Democracy in America Vol 1

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

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The Americans have admitted that the head of the executive power, who has to bear the whole responsibility of the duties he is called upon to fulfil, ought to be empowered to choose his own agents, and to remove them at pleasure: the legislative bodies watch the conduct of the President more than they direct it. The consequence of this arrangement is, that at every new election the fate of all the Federal public officers is in suspense. Mr. Quincy Adams, on his entry into office, discharged the majority of the individuals who had been appointed by his predecessor: and I am not aware that General Jackson allowed a single removable functionary employed in the Federal service to retain his place beyond the first year which succeeded his election. It is sometimes made a subject of complaint that in the const.i.tutional monarchies of Europe the fate of the humbler servants of an Administration depends upon that of the Ministers. But in elective Governments this evil is far greater. In a const.i.tutional monarchy successive ministries are rapidly formed; but as the princ.i.p.al representative of the executive power does not change, the spirit of innovation is kept within bounds; the changes which take place are in the details rather than in the principles of the administrative system; but to subst.i.tute one system for another, as is done in America every four years, by law, is to cause a sort of revolution. As to the misfortunes which may fall upon individuals in consequence of this state of things, it must be allowed that the uncertain situation of the public officers is less fraught with evil consequences in America than elsewhere. It is so easy to acquire an independent position in the United States that the public officer who loses his place may be deprived of the comforts of life, but not of the means of subsistence.

I remarked at the beginning of this chapter that the dangers of the elective system applied to the head of the State are augmented or decreased by the peculiar circ.u.mstances of the people which adopts it. However the functions of the executive power may be restricted, it must always exercise a great influence upon the foreign policy of the country, for a negotiation cannot be opened or successfully carried on otherwise than by a single agent. The more precarious and the more perilous the position of a people becomes, the more absolute is the want of a fixed and consistent external policy, and the more dangerous does the elective system of the Chief Magistrate become. The policy of the Americans in relation to the whole world is exceedingly simple; for it may almost be said that no country stands in need of them, nor do they require the co-operation of any other people. Their independence is never threatened. In their present condition, therefore, the functions of the executive power are no less limited by circ.u.mstances than by the laws; and the President may frequently change his line of policy without involving the State in difficulty or destruction.

Whatever the prerogatives of the executive power may be, the period which immediately precedes an election and the moment of its duration must always be considered as a national crisis, which is perilous in proportion to the internal embarra.s.sments and the external dangers of the country. Few of the nations of Europe could escape the calamities of anarchy or of conquest every time they might have to elect a new sovereign. In America society is so const.i.tuted that it can stand without a.s.sistance upon its own basis; nothing is to be feared from the pressure of external dangers, and the election of the President is a cause of agitation, but not of ruin.

Mode Of Election Skill of the American legislators shown in the mode of election adopted by them-Creation of a special electoral body-Separate votes of these electors-Case in which the House of Representatives is called upon to choose the President-Results of the twelve elections which have taken place since the Const.i.tution has been established.

Besides the dangers which are inherent in the system, many other difficulties may arise from the mode of election, which may be obviated by the precaution of the legislator. When a people met in arms on some public spot to choose its head, it was exposed to all the chances of civil war resulting from so martial a mode of proceeding, besides the dangers of the elective system in itself. The Polish laws, which subjected the election of the sovereign to the veto of a single individual, suggested the murder of that individual or prepared the way to anarchy.

In the examination of the inst.i.tutions and the political as well as social condition of the United States, we are struck by the admirable harmony of the gifts of fortune and the efforts of man. The nation possessed two of the main causes of internal peace; it was a new country, but it was inhabited by a people grown old in the exercise of freedom. America had no hostile neighbors to dread; and the American legislators, profiting by these favorable circ.u.mstances, created a weak and subordinate executive power which could without danger be made elective.

It then only remained for them to choose the least dangerous of the various modes of election; and the rules which they laid down upon this point admirably correspond to the securities which the physical and political const.i.tution of the country already afforded. Their object was to find the mode of election which would best express the choice of the people with the least possible excitement and suspense. It was admitted in the first place that the simple majority should be decisive; but the difficulty was to obtain this majority without an interval of delay which it was most important to avoid. It rarely happens that an individual can at once collect the majority of the suffrages of a great people; and this difficulty is enhanced in a republic of confederate States, where local influences are apt to preponderate. The means by which it was proposed to obviate this second obstacle was to delegate the electoral powers of the nation to a body of representatives. This mode of election rendered a majority more probable; for the fewer the electors are, the greater is the chance of their coming to a final decision. It also offered an additional probability of a judicious choice. It then remained to be decided whether this right of election was to be entrusted to a legislative body, the habitual representative a.s.sembly of the nation, or whether an electoral a.s.sembly should be formed for the express purpose of proceeding to the nomination of a President. The Americans chose the latter alternative, from a belief that the individuals who were returned to make the laws were incompetent to represent the wishes of the nation in the election of its chief magistrate; and that, as they are chosen for more than a year, the const.i.tuency they represent might have changed its opinion in that time. It was thought that if the legislature was empowered to elect the head of the executive power, its members would, for some time before the election, be exposed to the manoeuvres of corruption and the tricks of intrigue; whereas the special electors would, like a jury, remain mixed up with the crowd till the day of action, when they would appear for the sole purpose of giving their votes.

