a [ [As it existed under the const.i.tutional monarchy down to 1848.]]

In both countries the Upper House may 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, whilst 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 the 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 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 influence is the first of authorities, and where the strength of many a reader 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 justice, 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 ill-disposed 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 a judicial decision. 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, whilst the military, whose crimes are nevertheless more formidable, are exempted from that tribunal. In the civil service none of the American functionaries can be said to be removable; the places which some of them occupy are inalienable, and the others are chosen for a term which cannot be shortened. 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 the 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 submitted to its authority on accepting office are exposed to the severity of its investigations. 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 4, of the Const.i.tution of the United States runs thus:-"The President, Vice-President, and all 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, *b "shall be impeached for misconduct or maladministration;" the Const.i.tution of Virginia declares that all the civil officers who shall have offended against the State, by maladministration, 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. *c 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 the consequences of the penalty he is to undergo, and that in America they const.i.tute the penalty itself. The consequence 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 limb, may be judged to be the fair issue of the struggle. But this sentence, which it 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 directly coerce the subject, but it renders the majority more absolute over those in power; it does not confer an unbounded authority on the legislator which can 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 weapon 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.*d b [ Chap. I. sect. ii. Section 8.]

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

d [ See Appendix, N.

[The impeachment of President Andrew Johnson in 1868-which was resorted to by his political opponents solely as a means of turning him out of office, for it could not be contended that he had been guilty of high crimes and misdemeanors, and he was in fact honorably acquitted and reinstated in office-is a striking confirmation of the truth of this remark.-Translator's Note, 1874.]]

Chapter VIII: The Federal Const.i.tution-Part I

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 separately the supremacy with which the Union has been invested, and to cast a rapid glance over the Federal Const.i.tution.

Chapter Summary

Origin of the first Union-Its weakness-Congress appeals to the const.i.tuent authority-Interval of two years between this appeal and the promulgation of the new Const.i.tution.

History Of The Federal Const.i.tution The thirteen colonies which simultaneously threw off the yoke of England towards the end of the last century professed, 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. *a 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, witnessed the outrages offered to its flag by the great nations of Europe, whilst 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. *b If America ever approached (for however brief a time) that lofty pinnacle of glory to which the 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 was to the wars of the French Revolution, or the efforts of the Americans to those of the French when they were attacked by the whole of Europe, without credit and without allies, yet capable of opposing a twentieth part of their population to the world, and of bearing the torch of revolution beyond their frontiers whilst 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 are 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; *c 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. *d 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.

a [ See the articles of the first confederation formed in 1778. This const.i.tution was not adopted by all the States until 1781. See also the a.n.a.lysis given of this const.i.tution in "The Federalist" from No. 15 to No. 22, inclusive, and Story's "Commentaries on the Const.i.tution of the United States," pp. 85-115.]

b [ Congress made this declaration on February 21, 1787.]

c [ It consisted of fifty-five members; Washington, Madison, Hamilton, and the two Morrises were amongst the number.]

d [ It was not adopted by the legislative bodies, but representatives were elected by the people for this sole purpose; and the new const.i.tution was discussed at length in each of these a.s.semblies.]

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, whilst the entire nation, represented by the Union, should continue to form a compact body, and to provide for the general exigencies of the people. It was as impossible to determine beforehand, with any degree of accuracy, the share of authority which each of 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 had penetrated into all the details of social life. The attributes of the Federal Government were therefore carefully enumerated and all that was not included amongst 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. *e e [ See the Amendment to the Federal Const.i.tution; "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 Const.i.tution, the States may take up the affair until it is brought before the National a.s.sembly. For instance, Congress has the right of making a general law on bankruptcy, which, however, it neglects to do. Each State is then at liberty to make a law for itself. This point 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, *f which was destined, amongst other functions, to maintain the balance of power which had been established by the Const.i.tution between the two rival Governments. *g f [ The action of this court is indirect, as we shall hereafter show.]

g [ It is thus that "The Federalist," No. 45, explains the division of supremacy between the Union and the States: "The powers delegated by the Const.i.tution 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 princ.i.p.ally 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 Const.i.tution 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 a.s.sociation 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 ent.i.tled 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 a 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 granted to the Union. *h The necessity of a national Government was less imperiously felt in the conduct of the internal policy 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 a communication between the different parts of the country. *i 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 *j in a few predetermined cases, in which an indiscreet abuse of their independence might compromise the security of the Union at large. Thus, whilst 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. *k 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. *l h [ See Const.i.tution, sect. 8; "Federalist," Nos. 41 and 42; Kent's "Commentaries," vol. i. p. 207; Story, pp. 358-382; Ibid. pp. 409-426.]

i [ 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.]

