\ CENTRAL CIRCULATION BOOKSTACKS The person charging this material is re- sponsible for its renewal or its return to the library from which it was borrowed on or before the Latest Date stamped below. The Minimum Fee for each Lost Book Is $50.00. Theft, mutilation, and underlining of book, are reaon$ for disciplinary action and may result In dismissal from the University. TO RENEW CAlt TELEPHONE CENTER, 333-84OO UNIVERSITY OP IlllNOIS UBBABY AT URBANA-CHAMPAIGN OCT 3GiSI4 MW2-3.W* MAY 1 1 i995 JAN li 21)02 SEP C 1 9 2QOZ When renewing by phone, write new due date below previous due date. !69 AMERICA, " The very Deity itself both keepeth and requireth for ever this to be kept as a law, that wheresoever there is a coagmentation of many, the lowest be knit unto the highest by that which, being interjacent, may cause each to cleave to the other, and so all to continue one. This order of things in public societies is the work of policy, and the proper instrument thereof in every degree is Power ; Power being that ability which we have of our- selves, or receive from others for performance of any action." HOOKER. DEMOCRACY IN AMERICA. BY ALEXIS DE TOCQUEVILLE, AVOCAT A LA COUR ROYALE DE PARIS, ETC., ETC. TRANSLATED BY HENRY REEVE, ESQ. THIRD EDITION. IN TWO VOLUMES. VOL. I* LONDON: SAUNDERS AND OTLEY, CONDUIT STREET. 1838. LONDON : fHINTED BY RICHARD AND JOHN E. TAYLOR, RED LION COURT, FLEET STREET. 3 XO. <\ 73 TRANSLATOR'S PREFACE. J.N presenting the translation of this work to the public, preceded by an Introduction in which the author calls the attention of the reader to the present social state of France, I may perhaps be allowed to say a few words on the inferences which are to be drawn from the democratic in- stitutions of America relative to our own political condition. We live at a time when so many of the maxims of government are worn out, that in casting our eyes upon the aphorisms of the great statesmen of Europe, we are astonished to find that the authority they attempted to defend is vanished, and the principles by which they de- fended it are no more. The book of ' The Prince ' is closed for ever as a State manual ; 997571 VI and the book of ' The People ' a book of per- haps darker sophistries and more pressing ty- ranny is as yet unwritten. Nevertheless, the events of every day ought to impress upon our minds the necessity of studying that element which threatens us ; and for a generation which is manifestly called upon to witness the solemn and terrible changes of the constitution of the empires of the earth, the deadliest sin is thought- lessness, the most noxious food is prejudice, and the most fatal disease is party-spirit. The rela- tions between men and power have been so in- differently understood ever since the beginning of the world, that we have found out no remedy for evil but evil, no safety from injury but injury, no protection from attack but attack ; and in all the wild experiments which a relaxed social con- dition has undergone, we have only had fresh confirmation of a truth enounced by Lord Bacon, namely, that the logical part of men's minds is often good, but the mathematical is nothing worth ; that is, they can judge well of the at- taining any end, but cannot judge of the value of the end itself. If England has hitherto main- tained a sober and becoming position in the midst of greater revolutions than the world has witness- Vll ed since the Christian aera, not the less does it behove her to meditate upon the lessons of her allies and her descendants. What her increa- sing intelligence might suggest, her increasing evils, her increasing population, her burdens, her crime, and her perils enforce : the democra- tic element must be met, and to be met it must be known, before the unhallowed rites of destruc- tion have begun ; before recourse has been had to the probabilities of chance, in ignorance of the probabilities of cause ; before the vertigo of con- quest has seized the lower orders, or the palsy of dejection fallen upon the aristocracy. It is pre- sumed that the lesson will not be the less worthy of our attention because it is given us by a writer whose national experience and whose standard of comparison is more democratic than anything which we are acquainted with in England. Al- though the reasonableness of democracy is shown by the American States, where the activity of a trading population is dignified by the exercise of many civic viitues, and where the task of the le- gislator was not to change or to repair, but to organize and create, the perilous erection of a central power, such as now obtains in France, may check the confidence with which the hand Vlll of the many is raised against the errors of the few, and we may hesitate before we displace the time-honoured dispensers of social benefits, to make way for the more compact and less flexible novelties of the time. Those thinkers who are wont in politics to substitute principles of gene- ral utility for those of local interests, are like builders who should in all cases rely on the prin- ciple of gravity, to the exclusion of the law of cohesion. The gift of self-respect, which is the parent of the inward dignity of the citizen, is not derived from the debasing and democratic turbu- lence of party-spirit, affecting to compass the ends of the State to which he belongs, but from the quiet exercise of functions nearer home. The English reader will probably be struck with the revival in the United States of the more ancient parts of our Constitution, whilst the Feudal or Norman element is totally excluded, except in a few cases which may be quoted as anomalies. Blackstone affirms (and the great authority of Selden corroborates the fact,) that the partible quality of lands by the custom of gavelkind is undoubtedly of British origin, and obtained universally before the sera of the Nor- man Conquest. The constitution of general IX i public assemblies ; the election of their magis- trates by the people, their sheriffs, their coro- ners, their port-reeves, and even their tithing- men ; the dispensation of justice in the county- courts principally, except in cases in which the supreme authority of the crown was called upon to interfere, are laws of Saxon parentage. These principles are the very basis of the American Constitution ; and if the settlers of New England discarded the feudal rights, the royal justiciars, and the claims of primogeniture, when they re- linquished the feelings, the traditions, and the