It was therefore established that every State should name a certain number of electors, *v who in their turn should elect the President; and as it had been observed that the a.s.semblies to which the choice of a chief magistrate had been entrusted in elective countries inevitably became the centres of pa.s.sion and of cabal; that they sometimes usurped an authority which did not belong to them; and that their proceedings, or the uncertainty which resulted from them, were sometimes prolonged so much as to endanger the welfare of the State, it was determined that the electors should all vote upon the same day, without being convoked to the same place. *w This double election rendered a majority probable, though not certain; for it was possible that as many differences might exist between the electors as between their const.i.tuents. In this case it was necessary to have recourse to one of three measures; either to appoint new electors, or to consult a second time those already appointed, or to defer the election to another authority. The first two of these alternatives, independently of the uncertainty of their results, were likely to delay the final decision, and to perpetuate an agitation which must always be accompanied with danger. The third expedient was therefore adopted, and it was agreed that the votes should be transmitted sealed to the President of the Senate, and that they should be opened and counted in the presence of the Senate and the House of Representatives. If none of the candidates has a majority, the House of Representatives then proceeds immediately to elect a President, but with the condition that it must fix upon one of the three candidates who have the highest numbers. *x v [ As many as it sends members to Congress. The number of electors at the election of 1833 was 288. (See "The National Calendar," 1833.)]

w [ The electors of the same State a.s.semble, but they transmit to the central government the list of their individual votes, and not the mere result of the vote of the majority.] [Footnote x: In this case it is the majority of the States, and not the majority of the members, which decides the question; so that New York has not more influence in the debate than Rhode Island. Thus the citizens of the Union are first consulted as members of one and the same community; and, if they cannot agree, recourse is had to the division of the States, each of which has a separate and independent vote. This is one of the singularities of the Federal Const.i.tution which can only be explained by the jar of conflicting interests.]

Thus it is only in case of an event which cannot often happen, and which can never be foreseen, that the election is entrusted to the ordinary representatives of the nation; and even then they are obliged to choose a citizen who has already been designated by a powerful minority of the special electors. It is by this happy expedient that the respect which is due to the popular voice is combined with the utmost celerity of execution and those precautions which the peace of the country demands. But the decision of the question by the House of Representatives does not necessarily offer an immediate solution of the difficulty, for the majority of that a.s.sembly may still be doubtful, and in this case the Const.i.tution prescribes no remedy. Nevertheless, by restricting the number of candidates to three, and by referring the matter to the judgment of an enlightened public body, it has smoothed all the obstacles *y which are not inherent in the elective system.

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

In the forty-four years which have elapsed since the promulgation of the Federal Const.i.tution the United States have twelve times chosen a President. Ten of these elections took place simultaneously by the votes of the special electors in the different States. The House of Representatives has only twice exercised its conditional privilege of deciding in cases of uncertainty; the first time was at the election of Mr. Jefferson in 1801; the second was in 1825, when Mr. Quincy Adams was named. *z z [ [General Grant is now (1874) the eighteenth President of the United States.]]

Crises Of The Election The Election may be considered as a national crisis-Why?-Pa.s.sions of the people-Anxiety of the President-Calm which succeeds the agitation of the election.

I have shown what the circ.u.mstances are which favored the adoption of the elective system in the United States, and what precautions were taken by the legislators to obviate its dangers. The Americans are habitually accustomed to all kinds of elections, and they know by experience the utmost degree of excitement which is compatible with security. The vast extent of the country and the dissemination of the inhabitants render a collision between parties less probable and less dangerous there than elsewhere. The political circ.u.mstances under which the elections have hitherto been carried on have presented no real embarra.s.sments to the nation.

Nevertheless, the epoch of the election of a President of the United States may be considered as a crisis in the affairs of the nation. The influence which he exercises on public business is no doubt feeble and indirect; but the choice of the President, which is of small importance to each individual citizen, concerns the citizens collectively; and however trifling an interest may be, it a.s.sumes a great degree of importance as soon as it becomes general. The President possesses but few means of rewarding his supporters in comparison to the kings of Europe, but the places which are at his disposal are sufficiently numerous to interest, directly or indirectly, several thousand electors in his success. Political parties in the United States are led to rally round an individual, in order to acquire a more tangible shape in the eyes of the crowd, and the name of the candidate for the Presidency is put forward as the symbol and personification of their theories. For these reasons parties are strongly interested in gaining the election, not so much with a view to the triumph of their principles under the auspices of the President-elect as to show by the majority which returned him, the strength of the supporters of those principles.

For a long while before the appointed time is at hand the election becomes the most important and the all-engrossing topic of discussion. The ardor of faction is redoubled; and all the artificial pa.s.sions which the imagination can create in the bosom of a happy and peaceful land are agitated and brought to light. The President, on the other hand, is absorbed by the cares of self-defence. He no longer governs for the interest of the State, but for that of his re-election; he does homage to the majority, and instead of checking its pa.s.sions, as his duty commands him to do, he frequently courts its worst caprices. As the election draws near, the activity of intrigue and the agitation of the populace increase; the citizens are divided into hostile camps, each of which a.s.sumes the name of its favorite candidate; the whole nation glows with feverish excitement; the election is the daily theme of the public papers, the subject of private conversation, the end of every thought and every action, the sole interest of the present. As soon as the choice is determined, this ardor is dispelled; and as a calmer season returns, the current of the State, which had nearly broken its banks, sinks to its usual level: *a but who can refrain from astonishment at the causes of the storm.

a [ [Not always. The election of President Lincoln was the signal of civil war.-Translator"s Note.]]

