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# Democrazia in America, vol. 1 - Tocqueville

Celebre volume di Alexis de Tocqueville "Democrazia in America", vol.1 nella versione inglese, parte del programma del corso di Storia del Pensiero Politico moderno e contemporaneo della Prof.ssa Bruna Consarelli. Al suo interno l'autore descrive ed esprime il suo giudizio sulla democrazia statunitense.

Esame di Storia del Pensiero Politico moderno e contemporaneo docente Prof. B. Consarelli

Anteprima

### ESTRATTO DOCUMENTO

own, and entertaining no expectation of ever ranking with its chiefs,

received benefits from them without discussing their rights. It grew

attached to them when they were clement and just, and it submitted

without resistance or servility to their exactions, as to the inevitable

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

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

established certain limits to oppression. As the noble never suspected

that anyone would attempt to deprive him of the privileges which

he believed to be legitimate, and as the serf looked upon his own

inferiority as a consequence of the immutable order of nature, it is

easy to imagine that a mutual exchange of good-will took place between

two classes so differently gifted by fate. Inequality and wretchedness

were then to be found in society; but the souls of neither rank of men

were degraded. Men are not corrupted by the exercise of power or debased

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

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

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

leisure, accompanied by the refinements of luxury, the elegance of

taste, the pleasures of wit, and the religion of art. On the other was

labor and a rude ignorance; but in the midst of this coarse and ignorant

multitude it was not uncommon to meet with energetic passions, generous

sentiments, profound religious convictions, and independent virtues. The

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

and, above all, of its glory.

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

divisions which once severed mankind are lowered, property is divided,

power is held in common, the light of intelligence spreads, and the

capacities of all classes are equally cultivated; the State becomes

democratic, and the empire of democracy is slowly and peaceably

introduced into the institutions and the manners of the nation. I can

conceive a society in which all men would profess an equal attachment

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

the authority of the State would be respected as necessary, though not

as divine; and the loyalty of the subject to its chief magistrate would

not be a passion, but a quiet and rational persuasion. Every individual

being in the possession of rights which he is sure to retain, a kind of

manly reliance and reciprocal courtesy would arise between all classes,

alike removed from pride and meanness. The people, well acquainted

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

advantages of society it is necessary to satisfy its demands. In this

state of things the voluntary association of the citizens might supply

the individual exertions of the nobles, and the community would be alike

protected from anarchy and from oppression.

I admit that, in a democratic State thus constituted, society will not

be stationary; but the impulses of the social body may be regulated and

directed forwards; if there be less splendor than in the halls of an

aristocracy, the contrast of misery will be less frequent also; the

pleasures of enjoyment may be less excessive, but those of comfort will

be more general; the sciences may be less perfectly cultivated, but

ignorance will be less common; the impetuosity of the feelings will be

repressed, and the habits of the nation softened; there will be more

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

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

commonwealth by an appeal to their understandings and their experience;

each individual will feel the same necessity for uniting with his

fellow-citizens to protect his own weakness; and as he knows that if

they are to assist he must co-operate, he will readily perceive that his

personal interest is identified with the interest of the community. The

nation, taken as a whole, will be less brilliant, less glorious, and

perhaps less strong; but the majority of the citizens will enjoy a

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

because it despairs of amelioration, but because it is conscious of the

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

things were not good or useful, society would at least have appropriated

all such as were useful and good; and having once and for ever

renounced the social advantages of aristocracy, mankind would enter into

possession of all the benefits which democracy can afford.

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

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

we have abandoned. The spell of royalty is broken, but it has not been

succeeded by the majesty of the laws; the people has learned to despise

all authority, but fear now extorts a larger tribute of obedience than

that which was formerly paid by reverence and by love.

I perceive that we have destroyed those independent beings which were

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

that has inherited the privileges of which families, corporations, and

individuals have been deprived; the weakness of the whole community has

therefore succeeded that influence of a small body of citizens, which,

if it was sometimes oppressive, was often conservative. The division

of property has lessened the distance which separated the rich from the

poor; but it would seem that the nearer they draw to each other, the

greater is their mutual hatred, and the more vehement the envy and the

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

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

only argument for the present, and the only guarantee for the future.

The poor man retains the prejudices of his forefathers without their

faith, and their ignorance without their virtues; he has adopted

the doctrine of self-interest as the rule of his actions, without

understanding the science which controls it, and his egotism is no less

blind than his devotedness was formerly. If society is tranquil, it is

not because it relies upon its strength and its well-being, but because

it knows its weakness and its infirmities; a single effort may cost it

its life; everybody feels the evil, but no one has courage or energy

enough to seek the cure; the desires, the regret, the sorrows, and the

joys of the time produce nothing that is visible or permanent, like the

passions of old men which terminate in impotence.

We have, then, abandoned whatever advantages the old state of things

afforded, without receiving any compensation from our present condition;

we have destroyed an aristocracy, and we seem inclined to survey its

ruins with complacency, and to fix our abode in the midst of them.

The phenomena which the intellectual world presents are not less

deplorable. The democracy of France, checked in its course or abandoned

to its lawless passions, has overthrown whatever crossed its path, and

has shaken all that it has not destroyed. Its empire on society has

not been gradually introduced or peaceably established, but it has

constantly advanced in the midst of disorder and the agitation of a

conflict. In the heat of the struggle each partisan is hurried beyond

the limits of his opinions by the opinions and the excesses of his

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

language which disguises his real sentiments or secret instincts. Hence

arises the strange confusion which we are witnessing. I cannot recall to

my mind a passage in history more worthy of sorrow and of pity than the

scenes which are happening under our eyes; it is as if the natural bond

which unites the opinions of man to his tastes and his actions to

his principles was now broken; the sympathy which has always been

acknowledged between the feelings and the ideas of mankind appears to

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

the laws of moral analogy to be abolished.

Zealous Christians may be found amongst us whose minds are nurtured in

the love and knowledge of a future life, and who readily espouse

the cause of human liberty as the source of all moral greatness.

Christianity, which has declared that all men are equal in the sight of

God, will not refuse to acknowledge that all citizens are equal in the

eye of the law. But, by a singular concourse of events, religion is

entangled in those institutions which democracy assails, and it is not

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

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

By the side of these religious men I discern others whose looks are

turned to the earth more than to Heaven; they are the partisans of

liberty, not only as the source of the noblest virtues, but more

especially as the root of all solid advantages; and they sincerely

desire to extend its sway, and to impart its blessings to mankind. It

is natural that they should hasten to invoke the assistance of religion,

for they must know that liberty cannot be established without morality,

nor morality without faith; but they have seen religion in the ranks of

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

openly, and the remainder are afraid to defend it.

In former ages slavery has been advocated by the venal and

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

struggling without hope to save the liberties of mankind. But men of

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

at variance with their inclinations, and who praise that servility which

they have themselves never known. Others, on the contrary, speak in

the name of liberty, as if they were able to feel its sanctity and its

majesty, and loudly claim for humanity those rights which they have

always disowned. There are virtuous and peaceful individuals whose

pure morality, quiet habits, affluence, and talents fit them to be the

leaders of the surrounding population; their love of their country is

sincere, and they are prepared to make the greatest sacrifices to its

welfare, but they confound the abuses of civilization with its benefits,

and the idea of evil is inseparable in their minds from that of novelty.

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

mankind, to hit upon what is expedient without heeding what is just,

to acquire knowledge without faith, and prosperity apart from virtue;

assuming the title of the champions of modern civilization, and placing

themselves in a station which they usurp with insolence, and from

which they are driven by their own unworthiness. Where are we then?

The religionists are the enemies of liberty, and the friends of liberty

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

and the meanest and most servile minds preach independence; honest and

enlightened citizens are opposed to all progress, whilst men without

patriotism and without principles are the apostles of civilization and

of intelligence. Has such been the fate of the centuries which have

preceded our own? and has man always inhabited a world like the present,

where nothing is linked together, where virtue is without genius, and

genius without honor; where the love of order is confounded with a taste

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

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

where nothing seems to be any longer forbidden or allowed, honorable

or shameful, false or true? I cannot, however, believe that the Creator

made man to leave him in an endless struggle with the intellectual

miseries which surround us: God destines a calmer and a more certain

future to the communities of Europe; I am unacquainted with His designs,

but I shall not cease to believe in them because I cannot fathom them,

and I had rather mistrust my own capacity than His justice.

There is a country in the world where the great revolution which I am

speaking of seems nearly to have reached its natural limits; it has

been effected with ease and simplicity, say rather that this country

has attained the consequences of the democratic revolution which we

are undergoing without having experienced the revolution itself. The

emigrants who fixed themselves on the shores of America in the beginning

of the seventeenth century severed the democratic principle from all

the principles which repressed it in the old communities of Europe, and

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

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

by influencing the manners of the country.

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

like the Americans, at an almost complete equality of conditions. But I

do not conclude from this that we shall ever be necessarily led to draw

the same political consequences which the Americans have derived from

a similar social organization. I am far from supposing that they have

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

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

is sufficient to account for the immense interest we have in becoming

acquainted with its effects in each of them.

It is not, then, merely to satisfy a legitimate curiosity that I have

examined America; my wish has been to find instruction by which we may

ourselves profit. Whoever should imagine that I have intended to write a

panegyric will perceive that such was not my design; nor has it been

my object to advocate any form of government in particular, for I am

of opinion that absolute excellence is rarely to be found in any

legislation; I have not even affected to discuss whether the social

revolution, which I believe to be irresistible, is advantageous or

prejudicial to mankind; I have acknowledged this revolution as a fact

already accomplished or on the eve of its accomplishment; and I have

selected the nation, from amongst those which have undergone it, in

which its development has been the most peaceful and the most complete,

in order to discern its natural consequences, and, if it be possible, to

distinguish the means by which it may be rendered profitable. I confess

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

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

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

progress.

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

given to the laws by the democracy of America, which is abandoned almost

without restraint to its instinctive propensities, and to exhibit the

course it prescribes to the Government and the influence it exercises on

affairs. I have sought to discover the evils and the advantages which

it produces. I have examined the precautions used by the Americans to

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

undertaken to point out the causes which enable it to govern society.

I do not know whether I have succeeded in making known what I saw in

America, but I am certain that such has been my sincere desire, and that

I have never, knowingly, moulded facts to ideas, instead of ideas to

facts.

Whenever a point could be established by the aid of written documents,

I have had recourse to the original text, and to the most authentic and

approved works. I have cited my authorities in the notes, and anyone may

refer to them. Whenever an opinion, a political custom, or a remark on

the manners of the country was concerned, I endeavored to consult the

most enlightened men I met with. If the point in question was important

or doubtful, I was not satisfied with one testimony, but I formed my

opinion on the evidence of several witnesses. Here the reader must

necessarily believe me upon my word. I could frequently have quoted names

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

what I advance; but I have carefully abstained from this practice. A

stranger frequently hears important truths at the fire-side of his host,

which the latter would perhaps conceal from the ear of friendship;

he consoles himself with his guest for the silence to which he is

restricted, and the shortness of the traveller's stay takes away all

fear of his indiscretion. I carefully noted every conversation of this

nature as soon as it occurred, but these notes will never leave my

writing-case; I had rather injure the success of my statements than

add my name to the list of those strangers who repay the generous

hospitality they have received by subsequent chagrin and annoyance.

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

to criticise this book, if anyone ever chooses to criticise it. Those

readers who may examine it closely will discover the fundamental idea

which connects the several parts together. But the diversity of the

subjects I have had to treat is exceedingly great, and it will not be

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

or an isolated idea to the body of ideas I put forth. I hope to be read

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

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

not on any single reason, but upon the mass of evidence. It must not be

forgotten that the author who wishes to be understood is obliged to push

all his ideas to their utmost theoretical consequences, and often to

the verge of what is false or impracticable; for if it be necessary

sometimes to quit the rules of logic in active life, such is not the

case in discourse, and a man finds that almost as many difficulties

spring from inconsistency of language as usually arise from

inconsistency of conduct.

I conclude by pointing out myself what many readers will consider

the principal defect of the work. This book is written to favor no

particular views, and in composing it I have entertained no designs

of serving or attacking any party; I have undertaken not to see

differently, but to look further than parties, and whilst they are

busied for the morrow I have turned my thoughts to the Future.

