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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 the Union is

limited and incomplete, its exercise is not incompatible with liberty;

for it does not excite those insatiable desires of fame and power which

have proved so fatal to great republics. As there is no common centre to

the country, vast capital cities, colossal wealth, abject poverty, and

sudden revolutions are alike unknown; and political passion, instead

of spreading over the land like a torrent of desolation, spends its

strength against the interests and the individual passions of every

State.

Nevertheless, all commodities and ideas circulate throughout the Union

as freely as in a country inhabited by one people. Nothing checks the

spirit of enterprise. Government avails itself of the assistance of all

who have talents or knowledge to serve it. Within the frontiers of the

Union the profoundest peace prevails, as within the heart of some great

empire; abroad, it ranks with the most powerful nations of the earth;

two thousand miles of coast are open to the commerce of the world; and

as it possesses the keys of the globe, its flags is respected in the

most remote seas. The Union is as happy and as free as a small people,

and as glorious and as strong as a great nation.

Why The Federal System Is Not Adapted To All Peoples, And How The

Anglo-Americans Were Enabled To Adopt It.

Every Federal system contains defects which baffle the efforts of the

legislator--The Federal system is complex--It demands a daily exercise

of discretion on the part of the citizens--Practical knowledge of

government common amongst the Americans--Relative weakness of the

Government of the Union, another defect inherent in the Federal

system--The Americans have diminished without remedying it--The

sovereignty of the separate States apparently weaker, but really

stronger, than that of the Union--Why?--Natural causes of union must

exist between confederate peoples besides the laws--What these causes

are amongst the Anglo-Americans--Maine and Georgia, separated by a

distance of a thousand miles, more naturally united than Normandy and

Brittany--War, the main peril of confederations--This proved even by

the example of the United States--The Union has no great wars to

fear--Why?--Dangers to which Europeans would be exposed if they adopted

the Federal system of the Americans.

When a legislator succeeds, after persevering efforts, in exercising an

indirect influence upon the destiny of nations, his genius is lauded

by mankind, whilst, in point of fact, the geographical position of the

country which he is unable to change, a social condition which arose

without his co-operation, manners and opinions which he cannot trace to

their source, and an origin with which he is unacquainted, exercise so

irresistible an influence over the courses of society that he is himself

borne away by the current, after an ineffectual resistance. Like the

navigator, he may direct the vessel which bears him along, but he can

neither change its structure, nor raise the winds, nor lull the waters

which swell beneath him.

I have shown the advantages which the Americans derive from their

federal system; it remains for me to point out the circumstances which

rendered that system practicable, as its benefits are not to be enjoyed

by all nations. The incidental defects of the Federal system which

originate in the laws may be corrected by the skill of the legislator,

but there are further evils inherent in the system which cannot be

counteracted by the peoples which adopt it. These nations must therefore

find the strength necessary to support the natural imperfections of

their Government.

The most prominent evil of all Federal systems is the very complex

nature of the means they employ. Two sovereignties are necessarily in

presence of each other. The legislator may simplify and equalize the

action of these two sovereignties, by limiting each of them to a sphere

of authority accurately defined; but he cannot combine them into one, or

prevent them from coming into collision at certain points. The Federal

system therefore rests upon a theory which is necessarily complicated,

and which demands the daily exercise of a considerable share of

discretion on the part of those it governs.

A proposition must be plain to be adopted by the understanding of a

people. A false notion which is clear and precise will always meet with

a greater number of adherents in the world than a true principle which

is obscure or involved. Hence it arises that parties, which are like

small communities in the heart of the nation, invariably adopt some

principle or some name as a symbol, which very inadequately represents

the end they have in view and the means which are at their disposal, but

without which they could neither act nor subsist. The governments which

are founded upon a single principle or a single feeling which is easily

defined are perhaps not the best, but they are unquestionably the

strongest and the most durable in the world.

In examining the Constitution of the United States, which is the most

perfect federal constitution that ever existed, one is startled, on

the other hand, at the variety of information and the excellence of

discretion which it presupposes in the people whom it is meant to

govern. The government of the Union depends entirely upon legal

fictions; the Union is an ideal nation which only exists in the mind,

and whose limits and extent can only be discerned by the understanding.

When once the general theory is comprehended, numberless difficulties

remain to be solved in its application; for the sovereignty of the

Union is so involved in that of the States that it is impossible to

distinguish its boundaries at the first glance. The whole structure

of the Government is artificial and conventional; and it would be ill

adapted to a people which has not been long accustomed to conduct

its own affairs, or to one in which the science of politics has not

descended to the humblest classes of society. I have never been more

struck by the good sense and the practical judgment of the Americans

than in the ingenious devices by which they elude the numberless

difficulties resulting from their Federal Constitution. I scarcely

ever met with a plain American citizen who could not distinguish, with

surprising facility, the obligations created by the laws of Congress

from those created by the laws of his own State; and who, after having

discriminated between the matters which come under the cognizance of the

Union and those which the local legislature is competent to regulate,

could not point out the exact limit of the several jurisdictions of the

Federal courts and the tribunals of the State.

The Constitution of the United States is like those exquisite

productions of human industry which ensure wealth and renown to their

inventors, but which are profitless in any other hands. This truth is

exemplified by the condition of Mexico at the present time. The Mexicans

were desirous of establishing a federal system, and they took the

Federal Constitution of their neighbors, the Anglo-Americans, as their

model, and copied it with considerable accuracy. *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 irresistible course; and the effects of its unbounded

authority, with the destiny which is probably reserved for it.

In America the people appoints the legislative and the executive power,

and furnishes the jurors who punish all offences against the laws. The

American institutions are democratic, not only in their principle but

in all their consequences; and the people elects its representatives

directly, and for the most part annually, in order to ensure their

dependence. The people is therefore the real directing power; and

although the form of government is representative, it is evident that

the opinions, the prejudices, the interests, and even the passions of

the community are hindered by no durable obstacles from exercising

a perpetual influence on society. In the United States the majority

governs in the name of the people, as is the case in all the countries

in which the people is supreme. The majority is principally composed

of peaceful citizens who, either by inclination or by interest, are

sincerely desirous of the welfare of their country. But they are

surrounded by the incessant agitation of parties, which attempt to gain

their co-operation and to avail themselves of their support.

Chapter X: Parties In The United States

Chapter Summary

Great distinction to be made between parties--Parties which are to each

other as rival nations--Parties properly so called--Difference

between great and small parties--Epochs which produce them--Their

characteristics--America has had great parties--They are

extinct--Federalists--Republicans--Defeat of the Federalists--Difficulty

of creating parties in the United States--What is done with this

intention--Aristocratic or democratic character to be met with in all

parties--Struggle of General Jackson against the Bank.

Parties In The United States

A great distinction must be made between parties. Some countries are

so large that the different populations which inhabit them have

contradictory interests, although they are the subjects of the same

Government, and they may thence be in a perpetual state of opposition.

In this case the different fractions of the people may more properly be

considered as distinct nations than as mere parties; and if a civil war

breaks out, the struggle is carried on by rival peoples rather than by

factions in the State.

But when the citizens entertain different opinions upon subjects which

affect the whole country alike, such, for instance, as the principles

upon which the government is to be conducted, then distinctions arise

which may correctly be styled parties. Parties are a necessary evil in

free governments; but they have not at all times the same character and

the same propensities.

At certain periods a nation may be oppressed by such insupportable evils

as to conceive the design of effecting a total change in its political

constitution; at other times the mischief lies still deeper, and the

existence of society itself is endangered. Such are the times of great

revolutions and of great parties. But between these epochs of misery and

of confusion there are periods during which human society seems to rest,

and mankind to make a pause. This pause is, indeed, only apparent, for

time does not stop its course for nations any more than for men; they

are all advancing towards a goal with which they are unacquainted; and

we only imagine them to be stationary when their progress escapes our

observation, as men who are going at a foot-pace seem to be standing

still to those who run.

But however this may be, there are certain epochs at which the changes

that take place in the social and political constitution of nations are

so slow and so insensible that men imagine their present condition to be

a final state; and the human mind, believing itself to be firmly based

upon certain foundations, does not extend its researches beyond the

horizon which it descries. These are the times of small parties and of

intrigue.

The political parties which I style great are those which cling to

principles more than to their consequences; to general, and not to

especial cases; to ideas, and not to men. These parties are usually

distinguished by a nobler character, by more generous passions, more

genuine convictions, and a more bold and open conduct than the others.

In them private interest, which always plays the chief part in political

passions, is more studiously veiled under the pretext of the public

good; and it may even be sometimes concealed from the eyes of the very

persons whom it excites and impels.

Minor parties are, on the other hand, generally deficient in political

faith. As they are not sustained or dignified by a lofty purpose, they

ostensibly display the egotism of their character in their actions.

They glow with a factitious zeal; their language is vehement, but their

conduct is timid and irresolute. The means they employ are as wretched

as the end at which they aim. Hence it arises that when a calm state

of things succeeds a violent revolution, the leaders of society

seem suddenly to disappear, and the powers of the human mind to lie

concealed. Society is convulsed by great parties, by minor ones it is

agitated; it is torn by the former, by the latter it is degraded; and

if these sometimes save it by a salutary perturbation, those invariably

disturb it to no good end.

America has already lost the great parties which once divided the

nation; and if her happiness is considerably increased, her morality

has suffered by their extinction. When the War of Independence was

terminated, and the foundations of the new Government were to be laid

down, the nation was divided between two opinions--two opinions which

are as old as the world, and which are perpetually to be met with

under all the forms and all the names which have ever obtained in free

communities--the one tending to limit, the other to extend indefinitely,

the power of the people. The conflict of these two opinions never

assumed that degree of violence in America which it has frequently

displayed elsewhere. Both parties of the Americans were, in fact, agreed

upon the most essential points; and neither of them had to destroy a

traditionary constitution, or to overthrow the structure of society, in

order to ensure its own triumph. In neither of them, consequently, were

a great number of private interests affected by success or by defeat;

but moral principles of a high order, such as the love of equality and

of independence, were concerned in the struggle, and they sufficed to

kindle violent passions.

The party which desired to limit the power of the people endeavored to

apply its doctrines more especially to the Constitution of the Union,

whence it derived its name of Federal. The other party, which affected

to be more exclusively attached to the cause of liberty, took that of

Republican. America is a land of democracy, and the Federalists were

always in a minority; but they reckoned on their side almost all the

great men who had been called forth by the War of Independence, and

their moral influence was very considerable. Their cause was, moreover,

favored by circumstances. The ruin of the Confederation had impressed

the people with a dread of anarchy, and the Federalists did not fail to

profit by this transient disposition of the multitude. For ten or twelve

years they were at the head of affairs, and they were able to apply

some, though not all, of their principles; for the hostile current was

becoming from day to day too violent to be checked or stemmed. In 1801

the Republicans got possession of the Government; Thomas Jefferson was

named President; and he increased the influence of their party by the

weight of his celebrity, the greatness of his talents, and the immense

extent of his popularity.

The means by which the Federalists had maintained their position were

artificial, and their resources were temporary; it was by the virtues

or the talents of their leaders that they had risen to power. When

the Republicans attained to that lofty station, their opponents were

overwhelmed by utter defeat. An immense majority declared itself against

the retiring party, and the Federalists found themselves in so small a

minority that they at once despaired of their future success. From that

moment the Republican or Democratic party *a has proceeded from conquest

to conquest, until it has acquired absolute supremacy in the country.

The Federalists, perceiving that they were vanquished without resource,

and isolated in the midst of the nation, fell into two divisions, of

which one joined the victorious Republicans, and the other abandoned its

rallying-point and its name. Many years have already elapsed since they

ceased to exist as a party.

[Footnote a: [It is scarcely necessary to remark that in more recent

times the signification of these terms has changed. The Republicans are

the representatives of the old Federalists, and the Democrats of the old

Republicans.--Trans. Note (1861).]] The accession of the Federalists

to power was, in my opinion, one of the most fortunate incidents which

accompanied the formation of the great American Union; they resisted

the inevitable propensities of their age and of the country. But

whether their theories were good or bad, they had the effect of being

inapplicable, as a system, to the society which they professed to

govern, and that which occurred under the auspices of Jefferson must

therefore have taken place sooner or later. But their Government gave

the new republic time to acquire a certain stability, and afterwards to

support the rapid growth of the very doctrines which they had combated.

A considerable number of their principles were in point of fact embodied

in the political creed of their opponents; and the Federal Constitution

which subsists at the present day is a lasting monument of their

patriotism and their wisdom.

Great political parties are not, then, to be met with in the United

States at the present time. Parties, indeed, may be found which threaten

the future tranquillity of the Union; but there are none which seem to

contest the present form of Government or the present course of society.

The parties by which the Union is menaced do not rest upon abstract

principles, but upon temporal interests. These interests, disseminated

in the provinces of so vast an empire, may be said to constitute rival

nations rather than parties. Thus, upon a recent occasion, the North

contended for the system of commercial prohibition, and the South

took up arms in favor of free trade, simply because the North is a

manufacturing and the South an agricultural district; and that the

restrictive system which was profitable to the one was prejudicial to

the other. *b

[Footnote b: [The divisions of North and South have since acquired a

far greater degree of intensity, and the South, though conquered,

still presents a formidable spirit of opposition to Northern

government.--Translator's Note, 1875.]]

In the absence of great parties, the United States abound with lesser

controversies; and public opinion is divided into a thousand minute

shades of difference upon questions of very little moment. The pains

which are taken to create parties are inconceivable, and at the present

day it is no easy task. In the United States there is no religious

animosity, because all religion is respected, and no sect is

predominant; there is no jealousy of rank, because the people is

everything, and none can contest its authority; lastly, there is no

public indigence to supply the means of agitation, because the physical

position of the country opens so wide a field to industry that man is

able to accomplish the most surprising undertakings with his own native

resources. Nevertheless, ambitious men are interested in the creation of

parties, since it is difficult to eject a person from authority upon the

mere ground that his place is coveted by others. The skill of the actors

in the political world lies therefore in the art of creating parties. A

political aspirant in the United States begins by discriminating his own

interest, and by calculating upon those interests which may be collected

around and amalgamated with it; he then contrives to discover some

doctrine or some principle which may suit the purposes of this new

association, and which he adopts in order to bring forward his party and

to secure his popularity; just as the imprimatur of a King was in former

days incorporated with the volume which it authorized, but to which it

nowise belonged. When these preliminaries are terminated, the new party

is ushered into the political world.

All the domestic controversies of the Americans at first appear to a

stranger to be so incomprehensible and so puerile that he is at a

loss whether to pity a people which takes such arrant trifles in good

earnest, or to envy the happiness which enables it to discuss them. But

when he comes to study the secret propensities which govern the factions

of America, he easily perceives that the greater part of them are more

or less connected with one or the other of those two divisions which

have always existed in free communities. The deeper we penetrate into

the working of these parties, the more do we perceive that the object

of the one is to limit, and that of the other to extend, the popular

authority. I do not assert that the ostensible end, or even that the

secret aim, of American parties is to promote the rule of aristocracy or

democracy in the country; but I affirm that aristocratic or democratic

passions may easily be detected at the bottom of all parties, and that,

although they escape a superficial observation, they are the main point

and the very soul of every faction in the United States.

To quote a recent example. When the President attacked the Bank, the

country was excited and parties were formed; the well-informed classes

rallied round the Bank, the common people round the President. But it

must not be imagined that the people had formed a rational opinion upon

a question which offers so many difficulties to the most experienced

statesmen. The Bank is a great establishment which enjoys an independent

existence, and the people, accustomed to make and unmake whatsoever it

pleases, is startled to meet with this obstacle to its authority. In the

midst of the perpetual fluctuation of society the community is irritated

by so permanent an institution, and is led to attack it in order to see

whether it can be shaken and controlled, like all the other institutions

of the country.

Remains Of The Aristocratic Party In The United States

Secret opposition of wealthy individuals to democracy--Their

retirement--Their taste for exclusive pleasures and for luxury at

home--Their simplicity abroad--Their affected condescension towards the

people.

It sometimes happens in a people amongst which various opinions prevail

that the balance of the several parties is lost, and one of them obtains

an irresistible preponderance, overpowers all obstacles, harasses its

opponents, and appropriates all the resources of society to its own

purposes. The vanquished citizens despair of success and they conceal

their dissatisfaction in silence and in general apathy. The nation seems

to be governed by a single principle, and the prevailing party assumes

the credit of having restored peace and unanimity to the country. But

this apparent unanimity is merely a cloak to alarming dissensions and

perpetual opposition.

This is precisely what occurred in America; when the democratic party

got the upper hand, it took exclusive possession of the conduct of

affairs, and from that time the laws and the customs of society have

been adapted to its caprices. At the present day the more affluent

classes of society are so entirely removed from the direction of

political affairs in the United States that wealth, far from conferring

a right to the exercise of power, is rather an obstacle than a means of

attaining to it. The wealthy members of the community abandon the lists,

through unwillingness to contend, and frequently to contend in vain,

against the poorest classes of their fellow citizens. They concentrate

all their enjoyments in the privacy of their homes, where they occupy

a rank which cannot be assumed in public; and they constitute a private

society in the State, which has its own tastes and its own pleasures.

They submit to this state of things as an irremediable evil, but they

are careful not to show that they are galled by its continuance; it

is even not uncommon to hear them laud the delights of a republican

government, and the advantages of democratic institutions when they

are in public. Next to hating their enemies, men are most inclined to

flatter them.

Mark, for instance, that opulent citizen, who is as anxious as a Jew of

the Middle Ages to conceal his wealth. His dress is plain, his demeanor

unassuming; but the interior of his dwelling glitters with luxury, and

none but a few chosen guests whom he haughtily styles his equals are

allowed to penetrate into this sanctuary. No European noble is more

exclusive in his pleasures, or more jealous of the smallest advantages

which his privileged station confers upon him. But the very same

individual crosses the city to reach a dark counting-house in the centre

of traffic, where every one may accost him who pleases. If he meets his

cobbler upon the way, they stop and converse; the two citizens discuss

the affairs of the State in which they have an equal interest, and they

shake hands before they part.

But beneath this artificial enthusiasm, and these obsequious attentions

to the preponderating power, it is easy to perceive that the wealthy

members of the community entertain a hearty distaste to the democratic

institutions of their country. The populace is at once the object

of their scorn and of their fears. If the maladministration of the

democracy ever brings about a revolutionary crisis, and if monarchical

institutions ever become practicable in the United States, the truth of

what I advance will become obvious.

The two chief weapons which parties use in order to ensure success are

the public press and the formation of associations.

Chapter XI: Liberty Of The Press In The United States

Chapter Summary

Difficulty of restraining the liberty of the press--Particular reasons

which some nations have to cherish this liberty--The liberty of the

press a necessary consequence of the sovereignty of the people as it is

understood in America--Violent language of the periodical press in the

United States--Propensities of the periodical press--Illustrated by the

United States--Opinion of the Americans upon the repression of the abuse

of the liberty of the press by judicial prosecutions--Reasons for which

the press is less powerful in America than in France.

