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Title: Democracy in America — Volume 1

Author: Alexis de Tocqueville

Translator: Henry Reeve

Release date: January 21, 2006 [eBook #815]
Most recently updated: June 11, 2024

Language: English

Other information and formats: www.gutenberg.org/ebooks/815

Credits: David Reed and David Widger

*** START OF THE PROJECT GUTENBERG EBOOK DEMOCRACY
IN AMERICA — VOLUME 1 ***

DEMOCRACY IN AMERICA

By Alexis De Tocqueville

AVOCAT À LA COUR ROYALE DE PARIS
ETC., ETC.

Translated by
Henry Reeve, Esq.
IN TWO VOLUMES.
VOL. I.

LONDON:
SAUNDERS AND OTLEY, CONDUIT STREET
1835

Contents

Book One
Introductory Chapter
Chapter I: Exterior Form Of North America
Chapter Summary
Chapter II: Origin Of The Anglo-Americans—Part I
Chapter Summary
Chapter II: Origin Of The Anglo-Americans—Part II
Chapter III: Social Conditions Of The Anglo-Americans
Chapter Summary
Chapter IV: The Principle Of The Sovereignty Of The People In America
Chapter Summary
Chapter V: Necessity Of Examining The Condition Of The States—Part I
Chapter V: Necessity Of Examining The Condition Of The States—Part II
Chapter V: Necessity Of Examining The Condition Of The States—Part III
Chapter VI: Judicial Power In The United States
Chapter Summary
Chapter VII: Political Jurisdiction In The United States
Chapter Summary
Chapter VIII: The Federal Constitution—Part I
Chapter Summary
Summary Of The Federal Constitution
Chapter VIII: The Federal Constitution—Part II
Chapter VIII: The Federal Constitution—Part III
Chapter VIII: The Federal Constitution—Part IV
Chapter VIII: The Federal Constitution—Part V

Chapter IX: Why The People May Strictly Be Said To Govern In The
United
Chapter X: Parties In The United States
Chapter Summary
Parties In The United States
Chapter XI: Liberty Of The Press In The United States
Chapter Summary
Chapter XII: Political Associations In The United States
Chapter Summary
Chapter XIII: Government Of The Democracy In America—Part I
Chapter XIII: Government Of The Democracy In America—Part II
Chapter XIII: Government Of The Democracy In America—Part III
Chapter XIV: Advantages American Society Derive From Democracy—
Part I
Chapter XIV: Advantages American Society Derive From Democracy—
Part II
Chapter XV: Unlimited Power Of Majority, And Its Consequences—Part I
Chapter Summary
Chapter XV: Unlimited Power Of Majority, And Its Consequences—Part II
Chapter XVI: Causes Mitigating Tyranny In The United States—Part I
Chapter Summary
Chapter XVI: Causes Mitigating Tyranny In The United States—Part II
Chapter XVII: Principal Causes Maintaining The Democratic Republic—
Part I
Chapter XVII: Principal Causes Maintaining The Democratic Republic—
Part II
Chapter XVII: Principal Causes Maintaining The Democratic Republic—
Part III
Chapter XVII: Principal Causes Maintaining The Democratic Republic—
Part IV
Chapter XVIII: Future Condition Of Three Races In The United States—
Part I
Chapter XVIII: Future Condition Of Three Races—Part II

Chapter XVIII: Future Condition Of Three Races—Part III
Chapter XVIII: Future Condition Of Three Races—Part IV
Chapter XVIII: Future Condition Of Three Races—Part V
Chapter XVIII: Future Condition Of Three Races—Part VI
Chapter XVIII: Future Condition Of Three Races—Part VII
Chapter XVIII: Future Condition Of Three Races—Part VIII
Chapter XVIII: Future Condition Of Three Races—Part IX
Chapter XVIII: Future Condition Of Three Races—Part X
Conclusion

Book One

Introductory Chapter

Amongst the novel objects that attracted my attention during my stay in
the United States, nothing struck me more forcibly than the general equality
of conditions. I readily discovered the prodigious influence which this
primary fact exercises on the whole course of society, by giving a certain
direction to public opinion, and a certain tenor to the laws; by imparting
new maxims to the governing powers, and peculiar habits to the governed. I
speedily perceived that the influence of this fact extends far beyond the
political character and the laws of the country, and that it has no less empire
over civil society than over the Government; it creates opinions, engenders
sentiments, suggests the ordinary practices of life, and modifies whatever it
does not produce. The more I advanced in the study of American society,
the more I perceived that the equality of conditions is the fundamental fact
from which all others seem to be derived, and the central point at which all
my observations constantly terminated.
I then turned my thoughts to our own hemisphere, where I imagined that
I discerned something analogous to the spectacle which the New World
presented to me. I observed that the equality of conditions is daily
progressing towards those extreme limits which it seems to have reached in
the United States, and that the democracy which governs the American
communities appears to be rapidly rising into power in Europe. I hence
conceived the idea of the book which is now before the reader.
It is evident to all alike that a great democratic revolution is going on
amongst us; but there are two opinions as to its nature and consequences. To
some it appears to be a novel accident, which as such may still be checked;
to others it seems irresistible, because it is the most uniform, the most
ancient, and the most permanent tendency which is to be found in history.
Let us recollect the situation of France seven hundred years ago, when the
territory was divided amongst a small number of families, who were the
owners of the soil and the rulers of the inhabitants; the right of governing

descended with the family inheritance from generation to generation; force
was the only means by which man could act on man, and landed property
was the sole source of power. Soon, however, the political power of the
clergy was founded, and began to exert itself: the clergy opened its ranks to
all classes, to the poor and the rich, the villein and the lord; equality
penetrated into the Government through the Church, and the being who as a
serf must have vegetated in perpetual bondage took his place as a priest in
the midst of nobles, and not infrequently above the heads of kings.
The different relations of men became more complicated and more
numerous as society gradually became more stable and more civilized.
Thence the want of civil laws was felt; and the order of legal functionaries
soon rose from the obscurity of the tribunals and their dusty chambers, to
appear at the court of the monarch, by the side of the feudal barons in their
ermine and their mail. Whilst the kings were ruining themselves by their
great enterprises, and the nobles exhausting their resources by private wars,
the lower orders were enriching themselves by commerce. The influence of
money began to be perceptible in State affairs. The transactions of business
opened a new road to power, and the financier rose to a station of political
influence in which he was at once flattered and despised. Gradually the
spread of mental acquirements, and the increasing taste for literature and
art, opened chances of success to talent; science became a means of
government, intelligence led to social power, and the man of letters took a
part in the affairs of the State. The value attached to the privileges of birth
decreased in the exact proportion in which new paths were struck out to
advancement. In the eleventh century nobility was beyond all price; in the
thirteenth it might be purchased; it was conferred for the first time in 1270;
and equality was thus introduced into the Government by the aristocracy
itself.
In the course of these seven hundred years it sometimes happened that in
order to resist the authority of the Crown, or to diminish the power of their
rivals, the nobles granted a certain share of political rights to the people. Or,
more frequently, the king permitted the lower orders to enjoy a degree of
power, with the intention of repressing the aristocracy. In France the kings
have always been the most active and the most constant of levellers. When
they were strong and ambitious they spared no pains to raise the people to
the level of the nobles; when they were temperate or weak they allowed the
people to rise above themselves. Some assisted the democracy by their

talents, others by their vices. Louis XI and Louis XIV reduced every rank
beneath the throne to the same subjection; Louis XV descended, himself
and all his Court, into the dust.
As soon as land was held on any other than a feudal tenure, and personal
property began in its turn to confer influence and power, every
improvement which was introduced in commerce or manufacture was a
fresh element of the equality of conditions. Henceforward every new
discovery, every new want which it engendered, and every new desire
which craved satisfaction, was a step towards the universal level. The taste
for luxury, the love of war, the sway of fashion, and the most superficial as
well as the deepest passions of the human heart, co-operated to enrich the
poor and to impoverish the rich.
From the time when the exercise of the intellect became the source of
strength and of wealth, it is impossible not to consider every addition to
science, every fresh truth, and every new idea as a germ of power placed
within the reach of the people. Poetry, eloquence, and memory, the grace of
wit, the glow of imagination, the depth of thought, and all the gifts which
are bestowed by Providence with an equal hand, turned to the advantage of
the democracy; and even when they were in the possession of its
adversaries they still served its cause by throwing into relief the natural
greatness of man; its conquests spread, therefore, with those of civilization
and knowledge, and literature became an arsenal where the poorest and the
weakest could always find weapons to their hand.
In perusing the pages of our history, we shall scarcely meet with a single
great event, in the lapse of seven hundred years, which has not turned to the
advantage of equality. The Crusades and the wars of the English decimated
the nobles and divided their possessions; the erection of communities
introduced an element of democratic liberty into the bosom of feudal
monarchy; the invention of fire-arms equalized the villein and the noble on
the field of battle; printing opened the same resources to the minds of all
classes; the post was organized so as to bring the same information to the
door of the poor man’s cottage and to the gate of the palace; and
Protestantism proclaimed that all men are alike able to find the road to
heaven. The discovery of America offered a thousand new paths to fortune,
and placed riches and power within the reach of the adventurous and the
obscure. If we examine what has happened in France at intervals of fifty

years, beginning with the eleventh century, we shall invariably perceive that
a twofold revolution has taken place in the state of society. The noble has
gone down on the social ladder, and the roturier has gone up; the one
descends as the other rises. Every half century brings them nearer to each
other, and they will very shortly meet.
Nor is this phenomenon at all peculiar to France. Whithersoever we turn
our eyes we shall witness the same continual revolution throughout the
whole of Christendom. The various occurrences of national existence have
everywhere turned to the advantage of democracy; all men have aided it by
their exertions: those who have intentionally labored in its cause, and those
who have served it unwittingly; those who have fought for it and those who
have declared themselves its opponents, have all been driven along in the
same track, have all labored to one end, some ignorantly and some
unwillingly; all have been blind instruments in the hands of God.
The gradual development of the equality of conditions is therefore a
providential fact, and it possesses all the characteristics of a divine decree:
it is universal, it is durable, it constantly eludes all human interference, and
all events as well as all men contribute to its progress. Would it, then, be
wise to imagine that a social impulse which dates from so far back can be
checked by the efforts of a generation? Is it credible that the democracy
which has annihilated the feudal system and vanquished kings will respect
the citizen and the capitalist? Will it stop now that it has grown so strong
and its adversaries so weak? None can say which way we are going, for all
terms of comparison are wanting: the equality of conditions is more
complete in the Christian countries of the present day than it has been at
any time or in any part of the world; so that the extent of what already
exists prevents us from foreseeing what may be yet to come.
The whole book which is here offered to the public has been written
under the impression of a kind of religious dread produced in the author’s
mind by the contemplation of so irresistible a revolution, which has
advanced for centuries in spite of such amazing obstacles, and which is still
proceeding in the midst of the ruins it has made. It is not necessary that God
himself should speak in order to disclose to us the unquestionable signs of
His will; we can discern them in the habitual course of nature, and in the
invariable tendency of events: I know, without a special revelation, that the
planets move in the orbits traced by the Creator’s finger. If the men of our

time were led by attentive observation and by sincere reflection to
acknowledge that the gradual and progressive development of social
equality is at once the past and future of their history, this solitary truth
would confer the sacred character of a Divine decree upon the change. To
attempt to check democracy would be in that case to resist the will of God;
and the nations would then be constrained to make the best of the social lot
awarded to them by Providence.
The Christian nations of our age seem to me to present a most alarming
spectacle; the impulse which is bearing them along is so strong that it
cannot be stopped, but it is not yet so rapid that it cannot be guided: their
fate is in their hands; yet a little while and it may be so no longer. The first
duty which is at this time imposed upon those who direct our affairs is to
educate the democracy; to warm its faith, if that be possible; to purify its
morals; to direct its energies; to substitute a knowledge of business for its
inexperience, and an acquaintance with its true interests for its blind
propensities; to adapt its government to time and place, and to modify it in
compliance with the occurrences and the actors of the age. A new science of
politics is indispensable to a new world. This, however, is what we think of
least; launched in the middle of a rapid stream, we obstinately fix our eyes
on the ruins which may still be described upon the shore we have left,
whilst the current sweeps us along, and drives us backwards towards the
gulf.
In no country in Europe has the great social revolution which I have been
describing made such rapid progress as in France; but it has always been
borne on by chance. The heads of the State have never had any forethought
for its exigencies, and its victories have been obtained without their consent
or without their knowledge. The most powerful, the most intelligent, and
the most moral classes of the nation have never attempted to connect
themselves with it in order to guide it. The people has consequently been
abandoned to its wild propensities, and it has grown up like those outcasts
who receive their education in the public streets, and who are unacquainted
with aught but the vices and wretchedness of society. The existence of a
democracy was seemingly unknown, when on a sudden it took possession
of the supreme power. Everything was then submitted to its caprices; it was
worshipped as the idol of strength; until, when it was enfeebled by its own
excesses, the legislator conceived the rash project of annihilating its power,

instead of instructing it and correcting its vices; no attempt was made to fit
it to govern, but all were bent on excluding it from the government.
The consequence of this has been that the democratic revolution has been
effected only in the material parts of society, without that concomitant
change in laws, ideas, customs, and manners which was necessary to render
such a revolution beneficial. We have gotten a democracy, but without the
conditions which lessen its vices and render its natural advantages more
prominent; and although we already perceive the evils it brings, we are
ignorant of the benefits it may confer.
While the power of the Crown, supported by the aristocracy, peaceably
governed the nations of Europe, society possessed, in the midst of its
wretchedness, several different advantages which can now scarcely be
appreciated or conceived. The power of a part of his subjects was an
insurmountable barrier to the tyranny of the prince; and the monarch, who
felt the almost divine character which he enjoyed in the eyes of the
multitude, derived a motive for the just use of his power from the respect
which he inspired. High as they were placed above the people, the nobles
could not but take that calm and benevolent interest in its fate which the
shepherd feels towards his flock; and without acknowledging the poor as
their equals, they watched over the destiny of those whose welfare
Providence had entrusted to their care. The people never having conceived
the idea of a social condition different from its own, and entertaining no
expectation of ever ranking with its chiefs, received benefits from them
without discussing their rights. It grew attached to them when they were
clement and just, and it submitted without resistance or servility to their
exactions, as to the inevitable visitations of the arm of God. Custom, and
the manners of the time, had moreover created a species of law in the midst
of violence, and established certain limits to oppression. As the noble never
suspected that anyone would attempt to deprive him of the privileges which
he believed to be legitimate, and as the serf looked upon his own inferiority
as a consequence of the immutable order of nature, it is easy to imagine that
a mutual exchange of good-will took place between two classes so
differently gifted by fate. Inequality and wretchedness were then to be
found in society; but the souls of neither rank of men were degraded. Men
are not corrupted by the exercise of power or debased by the habit of
obedience, but by the exercise of a power which they believe to be illegal
and by obedience to a rule which they consider to be usurped and

oppressive. On one side was wealth, strength, and leisure, accompanied by
the refinements of luxury, the elegance of taste, the pleasures of wit, and the
religion of art. On the other was labor and a rude ignorance; but in the midst
of this coarse and ignorant multitude it was not uncommon to meet with
energetic passions, generous sentiments, profound religious convictions,
and independent virtues. The body of a State thus organized might boast of
its stability, its power, and, above all, of its glory.
But the scene is now changed, and gradually the two ranks mingle; the
divisions which once severed mankind are lowered, property is divided,
power is held in common, the light of intelligence spreads, and the
capacities of all classes are equally cultivated; the State becomes
democratic, and the empire of democracy is slowly and peaceably
introduced into the institutions and the manners of the nation. I can
conceive a society in which all men would profess an equal attachment and
respect for the laws of which they are the common authors; in which the
authority of the State would be respected as necessary, though not as divine;
and the loyalty of the subject to its chief magistrate would not be a passion,
but a quiet and rational persuasion. Every individual being in the possession
of rights which he is sure to retain, a kind of manly reliance and reciprocal
courtesy would arise between all classes, alike removed from pride and
meanness. The people, well acquainted with its true interests, would allow
that in order to profit by the advantages of society it is necessary to satisfy
its demands. In this state of things the voluntary association of the citizens
might supply the individual exertions of the nobles, and the community
would be alike protected from anarchy and from oppression.
I admit that, in a democratic State thus constituted, society will not be
stationary; but the impulses of the social body may be regulated and
directed forwards; if there be less splendor than in the halls of an
aristocracy, the contrast of misery will be less frequent also; the pleasures of
enjoyment may be less excessive, but those of comfort will be more
general; the sciences may be less perfectly cultivated, but ignorance will be
less common; the impetuosity of the feelings will be repressed, and the
habits of the nation softened; there will be more vices and fewer crimes. In
the absence of enthusiasm and of an ardent faith, great sacrifices may be
obtained from the members of a commonwealth by an appeal to their
understandings and their experience; each individual will feel the same
necessity for uniting with his fellow-citizens to protect his own weakness;

and as he knows that if they are to assist he must co-operate, he will readily
perceive that his personal interest is identified with the interest of the
community. The nation, taken as a whole, will be less brilliant, less
glorious, and perhaps less strong; but the majority of the citizens will enjoy
a greater degree of prosperity, and the people will remain quiet, not because
it despairs of amelioration, but because it is conscious of the advantages of
its condition. If all the consequences of this state of things were not good or
useful, society would at least have appropriated all such as were useful and
good; and having once and for ever renounced the social advantages of
aristocracy, mankind would enter into possession of all the benefits which
democracy can afford.
But here it may be asked what we have adopted in the place of those
institutions, those ideas, and those customs of our forefathers which we
have abandoned. The spell of royalty is broken, but it has not been
succeeded by the majesty of the laws; the people has learned to despise all
authority, but fear now extorts a larger tribute of obedience than that which
was formerly paid by reverence and by love.
I perceive that we have destroyed those independent beings which were
able to cope with tyranny single-handed; but it is the Government that has
inherited the privileges of which families, corporations, and individuals
have been deprived; the weakness of the whole community has therefore
succeeded that influence of a small body of citizens, which, if it was
sometimes oppressive, was often conservative. The division of property has
lessened the distance which separated the rich from the poor; but it would
seem that the nearer they draw to each other, the greater is their mutual
hatred, and the more vehement the envy and the dread with which they
resist each other’s claims to power; the notion of Right is alike insensible to
both classes, and Force affords to both the only argument for the present,
and the only guarantee for the future. The poor man retains the prejudices of
his forefathers without their faith, and their ignorance without their virtues;
he has adopted the doctrine of self-interest as the rule of his actions, without
understanding the science which controls it, and his egotism is no less blind
than his devotedness was formerly. If society is tranquil, it is not because it
relies upon its strength and its well-being, but because it knows its
weakness and its infirmities; a single effort may cost it its life; everybody
feels the evil, but no one has courage or energy enough to seek the cure; the
desires, the regret, the sorrows, and the joys of the time produce nothing

that is visible or permanent, like the passions of old men which terminate in
impotence.
We have, then, abandoned whatever advantages the old state of things
afforded, without receiving any compensation from our present condition;
we have destroyed an aristocracy, and we seem inclined to survey its ruins
with complacency, and to fix our abode in the midst of them.
The phenomena which the intellectual world presents are not less
deplorable. The democracy of France, checked in its course or abandoned to
its lawless passions, has overthrown whatever crossed its path, and has
shaken all that it has not destroyed. Its empire on society has not been
gradually introduced or peaceably established, but it has constantly
advanced in the midst of disorder and the agitation of a conflict. In the heat
of the struggle each partisan is hurried beyond the limits of his opinions by
the opinions and the excesses of his opponents, until he loses sight of the
end of his exertions, and holds a language which disguises his real
sentiments or secret instincts. Hence arises the strange confusion which we
are witnessing. I cannot recall to my mind a passage in history more worthy
of sorrow and of pity than the scenes which are happening under our eyes;
it is as if the natural bond which unites the opinions of man to his tastes and
his actions to his principles was now broken; the sympathy which has
always been acknowledged between the feelings and the ideas of mankind
appears to be dissolved, and all the laws of moral analogy to be abolished.
Zealous Christians may be found amongst us whose minds are nurtured
in the love and knowledge of a future life, and who readily espouse the
cause of human liberty as the source of all moral greatness. Christianity,
which has declared that all men are equal in the sight of God, will not
refuse to acknowledge that all citizens are equal in the eye of the law. But,
by a singular concourse of events, religion is entangled in those institutions
which democracy assails, and it is not unfrequently brought to reject the
equality it loves, and to curse that cause of liberty as a foe which it might
hallow by its alliance.
By the side of these religious men I discern others whose looks are turned
to the earth more than to Heaven; they are the partisans of liberty, not only
as the source of the noblest virtues, but more especially as the root of all
solid advantages; and they sincerely desire to extend its sway, and to impart
its blessings to mankind. It is natural that they should hasten to invoke the

assistance of religion, for they must know that liberty cannot be established
without morality, nor morality without faith; but they have seen religion in
the ranks of their adversaries, and they inquire no further; some of them
attack it openly, and the remainder are afraid to defend it.
In former ages slavery has been advocated by the venal and slavish-
minded, whilst the independent and the warm-hearted were struggling
without hope to save the liberties of mankind. But men of high and
generous characters are now to be met with, whose opinions are at variance
with their inclinations, and who praise that servility which they have
themselves never known. Others, on the contrary, speak in the name of
liberty, as if they were able to feel its sanctity and its majesty, and loudly
claim for humanity those rights which they have always disowned. There
are virtuous and peaceful individuals whose pure morality, quiet habits,
affluence, and talents fit them to be the leaders of the surrounding
population; their love of their country is sincere, and they are prepared to
make the greatest sacrifices to its welfare, but they confound the abuses of
civilization with its benefits, and the idea of evil is inseparable in their
minds from that of novelty.
Not far from this class is another party, whose object is to materialize
mankind, to hit upon what is expedient without heeding what is just, to
acquire knowledge without faith, and prosperity apart from virtue;
assuming the title of the champions of modern civilization, and placing
themselves in a station which they usurp with insolence, and from which
they are driven by their own unworthiness. Where are we then? The
religionists are the enemies of liberty, and the friends of liberty attack
religion; the high-minded and the noble advocate subjection, and the
meanest and most servile minds preach independence; honest and
enlightened citizens are opposed to all progress, whilst men without
patriotism and without principles are the apostles of civilization and of
intelligence. Has such been the fate of the centuries which have preceded
our own? and has man always inhabited a world like the present, where
nothing is linked together, where virtue is without genius, and genius
without honor; where the love of order is confounded with a taste for
oppression, and the holy rites of freedom with a contempt of law; where the
light thrown by conscience on human actions is dim, and where nothing
seems to be any longer forbidden or allowed, honorable or shameful, false
or true? I cannot, however, believe that the Creator made man to leave him

in an endless struggle with the intellectual miseries which surround us: God
destines a calmer and a more certain future to the communities of Europe; I
am unacquainted with His designs, but I shall not cease to believe in them
because I cannot fathom them, and I had rather mistrust my own capacity
than His justice.
There is a country in the world where the great revolution which I am
speaking of seems nearly to have reached its natural limits; it has been
effected with ease and simplicity, say rather that this country has attained
the consequences of the democratic revolution which we are undergoing
without having experienced the revolution itself. The emigrants who fixed
themselves on the shores of America in the beginning of the seventeenth
century severed the democratic principle from all the principles which
repressed it in the old communities of Europe, and transplanted it unalloyed
to the New World. It has there been allowed to spread in perfect freedom,
and to put forth its consequences in the laws by influencing the manners of
the country.
It appears to me beyond a doubt that sooner or later we shall arrive, like
the Americans, at an almost complete equality of conditions. But I do not
conclude from this that we shall ever be necessarily led to draw the same
political consequences which the Americans have derived from a similar
social organization. I am far from supposing that they have chosen the only
form of government which a democracy may adopt; but the identity of the
efficient cause of laws and manners in the two countries is sufficient to
account for the immense interest we have in becoming acquainted with its
effects in each of them.
It is not, then, merely to satisfy a legitimate curiosity that I have
examined America; my wish has been to find instruction by which we may
ourselves profit. Whoever should imagine that I have intended to write a
panegyric will perceive that such was not my design; nor has it been my
object to advocate any form of government in particular, for I am of opinion
that absolute excellence is rarely to be found in any legislation; I have not
even affected to discuss whether the social revolution, which I believe to be
irresistible, is advantageous or prejudicial to mankind; I have acknowledged
this revolution as a fact already accomplished or on the eve of its
accomplishment; and I have selected the nation, from amongst those which
have undergone it, in which its development has been the most peaceful and

the most complete, in order to discern its natural consequences, and, if it be
possible, to distinguish the means by which it may be rendered profitable. I
confess that in America I saw more than America; I sought the image of
democracy itself, with its inclinations, its character, its prejudices, and its
passions, in order to learn what we have to fear or to hope from its progress.
In the first part of this work I have attempted to show the tendency given
to the laws by the democracy of America, which is abandoned almost
without restraint to its instinctive propensities, and to exhibit the course it
prescribes to the Government and the influence it exercises on affairs. I
have sought to discover the evils and the advantages which it produces. I
have examined the precautions used by the Americans to direct it, as well as
those which they have not adopted, and I have undertaken to point out the
causes which enable it to govern society. I do not know whether I have
succeeded in making known what I saw in America, but I am certain that
such has been my sincere desire, and that I have never, knowingly, moulded
facts to ideas, instead of ideas to facts.
Whenever a point could be established by the aid of written documents, I
have had recourse to the original text, and to the most authentic and
approved works. I have cited my authorities in the notes, and anyone may
refer to them. Whenever an opinion, a political custom, or a remark on the
manners of the country was concerned, I endeavored to consult the most
enlightened men I met with. If the point in question was important or
doubtful, I was not satisfied with one testimony, but I formed my opinion
on the evidence of several witnesses. Here the reader must necessarily
believe me upon my word. I could frequently have quoted names which are
either known to him, or which deserve to be so, in proof of what I advance;
but I have carefully abstained from this practice. A stranger frequently hears
important truths at the fire-side of his host, which the latter would perhaps
conceal from the ear of friendship; he consoles himself with his guest for
the silence to which he is restricted, and the shortness of the traveller’s stay
takes away all fear of his indiscretion. I carefully noted every conversation
of this nature as soon as it occurred, but these notes will never leave my
writing-case; I had rather injure the success of my statements than add my
name to the list of those strangers who repay the generous hospitality they
have received by subsequent chagrin and annoyance.

I am aware that, notwithstanding my care, nothing will be easier than to
criticise this book, if anyone ever chooses to criticise it. Those readers who
may examine it closely will discover the fundamental idea which connects
the several parts together. But the diversity of the subjects I have had to
treat is exceedingly great, and it will not be difficult to oppose an isolated
fact to the body of facts which I quote, or an isolated idea to the body of
ideas I put forth. I hope to be read in the spirit which has guided my labors,
and that my book may be judged by the general impression it leaves, as I
have formed my own judgment not on any single reason, but upon the mass
of evidence. It must not be forgotten that the author who wishes to be
understood is obliged to push all his ideas to their utmost theoretical
consequences, and often to the verge of what is false or impracticable; for if
it be necessary sometimes to quit the rules of logic in active life, such is not
the case in discourse, and a man finds that almost as many difficulties
spring from inconsistency of language as usually arise from inconsistency
of conduct.
I conclude by pointing out myself what many readers will consider the
principal defect of the work. This book is written to favor no particular
views, and in composing it I have entertained no designs of serving or
attacking any party; I have undertaken not to see differently, but to look
further than parties, and whilst they are busied for the morrow I have turned
my thoughts to the Future.

Chapter I: Exterior Form Of North America

Chapter Summary

North America divided into two vast regions, one inclining towards the
Pole, the other towards the Equator—Valley of the Mississippi—Traces of
the Revolutions of the Globe—Shore of the Atlantic Ocean where the
English Colonies were founded—Difference in the appearance of North and
of South America at the time of their Discovery—Forests of North America
—Prairies—Wandering Tribes of Natives—Their outward appearance,
manners, and language—Traces of an unknown people.
Exterior Form Of North America
North America presents in its external form certain general features
which it is easy to discriminate at the first glance. A sort of methodical
order seems to have regulated the separation of land and water, mountains
and valleys. A simple, but grand, arrangement is discoverable amidst the
confusion of objects and the prodigious variety of scenes. This continent is
divided, almost equally, into two vast regions, one of which is bounded on
the north by the Arctic Pole, and by the two great oceans on the east and
west. It stretches towards the south, forming a triangle whose irregular sides
meet at length below the great lakes of Canada. The second region begins
where the other terminates, and includes all the remainder of the continent.
The one slopes gently towards the Pole, the other towards the Equator.
The territory comprehended in the first region descends towards the north
with so imperceptible a slope that it may almost be said to form a level
plain. Within the bounds of this immense tract of country there are neither
high mountains nor deep valleys. Streams meander through it irregularly:
great rivers mix their currents, separate and meet again, disperse and form
vast marshes, losing all trace of their channels in the labyrinth of waters
they have themselves created; and thus, at length, after innumerable
windings, fall into the Polar Seas. The great lakes which bound this first
region are not walled in, like most of those in the Old World, between hills
and rocks. Their banks are flat, and rise but a few feet above the level of
their waters; each of them thus forming a vast bowl filled to the brim. The

slightest change in the structure of the globe would cause their waters to
rush either towards the Pole or to the tropical sea.
The second region is more varied on its surface, and better suited for the
habitation of man. Two long chains of mountains divide it from one
extreme to the other; the Alleghany ridge takes the form of the shores of the
Atlantic Ocean; the other is parallel with the Pacific. The space which lies
between these two chains of mountains contains 1,341,649 square miles. *a
Its surface is therefore about six times as great as that of France. This vast
territory, however, forms a single valley, one side of which descends
gradually from the rounded summits of the Alleghanies, while the other
rises in an uninterrupted course towards the tops of the Rocky Mountains.
At the bottom of the valley flows an immense river, into which the various
streams issuing from the mountains fall from all parts. In memory of their
native land, the French formerly called this river the St. Louis. The Indians,
in their pompous language, have named it the Father of Waters, or the
Mississippi.
a
[ Darby’s “View of the United States.”]

The Mississippi takes its source above the limit of the two great regions
of which I have spoken, not far from the highest point of the table-land
where they unite. Near the same spot rises another river, *b which empties
itself into the Polar seas. The course of the Mississippi is at first dubious: it
winds several times towards the north, from whence it rose; and at length,
after having been delayed in lakes and marshes, it flows slowly onwards to
the south. Sometimes quietly gliding along the argillaceous bed which
nature has assigned to it, sometimes swollen by storms, the Mississippi
waters 2,500 miles in its course. *c At the distance of 1,364 miles from its
mouth this river attains an average depth of fifteen feet; and it is navigated
by vessels of 300 tons burden for a course of nearly 500 miles. Fifty-seven
large navigable rivers contribute to swell the waters of the Mississippi;
amongst others, the Missouri, which traverses a space of 2,500 miles; the
Arkansas of 1,300 miles, the Red River 1,000 miles, four whose course is
from 800 to 1,000 miles in length, viz., the Illinois, the St. Peter’s, the St.
Francis, and the Moingona; besides a countless multitude of rivulets which
unite from all parts their tributary streams.

b
[ The Red River.]

c
[ Warden’s “Description of the United States.”]

The valley which is watered by the Mississippi seems formed to be the
bed of this mighty river, which, like a god of antiquity, dispenses both good
and evil in its course. On the shores of the stream nature displays an
inexhaustible fertility; in proportion as you recede from its banks, the
powers of vegetation languish, the soil becomes poor, and the plants that
survive have a sickly growth. Nowhere have the great convulsions of the
globe left more evident traces than in the valley of the Mississippi; the
whole aspect of the country shows the powerful effects of water, both by its
fertility and by its barrenness. The waters of the primeval ocean
accumulated enormous beds of vegetable mould in the valley, which they
levelled as they retired. Upon the right shore of the river are seen immense
plains, as smooth as if the husbandman had passed over them with his
roller. As you approach the mountains the soil becomes more and more
unequal and sterile; the ground is, as it were, pierced in a thousand places
by primitive rocks, which appear like the bones of a skeleton whose flesh is
partly consumed. The surface of the earth is covered with a granite sand and
huge irregular masses of stone, among which a few plants force their
growth, and give the appearance of a green field covered with the ruins of a
vast edifice. These stones and this sand discover, on examination, a perfect
analogy with those which compose the arid and broken summits of the
Rocky Mountains. The flood of waters which washed the soil to the bottom
of the valley afterwards carried away portions of the rocks themselves; and
these, dashed and bruised against the neighboring cliffs, were left scattered
like wrecks at their feet. *d The valley of the Mississippi is, upon the
whole, the most magnificent dwelling-place prepared by God for man’s
abode; and yet it may be said that at present it is but a mighty desert.
d
[ See Appendix, A.]

On the eastern side of the Alleghanies, between the base of these
mountains and the Atlantic Ocean, there lies a long ridge of rocks and sand,
which the sea appears to have left behind as it retired. The mean breadth of
this territory does not exceed one hundred miles; but it is about nine

hundred miles in length. This part of the American continent has a soil
which offers every obstacle to the husbandman, and its vegetation is scanty
and unvaried.
Upon this inhospitable coast the first united efforts of human industry
were made. The tongue of arid land was the cradle of those English colonies
which were destined one day to become the United States of America. The
centre of power still remains here; whilst in the backwoods the true
elements of the great people to whom the future control of the continent
belongs are gathering almost in secrecy together.
When the Europeans first landed on the shores of the West Indies, and
afterwards on the coast of South America, they thought themselves
transported into those fabulous regions of which poets had sung. The sea
sparkled with phosphoric light, and the extraordinary transparency of its
waters discovered to the view of the navigator all that had hitherto been
hidden in the deep abyss. *e Here and there appeared little islands perfumed
with odoriferous plants, and resembling baskets of flowers floating on the
tranquil surface of the ocean. Every object which met the sight, in this
enchanting region, seemed prepared to satisfy the wants or contribute to the
pleasures of man. Almost all the trees were loaded with nourishing fruits,
and those which were useless as food delighted the eye by the brilliancy and
variety of their colors. In groves of fragrant lemon-trees, wild figs,
flowering myrtles, acacias, and oleanders, which were hung with festoons
of various climbing plants, covered with flowers, a multitude of birds
unknown in Europe displayed their bright plumage, glittering with purple
and azure, and mingled their warbling with the harmony of a world teeming
with life and motion. *f Underneath this brilliant exterior death was
concealed. But the air of these climates had so enervating an influence that
man, absorbed by present enjoyment, was rendered regardless of the future.
e
[ Malte Brun tells us (vol. v. p. 726) that the water of the Caribbean Sea is so
transparent that corals and fish are discernible at a depth of sixty fathoms. The
ship seemed to float in air, the navigator became giddy as his eye penetrated
through the crystal flood, and beheld submarine gardens, or beds of shells, or
gilded fishes gliding among tufts and thickets of seaweed.]

f
[ See Appendix, B.]

North America appeared under a very different aspect; there everything
was grave, serious, and solemn: it seemed created to be the domain of
intelligence, as the South was that of sensual delight. A turbulent and foggy
ocean washed its shores. It was girt round by a belt of granite rocks, or by
wide tracts of sand. The foliage of its woods was dark and gloomy, for they
were composed of firs, larches, evergreen oaks, wild olive-trees, and
laurels. Beyond this outer belt lay the thick shades of the central forest,
where the largest trees which are produced in the two hemispheres grow
side by side. The plane, the catalpa, the sugar-maple, and the Virginian
poplar mingled their branches with those of the oak, the beech, and the
lime. In these, as in the forests of the Old World, destruction was
perpetually going on. The ruins of vegetation were heaped upon each other;
but there was no laboring hand to remove them, and their decay was not
rapid enough to make room for the continual work of reproduction.
Climbing plants, grasses, and other herbs forced their way through the mass
of dying trees; they crept along their bending trunks, found nourishment in
their dusty cavities, and a passage beneath the lifeless bark. Thus decay
gave its assistance to life, and their respective productions were mingled
together. The depths of these forests were gloomy and obscure, and a
thousand rivulets, undirected in their course by human industry, preserved
in them a constant moisture. It was rare to meet with flowers, wild fruits, or
birds beneath their shades. The fall of a tree overthrown by age, the rushing
torrent of a cataract, the lowing of the buffalo, and the howling of the wind
were the only sounds which broke the silence of nature.
To the east of the great river, the woods almost disappeared; in their stead
were seen prairies of immense extent. Whether Nature in her infinite variety
had denied the germs of trees to these fertile plains, or whether they had
once been covered with forests, subsequently destroyed by the hand of man,
is a question which neither tradition nor scientific research has been able to
resolve.
These immense deserts were not, however, devoid of human inhabitants.
Some wandering tribes had been for ages scattered among the forest shades
or the green pastures of the prairie. From the mouth of the St. Lawrence to
the delta of the Mississippi, and from the Atlantic to the Pacific Ocean,
these savages possessed certain points of resemblance which bore witness
of their common origin; but at the same time they differed from all other
known races of men: *g they were neither white like the Europeans, nor

yellow like most of the Asiatics, nor black like the negroes. Their skin was
reddish brown, their hair long and shining, their lips thin, and their
cheekbones very prominent. The languages spoken by the North American
tribes are various as far as regarded their words, but they were subject to the
same grammatical rules. These rules differed in several points from such as
had been observed to govern the origin of language. The idiom of the
Americans seemed to be the product of new combinations, and bespoke an
effort of the understanding of which the Indians of our days would be
incapable. *h
g
[ With the progress of discovery some resemblance has been found to exist
between the physical conformation, the language, and the habits of the Indians of
North America, and those of the Tongous, Mantchous, Mongols, Tartars, and
other wandering tribes of Asia. The land occupied by these tribes is not very
distant from Behring’s Strait, which allows of the supposition, that at a remote
period they gave inhabitants to the desert continent of America. But this is a
point which has not yet been clearly elucidated by science. See Malte Brun, vol.
v.; the works of Humboldt; Fischer, “Conjecture sur l’Origine des Americains”;
Adair, “History of the American Indians.”]

h
[ See Appendix, C.]

The social state of these tribes differed also in many respects from all that
was seen in the Old World. They seemed to have multiplied freely in the
midst of their deserts without coming in contact with other races more
civilized than their own. Accordingly, they exhibited none of those
indistinct, incoherent notions of right and wrong, none of that deep
corruption of manners, which is usually joined with ignorance and rudeness
among nations which, after advancing to civilization, have relapsed into a
state of barbarism. The Indian was indebted to no one but himself; his
virtues, his vices, and his prejudices were his own work; he had grown up
in the wild independence of his nature.
If, in polished countries, the lowest of the people are rude and uncivil, it
is not merely because they are poor and ignorant, but that, being so, they are
in daily contact with rich and enlightened men. The sight of their own hard
lot and of their weakness, which is daily contrasted with the happiness and
power of some of their fellow-creatures, excites in their hearts at the same
time the sentiments of anger and of fear: the consciousness of their
inferiority and of their dependence irritates while it humiliates them. This

state of mind displays itself in their manners and language; they are at once
insolent and servile. The truth of this is easily proved by observation; the
people are more rude in aristocratic countries than elsewhere, in opulent
cities than in rural districts. In those places where the rich and powerful are
assembled together the weak and the indigent feel themselves oppressed by
their inferior condition. Unable to perceive a single chance of regaining
their equality, they give up to despair, and allow themselves to fall below
the dignity of human nature.
This unfortunate effect of the disparity of conditions is not observable in
savage life: the Indians, although they are ignorant and poor, are equal and
free. At the period when Europeans first came among them the natives of
North America were ignorant of the value of riches, and indifferent to the
enjoyments which civilized man procures to himself by their means.
Nevertheless there was nothing coarse in their demeanor; they practised an
habitual reserve and a kind of aristocratic politeness. Mild and hospitable
when at peace, though merciless in war beyond any known degree of
human ferocity, the Indian would expose himself to die of hunger in order
to succor the stranger who asked admittance by night at the door of his hut;
yet he could tear in pieces with his hands the still quivering limbs of his
prisoner. The famous republics of antiquity never gave examples of more
unshaken courage, more haughty spirits, or more intractable love of
independence than were hidden in former times among the wild forests of
the New World. *i The Europeans produced no great impression when they
landed upon the shores of North America; their presence engendered neither
envy nor fear. What influence could they possess over such men as we have
described? The Indian could live without wants, suffer without complaint,
and pour out his death-song at the stake. *j Like all the other members of
the great human family, these savages believed in the existence of a better
world, and adored under different names, God, the creator of the universe.
Their notions on the great intellectual truths were in general simple and
philosophical. *k
i
[ We learn from President Jefferson’s “Notes upon Virginia,” p. 148, that among
the Iroquois, when attacked by a superior force, aged men refused to fly or to
survive the destruction of their country; and they braved death like the ancient
Romans when their capital was sacked by the Gauls. Further on, p. 150, he tells
us that there is no example of an Indian who, having fallen into the hands of his

enemies, begged for his life; on the contrary, the captive sought to obtain death at
the hands of his conquerors by the use of insult and provocation.]

j
[ See “Histoire de la Louisiane,” by Lepage Dupratz; Charlevoix, “Histoire de la
Nouvelle France”; “Lettres du Rev. G. Hecwelder;” “Transactions of the
American Philosophical Society,” v. I; Jefferson’s “Notes on Virginia,” pp. 135-
190. What is said by Jefferson is of especial weight, on account of the personal
merit of the writer, of his peculiar position, and of the matter-of-fact age in
which he lived.]

k
[ See Appendix, D.]