Chapter I: Exterior Form Of North America

Chapter Summary

North America divided into two vast regions, one inclining towards the

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

of the Revolutions of the Globe--Shore of the Atlantic Ocean where the

English Colonies were founded--Difference in the appearance of North

and of South America at the time of their Discovery--Forests of

North America--Prairies--Wandering Tribes of Natives--Their outward

appearance, manners, and language--Traces of an unknown people.

Exterior Form Of North America

North America presents in its external form certain general features

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

methodical order seems to have regulated the separation of land and

water, mountains and valleys. A simple, but grand, arrangement is

discoverable amidst the confusion of objects and the prodigious variety

of scenes. This continent is divided, almost equally, into two vast

regions, one of which is bounded on the north by the Arctic Pole, and

by the two great oceans on the east and west. It stretches towards the

south, forming a triangle whose irregular sides meet at length below

the great lakes of Canada. The second region begins where the other

terminates, and includes all the remainder of the continent. The one

slopes gently towards the Pole, the other towards the Equator.

The territory comprehended in the first region descends towards the

north with so imperceptible a slope that it may almost be said to form

a level plain. Within the bounds of this immense tract of country there

are neither high mountains nor deep valleys. Streams meander through it

irregularly: great rivers mix their currents, separate and meet again,

disperse and form vast marshes, losing all trace of their channels

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

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

lakes which bound this first region are not walled in, like most of

those in the Old World, between hills and rocks. Their banks are flat,

and rise but a few feet above the level of their waters; each of them

thus forming a vast bowl filled to the brim. The slightest change in the

structure of the globe would cause their waters to rush either towards

the Pole or to the tropical sea.

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

the habitation of man. Two long chains of mountains divide it from one

extreme to the other; the Alleghany ridge takes the form of the shores

of the Atlantic Ocean; the other is parallel with the Pacific. The space

which lies between these two chains of mountains contains 1,341,649

square miles. *a Its surface is therefore about six times as great as

that of France. This vast territory, however, forms a single valley,

one side of which descends gradually from the rounded summits of the

Alleghanies, while the other rises in an uninterrupted course towards

the tops of the Rocky Mountains. At the bottom of the valley flows an

immense river, into which the various streams issuing from the mountains

fall from all parts. In memory of their native land, the French formerly

called this river the St. Louis. The Indians, in their pompous language,

have named it the Father of Waters, or the Mississippi.

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

The Mississippi takes its source above the limit of the two great

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

table-land where they unite. Near the same spot rises another river, *b

which empties itself into the Polar seas. The course of the Mississippi

is at first dubious: it winds several times towards the north, from

whence it rose; and at length, after having been delayed in lakes and

marshes, it flows slowly onwards to the south. Sometimes quietly gliding

along the argillaceous bed which nature has assigned to it, sometimes

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

*c At the distance of 1,364 miles from its mouth this river attains an

average depth of fifteen feet; and it is navigated by vessels of

300 tons burden for a course of nearly 500 miles. Fifty-seven large

navigable rivers contribute to swell the waters of the Mississippi;

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

the Arkansas of 1,300 miles, the Red River 1,000 miles, four whose

course is from 800 to 1,000 miles in length, viz., the Illinois, the

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

multitude of rivulets which unite from all parts their tributary

streams.

[Footnote b: The Red River.]

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

The valley which is watered by the Mississippi seems formed to be the

bed of this mighty river, which, like a god of antiquity, dispenses both

good and evil in its course. On the shores of the stream nature displays

an inexhaustible fertility; in proportion as you recede from its banks,

the powers of vegetation languish, the soil becomes poor, and the plants

that survive have a sickly growth. Nowhere have the great convulsions

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

Mississippi; the whole aspect of the country shows the powerful effects

of water, both by its fertility and by its barrenness. The waters of

the primeval ocean accumulated enormous beds of vegetable mould in the

valley, which they levelled as they retired. Upon the right shore of the

river are seen immense plains, as smooth as if the husbandman had

passed over them with his roller. As you approach the mountains the soil

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

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

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

earth is covered with a granite sand and huge irregular masses of stone,

among which a few plants force their growth, and give the appearance of

a green field covered with the ruins of a vast edifice. These stones and

this sand discover, on examination, a perfect analogy with those which

compose the arid and broken summits of the Rocky Mountains. The flood

of waters which washed the soil to the bottom of the valley afterwards

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

bruised against the neighboring cliffs, were left scattered like wrecks

at their feet. *d The valley of the Mississippi is, upon the whole, the

most magnificent dwelling-place prepared by God for man's abode; and yet

it may be said that at present it is but a mighty desert.

[Footnote d: See Appendix, A.]

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

mountains and the Atlantic Ocean, there lies a long ridge of rocks and

sand, which the sea appears to have left behind as it retired. The mean

breadth of this territory does not exceed one hundred miles; but it is

about nine hundred miles in length. This part of the American continent

has a soil which offers every obstacle to the husbandman, and its

vegetation is scanty and unvaried.

Upon this inhospitable coast the first united efforts of human industry

were made. The tongue of arid land was the cradle of those English

colonies which were destined one day to become the United States of

America. The centre of power still remains here; whilst in the backwoods

the true elements of the great people to whom the future control of the

continent belongs are gathering almost in secrecy together.

When the Europeans first landed on the shores of the West Indies,

and afterwards on the coast of South America, they thought themselves

transported into those fabulous regions of which poets had sung. The sea

sparkled with phosphoric light, and the extraordinary transparency of

its waters discovered to the view of the navigator all that had hitherto

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

perfumed with odoriferous plants, and resembling baskets of flowers

floating on the tranquil surface of the ocean. Every object which met

the sight, in this enchanting region, seemed prepared to satisfy the

wants or contribute to the pleasures of man. Almost all the trees were

loaded with nourishing fruits, and those which were useless as food

delighted the eye by the brilliancy and variety of their colors. In

groves of fragrant lemon-trees, wild figs, flowering myrtles, acacias,

and oleanders, which were hung with festoons of various climbing plants,

covered with flowers, a multitude of birds unknown in Europe displayed

their bright plumage, glittering with purple and azure, and mingled

their warbling with the harmony of a world teeming with life and motion.

*f Underneath this brilliant exterior death was concealed. But the air

of these climates had so enervating an influence that man, absorbed by

present enjoyment, was rendered regardless of the future.

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

Caribbean Sea is so transparent that corals and fish are discernible at

a depth of sixty fathoms. The ship seemed to float in air, the navigator

became giddy as his eye penetrated through the crystal flood, and beheld

submarine gardens, or beds of shells, or gilded fishes gliding among

tufts and thickets of seaweed.]

[Footnote f: See Appendix, B.]

North America appeared under a very different aspect; there everything

was grave, serious, and solemn: it seemed created to be the domain of

intelligence, as the South was that of sensual delight. A turbulent and

foggy ocean washed its shores. It was girt round by a belt of granite

rocks, or by wide tracts of sand. The foliage of its woods was dark and

gloomy, for they were composed of firs, larches, evergreen oaks, wild

olive-trees, and laurels. Beyond this outer belt lay the thick shades

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

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

sugar-maple, and the Virginian poplar mingled their branches with those

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

Old World, destruction was perpetually going on. The ruins of vegetation

were heaped upon each other; but there was no laboring hand to remove

them, and their decay was not rapid enough to make room for the

continual work of reproduction. Climbing plants, grasses, and other

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

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

a passage beneath the lifeless bark. Thus decay gave its assistance to

life, and their respective productions were mingled together. The depths

of these forests were gloomy and obscure, and a thousand rivulets,

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

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

birds beneath their shades. The fall of a tree overthrown by age,

the rushing torrent of a cataract, the lowing of the buffalo, and the

howling of the wind were the only sounds which broke the silence of

nature.

To the east of the great river, the woods almost disappeared; in their

stead were seen prairies of immense extent. Whether Nature in her

infinite variety had denied the germs of trees to these fertile plains,

or whether they had once been covered with forests, subsequently

destroyed by the hand of man, is a question which neither tradition nor

scientific research has been able to resolve.

These immense deserts were not, however, devoid of human inhabitants.

Some wandering tribes had been for ages scattered among the forest

shades or the green pastures of the prairie. From the mouth of the St.

Lawrence to the delta of the Mississippi, and from the Atlantic to the

Pacific Ocean, these savages possessed certain points of resemblance

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

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

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

the negroes. Their skin was reddish brown, their hair long and shining,

their lips thin, and their cheekbones very prominent. The languages

spoken by the North American tribes are various as far as regarded their

words, but they were subject to the same grammatical rules. These rules

differed in several points from such as had been observed to govern the

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

of new combinations, and bespoke an effort of the understanding of which

the Indians of our days would be incapable. *h

[Footnote g: With the progress of discovery some resemblance has been

found to exist between the physical conformation, the language, and

the habits of the Indians of North America, and those of the Tongous,

Mantchous, Mongols, Tartars, and other wandering tribes of Asia. The

land occupied by these tribes is not very distant from Behring's Strait,

which allows of the supposition, that at a remote period they gave

inhabitants to the desert continent of America. But this is a point

which has not yet been clearly elucidated by science. See Malte Brun,

vol. v.; the works of Humboldt; Fischer, "Conjecture sur l'Origine des

Americains"; Adair, "History of the American Indians."]

[Footnote h: See Appendix, C.]

The social state of these tribes differed also in many respects from all

that was seen in the Old World. They seemed to have multiplied freely

in the midst of their deserts without coming in contact with other races

more civilized than their own. Accordingly, they exhibited none of those

indistinct, incoherent notions of right and wrong, none of that deep

corruption of manners, which is usually joined with ignorance and

rudeness among nations which, after advancing to civilization, have

relapsed into a state of barbarism. The Indian was indebted to no one

but himself; his virtues, his vices, and his prejudices were his own

work; he had grown up in the wild independence of his nature.

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

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

being so, they are in daily contact with rich and enlightened men.

The sight of their own hard lot and of their weakness, which is

daily contrasted with the happiness and power of some of their

fellow-creatures, excites in their hearts at the same time the

sentiments of anger and of fear: the consciousness of their inferiority

and of their dependence irritates while it humiliates them. This state

of mind displays itself in their manners and language; they are at once

insolent and servile. The truth of this is easily proved by observation;

the people are more rude in aristocratic countries than elsewhere, in

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

and powerful are assembled together the weak and the indigent feel

themselves oppressed by their inferior condition. Unable to perceive a

single chance of regaining their equality, they give up to despair, and

allow themselves to fall below the dignity of human nature.

This unfortunate effect of the disparity of conditions is not observable

in savage life: the Indians, although they are ignorant and poor, are

equal and free. At the period when Europeans first came among them

the natives of North America were ignorant of the value of riches, and

indifferent to the enjoyments which civilized man procures to himself

by their means. Nevertheless there was nothing coarse in their

demeanor; they practised an habitual reserve and a kind of aristocratic

politeness. Mild and hospitable when at peace, though merciless in

war beyond any known degree of human ferocity, the Indian would expose

himself to die of hunger in order to succor the stranger who asked

admittance by night at the door of his hut; yet he could tear in pieces

with his hands the still quivering limbs of his prisoner. The famous

republics of antiquity never gave examples of more unshaken courage,

more haughty spirits, or more intractable love of independence than were

hidden in former times among the wild forests of the New World. *i The

Europeans produced no great impression when they landed upon the shores

of North America; their presence engendered neither envy nor fear. What

influence could they possess over such men as we have described? The

Indian could live without wants, suffer without complaint, and pour out

his death-song at the stake. *j Like all the other members of the great

human family, these savages believed in the existence of a better world,

and adored under different names, God, the creator of the universe.

Their notions on the great intellectual truths were in general simple

and philosophical. *k

[Footnote i: We learn from President Jefferson's "Notes upon Virginia,"

p. 148, that among the Iroquois, when attacked by a superior force, aged

men refused to fly or to survive the destruction of their country; and

they braved death like the ancient Romans when their capital was sacked

by the Gauls. Further on, p. 150, he tells us that there is no example

of an Indian who, having fallen into the hands of his enemies, begged

for his life; on the contrary, the captive sought to obtain death at the

hands of his conquerors by the use of insult and provocation.]

[Footnote j: See "Histoire de la Louisiane," by Lepage Dupratz;

Charlevoix, "Histoire de la Nouvelle France"; "Lettres du Rev. G.

Hecwelder;" "Transactions of the American Philosophical Society," v. I;

Jefferson's "Notes on Virginia," pp. 135-190. What is said by Jefferson

is of especial weight, on account of the personal merit of the writer,

of his peculiar position, and of the matter-of-fact age in which he

lived.]