Liberty Of The Press In The United States

The influence of the liberty of the press does not affect political

opinions alone, but it extends to all the opinions of men, and it

modifies customs as well as laws. In another part of this work I shall

attempt to determinate the degree of influence which the liberty of

the press has exercised upon civil society in the United States, and to

point out the direction which it has given to the ideas, as well as the

tone which it has imparted to the character and the feelings, of the

Anglo-Americans, but at present I purpose simply to examine the effects

produced by the liberty of the press in the political world.

I confess that I do not entertain that firm and complete attachment to

the liberty of the press which things that are supremely good in their

very nature are wont to excite in the mind; and I approve of it more

from a recollection of the evils it prevents than from a consideration

of the advantages it ensures.

If any one could point out an intermediate and yet a tenable position

between the complete independence and the entire subjection of the

public expression of opinion, I should perhaps be inclined to adopt it;

but the difficulty is to discover this position. If it is your intention

to correct the abuses of unlicensed printing and to restore the use of

orderly language, you may in the first instance try the offender by

a jury; but if the jury acquits him, the opinion which was that of a

single individual becomes the opinion of the country at large. Too much

and too little has therefore hitherto been done. If you proceed, you

must bring the delinquent before a court of permanent judges. But even

here the cause must be heard before it can be decided; and the very

principles which no book would have ventured to avow are blazoned

forth in the pleadings, and what was obscurely hinted at in a single

composition is then repeated in a multitude of other publications.

The language in which a thought is embodied is the mere carcass of the

thought, and not the idea itself; tribunals may condemn the form, but

the sense and spirit of the work is too subtle for their authority. Too

much has still been done to recede, too little to attain your end; you

must therefore proceed. If you establish a censorship of the press, the

tongue of the public speaker will still make itself heard, and you have

only increased the mischief. The powers of thought do not rely, like the

powers of physical strength, upon the number of their mechanical agents,

nor can a host of authors be reckoned like the troops which compose an

army; on the contrary, the authority of a principle is often increased

by the smallness of the number of men by whom it is expressed. The

words of a strong-minded man, which penetrate amidst the passions of a

listening assembly, have more power than the vociferations of a thousand

orators; and if it be allowed to speak freely in any public place,

the consequence is the same as if free speaking was allowed in every

village. The liberty of discourse must therefore be destroyed as well

as the liberty of the press; this is the necessary term of your efforts;

but if your object was to repress the abuses of liberty, they have

brought you to the feet of a despot. You have been led from the extreme

of independence to the extreme of subjection without meeting with a

single tenable position for shelter or repose.

There are certain nations which have peculiar reasons for cherishing the

liberty of the press, independently of the general motives which I have

just pointed out. For in certain countries which profess to enjoy the

privileges of freedom every individual agent of the Government may

violate the laws with impunity, since those whom he oppresses cannot

prosecute him before the courts of justice. In this case the liberty of

the press is not merely a guarantee, but it is the only guarantee, of

their liberty and their security which the citizens possess. If the

rulers of these nations propose to abolish the independence of the

press, the people would be justified in saying: Give us the right of

prosecuting your offences before the ordinary tribunals, and perhaps we

may then waive our right of appeal to the tribunal of public opinion.

But in the countries in which the doctrine of the sovereignty of the

people ostensibly prevails, the censorship of the press is not only

dangerous, but it is absurd. When the right of every citizen to

co-operate in the government of society is acknowledged, every citizen

must be presumed to possess the power of discriminating between the

different opinions of his contemporaries, and of appreciating the

different facts from which inferences may be drawn. The sovereignty of

the people and the liberty of the press may therefore be looked upon

as correlative institutions; just as the censorship of the press and

universal suffrage are two things which are irreconcilably opposed, and

which cannot long be retained among the institutions of the same people.

Not a single individual of the twelve millions who inhabit the territory

of the United States has as yet dared to propose any restrictions to

the liberty of the press. The first newspaper over which I cast my eyes,

upon my arrival in America, contained the following article:

In all this affair the language of Jackson has been that of a heartless

despot, solely occupied with the preservation of his own authority.

Ambition is his crime, and it will be his punishment too: intrigue is

his native element, and intrigue will confound his tricks, and will

deprive him of his power: he governs by means of corruption, and his

immoral practices will redound to his shame and confusion. His conduct

in the political arena has been that of a shameless and lawless

gamester. He succeeded at the time, but the hour of retribution

approaches, and he will be obliged to disgorge his winnings, to throw

aside his false dice, and to end his days in some retirement, where he

may curse his madness at his leisure; for repentance is a virtue with

which his heart is likely to remain forever unacquainted.

It is not uncommonly imagined in France that the virulence of the

press originates in the uncertain social condition, in the political

excitement, and the general sense of consequent evil which prevail in

that country; and it is therefore supposed that as soon as society has

resumed a certain degree of composure the press will abandon its present

vehemence. I am inclined to think that the above causes explain the

reason of the extraordinary ascendency it has acquired over the nation,

but that they do not exercise much influence upon the tone of its

language. The periodical press appears to me to be actuated by passions

and propensities independent of the circumstances in which it is placed,

and the present position of America corroborates this opinion.

America is perhaps, at this moment, the country of the whole world

which contains the fewest germs of revolution; but the press is not less

destructive in its principles than in France, and it displays the same

violence without the same reasons for indignation. In America, as

in France, it constitutes a singular power, so strangely composed of

mingled good and evil that it is at the same time indispensable to the

existence of freedom, and nearly incompatible with the maintenance of

public order. Its power is certainly much greater in France than in the

United States; though nothing is more rare in the latter country than to

hear of a prosecution having been instituted against it. The reason

of this is perfectly simple: the Americans, having once admitted

the doctrine of the sovereignty of the people, apply it with perfect

consistency. It was never their intention to found a permanent state

of things with elements which undergo daily modifications; and there

is consequently nothing criminal in an attack upon the existing laws,

provided it be not attended with a violent infraction of them. They

are moreover of opinion that courts of justice are unable to check

the abuses of the press; and that as the subtilty of human language

perpetually eludes the severity of judicial analysis, offences of this

nature are apt to escape the hand which attempts to apprehend them. They

hold that to act with efficacy upon the press it would be necessary to

find a tribunal, not only devoted to the existing order of things, but

capable of surmounting the influence of public opinion; a tribunal which

should conduct its proceedings without publicity, which should pronounce

its decrees without assigning its motives, and punish the intentions

even more than the language of an author. Whosoever should have the

power of creating and maintaining a tribunal of this kind would waste

his time in prosecuting the liberty of the press; for he would be the

supreme master of the whole community, and he would be as free to

rid himself of the authors as of their writings. In this question,

therefore, there is no medium between servitude and extreme license; in

order to enjoy the inestimable benefits which the liberty of the press

ensures, it is necessary to submit to the inevitable evils which it

engenders. To expect to acquire the former and to escape the latter

is to cherish one of those illusions which commonly mislead nations

in their times of sickness, when, tired with faction and exhausted by

effort, they attempt to combine hostile opinions and contrary principles

upon the same soil.

The small influence of the American journals is attributable to several

reasons, amongst which are the following:

The liberty of writing, like all other liberty, is most formidable

when it is a novelty; for a people which has never been accustomed to

co-operate in the conduct of State affairs places implicit confidence

in the first tribune who arouses its attention. The Anglo-Americans

have enjoyed this liberty ever since the foundation of the settlements;

moreover, the press cannot create human passions by its own power,

however skillfully it may kindle them where they exist. In America

politics are discussed with animation and a varied activity, but they

rarely touch those deep passions which are excited whenever the positive

interest of a part of the community is impaired: but in the United

States the interests of the community are in a most prosperous

condition. A single glance upon a French and an American newspaper is

sufficient to show the difference which exists between the two nations

on this head. In France the space allotted to commercial advertisements

is very limited, and the intelligence is not considerable, but the most

essential part of the journal is that which contains the discussion of

the politics of the day. In America three-quarters of the enormous sheet

which is set before the reader are filled with advertisements, and the

remainder is frequently occupied by political intelligence or trivial

anecdotes: it is only from time to time that one finds a corner devoted

to passionate discussions like those with which the journalists of

France are wont to indulge their readers.

It has been demonstrated by observation, and discovered by the innate

sagacity of the pettiest as well as the greatest of despots, that the

influence of a power is increased in proportion as its direction

is rendered more central. In France the press combines a twofold

centralization; almost all its power is centred in the same spot, and

vested in the same hands, for its organs are far from numerous. The

influence of a public press thus constituted, upon a sceptical nation,

must be unbounded. It is an enemy with which a Government may sign an

occasional truce, but which it is difficult to resist for any length of

time.

Neither of these kinds of centralization exists in America. The United

States have no metropolis; the intelligence as well as the power of the

country are dispersed abroad, and instead of radiating from a point,

they cross each other in every direction; the Americans have established

no central control over the expression of opinion, any more than over

the conduct of business. These are circumstances which do not depend on

human foresight; but it is owing to the laws of the Union that there

are no licenses to be granted to printers, no securities demanded from

editors as in France, and no stamp duty as in France and formerly in

England. The consequence of this is that nothing is easier than to set

up a newspaper, and a small number of readers suffices to defray the

expenses of the editor.

The number of periodical and occasional publications which appears

in the United States actually surpasses belief. The most enlightened

Americans attribute the subordinate influence of the press to this

excessive dissemination; and it is adopted as an axiom of political

science in that country that the only way to neutralize the effect of

public journals is to multiply them indefinitely. I cannot conceive

that a truth which is so self-evident should not already have been more

generally admitted in Europe; it is comprehensible that the persons who

hope to bring about revolutions by means of the press should be desirous

of confining its action to a few powerful organs, but it is perfectly

incredible that the partisans of the existing state of things, and the

natural supporters of the law, should attempt to diminish the influence

of the press by concentrating its authority. The Governments of Europe

seem to treat the press with the courtesy of the knights of old; they

are anxious to furnish it with the same central power which they have

found to be so trusty a weapon, in order to enhance the glory of their

resistance to its attacks.

In America there is scarcely a hamlet which has not its own newspaper.

It may readily be imagined that neither discipline nor unity of

design can be communicated to so multifarious a host, and each one is

consequently led to fight under his own standard. All the political

journals of the United States are indeed arrayed on the side of the

administration or against it; but they attack and defend in a thousand

different ways. They cannot succeed in forming those great currents of

opinion which overwhelm the most solid obstacles. This division of the

influence of the press produces a variety of other consequences which

are scarcely less remarkable. The facility with which journals can be

established induces a multitude of individuals to take a part in

them; but as the extent of competition precludes the possibility of

considerable profit, the most distinguished classes of society are

rarely led to engage in these undertakings. But such is the number of

the public prints that, even if they were a source of wealth, writers

of ability could not be found to direct them all. The journalists of

the United States are usually placed in a very humble position, with a

scanty education and a vulgar turn of mind. The will of the majority is

the most general of laws, and it establishes certain habits which form

the characteristics of each peculiar class of society; thus it dictates

the etiquette practised at courts and the etiquette of the bar. The

characteristics of the French journalist consist in a violent, but

frequently an eloquent and lofty, manner of discussing the politics

of the day; and the exceptions to this habitual practice are only

occasional. The characteristics of the American journalist consist in

an open and coarse appeal to the passions of the populace; and he

habitually abandons the principles of political science to assail the

characters of individuals, to track them into private life, and disclose

all their weaknesses and errors.

Nothing can be more deplorable than this abuse of the powers of thought;

I shall have occasion to point out hereafter the influence of the

newspapers upon the taste and the morality of the American people, but

my present subject exclusively concerns the political world. It cannot

be denied that the effects of this extreme license of the press tend

indirectly to the maintenance of public order. The individuals who

are already in the possession of a high station in the esteem of their

fellow-citizens are afraid to write in the newspapers, and they are thus

deprived of the most powerful instrument which they can use to excite

the passions of the multitude to their own advantage. *a

[Footnote a: They only write in the papers when they choose to address

the people in their own name; as, for instance, when they are called

upon to repel calumnious imputations, and to correct a misstatement of

facts.]

The personal opinions of the editors have no kind of weight in the

eyes of the public: the only use of a journal is, that it imparts the

knowledge of certain facts, and it is only by altering or distorting

those facts that a journalist can contribute to the support of his own

views.

But although the press is limited to these resources, its influence

in America is immense. It is the power which impels the circulation of

political life through all the districts of that vast territory. Its eye

is constantly open to detect the secret springs of political designs,

and to summon the leaders of all parties to the bar of public opinion.

It rallies the interests of the community round certain principles, and

it draws up the creed which factions adopt; for it affords a means of

intercourse between parties which hear, and which address each other

without ever having been in immediate contact. When a great number of

the organs of the press adopt the same line of conduct, their influence

becomes irresistible; and public opinion, when it is perpetually

assailed from the same side, eventually yields to the attack. In the

United States each separate journal exercises but little authority, but

the power of the periodical press is only second to that of the people.

*b

[Footnote b: See Appendix, P.]

The opinions established in the United States under the empire of the

liberty of the press are frequently more firmly rooted than those which

are formed elsewhere under the sanction of a censor.

In the United States the democracy perpetually raises fresh individuals

to the conduct of public affairs; and the measures of the administration

are consequently seldom regulated by the strict rules of consistency or

of order. But the general principles of the Government are more stable,

and the opinions most prevalent in society are generally more durable

than in many other countries. When once the Americans have taken up an

idea, whether it be well or ill founded, nothing is more difficult than

to eradicate it from their minds. The same tenacity of opinion has been

observed in England, where, for the last century, greater freedom of

conscience and more invincible prejudices have existed than in all the

other countries of Europe. I attribute this consequence to a cause which

may at first sight appear to have a very opposite tendency, namely, to

the liberty of the press. The nations amongst which this liberty exists

are as apt to cling to their opinions from pride as from conviction.

They cherish them because they hold them to be just, and because they

exercised their own free-will in choosing them; and they maintain them

not only because they are true, but because they are their own. Several

other reasons conduce to the same end.

It was remarked by a man of genius that "ignorance lies at the two ends

of knowledge." Perhaps it would have been more correct to have said,

that absolute convictions are to be met with at the two extremities, and

that doubt lies in the middle; for the human intellect may be considered

in three distinct states, which frequently succeed one another. A man

believes implicitly, because he adopts a proposition without inquiry. He

doubts as soon as he is assailed by the objections which his inquiries

may have aroused. But he frequently succeeds in satisfying these doubts,

and then he begins to believe afresh: he no longer lays hold on a truth

in its most shadowy and uncertain form, but he sees it clearly before

him, and he advances onwards by the light it gives him. *c

[Footnote c: It may, however, be doubted whether this rational

and self-guiding conviction arouses as much fervor or enthusiastic

devotedness in men as their first dogmatical belief.]

When the liberty of the press acts upon men who are in the first of

these three states, it does not immediately disturb their habit of

believing implicitly without investigation, but it constantly modifies

the objects of their intuitive convictions. The human mind continues

to discern but one point upon the whole intellectual horizon, and

that point is in continual motion. Such are the symptoms of sudden

revolutions, and of the misfortunes which are sure to befall those

generations which abruptly adopt the unconditional freedom of the press.

The circle of novel ideas is, however, soon terminated; the touch

of experience is upon them, and the doubt and mistrust which their

uncertainty produces become universal. We may rest assured that the

majority of mankind will either believe they know not wherefore, or will

not know what to believe. Few are the beings who can ever hope to

attain to that state of rational and independent conviction which true

knowledge can beget in defiance of the attacks of doubt.

It has been remarked that in times of great religious fervor men

sometimes change their religious opinions; whereas in times of general

scepticism everyone clings to his own persuasion. The same thing takes

place in politics under the liberty of the press. In countries where all

the theories of social science have been contested in their turn, the

citizens who have adopted one of them stick to it, not so much because

they are assured of its excellence, as because they are not convinced of

the superiority of any other. In the present age men are not very ready

to die in defence of their opinions, but they are rarely inclined to

change them; and there are fewer martyrs as well as fewer apostates.

Another still more valid reason may yet be adduced: when no abstract

opinions are looked upon as certain, men cling to the mere propensities

and external interests of their position, which are naturally more

tangible and more permanent than any opinions in the world.

It is not a question of easy solution whether aristocracy or democracy

is most fit to govern a country. But it is certain that democracy annoys

one part of the community, and that aristocracy oppresses another part.

When the question is reduced to the simple expression of the struggle

between poverty and wealth, the tendency of each side of the dispute

becomes perfectly evident without further controversy.

Chapter XII: Political Associations In The United States

Chapter Summary

Daily use which the Anglo-Americans make of the right of

association--Three kinds of political associations--In what manner

the Americans apply the representative system to associations--Dangers

resulting to the State--Great Convention of 1831 relative to the

Tariff--Legislative character of this Convention--Why the unlimited

exercise of the right of association is less dangerous in the United

States than elsewhere--Why it may be looked upon as necessary--Utility

of associations in a democratic people.

Political Associations In The United States

In no country in the world has the principle of association been

more successfully used, or more unsparingly applied to a multitude of

different objects, than in America. Besides the permanent associations

which are established by law under the names of townships, cities,

and counties, a vast number of others are formed and maintained by the

agency of private individuals.

The citizen of the United States is taught from his earliest infancy

to rely upon his own exertions in order to resist the evils and the

difficulties of life; he looks upon social authority with an eye of

mistrust and anxiety, and he only claims its assistance when he is quite

unable to shift without it. This habit may even be traced in the schools

of the rising generation, where the children in their games are wont to

submit to rules which they have themselves established, and to punish

misdemeanors which they have themselves defined. The same spirit

pervades every act of social life. If a stoppage occurs in a

thoroughfare, and the circulation of the public is hindered, the

neighbors immediately constitute a deliberative body; and this

extemporaneous assembly gives rise to an executive power which remedies

the inconvenience before anybody has thought of recurring to an

authority superior to that of the persons immediately concerned. If the

public pleasures are concerned, an association is formed to provide

for the splendor and the regularity of the entertainment. Societies are

formed to resist enemies which are exclusively of a moral nature, and to

diminish the vice of intemperance: in the United States associations are

established to promote public order, commerce, industry, morality, and

religion; for there is no end which the human will, seconded by the

collective exertions of individuals, despairs of attaining.

I shall hereafter have occasion to show the effects of association upon

the course of society, and I must confine myself for the present to the

political world. When once the right of association is recognized, the

citizens may employ it in several different ways.

An association consists simply in the public assent which a number of

individuals give to certain doctrines, and in the engagement which they

contract to promote the spread of those doctrines by their exertions.

The right of association with these views is very analogous to the

liberty of unlicensed writing; but societies thus formed possess more

authority than the press. When an opinion is represented by a society,

it necessarily assumes a more exact and explicit form. It numbers its

partisans, and compromises their welfare in its cause: they, on the

other hand, become acquainted with each other, and their zeal is

increased by their number. An association unites the efforts of minds

which have a tendency to diverge in one single channel, and urges them

vigorously towards one single end which it points out.

The second degree in the right of association is the power of meeting.

When an association is allowed to establish centres of action at certain

important points in the country, its activity is increased and its

influence extended. Men have the opportunity of seeing each other; means

of execution are more readily combined, and opinions are maintained with

a degree of warmth and energy which written language cannot approach.

Lastly, in the exercise of the right of political association, there

is a third degree: the partisans of an opinion may unite in electoral

bodies, and choose delegates to represent them in a central assembly.

