we shall

hereafter show.]

[Footnote g: It is thus that "The Federalist," No. 45, explains

the division of supremacy between the Union and the States: "The

powers delegated by the Constitution to the Federal Government

are few and defined. Those which are to remain in the State

Governments are numerous and indefinite. The former will be

exercised principally on external objects, as war, peace,

negotiation, and foreign commerce. The powers reserved to the

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

ordinary course of affairs, concern the internal order and

prosperity of the State." I shall often have occasion to quote

"The Federalist" in this work. When the bill which has since

become the Constitution of the United States was submitted to the

approval of the people, and the discussions were still pending,

three men, who had already acquired a portion of that celebrity

which they have since enjoyed - John Jay, Hamilton, and Madison -

formed an association with the intention of explaining to the

nation the advantages of the measure which was proposed. With

this view they published a series of articles in the shape of a

journal, which now form a complete treatise. They entitled their

journal "The Federalist," a name which has been retained in the

work. "The Federalist" is an excellent book, which ought to be

familiar to the statesmen of all countries, although it

especially concerns America.]

Prerogative Of The Federal Government

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

vested in the Federal Government - What part of the internal

policy of the country it may direct - The Government of the Union

in some respects more central than the King's Government in the

old French monarchy.

The external relations of a people may be compared to those

of private individuals, and they cannot be advantageously

maintained without the agency of a single head of a Government.

The exclusive right of making peace and war, of concluding

treaties of commerce, of raising armies, and equipping fleets,

was granted to the Union. *h The necessity of a national

Government was less imperiously felt in the conduct of the

internal policy of society; but there are certain general

interests which can only be attended to with advantage by a

general authority. The Union was invested with the power of

controlling the monetary system, of directing the post office,

and of opening the great roads which were to establish a

communication between the different parts of the country. *i The

independence of the Government of each State was formally

recognized in its sphere; nevertheless, the Federal Government

was authorized to interfere in the internal affairs of the States

*j in a few predetermined cases, in which an indiscreet abuse of

their independence might compromise the security of the Union at

large. Thus, whilst the power of modifying and changing their

legislation at pleasure was preserved in all the republics, they

were forbidden to enact ex post facto laws, or to create a class

of nobles in their community. *k Lastly, as it was necessary that

the Federal Government should be able to fulfil its engagements,

it was endowed with an unlimited power of levying taxes. *l

[Footnote h: See Constitution, sect. 8; "Federalist," Nos. 41 and

42; Kent's "Commentaries," vol. i. p. 207; Story, pp. 358-382;

Ibid. pp. 409-426.]

[Footnote i: 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.]

[Footnote j: Even in these cases its interference is indirect.

The Union interferes by means of the tribunals, as will be

hereafter shown.]

[Footnote k: Federal Constitution, sect. 10, art. I.]

[Footnote l: Constitution, sects. 8, 9, and 10; "Federalist,"

Nos. 30-36, inclusive, and 41-44; Kent's "Commentaries," vol. i.

pp. 207 and 381; Story, pp. 329 and 514.]

In examining the balance of power as established by the

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

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

the other the share of power which the Union has assumed, it is

evident that the Federal legislators entertained the clearest and

most accurate notions on the nature of the centralization of

government. The United States form not only a republic, but a

confederation; nevertheless the authority of the nation is more

central than it was in several of the monarchies of Europe when

the American Constitution was formed. Take, for instance, the

two following examples.

Thirteen supreme courts of justice existed in France, which,

generally speaking, had the right of interpreting the law without

appeal; and those provinces which were styled pays d'etats were

authorized to refuse their assent to an impost which had been

levied by the sovereign who represented the nation. In the Union

there is but one tribunal to interpret, as there is one

legislature to make the laws; and an impost voted by the

representatives of the nation is binding upon all the citizens.

In these two essential points, therefore, the Union exercises

more central authority than the French monarchy possessed,

although the Union is only an assemblage of confederate

republics.

In Spain certain provinces had the right of establishing a

system of custom-house duties peculiar to themselves, although

that privilege belongs, by its very nature, to the national

sovereignty. In America the Congress alone has the right of

regulating the commercial relations of the States. The government

of the Confederation is therefore more centralized in this

respect than the kingdom of Spain. It is true that the power of

the Crown in France or in Spain was always able to obtain by

force whatever the Constitution of the country denied, and that

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

discussing the theory of the Constitution.

Federal Powers

After having settled the limits within which the Federal

Government was to act, the next point was to determine the powers

which it was to exert.

Legislative Powers *m

[Footnote m: [In this chapter the author points out the essence

of the conflict between the seceding States and the Union which

caused the Civil War of 1861.]]

Division of the Legislative Body into two branches - Difference

in the manner of forming the two Houses - The principle of the

independence of the States predominates in the formation of the

Senate - The principle of the sovereignty of the nation in the

composition of the House of Representatives - Singular effects of

the fact that a Constitution can only be logical in the early

stages of a nation.

The plan which had been laid down beforehand for the

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

in the organization of the powers of the Union. The Federal

legislature of the Union was composed of a Senate and a House of

Representatives. A spirit of conciliation prescribed the

observance of distinct principles in the formation of these two

assemblies. I have already shown that two contrary interests

were opposed to each other in the establishment of the Federal

Constitution. These two interests had given rise to two

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

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

the representatives of the several peoples would meet to discuss

certain points of their common interests. The other party

desired to unite the inhabitants of the American colonies into

one sole nation, and to establish a Government which should act

as the sole representative of the nation, as far as the limited

sphere of its authority would permit. The practical consequences

of these two theories were exceedingly different.

The question was, whether a league was to be established

instead of a national Government; whether the majority of the

State, instead of the majority of the inhabitants of the Union,

was to give the law: for every State, the small as well as the

great, would then remain in the full enjoyment of its

independence, and enter the Union upon a footing of perfect

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

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

would be just that the majority of the citizens of the Union

should prescribe the law. Of course the lesser States could not

subscribe to the application of this doctrine without, in fact,

abdicating their existence in relation to the sovereignty of the

Confederation; since they would have passed from the condition of

a co-equal and co-legislative authority to that of an

insignificant fraction of a great people. But if the former

system would have invested them with an excessive authority, the

latter would have annulled their influence altogether. Under

these circumstances the result was, that the strict rules of

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

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

legislators, which brought together by force two systems

theoretically irreconcilable.

The principle of the independence of the States prevailed in

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

nation predominated in the composition of the House of

Representatives. It was decided that each State should send two

senators to Congress, and a number of representatives

proportioned to its population. *n It results from this

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

forty representatives and only two senators; the State of

Delaware has two senators and only one representative; the State

of Delaware is therefore equal to the State of New York in the

Senate, whilst the latter has forty times the influence of the

former in the House of Representatives. Thus, if the minority of

the nation preponderates in the Senate,. it may paralyze the

decisions of the majority represented in the other House, which

is contrary to the spirit of constitutional

government.

[Footnote n: Every ten years Congress fixes anew the number of

representatives which each State is to furnish. The total number

was 69 in 1789, and 240 in 1833. (See "American Almanac," 1834,

p. 194.) The Constitution decided that there should not be more

than one representative for every 30,000 persons; but no minimum

was fixed on. The Congress has not thought fit to augment the

number of representatives in proportion to the increase of

population. The first Act which was passed on the subject (April

14, 1792: see "Laws of the United States," by Story, vol. i. p.

235) decided that there should be one representative for every

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

fixes the proportion at one for 48,000. The population

represented is composed of all the free men and of three-fifths

of the slaves.

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

fixes the representation at one to 134,684 inhabitants. There

are now (1875) 283 members of the lower House of Congress, and 9

for the States at large, making in all 292 members. The old

States have of course lost the representatives which the new

States have gained. - Translator's Note.]]

These facts show how rare and how difficult it is rationally

and logically to combine all the several parts of legislation.

In the course of time different interests arise, and different

principles are sanctioned by the same people; and when a general

constitution is to be established, these interests and principles

are so many natural obstacles to the rigorous application of any

political system, with all its consequences. The early stages of

national existence are the only periods at which it is possible

to maintain the complete logic of legislation; and when we

perceive a nation in the enjoyment of this advantage, before we

hasten to conclude that it is wise, we should do well to remember

that it is young. When the Federal Constitution was formed, the

interests of independence for the separate States, and the

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

conflicting interests which existed amongst the Anglo-Americans,

and a compromise was necessarily made between them.

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

Constitution has not hitherto produced those evils which might

have been feared. All the States are young and contiguous; their

customs, their ideas, and their exigencies are not dissimilar;

and the differences which result from their size or inferiority

do not suffice to set their interests at variance. The small

States have consequently never been induced to league themselves

together in the Senate to oppose the designs of the larger ones;

and indeed there is so irresistible an authority in the

legitimate expression of the will of a people that the Senate

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

of the House of

Representatives.

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

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

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

the Federal Constitution was not to destroy the independence of

the States, but to restrain it. By acknowledging the real

authority of these secondary communities (and it was impossible

to deprive them of it), they disavowed beforehand the habitual

use of constraint in enforcing g the decisions of the majority.

Upon this principle the introduction of the influence of the

States into the mechanism of the Federal Government was by no

means to be wondered at, since it only attested the existence of

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

checked.

A Further Difference Between The Senate
And The House Of Representatives

The Senate named by the provincial legislators, the

Representatives by the people - Double election of the former;

single election of the latter - Term of the different offices -

Peculiar functions of each House.

The Senate not only differs from the other House in the

principle which it represents, but also in the mode of its

election, in the term for which it is chosen, and in the nature

of its functions. The House of Representatives is named by the

people, the Senate by the legislators of each State; the former

is directly elected, the latter is elected by an elected body;

the term for which the representatives are chosen is only two

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

of Representatives are purely legislative, and the only share it

takes in the judicial power is in the impeachment of public

officers. The Senate co-operates in the work of legislation, and

tries those political offences which the House of Representatives

submits to its decision. It also acts as the great executive

council of the nation; the treaties which are concluded by the

President must be ratified by the Senate, and the appointments he

may make must be definitely approved by the same body. *o

[Footnote o: See "The Federalist," Nos. 52-56, inclusive; Story,

pp. 199-314; Constitution of the United States, sects. 2 and 3.]

The Executive Power *p

[Footnote p: See "The Federalist," Nos. 67-77; Constitution of

the United States, art. 2; Story, p. 315, pp. 615-780; Kent's

"Commentaries," p. 255.]

Dependence of the President - He is elective and responsible - He

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

under the direction, of the Senate - His salary fixed at his

entry into office - Suspensive veto.

The American legislators undertook a difficult task in

attempting to create an executive power dependent on the majority

of the people, and nevertheless sufficiently strong to act

without restraint in its own sphere. It was indispensable to the

maintenance of the republican form of government that the

representative of the executive power should be subject to the

will of the nation.

The President is an elective magistrate. His honor, his

property, his liberty, and his life are the securities which the

people has for the temperate use of his power. But in the

exercise of his authority he cannot be said to be perfectly

independent; the Senate takes cognizance of his relations with

foreign powers, and of the distribution of public appointments,

so that he can neither be bribed nor can he employ the means of

corruption. The legislators of the Union acknowledged that the

executive power would be incompetent to fulfil its task with

dignity and utility, unless it enjoyed a greater degree of

stability and of strength than had been granted to it in the

separate States.

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

reelected; so that the chances of a prolonged administration may

inspire him with hopeful undertakings for the public good, and

with the means of carrying them into execution. The President

was made the sole representative of the executive power of the

Union, and care was taken not to render his decisions subordinate

to the vote of a council - a dangerous measure, which tends at

the same time to clog the action of the Government and to

diminish its responsibility. The Senate has the right of

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

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

the executive power.

The action of the legislature on the executive power may be

direct; and we have just shown that the Americans carefully

obviated this influence; but it may, on the other hand, be

indirect. Public assemblies which have the power of depriving an

officer of state of his salary encroach upon his independence;

and as they are free to make the laws, it is to be feared lest

they should gradually appropriate to themselves a portion of that

authority which the Constitution had vested in his hands. This

dependence of the executive power is one of the defects inherent

in republican constitutions. The Americans have not been able to

counteract the tendency which legislative assemblies have to get

possession of the government, but they have rendered this

propensity less irresistible. The salary of the President is

fixed, at the time of his entering upon office, for the whole

period of his magistracy. The President is, moreover, provided

with a suspensive veto, which allows him to oppose the passing of

such laws as might destroy the portion of independence which the

Constitution awards him. The struggle between the President and

the legislature must always be an unequal one, since the latter

is certain of bearing down all resistance by persevering in its

plans; but the suspensive veto forces it at least to reconsider

the matter, and, if the motion be persisted in, it must then be

backed by a majority of two-thirds of the whole house. The veto

is, in fact, a sort of appeal to the people. The executive power,

which, without this security, might have been secretly oppressed,

adopts this means of pleading its cause and stating its motives.

But if the legislature is certain of overpowering all resistance

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

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

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

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

more prominent and more discoverable in republics, whilst it is

more remote and more carefully concealed in monarchies, but it

always exists somewhere. There is no country in the world in

which everything can be provided for by the laws, or in which

political institutions can prove a substitute for common sense

and public morality.