[Footnote k: See Appendix, D.]

Although we have here traced the character of a primitive people, yet it

cannot be doubted that another people, more civilized and more advanced

in all respects, had preceded it in the same regions.

An obscure tradition which prevailed among the Indians to the north of

the Atlantic informs us that these very tribes formerly dwelt on

the west side of the Mississippi. Along the banks of the Ohio, and

throughout the central valley, there are frequently found, at this day,

tumuli raised by the hands of men. On exploring these heaps of earth to

their centre, it is usual to meet with human bones, strange instruments,

arms and utensils of all kinds, made of metal, or destined for purposes

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

any information relative to the history of this unknown people. Neither

did those who lived three hundred years ago, when America was first

discovered, leave any accounts from which even an hypothesis could be

formed. Tradition--that perishable, yet ever renewed monument of the

pristine world--throws no light upon the subject. It is an undoubted

fact, however, that in this part of the globe thousands of our

fellow-beings had lived. When they came hither, what was their origin,

their destiny, their history, and how they perished, no one can tell.

How strange does it appear that nations have existed, and afterwards so

completely disappeared from the earth that the remembrance of their very

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

a sound without an echo; though perhaps there is not one which has not

left behind it some tomb in memory of its passage! The most durable

monument of human labor is that which recalls the wretchedness and

nothingness of man.

Although the vast country which we have been describing was inhabited

by many indigenous tribes, it may justly be said at the time of its

discovery by Europeans to have formed one great desert. The Indians

occupied without possessing it. It is by agricultural labor that man

appropriates the soil, and the early inhabitants of North America

lived by the produce of the chase. Their implacable prejudices, their

uncontrolled passions, their vices, and still more perhaps their savage

virtues, consigned them to inevitable destruction. The ruin of these

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

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

They seem to have been placed by Providence amidst the riches of the New

World to enjoy them for a season, and then surrender them. Those coasts,

rivers; that inexhaustible valley of the Mississippi; the whole

continent, in short, seemed prepared to be the abode of a great nation,

yet unborn.

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

the attempt to construct society upon a new basis; and it was there, for

the first time, that theories hitherto unknown, or deemed impracticable,

were to exhibit a spectacle for which the world had not been prepared by

the history of the past.

Chapter II: Origin Of The Anglo-Americans--Part I

Chapter Summary

Utility of knowing the origin of nations in order to understand their

social condition and their laws--America the only country in which the

starting-point of a great people has been clearly observable--In what

respects all who emigrated to British America were similar--In what they

differed--Remark applicable to all Europeans who established themselves

on the shores of the New World--Colonization of Virginia--Colonization

of New England--Original character of the first inhabitants of New

England--Their arrival--Their first laws--Their social contract--Penal

code borrowed from the Hebrew legislation--Religious fervor--Republican

spirit--Intimate union of the spirit of religion with the spirit of

liberty.

Origin Of The Anglo-Americans, And Its Importance In Relation To Their

Future Condition.

After the birth of a human being his early years are obscurely spent in

the toils or pleasures of childhood. As he grows up the world receives

him, when his manhood begins, and he enters into contact with his

fellows. He is then studied for the first time, and it is imagined

that the germ of the vices and the virtues of his maturer years is then

formed. This, if I am not mistaken, is a great error. We must begin

higher up; we must watch the infant in its mother's arms; we must see

the first images which the external world casts upon the dark mirror

of his mind; the first occurrences which he witnesses; we must hear the

first words which awaken the sleeping powers of thought, and stand by

his earliest efforts, if we would understand the prejudices, the habits,

and the passions which will rule his life. The entire man is, so to

speak, to be seen in the cradle of the child.

The growth of nations presents something analogous to this: they all

bear some marks of their origin; and the circumstances which accompanied

their birth and contributed to their rise affect the whole term of their

being. If we were able to go back to the elements of states, and to

examine the oldest monuments of their history, I doubt not that we

should discover the primal cause of the prejudices, the habits, the

ruling passions, and, in short, of all that constitutes what is called

the national character; we should then find the explanation of certain

customs which now seem at variance with the prevailing manners; of such

laws as conflict with established principles; and of such incoherent

opinions as are here and there to be met with in society, like those

fragments of broken chains which we sometimes see hanging from the vault

of an edifice, and supporting nothing. This might explain the destinies

of certain nations, which seem borne on by an unknown force to ends of

which they themselves are ignorant. But hitherto facts have been wanting

to researches of this kind: the spirit of inquiry has only come upon

communities in their latter days; and when they at length contemplated

America is the only country in which it has been possible to witness

the natural and tranquil growth of society, and where the influences

exercised on the future condition of states by their origin is clearly

distinguishable. At the period when the peoples of Europe landed in the

New World their national characteristics were already completely formed;

attained that stage of civilization at which men are led to study

themselves, they have transmitted to us a faithful picture of their

opinions, their manners, and their laws. The men of the sixteenth

century are almost as well known to us as our contemporaries. America,

consequently, exhibits in the broad light of day the phenomena which the

ignorance or rudeness of earlier ages conceals from our researches.

Near enough to the time when the states of America were founded, to be

accurately acquainted with their elements, and sufficiently removed from

that period to judge of some of their results, the men of our own day

seem destined to see further than their predecessors into the series of

human events. Providence has given us a torch which our forefathers did

not possess, and has allowed us to discern fundamental causes in the

history of the world which the obscurity of the past concealed from

them. If we carefully examine the social and political state of America,

after having studied its history, we shall remain perfectly convinced

that not an opinion, not a custom, not a law, I may even say not an

event, is upon record which the origin of that people will not explain.

The readers of this book will find the germ of all that is to follow in

the present chapter, and the key to almost the whole work.

The emigrants who came, at different periods to occupy the territory now

covered by the American Union differed from each other in many respects;

their aim was not the same, and they governed themselves on different

principles. These men had, however, certain features in common, and

they were all placed in an analogous situation. The tie of language is

perhaps the strongest and the most durable that can unite mankind. All

the emigrants spoke the same tongue; they were all offsets from the same

people. Born in a country which had been agitated for centuries by the

struggles of faction, and in which all parties had been obliged in

their turn to place themselves under the protection of the laws, their

political education had been perfected in this rude school, and they

were more conversant with the notions of right and the principles of

true freedom than the greater part of their European contemporaries. At

the period of their first emigrations the parish system, that fruitful

germ of free institutions, was deeply rooted in the habits of the

English; and with it the doctrine of the sovereignty of the people had

been introduced into the bosom of the monarchy of the House of Tudor.

The religious quarrels which have agitated the Christian world were then

rife. England had plunged into the new order of things with headlong

vehemence. The character of its inhabitants, which had always been

sedate and reflective, became argumentative and austere. General

information had been increased by intellectual debate, and the mind

discussion, the morals of the people were reformed. All these national

features are more or less discoverable in the physiognomy of those

adventurers who came to seek a new home on the opposite shores of the

Atlantic.

Another remark, to which we shall hereafter have occasion to recur, is

applicable not only to the English, but to the French, the Spaniards,

and all the Europeans who successively established themselves in the New

World. All these European colonies contained the elements, if not the

development, of a complete democracy. Two causes led to this result. It

may safely be advanced, that on leaving the mother-country the emigrants

had in general no notion of superiority over one another. The happy and

the powerful do not go into exile, and there are no surer guarantees of

equality among men than poverty and misfortune. It happened, however,

on several occasions, that persons of rank were driven to America

by political and religious quarrels. Laws were made to establish a

gradation of ranks; but it was soon found that the soil of America was

opposed to a territorial aristocracy. To bring that refractory land into

cultivation, the constant and interested exertions of the owner himself

were necessary; and when the ground was prepared, its produce was found

to be insufficient to enrich a master and a farmer at the same time.

The land was then naturally broken up into small portions, which the

proprietor cultivated for himself. Land is the basis of an aristocracy,

which clings to the soil that supports it; for it is not by privileges

alone, nor by birth, but by landed property handed down from generation

to generation, that an aristocracy is constituted. A nation may present

immense fortunes and extreme wretchedness, but unless those fortunes are

territorial there is no aristocracy, but simply the class of the rich

and that of the poor.

All the British colonies had then a great degree of similarity at the

epoch of their settlement. All of them, from their first beginning,

seemed destined to witness the growth, not of the aristocratic liberty

of their mother-country, but of that freedom of the middle and lower

orders of which the history of the world had as yet furnished no

complete example.

In this general uniformity several striking differences were however

discernible, which it is necessary to point out. Two branches may be

distinguished in the Anglo-American family, which have hitherto grown

up without entirely commingling; the one in the South, the other in the

North.

Virginia received the first English colony; the emigrants took

possession of it in 1607. The idea that mines of gold and silver are

the sources of national wealth was at that time singularly prevalent in

Europe; a fatal delusion, which has done more to impoverish the nations

which adopted it, and has cost more lives in America, than the united

influence of war and bad laws. The men sent to Virginia *a were seekers

of gold, adventurers, without resources and without character, whose

turbulent and restless spirit endangered the infant colony, *b and

rendered its progress uncertain. The artisans and agriculturists arrived

afterwards; and, although they were a more moral and orderly race of

men, they were in nowise above the level of the inferior classes in

England. *c No lofty conceptions, no intellectual system, directed the

foundation of these new settlements. The colony was scarcely established

when slavery was introduced, *d and this was the main circumstance which

has exercised so prodigious an influence on the character, the laws, and

all the future prospects of the South. Slavery, as we shall afterwards

show, dishonors labor; it introduces idleness into society, and with

idleness, ignorance and pride, luxury and distress. It enervates the

powers of the mind, and benumbs the activity of man. The influence of

slavery, united to the English character, explains the manners and the

social condition of the Southern States.

[Footnote a: The charter granted by the Crown of England in 1609

stipulated, amongst other conditions, that the adventurers should pay

to the Crown a fifth of the produce of all gold and silver mines. See

Marshall's "Life of Washington," vol. i. pp. 18-66.] [Footnote b: A

large portion of the adventurers, says Stith ("History of Virginia"),

were unprincipled young men of family, whom their parents were glad to

ship off, discharged servants, fraudulent bankrupts, or debauchees; and

others of the same class, people more apt to pillage and destroy than

to assist the settlement, were the seditious chiefs, who easily led this

band into every kind of extravagance and excess. See for the history of

Virginia the following works:--

"History of Virginia, from the First Settlements in the year 1624," by

Smith.

"History of Virginia," by William Stith.

"History of Virginia, from the Earliest Period," by Beverley.]

[Footnote c: It was not till some time later that a certain number of

rich English capitalists came to fix themselves in the colony.]

[Footnote d: Slavery was introduced about the year 1620 by a Dutch

vessel which landed twenty negroes on the banks of the river James. See

Chalmer.]

In the North, the same English foundation was modified by the most

opposite shades of character; and here I may be allowed to enter into

some details. The two or three main ideas which constitute the basis

of the social theory of the United States were first combined in the

Northern English colonies, more generally denominated the States of

New England. *e The principles of New England spread at first to the

neighboring states; they then passed successively to the more distant

ones; and at length they imbued the whole Confederation. They now extend

their influence beyond its limits over the whole American world. The

civilization of New England has been like a beacon lit upon a hill,

which, after it has diffused its warmth around, tinges the distant

horizon with its glow.

[Footnote e: The States of New England are those situated to the east of

the Hudson; they are now six in number: 1, Connecticut; 2, Rhode Island;

3, Massachusetts; 4, Vermont; 5, New Hampshire; 6, Maine.]

The foundation of New England was a novel spectacle, and all the

circumstances attending it were singular and original. The large

majority of colonies have been first inhabited either by men without

education and without resources, driven by their poverty and their

misconduct from the land which gave them birth, or by speculators

and adventurers greedy of gain. Some settlements cannot even boast so

honorable an origin; St. Domingo was founded by buccaneers; and the

criminal courts of England originally supplied the population of

Australia.

The settlers who established themselves on the shores of New England all

belonged to the more independent classes of their native country. Their

union on the soil of America at once presented the singular phenomenon

of a society containing neither lords nor common people, neither rich

nor poor. These men possessed, in proportion to their number, a greater

mass of intelligence than is to be found in any European nation of

our own time. All, without a single exception, had received a good

education, and many of them were known in Europe for their talents and

without family; the emigrants of New England brought with them the best

elements of order and morality--they landed in the desert accompanied

by their wives and children. But what most especially distinguished them

was the aim of their undertaking. They had not been obliged by necessity

to leave their country; the social position they abandoned was one to

be regretted, and their means of subsistence were certain. Nor did

they cross the Atlantic to improve their situation or to increase their

wealth; the call which summoned them from the comforts of their homes

was purely intellectual; and in facing the inevitable sufferings of

exile their object was the triumph of an idea.