character of English subjects, it is not without pride, mingled with admiration, that a Briton points to the common source of our liberties, and to that Saxon foundation of our national existence which we couple with the name of Alfred, and from which many of the institutions of the American States derive their being. I cannot conclude without expressing a hope that this translation may tend to spread in En- gland some of those sound and comprehensive views of the nature and tendency of the demo- cratic element which its author has put forth in France ; nor without expressing my very warm thanks to M. de Tocqueville for the kindness with a5 X which he has assisted me in the difficulties which presented themselves in preparing this book for the public eye. Whatever may be the success of the following pages, I shall always remember with pleasure that I was encouraged in my task by the high esteem and sincere regard which I entertain for the author. H. R. Hampstead, 9th June, 1835. INTRODUCTION. .AMONGST the novel objects that attracted my at- tention during my stay in the United States, nothing struck me more forcibly than the general equality of conditions. I readily discovered the prodigious influ- ence which this primary fact exercises on the whole course of society, by giving a certain direction to public opinion, and a certain tenour to the laws ; by impart- ting new maxims to the governing powers, and pecu- liar 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 so- ciety, the more I perceived that the equality of condi- tions 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 Xll 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 communi- ties 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 gi'eat democratic re- volution 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 hun- dred 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 villain and the lord ; equality penetrated into the Go- vernment 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 unfrequently above the heads of kings. The different relations of men became more compli- cated and more numerous as society gradually became Xlll 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 re- sources by private wars, the lower orders were enrich- ing themselves by commerce. The influence of money began to be perceptible in State affairs. The transac- tions 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 de- creased in the exact proportion in which new paths were struck out to advancement. In the eleventh century nobility w r as 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 some- times 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 XIV 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 act- ive 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 XL 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 con- fer 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 engen- dered, 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 im- poverish the rich. From the time when the exercise of the intellect be- came the source of strength and of wealth, it is impos- sible 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, elo- quence, and memory, the grace of wit, the glow of ima- gination, the depth of thought, and all the gifts which are bestowed by Providence with an equal hand, turned XV 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 be- came 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 communes introduced an element of democratic li- berty into the bosom of feudal monarchy ; the inven- tion of fire-arms equalized the villain and the noble on the field af 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 Pro- testantism 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 in- tervals of fifty years, beginning with the eleventh cen- tury, we shall invariably perceive that a twofold revo- lution has taken place in the state of society. The no- ble has gone down on the social ladder, and the rotu- rier has gone up ; the one descends as the other rises. XVI Every half-century brings them nearer to each other, and they will very shortly meet. Nor is this phsenomenon 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 laboured 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 laboured to one end, some ignorantly and some un- willingly ; all have been blind instruments in the hands of God. The gradual development of the equality of condi- tions is therefore a providential fact, and it possesses all the characteristics of a Divine decree : it is univer- sal, it is durable, it constantly eludes all human inter- ference, and all events as well as all men contribute to its progress. Would it, then, be wise to imagine that a social im- pulse which dates from so far back, can be checked by the efforts of a generation ? Is it credible, that the de- mocracy which has annihilated the feudal system and vanquished kings, will respect the citizen and the ca- pitalist ? Will it stop now that it is 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 XV11 is more complete in the Christian countries of the pre- sent 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 re- ligious dread produced in the author's mind by the con- templation of so irresistible A revolution, which has ad- vanced 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 na- ture, 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 observa- tion 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 so- litary truth would confer the sacred character of a di- vine 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 pre- sent a most alarming spectacle ; the impulse which is bearing them along is so strong that it cannot be stop- ped, but it is not yet so rapid that it cannot be guided : XV111 their fate is in their hands ; yet a little while, and it may be so no longer. The first du.ty which is at this time imposed upon those who direct our affairs is to educate the demo- cracy ; to warm its faith, if that be possible ; to purify its morals; to direct its energies; to substitute a know- ledge of business for its inexperience, and an acquaint- ance with its true interests for its blind propensities ; to adapt its government to time and place, and to mo- dify 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 descried upon the shore we have left, whilst the current sweeps us along, and drives us backwards toward the gulf. In no country in Europe has the great social revo- lution 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 