American Institutions And Their Influence

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See the amendment to the federal constitution; Federalist,
No. 32. Story, p. 711. Kent's Commentaries, vol. i., p. 364.

It is to be observed, that whenever the _exclusive_ right of
regulating certain matters is not reserved to congress by the
constitution, the states may take up the affair, until it is
brought before the national assembly. For instance, congress has
the right of making a general law 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.

]

But as it was foreseen, that, in practice, questions might arise
as to the exact limits of this exceptional authority, and that it
would be dangerous to submit these questions to the decision of
the ordinary courts of justice, established in the states by the
states themselves, a high federal court was created,[Footnote:

The action of this court is indirect, as we shall hereafter show.

] which was destined, among other functions, to maintain the
balance of power which had been established by the constitution
between the two rival governments.[Footnote:

It is thus that the Federalist, No. 45, explains the division of
supremacy between the union and the states: "The powers delegated
by the constitution to the federal government are few and
defined. Those which are to remain in the state governments are
numerous and indefinite. The former will be exercised
principally on external objects, as war, peace, negotiation, and
foreign commerce. The powers reserved to the several states will
extend to all the objects which, in the ordinary course of
affairs, concern the internal order and prosperity of the state."

I shall often have occasion to quote the Federalist in this work.
When the bill which has since become the constitution of the
United States was submitted to the approval of the people, and
the discussions were still pending, three men who had already
acquired a portion of that celebrity which they have since
enjoyed, John Jay, Hamilton, and Madison, formed an association
with the intention of explaining to the nation the advantages of
the measure which was proposed. With this view they published a
series of articles in the shape of a journal, which now form a
complete treatise. They entitled their journal, "The
Federalist," a name which has been retained in the work. The
Federalist is an excellent book, which ought to be familiar to
the statesmen of all countries, although it especially concerns
America.

]

* * * * *

PREROGATIVE OF THE FEDERAL GOVERNMENT.

Power of declaring War, making Peace, and levying general Taxes
vested in the Federal Government.--What Part of the internal
Policy of the Country it may direct.--The Government of the
Union in some respects more central than the King's Government
in the old French monarchy.

The external relations of a people may be compared to those of
private individuals, and they cannot be advantageously maintained
without the agency of the single head of a government. The
exclusive right of making peace and war, of concluding treaties
of commerce, of raising armies, and equipping fleets, was
therefore granted to the Union.[Footnote:

See constitution, sect. 8. Federalist, Nos. 41 and 42. Kent's
Commentaries, vol. i., p. 207. Story, pp. 358-382; 409-426.

] The necessity of a national government was less imperiously
felt in the conduct of the internal affairs of society; but there
are certain general interests which can only be attended to with
advantage by a general authority. The Union was invested with
the power of controlling the monetary system, of directing the
post-office, and of opening the great roads which were to
establish communication between the different parts of the
country.[Footnote:

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.

] The independence of the government of each state was formally
recognized in its sphere; nevertheless the federal government was
authorized to interfere in the internal affairs of the
states[Footnote:

Even in these cases its interference is indirect. The Union
interferes by means of the tribunals, as will be hereafter shown.

] in a few predetermined cases, in which an indiscreet abuse of
their independence might compromise the security of the Union at
large. Thus, while the power of modifying and changing their
legislation at pleasure was preserved in all the republics, they
were forbidden to enact _ex post facto_ laws, or to create a
class of nobles in their community.[Footnote:

Federal Constitution, sect. 10, art. 1.

] Lastly, as it was necessary that the federal government should
be able to fulfil its engagements, it was endowed with an
unlimited power of levying taxes.[Footnote:

Constitution, sect. 8, 9, and 10. Federalist, Nos. 30-36
inclusive, and 41-14. Kent's Commentaries, vol. i., pp. 207 and
381. Story pp. 329 and 514.

]

In examining the balance of power as established by the federal
constitution; in remarking on the one hand the portion of
sovereignty which has been reserved to the several states, and on
the other the share of power which the Union has assumed, it is
evident that the federal legislators entertained the clearest and
most accurate notions on the nature of the centralisation of
government. The United States form not only a republic, but a
confederation; nevertheless the authority of the nation is more
central than it was in several of the monarchies of Europe when
the American constitution was formed. Take, for instance, the
two following examples:--

Thirteen supreme courts of justice existed in France, which,
generally speaking, had the right of interpreting the law without
appeal; and those provinces, styled _pays d'etats_, were
authorized to refuse their assent to an impost which had been
levied by the sovereign who represented the nation.

