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 denies.
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 are not solely attributable to the elective system in general, but to the fact that the elected magistrate was the head of a powerful monarchy. 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 among 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 farther from the designs of the republicans of Europe than this course: as many of them only owe their hatred of tyranny to the sufferings which they have personally undergone, the extent of the executive power does not excite their hostility, and they only attack its origin without perceiving how nearly the two things are connected.
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 among 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 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.
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 removeable 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 ministers 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; and 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.
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.
Beside 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, beside 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 the social condition of the United States, we are struck by the admirable harmony of the gifts of fortune and the efforts of man. That 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 complete 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 thesimplemajority 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. The 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 intrusted to the 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 represented 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,{138} 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 intrusted 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.{139} 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 the president; but with the condition that it must fix upon one of the three candidates who have the highest numbers.{140}
Thus it is only in case of an event which cannot often happen, and which can never be foreseen, that the election is intrusted 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 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{141} which are not inherent in the elective system.
In the forty 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. John Quincy Adams was chosen.
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 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. Moreover, political parties in the United States, as well as elsewhere, are led to rally around 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 forth 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 elected, 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 several 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 has nearly broken its banks, sinks to its usual level; but who can refrain from astonishment at the causes of the storm?
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, especially 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 lists, the cares of government dwindle into second-rate importance, and the success of his election is his first concern. All laws and negotiations are then 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 governments still more extensive and pernicious. It tends to degrade the political morality of the people, and to substitute adroitness for patriotism.
In America it exercises a still more fatal influence on the sources of national existence. Every government seems to be afflicted by some evil 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 consequences should long appear to be imperceptible. 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 thepermanentdeterminations 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 invested 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.
{The question of the propriety of leaving the president re-eligible, is one of that class which probably must for ever remain undecided. The author himself, at page 125, gives a strong reason for re-eligibility, "so that the chance of a prolonged administration may inspire him with hopeful undertakings for the public good, and with the means of carrying them into execution,"—considerations of great weight. There is an important fact bearing upon this question, which should be stated in connexion with it. President Washington established the practice of declining a third election, and every one of his successors, either from a sense of its propriety or from apprehensions of the force of public opinion, has followed the example. So that it has become as much a part of the constitution, that no citizen can be a third time elected president, as if it were expressed in that instrument in words. This may perhaps be considered a fair adjustment of objections on either side. Those against a continued and perpetual re-eligibility are certainly met: while the arguments in favor of an opportunity to prolong an administration under circumstances that may justify it, are allowed their due weight. One effect of this practical interpolation of the constitution unquestionably is, to increase the chances of a president's being once re-elected; as men will be more disposed to acquiesce in a measure that thus practically excludes the individual from ever again entering the field of competition.—American Editor}
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. Judicial institutions exercise a great influence on the condition of the Anglo-Americans, and they occupy a prominent place among what are properly 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 on 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 prolix 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 of 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 it 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 opposed to formidable opposition.{143} 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 repel the attacks which might be directed against them. The question then remained what tribunals were to exercise these privileges; were they to be intrusted 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 state 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 ensure 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 intrust 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.
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.{144} It was easy to proclaim the principle of a federal judiciary, but difficulties multiplied when the extent of its jurisdiction was to be determined.
Difficulty of determining the Jurisdiction of separate courts of Justice in Confederation.—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 connexion 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 Unionde facto, after having established itde 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 jurisprudence 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.{145}
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 appear 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.
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 Tribunal.—Causes relating to the Non-performance of Contracts tried by the federal Courts.—Consequences 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 bases 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 I 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 involved 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.{146}
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.{147} 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.
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 equityarising under the laws of the United States.
Two examples will put the intentions 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.{148} 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 farther 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 to the Union, the natural consequence is that it should come within the jurisdiction of a federal court.
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 interest 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 the 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.
{The remark of the author, that whenever the laws of the United States are attacked, or whenever they are resorted to in self-defence, the federal courtsmust beappealed to, which is more strongly expressed in the original, is erroneous and calculated to mislead on a point of some importance. By the grant of power to the courts of the United States to decide certain cases, the powers of the state courts are not suspended, but are exercised concurrently, subject to an appeal to the courts of the United States. But if the decision of the state court isin favorof the right, title, or privilege claimed under the constitution, a treaty, or under a law of congress, no appeal lies to the federal courts. The appeal is given only when the decisionis againstthe claimant under the treaty or law. See 3d Cranch, 268. 1 Wheaton, 304.—American Editor.}
Thus the jurisdiction of the general 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 makingex-post-factolaws 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.{149} 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.{150}
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 obligations of contracts, which may thus furnish an easy pretext for the aggressions of the central authority.