Differences Between The Position Of The President Of The United

States And That Of A Constitutional King Of France

Executive power in the Northern States as limited and as partial

as the supremacy which it represents - Executive power in France

as universal as the supremacy it represents - The King a branch

of the legislature - The President the mere executor of the law -

Other differences resulting from the duration of the two powers -

The President checked in the exercise of the executive authority

- The King independent in its exercise - Notwithstanding these

discrepancies France is more akin to a republic than the Union to

a monarchy -Comparison of the number of public officers depending

upon the executive power in the two countries.

The executive power has so important an influence on the

destinies of nations that I am inclined to pause for an instant

at this portion of my subject, in order more clearly to explain

the part it sustains in America. In order to form an accurate

idea of the position of the President of the United States, it

may not be irrelevant to compare it to that of one of the

constitutional kings of Europe. In this comparison I shall pay

but little attention to the external signs of power, which are

more apt to deceive the eye of the observer than to guide his

researches. When a monarchy is being gradually transformed into a

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

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

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

one king and expelled another from his throne, were accustomed to

accost the successor of those princes upon their knees. On the

other hand, when a republic falls under the sway of a single

individual, the demeanor of the sovereign is simple and

unpretending, as if his authority was not yet paramount. When

the emperors exercised an unlimited control over the fortunes and

the lives of their fellow-citizens, it was customary to call them

Caesar in conversation, and they were in the habit of supping

without formality at their friends' houses. It is therefore

necessary to look below the surface.

The sovereignty of the United States is shared between the

Union and the States, whilst in France it is undivided and

compact: hence arises the first and the most notable difference

which exists between the President of the United States and the

King of France. In the United States the executive power is as

limited and partial as the sovereignty of the Union in whose name

it acts; in France it is as universal as the authority of the

State. The Americans have a federal and the French a national

Government.

 

Chapter VIII:
The Federal Constitution - Part II

This cause of inferiority results from the nature of things,

but it is not the only one; the second in importance is as

follows: Sovereignty may be defined to be the right of making

laws: in France, the King really exercises a portion of the

sovereign power, since the laws have no weight till he has given

his assent to them; he is, moreover, the executor of all they

ordain. The President is also the executor of the laws, but he

does not really co-operate in their formation, since the refusal

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

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

does the King of France exercise a portion of the sovereign

power, he also contributes to the nomination of the legislature,

which exercises the other portion. He has the privilege of

appointing the members of one chamber, and of dissolving the

other at his pleasure; whereas the President of the United States

has no share in the formation of the legislative body, and cannot

dissolve any part of it. The King has the same right of bringing

forward measures as the Chambers; a right which the President

does not possess. The King is represented in each assembly by

his ministers, who explain his intentions, support his opinions,

and maintain the principles of the Government. The President and

his ministers are alike excluded from Congress; so that his

influence and his opinions can only penetrate indirectly into

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

footing with the legislature, which can no more act without him

than he can without it. The President exercises an authority

inferior to, and depending upon, that of the legislature.

Even in the exercise of the executive power, properly so

called - the point upon which his position seems to be most

analogous to that of the King of France - the President labors

under several causes of inferiority. The authority of the King,

in France, has, in the first place, the advantage of duration

over that of the President, and durability is one of the chief

elements of strength; nothing is either loved or feared but what

is likely to endure. The President of the United States is a

magistrate elected for four years; the King, in France, is an

hereditary sovereign. In the exercise of the executive power the

President of the United States is constantly subject to a jealous

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

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

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

President of the United States is responsible for his actions;

but the person of the King is declared inviolable by the French

Charter. *r

[Footnote q: 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.]

[Footnote r: [This comparison applied to the Constitutional King

of France and to the powers he held under the Charter of 1830,

till the overthrow of the monarchy in 1848. - Translator's

Note.]]

Nevertheless, the supremacy of public opinion is no less

above the head of the one than of the other. This power is less

definite, less evident, and less sanctioned by the laws in France

than in America, but in fact it exists. In America, it acts by

elections and decrees; in France it proceeds by revolutions; but

notwithstanding the different constitutions of these two

countries, public opinion is the predominant authority in both of

them. The fundamental principle of legislation - a principle

essentially republican - is the same in both countries, although

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

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

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

to a monarchy.

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

points of distinction; and if I could have entered into details,

the contrast would have been rendered still more striking.

I have remarked that the authority of the President in the

United States is only exercised within the limits of a partial

sovereignty, whilst that of the King in France is undivided. I

might have gone on to show that the power of the King's

government in France exceeds its natural limits, however

extensive they may be, and penetrates in a thousand different

ways into the administration of private interests. Amongst the

examples of this influence may be quoted that which results from

the great number of public functionaries, who all derive their

appointments from the Government. This number now exceeds all

previous limits; it amounts to 138,000 *s nominations, each of

which may be considered as an element of power. The President of

the United States has not the exclusive right of making any

public appointments, and their whole number scarcely exceeds

12,000. *t

[Footnote s: The sums annually paid by the State to these

officers amount to 200,000,000 fr. ($40,000,000).]

[Footnote t: This number is extracted from the "National

Calendar" for 1833. The "National Calendar" is an American

almanac which contains the names of all the Federal officers. It

results from this comparison that the King of France has eleven

times as many places at his disposal as the President, although

the population of France is not much more than double that of the

Union.

[I have not the means of ascertaining the number of

appointments now at the disposal of the President of the United

States, but his patronage and the abuse of it have largely

increased since 1833. - Translator's Note, 1875.]]

Accidental Causes Which May Increase The Influence Of The

Executive Government

External security of the Union - Army of six thousand men - Few

ships - The President has no opportunity of exercising his great

prerogatives - In the prerogatives he exercises he is weak.

If the executive government is feebler in America than in

France, the cause is more attributable to the circumstances than

to the laws of the country.

It is chiefly in its foreign relations that the executive

power of a nation is called upon to exert its skill and its

vigor. If the existence of the Union were perpetually

threatened, and if its chief interests were in daily connection

with those of other powerful nations, the executive government

would assume an increased importance in proportion to the

measures expected of it, and those which it would carry into

effect. The President of the United States is the

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

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

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

the United States are a nation without neighbors. Separated from

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

the dominion of the seas, they have no enemies, and their

interests rarely come into contact with those of any other nation

of the globe.

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

theory of its constitution. The President of the United States

is in the possession of almost royal prerogatives, which he has

no opportunity of exercising; and those privileges which he can

at present use are very circumscribed. The laws allow him to

possess a degree of influence which circumstances do not permit

him to employ.

On the other hand, the great strength of the royal

prerogative in France arises from circumstances far more than

from the laws. There the executive government is constantly

struggling against prodigious obstacles, and exerting all its

energies to repress them; so that it increases by the extent of

its achievements, and by the importance of the events it

controls, without modifying its constitution. If the laws had

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

influence would very soon become still more preponderant.

Why The President Of The United States Does Not Require The

Majority Of The Two Houses In Order To Carry On The Government

It is an established axiom in Europe that a constitutional

King cannot persevere in a system of government which is opposed

by the two other branches of the legislature. But several

Presidents of the United States have been known to lose the

majority in the legislative body without being obliged to abandon

the supreme power, and without inflicting a serious evil upon

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

independence and the power of the executive government in

America: a moment's reflection will convince us, on the contrary,

that it is a proof of its extreme weakness.

A King in Europe requires the support of the legislature to

enable him to perform the duties imposed upon him by the

Constitution, because those duties are enormous. A

constitutional King in Europe is not merely the executor of the

law, but the execution of its provisions devolves so completely

upon him that he has the power of paralyzing its influence if it

opposes his designs. He requires the assistance of the

legislative assemblies to make the law, but those assemblies

stand in need of his aid to execute it: these two authorities

cannot subsist without each other, and the mechanism of

government is stopped as soon as they are at variance.

In America the President cannot prevent any law from being

passed, nor can he evade the obligation of enforcing it. His

sincere and zealous co-operation is no doubt useful, but it is

not indispensable, in the carrying on of public affairs. All his

important acts are directly or indirectly submitted to the

legislature, and of his own free authority he can do but little.

It is therefore his weakness, and not his power, which enables

him to remain in opposition to Congress. In Europe, harmony must

reign between the Crown and the other branches of the

legislature, because a collision between them may prove serious;

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

collision is impossible.

Election Of The President

Dangers of the elective system increase in proportion to the

extent of the prerogative - This system possible in America

because no powerful executive authority is required - What

circumstances are favorable to the elective system - Why the

election of the President does not cause a deviation from the

principles of the Government - Influence of the election of the

President on secondary functionaries.

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

the executive government of a great people have been sufficiently

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

about to make refer to America alone. These dangers may be more

or less formidable in proportion to the place which the executive

power occupies, and to the importance it possesses in the State;

and they may vary according to the mode of election and the

circumstances in which the electors are placed. The most weighty

argument against the election of a chief magistrate is, that it

offers so splendid a lure to private ambition, and is so apt to

inflame men in the pursuit of power, that when legitimate means

are wanting force may not unfrequently seize what right denied.

It is clear that the greater the privileges of the executive

authority are, the greater is the temptation; the more the

ambition of the candidates is excited, the more warmly are their

interests espoused by a throng of partisans who hope to share the

power when their patron has won the prize. The dangers of the

elective system increase, therefore, in the exact ratio of the

influence exercised by the executive power in the affairs of

State. The revolutions of Poland were not solely attributable to

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

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

discuss the absolute advantages of the elective system we must

make preliminary inquiries as to whether the geographical

position, the laws, the habits, the manners, and the opinions of

the people amongst whom it is to be introduced will admit of the

establishment of a weak and dependent executive government; for

to attempt to render the representative of the State a powerful

sovereign, and at the same time elective, is, in my opinion, to

entertain two incompatible designs. To reduce hereditary royalty

to the condition of an elective authority, the only means that I

am acquainted with are to circumscribe its sphere of action

beforehand, gradually to diminish its prerogatives, and to

accustom the people to live without its protection. Nothing,

however, is further from the designs of the republicans of Europe

than this course: as many of them owe their hatred of tyranny to

the sufferings which they have personally undergone, it is

oppression, and not the extent of the executive power, which

excites their hostility, and they attack the former without

perceiving how nearly it is connected with the latter.

Hitherto no citizen has shown any disposition to expose his

honor and his life in order to become the President of the United

States; because the power of that office is temporary, limited,

and subordinate. The prize of fortune must be great to encourage

adventurers in so desperate a game. No candidate has as yet been

able to arouse the dangerous enthusiasm or the passionate

sympathies of the people in his favor, for the very simple reason

that when he is at the head of the Government he has but little

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

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

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

an individual to power.

The great advantage of hereditary monarchies is, that as the

private interest of a family is always intimately connected with

the interests of the State, the executive government is never

suspended for a single instant; and if the affairs of a monarchy

are not better conducted than those of a republic, at least there

is always some one to conduct them, well or ill, according to his

capacity. In elective States, on the contrary, the wheels of

government cease to act, as it were, of their own accord at the

approach of an election, and even for some time previous to that

event. The laws may indeed accelerate the operation of the

election, which may be conducted with such simplicity and

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

notwithstanding these precautions, a break necessarily occurs in

the minds of the people.

At the approach of an election the head of the executive

government is wholly occupied by the coming struggle; his future

plans are doubtful; he can undertake nothing new, and the he will

only prosecute with indifference those designs which another will

perhaps terminate. "I am so near the time of my retirement from

office," said President Jefferson on the 21st of January, 1809

(six weeks before the election), "that I feel no passion, I take

no part, I express no sentiment. It appears to me just to leave

to my successor the commencement of those measures which he will

have to prosecute, and for which he will be responsible."

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

single point; all are watching the gradual birth of so important

an event. The wider the influence of the executive power

extends, the greater and the more necessary is its constant

action, the more fatal is the term of suspense; and a nation

which is accustomed to the government, or, still more, one used

to the administrative protection of a powerful executive

authority would be infallibly convulsed by an election of this

kind. In the United States the action of the Government may be

slackened with impunity, because it is always weak and

circumscribed. *u

[Footnote u: [This, however, may be a great danger. The period

during which Mr. Buchanan retained office, after the election of

Mr. Lincoln, from November, 1860, to March, 1861, was that which

enabled the seceding States of the South to complete their

preparations for the Civil War, and the Executive Government was

paralyzed. No greater evil could befall a nation. -Translator's

Note.]]

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

always introduces a certain degree of instability into the

internal and external policy of the State. But this disadvantage

is less sensibly felt if the share of power vested in the elected

magistrate is small. In Rome the principles of the Government

underwent no variation, although the Consuls were changed every

year, because the Senate, which was an hereditary assembly,

possessed the directing authority. If the elective system were

adopted in Europe, the condition of most of the monarchical

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

President exercises a certain influence on State affairs, but he

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

representatives of the whole nation. The political maxims of the

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

President alone; and consequently in America the elective system

has no very prejudicial influence on the fixed principles of the

Government. But the want of fixed principles is an evil so

inherent in the elective system that it is still extremely

perceptible in the narrow sphere to which the authority of the

President extends.