This is, properly speaking, the application of the representative system

to a party.

Thus, in the first instance, a society is formed between individuals

professing the same opinion, and the tie which keeps it together is of

a purely intellectual nature; in the second case, small assemblies are

formed which only represent a fraction of the party. Lastly, in the

third case, they constitute a separate nation in the midst of the

nation, a government within the Government. Their delegates, like the

real delegates of the majority, represent the entire collective force

of their party; and they enjoy a certain degree of that national dignity

and great influence which belong to the chosen representatives of the

people. It is true that they have not the right of making the laws,

but they have the power of attacking those which are in being, and

of drawing up beforehand those which they may afterwards cause to be

adopted.

If, in a people which is imperfectly accustomed to the exercise

of freedom, or which is exposed to violent political passions, a

deliberating minority, which confines itself to the contemplation of

future laws, be placed in juxtaposition to the legislative majority, I

cannot but believe that public tranquillity incurs very great risks in

that nation. There is doubtless a very wide difference between proving

that one law is in itself better than another and proving that the

former ought to be substituted for the latter. But the imagination

of the populace is very apt to overlook this difference, which is so

apparent to the minds of thinking men. It sometimes happens that a

nation is divided into two nearly equal parties, each of which affects

to represent the majority. If, in immediate contiguity to the directing

power, another power be established, which exercises almost as much

moral authority as the former, it is not to be believed that it will

long be content to speak without acting; or that it will always be

restrained by the abstract consideration of the nature of associations

which are meant to direct but not to enforce opinions, to suggest but

not to make the laws.

The more we consider the independence of the press in its principal

consequences, the more are we convinced that it is the chief and, so to

speak, the constitutive element of freedom in the modern world. A nation

which is determined to remain free is therefore right in demanding the

unrestrained exercise of this independence. But the unrestrained liberty

of political association cannot be entirely assimilated to the liberty

of the press. The one is at the same time less necessary and more

dangerous than the other. A nation may confine it within certain limits

without forfeiting any part of its self-control; and it may sometimes be

obliged to do so in order to maintain its own authority.

In America the liberty of association for political purposes is

unbounded. An example will show in the clearest light to what an extent

this privilege is tolerated.

The question of the tariff, or of free trade, produced a great

manifestation of party feeling in America; the tariff was not only a

subject of debate as a matter of opinion, but it exercised a favorable

or a prejudicial influence upon several very powerful interests of the

States. The North attributed a great portion of its prosperity, and the

South all its sufferings, to this system; insomuch that for a long

time the tariff was the sole source of the political animosities which

agitated the Union.

In 1831, when the dispute was raging with the utmost virulence, a

private citizen of Massachusetts proposed to all the enemies of the

tariff, by means of the public prints, to send delegates to Philadelphia

in order to consult together upon the means which were most fitted to

promote freedom of trade. This proposal circulated in a few days from

Maine to New Orleans by the power of the printing-press: the opponents

of the tariff adopted it with enthusiasm; meetings were formed on all

sides, and delegates were named. The majority of these individuals

were well known, and some of them had earned a considerable degree of

celebrity. South Carolina alone, which afterwards took up arms in

the same cause, sent sixty-three delegates. On October 1, 1831, this

assembly, which according to the American custom had taken the name of

a Convention, met at Philadelphia; it consisted of more than two hundred

members. Its debates were public, and they at once assumed a legislative

character; the extent of the powers of Congress, the theories of free

trade, and the different clauses of the tariff, were discussed in turn.

At the end of ten days' deliberation the Convention broke up, after

having published an address to the American people, in which it

declared:

I. That Congress had not the right of making a tariff, and that the

existing tariff was unconstitutional;

II. That the prohibition of free trade was prejudicial to the interests

of all nations, and to that of the American people in particular.

It must be acknowledged that the unrestrained liberty of political

association has not hitherto produced, in the United States, those fatal

consequences which might perhaps be expected from it elsewhere. The

right of association was imported from England, and it has always

existed in America; so that the exercise of this privilege is now

amalgamated with the manners and customs of the people. At the present

time the liberty of association is become a necessary guarantee against

the tyranny of the majority. In the United States, as soon as a party is

become preponderant, all public authority passes under its control; its

private supporters occupy all the places, and have all the force of the

administration at their disposal. As the most distinguished partisans

of the other side of the question are unable to surmount the obstacles

which exclude them from power, they require some means of establishing

themselves upon their own basis, and of opposing the moral authority

of the minority to the physical power which domineers over it. Thus a

dangerous expedient is used to obviate a still more formidable danger.

The omnipotence of the majority appears to me to present such extreme

perils to the American Republics that the dangerous measure which is

used to repress it seems to be more advantageous than prejudicial. And

here I am about to advance a proposition which may remind the reader

of what I said before in speaking of municipal freedom: There are

no countries in which associations are more needed, to prevent the

despotism of faction or the arbitrary power of a prince, than those

which are democratically constituted. In aristocratic nations the

body of the nobles and the more opulent part of the community are in

themselves natural associations, which act as checks upon the abuses of

power. In countries in which these associations do not exist, if

private individuals are unable to create an artificial and a temporary

substitute for them, I can imagine no permanent protection against the

most galling tyranny; and a great people may be oppressed by a small

faction, or by a single individual, with impunity.

The meeting of a great political Convention (for there are Conventions

of all kinds), which may frequently become a necessary measure, is

always a serious occurrence, even in America, and one which is never

looked forward to, by the judicious friends of the country, without

alarm. This was very perceptible in the Convention of 1831, at which the

exertions of all the most distinguished members of the Assembly tended

to moderate its language, and to restrain the subjects which it treated

within certain limits. It is probable, in fact, that the Convention of

1831 exercised a very great influence upon the minds of the malcontents,

and prepared them for the open revolt against the commercial laws of the

Union which took place in 1832.

It cannot be denied that the unrestrained liberty of association

for political purposes is the privilege which a people is longest in

learning how to exercise. If it does not throw the nation into anarchy,

it perpetually augments the chances of that calamity. On one point,

however, this perilous liberty offers a security against dangers of

another kind; in countries where associations are free, secret

societies are unknown. In America there are numerous factions, but no

conspiracies.

Different ways in which the right of association is understood in

Europe and in the United States--Different use which is made of it.

The most natural privilege of man, next to the right of acting

for himself, is that of combining his exertions with those of his

fellow-creatures, and of acting in common with them. I am therefore led

to conclude that the right of association is almost as inalienable

as the right of personal liberty. No legislator can attack it without

impairing the very foundations of society. Nevertheless, if the liberty

of association is a fruitful source of advantages and prosperity to some

nations, it may be perverted or carried to excess by others, and

the element of life may be changed into an element of destruction. A

comparison of the different methods which associations pursue in those

countries in which they are managed with discretion, as well as in those

where liberty degenerates into license, may perhaps be thought useful

both to governments and to parties.

The greater part of Europeans look upon an association as a weapon which

is to be hastily fashioned, and immediately tried in the conflict.

A society is formed for discussion, but the idea of impending action

prevails in the minds of those who constitute it: it is, in fact, an

army; and the time given to parley serves to reckon up the strength and

to animate the courage of the host, after which they direct their march

against the enemy. Resources which lie within the bounds of the law may

suggest themselves to the persons who compose it as means, but never as

the only means, of success.

Such, however, is not the manner in which the right of association is

understood in the United States. In America the citizens who form

the minority associate, in order, in the first place, to show their

numerical strength, and so to diminish the moral authority of the

majority; and, in the second place, to stimulate competition, and to

discover those arguments which are most fitted to act upon the majority;

for they always entertain hopes of drawing over their opponents to their

own side, and of afterwards disposing of the supreme power in their

name. Political associations in the United States are therefore

peaceable in their intentions, and strictly legal in the means which

they employ; and they assert with perfect truth that they only aim at

success by lawful expedients.

The difference which exists between the Americans and ourselves depends

on several causes. In Europe there are numerous parties so diametrically

opposed to the majority that they can never hope to acquire its support,

and at the same time they think that they are sufficiently strong in

themselves to struggle and to defend their cause. When a party of this

kind forms an association, its object is, not to conquer, but to fight.

In America the individuals who hold opinions very much opposed to those

of the majority are no sort of impediment to its power, and all other

parties hope to win it over to their own principles in the end. The

exercise of the right of association becomes dangerous in proportion

to the impossibility which excludes great parties from acquiring the

majority. In a country like the United States, in which the differences

of opinion are mere differences of hue, the right of association may

remain unrestrained without evil consequences. The inexperience of many

of the European nations in the enjoyment of liberty leads them only

to look upon the liberty of association as a right of attacking the

Government. The first notion which presents itself to a party, as well

as to an individual, when it has acquired a consciousness of its own

strength, is that of violence: the notion of persuasion arises at a

later period and is only derived from experience. The English, who are

divided into parties which differ most essentially from each other,

rarely abuse the right of association, because they have long been

accustomed to exercise it. In France the passion for war is so intense

that there is no undertaking so mad, or so injurious to the welfare of

the State, that a man does not consider himself honored in defending it,

at the risk of his life.

But perhaps the most powerful of the causes which tend to mitigate the

excesses of political association in the United States is Universal

Suffrage. In countries in which universal suffrage exists the majority

is never doubtful, because neither party can pretend to represent that

portion of the community which has not voted. The associations which

are formed are aware, as well as the nation at large, that they do not

represent the majority: this is, indeed, a condition inseparable from

their existence; for if they did represent the preponderating power,

they would change the law instead of soliciting its reform. The

consequence of this is that the moral influence of the Government which

they attack is very much increased, and their own power is very much

enfeebled.

In Europe there are few associations which do not affect to represent

the majority, or which do not believe that they represent it. This

conviction or this pretension tends to augment their force amazingly,

and contributes no less to legalize their measures. Violence may seem to

be excusable in defence of the cause of oppressed right. Thus it is,

in the vast labyrinth of human laws, that extreme liberty sometimes

corrects the abuses of license, and that extreme democracy obviates

the dangers of democratic government. In Europe, associations consider

themselves, in some degree, as the legislative and executive councils of

the people, which is unable to speak for itself. In America, where they

only represent a minority of the nation, they argue and they petition.

The means which the associations of Europe employ are in accordance

with the end which they propose to obtain. As the principal aim of these

bodies is to act, and not to debate, to fight rather than to persuade,

they are naturally led to adopt a form of organization which differs

from the ordinary customs of civil bodies, and which assumes the habits

and the maxims of military life. They centralize the direction of their

resources as much as possible, and they intrust the power of the whole

party to a very small number of leaders.

The members of these associations respond to a watchword, like soldiers

on duty; they profess the doctrine of passive obedience; say rather,

that in uniting together they at once abjure the exercise of their own

judgment and free will; and the tyrannical control which these societies

exercise is often far more insupportable than the authority possessed

over society by the Government which they attack. Their moral force is

much diminished by these excesses, and they lose the powerful interest

which is always excited by a struggle between oppressors and the

oppressed. The man who in given cases consents to obey his fellows with

servility, and who submits his activity and even his opinions to their

control, can have no claim to rank as a free citizen.

The Americans have also established certain forms of government which

are applied to their associations, but these are invariably borrowed

from the forms of the civil administration. The independence of each

individual is formally recognized; the tendency of the members of the

association points, as it does in the body of the community, towards

the same end, but they are not obliged to follow the same track. No

one abjures the exercise of his reason and his free will; but every

one exerts that reason and that will for the benefit of a common

undertaking.

Chapter XIII: Government Of The Democracy In America--Part I

I am well aware of the difficulties which attend this part of my

subject, but although every expression which I am about to make use of

may clash, upon some one point, with the feelings of the different

parties which divide my country, I shall speak my opinion with the most

perfect openness.

In Europe we are at a loss how to judge the true character and the more

permanent propensities of democracy, because in Europe two conflicting

principles exist, and we do not know what to attribute to the principles

themselves, and what to refer to the passions which they bring into

collision. Such, however, is not the case in America; there the people

reigns without any obstacle, and it has no perils to dread and no

injuries to avenge. In America, democracy is swayed by its own free

propensities; its course is natural and its activity is unrestrained;

the United States consequently afford the most favorable opportunity of

studying its real character. And to no people can this inquiry be more

vitally interesting than to the French nation, which is blindly driven

onwards by a daily and irresistible impulse towards a state of things

which may prove either despotic or republican, but which will assuredly

be democratic.

Universal Suffrage

I have already observed that universal suffrage has been adopted in

all the States of the Union; it consequently occurs amongst different

populations which occupy very different positions in the scale of

society. I have had opportunities of observing its effects in different

localities, and amongst races of men who are nearly strangers to each

other by their language, their religion, and their manner of life; in

Louisiana as well as in New England, in Georgia and in Canada. I have

remarked that Universal Suffrage is far from producing in America either

all the good or all the evil consequences which are assigned to it in

Europe, and that its effects differ very widely from those which are

usually attributed to it.

Choice Of The People, And Instinctive Preferences Of The American

Democracy

In the United States the most able men are rarely placed at the head

of affairs--Reason of this peculiarity--The envy which prevails in the

lower orders of France against the higher classes is not a French, but a

purely democratic sentiment--For what reason the most distinguished men

in America frequently seclude themselves from public affairs.

Many people in Europe are apt to believe without saying it, or to say

without believing it, that one of the great advantages of universal

suffrage is, that it entrusts the direction of public affairs to men

who are worthy of the public confidence. They admit that the people is

unable to govern for itself, but they aver that it is always sincerely

disposed to promote the welfare of the State, and that it instinctively

designates those persons who are animated by the same good wishes, and

who are the most fit to wield the supreme authority. I confess that the

observations I made in America by no means coincide with these opinions.

On my arrival in the United States I was surprised to find so much

distinguished talent among the subjects, and so little among the heads

of the Government. It is a well-authenticated fact, that at the present

day the most able men in the United States are very rarely placed at

the head of affairs; and it must be acknowledged that such has been the

result in proportion as democracy has outstepped all its former limits.

The race of American statesmen has evidently dwindled most remarkably in

the course of the last fifty years.

Several causes may be assigned to this phenomenon. It is impossible,

notwithstanding the most strenuous exertions, to raise the intelligence

of the people above a certain level. Whatever may be the facilities of

acquiring information, whatever may be the profusion of easy methods and

of cheap science, the human mind can never be instructed and educated

without devoting a considerable space of time to those objects.

The greater or the lesser possibility of subsisting without labor is

therefore the necessary boundary of intellectual improvement. This

boundary is more remote in some countries and more restricted in others;

but it must exist somewhere as long as the people is constrained to work

in order to procure the means of physical subsistence, that is to say,

as long as it retains its popular character. It is therefore quite as

difficult to imagine a State in which all the citizens should be very

well informed as a State in which they should all be wealthy; these two

difficulties may be looked upon as correlative. It may very readily be

admitted that the mass of the citizens are sincerely disposed to promote

the welfare of their country; nay more, it may even be allowed that the

lower classes are less apt to be swayed by considerations of personal

interest than the higher orders: but it is always more or less

impossible for them to discern the best means of attaining the end which

they desire with sincerity. Long and patient observation, joined to a

multitude of different notions, is required to form a just estimate of

the character of a single individual; and can it be supposed that the

vulgar have the power of succeeding in an inquiry which misleads the

penetration of genius itself? The people has neither the time nor the

means which are essential to the prosecution of an investigation of this

kind: its conclusions are hastily formed from a superficial inspection

of the more prominent features of a question. Hence it often assents

to the clamor of a mountebank who knows the secret of stimulating its

tastes, while its truest friends frequently fail in their exertions.

Moreover, the democracy is not only deficient in that soundness of

judgment which is necessary to select men really deserving of its

confidence, but it has neither the desire nor the inclination to find

them out. It cannot be denied that democratic institutions have a very

strong tendency to promote the feeling of envy in the human heart; not

so much because they afford to every one the means of rising to the

level of any of his fellow-citizens, as because those means perpetually

disappoint the persons who employ them. Democratic institutions awaken

and foster a passion for equality which they can never entirely satisfy.

This complete equality eludes the grasp of the people at the very moment

at which it thinks to hold it fast, and "flies," as Pascal says, "with

eternal flight"; the people is excited in the pursuit of an advantage,

which is more precious because it is not sufficiently remote to be

unknown, or sufficiently near to be enjoyed. The lower orders

are agitated by the chance of success, they are irritated by its

uncertainty; and they pass from the enthusiasm of pursuit to the

exhaustion of ill-success, and lastly to the acrimony of disappointment.

Whatever transcends their own limits appears to be an obstacle to their

desires, and there is no kind of superiority, however legitimate it may

be, which is not irksome in their sight.

It has been supposed that the secret instinct which leads the lower

orders to remove their superiors as much as possible from the direction

of public affairs is peculiar to France. This, however, is an error; the

propensity to which I allude is not inherent in any particular nation,

but in democratic institutions in general; and although it may have been

heightened by peculiar political circumstances, it owes its origin to a

higher cause.

In the United States the people is not disposed to hate the superior

classes of society; but it is not very favorably inclined towards them,

and it carefully excludes them from the exercise of authority. It does

not entertain any dread of distinguished talents, but it is rarely

captivated by them; and it awards its approbation very sparingly to such

as have risen without the popular support.

Whilst the natural propensities of democracy induce the people to reject

the most distinguished citizens as its rulers, these individuals are

no less apt to retire from a political career in which it is almost

impossible to retain their independence, or to advance without degrading

themselves. This opinion has been very candidly set forth by Chancellor

Kent, who says, in speaking with great eulogiums of that part of the

Constitution which empowers the Executive to nominate the judges: "It is

indeed probable that the men who are best fitted to discharge the duties

of this high office would have too much reserve in their manners, and

too much austerity in their principles, for them to be returned by the

majority at an election where universal suffrage is adopted." Such were

the opinions which were printed without contradiction in America in the

year 1830!

I hold it to be sufficiently demonstrated that universal suffrage is

by no means a guarantee of the wisdom of the popular choice, and that,

whatever its advantages may be, this is not one of them.

Causes Which May Partly Correct These Tendencies Of The Democracy

Contrary effects produced on peoples as well as on individuals by great

dangers--Why so many distinguished men stood at the head of affairs

in America fifty years ago--Influence which the intelligence and

the manners of the people exercise upon its choice--Example of New

England--States of the Southwest--Influence of certain laws upon the

choice of the people--Election by an elected body--Its effects upon the

composition of the Senate.

When a State is threatened by serious dangers, the people frequently

succeeds in selecting the citizens who are the most able to save it.

It has been observed that man rarely retains his customary level in

presence of very critical circumstances; he rises above or he sinks

below his usual condition, and the same thing occurs in nations at

large. Extreme perils sometimes quench the energy of a people instead of

stimulating it; they excite without directing its passions, and instead

of clearing they confuse its powers of perception. The Jews deluged the

smoking ruins of their temple with the carnage of the remnant of their

host. But it is more common, both in the case of nations and in that

of individuals, to find extraordinary virtues arising from the very

imminence of the danger. Great characters are then thrown into relief,

as edifices which are concealed by the gloom of night are illuminated by

the glare of a conflagration. At those dangerous times genius no longer

abstains from presenting itself in the arena; and the people, alarmed

by the perils of its situation, buries its envious passions in a short

oblivion. Great names may then be drawn from the balloting-box.