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

k [ Federal Const.i.tution, sect. 10, art. I.]

l [ Const.i.tution, sects. 8, 9, and 10; "Federalist," Nos. 30-36, inclusive, and 41-44; 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 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 centralization 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 which were 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 custom-house 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; but 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 *m m [ [In this chapter the author points out the essence of the conflict between the seceding States and the Union which caused the Civil War of 1861.]]

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.tutions 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 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 State, instead of the majority of the inhabitants of the Union, was to give the law: for every State, the small as well as the great, would then remain in the full enjoyment of its independence, and enter the Union upon a footing of perfect equality. If, however, the inhabitants of the United States were to be considered as belonging to one and the same nation, it would be just 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. But if 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. *n 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, whilst 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.

n [ 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 Const.i.tution decided that there should not be more than one representative for every 30,000 persons; but no minimum was fixed on. The Congress has not thought fit to augment the number of representatives in proportion to the increase of population. The first Act which was pa.s.sed on the subject (April 14, 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 pa.s.sed in 1832, fixes the proportion at one for 48,000. The population represented is composed of all the free men and of three-fifths of the slaves.

[The last Act of apportionment, pa.s.sed February 2, 1872, fixes the representation at one to 134,684 inhabitants. There are now (1875) 283 members of the lower House of Congress, and 9 for the States at large, making in all 292 members. The old States have of course lost the representatives which the new States have gained.-Translator's Note.]]

These 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 interests of independence for the separate States, and the interest of union for the whole people, were the only two conflicting interests which existed amongst 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 exigencies 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 g 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 Further Difference Between The Senate And The House Of Representatives The Senate named by the provincial legislators, 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 definitely approved by the same body. *o o [ See "The Federalist," Nos. 52-56, inclusive; Story, pp. 199-314; Const.i.tution of the United States, sects. 2 and 3.] The Executive Power *p p [ See "The Federalist," Nos. 67-77; Const.i.tution of the United States, art. 2; Story, p. 315, pp. 615-780; 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 representative 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 fulfil 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 reelected; 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 g certain acts of the President; but it cannot compel him to take any steps, nor does it partic.i.p.ate 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 a.s.semblies 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 Const.i.tution had vested in his hands. This dependence of the executive power is one of the defects inherent in republican const.i.tutions. The Americans have not been able to counteract the tendency which legislative a.s.semblies 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 pa.s.sing of such laws as might destroy the portion of independence which the Const.i.tution 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 const.i.tutions 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, whilst 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 inst.i.tutions can prove a subst.i.tute for common sense and public morality.

Differences Between The Position Of The President Of The United States And That Of A Const.i.tutional King Of France Executive power in the Northern 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 const.i.tutional 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 t.i.tles, 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 successor 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 Caesar 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, whilst 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.

Chapter VIII: The Federal Const.i.tution-Part II

This 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 a.s.sent 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 a.s.sent 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 a.s.sembly 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.

Even in the exercise of the executive power, properly so called-the point upon which his position seems to be most a.n.a.logous to that of the King of France-the President labors under several causes of inferiority. The authority of the King, in France, has, in the first place, the advantage of duration over that of the President, and durability is one of the chief elements of strength; nothing is either loved or feared but what is likely to endure. The President of the United States is a magistrate elected for four years; the King, in France, is an hereditary sovereign. In the exercise of the executive power the President of the United States is constantly subject to a jealous scrutiny. He may make, but he cannot conclude, a treaty; he may designate, but he cannot appoint, a public officer. *q The King of France is absolute within the limits of his authority. The President of the United States is responsible for his actions; but the person of the King is declared inviolable by the French Charter. *r q [ The Const.i.tution had left it doubtful whether the President was obliged to consult the Senate in the removal as well as in the appointment of Federal officers. "The Federalist" (No. 77) seemed to establish the affirmative; but in 1789 Congress formally decided that, as the President was responsible for his actions, he ought not to be forced to employ agents who had forfeited his esteem. See Kent's "Commentaries", vol. i. p. 289.]

r [ [This comparison applied to the Const.i.tutional King of France and to the powers he held under the Charter of 1830, till the overthrow of the monarchy in 1848.-Translator's Note.]]

Nevertheless, the supremacy of public opinion is no less above the head of the one than of the other. This power is less definite, less evident, and less sanctioned by the laws in France than in America, but in fact it exists. In America, it acts by elections and decrees; in France it proceeds by revolutions; but notwithstanding the different const.i.tutions of these two countries, public opinion is the predominant authority in both of them. The fundamental principle of legislation-a principle essentially republican-is the same in both countries, although its consequences may be different, and its results more or less extensive. Whence I am led to conclude that France with its King is nearer akin to a republic than the Union with its President is to a monarchy.