The emigrants, or, as they deservedly styled themselves, the Pilgrims,

belonged to that English sect the austerity of whose principles had

acquired for them the name of Puritans. Puritanism was not merely a

religious doctrine, but it corresponded in many points with the most

of the mother-country, and disgusted by the habits of a society opposed

to the rigor of their own principles, the Puritans went forth to seek

some rude and unfrequented part of the world, where they could live

according to their own opinions, and worship God in freedom.

A few quotations will throw more light upon the spirit of these pious

adventures than all we can say of them. Nathaniel Morton, *f the

historian of the first years of the settlement, thus opens his subject:

"Hutchinson's History," vol. ii. p. 440.]

"Gentle Reader,--I have for some length of time looked upon it as a duty

incumbent, especially on the immediate successors of those that have had

so large experience of those many memorable and signal demonstrations

of God's goodness, viz., the first beginners of this Plantation in New

England, to commit to writing his gracious dispensations on that

behalf; having so many inducements thereunto, not onely otherwise but

so plentifully in the Sacred Scriptures: that so, what we have seen,

and what our fathers have told us (Psalm lxxviii. 3, 4), we may not hide

from our children, showing to the generations to come the praises of the

Lord; that especially the seed of Abraham his servant, and the children

of Jacob his chosen (Psalm cv. 5, 6), may remember his marvellous

works in the beginning and progress of the planting of New England, his

wonders and the judgments of his mouth; how that God brought a vine into

this wilderness; that he cast out the heathen, and planted it; that he

made room for it and caused it to take deep root; and it filled the land

(Psalm lxxx. 8, 9). And not onely so, but also that he hath guided his

people by his strength to his holy habitation and planted them in the

mountain of his inheritance in respect of precious Gospel enjoyments:

and that as especially God may have the glory of all unto whom it

is most due; so also some rays of glory may reach the names of those

blessed Saints that were the main instruments and the beginning of this

happy enterprise."

It is impossible to read this opening paragraph without an involuntary

feeling of religious awe; it breathes the very savor of Gospel

antiquity. The sincerity of the author heightens his power of language.

The band which to his eyes was a mere party of adventurers gone forth

to seek their fortune beyond seas appears to the reader as the germ of a

great nation wafted by Providence to a predestined shore.

The author thus continues his narrative of the departure of the first

pilgrims:--

"So they left that goodly and pleasant city of Leyden, *g which had been

their resting-place for above eleven years; but they knew that they were

pilgrims and strangers here below, and looked not much on these things,

but lifted up their eyes to Heaven, their dearest country, where God

hath prepared for them a city (Heb. xi. 16), and therein quieted their

spirits. When they came to Delfs-Haven they found the ship and all

things ready; and such of their friends as could not come with them

followed after them, and sundry came from Amsterdam to see them shipt,

and to take their leaves of them. One night was spent with little sleep

with the most, but with friendly entertainment and Christian discourse,

and other real expressions of true Christian love. The next day they

went on board, and their friends with them, where truly doleful was the

sight of that sad and mournful parting, to hear what sighs and sobs and

prayers did sound amongst them; what tears did gush from every eye,

and pithy speeches pierced each other's heart, that sundry of the Dutch

strangers that stood on the Key as spectators could not refrain from

tears. But the tide (which stays for no man) calling them away, that

were thus loth to depart, their Reverend Pastor falling down on his

knees, and they all with him, with watery cheeks commended them with

most fervent prayers unto the Lord and his blessing; and then, with

mutual embraces and many tears they took their leaves one of another,

which proved to be the last leave to many of them."

[Footnote g: The emigrants were, for the most part, godly Christians

from the North of England, who had quitted their native country because

they were "studious of reformation, and entered into covenant to walk

with one another according to the primitive pattern of the Word of God."

They emigrated to Holland, and settled in the city of Leyden in 1610,

where they abode, being lovingly respected by the Dutch, for many years:

they left it in 1620 for several reasons, the last of which was, that

their posterity would in a few generations become Dutch, and so lose

their interest in the English nation; they being desirous rather

to enlarge His Majesty's dominions, and to live under their natural

prince.--Translator's Note.]

The emigrants were about 150 in number, including the women and the

children. Their object was to plant a colony on the shores of the

Hudson; but after having been driven about for some time in the Atlantic

Ocean, they were forced to land on that arid coast of New England which

is now the site of the town of Plymouth. The rock is still shown on

which the pilgrims disembarked. *h

[Footnote h: This rock is become an object of veneration in the United

States. I have seen bits of it carefully preserved in several towns of

the Union. Does not this sufficiently show how entirely all human power

and greatness is in the soul of man? Here is a stone which the feet of

a few outcasts pressed for an instant, and this stone becomes famous; it

is treasured by a great nation, its very dust is shared as a relic: and

what is become of the gateways of a thousand palaces?]

"But before we pass on," continues our historian, "let the reader

with me make a pause and seriously consider this poor people's present

condition, the more to be raised up to admiration of God's goodness

towards them in their preservation: for being now passed the vast

ocean, and a sea of troubles before them in expectation, they had now

no friends to welcome them, no inns to entertain or refresh them, no

houses, or much less towns to repair unto to seek for succour: and for

the season it was winter, and they that know the winters of the country

know them to be sharp and violent, subject to cruel and fierce storms,

dangerous to travel to known places, much more to search unknown coasts.

Besides, what could they see but a hideous and desolate wilderness, full

of wilde beasts, and wilde men? and what multitudes of them there were,

they then knew not: for which way soever they turned their eyes (save

upward to Heaven) they could have but little solace or content in

respect of any outward object; for summer being ended, all things stand

in appearance with a weather-beaten face, and the whole country full of

woods and thickets, represented a wild and savage hew; if they looked

behind them, there was the mighty ocean which they had passed, and was

now as a main bar or gulph to separate them from all the civil parts of

the world."

It must not be imagined that the piety of the Puritans was of a merely

speculative kind, or that it took no cognizance of the course of worldly

affairs. Puritanism, as I have already remarked, was scarcely less a

political than a religious doctrine. No sooner had the emigrants landed

on the barren coast described by Nathaniel Morton than it was their

first care to constitute a society, by passing the following Act:

"In the name of God. Amen. We, whose names are underwritten, the loyal

subjects of our dread Sovereign Lord King James, etc., etc., Having

undertaken for the glory of God, and advancement of the Christian Faith,

and the honour of our King and country, a voyage to plant the first

colony in the northern parts of Virginia; Do by these presents solemnly

and mutually, in the presence of God and one another, covenant and

combine ourselves together into a civil body politick, for our better

ordering and preservation, and furtherance of the ends aforesaid: and by

virtue hereof do enact, constitute and frame such just and equal laws,

ordinances, acts, constitutions, and officers, from time to time, as

shall be thought most meet and convenient for the general good of the

Colony: unto which we promise all due submission and obedience," etc. *i

[Footnote i: The emigrants who founded the State of Rhode Island in

1638, those who landed at New Haven in 1637, the first settlers in

Connecticut in 1639, and the founders of Providence in 1640, began in

like manner by drawing up a social contract, which was acceded to by all

the interested parties. See "Pitkin's History," pp. 42 and 47.]

This happened in 1620, and from that time forwards the emigration went

on. The religious and political passions which ravaged the British

Empire during the whole reign of Charles I drove fresh crowds of

sectarians every year to the shores of America. In England the

stronghold of Puritanism was in the middle classes, and it was from the

middle classes that the majority of the emigrants came. The population

of New England increased rapidly; and whilst the hierarchy of rank

despotically classed the inhabitants of the mother-country, the colony

continued to present the novel spectacle of a community homogeneous in

all its parts. A democracy, more perfect than any which antiquity had

dreamt of, started in full size and panoply from the midst of an ancient

feudal society.

Chapter II: Origin Of The Anglo-Americans--Part II

The English Government was not dissatisfied with an emigration which

removed the elements of fresh discord and of further revolutions. On the

contrary, everything was done to encourage it, and great exertions were

made to mitigate the hardships of those who sought a shelter from the

rigor of their country's laws on the soil of America. It seemed as

if New England was a region given up to the dreams of fancy and the

unrestrained experiments of innovators.

The English colonies (and this is one of the main causes of their

prosperity) have always enjoyed more internal freedom and more political

independence than the colonies of other nations; but this principle of

liberty was nowhere more extensively applied than in the States of New

England.

It was generally allowed at that period that the territories of the

New World belonged to that European nation which had been the first to

discover them. Nearly the whole coast of North America thus became a

British possession towards the end of the sixteenth century. The means

used by the English Government to people these new domains were of

several kinds; the King sometimes appointed a governor of his own

choice, who ruled a portion of the New World in the name and under the

immediate orders of the Crown; *j this is the colonial system adopted by

other countries of Europe. Sometimes grants of certain tracts were made

by the Crown to an individual or to a company, *k in which case all the

civil and political power fell into the hands of one or more persons,

who, under the inspection and control of the Crown, sold the lands and

governed the inhabitants. Lastly, a third system consisted in allowing a

certain number of emigrants to constitute a political society under the

protection of the mother-country, and to govern themselves in whatever

was not contrary to her laws. This mode of colonization, so remarkably

favorable to liberty, was only adopted in New England. *l

[Footnote j: This was the case in the State of New York.]

[Footnote k: Maryland, the Carolinas, Pennsylvania, and New Jersey were

in this situation. See "Pitkin's History," vol. i. pp. 11-31.]

[Footnote l: See the work entitled "Historical Collection of State

Papers and other authentic Documents intended as materials for a History

of the United States of America, by Ebenezer Hasard. Philadelphia,

1792," for a great number of documents relating to the commencement

of the colonies, which are valuable from their contents and their

authenticity: amongst them are the various charters granted by the King

of England, and the first acts of the local governments.

See also the analysis of all these charters given by Mr. Story, Judge

of the Supreme Court of the United States, in the Introduction to his

"Commentary on the Constitution of the United States." It results from

these documents that the principles of representative government and

the external forms of political liberty were introduced into all the

colonies at their origin. These principles were more fully acted upon in

the North than in the South, but they existed everywhere.]

In 1628 *m a charter of this kind was granted by Charles I to the

emigrants who went to form the colony of Massachusetts. But, in general,

charters were not given to the colonies of New England till they had

acquired a certain existence. Plymouth, Providence, New Haven, the State

of Connecticut, and that of Rhode Island *n were founded without the

co-operation and almost without the knowledge of the mother-country.

The new settlers did not derive their incorporation from the seat of

the empire, although they did not deny its supremacy; they constituted

a society of their own accord, and it was not till thirty or forty

years afterwards, under Charles II. that their existence was legally

recognized by a royal charter.

[Footnote m: See "Pitkin's History," p, 35. See the "History of the

Colony of Massachusetts Bay," by Hutchinson, vol. i. p. 9.] [Footnote n:

See "Pitkin's History," pp. 42, 47.]

This frequently renders its it difficult to detect the link which

connected the emigrants with the land of their forefathers in studying

the earliest historical and legislative records of New England. They

exercised the rights of sovereignty; they named their magistrates,

concluded peace or declared war, made police regulations, and enacted

laws as if their allegiance was due only to God. *o Nothing can be more

curious and, at the same time more instructive, than the legislation of

that period; it is there that the solution of the great social problem

which the United States now present to the world is to be found.

[Footnote o: The inhabitants of Massachusetts had deviated from the

forms which are preserved in the criminal and civil procedure of

England; in 1650 the decrees of justice were not yet headed by the royal

style. See Hutchinson, vol. i. p. 452.]

Amongst these documents we shall notice, as especially characteristic,

the code of laws promulgated by the little State of Connecticut in 1650.

*p The legislators of Connecticut *q begin with the penal laws, and,

strange to say, they borrow their provisions from the text of Holy Writ.

"Whosoever shall worship any other God than the Lord," says the preamble

of the Code, "shall surely be put to death." This is followed by ten or

twelve enactments of the same kind, copied verbatim from the books of

Exodus, Leviticus, and Deuteronomy. Blasphemy, sorcery, adultery, *r

and rape were punished with death; an outrage offered by a son to his

parents was to be expiated by the same penalty. The legislation of a

rude and half-civilized people was thus applied to an enlightened and

moral community. The consequence was that the punishment of death was

never more frequently prescribed by the statute, and never more rarely

enforced towards the guilty.