The Americans have admitted that the head of the executive

power, who has to bear the whole responsibility of the duties he

is called upon to fulfil, ought to be empowered to choose his own

agents, and to remove them at pleasure: the legislative bodies

watch the conduct of the President more than they direct it. The

consequence of this arrangement is, that at every new election

the fate of all the Federal public officers is in suspense. Mr.

Quincy Adams, on his entry into office, discharged the majority

of the individuals who had been appointed by his predecessor: and

I am not aware that General Jackson allowed a single removable

functionary employed in the Federal service to retain his place

beyond the first year which succeeded his election. It is

sometimes made a subject of complaint that in the constitutional

monarchies of Europe the fate of the humbler servants of an

Administration depends upon that of the Ministers. But in

elective Governments this evil is far greater. In a

constitutional monarchy successive ministries are rapidly formed;

but as the principal representative of the executive power does

not change, the spirit of innovation is kept within bounds; the

changes which take place are in the details rather than in the

principles of the administrative system; but to substitute one

system for another, as is done in America every four years, by

law, is to cause a sort of revolution. As to the misfortunes

which may fall upon individuals in consequence of this state of

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

public officers is less fraught with evil consequences in America

than elsewhere. It is so easy to acquire an independent position

in the United States that the public officer who loses his place

may be deprived of the comforts of life, but not of the means of

subsistence.

I remarked at the beginning of this chapter that the dangers

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

augmented or decreased by the peculiar circumstances of the

people which adopts it. However the functions of the executive

power may be restricted, it must always exercise a great

influence upon the foreign policy of the country, for a

negotiation cannot be opened or successfully carried on otherwise

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

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

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

does the elective system of the Chief Magistrate become. The

policy of the Americans in relation to the whole world is

exceedingly simple; for it may almost be said that no country

stands in need of them, nor do they require the co-operation of

any other people. Their independence is never threatened. In

their present condition, therefore, the functions of the

executive power are no less limited by circumstances than by the

laws; and the President may frequently change his line of policy

without involving the State in difficulty or destruction.

Whatever the prerogatives of the executive power may be, the

period which immediately precedes an election and the moment of

its duration must always be considered as a national crisis,

which is perilous in proportion to the internal embarrassments

and the external dangers of the country. Few of the nations of

Europe could escape the calamities of anarchy or of conquest

every time they might have to elect a new sovereign. In America

society is so constituted that it can stand without assistance

upon its own basis; nothing is to be feared from the pressure of

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

agitation, but not of ruin.

Mode Of Election

Skill of the American legislators shown in the mode of election

adopted by them - Creation of a special electoral body - Separate

votes of these electors - Case in which the House of

Representatives is called upon to choose the President - Results

of the twelve elections which have taken place since the

Constitution has been established.

Besides the dangers which are inherent in the system, many

other difficulties may arise from the mode of election, which may

be obviated by the precaution of the legislator. When a people

met in arms on some public spot to choose its head, it was

exposed to all the chances of civil war resulting from so martial

a mode of proceeding, besides the dangers of the elective system

in itself. The Polish laws, which subjected the election of the

sovereign to the veto of a single individual, suggested the

murder of that individual or prepared the way to anarchy.

In the examination of the institutions and the political as

well as social condition of the United States, we are struck by

the admirable harmony of the gifts of fortune and the efforts of

man. The nation possessed two of the main causes of internal

peace; it was a new country, but it was inhabited by a people

grown old in the exercise of freedom. America had no hostile

neighbors to dread; and the American legislators, profiting by

these favorable circumstances, created a weak and subordinate

executive power which could without danger be made elective.

It then only remained for them to choose the least dangerous

of the various modes of election; and the rules which they laid

down upon this point admirably correspond to the securities which

the physical and political constitution of the country already

afforded. Their object was to find the mode of election which

would best express the choice of the people with the least

possible excitement and suspense. It was admitted in the first

place that the simple majority should be decisive; but the

difficulty was to obtain this majority without an interval of

delay which it was most important to avoid. It rarely happens

that an individual can at once collect the majority of the

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

republic of confederate States, where local influences are apt to

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

second obstacle was to delegate the electoral powers of the

nation to a body of representatives. This mode of election

rendered a majority more probable; for the fewer the electors

are, the greater is the chance of their coming to a final

decision. It also offered an additional probability of a

judicious choice. It then remained to be decided whether this

right of election was to be entrusted to a legislative body, the

habitual representative assembly of the nation, or whether an

electoral assembly should be formed for the express purpose of

proceeding to the nomination of a President. The Americans chose

the latter alternative, from a belief that the individuals who

were returned to make the laws were incompetent to represent the

wishes of the nation in the election of its chief magistrate; and

that, as they are chosen for more than a year, the constituency

they represent might have changed its opinion in that time. It

was thought that if the legislature was empowered to elect the

head of the executive power, its members would, for some time

before the election, be exposed to the manoeuvres of corruption

and the tricks of intrigue; whereas the special electors would,

like a jury, remain mixed up with the crowd till the day of

action, when they would appear for the sole purpose of giving

their votes.

It was therefore established that every State should name a

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

President; and as it had been observed that the assemblies to

which the choice of a chief magistrate had been entrusted in

elective countries inevitably became the centres of passion and

of cabal; that they sometimes usurped an authority which did not

belong to them; and that their proceedings, or the uncertainty

which resulted from them, were sometimes prolonged so much as to

endanger the welfare of the State, it was determined that the

electors should all vote upon the same day, without being

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

majority probable, though not certain; for it was possible that

as many differences might exist between the electors as between

their constituents. In this case it was necessary to have

recourse to one of three measures; either to appoint new

electors, or to consult a second time those already appointed,or

to defer the election to another authority. The first two of

these alternatives, independently of the uncertainty of their

results, were likely to delay the final decision, and to

perpetuate an agitation which must always be accompanied with

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

agreed that the votes should be transmitted sealed to the

President of the Senate, and that they should be opened and

counted in the presence of the Senate and the House of

Representatives. If none of the candidates has a majority, the

House of Representatives then proceeds immediately to elect a

President, but with the condition that it must fix upon one of

the three candidates who have the highest numbers. *x

[Footnote v: As many as it sends members to Congress. The number

of electors at the election of 1833 was 288. (See "The National

Calendar," 1833.)]

[Footnote w: The electors of the same State assemble, but they

transmit to the central government the list of their individual

votes, and not the mere result of the vote of the majority.]

[Footnote x: In this case it is the majority of the States, and

not the majority of the members, which decides the question; so

that New York has not more influence in the debate than Rhode

Island. Thus the citizens of the Union are first consulted as

members of one and the same community; and, if they cannot agree,

recourse is had to the division of the States, each of which has

a separate and independent vote. This is one of the

singularities of the Federal Constitution which can only be

explained by the jar of conflicting interests.]

Thus it is only in case of an event which cannot often

happen, and which can never be foreseen, that the election is

entrusted to the ordinary representatives of the nation; and even

then they are obliged to choose a citizen who has already been

designated by a powerful minority of the special electors. It is

by this happy expedient that the respect which is due to the

popular voice is combined with the utmost celerity of execution

and those precautions which the peace of the country demands.

But the decision of the question by the House of Representatives

does not necessarily offer an immediate solution of the

difficulty, for the majority of that assembly may still be

doubtful, and in this case the Constitution prescribes no remedy.

Nevertheless, by restricting the number of candidates to three,

and by referring the matter to the judgment of an enlightened

public body, it has smoothed all the obstacles *y which are not

inherent in the elective system.

[Footnote y: Jefferson, in 1801, was not elected until the

thirty- sixth time of balloting.]

 

In the forty-four years which have elapsed since the

promulgation of the Federal Constitution the United States have

twelve times chosen a President. Ten of these elections took

place simultaneously by the votes of the special electors in the

different States. The House of Representatives has only twice

exercised its conditional privilege of deciding in cases of

uncertainty; the first time was at the election of Mr. Jefferson

in 1801; the second was in 1825, when Mr. Quincy Adams was named.

*z

[Footnote z: [General Grant is now (1874) the eighteenth

President of the United States.]]

Crises Of The Election

The Election may be considered as a national crisis - Why? -

Passions of the people - Anxiety of the President - Calm which

succeeds the agitation of the election.

I have shown what the circumstances are which favored the

adoption of the elective system in the United States, and what

precautions were taken by the legislators to obviate its dangers.

The Americans are habitually accustomed to all kinds of

elections, and they know by experience the utmost degree of

excitement which is compatible with security. The vast extent of

the country and the dissemination of the inhabitants render a

collision between parties less probable and less dangerous there

than elsewhere. The political circumstances under which the

elections have hitherto been carried on have presented no real

embarrassments to the nation.

Nevertheless, the epoch of the election of a President of

the United States may be considered as a crisis in the affairs of

the nation. The influence which he exercises on public business

is no doubt feeble and indirect; but the choice of the President,

which is of small importance to each individual citizen, concerns

the citizens collectively; and however trifling an interest may

be, it assumes a great degree of importance as soon as it becomes

general. The President possesses but few means of rewarding his

supporters in comparison to the kings of Europe, but the places

which are at his disposal are sufficiently numerous to interest,

directly or indirectly, several thousand electors in his success.

Political parties in the United States are led to rally round an

individual, in order to acquire a more tangible shape in the eyes

of the crowd, and the name of the candidate for the Presidency is

put forward as the symbol and personification of their theories.

For these reasons parties are strongly interested in gaining the

election, not so much with a view to the triumph of their

principles under the auspices of the President-elect as to show

by the majority which returned him, the strength of the

supporters of those principles.

For a long while before the appointed time is at hand the

election becomes the most important and the all-engrossing topic

of discussion. The ardor of faction is redoubled; and all the

artificial passions which the imagination can create in the bosom

of a happy and peaceful land are agitated and brought to light.

The President, on the other hand, is absorbed by the cares of

self- defence. He no longer governs for the interest of the

State, but for that of his re-election; he does homage to the

majority, and instead of checking its passions, as his duty

commands him to do, he frequently courts its worst caprices. As

the election draws near, the activity of intrigue and the

agitation of the populace increase; the citizens are divided into

hostile camps, each of which assumes the name of its favorite

candidate; the whole nation glows with feverish excitement; the

election is the daily theme of the public papers, the subject of

private conversation, the end of every thought and every action,

the sole interest of the present. As soon as the choice is

determined, this ardor is dispelled; and as a calmer season

returns, the current of the State, which had nearly broken its

banks, sinks to its usual level: *a but who can refrain from

astonishment at the causes of the storm.

[Footnote a: [Not always. The election of President Lincoln was

the signal of civil war. - Translator's Note.]]

 

Chapter VIII:
The Federal Constitution - Part III

Re-election Of The President

When the head of the executive power is re-eligible, it is the

State which is the source of intrigue and corruption - The desire

of being re-elected the chief aim of a President of the United

States - Disadvantage of the system peculiar to America - The

natural evil of democracy is that it subordinates all authority

to the slightest desires of the majority - The re-election of the

President encourages this evil.

It may be asked whether the legislators of the United States

did right or wrong in allowing the re-election of the President.

It seems at first sight contrary to all reason to prevent the

head of the executive power from being elected a second time.

The influence which the talents and the character of a single

individual may exercise upon the fate of a whole people, in

critical circumstances or arduous times, is well known: a law

preventing the re-election of the chief magistrate would deprive

the citizens of the surest pledge of the prosperity and the

security of the commonwealth; and, by a singular inconsistency, a

man would be excluded from the government at the very time when

he had shown his ability in conducting its affairs.

But if these arguments are strong, perhaps still more

powerful reasons may be advanced against them. Intrigue and

corruption are the natural defects of elective government; but

when the head of the State can be re-elected these evils rise to

a great height, and compromise the very existence of the country.

When a simple candidate seeks to rise by intrigue, his manoeuvres

must necessarily be limited to a narrow sphere; but when the

chief magistrate enters the lists, he borrows the strength of the

government for his own purposes. In the former case the feeble

resources of an individual are in action; in the latter, the

State itself, with all its immense influence, is busied in the

work of corruption and cabal. The private citizen, who employs

the most immoral practices to acquire power, can only act in a

manner indirectly prejudicial to the public prosperity. But if

the representative of the executive descends into the combat, the

cares of government dwindle into second-rate importance, and the

success of his election is his first concern. All laws and all

the negotiations he undertakes are to him nothing more than

electioneering schemes; places become the reward of services

rendered, not to the nation, but to its chief; and the influence

of the government, if not injurious to the country, is at least

no longer beneficial to the community for which it was created.

It is impossible to consider the ordinary course of affairs

in the United States without perceiving that the desire of being

re- elected is the chief aim of the President; that his whole

administration, and even his most indifferent measures, tend to

this object; and that, as the crisis approaches, his personal

interest takes the place of his interest in the public good. The

principle of re-eligibility renders the corrupt influence of

elective government still more extensive and pernicious.

In America it exercises a peculiarly fatal influence on the

sources of national existence. Every government seems to be

afflicted by some evil which is inherent in its nature, and the

genius of the legislator is shown in eluding its attacks. A

State may survive the influence of a host of bad laws, and the

mischief they cause is frequently exaggerated; but a law which

encourages the growth of the canker within must prove fatal in

the end, although its bad consequences may not be immediately

perceived.