In what I have been saying I have only touched upon the main points of distinction; and if I could have entered into details, the contrast would have been rendered still more striking. I have remarked that the authority of the President in the United States is only exercised within the limits of a partial sovereignty, whilst that of the King in France is undivided. I might have gone on to show that the power of the King's government in France exceeds its natural limits, however extensive they may be, and penetrates in a thousand different ways into the administration of private interests. Amongst the examples of this influence may be quoted that which results from the great number of public functionaries, who all derive their appointments from the Government. This number now exceeds all previous limits; it amounts to 138,000 *s nominations, each of which may be considered as an element of power. The President of the United States has not the exclusive right of making any public appointments, and their whole number scarcely exceeds 12,000. *t s [ The sums annually paid by the State to these officers amount to 200,000,000 fr. ($40,000,000).]

t [ This number is extracted from the "National Calendar" for 1833. The "National Calendar" is an American almanac which contains the names of all the Federal officers. It results from this comparison that the King of France has eleven times as many places at his disposal as the President, although the population of France is not much more than double that of the Union.

[I have not the means of ascertaining the number of appointments now at the disposal of the President of the United States, but his patronage and the abuse of it have largely increased since 1833.-Translator's Note, 1875.]]

Accidental Causes Which May Increase The Influence Of The Executive Government External security of the Union-Army of six thousand men-Few ships-The President has no opportunity of exercising his great prerogatives-In the prerogatives he exercises he is weak.

If the executive government is feebler in America than in France, the cause is more attributable to the circ.u.mstances than to the laws of the country.

It is chiefly in its foreign relations that the executive power of a nation is called upon to exert its skill and its vigor. If the existence of the Union were perpetually threatened, and if its chief interests were in daily connection with those of other powerful nations, the executive government would a.s.sume an increased importance in proportion to the measures expected of it, and those which it would carry into effect. The President of the United States is the commander-in-chief of the army, but of an army composed of only six thousand men; he commands the fleet, but the fleet reckons but few sail; he conducts the foreign relations of the Union, but the United States are a nation without neighbors. Separated from the rest of the world by the ocean, and too weak as yet to aim at the dominion of the seas, they have no enemies, and their interests rarely come into contact with those of any other nation of the globe.

The practical part of a Government must not be judged by the theory of its const.i.tution. The President of the United States is in the possession of almost royal prerogatives, which he has no opportunity of exercising; and those privileges which he can at present use are very circ.u.mscribed. The laws allow him to possess a degree of influence which circ.u.mstances do not permit him to employ.

On the other hand, the great strength of the royal prerogative in France arises from circ.u.mstances far more than from the laws. There the executive government is constantly struggling against prodigious obstacles, and exerting all its energies to repress them; so that it increases by the extent of its achievements, and by the importance of the events it controls, without modifying its const.i.tution. If the laws had made it as feeble and as circ.u.mscribed as it is in the Union, its influence would very soon become still more preponderant.

Why The President Of The United States Does Not Require The Majority Of The Two Houses In Order To Carry On The Government It is an established axiom in Europe that a const.i.tutional King cannot persevere in a system of government which is opposed by the two other branches of the legislature. But several Presidents of the United States have been known to lose the majority in the legislative body without being obliged to abandon the supreme power, and without inflicting a serious evil upon society. I have heard this fact quoted as an instance of the independence and the power of the executive government in America: a moment's reflection will convince us, on the contrary, that it is a proof of its extreme weakness.

A King in Europe requires the support of the legislature to enable him to perform the duties imposed upon him by the Const.i.tution, because those duties are enormous. A const.i.tutional King in Europe is not merely the executor of the law, but the execution of its provisions devolves so completely upon him that he has the power of paralyzing its influence if it opposes his designs. He requires the a.s.sistance of the legislative a.s.semblies to make the law, but those a.s.semblies stand in need of his aid to execute it: these two authorities cannot subsist without each other, and the mechanism of government is stopped as soon as they are at variance.

In America the President cannot prevent any law from being pa.s.sed, nor can he evade the obligation of enforcing it. His sincere and zealous co-operation is no doubt useful, but it is not indispensable, in the carrying on of public affairs. All his important acts are directly or indirectly submitted to the legislature, and of his own free authority he can do but little. It is therefore his weakness, and not his power, which enables him to remain in opposition to Congress. In Europe, harmony must reign between the Crown and the other branches of the legislature, because a collision between them may prove serious; in America, this harmony is not indispensable, because such a collision is impossible.

Election Of The President Dangers of the elective system increase in proportion to the extent of the prerogative-This system possible in America because no powerful executive authority is required-What circ.u.mstances are favorable to the elective system-Why the election of the President does not cause a deviation from the principles of the Government-Influence of the election of the President on secondary functionaries.