{The fears of the author respecting the danger to the independence of the states of that provision of the constitution, which gives to the federal courts the authority of deciding when a state law impairs the obligation of a contract, are deemed quite unfounded. The citizens of every state have a deep interest in preserving the obligation of the contracts entered into by them in other states: indeed without such a controlling power, "commerce among several states" could not exist. The existence of this common arbiter is of the last importance to the continuance of the Union itself, for if there were no peaceable means of enforcing the obligations of contracts, independent of all state authority, the states themselves would inevitably come in collision in their efforts to protect their respective citizens from the consequences of the legislation of another state.
M. De Tocqueville's observation, that the rights with which the clause in question invests the federal government "are not clearly appreciable or accurately defined," proceeds upon a mistaken view of the clause itself. It relates to theobligationof a contract, and forbids any act by which that obligation is impaired. To American lawyers, this seems to be as precise and definite as any rule can be made by human language. The distinction between therightto the fruits of a contract, and the time, tribunal, and manner, in which that right is to be enforced, seems very palpable. At all events, since the decision of the supreme court of the United States in those cases in which this clause has been discussed, no difficulty is found, practically, in understanding the exact limits of the prohibition.
The next observation of the author, that "there are vast numbers of political laws which influence the obligations of contracts, which may thus furnish an easy pretext for the aggressions of the central authority," is rather obscure. Is it intended that political laws may be passed by the central authority, influencing the obligation of a contract, and thus the contracts themselves be destroyed? The answer to this would be, that the question would not arise under the clause forbidding laws impairing the obligation of contracts, for that clause applies only to the states and not to the federal government.
If it be intended, that the states may find it necessary to pass political laws, which affect contracts, and that under the pretence of vindicating the obligation of contracts, the central authority may make aggressions on the states and annul their political laws:—the answer is, that the motive to the adoption of the clause was to reach laws of every description, political as well as all others, and that it was the abuse by the states of what may be called political laws, viz.: acts confiscating demands of foreign creditors, that gave rise to the prohibition. The settled doctrine now is, that states may pass laws in respect to the making of contracts, may prescribe what contracts shall be made, and how, but that they cannot impair any that are already made.
The writer of this note is unwilling to dismiss the subject, without remarking upon what he must think a fundamental error of the author, which is exhibited in the passage commented on, as well as in other passages:—and that is, in supposing the judiciary of the United States, and particularly the supreme court, to be a part of thepoliticalfederal government, and as the ready instrument to execute its designs upon the state authorities. Although the judges are in form commissioned by the United States, yet, in fact, they are appointed by the delegates of the state, in the senate of the United States, concurrently with, and acting upon, the nomination of the president. If the legislature of each state in the Union were to elect a judge of the supreme court, he would not be less a political officer of the United States than he now is. In truth, the judiciary have no political duties to perform; they are arbiters chosen by the federal and state governments, jointly, and when appointed, as independent of the one as of the other. They cannot be removed without the consent of the states represented in the senate, and they can be removed without the consent of the president, and against his wishes. Such is the theory of the constitution. And it has been felt practically, in the rejection by the senate of persons nominated as judges, by a president of the same political party with a majority of the senators. Two instances of this kind occurred during the administration of Mr. Jefferson.
If it be alleged that they are exposed to the influence of the executive of the United States, by the expectation of offices in his gift, the answer is, that judges of state courts are equally exposed to the same influence—that all state officers, from the highest to the lowest, are in the same predicament; and that this circumstance does not, therefore, deprive them of the character of impartial and independent arbiters.
These observations receive confirmation from every recent decision of the supreme court of the United States, in which certain laws of individual states have been sustained, in cases where, to say the least, it was very questionable whether they did not infringe the provisions of the constitution, and where a disposition to construe those previsions broadly and extensively, would have found very plausible grounds to indulge itself in annulling the state laws referred to. See the cases ofCity of New York vs. Miln, 11thPeters, 103;Briscoe vs. the Bank of the Commonwealth of Kentucky, ib., 257;Charles River Bridge vs. Warren Bridge, ib., 420.—American Ed.}
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 Prosecutions of private Individuals in the federal Courts.—Indirect Prosecution in 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 is 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 forwardbybutagainstthe Union. The constitution recognizes the legislative power of the state; and a law so enacted may impair the privileges of the Union, in which case a collision is unavoidable between that body and the state which had 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.{151}
It may be conceived that, in the case under consideration, the Union might have sued 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 individuals 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, is 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.{152} This, 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.
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.
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 successfully 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 among 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 Yorkversusthe 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 invested 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 renders 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 Consequences 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 melioration 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 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.
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, while 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.{153}
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.