victo- ries have been obtained without their consent or with- out their knowledge. The most powerful, the most in- telligent, 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 aban- doned 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 XIX but the vices and wretchedness of society. The ex- istence 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 worshiped 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 demo- cratic 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 got- ten 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, se- veral different advantages which can now scarcely be appreciated or conceived. The power of a part of his subjects was an insur- mountable 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 no- XX bles could not but take that calm and benevolent inter- est 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 entertain- ing no .expectation of ever ranking with its chiefs, re- ceived benefits from them without discussing their rights. It grew attached to them when they were cle- ment and just, and it submitted without resistance or servility to their exactions, as to the inevitable visita- tions 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 op- pression. As the noble never suspected that any one would at- tempt 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 exer- cise 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, ac- companied by the refinements of luxury, the elegance XXI of taste, the pleasures of wit, and the religion of art ; * on the other was labour, and a rude ignorance ; but -.' in the midst of this coarse and ignorant multitude, it was not uncommon to meet with energetic passions, r 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 man- kind 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 demo- cracy is slowly and peaceably introduced into the in- stitutions and the manners of the nation. I can conceive a society in which all men would pro- fess 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 the 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 XX11 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 splendour than in the halls of an ari- stocracy, 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 major- ity of the citizens will enjoy a greater degree of pros- perity, 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 appro- priated all such as were useful and good ; and having once and for ever renounced the social advantages of XX111 dstocracy, mankind would enter into possession of all le benefits which democracy can afford. But here it may be asked what we have adopted in ic place of those institutions, those ideas, and those istoms of our forefathers which we have abandoned. . The spell of royalty is broken, but it has not been acceeded by the majesty of the laws ; the people has arned to despise all authority, but fear now extorts larger tribute of obedience than that which was for- erly paid by reverence and by love. I perceive that we have destroyed those independent iings which were able to cope with tyranny single- nded ; but it is the Government that has inherited e privileges of which families, corporations, and in- viduals have been deprived ; the weakness of the lole community has therefore succeeded to that in- icnce of a small body of citizens, which, if it was metimes oppressive, was often conservative. The division of property has lessened the distance rich separated the rich from the poor ; but it would jm that the nearer they draw to each other, the eater is their mutual hatred, and the more vehement 3 envy and the dread with which they resist each ler's claims to power ; the notion of Right is alike ensible to both classess, and Force affords to both i only argument for the present, and the only gua- itee for the future. The poor man retains the prejudices of his fore- icrs without their faith, and their ignorance with- their virtues ; he has adopted the doctrine of self- ;rest as the rule of his actions, without understand- XXIV ing the science which controls it, and his egotism is n less blind than his devotedness was formerly. If society is tranquil, it is not because it relies upo its strength and its well-being, but because it knows it weakness and its infirmities ; a single effort may coi it its life ; everybody feels the evil, but no one ha courage or energy enough to seek the cure ; the dt sires, the regret, the sorrows, and the joys of the tim produce nothing that is visible or permanent, like th passions of old men which terminate in impotence. We have, then, abandoned whatever advantages th old state of things afforded, without receiving any con pensation from our present condition ; having destroye an aristocracy, we seem inclined to survey its ruii with complacency, and to fix our abode in the midst them. The phenomena which the intellectual world pr sents are not less deplorable. The democracy France, checked in its course or abandoned to its la* less passions, has overthrown whatever crossed i path, and has shaken all that it has not destroyt Its empire on society has not been gradually intr duced, or peaceably established, but it has constan -advanced in the midst of disorder and the agitation a conflict. In the heat of the struggle each partis is hurried beyond the limits of his opinions by t opinions and the excesses of his opponents, until loses sight of the end of his exertions, and holds language which disguises his real sentiments or sec instincts. Hence arises the strange confusion wh we are witnessing. XXV I cannot recall to my mind a passage in history more \ worthy of sorrow and of pity than the scenes which J 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 be- tween 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 fu- ture life, and who readily espouse the cause of human liberty, as the source of all moral greatness. Christ- ianity, 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 b I xxvi further; some of them attack it openly, and the mainder 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 gene- rous characters are now to be met with, whose opinions aretit 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 ob- ject is to materialize mankind, to hit upon what is ex- pedient without heeding what is just, to acquire know- ledge without faith, and prosperity apart from virtue ^ assuming the title of the champions of modern civiliza- tion, 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 