American Institutions And Their Influence

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] 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.[Footnote:

In this case it is the majority of the states, and not the
majority of the members, which decides the question; so that New
York has not more influence in the debate than Rhode Island.
Thus the citizens of the Union are first consulted as members of
one and the same community; and, if they cannot agree, recourse
is had to the division of the states, each of which has a
separate and independent vote. This is one of the singularities
of the federal constitution which can only be explained by the
jar of conflicting interests.

]

Thus it is only in case of an event which cannot often happen,
and which can never be foreseen, that the election is 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[Footnote:

Jefferson, in 1801, was not elected until the thirty-sixth time
of balloting.

] 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.

* * * * *

CRISIS OF THE ELECTION.

The election may be considered as a national
Crisis.--Why?--Passions of the People.--Anxiety of the
President.--Calm which succeeds the Agitation of the Election.

I have shown what the circumstances are which favored the
adoption of the elective system in the United States, and what
precautions were taken by the legislators to obviate its dangers.
The Americans are 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?

* * * * *

RE-ELECTION OF THE PRESIDENT.

When the Head of the executive Power is re-eligible, it is the
State which is the Source of Intrigue and Corruption.--The
desire of being re-elected, the chief Aim of a President of the
United States.--Disadvantage of the System peculiar to
America.--The natural Evil of Democracy is that it subordinates
all Authority to the slightest Desires of the Majority.--The
Re-election of the President encourages this Evil.

It may be asked whether the legislators of the United States did
right or wrong in allowing the re-election of the president. It
seems at first sight contrary to all reason to prevent the head
of the executive power from being elected a second time. The
influence which the talents and the character of a single
individual may exercise upon the fate of a whole people,
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 the _permanent_ determinations of the majority, but
which would be able to resist its caprices, and to refuse its
most dangerous demands. To this end they centred the whole
executive power of the nation in a single arm; they granted
extensive prerogatives to the president, and they armed him with
the veto to resist the encroachments of the legislature.

But by introducing the principle of re-election, they partly
destroyed their work; and they rendered the president but little
inclined to exert the great power they had 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, ..., 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._]

* * * * *

FEDERAL COURTS.
[Footnote:

See chapter vi., entitled, "Judicial Power in the United States."
This chapter explains the general principles of the American
theory of judicial institutions. See also the federal
constitution, art. 3. See the Federalist, Nos. 78-83, inclusive:
and a work entitled, "Constitutional Law, being a View of the
Practice and Jurisdiction of the Courts of the United States," by
Thomas Sergeant. See Story, pp. 134, 162, 489, 511, 581, 668;
and the organic law of the 24th September, 1789, in the
collection of the laws of the United States, by Story, vol. i.,
p. 53.

]

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.[Footnote:

Federal laws are those which most require courts of justice, and
those at the same time which have most rarely established them.
The reason is that confederations have usually been formed by
independent states, which entertained no real intention of
obeying the central government, and which very readily ceded the
right of commanding to the federal executive, and very prudently
reserved the right of non-compliance to themselves.

] 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.[Footnote:

The Union was divided into districts, in each of which a resident
federal judge was appointed, and the court in which he presided
was termed a "district court." Each of the judges of the supreme
court annually visits a certain portion of the Republic, in order
to try the most important causes upon the spot; the court
presided over by this magistrate is styled a "circuit court."
Lastly, all the most serious cases of litigation are brought
before the supreme court, which holds a solemn session once a
year, at which all the judges of the circuit courts must attend.
The jury was introduced into the federal courts in the same
manner, and in the same cases as into the courts of the states.

It will be observed that no analogy exists between the supreme
court of the United States and the French cour de cassation,
since the latter only hears appeals. The supreme court decides
upon the evidence of the fact, as well as upon the law of the
case, whereas the cour de cassation does not pronounce a decision
of its own, but refers the cause to the arbitration of another
tribunal. See the law of 24th September, 1789, laws of the
United States, by Story, vol. i., p. 53.

] It was easy to proclaim the principle of a federal judiciary,
but difficulties multiplied when the extent of its jurisdiction
was to be determined.

* * * * *

MEANS OF DETERMINING THE JURISDICTION OF THE FEDERAL
COURTS.

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
Union _de facto_, after having established it _de
jure_; for the interpretation of the constitution would soon
have restored that portion of independence to the states of which
the terms of that act deprived them. The object of the creation
of a federal tribunal was to prevent the courts of the states
from deciding questions affecting the national interests in their
own department, and so to form a uniform body of 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.[Footnote: