In both countries the upper house make use of all the existing penal laws of the nation to punish the delinquents.

In the United States, as well as in Europe, one branch of the legislature is authorized to impeach, and another to judge: the house of representatives arraigns the offender, and the senate awards his sentence. But the senate can only try such persons as are brought before it by the house of representatives, and those persons must belong to the cla.s.s of public functionaries. Thus the jurisdiction of the senate is less extensive than that of the peers of France, while the right of impeachment by the representatives is more general than that of the deputies. But the great difference which exists between Europe and America is, that in Europe political tribunals are empowered to inflict all the dispositions of the penal code, while in America, when they have deprived the offender of his official rank, and have declared him incapable of filling any political office for the future, their jurisdiction terminates and that of the ordinary tribunals begins.

Suppose, for instance, that the president of the United States has committed the crime of high treason; the house of representatives impeaches him, and the senate degrades him; he must then be tried by a jury, which alone can deprive him of his liberty or his life. This accurately ill.u.s.trates the subject we are treating. The political jurisdiction which is established by the laws of Europe is intended to try great offenders, whatever may be their birth, their rank, or their powers in the state; and to this end all the privileges of the courts of justice are temporarily extended to a great political a.s.sembly. The legislator is then transformed into a magistrate: he is called upon to admit, to distinguish, and to punish the offence; and as he exercises all the authority of a judge, the law restricts him to the observance of all the duties of that high office, and of all the formalities of justice. When a public functionary is impeached before an English or a French political tribunal, and is found guilty, the sentence deprives him _ipso facto_ of his functions, and it may p.r.o.nounce him to be incapable of resuming them or any others for the future. But in this case the political interdict is a consequence of the sentence, and not the sentence itself. In Europe the sentence of a political tribunal is therefore to be regarded as a judicial verdict, rather than as an administrative measure. In the United States the contrary takes place; and although the decision of the senate is judicial in its form, since the senators are obliged to comply with the practices and formalities of a court of justice; although it is judicial in respect to the motives on which it is founded, since the senate is in general obliged to take an offence at common law as the basis of its sentence; nevertheless the object of the proceeding is purely administrative.

If it had been the intention of the American legislator to invest a political body with great judicial authority, its action would not have been limited to the circle of public functionaries, since the most dangerous enemies of the state may be in the possession of no functions at all; and this is especially true in republics, where party favor is the first of authorities, and where the strength of many a leader is increased by his exercising no legal power. If it had been the intention of the American legislator to give society the means of repressing state offences by exemplary punishment, according to the practice of ordinary judgment, the resources of the penal code would all have been placed at the disposal of the political tribunals. But the weapon with which they are intrusted is an imperfect one, and it can never reach the most dangerous offenders; since men who aim at the entire subversion of the laws are not likely to murmur at a political interdict.

The main object of the political jurisdiction which obtains in the United States is, therefore, to deprive the citizen of an authority which he has used amiss, and to prevent him from ever acquiring it again. This is evidently an administrative measure sanctioned by the formalities of judicial investigation. In this matter the Americans have created a mixed system: they have surrounded the act which removes a public functionary with the securities of a political trial; and they have deprived all political condemnations of their severest penalties.

Every link of the system may easily be traced from this point; we at once perceive why the American const.i.tutions subject all the civil functionaries to the jurisdiction of the senate, while the military, whose crimes are nevertheless more formidable, are exempt from that tribunal. In the civil service none of the American functionaries can be said to be removeable; the places which some of them occupy are inalienable, and the others derive their rights from a power which cannot be abrogated. It is therefore necessary to try them all in order to deprive them of their authority. But military officers are dependent on the chief magistrate of the state, who is himself a civil functionary; and the decision which condemns him is a blow upon them all.

If we now compare the American and European systems, we shall meet with differences no less striking in the different effects which each of them produces or may produce. In France and in England the jurisdiction of political bodies is looked upon as an extraordinary resource, which is only to be employed in order to rescue society from unwonted dangers.