I XXV11 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 to- gether, where virtue is without genius, and genius without honour ; where the love of order is confounded with a tasle for oppression, and the holy rites of free- dom with a contempt of law ; where the light thrown by conscience on human actions is dim, and where no- thing seems to be any longer forbidden or allowed, honourable or shameful, false or true ? I cannot, however, believe that the Creator made man to leave him in an endless struggle with the intel- lectual 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 capa- city than his justice. There is a country in the world where the great re- volution 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 XXV111 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 influ- encing 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 com- plete 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 im- mense 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 would be strangely mistaken, and on read- ing this book he will perceive that such was not my de- sign : 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 legis- lation ; 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 ac- knowledged this revolution as a fact already accom- plished or on the eve of its accomplishment ; and I have XXIX 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 dis- cern 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. It was my intention to depict, in a second part, the influence which the equality of conditions and the rule of democracy exercise on the civil society, the habits, the ideas, and the manners of the Americans ; I begin, however, to feel less ardour for the accomplishment of this project, since the excellent work of my friend and travelling companion M. de Beaumont has been given to the world*. I do not know whether I have suc- ceeded in making known what I saw in America, but I This work is entitled Marie, ou 1'Esclavage aux Etats-Unis. XXX 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 any one may refer to them. Whenever an opinion, a political custom, or a remark on the manners of the country was concerned, I endeavoured to consult the most enlight- ened men I met with. If the point in question was im- portant or doubtful, I was not satisfied with one testi- mony, but I formed my opinion on the evidence of se- veral witnesses. Here the reader must necessarily be- lieve me upon my word. I could frequently have quoted names which are either known to him, or which de- serve to be so, in proof of what I advance ; but I have carefully abstained from this practice. A stranger fre- quently hears important truths at the fire-side of his host, which the latter would perhaps conceal even 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 * Legislative and administrative documents have been furnished me with a degree of politeness which I shall always remember with gratitude. Amongst the American functionaries who thus favoured my inquiries I am proud to name Mr. Edward Livingston, then Se- cretary of State, and late American Minister at Paris. During my stay at the Session of Congress Mr. Livingston was kind enough to furnish me with the greater part of the documents I possess relative to the Federal Government. Mr. Livingston is one of those rare in- dividuals whom one loves, respects, and admires from their writings, and to whom one is happy to incur the debt of gratitude on further acquaintance. XXXI 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 hospi- tality 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 any one ever chooses to criticise it. Those readers who may examine it closely will dis- cover 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 labours, and that my book may be judged by the general impression it leaves, as I have formed my own judgement 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 al- most as many difficulties spring from inconsistency of language, as usually arise from consistency of conduct. I conclude by pointing out myself what many readers will consider the principal defect of the work. This book is written to favour no particular views, and in XXX11 composing it I have entertained no design 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. TABLE OF CONTENTS OF THE FIRST VOLUME. Page TRANSLATOR'S Preface v Introduction. . xi CHAPTER I. Exterior form of North America 1 CHAPTER II. Origin of the Anglo-Americans, and its importance in rela- tion to their future condition 12 Reasons of certain anomalies which the laws and customs of the Anglo-Americans present 36 CHAPTER III. Social condition of the Anglo-Americans 38 The striking characteristic of the social condition of the Anglo-Americans is its essential Democracy, ib. XXXIV Political consequences of the social condition of the Anglo -Americans 47 CHAPTER IV. The principle of the sovereignty of the people in America. 49 CHAPTER V. Necessity of examining the condition of the States before that of the Union at large 53 The American system of townships and municipal bodies 54 Limits of the township 57 Authorities of the township in New England .... ib. Existence of the township 61 Public spirit of the townships of New England. ... 63 The counties of New England 66 Administration in New England 68 General remarks on the Administration of the United States 80 Of the State 85 Legislative power of the State 86 The executive power of the State 88 Political effects of the system of local administration in the United States 89 CHAPTER VI. Judicial power in the United States, and its influence on political society 105 Other powers granted to the American Judges. ... 112 CHAPTER VII. Political jurisdiction in the United States 115 XXXV CHAPTER VIII. Page The Federal Constitution 122 History of the Federal Constitution ib. Summary of the Federal Constitution 125 Prerogative of the Federal Government 127 Federal Powers 129 Legislative Powers ib. A further difference between the Senate and the House of Representatives 133 The executive power 1 34 Differences between the position of the President of the United States and that of a Constitutional King of France 136 Accidental causes which may increase the influence of the Executive 140 Why the President of the United States does not re- quire the majority of the two Houses in order to carry on the Government 142 Election of the President 143 Mode of election 149 Crisis of the election 153 Re-election of the President 155 Federal Courts 158 Means of determining the jurisdiction of the Federal Courts 163 Different cases of Jurisdiction 1 65 Procedure of the Federal Courts 171 High rank of the Supreme courts amongst the great powers of State 174 In what respects the Federal constitution is superior to that of the States 177 Characteristics which distinguish the Federal Consti- tution of the United States of America from all other Federal Constitutions 1 82 Advantages of the Federal system in general, and its special utility in America 187 XXXVI Page Why the Federal system is not adapted to all peoples, and how the Anglo-Americans were enabled to adopt it . . 