I have already observed that the American statesmen of the present day

are very inferior to those who stood at the head of affairs fifty years

ago. This is as much a consequence of the circumstances as of the

laws of the country. When America was struggling in the high cause of

independence to throw off the yoke of another country, and when it

was about to usher a new nation into the world, the spirits of its

inhabitants were roused to the height which their great efforts

required. In this general excitement the most distinguished men were

ready to forestall the wants of the community, and the people clung

to them for support, and placed them at its head. But events of this

magnitude are rare, and it is from an inspection of the ordinary course

of affairs that our judgment must be formed.

If passing occurrences sometimes act as checks upon the passions of

democracy, the intelligence and the manners of the community exercise

an influence which is not less powerful and far more permanent. This is

extremely perceptible in the United States.

In New England the education and the liberties of the communities were

engendered by the moral and religious principles of their founders.

Where society has acquired a sufficient degree of stability to enable it

to hold certain maxims and to retain fixed habits, the lower orders

are accustomed to respect intellectual superiority and to submit to

it without complaint, although they set at naught all those privileges

which wealth and birth have introduced among mankind. The democracy

in New England consequently makes a more judicious choice than it does

elsewhere.

But as we descend towards the South, to those States in which

the constitution of society is more modern and less strong, where

instruction is less general, and where the principles of morality, of

religion, and of liberty are less happily combined, we perceive that the

talents and the virtues of those who are in authority become more and

more rare.

Lastly, when we arrive at the new South-western States, in which the

constitution of society dates but from yesterday, and presents an

agglomeration of adventurers and speculators, we are amazed at the

persons who are invested with public authority, and we are led to ask by

what force, independent of the legislation and of the men who direct it,

the State can be protected, and society be made to flourish.

There are certain laws of a democratic nature which contribute,

nevertheless, to correct, in some measure, the dangerous tendencies of

democracy. On entering the House of Representatives of Washington one is

struck by the vulgar demeanor of that great assembly. The eye frequently

does not discover a man of celebrity within its walls. Its members are

almost all obscure individuals whose names present no associations to

the mind: they are mostly village lawyers, men in trade, or even

persons belonging to the lower classes of society. In a country in which

education is very general, it is said that the representatives of the

people do not always know how to write correctly.

At a few yards' distance from this spot is the door of the Senate, which

contains within a small space a large proportion of the celebrated men

of America. Scarcely an individual is to be perceived in it who does

not recall the idea of an active and illustrious career: the Senate

is composed of eloquent advocates, distinguished generals, wise

magistrates, and statesmen of note, whose language would at all times do

honor to the most remarkable parliamentary debates of Europe.

What then is the cause of this strange contrast, and why are the most

able citizens to be found in one assembly rather than in the other?

Why is the former body remarkable for its vulgarity and its poverty of

talent, whilst the latter seems to enjoy a monopoly of intelligence and

of sound judgment? Both of these assemblies emanate from the people;

both of them are chosen by universal suffrage; and no voice has hitherto

been heard to assert in America that the Senate is hostile to the

interests of the people. From what cause, then, does so startling a

difference arise? The only reason which appears to me adequately to

account for it is, that the House of Representatives is elected by the

populace directly, and that the Senate is elected by elected bodies. The

whole body of the citizens names the legislature of each State, and the

Federal Constitution converts these legislatures into so many electoral

bodies, which return the members of the Senate. The senators are elected

by an indirect application of universal suffrage; for the legislatures

which name them are not aristocratic or privileged bodies which exercise

the electoral franchise in their own right; but they are chosen by the

totality of the citizens; they are generally elected every year, and new

members may constantly be chosen who will employ their electoral rights

in conformity with the wishes of the public. But this transmission of

the popular authority through an assembly of chosen men operates an

important change in it, by refining its discretion and improving the

forms which it adopts. Men who are chosen in this manner accurately

represent the majority of the nation which governs them; but they

represent the elevated thoughts which are current in the community,

the propensities which prompt its nobler actions, rather than the petty

passions which disturb or the vices which disgrace it.

The time may be already anticipated at which the American Republics will

be obliged to introduce the plan of election by an elected body more

frequently into their system of representation, or they will incur no

small risk of perishing miserably amongst the shoals of democracy.

And here I have no scruple in confessing that I look upon this peculiar

system of election as the only means of bringing the exercise of

political power to the level of all classes of the people. Those

thinkers who regard this institution as the exclusive weapon of a party,

and those who fear, on the other hand, to make use of it, seem to me to

fall into as great an error in the one case as in the other.

Influence Which The American Democracy Has Exercised On The Laws

Relating To Elections

When elections are rare, they expose the State to a violent crisis--When

they are frequent, they keep up a degree of feverish excitement--The

Americans have preferred the second of these two evils--Mutability of

the laws--Opinions of Hamilton and Jefferson on this subject.

When elections recur at long intervals the State is exposed to violent

agitation every time they take place. Parties exert themselves to the

utmost in order to gain a prize which is so rarely within their reach;

and as the evil is almost irremediable for the candidates who fail, the

consequences of their disappointed ambition may prove most disastrous;

if, on the other hand, the legal struggle can be repeated within a short

space of time, the defeated parties take patience. When elections occur

frequently, their recurrence keeps society in a perpetual state of

feverish excitement, and imparts a continual instability to public

affairs.

Thus, on the one hand the State is exposed to the perils of a

revolution, on the other to perpetual mutability; the former system

threatens the very existence of the Government, the latter is an

obstacle to all steady and consistent policy. The Americans have

preferred the second of these evils to the first; but they were led to

this conclusion by their instinct much more than by their reason; for a

taste for variety is one of the characteristic passions of democracy. An

extraordinary mutability has, by this means, been introduced into their

legislation. Many of the Americans consider the instability of their

laws as a necessary consequence of a system whose general results are

beneficial. But no one in the United States affects to deny the fact of

this instability, or to contend that it is not a great evil.

Hamilton, after having demonstrated the utility of a power which might

prevent, or which might at least impede, the promulgation of bad laws,

adds: "It might perhaps be said that the power of preventing bad laws

includes that of preventing good ones, and may be used to the one

purpose as well as to the other. But this objection will have little

weight with those who can properly estimate the mischiefs of that

inconstancy and mutability in the laws which form the greatest blemish

in the character and genius of our governments." (Federalist, No. 73.)

And again in No. 62 of the same work he observes: "The facility and

excess of law-making seem to be the diseases to which our governments

are most liable. . . . The mischievous effects of the mutability in the

public councils arising from a rapid succession of new members would

fill a volume: every new election in the States is found to change

one-half of the representatives. From this change of men must proceed

a change of opinions and of measures, which forfeits the respect and

confidence of other nations, poisons the blessings of liberty itself,

and diminishes the attachment and reverence of the people toward a

political system which betrays so many marks of infirmity."

Jefferson himself, the greatest Democrat whom the democracy of America

has yet produced, pointed out the same evils. "The instability of

our laws," said he in a letter to Madison, "is really a very serious

inconvenience. I think that we ought to have obviated it by deciding

that a whole year should always be allowed to elapse between the

bringing in of a bill and the final passing of it. It should afterward

be discussed and put to the vote without the possibility of making any

alteration in it; and if the circumstances of the case required a

more speedy decision, the question should not be decided by a simple

majority, but by a majority of at least two-thirds of both houses."

Public Officers Under The Control Of The Democracy In America Simple

exterior of the American public officers--No official costume--All

public officers are remunerated--Political consequences of this

system--No public career exists in America--Result of this.

Public officers in the United States are commingled with the crowd

of citizens; they have neither palaces, nor guards, nor ceremonial

costumes. This simple exterior of the persons in authority is connected

not only with the peculiarities of the American character, but with

the fundamental principles of that society. In the estimation of the

democracy a government is not a benefit, but a necessary evil. A certain

degree of power must be granted to public officers, for they would be

of no use without it. But the ostensible semblance of authority is by

no means indispensable to the conduct of affairs, and it is needlessly

offensive to the susceptibility of the public. The public officers

themselves are well aware that they only enjoy the superiority over

their fellow-citizens which they derive from their authority upon

condition of putting themselves on a level with the whole community by

their manners. A public officer in the United States is uniformly civil,

accessible to all the world, attentive to all requests, and obliging

in his replies. I was pleased by these characteristics of a democratic

government; and I was struck by the manly independence of the citizens,

who respect the office more than the officer, and who are less attached

to the emblems of authority than to the man who bears them.

I am inclined to believe that the influence which costumes really

exercise, in an age like that in which we live, has been a good deal

exaggerated. I never perceived that a public officer in America was the

less respected whilst he was in the discharge of his duties because his

own merit was set off by no adventitious signs. On the other hand, it is

very doubtful whether a peculiar dress contributes to the respect which

public characters ought to have for their own position, at least when

they are not otherwise inclined to respect it. When a magistrate (and

in France such instances are not rare) indulges his trivial wit at the

expense of the prisoner, or derides the predicament in which a culprit

is placed, it would be well to deprive him of his robes of office,

to see whether he would recall some portion of the natural dignity of

mankind when he is reduced to the apparel of a private citizen.

A democracy may, however, allow a certain show of magisterial pomp, and

clothe its officers in silks and gold, without seriously compromising

its principles. Privileges of this kind are transitory; they belong to

the place, and are distinct from the individual: but if public officers

are not uniformly remunerated by the State, the public charges must be

entrusted to men of opulence and independence, who constitute the

basis of an aristocracy; and if the people still retains its right

of election, that election can only be made from a certain class of

citizens. When a democratic republic renders offices which had formerly

been remunerated gratuitous, it may safely be believed that the State

is advancing to monarchical institutions; and when a monarchy begins to

remunerate such officers as had hitherto been unpaid, it is a sure

sign that it is approaching toward a despotic or a republican form of

government. The substitution of paid for unpaid functionaries is of

itself, in my opinion, sufficient to constitute a serious revolution.

I look upon the entire absence of gratuitous functionaries in America as

one of the most prominent signs of the absolute dominion which democracy

exercises in that country. All public services, of whatsoever nature

they may be, are paid; so that every one has not merely the right, but

also the means of performing them. Although, in democratic States, all

the citizens are qualified to occupy stations in the Government, all

are not tempted to try for them. The number and the capacities of the

candidates are more apt to restrict the choice of electors than the

connections of the candidateship.

In nations in which the principle of election extends to every place in

the State no political career can, properly speaking, be said to exist.

Men are promoted as if by chance to the rank which they enjoy, and

they are by no means sure of retaining it. The consequence is that in

tranquil times public functions offer but few lures to ambition. In the

United States the persons who engage in the perplexities of political

life are individuals of very moderate pretensions. The pursuit of wealth

generally diverts men of great talents and of great passions from the

pursuit of power, and it very frequently happens that a man does not

undertake to direct the fortune of the State until he has discovered

his incompetence to conduct his own affairs. The vast number of very

ordinary men who occupy public stations is quite as attributable to

these causes as to the bad choice of the democracy. In the United

States, I am not sure that the people would return the men of superior

abilities who might solicit its support, but it is certain that men of

this description do not come forward.

Arbitrary Power Of Magistrates Under The Rule Of The American Democracy

For what reason the arbitrary power of Magistrates is greater in

absolute monarchies and in democratic republics than it is in limited

monarchies--Arbitrary power of the Magistrates in New England.

In two different kinds of government the magistrates *a exercise a

considerable degree of arbitrary power; namely, under the absolute

government of a single individual, and under that of a democracy. This

identical result proceeds from causes which are nearly analogous.

[Footnote a: I here use the word magistrates in the widest sense in

which it can be taken; I apply it to all the officers to whom the

execution of the laws is intrusted.]

In despotic States the fortune of no citizen is secure; and public

officers are not more safe than private individuals. The sovereign, who

has under his control the lives, the property, and sometimes the honor

of the men whom he employs, does not scruple to allow them a great

latitude of action, because he is convinced that they will not use it

to his prejudice. In despotic States the sovereign is so attached to the

exercise of his power, that he dislikes the constraint even of his own

regulations; and he is well pleased that his agents should follow a

somewhat fortuitous line of conduct, provided he be certain that their

actions will never counteract his desires.

In democracies, as the majority has every year the right of depriving

the officers whom it has appointed of their power, it has no reason

to fear any abuse of their authority. As the people is always able

to signify its wishes to those who conduct the Government, it prefers

leaving them to make their own exertions to prescribing an invariable

rule of conduct which would at once fetter their activity and the

popular authority.

It may even be observed, on attentive consideration, that under the

rule of a democracy the arbitrary power of the magistrate must be still

greater than in despotic States. In the latter the sovereign has the

power of punishing all the faults with which he becomes acquainted, but

it would be vain for him to hope to become acquainted with all those

which are committed. In the former the sovereign power is not only

supreme, but it is universally present. The American functionaries are,

in point of fact, much more independent in the sphere of action which

the law traces out for them than any public officer in Europe. Very

frequently the object which they are to accomplish is simply pointed out

to them, and the choice of the means is left to their own discretion.

In New England, for instance, the selectmen of each township are bound

to draw up the list of persons who are to serve on the jury; the only

rule which is laid down to guide them in their choice is that they are

to select citizens possessing the elective franchise and enjoying a fair

reputation. *b In France the lives and liberties of the subjects would

be thought to be in danger if a public officer of any kind was entrusted

with so formidable a right. In New England the same magistrates are

empowered to post the names of habitual drunkards in public-houses, and

to prohibit the inhabitants of a town from supplying them with liquor.

*c A censorial power of this excessive kind would be revolting to

the population of the most absolute monarchies; here, however, it is

submitted to without difficulty.

[Footnote b: See the Act of February 27, 1813. "General Collection of

the Laws of Massachusetts," vol. ii. p. 331. It should be added that the

jurors are afterwards drawn from these lists by lot.]

[Footnote c: See Act of February 28, 1787. "General Collection of the

Laws of Massachusetts," vol. i. p. 302.]

Nowhere has so much been left by the law to the arbitrary determination

of the magistrate as in democratic republics, because this arbitrary

power is unattended by any alarming consequences. It may even be

asserted that the freedom of the magistrate increases as the elective

franchise is extended, and as the duration of the time of office

is shortened. Hence arises the great difficulty which attends the

conversion of a democratic republic into a monarchy. The magistrate

ceases to be elective, but he retains the rights and the habits of an

elected officer, which lead directly to despotism.

It is only in limited monarchies that the law, which prescribes the

sphere in which public officers are to act, superintends all their

measures. The cause of this may be easily detected. In limited

monarchies the power is divided between the King and the people, both

of whom are interested in the stability of the magistrate. The King

does not venture to place the public officers under the control of the

people, lest they should be tempted to betray his interests; on the

other hand, the people fears lest the magistrates should serve to

oppress the liberties of the country, if they were entirely dependent

upon the Crown; they cannot therefore be said to depend on either one

or the other. The same cause which induces the king and the people

to render public officers independent suggests the necessity of such

securities as may prevent their independence from encroaching upon

the authority of the former and the liberties of the latter. They

consequently agree as to the necessity of restricting the functionary

to a line of conduct laid down beforehand, and they are interested in

confining him by certain regulations which he cannot evade.

Chapter XIII: Government Of The Democracy In America--Part II

Instability Of The Administration In The United States

In America the public acts of a community frequently leave fewer

traces than the occurrences of a family--Newspapers the only historical

remains--Instability of the administration prejudicial to the art of

government.

The authority which public men possess in America is so brief, and they

are so soon commingled with the ever-changing population of the country,

that the acts of a community frequently leave fewer traces than the

occurrences of a private family. The public administration is, so to

speak, oral and traditionary. But little is committed to writing, and

that little is wafted away forever, like the leaves of the Sibyl, by the

smallest breeze.

The only historical remains in the United States are the newspapers; but

if a number be wanting, the chain of time is broken, and the present

is severed from the past. I am convinced that in fifty years it will

be more difficult to collect authentic documents concerning the social

condition of the Americans at the present day than it is to find remains

of the administration of France during the Middle Ages; and if the

United States were ever invaded by barbarians, it would be necessary to

have recourse to the history of other nations in order to learn anything

of the people which now inhabits them.

The instability of the administration has penetrated into the habits of

the people: it even appears to suit the general taste, and no one cares

for what occurred before his time. No methodical system is pursued; no

archives are formed; and no documents are brought together when it would

be very easy to do so. Where they exist, little store is set upon them;

and I have amongst my papers several original public documents which

were given to me in answer to some of my inquiries. In America

society seems to live from hand to mouth, like an army in the field.

Nevertheless, the art of administration may undoubtedly be ranked as

a science, and no sciences can be improved if the discoveries and

observations of successive generations are not connected together in

the order in which they occur. One man, in the short space of his life

remarks a fact; another conceives an idea; the former invents a means

of execution, the latter reduces a truth to a fixed proposition; and

mankind gathers the fruits of individual experience upon its way

and gradually forms the sciences. But the persons who conduct the

administration in America can seldom afford any instruction to each

other; and when they assume the direction of society, they simply

possess those attainments which are most widely disseminated in the

community, and no experience peculiar to themselves. Democracy,

carried to its furthest limits, is therefore prejudicial to the art of

government; and for this reason it is better adapted to a people already

versed in the conduct of an administration than to a nation which is

uninitiated in public affairs.

This remark, indeed, is not exclusively applicable to the science of

administration. Although a democratic government is founded upon a very

simple and natural principle, it always presupposes the existence of

a high degree of culture and enlightenment in society. *d At the first

glance it may be imagined to belong to the earliest ages of the world;

but maturer observation will convince us that it could only come last in

the succession of human history.

[Footnote d: It is needless to observe that I speak here of the

democratic form of government as applied to a people, not merely to a

tribe.]

Charges Levied By The State Under The Rule Of The American Democracy

In all communities citizens divisible into three classes--Habits of

each of these classes in the direction of public finances--Why public

expenditure must tend to increase when the people governs--What renders

the extravagance of a democracy less to be feared in America--Public

expenditure under a democracy.

Before we can affirm whether a democratic form of government is

economical or not, we must establish a suitable standard of comparison.

The question would be one of easy solution if we were to attempt to draw

a parallel between a democratic republic and an absolute monarchy. The

public expenditure would be found to be more considerable under the

former than under the latter; such is the case with all free States

compared to those which are not so. It is certain that despotism ruins

individuals by preventing them from producing wealth, much more than by

depriving them of the wealth they have produced; it dries up the source

of riches, whilst it usually respects acquired property. Freedom, on the

contrary, engenders far more benefits than it destroys; and the nations

which are favored by free institutions invariably find that their

resources increase even more rapidly than their taxes.

My present object is to compare free nations to each other, and to point

out the influence of democracy upon the finances of a State.

Communities, as well as organic bodies, are subject to certain fixed

rules in their formation which they cannot evade. They are composed of

certain elements which are common to them at all times and under all

circumstances. The people may always be mentally divided into three

distinct classes. The first of these classes consists of the wealthy;

the second, of those who are in easy circumstances; and the third is

composed of those who have little or no property, and who subsist more

especially by the work which they perform for the two superior orders.