In the Union there is but one tribunal to interpret, as there is
one legislature to make the laws; and an impost voted by the
representatives of the nation is binding upon all the citizens.

In these two essential points, therefore, the Union exercises
more central authority than the French monarchy possessed,
although the Union is only an assemblage of confederate
republics.

In Spain certain provinces had the right of establishing a system
of customhouse duties peculiar to themselves, although that
privilege belongs, by its very nature, to the national
sovereignty. In America the congress alone has the right of
regulating the commercial relations of the states. The
government of the confederation is therefore more centralized in
this respect than the kingdom of Spain. It is true that the
power of the crown in France or in Spain was always able to
obtain by force whatever the constitution of the country denied,
and that the ultimate result was consequently the same; and I am
here discussing the theory of the constitution.

* * * * *

FEDERAL POWERS.

After having settled the limits within which the federal
government was to act, the next point was to determine the powers
which it was to exert.

* * * * *

LEGISLATIVE POWERS.

Division of the legislative Body into two Branches.--Difference
in the Manner of forming the two Houses.--The Principle of the
Independence of the States predominates in the Formation of the
Senate.--The Principle of the Sovereignty of the Nation in the
Composition of the House of Representatives.--Singular Effects
of the Fact that a Constitution can only be Logical in the
early Stages of a Nation.

The plan which had been laid down beforehand for the constitution
of the several states was followed, in many points, in the
organization of the powers of the Union. The federal legislature
of the Union was composed of a senate and a house of
Representatives. A spirit of conciliation prescribed the
observance of distinct principles in the formation of each of
these two assemblies. I have already shown that two contrary
interests were opposed to each other in the establishment of the
federal constitution. These two interests had given rise to two
opinions. It was the wish of one party to convert the Union into
a league of independent states, or a sort of congress, at which
the representatives of the several peoples would meet to discuss
certain points of their common interests. The other party
desired to unite the inhabitants of the American colonies into
one sole nation, and to establish a government, which should act
as the sole representative of the nation, as far as the limited
sphere of its authority would permit. The practical consequences
of these two theories were exceedingly different.

The question was, whether a league was to be established instead
of a national government; whether the majority of the states,
instead of a majority of the inhabitants of the Union, was to
give the law; for every state, the small as well as the great,
then retained the character of an independent power, and entered
the Union upon a footing of perfect equality. If, on the
contrary, the inhabitants of the United States were to be
considered as belonging to one and the same nation, it was
natural that the majority of the citizens of the Union should
prescribe the law. Of course the lesser states could not
subscribe to the application of this doctrine without, in fact,
abdicating their existence in relation to the sovereignty of the
confederation; since they would have passed from the condition of
a co-equal and co-legislative authority, to that of an
insignificant fraction of a great people. The former system
would have invested them with an excessive authority, the latter
would have annulled their influence altogether. Under these
circumstances, the result was, that the strict rules of logic
were evaded, as is usually the case when interests are opposed to
arguments. A middle course was hit upon by the legislators,
which brought together by force two systems theoretically
irreconcilable.

The principle of the independence of the states prevailed in the
formation of the senate, and that of the sovereignty of the
nation predominated in the composition of the house of
representatives. It was decided that each state should send two
senators to congress, and a number of representatives
proportioned to its population.[Footnote:

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.

] It results from this arrangement that the state of New York
has at the present day forty representatives, and only two
senators; the state of Delaware has two senators, and only one
representative; the state of Delaware is therefore equal to the
state of New York in the senate, while the latter has forty times
the influence of the former in the house of representatives.
Thus, if the minority of the nation preponderates in the senate,
it may paralyze the decisions of the majority represented in the
other house, which is contrary to the spirit of constitutional
government.

The facts show how rare and how difficult it is rationally and
logically to combine all the several parts of legislation. In
the course of time different interests arise, and different
principles are sanctioned by the same people; and when a general
constitution is to be established, these interests and principles
are so many natural obstacles to the rigorous application of any
political system, with all its consequences. The early stages of
national existence are the only periods at which it is possible
to maintain the complete logic of legislation; and when we
perceive a nation in the enjoyment of this advantage, before we
hasten to conclude that it is wise, we should do well to remember
that it is young. When the federal constitution was formed, the
interest of independence for the separate states, and the
interest of union for the whole people, were the only two
conflicting interests which existed among the Anglo-Americans;
and a compromise was necessarily made between them.