The principle of destruction in absolute monarchies lies in

the excessive and unreasonable extension of the prerogative of

the crown; and a measure tending to remove the constitutional

provisions which counterbalance this influence would be radically

bad, even if its immediate consequences were unattended with

evil. By a parity of reasoning, in countries governed by a

democracy, where the people is perpetually drawing all authority

to itself, the laws which increase or accelerate its action are

the direct assailants of the very principle of the government.

The greatest proof of the ability of the American

legislators is, that they clearly discerned this truth, and that

they had the courage to act up to it. They conceived that a

certain authority above the body of the people was necessary,

which should enjoy a degree of independence, without, however,

being entirely beyond the popular control; an authority which

would be forced to comply with the permanent determinations of

the majority, but which would be able to resist its caprices, and

to refuse its most dangerous demands. To this end they centred

the whole executive power of the nation in a single arm; they

granted extensive prerogatives to the President, and they armed

him with the veto to resist the encroachments of the legislature.

But by introducing the principle of re-election they partly

destroyed their work; and they rendered the President but little

inclined to exert the great power they had vested in his hands.

If ineligible a second time, the President would be far from

independent of the people, for his responsibility would not be

lessened; but the favor of the people would not be so necessary

to him as to induce him to court it by humoring its desires. If

re- eligible (and this is more especially true at the present

day, when political morality is relaxed, and when great men are

rare), the President of the United States becomes an easy tool in

the hands of the majority. He adopts its likings and its

animosities, he hastens to anticipate its wishes, he forestalls

its complaints, he yields to its idlest cravings, and instead of

guiding it, as the legislature intended that he should do, he is

ever ready to follow its bidding. Thus, in order not to deprive

the State of the talents of an individual, those talents have

been rendered almost useless; and to reserve an expedient for

extraordinary perils, the country has been exposed to daily

dangers.

Federal Courts *b

[Footnote b: See chap. VI, entitled "Judicial Power in the

United States." This chapter explains the general principles of

the American theory of judicial institutions. See also the

Federal Constitution, Art. 3. See "The Federalists," Nos.

78-83, inclusive; and a work entitled "Constitutional Law," being

a view of the practice and jurisdiction of the courts of the

United States, by Thomas Sergeant. See Story, pp. 134, 162, 489,

511, 581, 668; and the organic law of September 24, 1789, in the

"Collection of the Laws of the United States," by Story, vol. i.

p. 53.]

Political importance of the judiciary in the United States -

Difficulty of treating this subject - Utility of judicial power

in confederations - What tribunals could be introduced into the

Union - Necessity of establishing federal courts of justice -

Organization of the national judiciary - The Supreme Court - In

what it differs from all known tribunals.

I have inquired into the legislative and executive power of

the Union, and the judicial power now remains to be examined; but

in this place I cannot conceal my fears from the reader. Their

judicial institutions exercise a great influence on the condition

of the Anglo-Americans, and they occupy a prominent place amongst

what are probably called political institutions: in this respect

they are peculiarly deserving of our attention. But I am at a

loss to explain the political action of the American tribunals

without entering into some technical details of their

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

descend to these minutiae without wearying the curiosity of the

reader by the natural aridity of the subject, or without risking

to fall into obscurity through a desire to be succinct. I can

scarcely hope to escape these various evils; for if I appear too

lengthy to a man of the world, a lawyer may on the other hand

complain of my brevity. But these are the natural disadvantages

of my subject, and more especially of the point which I am about

to discuss.

The great difficulty was, not to devise the Constitution to

the Federal Government, but to find out a method of enforcing its

laws. Governments have in general but two means of overcoming

the opposition of the people they govern, viz., the physical

force which is at their own disposal, and the moral force which

they derive from the decisions of the courts of justice.

A government which should have no other means of exacting

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

two alternatives would then probably occur: if its authority was

small and its character temperate, it would not resort to

violence till the last extremity, and it would connive at a

number of partial acts of insubordination, in which case the

State would gradually fall into anarchy; if it was enterprising

and powerful, it would perpetually have recourse to its physical

strength, and would speedily degenerate into a military

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

the community than its inaction.

The great end of justice is to substitute the notion of

right for that of violence, and to place a legal barrier between

the power of the government and the use of physical force. The

authority which is awarded to the intervention of a court of

justice by the general opinion of mankind is so surprisingly

great that it clings to the mere formalities of justice, and

gives a bodily influence to the shadow of the law. The moral

force which courts of justice possess renders the introduction of

physical force exceedingly rare, and is very frequently

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

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

A federal government stands in greater need of the support

of judicial institutions than any other, because it is naturally

weak and exposed to formidable opposition. *c If it were always

obliged to resort to violence in the first instance, it could not

fulfil its task. The Union, therefore, required a national

judiciary to enforce the obedience of the citizens to the laws,

and to repeal the attacks which might be directed against them.

The question then remained as to what tribunals were to exercise

these privileges; were they to be entrusted to the courts of

justice which were already organized in every State? or was it

necessary to create federal courts? It may easily be proved that

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

wants. The separation of the judiciary from the administrative

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

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

existence of the nation that these several powers should have the

same origin, should follow the same principles, and act in the

same sphere; in a word, that they should be correlative and

homogeneous. No one, I presume, ever suggested the advantage of

trying offences committed in France by a foreign court of

justice, in order to secure the impartiality of the judges. The

Americans form one people in relation to their Federal

Government; but in the bosom of this people divers political

bodies have been allowed to subsist which are dependent on the

national Government in a few points, and independent in all the

rest; which have all a distinct origin, maxims peculiar to

themselves, and special means of carrying on their affairs. To

entrust the execution of the laws of the Union to tribunals

instituted by these political bodies would be to allow foreign

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

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

opposition to the common interests, since whatever authority the

Union loses turns to the advantage of the States. Thus to

enforce the laws of the Union by means of the tribunals of the

States would be to allow not only foreign but partial judges to

preside over the nation.

[Footnote c: Federal laws are those which most require courts of

justice, and those at the same time which have most rarely

established them. The reason is that confederations have usually

been formed by independent States, which entertained no real

intention of obeying the central Government, and which very

readily ceded the right of command to the federal executive, and

very prudently reserved the right of non-compliance to

themselves.]

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

tribunals of the States rendered them unfit for the service of

the nation. When the Federal Constitution was formed there were

already thirteen courts of justice in the United States which

decided causes without appeal. That number is now increased to

twenty-four. To suppose that a State can subsist when its

fundamental laws may be subjected to four-and-twenty different

interpretations at the same time is to advance a proposition

alike contrary to reason and to experience.

The American legislators therefore agreed to create a

federal judiciary power to apply the laws of the Union, and to

determine certain questions affecting general interests, which

were carefully determined beforehand. The entire judicial power

of the Union was centred in one tribunal, which was denominated

the Supreme Court of the United States. But, to facilitate the

expedition of business, inferior courts were appended to it,

which were empowered to decide causes of small importance without

appeal, and with appeal causes of more magnitude. The members of

the Supreme Court are named neither by the people nor the

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

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

independent of the other authorities, their office was made

inalienable; and it was determined that their salary, when once

fixed, should not be altered by the legislature. *d It was easy

to proclaim the principle of a Federal judiciary, but

difficulties multiplied when the extent of its jurisdiction was

to be determined.

[Footnote d: The Union was divided into districts, in each of

which a resident Federal judge was appointed, and the court in

which he presided was termed a "District Court." Each of the

judges of the Supreme Court annually visits a certain portion of

the Republic, in order to try the most important causes upon the

spot; the court presided over by this magistrate is styled a

"Circuit Court." Lastly, all the most serious cases of litigation

are brought before the Supreme Court, which holds a solemn

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

Courts must attend. The jury was introduced into the Federal

Courts in the same manner, and in the same cases, as into the

courts of the States.

It will be observed that no analogy exists between the

Supreme Court of the United States and the French Cour de

Cassation, since the latter only hears appeals on questions of

law. The Supreme Court decides upon the evidence of the fact as

well as upon the law of the case, whereas the Cour de Cassation

does not pronounce a decision of its own, but refers the cause to

the arbitration of another tribunal. See the law of September

24, 1789, "Laws of the United States," by Story, vol. i. p. 53.]

Means Of Determining The Jurisdiction Of The Federal Courts

Difficulty of determining the jurisdiction of separate courts of

justice in confederations - The courts of the Union obtained the

right of fixing their own jurisdiction - In what respect this

rule attacks the portion of sovereignty reserved to the several

States - The sovereignty of these States restricted by the laws,

and the interpretation of the laws - Consequently, the danger of

the several States is more apparent than real.

As the Constitution of the United States recognized two

distinct powers in presence of each other, represented in a

judicial point of view by two distinct classes of courts of

justice, the utmost care which could be taken in defining their

separate jurisdictions would have been insufficient to prevent

frequent collisions between those tribunals. The question then

arose to whom the right of deciding the competency of each court

was to be referred.

In nations which constitute a single body politic, when a

question is debated between two courts relating to their mutual

jurisdiction, a third tribunal is generally within reach to

decide the difference; and this is effected without difficulty,

because in these nations the questions of judicial competency

have no connection with the privileges of the national supremacy.

But it was impossible to create an arbiter between a superior

court of the Union and the superior court of a separate State

which would not belong to one of these two classes. It was,

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

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

was contested. To grant this privilege to the different courts

of the States would have been to destroy the sovereignty of the

Union de facto after having established it de jure; for the

interpretation of the Constitution would soon have restored that

portion of independence to the States of which the terms of that

act deprived them. The object of the creation of a Federal

tribunal was to prevent the courts of the States from deciding

questions affecting the national interests in their own

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

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

been accomplished if the courts of the several States had been

competent to decide upon cases in their separate capacities from

which they were obliged to abstain as Federal tribunals. The

Supreme Court of the United States was therefore invested with

the right of determining all questions of jurisdiction. *e

[Footnote e: In order to diminish the number of these suits, it

was decided that in a great many Federal causes the courts of the

States should be empowered to decide conjointly with those of the

Union, the losing party having then a right of appeal to the

Supreme Court of the United States. The Supreme Court of

Virginia contested the right of the Supreme Court of the United

States to judge an appeal from its decisions, but unsuccessfully.

See "Kent's Commentaries," vol. i. p. 300, pp. 370 et seq.;

Story's "Commentaries," p. 646; and "The Organic Law of the

United States," vol. i. p. 35.]

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

which was thus restricted not only by the laws, but by the

interpretation of them; by one limit which was known, and by

another which was dubious; by a rule which was certain, and a

rule which was arbitrary. It is true the Constitution had laid

down the precise limits of the Federal supremacy, but whenever

this supremacy is contested by one of the States, a Federal

tribunal decides the question. Nevertheless, the dangers with

which the independence of the States was threatened by this mode

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

shall see hereafter that in America the real strength of the

country is vested in the provincial far more than in the Federal

Government. The Federal judges are conscious of the relative

weakness of the power in whose name they act, and they are more

inclined to abandon a right of jurisdiction in cases where it is

justly their own than to assert a privilege to which they have no

legal claim.

Different Cases Of Jurisdiction

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

jurisdiction - Suits in which ambassadors are engaged - Suits of

the Union - Of a separate State - By whom tried - Causes

resulting from the laws of the Union - Why judged by the Federal

tribunals - Causes relating to the performance of contracts tried

by the Federal courts - Consequence of this arrangement.

After having appointed the means of fixing the competency of

the Federal courts, the legislators of the Union defined the

cases which should come within their jurisdiction. It was

established, on the one hand, that certain parties must always be

brought before the Federal courts, without any regard to the

special nature of the cause; and, on the other, that certain

causes must always be brought before the same courts, without any

regard to the quality of the parties in the suit. These

distinctions were therefore admitted to be the basis of the

Federal jurisdiction.

Ambassadors are the representatives of nations in a state of

amity with the Union, and whatever concerns these personages

concerns in some degree the whole Union. When an ambassador is a

party in a suit, that suit affects the welfare of the nation, and

a Federal tribunal is naturally called upon to decide it.

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

this case it would be alike contrary to the customs of all

nations and to common sense to appeal to a tribunal representing

any other sovereignty than its own; the Federal courts,

therefore, take cognizance of these affairs.

When two parties belonging to two different States are

engaged in a suit, the case cannot with propriety be brought

before a court of either State. The surest expedient is to

select a tribunal like that of the Union, which can excite the

suspicions of neither party, and which offers the most natural as

well as the most certain remedy.

When the two parties are not private individuals, but

States, an important political consideration is added to the same

motive of equity. The quality of the parties in this case gives

a national importance to all their disputes; and the most

trifling litigation of the States may be said to involve the

peace of the whole Union. *f

[Footnote f: The Constitution also says that the Federal courts

shall decide "controversies between a State and the citizens of

another State." And here a most important question of a

constitutional nature arose, which was, whether the jurisdiction

given by the Constitution in cases in which a State is a party

extended to suits brought against a State as well as by it, or

was exclusively confined to the latter. The question was most

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

was decided by the majority of the Supreme Court in the

affirmative. The decision created general alarm among the

States, and an amendment was proposed and ratified by which the

power was entirely taken away, so far as it regards suits brought

against a State. See Story's "Commentaries," p. 624, or in the

large edition Section 1677.]

