IN WHAT RESPECTS THE FEDERAL CONSt.i.tUTION IS SUPERIOR TO THAT OF THE STATES.

In what respects the Const.i.tution of the Union can be compared to that of the States.--Superiority of the Const.i.tution 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 const.i.tution 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 a.n.a.logy 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 const.i.tution is superior to all the const.i.tutions of the states, for several reasons.

The present const.i.tution 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 const.i.tution, and that these new republics have always rather exaggerated than avoided the defects which existed in the former const.i.tutions.

The chief cause of the superiority of the federal const.i.tution 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 pa.s.sions 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 const.i.tutions of the states a.s.sign 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 const.i.tuents.

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 const.i.tution, as well as the const.i.tutions 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 pa.s.sions 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 const.i.tution 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 a.s.sembly of a limited number of members.

To concentrate the whole social force in the hands of the legislative body is the natural tendency of democracies; for as this is the power which emanates the most directly from the people, it is made to partic.i.p.ate most fully in the preponderating authority of the mult.i.tude, and it is naturally led to monopolise every species of influence. This concentration is at once prejudicial to a well-conducted administration, and favorable to the despotism of the majority. The legislators of the states frequently yielded to these democratic propensities, which were invariably and courageously resisted by the founders of the Union.

In the states the executive power is vested in the hands of a magistrate, who is apparently placed upon a level with the legislature, but who is in reality nothing more than the blind agent and the pa.s.sive instrument of its decisions. He can derive no influence from the duration of his functions, which terminate with the revolving year, or from the exercise of prerogatives which can scarcely be said to exist.

The legislature can condemn him to inaction by intrusting the execution of the laws to special committees of its own members, and can annul his temporary dignity by depriving him of his salary. The federal const.i.tution vests all the privileges and all the responsibility of the executive power in a single individual. The duration of the presidency is fixed at four years; the salary of the individual who fills that office cannot be altered during the term of his functions; he is protected by a body of official dependents, and armed with a suspensive veto. In short, every effort was made to confer a strong and independent position upon the executive authority, within the limits which had been prescribed to it.

In the const.i.tution of all the states the judicial power is that which remains the most independent of the legislative authority: nevertheless, in all the states the legislature has reserved to itself the right of regulating the emoluments of the judges, a practice which necessarily subjects these magistrates to its immediate influence. In some states the judges are only temporarily appointed, which deprives them of a great portion of their power and their freedom. In others the legislative and judicial powers are entirely confounded: thus the senate of New York, for instance, const.i.tutes in certain cases the superior court of the state. The federal const.i.tution, on the other hand, carefully separates the judicial authority from all external influences: and it provides for the independence of the judges, by declaring that their salary shall not be altered, and that their functions shall be inalienable.

[It is not universally correct, as supposed by the author, that the state legislatures can deprive their governor of his salary at pleasure.

In the const.i.tution of New York it is provided, that the governor "shall receive for his services a compensation which shall neither be increased nor diminished during the term for which he shall have been elected;"

and similar provisions are believed to exist in other states. Nor is the remark strictly correct, that the federal const.i.tution "provides for the independence of the judges, by declaring that their salary shall not be _altered_." The provision of the const.i.tution is, that they shall, "at stated times, receive for their services a compensation which shall not be diminished during their continuance in office."--_American Editor_.]

The practical consequences of these different systems may easily be perceived. An attentive observer will soon remark that the business of the Union is incomparably better conducted than that of any individual state. The conduct of the federal government is more fair and more temperate than that of the states; its designs are more fraught with wisdom, its projects are more durable and more skilfully combined, its measures are put into execution with more vigor and consistency.

I recapitulate the substance of this chapter in a few words:--

The existence of democracies is threatened by two dangers, viz.: the complete subjection of the legislative body to the caprices of the electoral body; and the concentration of all the powers of the government in the legislative authority.

The growth of these evils has been encouraged by the policy of the legislators of the states; but it has been resisted by the legislators of the Union by every means which lay within their control.

CHARACTERISTICS WHICH DISTINGUISH THE FEDERAL CONSt.i.tUTION OF THE UNITED STATES OF AMERICA FROM ALL OTHER FEDERAL CONSt.i.tUTIONS.

American Union appears to resemble all other Confederations.--Nevertheless its Effects are different.--Reason of this.--Distinctions between the Union and all other Confederations.--The American Government not a Federal, but an imperfect National Government.