The proportion of the individuals who are included in these three

divisions may vary according to the condition of society, but the

divisions themselves can never be obliterated.

It is evident that each of these classes will exercise an influence

peculiar to its own propensities upon the administration of the finances

of the State. If the first of the three exclusively possesses the

legislative power, it is probable that it will not be sparing of the

public funds, because the taxes which are levied on a large fortune only

tend to diminish the sum of superfluous enjoyment, and are, in point of

fact, but little felt. If the second class has the power of making the

laws, it will certainly not be lavish of taxes, because nothing is

so onerous as a large impost which is levied upon a small income.

The government of the middle classes appears to me to be the most

economical, though perhaps not the most enlightened, and certainly not

the most generous, of free governments.

But let us now suppose that the legislative authority is vested in

the lowest orders: there are two striking reasons which show that the

tendency of the expenditure will be to increase, not to diminish. As the

great majority of those who create the laws are possessed of no property

upon which taxes can be imposed, all the money which is spent for the

community appears to be spent to their advantage, at no cost of their

own; and those who are possessed of some little property readily find

means of regulating the taxes so that they are burdensome to the wealthy

and profitable to the poor, although the rich are unable to take the

same advantage when they are in possession of the Government.

In countries in which the poor *e should be exclusively invested with

the power of making the laws no great economy of public expenditure

ought to be expected: that expenditure will always be considerable;

either because the taxes do not weigh upon those who levy them, or

because they are levied in such a manner as not to weigh upon those

classes. In other words, the government of the democracy is the only one

under which the power which lays on taxes escapes the payment of them.

[Footnote e: The word poor is used here, and throughout the remainder

of this chapter, in a relative, not in an absolute sense. Poor men in

America would often appear rich in comparison with the poor of Europe;

but they may with propriety by styled poor in comparison with their more

affluent countrymen.]

It may be objected (but the argument has no real weight) that the

true interest of the people is indissolubly connected with that of the

wealthier portion of the community, since it cannot but suffer by the

severe measures to which it resorts. But is it not the true interest of

kings to render their subjects happy, and the true interest of nobles

to admit recruits into their order on suitable grounds? If remote

advantages had power to prevail over the passions and the exigencies

of the moment, no such thing as a tyrannical sovereign or an exclusive

aristocracy could ever exist.

Again, it may be objected that the poor are never invested with the sole

power of making the laws; but I reply, that wherever universal suffrage

has been established the majority of the community unquestionably

exercises the legislative authority; and if it be proved that the poor

always constitute the majority, it may be added, with perfect truth,

that in the countries in which they possess the elective franchise they

possess the sole power of making laws. But it is certain that in all the

nations of the world the greater number has always consisted of those

persons who hold no property, or of those whose property is insufficient

to exempt them from the necessity of working in order to procure an easy

subsistence. Universal suffrage does therefore, in point of fact, invest

the poor with the government of society.

The disastrous influence which popular authority may sometimes exercise

upon the finances of a State was very clearly seen in some of the

democratic republics of antiquity, in which the public treasure was

exhausted in order to relieve indigent citizens, or to supply the

games and theatrical amusements of the populace. It is true that the

representative system was then very imperfectly known, and that, at

the present time, the influence of popular passion is less felt in the

conduct of public affairs; but it may be believed that the delegate

will in the end conform to the principles of his constituents, and favor

their propensities as much as their interests.

The extravagance of democracy is, however, less to be dreaded in

proportion as the people acquires a share of property, because on the

one hand the contributions of the rich are then less needed, and, on

the other, it is more difficult to lay on taxes which do not affect the

interests of the lower classes. On this account universal suffrage

would be less dangerous in France than in England, because in the latter

country the property on which taxes may be levied is vested in fewer

hands. America, where the great majority of the citizens possess some

fortune, is in a still more favorable position than France.

There are still further causes which may increase the sum of public

expenditure in democratic countries. When the aristocracy governs, the

individuals who conduct the affairs of State are exempted by their own

station in society from every kind of privation; they are contented with

their position; power and renown are the objects for which they strive;

and, as they are placed far above the obscurer throng of citizens, they

do not always distinctly perceive how the well-being of the mass of the

people ought to redound to their own honor. They are not indeed callous

to the sufferings of the poor, but they cannot feel those miseries as

acutely as if they were themselves partakers of them. Provided that the

people appear to submit to its lot, the rulers are satisfied, and they

demand nothing further from the Government. An aristocracy is more

intent upon the means of maintaining its influence than upon the means

of improving its condition.

When, on the contrary, the people is invested with the supreme

authority, the perpetual sense of their own miseries impels the rulers

of society to seek for perpetual ameliorations. A thousand different

objects are subjected to improvement; the most trivial details are

sought out as susceptible of amendment; and those changes which are

accompanied with considerable expense are more especially advocated,

since the object is to render the condition of the poor more tolerable,

who cannot pay for themselves.

Moreover, all democratic communities are agitated by an ill-defined

excitement and by a kind of feverish impatience, that engender a

multitude of innovations, almost all of which are attended with expense.

In monarchies and aristocracies the natural taste which the rulers have

for power and for renown is stimulated by the promptings of ambition,

and they are frequently incited by these temptations to very costly

undertakings. In democracies, where the rulers labor under privations,

they can only be courted by such means as improve their well-being, and

these improvements cannot take place without a sacrifice of money. When

a people begins to reflect upon its situation, it discovers a multitude

of wants to which it had not before been subject, and to satisfy these

exigencies recourse must be had to the coffers of the State. Hence it

arises that the public charges increase in proportion as civilization

spreads, and that imposts are augmented as knowledge pervades the

community.

The last cause which frequently renders a democratic government

dearer than any other is, that a democracy does not always succeed in

moderating its expenditure, because it does not understand the art of

being economical. As the designs which it entertains are frequently

changed, and the agents of those designs are still more frequently

removed, its undertakings are often ill conducted or left unfinished: in

the former case the State spends sums out of all proportion to the end

which it proposes to accomplish; in the second, the expense itself is

unprofitable. *f

[Footnote f: The gross receipts of the Treasury of the United States in

1832 were about $28,000,000; in 1870 they had risen to $411,000,000. The

gross expenditure in 1832 was $30,000,000; in 1870, $309,000,000.]

Tendencies Of The American Democracy As Regards The Salaries Of Public

Officers

In the democracies those who establish high salaries have no chance of

profiting by them--Tendency of the American democracy to increase

the salaries of subordinate officers and to lower those of the more

important functionaries--Reason of this--Comparative statement of the

salaries of public officers in the United States and in France.

There is a powerful reason which usually induces democracies to

economize upon the salaries of public officers. As the number of

citizens who dispense the remuneration is extremely large in democratic

countries, so the number of persons who can hope to be benefited by the

receipt of it is comparatively small. In aristocratic countries, on the

contrary, the individuals who fix high salaries have almost always a

vague hope of profiting by them. These appointments may be looked upon

as a capital which they create for their own use, or at least as a

resource for their children.

It must, however, be allowed that a democratic State is most

parsimonious towards its principal agents. In America the secondary

officers are much better paid, and the dignitaries of the administration

much worse, than they are elsewhere.

These opposite effects result from the same cause; the people fixes

the salaries of the public officers in both cases; and the scale of

remuneration is determined by the consideration of its own wants. It is

held to be fair that the servants of the public should be placed in the

same easy circumstances as the public itself; *g but when the question

turns upon the salaries of the great officers of State, this rule

fails, and chance alone can guide the popular decision. The poor have no

adequate conception of the wants which the higher classes of society may

feel. The sum which is scanty to the rich appears enormous to the poor

man whose wants do not extend beyond the necessaries of life; and in his

estimation the Governor of a State, with his twelve or fifteen hundred

dollars a year, is a very fortunate and enviable being. *h If you

undertake to convince him that the representative of a great people

ought to be able to maintain some show of splendor in the eyes of

foreign nations, he will perhaps assent to your meaning; but when he

reflects on his own humble dwelling, and on the hard-earned produce

of his wearisome toil, he remembers all that he could do with a salary

which you say is insufficient, and he is startled or almost frightened

at the sight of such uncommon wealth. Besides, the secondary public

officer is almost on a level with the people, whilst the others are

raised above it. The former may therefore excite his interest, but the

latter begins to arouse his envy.

[Footnote g: The easy circumstances in which secondary functionaries

are placed in the United States result also from another cause, which

is independent of the general tendencies of democracy; every kind of

private business is very lucrative, and the State would not be served at

all if it did not pay its servants. The country is in the position of

a commercial undertaking, which is obliged to sustain an expensive

competition, notwithstanding its tastes for economy.]

[Footnote h: The State of Ohio, which contains a million of inhabitants,

gives its Governor a salary of only $1,200 a year.]

This is very clearly seen in the United States, where the salaries seem

to decrease as the authority of those who receive them augments *i

[Footnote i: To render this assertion perfectly evident, it will

suffice to examine the scale of salaries of the agents of the Federal

Government. I have added the salaries attached to the corresponding

officers in France under the constitutional monarchy to complete the

comparison.

United States

Treasury Department

Messenger ............................ $700

Clerk with lowest salary ............. 1,000

Clerk with highest salary ............ 1,600

Chief Clerk .......................... 2,000

Secretary of State ................... 6,000

The President ........................ 25,000

France

Ministere des Finances

Hussier ........................... 1,500 fr.

Clerk with lowest salary, 1,000 to 1,800 fr.

Clerk with highest salary 3,200 to 8,600 fr.

Secretaire-general ................20,000 fr.

The Minister ......................80,000 fr.

The King ......................12,000,000 fr.

I have perhaps done wrong in selecting France as my standard of

comparison. In France the democratic tendencies of the nation exercise

an ever-increasing influence upon the Government, and the Chambers show

a disposition to raise the low salaries and to lower the principal

ones. Thus, the Minister of Finance, who received 160,000 fr. under the

Empire, receives 80,000 fr. in 1835: the Directeurs-generaux of

Finance, who then received 50,000 fr. now receive only 20,000 fr. [This

comparison is based on the state of things existing in France and

the United States in 1831. It has since materially altered in both

countries, but not so much as to impugn the truth of the author's

observation.]]

Under the rule of an aristocracy it frequently happens, on the contrary,

that whilst the high officers are receiving munificent salaries, the

inferior ones have not more than enough to procure the necessaries of

life. The reason of this fact is easily discoverable from causes very

analogous to those to which I have just alluded. If a democracy is

unable to conceive the pleasures of the rich or to witness them without

envy, an aristocracy is slow to understand, or, to speak more correctly,

is unacquainted with, the privations of the poor. The poor man is not

(if we use the term aright) the fellow of the rich one; but he is a

being of another species. An aristocracy is therefore apt to care but

little for the fate of its subordinate agents; and their salaries are

only raised when they refuse to perform their service for too scanty a

remuneration.

It is the parsimonious conduct of democracy towards its principal

officers which has countenanced a supposition of far more economical

propensities than any which it really possesses. It is true that it

scarcely allows the means of honorable subsistence to the individuals

who conduct its affairs; but enormous sums are lavished to meet the

exigencies or to facilitate the enjoyments of the people. *j The money

raised by taxation may be better employed, but it is not saved. In

general, democracy gives largely to the community, and very sparingly to

those who govern it. The reverse is the case in aristocratic countries,

where the money of the State is expended to the profit of the persons

who are at the head of affairs.

[Footnote j: See the American budgets for the cost of indigent citizens

and gratuitous instruction. In 1831 $250,000 were spent in the State of

New York for the maintenance of the poor, and at least $1,000,000

were devoted to gratuitous instruction. (William's "New York Annual

Register," 1832, pp. 205 and 243.) The State of New York contained only

1,900,000 inhabitants in the year 1830, which is not more than double

the amount of population in the Department du Nord in France.]

Difficulty of Distinguishing The Causes Which Contribute To The Economy

Of The American Government

We are liable to frequent errors in the research of those facts which

exercise a serious influence upon the fate of mankind, since nothing

is more difficult than to appreciate their real value. One people

is naturally inconsistent and enthusiastic; another is sober and

calculating; and these characteristics originate in their physical

constitution or in remote causes with which we are unacquainted.

These are nations which are fond of parade and the bustle of festivity,

and which do not regret the costly gaieties of an hour. Others, on

the contrary, are attached to more retiring pleasures, and seem almost

ashamed of appearing to be pleased. In some countries the highest value

is set upon the beauty of public edifices; in others the productions of

art are treated with indifference, and everything which is unproductive

is looked down upon with contempt. In some renown, in others money, is

the ruling passion.

Independently of the laws, all these causes concur to exercise a very

powerful influence upon the conduct of the finances of the State. If the

Americans never spend the money of the people in galas, it is not only

because the imposition of taxes is under the control of the people,

but because the people takes no delight in public rejoicings. If they

repudiate all ornament from their architecture, and set no store on any

but the more practical and homely advantages, it is not only because

they live under democratic institutions, but because they are a

commercial nation. The habits of private life are continued in public;

and we ought carefully to distinguish that economy which depends upon

their institutions from that which is the natural result of their

manners and customs.

Whether The Expenditure Of The United States Can Be Compared To That Of

France

Two points to be established in order to estimate the extent of the

public charges, viz., the national wealth and the rate of taxation--The

wealth and the charges of France not accurately known--Why the wealth

and charges of the Union cannot be accurately known--Researches of

the author with a view to discover the amount of taxation of

Pennsylvania--General symptoms which may serve to indicate the amount of

the public charges in a given nation--Result of this investigation for

the Union.

Many attempts have recently been made in France to compare the public

expenditure of that country with the expenditure of the United States;

all these attempts have, however, been unattended by success, and a few

words will suffice to show that they could not have had a satisfactory

result.

In order to estimate the amount of the public charges of a people two

preliminaries are indispensable: it is necessary, in the first place, to

know the wealth of that people; and in the second, to learn what portion

of that wealth is devoted to the expenditure of the State. To show the

amount of taxation without showing the resources which are destined

to meet the demand, is to undertake a futile labor; for it is not the

expenditure, but the relation of the expenditure to the revenue, which

it is desirable to know.

The same rate of taxation which may easily be supported by a wealthy

contributor will reduce a poor one to extreme misery. The wealth of

nations is composed of several distinct elements, of which population

is the first, real property the second, and personal property the third.

The first of these three elements may be discovered without difficulty.

Amongst civilized nations it is easy to obtain an accurate census of

the inhabitants; but the two others cannot be determined with so much

facility. It is difficult to take an exact account of all the lands in

a country which are under cultivation, with their natural or their

acquired value; and it is still more impossible to estimate the entire

personal property which is at the disposal of a nation, and which eludes

the strictest analysis by the diversity and the number of shapes under

which it may occur. And, indeed, we find that the most ancient civilized

nations of Europe, including even those in which the administration

is most central, have not succeeded, as yet, in determining the exact

condition of their wealth.

In America the attempt has never been made; for how would such an

investigation be possible in a country where society has not yet

settled into habits of regularity and tranquillity; where the national

Government is not assisted by a multiple of agents whose exertions it

can command and direct to one sole end; and where statistics are not

studied, because no one is able to collect the necessary documents,

or to find time to peruse them? Thus the primary elements of the

calculations which have been made in France cannot be obtained in the

Union; the relative wealth of the two countries is unknown; the property

of the former is not accurately determined, and no means exist of

computing that of the latter.

I consent, therefore, for the sake of the discussion, to abandon this

necessary term of the comparison, and I confine myself to a computation

of the actual amount of taxation, without investigating the relation

which subsists between the taxation and the revenue. But the reader will

perceive that my task has not been facilitated by the limits which I

here lay down for my researches.

It cannot be doubted that the central administration of France, assisted

by all the public officers who are at its disposal, might determine with

exactitude the amount of the direct and indirect taxes levied upon

the citizens. But this investigation, which no private individual can

undertake, has not hitherto been completed by the French Government, or,

at least, its results have not been made public. We are acquainted with

the sum total of the charges of the State; we know the amount of the

departmental expenditure; but the expenses of the communal divisions

have not been computed, and the amount of the public expenses of France

is consequently unknown.

If we now turn to America, we shall perceive that the difficulties are

multiplied and enhanced. The Union publishes an exact return of the

amount of its expenditure; the budgets of the four and twenty States

furnish similar returns of their revenues; but the expenses incident to

the affairs of the counties and the townships are unknown. *k

[Footnote k: The Americans, as we have seen, have four separate budgets,

the Union, the States, the Counties, and the Townships having each

severally their own. During my stay in America I made every endeavor

to discover the amount of the public expenditure in the townships and

counties of the principal States of the Union, and I readily obtained

the budget of the larger townships, but I found it quite impossible to

procure that of the smaller ones. I possess, however, some documents

relating to county expenses, which, although incomplete, are still

curious. I have to thank Mr. Richards, Mayor of Philadelphia, for the

budgets of thirteen of the counties of Pennsylvania, viz., Lebanon,

Centre, Franklin, Fayette, Montgomery, Luzerne, Dauphin, Butler,

Alleghany, Columbia, Northampton, Northumberland, and Philadelphia,

for the year 1830. Their population at that time consisted of 495,207

inhabitants. On looking at the map of Pennsylvania, it will be seen

that these thirteen counties are scattered in every direction, and so

generally affected by the causes which usually influence the condition

of a country, that they may easily be supposed to furnish a correct

average of the financial state of the counties of Pennsylvania in

general; and thus, upon reckoning that the expenses of these counties

amounted in the year 1830 to about $361,650, or nearly 75 cents for each

inhabitant, and calculating that each of them contributed in the same

year about $2.55 towards the Union, and about 75 cents to the State of

Pennsylvania, it appears that they each contributed as their share

of all the public expenses (except those of the townships) the sum of

$4.05. This calculation is doubly incomplete, as it applies only to a

single year and to one part of the public charges; but it has at least

the merit of not being conjectural.]

The authority of the Federal government cannot oblige the provincial

governments to throw any light upon this point; and even if these

governments were inclined to afford their simultaneous co-operation,

it may be doubted whether they possess the means of procuring a

satisfactory answer. Independently of the natural difficulties of the

task, the political organization of the country would act as a hindrance

to the success of their efforts. The county and town magistrates are not

appointed by the authorities of the State, and they are not subjected

to their control. It is therefore very allowable to suppose that, if the

State was desirous of obtaining the returns which we require, its design

would be counteracted by the neglect of those subordinate officers whom

it would be obliged to employ. *l It is, in point of fact, useless to

inquire what the Americans might do to forward this inquiry, since it

is certain that they have hitherto done nothing at all. There does not

exist a single individual at the present day, in America or in Europe,

who can inform us what each citizen of the Union annually contributes

to the public charges of the nation. *m [Footnote l: Those who have

attempted to draw a comparison between the expenses of France and

America have at once perceived that no such comparison could be drawn

between the total expenditure of the two countries; but they have

endeavored to contrast detached portions of this expenditure. It may

readily be shown that this second system is not at all less defective

than the first. If I attempt to compare the French budget with the

budget of the Union, it must be remembered that the latter embraces much

fewer objects than then central Government of the former country, and

that the expenditure must consequently be much smaller. If I contrast

the budgets of the Departments with those of the States which constitute

the Union, it must be observed that, as the power and control exercised

by the States is much greater than that which is exercised by the

Departments, their expenditure is also more considerable. As for the

budgets of the counties, nothing of the kind occurs in the French

system of finances; and it is, again, doubtful whether the corresponding

expenses should be referred to the budget of the State or to those of

the municipal divisions. Municipal expenses exist in both countries,

but they are not always analogous. In America the townships discharge a

variety of offices which are reserved in France to the Departments or

to the State. It may, moreover, be asked what is to be understood by the

municipal expenses of America. The organization of the municipal bodies

or townships differs in the several States. Are we to be guided by what

occurs in New England or in Georgia, in Pennsylvania or in the State

of Illinois? A kind of analogy may very readily be perceived between

certain budgets in the two countries; but as the elements of which

they are composed always differ more or less, no fair comparison can

be instituted between them. [The same difficulty exists, perhaps to a

greater degree at the present time, when the taxation of America has

largely increased.--1874.]]