Although we have here traced the character of a primitive people, yet it
cannot be doubted that another people, more civilized and more advanced
in all respects, had preceded it in the same regions.
An obscure tradition which prevailed among the Indians to the north of
the Atlantic informs us that these very tribes formerly dwelt on the west
side of the Mississippi. Along the banks of the Ohio, and throughout the
central valley, there are frequently found, at this day, tumuli raised by the
hands of men. On exploring these heaps of earth to their centre, it is usual to
meet with human bones, strange instruments, arms and utensils of all kinds,
made of metal, or destined for purposes unknown to the present race. The
Indians of our time are unable to give any information relative to the history
of this unknown people. Neither did those who lived three hundred years
ago, when America was first discovered, leave any accounts from which
even an hypothesis could be formed. Tradition—that perishable, yet ever
renewed monument of the pristine world—throws no light upon the subject.
It is an undoubted fact, however, that in this part of the globe thousands of
our fellow-beings had lived. When they came hither, what was their origin,
their destiny, their history, and how they perished, no one can tell. How
strange does it appear that nations have existed, and afterwards so
completely disappeared from the earth that the remembrance of their very
names is effaced; their languages are lost; their glory is vanished like a
sound without an echo; though perhaps there is not one which has not left
behind it some tomb in memory of its passage! The most durable monument
of human labor is that which recalls the wretchedness and nothingness of
man.
Although the vast country which we have been describing was inhabited
by many indigenous tribes, it may justly be said at the time of its discovery

by Europeans to have formed one great desert. The Indians occupied
without possessing it. It is by agricultural labor that man appropriates the
soil, and the early inhabitants of North America lived by the produce of the
chase. Their implacable prejudices, their uncontrolled passions, their vices,
and still more perhaps their savage virtues, consigned them to inevitable
destruction. The ruin of these nations began from the day when Europeans
landed on their shores; it has proceeded ever since, and we are now
witnessing the completion of it. They seem to have been placed by
Providence amidst the riches of the New World to enjoy them for a season,
and then surrender them. Those coasts, so admirably adapted for commerce
and industry; those wide and deep rivers; that inexhaustible valley of the
Mississippi; the whole continent, in short, seemed prepared to be the abode
of a great nation, yet unborn.
In that land the great experiment was to be made, by civilized man, of the
attempt to construct society upon a new basis; and it was there, for the first
time, that theories hitherto unknown, or deemed impracticable, were to
exhibit a spectacle for which the world had not been prepared by the history
of the past.

Chapter II: Origin Of The Anglo-Americans—Part I

Chapter Summary

Utility of knowing the origin of nations in order to understand their social
condition and their laws—America the only country in which the starting-
point of a great people has been clearly observable—In what respects all
who emigrated to British America were similar—In what they differed—
Remark applicable to all Europeans who established themselves on the
shores of the New World—Colonization of Virginia—Colonization of New
England—Original character of the first inhabitants of New England—
Their arrival—Their first laws—Their social contract—Penal code
borrowed from the Hebrew legislation—Religious fervor—Republican
spirit—Intimate union of the spirit of religion with the spirit of liberty.
Origin Of The Anglo-Americans, And Its Importance In Relation To
Their Future Condition.
After the birth of a human being his early years are obscurely spent in the
toils or pleasures of childhood. As he grows up the world receives him,
when his manhood begins, and he enters into contact with his fellows. He is
then studied for the first time, and it is imagined that the germ of the vices
and the virtues of his maturer years is then formed. This, if I am not
mistaken, is a great error. We must begin higher up; we must watch the
infant in its mother’s arms; we must see the first images which the external
world casts upon the dark mirror of his mind; the first occurrences which he
witnesses; we must hear the first words which awaken the sleeping powers
of thought, and stand by his earliest efforts, if we would understand the
prejudices, the habits, and the passions which will rule his life. The entire
man is, so to speak, to be seen in the cradle of the child.
The growth of nations presents something analogous to this: they all bear
some marks of their origin; and the circumstances which accompanied their
birth and contributed to their rise affect the whole term of their being. If we
were able to go back to the elements of states, and to examine the oldest
monuments of their history, I doubt not that we should discover the primal
cause of the prejudices, the habits, the ruling passions, and, in short, of all

that constitutes what is called the national character; we should then find
the explanation of certain customs which now seem at variance with the
prevailing manners; of such laws as conflict with established principles; and
of such incoherent opinions as are here and there to be met with in society,
like those fragments of broken chains which we sometimes see hanging
from the vault of an edifice, and supporting nothing. This might explain the
destinies of certain nations, which seem borne on by an unknown force to
ends of which they themselves are ignorant. But hitherto facts have been
wanting to researches of this kind: the spirit of inquiry has only come upon
communities in their latter days; and when they at length contemplated their
origin, time had already obscured it, or ignorance and pride adorned it with
truth-concealing fables.
America is the only country in which it has been possible to witness the
natural and tranquil growth of society, and where the influences exercised
on the future condition of states by their origin is clearly distinguishable. At
the period when the peoples of Europe landed in the New World their
national characteristics were already completely formed; each of them had a
physiognomy of its own; and as they had already attained that stage of
civilization at which men are led to study themselves, they have transmitted
to us a faithful picture of their opinions, their manners, and their laws. The
men of the sixteenth century are almost as well known to us as our
contemporaries. America, consequently, exhibits in the broad light of day
the phenomena which the ignorance or rudeness of earlier ages conceals
from our researches. Near enough to the time when the states of America
were founded, to be accurately acquainted with their elements, and
sufficiently removed from that period to judge of some of their results, the
men of our own day seem destined to see further than their predecessors
into the series of human events. Providence has given us a torch which our
forefathers did not possess, and has allowed us to discern fundamental
causes in the history of the world which the obscurity of the past concealed
from them. If we carefully examine the social and political state of
America, after having studied its history, we shall remain perfectly
convinced that not an opinion, not a custom, not a law, I may even say not
an event, is upon record which the origin of that people will not explain.
The readers of this book will find the germ of all that is to follow in the
present chapter, and the key to almost the whole work.

The emigrants who came, at different periods to occupy the territory now
covered by the American Union differed from each other in many respects;
their aim was not the same, and they governed themselves on different
principles. These men had, however, certain features in common, and they
were all placed in an analogous situation. The tie of language is perhaps the
strongest and the most durable that can unite mankind. All the emigrants
spoke the same tongue; they were all offsets from the same people. Born in
a country which had been agitated for centuries by the struggles of faction,
and in which all parties had been obliged in their turn to place themselves
under the protection of the laws, their political education had been perfected
in this rude school, and they were more conversant with the notions of right
and the principles of true freedom than the greater part of their European
contemporaries. At the period of their first emigrations the parish system,
that fruitful germ of free institutions, was deeply rooted in the habits of the
English; and with it the doctrine of the sovereignty of the people had been
introduced into the bosom of the monarchy of the House of Tudor.
The religious quarrels which have agitated the Christian world were then
rife. England had plunged into the new order of things with headlong
vehemence. The character of its inhabitants, which had always been sedate
and reflective, became argumentative and austere. General information had
been increased by intellectual debate, and the mind had received a deeper
cultivation. Whilst religion was the topic of discussion, the morals of the
people were reformed. All these national features are more or less
discoverable in the physiognomy of those adventurers who came to seek a
new home on the opposite shores of the Atlantic.
Another remark, to which we shall hereafter have occasion to recur, is
applicable not only to the English, but to the French, the Spaniards, and all
the Europeans who successively established themselves in the New World.
All these European colonies contained the elements, if not the development,
of a complete democracy. Two causes led to this result. It may safely be
advanced, that on leaving the mother-country the emigrants had in general
no notion of superiority over one another. The happy and the powerful do
not go into exile, and there are no surer guarantees of equality among men
than poverty and misfortune. It happened, however, on several occasions,
that persons of rank were driven to America by political and religious
quarrels. Laws were made to establish a gradation of ranks; but it was soon
found that the soil of America was opposed to a territorial aristocracy. To

bring that refractory land into cultivation, the constant and interested
exertions of the owner himself were necessary; and when the ground was
prepared, its produce was found to be insufficient to enrich a master and a
farmer at the same time. The land was then naturally broken up into small
portions, which the proprietor cultivated for himself. Land is the basis of an
aristocracy, which clings to the soil that supports it; for it is not by
privileges alone, nor by birth, but by landed property handed down from
generation to generation, that an aristocracy is constituted. A nation may
present immense fortunes and extreme wretchedness, but unless those
fortunes are territorial there is no aristocracy, but simply the class of the
rich and that of the poor.
All the British colonies had then a great degree of similarity at the epoch
of their settlement. All of them, from their first beginning, seemed destined
to witness the growth, not of the aristocratic liberty of their mother-country,
but of that freedom of the middle and lower orders of which the history of
the world had as yet furnished no complete example.
In this general uniformity several striking differences were however
discernible, which it is necessary to point out. Two branches may be
distinguished in the Anglo-American family, which have hitherto grown up
without entirely commingling; the one in the South, the other in the North.
Virginia received the first English colony; the emigrants took possession
of it in 1607. The idea that mines of gold and silver are the sources of
national wealth was at that time singularly prevalent in Europe; a fatal
delusion, which has done more to impoverish the nations which adopted it,
and has cost more lives in America, than the united influence of war and
bad laws. The men sent to Virginia *a were seekers of gold, adventurers,
without resources and without character, whose turbulent and restless spirit
endangered the infant colony, *b and rendered its progress uncertain. The
artisans and agriculturists arrived afterwards; and, although they were a
more moral and orderly race of men, they were in nowise above the level of
the inferior classes in England. *c No lofty conceptions, no intellectual
system, directed the foundation of these new settlements. The colony was
scarcely established when slavery was introduced, *d and this was the main
circumstance which has exercised so prodigious an influence on the
character, the laws, and all the future prospects of the South. Slavery, as we
shall afterwards show, dishonors labor; it introduces idleness into society,

and with idleness, ignorance and pride, luxury and distress. It enervates the
powers of the mind, and benumbs the activity of man. The influence of
slavery, united to the English character, explains the manners and the social
condition of the Southern States.
a
[ The charter granted by the Crown of England in 1609 stipulated, amongst other
conditions, that the adventurers should pay to the Crown a fifth of the produce of
all gold and silver mines. See Marshall’s “Life of Washington,” vol. i. pp. 18-
66.] [Footnote b: A large portion of the adventurers, says Stith (“History of
Virginia”), were unprincipled young men of family, whom their parents were
glad to ship off, discharged servants, fraudulent bankrupts, or debauchees; and
others of the same class, people more apt to pillage and destroy than to assist the
settlement, were the seditious chiefs, who easily led this band into every kind of
extravagance and excess. See for the history of Virginia the following works:—

“History of Virginia, from the First Settlements in the year 1624,” by
Smith.
“History of Virginia,” by William Stith.
“History of Virginia, from the Earliest Period,” by Beverley.]
c
[ It was not till some time later that a certain number of rich English capitalists
came to fix themselves in the colony.]

d
[ Slavery was introduced about the year 1620 by a Dutch vessel which landed
twenty negroes on the banks of the river James. See Chalmer.]

In the North, the same English foundation was modified by the most
opposite shades of character; and here I may be allowed to enter into some
details. The two or three main ideas which constitute the basis of the social
theory of the United States were first combined in the Northern English
colonies, more generally denominated the States of New England. *e The
principles of New England spread at first to the neighboring states; they
then passed successively to the more distant ones; and at length they
imbued the whole Confederation. They now extend their influence beyond
its limits over the whole American world. The civilization of New England
has been like a beacon lit upon a hill, which, after it has diffused its warmth
around, tinges the distant horizon with its glow.
e
[ The States of New England are those situated to the east of the Hudson; they

are now six in number: 1, Connecticut; 2, Rhode Island; 3, Massachusetts; 4,
Vermont; 5, New Hampshire; 6, Maine.]

The foundation of New England was a novel spectacle, and all the
circumstances attending it were singular and original. The large majority of
colonies have been first inhabited either by men without education and
without resources, driven by their poverty and their misconduct from the
land which gave them birth, or by speculators and adventurers greedy of
gain. Some settlements cannot even boast so honorable an origin; St.
Domingo was founded by buccaneers; and the criminal courts of England
originally supplied the population of Australia.
The settlers who established themselves on the shores of New England
all belonged to the more independent classes of their native country. Their
union on the soil of America at once presented the singular phenomenon of
a society containing neither lords nor common people, neither rich nor poor.
These men possessed, in proportion to their number, a greater mass of
intelligence than is to be found in any European nation of our own time.
All, without a single exception, had received a good education, and many of
them were known in Europe for their talents and their acquirements. The
other colonies had been founded by adventurers without family; the
emigrants of New England brought with them the best elements of order
and morality—they landed in the desert accompanied by their wives and
children. But what most especially distinguished them was the aim of their
undertaking. They had not been obliged by necessity to leave their country;
the social position they abandoned was one to be regretted, and their means
of subsistence were certain. Nor did they cross the Atlantic to improve their
situation or to increase their wealth; the call which summoned them from
the comforts of their homes was purely intellectual; and in facing the
inevitable sufferings of exile their object was the triumph of an idea.
The emigrants, or, as they deservedly styled themselves, the Pilgrims,
belonged to that English sect the austerity of whose principles had acquired
for them the name of Puritans. Puritanism was not merely a religious
doctrine, but it corresponded in many points with the most absolute
democratic and republican theories. It was this tendency which had aroused
its most dangerous adversaries. Persecuted by the Government of the
mother-country, and disgusted by the habits of a society opposed to the
rigor of their own principles, the Puritans went forth to seek some rude and

unfrequented part of the world, where they could live according to their
own opinions, and worship God in freedom.
A few quotations will throw more light upon the spirit of these pious
adventures than all we can say of them. Nathaniel Morton, *f the historian
of the first years of the settlement, thus opens his subject:
f
[ “New England’s Memorial,” p. 13; Boston, 1826. See also “Hutchinson’s
History,” vol. ii. p. 440.]

“Gentle Reader,—I have for some length of time looked upon it as a duty
incumbent, especially on the immediate successors of those that have had
so large experience of those many memorable and signal demonstrations of
God’s goodness, viz., the first beginners of this Plantation in New England,
to commit to writing his gracious dispensations on that behalf; having so
many inducements thereunto, not onely otherwise but so plentifully in the
Sacred Scriptures: that so, what we have seen, and what our fathers have
told us (Psalm lxxviii. 3, 4), we may not hide from our children, showing to
the generations to come the praises of the Lord; that especially the seed of
Abraham his servant, and the children of Jacob his chosen (Psalm cv. 5, 6),
may remember his marvellous works in the beginning and progress of the
planting of New England, his wonders and the judgments of his mouth; how
that God brought a vine into this wilderness; that he cast out the heathen,
and planted it; that he made room for it and caused it to take deep root; and
it filled the land (Psalm lxxx. 8, 9). And not onely so, but also that he hath
guided his people by his strength to his holy habitation and planted them in
the mountain of his inheritance in respect of precious Gospel enjoyments:
and that as especially God may have the glory of all unto whom it is most
due; so also some rays of glory may reach the names of those blessed Saints
that were the main instruments and the beginning of this happy enterprise.”
It is impossible to read this opening paragraph without an involuntary
feeling of religious awe; it breathes the very savor of Gospel antiquity. The
sincerity of the author heightens his power of language. The band which to
his eyes was a mere party of adventurers gone forth to seek their fortune
beyond seas appears to the reader as the germ of a great nation wafted by
Providence to a predestined shore.
The author thus continues his narrative of the departure of the first
pilgrims:—

“So they left that goodly and pleasant city of Leyden, *g which had been
their resting-place for above eleven years; but they knew that they were
pilgrims and strangers here below, and looked not much on these things, but
lifted up their eyes to Heaven, their dearest country, where God hath
prepared for them a city (Heb. xi. 16), and therein quieted their spirits.
When they came to Delfs-Haven they found the ship and all things ready;
and such of their friends as could not come with them followed after them,
and sundry came from Amsterdam to see them shipt, and to take their
leaves of them. One night was spent with little sleep with the most, but with
friendly entertainment and Christian discourse, and other real expressions
of true Christian love. The next day they went on board, and their friends
with them, where truly doleful was the sight of that sad and mournful
parting, to hear what sighs and sobs and prayers did sound amongst them;
what tears did gush from every eye, and pithy speeches pierced each other’s
heart, that sundry of the Dutch strangers that stood on the Key as spectators
could not refrain from tears. But the tide (which stays for no man) calling
them away, that were thus loth to depart, their Reverend Pastor falling down
on his knees, and they all with him, with watery cheeks commended them
with most fervent prayers unto the Lord and his blessing; and then, with
mutual embraces and many tears they took their leaves one of another,
which proved to be the last leave to many of them.”
g
[ The emigrants were, for the most part, godly Christians from the North of
England, who had quitted their native country because they were “studious of
reformation, and entered into covenant to walk with one another according to the
primitive pattern of the Word of God.” They emigrated to Holland, and settled in
the city of Leyden in 1610, where they abode, being lovingly respected by the
Dutch, for many years: they left it in 1620 for several reasons, the last of which
was, that their posterity would in a few generations become Dutch, and so lose
their interest in the English nation; they being desirous rather to enlarge His
Majesty’s dominions, and to live under their natural prince.—Translator’s Note.]

The emigrants were about 150 in number, including the women and the
children. Their object was to plant a colony on the shores of the Hudson;
but after having been driven about for some time in the Atlantic Ocean, they
were forced to land on that arid coast of New England which is now the site
of the town of Plymouth. The rock is still shown on which the pilgrims
disembarked. *h

h
[ This rock is become an object of veneration in the United States. I have seen
bits of it carefully preserved in several towns of the Union. Does not this
sufficiently show how entirely all human power and greatness is in the soul of
man? Here is a stone which the feet of a few outcasts pressed for an instant, and
this stone becomes famous; it is treasured by a great nation, its very dust is
shared as a relic: and what is become of the gateways of a thousand palaces?]

“But before we pass on,” continues our historian, “let the reader with me
make a pause and seriously consider this poor people’s present condition,
the more to be raised up to admiration of God’s goodness towards them in
their preservation: for being now passed the vast ocean, and a sea of
troubles before them in expectation, they had now no friends to welcome
them, no inns to entertain or refresh them, no houses, or much less towns to
repair unto to seek for succour: and for the season it was winter, and they
that know the winters of the country know them to be sharp and violent,
subject to cruel and fierce storms, dangerous to travel to known places,
much more to search unknown coasts. Besides, what could they see but a
hideous and desolate wilderness, full of wilde beasts, and wilde men? and
what multitudes of them there were, they then knew not: for which way
soever they turned their eyes (save upward to Heaven) they could have but
little solace or content in respect of any outward object; for summer being
ended, all things stand in appearance with a weather-beaten face, and the
whole country full of woods and thickets, represented a wild and savage
hew; if they looked behind them, there was the mighty ocean which they
had passed, and was now as a main bar or gulph to separate them from all
the civil parts of the world.”
It must not be imagined that the piety of the Puritans was of a merely
speculative kind, or that it took no cognizance of the course of worldly
affairs. Puritanism, as I have already remarked, was scarcely less a political
than a religious doctrine. No sooner had the emigrants landed on the barren
coast described by Nathaniel Morton than it was their first care to constitute
a society, by passing the following Act:
“In the name of God. Amen. We, whose names are underwritten, the
loyal subjects of our dread Sovereign Lord King James, etc., etc., Having
undertaken for the glory of God, and advancement of the Christian Faith,
and the honour of our King and country, a voyage to plant the first colony
in the northern parts of Virginia; Do by these presents solemnly and
mutually, in the presence of God and one another, covenant and combine

ourselves together into a civil body politick, for our better ordering and
preservation, and furtherance of the ends aforesaid: and by virtue hereof do
enact, constitute and frame such just and equal laws, ordinances, acts,
constitutions, and officers, from time to time, as shall be thought most meet
and convenient for the general good of the Colony: unto which we promise
all due submission and obedience,” etc. *i
i
[ The emigrants who founded the State of Rhode Island in 1638, those who
landed at New Haven in 1637, the first settlers in Connecticut in 1639, and the
founders of Providence in 1640, began in like manner by drawing up a social
contract, which was acceded to by all the interested parties. See “Pitkin’s
History,” pp. 42 and 47.]

This happened in 1620, and from that time forwards the emigration went
on. The religious and political passions which ravaged the British Empire
during the whole reign of Charles I drove fresh crowds of sectarians every
year to the shores of America. In England the stronghold of Puritanism was
in the middle classes, and it was from the middle classes that the majority of
the emigrants came. The population of New England increased rapidly; and
whilst the hierarchy of rank despotically classed the inhabitants of the
mother-country, the colony continued to present the novel spectacle of a
community homogeneous in all its parts. A democracy, more perfect than
any which antiquity had dreamt of, started in full size and panoply from the
midst of an ancient feudal society.

Chapter II: Origin Of The Anglo-Americans—Part II

The English Government was not dissatisfied with an emigration which
removed the elements of fresh discord and of further revolutions. On the
contrary, everything was done to encourage it, and great exertions were
made to mitigate the hardships of those who sought a shelter from the rigor
of their country’s laws on the soil of America. It seemed as if New England
was a region given up to the dreams of fancy and the unrestrained
experiments of innovators.
The English colonies (and this is one of the main causes of their
prosperity) have always enjoyed more internal freedom and more political
independence than the colonies of other nations; but this principle of liberty
was nowhere more extensively applied than in the States of New England.
It was generally allowed at that period that the territories of the New
World belonged to that European nation which had been the first to discover
them. Nearly the whole coast of North America thus became a British
possession towards the end of the sixteenth century. The means used by the
English Government to people these new domains were of several kinds;
the King sometimes appointed a governor of his own choice, who ruled a
portion of the New World in the name and under the immediate orders of
the Crown; *j this is the colonial system adopted by other countries of
Europe. Sometimes grants of certain tracts were made by the Crown to an
individual or to a company, *k in which case all the civil and political
power fell into the hands of one or more persons, who, under the inspection
and control of the Crown, sold the lands and governed the inhabitants.
Lastly, a third system consisted in allowing a certain number of emigrants
to constitute a political society under the protection of the mother-country,
and to govern themselves in whatever was not contrary to her laws. This
mode of colonization, so remarkably favorable to liberty, was only adopted
in New England. *l

j
[ This was the case in the State of New York.]

k
[ Maryland, the Carolinas, Pennsylvania, and New Jersey were in this situation.
See “Pitkin’s History,” vol. i. pp. 11-31.]

l
[ See the work entitled “Historical Collection of State Papers and other authentic
Documents intended as materials for a History of the United States of America,
by Ebenezer Hasard. Philadelphia, 1792,” for a great number of documents
relating to the commencement of the colonies, which are valuable from their
contents and their authenticity: amongst them are the various charters granted by
the King of England, and the first acts of the local governments.

See also the analysis of all these charters given by Mr. Story, Judge of the
Supreme Court of the United States, in the Introduction to his
“Commentary on the Constitution of the United States.” It results from
these documents that the principles of representative government and the
external forms of political liberty were introduced into all the colonies at
their origin. These principles were more fully acted upon in the North than
in the South, but they existed everywhere.]
In 1628 *m a charter of this kind was granted by Charles I to the
emigrants who went to form the colony of Massachusetts. But, in general,
charters were not given to the colonies of New England till they had
acquired a certain existence. Plymouth, Providence, New Haven, the State
of Connecticut, and that of Rhode Island *n were founded without the co-
operation and almost without the knowledge of the mother-country. The
new settlers did not derive their incorporation from the seat of the empire,
although they did not deny its supremacy; they constituted a society of their
own accord, and it was not till thirty or forty years afterwards, under
Charles II. that their existence was legally recognized by a royal charter.
m
[ See “Pitkin’s History,” p, 35. See the “History of the Colony of Massachusetts
Bay,” by Hutchinson, vol. i. p. 9.] [Footnote n: See “Pitkin’s History,” pp. 42,
47.]

This frequently renders its it difficult to detect the link which connected
the emigrants with the land of their forefathers in studying the earliest
historical and legislative records of New England. They exercised the rights
of sovereignty; they named their magistrates, concluded peace or declared
war, made police regulations, and enacted laws as if their allegiance was

due only to God. *o Nothing can be more curious and, at the same time
more instructive, than the legislation of that period; it is there that the
solution of the great social problem which the United States now present to
the world is to be found.
o
[ The inhabitants of Massachusetts had deviated from the forms which are
preserved in the criminal and civil procedure of England; in 1650 the decrees of
justice were not yet headed by the royal style. See Hutchinson, vol. i. p. 452.]

Amongst these documents we shall notice, as especially characteristic,
the code of laws promulgated by the little State of Connecticut in 1650. *p
The legislators of Connecticut *q begin with the penal laws, and, strange to
say, they borrow their provisions from the text of Holy Writ. “Whosoever
shall worship any other God than the Lord,” says the preamble of the Code,
“shall surely be put to death.” This is followed by ten or twelve enactments
of the same kind, copied verbatim from the books of Exodus, Leviticus, and
Deuteronomy. Blasphemy, sorcery, adultery, *r and rape were punished
with death; an outrage offered by a son to his parents was to be expiated by
the same penalty. The legislation of a rude and half-civilized people was
thus applied to an enlightened and moral community. The consequence was
that the punishment of death was never more frequently prescribed by the
statute, and never more rarely enforced towards the guilty.
p
[ Code of 1650, p. 28; Hartford, 1830.]

q
[ See also in “Hutchinson’s History,” vol. i. pp. 435, 456, the analysis of the
penal code adopted in 1648 by the Colony of Massachusetts: this code is drawn
up on the same principles as that of Connecticut.]

r
[ Adultery was also punished with death by the law of Massachusetts: and
Hutchinson, vol. i. p. 441, says that several persons actually suffered for this
crime. He quotes a curious anecdote on this subject, which occurred in the year
1663. A married woman had had criminal intercourse with a young man; her
husband died, and she married the lover. Several years had elapsed, when the
public began to suspect the previous intercourse of this couple: they were thrown
into prison, put upon trial, and very narrowly escaped capital punishment.]

The chief care of the legislators, in this body of penal laws, was the
maintenance of orderly conduct and good morals in the community: they
constantly invaded the domain of conscience, and there was scarcely a sin

which was not subject to magisterial censure. The reader is aware of the
rigor with which these laws punished rape and adultery; intercourse
between unmarried persons was likewise severely repressed. The judge was
empowered to inflict a pecuniary penalty, a whipping, or marriage *s on the
misdemeanants; and if the records of the old courts of New Haven may be
believed, prosecutions of this kind were not unfrequent. We find a sentence
bearing date the first of May, 1660, inflicting a fine and reprimand on a
young woman who was accused of using improper language, and of
allowing herself to be kissed. *t The Code of 1650 abounds in preventive
measures. It punishes idleness and drunkenness with severity. *u Innkeepers
are forbidden to furnish more than a certain quantity of liquor to each
consumer; and simple lying, whenever it may be injurious, *v is checked by
a fine or a flogging. In other places, the legislator, entirely forgetting the
great principles of religious toleration which he had himself upheld in
Europe, renders attendance on divine service compulsory, *w and goes so
far as to visit with severe punishment, ** and even with death, the
Christians who chose to worship God according to a ritual differing from
his own. *x Sometimes indeed the zeal of his enactments induces him to
descend to the most frivolous particulars: thus a law is to be found in the
same Code which prohibits the use of tobacco. *y It must not be forgotten
that these fantastical and vexatious laws were not imposed by authority, but
that they were freely voted by all the persons interested, and that the
manners of the community were even more austere and more puritanical
than the laws. In 1649 a solemn association was formed in Boston to check
the worldly luxury of long hair. *z
s
[ Code of 1650, p. 48. It seems sometimes to have happened that the judges
superadded these punishments to each other, as is seen in a sentence pronounced
in 1643 (p. 114, “New Haven Antiquities”), by which Margaret Bedford,
convicted of loose conduct, was condemned to be whipped, and afterwards to
marry Nicholas Jemmings, her accomplice.]

t
[ “New Haven Antiquities,” p. 104. See also “Hutchinson’s History,” for several
causes equally extraordinary.]

u
[ Code of 1650, pp. 50, 57.]

v
[ Ibid., p. 64.]

w
[ Ibid., p. 44.]

*
[ This was not peculiar to Connecticut. See, for instance, the law which, on
September 13, 1644, banished the Anabaptists from the State of Massachusetts.
(“Historical Collection of State Papers,” vol. i. p. 538.) See also the law against
the Quakers, passed on October 14, 1656: “Whereas,” says the preamble, “an
accursed race of heretics called Quakers has sprung up,” etc. The clauses of the
statute inflict a heavy fine on all captains of ships who should import Quakers
into the country. The Quakers who may be found there shall be whipped and
imprisoned with hard labor. Those members of the sect who should defend their
opinions shall be first fined, then imprisoned, and finally driven out of the
province.—“Historical Collection of State Papers,” vol. i. p. 630.]

x
[ By the penal law of Massachusetts, any Catholic priest who should set foot in
the colony after having been once driven out of it was liable to capital
punishment.]

y
[ Code of 1650, p. 96.]

z
[ “New England’s Memorial,” p. 316. See Appendix, E.]

These errors are no doubt discreditable to human reason; they attest the
inferiority of our nature, which is incapable of laying firm hold upon what
is true and just, and is often reduced to the alternative of two excesses. In
strict connection with this penal legislation, which bears such striking
marks of a narrow sectarian spirit, and of those religious passions which
had been warmed by persecution and were still fermenting among the
people, a body of political laws is to be found, which, though written two
hundred years ago, is still ahead of the liberties of our age. The general
principles which are the groundwork of modern constitutions—principles
which were imperfectly known in Europe, and not completely triumphant
even in Great Britain, in the seventeenth century—were all recognized and
determined by the laws of New England: the intervention of the people in
public affairs, the free voting of taxes, the responsibility of authorities,
personal liberty, and trial by jury, were all positively established without
discussion. From these fruitful principles consequences have been derived
and applications have been made such as no nation in Europe has yet
ventured to attempt.

In Connecticut the electoral body consisted, from its origin, of the whole
number of citizens; and this is readily to be understood, *a when we
recollect that this people enjoyed an almost perfect equality of fortune, and
a still greater uniformity of opinions. *b In Connecticut, at this period, all
the executive functionaries were elected, including the Governor of the
State. *c The citizens above the age of sixteen were obliged to bear arms;
they formed a national militia, which appointed its own officers, and was to
hold itself at all times in readiness to march for the defence of the country.
*d
a
[ Constitution of 1638, p. 17.]

b
[ In 1641 the General Assembly of Rhode Island unanimously declared that the
government of the State was a democracy, and that the power was vested in the
body of free citizens, who alone had the right to make the laws and to watch
their execution.—Code of 1650, p. 70.]

c
[ “Pitkin’s History,” p. 47.]

d
[ Constitution of 1638, p. 12.]

In the laws of Connecticut, as well as in all those of New England, we
find the germ and gradual development of that township independence
which is the life and mainspring of American liberty at the present day. The
political existence of the majority of the nations of Europe commenced in
the superior ranks of society, and was gradually and imperfectly
communicated to the different members of the social body. In America, on
the other hand, it may be said that the township was organized before the
county, the county before the State, the State before the Union. In New
England townships were completely and definitively constituted as early as
1650. The independence of the township was the nucleus round which the
local interests, passions, rights, and duties collected and clung. It gave
scope to the activity of a real political life most thoroughly democratic and
republican. The colonies still recognized the supremacy of the mother-
country; monarchy was still the law of the State; but the republic was
already established in every township. The towns named their own
magistrates of every kind, rated themselves, and levied their own taxes. *e
In the parish of New England the law of representation was not adopted, but

the affairs of the community were discussed, as at Athens, in the market-
place, by a general assembly of the citizens.
e
[ Code of 1650, p. 80.]

In studying the laws which were promulgated at this first era of the
American republics, it is impossible not to be struck by the remarkable
acquaintance with the science of government and the advanced theory of
legislation which they display. The ideas there formed of the duties of
society towards its members are evidently much loftier and more
comprehensive than those of the European legislators at that time:
obligations were there imposed which were elsewhere slighted. In the States
of New England, from the first, the condition of the poor was provided for;
*f strict measures were taken for the maintenance of roads, and surveyors
were appointed to attend to them; *g registers were established in every
parish, in which the results of public deliberations, and the births, deaths,
and marriages of the citizens were entered; *h clerks were directed to keep
these registers; *i officers were charged with the administration of vacant
inheritances, and with the arbitration of litigated landmarks; and many
others were created whose chief functions were the maintenance of public
order in the community. *j The law enters into a thousand useful provisions
for a number of social wants which are at present very inadequately felt in
France. [Footnote f: Ibid., p. 78.]
g
[ Ibid., p. 49.]

h
[ See “Hutchinson’s History,” vol. i. p. 455.]

i
[ Code of 1650, p. 86.]

j
[ Ibid., p. 40.]

But it is by the attention it pays to Public Education that the original
character of American civilization is at once placed in the clearest light. “It
being,” says the law, “one chief project of Satan to keep men from the
knowledge of the Scripture by persuading from the use of tongues, to the
end that learning may not be buried in the graves of our forefathers, in

church and commonwealth, the Lord assisting our endeavors. . . .” *k Here
follow clauses establishing schools in every township, and obliging the
inhabitants, under pain of heavy fines, to support them. Schools of a
superior kind were founded in the same manner in the more populous
districts. The municipal authorities were bound to enforce the sending of
children to school by their parents; they were empowered to inflict fines
upon all who refused compliance; and in case of continued resistance
society assumed the place of the parent, took possession of the child, and
deprived the father of those natural rights which he used to so bad a
purpose. The reader will undoubtedly have remarked the preamble of these
enactments: in America religion is the road to knowledge, and the
observance of the divine laws leads man to civil freedom.
k
[ Ibid., p. 90.]

If, after having cast a rapid glance over the state of American society in
1650, we turn to the condition of Europe, and more especially to that of the
Continent, at the same period, we cannot fail to be struck with
astonishment. On the Continent of Europe, at the beginning of the
seventeenth century, absolute monarchy had everywhere triumphed over the
ruins of the oligarchical and feudal liberties of the Middle Ages. Never were
the notions of right more completely confounded than in the midst of the
splendor and literature of Europe; never was there less political activity
among the people; never were the principles of true freedom less widely
circulated; and at that very time those principles, which were scorned or
unknown by the nations of Europe, were proclaimed in the deserts of the
New World, and were accepted as the future creed of a great people. The
boldest theories of the human reason were put into practice by a community
so humble that not a statesman condescended to attend to it; and a
legislation without a precedent was produced offhand by the imagination of
the citizens. In the bosom of this obscure democracy, which had as yet
brought forth neither generals, nor philosophers, nor authors, a man might
stand up in the face of a free people and pronounce the following fine
definition of liberty. *l
l
[ Mather’s “Magnalia Christi Americana,” vol. ii. p. 13. This speech was made
by Winthrop; he was accused of having committed arbitrary actions during his
magistracy, but after having made the speech of which the above is a fragment,

he was acquitted by acclamation, and from that time forwards he was always re-
elected governor of the State. See Marshal, vol. i. p. 166.]

“Nor would I have you to mistake in the point of your own liberty. There
is a liberty of a corrupt nature which is effected both by men and beasts to
do what they list, and this liberty is inconsistent with authority, impatient of
all restraint; by this liberty ‘sumus omnes deteriores’: ’tis the grand enemy
of truth and peace, and all the ordinances of God are bent against it. But
there is a civil, a moral, a federal liberty which is the proper end and object
of authority; it is a liberty for that only which is just and good: for this
liberty you are to stand with the hazard of your very lives and whatsoever
crosses it is not authority, but a distemper thereof. This liberty is maintained
in a way of subjection to authority; and the authority set over you will, in all
administrations for your good, be quietly submitted unto by all but such as
have a disposition to shake off the yoke and lose their true liberty, by their
murmuring at the honor and power of authority.”
The remarks I have made will suffice to display the character of Anglo-
American civilization in its true light. It is the result (and this should be
constantly present to the mind of two distinct elements), which in other
places have been in frequent hostility, but which in America have been
admirably incorporated and combined with one another. I allude to the spirit
of Religion and the spirit of Liberty.
The settlers of New England were at the same time ardent sectarians and
daring innovators. Narrow as the limits of some of their religious opinions
were, they were entirely free from political prejudices. Hence arose two
tendencies, distinct but not opposite, which are constantly discernible in the
manners as well as in the laws of the country.
It might be imagined that men who sacrificed their friends, their family,
and their native land to a religious conviction were absorbed in the pursuit
of the intellectual advantages which they purchased at so dear a rate. The
energy, however, with which they strove for the acquirement of wealth,
moral enjoyment, and the comforts as well as liberties of the world, is
scarcely inferior to that with which they devoted themselves to Heaven.
Political principles and all human laws and institutions were moulded
and altered at their pleasure; the barriers of the society in which they were
born were broken down before them; the old principles which had governed
the world for ages were no more; a path without a turn and a field without

an horizon were opened to the exploring and ardent curiosity of man: but at
the limits of the political world he checks his researches, he discreetly lays
aside the use of his most formidable faculties, he no longer consents to
doubt or to innovate, but carefully abstaining from raising the curtain of the
sanctuary, he yields with submissive respect to truths which he will not
discuss. Thus, in the moral world everything is classed, adapted, decided,
and foreseen; in the political world everything is agitated, uncertain, and
disputed: in the one is a passive, though a voluntary, obedience; in the other
an independence scornful of experience and jealous of authority.
These two tendencies, apparently so discrepant, are far from conflicting;
they advance together, and mutually support each other. Religion perceives
that civil liberty affords a noble exercise to the faculties of man, and that the
political world is a field prepared by the Creator for the efforts of the
intelligence. Contented with the freedom and the power which it enjoys in
its own sphere, and with the place which it occupies, the empire of religion
is never more surely established than when it reigns in the hearts of men
unsupported by aught beside its native strength. Religion is no less the
companion of liberty in all its battles and its triumphs; the cradle of its
infancy, and the divine source of its claims. The safeguard of morality is
religion, and morality is the best security of law and the surest pledge of
freedom. *m
m
[ See Appendix, F.]

Reasons Of Certain Anomalies Which The Laws And Customs Of The
Anglo-Americans Present
Remains of aristocratic institutions in the midst of a complete democracy
—Why?—Distinction carefully to be drawn between what is of Puritanical
and what is of English origin.
The reader is cautioned not to draw too general or too absolute an
inference from what has been said. The social condition, the religion, and
the manners of the first emigrants undoubtedly exercised an immense
influence on the destiny of their new country. Nevertheless they were not in
a situation to found a state of things solely dependent on themselves: no
man can entirely shake off the influence of the past, and the settlers,
intentionally or involuntarily, mingled habits and notions derived from their
education and from the traditions of their country with those habits and

notions which were exclusively their own. To form a judgment on the
Anglo-Americans of the present day it is therefore necessary to distinguish
what is of Puritanical and what is of English origin.
Laws and customs are frequently to be met with in the United States
which contrast strongly with all that surrounds them. These laws seem to be
drawn up in a spirit contrary to the prevailing tenor of the American
legislation; and these customs are no less opposed to the tone of society. If
the English colonies had been founded in an age of darkness, or if their
origin was already lost in the lapse of years, the problem would be
insoluble.
I shall quote a single example to illustrate what I advance. The civil and
criminal procedure of the Americans has only two means of action—
committal and bail. The first measure taken by the magistrate is to exact
security from the defendant, or, in case of refusal, to incarcerate him: the
ground of the accusation and the importance of the charges against him are
then discussed. It is evident that a legislation of this kind is hostile to the
poor man, and favorable only to the rich. The poor man has not always a
security to produce, even in a civil cause; and if he is obliged to wait for
justice in prison, he is speedily reduced to distress. The wealthy individual,
on the contrary, always escapes imprisonment in civil causes; nay, more, he
may readily elude the punishment which awaits him for a delinquency by
breaking his bail. So that all the penalties of the law are, for him, reducible
to fines. *n Nothing can be more aristocratic than this system of legislation.
Yet in America it is the poor who make the law, and they usually reserve the
greatest social advantages to themselves. The explanation of the
phenomenon is to be found in England; the laws of which I speak are
English, *o and the Americans have retained them, however repugnant they
may be to the tenor of their legislation and the mass of their ideas. Next to
its habits, the thing which a nation is least apt to change is its civil
legislation. Civil laws are only familiarly known to legal men, whose direct
interest it is to maintain them as they are, whether good or bad, simply
because they themselves are conversant with them. The body of the nation
is scarcely acquainted with them; it merely perceives their action in
particular cases; but it has some difficulty in seizing their tendency, and
obeys them without premeditation. I have quoted one instance where it
would have been easy to adduce a great number of others. The surface of

American society is, if I may use the expression, covered with a layer of
democracy, from beneath which the old aristocratic colors sometimes peep.
n
[ Crimes no doubt exist for which bail is inadmissible, but they are few in
number.]

o
[ See Blackstone; and Delolme, book I chap. x.]