[Footnote p: Code of 1650, p. 28; Hartford, 1830.]

456, the analysis of the penal code adopted in 1648 by the Colony of

Massachusetts: this code is drawn up on the same principles as that of

Connecticut.]

[Footnote r: Adultery was also punished with death by the law of

Massachusetts: and Hutchinson, vol. i. p. 441, says that several persons

actually suffered for this crime. He quotes a curious anecdote on

this subject, which occurred in the year 1663. A married woman had had

criminal intercourse with a young man; her husband died, and she married

the lover. Several years had elapsed, when the public began to suspect

the previous intercourse of this couple: they were thrown into prison,

put upon trial, and very narrowly escaped capital punishment.]

The chief care of the legislators, in this body of penal laws, was the

maintenance of orderly conduct and good morals in the community: they

constantly invaded the domain of conscience, and there was scarcely a

sin which was not subject to magisterial censure. The reader is aware of

the rigor with which these laws punished rape and adultery; intercourse

between unmarried persons was likewise severely repressed. The judge was

empowered to inflict a pecuniary penalty, a whipping, or marriage *s on

the misdemeanants; and if the records of the old courts of New Haven may

be believed, prosecutions of this kind were not unfrequent. We find

a sentence bearing date the first of May, 1660, inflicting a fine and

reprimand on a young woman who was accused of using improper language,

and of allowing herself to be kissed. *t The Code of 1650 abounds in

preventive measures. It punishes idleness and drunkenness with severity.

*u Innkeepers are forbidden to furnish more than a certain quantity of

liquor to each consumer; and simple lying, whenever it may be injurious,

*v is checked by a fine or a flogging. In other places, the legislator,

entirely forgetting the great principles of religious toleration which

he had himself upheld in Europe, renders attendance on divine service

compulsory, *w and goes so far as to visit with severe punishment, **

and even with death, the Christians who chose to worship God according

to a ritual differing from his own. *x Sometimes indeed the zeal of his

enactments induces him to descend to the most frivolous particulars:

thus a law is to be found in the same Code which prohibits the use

of tobacco. *y It must not be forgotten that these fantastical and

vexatious laws were not imposed by authority, but that they were

freely voted by all the persons interested, and that the manners of the

community were even more austere and more puritanical than the laws.

In 1649 a solemn association was formed in Boston to check the worldly

luxury of long hair. *z

[Footnote s: Code of 1650, p. 48. It seems sometimes to have happened

that the judges superadded these punishments to each other, as is seen

in a sentence pronounced in 1643 (p. 114, "New Haven Antiquities"), by

which Margaret Bedford, convicted of loose conduct, was condemned to be

whipped, and afterwards to marry Nicholas Jemmings, her accomplice.]

History," for several causes equally extraordinary.]

[Footnote u: Code of 1650, pp. 50, 57.]

[Footnote v: Ibid., p. 64.]

[Footnote w: Ibid., p. 44.]

[Footnote *: This was not peculiar to Connecticut. See, for instance,

the law which, on September 13, 1644, banished the Anabaptists from the

State of Massachusetts. ("Historical Collection of State Papers," vol.

i. p. 538.) See also the law against the Quakers, passed on October 14,

1656: "Whereas," says the preamble, "an accursed race of heretics called

Quakers has sprung up," etc. The clauses of the statute inflict a

heavy fine on all captains of ships who should import Quakers into

the country. The Quakers who may be found there shall be whipped and

imprisoned with hard labor. Those members of the sect who should defend

their opinions shall be first fined, then imprisoned, and finally driven

out of the province.--"Historical Collection of State Papers," vol. i.

p. 630.]

[Footnote x: By the penal law of Massachusetts, any Catholic priest who

should set foot in the colony after having been once driven out of it

was liable to capital punishment.]

[Footnote y: Code of 1650, p. 96.]

[Footnote z: "New England's Memorial," p. 316. See Appendix, E.]

These errors are no doubt discreditable to human reason; they attest the

inferiority of our nature, which is incapable of laying firm hold upon

what is true and just, and is often reduced to the alternative of two

excesses. In strict connection with this penal legislation, which bears

such striking marks of a narrow sectarian spirit, and of those religious

passions which had been warmed by persecution and were still fermenting

among the people, a body of political laws is to be found, which, though

written two hundred years ago, is still ahead of the liberties of

our age. The general principles which are the groundwork of modern

constitutions--principles which were imperfectly known in Europe, and

not completely triumphant even in Great Britain, in the seventeenth

century--were all recognized and determined by the laws of New England:

the intervention of the people in public affairs, the free voting of

taxes, the responsibility of authorities, personal liberty, and trial

by jury, were all positively established without discussion. From these

fruitful principles consequences have been derived and applications have

been made such as no nation in Europe has yet ventured to attempt.

In Connecticut the electoral body consisted, from its origin, of the

whole number of citizens; and this is readily to be understood, *a when

we recollect that this people enjoyed an almost perfect equality of

fortune, and a still greater uniformity of opinions. *b In Connecticut,

at this period, all the executive functionaries were elected, including

the Governor of the State. *c The citizens above the age of sixteen were

obliged to bear arms; they formed a national militia, which appointed

its own officers, and was to hold itself at all times in readiness to

march for the defence of the country. *d

[Footnote a: Constitution of 1638, p. 17.]

[Footnote b: In 1641 the General Assembly of Rhode Island unanimously

declared that the government of the State was a democracy, and that the

power was vested in the body of free citizens, who alone had the right

to make the laws and to watch their execution.--Code of 1650, p. 70.]

[Footnote c: "Pitkin's History," p. 47.]

[Footnote d: Constitution of 1638, p. 12.]

In the laws of Connecticut, as well as in all those of New England,

we find the germ and gradual development of that township independence

which is the life and mainspring of American liberty at the present

day. The political existence of the majority of the nations of Europe

commenced in the superior ranks of society, and was gradually and

imperfectly communicated to the different members of the social body.

In America, on the other hand, it may be said that the township was

organized before the county, the county before the State, the State

before the Union. In New England townships were completely and

definitively constituted as early as 1650. The independence of the

township was the nucleus round which the local interests, passions,

rights, and duties collected and clung. It gave scope to the activity

of a real political life most thoroughly democratic and republican. The

colonies still recognized the supremacy of the mother-country; monarchy

was still the law of the State; but the republic was already established

in every township. The towns named their own magistrates of every kind,

rated themselves, and levied their own taxes. *e In the parish of New

England the law of representation was not adopted, but the affairs of

the community were discussed, as at Athens, in the market-place, by a

general assembly of the citizens.

[Footnote e: Code of 1650, p. 80.]

In studying the laws which were promulgated at this first era of the

American republics, it is impossible not to be struck by the remarkable

acquaintance with the science of government and the advanced theory of

legislation which they display. The ideas there formed of the duties

of society towards its members are evidently much loftier and more

comprehensive than those of the European legislators at that time:

obligations were there imposed which were elsewhere slighted. In the

States of New England, from the first, the condition of the poor was

provided for; *f strict measures were taken for the maintenance of

roads, and surveyors were appointed to attend to them; *g registers

were established in every parish, in which the results of public

deliberations, and the births, deaths, and marriages of the citizens

were entered; *h clerks were directed to keep these registers; *i

officers were charged with the administration of vacant inheritances,

and with the arbitration of litigated landmarks; and many others were

created whose chief functions were the maintenance of public order in

the community. *j The law enters into a thousand useful provisions for

a number of social wants which are at present very inadequately felt in

France. [Footnote f: Ibid., p. 78.]

[Footnote g: Ibid., p. 49.]

[Footnote h: See "Hutchinson's History," vol. i. p. 455.]

[Footnote i: Code of 1650, p. 86.]

[Footnote j: Ibid., p. 40.]

But it is by the attention it pays to Public Education that the original

character of American civilization is at once placed in the clearest

light. "It being," says the law, "one chief project of Satan to keep

men from the knowledge of the Scripture by persuading from the use of

tongues, to the end that learning may not be buried in the graves of

our forefathers, in church and commonwealth, the Lord assisting our

endeavors. . . ." *k Here follow clauses establishing schools in every

township, and obliging the inhabitants, under pain of heavy fines, to

support them. Schools of a superior kind were founded in the same manner

in the more populous districts. The municipal authorities were bound to

enforce the sending of children to school by their parents; they were

empowered to inflict fines upon all who refused compliance; and in case

of continued resistance society assumed the place of the parent, took

possession of the child, and deprived the father of those natural rights

which he used to so bad a purpose. The reader will undoubtedly have

remarked the preamble of these enactments: in America religion is the

road to knowledge, and the observance of the divine laws leads man to

civil freedom.

[Footnote k: Ibid., p. 90.]

If, after having cast a rapid glance over the state of American society

in 1650, we turn to the condition of Europe, and more especially to that

of the Continent, at the same period, we cannot fail to be struck

with astonishment. On the Continent of Europe, at the beginning of the

seventeenth century, absolute monarchy had everywhere triumphed over the

ruins of the oligarchical and feudal liberties of the Middle Ages. Never

were the notions of right more completely confounded than in the midst

of the splendor and literature of Europe; never was there less political

activity among the people; never were the principles of true freedom

less widely circulated; and at that very time those principles, which

were scorned or unknown by the nations of Europe, were proclaimed in

the deserts of the New World, and were accepted as the future creed of

a great people. The boldest theories of the human reason were put into

practice by a community so humble that not a statesman condescended to

attend to it; and a legislation without a precedent was produced

offhand by the imagination of the citizens. In the bosom of this

obscure democracy, which had as yet brought forth neither generals, nor

philosophers, nor authors, a man might stand up in the face of a free

people and pronounce the following fine definition of liberty. *l

[Footnote l: Mather's "Magnalia Christi Americana," vol. ii. p. 13.

This speech was made by Winthrop; he was accused of having committed

arbitrary actions during his magistracy, but after having made

the speech of which the above is a fragment, he was acquitted by

acclamation, and from that time forwards he was always re-elected

governor of the State. See Marshal, vol. i. p. 166.]

"Nor would I have you to mistake in the point of your own liberty.

There is a liberty of a corrupt nature which is effected both by men

and beasts to do what they list, and this liberty is inconsistent with

authority, impatient of all restraint; by this liberty 'sumus omnes

deteriores': 'tis the grand enemy of truth and peace, and all the

ordinances of God are bent against it. But there is a civil, a moral, a

federal liberty which is the proper end and object of authority; it is

a liberty for that only which is just and good: for this liberty you are

to stand with the hazard of your very lives and whatsoever crosses it is

not authority, but a distemper thereof. This liberty is maintained in a

way of subjection to authority; and the authority set over you will, in

all administrations for your good, be quietly submitted unto by all but

such as have a disposition to shake off the yoke and lose their true

liberty, by their murmuring at the honor and power of authority."

The remarks I have made will suffice to display the character of

Anglo-American civilization in its true light. It is the result (and

this should be constantly present to the mind of two distinct elements),

which in other places have been in frequent hostility, but which in

America have been admirably incorporated and combined with one another.

I allude to the spirit of Religion and the spirit of Liberty.

The settlers of New England were at the same time ardent sectarians

and daring innovators. Narrow as the limits of some of their religious

opinions were, they were entirely free from political prejudices. Hence

arose two tendencies, distinct but not opposite, which are constantly

discernible in the manners as well as in the laws of the country.

It might be imagined that men who sacrificed their friends, their

family, and their native land to a religious conviction were absorbed

in the pursuit of the intellectual advantages which they purchased at

so dear a rate. The energy, however, with which they strove for the

acquirement of wealth, moral enjoyment, and the comforts as well as

liberties of the world, is scarcely inferior to that with which they

devoted themselves to Heaven.

Political principles and all human laws and institutions were moulded

and altered at their pleasure; the barriers of the society in which they

were born were broken down before them; the old principles which had

governed the world for ages were no more; a path without a turn and

a field without an horizon were opened to the exploring and ardent

curiosity of man: but at the limits of the political world he checks

his researches, he discreetly lays aside the use of his most formidable

faculties, he no longer consents to doubt or to innovate, but carefully

abstaining from raising the curtain of the sanctuary, he yields with

submissive respect to truths which he will not discuss. Thus, in the

moral world everything is classed, adapted, decided, and foreseen; in

the political world everything is agitated, uncertain, and disputed:

in the one is a passive, though a voluntary, obedience; in the other an

independence scornful of experience and jealous of authority.