The United States of America do not afford either the first or the only instance of confederate states, several of which have existed in modern Europe, without adverting to those of antiquity. Switzerland, the Germanic empire, and the republic of the United Provinces, either have been or still are confederations. In studying the const.i.tutions of these different countries, the politician is surprised to observe that the powers with which they invested the federal government are nearly identical with the privileges awarded by the American const.i.tution to the government of the United States. They confer upon the central power the same rights of making peace and war, of raising money and troops, and of providing for the general exigencies and the common interests of the nation. Nevertheless the federal government of these different people has always been as remarkable for its weakness and inefficiency as that of the Union is for its vigorous and enterprising spirit. Again, the first American confederation perished through the excessive weakness of its government; and this weak government was, notwithstanding, in possession of rights even more extensive than those of the federal government of the present day. But the more recent const.i.tution of the United States contains certain principles which exercise a most important influence, although they do not at once strike the observer.

This const.i.tution, which may at first sight be confounded with the federal const.i.tutions which preceded it, rests upon a novel theory, which may be considered as a great invention in modern political science. In all the confederations which had been formed before the American const.i.tution of 1789, the allied states agreed to obey the injunctions of a federal government: but they reserved to themselves the right of ordaining and enforcing the execution of the laws of the Union.

The American states which combined in 1789 agreed that the federal government should not only dictate the laws, but it should execute its own enactments. In both cases the right is the same, but the exercise of the right is different; and this alteration produced the most momentous consequences.

In all the confederations which have been formed before the American Union, the federal government demanded its supplies at the hands of the separate governments; and if the measure it prescribed was onerous to any one of those bodies, means were found to evade its claims: if the state was powerful, it had recourse to arms; if it was weak, it connived at the resistance which the law of the Union, its sovereign, met with, and resorted to inaction under the plea of inability. Under these circ.u.mstances one of two alternatives has invariably occurred: either the most preponderant of the allied peoples has a.s.sumed the privileges of the federal authority, and ruled all the other states in its name,[154] or the federal government has been abandoned by its natural supporters, anarchy has arisen between the confederates, and the Union has lost all power of action.[155]

In America the subjects of the Union are not states, but private citizens: the national government levies a tax, not upon the state of Ma.s.sachusetts, but upon each inhabitant of Ma.s.sachusetts. All former confederate governments presided over communities, but that of the Union rules individuals; its force is not borrowed, but self-derived; and it is served by its own civil and military officers, by its own army, and its own courts of justice. It cannot be doubted that the spirit of the nation, the pa.s.sions of the mult.i.tude, and the provincial prejudices of each state, tend singularly to diminish the authority of a federal authority thus const.i.tuted, and to facilitate the means of resistance to its mandates; but the comparative weakness of a restricted sovereignty is an evil inherent in the federal system. In America, each state has fewer opportunities of resistance, and fewer temptations to non-compliance; nor can such a design be put in execution (if indeed it be entertained), without an open violation of the laws of the Union, a direct interruption of the ordinary course of justice, and a bold declaration of revolt; in a word, without a decisive step, which men hesitate to adopt.

In all former confederations, the privileges of the Union furnished more elements of discord than of power, since they multiplied the claims of the nation without augmenting the means of enforcing them: and in accordance with this fact it may be remarked, that the real weakness of federal governments has almost always been in the exact ratio of their nominal power. Such is not the case with the American Union, in which, as in ordinary governments, the federal government has the means of enforcing all it is empowered to demand.

The human understanding more easily invents new things than new words, and we are thence constrained to employ a mult.i.tude of improper and inadequate expressions. When several nations form a permanent league, and establish a supreme authority, which, although it has not the same influence over the members of the community as a national government, acts upon each of the confederate states in a body, this government, which is so essentially different from all others, is denominated a federal one. Another form of society is afterward discovered, in which several peoples are fused into one and the same nation with regard to certain common interests, although they remain distinct, or at least only confederate, with regard to all their other concerns. In this case the central power acts directly upon those whom it governs, whom it rules, and whom it judges, in the same manner as, but in a more limited circle than, a national government. Here the term of federal government is clearly no longer applicable to a state of things which must be styled an incomplete national government: a form of government has been found out which is neither exactly national nor federal; but no farther progress has been made, and the new word which will one day designate this novel invention does not yet exist.

The absence of this new species of confederation has been the cause which has brought all unions to civil war, to subjection, or to a stagnant apathy; and the peoples which formed these leagues have been either too dull to discern, or too pusillanimous to apply this great remedy. The American confederation perished by the same defects.

But the confederate states of America had been long accustomed to form a portion of one empire before they had won their independence: they had not contracted the habit of governing themselves, and their national prejudices had not taken deep root in their minds. Superior to the rest of the world in political knowledge, and sharing that knowledge equally among themselves, they were little agitated by the pa.s.sions which generally oppose the extension of federal authority in a nation, and those pa.s.sions were checked by the wisdom of the chief citizens.

