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 monopolise 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 constitution 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.
{It is not universally correct, as supposed by the author, that the state legislatures can deprive their governor of his salary at pleasure. In the constitution of New York it is provided, that the governor "shall receive for his services a compensation which shall neither be increased nor diminished during the term for which he shall have been elected;" and similar provisions are believed to exist in other states. Nor is the remark strictly correct, that the federal constitution "provides for the independence of the judges, by declaring that their salary shall not bealtered." The provision of the constitution is, that they shall, "at stated times, receive for their services a compensation which shall not be diminished during their continuance in office."—American Editor.}
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 people 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 it should execute its 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 have 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 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 other states in its name,{154} or the federal government has been abandoned by its natural supporters, anarchy has arisen between the confederates, and the Union has lost all power of action.{155}
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 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 with 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 afterward 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 of 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 farther 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 among 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.
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 Civilisation.—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, Melioration, 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 we 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 cradles 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 their 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 a republican government for a long series of years,{156} and this had led to the conclusion that such a state of things is impracticable. For my own part, I cannot but censure the imprudence of attempting to limit the possible, and to judge the future, on the part of a being who is hourly deceived by the most palpable realities of life, and who is constantly taken by surprise in the circumstances with which he is most familiar. But it may be advanced with confidence that the existence of a great republic will always be exposed to far greater perils than that of a small one.
All the passions which are most fatal to republican institutions spread with an increasing territory, while 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 while 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 among 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 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; and 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 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 imaging 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 melioration. 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 melioration 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 afterward 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 into 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 interests; 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. The 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 flag 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 the Government common among 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 beside the Laws.—What these Causes are among the Anglo-Americans.—Maine and Georgia, separated by a Distance of a thousand Miles, more naturally united than Normandy and Britany.—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, while 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 render 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 farther 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 the government.
The most prominent evil of all federal systems is the very complex nature of the means they employ. Two sovereignties are necessarily in the 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 running 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 notion 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, numerous 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 long been 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.{157} But although they had borrowed the letter of the law, they were unable to create or to introduce the spirit and the sense which gave it life. They were involved in ceaseless embarrassments between the mechanism of their double government; the sovereignty of the states and that of the Union perpetually exceeded their respective privileges, and entered into collision; and to the present day Mexico is alternately the victim of anarchy and the slave of military despotism.
The second and the most fatal of all the defects I have alluded to, and that which I believe to be inherent in the federal system, is the relative weakness of the government of the Union. The principle upon which all confederations rest is that of a divided sovereignty. The legislator may render this partition less perceptible, he may even conceal it for a time from the public eye, but he cannot prevent it from existing; and a divided sovereignty must always be less powerful than an entire supremacy. The reader has seen in the remarks I have made on the constitution of the United States, that the Americans have displayed singular ingenuity in combining the restriction of the power of the Union within the narrow limits of the 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 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 the common defence, and they would derive a ready-prepared organization from the share of sovereignty which the institution of their state allows them to enjoy. Fiction would give way to reality, and an organized portion of the territory might then contest the central authority.
The same observation holds good with regard to the federal jurisdiction. If the courts of the Union violated an important law of a state in a private case, the real, if not the apparent contest would arise between the aggrieved state, represented by a citizen, and the Union, represented by its courts of justice.{158}
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 sovereignties less probable, destroyed the causes 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 affects only 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 the superiority of a power which is interwoven with every circumstance that renders the love of one's native country instinctive to the human heart.
Since legislators are unable to obviate such dangerous collisions as occur between the two sovereignties which co-exist 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 dependance 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 people 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 interest. A certain uniformity of civilisation 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 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 civilisation; 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 civilisation of Maine and that of Georgia is slighter than the difference between the habits of Normandy and those of Britany. 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 Britany, 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 struggle 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 the 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 defect 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 cases 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 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.{159}
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 among nations. As for the powers of Europe, they are too distant to be formidable.{160}
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 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 centralised. 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.
Endnotes:
{119} See the constitution of the United States.
{120} See the articles of the first confederation formed in 1778. This constitution was not adopted by all the states until 1781. See also the analysis given of this constitution in the Federalist, from No. 15 to No. 22 inclusive, and Story's "Commentary on the Constitution of the United States," pp. 85-115.
{121} Congress made this declaration on the 21st of February, 1787.
{122} It consisted of fifty-five members: Washington, Madison, Hamilton, and the two Morrises, were among the number.
{123} 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.
{124} 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 theexclusiveright 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 of bankruptcy, which, however, it neglects to do. Each state is then at liberty to make a law for itself. This point, however, has been established by discussion in the law-courts, and may be said to belong more properly to jurisprudence.