Chapter III: Social Conditions Of The Anglo-
Americans

Chapter Summary

A Social condition is commonly the result of circumstances, sometimes
of laws, oftener still of these two causes united; but wherever it exists, it
may justly be considered as the source of almost all the laws, the usages,
and the ideas which regulate the conduct of nations; whatever it does not
produce it modifies. It is therefore necessary, if we would become
acquainted with the legislation and the manners of a nation, to begin by the
study of its social condition.
The Striking Characteristic Of The Social Condition Of The Anglo-
Americans In Its Essential Democracy.
The first emigrants of New England—Their equality—Aristocratic laws
introduced in the South—Period of the Revolution—Change in the law of
descent—Effects produced by this change—Democracy carried to its
utmost limits in the new States of the West—Equality of education.
Many important observations suggest themselves upon the social
condition of the Anglo-Americans, but there is one which takes precedence
of all the rest. The social condition of the Americans is eminently
democratic; this was its character at the foundation of the Colonies, and is
still more strongly marked at the present day. I have stated in the preceding
chapter that great equality existed among the emigrants who settled on the
shores of New England. The germ of aristocracy was never planted in that
part of the Union. The only influence which obtained there was that of
intellect; the people were used to reverence certain names as the emblems
of knowledge and virtue. Some of their fellow-citizens acquired a power
over the rest which might truly have been called aristocratic, if it had been
capable of transmission from father to son.
This was the state of things to the east of the Hudson: to the south-west
of that river, and in the direction of the Floridas, the case was different. In
most of the States situated to the south-west of the Hudson some great
English proprietors had settled, who had imported with them aristocratic

principles and the English law of descent. I have explained the reasons why
it was impossible ever to establish a powerful aristocracy in America; these
reasons existed with less force to the south-west of the Hudson. In the
South, one man, aided by slaves, could cultivate a great extent of country: it
was therefore common to see rich landed proprietors. But their influence
was not altogether aristocratic as that term is understood in Europe, since
they possessed no privileges; and the cultivation of their estates being
carried on by slaves, they had no tenants depending on them, and
consequently no patronage. Still, the great proprietors south of the Hudson
constituted a superior class, having ideas and tastes of its own, and forming
the centre of political action. This kind of aristocracy sympathized with the
body of the people, whose passions and interests it easily embraced; but it
was too weak and too short-lived to excite either love or hatred for itself.
This was the class which headed the insurrection in the South, and
furnished the best leaders of the American revolution.
At the period of which we are now speaking society was shaken to its
centre: the people, in whose name the struggle had taken place, conceived
the desire of exercising the authority which it had acquired; its democratic
tendencies were awakened; and having thrown off the yoke of the mother-
country, it aspired to independence of every kind. The influence of
individuals gradually ceased to be felt, and custom and law united together
to produce the same result.
But the law of descent was the last step to equality. I am surprised that
ancient and modern jurists have not attributed to this law a greater influence
on human affairs. *a It is true that these laws belong to civil affairs; but they
ought nevertheless to be placed at the head of all political institutions; for,
whilst political laws are only the symbol of a nation’s condition, they
exercise an incredible influence upon its social state. They have, moreover,
a sure and uniform manner of operating upon society, affecting, as it were,
generations yet unborn.
a
[ I understand by the law of descent all those laws whose principal object is to
regulate the distribution of property after the death of its owner. The law of entail
is of this number; it certainly prevents the owner from disposing of his
possessions before his death; but this is solely with the view of preserving them
entire for the heir. The principal object, therefore, of the law of entail is to
regulate the descent of property after the death of its owner: its other provisions
are merely means to this end.]

Through their means man acquires a kind of preternatural power over the
future lot of his fellow-creatures. When the legislator has regulated the law
of inheritance, he may rest from his labor. The machine once put in motion
will go on for ages, and advance, as if self-guided, towards a given point.
When framed in a particular manner, this law unites, draws together, and
vests property and power in a few hands: its tendency is clearly aristocratic.
On opposite principles its action is still more rapid; it divides, distributes,
and disperses both property and power. Alarmed by the rapidity of its
progress, those who despair of arresting its motion endeavor to obstruct it
by difficulties and impediments; they vainly seek to counteract its effect by
contrary efforts; but it gradually reduces or destroys every obstacle, until by
its incessant activity the bulwarks of the influence of wealth are ground
down to the fine and shifting sand which is the basis of democracy. When
the law of inheritance permits, still more when it decrees, the equal division
of a father’s property amongst all his children, its effects are of two kinds: it
is important to distinguish them from each other, although they tend to the
same end.
In virtue of the law of partible inheritance, the death of every proprietor
brings about a kind of revolution in property; not only do his possessions
change hands, but their very nature is altered, since they are parcelled into
shares, which become smaller and smaller at each division. This is the
direct and, as it were, the physical effect of the law. It follows, then, that in
countries where equality of inheritance is established by law, property, and
especially landed property, must have a tendency to perpetual diminution.
The effects, however, of such legislation would only be perceptible after a
lapse of time, if the law was abandoned to its own working; for supposing
the family to consist of two children (and in a country people as France is
the average number is not above three), these children, sharing amongst
them the fortune of both parents, would not be poorer than their father or
mother.
But the law of equal division exercises its influence not merely upon the
property itself, but it affects the minds of the heirs, and brings their passions
into play. These indirect consequences tend powerfully to the destruction of
large fortunes, and especially of large domains. Among nations whose law
of descent is founded upon the right of primogeniture landed estates often
pass from generation to generation without undergoing division, the
consequence of which is that family feeling is to a certain degree

incorporated with the estate. The family represents the estate, the estate the
family; whose name, together with its origin, its glory, its power, and its
virtues, is thus perpetuated in an imperishable memorial of the past and a
sure pledge of the future.
When the equal partition of property is established by law, the intimate
connection is destroyed between family feeling and the preservation of the
paternal estate; the property ceases to represent the family; for as it must
inevitably be divided after one or two generations, it has evidently a
constant tendency to diminish, and must in the end be completely dispersed.
The sons of the great landed proprietor, if they are few in number, or if
fortune befriends them, may indeed entertain the hope of being as wealthy
as their father, but not that of possessing the same property as he did; the
riches must necessarily be composed of elements different from his.
Now, from the moment that you divest the landowner of that interest in
the preservation of his estate which he derives from association, from
tradition, and from family pride, you may be certain that sooner or later he
will dispose of it; for there is a strong pecuniary interest in favor of selling,
as floating capital produces higher interest than real property, and is more
readily available to gratify the passions of the moment.
Great landed estates which have once been divided never come together
again; for the small proprietor draws from his land a better revenue, in
proportion, than the large owner does from his, and of course he sells it at a
higher rate. *b The calculations of gain, therefore, which decide the rich
man to sell his domain will still more powerfully influence him against
buying small estates to unite them into a large one.
b
[ I do not mean to say that the small proprietor cultivates his land better, but he
cultivates it with more ardor and care; so that he makes up by his labor for his
want of skill.]

What is called family pride is often founded upon an illusion of self-love.
A man wishes to perpetuate and immortalize himself, as it were, in his
great-grandchildren. Where the esprit de famille ceases to act individual
selfishness comes into play. When the idea of family becomes vague,
indeterminate, and uncertain, a man thinks of his present convenience; he
provides for the establishment of his succeeding generation, and no more.
Either a man gives up the idea of perpetuating his family, or at any rate he

seeks to accomplish it by other means than that of a landed estate. Thus not
only does the law of partible inheritance render it difficult for families to
preserve their ancestral domains entire, but it deprives them of the
inclination to attempt it, and compels them in some measure to co-operate
with the law in their own extinction.
The law of equal distribution proceeds by two methods: by acting upon
things, it acts upon persons; by influencing persons, it affects things. By
these means the law succeeds in striking at the root of landed property, and
dispersing rapidly both families and fortunes. *c
c
[ Land being the most stable kind of property, we find, from time to time, rich
individuals who are disposed to make great sacrifices in order to obtain it, and
who willingly forfeit a considerable part of their income to make sure of the rest.
But these are accidental cases. The preference for landed property is no longer
found habitually in any class but among the poor. The small landowner, who has
less information, less imagination, and fewer passions than the great one, is
generally occupied with the desire of increasing his estate: and it often happens
that by inheritance, by marriage, or by the chances of trade, he is gradually
furnished with the means. Thus, to balance the tendency which leads men to
divide their estates, there exists another, which incites them to add to them. This
tendency, which is sufficient to prevent estates from being divided ad infinitum,
is not strong enough to create great territorial possessions, certainly not to keep
them up in the same family.]

Most certainly it is not for us Frenchmen of the nineteenth century, who
daily witness the political and social changes which the law of partition is
bringing to pass, to question its influence. It is perpetually conspicuous in
our country, overthrowing the walls of our dwellings and removing the
landmarks of our fields. But although it has produced great effects in
France, much still remains for it to do. Our recollections, opinions, and
habits present powerful obstacles to its progress.
In the United States it has nearly completed its work of destruction, and
there we can best study its results. The English laws concerning the
transmission of property were abolished in almost all the States at the time
of the Revolution. The law of entail was so modified as not to interrupt the
free circulation of property. *d The first generation having passed away,
estates began to be parcelled out, and the change became more and more
rapid with the progress of time. At this moment, after a lapse of a little more
than sixty years, the aspect of society is totally altered; the families of the
great landed proprietors are almost all commingled with the general mass.

In the State of New York, which formerly contained many of these, there
are but two who still keep their heads above the stream, and they must
shortly disappear. The sons of these opulent citizens are become merchants,
lawyers, or physicians. Most of them have lapsed into obscurity. The last
trace of hereditary ranks and distinctions is destroyed—the law of partition
has reduced all to one level. [Footnote d: See Appendix, G.]
I do not mean that there is any deficiency of wealthy individuals in the
United States; I know of no country, indeed, where the love of money has
taken stronger hold on the affections of men, and where the profounder
contempt is expressed for the theory of the permanent equality of property.
But wealth circulates with inconceivable rapidity, and experience shows
that it is rare to find two succeeding generations in the full enjoyment of it.
This picture, which may perhaps be thought to be overcharged, still gives
a very imperfect idea of what is taking place in the new States of the West
and South-west. At the end of the last century a few bold adventurers began
to penetrate into the valleys of the Mississippi, and the mass of the
population very soon began to move in that direction: communities unheard
of till then were seen to emerge from the wilds: States whose names were
not in existence a few years before claimed their place in the American
Union; and in the Western settlements we may behold democracy arrived at
its utmost extreme. In these States, founded off-hand, and, as it were, by
chance, the inhabitants are but of yesterday. Scarcely known to one another,
the nearest neighbors are ignorant of each other’s history. In this part of the
American continent, therefore, the population has not experienced the
influence of great names and great wealth, nor even that of the natural
aristocracy of knowledge and virtue. None are there to wield that
respectable power which men willingly grant to the remembrance of a life
spent in doing good before their eyes. The new States of the West are
already inhabited, but society has no existence among them. *e
e
[ This may have been true in 1832, but is not so in 1874, when great cities like
Chicago and San Francisco have sprung up in the Western States. But as yet the
Western States exert no powerful influence on American society.—-Translator’s
Note.]

It is not only the fortunes of men which are equal in America; even their
requirements partake in some degree of the same uniformity. I do not
believe that there is a country in the world where, in proportion to the

population, there are so few uninstructed and at the same time so few
learned individuals. Primary instruction is within the reach of everybody;
superior instruction is scarcely to be obtained by any. This is not surprising;
it is in fact the necessary consequence of what we have advanced above.
Almost all the Americans are in easy circumstances, and can therefore
obtain the first elements of human knowledge.
In America there are comparatively few who are rich enough to live
without a profession. Every profession requires an apprenticeship, which
limits the time of instruction to the early years of life. At fifteen they enter
upon their calling, and thus their education ends at the age when ours
begins. Whatever is done afterwards is with a view to some special and
lucrative object; a science is taken up as a matter of business, and the only
branch of it which is attended to is such as admits of an immediate practical
application. In America most of the rich men were formerly poor; most of
those who now enjoy leisure were absorbed in business during their youth;
the consequence of which is, that when they might have had a taste for
study they had no time for it, and when time is at their disposal they have
no longer the inclination.
There is no class, then, in America, in which the taste for intellectual
pleasures is transmitted with hereditary fortune and leisure, and by which
the labors of the intellect are held in honor. Accordingly there is an equal
want of the desire and the power of application to these objects.
A middle standard is fixed in America for human knowledge. All
approach as near to it as they can; some as they rise, others as they descend.
Of course, an immense multitude of persons are to be found who entertain
the same number of ideas on religion, history, science, political economy,
legislation, and government. The gifts of intellect proceed directly from
God, and man cannot prevent their unequal distribution. But in consequence
of the state of things which we have here represented it happens that,
although the capacities of men are widely different, as the Creator has
doubtless intended they should be, they are submitted to the same method
of treatment.
In America the aristocratic element has always been feeble from its birth;
and if at the present day it is not actually destroyed, it is at any rate so
completely disabled that we can scarcely assign to it any degree of
influence in the course of affairs. The democratic principle, on the contrary,

has gained so much strength by time, by events, and by legislation, as to
have become not only predominant but all-powerful. There is no family or
corporate authority, and it is rare to find even the influence of individual
character enjoy any durability.
America, then, exhibits in her social state a most extraordinary
phenomenon. Men are there seen on a greater equality in point of fortune
and intellect, or, in other words, more equal in their strength, than in any
other country of the world, or in any age of which history has preserved the
remembrance.
Political Consequences Of The Social Condition Of The Anglo-
Americans
The political consequences of such a social condition as this are easily
deducible. It is impossible to believe that equality will not eventually find
its way into the political world as it does everywhere else. To conceive of
men remaining forever unequal upon one single point, yet equal on all
others, is impossible; they must come in the end to be equal upon all. Now I
know of only two methods of establishing equality in the political world;
every citizen must be put in possession of his rights, or rights must be
granted to no one. For nations which are arrived at the same stage of social
existence as the Anglo-Americans, it is therefore very difficult to discover a
medium between the sovereignty of all and the absolute power of one man:
and it would be vain to deny that the social condition which I have been
describing is equally liable to each of these consequences.
There is, in fact, a manly and lawful passion for equality which excites
men to wish all to be powerful and honored. This passion tends to elevate
the humble to the rank of the great; but there exists also in the human heart
a depraved taste for equality, which impels the weak to attempt to lower the
powerful to their own level, and reduces men to prefer equality in slavery to
inequality with freedom. Not that those nations whose social condition is
democratic naturally despise liberty; on the contrary, they have an
instinctive love of it. But liberty is not the chief and constant object of their
desires; equality is their idol: they make rapid and sudden efforts to obtain
liberty, and if they miss their aim resign themselves to their disappointment;
but nothing can satisfy them except equality, and rather than lose it they
resolve to perish.

On the other hand, in a State where the citizens are nearly on an equality,
it becomes difficult for them to preserve their independence against the
aggressions of power. No one among them being strong enough to engage
in the struggle with advantage, nothing but a general combination can
protect their liberty. And such a union is not always to be found.
From the same social position, then, nations may derive one or the other
of two great political results; these results are extremely different from each
other, but they may both proceed from the same cause.
The Anglo-Americans are the first nations who, having been exposed to
this formidable alternative, have been happy enough to escape the dominion
of absolute power. They have been allowed by their circumstances, their
origin, their intelligence, and especially by their moral feeling, to establish
and maintain the sovereignty of the people.

Chapter IV: The Principle Of The Sovereignty Of
The People In America

Chapter Summary

It predominates over the whole of society in America—Application made
of this principle by the Americans even before their Revolution—
Development given to it by that Revolution—Gradual and irresistible
extension of the elective qualification.
The Principle Of The Sovereignty Of The People In America
Whenever the political laws of the United States are to be discussed, it is
with the doctrine of the sovereignty of the people that we must begin. The
principle of the sovereignty of the people, which is to be found, more or
less, at the bottom of almost all human institutions, generally remains
concealed from view. It is obeyed without being recognized, or if for a
moment it be brought to light, it is hastily cast back into the gloom of the
sanctuary. “The will of the nation” is one of those expressions which have
been most profusely abused by the wily and the despotic of every age. To
the eyes of some it has been represented by the venal suffrages of a few of
the satellites of power; to others by the votes of a timid or an interested
minority; and some have even discovered it in the silence of a people, on
the supposition that the fact of submission established the right of
command.
In America the principle of the sovereignty of the people is not either
barren or concealed, as it is with some other nations; it is recognized by the
customs and proclaimed by the laws; it spreads freely, and arrives without
impediment at its most remote consequences. If there be a country in the
world where the doctrine of the sovereignty of the people can be fairly
appreciated, where it can be studied in its application to the affairs of
society, and where its dangers and its advantages may be foreseen, that
country is assuredly America.
I have already observed that, from their origin, the sovereignty of the
people was the fundamental principle of the greater number of British
colonies in America. It was far, however, from then exercising as much

influence on the government of society as it now does. Two obstacles, the
one external, the other internal, checked its invasive progress. It could not
ostensibly disclose itself in the laws of colonies which were still constrained
to obey the mother-country: it was therefore obliged to spread secretly, and
to gain ground in the provincial assemblies, and especially in the townships.
American society was not yet prepared to adopt it with all its
consequences. The intelligence of New England, and the wealth of the
country to the south of the Hudson (as I have shown in the preceding
chapter), long exercised a sort of aristocratic influence, which tended to
retain the exercise of social authority in the hands of a few. The public
functionaries were not universally elected, and the citizens were not all of
them electors. The electoral franchise was everywhere placed within certain
limits, and made dependent on a certain qualification, which was
exceedingly low in the North and more considerable in the South.
The American revolution broke out, and the doctrine of the sovereignty
of the people, which had been nurtured in the townships and municipalities,
took possession of the State: every class was enlisted in its cause; battles
were fought, and victories obtained for it, until it became the law of laws.
A no less rapid change was effected in the interior of society, where the
law of descent completed the abolition of local influences.
At the very time when this consequence of the laws and of the revolution
was apparent to every eye, victory was irrevocably pronounced in favor of
the democratic cause. All power was, in fact, in its hands, and resistance
was no longer possible. The higher orders submitted without a murmur and
without a struggle to an evil which was thenceforth inevitable. The ordinary
fate of falling powers awaited them; each of their several members followed
his own interests; and as it was impossible to wring the power from the
hands of a people which they did not detest sufficiently to brave, their only
aim was to secure its good-will at any price. The most democratic laws
were consequently voted by the very men whose interests they impaired;
and thus, although the higher classes did not excite the passions of the
people against their order, they accelerated the triumph of the new state of
things; so that by a singular change the democratic impulse was found to be
most irresistible in the very States where the aristocracy had the firmest
hold. The State of Maryland, which had been founded by men of rank, was

the first to proclaim universal suffrage, and to introduce the most
democratic forms into the conduct of its government.
When a nation modifies the elective qualification, it may easily be
foreseen that sooner or later that qualification will be entirely abolished.
There is no more invariable rule in the history of society: the further
electoral rights are extended, the greater is the need of extending them; for
after each concession the strength of the democracy increases, and its
demands increase with its strength. The ambition of those who are below
the appointed rate is irritated in exact proportion to the great number of
those who are above it. The exception at last becomes the rule, concession
follows concession, and no stop can be made short of universal suffrage.
At the present day the principle of the sovereignty of the people has
acquired, in the United States, all the practical development which the
imagination can conceive. It is unencumbered by those fictions which have
been thrown over it in other countries, and it appears in every possible form
according to the exigency of the occasion. Sometimes the laws are made by
the people in a body, as at Athens; and sometimes its representatives,
chosen by universal suffrage, transact business in its name, and almost
under its immediate control.
In some countries a power exists which, though it is in a degree foreign
to the social body, directs it, and forces it to pursue a certain track. In others
the ruling force is divided, being partly within and partly without the ranks
of the people. But nothing of the kind is to be seen in the United States;
there society governs itself for itself. All power centres in its bosom; and
scarcely an individual is to be meet with who would venture to conceive, or,
still less, to express, the idea of seeking it elsewhere. The nation participates
in the making of its laws by the choice of its legislators, and in the
execution of them by the choice of the agents of the executive government;
it may almost be said to govern itself, so feeble and so restricted is the share
left to the administration, so little do the authorities forget their popular
origin and the power from which they emanate. *a [Footnote a: See
Appendix, H.]

Chapter V: Necessity Of Examining The Condition
Of The States—Part I

Necessity Of Examining The Condition Of The States Before That Of
The Union At Large.
It is proposed to examine in the following chapter what is the form of
government established in America on the principle of the sovereignty of
the people; what are its resources, its hindrances, its advantages, and its
dangers. The first difficulty which presents itself arises from the complex
nature of the constitution of the United States, which consists of two
distinct social structures, connected and, as it were, encased one within the
other; two governments, completely separate and almost independent, the
one fulfilling the ordinary duties and responding to the daily and indefinite
calls of a community, the other circumscribed within certain limits, and
only exercising an exceptional authority over the general interests of the
country. In short, there are twenty-four small sovereign nations, whose
agglomeration constitutes the body of the Union. To examine the Union
before we have studied the States would be to adopt a method filled with
obstacles. The form of the Federal Government of the United States was the
last which was adopted; and it is in fact nothing more than a modification or
a summary of those republican principles which were current in the whole
community before it existed, and independently of its existence. Moreover,
the Federal Government is, as I have just observed, the exception; the
Government of the States is the rule. The author who should attempt to
exhibit the picture as a whole before he had explained its details would
necessarily fall into obscurity and repetition.
The great political principles which govern American society at this day
undoubtedly took their origin and their growth in the State. It is therefore
necessary to become acquainted with the State in order to possess a clue to
the remainder. The States which at present compose the American Union all

present the same features, as far as regards the external aspect of their
institutions. Their political or administrative existence is centred in three
focuses of action, which may not inaptly be compared to the different
nervous centres which convey motion to the human body. The township is
the lowest in order, then the county, and lastly the State; and I propose to
devote the following chapter to the examination of these three divisions.
The American System Of Townships And Municipal Bodies
Why the Author begins the examination of the political institutions with
the township—Its existence in all nations—Difficulty of establishing and
preserving municipal independence—Its importance—Why the Author has
selected the township system of New England as the main topic of his
discussion.
It is not undesignedly that I begin this subject with the Township. The
village or township is the only association which is so perfectly natural that
wherever a number of men are collected it seems to constitute itself.
The town, or tithing, as the smallest division of a community, must
necessarily exist in all nations, whatever their laws and customs may be: if
man makes monarchies and establishes republics, the first association of
mankind seems constituted by the hand of God. But although the existence
of the township is coeval with that of man, its liberties are not the less
rarely respected and easily destroyed. A nation is always able to establish
great political assemblies, because it habitually contains a certain number of
individuals fitted by their talents, if not by their habits, for the direction of
affairs. The township is, on the contrary, composed of coarser materials,
which are less easily fashioned by the legislator. The difficulties which
attend the consolidation of its independence rather augment than diminish
with the increasing enlightenment of the people. A highly civilized
community spurns the attempts of a local independence, is disgusted at its
numerous blunders, and is apt to despair of success before the experiment is
completed. Again, no immunities are so ill protected from the
encroachments of the supreme power as those of municipal bodies in
general: they are unable to struggle, single-handed, against a strong or an
enterprising government, and they cannot defend their cause with success
unless it be identified with the customs of the nation and supported by
public opinion. Thus until the independence of townships is amalgamated
with the manners of a people it is easily destroyed, and it is only after a long

existence in the laws that it can be thus amalgamated. Municipal freedom is
not the fruit of human device; it is rarely created; but it is, as it were,
secretly and spontaneously engendered in the midst of a semi-barbarous
state of society. The constant action of the laws and the national habits,
peculiar circumstances, and above all time, may consolidate it; but there is
certainly no nation on the continent of Europe which has experienced its
advantages. Nevertheless local assemblies of citizens constitute the strength
of free nations. Town-meetings are to liberty what primary schools are to
science; they bring it within the people’s reach, they teach men how to use
and how to enjoy it. A nation may establish a system of free government,
but without the spirit of municipal institutions it cannot have the spirit of
liberty. The transient passions and the interests of an hour, or the chance of
circumstances, may have created the external forms of independence; but
the despotic tendency which has been repelled will, sooner or later,
inevitably reappear on the surface.
In order to explain to the reader the general principles on which the
political organization of the counties and townships of the United States
rests, I have thought it expedient to choose one of the States of New
England as an example, to examine the mechanism of its constitution, and
then to cast a general glance over the country. The township and the county
are not organized in the same manner in every part of the Union; it is,
however, easy to perceive that the same principles have guided the
formation of both of them throughout the Union. I am inclined to believe
that these principles have been carried further in New England than
elsewhere, and consequently that they offer greater facilities to the
observations of a stranger. The institutions of New England form a
complete and regular whole; they have received the sanction of time, they
have the support of the laws, and the still stronger support of the manners of
the community, over which they exercise the most prodigious influence;
they consequently deserve our attention on every account.
Limits Of The Township
The township of New England is a division which stands between the
commune and the canton of France, and which corresponds in general to the
English tithing, or town. Its average population is from two to three
thousand; *a so that, on the one hand, the interests of its inhabitants are not

likely to conflict, and, on the other, men capable of conducting its affairs
are always to be found among its citizens.
a
[ In 1830 there were 305 townships in the State of Massachusetts, and 610,014
inhabitants, which gives an average of about 2,000 inhabitants to each township.]

Authorities Of The Township In New England
The people the source of all power here as elsewhere—Manages its own
affairs—No corporation—The greater part of the authority vested in the
hands of the Selectmen—How the Selectmen act—Town-meeting—
Enumeration of the public officers of the township—Obligatory and
remunerated functions.
In the township, as well as everywhere else, the people is the only source
of power; but in no stage of government does the body of citizens exercise a
more immediate influence. In America the people is a master whose
exigencies demand obedience to the utmost limits of possibility.
In New England the majority acts by representatives in the conduct of the
public business of the State; but if such an arrangement be necessary in
general affairs, in the townships, where the legislative and administrative
action of the government is in more immediate contact with the subject, the
system of representation is not adopted. There is no corporation; but the
body of electors, after having designated its magistrates, directs them in
everything that exceeds the simple and ordinary executive business of the
State. *b
b
[ The same rules are not applicable to the great towns, which generally have a
mayor, and a corporation divided into two bodies; this, however, is an exception
which requires the sanction of a law.—See the Act of February 22, 1822, for
appointing the authorities of the city of Boston. It frequently happens that small
towns as well as cities are subject to a peculiar administration. In 1832, 104
townships in the State of New York were governed in this manner.—Williams’
Register.]

This state of things is so contrary to our ideas, and so different from our
customs, that it is necessary for me to adduce some examples to explain it
thoroughly.
The public duties in the township are extremely numerous and minutely
divided, as we shall see further on; but the larger proportion of

administrative power is vested in the hands of a small number of
individuals, called “the Selectmen.” *c The general laws of the State
impose a certain number of obligations on the selectmen, which they may
fulfil without the authorization of the body they represent, but which they
can only neglect on their own responsibility. The law of the State obliges
them, for instance, to draw up the list of electors in their townships; and if
they omit this part of their functions, they are guilty of a misdemeanor. In
all the affairs, however, which are determined by the town-meeting, the
selectmen are the organs of the popular mandate, as in France the Maire
executes the decree of the municipal council. They usually act upon their
own responsibility, and merely put in practice principles which have been
previously recognized by the majority. But if any change is to be introduced
in the existing state of things, or if they wish to undertake any new
enterprise, they are obliged to refer to the source of their power. If, for
instance, a school is to be established, the selectmen convoke the whole
body of the electors on a certain day at an appointed place; they explain the
urgency of the case; they give their opinion on the means of satisfying it, on
the probable expense, and the site which seems to be most favorable. The
meeting is consulted on these several points; it adopts the principle, marks
out the site, votes the rate, and confides the execution of its resolution to the
selectmen.
c
[ Three selectmen are appointed in the small townships, and nine in the large
ones. See “The Town-Officer,” p. 186. See also the principal laws of the State of
Massachusetts relative to the selectmen:

Act of February 20, 1786, vol. i. p. 219; February 24, 1796, vol. i. p. 488;
March 7, 1801, vol. ii. p. 45; June 16, 1795, vol. i. p. 475; March 12, 1808,
vol. ii. p. 186; February 28, 1787, vol. i. p. 302; June 22, 1797, vol. i. p.
539.]
The selectmen have alone the right of calling a town-meeting, but they
may be requested to do so: if ten citizens are desirous of submitting a new
project to the assent of the township, they may demand a general
convocation of the inhabitants; the selectmen are obliged to comply, but
they have only the right of presiding at the meeting. *d
d
[ See Laws of Massachusetts, vol. i. p. 150, Act of March 25, 1786.]

The selectmen are elected every year in the month of April or of May.
The town-meeting chooses at the same time a number of other municipal
magistrates, who are entrusted with important administrative functions. The
assessors rate the township; the collectors receive the rate. A constable is
appointed to keep the peace, to watch the streets, and to forward the
execution of the laws; the town-clerk records all the town votes, orders,
grants, births, deaths, and marriages; the treasurer keeps the funds; the
overseer of the poor performs the difficult task of superintending the action
of the poor-laws; committee-men are appointed to attend to the schools and
to public instruction; and the road-surveyors, who take care of the greater
and lesser thoroughfares of the township, complete the list of the principal
functionaries. They are, however, still further subdivided; and amongst the
municipal officers are to be found parish commissioners, who audit the
expenses of public worship; different classes of inspectors, some of whom
are to direct the citizens in case of fire; tithing-men, listers, haywards,
chimney-viewers, fence-viewers to maintain the bounds of property, timber-
measurers, and sealers of weights and measures. *e
e
[ All these magistrates actually exist; their different functions are all detailed in a
book called “The Town-Officer,” by Isaac Goodwin, Worcester, 1827; and in the
“Collection of the General Laws of Massachusetts,” 3 vols., Boston, 1823.]

There are nineteen principal officers in a township. Every inhabitant is
constrained, on the pain of being fined, to undertake these different
functions; which, however, are almost all paid, in order that the poorer
citizens may be able to give up their time without loss. In general the
American system is not to grant a fixed salary to its functionaries. Every
service has its price, and they are remunerated in proportion to what they
have done.
Existence Of The Township
Every one the best judge of his own interest—Corollary of the principle
of the sovereignty of the people—Application of those doctrines in the
townships of America—The township of New England is sovereign in all
that concerns itself alone: subject to the State in all other matters—Bond of
the township and the State—In France the Government lends its agent to
the Commune—In America the reverse occurs.

I have already observed that the principle of the sovereignty of the people
governs the whole political system of the Anglo-Americans. Every page of
this book will afford new instances of the same doctrine. In the nations by
which the sovereignty of the people is recognized every individual
possesses an equal share of power, and participates alike in the government
of the State. Every individual is, therefore, supposed to be as well informed,
as virtuous, and as strong as any of his fellow-citizens. He obeys the
government, not because he is inferior to the authorities which conduct it,
or that he is less capable than his neighbor of governing himself, but
because he acknowledges the utility of an association with his fellow-men,
and because he knows that no such association can exist without a
regulating force. If he be a subject in all that concerns the mutual relations
of citizens, he is free and responsible to God alone for all that concerns
himself. Hence arises the maxim that every one is the best and the sole
judge of his own private interest, and that society has no right to control a
man’s actions, unless they are prejudicial to the common weal, or unless the
common weal demands his co-operation. This doctrine is universally
admitted in the United States. I shall hereafter examine the general
influence which it exercises on the ordinary actions of life; I am now
speaking of the nature of municipal bodies.
The township, taken as a whole, and in relation to the government of the
country, may be looked upon as an individual to whom the theory I have
just alluded to is applied. Municipal independence is therefore a natural
consequence of the principle of the sovereignty of the people in the United
States: all the American republics recognize it more or less; but
circumstances have peculiarly favored its growth in New England.
In this part of the Union the impulsion of political activity was given in
the townships; and it may almost be said that each of them originally
formed an independent nation. When the Kings of England asserted their
supremacy, they were contented to assume the central power of the State.
The townships of New England remained as they were before; and although
they are now subject to the State, they were at first scarcely dependent upon
it. It is important to remember that they have not been invested with
privileges, but that they have, on the contrary, forfeited a portion of their
independence to the State. The townships are only subordinate to the State
in those interests which I shall term social, as they are common to all the
citizens. They are independent in all that concerns themselves; and amongst

the inhabitants of New England I believe that not a man is to be found who
would acknowledge that the State has any right to interfere in their local
interests. The towns of New England buy and sell, sue or are sued, augment
or diminish their rates, without the slightest opposition on the part of the
administrative authority of the State.
They are bound, however, to comply with the demands of the
community. If the State is in need of money, a town can neither give nor
withhold the supplies. If the State projects a road, the township cannot
refuse to let it cross its territory; if a police regulation is made by the State,
it must be enforced by the town. A uniform system of instruction is
organized all over the country, and every town is bound to establish the
schools which the law ordains. In speaking of the administration of the
United States I shall have occasion to point out the means by which the
townships are compelled to obey in these different cases: I here merely
show the existence of the obligation. Strict as this obligation is, the
government of the State imposes it in principle only, and in its performance
the township resumes all its independent rights. Thus, taxes are voted by the
State, but they are levied and collected by the township; the existence of a
school is obligatory, but the township builds, pays, and superintends it. In
France the State-collector receives the local imposts; in America the town-
collector receives the taxes of the State. Thus the French Government lends
its agents to the commune; in America the township is the agent of the
Government. This fact alone shows the extent of the differences which exist
between the two nations.
Public Spirit Of The Townships Of New England
How the township of New England wins the affections of its inhabitants
—Difficulty of creating local public spirit in Europe—The rights and duties
of the American township favorable to it—Characteristics of home in the
United States—Manifestations of public spirit in New England—Its happy
effects.
In America, not only do municipal bodies exist, but they are kept alive
and supported by public spirit. The township of New England possesses two
advantages which infallibly secure the attentive interest of mankind,
namely, independence and authority. Its sphere is indeed small and limited,
but within that sphere its action is unrestrained; and its independence gives

to it a real importance which its extent and population may not always
ensure.
It is to be remembered that the affections of men generally lie on the side
of authority. Patriotism is not durable in a conquered nation. The New
Englander is attached to his township, not only because he was born in it,
but because it constitutes a social body of which he is a member, and whose
government claims and deserves the exercise of his sagacity. In Europe the
absence of local public spirit is a frequent subject of regret to those who are
in power; everyone agrees that there is no surer guarantee of order and
tranquility, and yet nothing is more difficult to create. If the municipal
bodies were made powerful and independent, the authorities of the nation
might be disunited and the peace of the country endangered. Yet, without
power and independence, a town may contain good subjects, but it can have
no active citizens. Another important fact is that the township of New
England is so constituted as to excite the warmest of human affections,
without arousing the ambitious passions of the heart of man. The officers of
the country are not elected, and their authority is very limited. Even the
State is only a second-rate community, whose tranquil and obscure
administration offers no inducement sufficient to draw men away from the
circle of their interests into the turmoil of public affairs. The federal
government confers power and honor on the men who conduct it; but these
individuals can never be very numerous. The high station of the Presidency
can only be reached at an advanced period of life, and the other federal
functionaries are generally men who have been favored by fortune, or
distinguished in some other career. Such cannot be the permanent aim of the
ambitious. But the township serves as a centre for the desire of public
esteem, the want of exciting interests, and the taste for authority and
popularity, in the midst of the ordinary relations of life; and the passions
which commonly embroil society change their character when they find a
vent so near the domestic hearth and the family circle.
In the American States power has been disseminated with admirable skill
for the purpose of interesting the greatest possible number of persons in the
common weal. Independently of the electors who are from time to time
called into action, the body politic is divided into innumerable functionaries
and officers, who all, in their several spheres, represent the same powerful
whole in whose name they act. The local administration thus affords an
unfailing source of profit and interest to a vast number of individuals.

The American system, which divides the local authority among so many
citizens, does not scruple to multiply the functions of the town officers. For
in the United States it is believed, and with truth, that patriotism is a kind of
devotion which is strengthened by ritual observance. In this manner the
activity of the township is continually perceptible; it is daily manifested in
the fulfilment of a duty or the exercise of a right, and a constant though
gentle motion is thus kept up in society which animates without disturbing
it.
The American attaches himself to his home as the mountaineer clings to
his hills, because the characteristic features of his country are there more
distinctly marked than elsewhere. The existence of the townships of New
England is in general a happy one. Their government is suited to their
tastes, and chosen by themselves. In the midst of the profound peace and
general comfort which reign in America the commotions of municipal
discord are unfrequent. The conduct of local business is easy. The political
education of the people has long been complete; say rather that it was
complete when the people first set foot upon the soil. In New England no
tradition exists of a distinction of ranks; no portion of the community is
tempted to oppress the remainder; and the abuses which may injure isolated
individuals are forgotten in the general contentment which prevails. If the
government is defective (and it would no doubt be easy to point out its
deficiencies), the fact that it really emanates from those it governs, and that
it acts, either ill or well, casts the protecting spell of a parental pride over its
faults. No term of comparison disturbs the satisfaction of the citizen:
England formerly governed the mass of the colonies, but the people was
always sovereign in the township where its rule is not only an ancient but a
primitive state.
The native of New England is attached to his township because it is
independent and free: his co-operation in its affairs ensures his attachment
to its interest; the well-being it affords him secures his affection; and its
welfare is the aim of his ambition and of his future exertions: he takes a part
in every occurrence in the place; he practises the art of government in the
small sphere within his reach; he accustoms himself to those forms which
can alone ensure the steady progress of liberty; he imbibes their spirit; he
acquires a taste for order, comprehends the union or the balance of powers,
and collects clear practical notions on the nature of his duties and the extent
of his rights.

The Counties Of New England
The division of the countries in America has considerable analogy with
that of the arrondissements of France. The limits of the counties are
arbitrarily laid down, and the various districts which they contain have no
necessary connection, no common tradition or natural sympathy; their
object is simply to facilitate the administration of justice.
The extent of the township was too small to contain a system of judicial
institutions; each county has, however, a court of justice, *f a sheriff to
execute its decrees, and a prison for criminals. There are certain wants
which are felt alike by all the townships of a county; it is therefore natural
that they should be satisfied by a central authority. In the State of
Massachusetts this authority is vested in the hands of several magistrates,
who are appointed by the Governor of the State, with the advice *g of his
council. *h The officers of the county have only a limited and occasional
authority, which is applicable to certain predetermined cases. The State and
the townships possess all the power requisite to conduct public business.
The budget of the county is drawn up by its officers, and is voted by the
legislature, but there is no assembly which directly or indirectly represents
the county. It has, therefore, properly speaking, no political existence.
f
[ See the Act of February 14, 1821, Laws of Massachusetts, vol. i. p. 551.]

g
[ See the Act of February 20, 1819, Laws of Massachusetts, vol. ii. p. 494.]

h
[ The council of the Governor is an elective body.] A twofold tendency may be
discerned in the American constitutions, which impels the legislator to centralize
the legislative and to disperse the executive power. The township of New
England has in itself an indestructible element of independence; and this distinct
existence could only be fictitiously introduced into the county, where its utility
has not been felt. But all the townships united have but one representation, which
is the State, the centre of the national authority: beyond the action of the
township and that of the nation, nothing can be said to exist but the influence of
individual exertion.