[Footnote m: Even if we knew the exact pecuniary contributions of every

French and American citizen to the coffers of the State, we should only

come at a portion of the truth. Governments do not only demand supplies

of money, but they call for personal services, which may be looked upon

as equivalent to a given sum. When a State raises an army, besides the

pay of the troops, which is furnished by the entire nation, each soldier

must give up his time, the value of which depends on the use he might

make of it if he were not in the service. The same remark applies to the

militia; the citizen who is in the militia devotes a certain portion

of valuable time to the maintenance of the public peace, and he does in

reality surrender to the State those earnings which he is prevented from

gaining. Many other instances might be cited in addition to these. The

governments of France and of America both levy taxes of this kind,

which weigh upon the citizens; but who can estimate with accuracy their

relative amount in the two countries?

This, however, is not the last of the difficulties which prevent us from

comparing the expenditure of the Union with that of France. The French

Government contracts certain obligations which do not exist in America,

and vice versa. The French Government pays the clergy; in America the

voluntary principle prevails. In America there is a legal provision for

the poor; in France they are abandoned to the charity of the public. The

French public officers are paid by a fixed salary; in America they are

allowed certain perquisites. In France contributions in kind take place

on very few roads; in America upon almost all the thoroughfares: in

the former country the roads are free to all travellers; in the

latter turnpikes abound. All these differences in the manner in which

contributions are levied in the two countries enhance the difficulty of

comparing their expenditure; for there are certain expenses which the

citizens would not be subject to, or which would at any rate be much

less considerable, if the State did not take upon itself to act in the

name of the public.]

Hence we must conclude that it is no less difficult to compare the

social expenditure than it is to estimate the relative wealth of France

and America. I will even add that it would be dangerous to attempt this

comparison; for when statistics are not based upon computations which

are strictly accurate, they mislead instead of guiding aright. The mind

is easily imposed upon by the false affectation of exactness, which

prevails even in the misstatements of science, and it adopts with

confidence errors which are dressed in the forms of mathematical truth.

We abandon, therefore, our numerical investigation, with the hope of

meeting with data of another kind. In the absence of positive documents,

we may form an opinion as to the proportion which the taxation of a

people bears to its real prosperity, by observing whether its external

appearance is flourishing; whether, after having discharged the calls of

the State, the poor man retains the means of subsistence, and the rich

the means of enjoyment; and whether both classes are contented with

their position, seeking, however, to ameliorate it by perpetual

exertions, so that industry is never in want of capital, nor capital

unemployed by industry. The observer who draws his inferences from these

signs will, undoubtedly, be led to the conclusion that the American of

the United States contributes a much smaller portion of his income to

the State than the citizen of France. Nor, indeed, can the result be

otherwise.

A portion of the French debt is the consequence of two successive

invasions; and the Union has no similar calamity to fear. A nation

placed upon the continent of Europe is obliged to maintain a large

standing army; the isolated position of the Union enables it to have

only 6,000 soldiers. The French have a fleet of 300 sail; the Americans

have 52 vessels. *n How, then, can the inhabitants of the Union be

called upon to contribute as largely as the inhabitants of France?

No parallel can be drawn between the finances of two countries so

differently situated.

[Footnote n: See the details in the Budget of the French Minister of

Marine; and for America, the National Calendar of 1833, p. 228. [But

the public debt of the United States in 1870, caused by the Civil War,

amounted to $2,480,672,427; that of France was more than doubled by the

extravagance of the Second Empire and by the war of 1870.]]

It is by examining what actually takes place in the Union, and not

by comparing the Union with France, that we may discover whether the

American Government is really economical. On casting my eyes over the

different republics which form the confederation, I perceive that their

Governments lack perseverance in their undertakings, and that they

exercise no steady control over the men whom they employ. Whence I

naturally infer that they must often spend the money of the people to

no purpose, or consume more of it than is really necessary to their

undertakings. Great efforts are made, in accordance with the democratic

origin of society, to satisfy the exigencies of the lower orders, to

open the career of power to their endeavors, and to diffuse knowledge

and comfort amongst them. The poor are maintained, immense sums are

annually devoted to public instruction, all services whatsoever are

remunerated, and the most subordinate agents are liberally paid. If

this kind of government appears to me to be useful and rational, I am

nevertheless constrained to admit that it is expensive.

Wherever the poor direct public affairs and dispose of the national

resources, it appears certain that, as they profit by the expenditure of

the State, they are apt to augment that expenditure.

I conclude, therefore, without having recourse to inaccurate

computations, and without hazarding a comparison which might prove

incorrect, that the democratic government of the Americans is not a

cheap government, as is sometimes asserted; and I have no hesitation in

predicting that, if the people of the United States is ever involved

in serious difficulties, its taxation will speedily be increased to the

rate of that which prevails in the greater part of the aristocracies and

the monarchies of Europe. *o

[Footnote o: [That is precisely what has since occurred.]]

Chapter XIII: Government Of The Democracy In America--Part III

Corruption And Vices Of The Rulers In A Democracy, And Consequent

Effects Upon Public Morality

In aristocracies rulers sometimes endeavor to corrupt the people--In

democracies rulers frequently show themselves to be corrupt--In the

former their vices are directly prejudicial to the morality of the

people--In the latter their indirect influence is still more pernicious.

A distinction must be made, when the aristocratic and the democratic

principles mutually inveigh against each other, as tending to facilitate

corruption. In aristocratic governments the individuals who are placed

at the head of affairs are rich men, who are solely desirous of power.

In democracies statesmen are poor, and they have their fortunes to make.

The consequence is that in aristocratic States the rulers are rarely

accessible to corruption, and have very little craving for money; whilst

the reverse is the case in democratic nations.

But in aristocracies, as those who are desirous of arriving at the head

of affairs are possessed of considerable wealth, and as the number of

persons by whose assistance they may rise is comparatively small, the

government is, if I may use the expression, put up to a sort of auction.

In democracies, on the contrary, those who are covetous of power are

very seldom wealthy, and the number of citizens who confer that power is

extremely great. Perhaps in democracies the number of men who might be

bought is by no means smaller, but buyers are rarely to be met with;

and, besides, it would be necessary to buy so many persons at once that

the attempt is rendered nugatory.

Many of the men who have been in the administration in France during

the last forty years have been accused of making their fortunes at

the expense of the State or of its allies; a reproach which was rarely

addressed to the public characters of the ancient monarchy. But in

France the practice of bribing electors is almost unknown, whilst it is

notoriously and publicly carried on in England. In the United States

I never heard a man accused of spending his wealth in corrupting

the populace; but I have often heard the probity of public officers

questioned; still more frequently have I heard their success attributed

to low intrigues and immoral practices.

If, then, the men who conduct the government of an aristocracy sometimes

endeavor to corrupt the people, the heads of a democracy are themselves

corrupt. In the former case the morality of the people is directly

assailed; in the latter an indirect influence is exercised upon the

people which is still more to be dreaded.

As the rulers of democratic nations are almost always exposed to

the suspicion of dishonorable conduct, they in some measure lend the

authority of the Government to the base practices of which they are

accused. They thus afford an example which must prove discouraging

to the struggles of virtuous independence, and must foster the secret

calculations of a vicious ambition. If it be asserted that evil passions

are displayed in all ranks of society, that they ascend the throne by

hereditary right, and that despicable characters are to be met with

at the head of aristocratic nations as well as in the sphere of a

democracy, this objection has but little weight in my estimation. The

corruption of men who have casually risen to power has a coarse and

vulgar infection in it which renders it contagious to the multitude. On

the contrary, there is a kind of aristocratic refinement and an air of

grandeur in the depravity of the great, which frequently prevent it from

spreading abroad.

The people can never penetrate into the perplexing labyrinth of court

intrigue, and it will always have difficulty in detecting the turpitude

which lurks under elegant manners, refined tastes, and graceful

language. But to pillage the public purse, and to vend the favors of the

State, are arts which the meanest villain may comprehend, and hope to

practice in his turn.

In reality it is far less prejudicial to witness the immorality of the

great than to witness that immorality which leads to greatness. In a

democracy private citizens see a man of their own rank in life, who

rises from that obscure position, and who becomes possessed of riches

and of power in a few years; the spectacle excites their surprise and

their envy, and they are led to inquire how the person who was yesterday

their equal is to-day their ruler. To attribute his rise to his talents

or his virtues is unpleasant; for it is tacitly to acknowledge that they

are themselves less virtuous and less talented than he was. They are

therefore led (and not unfrequently their conjecture is a correct one)

to impute his success mainly to some one of his defects; and an odious

mixture is thus formed of the ideas of turpitude and power, unworthiness

and success, utility and dishonor.

Efforts Of Which A Democracy Is Capable

The Union has only had one struggle hitherto for its

existence--Enthusiasm at the commencement of the war--Indifference

towards its close--Difficulty of establishing military conscription

or impressment of seamen in America--Why a democratic people is less

capable of sustained effort than another.

I here warn the reader that I speak of a government which implicitly

follows the real desires of a people, and not of a government which

simply commands in its name. Nothing is so irresistible as a tyrannical

power commanding in the name of the people, because, whilst it exercises

that moral influence which belongs to the decision of the majority, it

acts at the same time with the promptitude and the tenacity of a single

man.

It is difficult to say what degree of exertion a democratic government

may be capable of making a crisis in the history of the nation. But no

great democratic republic has hitherto existed in the world. To style

the oligarchy which ruled over France in 1793 by that name would be to

offer an insult to the republican form of government. The United States

afford the first example of the kind.

The American Union has now subsisted for half a century, in the course

of which time its existence has only once been attacked, namely, during

the War of Independence. At the commencement of that long war, various

occurrences took place which betokened an extraordinary zeal for the

service of the country. *p But as the contest was prolonged, symptoms of

private egotism began to show themselves. No money was poured into the

public treasury; few recruits could be raised to join the army; the

people wished to acquire independence, but was very ill-disposed to

undergo the privations by which alone it could be obtained. "Tax

laws," says Hamilton in the "Federalist" (No. 12), "have in vain been

multiplied; new methods to enforce the collection have in vain been

tried; the public expectation has been uniformly disappointed and the

treasuries of the States have remained empty. The popular system of

administration inherent in the nature of popular government, coinciding

with the real scarcity of money incident to a languid and mutilated

state of trade, has hitherto defeated every experiment for extensive

collections, and has at length taught the different legislatures the

folly of attempting them."

[Footnote p: One of the most singular of these occurrences was the

resolution which the Americans took of temporarily abandoning the use of

tea. Those who know that men usually cling more to their habits than

to their life will doubtless admire this great though obscure sacrifice

which was made by a whole people.]

The United States have not had any serious war to carry on ever since

that period. In order, therefore, to appreciate the sacrifices which

democratic nations may impose upon themselves, we must wait until the

American people is obliged to put half its entire income at the disposal

of the Government, as was done by the English; or until it sends forth a

twentieth part of its population to the field of battle, as was done by

France. *q

[Footnote q: [The Civil War showed that when the necessity arose the

American people, both in the North and in the South, are capable of

making the most enormous sacrifices, both in money and in men.]]

In America the use of conscription is unknown, and men are induced to

enlist by bounties. The notions and habits of the people of the United

States are so opposed to compulsory enlistment that I do not imagine it

can ever be sanctioned by the laws. What is termed the conscription

in France is assuredly the heaviest tax upon the population of that

country; yet how could a great continental war be carried on without it?

The Americans have not adopted the British impressment of seamen, and

they have nothing which corresponds to the French system of maritime

conscription; the navy, as well as the merchant service, is supplied

by voluntary service. But it is not easy to conceive how a people can

sustain a great maritime war without having recourse to one or the other

of these two systems. Indeed, the Union, which has fought with some

honor upon the seas, has never possessed a very numerous fleet, and

the equipment of the small number of American vessels has always been

excessively expensive.

I have heard American statesmen confess that the Union will have great

difficulty in maintaining its rank on the seas without adopting the

system of impressment or of maritime conscription; but the difficulty is

to induce the people, which exercises the supreme authority, to submit

to impressment or any compulsory system.

It is incontestable that in times of danger a free people displays far

more energy than one which is not so. But I incline to believe that

this is more especially the case in those free nations in which the

democratic element preponderates. Democracy appears to me to be much

better adapted for the peaceful conduct of society, or for an occasional

effort of remarkable vigor, than for the hardy and prolonged endurance

of the storms which beset the political existence of nations. The reason

is very evident; it is enthusiasm which prompts men to expose themselves

to dangers and privations, but they will not support them long without

reflection. There is more calculation, even in the impulses of bravery,

than is generally attributed to them; and although the first efforts are

suggested by passion, perseverance is maintained by a distinct regard of

the purpose in view. A portion of what we value is exposed, in order to

save the remainder.

But it is this distinct perception of the future, founded upon a sound

judgment and an enlightened experience, which is most frequently wanting

in democracies. The populace is more apt to feel than to reason; and

if its present sufferings are great, it is to be feared that the still

greater sufferings attendant upon defeat will be forgotten.

Another cause tends to render the efforts of a democratic government

less persevering than those of an aristocracy. Not only are the lower

classes less awakened than the higher orders to the good or evil chances

of the future, but they are liable to suffer far more acutely from

present privations. The noble exposes his life, indeed, but the chance

of glory is equal to the chance of harm. If he sacrifices a large

portion of his income to the State, he deprives himself for a time of

the pleasures of affluence; but to the poor man death is embellished

by no pomp or renown, and the imposts which are irksome to the rich are

fatal to him.

This relative impotence of democratic republics is, perhaps, the

greatest obstacle to the foundation of a republic of this kind in

Europe. In order that such a State should subsist in one country of the

Old World, it would be necessary that similar institutions should be

introduced into all the other nations.

I am of opinion that a democratic government tends in the end to

increase the real strength of society; but it can never combine, upon a

single point and at a given time, so much power as an aristocracy or

a monarchy. If a democratic country remained during a whole century

subject to a republican government, it would probably at the end of

that period be more populous and more prosperous than the neighboring

despotic States. But it would have incurred the risk of being conquered

much oftener than they would in that lapse of years.

Self-Control Of The American Democracy

The American people acquiesces slowly, or frequently does not acquiesce,

in what is beneficial to its interests--The faults of the American

democracy are for the most part reparable.

The difficulty which a democracy has in conquering the passions and in

subduing the exigencies of the moment, with a view to the future, is

conspicuous in the most trivial occurrences of the United States. The

people, which is surrounded by flatterers, has great difficulty in

surmounting its inclinations, and whenever it is solicited to undergo a

privation or any kind of inconvenience, even to attain an end which is

sanctioned by its own rational conviction, it almost always refuses to

comply at first. The deference of the Americans to the laws has

been very justly applauded; but it must be added that in America the

legislation is made by the people and for the people. Consequently, in

the United States the law favors those classes which are most interested

in evading it elsewhere. It may therefore be supposed that an offensive

law, which should not be acknowledged to be one of immediate utility,

would either not be enacted or would not be obeyed.

In America there is no law against fraudulent bankruptcies; not because

they are few, but because there are a great number of bankruptcies. The

dread of being prosecuted as a bankrupt acts with more intensity upon

the mind of the majority of the people than the fear of being involved

in losses or ruin by the failure of other parties, and a sort of guilty

tolerance is extended by the public conscience to an offence which

everyone condemns in his individual capacity. In the new States of the

Southwest the citizens generally take justice into their own hands,

and murders are of very frequent occurrence. This arises from the rude

manners and the ignorance of the inhabitants of those deserts, who do

not perceive the utility of investing the law with adequate force, and

who prefer duels to prosecutions.

Someone observed to me one day, in Philadelphia, that almost all crimes

in America are caused by the abuse of intoxicating liquors, which the

lower classes can procure in great abundance, from their excessive

cheapness. "How comes it," said I, "that you do not put a duty upon

brandy?" "Our legislators," rejoined my informant, "have frequently

thought of this expedient; but the task of putting it in operation is a

difficult one; a revolt might be apprehended, and the members who

should vote for a law of this kind would be sure of losing their

seats." "Whence I am to infer," replied I, "that the drinking population

constitutes the majority in your country, and that temperance is

somewhat unpopular."

When these things are pointed out to the American statesmen, they

content themselves with assuring you that time will operate the

necessary change, and that the experience of evil will teach the people

its true interests. This is frequently true, although a democracy is

more liable to error than a monarch or a body of nobles; the chances of

its regaining the right path when once it has acknowledged its

mistake, are greater also; because it is rarely embarrassed by internal

interests, which conflict with those of the majority, and resist the

authority of reason. But a democracy can only obtain truth as the result

of experience, and many nations may forfeit their existence whilst they

are awaiting the consequences of their errors.

The great privilege of the Americans does not simply consist in their

being more enlightened than other nations, but in their being able to

repair the faults they may commit. To which it must be added, that a

democracy cannot derive substantial benefit from past experience, unless

it be arrived at a certain pitch of knowledge and civilization. There

are tribes and peoples whose education has been so vicious, and whose

character presents so strange a mixture of passion, of ignorance, and of

erroneous notions upon all subjects, that they are unable to discern the

causes of their own wretchedness, and they fall a sacrifice to ills with

which they are unacquainted.

I have crossed vast tracts of country that were formerly inhabited by

powerful Indian nations which are now extinct; I have myself passed some

time in the midst of mutilated tribes, which witness the daily decline

of their numerical strength and of the glory of their independence; and

I have heard these Indians themselves anticipate the impending doom of

their race. Every European can perceive means which would rescue

these unfortunate beings from inevitable destruction. They alone are

insensible to the expedient; they feel the woe which year after year

heaps upon their heads, but they will perish to a man without accepting

the remedy. It would be necessary to employ force to induce them to

submit to the protection and the constraint of civilization.

The incessant revolutions which have convulsed the South American

provinces for the last quarter of a century have frequently been

adverted to with astonishment, and expectations have been expressed that

those nations would speedily return to their natural state. But can

it be affirmed that the turmoil of revolution is not actually the most

natural state of the South American Spaniards at the present time? In

that country society is plunged into difficulties from which all its

efforts are insufficient to rescue it. The inhabitants of that fair

portion of the Western Hemisphere seem obstinately bent on pursuing

the work of inward havoc. If they fall into a momentary repose from the

effects of exhaustion, that repose prepares them for a fresh state of

frenzy. When I consider their condition, which alternates between misery

and crime, I should be inclined to believe that despotism itself would

be a benefit to them, if it were possible that the words despotism and

benefit could ever be united in my mind.