195 CHAPTER IX. I Why the people may strictly be said to govern in the United States . . 207 CHAPTER X. Parties in the United States 208 Remains of the aristocratic party in the United States . .215 CHAPTER XI. Liberty of the press in the United States 217 CHAPTER XII. Political associations in the United States 230 Appendix 241 The Constitution of the United States 266 The Constitution of the State of New York . , .284 DEMOCRACY IN AMERICA. CHAPTER I. EXTERIOR FORM OF NORTH AMERICA. North America divided into two vast regions, one inclining towards the Pole, the other towards the Equator. Valley of the Missis- sippi. Traces of the Revolutions of the Globe. Shore of the At- lantic Ocean, where the English Colonies were founded. Differ- ence in the appearance of North and of Soiifli America at the time of their discovery. Forests of North America. Prairies. Wan- dering Tribes of Natives. Their outward appearance, manners, and language. Traces of an unknown people. NORTH AMERICA presents in its external form cer- tain 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. VOL. I. The one slopes gently towards the Pole, the other to- wards the Equator. The territory comprehended in the first region de- scends 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 re- gion 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 spacewhichliesbetween these two chains of moun- tains contains 1,341,649 square miles*. 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 Mount-dins. At the bottom of the valley flows an immense river, * Darby's ' View of the United States.' into which the various streams issuing from the moun- tains 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. 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*, 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 on- wards to the south. Sometimes quietly gliding along the argillaceous bed which nature has assigned to it ; sometimes swoln by storms, the Mississippi waters 2500 miles in its coursef. At the distance of 1364 miles from its mouth this river attains an average depth of fifteen feet; andit 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 2500 miles, the Ar- kansas of 1300 miles, the Red River 1000 miles; four whose course is from 800 to 1000 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. 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 * The Red River. f Warden's 'Description of the United States.' B 2 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 primaeval ocean accumu- lated 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 granitic sand and huge irregular masses of stone, among which a few plants force their growth, and give the ap- pearance of a green field covered with the ruins of a vast edifice. These stones and this sand discover, on exa- mination, 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 neighbouring cliffs, were left scattered like wrecks at their feet*.' 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. On the eastern side of the AUeghanies, between the base of these mountains and the Atlantic Ocean, there lies a long ridge of rocks and sand, which the sea appears to * See Appendix A. have left behind as it retired. The mean breadth of this territory does not exceed one hundred miles; but it isj^ about nine hundred miles in length. This part of the American continent has a soil which offers every ob- stacle to the husbandman, and its vegetation is scanty and unvaried. Upon this inhospitable coast the first united efforts of human industry were made. This tongue of arid land was the cradle of those English colonies which were de- stined one day to become the United States of America. The centre of power still remains there ; whilst in the backward States the true elements of the great people to whom the future control of the continent belongs are secretly springing up. When the Europeans first landed on the shores of the Antilles, 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*. Here and there appeared little islands perfumed with odorife- rous 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 plea- sures 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 colours. In groves of fragrant lemon-trees, wil;l figs, flowering-myrtles, acacias, and oleanders, which were * Malte Brun tells us (vol. v. p. 726,) that the water of the Carib- bean sea is so transparent, that corals and fish are discernible at a depth of sixty fathoms. The ship seemed to float in air, the navi- gator became giddy as his eye penetrated through the crystal flood, and beheld submarine gardens, or beds of shells, or gilded fishes gli- ding among tufts and thickets of sea-weed. hung -with festoons of various climbing plants, covered , v with flowers, a multitude of birds unknown in Europe ^"displayed their bright plumage, glittering with purple and azure, and mingled their warbling in the harmony of a world teeming with life and motion*. Underneath this brilliant exterior, death was concealed. The air of these climates had so enervating an influence, that man, completely absorbed by present enjoyment, was rendered regardless of the future. North America appeared under a very different as- pect : 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 girded round by a belt of granitic rocks, or by wide plains 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 forests, where the largest trees which are produ- ced 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, destruc- tion was perpetually going on. The ruins of vegetation were heaped upon each other ; but there was no labour- ing hand to remove them, and their decay was not ra- pid enough to make room for the continual work of re- production. 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 * See Appendix B. 