Administration In New England
Administration not perceived in America—Why?—The Europeans
believe that liberty is promoted by depriving the social authority of some of
its rights; the Americans, by dividing its exercise—Almost all the

administration confined to the township, and divided amongst the town-
officers—No trace of an administrative body to be perceived, either in the
township or above it—The reason of this—How it happens that the
administration of the State is uniform—Who is empowered to enforce the
obedience of the township and the county to the law—The introduction of
judicial power into the administration—Consequence of the extension of
the elective principle to all functionaries—The Justice of the Peace in New
England—By whom appointed—County officer: ensures the administration
of the townships—Court of Sessions—Its action—Right of inspection and
indictment disseminated like the other administrative functions—Informers
encouraged by the division of fines.
Nothing is more striking to an European traveller in the United States
than the absence of what we term the Government, or the Administration.
Written laws exist in America, and one sees that they are daily executed; but
although everything is in motion, the hand which gives the impulse to the
social machine can nowhere be discovered. Nevertheless, as all peoples are
obliged to have recourse to certain grammatical forms, which are the
foundation of human language, in order to express their thoughts; so all
communities are obliged to secure their existence by submitting to a certain
dose of authority, without which they fall a prey to anarchy. This authority
may be distributed in several ways, but it must always exist somewhere.
There are two methods of diminishing the force of authority in a nation:
The first is to weaken the supreme power in its very principle, by
forbidding or preventing society from acting in its own defence under
certain circumstances. To weaken authority in this manner is what is
generally termed in Europe to lay the foundations of freedom. The second
manner of diminishing the influence of authority does not consist in
stripping society of any of its rights, nor in paralyzing its efforts, but in
distributing the exercise of its privileges in various hands, and in
multiplying functionaries, to each of whom the degree of power necessary
for him to perform his duty is entrusted. There may be nations whom this
distribution of social powers might lead to anarchy; but in itself it is not
anarchical. The action of authority is indeed thus rendered less irresistible
and less perilous, but it is not totally suppressed.
The revolution of the United States was the result of a mature and
dignified taste for freedom, and not of a vague or ill-defined craving for

independence. It contracted no alliance with the turbulent passions of
anarchy; but its course was marked, on the contrary, by an attachment to
whatever was lawful and orderly.
It was never assumed in the United States that the citizen of a free
country has a right to do whatever he pleases; on the contrary, social
obligations were there imposed upon him more various than anywhere else.
No idea was ever entertained of attacking the principles or of contesting the
rights of society; but the exercise of its authority was divided, to the end
that the office might be powerful and the officer insignificant, and that the
community should be at once regulated and free. In no country in the world
does the law hold so absolute a language as in America, and in no country is
the right of applying it vested in so many hands. The administrative power
in the United States presents nothing either central or hierarchical in its
constitution, which accounts for its passing, unperceived. The power exists,
but its representative is not to be perceived.
We have already seen that the independent townships of New England
protect their own private interests; and the municipal magistrates are the
persons to whom the execution of the laws of the State is most frequently
entrusted. *i Besides the general laws, the State sometimes passes general
police regulations; but more commonly the townships and town officers,
conjointly with justices of the peace, regulate the minor details of social
life, according to the necessities of the different localities, and promulgate
such enactments as concern the health of the community, and the peace as
well as morality of the citizens. *j Lastly, these municipal magistrates
provide, of their own accord and without any delegated powers, for those
unforeseen emergencies which frequently occur in society. *k
i
[ See “The Town-Officer,” especially at the words Selectmen, Assessors,
Collectors, Schools, Surveyors of Highways. I take one example in a thousand:
the State prohibits travelling on the Sunday; the tything-men, who are town-
officers, are specially charged to keep watch and to execute the law. See the
Laws of Massachusetts, vol. i. p. 410.

The selectmen draw up the lists of electors for the election of the
Governor, and transmit the result of the ballot to the Secretary of the State.
See Act of February 24, 1796: Id., vol. i. p. 488.]
j
[ Thus, for instance, the selectmen authorize the construction of drains, point out

the proper sites for slaughter-houses and other trades which are a nuisance to the
neighborhood. See the Act of June 7, 1785: Id., vol. i. p. 193.]

k
[ The selectmen take measures for the security of the public in case of contagious
diseases, conjointly with the justices of the peace. See Act of June 22, 1797, vol.
i. p. 539.]

It results from what we have said that in the State of Massachusetts the
administrative authority is almost entirely restricted to the township, *l but
that it is distributed among a great number of individuals. In the French
commune there is properly but one official functionary, namely, the Maire;
and in New England we have seen that there are nineteen. These nineteen
functionaries do not in general depend upon one another. The law carefully
prescribes a circle of action to each of these magistrates; and within that
circle they have an entire right to perform their functions independently of
any other authority. Above the township scarcely any trace of a series of
official dignitaries is to be found. It sometimes happens that the county
officers alter a decision of the townships or town magistrates, *m but in
general the authorities of the county have no right to interfere with the
authorities of the township, *n except in such matters as concern the county.
l
[ I say almost, for there are various circumstances in the annals of a township
which are regulated by the justice of the peace in his individual capacity, or by
the justices of the peace assembled in the chief town of the county; thus licenses
are granted by the justices. See the Act of February 28, 1787, vol. i. p. 297.]

m
[ Thus licenses are only granted to such persons as can produce a certificate of
good conduct from the selectmen. If the selectmen refuse to give the certificate,
the party may appeal to the justices assembled in the Court of Sessions, and they
may grant the license. See Act of March 12, 1808, vol. ii. p. 186.

The townships have the right to make by-laws, and to enforce them by
fines which are fixed by law; but these by-laws must be approved by the
Court of Sessions. See Act of March 23, 1786, vol. i. p. 254.]
n
[ In Massachusetts the county magistrates are frequently called upon to
investigate the acts of the town magistrates; but it will be shown further on that
this investigation is a consequence, not of their administrative, but of their
judicial power.]

The magistrates of the township, as well as those of the county, are bound
to communicate their acts to the central government in a very small number
of predetermined cases. *o But the central government is not represented by
an individual whose business it is to publish police regulations and
ordinances enforcing the execution of the laws; to keep up a regular
communication with the officers of the township and the county; to inspect
their conduct, to direct their actions, or to reprimand their faults. There is no
point which serves as a centre to the radii of the administration.
o
[ The town committees of schools are obliged to make an annual report to the
Secretary of the State on the condition of the school. See Act of March 10, 1827,
vol. iii. p. 183.]

Chapter V: Necessity Of Examining The Condition
Of The States—Part II

What, then, is the uniform plan on which the government is conducted,
and how is the compliance of the counties and their magistrates or the
townships and their officers enforced? In the States of New England the
legislative authority embraces more subjects than it does in France; the
legislator penetrates to the very core of the administration; the law descends
to the most minute details; the same enactment prescribes the principle and
the method of its application, and thus imposes a multitude of strict and
rigorously defined obligations on the secondary functionaries of the State.
The consequence of this is that if all the secondary functionaries of the
administration conform to the law, society in all its branches proceeds with
the greatest uniformity: the difficulty remains of compelling the secondary
functionaries of the administration to conform to the law. It may be
affirmed that, in general, society has only two methods of enforcing the
execution of the laws at its disposal: a discretionary power may be entrusted
to a superior functionary of directing all the others, and of cashiering them
in case of disobedience; or the courts of justice may be authorized to inflict
judicial penalties on the offender: but these two methods are not always
available.
The right of directing a civil officer presupposes that of cashiering him if
he does not obey orders, and of rewarding him by promotion if he fulfils his
duties with propriety. But an elected magistrate can neither be cashiered nor
promoted. All elective functions are inalienable until their term is expired.
In fact, the elected magistrate has nothing either to expect or to fear from
his constituents; and when all public offices are filled by ballot there can be
no series of official dignities, because the double right of commanding and
of enforcing obedience can never be vested in the same individual, and

because the power of issuing an order can never be joined to that of
inflicting a punishment or bestowing a reward.
The communities therefore in which the secondary functionaries of the
government are elected are perforce obliged to make great use of judicial
penalties as a means of administration. This is not evident at first sight; for
those in power are apt to look upon the institution of elective functionaries
as one concession, and the subjection of the elected magistrate to the judges
of the land as another. They are equally averse to both these innovations;
and as they are more pressingly solicited to grant the former than the latter,
they accede to the election of the magistrate, and leave him independent of
the judicial power. Nevertheless, the second of these measures is the only
thing that can possibly counterbalance the first; and it will be found that an
elective authority which is not subject to judicial power will, sooner or later,
either elude all control or be destroyed. The courts of justice are the only
possible medium between the central power and the administrative bodies;
they alone can compel the elected functionary to obey, without violating the
rights of the elector. The extension of judicial power in the political world
ought therefore to be in the exact ratio of the extension of elective offices: if
these two institutions do not go hand in hand, the State must fall into
anarchy or into subjection.
It has always been remarked that habits of legal business do not render
men apt to the exercise of administrative authority. The Americans have
borrowed from the English, their fathers, the idea of an institution which is
unknown upon the continent of Europe: I allude to that of the Justices of the
Peace. The Justice of the Peace is a sort of mezzo termine between the
magistrate and the man of the world, between the civil officer and the
judge. A justice of the peace is a well-informed citizen, though he is not
necessarily versed in the knowledge of the laws. His office simply obliges
him to execute the police regulations of society; a task in which good sense
and integrity are of more avail than legal science. The justice introduces
into the administration a certain taste for established forms and publicity,
which renders him a most unserviceable instrument of despotism; and, on
the other hand, he is not blinded by those superstitions which render legal
officers unfit members of a government. The Americans have adopted the
system of the English justices of the peace, but they have deprived it of that
aristocratic character which is discernible in the mother-country. The
Governor of Massachusetts *p appoints a certain number of justices of the

peace in every county, whose functions last seven years. *q He further
designates three individuals from amongst the whole body of justices who
form in each county what is called the Court of Sessions. The justices take a
personal share in public business; they are sometimes entrusted with
administrative functions in conjunction with elected officers, *r they
sometimes constitute a tribunal, before which the magistrates summarily
prosecute a refractory citizen, or the citizens inform against the abuses of
the magistrate. But it is in the Court of Sessions that they exercise their
most important functions. This court meets twice a year in the county town;
in Massachusetts it is empowered to enforce the obedience of the greater
number *s of public officers. *t It must be observed, that in the State of
Massachusetts the Court of Sessions is at the same time an administrative
body, properly so called, and a political tribunal. It has been asserted that
the county is a purely administrative division. The Court of Sessions
presides over that small number of affairs which, as they concern several
townships, or all the townships of the county in common, cannot be
entrusted to any one of them in particular. *u In all that concerns county
business the duties of the Court of Sessions are purely administrative; and if
in its investigations it occasionally borrows the forms of judicial procedure,
it is only with a view to its own information, *v or as a guarantee to the
community over which it presides. But when the administration of the
township is brought before it, it always acts as a judicial body, and in some
few cases as an official assembly.
p
[ We shall hereafter learn what a Governor is: I shall content myself with
remarking in this place that he represents the executive power of the whole
State.]

q
[ See the Constitution of Massachusetts, chap. II. sect. 1. Section 9; chap. III.
Section 3.]

r
[ Thus, for example, a stranger arrives in a township from a country where a
contagious disease prevails, and he falls ill. Two justices of the peace can, with
the assent of the selectmen, order the sheriff of the county to remove and take
care of him.—Act of June 22, 1797, vol. i. p. 540.

In general the justices interfere in all the important acts of the
administration, and give them a semi-judicial character.] [Footnote s: I say
the greater number, because certain administrative misdemeanors are

brought before ordinary tribunals. If, for instance, a township refuses to
make the necessary expenditure for its schools or to name a school-
committee, it is liable to a heavy fine. But this penalty is pronounced by the
Supreme Judicial Court or the Court of Common Pleas. See Act of March
10, 1827, Laws of Massachusetts, vol. iii. p. 190. Or when a township
neglects to provide the necessary war-stores.—Act of February 21, 1822:
Id., vol. ii. p. 570.]
t
[ In their individual capacity the justices of the peace take a part in the business
of the counties and townships.] [Footnote u: These affairs may be brought under
the following heads:—1. The erection of prisons and courts of justice. 2. The
county budget, which is afterwards voted by the State. 3. The distribution of the
taxes so voted. 4. Grants of certain patents. 5. The laying down and repairs of the
country roads.]

v
[ Thus, when a road is under consideration, almost all difficulties are disposed of
by the aid of the jury.]

The first difficulty is to procure the obedience of an authority as entirely
independent of the general laws of the State as the township is. We have
stated that assessors are annually named by the town-meetings to levy the
taxes. If a township attempts to evade the payment of the taxes by
neglecting to name its assessors, the Court of Sessions condemns it to a
heavy penalty. *w The fine is levied on each of the inhabitants; and the
sheriff of the county, who is the officer of justice, executes the mandate.
Thus it is that in the United States the authority of the Government is
mysteriously concealed under the forms of a judicial sentence; and its
influence is at the same time fortified by that irresistible power with which
men have invested the formalities of law.
w
[ See Act of February 20, 1786, Laws of Massachusetts, vol. i. p. 217.]

These proceedings are easy to follow and to understand. The demands
made upon a township are in general plain and accurately defined; they
consist in a simple fact without any complication, or in a principle without
its application in detail. *x But the difficulty increases when it is not the
obedience of the township, but that of the town officers which is to be
enforced. All the reprehensible actions of which a public functionary may
be guilty are reducible to the following heads:

x
[ There is an indirect method of enforcing the obedience of a township. Suppose
that the funds which the law demands for the maintenance of the roads have not
been voted, the town surveyor is then authorized, ex officio, to levy the supplies.
As he is personally responsible to private individuals for the state of the roads,
and indictable before the Court of Sessions, he is sure to employ the
extraordinary right which the law gives him against the township. Thus by
threatening the officer the Court of Sessions exacts compliance from the town.
See Act of March 5, 1787, Id., vol. i. p. 305.]

He may execute the law without energy or zeal;
He may neglect to execute the law;
He may do what the law enjoins him not to do.
The last two violations of duty can alone come under the cognizance of a
tribunal; a positive and appreciable fact is the indispensable foundation of
an action at law. Thus, if the selectmen omit to fulfil the legal formalities
usual at town elections, they may be condemned to pay a fine; *y but when
the public officer performs his duty without ability, and when he obeys the
letter of the law without zeal or energy, he is at least beyond the reach of
judicial interference. The Court of Sessions, even when it is invested with
its official powers, is in this case unable to compel him to a more
satisfactory obedience. The fear of removal is the only check to these quasi-
offences; and as the Court of Sessions does not originate the town
authorities, it cannot remove functionaries whom it does not appoint.
Moreover, a perpetual investigation would be necessary to convict the
officer of negligence or lukewarmness; and the Court of Sessions sits but
twice a year and then only judges such offences as are brought before its
notice. The only security of that active and enlightened obedience which a
court of justice cannot impose upon public officers lies in the possibility of
their arbitrary removal. In France this security is sought for in powers
exercised by the heads of the administration; in America it is sought for in
the principle of election.
y
[ Laws of Massachusetts, vol. ii. p. 45.]

Thus, to recapitulate in a few words what I have been showing: If a
public officer in New England commits a crime in the exercise of his
functions, the ordinary courts of justice are always called upon to pass
sentence upon him. If he commits a fault in his official capacity, a purely

administrative tribunal is empowered to punish him; and, if the affair is
important or urgent, the judge supplies the omission of the functionary. *z
Lastly, if the same individual is guilty of one of those intangible offences of
which human justice has no cognizance, he annually appears before a
tribunal from which there is no appeal, which can at once reduce him to
insignificance and deprive him of his charge. This system undoubtedly
possesses great advantages, but its execution is attended with a practical
difficulty which it is important to point out.
z
[ If, for instance, a township persists in refusing to name its assessors, the Court
of Sessions nominates them; and the magistrates thus appointed are invested
with the same authority as elected officers. See the Act quoted above, February
20, 1787.]

I have already observed that the administrative tribunal, which is called
the Court of Sessions, has no right of inspection over the town officers. It
can only interfere when the conduct of a magistrate is specially brought
under its notice; and this is the delicate part of the system. The Americans
of New England are unacquainted with the office of public prosecutor in the
Court of Sessions, *a and it may readily be perceived that it could not have
been established without difficulty. If an accusing magistrate had merely
been appointed in the chief town of each county, and if he had been
unassisted by agents in the townships, he would not have been better
acquainted with what was going on in the county than the members of the
Court of Sessions. But to appoint agents in each township would have been
to centre in his person the most formidable of powers, that of a judicial
administration. Moreover, laws are the children of habit, and nothing of the
kind exists in the legislation of England. The Americans have therefore
divided the offices of inspection and of prosecution, as well as all the other
functions of the administration. Grand jurors are bound by the law to
apprise the court to which they belong of all the misdemeanors which may
have been committed in their county. *b There are certain great offences
which are officially prosecuted by the States; *c but more frequently the
task of punishing delinquents devolves upon the fiscal officer, whose
province it is to receive the fine: thus the treasurer of the township is
charged with the prosecution of such administrative offences as fall under
his notice. But a more special appeal is made by American legislation to the
private interest of the citizen; *d and this great principle is constantly to be

met with in studying the laws of the United States. American legislators are
more apt to give men credit for intelligence than for honesty, and they rely
not a little on personal cupidity for the execution of the laws. When an
individual is really and sensibly injured by an administrative abuse, it is
natural that his personal interest should induce him to prosecute. But if a
legal formality be required, which, however advantageous to the
community, is of small importance to individuals, plaintiffs may be less
easily found; and thus, by a tacit agreement, the laws may fall into disuse.
Reduced by their system to this extremity, the Americans are obliged to
encourage informers by bestowing on them a portion of the penalty in
certain cases, *e and to insure the execution of the laws by the dangerous
expedient of degrading the morals of the people. The only administrative
authority above the county magistrates is, properly speaking, that of the
Government.
a
[ I say the Court of Sessions, because in common courts there is a magistrate
who exercises some of the functions of a public prosecutor.]

b
[ The grand-jurors are, for instance, bound to inform the court of the bad state of
the roads.—Laws of Massachusetts, vol. i. p. 308.]

c
[ If, for instance, the treasurer of the county holds back his accounts.—Laws of
Massachusetts, vol. i. p. 406.] [Footnote d: Thus, if a private individual breaks
down or is wounded in consequence of the badness of a road, he can sue the
township or the county for damages at the sessions.—Laws of Massachusetts,
vol. i. p. 309.]

e
[ In cases of invasion or insurrection, if the town-officers neglect to furnish the
necessary stores and ammunition for the militia, the township may be
condemned to a fine of from $200 to $500. It may readily be imagined that in
such a case it might happen that no one cared to prosecute; hence the law adds
that all the citizens may indict offences of this kind, and that half of the fine shall
belong to the plaintiff. See Act of March 6, 1810, vol. ii. p. 236. The same clause
is frequently to be met with in the law of Massachusetts. Not only are private
individuals thus incited to prosecute the public officers, but the public officers
are encouraged in the same manner to bring the disobedience of private
individuals to justice. If a citizen refuses to perform the work which has been
assigned to him upon a road, the road surveyor may prosecute him, and he
receives half the penalty for himself. See the Laws above quoted, vol. i. p. 308.]

General Remarks On The Administration Of The United States
Differences of the States of the Union in their system of administration—
Activity and perfection of the local authorities decrease towards the South
—Power of the magistrate increases; that of the elector diminishes—
Administration passes from the township to the county—States of New
York, Ohio, Pennsylvania—Principles of administration applicable to the
whole Union—Election of public officers, and inalienability of their
functions—Absence of gradation of ranks—Introduction of judicial
resources into the administration.
I have already premised that, after having examined the constitution of
the township and the county of New England in detail, I should take a
general view of the remainder of the Union. Townships and a local activity
exist in every State; but in no part of the confederation is a township to be
met with precisely similar to those of New England. The more we descend
towards the South, the less active does the business of the township or
parish become; the number of magistrates, of functions, and of rights
decreases; the population exercises a less immediate influence on affairs;
town meetings are less frequent, and the subjects of debate less numerous.
The power of the elected magistrate is augmented and that of the elector
diminished, whilst the public spirit of the local communities is less
awakened and less influential. *f These differences may be perceived to a
certain extent in the State of New York; they are very sensible in
Pennsylvania; but they become less striking as we advance to the northwest.
The majority of the emigrants who settle in the northwestern States are
natives of New England, and they carry the habits of their mother country
with them into that which they adopt. A township in Ohio is by no means
dissimilar from a township in Massachusetts.
f
[ For details see the Revised Statutes of the State of New York, part i. chap. xi.
vol. i. pp. 336-364, entitled, “Of the Powers, Duties, and Privileges of Towns.”

See in the Digest of the Laws of Pennsylvania, the words Assessors,
Collector, Constables, Overseer of the Poor, Supervisors of Highways; and
in the Acts of a general nature of the State of Ohio, the Act of February 25,
1834, relating to townships, p. 412; besides the peculiar dispositions
relating to divers town-officers, such as Township’s Clerk, Trustees,

Overseers of the Poor, Fence Viewers, Appraisers of Property, Township’s
Treasurer, Constables, Supervisors of Highways.]
We have seen that in Massachusetts the mainspring of public
administration lies in the township. It forms the common centre of the
interests and affections of the citizens. But this ceases to be the case as we
descend to States in which knowledge is less generally diffused, and where
the township consequently offers fewer guarantees of a wise and active
administration. As we leave New England, therefore, we find that the
importance of the town is gradually transferred to the county, which
becomes the centre of administration, and the intermediate power between
the Government and the citizen. In Massachusetts the business of the
county is conducted by the Court of Sessions, which is composed of a
quorum named by the Governor and his council; but the county has no
representative assembly, and its expenditure is voted by the national
legislature. In the great State of New York, on the contrary, and in those of
Ohio and Pennsylvania, the inhabitants of each county choose a certain
number of representatives, who constitute the assembly of the county. *g
The county assembly has the right of taxing the inhabitants to a certain
extent; and in this respect it enjoys the privileges of a real legislative body:
at the same time it exercises an executive power in the county, frequently
directs the administration of the townships, and restricts their authority
within much narrower bounds than in Massachusetts.
g
[ See the Revised Statutes of the State of New York, part i. chap. xi. vol. i. p.
340. Id. chap. xii. p. 366; also in the Acts of the State of Ohio, an act relating to
county commissioners, February 25, 1824, p. 263. See the Digest of the Laws of
Pennsylvania, at the words County-rates and Levies, p. 170. In the State of New
York each township elects a representative, who has a share in the administration
of the county as well as in that of the township.]

Such are the principal differences which the systems of county and town
administration present in the Federal States. Were it my intention to
examine the provisions of American law minutely, I should have to point
out still further differences in the executive details of the several
communities. But what I have already said may suffice to show the general
principles on which the administration of the United States rests. These
principles are differently applied; their consequences are more or less
numerous in various localities; but they are always substantially the same.

The laws differ, and their outward features change, but their character does
not vary. If the township and the county are not everywhere constituted in
the same manner, it is at least true that in the United States the county and
the township are always based upon the same principle, namely, that
everyone is the best judge of what concerns himself alone, and the most
proper person to supply his private wants. The township and the county are
therefore bound to take care of their special interests: the State governs, but
it does not interfere with their administration. Exceptions to this rule may
be met with, but not a contrary principle.
The first consequence of this doctrine has been to cause all the
magistrates to be chosen either by or at least from amongst the citizens. As
the officers are everywhere elected or appointed for a certain period, it has
been impossible to establish the rules of a dependent series of authorities;
there are almost as many independent functionaries as there are functions,
and the executive power is disseminated in a multitude of hands. Hence
arose the indispensable necessity of introducing the control of the courts of
justice over the administration, and the system of pecuniary penalties, by
which the secondary bodies and their representatives are constrained to
obey the laws. This system obtains from one end of the Union to the other.
The power of punishing the misconduct of public officers, or of performing
the part of the executive in urgent cases, has not, however, been bestowed
on the same judges in all the States. The Anglo-Americans derived the
institution of justices of the peace from a common source; but although it
exists in all the States, it is not always turned to the same use. The justices
of the peace everywhere participate in the administration of the townships
and the counties, *h either as public officers or as the judges of public
misdemeanors, but in most of the States the more important classes of
public offences come under the cognizance of the ordinary tribunals.
h
[ In some of the Southern States the county courts are charged with all the details
of the administration. See the Statutes of the State of Tennessee, arts. Judiciary,
Taxes, etc.]

The election of public officers, or the inalienability of their functions, the
absence of a gradation of powers, and the introduction of a judicial control
over the secondary branches of the administration, are the universal
characteristics of the American system from Maine to the Floridas. In some
States (and that of New York has advanced most in this direction) traces of

a centralized administration begin to be discernible. In the State of New
York the officers of the central government exercise, in certain cases, a sort
of inspection or control over the secondary bodies. *i
i
[ For instance, the direction of public instruction centres in the hands of the
Government. The legislature names the members of the University, who are
denominated Regents; the Governor and Lieutentant-Governor of the State are
necessarily of the number.—Revised Statutes, vol. i. p. 455. The Regents of the
University annually visit the colleges and academies, and make their report to
the legislature. Their superintendence is not inefficient, for several reasons: the
colleges in order to become corporations stand in need of a charter, which is only
granted on the recommendation of the Regents; every year funds are distributed
by the State for the encouragement of learning, and the Regents are the
distributors of this money. See chap. xv. “Instruction,” Revised Statutes, vol. i. p.
455.

The school-commissioners are obliged to send an annual report to the
Superintendent of the Republic.—Id. p. 488.
A similar report is annually made to the same person on the number and
condition of the poor.—Id. p. 631.]
At other times they constitute a court of appeal for the decision of affairs.
*j In the State of New York judicial penalties are less used than in other
parts as a means of administration, and the right of prosecuting the offences
of public officers is vested in fewer hands. *k The same tendency is faintly
observable in some other States; *l but in general the prominent feature of
the administration in the United States is its excessive local independence.
j
[ If any one conceives himself to be wronged by the school-commissioners (who
are town-officers), he can appeal to the superintendent of the primary schools,
whose decision is final.—Revised Statutes, vol. i. p. 487.

Provisions similar to those above cited are to be met with from time to
time in the laws of the State of New York; but in general these attempts at
centralization are weak and unproductive. The great authorities of the State
have the right of watching and controlling the subordinate agents, without
that of rewarding or punishing them. The same individual is never
empowered to give an order and to punish disobedience; he has therefore
the right of commanding, without the means of exacting compliance. In
1830 the Superintendent of Schools complained in his Annual Report
addressed to the legislature that several school-commissioners had

neglected, notwithstanding his application, to furnish him with the accounts
which were due. He added that if this omission continued he should be
obliged to prosecute them, as the law directs, before the proper tribunals.]
k
[ Thus the district-attorney is directed to recover all fines below the sum of fifty
dollars, unless such a right has been specially awarded to another magistrate.—
Revised Statutes, vol. i. p. 383.]

l
[ Several traces of centralization may be discovered in Massachusetts; for
instance, the committees of the town-schools are directed to make an annual
report to the Secretary of State. See Laws of Massachusetts, vol. i. p. 367.]

Of The State
I have described the townships and the administration; it now remains for
me to speak of the State and the Government. This is ground I may pass
over rapidly, without fear of being misunderstood; for all I have to say is to
be found in written forms of the various constitutions, which are easily to
be procured. These constitutions rest upon a simple and rational theory;
their forms have been adopted by all constitutional nations, and are become
familiar to us. In this place, therefore, it is only necessary for me to give a
short analysis; I shall endeavor afterwards to pass judgment upon what I
now describe.

Chapter V: Necessity Of Examining The Condition
Of The States—Part III

Legislative Power Of The State
Division of the Legislative Body into two Houses—Senate—House of
Representatives—Different functions of these two Bodies.
The legislative power of the State is vested in two assemblies, the first of
which generally bears the name of the Senate. The Senate is commonly a
legislative body; but it sometimes becomes an executive and judicial one. It
takes a part in the government in several ways, according to the constitution
of the different States; *m but it is in the nomination of public functionaries
that it most commonly assumes an executive power. It partakes of judicial
power in the trial of certain political offences, and sometimes also in the
decision of certain civil cases. *n The number of its members is always
small. The other branch of the legislature, which is usually called the House
of Representatives, has no share whatever in the administration, and only
takes a part in the judicial power inasmuch as it impeaches public
functionaries before the Senate. The members of the two Houses are nearly
everywhere subject to the same conditions of election. They are chosen in
the same manner, and by the same citizens. The only difference which
exists between them is, that the term for which the Senate is chosen is in
general longer than that of the House of Representatives. The latter seldom
remain in office longer than a year; the former usually sit two or three
years. By granting to the senators the privilege of being chosen for several
years, and being renewed seriatim, the law takes care to preserve in the
legislative body a nucleus of men already accustomed to public business,
and capable of exercising a salutary influence upon the junior members.
m
[ In Massachusetts the Senate is not invested with any administrative functions.]

n
[ As in the State of New York.]

The Americans, plainly, did not desire, by this separation of the
legislative body into two branches, to make one house hereditary and the
other elective; one aristocratic and the other democratic. It was not their
object to create in the one a bulwark to power, whilst the other represented
the interests and passions of the people. The only advantages which result
from the present constitution of the United States are the division of the
legislative power and the consequent check upon political assemblies; with
the creation of a tribunal of appeal for the revision of the laws.
Time and experience, however, have convinced the Americans that if
these are its only advantages, the division of the legislative power is still a
principle of the greatest necessity. Pennsylvania was the only one of the
United States which at first attempted to establish a single House of
Assembly, and Franklin himself was so far carried away by the necessary
consequences of the principle of the sovereignty of the people as to have
concurred in the measure; but the Pennsylvanians were soon obliged to
change the law, and to create two Houses. Thus the principle of the division
of the legislative power was finally established, and its necessity may
henceforward be regarded as a demonstrated truth. This theory, which was
nearly unknown to the republics of antiquity—which was introduced into
the world almost by accident, like so many other great truths—and
misunderstood by several modern nations, is at length become an axiom in
the political science of the present age.
[See Benjamin Franklin]
The Executive Power Of The State
Office of Governor in an American State—The place he occupies in
relation to the Legislature—His rights and his duties—His dependence on
the people.
The executive power of the State may with truth be said to be represented
by the Governor, although he enjoys but a portion of its rights. The supreme
magistrate, under the title of Governor, is the official moderator and
counsellor of the legislature. He is armed with a veto or suspensive power,
which allows him to stop, or at least to retard, its movements at pleasure.
He lays the wants of the country before the legislative body, and points out
the means which he thinks may be usefully employed in providing for

them; he is the natural executor of its decrees in all the undertakings which
interest the nation at large. *o In the absence of the legislature, the
Governor is bound to take all necessary steps to guard the State against
violent shocks and unforeseen dangers. The whole military power of the
State is at the disposal of the Governor. He is the commander of the militia,
and head of the armed force. When the authority, which is by general
consent awarded to the laws, is disregarded, the Governor puts himself at
the head of the armed force of the State, to quell resistance, and to restore
order. Lastly, the Governor takes no share in the administration of
townships and counties, except it be indirectly in the nomination of Justices
of the Peace, which nomination he has not the power to cancel. *p The
Governor is an elected magistrate, and is generally chosen for one or two
years only; so that he always continues to be strictly dependent upon the
majority who returned him.
o
[ Practically speaking, it is not always the Governor who executes the plans of
the Legislature; it often happens that the latter, in voting a measure, names
special agents to superintend the execution of it.]

p
[ In some of the States the justices of the peace are not elected by the Governor.]

Political Effects Of The System Of Local Administration In The United
States
Necessary distinction between the general centralization of Government
and the centralization of the local administration—Local administration not
centralized in the United States: great general centralization of the
Government—Some bad consequences resulting to the United States from
the local administration—Administrative advantages attending this order of
things—The power which conducts the Government is less regular, less
enlightened, less learned, but much greater than in Europe—Political
advantages of this order of things—In the United States the interests of the
country are everywhere kept in view—Support given to the Government by
the community—Provincial institutions more necessary in proportion as the
social condition becomes more democratic—Reason of this.
Centralization is become a word of general and daily use, without any
precise meaning being attached to it. Nevertheless, there exist two distinct
kinds of centralization, which it is necessary to discriminate with accuracy.

Certain interests are common to all parts of a nation, such as the enactment
of its general laws and the maintenance of its foreign relations. Other
interests are peculiar to certain parts of the nation; such, for instance, as the
business of different townships. When the power which directs the general
interests is centred in one place, or vested in the same persons, it constitutes
a central government. In like manner the power of directing partial or local
interests, when brought together into one place, constitutes what may be
termed a central administration.
Upon some points these two kinds of centralization coalesce; but by
classifying the objects which fall more particularly within the province of
each of them, they may easily be distinguished. It is evident that a central
government acquires immense power when united to administrative
centralization. Thus combined, it accustoms men to set their own will
habitually and completely aside; to submit, not only for once, or upon one
point, but in every respect, and at all times. Not only, therefore, does this
union of power subdue them compulsorily, but it affects them in the
ordinary habits of life, and influences each individual, first separately and
then collectively.
These two kinds of centralization mutually assist and attract each other;
but they must not be supposed to be inseparable. It is impossible to imagine
a more completely central government than that which existed in France
under Louis XIV.; when the same individual was the author and the
interpreter of the laws, and the representative of France at home and abroad,
he was justified in asserting that the State was identified with his person.
Nevertheless, the administration was much less centralized under Louis
XIV. than it is at the present day.
In England the centralization of the government is carried to great
perfection; the State has the compact vigor of a man, and by the sole act of
its will it puts immense engines in motion, and wields or collects the efforts
of its authority. Indeed, I cannot conceive that a nation can enjoy a secure or
prosperous existence without a powerful centralization of government. But
I am of opinion that a central administration enervates the nations in which
it exists by incessantly diminishing their public spirit. If such an
administration succeeds in condensing at a given moment, on a given point,
all the disposable resources of a people, it impairs at least the renewal of
those resources. It may ensure a victory in the hour of strife, but it gradually

relaxes the sinews of strength. It may contribute admirably to the transient
greatness of a man, but it cannot ensure the durable prosperity of a nation.
If we pay proper attention, we shall find that whenever it is said that a
State cannot act because it has no central point, it is the centralization of the
government in which it is deficient. It is frequently asserted, and we are
prepared to assent to the proposition, that the German empire was never
able to bring all its powers into action. But the reason was, that the State
was never able to enforce obedience to its general laws, because the several
members of that great body always claimed the right, or found the means,
of refusing their co-operation to the representatives of the common
authority, even in the affairs which concerned the mass of the people; in
other words, because there was no centralization of government. The same
remark is applicable to the Middle Ages; the cause of all the confusion of
feudal society was that the control, not only of local but of general interests,
was divided amongst a thousand hands, and broken up in a thousand
different ways; the absence of a central government prevented the nations
of Europe from advancing with energy in any straightforward course.
We have shown that in the United States no central administration and no
dependent series of public functionaries exist. Local authority has been
carried to lengths which no European nation could endure without great
inconvenience, and which has even produced some disadvantageous
consequences in America. But in the United States the centralization of the
Government is complete; and it would be easy to prove that the national
power is more compact than it has ever been in the old nations of Europe.
Not only is there but one legislative body in each State; not only does there
exist but one source of political authority; but district assemblies and county
courts have not in general been multiplied, lest they should be tempted to
exceed their administrative duties, and interfere with the Government. In
America the legislature of each State is supreme; nothing can impede its
authority; neither privileges, nor local immunities, nor personal influence,
nor even the empire of reason, since it represents that majority which claims
to be the sole organ of reason. Its own determination is, therefore, the only
limit to this action. In juxtaposition to it, and under its immediate control, is
the representative of the executive power, whose duty it is to constrain the
refractory to submit by superior force. The only symptom of weakness lies
in certain details of the action of the Government. The American republics
have no standing armies to intimidate a discontented minority; but as no

minority has as yet been reduced to declare open war, the necessity of an
army has not been felt. *q The State usually employs the officers of the
township or the county to deal with the citizens. Thus, for instance, in New
England, the assessor fixes the rate of taxes; the collector receives them; the
town-treasurer transmits the amount to the public treasury; and the disputes
which may arise are brought before the ordinary courts of justice. This
method of collecting taxes is slow as well as inconvenient, and it would
prove a perpetual hindrance to a Government whose pecuniary demands
were large. It is desirable that, in whatever materially affects its existence,
the Government should be served by officers of its own, appointed by itself,
removable at pleasure, and accustomed to rapid methods of proceeding. But
it will always be easy for the central government, organized as it is in
America, to introduce new and more efficacious modes of action,
proportioned to its wants. [Footnote q: [The Civil War of 1860-65 cruelly
belied this statement, and in the course of the struggle the North alone
called two millions and a half of men to arms; but to the honor of the
United States it must be added that, with the cessation of the contest, this
army disappeared as rapidly as it had been raised.—Translator’s Note.]]
The absence of a central government will not, then, as has often been
asserted, prove the destruction of the republics of the New World; far from
supposing that the American governments are not sufficiently centralized, I
shall prove hereafter that they are too much so. The legislative bodies daily
encroach upon the authority of the Government, and their tendency, like
that of the French Convention, is to appropriate it entirely to themselves.
Under these circumstances the social power is constantly changing hands,
because it is subordinate to the power of the people, which is too apt to
forget the maxims of wisdom and of foresight in the consciousness of its
strength: hence arises its danger; and thus its vigor, and not its impotence,
will probably be the cause of its ultimate destruction.
The system of local administration produces several different effects in
America. The Americans seem to me to have outstepped the limits of sound
policy in isolating the administration of the Government; for order, even in
second-rate affairs, is a matter of national importance. *r As the State has
no administrative functionaries of its own, stationed on different points of
its territory, to whom it can give a common impulse, the consequence is that
it rarely attempts to issue any general police regulations. The want of these
regulations is severely felt, and is frequently observed by Europeans. The

appearance of disorder which prevails on the surface leads him at first to
imagine that society is in a state of anarchy; nor does he perceive his
mistake till he has gone deeper into the subject. Certain undertakings are of
importance to the whole State; but they cannot be put in execution, because
there is no national administration to direct them. Abandoned to the
exertions of the towns or counties, under the care of elected or temporary
agents, they lead to no result, or at least to no durable benefit.
r
[ The authority which represents the State ought not, I think, to waive the right of
inspecting the local administration, even when it does not interfere more actively.
Suppose, for instance, that an agent of the Government was stationed at some
appointed spot in the country, to prosecute the misdemeanors of the town and
county officers, would not a more uniform order be the result, without in any
way compromising the independence of the township? Nothing of the kind,
however, exists in America: there is nothing above the county-courts, which
have, as it were, only an incidental cognizance of the offences they are meant to
repress.]

The partisans of centralization in Europe are wont to maintain that the
Government directs the affairs of each locality better than the citizens could
do it for themselves; this may be true when the central power is
enlightened, and when the local districts are ignorant; when it is as alert as
they are slow; when it is accustomed to act, and they to obey. Indeed, it is
evident that this double tendency must augment with the increase of
centralization, and that the readiness of the one and the incapacity of the
others must become more and more prominent. But I deny that such is the
case when the people is as enlightened, as awake to its interests, and as
accustomed to reflect on them, as the Americans are. I am persuaded, on the
contrary, that in this case the collective strength of the citizens will always
conduce more efficaciously to the public welfare than the authority of the
Government. It is difficult to point out with certainty the means of arousing
a sleeping population, and of giving it passions and knowledge which it
does not possess; it is, I am well aware, an arduous task to persuade men to
busy themselves about their own affairs; and it would frequently be easier
to interest them in the punctilios of court etiquette than in the repairs of
their common dwelling. But whenever a central administration affects to
supersede the persons most interested, I am inclined to suppose that it is
either misled or desirous to mislead. However enlightened and however
skilful a central power may be, it cannot of itself embrace all the details of

the existence of a great nation. Such vigilance exceeds the powers of man.
And when it attempts to create and set in motion so many complicated
springs, it must submit to a very imperfect result, or consume itself in
bootless efforts.
Centralization succeeds more easily, indeed, in subjecting the external
actions of men to a certain uniformity, which at least commands our regard,
independently of the objects to which it is applied, like those devotees who
worship the statue and forget the deity it represents. Centralization imparts
without difficulty an admirable regularity to the routine of business;
provides for the details of the social police with sagacity; represses the
smallest disorder and the most petty misdemeanors; maintains society in a
status quo alike secure from improvement and decline; and perpetuates a
drowsy precision in the conduct of affairs, which is hailed by the heads of
the administration as a sign of perfect order and public tranquillity: *s in
short, it excels more in prevention than in action. Its force deserts it when
society is to be disturbed or accelerated in its course; and if once the co-
operation of private citizens is necessary to the furtherance of its measures,
the secret of its impotence is disclosed. Even whilst it invokes their
assistance, it is on the condition that they shall act exactly as much as the
Government chooses, and exactly in the manner it appoints. They are to
take charge of the details, without aspiring to guide the system; they are to
work in a dark and subordinate sphere, and only to judge the acts in which
they have themselves cooperated by their results. These, however, are not
conditions on which the alliance of the human will is to be obtained; its
carriage must be free and its actions responsible, or (such is the constitution
of man) the citizen had rather remain a passive spectator than a dependent
actor in schemes with which he is unacquainted.
s
[ China appears to me to present the most perfect instance of that species of well-
being which a completely central administration may furnish to the nations
among which it exists. Travellers assure us that the Chinese have peace without
happiness, industry without improvement, stability without strength, and public
order without public morality. The condition of society is always tolerable, never
excellent. I am convinced that, when China is opened to European observation, it
will be found to contain the most perfect model of a central administration which
exists in the universe.]