The Americans applied the remedy with prudent firmness as soon as they were conscious of the evil; they amended their laws, and they saved their country.

ADVANTAGES OF THE FEDERAL SYSTEM IN GENERAL, AND ITS SPECIAL UTILITY IN AMERICA.

Happiness and Freedom of small Nations.--Power of Great Nations.--Great Empires favorable to the Growth of Civilisation.--Strength often the first Element of national Prosperity.--Aim of the federal System to unite the twofold Advantages resulting from a small and from a large Territory.--Advantages derived by the United States from this System.--The Law adapts itself to the Exigencies of the Population; Population does not conform to the Exigencies of the Law.--Activity, Melioration, Love, and Enjoyment of Freedom in the American Communities.--Public Spirit of the Union the abstract of provincial Patriotism.--Principles and Things circulate freely over the Territory of the United States.--The Union is happy and free as a little Nation, and respected as a great Empire.

In small nations the scrutiny of society penetrates into every part, and the spirit of improvement enters into the most trifling details; as the ambition of the people is necessarily checked by its weakness, all the efforts and resources of the citizens are turned to the internal benefit of the community, and are not likely to evaporate in the fleeting breath of glory. The desires of every individual are limited, because extraordinary faculties are rarely to be met with. The gifts of an equal fortune render the various conditions of life uniform; and the manners of the inhabitants are orderly and simple. Thus, if we estimate the gradations of popular morality and enlightenment, we shall generally find that in small nations there are more persons in easy circ.u.mstances, a more numerous population, and a more tranquil state of society than in great empires.

When tyranny is established in the bosom of a small nation, it is more galling than elsewhere, because, as it acts within a narrow circle, every point of that circle is subject to its direct influence. It supplies the place of those great designs which it cannot entertain, by a violent or an exasperating interference in a mult.i.tude of minute details; and it leaves the political world to which it properly belongs, to meddle with the arrangements of domestic life. Tastes as well as actions are to be regulated at its pleasure; and the families of the citizens as well as the affairs of the state are to be governed by its decisions. This invasion of rights occurs, however, but seldom, and freedom is in truth the natural state of small communities. The temptations which the government offers to ambition are too weak, and the resources of private individuals are too slender, for the sovereign power easily to fall within the grasp of a single citizen: and should such an event have occurred, the subjects of the state can without difficulty overthrow the tyrant and his oppression by a simultaneous effort.

Small nations have therefore ever been the cradles of political liberty: and the fact that many of them have lost their immunities by extending their dominion, shows that the freedom they enjoyed was more a consequence of their inferior size than of the character of the people.

The history of the world affords no instance of a great nation retaining the form of a republican government for a long series of years,[156]

and this had led to the conclusion that such a state of things is impracticable. For my own part, I cannot but censure the imprudence of attempting to limit the possible, and to judge the future, on the part of a being who is hourly deceived by the most palpable realities of life, and who is constantly taken by surprise in the circ.u.mstances with which he is most familiar. But it may be advanced with confidence that the existence of a great republic will always be exposed to far greater perils than that of a small one.

All the pa.s.sions which are most fatal to republican inst.i.tutions spread with an increasing territory, while the virtues which maintain their dignity do not augment in the same proportion. The ambition of the citizens increases with the power of the state; the strength of parties, with the importance of the ends they have in view; but that devotion to the common weal, which is the surest check on destructive pa.s.sions, is not stronger in a large than in a small republic. It might, indeed, be proved without difficulty that it is less powerful and less sincere. The arrogance of wealth and the dejection of wretchedness, capital cities of unwonted extent, a lax morality, a vulgar egotism, and a great confusion of interests, are the dangers which almost invariably arise from the magnitude of states. But several of these evils are scarcely prejudicial to a monarchy, and some of them contribute to maintain its existence.

In monarchical states the strength of the government is its own; it may use, but it does not depend on, the community: and the authority of the prince is proportioned to the prosperity of the nation: but the only security which a republican government possesses against these evils lies in the support of the majority. This support is not, however, proportionably greater in a large republic than it is in a small one; and thus while the means of attack perpetually increase both in number and in influence, the power of resistance remains the same; or it may rather be said to diminish, since the propensities and interests of the people are diversified by the increase of the population, and the difficulty of forming a compact majority is constantly augmented. It has been observed, moreover, that the intensity of human pa.s.sions is heightened, not only by the importance of the end which they propose to attain, but by the mult.i.tude of individuals who are animated by them at the same time. Every one has had occasion to remark that his emotions in the midst of a sympathizing crowd are far greater than those which he would have felt in solitude. In great republics the impetus of political pa.s.sion is irresistible, not only because it aims at gigantic purposes, but because it is felt and shared by millions of men at the same time.