 

The nature of the cause frequently prescribes the rule of

competency. Thus all the questions which concern maritime

commerce evidently fall under the cognizance of the Federal

tribunals. *g Almost all these questions are connected with the

interpretation of the law of nations, and in this respect they

essentially interest the Union in relation to foreign powers.

Moreover, as the sea is not included within the limits of any

peculiar jurisdiction, the national courts can only hear causes

which originate in maritime affairs.

[Footnote g: As for instance, all cases of piracy.]

The Constitution comprises under one head almost all the

cases which by their very nature come within the limits of the

Federal courts. The rule which it lays down is simple, but

pregnant with an entire system of ideas, and with a vast

multitude of facts. It declares that the judicial power of the

Supreme Court shall extend to all cases in law and equity arising

under the laws of the United States.

Two examples will put the intention of the legislator in the

clearest light:

The Constitution prohibits the States from making laws on

the value and circulation of money: If, notwithstanding this

prohibition, a State passes a law of this kind, with which the

interested parties refuse to comply because it is contrary to the

Constitution, the case must come before a Federal court, because

it arises under the laws of the United States. Again, if

difficulties arise in the levying of import duties which have

been voted by Congress, the Federal court must decide the case,

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

States.

This rule is in perfect accordance with the fundamental

principles of the Federal Constitution. The Union, as it was

established in 1789, possesses, it is true, a limited supremacy;

but it was intended that within its limits it should form one and

the same people. *h Within those limits the Union is sovereign.

When this point is established and admitted, the inference is

easy; for if it be acknowledged that the United States constitute

one and the same people within the bounds prescribed by their

Constitution, it is impossible to refuse them the rights which

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

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

its own courts those questions which concern the execution of its

own laws. To this it is answered that the Union is in so

singular a position that in relation to some matters it

constitutes a people, and that in relation to all the rest it is

a nonentity. But the inference to be drawn is, that in the laws

relating to these matters the Union possesses all the rights of

absolute sovereignty. The difficulty is to know what these

matters are; and when once it is resolved (and we have shown how

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

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

for as soon as it is established that a suit is Federal - that is

to say, that it belongs to the share of sovereignty reserved by

the Constitution of the Union - the natural consequence is that

it should come within the jurisdiction of a Federal court.

[Footnote h: This principle was in some measure restricted by the

introduction of the several States as independent powers into the

Senate, and by allowing them to vote separately in the House of

Representatives when the President is elected by that body. But

these are exceptions, and the contrary principle is the rule.]

Whenever the laws of the United States are attacked, or

whenever they are resorted to in self-defence, the Federal courts

must be appealed to. Thus the jurisdiction of the tribunals of

the Union extends and narrows its limits exactly in the same

ratio as the sovereignty of the Union augments or decreases. We

have shown that the principal aim of the legislators of 1789 was

to divide the sovereign authority into two parts. In the one

they placed the control of all the general interests of the

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

component States. Their chief solicitude was to arm the Federal

Government with sufficient power to enable it to resist, within

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

communities, the principle of independence within certain limits

of their own was adopted in their behalf; and they were concealed

from the inspection, and protected from the control, of the

central Government. In speaking of the division of authority, I

observed that this latter principle had not always been held

sacred, since the States are prevented from passing certain laws

which apparently belong to their own particular sphere of

interest. When a State of the Union passes a law of this kind,

the citizens who are injured by its execution can appeal to the

Federal courts.

Thus the jurisdiction of the Federal courts extends not only

to all the cases which arise under the laws of the Union, but

also to those which arise under laws made by the several States

in opposition to the Constitution. The States are prohibited

from making ex post facto laws in criminal cases, and any person

condemned by virtue of a law of this kind can appeal to the

judicial power of the Union. The States are likewise prohibited

from making laws which may have a tendency to impair the

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

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

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

*j

[Footnote i: It is perfectly clear, says Mr. Story

("Commentaries," p. 503, or in the large edition Section 1379),

that any law which enlarges, abridges, or in any manner changes

the intention of the parties, resulting from the stipulations in

the contract, necessarily impairs it. He gives in the same place

a very long and careful definition of what is understood by a

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

a private individual, and accepted by him, is a contract, and

cannot be revoked by any future law. A charter granted by the

State to a company is a contract, and equally binding to the

State as to the grantee. The clause of the Constitution here

referred to insures, therefore, the existence of a great part of

acquired rights, but not of all. Property may legally be held,

though it may not have passed into the possessor's hands by means

of a contract; and its possession is an acquired right, not

guaranteed by the Federal Constitution.]

[Footnote j: A remarkable instance of this is given by Mr. Story

(p. 508, or in the large edition Section 1388): "Dartmouth

College in New Hampshire had been founded by a charter granted to

certain individuals before the American Revolution, and its

trustees formed a corporation under this charter. The

legislature of New Hampshire had, without the consent of this

corporation, passed an act changing the organization of the

original provincial charter of the college, and transferring all

the rights, privileges, and franchises from the old charter

trustees to new trustees appointed under the act. The

constitutionality of the act was contested, and, after solemn

arguments, it was deliberately held by the Supreme Court that the

provincial charter was a contract within the meaning of the

Constitution (Art. I. Section 10), and that the emendatory act

was utterly void, as impairing the obligation of that charter.

The college was deemed, like other colleges of private

foundation, to be a private eleemosynary institution, endowed by

its charter with a capacity to take property unconnected with the

Government. Its funds were bestowed upon the faith of the

charter, and those funds consisted entirely of private donations.

It is true that the uses were in some sense public, that is, for

the general benefit, and not for the mere benefit of the

corporators; but this did not make the corporation a public

corporation. It was a private institution for general charity.

It was not distinguishable in principle from a private donation,

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

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

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

resume those funds."]

This provision appears to me to be the most serious attack

upon the independence of the States. The rights awarded to the

Federal Government for purposes of obvious national importance

are definite and easily comprehensible; but those with which this

last clause invests it are not either clearly appreciable or

accurately defined. For there are vast numbers of political laws

which influence the existence of obligations of contracts, which

may thus furnish an easy pretext for the aggressions of the

central authority.

 

Chapter VIII:
The Federal Constitution - Part IV

Procedure Of The Federal Courts

Natural weakness of the judiciary power in confederations -

Legislators ought to strive as much as possible to bring private

individuals, and not States, before the Federal Courts - How the

Americans have succeeded in this - Direct prosecution of private

individuals in the Federal Courts - Indirect prosecution of the

States which violate the laws of the Union - The decrees of the

Supreme Court enervate but do not destroy the provincial laws.

I have shown what the privileges of the Federal courts are,

and it is no less important to point out the manner in which they

are exercised. The irresistible authority of justice in

countries in which the sovereignty in undivided is derived from

the fact that the tribunals of those countries represent the

entire nation at issue with the individual against whom their

decree is directed, and the idea of power is thus introduced to

corroborate the idea of right. But this is not always the case

in countries in which the sovereignty is divided; in them the

judicial power is more frequently opposed to a fraction of the

nation than to an isolated individual, and its moral authority

and physical strength are consequently diminished. In federal

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

the justiciable parties is augmented. The aim of the legislator

in confederate States ought therefore to be to render the

position of the courts of justice analogous to that which they

occupy in countries where the sovereignty is undivided; in other

words, his efforts ought constantly to tend to maintain the

judicial power of the confederation as the representative of the

nation, and the justiciable party as the representative of an

individual interest.

Every government, whatever may be its constitution, requires

the means of constraining its subjects to discharge their

obligations, and of protecting its privileges from their

assaults. As far as the direct action of the Government on the

community is concerned, the Constitution of the United States

contrived, by a master-stroke of policy, that the federal courts,

acting in the name of the laws, should only take cognizance of

parties in an individual capacity. For, as it had been declared

that the Union consisted of one and the same people within the

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

Government created by this Constitution, and acting within these

limits, was invested with all the privileges of a national

government, one of the principal of which is the right of

transmitting its injunctions directly to the private citizen.

When, for instance, the Union votes an impost, it does not apply

to the States for the levying of it, but to every American

citizen in proportion to his assessment. The Supreme Court,

which is empowered to enforce the execution of this law of the

Union, exerts its influence not upon a refractory State, but upon

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

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

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

antagonist is feeble, he is naturally worsted.

 

But the difficulty increases when the proceedings are not

brought forward by but against the Union. The Constitution

recognizes the legislative power of the States; and a law so

enacted may impair the privileges of the Union, in which case a

collision in unavoidable between that body and the State which

has passed the law: and it only remains to select the least

dangerous remedy, which is very clearly deducible from the

general principles I have before established. *k

[Footnote k: See Chapter VI. on "Judicial Power in America."]

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

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

would have annulled the act, and by this means it would have

adopted a natural course of proceeding; but the judicial power

would have been placed in open hostility to the State, and it was

desirable to avoid this predicament as much as possible. The

Americans hold that it is nearly impossible that a new law should

not impair the interests of some private individual by its

provisions: these private interests are assumed by the American

legislators as the ground of attack against such measures as may

be prejudicial to the Union, and it is to these cases that the

protection of the Supreme Court is extended.

Suppose a State vends a certain portion of its territory to

a company, and that a year afterwards it passes a law by which

the territory is otherwise disposed of, and that clause of the

Constitution which prohibits laws impairing the obligation of

contracts violated. When the purchaser under the second act

appears to take possession, the possessor under the first act

brings his action before the tribunals of the Union, and causes

the title of the claimant to be pronounced null and void. *l

Thus, in point of fact, the judicial power of the Union is

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

acts indirectly and upon a special application of detail: it

attacks the law in its consequences, not in its principle, and it

rather weakens than destroys it.

[Footnote l: See Kent's "Commentaries," vol. i. p. 387.]

The last hypothesis that remained was that each State formed

a corporation enjoying a separate existence and distinct civil

rights, and that it could therefore sue or be sued before a

tribunal. Thus a State could bring an action against another

State. In this instance the Union was not called upon to contest

a provincial law, but to try a suit in which a State was a party.

This suit was perfectly similar to any other cause, except that

the quality of the parties was different; and here the danger

pointed out at the beginning of this chapter exists with less

chance of being avoided. The inherent disadvantage of the very

essence of Federal constitutions is that they engender parties in

the bosom of the nation which present powerful obstacles to the

free course of justice.

High Rank Of The Supreme Court Amongst The Great Powers Of State

No nation ever constituted so great a judicial power as the

Americans - Extent of its prerogative - Its political influence -

The tranquillity and the very existence of the Union depend on

the discretion of the seven Federal Judges.

When we have successively examined in detail the

organization of the Supreme Court, and the entire prerogatives

which it exercises, we shall readily admit that a more imposing

judicial power was never constituted by any people. The Supreme

Court is placed at the head of all known tribunals, both by the

nature of its rights and the class of justiciable parties which

it controls.

In all the civilized countries of Europe the Government has

always shown the greatest repugnance to allow the cases to which

it was itself a party to be decided by the ordinary course of

justice. This repugnance naturally attains its utmost height in

an absolute Government; and, on the other hand, the privileges of

the courts of justice are extended with the increasing liberties

of the people: but no European nation has at present held that

all judicial controversies, without regard to their origin, can

be decided by the judges of common law.

In America this theory has been actually put in practice,

and the Supreme Court of the United States is the sole tribunal

of the nation. Its power extends to all the cases arising under

laws and treaties made by the executive and legislative

authorities, to all cases of admiralty and maritime jurisdiction,

and in general to all points which affect the law of nations. It

may even be affirmed that, although its constitution is

essentially judicial, its prerogatives are almost entirely

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

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

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

Powers: the relations of citizens amongst themselves are almost

exclusively regulated by the sovereignty of the States.

A second and still greater cause of the preponderance of

this court may be adduced. In the nations of Europe the courts

of justice are only called upon to try the controversies of

private individuals; but the Supreme Court of the United States

summons sovereign powers to its bar. When the clerk of the court

advances on the steps of the tribunal, and simply says, "The

State of New York versus the State of Ohio," it is impossible not

to feel that the Court which he addresses is no ordinary body;

and when it is recollected that one of these parties represents

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

the responsibility of the seven judges whose decision is about to

satisfy or to disappoint so large a number of their

fellow-citizens.

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

Union are vested in the hands of the seven judges. Without their

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

Executive appeals to them for assistance against the

encroachments of the legislative powers; the Legislature demands

their protection from the designs of the Executive; they defend

the Union from the disobedience of the States, the States from

the exaggerated claims of the Union, the public interest against

the interests of private citizens, and the conservative spirit of

order against the fleeting innovations of democracy. Their power

is enormous, but it is clothed in the authority of public

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

respects law, but they would be impotent against popular neglect

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

intractable of agents, because its exact limits cannot be

defined; and it is not less dangerous to exceed than to remain

below the boundary prescribed.

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

possessed of that information and integrity which are

indispensable to magistrates, but they must be statesmen -

politicians, not unread in the signs of the times, not afraid to

brave the obstacles which can be subdued, nor slow to turn aside

such encroaching elements as may threaten the supremacy of the

Union and the obedience which is due to the laws.