It is not to be denied that these tribunals, as they are const.i.tuted in Europe, are apt to violate the conservative principle of the balance of power in the state, and to threaten incessantly the lives and liberties of the subject. The same political jurisdiction in the United States is only indirectly hostile to the balance of power; it cannot menace the lives of the citizens, and it does not hover, as in Europe, over the heads of the community, since those only who have before-hand submitted to its authority upon accepting office are exposed to its severity. It is at the same time less formidable and less efficacious; indeed, it has not been considered by the legislators of the United States as a remedy for the more violent evils of society, but as an ordinary means of conducting the government. In this respect it probably exercises more real influence on the social body in America than in Europe. We must not be misled by the apparent mildness of the American Legislation in all that relates to political jurisdiction. It is to be observed, in the first place, that in the United States the tribunal which pa.s.ses sentence is composed of the same elements, and subject to the same influences, as the body which impeaches the offender, and that this uniformity gives an almost irresistible impulse to the vindictive pa.s.sions of parties. If political judges in the United States cannot inflict such heavy penalties as those of Europe, there is the less chance of their acquitting a prisoner; and the conviction, if it is less formidable, is more certain. The princ.i.p.al object of the political tribunals of Europe is to punish the offender; the purpose of those in America is to deprive him of his authority. A political condemnation in the United States may, therefore, be looked upon as a preventive measure; and there is no reason for restricting the judges to the exact definitions of criminal law. Nothing can be more alarming than the excessive lat.i.tude with which political offences are described in the laws of America. Article II., section iv., of the const.i.tution of the United States runs thus: "The president, vice-president, and all the civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, _or other high crimes and misdemeanors_." Many of the const.i.tutions of the states are even less explicit. "Public officers," says the const.i.tution of Ma.s.sachusetts,[116] "shall be impeached for misconduct or mal-administration." The const.i.tution of Virginia declares that all the civil officers who shall have offended against the state by mal-administration, corruption, or other high crimes, may be impeached by the house of delegates: in some const.i.tutions no offences are specified, in order to subject the public functionaries to an unlimited responsibility.[117] But I will venture to affirm, that it is precisely their mildness which renders the American laws most formidable in this respect. We have shown that in Europe the removal of a functionary and his political interdiction are consequences of the penalty he is to undergo, and that in America they const.i.tute the penalty itself. The result is, that in Europe political tribunals are invested with rights which they are afraid to use, and that the fear of punishing too much hinders them from punishing at all. But in America no one hesitates to inflict a penalty from which humanity does not recoil. To condemn a political opponent to death, in order to deprive him of his power, is to commit what all the world would execrate as a horrible a.s.sa.s.sination; but to declare that opponent unworthy to exercise that authority, to deprive him of it, and to leave him uninjured in life and liberty, may appear to be the fair issue of the struggle. But this sentence, which is so easy to p.r.o.nounce, is not the less fatally severe to the majority of those upon whom it is inflicted. Great criminals may undoubtedly brave its intangible rigor, but ordinary offenders will dread it as a condemnation which destroys their position in the world, casts a blight upon their honor, and condemns them to a shameful inactivity worse than death. The influence exercised in the United States upon the progress of society by the jurisdiction of political bodies may not appear to be formidable, but it is only the more immense. It does not act directly upon the governed, but it renders the majority more absolute over those who govern; it does not confer an unbounded authority on the legislator which can only be exerted at some momentous crisis, but it establishes a temperate and regular influence, which is at all times available. If the power is decreased, it can, on the other hand, be more conveniently employed, and more easily abused. By preventing political tribunals from inflicting judicial punishments, the Americans seem to have eluded the worst consequences of legislative tyranny, rather than tyranny itself; and I am not sure that political jurisdiction, as it is const.i.tuted in the United States, is not the most formidable which has ever been placed in the rude grasp of a popular majority. When the American republics begin to degenerate, it will be easy to verify the truth of this observation, by remarking whether the number of political impeachments augments.[118]

Notes:

[116] Chapter I., sect. ii., -- 8.

[117] See the const.i.tutions of Illinois, Maine, Connecticut, and Georgia.

[118] See Appendix N.

CHAPTER VIII.

THE FEDERAL CONSt.i.tUTION.

I have hitherto considered each state as a separate whole, and I have explained the different springs which the people sets in motion, and the different means of action which it employs. But all the states which I have considered as independent are forced to submit, in certain cases, to the supreme authority of the Union. The time is now come for me to examine the partial sovereignty which has been conceded to the Union, and to cast a rapid glance over the federal const.i.tution.[119]

HISTORY OF THE FEDERAL CONSt.i.tUTION.

Origin of the first Union.--Its Weakness.--Congress appeals to the const.i.tuent Authority.--Interval of two Years between the Appeal and the Promulgation of the new Const.i.tution.