It is, however, just to acknowledge that this part of the
constitution has not hitherto produced those evils which might
have been feared. All the states are young and contiguous; their
customs, their ideas, and their wants, are not dissimilar; and
the differences which result from their size or inferiority do
not suffice to set their interests at variance. The small states
have consequently never been induced to league themselves
together in the senate to oppose the designs of the larger ones;
and indeed there is so irresistible an authority in the
legitimate expression of the will of a people, that the senate
could offer but a feeble opposition to the vote of the majority
of the house of representatives.

It must not be forgotten, on the other hand, that it was not in
the power of the American legislators to reduce to a single
nation the people for whom they were making laws. The object of
the federal constitution was not to destroy the independence of
the states, but to restrain it. By acknowledging the real
authority of these secondary communities (and it was impossible
to deprive them of it), they disavowed beforehand the habitual
use of constraint in enforcing the decisions of the majority.
Upon this principle the introduction of the influence of the
states into the mechanism of the federal government was by no
means to be wondered at; since it only attested the existence of
an acknowledged power, which was to be humored, and not forcibly
checked.

* * * * *

A FARTHER DIFFERENCE BETWEEN THE SENATE AND THE
HOUSE OF REPRESENTATIVES.

The Senate named by the provincial Legislature--the
Representatives, by the People.--Double Election of the
Former--Single Election of the Latter.--Term of the different
Offices.--Peculiar Functions of each House.

The senate not only differs from the other house in the principle
which it represents, but also in the mode of its election, in the
term for which it is chosen, and in the nature of its functions.
The house of representatives is named by the people, the senate
by the legislators of each state; the former is directly elected;
the latter is elected by an elected body; the term for which the
representatives are chosen is only two years, that of the
senators is six. The functions of the house of representatives
are purely legislative, and the only share it takes in the
judicial power is in the impeachment of public officers. The
senate co-operates in the work of legislation, and tries those
political offences which the house of representatives submits to
its decision. It also acts as the great executive council of the
nation; the treaties which are concluded by the president must be
ratified by the senate; and the appointments he may make must be
definitively approved by the same body.[Footnote:

See the Federalist, Nos. 52-66, inclusive. Story, pp. 199-314.
Constitution of the United States, sections 2 and 3.

]

* * * * *

THE EXECUTIVE POWER.
[Footnote:

See the Federalist, Nos. 67-77. Constitution of the United
States, art. 2. Story, pp. 115; 515-780. Kent's Commentaries,
p. 255.

]

Dependence of the President--He is Elective and Responsible.--He
is Free to act in his own Sphere under the Inspection, but not
under the Direction, of the Senate.--His Salary fixed at his
Entry into Office.--Suspensive Veto.

The American legislators undertook a difficult task in attempting
to create an executive power dependent on the majority of the
people and nevertheless sufficiently strong to act without
restraint in its own sphere. It was indispensable to the
maintenance of the republican form of government that the
representatives of the executive power should be subject to the
will of the nation.

The president is an elective magistrate. His honor, his
property, his liberty, and his life, are the securities which the
people has for the temperate use of his power. But in the
exercise of his authority he cannot be said to be perfectly
independent; the senate takes cognizance of his relations with
foreign powers, and of the distribution of public appointments,
so that he can neither be bribed, nor can he employ the means of
corruption. The legislators of the Union acknowledged that the
executive power would be incompetent to fulfill its task with
dignity and utility, unless it enjoyed a greater degree of
stability and of strength than had been granted to it in the
separate states.

The president is chosen for four years, and he may be re-elected;
so that the chances of a prolonged administration may inspire him
with hopeful undertakings for the public good, and with the means
of carrying them into execution. The president was made the sole
representative of the executive power of the Union; and care was
taken not to render his decisions subordinate to the vote of a
council--a dangerous measure, which tends at the same time to
clog the action of the government and to diminish its
responsibility. The senate has the right of annulling certain
acts of the president; but it cannot compel him to take any
steps, nor does it participate in the exercise of the executive
power.