These two tendencies, apparently so discrepant, are far from

conflicting; they advance together, and mutually support each other.

Religion perceives that civil liberty affords a noble exercise to the

faculties of man, and that the political world is a field prepared by

the Creator for the efforts of the intelligence. Contented with the

freedom and the power which it enjoys in its own sphere, and with the

place which it occupies, the empire of religion is never more surely

established than when it reigns in the hearts of men unsupported by

aught beside its native strength. Religion is no less the companion of

liberty in all its battles and its triumphs; the cradle of its infancy,

and the divine source of its claims. The safeguard of morality is

religion, and morality is the best security of law and the surest pledge

of freedom. *m

[Footnote m: See Appendix, F.]

Reasons Of Certain Anomalies Which The Laws And Customs Of The

Anglo-Americans Present

Remains of aristocratic institutions in the midst of a complete

democracy--Why?--Distinction carefully to be drawn between what is of

Puritanical and what is of English origin.

The reader is cautioned not to draw too general or too absolute an

inference from what has been said. The social condition, the religion,

and the manners of the first emigrants undoubtedly exercised an immense

influence on the destiny of their new country. Nevertheless they were

not in a situation to found a state of things solely dependent on

themselves: no man can entirely shake off the influence of the past, and

the settlers, intentionally or involuntarily, mingled habits and notions

derived from their education and from the traditions of their country

with those habits and notions which were exclusively their own. To form

a judgment on the Anglo-Americans of the present day it is therefore

necessary to distinguish what is of Puritanical and what is of English

origin.

Laws and customs are frequently to be met with in the United States

which contrast strongly with all that surrounds them. These laws seem to

be drawn up in a spirit contrary to the prevailing tenor of the American

legislation; and these customs are no less opposed to the tone of

society. If the English colonies had been founded in an age of darkness,

or if their origin was already lost in the lapse of years, the problem

would be insoluble.

I shall quote a single example to illustrate what I advance. The

civil and criminal procedure of the Americans has only two means of

action--committal and bail. The first measure taken by the magistrate

is to exact security from the defendant, or, in case of refusal, to

incarcerate him: the ground of the accusation and the importance of the

charges against him are then discussed. It is evident that a legislation

of this kind is hostile to the poor man, and favorable only to the

rich. The poor man has not always a security to produce, even in a

civil cause; and if he is obliged to wait for justice in prison, he is

speedily reduced to distress. The wealthy individual, on the contrary,

always escapes imprisonment in civil causes; nay, more, he may readily

elude the punishment which awaits him for a delinquency by breaking his

bail. So that all the penalties of the law are, for him, reducible

to fines. *n Nothing can be more aristocratic than this system of

legislation. Yet in America it is the poor who make the law, and they

usually reserve the greatest social advantages to themselves. The

explanation of the phenomenon is to be found in England; the laws of

which I speak are English, *o and the Americans have retained them,

however repugnant they may be to the tenor of their legislation and the

mass of their ideas. Next to its habits, the thing which a nation

is least apt to change is its civil legislation. Civil laws are only

familiarly known to legal men, whose direct interest it is to maintain

them as they are, whether good or bad, simply because they themselves

are conversant with them. The body of the nation is scarcely acquainted

with them; it merely perceives their action in particular cases; but it

has some difficulty in seizing their tendency, and obeys them without

premeditation. I have quoted one instance where it would have been easy

to adduce a great number of others. The surface of American society is,

if I may use the expression, covered with a layer of democracy, from

beneath which the old aristocratic colors sometimes peep.

[Footnote n: Crimes no doubt exist for which bail is inadmissible, but

they are few in number.]

[Footnote o: See Blackstone; and Delolme, book I chap. x.]

Chapter III: Social Conditions Of The Anglo-Americans

Chapter Summary

A Social condition is commonly the result of circumstances, sometimes of

laws, oftener still of these two causes united; but wherever it exists,

it may justly be considered as the source of almost all the laws, the

usages, and the ideas which regulate the conduct of nations; whatever

it does not produce it modifies. It is therefore necessary, if we would

become acquainted with the legislation and the manners of a nation, to

begin by the study of its social condition.

The Striking Characteristic Of The Social Condition Of The

Anglo-Americans In Its Essential Democracy.

The first emigrants of New England--Their equality--Aristocratic laws

introduced in the South--Period of the Revolution--Change in the law

of descent--Effects produced by this change--Democracy carried to its

utmost limits in the new States of the West--Equality of education.

Many important observations suggest themselves upon the social condition

of the Anglo-Americans, but there is one which takes precedence of all

the rest. The social condition of the Americans is eminently democratic;

this was its character at the foundation of the Colonies, and is still

more strongly marked at the present day. I have stated in the preceding

chapter that great equality existed among the emigrants who settled on

the shores of New England. The germ of aristocracy was never planted in

that part of the Union. The only influence which obtained there was that

of intellect; the people were used to reverence certain names as the

emblems of knowledge and virtue. Some of their fellow-citizens acquired

a power over the rest which might truly have been called aristocratic,

if it had been capable of transmission from father to son.

This was the state of things to the east of the Hudson: to the

south-west of that river, and in the direction of the Floridas, the case

was different. In most of the States situated to the south-west of the

with them aristocratic principles and the English law of descent. I have

explained the reasons why it was impossible ever to establish a powerful

aristocracy in America; these reasons existed with less force to the

south-west of the Hudson. In the South, one man, aided by slaves, could

cultivate a great extent of country: it was therefore common to see rich

landed proprietors. But their influence was not altogether aristocratic

as that term is understood in Europe, since they possessed no

privileges; and the cultivation of their estates being carried on by

slaves, they had no tenants depending on them, and consequently no

patronage. Still, the great proprietors south of the Hudson constituted

a superior class, having ideas and tastes of its own, and forming the

centre of political action. This kind of aristocracy sympathized with

the body of the people, whose passions and interests it easily embraced;

but it was too weak and too short-lived to excite either love or hatred

for itself. This was the class which headed the insurrection in the

South, and furnished the best leaders of the American revolution.

At the period of which we are now speaking society was shaken to

its centre: the people, in whose name the struggle had taken place,

conceived the desire of exercising the authority which it had acquired;

its democratic tendencies were awakened; and having thrown off the yoke

of the mother-country, it aspired to independence of every kind. The

influence of individuals gradually ceased to be felt, and custom and law

united together to produce the same result.

But the law of descent was the last step to equality. I am surprised

that ancient and modern jurists have not attributed to this law a

greater influence on human affairs. *a It is true that these laws belong

to civil affairs; but they ought nevertheless to be placed at the head

of all political institutions; for, whilst political laws are only the

symbol of a nation's condition, they exercise an incredible influence

upon its social state. They have, moreover, a sure and uniform manner of

operating upon society, affecting, as it were, generations yet unborn.

[Footnote a: I understand by the law of descent all those laws whose

principal object is to regulate the distribution of property after the

death of its owner. The law of entail is of this number; it certainly

prevents the owner from disposing of his possessions before his death;

but this is solely with the view of preserving them entire for the heir.

The principal object, therefore, of the law of entail is to regulate the

descent of property after the death of its owner: its other provisions

are merely means to this end.]

Through their means man acquires a kind of preternatural power over the

future lot of his fellow-creatures. When the legislator has regulated

the law of inheritance, he may rest from his labor. The machine once put

in motion will go on for ages, and advance, as if self-guided, towards a

given point. When framed in a particular manner, this law unites, draws

together, and vests property and power in a few hands: its tendency is

clearly aristocratic. On opposite principles its action is still more

rapid; it divides, distributes, and disperses both property and power.

Alarmed by the rapidity of its progress, those who despair of arresting

its motion endeavor to obstruct it by difficulties and impediments;

they vainly seek to counteract its effect by contrary efforts; but it

gradually reduces or destroys every obstacle, until by its incessant

activity the bulwarks of the influence of wealth are ground down to the

fine and shifting sand which is the basis of democracy. When the law of

inheritance permits, still more when it decrees, the equal division of

a father's property amongst all his children, its effects are of two

kinds: it is important to distinguish them from each other, although

they tend to the same end.

In virtue of the law of partible inheritance, the death of every

proprietor brings about a kind of revolution in property; not only do

his possessions change hands, but their very nature is altered, since

they are parcelled into shares, which become smaller and smaller at each

division. This is the direct and, as it were, the physical effect of the

law. It follows, then, that in countries where equality of inheritance

is established by law, property, and especially landed property, must

have a tendency to perpetual diminution. The effects, however, of such

legislation would only be perceptible after a lapse of time, if the law

was abandoned to its own working; for supposing the family to consist of

two children (and in a country people as France is the average number

is not above three), these children, sharing amongst them the fortune of

both parents, would not be poorer than their father or mother.

But the law of equal division exercises its influence not merely upon

the property itself, but it affects the minds of the heirs, and brings

their passions into play. These indirect consequences tend powerfully

to the destruction of large fortunes, and especially of large domains.

Among nations whose law of descent is founded upon the right of

primogeniture landed estates often pass from generation to generation

without undergoing division, the consequence of which is that family

feeling is to a certain degree incorporated with the estate. The family

represents the estate, the estate the family; whose name, together with

its origin, its glory, its power, and its virtues, is thus perpetuated

in an imperishable memorial of the past and a sure pledge of the future.

When the equal partition of property is established by law, the intimate

connection is destroyed between family feeling and the preservation of

the paternal estate; the property ceases to represent the family; for

as it must inevitably be divided after one or two generations, it

has evidently a constant tendency to diminish, and must in the end be

completely dispersed. The sons of the great landed proprietor, if they

are few in number, or if fortune befriends them, may indeed entertain

the hope of being as wealthy as their father, but not that of possessing

the same property as he did; the riches must necessarily be composed of

elements different from his.

Now, from the moment that you divest the landowner of that interest in

the preservation of his estate which he derives from association, from

tradition, and from family pride, you may be certain that sooner or

later he will dispose of it; for there is a strong pecuniary interest in

favor of selling, as floating capital produces higher interest than real

property, and is more readily available to gratify the passions of the

moment.

Great landed estates which have once been divided never come together

again; for the small proprietor draws from his land a better revenue, in

proportion, than the large owner does from his, and of course he sells

it at a higher rate. *b The calculations of gain, therefore, which

decide the rich man to sell his domain will still more powerfully

influence him against buying small estates to unite them into a large

one.

[Footnote b: I do not mean to say that the small proprietor cultivates

his land better, but he cultivates it with more ardor and care; so that

he makes up by his labor for his want of skill.]

What is called family pride is often founded upon an illusion of

self-love. A man wishes to perpetuate and immortalize himself, as it

were, in his great-grandchildren. Where the esprit de famille ceases

to act individual selfishness comes into play. When the idea of family

becomes vague, indeterminate, and uncertain, a man thinks of his

present convenience; he provides for the establishment of his succeeding

generation, and no more. Either a man gives up the idea of perpetuating

his family, or at any rate he seeks to accomplish it by other means

than that of a landed estate. Thus not only does the law of partible

inheritance render it difficult for families to preserve their ancestral

domains entire, but it deprives them of the inclination to attempt it,

and compels them in some measure to co-operate with the law in their own

extinction.

The law of equal distribution proceeds by two methods: by acting upon

things, it acts upon persons; by influencing persons, it affects things.

By these means the law succeeds in striking at the root of landed

property, and dispersing rapidly both families and fortunes. *c

[Footnote c: Land being the most stable kind of property, we find, from

time to time, rich individuals who are disposed to make great sacrifices

in order to obtain it, and who willingly forfeit a considerable part of

their income to make sure of the rest. But these are accidental cases.

The preference for landed property is no longer found habitually in any

class but among the poor. The small landowner, who has less information,

less imagination, and fewer passions than the great one, is generally

occupied with the desire of increasing his estate: and it often happens

that by inheritance, by marriage, or by the chances of trade, he is

gradually furnished with the means. Thus, to balance the tendency which

leads men to divide their estates, there exists another, which incites

them to add to them. This tendency, which is sufficient to prevent

estates from being divided ad infinitum, is not strong enough to create

great territorial possessions, certainly not to keep them up in the same

family.]

Most certainly it is not for us Frenchmen of the nineteenth century,

who daily witness the political and social changes which the law

of partition is bringing to pass, to question its influence. It is

perpetually conspicuous in our country, overthrowing the walls of our

dwellings and removing the landmarks of our fields. But although it has

produced great effects in France, much still remains for it to do. Our

recollections, opinions, and habits present powerful obstacles to its

progress.

