American Institutions and Their Influence Part 19

[134] See the Federalist, Nos. 67-77. Const.i.tution of the United States, a. t. 2. Story, pp. 115; 515-780. Kent's Commentaries, p. 255.

[135] 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.

[136] The sums annually paid by the state to these officers amount to 200,000,000 francs (eight millions sterling).

[137] 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.

[138] As many as it sends members to congress. The number of electors at the election of 1833 was 288. (See the National Calendar, 1833.)

[139] 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.

[140] 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.

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

[142] See chapter 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 Federalist, 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 the 24th September, 1789, in the collection of the laws of the United States, by Story, vol.

i., p. 53.

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

[144] 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. 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 24th September, 1789, laws of the United States, by Story, vol. i., p. 53.

[145] 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., pp. 350, 370, _et seq._; Story's Commentaries, p. 646; and "The Organic Law of the United States," vol. i., p. 35

[146] 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. This question was most elaborately considered in the case of _Chisholme_ 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, -- 1677.

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

[148] 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.

[149] It is perfectly clear, says Mr. Story (Commentaries, p. 503, or in the large edition, -- 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 ensures, 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.

[150] A remarkable instance of this is given by Mr. Story (p. 508, or in the large edition, -- 1388). "Dartmouth college in New Hamps.h.i.+re 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 Hamps.h.i.+re 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, sect. 10), and that the amendatory 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."

[151] See chapter vi., on judicial power in America.

[152] See Kent's Commentaries, vol. i., p. 387.

[153] 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 purpose 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 intrust the managements 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 would 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 at the peril of their displeasure."

[154] This was the case in Greece, when Philip undertook to execute the decree of the Amphictyons; in the Low Countries, where the province of Holland always gave the law; and in our time in the Germanic confederation, in which Austria and Prussia a.s.sume a great degree of influence over the whole country, in the name of the Diet.

[155] Such has always been the situation of the Swiss confederation, which would have perished ages ago but for the mutual jealousies of its neighbors.

[156] I do not speak of a confederation of small republics, but of a great consolidated republic.

[157] See the Mexican const.i.tution of 1824.

[158] For instance, the Union possesses by the const.i.tution the right of selling unoccupied lands for its own profit. Supposing that the state of Ohio should claim the same right in behalf of certain territories lying within its boundaries, upon the plea that the const.i.tution refers to those lands alone which do not belong to the jurisdiction of any particular state, and consequently should choose to dispose of them itself, the litigation would be carried on in the name of the purchasers from the state of Ohio, and the purchasers from the Union, and not in the names of Ohio and the Union. But what would become of this legal fiction if the federal purchaser was confirmed in his right by the courts of the Union, while the other compet.i.tor was ordered to retain possession by the tribunals of the state of Ohio?

[The difficulty supposed by the author in this note is imaginary. The question of t.i.tle to the lands in the case put, must depend upon the const.i.tution, treaties, and laws of the United States; and a decision in the state court adverse to the claim or t.i.tle set up under those laws, must, by the very words of the const.i.tution and of the judiciary act, be subject to review by the supreme court of the United States, whose decision is final.

The remarks in the text of this page upon the relative weakness of the government of the Union, are equally applicable to any form of republican or democratic government, and are not peculiar to a federal system. Under the circ.u.mstances supposed by the author, of all the citizens of a state, or a large majority of them, aggrieved at the same time and in the same manner, by the operation of any law, the same difficulty would arise in executing the laws of the state as those of the Union. Indeed, such instances of the total inefficacy of state laws are not wanting. The fact is, that all republics depend on the willingness of the people to execute the laws. If they will not enforce them, there is, so far, an end to the government, for it possesses no power adequate to the control of the physical power of the people.

Not only in theory, but in fact, a republican government must be administered by the people themselves. They, and they alone, must execute the laws. And hence, the first principles in such governments, that on which all others depend, and without which no other can exist, is and must be, obedience to the existing laws at all times and under all circ.u.mstances. It is the vital condition of the social compact.

He who claims a dispensing power for himself, by which he suspends the operation of the law in his own case, is worse than a usurper, for he not only tramples under foot the const.i.tution of his country, but violates the reciprocal pledge which he has given to his fellow-citizens, and has received from them, that he will abide by the laws const.i.tutionally enacted; upon the strength of which pledge, his own personal rights and acquisitions are protected by the rest of the community.--_American Editor_.]

[159] Kent's Commentaries, vol. i., p. 244. I have selected an example which relates to a time posterior to the promulgation of the present const.i.tution. If I had gone back to the days of the confederation, I might have given still more striking instances. The whole nation was at that time in a state of enthusiastic excitement; the revolution was represented by a man who was the idol of the people; but at that very period congress had, to say the truth, no resources at all at its disposal. Troops and supplies were perpetually wanting. The best devised projects failed in the execution, and the Union, which was constantly on the verge of destruction, was saved by the weakness of its enemies far more than by its own strength.

[160] Appendix O.

CHAPTER IX.

WHY THE PEOPLE MAY STRICTLY BE SAID TO GOVERN IN THE UNITED STATES.

I have hitherto examined the inst.i.tutions of the United States; I have pa.s.sed their legislation in review, and I have depicted the present characteristics of political society in that country. But a sovereign power exists above these inst.i.tutions and beyond these characteristic features, which may destroy or modify them at its pleasure; I mean that of the people. It remains to be shown in what manner this power, which regulates the laws, acts: its propensities and its pa.s.sions remain to be pointed out, as well as the secret springs which r.e.t.a.r.d, accelerate, or direct its irresistible course; and the effects of its unbounded authority, with the destiny which is probably reserved for it.

In America the people appoints the legislative and the executive power, and furnishes the jurors who punish all offences against the laws. The American inst.i.tutions are democratic, not only in their principle but in all their consequences; and the people elects its representatives _directly_, and for the most part _annually_, in order to ensure their dependence. The people is therefore the real directing power; and although the form of government is representative, it is evident that the opinions, the prejudices, the interests, and even the pa.s.sions of the community are hindered by no durable obstacles from exercising a perpetual influence on society. In the United States the majority governs in the name of the people, as is the case in all the countries in which the people is supreme. This majority is princ.i.p.ally composed of peaceable citizens, who, either by inclination or by interest, are sincerely desirous of the welfare of their country. But they are surrounded by the incessant agitation of parties, which attempt to gain their co-operation and to avail themselves of their support.

CHAPTER X.

PARTIES IN THE UNITED STATES.

Great Division to be made between Parties.--Parties which are to each other as rival Nations.--Parties properly so called.--Difference between great and small Parties.--Epochs which produce them.--Their Characteristics.--America has had great Parties.--They are extinct.--Federalists.--Republicans.--Defeat of the Federalists.--Difficulty of creating Parties in the United States.--What is done with this Intention.--Aristocratic and democratic Character to be met with in all Parties.--Struggle of General Jackson against the Bank.

A great division must be made between parties. Some countries are so large that the different populations which inhabit them have contradictory interests, although they are the subjects of the same government; and they may thence be in a perpetual state of opposition.

In this case the different fractions of the people may more properly be considered as distinct nations than as mere parties; and if a civil war breaks out, the struggle is carried off by rival peoples rather than by factions in the state.

But when the citizens entertain different opinions upon subjects which affect the whole country alike, such, for instance, as the principles upon which the government is to be conducted, then distinctions arise which may correctly be styled parties. Parties are a necessary evil in free governments; but they have not at all times the same character and the same propensities.