Conduct Of Foreign Affairs By The American Democracy

Direction given to the foreign policy of the United States by

Washington and Jefferson--Almost all the defects inherent in

democratic institutions are brought to light in the conduct of foreign

affairs--Their advantages are less perceptible.

We have seen that the Federal Constitution entrusts the permanent

direction of the external interests of the nation to the President and

the Senate, *r which tends in some degree to detach the general foreign

policy of the Union from the control of the people. It cannot therefore

be asserted with truth that the external affairs of State are conducted

by the democracy.

[Footnote r: "The President," says the Constitution, Art. II, sect. 2,

Section 2, "shall have power, by and with the advice and consent of the

Senate, to make treaties, provided two-thirds of the senators present

concur." The reader is reminded that the senators are returned for a

term of six years, and that they are chosen by the legislature of each

State.]

The policy of America owes its rise to Washington, and after him to

Jefferson, who established those principles which it observes at the

present day. Washington said in the admirable letter which he addressed

to his fellow-citizens, and which may be looked upon as his political

bequest to the country: "The great rule of conduct for us in regard to

foreign nations is, in extending our commercial relations, to have

with them as little political connection as possible. So far as we have

already formed engagements, let them be fulfilled with perfect good

faith. Here let us stop. Europe has a set of primary interests which to

us have none, or a very remote relation. Hence, she must be engaged in

frequent controversies, the causes of which are essentially foreign to

our concerns. Hence, therefore, it must be unwise in us to implicate

ourselves, by artificial ties, in the ordinary vicissitudes of her

politics, or the ordinary combinations and collisions of her friendships

or enmities. Our detached and distant situation invites and enables

us to pursue a different course. If we remain one people, under an

efficient government, the period is not far off when we may defy

material injury from external annoyance; when we may take such an

attitude as will cause the neutrality we may at any time resolve upon

to be scrupulously respected; when belligerent nations, under the

impossibility of making acquisitions upon us, will not lightly hazard

the giving us provocation; when we may choose peace or war, as our

interest, guided by justice, shall counsel. Why forego the advantages of

so peculiar a situation? Why quit our own to stand upon foreign ground?

Why, by interweaving our destiny with that of any part of Europe,

entangle our peace and prosperity in the toils of European ambition,

rivalship, interest, humor, or caprice? It is our true policy to steer

clear of permanent alliances with any portion of the foreign world;

so far, I mean, as we are now at liberty to do it; for let me not be

understood as capable of patronizing infidelity to existing engagements.

I hold the maxim no less applicable to public than to private affairs,

that honesty is always the best policy. I repeat it; therefore, let

those engagements be observed in their genuine sense; but in my opinion

it is unnecessary, and would be unwise, to extend them. Taking care

always to keep ourselves, by suitable establishments, in a respectable

defensive posture, we may safely trust to temporary alliances for

extraordinary emergencies." In a previous part of the same letter

Washington makes the following admirable and just remark: "The nation

which indulges towards another an habitual hatred or an habitual

fondness is in some degree a slave. It is a slave to its animosity or to

its affection, either of which is sufficient to lead it astray from its

duty and its interest."

The political conduct of Washington was always guided by these maxims.

He succeeded in maintaining his country in a state of peace whilst all

the other nations of the globe were at war; and he laid it down as a

fundamental doctrine, that the true interest of the Americans consisted

in a perfect neutrality with regard to the internal dissensions of the

European Powers.

Jefferson went still further, and he introduced a maxim into the policy

of the Union, which affirms that "the Americans ought never to solicit

any privileges from foreign nations, in order not to be obliged to grant

similar privileges themselves."

These two principles, which were so plain and so just as to be adapted

to the capacity of the populace, have greatly simplified the foreign

policy of the United States. As the Union takes no part in the affairs

of Europe, it has, properly speaking, no foreign interests to discuss,

since it has at present no powerful neighbors on the American continent.

The country is as much removed from the passions of the Old World by its

position as by the line of policy which it has chosen, and it is neither

called upon to repudiate nor to espouse the conflicting interests of

Europe; whilst the dissensions of the New World are still concealed

within the bosom of the future.

The Union is free from all pre-existing obligations, and it is

consequently enabled to profit by the experience of the old nations

of Europe, without being obliged, as they are, to make the best of the

past, and to adapt it to their present circumstances; or to accept

that immense inheritance which they derive from their forefathers--an

inheritance of glory mingled with calamities, and of alliances

conflicting with national antipathies. The foreign policy of the United

States is reduced by its very nature to await the chances of the

future history of the nation, and for the present it consists more in

abstaining from interference than in exerting its activity.

It is therefore very difficult to ascertain, at present, what degree

of sagacity the American democracy will display in the conduct of the

foreign policy of the country; and upon this point its adversaries, as

well as its advocates, must suspend their judgment. As for myself I have

no hesitation in avowing my conviction, that it is most especially in

the conduct of foreign relations that democratic governments appear to

me to be decidedly inferior to governments carried on upon different

principles. Experience, instruction, and habit may almost always succeed

in creating a species of practical discretion in democracies, and that

science of the daily occurrences of life which is called good sense.

Good sense may suffice to direct the ordinary course of society; and

amongst a people whose education has been provided for, the advantages

of democratic liberty in the internal affairs of the country may more

than compensate for the evils inherent in a democratic government. But

such is not always the case in the mutual relations of foreign nations.

Foreign politics demand scarcely any of those qualities which a

democracy possesses; and they require, on the contrary, the perfect use

of almost all those faculties in which it is deficient. Democracy is

favorable to the increase of the internal resources of the State; it

tends to diffuse a moderate independence; it promotes the growth of

public spirit, and fortifies the respect which is entertained for law in

all classes of society; and these are advantages which only exercise an

indirect influence over the relations which one people bears to another.

But a democracy is unable to regulate the details of an important

undertaking, to persevere in a design, and to work out its execution in

the presence of serious obstacles. It cannot combine its measures with

secrecy, and it will not await their consequences with patience. These

are qualities which more especially belong to an individual or to an

aristocracy; and they are precisely the means by which an individual

people attains to a predominant position.

If, on the contrary, we observe the natural defects of aristocracy,

we shall find that their influence is comparatively innoxious in the

direction of the external affairs of a State. The capital fault of which

aristocratic bodies may be accused is that they are more apt to contrive

their own advantage than that of the mass of the people. In foreign

politics it is rare for the interest of the aristocracy to be in any way

distinct from that of the people.

The propensity which democracies have to obey the impulse of passion

rather than the suggestions of prudence, and to abandon a mature design

for the gratification of a momentary caprice, was very clearly seen in

America on the breaking out of the French Revolution. It was then as

evident to the simplest capacity as it is at the present time that the

interest of the Americans forbade them to take any part in the contest

which was about to deluge Europe with blood, but which could by no means

injure the welfare of their own country. Nevertheless the sympathies of

the people declared themselves with so much violence in behalf of France

that nothing but the inflexible character of Washington, and the immense

popularity which he enjoyed, could have prevented the Americans from

declaring war against England. And even then, the exertions which

the austere reason of that great man made to repress the generous but

imprudent passions of his fellow-citizens, very nearly deprived him of

the sole recompense which he had ever claimed--that of his country's

love. The majority then reprobated the line of policy which he adopted,

and which has since been unanimously approved by the nation. *s If the

Constitution and the favor of the public had not entrusted the direction

of the foreign affairs of the country to Washington, it is certain that

the American nation would at that time have taken the very measures

which it now condemns.

[Footnote s: See the fifth volume of Marshall's "Life of Washington." In

a government constituted like that of the United States, he says,

"it is impossible for the chief magistrate, however firm he may be, to

oppose for any length of time the torrent of popular opinion; and the

prevalent opinion of that day seemed to incline to war. In fact, in

the session of Congress held at the time, it was frequently seen that

Washington had lost the majority in the House of Representatives." The

violence of the language used against him in public was extreme, and in

a political meeting they did not scruple to compare him indirectly to

the treacherous Arnold. "By the opposition," says Marshall, "the friends

of the administration were declared to be an aristocratic and corrupt

faction, who, from a desire to introduce monarchy, were hostile to

France and under the influence of Britain; that they were a paper

nobility, whose extreme sensibility at every measure which threatened

the funds, induced a tame submission to injuries and insults, which the

interests and honor of the nation required them to resist."]

Almost all the nations which have ever exercised a powerful influence

upon the destinies of the world by conceiving, following up, and

executing vast designs--from the Romans to the English--have been

governed by aristocratic institutions. Nor will this be a subject of

wonder when we recollect that nothing in the world has so absolute a

fixity of purpose as an aristocracy. The mass of the people may be led

astray by ignorance or passion; the mind of a king may be biased, and

his perseverance in his designs may be shaken--besides which a king is

not immortal--but an aristocratic body is too numerous to be led astray

by the blandishments of intrigue, and yet not numerous enough to yield

readily to the intoxicating influence of unreflecting passion: it has

the energy of a firm and enlightened individual, added to the power

which it derives from perpetuity.

Chapter XIV: Advantages American Society Derive From Democracy--Part I

What The Real Advantages Are Which American Society Derives From The

Government Of The Democracy

Before I enter upon the subject of the present chapter I am induced

to remind the reader of what I have more than once adverted to in the

course of this book. The political institutions of the United States

appear to me to be one of the forms of government which a democracy may

adopt; but I do not regard the American Constitution as the best, or as

the only one, which a democratic people may establish. In showing the

advantages which the Americans derive from the government of democracy,

I am therefore very far from meaning, or from believing, that similar

advantages can only be obtained from the same laws.

General Tendency Of The Laws Under The Rule Of The American Democracy,

And Habits Of Those Who Apply Them

Defects of a democratic government easy to be discovered--Its advantages

only to be discerned by long observation--Democracy in America often

inexpert, but the general tendency of the laws advantageous--In the

American democracy public officers have no permanent interests distinct

from those of the majority--Result of this state of things.

The defects and the weaknesses of a democratic government may very

readily be discovered; they are demonstrated by the most flagrant

instances, whilst its beneficial influence is less perceptibly

exercised. A single glance suffices to detect its evil consequences, but

its good qualities can only be discerned by long observation. The laws

of the American democracy are frequently defective or incomplete; they

sometimes attack vested rights, or give a sanction to others which are

dangerous to the community; but even if they were good, the frequent

changes which they undergo would be an evil. How comes it, then, that

the American republics prosper and maintain their position?

In the consideration of laws a distinction must be carefully observed

between the end at which they aim and the means by which they are

directed to that end, between their absolute and their relative

excellence. If it be the intention of the legislator to favor the

interests of the minority at the expense of the majority, and if the

measures he takes are so combined as to accomplish the object he has in

view with the least possible expense of time and exertion, the law may

be well drawn up, although its purpose be bad; and the more efficacious

it is, the greater is the mischief which it causes.

Democratic laws generally tend to promote the welfare of the greatest

possible number; for they emanate from the majority of the citizens, who

are subject to error, but who cannot have an interest opposed to their

own advantage. The laws of an aristocracy tend, on the contrary, to

concentrate wealth and power in the hands of the minority, because

an aristocracy, by its very nature, constitutes a minority. It may

therefore be asserted, as a general proposition, that the purpose of

a democracy in the conduct of its legislation is useful to a greater

number of citizens than that of an aristocracy. This is, however, the

sum total of its advantages.

Aristocracies are infinitely more expert in the science of legislation

than democracies ever can be. They are possessed of a self-control which

protects them from the errors of temporary excitement, and they form

lasting designs which they mature with the assistance of favorable

opportunities. Aristocratic government proceeds with the dexterity of

art; it understands how to make the collective force of all its laws

converge at the same time to a given point. Such is not the case with

democracies, whose laws are almost always ineffective or inopportune.

The means of democracy are therefore more imperfect than those of

aristocracy, and the measures which it unwittingly adopts are frequently

opposed to its own cause; but the object it has in view is more useful.

Let us now imagine a community so organized by nature, or by its

constitution, that it can support the transitory action of bad laws,

and that it can await, without destruction, the general tendency of

the legislation: we shall then be able to conceive that a democratic

government, notwithstanding its defects, will be most fitted to conduce

to the prosperity of this community. This is precisely what has occurred

in the United States; and I repeat, what I have before remarked, that

the great advantage of the Americans consists in their being able to

commit faults which they may afterward repair.

An analogous observation may be made respecting public officers. It

is easy to perceive that the American democracy frequently errs in

the choice of the individuals to whom it entrusts the power of the

administration; but it is more difficult to say why the State prospers

under their rule. In the first place it is to be remarked, that if in a

democratic State the governors have less honesty and less capacity than

elsewhere, the governed, on the other hand, are more enlightened and

more attentive to their interests. As the people in democracies is more

incessantly vigilant in its affairs and more jealous of its rights,

it prevents its representatives from abandoning that general line of

conduct which its own interest prescribes. In the second place, it must

be remembered that if the democratic magistrate is more apt to misuse

his power, he possesses it for a shorter period of time. But there is

yet another reason which is still more general and conclusive. It is

no doubt of importance to the welfare of nations that they should be

governed by men of talents and virtue; but it is perhaps still more

important that the interests of those men should not differ from the

interests of the community at large; for, if such were the case, virtues

of a high order might become useless, and talents might be turned to

a bad account. I say that it is important that the interests of the

persons in authority should not conflict with or oppose the interests of

the community at large; but I do not insist upon their having the same

interests as the whole population, because I am not aware that such a

state of things ever existed in any country.

No political form has hitherto been discovered which is equally

favorable to the prosperity and the development of all the classes into

which society is divided. These classes continue to form, as it were,

a certain number of distinct nations in the same nation; and experience

has shown that it is no less dangerous to place the fate of these

classes exclusively in the hands of any one of them than it is to make

one people the arbiter of the destiny of another. When the rich alone

govern, the interest of the poor is always endangered; and when the poor

make the laws, that of the rich incurs very serious risks. The advantage

of democracy does not consist, therefore, as has sometimes been

asserted, in favoring the prosperity of all, but simply in contributing

to the well-being of the greatest possible number.

The men who are entrusted with the direction of public affairs in the

United States are frequently inferior, both in point of capacity and of

morality, to those whom aristocratic institutions would raise to

power. But their interest is identified and confounded with that of the

majority of their fellow-citizens. They may frequently be faithless and

frequently mistaken, but they will never systematically adopt a line of

conduct opposed to the will of the majority; and it is impossible that

they should give a dangerous or an exclusive tendency to the government.

The mal-administration of a democratic magistrate is a mere isolated

fact, which only occurs during the short period for which he is elected.

Corruption and incapacity do not act as common interests, which may

connect men permanently with one another. A corrupt or an incapable

magistrate will not concert his measures with another magistrate, simply

because that individual is as corrupt and as incapable as himself; and

these two men will never unite their endeavors to promote the corruption

and inaptitude of their remote posterity. The ambition and the

manoeuvres of the one will serve, on the contrary, to unmask the other.

The vices of a magistrate, in democratic states, are usually peculiar to

his own person.

But under aristocratic governments public men are swayed by the interest

of their order, which, if it is sometimes confounded with the interests

of the majority, is very frequently distinct from them. This interest is

the common and lasting bond which unites them together; it induces them

to coalesce, and to combine their efforts in order to attain an end

which does not always ensure the greatest happiness of the greatest

number; and it serves not only to connect the persons in authority,

but to unite them to a considerable portion of the community, since

a numerous body of citizens belongs to the aristocracy, without being

invested with official functions. The aristocratic magistrate is

therefore constantly supported by a portion of the community, as well as

by the Government of which he is a member.

The common purpose which connects the interest of the magistrates in

aristocracies with that of a portion of their contemporaries identifies

it with that of future generations; their influence belongs to the

future as much as to the present. The aristocratic magistrate is urged

at the same time toward the same point by the passions of the community,

by his own, and I may almost add by those of his posterity. Is it, then,

wonderful that he does not resist such repeated impulses? And indeed

aristocracies are often carried away by the spirit of their order

without being corrupted by it; and they unconsciously fashion society to

their own ends, and prepare it for their own descendants.

The English aristocracy is perhaps the most liberal which ever existed,

and no body of men has ever, uninterruptedly, furnished so many

honorable and enlightened individuals to the government of a country. It

cannot, however, escape observation that in the legislation of England

the good of the poor has been sacrificed to the advantage of the

rich, and the rights of the majority to the privileges of the few. The

consequence is, that England, at the present day, combines the extremes

of fortune in the bosom of her society, and her perils and calamities

are almost equal to her power and her renown. *a

[Footnote a: [The legislation of England for the forty years is

certainly not fairly open to this criticism, which was written before

the Reform Bill of 1832, and accordingly Great Britain has thus far

escaped and surmounted the perils and calamities to which she seemed to

be exposed.]]

In the United States, where the public officers have no interests to

promote connected with their caste, the general and constant influence

of the Government is beneficial, although the individuals who conduct it

are frequently unskilful and sometimes contemptible. There is indeed a

secret tendency in democratic institutions to render the exertions

of the citizens subservient to the prosperity of the community,

notwithstanding their private vices and mistakes; whilst in aristocratic

institutions there is a secret propensity which, notwithstanding the

talents and the virtues of those who conduct the government, leads them

to contribute to the evils which oppress their fellow-creatures. In

aristocratic governments public men may frequently do injuries which

they do not intend, and in democratic states they produce advantages

which they never thought of.

Public Spirit In The United States

Patriotism of instinct--Patriotism of reflection--Their different

characteristics--Nations ought to strive to acquire the second when the

first has disappeared--Efforts of the Americans to it--Interest of the

individual intimately connected with that of the country.

There is one sort of patriotic attachment which principally arises from

that instinctive, disinterested, and undefinable feeling which connects

the affections of man with his birthplace. This natural fondness is

united to a taste for ancient customs, and to a reverence for ancestral

traditions of the past; those who cherish it love their country as they

love the mansions of their fathers. They enjoy the tranquillity which

it affords them; they cling to the peaceful habits which they have

contracted within its bosom; they are attached to the reminiscences

which it awakens, and they are even pleased by the state of obedience

in which they are placed. This patriotism is sometimes stimulated

by religious enthusiasm, and then it is capable of making the most

prodigious efforts. It is in itself a kind of religion; it does not

reason, but it acts from the impulse of faith and of sentiment. By

some nations the monarch has been regarded as a personification of the

country; and the fervor of patriotism being converted into the fervor of

loyalty, they took a sympathetic pride in his conquests, and gloried in

his power. At one time, under the ancient monarchy, the French felt a

sort of satisfaction in the sense of their dependence upon the arbitrary

pleasure of their king, and they were wont to say with pride, "We are

the subjects of the most powerful king in the world."

But, like all instinctive passions, this kind of patriotism is more apt

to prompt transient exertion than to supply the motives of continuous

endeavor. It may save the State in critical circumstances, but it will

not unfrequently allow the nation to decline in the midst of peace.

Whilst the manners of a people are simple and its faith unshaken, whilst

society is steadily based upon traditional institutions whose legitimacy

has never been contested, this instinctive patriotism is wont to endure.