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

Re-election Of The President

When the head of the executive power is re-eligible, it is the State which is the source of intrigue and corruption-The desire of being re-elected the chief aim of a President of the United States-Disadvantage of the system peculiar to America-The natural evil of democracy is that it subordinates all authority to the slightest desires of the majority-The re-election of the President encourages this evil.

It may be asked whether the legislators of the United States did right or wrong in allowing the re-election of the President. It seems at first sight contrary to all reason to prevent the head of the executive power from being elected a second time. The influence which the talents and the character of a single individual may exercise upon the fate of a whole people, in critical circ.u.mstances or arduous times, is well known: a law preventing the re-election of the chief magistrate would deprive the citizens of the surest pledge of the prosperity and the security of the commonwealth; and, by a singular inconsistency, a man would be excluded from the government at the very time when he had shown his ability in conducting its affairs.

But if these arguments are strong, perhaps still more powerful reasons may be advanced against them. Intrigue and corruption are the natural defects of elective government; but when the head of the State can be re-elected these evils rise to a great height, and compromise the very existence of the country. When a simple candidate seeks to rise by intrigue, his manoeuvres must necessarily be limited to a narrow sphere; but when the chief magistrate enters the lists, he borrows the strength of the government for his own purposes. In the former case the feeble resources of an individual are in action; in the latter, the State itself, with all its immense influence, is busied in the work of corruption and cabal. The private citizen, who employs the most immoral practices to acquire power, can only act in a manner indirectly prejudicial to the public prosperity. But if the representative of the executive descends into the combat, the cares of government dwindle into second-rate importance, and the success of his election is his first concern. All laws and all the negotiations he undertakes are to him nothing more than electioneering schemes; places become the reward of services rendered, not to the nation, but to its chief; and the influence of the government, if not injurious to the country, is at least no longer beneficial to the community for which it was created.

It is impossible to consider the ordinary course of affairs in the United States without perceiving that the desire of being re-elected is the chief aim of the President; that his whole administration, and even his most indifferent measures, tend to this object; and that, as the crisis approaches, his personal interest takes the place of his interest in the public good. The principle of re-eligibility renders the corrupt influence of elective government still more extensive and pernicious.

In America it exercises a peculiarly fatal influence on the sources of national existence. Every government seems to be afflicted by some evil which is inherent in its nature, and the genius of the legislator is shown in eluding its attacks. A State may survive the influence of a host of bad laws, and the mischief they cause is frequently exaggerated; but a law which encourages the growth of the canker within must prove fatal in the end, although its bad consequences may not be immediately perceived.

The principle of destruction in absolute monarchies lies in the excessive and unreasonable extension of the prerogative of the crown; and a measure tending to remove the const.i.tutional provisions which counterbalance this influence would be radically bad, even if its immediate consequences were unattended with evil. By a parity of reasoning, in countries governed by a democracy, where the people is perpetually drawing all authority to itself, the laws which increase or accelerate its action are the direct a.s.sailants of the very principle of the government.

The greatest proof of the ability of the American legislators is, that they clearly discerned this truth, and that they had the courage to act up to it. They conceived that a certain authority above the body of the people was necessary, which should enjoy a degree of independence, without, however, being entirely beyond the popular control; an authority which would be forced to comply with the permanent determinations of the majority, but which would be able to resist its caprices, and to refuse its most dangerous demands. To this end they centred the whole executive power of the nation in a single arm; they granted extensive prerogatives to the President, and they armed him with the veto to resist the encroachments of the legislature.

But by introducing the principle of re-election they partly destroyed their work; and they rendered the President but little inclined to exert the great power they had vested in his hands. If ineligible a second time, the President would be far from independent of the people, for his responsibility would not be lessened; but the favor of the people would not be so necessary to him as to induce him to court it by humoring its desires. If re-eligible (and this is more especially true at the present day, when political morality is relaxed, and when great men are rare), the President of the United States becomes an easy tool in the hands of the majority. He adopts its likings and its animosities, he hastens to antic.i.p.ate its wishes, he forestalls its complaints, he yields to its idlest cravings, and instead of guiding it, as the legislature intended that he should do, he is ever ready to follow its bidding. Thus, in order not to deprive the State of the talents of an individual, those talents have been rendered almost useless; and to reserve an expedient for extraordinary perils, the country has been exposed to daily dangers.

Federal Courts *b b [ See chap. VI, ent.i.tled "Judicial Power in the United States." This chapter explains the general principles of the American theory of judicial inst.i.tutions. See also the Federal Const.i.tution, Art. 3. See "The Federalists," Nos. 78-83, inclusive; and a work ent.i.tled "Const.i.tutional Law," being a view of the practice and jurisdiction of the courts of the United States, by Thomas Sergeant. See Story, pp. 134, 162, 489, 511, 581, 668; and the organic law of September 24, 1789, in the "Collection of the Laws of the United States," by Story, vol. i. p. 53.]

Political importance of the judiciary in the United States-Difficulty of treating this subject-Utility of judicial power in confederations-What tribunals could be introduced into the Union-Necessity of establishing federal courts of justice-Organization of the national judiciary-The Supreme Court-In what it differs from all known tribunals.