In the United States it has nearly completed its work of destruction,

and there we can best study its results. The English laws concerning the

transmission of property were abolished in almost all the States at

the time of the Revolution. The law of entail was so modified as not

to interrupt the free circulation of property. *d The first generation

having passed away, estates began to be parcelled out, and the change

became more and more rapid with the progress of time. At this moment,

after a lapse of a little more than sixty years, the aspect of society

is totally altered; the families of the great landed proprietors are

almost all commingled with the general mass. In the State of New York,

which formerly contained many of these, there are but two who still keep

their heads above the stream, and they must shortly disappear. The sons

of these opulent citizens are become merchants, lawyers, or physicians.

Most of them have lapsed into obscurity. The last trace of hereditary

ranks and distinctions is destroyed--the law of partition has reduced

all to one level. [Footnote d: See Appendix, G.]

I do not mean that there is any deficiency of wealthy individuals in the

United States; I know of no country, indeed, where the love of money has

taken stronger hold on the affections of men, and where the profounder

contempt is expressed for the theory of the permanent equality of

property. But wealth circulates with inconceivable rapidity, and

experience shows that it is rare to find two succeeding generations in

the full enjoyment of it.

This picture, which may perhaps be thought to be overcharged, still

gives a very imperfect idea of what is taking place in the new States

of the West and South-west. At the end of the last century a few bold

adventurers began to penetrate into the valleys of the Mississippi, and

the mass of the population very soon began to move in that direction:

communities unheard of till then were seen to emerge from the wilds:

States whose names were not in existence a few years before claimed

their place in the American Union; and in the Western settlements we may

behold democracy arrived at its utmost extreme. In these States,

founded off-hand, and, as it were, by chance, the inhabitants are but

of yesterday. Scarcely known to one another, the nearest neighbors

are ignorant of each other's history. In this part of the American

continent, therefore, the population has not experienced the influence

of great names and great wealth, nor even that of the natural

aristocracy of knowledge and virtue. None are there to wield that

respectable power which men willingly grant to the remembrance of a life

spent in doing good before their eyes. The new States of the West are

already inhabited, but society has no existence among them. *e

[Footnote e: This may have been true in 1832, but is not so in 1874,

when great cities like Chicago and San Francisco have sprung up in

the Western States. But as yet the Western States exert no powerful

influence on American society.---Translator's Note.]

It is not only the fortunes of men which are equal in America; even

their requirements partake in some degree of the same uniformity. I do

not believe that there is a country in the world where, in proportion

to the population, there are so few uninstructed and at the same time

so few learned individuals. Primary instruction is within the reach of

everybody; superior instruction is scarcely to be obtained by any. This

is not surprising; it is in fact the necessary consequence of what we

have advanced above. Almost all the Americans are in easy circumstances,

and can therefore obtain the first elements of human knowledge.

In America there are comparatively few who are rich enough to live

without a profession. Every profession requires an apprenticeship, which

limits the time of instruction to the early years of life. At fifteen

they enter upon their calling, and thus their education ends at the age

when ours begins. Whatever is done afterwards is with a view to some

special and lucrative object; a science is taken up as a matter of

business, and the only branch of it which is attended to is such as

admits of an immediate practical application. In America most of the

rich men were formerly poor; most of those who now enjoy leisure were

absorbed in business during their youth; the consequence of which is,

that when they might have had a taste for study they had no time for it,

and when time is at their disposal they have no longer the inclination.

There is no class, then, in America, in which the taste for intellectual

pleasures is transmitted with hereditary fortune and leisure, and by

which the labors of the intellect are held in honor. Accordingly there

is an equal want of the desire and the power of application to these

objects.

A middle standard is fixed in America for human knowledge. All approach

as near to it as they can; some as they rise, others as they descend.

Of course, an immense multitude of persons are to be found who entertain

the same number of ideas on religion, history, science, political

economy, legislation, and government. The gifts of intellect proceed

directly from God, and man cannot prevent their unequal distribution.

But in consequence of the state of things which we have here represented

it happens that, although the capacities of men are widely different, as

the Creator has doubtless intended they should be, they are submitted to

the same method of treatment.

In America the aristocratic element has always been feeble from its

birth; and if at the present day it is not actually destroyed, it is at

any rate so completely disabled that we can scarcely assign to it any

degree of influence in the course of affairs. The democratic principle,

on the contrary, has gained so much strength by time, by events, and by

legislation, as to have become not only predominant but all-powerful.

There is no family or corporate authority, and it is rare to find even

the influence of individual character enjoy any durability.

America, then, exhibits in her social state a most extraordinary

phenomenon. Men are there seen on a greater equality in point of fortune

and intellect, or, in other words, more equal in their strength, than

in any other country of the world, or in any age of which history has

preserved the remembrance.

Political Consequences Of The Social Condition Of The Anglo-Americans

The political consequences of such a social condition as this are easily

deducible. It is impossible to believe that equality will not eventually

find its way into the political world as it does everywhere else. To

conceive of men remaining forever unequal upon one single point, yet

equal on all others, is impossible; they must come in the end to be

equal upon all. Now I know of only two methods of establishing equality

in the political world; every citizen must be put in possession of

his rights, or rights must be granted to no one. For nations which are

arrived at the same stage of social existence as the Anglo-Americans, it

is therefore very difficult to discover a medium between the sovereignty

of all and the absolute power of one man: and it would be vain to deny

that the social condition which I have been describing is equally liable

to each of these consequences.

There is, in fact, a manly and lawful passion for equality which excites

men to wish all to be powerful and honored. This passion tends to

elevate the humble to the rank of the great; but there exists also in

the human heart a depraved taste for equality, which impels the weak

to attempt to lower the powerful to their own level, and reduces men to

prefer equality in slavery to inequality with freedom. Not that those

nations whose social condition is democratic naturally despise liberty;

on the contrary, they have an instinctive love of it. But liberty is not

the chief and constant object of their desires; equality is their idol:

they make rapid and sudden efforts to obtain liberty, and if they miss

their aim resign themselves to their disappointment; but nothing can

satisfy them except equality, and rather than lose it they resolve to

perish.

On the other hand, in a State where the citizens are nearly on an

equality, it becomes difficult for them to preserve their independence

against the aggressions of power. No one among them being strong

enough to engage in the struggle with advantage, nothing but a general

combination can protect their liberty. And such a union is not always to

be found.

From the same social position, then, nations may derive one or the other

of two great political results; these results are extremely different

from each other, but they may both proceed from the same cause.

The Anglo-Americans are the first nations who, having been exposed

to this formidable alternative, have been happy enough to escape

the dominion of absolute power. They have been allowed by their

circumstances, their origin, their intelligence, and especially by their

moral feeling, to establish and maintain the sovereignty of the people.

Chapter IV: The Principle Of The Sovereignty Of The People In America

Chapter Summary

It predominates over the whole of society in America--Application

made of this principle by the Americans even before their

Revolution--Development given to it by that Revolution--Gradual and

irresistible extension of the elective qualification.

The Principle Of The Sovereignty Of The People In America

Whenever the political laws of the United States are to be discussed,

it is with the doctrine of the sovereignty of the people that we must

begin. The principle of the sovereignty of the people, which is to be

found, more or less, at the bottom of almost all human institutions,

generally remains concealed from view. It is obeyed without being

recognized, or if for a moment it be brought to light, it is hastily

cast back into the gloom of the sanctuary. "The will of the nation" is

one of those expressions which have been most profusely abused by the

wily and the despotic of every age. To the eyes of some it has been

represented by the venal suffrages of a few of the satellites of power;

to others by the votes of a timid or an interested minority; and some

have even discovered it in the silence of a people, on the supposition

that the fact of submission established the right of command.

In America the principle of the sovereignty of the people is not either

barren or concealed, as it is with some other nations; it is recognized

by the customs and proclaimed by the laws; it spreads freely, and

arrives without impediment at its most remote consequences. If there

be a country in the world where the doctrine of the sovereignty of

the people can be fairly appreciated, where it can be studied in its

application to the affairs of society, and where its dangers and its

advantages may be foreseen, that country is assuredly America.

I have already observed that, from their origin, the sovereignty of the

people was the fundamental principle of the greater number of British

colonies in America. It was far, however, from then exercising as much

influence on the government of society as it now does. Two obstacles,

the one external, the other internal, checked its invasive progress. It

could not ostensibly disclose itself in the laws of colonies which were

still constrained to obey the mother-country: it was therefore obliged

to spread secretly, and to gain ground in the provincial assemblies, and

especially in the townships.

American society was not yet prepared to adopt it with all its

consequences. The intelligence of New England, and the wealth of the

country to the south of the Hudson (as I have shown in the preceding

chapter), long exercised a sort of aristocratic influence, which tended

to retain the exercise of social authority in the hands of a few. The

public functionaries were not universally elected, and the citizens were

not all of them electors. The electoral franchise was everywhere placed

within certain limits, and made dependent on a certain qualification,

which was exceedingly low in the North and more considerable in the

South.

The American revolution broke out, and the doctrine of the sovereignty

of the people, which had been nurtured in the townships and

municipalities, took possession of the State: every class was enlisted

in its cause; battles were fought, and victories obtained for it, until

it became the law of laws.

A no less rapid change was effected in the interior of society, where

the law of descent completed the abolition of local influences.

At the very time when this consequence of the laws and of the revolution

was apparent to every eye, victory was irrevocably pronounced in favor

of the democratic cause. All power was, in fact, in its hands, and

resistance was no longer possible. The higher orders submitted without

a murmur and without a struggle to an evil which was thenceforth

inevitable. The ordinary fate of falling powers awaited them; each

of their several members followed his own interests; and as it was

impossible to wring the power from the hands of a people which they

did not detest sufficiently to brave, their only aim was to secure its

good-will at any price. The most democratic laws were consequently voted

by the very men whose interests they impaired; and thus, although the

higher classes did not excite the passions of the people against their

order, they accelerated the triumph of the new state of things; so

that by a singular change the democratic impulse was found to be most

irresistible in the very States where the aristocracy had the firmest

hold. The State of Maryland, which had been founded by men of rank,

was the first to proclaim universal suffrage, and to introduce the most

democratic forms into the conduct of its government.

When a nation modifies the elective qualification, it may easily be

foreseen that sooner or later that qualification will be entirely

abolished. There is no more invariable rule in the history of society:

the further electoral rights are extended, the greater is the need of

extending them; for after each concession the strength of the democracy

increases, and its demands increase with its strength. The ambition of

those who are below the appointed rate is irritated in exact proportion

to the great number of those who are above it. The exception at last

becomes the rule, concession follows concession, and no stop can be made

short of universal suffrage.

At the present day the principle of the sovereignty of the people has

acquired, in the United States, all the practical development which the

imagination can conceive. It is unencumbered by those fictions which

have been thrown over it in other countries, and it appears in every

possible form according to the exigency of the occasion. Sometimes the

laws are made by the people in a body, as at Athens; and sometimes its

representatives, chosen by universal suffrage, transact business in its

name, and almost under its immediate control.

In some countries a power exists which, though it is in a degree foreign

to the social body, directs it, and forces it to pursue a certain track.

In others the ruling force is divided, being partly within and partly

without the ranks of the people. But nothing of the kind is to be seen

in the United States; there society governs itself for itself. All power

centres in its bosom; and scarcely an individual is to be meet with

who would venture to conceive, or, still less, to express, the idea of

seeking it elsewhere. The nation participates in the making of its laws

by the choice of its legislators, and in the execution of them by the

choice of the agents of the executive government; it may almost be said

to govern itself, so feeble and so restricted is the share left to the

administration, so little do the authorities forget their popular origin

and the power from which they emanate. *a [Footnote a: See Appendix, H.]

Chapter V: Necessity Of Examining The Condition Of The States--Part I

Necessity Of Examining The Condition Of The States Before That Of The

Union At Large.