It is undeniable that the want of those uniform regulations which control
the conduct of every inhabitant of France is not unfrequently felt in the

United States. Gross instances of social indifference and neglect are to be
met with, and from time to time disgraceful blemishes are seen in complete
contrast with the surrounding civilization. Useful undertakings which
cannot succeed without perpetual attention and rigorous exactitude are very
frequently abandoned in the end; for in America, as well as in other
countries, the people is subject to sudden impulses and momentary
exertions. The European who is accustomed to find a functionary always at
hand to interfere with all he undertakes has some difficulty in accustoming
himself to the complex mechanism of the administration of the townships.
In general it may be affirmed that the lesser details of the police, which
render life easy and comfortable, are neglected in America; but that the
essential guarantees of man in society are as strong there as elsewhere. In
America the power which conducts the Government is far less regular, less
enlightened, and less learned, but an hundredfold more authoritative than in
Europe. In no country in the world do the citizens make such exertions for
the common weal; and I am acquainted with no people which has
established schools as numerous and as efficacious, places of public
worship better suited to the wants of the inhabitants, or roads kept in better
repair. Uniformity or permanence of design, the minute arrangement of
details, *t and the perfection of an ingenious administration, must not be
sought for in the United States; but it will be easy to find, on the other hand,
the symptoms of a power which, if it is somewhat barbarous, is at least
robust; and of an existence which is checkered with accidents indeed, but
cheered at the same time by animation and effort.
t
[ A writer of talent, who, in the comparison which he has drawn between the
finances of France and those of the United States, has proved that ingenuity
cannot always supply the place of a knowledge of facts, very justly reproaches
the Americans for the sort of confusion which exists in the accounts of the
expenditure in the townships; and after giving the model of a departmental
budget in France, he adds:—“We are indebted to centralization, that admirable
invention of a great man, for the uniform order and method which prevail alike
in all the municipal budgets, from the largest town to the humblest commune.”
Whatever may be my admiration of this result, when I see the communes of
France, with their excellent system of accounts, plunged into the grossest
ignorance of their true interests, and abandoned to so incorrigible an apathy that
they seem to vegetate rather than to live; when, on the other hand, I observe the
activity, the information, and the spirit of enterprise which keep society in
perpetual labor, in those American townships whose budgets are drawn up with
small method and with still less uniformity, I am struck by the spectacle; for to
my mind the end of a good government is to ensure the welfare of a people, and

not to establish order and regularity in the midst of its misery and its distress. I
am therefore led to suppose that the prosperity of the American townships and
the apparent confusion of their accounts, the distress of the French communes
and the perfection of their budget, may be attributable to the same cause. At any
rate I am suspicious of a benefit which is united to so many evils, and I am not
averse to an evil which is compensated by so many benefits.]

Granting for an instant that the villages and counties of the United States
would be more usefully governed by a remote authority which they had
never seen than by functionaries taken from the midst of them—admitting,
for the sake of argument, that the country would be more secure, and the
resources of society better employed, if the whole administration centred in
a single arm—still the political advantages which the Americans derive
from their system would induce me to prefer it to the contrary plan. It
profits me but little, after all, that a vigilant authority should protect the
tranquillity of my pleasures and constantly avert all dangers from my path,
without my care or my concern, if this same authority is the absolute
mistress of my liberty and of my life, and if it so monopolizes all the energy
of existence that when it languishes everything languishes around it, that
when it sleeps everything must sleep, that when it dies the State itself must
perish.
In certain countries of Europe the natives consider themselves as a kind
of settlers, indifferent to the fate of the spot upon which they live. The
greatest changes are effected without their concurrence and (unless chance
may have apprised them of the event) without their knowledge; nay more,
the citizen is unconcerned as to the condition of his village, the police of his
street, the repairs of the church or of the parsonage; for he looks upon all
these things as unconnected with himself, and as the property of a powerful
stranger whom he calls the Government. He has only a life-interest in these
possessions, and he entertains no notions of ownership or of improvement.
This want of interest in his own affairs goes so far that, if his own safety or
that of his children is endangered, instead of trying to avert the peril, he will
fold his arms, and wait till the nation comes to his assistance. This same
individual, who has so completely sacrificed his own free will, has no
natural propensity to obedience; he cowers, it is true, before the pettiest
officer; but he braves the law with the spirit of a conquered foe as soon as
its superior force is removed: his oscillations between servitude and license
are perpetual. When a nation has arrived at this state it must either change
its customs and its laws or perish: the source of public virtue is dry, and,

though it may contain subjects, the race of citizens is extinct. Such
communities are a natural prey to foreign conquests, and if they do not
disappear from the scene of life, it is because they are surrounded by other
nations similar or inferior to themselves: it is because the instinctive feeling
of their country’s claims still exists in their hearts; and because an
involuntary pride in the name it bears, or a vague reminiscence of its
bygone fame, suffices to give them the impulse of self-preservation.
Nor can the prodigious exertions made by tribes in the defence of a
country to which they did not belong be adduced in favor of such a system;
for it will be found that in these cases their main incitement was religion.
The permanence, the glory, or the prosperity of the nation were become
parts of their faith, and in defending the country they inhabited they
defended that Holy City of which they were all citizens. The Turkish tribes
have never taken an active share in the conduct of the affairs of society, but
they accomplished stupendous enterprises as long as the victories of the
Sultan were the triumphs of the Mohammedan faith. In the present age they
are in rapid decay, because their religion is departing, and despotism only
remains. Montesquieu, who attributed to absolute power an authority
peculiar to itself, did it, as I conceive, an undeserved honor; for despotism,
taken by itself, can produce no durable results. On close inspection we shall
find that religion, and not fear, has ever been the cause of the long-lived
prosperity of an absolute government. Whatever exertions may be made, no
true power can be founded among men which does not depend upon the
free union of their inclinations; and patriotism and religion are the only two
motives in the world which can permanently direct the whole of a body
politic to one end.
Laws cannot succeed in rekindling the ardor of an extinguished faith, but
men may be interested in the fate of their country by the laws. By this
influence the vague impulse of patriotism, which never abandons the human
heart, may be directed and revived; and if it be connected with the thoughts,
the passions, and the daily habits of life, it may be consolidated into a
durable and rational sentiment.
Let it not be said that the time for the experiment is already past; for the
old age of nations is not like the old age of men, and every fresh generation
is a new people ready for the care of the legislator.

It is not the administrative but the political effects of the local system that
I most admire in America. In the United States the interests of the country
are everywhere kept in view; they are an object of solicitude to the people
of the whole Union, and every citizen is as warmly attached to them as if
they were his own. He takes pride in the glory of his nation; he boasts of its
success, to which he conceives himself to have contributed, and he rejoices
in the general prosperity by which he profits. The feeling he entertains
towards the State is analogous to that which unites him to his family, and it
is by a kind of egotism that he interests himself in the welfare of his
country.
The European generally submits to a public officer because he represents
a superior force; but to an American he represents a right. In America it may
be said that no one renders obedience to man, but to justice and to law. If
the opinion which the citizen entertains of himself is exaggerated, it is at
least salutary; he unhesitatingly confides in his own powers, which appear
to him to be all-sufficient. When a private individual meditates an
undertaking, however directly connected it may be with the welfare of
society, he never thinks of soliciting the co-operation of the Government,
but he publishes his plan, offers to execute it himself, courts the assistance
of other individuals, and struggles manfully against all obstacles.
Undoubtedly he is often less successful than the State might have been in
his position; but in the end the sum of these private undertakings far
exceeds all that the Government could have done.
As the administrative authority is within the reach of the citizens, whom
it in some degree represents, it excites neither their jealousy nor their
hatred; as its resources are limited, every one feels that he must not rely
solely on its assistance. Thus, when the administration thinks fit to interfere,
it is not abandoned to itself as in Europe; the duties of the private citizens
are not supposed to have lapsed because the State assists in their fulfilment,
but every one is ready, on the contrary, to guide and to support it. This
action of individual exertions, joined to that of the public authorities,
frequently performs what the most energetic central administration would
be unable to execute. It would be easy to adduce several facts in proof of
what I advance, but I had rather give only one, with which I am more
thoroughly acquainted. *u In America the means which the authorities have
at their disposal for the discovery of crimes and the arrest of criminals are
few. The State police does not exist, and passports are unknown. The

criminal police of the United States cannot be compared to that of France;
the magistrates and public prosecutors are not numerous, and the
examinations of prisoners are rapid and oral. Nevertheless in no country
does crime more rarely elude punishment. The reason is, that every one
conceives himself to be interested in furnishing evidence of the act
committed, and in stopping the delinquent. During my stay in the United
States I witnessed the spontaneous formation of committees for the pursuit
and prosecution of a man who had committed a great crime in a certain
county. In Europe a criminal is an unhappy being who is struggling for his
life against the ministers of justice, whilst the population is merely a
spectator of the conflict; in America he is looked upon as an enemy of the
human race, and the whole of mankind is against him.
u
[ See Appendix, I.]

I believe that provincial institutions are useful to all nations, but nowhere
do they appear to me to be more indispensable than amongst a democratic
people. In an aristocracy order can always be maintained in the midst of
liberty, and as the rulers have a great deal to lose order is to them a first-rate
consideration. In like manner an aristocracy protects the people from the
excesses of despotism, because it always possesses an organized power
ready to resist a despot. But a democracy without provincial institutions has
no security against these evils. How can a populace, unaccustomed to
freedom in small concerns, learn to use it temperately in great affairs? What
resistance can be offered to tyranny in a country where every private
individual is impotent, and where the citizens are united by no common tie?
Those who dread the license of the mob, and those who fear the rule of
absolute power, ought alike to desire the progressive growth of provincial
liberties.
On the other hand, I am convinced that democratic nations are most
exposed to fall beneath the yoke of a central administration, for several
reasons, amongst which is the following. The constant tendency of these
nations is to concentrate all the strength of the Government in the hands of
the only power which directly represents the people, because beyond the
people nothing is to be perceived but a mass of equal individuals
confounded together. But when the same power is already in possession of
all the attributes of the Government, it can scarcely refrain from penetrating

into the details of the administration, and an opportunity of doing so is sure
to present itself in the end, as was the case in France. In the French
Revolution there were two impulses in opposite directions, which must
never be confounded—the one was favorable to liberty, the other to
despotism. Under the ancient monarchy the King was the sole author of the
laws, and below the power of the sovereign certain vestiges of provincial
institutions, half destroyed, were still distinguishable. These provincial
institutions were incoherent, ill compacted, and frequently absurd; in the
hands of the aristocracy they had sometimes been converted into
instruments of oppression. The Revolution declared itself the enemy of
royalty and of provincial institutions at the same time; it confounded all that
had preceded it—despotic power and the checks to its abuses—in
indiscriminate hatred, and its tendency was at once to overthrow and to
centralize. This double character of the French Revolution is a fact which
has been adroitly handled by the friends of absolute power. Can they be
accused of laboring in the cause of despotism when they are defending that
central administration which was one of the great innovations of the
Revolution? *v In this manner popularity may be conciliated with hostility
to the rights of the people, and the secret slave of tyranny may be the
professed admirer of freedom.
v
[ See Appendix K.]

I have visited the two nations in which the system of provincial liberty
has been most perfectly established, and I have listened to the opinions of
different parties in those countries. In America I met with men who secretly
aspired to destroy the democratic institutions of the Union; in England I
found others who attacked the aristocracy openly, but I know of no one who
does not regard provincial independence as a great benefit. In both
countries I have heard a thousand different causes assigned for the evils of
the State, but the local system was never mentioned amongst them. I have
heard citizens attribute the power and prosperity of their country to a
multitude of reasons, but they all placed the advantages of local institutions
in the foremost rank. Am I to suppose that when men who are naturally so
divided on religious opinions and on political theories agree on one point
(and that one of which they have daily experience), they are all in error?
The only nations which deny the utility of provincial liberties are those

which have fewest of them; in other words, those who are unacquainted
with the institution are the only persons who pass a censure upon it.

Chapter VI: Judicial Power In The United States

Chapter Summary

The Anglo-Americans have retained the characteristics of judicial power
which are common to all nations—They have, however, made it a powerful
political organ—How—In what the judicial system of the Anglo-Americans
differs from that of all other nations—Why the American judges have the
right of declaring the laws to be unconstitutional—How they use this right
—Precautions taken by the legislator to prevent its abuse.
Judicial Power In The United States And Its Influence On Political
Society.
I have thought it essential to devote a separate chapter to the judicial
authorities of the United States, lest their great political importance should
be lessened in the reader’s eyes by a merely incidental mention of them.
Confederations have existed in other countries beside America, and
republics have not been established upon the shores of the New World
alone; the representative system of government has been adopted in several
States of Europe, but I am not aware that any nation of the globe has
hitherto organized a judicial power on the principle now adopted by the
Americans. The judicial organization of the United States is the institution
which a stranger has the greatest difficulty in understanding. He hears the
authority of a judge invoked in the political occurrences of every day, and
he naturally concludes that in the United States the judges are important
political functionaries; nevertheless, when he examines the nature of the
tribunals, they offer nothing which is contrary to the usual habits and
privileges of those bodies, and the magistrates seem to him to interfere in
public affairs of chance, but by a chance which recurs every day.
When the Parliament of Paris remonstrated, or refused to enregister an
edict, or when it summoned a functionary accused of malversation to its
bar, its political influence as a judicial body was clearly visible; but nothing
of the kind is to be seen in the United States. The Americans have retained
all the ordinary characteristics of judicial authority, and have carefully
restricted its action to the ordinary circle of its functions.

The first characteristic of judicial power in all nations is the duty of
arbitration. But rights must be contested in order to warrant the interference
of a tribunal; and an action must be brought to obtain the decision of a
judge. As long, therefore, as the law is uncontested, the judicial authority is
not called upon to discuss it, and it may exist without being perceived.
When a judge in a given case attacks a law relating to that case, he extends
the circle of his customary duties, without however stepping beyond it;
since he is in some measure obliged to decide upon the law in order to
decide the case. But if he pronounces upon a law without resting upon a
case, he clearly steps beyond his sphere, and invades that of the legislative
authority.
The second characteristic of judicial power is that it pronounces on
special cases, and not upon general principles. If a judge in deciding a
particular point destroys a general principle, by passing a judgment which
tends to reject all the inferences from that principle, and consequently to
annul it, he remains within the ordinary limits of his functions. But if he
directly attacks a general principle without having a particular case in view,
he leaves the circle in which all nations have agreed to confine his authority,
he assumes a more important, and perhaps a more useful, influence than
that of the magistrate, but he ceases to be a representative of the judicial
power.
The third characteristic of the judicial power is its inability to act unless it
is appealed to, or until it has taken cognizance of an affair. This
characteristic is less general than the other two; but, notwithstanding the
exceptions, I think it may be regarded as essential. The judicial power is by
its nature devoid of action; it must be put in motion in order to produce a
result. When it is called upon to repress a crime, it punishes the criminal;
when a wrong is to be redressed, it is ready to redress it; when an act
requires interpretation, it is prepared to interpret it; but it does not pursue
criminals, hunt out wrongs, or examine into evidence of its own accord. A
judicial functionary who should open proceedings, and usurp the censorship
of the laws, would in some measure do violence to the passive nature of his
authority.
The Americans have retained these three distinguishing characteristics of
the judicial power; an American judge can only pronounce a decision when
litigation has arisen, he is only conversant with special cases, and he cannot

act until the cause has been duly brought before the court. His position is
therefore perfectly similar to that of the magistrate of other nations; and he
is nevertheless invested with immense political power. If the sphere of his
authority and his means of action are the same as those of other judges, it
may be asked whence he derives a power which they do not possess. The
cause of this difference lies in the simple fact that the Americans have
acknowledged the right of the judges to found their decisions on the
constitution rather than on the laws. In other words, they have left them at
liberty not to apply such laws as may appear to them to be unconstitutional.
I am aware that a similar right has been claimed—but claimed in vain—
by courts of justice in other countries; but in America it is recognized by all
authorities; and not a party, nor so much as an individual, is found to
contest it. This fact can only be explained by the principles of the American
constitution. In France the constitution is (or at least is supposed to be)
immutable; and the received theory is that no power has the right of
changing any part of it. In England the Parliament has an acknowledged
right to modify the constitution; as, therefore, the constitution may undergo
perpetual changes, it does not in reality exist; the Parliament is at once a
legislative and a constituent assembly. The political theories of America are
more simple and more rational. An American constitution is not supposed to
be immutable as in France, nor is it susceptible of modification by the
ordinary powers of society as in England. It constitutes a detached whole,
which, as it represents the determination of the whole people, is no less
binding on the legislator than on the private citizen, but which may be
altered by the will of the people in predetermined cases, according to
established rules. In America the constitution may therefore vary, but as
long as it exists it is the origin of all authority, and the sole vehicle of the
predominating force. *a
a
[ [The fifth article of the original Constitution of the United States provides the
mode in which amendments of the Constitution may be made. Amendments must
be proposed by two-thirds of both Houses of Congress, and ratified by the
Legislatures of three-fourths of the several States. Fifteen amendments of the
Constitution have been made at different times since 1789, the most important of
which are the Thirteenth, Fourteenth, and Fifteenth, framed and ratified after the
Civil War. The original Constitution of the United States, followed by these
fifteen amendments, is printed at the end of this edition. —Translator’s Note,
1874.]]

It is easy to perceive in what manner these differences must act upon the
position and the rights of the judicial bodies in the three countries I have
cited. If in France the tribunals were authorized to disobey the laws on the
ground of their being opposed to the constitution, the supreme power would
in fact be placed in their hands, since they alone would have the right of
interpreting a constitution, the clauses of which can be modified by no
authority. They would therefore take the place of the nation, and exercise as
absolute a sway over society as the inherent weakness of judicial power
would allow them to do. Undoubtedly, as the French judges are incompetent
to declare a law to be unconstitutional, the power of changing the
constitution is indirectly given to the legislative body, since no legal barrier
would oppose the alterations which it might prescribe. But it is better to
grant the power of changing the constitution of the people to men who
represent (however imperfectly) the will of the people, than to men who
represent no one but themselves.
It would be still more unreasonable to invest the English judges with the
right of resisting the decisions of the legislative body, since the Parliament
which makes the laws also makes the constitution; and consequently a law
emanating from the three powers of the State can in no case be
unconstitutional. But neither of these remarks is applicable to America.
In the United States the constitution governs the legislator as much as the
private citizen; as it is the first of laws it cannot be modified by a law, and it
is therefore just that the tribunals should obey the constitution in preference
to any law. This condition is essential to the power of the judicature, for to
select that legal obligation by which he is most strictly bound is the natural
right of every magistrate.
In France the constitution is also the first of laws, and the judges have the
same right to take it as the ground of their decisions, but were they to
exercise this right they must perforce encroach on rights more sacred than
their own, namely, on those of society, in whose name they are acting. In
this case the State-motive clearly prevails over the motives of an individual.
In America, where the nation can always reduce its magistrates to
obedience by changing its constitution, no danger of this kind is to be
feared. Upon this point, therefore, the political and the logical reasons
agree, and the people as well as the judges preserve their privileges.

Whenever a law which the judge holds to be unconstitutional is argued in
a tribunal of the United States he may refuse to admit it as a rule; this power
is the only one which is peculiar to the American magistrate, but it gives
rise to immense political influence. Few laws can escape the searching
analysis of the judicial power for any length of time, for there are few
which are not prejudicial to some private interest or other, and none which
may not be brought before a court of justice by the choice of parties, or by
the necessity of the case. But from the time that a judge has refused to apply
any given law in a case, that law loses a portion of its moral cogency. The
persons to whose interests it is prejudicial learn that means exist of evading
its authority, and similar suits are multiplied, until it becomes powerless.
One of two alternatives must then be resorted to: the people must alter the
constitution, or the legislature must repeal the law. The political power
which the Americans have intrusted to their courts of justice is therefore
immense, but the evils of this power are considerably diminished by the
obligation which has been imposed of attacking the laws through the courts
of justice alone. If the judge had been empowered to contest the laws on the
ground of theoretical generalities, if he had been enabled to open an attack
or to pass a censure on the legislator, he would have played a prominent
part in the political sphere; and as the champion or the antagonist of a party,
he would have arrayed the hostile passions of the nation in the conflict. But
when a judge contests a law applied to some particular case in an obscure
proceeding, the importance of his attack is concealed from the public gaze,
his decision bears upon the interest of an individual, and if the law is
slighted it is only collaterally. Moreover, although it is censured, it is not
abolished; its moral force may be diminished, but its cogency is by no
means suspended, and its final destruction can only be accomplished by the
reiterated attacks of judicial functionaries. It will readily be understood that
by connecting the censorship of the laws with the private interests of
members of the community, and by intimately uniting the prosecution of the
law with the prosecution of an individual, legislation is protected from
wanton assailants, and from the daily aggressions of party spirit. The errors
of the legislator are exposed whenever their evil consequences are most felt,
and it is always a positive and appreciable fact which serves as the basis of
a prosecution.
I am inclined to believe this practice of the American courts to be at once
the most favorable to liberty as well as to public order. If the judge could

only attack the legislator openly and directly, he would sometimes be afraid
to oppose any resistance to his will; and at other moments party spirit might
encourage him to brave it at every turn. The laws would consequently be
attacked when the power from which they emanate is weak, and obeyed
when it is strong. That is to say, when it would be useful to respect them
they would be contested, and when it would be easy to convert them into an
instrument of oppression they would be respected. But the American judge
is brought into the political arena independently of his own will. He only
judges the law because he is obliged to judge a case. The political question
which he is called upon to resolve is connected with the interest of the
suitors, and he cannot refuse to decide it without abdicating the duties of his
post. He performs his functions as a citizen by fulfilling the precise duties
which belong to his profession as a magistrate. It is true that upon this
system the judicial censorship which is exercised by the courts of justice
over the legislation cannot extend to all laws indiscriminately, inasmuch as
some of them can never give rise to that exact species of contestation which
is termed a lawsuit; and even when such a contestation is possible, it may
happen that no one cares to bring it before a court of justice. The Americans
have often felt this disadvantage, but they have left the remedy incomplete,
lest they should give it an efficacy which might in some cases prove
dangerous. Within these limits the power vested in the American courts of
justice of pronouncing a statute to be unconstitutional forms one of the most
powerful barriers which has ever been devised against the tyranny of
political assemblies.
Other Powers Granted To American Judges
The United States all the citizens have the right of indicting public
functionaries before the ordinary tribunals—How they use this right—Art.
75 of the French Constitution of the An VIII—The Americans and the
English cannot understand the purport of this clause.
It is perfectly natural that in a free country like America all the citizens
should have the right of indicting public functionaries before the ordinary
tribunals, and that all the judges should have the power of punishing public
offences. The right granted to the courts of justice of judging the agents of
the executive government, when they have violated the laws, is so natural a
one that it cannot be looked upon as an extraordinary privilege. Nor do the
springs of government appear to me to be weakened in the United States by

the custom which renders all public officers responsible to the judges of the
land. The Americans seem, on the contrary, to have increased by this means
that respect which is due to the authorities, and at the same time to have
rendered those who are in power more scrupulous of offending public
opinion. I was struck by the small number of political trials which occur in
the United States, but I had no difficulty in accounting for this
circumstance. A lawsuit, of whatever nature it may be, is always a difficult
and expensive undertaking. It is easy to attack a public man in a journal, but
the motives which can warrant an action at law must be serious. A solid
ground of complaint must therefore exist to induce an individual to
prosecute a public officer, and public officers are careful not to furnish
these grounds of complaint when they are afraid of being prosecuted.
This does not depend upon the republican form of American institutions,
for the same facts present themselves in England. These two nations do not
regard the impeachment of the principal officers of State as a sufficient
guarantee of their independence. But they hold that the right of minor
prosecutions, which are within the reach of the whole community, is a
better pledge of freedom than those great judicial actions which are rarely
employed until it is too late.
In the Middle Ages, when it was very difficult to overtake offenders, the
judges inflicted the most dreadful tortures on the few who were arrested,
which by no means diminished the number of crimes. It has since been
discovered that when justice is more certain and more mild, it is at the same
time more efficacious. The English and the Americans hold that tyranny and
oppression are to be treated like any other crime, by lessening the penalty
and facilitating conviction.
In the year VIII of the French Republic a constitution was drawn up in
which the following clause was introduced: “Art. 75. All the agents of the
government below the rank of ministers can only be prosecuted for offences
relating to their several functions by virtue of a decree of the Conseil d’Etat;
in which the case the prosecution takes place before the ordinary tribunals.”
This clause survived the “Constitution de l’An VIII,” and it is still
maintained in spite of the just complaints of the nation. I have always found
the utmost difficulty in explaining its meaning to Englishmen or Americans.
They were at once led to conclude that the Conseil d’Etat in France was a
great tribunal, established in the centre of the kingdom, which exercised a

preliminary and somewhat tyrannical jurisdiction in all political causes. But
when I told them that the Conseil d’Etat was not a judicial body, in the
common sense of the term, but an administrative council composed of men
dependent on the Crown, so that the king, after having ordered one of his
servants, called a Prefect, to commit an injustice, has the power of
commanding another of his servants, called a Councillor of State, to prevent
the former from being punished; when I demonstrated to them that the
citizen who has been injured by the order of the sovereign is obliged to
solicit from the sovereign permission to obtain redress, they refused to
credit so flagrant an abuse, and were tempted to accuse me of falsehood or
of ignorance. It frequently happened before the Revolution that a
Parliament issued a warrant against a public officer who had committed an
offence, and sometimes the proceedings were stopped by the authority of
the Crown, which enforced compliance with its absolute and despotic will.
It is painful to perceive how much lower we are sunk than our forefathers,
since we allow things to pass under the color of justice and the sanction of
the law which violence alone could impose upon them.

Chapter VII: Political Jurisdiction In The United
States

Chapter Summary

Definition of political jurisdiction—What is understood by political
jurisdiction in France, in England, and in the United States—In America the
political judge can only pass sentence on public officers—He more
frequently passes a sentence of removal from office than a penalty—
Political jurisdiction as it exists in the United States is, notwithstanding its
mildness, and perhaps in consequence of that mildness, a most powerful
instrument in the hands of the majority.
Political Jurisdiction In The United States
I understand, by political jurisdiction, that temporary right of
pronouncing a legal decision with which a political body may be invested.
In absolute governments no utility can accrue from the introduction of
extraordinary forms of procedure; the prince in whose name an offender is
prosecuted is as much the sovereign of the courts of justice as of everything
else, and the idea which is entertained of his power is of itself a sufficient
security. The only thing he has to fear is, that the external formalities of
justice should be neglected, and that his authority should be dishonored
from a wish to render it more absolute. But in most free countries, in which
the majority can never exercise the same influence upon the tribunals as an
absolute monarch, the judicial power has occasionally been vested for a
time in the representatives of the nation. It has been thought better to
introduce a temporary confusion between the functions of the different
authorities than to violate the necessary principle of the unity of
government.
England, France, and the United States have established this political
jurisdiction by law; and it is curious to examine the different adaptations
which these three great nations have made of the principle. In England and
in France the House of Lords and the Chambre des Paris *a constitute the
highest criminal court of their respective nations, and although they do not
habitually try all political offences, they are competent to try them all.

Another political body enjoys the right of impeachment before the House of
Lords: the only difference which exists between the two countries in this
respect is, that in England the Commons may impeach whomsoever they
please before the Lords, whilst in France the Deputies can only employ this
mode of prosecution against the ministers of the Crown.
a
[ [As it existed under the constitutional monarchy down to 1848.]]

In both countries the Upper House may make use of all the existing penal
laws of the nation to punish the delinquents.
In the United States, as well as in Europe, one branch of the legislature is
authorized to impeach and another to judge: the House of Representatives
arraigns the offender, and the Senate awards his sentence. But the Senate
can only try such persons as are brought before it by the House of
Representatives, and those persons must belong to the class of public
functionaries. Thus the jurisdiction of the Senate is less extensive than that
of the Peers of France, whilst the right of impeachment by the
Representatives is more general than that of the Deputies. But the great
difference which exists between Europe and America is, that in Europe
political tribunals are empowered to inflict all the dispositions of the penal
code, while in America, when they have deprived the offender of his official
rank, and have declared him incapable of filling any political office for the
future, their jurisdiction terminates and that of the ordinary tribunals begins.
Suppose, for instance, that the President of the United States has
committed the crime of high treason; the House of Representatives
impeaches him, and the Senate degrades him; he must then be tried by a
jury, which alone can deprive him of his liberty or his life. This accurately
illustrates the subject we are treating. The political jurisdiction which is
established by the laws of Europe is intended to try great offenders,
whatever may be their birth, their rank, or their powers in the State; and to
this end all the privileges of the courts of justice are temporarily extended to
a great political assembly. The legislator is then transformed into the
magistrate; he is called upon to admit, to distinguish, and to punish the
offence; and as he exercises all the authority of a judge, the law restricts
him to the observance of all the duties of that high office, and of all the
formalities of justice. When a public functionary is impeached before an
English or a French political tribunal, and is found guilty, the sentence

deprives him ipso facto of his functions, and it may pronounce him to be
incapable of resuming them or any others for the future. But in this case the
political interdict is a consequence of the sentence, and not the sentence
itself. In Europe the sentence of a political tribunal is to be regarded as a
judicial verdict rather than as an administrative measure. In the United
States the contrary takes place; and although the decision of the Senate is
judicial in its form, since the Senators are obliged to comply with the
practices and formalities of a court of justice; although it is judicial in
respect to the motives on which it is founded, since the Senate is in general
obliged to take an offence at common law as the basis of its sentence;
nevertheless the object of the proceeding is purely administrative. If it had
been the intention of the American legislator to invest a political body with
great judicial authority, its action would not have been limited to the circle
of public functionaries, since the most dangerous enemies of the State may
be in the possession of no functions at all; and this is especially true in
republics, where party influence is the first of authorities, and where the
strength of many a reader is increased by his exercising no legal power.
If it had been the intention of the American legislator to give society the
means of repressing State offences by exemplary punishment, according to
the practice of ordinary justice, the resources of the penal code would all
have been placed at the disposal of the political tribunals. But the weapon
with which they are intrusted is an imperfect one, and it can never reach the
most dangerous offenders, since men who aim at the entire subversion of
the laws are not likely to murmur at a political interdict.
The main object of the political jurisdiction which obtains in the United
States is, therefore, to deprive the ill-disposed citizen of an authority which
he has used amiss, and to prevent him from ever acquiring it again. This is
evidently an administrative measure sanctioned by the formalities of a
judicial decision. In this matter the Americans have created a mixed system;
they have surrounded the act which removes a public functionary with the
securities of a political trial; and they have deprived all political
condemnations of their severest penalties. Every link of the system may
easily be traced from this point; we at once perceive why the American
constitutions subject all the civil functionaries to the jurisdiction of the
Senate, whilst the military, whose crimes are nevertheless more formidable,
are exempted from that tribunal. In the civil service none of the American
functionaries can be said to be removable; the places which some of them

occupy are inalienable, and the others are chosen for a term which cannot
be shortened. It is therefore necessary to try them all in order to deprive
them of their authority. But military officers are dependent on the chief
magistrate of the State, who is himself a civil functionary, and the decision
which condemns him is a blow upon them all.
If we now compare the American and the European systems, we shall
meet with differences no less striking in the different effects which each of
them produces or may produce. In France and in England the jurisdiction of
political bodies is looked upon as an extraordinary resource, which is only
to be employed in order to rescue society from unwonted dangers. It is not
to be denied that these tribunals, as they are constituted in Europe, are apt to
violate the conservative principle of the balance of power in the State, and
to threaten incessantly the lives and liberties of the subject. The same
political jurisdiction in the United States is only indirectly hostile to the
balance of power; it cannot menace the lives of the citizens, and it does not
hover, as in Europe, over the heads of the community, since those only who
have submitted to its authority on accepting office are exposed to the
severity of its investigations. It is at the same time less formidable and less
efficacious; indeed, it has not been considered by the legislators of the
United States as a remedy for the more violent evils of society, but as an
ordinary means of conducting the government. In this respect it probably
exercises more real influence on the social body in America than in Europe.
We must not be misled by the apparent mildness of the American legislation
in all that relates to political jurisdiction. It is to be observed, in the first
place, that in the United States the tribunal which passes sentence is
composed of the same elements, and subject to the same influences, as the
body which impeaches the offender, and that this uniformity gives an
almost irresistible impulse to the vindictive passions of parties. If political
judges in the United States cannot inflict such heavy penalties as those of
Europe, there is the less chance of their acquitting a prisoner; and the
conviction, if it is less formidable, is more certain. The principal object of
the political tribunals of Europe is to punish the offender; the purpose of
those in America is to deprive him of his authority. A political
condemnation in the United States may, therefore, be looked upon as a
preventive measure; and there is no reason for restricting the judges to the
exact definitions of criminal law. Nothing can be more alarming than the
excessive latitude with which political offences are described in the laws of

America. Article II., Section 4, of the Constitution of the United States runs
thus:—“The President, Vice-President, and all civil officers of the United
States shall be removed from office on impeachment for, and conviction of,
treason, bribery, or other high crimes and misdemeanors.” Many of the
Constitutions of the States are even less explicit. “Public officers,” says the
Constitution of Massachusetts, *b “shall be impeached for misconduct or
maladministration;” the Constitution of Virginia declares that all the civil
officers who shall have offended against the State, by maladministration,
corruption, or other high crimes, may be impeached by the House of
Delegates; in some constitutions no offences are specified, in order to
subject the public functionaries to an unlimited responsibility. *c But I will
venture to affirm that it is precisely their mildness which renders the
American laws most formidable in this respect. We have shown that in
Europe the removal of a functionary and his political interdiction are the
consequences of the penalty he is to undergo, and that in America they
constitute the penalty itself. The consequence is that in Europe political
tribunals are invested with rights which they are afraid to use, and that the
fear of punishing too much hinders them from punishing at all. But in
America no one hesitates to inflict a penalty from which humanity does not
recoil. To condemn a political opponent to death, in order to deprive him of
his power, is to commit what all the world would execrate as a horrible
assassination; but to declare that opponent unworthy to exercise that
authority, to deprive him of it, and to leave him uninjured in life and limb,
may be judged to be the fair issue of the struggle. But this sentence, which
it is so easy to pronounce, is not the less fatally severe to the majority of
those upon whom it is inflicted. Great criminals may undoubtedly brave its
intangible rigor, but ordinary offenders will dread it as a condemnation
which destroys their position in the world, casts a blight upon their honor,
and condemns them to a shameful inactivity worse than death. The
influence exercised in the United States upon the progress of society by the
jurisdiction of political bodies may not appear to be formidable, but it is
only the more immense. It does not directly coerce the subject, but it
renders the majority more absolute over those in power; it does not confer
an unbounded authority on the legislator which can be exerted at some
momentous crisis, but it establishes a temperate and regular influence,
which is at all times available. If the power is decreased, it can, on the other
hand, be more conveniently employed and more easily abused. By

preventing political tribunals from inflicting judicial punishments the
Americans seem to have eluded the worst consequences of legislative
tyranny, rather than tyranny itself; and I am not sure that political
jurisdiction, as it is constituted in the United States, is not the most
formidable weapon which has ever been placed in the rude grasp of a
popular majority. When the American republics begin to degenerate it will
be easy to verify the truth of this observation, by remarking whether the
number of political impeachments augments.*d
b
[ Chap. I. sect. ii. Section 8.]

c
[ See the constitutions of Illinois, Maine, Connecticut, and Georgia.]

d
[ See Appendix, N.

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

Chapter VIII: The Federal Constitution—Part I

I have hitherto considered each State as a separate whole, and I have
explained the different springs which the people sets in motion, and the
different means of action which it employs. But all the States which I have
considered as independent are forced to submit, in certain cases, to the
supreme authority of the Union. The time is now come for me to examine
separately the supremacy with which the Union has been invested, and to
cast a rapid glance over the Federal Constitution.

Chapter Summary

Origin of the first Union—Its weakness—Congress appeals to the
constituent authority—Interval of two years between this appeal and the
promulgation of the new Constitution.
History Of The Federal Constitution
The thirteen colonies which simultaneously threw off the yoke of
England towards the end of the last century professed, as I have already
observed, the same religion, the same language, the same customs, and
almost the same laws; they were struggling against a common enemy; and
these reasons were sufficiently strong to unite them one to another, and to
consolidate them into one nation. But as each of them had enjoyed a
separate existence and a government within its own control, the peculiar
interests and customs which resulted from this system were opposed to a
compact and intimate union which would have absorbed the individual
importance of each in the general importance of all. Hence arose two
opposite tendencies, the one prompting the Anglo-Americans to unite, the
other to divide their strength. As long as the war with the mother-country
lasted the principle of union was kept alive by necessity; and although the
laws which constituted it were defective, the common tie subsisted in spite
of their imperfections. *a But no sooner was peace concluded than the
faults of the legislation became manifest, and the State seemed to be
suddenly dissolved. Each colony became an independent republic, and
assumed an absolute sovereignty. The federal government, condemned to
impotence by its constitution, and no longer sustained by the presence of a
common danger, witnessed the outrages offered to its flag by the great
nations of Europe, whilst it was scarcely able to maintain its ground against
the Indian tribes, and to pay the interest of the debt which had been
contracted during the war of independence. It was already on the verge of
destruction, when it officially proclaimed its inability to conduct the
government, and appealed to the constituent authority of the nation. *b If

America ever approached (for however brief a time) that lofty pinnacle of
glory to which the fancy of its inhabitants is wont to point, it was at the
solemn moment at which the power of the nation abdicated, as it were, the
empire of the land. All ages have furnished the spectacle of a people
struggling with energy to win its independence; and the efforts of the
Americans in throwing off the English yoke have been considerably
exaggerated. Separated from their enemies by three thousand miles of
ocean, and backed by a powerful ally, the success of the United States may
be more justly attributed to their geographical position than to the valor of
their armies or the patriotism of their citizens. It would be ridiculous to
compare the American was to the wars of the French Revolution, or the
efforts of the Americans to those of the French when they were attacked by
the whole of Europe, without credit and without allies, yet capable of
opposing a twentieth part of their population to the world, and of bearing
the torch of revolution beyond their frontiers whilst they stifled its
devouring flame within the bosom of their country. But it is a novelty in the
history of society to see a great people turn a calm and scrutinizing eye
upon itself, when apprised by the legislature that the wheels of government
are stopped; to see it carefully examine the extent of the evil, and patiently
wait for two whole years until a remedy was discovered, which it
voluntarily adopted without having wrung a tear or a drop of blood from
mankind. At the time when the inadequacy of the first constitution was
discovered America possessed the double advantage of that calm which had
succeeded the effervescence of the revolution, and of those great men who
had led the revolution to a successful issue. The assembly which accepted
the task of composing the second constitution was small; *c but George
Washington was its President, and it contained the choicest talents and the
noblest hearts which had ever appeared in the New World. This national
commission, after long and mature deliberation, offered to the acceptance of
the people the body of general laws which still rules the Union. All the
States adopted it successively. *d The new Federal Government
commenced its functions in 1789, after an interregnum of two years. The
Revolution of America terminated when that of France began.
a
[ See the articles of the first confederation formed in 1778. This constitution was
not adopted by all the States until 1781. See also the analysis given of this
constitution in “The Federalist” from No. 15 to No. 22, inclusive, and Story’s
“Commentaries on the Constitution of the United States,” pp. 85-115.]