I have inquired into the legislative and executive power of the Union, and the judicial power now remains to be examined; but in this place I cannot conceal my fears from the reader. Their judicial inst.i.tutions exercise a great influence on the condition of the Anglo-Americans, and they occupy a prominent place amongst what are probably called political inst.i.tutions: in this respect they are peculiarly deserving of our attention. But I am at a loss to explain the political action of the American tribunals without entering into some technical details of their const.i.tution and their forms of proceeding; and I know not how to descend to these minutiae without wearying the curiosity of the reader by the natural aridity of the subject, or without risking to fall into obscurity through a desire to be succinct. I can scarcely hope to escape these various evils; for if I appear too lengthy to a man of the world, a lawyer may on the other hand complain of my brevity. But these are the natural disadvantages of my subject, and more especially of the point which I am about to discuss.

The great difficulty was, not to devise the Const.i.tution to the Federal Government, but to find out a method of enforcing its laws. Governments have in general but two means of overcoming the opposition of the people they govern, viz., the physical force which is at their own disposal, and the moral force which they derive from the decisions of the courts of justice.

A government which should have no other means of exacting obedience than open war must be very near its ruin, for one of two alternatives would then probably occur: if its authority was small and its character temperate, it would not resort to violence till the last extremity, and it would connive at a number of partial acts of insubordination, in which case the State would gradually fall into anarchy; if it was enterprising and powerful, it would perpetually have recourse to its physical strength, and would speedily degenerate into a military despotism. So that its activity would not be less prejudicial to the community than its inaction.

The great end of justice is to subst.i.tute the notion of right for that of violence, and to place a legal barrier between the power of the government and the use of physical force. The authority which is awarded to the intervention of a court of justice by the general opinion of mankind is so surprisingly great that it clings to the mere formalities of justice, and gives a bodily influence to the shadow of the law. The moral force which courts of justice possess renders the introduction of physical force exceedingly rare, and is very frequently subst.i.tuted for it; but if the latter proves to be indispensable, its power is doubled by the a.s.sociation of the idea of law.

A federal government stands in greater need of the support of judicial inst.i.tutions than any other, because it is naturally weak and exposed to formidable opposition. *c If it were always obliged to resort to violence in the first instance, it could not fulfil its task. The Union, therefore, required a national judiciary to enforce the obedience of the citizens to the laws, and to repeal the attacks which might be directed against them. The question then remained as to what tribunals were to exercise these privileges; were they to be entrusted to the courts of justice which were already organized in every State? or was it necessary to create federal courts? It may easily be proved that the Union could not adapt the judicial power of the States to its wants. The separation of the judiciary from the administrative power of the State no doubt affects the security of every citizen and the liberty of all. But it is no less important to the existence of the nation that these several powers should have the same origin, should follow the same principles, and act in the same sphere; in a word, that they should be correlative and h.o.m.ogeneous. No one, I presume, ever suggested the advantage of trying offences committed in France by a foreign court of justice, in order to secure the impartiality of the judges. The Americans form one people in relation to their Federal Government; but in the bosom of this people divers political bodies have been allowed to subsist which are dependent on the national Government in a few points, and independent in all the rest; which have all a distinct origin, maxims peculiar to themselves, and special means of carrying on their affairs. To entrust the execution of the laws of the Union to tribunals inst.i.tuted by these political bodies would be to allow foreign judges to preside over the nation. Nay, more; not only is each State foreign to the Union at large, but it is in perpetual opposition to the common interests, since whatever authority the Union loses turns to the advantage of the States. Thus to enforce the laws of the Union by means of the tribunals of the States would be to allow not only foreign but partial judges to preside over the nation.

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

But the number, still more than the mere character, of the tribunals of the States rendered them unfit for the service of the nation. When the Federal Const.i.tution was formed there were already thirteen courts of justice in the United States which decided causes without appeal. That number is now increased to twenty-four. To suppose that a State can subsist when its fundamental laws may be subjected to four-and-twenty different interpretations at the same time is to advance a proposition alike contrary to reason and to experience.

The American legislators therefore agreed to create a federal judiciary power to apply the laws of the Union, and to determine certain questions affecting general interests, which were carefully determined beforehand. The entire judicial power of the Union was centred in one tribunal, which was denominated the Supreme Court of the United States. But, to facilitate the expedition of business, inferior courts were appended to it, which were empowered to decide causes of small importance without appeal, and with appeal causes of more magnitude. The members of the Supreme Court are named neither by the people nor the legislature, but by the President of the United States, acting with the advice of the Senate. In order to render them independent of the other authorities, their office was made inalienable; and it was determined that their salary, when once fixed, should not be altered by the legislature. *d It was easy to proclaim the principle of a Federal judiciary, but difficulties multiplied when the extent of its jurisdiction was to be determined.

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

It will be observed that no a.n.a.logy exists between the Supreme Court of the United States and the French Cour de Ca.s.sation, since the latter only hears appeals on questions of law. The Supreme Court decides upon the evidence of the fact as well as upon the law of the case, whereas the Cour de Ca.s.sation does not p.r.o.nounce a decision of its own, but refers the cause to the arbitration of another tribunal. See the law of September 24, 1789, "Laws of the United States," by Story, vol. i. p. 53.]