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. IrT was rare to meet with flowers, wild fruits, or birds, be- neath 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 dis- appeared ; in their stead were seen prairies of immense extent. Whether Nature in her infinite variety had de- nied 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. Law- rence to the Delta of the Mississippi, and from the At- lantic to the Pacific Ocean, these savages possessed cer- tain points of resemblance which bore witness of their common origin : but at the same time they differed from all other known races of men*: they were neither white like the Europeans, nor yellow like most of the Asiatics, nor black like the negroes. Their skin was reddish brow r n, their hair long and shining, their lips thin, and * 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, Moguls, Tatars, 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, ' Conjec- ture sur 1'Origin des Americains '; Adar, ' History of the American Indians'. 8 their cheek-bones very prominent. The languages spo- ken by the North American tribes were 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 ; andbespoke an effort of the understand- ing of which the Indians of our days would be incapable*. 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 ex- hibited none of those indistinct, incoherent notions of right and wrong, none of that deep corruption of man- ners which is usually joined with ignorance and rude- ness among nations which, after advancing to civiliza- tion, have relapsed into a state of barbarism. The In- dian 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 con- tact with rich and enlightened men. The sight of their own hard lot and of their weakness, which are daily con- trasted 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 inso- lent and servile. The truth of this is easily proved by * See Appendix C. 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 them- selves 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 demean- our ; 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 succour the stranger w r ho 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 w T ere hidden in former times among the wild forests of the New World*. * 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. B 5 The Europeans produced no great impression when they landed upon the shores of North America : their presence engendered neither envy nor fear. What in- fluence could they possess over such men as we have de- scribed ? The Indian could live without wants, suffer without complaint, and pour out his death-song at the stake*. Like all the other members of the great human family, these savages believed in the existence of a bet- ter world, and adored, under different names, God, the creator of the universe. Their notions on the great in- tellectual truths were in general simple and philpso- phicalf. Although we have here traced the character of a pri- mitive 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 In- dians, to the north of the Atlantic, informs us that these very tribes formerly dwelt on the west side of the Missis- sippi. 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 a metal, or destined for purposes, unknown to the present race. The Indians of our time are unable to give any in- formation relative to the history of this unknown people. Neither did those who lived three hundred years ago, * See ' Histoire cle la Louisiane ', by Lepage Dupratz ; Charlevoix, ' Histoire de la Nouvelle France '; ' Lettres du Rev. G. Hecwelder '; ' Transactions of the American Philosophical Society', v. 1.; Jeffer- son's ' Notes on Virginia ', p. 135 190. What is said by Jefferson is of especial weight, on account of the personal merit of the writer, nf his peculiar position, and of the matter-of-fact age in which he ed. f See Appendix D. 11 when America was first discovered, leave any accounts from which even an hypothesis could be formed. Tra- dition, 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 pan 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 ; but perhaps there is not one which has not left behind it a tomb in memory of its pas- sage. The most durable monument of human labour is that which recalls the wretchedness and nothingness of man. Although the vast country which we have been de- scribing was inhabited by many indigenous tribes, it may justly be said at the time of its discovery by Europe- ans to have formed one great desert. The Indians oc- cupied, without possessing it. It is by agricultural la- bour that man appropriates the soil, and the early in- habitants 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 Europe- ans 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 pre- pared to be the abode of a great nation, yet unborn. 12 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, AND ITS IM- PORTANCE IN RELATION TO THEIR FUTURE CON- DITION. 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 obser- vable. In what respects all who emigrated to British America were similar. In what they differed. Remark applicable to all the 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 con- tract. Penal code borrowed from the Hebrew legislation. Reli- gious fervour. Republican spirit. Intimate union of the spirit of religion with the spirit of liberty. 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 man- hood 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 his mother's arms ; we must see the first images which the external world casts upon the dark mirror of his mind ; 13 the first occurrences which he witnesses ; we must hear the first words which awaken the sleeping powers of hought, 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 con- tributed 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 primary cause of the prejudices, the habits, the ruling passions, and in short of all that constitutes w r hat is called the national character : we should then find the explanation of cer- tain customs which now seem at variance with prevail- ing manners, of such law r s 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 along 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 turned their attention to contemplate 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 pos- sible to witness the natural and tranquil growth of so- ciety, and where the influence exercised on the future condition of states by their origin, is clearly distinguish- able. 14 At the period when the peoples of Europe landed in the New World, their national