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

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

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

Summary Of The Federal Constitution

Division of authority between the Federal Government and the States—
The Government of the States is the rule, the Federal Government the
exception.
The first question which awaited the Americans was intricate, and by no
means easy of solution: the object was so to divide the authority of the
different States which composed the Union that each of them should
continue to govern itself in all that concerned its internal prosperity, whilst
the entire nation, represented by the Union, should continue to form a
compact body, and to provide for the general exigencies of the people. It
was as impossible to determine beforehand, with any degree of accuracy,
the share of authority which each of two governments was to enjoy, as to
foresee all the incidents in the existence of a nation.
The obligations and the claims of the Federal Government were simple
and easily definable, because the Union had been formed with the express
purpose of meeting the general exigencies of the people; but the claims and
obligations of the States were, on the other hand, complicated and various,
because those Governments had penetrated into all the details of social life.
The attributes of the Federal Government were therefore carefully
enumerated and all that was not included amongst them was declared to
constitute a part of the privileges of the several Governments of the States.
Thus the government of the States remained the rule, and that of the
Confederation became the exception. *e
e
[ See the Amendment to the Federal Constitution; “Federalist,” No. 32; Story, p.
711; Kent’s “Commentaries,” vol. i. p. 364.

It is to be observed that whenever the exclusive right of regulating certain
matters is not reserved to Congress by the Constitution, the States may take
up the affair until it is brought before the National Assembly. For instance,

Congress has the right of making a general law on bankruptcy, which,
however, it neglects to do. Each State is then at liberty to make a law for
itself. This point has been established by discussion in the law-courts, and
may be said to belong more properly to jurisprudence.]
But as it was foreseen that, in practice, questions might arise as to the
exact limits of this exceptional authority, and that it would be dangerous to
submit these questions to the decision of the ordinary courts of justice,
established in the States by the States themselves, a high Federal court was
created, *f which was destined, amongst other functions, to maintain the
balance of power which had been established by the Constitution between
the two rival Governments. *g
f
[ The action of this court is indirect, as we shall hereafter show.]

g
[ It is thus that “The Federalist,” No. 45, explains the division of supremacy
between the Union and the States: “The powers delegated by the Constitution to
the Federal Government are few and defined. Those which are to remain in the
State Governments are numerous and indefinite. The former will be exercised
principally on external objects, as war, peace, negotiation, and foreign
commerce. The powers reserved to the several States will extend to all the
objects which, in the ordinary course of affairs, concern the internal order and
prosperity of the State.” I shall often have occasion to quote “The Federalist” in
this work. When the bill which has since become the Constitution of the United
States was submitted to the approval of the people, and the discussions were still
pending, three men, who had already acquired a portion of that celebrity which
they have since enjoyed—John Jay, Hamilton, and Madison—formed an
association with the intention of explaining to the nation the advantages of the
measure which was proposed. With this view they published a series of articles
in the shape of a journal, which now form a complete treatise. They entitled their
journal “The Federalist,” a name which has been retained in the work. “The
Federalist” is an excellent book, which ought to be familiar to the statesmen of
all countries, although it especially concerns America.]

Prerogative Of The Federal Government
Power of declaring war, making peace, and levying general taxes vested
in the Federal Government—What part of the internal policy of the country
it may direct—The Government of the Union in some respects more central
than the King’s Government in the old French monarchy.
The external relations of a people may be compared to those of private
individuals, and they cannot be advantageously maintained without the
agency of a single head of a Government. The exclusive right of making

peace and war, of concluding treaties of commerce, of raising armies, and
equipping fleets, was granted to the Union. *h The necessity of a national
Government was less imperiously felt in the conduct of the internal policy
of society; but there are certain general interests which can only be attended
to with advantage by a general authority. The Union was invested with the
power of controlling the monetary system, of directing the post office, and
of opening the great roads which were to establish a communication
between the different parts of the country. *i The independence of the
Government of each State was formally recognized in its sphere;
nevertheless, the Federal Government was authorized to interfere in the
internal affairs of the States *j in a few predetermined cases, in which an
indiscreet abuse of their independence might compromise the security of
the Union at large. Thus, whilst the power of modifying and changing their
legislation at pleasure was preserved in all the republics, they were
forbidden to enact ex post facto laws, or to create a class of nobles in their
community. *k Lastly, as it was necessary that the Federal Government
should be able to fulfil its engagements, it was endowed with an unlimited
power of levying taxes. *l
h
[ See Constitution, sect. 8; “Federalist,” Nos. 41 and 42; Kent’s “Commentaries,”
vol. i. p. 207; Story, pp. 358-382; Ibid. pp. 409-426.]

i
[ Several other privileges of the same kind exist, such as that which empowers
the Union to legislate on bankruptcy, to grant patents, and other matters in which
its intervention is clearly necessary.]

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

k
[ Federal Constitution, sect. 10, art. I.]

l
[ Constitution, sects. 8, 9, and 10; “Federalist,” Nos. 30-36, inclusive, and 41-44;
Kent’s “Commentaries,” vol. i. pp. 207 and 381; Story, pp. 329 and 514.]

In examining the balance of power as established by the Federal
Constitution; in remarking on the one hand the portion of sovereignty which
has been reserved to the several States, and on the other the share of power
which the Union has assumed, it is evident that the Federal legislators

entertained the clearest and most accurate notions on the nature of the
centralization of government. The United States form not only a republic,
but a confederation; nevertheless the authority of the nation is more central
than it was in several of the monarchies of Europe when the American
Constitution was formed. Take, for instance, the two following examples.
Thirteen supreme courts of justice existed in France, which, generally
speaking, had the right of interpreting the law without appeal; and those
provinces which were styled pays d’etats were authorized to refuse their
assent to an impost which had been levied by the sovereign who
represented the nation. In the Union there is but one tribunal to interpret, as
there is one legislature to make the laws; and an impost voted by the
representatives of the nation is binding upon all the citizens. In these two
essential points, therefore, the Union exercises more central authority than
the French monarchy possessed, although the Union is only an assemblage
of confederate republics.
In Spain certain provinces had the right of establishing a system of
custom-house duties peculiar to themselves, although that privilege
belongs, by its very nature, to the national sovereignty. In America the
Congress alone has the right of regulating the commercial relations of the
States. The government of the Confederation is therefore more centralized
in this respect than the kingdom of Spain. It is true that the power of the
Crown in France or in Spain was always able to obtain by force whatever
the Constitution of the country denied, and that the ultimate result was
consequently the same; but I am here discussing the theory of the
Constitution.
Federal Powers
After having settled the limits within which the Federal Government was
to act, the next point was to determine the powers which it was to exert.
Legislative Powers *m
m
[ [In this chapter the author points out the essence of the conflict between the
seceding States and the Union which caused the Civil War of 1861.]]

Division of the Legislative Body into two branches—Difference in the
manner of forming the two Houses—The principle of the independence of
the States predominates in the formation of the Senate—The principle of

the sovereignty of the nation in the composition of the House of
Representatives—Singular effects of the fact that a Constitution can only be
logical in the early stages of a nation.
The plan which had been laid down beforehand for the Constitutions of
the several States was followed, in many points, in the organization of the
powers of the Union. The Federal legislature of the Union was composed of
a Senate and a House of Representatives. A spirit of conciliation prescribed
the observance of distinct principles in the formation of these two
assemblies. I have already shown that two contrary interests were opposed
to each other in the establishment of the Federal Constitution. These two
interests had given rise to two opinions. It was the wish of one party to
convert the Union into a league of independent States, or a sort of congress,
at which the representatives of the several peoples would meet to discuss
certain points of their common interests. The other party desired to unite the
inhabitants of the American colonies into one sole nation, and to establish a
Government which should act as the sole representative of the nation, as far
as the limited sphere of its authority would permit. The practical
consequences of these two theories were exceedingly different.
The question was, whether a league was to be established instead of a
national Government; whether the majority of the State, instead of the
majority of the inhabitants of the Union, was to give the law: for every
State, the small as well as the great, would then remain in the full
enjoyment of its independence, and enter the Union upon a footing of
perfect equality. If, however, the inhabitants of the United States were to be
considered as belonging to one and the same nation, it would be just that the
majority of the citizens of the Union should prescribe the law. Of course the
lesser States could not subscribe to the application of this doctrine without,
in fact, abdicating their existence in relation to the sovereignty of the
Confederation; since they would have passed from the condition of a co-
equal and co-legislative authority to that of an insignificant fraction of a
great people. But if the former system would have invested them with an
excessive authority, the latter would have annulled their influence
altogether. Under these circumstances the result was, that the strict rules of
logic were evaded, as is usually the case when interests are opposed to
arguments. A middle course was hit upon by the legislators, which brought
together by force two systems theoretically irreconcilable.

The principle of the independence of the States prevailed in the formation
of the Senate, and that of the sovereignty of the nation predominated in the
composition of the House of Representatives. It was decided that each State
should send two senators to Congress, and a number of representatives
proportioned to its population. *n It results from this arrangement that the
State of New York has at the present day forty representatives and only two
senators; the State of Delaware has two senators and only one
representative; the State of Delaware is therefore equal to the State of New
York in the Senate, whilst the latter has forty times the influence of the
former in the House of Representatives. Thus, if the minority of the nation
preponderates in the Senate,. it may paralyze the decisions of the majority
represented in the other House, which is contrary to the spirit of
constitutional government.
n
[ Every ten years Congress fixes anew the number of representatives which each
State is to furnish. The total number was 69 in 1789, and 240 in 1833. (See
“American Almanac,” 1834, p. 194.) The Constitution decided that there should
not be more than one representative for every 30,000 persons; but no minimum
was fixed on. The Congress has not thought fit to augment the number of
representatives in proportion to the increase of population. The first Act which
was passed on the subject (April 14, 1792: see “Laws of the United States,” by
Story, vol. i. p. 235) decided that there should be one representative for every
33,000 inhabitants. The last Act, which was passed in 1832, fixes the proportion
at one for 48,000. The population represented is composed of all the free men
and of three-fifths of the slaves.

[The last Act of apportionment, passed February 2, 1872, fixes the
representation at one to 134,684 inhabitants. There are now (1875) 283
members of the lower House of Congress, and 9 for the States at large,
making in all 292 members. The old States have of course lost the
representatives which the new States have gained.—Translator’s Note.]]
These facts show how rare and how difficult it is rationally and logically
to combine all the several parts of legislation. In the course of time different
interests arise, and different principles are sanctioned by the same people;
and when a general constitution is to be established, these interests and
principles are so many natural obstacles to the rigorous application of any
political system, with all its consequences. The early stages of national
existence are the only periods at which it is possible to maintain the
complete logic of legislation; and when we perceive a nation in the
enjoyment of this advantage, before we hasten to conclude that it is wise,

we should do well to remember that it is young. When the Federal
Constitution was formed, the interests of independence for the separate
States, and the interest of union for the whole people, were the only two
conflicting interests which existed amongst the Anglo-Americans, and a
compromise was necessarily made between them.
It is, however, just to acknowledge that this part of the Constitution has
not hitherto produced those evils which might have been feared. All the
States are young and contiguous; their customs, their ideas, and their
exigencies are not dissimilar; and the differences which result from their
size or inferiority do not suffice to set their interests at variance. The small
States have consequently never been induced to league themselves together
in the Senate to oppose the designs of the larger ones; and indeed there is so
irresistible an authority in the legitimate expression of the will of a people
that the Senate could offer but a feeble opposition to the vote of the
majority of the House of Representatives.
It must not be forgotten, on the other hand, that it was not in the power of
the American legislators to reduce to a single nation the people for whom
they were making laws. The object of the Federal Constitution was not to
destroy the independence of the States, but to restrain it. By acknowledging
the real authority of these secondary communities (and it was impossible to
deprive them of it), they disavowed beforehand the habitual use of
constraint in enforcing g the decisions of the majority. Upon this principle
the introduction of the influence of the States into the mechanism of the
Federal Government was by no means to be wondered at, since it only
attested the existence of an acknowledged power, which was to be humored
and not forcibly checked.
A Further Difference Between The Senate And The House Of
Representatives
The Senate named by the provincial legislators, the Representatives by
the people—Double election of the former; single election of the latter—
Term of the different offices—Peculiar functions of each House.
The Senate not only differs from the other House in the principle which it
represents, but also in the mode of its election, in the term for which it is
chosen, and in the nature of its functions. The House of Representatives is
named by the people, the Senate by the legislators of each State; the former
is directly elected, the latter is elected by an elected body; the term for

which the representatives are chosen is only two years, that of the senators
is six. The functions of the House of Representatives are purely legislative,
and the only share it takes in the judicial power is in the impeachment of
public officers. The Senate co-operates in the work of legislation, and tries
those political offences which the House of Representatives submits to its
decision. It also acts as the great executive council of the nation; the treaties
which are concluded by the President must be ratified by the Senate, and
the appointments he may make must be definitely approved by the same
body. *o
o
[ See “The Federalist,” Nos. 52-56, inclusive; Story, pp. 199-314; Constitution of
the United States, sects. 2 and 3.] The Executive Power *p

p
[ See “The Federalist,” Nos. 67-77; Constitution of the United States, art. 2;
Story, p. 315, pp. 615-780; Kent’s “Commentaries,” p. 255.]

Dependence of the President—He is elective and responsible—He is free
to act in his own sphere under the inspection, but not under the direction, of
the Senate—His salary fixed at his entry into office—Suspensive veto.
The American legislators undertook a difficult task in attempting to
create an executive power dependent on the majority of the people, and
nevertheless sufficiently strong to act without restraint in its own sphere. It
was indispensable to the maintenance of the republican form of government
that the representative of the executive power should be subject to the will
of the nation.
The President is an elective magistrate. His honor, his property, his
liberty, and his life are the securities which the people has for the temperate
use of his power. But in the exercise of his authority he cannot be said to be
perfectly independent; the Senate takes cognizance of his relations with
foreign powers, and of the distribution of public appointments, so that he
can neither be bribed nor can he employ the means of corruption. The
legislators of the Union acknowledged that the executive power would be
incompetent to fulfil its task with dignity and utility, unless it enjoyed a
greater degree of stability and of strength than had been granted to it in the
separate States.
The President is chosen for four years, and he may be reelected; so that
the chances of a prolonged administration may inspire him with hopeful

undertakings for the public good, and with the means of carrying them into
execution. The President was made the sole representative of the executive
power of the Union, and care was taken not to render his decisions
subordinate to the vote of a council—a dangerous measure, which tends at
the same time to clog the action of the Government and to diminish its
responsibility. The Senate has the right of annulling g certain acts of the
President; but it cannot compel him to take any steps, nor does it participate
in the exercise of the executive power.
The action of the legislature on the executive power may be direct; and
we have just shown that the Americans carefully obviated this influence;
but it may, on the other hand, be indirect. Public assemblies which have the
power of depriving an officer of state of his salary encroach upon his
independence; and as they are free to make the laws, it is to be feared lest
they should gradually appropriate to themselves a portion of that authority
which the Constitution had vested in his hands. This dependence of the
executive power is one of the defects inherent in republican constitutions.
The Americans have not been able to counteract the tendency which
legislative assemblies have to get possession of the government, but they
have rendered this propensity less irresistible. The salary of the President is
fixed, at the time of his entering upon office, for the whole period of his
magistracy. The President is, moreover, provided with a suspensive veto,
which allows him to oppose the passing of such laws as might destroy the
portion of independence which the Constitution awards him. The struggle
between the President and the legislature must always be an unequal one,
since the latter is certain of bearing down all resistance by persevering in its
plans; but the suspensive veto forces it at least to reconsider the matter, and,
if the motion be persisted in, it must then be backed by a majority of two-
thirds of the whole house. The veto is, in fact, a sort of appeal to the people.
The executive power, which, without this security, might have been secretly
oppressed, adopts this means of pleading its cause and stating its motives.
But if the legislature is certain of overpowering all resistance by
persevering in its plans, I reply, that in the constitutions of all nations, of
whatever kind they may be, a certain point exists at which the legislator is
obliged to have recourse to the good sense and the virtue of his fellow-
citizens. This point is more prominent and more discoverable in republics,
whilst it is more remote and more carefully concealed in monarchies, but it
always exists somewhere. There is no country in the world in which

everything can be provided for by the laws, or in which political institutions
can prove a substitute for common sense and public morality.
Differences Between The Position Of The President Of The United States
And That Of A Constitutional King Of France
Executive power in the Northern States as limited and as partial as the
supremacy which it represents—Executive power in France as universal as
the supremacy it represents—The King a branch of the legislature—The
President the mere executor of the law—Other differences resulting from
the duration of the two powers—The President checked in the exercise of
the executive authority—The King independent in its exercise—
Notwithstanding these discrepancies France is more akin to a republic than
the Union to a monarchy—Comparison of the number of public officers
depending upon the executive power in the two countries.
The executive power has so important an influence on the destinies of
nations that I am inclined to pause for an instant at this portion of my
subject, in order more clearly to explain the part it sustains in America. In
order to form an accurate idea of the position of the President of the United
States, it may not be irrelevant to compare it to that of one of the
constitutional kings of Europe. In this comparison I shall pay but little
attention to the external signs of power, which are more apt to deceive the
eye of the observer than to guide his researches. When a monarchy is being
gradually transformed into a republic, the executive power retains the titles,
the honors, the etiquette, and even the funds of royalty long after its
authority has disappeared. The English, after having cut off the head of one
king and expelled another from his throne, were accustomed to accost the
successor of those princes upon their knees. On the other hand, when a
republic falls under the sway of a single individual, the demeanor of the
sovereign is simple and unpretending, as if his authority was not yet
paramount. When the emperors exercised an unlimited control over the
fortunes and the lives of their fellow-citizens, it was customary to call them
Caesar in conversation, and they were in the habit of supping without
formality at their friends’ houses. It is therefore necessary to look below the
surface.
The sovereignty of the United States is shared between the Union and the
States, whilst in France it is undivided and compact: hence arises the first
and the most notable difference which exists between the President of the

United States and the King of France. In the United States the executive
power is as limited and partial as the sovereignty of the Union in whose
name it acts; in France it is as universal as the authority of the State. The
Americans have a federal and the French a national Government.

Chapter VIII: The Federal Constitution—Part II

This cause of inferiority results from the nature of things, but it is not the
only one; the second in importance is as follows: Sovereignty may be
defined to be the right of making laws: in France, the King really exercises
a portion of the sovereign power, since the laws have no weight till he has
given his assent to them; he is, moreover, the executor of all they ordain.
The President is also the executor of the laws, but he does not really co-
operate in their formation, since the refusal of his assent does not annul
them. He is therefore merely to be considered as the agent of the sovereign
power. But not only does the King of France exercise a portion of the
sovereign power, he also contributes to the nomination of the legislature,
which exercises the other portion. He has the privilege of appointing the
members of one chamber, and of dissolving the other at his pleasure;
whereas the President of the United States has no share in the formation of
the legislative body, and cannot dissolve any part of it. The King has the
same right of bringing forward measures as the Chambers; a right which the
President does not possess. The King is represented in each assembly by his
ministers, who explain his intentions, support his opinions, and maintain the
principles of the Government. The President and his ministers are alike
excluded from Congress; so that his influence and his opinions can only
penetrate indirectly into that great body. The King of France is therefore on
an equal footing with the legislature, which can no more act without him
than he can without it. The President exercises an authority inferior to, and
depending upon, that of the legislature.
Even in the exercise of the executive power, properly so called—the
point upon which his position seems to be most analogous to that of the
King of France—the President labors under several causes of inferiority.
The authority of the King, in France, has, in the first place, the advantage of
duration over that of the President, and durability is one of the chief
elements of strength; nothing is either loved or feared but what is likely to

endure. The President of the United States is a magistrate elected for four
years; the King, in France, is an hereditary sovereign. In the exercise of the
executive power the President of the United States is constantly subject to a
jealous scrutiny. He may make, but he cannot conclude, a treaty; he may
designate, but he cannot appoint, a public officer. *q The King of France is
absolute within the limits of his authority. The President of the United
States is responsible for his actions; but the person of the King is declared
inviolable by the French Charter. *r
q
[ The Constitution had left it doubtful whether the President was obliged to
consult the Senate in the removal as well as in the appointment of Federal
officers. “The Federalist” (No. 77) seemed to establish the affirmative; but in
1789 Congress formally decided that, as the President was responsible for his
actions, he ought not to be forced to employ agents who had forfeited his esteem.
See Kent’s “Commentaries”, vol. i. p. 289.]

r
[ [This comparison applied to the Constitutional King of France and to the
powers he held under the Charter of 1830, till the overthrow of the monarchy in
1848.—Translator’s Note.]]

Nevertheless, the supremacy of public opinion is no less above the head
of the one than of the other. This power is less definite, less evident, and
less sanctioned by the laws in France than in America, but in fact it exists.
In America, it acts by elections and decrees; in France it proceeds by
revolutions; but notwithstanding the different constitutions of these two
countries, public opinion is the predominant authority in both of them. The
fundamental principle of legislation—a principle essentially republican—is
the same in both countries, although its consequences may be different, and
its results more or less extensive. Whence I am led to conclude that France
with its King is nearer akin to a republic than the Union with its President is
to a monarchy.
In what I have been saying I have only touched upon the main points of
distinction; and if I could have entered into details, the contrast would have
been rendered still more striking. I have remarked that the authority of the
President in the United States is only exercised within the limits of a partial
sovereignty, whilst that of the King in France is undivided. I might have
gone on to show that the power of the King’s government in France exceeds
its natural limits, however extensive they may be, and penetrates in a
thousand different ways into the administration of private interests.

Amongst the examples of this influence may be quoted that which results
from the great number of public functionaries, who all derive their
appointments from the Government. This number now exceeds all previous
limits; it amounts to 138,000 *s nominations, each of which may be
considered as an element of power. The President of the United States has
not the exclusive right of making any public appointments, and their whole
number scarcely exceeds 12,000. *t
s
[ The sums annually paid by the State to these officers amount to 200,000,000 fr.
($40,000,000).]

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

[I have not the means of ascertaining the number of appointments now at
the disposal of the President of the United States, but his patronage and the
abuse of it have largely increased since 1833.—Translator’s Note, 1875.]]
Accidental Causes Which May Increase The Influence Of The Executive
Government
External security of the Union—Army of six thousand men—Few ships
—The President has no opportunity of exercising his great prerogatives—In
the prerogatives he exercises he is weak.
If the executive government is feebler in America than in France, the
cause is more attributable to the circumstances than to the laws of the
country.
It is chiefly in its foreign relations that the executive power of a nation is
called upon to exert its skill and its vigor. If the existence of the Union were
perpetually threatened, and if its chief interests were in daily connection
with those of other powerful nations, the executive government would
assume an increased importance in proportion to the measures expected of
it, and those which it would carry into effect. The President of the United
States is the commander-in-chief of the army, but of an army composed of
only six thousand men; he commands the fleet, but the fleet reckons but few
sail; he conducts the foreign relations of the Union, but the United States
are a nation without neighbors. Separated from the rest of the world by the

ocean, and too weak as yet to aim at the dominion of the seas, they have no
enemies, and their interests rarely come into contact with those of any other
nation of the globe.
The practical part of a Government must not be judged by the theory of
its constitution. The President of the United States is in the possession of
almost royal prerogatives, which he has no opportunity of exercising; and
those privileges which he can at present use are very circumscribed. The
laws allow him to possess a degree of influence which circumstances do not
permit him to employ.
On the other hand, the great strength of the royal prerogative in France
arises from circumstances far more than from the laws. There the executive
government is constantly struggling against prodigious obstacles, and
exerting all its energies to repress them; so that it increases by the extent of
its achievements, and by the importance of the events it controls, without
modifying its constitution. If the laws had made it as feeble and as
circumscribed as it is in the Union, its influence would very soon become
still more preponderant.
Why The President Of The United States Does Not Require The Majority
Of The Two Houses In Order To Carry On The Government It is an
established axiom in Europe that a constitutional King cannot persevere in a
system of government which is opposed by the two other branches of the
legislature. But several Presidents of the United States have been known to
lose the majority in the legislative body without being obliged to abandon
the supreme power, and without inflicting a serious evil upon society. I have
heard this fact quoted as an instance of the independence and the power of
the executive government in America: a moment’s reflection will convince
us, on the contrary, that it is a proof of its extreme weakness.
A King in Europe requires the support of the legislature to enable him to
perform the duties imposed upon him by the Constitution, because those
duties are enormous. A constitutional King in Europe is not merely the
executor of the law, but the execution of its provisions devolves so
completely upon him that he has the power of paralyzing its influence if it
opposes his designs. He requires the assistance of the legislative assemblies
to make the law, but those assemblies stand in need of his aid to execute it:
these two authorities cannot subsist without each other, and the mechanism
of government is stopped as soon as they are at variance.

In America the President cannot prevent any law from being passed, nor
can he evade the obligation of enforcing it. His sincere and zealous co-
operation is no doubt useful, but it is not indispensable, in the carrying on
of public affairs. All his important acts are directly or indirectly submitted
to the legislature, and of his own free authority he can do but little. It is
therefore his weakness, and not his power, which enables him to remain in
opposition to Congress. In Europe, harmony must reign between the Crown
and the other branches of the legislature, because a collision between them
may prove serious; in America, this harmony is not indispensable, because
such a collision is impossible.
Election Of The President
Dangers of the elective system increase in proportion to the extent of the
prerogative—This system possible in America because no powerful
executive authority is required—What circumstances are favorable to the
elective system—Why the election of the President does not cause a
deviation from the principles of the Government—Influence of the election
of the President on secondary functionaries.
The dangers of the system of election applied to the head of the executive
government of a great people have been sufficiently exemplified by
experience and by history, and the remarks I am about to make refer to
America alone. These dangers may be more or less formidable in proportion
to the place which the executive power occupies, and to the importance it
possesses in the State; and they may vary according to the mode of election
and the circumstances in which the electors are placed. The most weighty
argument against the election of a chief magistrate is, that it offers so
splendid a lure to private ambition, and is so apt to inflame men in the
pursuit of power, that when legitimate means are wanting force may not
unfrequently seize what right denied.
It is clear that the greater the privileges of the executive authority are, the
greater is the temptation; the more the ambition of the candidates is excited,
the more warmly are their interests espoused by a throng of partisans who
hope to share the power when their patron has won the prize. The dangers
of the elective system increase, therefore, in the exact ratio of the influence
exercised by the executive power in the affairs of State. The revolutions of
Poland were not solely attributable to the elective system in general, but to
the fact that the elected monarch was the sovereign of a powerful kingdom.

Before we can discuss the absolute advantages of the elective system we
must make preliminary inquiries as to whether the geographical position,
the laws, the habits, the manners, and the opinions of the people amongst
whom it is to be introduced will admit of the establishment of a weak and
dependent executive government; for to attempt to render the representative
of the State a powerful sovereign, and at the same time elective, is, in my
opinion, to entertain two incompatible designs. To reduce hereditary royalty
to the condition of an elective authority, the only means that I am
acquainted with are to circumscribe its sphere of action beforehand,
gradually to diminish its prerogatives, and to accustom the people to live
without its protection. Nothing, however, is further from the designs of the
republicans of Europe than this course: as many of them owe their hatred of
tyranny to the sufferings which they have personally undergone, it is
oppression, and not the extent of the executive power, which excites their
hostility, and they attack the former without perceiving how nearly it is
connected with the latter.
Hitherto no citizen has shown any disposition to expose his honor and his
life in order to become the President of the United States; because the
power of that office is temporary, limited, and subordinate. The prize of
fortune must be great to encourage adventurers in so desperate a game. No
candidate has as yet been able to arouse the dangerous enthusiasm or the
passionate sympathies of the people in his favor, for the very simple reason
that when he is at the head of the Government he has but little power, but
little wealth, and but little glory to share amongst his friends; and his
influence in the State is too small for the success or the ruin of a faction to
depend upon the elevation of an individual to power.
The great advantage of hereditary monarchies is, that as the private
interest of a family is always intimately connected with the interests of the
State, the executive government is never suspended for a single instant; and
if the affairs of a monarchy are not better conducted than those of a
republic, at least there is always some one to conduct them, well or ill,
according to his capacity. In elective States, on the contrary, the wheels of
government cease to act, as it were, of their own accord at the approach of
an election, and even for some time previous to that event. The laws may
indeed accelerate the operation of the election, which may be conducted
with such simplicity and rapidity that the seat of power will never be left

vacant; but, notwithstanding these precautions, a break necessarily occurs in
the minds of the people.
At the approach of an election the head of the executive government is
wholly occupied by the coming struggle; his future plans are doubtful; he
can undertake nothing new, and the he will only prosecute with indifference
those designs which another will perhaps terminate. “I am so near the time
of my retirement from office,” said President Jefferson on the 21st of
January, 1809 (six weeks before the election), “that I feel no passion, I take
no part, I express no sentiment. It appears to me just to leave to my
successor the commencement of those measures which he will have to
prosecute, and for which he will be responsible.”
On the other hand, the eyes of the nation are centred on a single point; all
are watching the gradual birth of so important an event. The wider the
influence of the executive power extends, the greater and the more
necessary is its constant action, the more fatal is the term of suspense; and a
nation which is accustomed to the government, or, still more, one used to
the administrative protection of a powerful executive authority would be
infallibly convulsed by an election of this kind. In the United States the
action of the Government may be slackened with impunity, because it is
always weak and circumscribed. *u
u
[ [This, however, may be a great danger. The period during which Mr. Buchanan
retained office, after the election of Mr. Lincoln, from November, 1860, to
March, 1861, was that which enabled the seceding States of the South to
complete their preparations for the Civil War, and the Executive Government
was paralyzed. No greater evil could befall a nation.—Translator’s Note.]]

One of the principal vices of the elective system is that it always
introduces a certain degree of instability into the internal and external
policy of the State. But this disadvantage is less sensibly felt if the share of
power vested in the elected magistrate is small. In Rome the principles of
the Government underwent no variation, although the Consuls were
changed every year, because the Senate, which was an hereditary assembly,
possessed the directing authority. If the elective system were adopted in
Europe, the condition of most of the monarchical States would be changed
at every new election. In America the President exercises a certain influence
on State affairs, but he does not conduct them; the preponderating power is
vested in the representatives of the whole nation. The political maxims of

the country depend therefore on the mass of the people, not on the President
alone; and consequently in America the elective system has no very
prejudicial influence on the fixed principles of the Government. But the
want of fixed principles is an evil so inherent in the elective system that it is
still extremely perceptible in the narrow sphere to which the authority of the
President extends.
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
constitutional 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 constitutional monarchy successive
ministries are rapidly formed; but as the principal 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 substitute 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 circumstances 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
circumstances 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 embarrassments 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 constituted that it can stand without assistance
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 Constitution 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 institutions 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 circumstances, 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 constitution 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 assembly of the
nation, or whether an electoral assembly 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 constituency 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 assemblies to which the choice of a chief
magistrate had been entrusted in elective countries inevitably became the
centres of passion 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 constituents. 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 assemble, 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
Constitution 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 assembly
may still be doubtful, and in this case the Constitution 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 Constitution 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?—Passions of
the people—Anxiety of the President—Calm which succeeds the agitation
of the election.
I have shown what the circumstances 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 circumstances under which the elections have
hitherto been carried on have presented no real embarrassments 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 assumes 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 passions 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 passions, 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 assumes 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 Constitution—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
circumstances 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 constitutional 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 assailants 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 anticipate 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, entitled “Judicial Power in the United States.” This chapter
explains the general principles of the American theory of judicial institutions.
See also the Federal Constitution, Art. 3. See “The Federalists,” Nos. 78-83,
inclusive; and a work entitled “Constitutional 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 institutions exercise a great
influence on the condition of the Anglo-Americans, and they occupy a
prominent place amongst what are probably called political institutions: 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 constitution 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 Constitution 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 substitute 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 substituted for it; but if the latter proves to be
indispensable, its power is doubled by the association of the idea of law.
A federal government stands in greater need of the support of judicial
institutions 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
homogeneous. 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 instituted 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
Constitution 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 analogy exists between the Supreme Court of
the United States and the French Cour de Cassation, 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 Cassation does not pronounce 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 Constitution of the United States recognized two distinct powers
in presence of each other, represented in a judicial point of view by two
distinct classes 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 constitute 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 classes. 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 Constitution 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 Constitution
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 assert 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 ambassadors 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.
Ambassadors 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 ambassador 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 Constitution 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 constitutional nature arose, which was, whether the jurisdiction
given by the Constitution 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 Constitution 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 multitude 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 Constitution prohibits the States from making laws on the value and
circulation of money: If, notwithstanding this prohibition, a State passes a
law of this kind, with which the interested parties refuse to comply because
it is contrary to the Constitution, 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 Constitution. 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 constitute one and the
same people within the bounds prescribed by their Constitution, 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 constitutes a people, and that in
relation to all the rest it is a nonentity. 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 Constitution 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 principal 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 passing
certain laws which apparently belong to their own particular sphere of
interest. When a State of the Union passes 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 Constitution. 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 passed 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 Constitution 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 passed into the possessor’s hands by means of a contract; and its
possession is an acquired right, not guaranteed by the Federal Constitution.]

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, passed 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 constitutionality 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 Constitution (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 institution, 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 institution 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 Constitution—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
analogous 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 constitution, requires the means
of constraining its subjects to discharge their obligations, and of protecting

its privileges from their assaults. As far as the direct action of the
Government on the community is concerned, the Constitution 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 Constitution, the
inference was that the Government created by this Constitution, and acting
within these limits, was invested with all the privileges of a national
government, one of the principal 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 assessment. 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 Constitution 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 passed 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 assumed 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 passes a law by which the territory is otherwise
disposed of, and that clause of the Constitution 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 title of
the claimant to be pronounced 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 constitutions 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 constituted 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 constituted by
any people. The Supreme Court is placed at the head of all known tribunals,
both by the nature of its rights and the class 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 constitution 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
Constitution would be a dead letter: the Executive appeals to them for
assistance 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 constitution 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 constitution of the power, but in the
constitution of those States which render its existence necessary.
In What Respects The Federal Constitution Is Superior To That Of The
States
In what respects the Constitution of the Union can be compared to that of
the States—Superiority of the Constitution 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 Constitution 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 analogy 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 Constitution is superior to all the
Constitutions of the States, for several reasons.
The present Constitution 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 Constitution, and that these new republics
have always rather exaggerated than avoided the defects which existed in
the former Constitutions.
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 Constitution 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
passions 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 principal founders of the
Constitution, 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 instituted 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 passion, 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 gratitude to the men who had courage
and magnanimity enough to serve them at the peril of their displeasure.”]

The greater number of the Constitutions of the States assign 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 constituents. 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 Constitution, as well as the Constitutions 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 passions 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 Constitution 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 assembly of a
limited number of members.
To concentrate the whole social force in the hands of the legislative body
is the natural tendency of democracies; for as this is the power which
emanates the most directly from the people, it is made to participate most
fully in the preponderating authority of the multitude, and it is naturally led
to monopolize every species of influence. This concentration is at once
prejudicial to a well-conducted administration, and favorable to the
despotism of the majority. The legislators of the States frequently yielded to
these democratic propensities, which were invariably and courageously
resisted by the founders of the Union.
In the States the executive power is vested in the hands of a magistrate,
who is apparently placed upon a level with the Legislature, but who is in
reality nothing more than the blind agent and the passive instrument of its

decisions. He can derive no influence from the duration of his functions,
which terminate with the revolving year, or from the exercise of
prerogatives which can scarcely be said to exist. The Legislature can
condemn him to inaction by intrusting the execution of the laws to special
committees of its own members, and can annul his temporary dignity by
depriving him of his salary. The Federal Constitution vests all the privileges
and all the responsibility of the executive power in a single individual. The
duration of the Presidency is fixed at four years; the salary of the individual
who fills that office cannot be altered during the term of his functions; he is
protected by a body of official dependents, and armed with a suspensive
veto. In short, every effort was made to confer a strong and independent
position upon the executive authority within the limits which had been
prescribed to it.
In the Constitutions of all the States the judicial power is that which
remains the most independent of the legislative authority; nevertheless, in
all the States the Legislature has reserved to itself the right of regulating the
emoluments of the judges, a practice which necessarily subjects these
magistrates to its immediate influence. In some States the judges are only
temporarily appointed, which deprives them of a great portion of their
power and their freedom. In others the legislative and judicial powers are
entirely confounded; thus the Senate of New York, for instance, constitutes
in certain cases the Superior Court of the State. The Federal Constitution,
on the other hand, carefully separates the judicial authority from all external
influences; and it provides for the independence of the judges, by declaring
that their salary shall not be altered, and that their functions shall be
inalienable.
The practical consequences of these different systems may easily be
perceived. An attentive observer will soon remark that the business of the
Union is incomparably better conducted than that of any individual State.
The conduct of the Federal Government is more fair and more temperate
than that of the States, its designs are more fraught with wisdom, its
projects are more durable and more skilfully combined, its measures are put
into execution with more vigor and consistency.
I recapitulate the substance of this chapter in a few words: The existence
of democracies is threatened by two dangers, viz., the complete subjection
of the legislative body to the caprices of the electoral body, and the

concentration of all the powers of the Government in the legislative
authority. The growth of these evils has been encouraged by the policy of
the legislators of the States, but it has been resisted by the legislators of the
Union by every means which lay within their control.
Characteristics Which Distinguish The Federal Constitution Of The
United States Of America From All Other Federal Constitutions American
Union appears to resemble all other confederations—Nevertheless its
effects are different—Reason of this—Distinctions between the Union and
all other confederations—The American Government not a federal but an
imperfect national Government.
The United States of America do not afford either the first or the only
instance of confederate States, several of which have existed in modern
Europe, without adverting to those of antiquity. Switzerland, the Germanic
Empire, and the Republic of the United Provinces either have been or still
are confederations. In studying the constitutions of these different countries,
the politician is surprised to observe that the powers with which they
invested the Federal Government are nearly identical with the privileges
awarded by the American Constitution to the Government of the United
States. They confer upon the central power the same rights of making peace
and war, of raising money and troops, and of providing for the general
exigencies and the common interests of the nation. Nevertheless the Federal
Government of these different peoples has always been as remarkable for
its weakness and inefficiency as that of the Union is for its vigorous and
enterprising spirit. Again, the first American Confederation perished
through the excessive weakness of its Government; and this weak
Government was, notwithstanding, in possession of rights even more
extensive than those of the Federal Government of the present day. But the
more recent Constitution of the United States contains certain principles
which exercise a most important influence, although they do not at once
strike the observer.
This Constitution, which may at first sight be confounded with the
federal constitutions which preceded it, rests upon a novel theory, which
may be considered as a great invention in modern political science. In all
the confederations which had been formed before the American
Constitution of 1789 the allied States agreed to obey the injunctions of a
Federal Government; but they reserved to themselves the right of ordaining

and enforcing the execution of the laws of the Union. The American States
which combined in 1789 agreed that the Federal Government should not
only dictate the laws, but that it should execute it own enactments. In both
cases the right is the same, but the exercise of the right is different; and this
alteration produced the most momentous consequences.
In all the confederations which had been formed before the American
Union the Federal Government demanded its supplies at the hands of the
separate Governments; and if the measure it prescribed was onerous to any
one of those bodies means were found to evade its claims: if the State was
powerful, it had recourse to arms; if it was weak, it connived at the
resistance which the law of the Union, its sovereign, met with, and resorted
to inaction under the plea of inability. Under these circumstances one of the
two alternatives has invariably occurred; either the most preponderant of
the allied peoples has assumed the privileges of the Federal authority and
ruled all the States in its name, *p or the Federal Government has been
abandoned by its natural supporters, anarchy has arisen between the
confederates, and the Union has lost all powers of action. *q
p
[ 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 own time, in the Germanic Confederation, in which Austria
and Prussia assume a great degree of influence over the whole country, in the
name of the Diet.]