Means Of Determining The Jurisdiction Of The Federal Courts Difficulty of determining the jurisdiction of separate courts of justice in confederations-The courts of the Union obtained the right of fixing their own jurisdiction-In what respect this rule attacks the portion of sovereignty reserved to the several States-The sovereignty of these States restricted by the laws, and the interpretation of the laws-Consequently, the danger of the several States is more apparent than real.

As the Const.i.tution of the United States recognized two distinct powers in presence of each other, represented in a judicial point of view by two distinct cla.s.ses of courts of justice, the utmost care which could be taken in defining their separate jurisdictions would have been insufficient to prevent frequent collisions between those tribunals. The question then arose to whom the right of deciding the competency of each court was to be referred.

In nations which const.i.tute a single body politic, when a question is debated between two courts relating to their mutual jurisdiction, a third tribunal is generally within reach to decide the difference; and this is effected without difficulty, because in these nations the questions of judicial competency have no connection with the privileges of the national supremacy. But it was impossible to create an arbiter between a superior court of the Union and the superior court of a separate State which would not belong to one of these two cla.s.ses. It was, therefore, necessary to allow one of these courts to judge its own cause, and to take or to retain cognizance of the point which was contested. To grant this privilege to the different courts of the States would have been to destroy the sovereignty of the Union de facto after having established it de jure; for the interpretation of the Const.i.tution would soon have restored that portion of independence to the States of which the terms of that act deprived them. The object of the creation of a Federal tribunal was to prevent the courts of the States from deciding questions affecting the national interests in their own department, and so to form a uniform body of jurisprudene for the interpretation of the laws of the Union. This end would not have been accomplished if the courts of the several States had been competent to decide upon cases in their separate capacities from which they were obliged to abstain as Federal tribunals. The Supreme Court of the United States was therefore invested with the right of determining all questions of jurisdiction. *e e [ In order to diminish the number of these suits, it was decided that in a great many Federal causes the courts of the States should be empowered to decide conjointly with those of the Union, the losing party having then a right of appeal to the Supreme Court of the United States. The Supreme Court of Virginia contested the right of the Supreme Court of the United States to judge an appeal from its decisions, but unsuccessfully. See "Kent"s Commentaries," vol. i. p. 300, pp. 370 et seq.; Story"s "Commentaries," p. 646; and "The Organic Law of the United States," vol. i. p. 35.]

This was a severe blow upon the independence of the States, which was thus restricted not only by the laws, but by the interpretation of them; by one limit which was known, and by another which was dubious; by a rule which was certain, and a rule which was arbitrary. It is true the Const.i.tution had laid down the precise limits of the Federal supremacy, but whenever this supremacy is contested by one of the States, a Federal tribunal decides the question. Nevertheless, the dangers with which the independence of the States was threatened by this mode of proceeding are less serious than they appeared to be. We shall see hereafter that in America the real strength of the country is vested in the provincial far more than in the Federal Government. The Federal judges are conscious of the relative weakness of the power in whose name they act, and they are more inclined to abandon a right of jurisdiction in cases where it is justly their own than to a.s.sert a privilege to which they have no legal claim.

Different Cases Of Jurisdiction The matter and the party are the first conditions of the Federal jurisdiction-Suits in which amba.s.sadors are engaged-Suits of the Union-Of a separate State-By whom tried-Causes resulting from the laws of the Union-Why judged by the Federal tribunals-Causes relating to the performance of contracts tried by the Federal courts-Consequence of this arrangement.

After having appointed the means of fixing the competency of the Federal courts, the legislators of the Union defined the cases which should come within their jurisdiction. It was established, on the one hand, that certain parties must always be brought before the Federal courts, without any regard to the special nature of the cause; and, on the other, that certain causes must always be brought before the same courts, without any regard to the quality of the parties in the suit. These distinctions were therefore admitted to be the basis of the Federal jurisdiction.

Amba.s.sadors are the representatives of nations in a state of amity with the Union, and whatever concerns these personages concerns in some degree the whole Union. When an amba.s.sador is a party in a suit, that suit affects the welfare of the nation, and a Federal tribunal is naturally called upon to decide it.

The Union itself may be invoked in legal proceedings, and in this case it would be alike contrary to the customs of all nations and to common sense to appeal to a tribunal representing any other sovereignty than its own; the Federal courts, therefore, take cognizance of these affairs.

When two parties belonging to two different States are engaged in a suit, the case cannot with propriety be brought before a court of either State. The surest expedient is to select a tribunal like that of the Union, which can excite the suspicions of neither party, and which offers the most natural as well as the most certain remedy.

When the two parties are not private individuals, but States, an important political consideration is added to the same motive of equity. The quality of the parties in this case gives a national importance to all their disputes; and the most trifling litigation of the States may be said to involve the peace of the whole Union. *f f [ The Const.i.tution also says that the Federal courts shall decide "controversies between a State and the citizens of another State." And here a most important question of a const.i.tutional nature arose, which was, whether the jurisdiction given by the Const.i.tution in cases in which a State is a party extended to suits brought against a State as well as by it, or was exclusively confined to the latter. The question was most elaborately considered in the case of Chisholm v. Georgia, and was decided by the majority of the Supreme Court in the affirmative. The decision created general alarm among the States, and an amendment was proposed and ratified by which the power was entirely taken away, so far as it regards suits brought against a State. See Story"s "Commentaries," p. 624, or in the large edition Section 1677.]