It may therefore be a.s.serted as a general proposition, that nothing is more opposed to the well-being and the freedom of man than vast empires.

Nevertheless it is important to acknowledge the peculiar advantages of great states. For the very reason which renders the desire of power more intense in these communities than among ordinary men, the love of glory is also more prominent in the hearts of a cla.s.s of citizens, who regard the applause of a great people as a reward worthy of their exertions, and an elevating encouragement to man. If we would learn why it is that great nations contribute more powerfully to the spread of human improvement than small states, we shall discover an adequate cause in the rapid and energetic circulation of ideas, and in those great cities which are the intellectual centres where all the rays of human genius are reflected and combined. To this it may be added that most important discoveries demand a display of national power which the government of a small state is unable to make; in great nations the government entertains a greater number of general notions, and is more completely disengaged from the routine of precedent and the egotism of local prejudice; its designs are conceived with more talent, and executed with more boldness.

In time of peace the well-being of small nations is undoubtedly more general and more complete; but they are apt to suffer more acutely from the calamities of war than those great empires whose distant frontiers may for ages avert the presence of the danger from the ma.s.s of the people, which is more frequently afflicted than ruined by the evil.

But in this matter, as in many others, the argument derived from the necessity of the case predominates over all others. If none but small nations existed, I do not doubt that mankind would be more happy and more free; but the existence of great nations is unavoidable.

This consideration introduces the element of physical strength as a condition of national prosperity.

It profits a people but little to be affluent and free, if it is perpetually exposed to be pillaged or subjugated; the number of its manufactures and the extent of its commerce are of small advantage, if another nation has the empire of the seas and gives the law in all the markets of the globe. Small nations are often impoverished, not because they are small, but because they are weak; and great empires prosper less because they are great than because they are strong. Physical strength is therefore one of the first conditions of the happiness and even of the existence of nations. Hence it occurs, that unless very peculiar circ.u.mstances intervene, small nations are always united to large empires in the end, either by force or by their own consent; yet I am unacquainted with a more deplorable spectacle than that of a people unable either to defend or to maintain its independence.

The federal system was created with the intention of combining the different advantages which result from the greater and the lesser extent of nations; and a single glance over the United States of America suffices to discover the advantages which they have derived from its adoption.

In great centralized nations the legislator is obliged to impart a character of uniformity to the laws, which does not always suit the diversity of customs and of districts; as he takes no cognizance of special cases, he can only proceed upon general principles; and the population is obliged to conform to the exigencies of the legislation, since the legislation cannot adapt itself to the exigencies and customs of the population; which is the cause of endless trouble and misery.

This disadvantage does not exist in confederations; congress regulates the princ.i.p.al measures of the national government, and all the details of the administration are reserved to the provincial legislatures. It is impossible to imaging how much this division of sovereignty contributes to the well-being of each of the states which compose the Union. In these small communities, which are never agitated by the desire of aggrandizement or the cares of self-defence, all public authority and private energy is employed in internal melioration. The central government of each state, which is in immediate juxtaposition to the citizens, is daily apprised of the wants which arise in society; and new projects are proposed every year, which are discussed either at town-meetings or by the legislature of the state, and which are transmitted by the press to stimulate the zeal and to excite the interest of the citizens. This spirit of melioration is constantly alive in the American republics, without compromising their tranquillity; the ambition of power yields to the less refined and less dangerous love of comfort. It is generally believed in America that the existence and the permanence of the republican form of government in the New World depend upon the existence and the permanence of the federal system; and it is not unusual to attribute a large share of the misfortunes which have befallen the new states of South America to the injudicious erection of great republics, instead of a divided and confederate sovereignty.

It is incontestably true that the love and the habits of republican government in the United States were engendered in the townships and in the provincial a.s.semblies. In a small state, like that of Connecticut for instance, where cutting a ca.n.a.l or laying down a road is a momentous political question, where the state has no army to pay and no wars to carry on, and where much wealth and much honor cannot be bestowed upon the chief citizens, no form of government can be more natural or more appropriate than that of a republic. But it is this same republican spirit, it is these manners and customs of a free people, which are engendered and nurtured in the different states, to be afterward applied to the country at large. The public spirit of the Union is, so to speak, nothing more than an abstract of the patriotic zeal of the provinces.

Every citizen of the United States transfuses his attachment to his little republic into the common store of American patriotism. In defending the Union, he defends the increasing prosperity of his own district, the right of conducting its affairs, and the hope of causing measures of improvement to be adopted which may be favorable to his own interests; and these are motives which are wont to stir men more readily than the general interests of the country and the glory of the nation.