characteristics were al- ready completely formed ; each of them had a physio- gnomy of its own ; and as they had already attained that stage of civilization at which men are led to study them- selves, 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 phaenomena which the ig- norance or rudeness of earlier ages conceals from our re- searches. Near enough to the time when the states of America were founded to be accurately acquainted with their elements, and sufficiently removed from that pe- riod to judge of some of their results, the men of our own day seemed destined to see further than their pre- decessors into the series of human events. Providence has given us a torch which our forefathers did not pos- sess, 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 re- main perfectly convinced that not an opinion, not a cus- tom, not a law, I may even say not an event, is upon re- cord w r hich 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, dif- fered 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 15 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 agita- ted for centuries by the struggles of faction, and in which ah 1 parties had been obliged in their turn to place them- selves under the protection of the laws, their political education had been perfected in this rude school, and they were more conversant wdth the notions of right, and the principles of true freedom, than the greater part of their European contemporaries. At the period of the 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 even into the bosom of the monarchy of the House of Tudor. The religious quarrels which have agitated the Chris- tian world were then rife. England had plunged into the new order of things with headlong vehemence. The character of its inhabitants, w T hich had always been se- date and reflecting, 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 oc- casion 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 ele- ments, if not the development, of a complete democracy. Two causes led to this result. It may safely be advan- ced, that on leaving the mother-country the emigrants 16 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 entirely 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 sup- ports 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 wretched- ness ; 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 fur- nished 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. 17 Virginia received the first English colony ; the emi- grants 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* were seekers of gold, adven- turers without resources and without character, whose turbulent and restless spirit endangered the infant colony f and rendered its progress uncertain. The arti- zans 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 J. No lofty conceptions, no intellectual system directed the foundation of these new settlements. The colony was scarcely established when slavery was intro- duced , 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, dishonours la- bour ; it introduces idleness into society, and, with idle- * The charter granted by the Crown of England in 1609 stipula- ted, amongst other conditions, that the adventurers should pay to the Crown a fifth of the produce of all gold and silver mines. See Mar- shall's ' Life of Washington ', vol. i. p. 18 66. f A large portion of the adventurers, says Stith, (History of Vir- ginia,) 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. J It was not till some time later that a certain number of rich English capitalists came to fix themselves in the colony. Slavery was introduced about the year 1 620 by a Dutch vessel which landed twenty negroes on the banks of the river James. See Chalmer. 18 ness, ignorance and pride, luxury and distress. It ener- vates 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. In the North, the same English foundation was modi- fied 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 British colonies, more generally deno- minated the states of^New England*. The principles of New England spread at first to the neighbouring 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. 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 can- not even boast so honourable an origin ; St. Domingo was founded by buccaneers; and, at the present day^ the criminal courts of England supply the population of Australia. The settlers who established themselves on the shores of New England all belonged to the more independent * 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. Massachussets; 4. Vermont; 5. New Hampshire; 6. Maine. 19 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 propor- tion 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 the 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 im- prove 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 suf- ferings of exile, their object was the triumph of an idea. The emigrants, or, as they deservedly styled them- selves, 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 reli- gious doctrine, but it corresponded in many points with the most absolute democratic and republican theories. It was this tendency which had aroused its most danger- ous adversaries. Persecuted by the Government of the mother-country, and disgusted by the habits of a society opposed to the rigour of their own principles, the Puri- tans w r ent 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. 20 A few quotations will throw more light upon the spirit of these pious adventurers than all we can say of them. Nathaniel Morton*, the historian of the first years of the settlement, thus opens his subject : " Gentle Reader, ee 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 good- ness, viz. the first beginners of this Plantation in New England, to commit to writing his gracious dispensa- tions on that behalf ; having so many inducements there- unto, not onely otherwise, but so plentifully in the Sa- cred Scriptures : that so, what we have seen, and what our fathers have told us, (Psalm Ixxviii. 3, 4,) we may not hide from our children, shewing to the generations to come the praises of the Lord ; that especially the seed of Abraham his servant, and the children of Jacob Ills chosen (Psalm cv. 5, 6,) may remember his marvel- lous works in the beginning and progress of the planting of New England, his w r onders and the judgements of his mouth ; how that God brought a vine into this wilder- ness ; 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 Ixxx. 