The nature of the cause frequently prescribes the rule of competency. Thus all the questions which concern maritime commerce evidently fall under the cognizance of the Federal tribunals. *g Almost all these questions are connected with the interpretation of the law of nations, and in this respect they essentially interest the Union in relation to foreign powers. Moreover, as the sea is not included within the limits of any peculiar jurisdiction, the national courts can only hear causes which originate in maritime affairs.

g [ As for instance, all cases of piracy.]

The Const.i.tution comprises under one head almost all the cases which by their very nature come within the limits of the Federal courts. The rule which it lays down is simple, but pregnant with an entire system of ideas, and with a vast mult.i.tude of facts. It declares that the judicial power of the Supreme Court shall extend to all cases in law and equity arising under the laws of the United States.

Two examples will put the intention of the legislator in the clearest light: The Const.i.tution prohibits the States from making laws on the value and circulation of money: If, notwithstanding this prohibition, a State pa.s.ses a law of this kind, with which the interested parties refuse to comply because it is contrary to the Const.i.tution, the case must come before a Federal court, because it arises under the laws of the United States. Again, if difficulties arise in the levying of import duties which have been voted by Congress, the Federal court must decide the case, because it arises under the interpretation of a law of the United States.

This rule is in perfect accordance with the fundamental principles of the Federal Const.i.tution. The Union, as it was established in 1789, possesses, it is true, a limited supremacy; but it was intended that within its limits it should form one and the same people. *h Within those limits the Union is sovereign. When this point is established and admitted, the inference is easy; for if it be acknowledged that the United States const.i.tute one and the same people within the bounds prescribed by their Const.i.tution, it is impossible to refuse them the rights which belong to other nations. But it has been allowed, from the origin of society, that every nation has the right of deciding by its own courts those questions which concern the execution of its own laws. To this it is answered that the Union is in so singular a position that in relation to some matters it const.i.tutes a people, and that in relation to all the rest it is a nonent.i.ty. But the inference to be drawn is, that in the laws relating to these matters the Union possesses all the rights of absolute sovereignty. The difficulty is to know what these matters are; and when once it is resolved (and we have shown how it was resolved, in speaking of the means of determining the jurisdiction of the Federal courts) no further doubt can arise; for as soon as it is established that a suit is Federal-that is to say, that it belongs to the share of sovereignty reserved by the Const.i.tution of the Union-the natural consequence is that it should come within the jurisdiction of a Federal court.

h [ This principle was in some measure restricted by the introduction of the several States as independent powers into the Senate, and by allowing them to vote separately in the House of Representatives when the President is elected by that body. But these are exceptions, and the contrary principle is the rule.]

Whenever the laws of the United States are attacked, or whenever they are resorted to in self-defence, the Federal courts must be appealed to. Thus the jurisdiction of the tribunals of the Union extends and narrows its limits exactly in the same ratio as the sovereignty of the Union augments or decreases. We have shown that the princ.i.p.al aim of the legislators of 1789 was to divide the sovereign authority into two parts. In the one they placed the control of all the general interests of the Union, in the other the control of the special interests of its component States. Their chief solicitude was to arm the Federal Government with sufficient power to enable it to resist, within its sphere, the encroachments of the several States. As for these communities, the principle of independence within certain limits of their own was adopted in their behalf; and they were concealed from the inspection, and protected from the control, of the central Government. In speaking of the division of authority, I observed that this latter principle had not always been held sacred, since the States are prevented from pa.s.sing certain laws which apparently belong to their own particular sphere of interest. When a State of the Union pa.s.ses a law of this kind, the citizens who are injured by its execution can appeal to the Federal courts.

Thus the jurisdiction of the Federal courts extends not only to all the cases which arise under the laws of the Union, but also to those which arise under laws made by the several States in opposition to the Const.i.tution. The States are prohibited from making ex post facto laws in criminal cases, and any person condemned by virtue of a law of this kind can appeal to the judicial power of the Union. The States are likewise prohibited from making laws which may have a tendency to impair the obligations of contracts. *i If a citizen thinks that an obligation of this kind is impaired by a law pa.s.sed in his State, he may refuse to obey it, and may appeal to the Federal courts. *j i [ It is perfectly clear, says Mr. Story ("Commentaries," p. 503, or in the large edition Section 1379), that any law which enlarges, abridges, or in any manner changes the intention of the parties, resulting from the stipulations in the contract, necessarily impairs it. He gives in the same place a very long and careful definition of what is understood by a contract in Federal jurisprudence. A grant made by the State to a private individual, and accepted by him, is a contract, and cannot be revoked by any future law. A charter granted by the State to a company is a contract, and equally binding to the State as to the grantee. The clause of the Const.i.tution here referred to insures, therefore, the existence of a great part of acquired rights, but not of all. Property may legally be held, though it may not have pa.s.sed into the possessor"s hands by means of a contract; and its possession is an acquired right, not guaranteed by the Federal Const.i.tution.]