But there is another species of attachment to a country which is more

rational than the one we have been describing. It is perhaps less

generous and less ardent, but it is more fruitful and more lasting; it

is coeval with the spread of knowledge, it is nurtured by the laws, it

grows by the exercise of civil rights, and, in the end, it is confounded

with the personal interest of the citizen. A man comprehends the

influence which the prosperity of his country has upon his own welfare;

he is aware that the laws authorize him to contribute his assistance

to that prosperity, and he labors to promote it as a portion of his

interest in the first place, and as a portion of his right in the

second.

But epochs sometimes occur, in the course of the existence of a nation,

at which the ancient customs of a people are changed, public morality

destroyed, religious belief disturbed, and the spell of tradition

broken, whilst the diffusion of knowledge is yet imperfect, and the

civil rights of the community are ill secured, or confined within very

narrow limits. The country then assumes a dim and dubious shape in the

eyes of the citizens; they no longer behold it in the soil which they

inhabit, for that soil is to them a dull inanimate clod; nor in the

usages of their forefathers, which they have been taught to look upon

as a debasing yoke; nor in religion, for of that they doubt; nor in

the laws, which do not originate in their own authority; nor in the

legislator, whom they fear and despise. The country is lost to their

senses, they can neither discover it under its own nor under borrowed

features, and they entrench themselves within the dull precincts of

a narrow egotism. They are emancipated from prejudice without having

acknowledged the empire of reason; they are neither animated by the

instinctive patriotism of monarchical subjects nor by the thinking

patriotism of republican citizens; but they have stopped halfway between

the two, in the midst of confusion and of distress.

In this predicament, to retreat is impossible; for a people cannot

restore the vivacity of its earlier times, any more than a man can

return to the innocence and the bloom of childhood; such things may

be regretted, but they cannot be renewed. The only thing, then, which

remains to be done is to proceed, and to accelerate the union of private

with public interests, since the period of disinterested patriotism is

gone by forever.

I am certainly very far from averring that, in order to obtain this

result, the exercise of political rights should be immediately granted

to all the members of the community. But I maintain that the most

powerful, and perhaps the only, means of interesting men in the welfare

of their country which we still possess is to make them partakers in the

Government. At the present time civic zeal seems to me to be inseparable

from the exercise of political rights; and I hold that the number of

citizens will be found to augment or to decrease in Europe in proportion

as those rights are extended.

In the United States the inhabitants were thrown but as yesterday upon

the soil which they now occupy, and they brought neither customs nor

traditions with them there; they meet each other for the first time

with no previous acquaintance; in short, the instinctive love of their

country can scarcely exist in their minds; but everyone takes as zealous

an interest in the affairs of his township, his county, and of the whole

State, as if they were his own, because everyone, in his sphere, takes

an active part in the government of society.

The lower orders in the United States are alive to the perception of the

influence exercised by the general prosperity upon their own welfare;

and simple as this observation is, it is one which is but too rarely

made by the people. But in America the people regards this prosperity as

the result of its own exertions; the citizen looks upon the fortune of

the public as his private interest, and he co-operates in its success,

not so much from a sense of pride or of duty, as from what I shall

venture to term cupidity.

It is unnecessary to study the institutions and the history of the

Americans in order to discover the truth of this remark, for their

manners render it sufficiently evident. As the American participates

in all that is done in his country, he thinks himself obliged to defend

whatever may be censured; for it is not only his country which is

attacked upon these occasions, but it is himself. The consequence is,

that his national pride resorts to a thousand artifices, and to all the

petty tricks of individual vanity.

Nothing is more embarrassing in the ordinary intercourse of life than

this irritable patriotism of the Americans. A stranger may be very well

inclined to praise many of the institutions of their country, but he

begs permission to blame some of the peculiarities which he observes--a

permission which is, however, inexorably refused. America is therefore a

free country, in which, lest anybody should be hurt by your remarks, you

are not allowed to speak freely of private individuals, or of the

State, of the citizens or of the authorities, of public or of private

undertakings, or, in short, of anything at all, except it be of the

climate and the soil; and even then Americans will be found ready to

defend either the one or the other, as if they had been contrived by the

inhabitants of the country.

In our times option must be made between the patriotism of all and the

government of a few; for the force and activity which the first confers

are irreconcilable with the guarantees of tranquillity which the second

furnishes.

Notion Of Rights In The United States

No great people without a notion of rights--How the notion of rights can

be given to people--Respect of rights in the United States--Whence it

arises.

After the idea of virtue, I know no higher principle than that of right;

or, to speak more accurately, these two ideas are commingled in one.

The idea of right is simply that of virtue introduced into the political

world. It is the idea of right which enabled men to define anarchy and

tyranny; and which taught them to remain independent without arrogance,

as well as to obey without servility. The man who submits to violence

is debased by his compliance; but when he obeys the mandate of one

who possesses that right of authority which he acknowledges in a

fellow-creature, he rises in some measure above the person who delivers

the command. There are no great men without virtue, and there are

no great nations--it may almost be added that there would be no

society--without the notion of rights; for what is the condition of a

mass of rational and intelligent beings who are only united together by

the bond of force?

I am persuaded that the only means which we possess at the present time

of inculcating the notion of rights, and of rendering it, as it were,

palpable to the senses, is to invest all the members of the community

with the peaceful exercise of certain rights: this is very clearly seen

in children, who are men without the strength and the experience of

manhood. When a child begins to move in the midst of the objects which

surround him, he is instinctively led to turn everything which he can

lay his hands upon to his own purposes; he has no notion of the property

of others; but as he gradually learns the value of things, and begins

to perceive that he may in his turn be deprived of his possessions, he

becomes more circumspect, and he observes those rights in others which

he wishes to have respected in himself. The principle which the child

derives from the possession of his toys is taught to the man by the

objects which he may call his own. In America those complaints against

property in general which are so frequent in Europe are never heard,

because in America there are no paupers; and as everyone has property of

his own to defend, everyone recognizes the principle upon which he holds

it.

The same thing occurs in the political world. In America the lowest

classes have conceived a very high notion of political rights, because

they exercise those rights; and they refrain from attacking those of

other people, in order to ensure their own from attack. Whilst in Europe

the same classes sometimes recalcitrate even against the supreme power,

the American submits without a murmur to the authority of the pettiest

magistrate.

This truth is exemplified by the most trivial details of national

peculiarities. In France very few pleasures are exclusively reserved

for the higher classes; the poor are admitted wherever the rich are

received, and they consequently behave with propriety, and respect

whatever contributes to the enjoyments in which they themselves

participate. In England, where wealth has a monopoly of amusement as

well as of power, complaints are made that whenever the poor happen to

steal into the enclosures which are reserved for the pleasures of the

rich, they commit acts of wanton mischief: can this be wondered at,

since care has been taken that they should have nothing to lose? *b

[Footnote b: [This, too, has been amended by much larger provisions for

the amusements of the people in public parks, gardens, museums, etc.;

and the conduct of the people in these places of amusement has improved

in the same proportion.]]

The government of democracy brings the notion of political rights to

the level of the humblest citizens, just as the dissemination of wealth

brings the notion of property within the reach of all the members of the

community; and I confess that, to my mind, this is one of its greatest

advantages. I do not assert that it is easy to teach men to exercise

political rights; but I maintain that, when it is possible, the effects

which result from it are highly important; and I add that, if there ever

was a time at which such an attempt ought to be made, that time is our

own. It is clear that the influence of religious belief is shaken, and

that the notion of divine rights is declining; it is evident that

public morality is vitiated, and the notion of moral rights is also

disappearing: these are general symptoms of the substitution of argument

for faith, and of calculation for the impulses of sentiment. If, in the

midst of this general disruption, you do not succeed in connecting

the notion of rights with that of personal interest, which is the

only immutable point in the human heart, what means will you have of

governing the world except by fear? When I am told that, since the laws

are weak and the populace is wild, since passions are excited and the

authority of virtue is paralyzed, no measures must be taken to increase

the rights of the democracy, I reply, that it is for these very reasons

that some measures of the kind must be taken; and I am persuaded that

governments are still more interested in taking them than society at

large, because governments are liable to be destroyed and society cannot

perish.

I am not, however, inclined to exaggerate the example which America

furnishes. In those States the people are invested with political rights

at a time when they could scarcely be abused, for the citizens were

few in number and simple in their manners. As they have increased, the

Americans have not augmented the power of the democracy, but they

have, if I may use the expression, extended its dominions. It cannot

be doubted that the moment at which political rights are granted to a

people that had before been without them is a very critical, though it

be a necessary one. A child may kill before he is aware of the value

of life; and he may deprive another person of his property before he is

aware that his own may be taken away from him. The lower orders, when

first they are invested with political rights, stand, in relation to

those rights, in the same position as the child does to the whole of

nature, and the celebrated adage may then be applied to them, Homo puer

robustus. This truth may even be perceived in America. The States in

which the citizens have enjoyed their rights longest are those in which

they make the best use of them.

It cannot be repeated too often that nothing is more fertile in

prodigies than the art of being free; but there is nothing more arduous

than the apprenticeship of liberty. Such is not the case with despotic

institutions: despotism often promises to make amends for a thousand

previous ills; it supports the right, it protects the oppressed, and it

maintains public order. The nation is lulled by the temporary prosperity

which accrues to it, until it is roused to a sense of its own misery.

Liberty, on the contrary, is generally established in the midst of

agitation, it is perfected by civil discord, and its benefits cannot be

appreciated until it is already old.

Chapter XIV: Advantages American Society Derive From Democracy--Part II

Respect For The Law In The United States

Respect of the Americans for the law--Parental affection which they

entertain for it--Personal interest of everyone to increase the

authority of the law.

It is not always feasible to consult the whole people, either directly

or indirectly, in the formation of the law; but it cannot be denied

that, when such a measure is possible the authority of the law is very

much augmented. This popular origin, which impairs the excellence and

the wisdom of legislation, contributes prodigiously to increase

its power. There is an amazing strength in the expression of the

determination of a whole people, and when it declares itself the

imagination of those who are most inclined to contest it is overawed by

its authority. The truth of this fact is very well known by parties, and

they consequently strive to make out a majority whenever they can. If

they have not the greater number of voters on their side, they assert

that the true majority abstained from voting; and if they are foiled

even there, they have recourse to the body of those persons who had no

votes to give.

In the United States, except slaves, servants, and paupers in the

receipt of relief from the townships, there is no class of persons

who do not exercise the elective franchise, and who do not indirectly

contribute to make the laws. Those who design to attack the laws must

consequently either modify the opinion of the nation or trample upon its

decision.

A second reason, which is still more weighty, may be further adduced;

in the United States everyone is personally interested in enforcing the

obedience of the whole community to the law; for as the minority may

shortly rally the majority to its principles, it is interested in

professing that respect for the decrees of the legislator which it may

soon have occasion to claim for its own. However irksome an enactment

may be, the citizen of the United States complies with it, not only

because it is the work of the majority, but because it originates in his

own authority, and he regards it as a contract to which he is himself a

party.

In the United States, then, that numerous and turbulent multitude does

not exist which always looks upon the law as its natural enemy, and

accordingly surveys it with fear and with fear and with distrust. It is

impossible, on the other hand, not to perceive that all classes display

the utmost reliance upon the legislation of their country, and that they

are attached to it by a kind of parental affection.

I am wrong, however, in saying all classes; for as in America the

European scale of authority is inverted, the wealthy are there placed in

a position analogous to that of the poor in the Old World, and it is

the opulent classes which frequently look upon the law with suspicion.

I have already observed that the advantage of democracy is not, as has

been sometimes asserted, that it protects the interests of the whole

community, but simply that it protects those of the majority. In the

United States, where the poor rule, the rich have always some reason to

dread the abuses of their power. This natural anxiety of the rich may

produce a sullen dissatisfaction, but society is not disturbed by it;

for the same reason which induces the rich to withhold their confidence

in the legislative authority makes them obey its mandates; their wealth,

which prevents them from making the law, prevents them from withstanding

it. Amongst civilized nations revolts are rarely excited, except by such

persons as have nothing to lose by them; and if the laws of a democracy

are not always worthy of respect, at least they always obtain it; for

those who usually infringe the laws have no excuse for not complying

with the enactments they have themselves made, and by which they are

themselves benefited, whilst the citizens whose interests might be

promoted by the infraction of them are induced, by their character and

their stations, to submit to the decisions of the legislature, whatever

they may be. Besides which, the people in America obeys the law not

only because it emanates from the popular authority, but because that

authority may modify it in any points which may prove vexatory; a law

is observed because it is a self-imposed evil in the first place, and an

evil of transient duration in the second.

Activity Which Pervades All The Branches Of The Body Politic In The

United States; Influence Which It Exercises Upon Society

More difficult to conceive the political activity which pervades the

United States than the freedom and equality which reign there--The great

activity which perpetually agitates the legislative bodies is only an

episode to the general activity--Difficult for an American to confine

himself to his own business--Political agitation extends to all social

intercourse--Commercial activity of the Americans partly attributable to

this cause--Indirect advantages which society derives from a democratic

government.

On passing from a country in which free institutions are established to

one where they do not exist, the traveller is struck by the change; in

the former all is bustle and activity, in the latter everything is calm

and motionless. In the one, amelioration and progress are the general

topics of inquiry; in the other, it seems as if the community only

aspired to repose in the enjoyment of the advantages which it has

acquired. Nevertheless, the country which exerts itself so strenuously

to promote its welfare is generally more wealthy and more prosperous

than that which appears to be so contented with its lot; and when we

compare them together, we can scarcely conceive how so many new wants

are daily felt in the former, whilst so few seem to occur in the latter.

If this remark is applicable to those free countries in which

monarchical and aristocratic institutions subsist, it is still more

striking with regard to democratic republics. In these States it is not

only a portion of the people which is busied with the amelioration of

its social condition, but the whole community is engaged in the task;

and it is not the exigencies and the convenience of a single class for

which a provision is to be made, but the exigencies and the convenience

of all ranks of life.

It is not impossible to conceive the surpassing liberty which the

Americans enjoy; some idea may likewise be formed of the extreme

equality which subsists amongst them, but the political activity which

pervades the United States must be seen in order to be understood. No

sooner do you set foot upon the American soil than you are stunned by a

kind of tumult; a confused clamor is heard on every side; and a thousand

simultaneous voices demand the immediate satisfaction of their social

wants. Everything is in motion around you; here, the people of one

quarter of a town are met to decide upon the building of a church;

there, the election of a representative is going on; a little further

the delegates of a district are posting to the town in order to consult

upon some local improvements; or in another place the laborers of a

village quit their ploughs to deliberate upon the project of a road or

a public school. Meetings are called for the sole purpose of declaring

their disapprobation of the line of conduct pursued by the Government;

whilst in other assemblies the citizens salute the authorities of the

day as the fathers of their country. Societies are formed which regard

drunkenness as the principal cause of the evils under which the State

labors, and which solemnly bind themselves to give a constant example of

temperance. *c

[Footnote c: At the time of my stay in the United States the temperance

societies already consisted of more than 270,000 members, and their

effect had been to diminish the consumption of fermented liquors by

500,000 gallons per annum in the State of Pennsylvania alone.]

The great political agitation of the American legislative bodies, which

is the only kind of excitement that attracts the attention of foreign

countries, is a mere episode or a sort of continuation of that universal

movement which originates in the lowest classes of the people and

extends successively to all the ranks of society. It is impossible to

spend more efforts in the pursuit of enjoyment.

The cares of political life engross a most prominent place in the

occupation of a citizen in the United States, and almost the only

pleasure of which an American has any idea is to take a part in the

Government, and to discuss the part he has taken. This feeling pervades

the most trifling habits of life; even the women frequently attend

public meetings and listen to political harangues as a recreation

after their household labors. Debating clubs are to a certain extent a

substitute for theatrical entertainments: an American cannot converse,

but he can discuss; and when he attempts to talk he falls into a

dissertation. He speaks to you as if he was addressing a meeting; and

if he should chance to warm in the course of the discussion, he will

infallibly say, "Gentlemen," to the person with whom he is conversing.

In some countries the inhabitants display a certain repugnance to avail

themselves of the political privileges with which the law invests them;

it would seem that they set too high a value upon their time to spend

it on the interests of the community; and they prefer to withdraw within

the exact limits of a wholesome egotism, marked out by four sunk fences

and a quickset hedge. But if an American were condemned to confine

his activity to his own affairs, he would be robbed of one half of

his existence; he would feel an immense void in the life which he is

accustomed to lead, and his wretchedness would be unbearable. *d I am

persuaded that, if ever a despotic government is established in America,

it will find it more difficult to surmount the habits which free

institutions have engendered than to conquer the attachment of the

citizens to freedom.

[Footnote d: The same remark was made at Rome under the first Caesars.

Montesquieu somewhere alludes to the excessive despondency of certain

Roman citizens who, after the excitement of political life, were all at

once flung back into the stagnation of private life.]

This ceaseless agitation which democratic government has introduced into

the political world influences all social intercourse. I am not sure

that upon the whole this is not the greatest advantage of democracy. And

I am much less inclined to applaud it for what it does than for what

it causes to be done. It is incontestable that the people frequently

conducts public business very ill; but it is impossible that the lower

orders should take a part in public business without extending the

circle of their ideas, and without quitting the ordinary routine of

their mental acquirements. The humblest individual who is called upon

to co-operate in the government of society acquires a certain degree of

self-respect; and as he possesses authority, he can command the services

of minds much more enlightened than his own. He is canvassed by a

multitude of applicants, who seek to deceive him in a thousand different

ways, but who instruct him by their deceit. He takes a part in political

undertakings which did not originate in his own conception, but which

give him a taste for undertakings of the kind. New ameliorations are

daily pointed out in the property which he holds in common with others,

and this gives him the desire of improving that property which is more

peculiarly his own. He is perhaps neither happier nor better than those

who came before him, but he is better informed and more active. I have

no doubt that the democratic institutions of the United States, joined

to the physical constitution of the country, are the cause (not

the direct, as is so often asserted, but the indirect cause) of the

prodigious commercial activity of the inhabitants. It is not engendered

by the laws, but the people learns how to promote it by the experience

derived from legislation.

When the opponents of democracy assert that a single individual performs

the duties which he undertakes much better than the government of

the community, it appears to me that they are perfectly right. The

government of an individual, supposing an equality of instruction on

either side, is more consistent, more persevering, and more accurate

than that of a multitude, and it is much better qualified judiciously

to discriminate the characters of the men it employs. If any deny what I

advance, they have certainly never seen a democratic government, or have

formed their opinion upon very partial evidence. It is true that

even when local circumstances and the disposition of the people allow

democratic institutions to subsist, they never display a regular

and methodical system of government. Democratic liberty is far from

accomplishing all the projects it undertakes, with the skill of an

adroit despotism. It frequently abandons them before they have borne

their fruits, or risks them when the consequences may prove dangerous;

but in the end it produces more than any absolute government, and if it

do fewer things well, it does a greater number of things. Under its

sway the transactions of the public administration are not nearly so

important as what is done by private exertion. Democracy does not confer

the most skilful kind of government upon the people, but it produces

that which the most skilful governments are frequently unable to awaken,


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I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Storia del Pensiero Politico moderno e contemporaneo e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Roma Tre - Uniroma3 o del prof Consarelli Bruna.

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