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

In America the subjects of the Union are not States, but private citizens:
the national Government levies a tax, not upon the State of Massachusetts,
but upon each inhabitant of Massachusetts. All former confederate
governments presided over communities, but that of the Union rules
individuals; its force is not borrowed, but self-derived; and it is served by
its own civil and military officers, by its own army, and its own courts of
justice. It cannot be doubted that the spirit of the nation, the passions of the
multitude, and the provincial prejudices of each State tend singularly to
diminish the authority of a Federal authority thus constituted, and to
facilitate the means of resistance to its mandates; but the comparative
weakness of a restricted sovereignty is an evil inherent in the Federal

system. In America, each State has fewer opportunities of resistance and
fewer temptations to non-compliance; nor can such a design be put in
execution (if indeed it be entertained) without an open violation of the laws
of the Union, a direct interruption of the ordinary course of justice, and a
bold declaration of revolt; in a word, without taking a decisive step which
men hesitate to adopt.
In all former confederations the privileges of the Union furnished more
elements of discord than of power, since they multiplied the claims of the
nation without augmenting the means of enforcing them: and in accordance
with this fact it may be remarked that the real weakness of federal
governments has almost always been in the exact ratio of their nominal
power. Such is not the case in the American Union, in which, as in ordinary
governments, the Federal Government has the means of enforcing all it is
empowered to demand.
The human understanding more easily invents new things than new
words, and we are thence constrained to employ a multitude of improper
and inadequate expressions. When several nations form a permanent league
and establish a supreme authority, which, although it has not the same
influence over the members of the community as a national government,
acts upon each of the Confederate States in a body, this Government, which
is so essentially different from all others, is denominated a Federal one.
Another form of society is afterwards discovered, in which several peoples
are fused into one and the same nation with regard to certain common
interests, although they remain distinct, or at least only confederate, with
regard to all their other concerns. In this case the central power acts directly
upon those whom it governs, whom it rules, and whom it judges, in the
same manner, as, but in a more limited circle than, a national government.
Here the term Federal Government is clearly no longer applicable to a state
of things which must be styled an incomplete national Government: a form
of government has been found out which is neither exactly national nor
federal; but no further progress has been made, and the new word which
will one day designate this novel invention does not yet exist.
The absence of this new species of confederation has been the cause
which has brought all Unions to Civil War, to subjection, or to a stagnant
apathy, and the peoples which formed these leagues have been either too

dull to discern, or too pusillanimous to apply this great remedy. The
American Confederation perished by the same defects.
But the Confederate States of America had been long accustomed to form
a portion of one empire before they had won their independence; they had
not contracted the habit of governing themselves, and their national
prejudices had not taken deep root in their minds. Superior to the rest of the
world in political knowledge, and sharing that knowledge equally amongst
themselves, they were little agitated by the passions which generally oppose
the extension of federal authority in a nation, and those passions were
checked by the wisdom of the chief citizens. The Americans applied the
remedy with prudent firmness as soon as they were conscious of the evil;
they amended their laws, and they saved their country.

Chapter VIII: The Federal Constitution—Part V

Advantages Of The Federal System In General, And Its Special Utility In
America.
Happiness and freedom of small nations—Power of great nations—Great
empires favorable to the growth of civilization—Strength often the first
element of national prosperity—Aim of the Federal system to unite the
twofold advantages resulting from a small and from a large territory—
Advantages derived by the United States from this system—The law adapts
itself to the exigencies of the population; population does not conform to
the exigencies of the law—Activity, amelioration, love and enjoyment of
freedom in the American communities—Public spirit of the Union the
abstract of provincial patriotism—Principles and things circulate freely over
the territory of the United States—The Union is happy and free as a little
nation, and respected as a great empire.
In small nations the scrutiny of society penetrates into every part, and the
spirit of improvement enters into the most trifling details; as the ambition of
the people is necessarily checked by its weakness, all the efforts and
resources of the citizens are turned to the internal benefit of the community,
and are not likely to evaporate in the fleeting breath of glory. The desires of
every individual are limited, because extraordinary faculties are rarely to be
met with. The gifts of an equal fortune render the various conditions of life
uniform, and the manners of the inhabitants are orderly and simple. Thus, if
one estimate the gradations of popular morality and enlightenment, we shall
generally find that in small nations there are more persons in easy
circumstances, a more numerous population, and a more tranquil state of
society, than in great empires.
When tyranny is established in the bosom of a small nation, it is more
galling than elsewhere, because, as it acts within a narrow circle, every
point of that circle is subject to its direct influence. It supplies the place of
those great designs which it cannot entertain by a violent or an exasperating

interference in a multitude of minute details; and it leaves the political
world, to which it properly belongs, to meddle with the arrangements of
domestic life. Tastes as well as actions are to be regulated at its pleasure;
and the families of the citizens as well as the affairs of the State are to be
governed by its decisions. This invasion of rights occurs, however, but
seldom, and freedom is in truth the natural state of small communities. The
temptations which the Government offers to ambition are too weak, and the
resources of private individuals are too slender, for the sovereign power
easily to fall within the grasp of a single citizen; and should such an event
have occurred, the subjects of the State can without difficulty overthrow the
tyrant and his oppression by a simultaneous effort.
Small nations have therefore ever been the cradle of political liberty; and
the fact that many of them have lost their immunities by extending their
dominion shows that the freedom they enjoyed was more a consequence of
the inferior size than of the character of the people.
The history of the world affords no instance of a great nation retaining
the form of republican government for a long series of years, *r and this has
led to the conclusion that such a state of things is impracticable. For my
own part, I cannot but censure the imprudence of attempting to limit the
possible and to judge the future on the part of a being who is hourly
deceived by the most palpable realities of life, and who is constantly taken
by surprise in the circumstances with which he is most familiar. But it may
be advanced with confidence that the existence of a great republic will
always be exposed to far greater perils than that of a small one.
r
[ I do not speak of a confederation of small republics, but of a great consolidated
Republic.]

All the passions which are most fatal to republican institutions spread
with an increasing territory, whilst the virtues which maintain their dignity
do not augment in the same proportion. The ambition of the citizens
increases with the power of the State; the strength of parties with the
importance of the ends they have in view; but that devotion to the common
weal which is the surest check on destructive passions is not stronger in a
large than in a small republic. It might, indeed, be proved without difficulty
that it is less powerful and less sincere. The arrogance of wealth and the
dejection of wretchedness, capital cities of unwonted extent, a lax morality,

a vulgar egotism, and a great confusion of interests, are the dangers which
almost invariably arise from the magnitude of States. But several of these
evils are scarcely prejudicial to a monarchy, and some of them contribute to
maintain its existence. In monarchical States the strength of the government
is its own; it may use, but it does not depend on, the community, and the
authority of the prince is proportioned to the prosperity of the nation; but
the only security which a republican government possesses against these
evils lies in the support of the majority. This support is not, however,
proportionably greater in a large republic than it is in a small one; and thus,
whilst the means of attack perpetually increase both in number and in
influence, the power of resistance remains the same, or it may rather be said
to diminish, since the propensities and interests of the people are diversified
by the increase of the population, and the difficulty of forming a compact
majority is constantly augmented. It has been observed, moreover, that the
intensity of human passions is heightened, not only by the importance of the
end which they propose to attain, but by the multitude of individuals who
are animated by them at the same time. Every one has had occasion to
remark that his emotions in the midst of a sympathizing crowd are far
greater than those which he would have felt in solitude. In great republics
the impetus of political passion is irresistible, not only because it aims at
gigantic purposes, but because it is felt and shared by millions of men at the
same time.
It may therefore be asserted as a general proposition that nothing is more
opposed to the well-being and the freedom of man than vast empires.
Nevertheless it is important to acknowledge the peculiar advantages of
great States. For the very reason which renders the desire of power more
intense in these communities than amongst ordinary men, the love of glory
is also more prominent in the hearts of a class of citizens, who regard the
applause of a great people as a reward worthy of their exertions, and an
elevating encouragement to man. If we would learn why it is that great
nations contribute more powerfully to the spread of human improvement
than small States, we shall discover an adequate cause in the rapid and
energetic circulation of ideas, and in those great cities which are the
intellectual centres where all the rays of human genius are reflected and
combined. To this it may be added that most important discoveries demand
a display of national power which the Government of a small State is
unable to make; in great nations the Government entertains a greater

number of general notions, and is more completely disengaged from the
routine of precedent and the egotism of local prejudice; its designs are
conceived with more talent, and executed with more boldness.
In time of peace the well-being of small nations is undoubtedly more
general and more complete, but they are apt to suffer more acutely from the
calamities of war than those great empires whose distant frontiers may for
ages avert the presence of the danger from the mass of the people, which is
therefore more frequently afflicted than ruined by the evil.
But in this matter, as in many others, the argument derived from the
necessity of the case predominates over all others. If none but small nations
existed, I do not doubt that mankind would be more happy and more free;
but the existence of great nations is unavoidable.
This consideration introduces the element of physical strength as a
condition of national prosperity. It profits a people but little to be affluent
and free if it is perpetually exposed to be pillaged or subjugated; the number
of its manufactures and the extent of its commerce are of small advantage if
another nation has the empire of the seas and gives the law in all the
markets of the globe. Small nations are often impoverished, not because
they are small, but because they are weak; the great empires prosper less
because they are great than because they are strong. Physical strength is
therefore one of the first conditions of the happiness and even of the
existence of nations. Hence it occurs that, unless very peculiar
circumstances intervene, small nations are always united to large empires in
the end, either by force or by their own consent: yet I am unacquainted with
a more deplorable spectacle than that of a people unable either to defend or
to maintain its independence.
The Federal system was created with the intention of combining the
different advantages which result from the greater and the lesser extent of
nations; and a single glance over the United States of America suffices to
discover the advantages which they have derived from its adoption.
In great centralized nations the legislator is obliged to impart a character
of uniformity to the laws which does not always suit the diversity of
customs and of districts; as he takes no cognizance of special cases, he can
only proceed upon general principles; and the population is obliged to
conform to the exigencies of the legislation, since the legislation cannot
adapt itself to the exigencies and the customs of the population, which is the

cause of endless trouble and misery. This disadvantage does not exist in
confederations. Congress regulates the principal measures of the national
Government, and all the details of the administration are reserved to the
provincial legislatures. It is impossible to imagine how much this division
of sovereignty contributes to the well-being of each of the States which
compose the Union. In these small communities, which are never agitated
by the desire of aggrandizement or the cares of self-defence, all public
authority and private energy is employed in internal amelioration. The
central government of each State, which is in immediate juxtaposition to the
citizens, is daily apprised of the wants which arise in society; and new
projects are proposed every year, which are discussed either at town
meetings or by the legislature of the State, and which are transmitted by the
press to stimulate the zeal and to excite the interest of the citizens. This
spirit of amelioration is constantly alive in the American republics, without
compromising their tranquillity; the ambition of power yields to the less
refined and less dangerous love of comfort. It is generally believed in
America that the existence and the permanence of the republican form of
government in the New World depend upon the existence and the
permanence of the Federal system; and it is not unusual to attribute a large
share of the misfortunes which have befallen the new States of South
America to the injudicious erection of great republics, instead of a divided
and confederate sovereignty.
It is incontestably true that the love and the habits of republican
government in the United States were engendered in the townships and in
the provincial assemblies. In a small State, like that of Connecticut for
instance, where cutting a canal or laying down a road is a momentous
political question, where the State has no army to pay and no wars to carry
on, and where much wealth and much honor cannot be bestowed upon the
chief citizens, no form of government can be more natural or more
appropriate than that of a republic. But it is this same republican spirit, it is
these manners and customs of a free people, which are engendered and
nurtured in the different States, to be afterwards applied to the country at
large. The public spirit of the Union is, so to speak, nothing more than an
abstract of the patriotic zeal of the provinces. Every citizen of the United
States transfuses his attachment to his little republic in the common store of
American patriotism. In defending the Union he defends the increasing
prosperity of his own district, the right of conducting its affairs, and the

hope of causing measures of improvement to be adopted which may be
favorable to his own interest; and these are motives which are wont to stir
men more readily than the general interests of the country and the glory of
the nation.
On the other hand, if the temper and the manners of the inhabitants
especially fitted them to promote the welfare of a great republic, the Federal
system smoothed the obstacles which they might have encountered. The
confederation of all the American States presents none of the ordinary
disadvantages resulting from great agglomerations of men. The Union is a
great republic in extent, but the paucity of objects for which its Government
provides assimilates it to a small State. Its acts are important, but they are
rare. As the sovereignty of the Union is limited and incomplete, its exercise
is not incompatible with liberty; for it does not excite those insatiable
desires of fame and power which have proved so fatal to great republics. As
there is no common centre to the country, vast capital cities, colossal
wealth, abject poverty, and sudden revolutions are alike unknown; and
political passion, instead of spreading over the land like a torrent of
desolation, spends its strength against the interests and the individual
passions of every State.
Nevertheless, all commodities and ideas circulate throughout the Union
as freely as in a country inhabited by one people. Nothing checks the spirit
of enterprise. Government avails itself of the assistance of all who have
talents or knowledge to serve it. Within the frontiers of the Union the
profoundest peace prevails, as within the heart of some great empire;
abroad, it ranks with the most powerful nations of the earth; two thousand
miles of coast are open to the commerce of the world; and as it possesses
the keys of the globe, its flags is respected in the most remote seas. The
Union is as happy and as free as a small people, and as glorious and as
strong as a great nation.
Why The Federal System Is Not Adapted To All Peoples, And How The
Anglo-Americans Were Enabled To Adopt It.
Every Federal system contains defects which baffle the efforts of the
legislator—The Federal system is complex—It demands a daily exercise of
discretion on the part of the citizens—Practical knowledge of government
common amongst the Americans—Relative weakness of the Government of
the Union, another defect inherent in the Federal system—The Americans

have diminished without remedying it—The sovereignty of the separate
States apparently weaker, but really stronger, than that of the Union—Why?
—Natural causes of union must exist between confederate peoples besides
the laws—What these causes are amongst the Anglo-Americans—Maine
and Georgia, separated by a distance of a thousand miles, more naturally
united than Normandy and Brittany—War, the main peril of confederations
—This proved even by the example of the United States—The Union has
no great wars to fear—Why?—Dangers to which Europeans would be
exposed if they adopted the Federal system of the Americans.
When a legislator succeeds, after persevering efforts, in exercising an
indirect influence upon the destiny of nations, his genius is lauded by
mankind, whilst, in point of fact, the geographical position of the country
which he is unable to change, a social condition which arose without his co-
operation, manners and opinions which he cannot trace to their source, and
an origin with which he is unacquainted, exercise so irresistible an
influence over the courses of society that he is himself borne away by the
current, after an ineffectual resistance. Like the navigator, he may direct the
vessel which bears him along, but he can neither change its structure, nor
raise the winds, nor lull the waters which swell beneath him.
I have shown the advantages which the Americans derive from their
federal system; it remains for me to point out the circumstances which
rendered that system practicable, as its benefits are not to be enjoyed by all
nations. The incidental defects of the Federal system which originate in the
laws may be corrected by the skill of the legislator, but there are further
evils inherent in the system which cannot be counteracted by the peoples
which adopt it. These nations must therefore find the strength necessary to
support the natural imperfections of their Government.
The most prominent evil of all Federal systems is the very complex
nature of the means they employ. Two sovereignties are necessarily in
presence of each other. The legislator may simplify and equalize the action
of these two sovereignties, by limiting each of them to a sphere of authority
accurately defined; but he cannot combine them into one, or prevent them
from coming into collision at certain points. The Federal system therefore
rests upon a theory which is necessarily complicated, and which demands
the daily exercise of a considerable share of discretion on the part of those it
governs.

A proposition must be plain to be adopted by the understanding of a
people. A false notion which is clear and precise will always meet with a
greater number of adherents in the world than a true principle which is
obscure or involved. Hence it arises that parties, which are like small
communities in the heart of the nation, invariably adopt some principle or
some name as a symbol, which very inadequately represents the end they
have in view and the means which are at their disposal, but without which
they could neither act nor subsist. The governments which are founded
upon a single principle or a single feeling which is easily defined are
perhaps not the best, but they are unquestionably the strongest and the most
durable in the world.
In examining the Constitution of the United States, which is the most
perfect federal constitution that ever existed, one is startled, on the other
hand, at the variety of information and the excellence of discretion which it
presupposes in the people whom it is meant to govern. The government of
the Union depends entirely upon legal fictions; the Union is an ideal nation
which only exists in the mind, and whose limits and extent can only be
discerned by the understanding.
When once the general theory is comprehended, numberless difficulties
remain to be solved in its application; for the sovereignty of the Union is so
involved in that of the States that it is impossible to distinguish its
boundaries at the first glance. The whole structure of the Government is
artificial and conventional; and it would be ill adapted to a people which
has not been long accustomed to conduct its own affairs, or to one in which
the science of politics has not descended to the humblest classes of society.
I have never been more struck by the good sense and the practical judgment
of the Americans than in the ingenious devices by which they elude the
numberless difficulties resulting from their Federal Constitution. I scarcely
ever met with a plain American citizen who could not distinguish, with
surprising facility, the obligations created by the laws of Congress from
those created by the laws of his own State; and who, after having
discriminated between the matters which come under the cognizance of the
Union and those which the local legislature is competent to regulate, could
not point out the exact limit of the several jurisdictions of the Federal courts
and the tribunals of the State.

The Constitution of the United States is like those exquisite productions
of human industry which ensure wealth and renown to their inventors, but
which are profitless in any other hands. This truth is exemplified by the
condition of Mexico at the present time. The Mexicans were desirous of
establishing a federal system, and they took the Federal Constitution of
their neighbors, the Anglo-Americans, as their model, and copied it with
considerable accuracy. *s But although they had borrowed the letter of the
law, they were unable to create or to introduce the spirit and the sense
which give it life. They were involved in ceaseless embarrassments between
the mechanism of their double government; the sovereignty of the States
and that of the Union perpetually exceeded their respective privileges, and
entered into collision; and to the present day Mexico is alternately the
victim of anarchy and the slave of military despotism.
s
[ See the Mexican Constitution of 1824.]

The second and the most fatal of all the defects I have alluded to, and that
which I believe to be inherent in the federal system, is the relative weakness
of the government of the Union. The principle upon which all
confederations rest is that of a divided sovereignty. The legislator may
render this partition less perceptible, he may even conceal it for a time from
the public eye, but he cannot prevent it from existing, and a divided
sovereignty must always be less powerful than an entire supremacy. The
reader has seen in the remarks I have made on the Constitution of the
United States that the Americans have displayed singular ingenuity in
combining the restriction of the power of the Union within the narrow
limits of a federal government with the semblance and, to a certain extent,
with the force of a national government. By this means the legislators of the
Union have succeeded in diminishing, though not in counteracting the
natural danger of confederations.
It has been remarked that the American Government does not apply itself
to the States, but that it immediately transmits its injunctions to the citizens,
and compels them as isolated individuals to comply with its demands. But if
the Federal law were to clash with the interests and the prejudices of a
State, it might be feared that all the citizens of that State would conceive
themselves to be interested in the cause of a single individual who should
refuse to obey. If all the citizens of the State were aggrieved at the same

time and in the same manner by the authority of the Union, the Federal
Government would vainly attempt to subdue them individually; they would
instinctively unite in a common defence, and they would derive a ready-
prepared organization from the share of sovereignty which the institution of
their State allows them to enjoy. Fiction would give way to reality, and an
organized portion of the territory might then contest the central authority. *t
The same observation holds good with regard to the Federal jurisdiction. If
the courts of the Union violated an important law of a State in a private
case, the real, if not the apparent, contest would arise between the aggrieved
State represented by a citizen and the Union represented by its courts of
justice. *u
t
[ [This is precisely what occurred in 1862, and the following paragraph describes
correctly the feelings and notions of the South. General Lee held that his primary
allegiance was due, not to the Union, but to Virginia.]]

u
[ For instance, the Union possesses by the Constitution 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 Constitution 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 names 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,
whilst the other competitor was ordered to retain possession by the tribunals of
the State of Ohio?]

He would have but a partial knowledge of the world who should imagine
that it is possible, by the aid of legal fictions, to prevent men from finding
out and employing those means of gratifying their passions which have
been left open to them; and it may be doubted whether the American
legislators, when they rendered a collision between the two sovereigns less
probable, destroyed the cause of such a misfortune. But it may even be
affirmed that they were unable to ensure the preponderance of the Federal
element in a case of this kind. The Union is possessed of money and of
troops, but the affections and the prejudices of the people are in the bosom
of the States. The sovereignty of the Union is an abstract being, which is
connected with but few external objects; the sovereignty of the States is
hourly perceptible, easily understood, constantly active; and if the former is

of recent creation, the latter is coeval with the people itself. The sovereignty
of the Union is factitious, that of the States is natural, and derives its
existence from its own simple influence, like the authority of a parent. The
supreme power of the nation only affects a few of the chief interests of
society; it represents an immense but remote country, and claims a feeling
of patriotism which is vague and ill defined; but the authority of the States
controls every individual citizen at every hour and in all circumstances; it
protects his property, his freedom, and his life; and when we recollect the
traditions, the customs, the prejudices of local and familiar attachment with
which it is connected, we cannot doubt of the superiority of a power which
is interwoven with every circumstance that renders the love of one’s native
country instinctive in the human heart.
Since legislators are unable to obviate such dangerous collisions as occur
between the two sovereignties which coexist in the federal system, their
first object must be, not only to dissuade the confederate States from
warfare, but to encourage such institutions as may promote the maintenance
of peace. Hence it results that the Federal compact cannot be lasting unless
there exists in the communities which are leagued together a certain number
of inducements to union which render their common dependence agreeable,
and the task of the Government light, and that system cannot succeed
without the presence of favorable circumstances added to the influence of
good laws. All the peoples which have ever formed a confederation have
been held together by a certain number of common interests, which served
as the intellectual ties of association.
But the sentiments and the principles of man must be taken into
consideration as well as his immediate interests. A certain uniformity of
civilization is not less necessary to the durability of a confederation than a
uniformity of interests in the States which compose it. In Switzerland the
difference which exists between the Canton of Uri and the Canton of Vaud
is equal to that between the fifteenth and the nineteenth centuries; and,
properly speaking, Switzerland has never possessed a federal government.
The union between these two cantons only subsists upon the map, and their
discrepancies would soon be perceived if an attempt were made by a central
authority to prescribe the same laws to the whole territory.
One of the circumstances which most powerfully contribute to support
the Federal Government in America is that the States have not only similar

interests, a common origin, and a common tongue, but that they are also
arrived at the same stage of civilization; which almost always renders a
union feasible. I do not know of any European nation, how small soever it
may be, which does not present less uniformity in its different provinces
than the American people, which occupies a territory as extensive as one-
half of Europe. The distance from the State of Maine to that of Georgia is
reckoned at about one thousand miles; but the difference between the
civilization of Maine and that of Georgia is slighter than the difference
between the habits of Normandy and those of Brittany. Maine and Georgia,
which are placed at the opposite extremities of a great empire, are
consequently in the natural possession of more real inducements to form a
confederation than Normandy and Brittany, which are only separated by a
bridge.
The geographical position of the country contributed to increase the
facilities which the American legislators derived from the manners and
customs of the inhabitants; and it is to this circumstance that the adoption
and the maintenance of the Federal system are mainly attributable.
The most important occurrence which can mark the annals of a people is
the breaking out of a war. In war a people struggles with the energy of a
single man against foreign nations in the defence of its very existence. The
skill of a government, the good sense of the community, and the natural
fondness which men entertain for their country, may suffice to maintain
peace in the interior of a district, and to favor its internal prosperity; but a
nation can only carry on a great war at the cost of more numerous and more
painful sacrifices; and to suppose that a great number of men will of their
own accord comply with these exigencies of the State is to betray an
ignorance of mankind. All the peoples which have been obliged to sustain a
long and serious warfare have consequently been led to augment the power
of their government. Those which have not succeeded in this attempt have
been subjugated. A long war almost always places nations in the wretched
alternative of being abandoned to ruin by defeat or to despotism by success.
War therefore renders the symptoms of the weakness of a government most
palpable and most alarming; and I have shown that the inherent defeat of
federal governments is that of being weak.
The Federal system is not only deficient in every kind of centralized
administration, but the central government itself is imperfectly organized,

which is invariably an influential cause of inferiority when the nation is
opposed to other countries which are themselves governed by a single
authority. In the Federal Constitution of the United States, by which the
central government possesses more real force, this evil is still extremely
sensible. An example will illustrate the case to the reader.
The Constitution confers upon Congress the right of calling forth militia
to execute the laws of the Union, suppress insurrections, and repel
invasions; and another article declares that the President of the United
States is the commander-in-chief of the militia. In the war of 1812 the
President ordered the militia of the Northern States to march to the
frontiers; but Connecticut and Massachusetts, whose interests were
impaired by the war, refused to obey the command. They argued that the
Constitution authorizes the Federal Government to call forth the militia in
case of insurrection or invasion, but that in the present instance there was
neither invasion nor insurrection. They added, that the same Constitution
which conferred upon the Union the right of calling forth the militia
reserved to the States that of naming the officers; and that consequently (as
they understood the clause) no officer of the Union had any right to
command the militia, even during war, except the President in person; and
in this case they were ordered to join an army commanded by another
individual. These absurd and pernicious doctrines received the sanction not
only of the governors and the legislative bodies, but also of the courts of
justice in both States; and the Federal Government was constrained to raise
elsewhere the troops which it required. *v
v
[ Kent’s “Commentaries,” vol. i. p. 244. I have selected an example which relates
to a time posterior to the promulgation of the present Constitution. 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. [All doubt as to the powers of the Federal Executive was, however,
removed by its efforts in the Civil War, and those powers were largely
extended.]]

The only safeguard which the American Union, with all the relative
perfection of its laws, possesses against the dissolution which would be

produced by a great war, lies in its probable exemption from that calamity.
Placed in the centre of an immense continent, which offers a boundless field
for human industry, the Union is almost as much insulated from the world
as if its frontiers were girt by the ocean. Canada contains only a million of
inhabitants, and its population is divided into two inimical nations. The
rigor of the climate limits the extension of its territory, and shuts up its ports
during the six months of winter. From Canada to the Gulf of Mexico a few
savage tribes are to be met with, which retire, perishing in their retreat,
before six thousand soldiers. To the South, the Union has a point of contact
with the empire of Mexico; and it is thence that serious hostilities may one
day be expected to arise. But for a long while to come the uncivilized state
of the Mexican community, the depravity of its morals, and its extreme
poverty, will prevent that country from ranking high amongst nations. *w
As for the Powers of Europe, they are too distant to be formidable.
w
[ [War broke out between the United States and Mexico in 1846, and ended in
the conquest of an immense territory, including California.]]

The great advantage of the United States does not, then, consist in a
Federal Constitution which allows them to carry on great wars, but in a
geographical position which renders such enterprises extremely improbable.
No one can be more inclined than I am myself to appreciate the
advantages of the federal system, which I hold to be one of the
combinations most favorable to the prosperity and freedom of man. I envy
the lot of those nations which have been enabled to adopt it; but I cannot
believe that any confederate peoples could maintain a long or an equal
contest with a nation of similar strength in which the government should be
centralized. A people which should divide its sovereignty into fractional
powers, in the presence of the great military monarchies of Europe, would,
in my opinion, by that very act, abdicate its power, and perhaps its existence
and its name. But such is the admirable position of the New World that man
has no other enemy than himself; and that, in order to be happy and to be
free, it suffices to seek the gifts of prosperity and the knowledge of
freedom.

Chapter IX: Why The People May Strictly Be Said
To Govern In The United

States
I have hitherto examined the institutions of the United States; I have
passed their legislation in review, and I have depicted the present
characteristics of political society in that country. But a sovereign power
exists above these institutions 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 passions remain to be pointed out, as
well as the secret springs which retard, 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 institutions 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 passions 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. The majority is principally
composed of peaceful 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

Chapter Summary

Great distinction 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 or
democratic character to be met with in all parties—Struggle of General
Jackson against the Bank.

Parties In The United States

A great distinction 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 on
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.
At certain periods a nation may be oppressed by such insupportable evils
as to conceive the design of effecting a total change in its political
constitution; at other times the mischief lies still deeper, and the existence
of society itself is endangered. Such are the times of great revolutions and
of great parties. But between these epochs of misery and of confusion there
are periods during which human society seems to rest, and mankind to
make a pause. This pause is, indeed, only apparent, for time does not stop
its course for nations any more than for men; they are all advancing towards
a goal with which they are unacquainted; and we only imagine them to be
stationary when their progress escapes our observation, as men who are
going at a foot-pace seem to be standing still to those who run.
But however this may be, there are certain epochs at which the changes
that take place in the social and political constitution of nations are so slow
and so insensible that men imagine their present condition to be a final
state; and the human mind, believing itself to be firmly based upon certain
foundations, does not extend its researches beyond the horizon which it
descries. These are the times of small parties and of intrigue.

The political parties which I style great are those which cling to
principles more than to their consequences; to general, and not to especial
cases; to ideas, and not to men. These parties are usually distinguished by a
nobler character, by more generous passions, more genuine convictions, and
a more bold and open conduct than the others. In them private interest,
which always plays the chief part in political passions, is more studiously
veiled under the pretext of the public good; and it may even be sometimes
concealed from the eyes of the very persons whom it excites and impels.
Minor parties are, on the other hand, generally deficient in political faith.
As they are not sustained or dignified by a lofty purpose, they ostensibly
display the egotism of their character in their actions. They glow with a
factitious zeal; their language is vehement, but their conduct is timid and
irresolute. The means they employ are as wretched as the end at which they
aim. Hence it arises that when a calm state of things succeeds a violent
revolution, the leaders of society seem suddenly to disappear, and the
powers of the human mind to lie concealed. Society is convulsed by great
parties, by minor ones it is agitated; it is torn by the former, by the latter it
is degraded; and if these sometimes save it by a salutary perturbation, those
invariably disturb it to no good end.
America has already lost the great parties which once divided the nation;
and if her happiness is considerably increased, her morality has suffered by
their extinction. When the War of Independence was terminated, and the
foundations of the new Government were to be laid down, the nation was
divided between two opinions—two opinions which are as old as the world,
and which are perpetually to be met with under all the forms and all the
names which have ever obtained in free communities—the one tending to
limit, the other to extend indefinitely, the power of the people. The conflict
of these two opinions never assumed that degree of violence in America
which it has frequently displayed elsewhere. Both parties of the Americans
were, in fact, agreed upon the most essential points; and neither of them had
to destroy a traditionary constitution, or to overthrow the structure of
society, in order to ensure its own triumph. In neither of them, consequently,
were a great number of private interests affected by success or by defeat;
but moral principles of a high order, such as the love of equality and of
independence, were concerned in the struggle, and they sufficed to kindle
violent passions.

The party which desired to limit the power of the people endeavored to
apply its doctrines more especially to the Constitution of the Union, whence
it derived its name of Federal. The other party, which affected to be more
exclusively attached to the cause of liberty, took that of Republican.
America is a land of democracy, and the Federalists were always in a
minority; but they reckoned on their side almost all the great men who had
been called forth by the War of Independence, and their moral influence
was very considerable. Their cause was, moreover, favored by
circumstances. The ruin of the Confederation had impressed the people with
a dread of anarchy, and the Federalists did not fail to profit by this transient
disposition of the multitude. For ten or twelve years they were at the head
of affairs, and they were able to apply some, though not all, of their
principles; for the hostile current was becoming from day to day too violent
to be checked or stemmed. In 1801 the Republicans got possession of the
Government; Thomas Jefferson was named President; and he increased the
influence of their party by the weight of his celebrity, the greatness of his
talents, and the immense extent of his popularity.
The means by which the Federalists had maintained their position were
artificial, and their resources were temporary; it was by the virtues or the
talents of their leaders that they had risen to power. When the Republicans
attained to that lofty station, their opponents were overwhelmed by utter
defeat. An immense majority declared itself against the retiring party, and
the Federalists found themselves in so small a minority that they at once
despaired of their future success. From that moment the Republican or
Democratic party *a has proceeded from conquest to conquest, until it has
acquired absolute supremacy in the country. The Federalists, perceiving that
they were vanquished without resource, and isolated in the midst of the
nation, fell into two divisions, of which one joined the victorious
Republicans, and the other abandoned its rallying-point and its name. Many
years have already elapsed since they ceased to exist as a party.
a
[ [It is scarcely necessary to remark that in more recent times the signification of
these terms has changed. The Republicans are the representatives of the old
Federalists, and the Democrats of the old Republicans.—Trans. Note (1861).]]
The accession of the Federalists to power was, in my opinion, one of the most
fortunate incidents which accompanied the formation of the great American
Union; they resisted the inevitable propensities of their age and of the country.
But whether their theories were good or bad, they had the effect of being
inapplicable, as a system, to the society which they professed to govern, and that

which occurred under the auspices of Jefferson must therefore have taken place
sooner or later. But their Government gave the new republic time to acquire a
certain stability, and afterwards to support the rapid growth of the very doctrines
which they had combated. A considerable number of their principles were in
point of fact embodied in the political creed of their opponents; and the Federal
Constitution which subsists at the present day is a lasting monument of their
patriotism and their wisdom.

Great political parties are not, then, to be met with in the United States at
the present time. Parties, indeed, may be found which threaten the future
tranquillity of the Union; but there are none which seem to contest the
present form of Government or the present course of society. The parties by
which the Union is menaced do not rest upon abstract principles, but upon
temporal interests. These interests, disseminated in the provinces of so vast
an empire, may be said to constitute rival nations rather than parties. Thus,
upon a recent occasion, the North contended for the system of commercial
prohibition, and the South took up arms in favor of free trade, simply
because the North is a manufacturing and the South an agricultural district;
and that the restrictive system which was profitable to the one was
prejudicial to the other. *b
b
[ [The divisions of North and South have since acquired a far greater degree of
intensity, and the South, though conquered, still presents a formidable spirit of
opposition to Northern government.—Translator’s Note, 1875.]]

In the absence of great parties, the United States abound with lesser
controversies; and public opinion is divided into a thousand minute shades
of difference upon questions of very little moment. The pains which are
taken to create parties are inconceivable, and at the present day it is no easy
task. In the United States there is no religious animosity, because all
religion is respected, and no sect is predominant; there is no jealousy of
rank, because the people is everything, and none can contest its authority;
lastly, there is no public indigence to supply the means of agitation, because
the physical position of the country opens so wide a field to industry that
man is able to accomplish the most surprising undertakings with his own
native resources. Nevertheless, ambitious men are interested in the creation
of parties, since it is difficult to eject a person from authority upon the mere
ground that his place is coveted by others. The skill of the actors in the
political world lies therefore in the art of creating parties. A political
aspirant in the United States begins by discriminating his own interest, and

by calculating upon those interests which may be collected around and
amalgamated with it; he then contrives to discover some doctrine or some
principle which may suit the purposes of this new association, and which he
adopts in order to bring forward his party and to secure his popularity; just
as the imprimatur of a King was in former days incorporated with the
volume which it authorized, but to which it nowise belonged. When these
preliminaries are terminated, the new party is ushered into the political
world.
All the domestic controversies of the Americans at first appear to a
stranger to be so incomprehensible and so puerile that he is at a loss
whether to pity a people which takes such arrant trifles in good earnest, or
to envy the happiness which enables it to discuss them. But when he comes
to study the secret propensities which govern the factions of America, he
easily perceives that the greater part of them are more or less connected
with one or the other of those two divisions which have always existed in
free communities. The deeper we penetrate into the working of these
parties, the more do we perceive that the object of the one is to limit, and
that of the other to extend, the popular authority. I do not assert that the
ostensible end, or even that the secret aim, of American parties is to
promote the rule of aristocracy or democracy in the country; but I affirm
that aristocratic or democratic passions may easily be detected at the bottom
of all parties, and that, although they escape a superficial observation, they
are the main point and the very soul of every faction in the United States.
To quote a recent example. When the President attacked the Bank, the
country was excited and parties were formed; the well-informed classes
rallied round the Bank, the common people round the President. But it must
not be imagined that the people had formed a rational opinion upon a
question which offers so many difficulties to the most experienced
statesmen. The Bank is a great establishment which enjoys an independent
existence, and the people, accustomed to make and unmake whatsoever it
pleases, is startled to meet with this obstacle to its authority. In the midst of
the perpetual fluctuation of society the community is irritated by so
permanent an institution, and is led to attack it in order to see whether it can
be shaken and controlled, like all the other institutions of the country.
Remains Of The Aristocratic Party In The United States

Secret opposition of wealthy individuals to democracy—Their retirement
—Their taste for exclusive pleasures and for luxury at home—Their
simplicity abroad—Their affected condescension towards the people.
It sometimes happens in a people amongst which various opinions
prevail that the balance of the several parties is lost, and one of them
obtains an irresistible preponderance, overpowers all obstacles, harasses its
opponents, and appropriates all the resources of society to its own purposes.
The vanquished citizens despair of success and they conceal their
dissatisfaction in silence and in general apathy. The nation seems to be
governed by a single principle, and the prevailing party assumes the credit
of having restored peace and unanimity to the country. But this apparent
unanimity is merely a cloak to alarming dissensions and perpetual
opposition.
This is precisely what occurred in America; when the democratic party
got the upper hand, it took exclusive possession of the conduct of affairs,
and from that time the laws and the customs of society have been adapted to
its caprices. At the present day the more affluent classes of society are so
entirely removed from the direction of political affairs in the United States
that wealth, far from conferring a right to the exercise of power, is rather an
obstacle than a means of attaining to it. The wealthy members of the
community abandon the lists, through unwillingness to contend, and
frequently to contend in vain, against the poorest classes of their fellow
citizens. They concentrate all their enjoyments in the privacy of their
homes, where they occupy a rank which cannot be assumed in public; and
they constitute a private society in the State, which has its own tastes and its
own pleasures. They submit to this state of things as an irremediable evil,
but they are careful not to show that they are galled by its continuance; it is
even not uncommon to hear them laud the delights of a republican
government, and the advantages of democratic institutions when they are in
public. Next to hating their enemies, men are most inclined to flatter them.
Mark, for instance, that opulent citizen, who is as anxious as a Jew of the
Middle Ages to conceal his wealth. His dress is plain, his demeanor
unassuming; but the interior of his dwelling glitters with luxury, and none
but a few chosen guests whom he haughtily styles his equals are allowed to
penetrate into this sanctuary. No European noble is more exclusive in his
pleasures, or more jealous of the smallest advantages which his privileged

station confers upon him. But the very same individual crosses the city to
reach a dark counting-house in the centre of traffic, where every one may
accost him who pleases. If he meets his cobbler upon the way, they stop and
converse; the two citizens discuss the affairs of the State in which they have
an equal interest, and they shake hands before they part.
But beneath this artificial enthusiasm, and these obsequious attentions to
the preponderating power, it is easy to perceive that the wealthy members of
the community entertain a hearty distaste to the democratic institutions of
their country. The populace is at once the object of their scorn and of their
fears. If the maladministration of the democracy ever brings about a
revolutionary crisis, and if monarchical institutions ever become practicable
in the United States, the truth of what I advance will become obvious.
The two chief weapons which parties use in order to ensure success are
the public press and the formation of associations.