j [ A remarkable instance of this is given by Mr. Story (p. 508, or in the large edition Section 1388): "Dartmouth College in New Hampshire had been founded by a charter granted to certain individuals before the American Revolution, and its trustees formed a corporation under this charter. The legislature of New Hampshire had, without the consent of this corporation, pa.s.sed an act changing the organization of the original provincial charter of the college, and transferring all the rights, privileges, and franchises from the old charter trustees to new trustees appointed under the act. The const.i.tutionality of the act was contested, and, after solemn arguments, it was deliberately held by the Supreme Court that the provincial charter was a contract within the meaning of the Const.i.tution (Art. I. Section 10), and that the emendatory act was utterly void, as impairing the obligation of that charter. The college was deemed, like other colleges of private foundation, to be a private eleemosynary inst.i.tution, endowed by its charter with a capacity to take property unconnected with the Government. Its funds were bestowed upon the faith of the charter, and those funds consisted entirely of private donations. It is true that the uses were in some sense public, that is, for the general benefit, and not for the mere benefit of the corporators; but this did not make the corporation a public corporation. It was a private inst.i.tution for general charity. It was not distinguishable in principle from a private donation, vested in private trustees, for a public charity, or for a particular purpose of beneficence. And the State itself, if it had bestowed funds upon a charity of the same nature, could not resume those funds."]

This provision appears to me to be the most serious attack upon the independence of the States. The rights awarded to the Federal Government for purposes of obvious national importance are definite and easily comprehensible; but those with which this last clause invests it are not either clearly appreciable or accurately defined. For there are vast numbers of political laws which influence the existence of obligations of contracts, which may thus furnish an easy pretext for the aggressions of the central authority.

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

Procedure Of The Federal Courts

Natural weakness of the judiciary power in confederations-Legislators ought to strive as much as possible to bring private individuals, and not States, before the Federal Courts-How the Americans have succeeded in this-Direct prosecution of private individuals in the Federal Courts-Indirect prosecution of the States which violate the laws of the Union-The decrees of the Supreme Court enervate but do not destroy the provincial laws.

I have shown what the privileges of the Federal courts are, and it is no less important to point out the manner in which they are exercised. The irresistible authority of justice in countries in which the sovereignty in undivided is derived from the fact that the tribunals of those countries represent the entire nation at issue with the individual against whom their decree is directed, and the idea of power is thus introduced to corroborate the idea of right. But this is not always the case in countries in which the sovereignty is divided; in them the judicial power is more frequently opposed to a fraction of the nation than to an isolated individual, and its moral authority and physical strength are consequently diminished. In federal States the power of the judge is naturally decreased, and that of the justiciable parties is augmented. The aim of the legislator in confederate States ought therefore to be to render the position of the courts of justice a.n.a.logous to that which they occupy in countries where the sovereignty is undivided; in other words, his efforts ought constantly to tend to maintain the judicial power of the confederation as the representative of the nation, and the justiciable party as the representative of an individual interest.

Every government, whatever may be its const.i.tution, requires the means of constraining its subjects to discharge their obligations, and of protecting its privileges from their a.s.saults. As far as the direct action of the Government on the community is concerned, the Const.i.tution of the United States contrived, by a master-stroke of policy, that the federal courts, acting in the name of the laws, should only take cognizance of parties in an individual capacity. For, as it had been declared that the Union consisted of one and the same people within the limits laid down by the Const.i.tution, the inference was that the Government created by this Const.i.tution, and acting within these limits, was invested with all the privileges of a national government, one of the princ.i.p.al of which is the right of transmitting its injunctions directly to the private citizen. When, for instance, the Union votes an impost, it does not apply to the States for the levying of it, but to every American citizen in proportion to his a.s.sessment. The Supreme Court, which is empowered to enforce the execution of this law of the Union, exerts its influence not upon a refractory State, but upon the private taxpayer; and, like the judicial power of other nations, it is opposed to the person of an individual. It is to be observed that the Union chose its own antagonist; and as that antagonist is feeble, he is naturally worsted.

But the difficulty increases when the proceedings are not brought forward by but against the Union. The Const.i.tution recognizes the legislative power of the States; and a law so enacted may impair the privileges of the Union, in which case a collision in unavoidable between that body and the State which has pa.s.sed the law: and it only remains to select the least dangerous remedy, which is very clearly deducible from the general principles I have before established. *k k [ See Chapter VI. on "Judicial Power in America."]

It may be conceived that, in the case under consideration, the Union might have used the State before a Federal court, which would have annulled the act, and by this means it would have adopted a natural course of proceeding; but the judicial power would have been placed in open hostility to the State, and it was desirable to avoid this predicament as much as possible. The Americans hold that it is nearly impossible that a new law should not impair the interests of some private individual by its provisions: these private interests are a.s.sumed by the American legislators as the ground of attack against such measures as may be prejudicial to the Union, and it is to these cases that the protection of the Supreme Court is extended.

Suppose a State vends a certain portion of its territory to a company, and that a year afterwards it pa.s.ses a law by which the territory is otherwise disposed of, and that clause of the Const.i.tution which prohibits laws impairing the obligation of contracts violated. When the purchaser under the second act appears to take possession, the possessor under the first act brings his action before the tribunals of the Union, and causes the t.i.tle of the claimant to be p.r.o.nounced null and void. *l Thus, in point of fact, the judicial power of the Union is contesting the claims of the sovereignty of a State; but it only acts indirectly and upon a special application of detail: it attacks the law in its consequences, not in its principle, and it rather weakens than destroys it.

l [ See Kent"s "Commentaries," vol. i. p. 387.]