The President, who exercises a limited power, may err

without causing great mischief in the State. Congress may decide

amiss without destroying the Union, because the electoral body in

which Congress originates may cause it to retract its decision by

changing its members. But if the Supreme Court is ever composed

of imprudent men or bad citizens, the Union may be plunged into

anarchy or civil war.

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

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

Governments. We have observed that in confederate peoples it is

especially necessary to consolidate the judicial authority,

because in no other nations do those independent persons who are

able to cope with the social body exist in greater power or in a

better condition to resist the physical strength of the

Government. But the more a power requires to be strengthened,

the more extensive and independent it must be made; and the

dangers which its abuse may create are heightened by its

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

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

constitution of those States which render its existence

necessary.

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

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

that of the States - Superiority of the Constitution of the Union

attributable to the wisdom of the Federal legislators -

Legislature of the Union less dependent on the people than that

of the States - Executive power more independent in its sphere -

Judicial power less subjected to the inclinations of the majority

-Practical consequence of these facts - The dangers inherent in a

democratic government eluded by the Federal legislators, and

increased by the legislators of the States.

The Federal Constitution differs essentially from that of

the States in the ends which it is intended to accomplish, but in

the means by which these ends are promoted a greater analogy

exists between them. The objects of the Governments are

different, but their forms are the same; and in this special

point of view there is some advantage in comparing them together.

I am of opinion that the Federal Constitution is superior to

all the Constitutions of the States, for several reasons.

The present Constitution of the Union was formed at a later

period than those of the majority of the States, and it may have

derived some ameliorations from past experience. But we shall be

led to acknowledge that this is only a secondary cause of its

superiority, when we recollect that eleven new States *n have

been added to the American Confederation since the promulgation

of the Federal Constitution, and that these new republics have

always rather exaggerated than avoided the defects which existed

in the former Constitutions.

[Footnote n: [The number of States has now risen to 46 (1874),

besides the District of Columbia.]]

The chief cause of the superiority of the Federal

Constitution lay in the character of the legislators who composed

it. At the time when it was formed the dangers of the

Confederation were imminent, and its ruin seemed inevitable. In

this extremity the people chose the men who most deserved the

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

country. I have already observed that distinguished as almost

all the legislators of the Union were for their intelligence,

they were still more so for their patriotism. They had all been

nurtured at a time when the spirit of liberty was braced by a

continual struggle against a powerful and predominant authority.

When the contest was terminated, whilst the excited passions of

the populace persisted in warring with dangers which had ceased

to threaten them, these men stopped short in their career; they

cast a calmer and more penetrating look upon the country which

was now their own; they perceived that the war of independence

was definitely ended, and that the only dangers which America had

to fear were those which might result from the abuse of the

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

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

sincere love of liberty; and they ventured to propose

restrictions, because they were resolutely opposed to

destruction. *o

[Footnote o: At this time Alexander Hamilton, who was one of the

principal founders of the Constitution, ventured to express the

following sentiments in "The Federalist," No. 71: -

 

"There are some who would be inclined to regard the servile

pliancy of the Executive to a prevailing current, either in the

community or in the Legislature, as its best recommendation. But

such men entertain very crude notions, as well of the purposes

for which government was instituted as of the true means by which

the public happiness may be promoted. The Republican principle

demands that the deliberative sense of the community should

govern the conduct of those to whom they entrust the management

of their affairs; but it does not require an unqualified

complaisance to every sudden breeze of passion, or to every

transient impulse which the people may receive from the arts of

men who flatter their prejudices to betray their interests. It

is a just observation, that the people commonly intend the public

good. This often applies to their very errors. But their good

sense would despise the adulator who should pretend that they

always reason right about the means of promoting it. They know

from experience that they sometimes err; and the wonder is that

they so seldom err as they do, beset, as they continually are, by

the wiles of parasites and sycophants; by the snares of the

ambitious, the avaricious, the desperate; by the artifices of men

who possess their confidence more than they deserve it, and of

those who seek to possess rather than to deserve it. When

occasions present themselves in which the interests of the people

are at variance with their inclinations, it is the duty of

persons whom they have appointed to be the guardians of those

interests to withstand the temporary delusion, in order to give

them time and opportunity for more cool and sedate reflection.

Instances might be cited in which a conduct of this kind has

saved the people from very fatal consequences of their own

mistakes, and has procured lasting monuments of their gratitude

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

at the peril of their displeasure."]

The greater number of the Constitutions of the States assign

one year for the duration of the House of Representatives, and

two years for that of the Senate; so that members of the

legislative body are constantly and narrowly tied down by the

slightest desires of their constituents. The legislators of the

Union were of opinion that this excessive dependence of the

Legislature tended to alter the nature of the main consequences

of the representative system, since it vested the source, not

only of authority, but of government, in the people. They

increased the length of the time for which the representatives

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

of their own judgment.

The Federal Constitution, as well as the Constitutions of

the different States, divided the legislative body into two

branches. But in the States these two branches were composed of

the same elements, and elected in the same manner. The

consequence was that the passions and inclinations of the

populace were as rapidly and as energetically represented in one

chamber as in the other, and that laws were made with all the

characteristics of violence and precipitation. By the Federal

Constitution the two houses originate in like manner in the

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

mode of election were changed, to the end that, if, as is the

case in certain nations, one branch of the Legislature represents

the same interests as the other, it may at least represent a

superior degree of intelligence and discretion. A mature age was

made one of the conditions of the senatorial dignity, and the

Upper House was chosen by an elected assembly of a limited number

of members.

To concentrate the whole social force in the hands of the

legislative body is the natural tendency of democracies; for as

this is the power which emanates the most directly from the

people, it is made to participate most fully in the

preponderating authority of the multitude, and it is naturally

led to monopolize every species of influence. This concentration

is at once prejudicial to a well-conducted administration, and

favorable to the despotism of the majority. The legislators of

the States frequently yielded to these democratic propensities,

which were invariably and courageously resisted by the founders

of the Union.

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

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

Legislature, but who is in reality nothing more than the blind

agent and the passive instrument of its decisions. He can derive

no influence from the duration of his functions, which terminate

with the revolving year, or from the exercise of prerogatives

which can scarcely be said to exist. The Legislature can condemn

him to inaction by intrusting the execution of the laws to

special committees of its own members, and can annul his

temporary dignity by depriving him of his salary. The Federal

Constitution vests all the privileges and all the responsibility

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

the Presidency is fixed at four years; the salary of the

individual who fills that office cannot be altered during the

term of his functions; he is protected by a body of official

dependents, and armed with a suspensive veto. In short, every

effort was made to confer a strong and independent position upon

the executive authority within the limits which had been

prescribed to it.

In the Constitutions of all the States the judicial power is

that which remains the most independent of the legislative

authority; nevertheless, in all the States the Legislature has

reserved to itself the right of regulating the emoluments of the

judges, a practice which necessarily subjects these magistrates

to its immediate influence. In some States the judges are only

temporarily appointed, which deprives them of a great portion of

their power and their freedom. In others the legislative and

judicial powers are entirely confounded; thus the Senate of New

York, for instance, constitutes in certain cases the Superior

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

carefully separates the judicial authority from all external

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

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

their functions shall be inalienable.

The practical consequences of these different systems may

easily be perceived. An attentive observer will soon remark that

the business of the Union is incomparably better conducted than

that of any individual State. The conduct of the Federal

Government is more fair and more temperate than that of the

States, its designs are more fraught with wisdom, its projects

are more durable and more skilfully combined, its measures are

put into execution with more vigor and consistency.

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

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

the complete subjection of the legislative body to the caprices

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

the Government in the legislative authority. The growth of these

evils has been encouraged by the policy of the legislators of the

States, but it has been resisted by the legislators of the Union

by every means which lay within their control.

Characteristics Which Distinguish The Federal Constitution Of The

United States Of America From All Other Federal Constitutions

American Union appears to resemble all other confederations -

Nevertheless its effects are different - Reason of this -

Distinctions between the Union and all other confederations - The

American Government not a federal but an imperfect national

Government.

The United States of America do not afford either the first

or the only instance of confederate States, several of which have

existed in modern Europe, without adverting to those of

antiquity. Switzerland, the Germanic Empire, and the Republic of

the United Provinces either have been or still are

confederations. In studying the constitutions of these different

countries, the politician is surprised to observe that the powers

with which they invested the Federal Government are nearly

identical with the privileges awarded by the American

Constitution to the Government of the United States. They confer

upon the central power the same rights of making peace and war,

of raising money and troops, and of providing for the general

exigencies and the common interests of the nation. Nevertheless

the Federal Government of these different peoples has always been

as remarkable for its weakness and inefficiency as that of the

Union is for its vigorous and enterprising spirit. Again, the

first American Confederation perished through the excessive

weakness of its Government; and this weak Government was,

notwithstanding, in possession of rights even more extensive than

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

recent Constitution of the United States contains certain

principles which exercise a most important influence, although

they do not at once strike the observer.

This Constitution, which may at first sight be confounded

with the federal constitutions which preceded it, rests upon a

novel theory, which may be considered as a great invention in

modern political science. In all the confederations which had

been formed before the American Constitution of 1789 the allied

States agreed to obey the injunctions of a Federal Government;

but they reserved to themselves the right of ordaining and

enforcing the execution of the laws of the Union. The American

States which combined in 1789 agreed that the Federal Government

should not only dictate the laws, but that it should execute it

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

exercise of the right is different; and this alteration produced

the most momentous consequences.

In all the confederations which had been formed before the

American Union the Federal Government demanded its supplies at

the hands of the separate Governments; and if the measure it

prescribed was onerous to any one of those bodies means were

found to evade its claims: if the State was powerful, it had

recourse to arms; if it was weak, it connived at the resistance

which the law of the Union, its sovereign, met with, and resorted

to inaction under the plea of inability. Under these

circumstances one of the two alternatives has invariably

occurred; either the most preponderant of the allied peoples has

assumed the privileges of the Federal authority and ruled all the

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

abandoned by its natural supporters, anarchy has arisen between

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

[Footnote p: This was the case in Greece, when Philip undertook

to execute the decree of the Amphictyons; in the Low Countries,

where the province of Holland always gave the law; and, in our

own time, in the Germanic Confederation, in which Austria and

Prussia assume a great degree of influence over the whole

country, in the name of the Diet.]

[Footnote q: Such has always been the situation of the Swiss

Confederation, which would have perished ages ago but for the

mutual jealousies of its neighbors.]

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

private citizens: the national Government levies a tax, not upon

the State of Massachusetts, but upon each inhabitant of

Massachusetts. All former confederate governments presided over

communities, but that of the Union rules individuals; its force

is not borrowed, but self-derived; and it is served by its own

civil and military officers, by its own army, and its own courts

of justice. It cannot be doubted that the spirit of the nation,

the passions of the multitude, and the provincial prejudices of

each State tend singularly to diminish the authority of a Federal

authority thus constituted, and to facilitate the means of

resistance to its mandates; but the comparative weakness of a

restricted sovereignty is an evil inherent in the Federal system.

In America, each State has fewer opportunities of resistance and

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

in execution (if indeed it be entertained) without an open

violation of the laws of the Union, a direct interruption of the

ordinary course of justice, and a bold declaration of revolt; in

a word, without taking a decisive step which men hesitate to

adopt.

In all former confederations the privileges of the Union

furnished more elements of discord than of power, since they

multiplied the claims of the nation without augmenting the means

of enforcing them: and in accordance with this fact it may be

remarked that the real weakness of federal governments has almost

always been in the exact ratio of their nominal power. Such is

not the case in the American Union, in which, as in ordinary

governments, the Federal Government has the means of enforcing

all it is empowered to demand.

The human understanding more easily invents new things than

new words, and we are thence constrained to employ a multitude of

improper and inadequate expressions. When several nations form a

permanent league and establish a supreme authority, which,

although it has not the same influence over the members of the

community as a national government, acts upon each of the

Confederate States in a body, this Government, which is so

essentially different from all others, is denominated a Federal

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

several peoples are fused into one and the same nation with

regard to certain common interests, although they remain

distinct, or at least only confederate, with regard to all their

other concerns. In this case the central power acts directly

upon those whom it governs, whom it rules, and whom it judges, in

the same manner, as, but in a more limited circle than, a

national government. Here the term Federal Government is clearly

no longer applicable to a state of things which must be styled an

incomplete national Government: a form of government has been

found out which is neither exactly national nor federal; but no

further progress has been made, and the new word which will one

day designate this novel invention does not yet exist.

The absence of this new species of confederation has been

the cause which has brought all Unions to Civil War, to

subjection, or to a stagnant apathy, and the peoples which formed

these leagues have been either too dull to discern, or too

pusillanimous to apply this great remedy. The American

Confederation perished by the same defects.

But the Confederate States of America had been long

accustomed to form a portion of one empire before they had won

their independence; they had not contracted the habit of

governing themselves, and their national prejudices had not taken

deep root in their minds. Superior to the rest of the world in

political knowledge, and sharing that knowledge equally amongst

themselves, they were little agitated by the passions which

generally oppose the extension of federal authority in a nation,

and those passions were checked by the wisdom of the chief

citizens. The Americans applied the remedy with prudent firmness

as soon as they were conscious of the evil; they amended their

laws, and they saved their country.