{125} The action of this court is indirect, as we shall hereafter show.
{126} 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.
{127} See constitution, sect. 8. Federalist, Nos. 41 and 42. Kent's Commentaries, vol. i., p. 207. Story, pp. 358-382; 409-426.
{128} 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.
{129} Even in these cases its interference is indirect. The Union interferes by means of the tribunals, as will be hereafter shown.
{130} Federal Constitution, sect. 10, art. 1.
{131} Constitution, sect. 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.
{132} 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 upon. 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 (14th April, 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 1822, fixes the proportion at one for 48,000. The population represented is composed of all the freemen and of three-fifths of the slaves.
{133} See the Federalist, Nos. 52-66, inclusive. Story, pp. 199-314 Constitution of the United States, sections 2 and 3.
{134} See the Federalist, Nos. 67-77. Constitution of the United States, a. t. 2. Story, pp. 115; 515-780. Kent's Commentaries, p. 255.
{135} 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.
{136} The sums annually paid by the state to these officers amount to 200,000,000 francs (eight millions sterling).
{137} 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.
{138} As many as it sends members to congress. The number of electors at the election of 1833 was 288. (See the National Calendar, 1833.)
{139} 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.
{140} 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.
{141} Jefferson, in 1801, was not elected until the thirty-sixth time of balloting.
{142} See chapter 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 Federalist, 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 the 24th September, 1789, in the collection of the laws of the United States, by Story, vol. i., p. 53.
{143} 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 commanding to the federal executive, and very prudently reserved the right of non-compliance to themselves.
{144} 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. 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 24th September, 1789, laws of the United States, by Story, vol. i., p. 53.
{145} 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., pp. 350, 370,et seq.; Story's Commentaries, p. 646; and "The Organic Law of the United States," vol. i., p. 35
{146} 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 broughtagainsta state as well asbyit, or was exclusively confined to the latter. This question was most elaborately considered in the case ofChisholmev.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, § 1677.
{147} As, for instance, all cases of piracy.
{148} 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.
{149} It is perfectly clear, says Mr. Story (Commentaries, p. 503, or in the large edition, § 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 ensures, 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.
{150} A remarkable instance of this is given by Mr. Story (p. 508, or in the large edition, § 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, sect. 10), and that the amendatory 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."
{151} See chapter vi., on judicial power in America.
{152} See Kent's Commentaries, vol. i., p. 387.
{153} 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 purpose 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 intrust the managements 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 commonlyintendthepublic good. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they would alwaysreason right, about themeansof 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 at the peril of their displeasure."
{154} 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 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.
{155} Such has always been the situation of the Swiss confederation, which would have perished ages ago but for the mutual jealousies of its neighbors.
{156} I do not speak of a confederation of small republics, but of a great consolidated republic.
{157} See the Mexican constitution of 1824.
{158} 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 name 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, while the other competitor was ordered to retain possession by the tribunals of the state of Ohio?
{The difficulty supposed by the author in this note is imaginary. The question of title to the lands in the case put, must depend upon the constitution, treaties, and laws of the United States; and a decision in the state court adverse to the claim or title set up under those laws, must, by the very words of the constitution and of the judiciary act, be subject to review by the supreme court of the United States, whose decision is final.
The remarks in the text of this page upon the relative weakness of the government of the Union, are equally applicable to any form of republican or democratic government, and are not peculiar to a federal system. Under the circumstances supposed by the author, of all the citizens of a state, or a large majority of them, aggrieved at the same time and in the same manner, by the operation of any law, the same difficulty would arise in executing the laws of the state as those of the Union. Indeed, such instances of the total inefficacy of state laws are not wanting. The fact is, that all republics depend on the willingness of the people to execute the laws. If they will not enforce them, there is, so far, an end to the government, for it possesses no power adequate to the control of the physical power of the people.
Not only in theory, but in fact, a republican government must be administered by the people themselves. They, and they alone, must execute the laws. And hence, the first principles in such governments, that on which all others depend, and without which no other can exist, is and must be, obedience to the existing laws at all times and under all circumstances. It is the vital condition of the social compact. He who claims a dispensing power for himself, by which he suspends the operation of the law in his own case, is worse than a usurper, for he not only tramples under foot the constitution of his country, but violates the reciprocal pledge which he has given to his fellow-citizens, and has received from them, that he will abide by the laws constitutionally enacted; upon the strength of which pledge, his own personal rights and acquisitions are protected by the rest of the community.—American Editor.}
{159} 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.
{160} Appendix O.