The dangers of the system of election applied to the head of the executive government of a great people have been sufficiently exemplified by experience and by history, and the remarks I am about to make refer to America alone. These dangers may be more or less formidable in proportion to the place which the executive power occupies, and to the importance it possesses in the State; and they may vary according to the mode of election and the circ.u.mstances in which the electors are placed. The most weighty argument against the election of a chief magistrate is, that it offers so splendid a lure to private ambition, and is so apt to inflame men in the pursuit of power, that when legitimate means are wanting force may not unfrequently seize what right denied.

It is clear that the greater the privileges of the executive authority are, the greater is the temptation; the more the ambition of the candidates is excited, the more warmly are their interests espoused by a throng of partisans who hope to share the power when their patron has won the prize. The dangers of the elective system increase, therefore, in the exact ratio of the influence exercised by the executive power in the affairs of State. The revolutions of Poland were not solely attributable to the elective system in general, but to the fact that the elected monarch was the sovereign of a powerful kingdom. Before we can discuss the absolute advantages of the elective system we must make preliminary inquiries as to whether the geographical position, the laws, the habits, the manners, and the opinions of the people amongst whom it is to be introduced will admit of the establishment of a weak and dependent executive government; for to attempt to render the representative of the State a powerful sovereign, and at the same time elective, is, in my opinion, to entertain two incompatible designs. To reduce hereditary royalty to the condition of an elective authority, the only means that I am acquainted with are to circ.u.mscribe its sphere of action beforehand, gradually to diminish its prerogatives, and to accustom the people to live without its protection. Nothing, however, is further from the designs of the republicans of Europe than this course: as many of them owe their hatred of tyranny to the sufferings which they have personally undergone, it is oppression, and not the extent of the executive power, which excites their hostility, and they attack the former without perceiving how nearly it is connected with the latter.

Hitherto no citizen has shown any disposition to expose his honor and his life in order to become the President of the United States; because the power of that office is temporary, limited, and subordinate. The prize of fortune must be great to encourage adventurers in so desperate a game. No candidate has as yet been able to arouse the dangerous enthusiasm or the pa.s.sionate sympathies of the people in his favor, for the very simple reason that when he is at the head of the Government he has but little power, but little wealth, and but little glory to share amongst his friends; and his influence in the State is too small for the success or the ruin of a faction to depend upon the elevation of an individual to power.

The great advantage of hereditary monarchies is, that as the private interest of a family is always intimately connected with the interests of the State, the executive government is never suspended for a single instant; and if the affairs of a monarchy are not better conducted than those of a republic, at least there is always some one to conduct them, well or ill, according to his capacity. In elective States, on the contrary, the wheels of government cease to act, as it were, of their own accord at the approach of an election, and even for some time previous to that event. The laws may indeed accelerate the operation of the election, which may be conducted with such simplicity and rapidity that the seat of power will never be left vacant; but, notwithstanding these precautions, a break necessarily occurs in the minds of the people.

At the approach of an election the head of the executive government is wholly occupied by the coming struggle; his future plans are doubtful; he can undertake nothing new, and the he will only prosecute with indifference those designs which another will perhaps terminate. "I am so near the time of my retirement from office," said President Jefferson on the 21st of January, 1809 (six weeks before the election), "that I feel no pa.s.sion, I take no part, I express no sentiment. It appears to me just to leave to my successor the commencement of those measures which he will have to prosecute, and for which he will be responsible."

On the other hand, the eyes of the nation are centred on a single point; all are watching the gradual birth of so important an event. The wider the influence of the executive power extends, the greater and the more necessary is its constant action, the more fatal is the term of suspense; and a nation which is accustomed to the government, or, still more, one used to the administrative protection of a powerful executive authority would be infallibly convulsed by an election of this kind. In the United States the action of the Government may be slackened with impunity, because it is always weak and circ.u.mscribed. *u u [ [This, however, may be a great danger. The period during which Mr. Buchanan retained office, after the election of Mr. Lincoln, from November, 1860, to March, 1861, was that which enabled the seceding States of the South to complete their preparations for the Civil War, and the Executive Government was paralyzed. No greater evil could befall a nation.-Translator's Note.]]

One of the princ.i.p.al vices of the elective system is that it always introduces a certain degree of instability into the internal and external policy of the State. But this disadvantage is less sensibly felt if the share of power vested in the elected magistrate is small. In Rome the principles of the Government underwent no variation, although the Consuls were changed every year, because the Senate, which was an hereditary a.s.sembly, possessed the directing authority. If the elective system were adopted in Europe, the condition of most of the monarchical States would be changed at every new election. In America the President exercises a certain influence on State affairs, but he does not conduct them; the preponderating power is vested in the representatives of the whole nation. The political maxims of the country depend therefore on the ma.s.s of the people, not on the President alone; and consequently in America the elective system has no very prejudicial influence on the fixed principles of the Government. But the want of fixed principles is an evil so inherent in the elective system that it is still extremely perceptible in the narrow sphere to which the authority of the President extends.