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