The thirteen colonies which simultaneously threw off the yoke of England toward the end of the last century, possessed, as I have already observed, the same religion, the same language, the same customs, and almost the same laws; they were struggling against a common enemy; and these reasons were sufficiently strong to unite them one to another, and to consolidate them into one nation. But as each of them had enjoyed a separate existence, and a government within its own control, the peculiar interests and customs which resulted from this system, were opposed to a compact and intimate union, which would have absorbed the individual importance of each in the general importance of all. Hence arose two opposite tendencies, the one prompting the Anglo-Americans to unite, the other to divide their strength. As long as the war with the mother-country lasted, the principle of union was kept alive by necessity; and although the laws which const.i.tuted it were defective, the common tie subsisted in spite of their imperfections.[120] But no sooner was peace concluded than the faults of the legislation became manifest, and the state seemed to be suddenly dissolved. Each colony became an independent republic, and a.s.sumed an absolute sovereignty. The federal government, condemned to impotence by its const.i.tution, and no longer sustained by the presence of a common danger, saw the outrages offered to its flag by the great nations of Europe, while it was scarcely able to maintain its ground against the Indian tribes, and to pay the interest of the debt which had been contracted during the war of independence. It was already on the verge of destruction, when it officially proclaimed its inability to conduct the government, and appealed to the const.i.tuent authority of the nation.[121]

If America ever approached (for however brief a time) that lofty pinnacle of glory to which the proud fancy of its inhabitants is wont to point, it was at the solemn moment at which the power of the nation abdicated, as it were, the empire of the land. All ages have furnished the spectacle of a people struggling with energy to win its independence; and the efforts of the Americans in throwing off the English yoke have been considerably exaggerated. Separated from their enemies by three thousand miles of ocean, and backed by a powerful ally, the success of the United States may be more justly attributed to their geographical position, than to the valor of their armies or the patriotism of their citizens. It would be ridiculous to compare the American war to the wars of the French revolution, or the efforts of the Americans to those of the French, who, when they were attacked by the whole of Europe, without credit and without allies, were still capable of opposing a twentieth part of their population to their foes, and of bearing the torch of revolution beyond their frontiers while they stifled its devouring flame within the bosom of their country. But it is a novelty in the history of society to see a great people turn a calm and scrutinizing eye upon itself when apprised by the legislature that the wheels of government had stopped; to see it carefully examine the extent of the evil, and patiently wait for two whole years until a remedy was discovered, which it voluntarily adopted without having wrung a tear or a drop of blood from mankind. At the time when the inadequacy of the first const.i.tution was discovered, America possessed the double advantage of that calm which had succeeded the effervescence of the revolution, and of those great men who had led the revolution to a successful issue. The a.s.sembly which accepted the task of composing the second const.i.tution was small;[122] but George Washington was its president, and it contained the choicest talents and the n.o.blest hearts which had ever appeared in the New World. This national commission, after long and mature deliberation, offered to the acceptance of the people the body of general laws which still rules the Union. All the states adopted it successively.[123] The new federal government commenced its functions in 1789, after an interregnum of two years. The revolution of America terminated when that of France began.

SUMMARY OF THE FEDERAL CONSt.i.tUTION.

Division of Authority between the Federal Government and the States.--The Government of the States is the Rule: the Federal Government the Exception.

The first question which awaited the Americans was intricate, and by no means easy of solution; the object was so to divide the authority of the different states which composed the Union, that each of them should continue to govern itself in all that concerned its internal prosperity, while the entire nation, represented by the Union, should continue to form a compact body, and to provide for the exigencies of the people. It was as impossible to determine beforehand, with any degree of accuracy, the share of authority which each of the two governments was to enjoy, as to foresee all the incidents in the existence of a nation.

The obligations and the claims of the federal government were simple and easily definable, because the Union had been formed with the express purpose of meeting the general exigencies of the people; but the claims and obligations of the states were, on the other hand, complicated and various, because those governments penetrated into all the details of social life. The attributes of the federal government were, therefore, carefully enumerated, and all that was not included among them was declared to const.i.tute a part of the privileges of the several governments of the states. Thus the government of the states remained the rule, and that of the confederation became the exception.[124]

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,[125] which was destined, among other functions, to maintain the balance of power which had been established by the const.i.tution between the two rival governments.[126]

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.[127] 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.[128] 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[129] 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 cla.s.s of n.o.bles in their community.[130] 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.[131]

In examining the balance of power as established by the federal const.i.tution; 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 a.s.sumed, 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 const.i.tution 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 a.s.sent 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 a.s.semblage 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 const.i.tution of the country denied, and that the ultimate result was consequently the same; and I am here discussing the theory of the const.i.tution.

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 Const.i.tution can only be Logical in the early Stages of a Nation.

The plan which had been laid down beforehand for the const.i.tution 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 a.s.semblies. I have already shown that two contrary interests were opposed to each other in the establishment of the federal const.i.tution. 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 pa.s.sed 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 circ.u.mstances, 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. .h.i.t 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.[132] 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 const.i.tutional 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 const.i.tution 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 const.i.tution 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 const.i.tution 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 const.i.tution 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.