 

Chapter VIII:
The Federal Constitution - Part V

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

Happiness and freedom of small nations - Power of great nations -

Great empires favorable to the growth of civilization - Strength

often the first element of national prosperity - Aim of the

Federal system to unite the twofold advantages resulting from a

small and from a large territory -Advantages derived by the

United States from this system - The law adapts itself to the

exigencies of the population; population does not conform to the

exigencies of the law - Activity, amelioration, love and

enjoyment of freedom in the American communities - Public spirit

of the Union the abstract of provincial patriotism - Principles

and things circulate freely over the territory of the United

States - The Union is happy and free as a little nation, and

respected as a great empire.

In small nations the scrutiny of society penetrates into

every part, and the spirit of improvement enters into the most

trifling details; as the ambition of the people is necessarily

checked by its weakness, all the efforts and resources of the

citizens are turned to the internal benefit of the community, and

are not likely to evaporate in the fleeting breath of glory. The

desires of every individual are limited, because extraordinary

faculties are rarely to be met with. The gifts of an equal

fortune render the various conditions of life uniform, and the

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

estimate the gradations of popular morality and enlightenment, we

shall generally find that in small nations there are more persons

in easy circumstances, a more numerous population, and a more

tranquil state of society, than in great empires.

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

it is more galling than elsewhere, because, as it acts within a

narrow circle, every point of that circle is subject to its

direct influence. It supplies the place of those great designs

which it cannot entertain by a violent or an exasperating

interference in a multitude of minute details; and it leaves the

political world, to which it properly belongs, to meddle with the

arrangements of domestic life. Tastes as well as actions are to

be regulated at its pleasure; and the families of the citizens as

well as the affairs of the State are to be governed by its

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

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

The temptations which the Government offers to ambition are too

weak, and the resources of private individuals are too slender,

for the sovereign power easily to fall within the grasp of a

single citizen; and should such an event have occurred, the

subjects of the State can without difficulty overthrow the tyrant

and his oppression by a

simultaneous effort.

Small nations have therefore ever been the cradle of

political liberty; and the fact that many of them have lost their

immunities by extending their dominion shows that the freedom

they enjoyed was more a consequence of the inferior size than of

the character of the people.

The history of the world affords no instance of a great

nation retaining the form of republican government for a long

series of years, *r and this has led to the conclusion that such

a state of things is impracticable. For my own part, I cannot

but censure the imprudence of attempting to limit the possible

and to judge the future on the part of a being who is hourly

deceived by the most palpable realities of life, and who is

constantly taken by surprise in the circumstances with which he

is most familiar. But it may be advanced with confidence that

the existence of a great republic will always be exposed to far

greater perils than that of a small one.

[Footnote r: I do not speak of a confederation of small

republics, but of a great consolidated Republic.]

All the passions which are most fatal to republican

institutions spread with an increasing territory, whilst the

virtues which maintain their dignity do not augment in the same

proportion. The ambition of the citizens increases with the

power of the State; the strength of parties with the importance

of the ends they have in view; but that devotion to the common

weal which is the surest check on destructive passions is not

stronger in a large than in a small republic. It might, indeed,

be proved without difficulty that it is less powerful and less

sincere. The arrogance of wealth and the dejection of

wretchedness, capital cities of unwonted extent, a lax morality,

a vulgar egotism, and a great confusion of interests, are the

dangers which almost invariably arise from the magnitude of

States. But several of these evils are scarcely prejudicial to a

monarchy, and some of them contribute to maintain its existence.

In monarchical States the strength of the government is its own;

it may use, but it does not depend on, the community, and the

authority of the prince is proportioned to the prosperity of the

nation; but the only security which a republican government

possesses against these evils lies in the support of the

majority. This support is not, however, proportionably greater

in a large republic than it is in a small one; and thus, whilst

the means of attack perpetually increase both in number and in

influence, the power of resistance remains the same, or it may

rather be said to diminish, since the propensities and interests

of the people are diversified by the increase of the population,

and the difficulty of forming a compact majority is constantly

augmented. It has been observed, moreover, that the intensity of

human passions is heightened, not only by the importance of the

end which they propose to attain, but by the multitude of

individuals who are animated by them at the same time. Every one

has had occasion to remark that his emotions in the midst of a

sympathizing crowd are far greater than those which he would have

felt in solitude. In great republics the impetus of political

passion is irresistible, not only because it aims at gigantic

purposes, but because it is felt and shared by millions of men at

the same time.

It may therefore be asserted as a general proposition that

nothing is more opposed to the well-being and the freedom of man

than vast empires. Nevertheless it is important to acknowledge

the peculiar advantages of great States. For the very reason

which renders the desire of power more intense in these

communities than amongst ordinary men, the love of glory is also

more prominent in the hearts of a class of citizens, who regard

the applause of a great people as a reward worthy of their

exertions, and an elevating encouragement to man. If we would

learn why it is that great nations contribute more powerfully to

the spread of human improvement than small States, we shall

discover an adequate cause in the rapid and energetic circulation

of ideas, and in those great cities which are the intellectual

centres where all the rays of human genius are reflected and

combined. To this it may be added that most important

discoveries demand a display of national power which the

Government of a small State is unable to make; in great nations

the Government entertains a greater number of general notions,

and is more completely disengaged from the routine of precedent

and the egotism of local prejudice; its designs are conceived

with more talent, and executed with more boldness.

In time of peace the well-being of small nations is

undoubtedly more general and more complete, but they are apt to

suffer more acutely from the calamities of war than those great

empires whose distant frontiers may for ages avert the presence

of the danger from the mass of the people, which is therefore

more frequently afflicted than ruined by the evil.

But in this matter, as in many others, the argument derived

from the necessity of the case predominates over all others. If

none but small nations existed, I do not doubt that mankind would

be more happy and more free; but the existence of great nations

is unavoidable.

This consideration introduces the element of physical

strength as a condition of national prosperity. It profits a

people but little to be affluent and free if it is perpetually

exposed to be pillaged or subjugated; the number of its

manufactures and the extent of its commerce are of small

advantage if another nation has the empire of the seas and gives

the law in all the markets of the globe. Small nations are often

impoverished, not because they are small, but because they are

weak; the great empires prosper less because they are great than

because they are strong. Physical strength is therefore one of

the first conditions of the happiness and even of the existence

of nations. Hence it occurs that, unless very peculiar

circumstances intervene, small nations are always united to large

empires in the end, either by force or by their own consent: yet

I am unacquainted with a more deplorable spectacle than that of a

people unable either to defend or to maintain its independence.

The Federal system was created with the intention of

combining the different advantages which result from the greater

and the lesser extent of nations; and a single glance over the

United States of America suffices to discover the advantages

which they have derived from its adoption.

In great centralized nations the legislator is obliged to

impart a character of uniformity to the laws which does not

always suit the diversity of customs and of districts; as he

takes no cognizance of special cases, he can only proceed upon

general principles; and the population is obliged to conform to

the exigencies of the legislation, since the legislation cannot

adapt itself to the exigencies and the customs of the population,

which is the cause of endless trouble and misery. This

disadvantage does not exist in confederations. Congress

regulates the principal measures of the national Government, and

all the details of the administration are reserved to the

provincial legislatures. It is impossible to imagine how much

this division of sovereignty contributes to the well-being of

each of the States which compose the Union. In these small

communities, which are never agitated by the desire of

aggrandizement or the cares of self-defence, all public authority

and private energy is employed in internal amelioration. The

central government of each State, which is in immediate

juxtaposition to the citizens, is daily apprised of the wants

which arise in society; and new projects are proposed every year,

which are discussed either at town meetings or by the legislature

of the State, and which are transmitted by the press to stimulate

the zeal and to excite the interest of the citizens. This spirit

of amelioration is constantly alive in the American republics,

without compromising their tranquillity; the ambition of power

yields to the less refined and less dangerous love of comfort.

It is generally believed in America that the existence and the

permanence of the republican form of government in the New World

depend upon the existence and the permanence of the Federal

system; and it is not unusual to attribute a large share of the

misfortunes which have befallen the new States of South America

to the injudicious erection of great republics, instead of a

divided and confederate sovereignty.

It is incontestably true that the love and the habits of

republican government in the United States were engendered in the

townships and in the provincial assemblies. In a small State,

like that of Connecticut for instance, where cutting a canal or

laying down a road is a momentous political question, where the

State has no army to pay and no wars to carry on, and where much

wealth and much honor cannot be bestowed upon the chief citizens,

no form of government can be more natural or more appropriate

than that of a republic. But it is this same republican spirit,

it is these manners and customs of a free people, which are

engendered and nurtured in the different States, to be afterwards

applied to the country at large. The public spirit of the Union

is, so to speak, nothing more than an abstract of the patriotic

zeal of the provinces. Every citizen of the United States

transfuses his attachment to his little republic in the common

store of American patriotism. In defending the Union he defends

the increasing prosperity of his own district, the right of

conducting its affairs, and the hope of causing measures of

improvement to be adopted which may be favorable to his own

interest; and these are motives which are wont to stir men more

readily than the general interests of the country and the glory

of the nation.

On the other hand, if the temper and the manners of the

inhabitants especially fitted them to promote the welfare of a

great republic, the Federal system smoothed the obstacles which

they might have encountered. The confederation of all the

American States presents none of the ordinary disadvantages

resulting from great agglomerations of men. The Union is a great

republic in extent, but the paucity of objects for which its

Government provides assimilates it to a small State. Its acts

are important, but they are rare. As the sovereignty of th

Union is limited and incomplete, its exercise is not incompatible

with liberty; for it does not excite those insatiable desires of

fame and power which have proved so fatal to great republics. As

there is no common centre to the country, vast capital cities,

colossal wealth, abject poverty, and sudden revolutions are alike

unknown; and political passion, instead of spreading over the

land like a torrent of desolation, spends its strength against

the interests and the individual passions of every State.

Nevertheless, all commodities and ideas circulate throughout

the Union as freely as in a country inhabited by one people.

Nothing checks the spirit of enterprise. Government avails

itself of the assistance of all who have talents or knowledge to

serve it. Within the frontiers of the Union the profoundest

peace prevails, as within the heart of some great empire; abroad,

it ranks with the most powerful nations of the earth; two

thousand miles of coast are open to the commerce of the world;

and as it possesses the keys of the globe, its flags is respected

in the most remote seas. The Union is as happy and as free as a

small people, and as glorious and as strong as a great nation.

Why The Federal System Is Not Adapted
To All Peoples, And How The
Anglo-Americans Were Enabled To Adopt It

Every Federal system contains defects which baffle the efforts of

the legislator - The Federal system is complex - It demands a

daily exercise of discretion on the part of the citizens -

Practical knowledge of government common amongst the Americans -

Relative weakness of the Government of the Union, another defect

inherent in the Federal system - The Americans have diminished

without remedying it - The sovereignty of the separate States

apparently weaker, but really stronger, than that of the Union -

Why? -Natural causes of union must exist between confederate

peoples besides the laws - What these causes are amongst the

Anglo-Americans - Maine and Georgia, separated by a distance of a

thousand miles, more naturally united than Normandy and Brittany

- War, the main peril of confederations - This proved even by the

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

fear - Why? - Dangers to which Europeans would be exposed if they

adopted the Federal system of the Americans.

When a legislator succeeds, after persevering efforts, in

exercising an indirect influence upon the destiny of nations, his

genius is lauded by mankind, whilst, in point of fact, the

geographical position of the country which he is unable to

change, a social condition which arose without his co-operation,

manners and opinions which he cannot trace to their source, and

an origin with which he is unacquainted, exercise so irresistible

an influence over the courses of society that he is himself borne

away by the current, after an ineffectual resistance. Like the

navigator, he may direct the vessel which bears him along, but he

can neither change its structure, nor raise the winds, nor lull

the waters which swell beneath him.

I have shown the advantages which the Americans derive from

their federal system; it remains for me to point out the

circumstances which rendered that system practicable, as its

benefits are not to be enjoyed by all nations. The incidental

defects of the Federal system which originate in the laws may be

corrected by the skill of the legislator, but there are further

evils inherent in the system which cannot be counteracted by the

peoples which adopt it. These nations must therefore find the

strength necessary to support the natural imperfections of their

Government.

The most prominent evil of all Federal systems is the very

complex nature of the means they employ. Two sovereignties are

necessarily in presence of each other. The legislator may

simplify and equalize the action of these two sovereignties, by

limiting each of them to a sphere of authority accurately

defined; but he cannot combine them into one, or prevent them

from coming into collision at certain points. The Federal system

therefore rests upon a theory which is necessarily complicated,

and which demands the daily exercise of a considerable share of

discretion on the part of those it governs.

A proposition must be plain to be adopted by the

understanding of a people. A false notion which is clear and

precise will always meet with a greater number of adherents in

the world than a true principle which is obscure or involved.

Hence it arises that parties, which are like small communities in

the heart of the nation, invariably adopt some principle or some

name as a symbol, which very inadequately represents the end they

have in view and the means which are at their disposal, but

without which they could neither act nor subsist. The

governments which are founded upon a single principle or a single

feeling which is easily defined are perhaps not the best, but

they are unquestionably the strongest and the most durable in the

world.