Chapter XI: Liberty Of The Press In The United
States

Chapter Summary

Difficulty of restraining the liberty of the press—Particular reasons
which some nations have to cherish this liberty—The liberty of the press a
necessary consequence of the sovereignty of the people as it is understood
in America—Violent language of the periodical press in the United States—
Propensities of the periodical press—Illustrated by the United States—
Opinion of the Americans upon the repression of the abuse of the liberty of
the press by judicial prosecutions—Reasons for which the press is less
powerful in America than in France.
Liberty Of The Press In The United States
The influence of the liberty of the press does not affect political opinions
alone, but it extends to all the opinions of men, and it modifies customs as
well as laws. In another part of this work I shall attempt to determinate the
degree of influence which the liberty of the press has exercised upon civil
society in the United States, and to point out the direction which it has
given to the ideas, as well as the tone which it has imparted to the character
and the feelings, of the Anglo-Americans, but at present I purpose simply to
examine the effects produced by the liberty of the press in the political
world.
I confess that I do not entertain that firm and complete attachment to the
liberty of the press which things that are supremely good in their very
nature are wont to excite in the mind; and I approve of it more from a
recollection of the evils it prevents than from a consideration of the
advantages it ensures.
If any one could point out an intermediate and yet a tenable position
between the complete independence and the entire subjection of the public
expression of opinion, I should perhaps be inclined to adopt it; but the
difficulty is to discover this position. If it is your intention to correct the
abuses of unlicensed printing and to restore the use of orderly language, you
may in the first instance try the offender by a jury; but if the jury acquits

him, the opinion which was that of a single individual becomes the opinion
of the country at large. Too much and too little has therefore hitherto been
done. If you proceed, you must bring the delinquent before a court of
permanent judges. But even here the cause must be heard before it can be
decided; and the very principles which no book would have ventured to
avow are blazoned forth in the pleadings, and what was obscurely hinted at
in a single composition is then repeated in a multitude of other publications.
The language in which a thought is embodied is the mere carcass of the
thought, and not the idea itself; tribunals may condemn the form, but the
sense and spirit of the work is too subtle for their authority. Too much has
still been done to recede, too little to attain your end; you must therefore
proceed. If you establish a censorship of the press, the tongue of the public
speaker will still make itself heard, and you have only increased the
mischief. The powers of thought do not rely, like the powers of physical
strength, upon the number of their mechanical agents, nor can a host of
authors be reckoned like the troops which compose an army; on the
contrary, the authority of a principle is often increased by the smallness of
the number of men by whom it is expressed. The words of a strong-minded
man, which penetrate amidst the passions of a listening assembly, have
more power than the vociferations of a thousand orators; and if it be
allowed to speak freely in any public place, the consequence is the same as
if free speaking was allowed in every village. The liberty of discourse must
therefore be destroyed as well as the liberty of the press; this is the
necessary term of your efforts; but if your object was to repress the abuses
of liberty, they have brought you to the feet of a despot. You have been led
from the extreme of independence to the extreme of subjection without
meeting with a single tenable position for shelter or repose.
There are certain nations which have peculiar reasons for cherishing the
liberty of the press, independently of the general motives which I have just
pointed out. For in certain countries which profess to enjoy the privileges of
freedom every individual agent of the Government may violate the laws
with impunity, since those whom he oppresses cannot prosecute him before
the courts of justice. In this case the liberty of the press is not merely a
guarantee, but it is the only guarantee, of their liberty and their security
which the citizens possess. If the rulers of these nations propose to abolish
the independence of the press, the people would be justified in saying: Give
us the right of prosecuting your offences before the ordinary tribunals, and

perhaps we may then waive our right of appeal to the tribunal of public
opinion.
But in the countries in which the doctrine of the sovereignty of the people
ostensibly prevails, the censorship of the press is not only dangerous, but it
is absurd. When the right of every citizen to co-operate in the government
of society is acknowledged, every citizen must be presumed to possess the
power of discriminating between the different opinions of his
contemporaries, and of appreciating the different facts from which
inferences may be drawn. The sovereignty of the people and the liberty of
the press may therefore be looked upon as correlative institutions; just as
the censorship of the press and universal suffrage are two things which are
irreconcilably opposed, and which cannot long be retained among the
institutions of the same people. Not a single individual of the twelve
millions who inhabit the territory of the United States has as yet dared to
propose any restrictions to the liberty of the press. The first newspaper over
which I cast my eyes, upon my arrival in America, contained the following
article:
In all this affair the language of Jackson has been that of a heartless
despot, solely occupied with the preservation of his own authority.
Ambition is his crime, and it will be his punishment too: intrigue is his
native element, and intrigue will confound his tricks, and will deprive him
of his power: he governs by means of corruption, and his immoral practices
will redound to his shame and confusion. His conduct in the political arena
has been that of a shameless and lawless gamester. He succeeded at the
time, but the hour of retribution approaches, and he will be obliged to
disgorge his winnings, to throw aside his false dice, and to end his days in
some retirement, where he may curse his madness at his leisure; for
repentance is a virtue with which his heart is likely to remain forever
unacquainted.
It is not uncommonly imagined in France that the virulence of the press
originates in the uncertain social condition, in the political excitement, and
the general sense of consequent evil which prevail in that country; and it is
therefore supposed that as soon as society has resumed a certain degree of
composure the press will abandon its present vehemence. I am inclined to
think that the above causes explain the reason of the extraordinary
ascendency it has acquired over the nation, but that they do not exercise

much influence upon the tone of its language. The periodical press appears
to me to be actuated by passions and propensities independent of the
circumstances in which it is placed, and the present position of America
corroborates this opinion.
America is perhaps, at this moment, the country of the whole world
which contains the fewest germs of revolution; but the press is not less
destructive in its principles than in France, and it displays the same violence
without the same reasons for indignation. In America, as in France, it
constitutes a singular power, so strangely composed of mingled good and
evil that it is at the same time indispensable to the existence of freedom, and
nearly incompatible with the maintenance of public order. Its power is
certainly much greater in France than in the United States; though nothing
is more rare in the latter country than to hear of a prosecution having been
instituted against it. The reason of this is perfectly simple: the Americans,
having once admitted the doctrine of the sovereignty of the people, apply it
with perfect consistency. It was never their intention to found a permanent
state of things with elements which undergo daily modifications; and there
is consequently nothing criminal in an attack upon the existing laws,
provided it be not attended with a violent infraction of them. They are
moreover of opinion that courts of justice are unable to check the abuses of
the press; and that as the subtilty of human language perpetually eludes the
severity of judicial analysis, offences of this nature are apt to escape the
hand which attempts to apprehend them. They hold that to act with efficacy
upon the press it would be necessary to find a tribunal, not only devoted to
the existing order of things, but capable of surmounting the influence of
public opinion; a tribunal which should conduct its proceedings without
publicity, which should pronounce its decrees without assigning its motives,
and punish the intentions even more than the language of an author.
Whosoever should have the power of creating and maintaining a tribunal of
this kind would waste his time in prosecuting the liberty of the press; for he
would be the supreme master of the whole community, and he would be as
free to rid himself of the authors as of their writings. In this question,
therefore, there is no medium between servitude and extreme license; in
order to enjoy the inestimable benefits which the liberty of the press
ensures, it is necessary to submit to the inevitable evils which it engenders.
To expect to acquire the former and to escape the latter is to cherish one of
those illusions which commonly mislead nations in their times of sickness,

when, tired with faction and exhausted by effort, they attempt to combine
hostile opinions and contrary principles upon the same soil.
The small influence of the American journals is attributable to several
reasons, amongst which are the following:
The liberty of writing, like all other liberty, is most formidable when it is
a novelty; for a people which has never been accustomed to co-operate in
the conduct of State affairs places implicit confidence in the first tribune
who arouses its attention. The Anglo-Americans have enjoyed this liberty
ever since the foundation of the settlements; moreover, the press cannot
create human passions by its own power, however skillfully it may kindle
them where they exist. In America politics are discussed with animation and
a varied activity, but they rarely touch those deep passions which are
excited whenever the positive interest of a part of the community is
impaired: but in the United States the interests of the community are in a
most prosperous condition. A single glance upon a French and an American
newspaper is sufficient to show the difference which exists between the two
nations on this head. In France the space allotted to commercial
advertisements is very limited, and the intelligence is not considerable, but
the most essential part of the journal is that which contains the discussion of
the politics of the day. In America three-quarters of the enormous sheet
which is set before the reader are filled with advertisements, and the
remainder is frequently occupied by political intelligence or trivial
anecdotes: it is only from time to time that one finds a corner devoted to
passionate discussions like those with which the journalists of France are
wont to indulge their readers.
It has been demonstrated by observation, and discovered by the innate
sagacity of the pettiest as well as the greatest of despots, that the influence
of a power is increased in proportion as its direction is rendered more
central. In France the press combines a twofold centralization; almost all its
power is centred in the same spot, and vested in the same hands, for its
organs are far from numerous. The influence of a public press thus
constituted, upon a sceptical nation, must be unbounded. It is an enemy
with which a Government may sign an occasional truce, but which it is
difficult to resist for any length of time.
Neither of these kinds of centralization exists in America. The United
States have no metropolis; the intelligence as well as the power of the

country are dispersed abroad, and instead of radiating from a point, they
cross each other in every direction; the Americans have established no
central control over the expression of opinion, any more than over the
conduct of business. These are circumstances which do not depend on
human foresight; but it is owing to the laws of the Union that there are no
licenses to be granted to printers, no securities demanded from editors as in
France, and no stamp duty as in France and formerly in England. The
consequence of this is that nothing is easier than to set up a newspaper, and
a small number of readers suffices to defray the expenses of the editor.
The number of periodical and occasional publications which appears in
the United States actually surpasses belief. The most enlightened Americans
attribute the subordinate influence of the press to this excessive
dissemination; and it is adopted as an axiom of political science in that
country that the only way to neutralize the effect of public journals is to
multiply them indefinitely. I cannot conceive that a truth which is so self-
evident should not already have been more generally admitted in Europe; it
is comprehensible that the persons who hope to bring about revolutions by
means of the press should be desirous of confining its action to a few
powerful organs, but it is perfectly incredible that the partisans of the
existing state of things, and the natural supporters of the law, should attempt
to diminish the influence of the press by concentrating its authority. The
Governments of Europe seem to treat the press with the courtesy of the
knights of old; they are anxious to furnish it with the same central power
which they have found to be so trusty a weapon, in order to enhance the
glory of their resistance to its attacks.
In America there is scarcely a hamlet which has not its own newspaper. It
may readily be imagined that neither discipline nor unity of design can be
communicated to so multifarious a host, and each one is consequently led to
fight under his own standard. All the political journals of the United States
are indeed arrayed on the side of the administration or against it; but they
attack and defend in a thousand different ways. They cannot succeed in
forming those great currents of opinion which overwhelm the most solid
obstacles. This division of the influence of the press produces a variety of
other consequences which are scarcely less remarkable. The facility with
which journals can be established induces a multitude of individuals to take
a part in them; but as the extent of competition precludes the possibility of
considerable profit, the most distinguished classes of society are rarely led

to engage in these undertakings. But such is the number of the public prints
that, even if they were a source of wealth, writers of ability could not be
found to direct them all. The journalists of the United States are usually
placed in a very humble position, with a scanty education and a vulgar turn
of mind. The will of the majority is the most general of laws, and it
establishes certain habits which form the characteristics of each peculiar
class of society; thus it dictates the etiquette practised at courts and the
etiquette of the bar. The characteristics of the French journalist consist in a
violent, but frequently an eloquent and lofty, manner of discussing the
politics of the day; and the exceptions to this habitual practice are only
occasional. The characteristics of the American journalist consist in an open
and coarse appeal to the passions of the populace; and he habitually
abandons the principles of political science to assail the characters of
individuals, to track them into private life, and disclose all their weaknesses
and errors.
Nothing can be more deplorable than this abuse of the powers of thought;
I shall have occasion to point out hereafter the influence of the newspapers
upon the taste and the morality of the American people, but my present
subject exclusively concerns the political world. It cannot be denied that the
effects of this extreme license of the press tend indirectly to the
maintenance of public order. The individuals who are already in the
possession of a high station in the esteem of their fellow-citizens are afraid
to write in the newspapers, and they are thus deprived of the most powerful
instrument which they can use to excite the passions of the multitude to
their own advantage. *a
a
[ They only write in the papers when they choose to address the people in their
own name; as, for instance, when they are called upon to repel calumnious
imputations, and to correct a misstatement of facts.]

The personal opinions of the editors have no kind of weight in the eyes of
the public: the only use of a journal is, that it imparts the knowledge of
certain facts, and it is only by altering or distorting those facts that a
journalist can contribute to the support of his own views.
But although the press is limited to these resources, its influence in
America is immense. It is the power which impels the circulation of
political life through all the districts of that vast territory. Its eye is

constantly open to detect the secret springs of political designs, and to
summon the leaders of all parties to the bar of public opinion. It rallies the
interests of the community round certain principles, and it draws up the
creed which factions adopt; for it affords a means of intercourse between
parties which hear, and which address each other without ever having been
in immediate contact. When a great number of the organs of the press adopt
the same line of conduct, their influence becomes irresistible; and public
opinion, when it is perpetually assailed from the same side, eventually
yields to the attack. In the United States each separate journal exercises but
little authority, but the power of the periodical press is only second to that
of the people. *b
b
[ See Appendix, P.]

The opinions established in the United States under the empire of the
liberty of the press are frequently more firmly rooted than those which are
formed elsewhere under the sanction of a censor.
In the United States the democracy perpetually raises fresh individuals to
the conduct of public affairs; and the measures of the administration are
consequently seldom regulated by the strict rules of consistency or of order.
But the general principles of the Government are more stable, and the
opinions most prevalent in society are generally more durable than in many
other countries. When once the Americans have taken up an idea, whether it
be well or ill founded, nothing is more difficult than to eradicate it from
their minds. The same tenacity of opinion has been observed in England,
where, for the last century, greater freedom of conscience and more
invincible prejudices have existed than in all the other countries of Europe.
I attribute this consequence to a cause which may at first sight appear to
have a very opposite tendency, namely, to the liberty of the press. The
nations amongst which this liberty exists are as apt to cling to their opinions
from pride as from conviction. They cherish them because they hold them
to be just, and because they exercised their own free-will in choosing them;
and they maintain them not only because they are true, but because they are
their own. Several other reasons conduce to the same end.
It was remarked by a man of genius that “ignorance lies at the two ends
of knowledge.” Perhaps it would have been more correct to have said, that
absolute convictions are to be met with at the two extremities, and that

doubt lies in the middle; for the human intellect may be considered in three
distinct states, which frequently succeed one another. A man believes
implicitly, because he adopts a proposition without inquiry. He doubts as
soon as he is assailed by the objections which his inquiries may have
aroused. But he frequently succeeds in satisfying these doubts, and then he
begins to believe afresh: he no longer lays hold on a truth in its most
shadowy and uncertain form, but he sees it clearly before him, and he
advances onwards by the light it gives him. *c
c
[ It may, however, be doubted whether this rational and self-guiding conviction
arouses as much fervor or enthusiastic devotedness in men as their first
dogmatical belief.]

When the liberty of the press acts upon men who are in the first of these
three states, it does not immediately disturb their habit of believing
implicitly without investigation, but it constantly modifies the objects of
their intuitive convictions. The human mind continues to discern but one
point upon the whole intellectual horizon, and that point is in continual
motion. Such are the symptoms of sudden revolutions, and of the
misfortunes which are sure to befall those generations which abruptly adopt
the unconditional freedom of the press.
The circle of novel ideas is, however, soon terminated; the touch of
experience is upon them, and the doubt and mistrust which their uncertainty
produces become universal. We may rest assured that the majority of
mankind will either believe they know not wherefore, or will not know
what to believe. Few are the beings who can ever hope to attain to that state
of rational and independent conviction which true knowledge can beget in
defiance of the attacks of doubt.
It has been remarked that in times of great religious fervor men
sometimes change their religious opinions; whereas in times of general
scepticism everyone clings to his own persuasion. The same thing takes
place in politics under the liberty of the press. In countries where all the
theories of social science have been contested in their turn, the citizens who
have adopted one of them stick to it, not so much because they are assured
of its excellence, as because they are not convinced of the superiority of any
other. In the present age men are not very ready to die in defence of their

opinions, but they are rarely inclined to change them; and there are fewer
martyrs as well as fewer apostates.
Another still more valid reason may yet be adduced: when no abstract
opinions are looked upon as certain, men cling to the mere propensities and
external interests of their position, which are naturally more tangible and
more permanent than any opinions in the world.
It is not a question of easy solution whether aristocracy or democracy is
most fit to govern a country. But it is certain that democracy annoys one
part of the community, and that aristocracy oppresses another part. When
the question is reduced to the simple expression of the struggle between
poverty and wealth, the tendency of each side of the dispute becomes
perfectly evident without further controversy.

Chapter XII: Political Associations In The United
States

Chapter Summary

Daily use which the Anglo-Americans make of the right of association—
Three kinds of political associations—In what manner the Americans apply
the representative system to associations—Dangers resulting to the State—
Great Convention of 1831 relative to the Tariff—Legislative character of
this Convention—Why the unlimited exercise of the right of association is
less dangerous in the United States than elsewhere—Why it may be looked
upon as necessary—Utility of associations in a democratic people.
Political Associations In The United States
In no country in the world has the principle of association been more
successfully used, or more unsparingly applied to a multitude of different
objects, than in America. Besides the permanent associations which are
established by law under the names of townships, cities, and counties, a vast
number of others are formed and maintained by the agency of private
individuals.
The citizen of the United States is taught from his earliest infancy to rely
upon his own exertions in order to resist the evils and the difficulties of life;
he looks upon social authority with an eye of mistrust and anxiety, and he
only claims its assistance when he is quite unable to shift without it. This
habit may even be traced in the schools of the rising generation, where the
children in their games are wont to submit to rules which they have
themselves established, and to punish misdemeanors which they have
themselves defined. The same spirit pervades every act of social life. If a
stoppage occurs in a thoroughfare, and the circulation of the public is
hindered, the neighbors immediately constitute a deliberative body; and this
extemporaneous assembly gives rise to an executive power which remedies
the inconvenience before anybody has thought of recurring to an authority
superior to that of the persons immediately concerned. If the public
pleasures are concerned, an association is formed to provide for the
splendor and the regularity of the entertainment. Societies are formed to
resist enemies which are exclusively of a moral nature, and to diminish the

vice of intemperance: in the United States associations are established to
promote public order, commerce, industry, morality, and religion; for there
is no end which the human will, seconded by the collective exertions of
individuals, despairs of attaining.
I shall hereafter have occasion to show the effects of association upon the
course of society, and I must confine myself for the present to the political
world. When once the right of association is recognized, the citizens may
employ it in several different ways.
An association consists simply in the public assent which a number of
individuals give to certain doctrines, and in the engagement which they
contract to promote the spread of those doctrines by their exertions. The
right of association with these views is very analogous to the liberty of
unlicensed writing; but societies thus formed possess more authority than
the press. When an opinion is represented by a society, it necessarily
assumes a more exact and explicit form. It numbers its partisans, and
compromises their welfare in its cause: they, on the other hand, become
acquainted with each other, and their zeal is increased by their number. An
association unites the efforts of minds which have a tendency to diverge in
one single channel, and urges them vigorously towards one single end
which it points out.
The second degree in the right of association is the power of meeting.
When an association is allowed to establish centres of action at certain
important points in the country, its activity is increased and its influence
extended. Men have the opportunity of seeing each other; means of
execution are more readily combined, and opinions are maintained with a
degree of warmth and energy which written language cannot approach.
Lastly, in the exercise of the right of political association, there is a third
degree: the partisans of an opinion may unite in electoral bodies, and
choose delegates to represent them in a central assembly. This is, properly
speaking, the application of the representative system to a party.
Thus, in the first instance, a society is formed between individuals
professing the same opinion, and the tie which keeps it together is of a
purely intellectual nature; in the second case, small assemblies are formed
which only represent a fraction of the party. Lastly, in the third case, they
constitute a separate nation in the midst of the nation, a government within
the Government. Their delegates, like the real delegates of the majority,

represent the entire collective force of their party; and they enjoy a certain
degree of that national dignity and great influence which belong to the
chosen representatives of the people. It is true that they have not the right of
making the laws, but they have the power of attacking those which are in
being, and of drawing up beforehand those which they may afterwards
cause to be adopted.
If, in a people which is imperfectly accustomed to the exercise of
freedom, or which is exposed to violent political passions, a deliberating
minority, which confines itself to the contemplation of future laws, be
placed in juxtaposition to the legislative majority, I cannot but believe that
public tranquillity incurs very great risks in that nation. There is doubtless a
very wide difference between proving that one law is in itself better than
another and proving that the former ought to be substituted for the latter.
But the imagination of the populace is very apt to overlook this difference,
which is so apparent to the minds of thinking men. It sometimes happens
that a nation is divided into two nearly equal parties, each of which affects
to represent the majority. If, in immediate contiguity to the directing power,
another power be established, which exercises almost as much moral
authority as the former, it is not to be believed that it will long be content to
speak without acting; or that it will always be restrained by the abstract
consideration of the nature of associations which are meant to direct but not
to enforce opinions, to suggest but not to make the laws.
The more we consider the independence of the press in its principal
consequences, the more are we convinced that it is the chief and, so to
speak, the constitutive element of freedom in the modern world. A nation
which is determined to remain free is therefore right in demanding the
unrestrained exercise of this independence. But the unrestrained liberty of
political association cannot be entirely assimilated to the liberty of the
press. The one is at the same time less necessary and more dangerous than
the other. A nation may confine it within certain limits without forfeiting
any part of its self-control; and it may sometimes be obliged to do so in
order to maintain its own authority.
In America the liberty of association for political purposes is unbounded.
An example will show in the clearest light to what an extent this privilege is
tolerated.

The question of the tariff, or of free trade, produced a great manifestation
of party feeling in America; the tariff was not only a subject of debate as a
matter of opinion, but it exercised a favorable or a prejudicial influence
upon several very powerful interests of the States. The North attributed a
great portion of its prosperity, and the South all its sufferings, to this
system; insomuch that for a long time the tariff was the sole source of the
political animosities which agitated the Union.
In 1831, when the dispute was raging with the utmost virulence, a private
citizen of Massachusetts proposed to all the enemies of the tariff, by means
of the public prints, to send delegates to Philadelphia in order to consult
together upon the means which were most fitted to promote freedom of
trade. This proposal circulated in a few days from Maine to New Orleans by
the power of the printing-press: the opponents of the tariff adopted it with
enthusiasm; meetings were formed on all sides, and delegates were named.
The majority of these individuals were well known, and some of them had
earned a considerable degree of celebrity. South Carolina alone, which
afterwards took up arms in the same cause, sent sixty-three delegates. On
October 1, 1831, this assembly, which according to the American custom
had taken the name of a Convention, met at Philadelphia; it consisted of
more than two hundred members. Its debates were public, and they at once
assumed a legislative character; the extent of the powers of Congress, the
theories of free trade, and the different clauses of the tariff, were discussed
in turn. At the end of ten days’ deliberation the Convention broke up, after
having published an address to the American people, in which it declared:
I. That Congress had not the right of making a tariff, and that the existing
tariff was unconstitutional;
II. That the prohibition of free trade was prejudicial to the interests of all
nations, and to that of the American people in particular.
It must be acknowledged that the unrestrained liberty of political
association has not hitherto produced, in the United States, those fatal
consequences which might perhaps be expected from it elsewhere. The
right of association was imported from England, and it has always existed
in America; so that the exercise of this privilege is now amalgamated with
the manners and customs of the people. At the present time the liberty of
association is become a necessary guarantee against the tyranny of the
majority. In the United States, as soon as a party is become preponderant,

all public authority passes under its control; its private supporters occupy all
the places, and have all the force of the administration at their disposal. As
the most distinguished partisans of the other side of the question are unable
to surmount the obstacles which exclude them from power, they require
some means of establishing themselves upon their own basis, and of
opposing the moral authority of the minority to the physical power which
domineers over it. Thus a dangerous expedient is used to obviate a still
more formidable danger.
The omnipotence of the majority appears to me to present such extreme
perils to the American Republics that the dangerous measure which is used
to repress it seems to be more advantageous than prejudicial. And here I am
about to advance a proposition which may remind the reader of what I said
before in speaking of municipal freedom: There are no countries in which
associations are more needed, to prevent the despotism of faction or the
arbitrary power of a prince, than those which are democratically
constituted. In aristocratic nations the body of the nobles and the more
opulent part of the community are in themselves natural associations, which
act as checks upon the abuses of power. In countries in which these
associations do not exist, if private individuals are unable to create an
artificial and a temporary substitute for them, I can imagine no permanent
protection against the most galling tyranny; and a great people may be
oppressed by a small faction, or by a single individual, with impunity.
The meeting of a great political Convention (for there are Conventions of
all kinds), which may frequently become a necessary measure, is always a
serious occurrence, even in America, and one which is never looked
forward to, by the judicious friends of the country, without alarm. This was
very perceptible in the Convention of 1831, at which the exertions of all the
most distinguished members of the Assembly tended to moderate its
language, and to restrain the subjects which it treated within certain limits.
It is probable, in fact, that the Convention of 1831 exercised a very great
influence upon the minds of the malcontents, and prepared them for the
open revolt against the commercial laws of the Union which took place in
1832.
It cannot be denied that the unrestrained liberty of association for
political purposes is the privilege which a people is longest in learning how
to exercise. If it does not throw the nation into anarchy, it perpetually

augments the chances of that calamity. On one point, however, this perilous
liberty offers a security against dangers of another kind; in countries where
associations are free, secret societies are unknown. In America there are
numerous factions, but no conspiracies.
Different ways in which the right of association is understood in Europe
and in the United States—Different use which is made of it.
The most natural privilege of man, next to the right of acting for himself,
is that of combining his exertions with those of his fellow-creatures, and of
acting in common with them. I am therefore led to conclude that the right of
association is almost as inalienable as the right of personal liberty. No
legislator can attack it without impairing the very foundations of society.
Nevertheless, if the liberty of association is a fruitful source of advantages
and prosperity to some nations, it may be perverted or carried to excess by
others, and the element of life may be changed into an element of
destruction. A comparison of the different methods which associations
pursue in those countries in which they are managed with discretion, as well
as in those where liberty degenerates into license, may perhaps be thought
useful both to governments and to parties.
The greater part of Europeans look upon an association as a weapon
which is to be hastily fashioned, and immediately tried in the conflict. A
society is formed for discussion, but the idea of impending action prevails
in the minds of those who constitute it: it is, in fact, an army; and the time
given to parley serves to reckon up the strength and to animate the courage
of the host, after which they direct their march against the enemy.
Resources which lie within the bounds of the law may suggest themselves
to the persons who compose it as means, but never as the only means, of
success.
Such, however, is not the manner in which the right of association is
understood in the United States. In America the citizens who form the
minority associate, in order, in the first place, to show their numerical
strength, and so to diminish the moral authority of the majority; and, in the
second place, to stimulate competition, and to discover those arguments
which are most fitted to act upon the majority; for they always entertain
hopes of drawing over their opponents to their own side, and of afterwards
disposing of the supreme power in their name. Political associations in the
United States are therefore peaceable in their intentions, and strictly legal in

the means which they employ; and they assert with perfect truth that they
only aim at success by lawful expedients.
The difference which exists between the Americans and ourselves
depends on several causes. In Europe there are numerous parties so
diametrically opposed to the majority that they can never hope to acquire its
support, and at the same time they think that they are sufficiently strong in
themselves to struggle and to defend their cause. When a party of this kind
forms an association, its object is, not to conquer, but to fight. In America
the individuals who hold opinions very much opposed to those of the
majority are no sort of impediment to its power, and all other parties hope
to win it over to their own principles in the end. The exercise of the right of
association becomes dangerous in proportion to the impossibility which
excludes great parties from acquiring the majority. In a country like the
United States, in which the differences of opinion are mere differences of
hue, the right of association may remain unrestrained without evil
consequences. The inexperience of many of the European nations in the
enjoyment of liberty leads them only to look upon the liberty of association
as a right of attacking the Government. The first notion which presents
itself to a party, as well as to an individual, when it has acquired a
consciousness of its own strength, is that of violence: the notion of
persuasion arises at a later period and is only derived from experience. The
English, who are divided into parties which differ most essentially from
each other, rarely abuse the right of association, because they have long
been accustomed to exercise it. In France the passion for war is so intense
that there is no undertaking so mad, or so injurious to the welfare of the
State, that a man does not consider himself honored in defending it, at the
risk of his life.
But perhaps the most powerful of the causes which tend to mitigate the
excesses of political association in the United States is Universal Suffrage.
In countries in which universal suffrage exists the majority is never
doubtful, because neither party can pretend to represent that portion of the
community which has not voted. The associations which are formed are
aware, as well as the nation at large, that they do not represent the majority:
this is, indeed, a condition inseparable from their existence; for if they did
represent the preponderating power, they would change the law instead of
soliciting its reform. The consequence of this is that the moral influence of

the Government which they attack is very much increased, and their own
power is very much enfeebled.
In Europe there are few associations which do not affect to represent the
majority, or which do not believe that they represent it. This conviction or
this pretension tends to augment their force amazingly, and contributes no
less to legalize their measures. Violence may seem to be excusable in
defence of the cause of oppressed right. Thus it is, in the vast labyrinth of
human laws, that extreme liberty sometimes corrects the abuses of license,
and that extreme democracy obviates the dangers of democratic
government. In Europe, associations consider themselves, in some degree,
as the legislative and executive councils of the people, which is unable to
speak for itself. In America, where they only represent a minority of the
nation, they argue and they petition.
The means which the associations of Europe employ are in accordance
with the end which they propose to obtain. As the principal aim of these
bodies is to act, and not to debate, to fight rather than to persuade, they are
naturally led to adopt a form of organization which differs from the
ordinary customs of civil bodies, and which assumes the habits and the
maxims of military life. They centralize the direction of their resources as
much as possible, and they intrust the power of the whole party to a very
small number of leaders.
The members of these associations respond to a watchword, like soldiers
on duty; they profess the doctrine of passive obedience; say rather, that in
uniting together they at once abjure the exercise of their own judgment and
free will; and the tyrannical control which these societies exercise is often
far more insupportable than the authority possessed over society by the
Government which they attack. Their moral force is much diminished by
these excesses, and they lose the powerful interest which is always excited
by a struggle between oppressors and the oppressed. The man who in given
cases consents to obey his fellows with servility, and who submits his
activity and even his opinions to their control, can have no claim to rank as
a free citizen.
The Americans have also established certain forms of government which
are applied to their associations, but these are invariably borrowed from the
forms of the civil administration. The independence of each individual is
formally recognized; the tendency of the members of the association points,

as it does in the body of the community, towards the same end, but they are
not obliged to follow the same track. No one abjures the exercise of his
reason and his free will; but every one exerts that reason and that will for
the benefit of a common undertaking.

Chapter XIII: Government Of The Democracy In
America—Part I

I am well aware of the difficulties which attend this part of my subject,
but although every expression which I am about to make use of may clash,
upon some one point, with the feelings of the different parties which divide
my country, I shall speak my opinion with the most perfect openness.
In Europe we are at a loss how to judge the true character and the more
permanent propensities of democracy, because in Europe two conflicting
principles exist, and we do not know what to attribute to the principles
themselves, and what to refer to the passions which they bring into
collision. Such, however, is not the case in America; there the people reigns
without any obstacle, and it has no perils to dread and no injuries to avenge.
In America, democracy is swayed by its own free propensities; its course is
natural and its activity is unrestrained; the United States consequently
afford the most favorable opportunity of studying its real character. And to
no people can this inquiry be more vitally interesting than to the French
nation, which is blindly driven onwards by a daily and irresistible impulse
towards a state of things which may prove either despotic or republican, but
which will assuredly be democratic.
Universal Suffrage
I have already observed that universal suffrage has been adopted in all
the States of the Union; it consequently occurs amongst different
populations which occupy very different positions in the scale of society. I
have had opportunities of observing its effects in different localities, and
amongst races of men who are nearly strangers to each other by their
language, their religion, and their manner of life; in Louisiana as well as in
New England, in Georgia and in Canada. I have remarked that Universal
Suffrage is far from producing in America either all the good or all the evil

consequences which are assigned to it in Europe, and that its effects differ
very widely from those which are usually attributed to it.
Choice Of The People, And Instinctive Preferences Of The American
Democracy
In the United States the most able men are rarely placed at the head of
affairs—Reason of this peculiarity—The envy which prevails in the lower
orders of France against the higher classes is not a French, but a purely
democratic sentiment—For what reason the most distinguished men in
America frequently seclude themselves from public affairs.
Many people in Europe are apt to believe without saying it, or to say
without believing it, that one of the great advantages of universal suffrage
is, that it entrusts the direction of public affairs to men who are worthy of
the public confidence. They admit that the people is unable to govern for
itself, but they aver that it is always sincerely disposed to promote the
welfare of the State, and that it instinctively designates those persons who
are animated by the same good wishes, and who are the most fit to wield
the supreme authority. I confess that the observations I made in America by
no means coincide with these opinions. On my arrival in the United States I
was surprised to find so much distinguished talent among the subjects, and
so little among the heads of the Government. It is a well-authenticated fact,
that at the present day the most able men in the United States are very rarely
placed at the head of affairs; and it must be acknowledged that such has
been the result in proportion as democracy has outstepped all its former
limits. The race of American statesmen has evidently dwindled most
remarkably in the course of the last fifty years.
Several causes may be assigned to this phenomenon. It is impossible,
notwithstanding the most strenuous exertions, to raise the intelligence of the
people above a certain level. Whatever may be the facilities of acquiring
information, whatever may be the profusion of easy methods and of cheap
science, the human mind can never be instructed and educated without
devoting a considerable space of time to those objects.
The greater or the lesser possibility of subsisting without labor is
therefore the necessary boundary of intellectual improvement. This
boundary is more remote in some countries and more restricted in others;
but it must exist somewhere as long as the people is constrained to work in
order to procure the means of physical subsistence, that is to say, as long as

it retains its popular character. It is therefore quite as difficult to imagine a
State in which all the citizens should be very well informed as a State in
which they should all be wealthy; these two difficulties may be looked upon
as correlative. It may very readily be admitted that the mass of the citizens
are sincerely disposed to promote the welfare of their country; nay more, it
may even be allowed that the lower classes are less apt to be swayed by
considerations of personal interest than the higher orders: but it is always
more or less impossible for them to discern the best means of attaining the
end which they desire with sincerity. Long and patient observation, joined
to a multitude of different notions, is required to form a just estimate of the
character of a single individual; and can it be supposed that the vulgar have
the power of succeeding in an inquiry which misleads the penetration of
genius itself? The people has neither the time nor the means which are
essential to the prosecution of an investigation of this kind: its conclusions
are hastily formed from a superficial inspection of the more prominent
features of a question. Hence it often assents to the clamor of a mountebank
who knows the secret of stimulating its tastes, while its truest friends
frequently fail in their exertions.
Moreover, the democracy is not only deficient in that soundness of
judgment which is necessary to select men really deserving of its
confidence, but it has neither the desire nor the inclination to find them out.
It cannot be denied that democratic institutions have a very strong tendency
to promote the feeling of envy in the human heart; not so much because
they afford to every one the means of rising to the level of any of his
fellow-citizens, as because those means perpetually disappoint the persons
who employ them. Democratic institutions awaken and foster a passion for
equality which they can never entirely satisfy. This complete equality
eludes the grasp of the people at the very moment at which it thinks to hold
it fast, and “flies,” as Pascal says, “with eternal flight”; the people is excited
in the pursuit of an advantage, which is more precious because it is not
sufficiently remote to be unknown, or sufficiently near to be enjoyed. The
lower orders are agitated by the chance of success, they are irritated by its
uncertainty; and they pass from the enthusiasm of pursuit to the exhaustion
of ill-success, and lastly to the acrimony of disappointment. Whatever
transcends their own limits appears to be an obstacle to their desires, and
there is no kind of superiority, however legitimate it may be, which is not
irksome in their sight.

It has been supposed that the secret instinct which leads the lower orders
to remove their superiors as much as possible from the direction of public
affairs is peculiar to France. This, however, is an error; the propensity to
which I allude is not inherent in any particular nation, but in democratic
institutions in general; and although it may have been heightened by
peculiar political circumstances, it owes its origin to a higher cause.
In the United States the people is not disposed to hate the superior classes
of society; but it is not very favorably inclined towards them, and it
carefully excludes them from the exercise of authority. It does not entertain
any dread of distinguished talents, but it is rarely captivated by them; and it
awards its approbation very sparingly to such as have risen without the
popular support.
Whilst the natural propensities of democracy induce the people to reject
the most distinguished citizens as its rulers, these individuals are no less apt
to retire from a political career in which it is almost impossible to retain
their independence, or to advance without degrading themselves. This
opinion has been very candidly set forth by Chancellor Kent, who says, in
speaking with great eulogiums of that part of the Constitution which
empowers the Executive to nominate the judges: “It is indeed probable that
the men who are best fitted to discharge the duties of this high office would
have too much reserve in their manners, and too much austerity in their
principles, for them to be returned by the majority at an election where
universal suffrage is adopted.” Such were the opinions which were printed
without contradiction in America in the year 1830!
I hold it to be sufficiently demonstrated that universal suffrage is by no
means a guarantee of the wisdom of the popular choice, and that, whatever
its advantages may be, this is not one of them.
Causes Which May Partly Correct These Tendencies Of The Democracy
Contrary effects produced on peoples as well as on individuals by great
dangers—Why so many distinguished men stood at the head of affairs in
America fifty years ago—Influence which the intelligence and the manners
of the people exercise upon its choice—Example of New England—States
of the Southwest—Influence of certain laws upon the choice of the people
—Election by an elected body—Its effects upon the composition of the
Senate.

When a State is threatened by serious dangers, the people frequently
succeeds in selecting the citizens who are the most able to save it. It has
been observed that man rarely retains his customary level in presence of
very critical circumstances; he rises above or he sinks below his usual
condition, and the same thing occurs in nations at large. Extreme perils
sometimes quench the energy of a people instead of stimulating it; they
excite without directing its passions, and instead of clearing they confuse its
powers of perception. The Jews deluged the smoking ruins of their temple
with the carnage of the remnant of their host. But it is more common, both
in the case of nations and in that of individuals, to find extraordinary virtues
arising from the very imminence of the danger. Great characters are then
thrown into relief, as edifices which are concealed by the gloom of night are
illuminated by the glare of a conflagration. At those dangerous times genius
no longer abstains from presenting itself in the arena; and the people,
alarmed by the perils of its situation, buries its envious passions in a short
oblivion. Great names may then be drawn from the balloting-box.
I have already observed that the American statesmen of the present day
are very inferior to those who stood at the head of affairs fifty years ago.
This is as much a consequence of the circumstances as of the laws of the
country. When America was struggling in the high cause of independence to
throw off the yoke of another country, and when it was about to usher a new
nation into the world, the spirits of its inhabitants were roused to the height
which their great efforts required. In this general excitement the most
distinguished men were ready to forestall the wants of the community, and
the people clung to them for support, and placed them at its head. But
events of this magnitude are rare, and it is from an inspection of the
ordinary course of affairs that our judgment must be formed.
If passing occurrences sometimes act as checks upon the passions of
democracy, the intelligence and the manners of the community exercise an
influence which is not less powerful and far more permanent. This is
extremely perceptible in the United States.
In New England the education and the liberties of the communities were
engendered by the moral and religious principles of their founders. Where
society has acquired a sufficient degree of stability to enable it to hold
certain maxims and to retain fixed habits, the lower orders are accustomed
to respect intellectual superiority and to submit to it without complaint,

although they set at naught all those privileges which wealth and birth have
introduced among mankind. The democracy in New England consequently
makes a more judicious choice than it does elsewhere.
But as we descend towards the South, to those States in which the
constitution of society is more modern and less strong, where instruction is
less general, and where the principles of morality, of religion, and of liberty
are less happily combined, we perceive that the talents and the virtues of
those who are in authority become more and more rare.
Lastly, when we arrive at the new South-western States, in which the
constitution of society dates but from yesterday, and presents an
agglomeration of adventurers and speculators, we are amazed at the persons
who are invested with public authority, and we are led to ask by what force,
independent of the legislation and of the men who direct it, the State can be
protected, and society be made to flourish.
There are certain laws of a democratic nature which contribute,
nevertheless, to correct, in some measure, the dangerous tendencies of
democracy. On entering the House of Representatives of Washington one is
struck by the vulgar demeanor of that great assembly. The eye frequently
does not discover a man of celebrity within its walls. Its members are
almost all obscure individuals whose names present no associations to the
mind: they are mostly village lawyers, men in trade, or even persons
belonging to the lower classes of society. In a country in which education is
very general, it is said that the representatives of the people do not always
know how to write correctly.
At a few yards’ distance from this spot is the door of the Senate, which
contains within a small space a large proportion of the celebrated men of
America. Scarcely an individual is to be perceived in it who does not recall
the idea of an active and illustrious career: the Senate is composed of
eloquent advocates, distinguished generals, wise magistrates, and statesmen
of note, whose language would at all times do honor to the most remarkable
parliamentary debates of Europe.
What then is the cause of this strange contrast, and why are the most able
citizens to be found in one assembly rather than in the other? Why is the
former body remarkable for its vulgarity and its poverty of talent, whilst the
latter seems to enjoy a monopoly of intelligence and of sound judgment?
Both of these assemblies emanate from the people; both of them are chosen

by universal suffrage; and no voice has hitherto been heard to assert in
America that the Senate is hostile to the interests of the people. From what
cause, then, does so startling a difference arise? The only reason which
appears to me adequately to account for it is, that the House of
Representatives is elected by the populace directly, and that the Senate is
elected by elected bodies. The whole body of the citizens names the
legislature of each State, and the Federal Constitution converts these
legislatures into so many electoral bodies, which return the members of the
Senate. The senators are elected by an indirect application of universal
suffrage; for the legislatures which name them are not aristocratic or
privileged bodies which exercise the electoral franchise in their own right;
but they are chosen by the totality of the citizens; they are generally elected
every year, and new members may constantly be chosen who will employ
their electoral rights in conformity with the wishes of the public. But this
transmission of the popular authority through an assembly of chosen men
operates an important change in it, by refining its discretion and improving
the forms which it adopts. Men who are chosen in this manner accurately
represent the majority of the nation which governs them; but they represent
the elevated thoughts which are current in the community, the propensities
which prompt its nobler actions, rather than the petty passions which
disturb or the vices which disgrace it.
The time may be already anticipated at which the American Republics
will be obliged to introduce the plan of election by an elected body more
frequently into their system of representation, or they will incur no small
risk of perishing miserably amongst the shoals of democracy.
And here I have no scruple in confessing that I look upon this peculiar
system of election as the only means of bringing the exercise of political
power to the level of all classes of the people. Those thinkers who regard
this institution as the exclusive weapon of a party, and those who fear, on
the other hand, to make use of it, seem to me to fall into as great an error in
the one case as in the other.
Influence Which The American Democracy Has Exercised On The Laws
Relating To Elections
When elections are rare, they expose the State to a violent crisis—When
they are frequent, they keep up a degree of feverish excitement—The