The action of the legislature on the executive power may be
direct; and we have just shown that the Americans carefully
obviated this influence; but it may, on the other hand, be
indirect. Public assemblies which have the power of depriving an
officer of state of his salary, encroach upon his independence;
and as they are free to make the laws, it is to be feared lest
they should gradually appropriate to themselves a portion of that
authority which the constitution had vested in his hands. This
dependence of the executive power is one of the defects inherent
in republican constitutions. The Americans have not been able to
counteract the tendency which legislative assemblies have to get
possession of the government, but they have rendered this
propensity less irresistible. The salary of the president is
fixed, at the time of his entering upon office, for the whole
period of his magistracy. The president is, moreover, provided
with a suspensive veto, which allows him to oppose the passing of
such laws as might destroy the portion of independence which the
constitution awards him. The struggle between the president and
the legislature must always be an unequal one, since the latter
is certain of bearing down all resistance by persevering in its
plans; but the suspensive veto forces it at least to reconsider
the matter, and, if the motion be persisted in, it must then be
backed by a majority of two-thirds of the whole house. The veto
is, in fact, a sort of appeal to the people. The executive
power, which, without this security, might have been secretly
oppressed, adopts this means of pleading its cause and stating
its motives. But if the legislature is certain of overpowering
all resistance by persevering in its plans, I reply, that in the
constitutions of all nations, of whatever kind they may be, a
certain point exists at which the legislator is obliged to have
recourse to the good sense and the virtue of his fellow-citizens.
This point is more prominent and more discoverable in republics,
while it is more remote and more carefully concealed in
monarchies, but it always exists somewhere. There is no country
in the world in which everything can be provided for by the laws,
or in which political institutions can prove a substitute for
common sense and public morality.

* * * * *

DIFFERENCE BETWEEN THE POSITION OF THE PRESIDENT OF
THE UNITED STATES AND THAT OF A CONSTITUTIONAL KING
OF FRANCE.

Executive Power in the United States as Limited and as Partial as
the Supremacy which it Represents.--Executive Power in France
as Universal as the Supremacy it Represents.--The King a Branch
of the Legislature.--The President the mere Executor of the
Law.--Other Differences resulting from the Duration of the two
Powers.--The President checked in the Exercise of the executive
Authority.--The King Independent in its
Exercise.--Notwithstanding these Discrepancies, France is more
akin to a Republic than the Union to a Monarchy.--Comparison of
the Number of public Officers depending upon the executive
Power in the two countries.

The executive power has so important an influence on the
destinies of nations that I am inclined to pause for an instant
at this portion of my subject, in order more clearly to explain
the part it sustains in America. In order to form an accurate
idea of the position of the president of the United States, it
may not be irrelevant to compare it to that of one of the
constitutional kings of Europe. In this comparison I shall pay
but little attention to the external signs of power, which are
more apt to deceive the eye of the observer than to guide his
researches. When a monarchy is being gradually transformed into
a republic, the executive power retains the titles, the honors,
the etiquette, and even the funds of royalty, long after its
authority has disappeared. The English, after having cut off the
head of one king, and expelled another from his throne, were
accustomed to accost the successors of those princes upon their
knees. On the other hand, when a republic falls under the sway
of a single individual, the demeanor of the sovereign is simple
and unpretending, as if his authority was not yet paramount.
When the emperors exercised an unlimited control over the
fortunes and the lives of their fellow-citizens, it was customary
to call them Cesar in conversation, and they were in the habit of
supping without formality at their friends' houses. It is
therefore necessary to look below the surface.

The sovereignty of the United States is shared between the Union
and the states, while in France it is undivided and compact:
hence arises the first and the most notable difference which
exists between the president of the United States and the king of
France. In the United States the executive power is as limited
and partial as the sovereignty of the Union in whose name it
acts; in France it is as universal as the authority of the state.
The Americans have a federal, and the French a national
government.

The first cause of inferiority results from the nature of things,
but it is not the only one; the second in importance is as
follows: sovereignty may be defined to be the right of making
laws: in France, the king really exercises a portion of the
sovereign power, since the laws have no weight till he has given
his assent to them; he is moreover the executor of all they
ordain. The president is also the executor of the laws, but he
does not really co-operate in their formation, since the refusal
of his assent does not annul them. He is therefore merely to be
considered as the agent of the sovereign power. But not only
does the king of France exercise a portion of the sovereign
power, he also contributes to the nomination of the legislature,
which exercises the other portion. He has the privilege of
appointing the members of one chamber, and of dissolving the
other at his pleasure; whereas the president of the United States
has no share in the formation of the legislative body, and cannot
dissolve any part of it. The king has the same right of bringing
forward measures as the chambers; a right which the president
does not possess. The king is represented in each assembly by
his ministers, who explain his intentions, support his opinions,
and maintain the principles of the government. The president and
his ministers are alike excluded from congress; so that his
influence and his opinions can only penetrate indirectly into
that great body. The king of France is therefore on an equal
footing with the legislature, which can no more act without him,
than he can without it. The president exercises an authority
inferior to, and depending upon, that of the legislature.