In examining the Constitution of the United States, which is

the most perfect federal constitution that ever existed, one is

startled, on the other hand, at the variety of information and

the excellence of discretion which it presupposes in the people

whom it is meant to govern. The government of the Union depends

entirely upon legal fictions; the Union is an ideal nation which

only exists in the mind, and whose limits and extent can only be

discerned by the understanding.

When once the general theory is comprehended, numberless

difficulties remain to be solved in its application; for the

sovereignty of the Union is so involved in that of the States

that it is impossible to distinguish its boundaries at the first

glance. The whole structure of the Government is artificial and

conventional; and it would be ill adapted to a people which has

not been long accustomed to conduct its own affairs, or to one in

which the science of politics has not descended to the humblest

classes of society. I have never been more struck by the good

sense and the practical judgment of the Americans than in the

ingenious devices by which they elude the numberless difficulties

resulting from their Federal Constitution. I scarcely ever met

with a plain American citizen who could not distinguish, with

surprising facility, the obligations created by the laws of

Congress from those created by the laws of his own State; and

who, after having discriminated between the matters which come

under the cognizance of the Union and those which the local

legislature is competent to regulate, could not point out the

exact limit of the several jurisdictions of the Federal courts

and the tribunals of the State.

The Constitution of the United States is like those

exquisite productions of human industry which ensure wealth and

renown to their inventors, but which are profitless in any other

hands. This truth is exemplified by the condition of Mexico at

the present time. The Mexicans were desirous of establishing a

federal system, and they took the Federal Constitution of their

neighbors, the Anglo-Americans, as their model, and copied it

with considerable accuracy. *s But although they had borrowed the

letter of the law, they were unable to create or to introduce the

spirit and the sense which give it life. They were involved in

ceaseless embarrassments between the mechanism of their double

government; the sovereignty of the States and that of the Union

perpetually exceeded their respective privileges, and entered

into collision; and to the present day Mexico is alternately the

victim of anarchy and the slave of military despotism.

[Footnote s: See the Mexican Constitution of 1824.]

The second and the most fatal of all the defects I have

alluded to, and that which I believe to be inherent in the

federal system, is the relative weakness of the government of the

Union. The principle upon which all confederations rest is that

of a divided sovereignty. The legislator may render this

partition less perceptible, he may even conceal it for a time

from the public eye, but he cannot prevent it from existing, and

a divided sovereignty must always be less powerful than an entire

supremacy. The reader has seen in the remarks I have made on the

Constitution of the United States that the Americans have

displayed singular ingenuity in combining the restriction of the

power of the Union within the narrow limits of a federal

government with the semblance and, to a certain extent, with the

force of a national government. By this means the legislators of

the Union have succeeded in diminishing, though not in

counteracting the natural danger of confederations.

It has been remarked that the American Government does not

apply itself to the States, but that it immediately transmits its

injunctions to the citizens, and compels them as isolated

individuals to comply with its demands. But if the Federal law

were to clash with the interests and the prejudices of a State,

it might be feared that all the citizens of that State would

conceive themselves to be interested in the cause of a single

individual who should refuse to obey. If all the citizens of the

State were aggrieved at the same time and in the same manner by

the authority of the Union, the Federal Government would vainly

attempt to subdue them individually; they would instinctively

unite in a common defence, and they would derive a ready-prepared

organization from the share of sovereignty which the institution

of their State allows them to enjoy. Fiction would give way to

reality, and an organized portion of the territory might then

contest the central authority. *t The same observation holds good

with regard to the Federal jurisdiction. If the courts of the

Union violated an important law of a State in a private case, the

real, if not the apparent, contest would arise between the

aggrieved State represented by a citizen and the Union

represented by its courts of justice. *u

[Footnote t: [This is precisely what occurred in 1862, and the

following paragraph describes correctly the feelings and notions

of the South. General Lee held that his primary allegiance was

due, not to the Union, but to Virginia.]]

[Footnote u: For instance, the Union possesses by the

Constitution the right of selling unoccupied lands for its own

profit. Supposing that the State of Ohio should claim the same

right in behalf of certain territories lying within its

boundaries, upon the plea that the Constitution refers to those

lands alone which do not belong to the jurisdiction of any

particular State, and consequently should choose to dispose of

them itself, the litigation would be carried on in the names of

the purchasers from the State of Ohio and the purchasers from the

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

become of this legal fiction if the Federal purchaser was

confirmed in his right by the courts of the Union, whilst the

other competitor was ordered to retain possession by the

tribunals of the State of Ohio?]

He would have but a partial knowledge of the world who

should imagine that it is possible, by the aid of legal fictions,

to prevent men from finding out and employing those means of

gratifying their passions which have been left open to them; and

it may be doubted whether the American legislators, when they

rendered a collision between the two sovereigns less probable,

destroyed the cause of such a misfortune. But it may even be

affirmed that they were unable to ensure the preponderance of the

Federal element in a case of this kind. The Union is possessed

of money and of troops, but the affections and the prejudices of

the people are in the bosom of the States. The sovereignty of the

Union is an abstract being, which is connected with but few

external objects; the sovereignty of the States is hourly

perceptible, easily understood, constantly active; and if the

former is of recent creation, the latter is coeval with the

people itself. The sovereignty of the Union is factitious, that

of the States is natural, and derives its existence from its own

simple influence, like the authority of a parent. The supreme

power of the nation only affects a few of the chief interests of

society; it represents an immense but remote country, and claims

a feeling of patriotism which is vague and ill defined; but the

authority of the States controls every individual citizen at

every hour and in all circumstances; it protects his property,

his freedom, and his life; and when we recollect the traditions,

the customs, the prejudices of local and familiar attachment with

which it is connected, we cannot doubt of the superiority of a

power which is interwoven with every circumstance that renders

the love of one's native country instinctive in the human heart.

Since legislators are unable to obviate such dangerous

collisions as occur between the two sovereignties which coexist

in the federal system, their first object must be, not only to

dissuade the confederate States from warfare, but to encourage

such institutions as may promote the maintenance of peace. Hence

it results that the Federal compact cannot be lasting unless

there exists in the communities which are leagued together a

certain number of inducements to union which render their common

dependence agreeable, and the task of the Government light, and

that system cannot succeed without the presence of favorable

circumstances added to the influence of good laws. All the

peoples which have ever formed a confederation have been held

together by a certain number of common interests, which served as

the intellectual ties of association.

But the sentiments and the principles of man must be taken

into consideration as well as his immediate interests. A certain

uniformity of civilization is not less necessary to the

durability of a confederation than a uniformity of interests in

the States which compose it. In Switzerland the difference which

exists between the Canton of Uri and the Canton of Vaud is equal

to that between the fifteenth and the nineteenth centuries; and,

properly speaking, Switzerland has never possessed a federal

government. The union between these two cantons only subsists

upon the map, and their discrepancies would soon be perceived if

an attempt were made by a central authority to prescribe the same

laws to the whole territory.

One of the circumstances which most powerfully contribute to

support the Federal Government in America is that the States have

not only similar interests, a common origin, and a common tongue,

but that they are also arrived at the same stage of civilization;

which almost always renders a union feasible. I do not know of

any European nation, how small soever it may be, which does not

present less uniformity in its different provinces than the

American people, which occupies a territory as extensive as

one-half of Europe. The distance from the State of Maine to that

of Georgia is reckoned at about one thousand miles; but the

difference between the civilization of Maine and that of Georgia

is slighter than the difference between the habits of Normandy

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

the opposite extremities of a great empire, are consequently in

the natural possession of more real inducements to form a

confederation than Normandy and Brittany, which are only

separated by a bridge.

The geographical position of the country contributed to

increase the facilities which the American legislators derived

from the manners and customs of the inhabitants; and it is to

this circumstance that the adoption and the maintenance of the

Federal system are mainly attributable.

The most important occurrence which can mark the annals of a

people is the breaking out of a war. In war a people struggles

with the energy of a single man against foreign nations in the

defence of its very existence. The skill of a government, the

good sense of the community, and the natural fondness which men

entertain for their country, may suffice to maintain peace in the

interior of a district, and to favor its internal prosperity; but

a nation can only carry on a great war at the cost of more

numerous and more painful sacrifices; and to suppose that a great

number of men will of their own accord comply with these

exigencies of the State is to betray an ignorance of mankind.

All the peoples which have been obliged to sustain a long and

serious warfare have consequently been led to augment the power

of their government. Those which have not succeeded in this

attempt have been subjugated. A long war almost always places

nations in the wretched alternative of being abandoned to ruin by

defeat or to despotism by success. War therefore renders the

symptoms of the weakness of a government most palpable and most

alarming; and I have shown that the inherent defeat of federal

governments is that of being weak.

The Federal system is not only deficient in every kind of

centralized administration, but the central government itself is

imperfectly organized, which is invariably an influential cause

of inferiority when the nation is opposed to other countries

which are themselves governed by a single authority. In the

Federal Constitution of the United States, by which the central

government possesses more real force, this evil is still

extremely sensible. An example will illustrate the case to the

reader.

The Constitution confers upon Congress the right of calling

forth militia to execute the laws of the Union, suppress

insurrections, and repel invasions; and another article declares

that the President of the United States is the commander-in-chief

of the militia. In the war of 1812 the President ordered the

militia of the Northern States to march to the frontiers; but

Connecticut and Massachusetts, whose interests were impaired by

the war, refused to obey the command. They argued that the

Constitution authorizes the Federal Government to call forth the

militia in case of insurrection or invasion, but that in the

present instance there was neither invasion nor insurrection.

They added, that the same Constitution which conferred upon the

Union the right of calling forth the militia reserved to the

States that of naming the officers; and that consequently (as

they understood the clause) no officer of the Union had any right

to command the militia, even during war, except the President in

person; and in this case they were ordered to join an army

commanded by another individual. These absurd and pernicious

doctrines received the sanction not only of the governors and the

legislative bodies, but also of the courts of justice in both

States; and the Federal Government was constrained to raise

elsewhere the troops which it required. *v

[Footnote v: Kent's "Commentaries," vol. i. p. 244. I have

selected an example which relates to a time posterior to the

promulgation of the present Constitution. If I had gone back to

the days of the Confederation, I might have given still more

striking instances. The whole nation was at that time in a state

of enthusiastic excitement; the Revolution was represented by a

man who was the idol of the people; but at that very period

Congress had, to say the truth, no resources at all at its

disposal. Troops and supplies were perpetually wanting. The

best-devised projects failed in the execution, and the Union,

which was constantly on the verge of destruction, was saved by

the weakness of its enemies far more than by its own strength.

[All doubt as to the powers of the Federal Executive was,

however, removed by its efforts in the Civil War, and those

powers were largely extended.]]

The only safeguard which the American Union, with all the

relative perfection of its laws, possesses against the

dissolution which would be produced by a great war, lies in its

probable exemption from that calamity. Placed in the centre of an

immense continent, which offers a boundless field for human

industry, the Union is almost as much insulated from the world as

if its frontiers were girt by the ocean. Canada contains only a

million of inhabitants, and its population is divided into two

inimical nations. The rigor of the climate limits the extension

of its territory, and shuts up its ports during the six months of

winter. From Canada to the Gulf of Mexico a few savage tribes

are to be met with, which retire, perishing in their retreat,

before six thousand soldiers. To the South, the Union has a

point of contact with the empire of Mexico; and it is thence that

serious hostilities may one day be expected to arise. But for a

long while to come the uncivilized state of the Mexican

community, the depravity of its morals, and its extreme poverty,

will prevent that country from ranking high amongst nations. *w

As for the Powers of Europe, they are too distant to be

formidable.

[Footnote w: [War broke out between the United States and Mexico

in 1846, and ended in the conquest of an immense territory,

including California.]]

The great advantage of the United States does not, then,

consist in a Federal Constitution which allows them to carry on

great wars, but in a geographical position which renders such

enterprises extremely improbable.

No one can be more inclined than I am myself to appreciate

the advantages of the federal system, which I hold to be one of

the combinations most favorable to the prosperity and freedom of

man. I envy the lot of those nations which have been enabled to

adopt it; but I cannot believe that any confederate peoples could

maintain a long or an equal contest with a nation of similar

strength in which the government should be centralized. A people

which should divide its sovereignty into fractional powers, in

the presence of the great military monarchies of Europe, would,

in my opinion, by that very act, abdicate its power, and perhaps

its existence and its name. But such is the admirable position

of the New World that man has no other enemy than himself; and

that, in order to be happy and to be free, it suffices to seek

the gifts of prosperity and the knowledge of freedom.

 

Chapter IX:
Why The People May Strictly Be Said
To Govern In The United States

I have hitherto examined the institutions of the United

States; I have passed their legislation in review, and I have

depicted the present characteristics of political society in that

country. But a sovereign power exists above these institutions

and beyond these characteristic features which may destroy or

modify them at its pleasure - I mean that of the people. It

remains to be shown in what manner this power, which regulates

the laws, acts: its propensities and its passions remain to be

pointed out, as well as the secret springs which retard,

accelerate, or direct its irresis