American Institutions and Their Influence Part 15

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; and 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.

Beside 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, beside 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 the social condition of the United States, we are struck by the admirable harmony of the gifts of fortune and the efforts of man. That 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 complete 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. The 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 intrusted to the 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 represented 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,[138] 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 intrusted 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.[139] 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 the president; but with the condition that it must fix upon one of the three candidates who have the highest numbers.[140]

Thus it is only in case of an event which cannot often happen, and which can never be foreseen, that the election is intrusted 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 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[141] which are not inherent in the elective system.

In the forty 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. John Quincy Adams was chosen.

CRISIS 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 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. Moreover, political parties in the United States, as well as elsewhere, are led to rally around 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 forth 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 elected, 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 several 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 has nearly broken its banks, sinks to its usual level; but who can refrain from astonishment at the causes of the storm?

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, especially 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 lists, the cares of government dwindle into second-rate importance, and the success of his election is his first concern. All laws and negotiations are then 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 governments still more extensive and pernicious.

It tends to degrade the political morality of the people, and to subst.i.tute adroitness for patriotism.

In America it exercises a still more fatal influence on the sources of national existence. Every government seems to be afflicted by some evil 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 consequences should long appear to be imperceptible. 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 invested 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.

[The question of the propriety of leaving the president re-eligible, is one of that cla.s.s which probably must for ever remain undecided. The author himself, at page 125, gives a strong reason for re-eligibility, "so that the chance of a prolonged administration may inspire him with hopeful undertakings for the public good, and with the means of carrying them into execution,"--considerations of great weight. There is an important fact bearing upon this question, which should be stated in connexion with it. President Washington established the practice of declining a third election, and every one of his successors, either from a sense of its propriety or from apprehensions of the force of public opinion, has followed the example. So that it has become as much a part of the const.i.tution, that no citizen can be a third time elected president, as if it were expressed in that instrument in words. This may perhaps be considered a fair adjustment of objections on either side.

Those against a continued and perpetual re-eligibility are certainly met: while the arguments in favor of an opportunity to prolong an administration under circ.u.mstances that may justify it, are allowed their due weight. One effect of this practical interpolation of the const.i.tution unquestionably is, to increase the chances of a president's being once re-elected; as men will be more disposed to acquiesce in a measure that thus practically excludes the individual from ever again entering the field of compet.i.tion.--_American Editor_]

FEDERAL COURTS.[142]

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. Judicial inst.i.tutions exercise a great influence on the condition of the Anglo-Americans, and they occupy a prominent place among what are properly 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 on 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 prolix 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 of 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 it 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 opposed to formidable opposition.[143] 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 repel the attacks which might be directed against them. The question then remained what tribunals were to exercise these privileges; were they to be intrusted 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 state 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 ensure 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 intrust 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.

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.[144]

It was easy to proclaim the principle of a federal judiciary, but difficulties multiplied when the extent of its jurisdiction was to be determined.

MEANS OF DETERMINING THE JURISDICTION OF THE FEDERAL COURTS.

Difficulty of determining the Jurisdiction of separate courts of Justice in Confederation.--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 connexion 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 jurisprudence 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.[145]

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 appear 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.