The last hypothesis that remained was that each State formed a corporation enjoying a separate existence and distinct civil rights, and that it could therefore sue or be sued before a tribunal. Thus a State could bring an action against another State. In this instance the Union was not called upon to contest a provincial law, but to try a suit in which a State was a party. This suit was perfectly similar to any other cause, except that the quality of the parties was different; and here the danger pointed out at the beginning of this chapter exists with less chance of being avoided. The inherent disadvantage of the very essence of Federal const.i.tutions is that they engender parties in the bosom of the nation which present powerful obstacles to the free course of justice.

High Rank Of The Supreme Court Amongst The Great Powers Of State No nation ever const.i.tuted so great a judicial power as the Americans-Extent of its prerogative-Its political influence-The tranquillity and the very existence of the Union depend on the discretion of the seven Federal Judges.

When we have successively examined in detail the organization of the Supreme Court, and the entire prerogatives which it exercises, we shall readily admit that a more imposing judicial power was never const.i.tuted by any people. The Supreme Court is placed at the head of all known tribunals, both by the nature of its rights and the cla.s.s of justiciable parties which it controls.

In all the civilized countries of Europe the Government has always shown the greatest repugnance to allow the cases to which it was itself a party to be decided by the ordinary course of justice. This repugnance naturally attains its utmost height in an absolute Government; and, on the other hand, the privileges of the courts of justice are extended with the increasing liberties of the people: but no European nation has at present held that all judicial controversies, without regard to their origin, can be decided by the judges of common law.

In America this theory has been actually put in practice, and the Supreme Court of the United States is the sole tribunal of the nation. Its power extends to all the cases arising under laws and treaties made by the executive and legislative authorities, to all cases of admiralty and maritime jurisdiction, and in general to all points which affect the law of nations. It may even be affirmed that, although its const.i.tution is essentially judicial, its prerogatives are almost entirely political. Its sole object is to enforce the execution of the laws of the Union; and the Union only regulates the relations of the Government with the citizens, and of the nation with Foreign Powers: the relations of citizens amongst themselves are almost exclusively regulated by the sovereignty of the States.

A second and still greater cause of the preponderance of this court may be adduced. In the nations of Europe the courts of justice are only called upon to try the controversies of private individuals; but the Supreme Court of the United States summons sovereign powers to its bar. When the clerk of the court advances on the steps of the tribunal, and simply says, "The State of New York versus the State of Ohio," it is impossible not to feel that the Court which he addresses is no ordinary body; and when it is recollected that one of these parties represents one million, and the other two millions of men, one is struck by the responsibility of the seven judges whose decision is about to satisfy or to disappoint so large a number of their fellow-citizens.

The peace, the prosperity, and the very existence of the Union are vested in the hands of the seven judges. Without their active co-operation the Const.i.tution would be a dead letter: the Executive appeals to them for a.s.sistance against the encroachments of the legislative powers; the Legislature demands their protection from the designs of the Executive; they defend the Union from the disobedience of the States, the States from the exaggerated claims of the Union, the public interest against the interests of private citizens, and the conservative spirit of order against the fleeting innovations of democracy. Their power is enormous, but it is clothed in the authority of public opinion. They are the all-powerful guardians of a people which respects law, but they would be impotent against popular neglect or popular contempt. The force of public opinion is the most intractable of agents, because its exact limits cannot be defined; and it is not less dangerous to exceed than to remain below the boundary prescribed.

The Federal judges must not only be good citizens, and men possessed of that information and integrity which are indispensable to magistrates, but they must be statesmen-politicians, not unread in the signs of the times, not afraid to brave the obstacles which can be subdued, nor slow to turn aside such encroaching elements as may threaten the supremacy of the Union and the obedience which is due to the laws.

The President, who exercises a limited power, may err without causing great mischief in the State. Congress may decide amiss without destroying the Union, because the electoral body in which Congress originates may cause it to retract its decision by changing its members. But if the Supreme Court is ever composed of imprudent men or bad citizens, the Union may be plunged into anarchy or civil war.

The real cause of this danger, however, does not lie in the const.i.tution of the tribunal, but in the very nature of Federal Governments. We have observed that in confederate peoples it is especially necessary to consolidate the judicial authority, because in no other nations do those independent persons who are able to cope with the social body exist in greater power or in a better condition to resist the physical strength of the Government. But the more a power requires to be strengthened, the more extensive and independent it must be made; and the dangers which its abuse may create are heightened by its independence and its strength. The source of the evil is not, therefore, in the const.i.tution of the power, but in the const.i.tution of those States which render its existence necessary.

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 consequence 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 ameliorations 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 *n 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.

n [ [The number of States has now risen to 46 (1874), besides the District of Columbia.]]

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, whilst 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. *o o [ At this time Alexander Hamilton, who was one of the princ.i.p.al founders of the Const.i.tution, ventured to express the following sentiments in "The Federalist," No. 71:- "There are some who would be inclined to regard the servile pliancy of the Executive to a prevailing current, either in the community or in the Legislature, as its best recommendation. But such men entertain very crude notions, as well of the purposes for which government was inst.i.tuted as of the true means by which the public happiness may be promoted. The Republican principle demands that the deliberative sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of pa.s.sion, or to every transient impulse which the people may receive from the arts of men who flatter their prejudices to betray their interests. It is a just observation, that the people commonly intend the public good. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants; by the snares of the ambitious, the avaricious, the desperate; by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of persons whom they have appointed to be the guardians of those interests to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their grat.i.tude to the men who had courage and magnanimity enough to serve them at the peril of their displeasure."]

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 t

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