It is proposed to examine in the following chapter what is the form of

government established in America on the principle of the sovereignty of

the people; what are its resources, its hindrances, its advantages, and

its dangers. The first difficulty which presents itself arises from the

complex nature of the constitution of the United States, which consists

of two distinct social structures, connected and, as it were, encased

one within the other; two governments, completely separate and almost

independent, the one fulfilling the ordinary duties and responding to

the daily and indefinite calls of a community, the other circumscribed

within certain limits, and only exercising an exceptional authority over

the general interests of the country. In short, there are twenty-four

small sovereign nations, whose agglomeration constitutes the body of the

Union. To examine the Union before we have studied the States would

be to adopt a method filled with obstacles. The form of the Federal

Government of the United States was the last which was adopted; and

it is in fact nothing more than a modification or a summary of those

republican principles which were current in the whole community before

it existed, and independently of its existence. Moreover, the Federal

Government is, as I have just observed, the exception; the Government

of the States is the rule. The author who should attempt to exhibit the

picture as a whole before he had explained its details would necessarily

fall into obscurity and repetition.

The great political principles which govern American society at this

day undoubtedly took their origin and their growth in the State. It

is therefore necessary to become acquainted with the State in order to

possess a clue to the remainder. The States which at present compose

the American Union all present the same features, as far as regards the

external aspect of their institutions. Their political or administrative

existence is centred in three focuses of action, which may not inaptly

be compared to the different nervous centres which convey motion to the

human body. The township is the lowest in order, then the county, and

lastly the State; and I propose to devote the following chapter to the

examination of these three divisions.

The American System Of Townships And Municipal Bodies

Why the Author begins the examination of the political institutions with

the township--Its existence in all nations--Difficulty of establishing

and preserving municipal independence--Its importance--Why the Author

has selected the township system of New England as the main topic of his

discussion.

It is not undesignedly that I begin this subject with the Township.

The village or township is the only association which is so perfectly

natural that wherever a number of men are collected it seems to

constitute itself.

The town, or tithing, as the smallest division of a community, must

necessarily exist in all nations, whatever their laws and customs

may be: if man makes monarchies and establishes republics, the first

association of mankind seems constituted by the hand of God. But

although the existence of the township is coeval with that of man, its

liberties are not the less rarely respected and easily destroyed. A

nation is always able to establish great political assemblies, because

it habitually contains a certain number of individuals fitted by their

talents, if not by their habits, for the direction of affairs. The

township is, on the contrary, composed of coarser materials, which are

less easily fashioned by the legislator. The difficulties which attend

the consolidation of its independence rather augment than diminish with

the increasing enlightenment of the people. A highly civilized community

spurns the attempts of a local independence, is disgusted at its

numerous blunders, and is apt to despair of success before the

experiment is completed. Again, no immunities are so ill protected from

the encroachments of the supreme power as those of municipal bodies in

general: they are unable to struggle, single-handed, against a strong

or an enterprising government, and they cannot defend their cause with

success unless it be identified with the customs of the nation and

supported by public opinion. Thus until the independence of townships is

amalgamated with the manners of a people it is easily destroyed, and

it is only after a long existence in the laws that it can be thus

amalgamated. Municipal freedom is not the fruit of human device; it

is rarely created; but it is, as it were, secretly and spontaneously

engendered in the midst of a semi-barbarous state of society.

The constant action of the laws and the national habits, peculiar

circumstances, and above all time, may consolidate it; but there is

certainly no nation on the continent of Europe which has experienced

its advantages. Nevertheless local assemblies of citizens constitute

the strength of free nations. Town-meetings are to liberty what primary

schools are to science; they bring it within the people's reach, they

teach men how to use and how to enjoy it. A nation may establish

a system of free government, but without the spirit of municipal

institutions it cannot have the spirit of liberty. The transient

passions and the interests of an hour, or the chance of circumstances,

may have created the external forms of independence; but the despotic

tendency which has been repelled will, sooner or later, inevitably

reappear on the surface.

In order to explain to the reader the general principles on which the

political organization of the counties and townships of the United

States rests, I have thought it expedient to choose one of the States of

New England as an example, to examine the mechanism of its constitution,

and then to cast a general glance over the country. The township and the

county are not organized in the same manner in every part of the Union;

it is, however, easy to perceive that the same principles have guided

the formation of both of them throughout the Union. I am inclined to

believe that these principles have been carried further in New England

than elsewhere, and consequently that they offer greater facilities to

the observations of a stranger. The institutions of New England form

a complete and regular whole; they have received the sanction of time,

they have the support of the laws, and the still stronger support of the

manners of the community, over which they exercise the most prodigious

influence; they consequently deserve our attention on every account.

Limits Of The Township

The township of New England is a division which stands between the

commune and the canton of France, and which corresponds in general to

the English tithing, or town. Its average population is from two to

three thousand; *a so that, on the one hand, the interests of its

inhabitants are not likely to conflict, and, on the other, men capable

of conducting its affairs are always to be found among its citizens.

[Footnote a: In 1830 there were 305 townships in the State of

Massachusetts, and 610,014 inhabitants, which gives an average of about

2,000 inhabitants to each township.]

Authorities Of The Township In New England

The people the source of all power here as elsewhere--Manages its own

affairs--No corporation--The greater part of the authority vested in the

hands of the Selectmen--How the Selectmen act--Town-meeting--Enumeration

of the public officers of the township--Obligatory and remunerated

functions.

In the township, as well as everywhere else, the people is the only

source of power; but in no stage of government does the body of citizens

exercise a more immediate influence. In America the people is a master

whose exigencies demand obedience to the utmost limits of possibility.

In New England the majority acts by representatives in the conduct

of the public business of the State; but if such an arrangement be

necessary in general affairs, in the townships, where the legislative

and administrative action of the government is in more immediate contact

with the subject, the system of representation is not adopted. There is

no corporation; but the body of electors, after having designated its

magistrates, directs them in everything that exceeds the simple and

ordinary executive business of the State. *b

[Footnote b: The same rules are not applicable to the great towns, which

generally have a mayor, and a corporation divided into two bodies; this,

however, is an exception which requires the sanction of a law.--See the

Act of February 22, 1822, for appointing the authorities of the city

of Boston. It frequently happens that small towns as well as cities

are subject to a peculiar administration. In 1832, 104 townships in the

State of New York were governed in this manner.--Williams' Register.]

This state of things is so contrary to our ideas, and so different from

our customs, that it is necessary for me to adduce some examples to

explain it thoroughly.

The public duties in the township are extremely numerous and minutely

divided, as we shall see further on; but the larger proportion of

administrative power is vested in the hands of a small number of

individuals, called "the Selectmen." *c The general laws of the State

impose a certain number of obligations on the selectmen, which they may

fulfil without the authorization of the body they represent, but which

they can only neglect on their own responsibility. The law of the State

obliges them, for instance, to draw up the list of electors in their

townships; and if they omit this part of their functions, they are

guilty of a misdemeanor. In all the affairs, however, which are

determined by the town-meeting, the selectmen are the organs of the

popular mandate, as in France the Maire executes the decree of the

municipal council. They usually act upon their own responsibility, and

merely put in practice principles which have been previously recognized

by the majority. But if any change is to be introduced in the existing

state of things, or if they wish to undertake any new enterprise, they

are obliged to refer to the source of their power. If, for instance, a

school is to be established, the selectmen convoke the whole body of

the electors on a certain day at an appointed place; they explain the

urgency of the case; they give their opinion on the means of satisfying

it, on the probable expense, and the site which seems to be most

favorable. The meeting is consulted on these several points; it adopts

the principle, marks out the site, votes the rate, and confides the

execution of its resolution to the selectmen.

[Footnote c: Three selectmen are appointed in the small townships, and

nine in the large ones. See "The Town-Officer," p. 186. See also the

principal laws of the State of Massachusetts relative to the selectmen:

Act of February 20, 1786, vol. i. p. 219; February 24, 1796, vol. i. p.

488; March 7, 1801, vol. ii. p. 45; June 16, 1795, vol. i. p. 475; March

12, 1808, vol. ii. p. 186; February 28, 1787, vol. i. p. 302; June 22,

1797, vol. i. p. 539.]

The selectmen have alone the right of calling a town-meeting, but they

may be requested to do so: if ten citizens are desirous of submitting

a new project to the assent of the township, they may demand a general

convocation of the inhabitants; the selectmen are obliged to comply, but

they have only the right of presiding at the meeting. *d

[Footnote d: See Laws of Massachusetts, vol. i. p. 150, Act of March 25,

1786.]

The selectmen are elected every year in the month of April or of May.

The town-meeting chooses at the same time a number of other municipal

magistrates, who are entrusted with important administrative functions.

The assessors rate the township; the collectors receive the rate. A

constable is appointed to keep the peace, to watch the streets, and to

forward the execution of the laws; the town-clerk records all the town

votes, orders, grants, births, deaths, and marriages; the treasurer

keeps the funds; the overseer of the poor performs the difficult task of

superintending the action of the poor-laws; committee-men are

appointed to attend to the schools and to public instruction; and the

road-surveyors, who take care of the greater and lesser thoroughfares

of the township, complete the list of the principal functionaries.

They are, however, still further subdivided; and amongst the municipal

officers are to be found parish commissioners, who audit the expenses

of public worship; different classes of inspectors, some of whom are

to direct the citizens in case of fire; tithing-men, listers, haywards,

chimney-viewers, fence-viewers to maintain the bounds of property,

timber-measurers, and sealers of weights and measures. *e

[Footnote e: All these magistrates actually exist; their different

functions are all detailed in a book called "The Town-Officer," by Isaac

Goodwin, Worcester, 1827; and in the "Collection of the General Laws of

Massachusetts," 3 vols., Boston, 1823.]

There are nineteen principal officers in a township. Every inhabitant

is constrained, on the pain of being fined, to undertake these different

functions; which, however, are almost all paid, in order that the poorer

citizens may be able to give up their time without loss. In general the

American system is not to grant a fixed salary to its functionaries.

Every service has its price, and they are remunerated in proportion to

what they have done.

Existence Of The Township

Every one the best judge of his own interest--Corollary of the principle

of the sovereignty of the people--Application of those doctrines in the

townships of America--The township of New England is sovereign in

all that concerns itself alone: subject to the State in all other

matters--Bond of the township and the State--In France the Government

lends its agent to the Commune--In America the reverse occurs.

I have already observed that the principle of the sovereignty of the

people governs the whole political system of the Anglo-Americans. Every

page of this book will afford new instances of the same doctrine. In

the nations by which the sovereignty of the people is recognized every

individual possesses an equal share of power, and participates alike in

the government of the State. Every individual is, therefore, supposed

to be as well informed, as virtuous, and as strong as any of his

fellow-citizens. He obeys the government, not because he is inferior to

the authorities which conduct it, or that he is less capable than his

neighbor of governing himself, but because he acknowledges the utility

of an association with his fellow-men, and because he knows that no such

association can exist without a regulating force. If he be a subject

in all that concerns the mutual relations of citizens, he is free and

responsible to God alone for all that concerns himself. Hence arises the

maxim that every one is the best and the sole judge of his own private

interest, and that society has no right to control a man's actions,

unless they are prejudicial to the common weal, or unless the common

weal demands his co-operation. This doctrine is universally admitted in

the United States. I shall hereafter examine the general influence which

it exercises on the ordinary actions of life; I am now speaking of the

nature of municipal bodies.

The township, taken as a whole, and in relation to the government of the

country, may be looked upon as an individual to whom the theory I

have just alluded to is applied. Municipal independence is therefore a

natural consequence of the principle of the sovereignty of the people in

the United States: all the American republics recognize it more or less;

but circumstances have peculiarly favored its growth in New England.

In this part of the Union the impulsion of political activity was given

in the townships; and it may almost be said that each of them originally

formed an independent nation. When the Kings of England asserted their

supremacy, they were contented to assume the central power of the State.

The townships of New England remained as they were before; and although

they are now subject to the State, they were at first scarcely dependent

upon it. It is important to remember that they have not been invested

with privileges, but that they have, on the contrary, forfeited a

portion of their independence to the State. The townships are only

subordinate to the State in those interests which I shall term social,

as they are common to all the citizens. They are independent in all

that concerns themselves; and amongst the inhabitants of New England

I believe that not a man is to be found who would acknowledge that the

State has any right to interfere in their local interests. The towns

of New England buy and sell, sue or are sued, augment or diminish

their rates, without the slightest opposition on the part of the

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

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 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

[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

[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.]

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

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

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

and capable of exercising a salutary influence upon the junior members.

[Footnote m: In Massachusetts the Senate is not invested with any

[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

not centralized in the United States: great general centralization of

the Government--Some bad consequences resulting to the United States

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

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

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

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

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

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

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

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.

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

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

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

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Corso di laurea: Corso di laurea magistrale in relazioni internazionali
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A.A.: 2011-2012

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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