American Institutions and Their Influence by Alexis de Tocqueville et al

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

[145] In order to diminish the number of these suits, it was decided
that in a great many federal causes, the courts of the states should be
empowered to decide conjointly with those of the Union, the losing party
having then a right of appeal to the supreme court of the United States.
The supreme court of Virginia contested the right of the supreme court
of the United States to judge an appeal from its decisions, but
unsuccessfully. See Kent's Commentaries, vol. i., pp. 350, 370, _et
seq._; Story's Commentaries, p. 646; and "The Organic Law of the United
States," vol. i., p. 35

[146] The 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. This
question was most elaborately considered in the case of _Chisholme_ v.
_Georgia_, and was decided by the majority of the supreme court in the
affirmative. The decision created general alarm among the states, and an
amendment was proposed and ratified by which the power was entirely
taken away so far as it regards suits brought against a state. See
Story's Commentaries, p. 624, or in the large edition, § 1677.

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

[148] This principle was in some measure restricted by the introduction
of the several states as independent powers into the senate, and by
allowing them to vote separately in the house of representatives when
the president is elected by that body; but these are exceptions, and the
contrary principle is the rule.

[149] It is perfectly clear, says Mr. Story (Commentaries, p. 503, or in
the large edition, § 1379), that any law which enlarges, abridges, or in
any manner changes the intention of the parties, resulting from the
stipulations in the contract, necessarily impairs it. He gives in the
same place a very long and careful definition of what is understood by a
contract in federal jurisprudence. A grant made by the state to a
private individual, and accepted by him, is a contract, and cannot be
revoked by any future law. A charter granted by the state to a company
is a contract, and equally binding to the state as to the grantee. The
clause of the constitution here referred to ensures, therefore, the
existence of a great part of acquired rights, but not of all. Property
may legally be held, though it may not have passed into the possessor's
hands by means of a contract; and its possession is an acquired right,
not guaranteed by the federal constitution.

[150] A remarkable instance of this is given by Mr. Story (p. 508, or in
the large edition, § 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, sect. 10), and that the amendatory
act was utterly void, as impairing the obligation of that charter. The
college was deemed, like other colleges of private foundation, to be a
private eleemosynary 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."

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

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

[153] At this time Alexander Hamilton, who was one of the 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 purpose 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 intrust the managements 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
would always _reason right_, about the _means_ of promoting it. They
know from experience that they sometimes err; and the wonder is that
they so seldom err as they do, beset, as they continually are, by the
wiles of parasites and sycophants; by the snares of the ambitious, the
avaricious, the desperate; by the artifices of men who possess their
confidence more than they deserve it; and of those who seek to possess
rather than to deserve it. When occasions present themselves in which
the interests of the people are at variance with their inclinations, it
is the duty of persons whom they have appointed to be the guardians of
those interests, to withstand the temporary delusion, in order to give
them time and opportunity for more cool and sedate reflection. Instances
might be cited in which a conduct of this kind has saved the people from
very fatal consequences of their own mistakes, and has procured lasting
monuments of their gratitude to the men who had courage and magnanimity
enough to serve at the peril of their displeasure."

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

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

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

[157] See the Mexican constitution of 1824.

[158] 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 name of the purchasers
from the state of Ohio, and the purchasers from the Union, and not in
the names of Ohio and the Union. But what would become of this legal
fiction if the federal purchaser was confirmed in his right by the
courts of the Union, while the other competitor was ordered to retain
possession by the tribunals of the state of Ohio?

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

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

Not only in theory, but in fact, a republican government must be
administered by the people themselves. They, and they alone, must
execute the laws. And hence, the first principles in such governments,
that on which all others depend, and without which no other can exist,
is and must be, obedience to the existing laws at all times and under
all circumstances. It is the vital condition of the social compact. He
who claims a dispensing power for himself, by which he suspends the
operation of the law in his own case, is worse than a usurper, for he
not only tramples under foot the constitution of his country, but
violates the reciprocal pledge which he has given to his
fellow-citizens, and has received from them, that he will abide by the
laws constitutionally enacted; upon the strength of which pledge, his
own personal rights and acquisitions are protected by the rest of the
community.--_American Editor_.]

[159] Kent's Commentaries, vol. i., p. 244. I have selected an example
which relates to a time posterior to the promulgation of the present
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.

[160] Appendix O.

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. This majority is principally composed of
peaceable citizens, who, either by inclination or by interest, are
sincerely desirous of the welfare of their country. But they are
surrounded by the incessant agitation of parties, which attempt to gain
their co-operation and to avail themselves of their support.

CHAPTER X.

PARTIES IN THE UNITED STATES.

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

A great division must be made between parties. Some countries are so
large that the different populations which inhabit them have
contradictory interests, although they are the subjects of the same
government; and they may thence be in a perpetual state of opposition.
In this case the different fractions of the people may more properly be
considered as distinct nations than as mere parties; and if a civil war
breaks out, the struggle is carried off by rival peoples rather than by
factions in the state.

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

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 toward 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 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
person 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 insure 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 the 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 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.

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 their country. But whether their theories were good or bad, they
had the defect 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 afterward 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.

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 misery to serve as a 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 its 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 that 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 these two divisions which
have always existed in free communities. The deeper we penetrate into
the workings 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.