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 Gos- pel-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." * 'New England's Memorial', p. 13. Boston, 1826. See also Hutchinson's History ', vol. ii. p. 410. 21 It is impossible to read this opening paragraph with- out an involuntary feeling of religious awe ; it breathes the very savour 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 Provi- dence to a predestined shore. The author thus continues his narrative of the de- parture of the first pilgrims. " So they left that goodly and pleasant city of Ley- den*, which had been their resting-place for above eleven years ; but they knew that they were pilgrims and stran- gers 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 then* 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 * 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 Ley- den 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 be- come 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. 22 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." 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 En- gland which is now the site of the town of Plymouth. The rock is still shown on which the pilgrims disem- barked*. " But before we pass on," continues our historian, ( ' let the reader with me make a pause and seriously con- sider 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 expec- tation, 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 win- ters of the country know them to be sharp and violent, 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 that 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 ? 23 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 hue ; 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 Puri- tans was of a merely speculative kind, or that it took no cognisance 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 Mor- ton, than their first care was 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 Sove- reign Lord King James, &c. &c., 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 Vir- ginia ; Do by these presents solemnly and mutually, in the presence of God and one another, covenant and com- bine 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, * ' New England's Memorial ', p. 37. 24 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 submis- sion and obedience," &c.* This happened in 1620 3 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 secta- rians 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 de- spotically 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 an- cient feudal society. 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 little attention was paid to the destiny of those who sought a shelter from the rigour 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 in- * The emigrants who founded the state of Rhode Island in 1638, those who landed at New Haven in 1637, the first settlers in Con- necticut in 1639, and the founders of Providence in 1640, began in like manner by drawing up a social contract, which was submitted to the approval of all the interested parties. See ' Pitkin's History ', pp. 42 and 47. 25 ternal 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 terri- tories of the New World belonged to that European na- tion which had been the first to discover them. Nearly the whole coast of North America thus became a British possession toward the end of the sixteenth century. The means used by the English Government to people these new domains were of several kinds ; the King some- times appointed a governor of his own choice, who ruled a portion of the New \V orld in the name and under the immediate orders of the Crown*; this is the colonial system adopted by the other countries of Europe. Some- times grants of certain tracts were made by the Crown to an individual or to a company f, 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 inhabit- ants. Lastly, a third system consisted in allowing a certain number of emigrants to constitute a political so- ciety 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 favour- able to liberty, was only adopted in New England J. * This was the case in the State of New York. f Maryland, the Carolinas, Pennsylvania, and New Jersey were in this situation. See Pitkin's History, vol. i. p. 11 31. I See the work entitled ' Historical Collection of State Papers and other authentic Documents intended as materials for an 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 au- thenticity : 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, VOL. I. C 26 In 1628* a charter of this kind was granted by Charles I. to the emigrants who went to form the colony of Mas- sachussetts. 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 Islandf were founded without the co-operation and almost with- out the knowledge of the mother-country. The new settlers did not derive their incorporation from the head of the empire, although they did not deny its supremacy ; they constituted a society of their ow n accord ; and it was not till thirty or forty years afterwards, under Charles II., that their existence was legally recognized by a royal charter. This frequently renders it difficult to detect the link . which connected the emigrants with the land of their forefathers, in studying the earliest historical and legis- lative records of New r England. They perpetually exer- cised the rights of sovereignty ; they named their magis- trates, concluded peace or declared war, made police regulations, and enacted laws as if their allegiance was due only to GodJ. 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 Judge of the Supreme Court of the United States, in the Introduction to his Commentary on the Constitution of the United States. It re- sults from these documents that the principles of representative go- vernment 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 every- where. * See Pitkin's History, p. 35. See the History of the Colony of Massachusetts Bay, by Hutchinson, vol. i. p. 9. + See Pitkin's History, pp. 42. 47. t 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. . 27 social problem which the United States now present to the world is to be found. Amongst these documents we shall notice, as espe- cially characteristic, the Code of laws promulgated by the little State of Connecticut in 1650*. The legislators of Connecticut f begin with the penal laws, and, strange to say, they borrow their provisions from the text of Holy Writ. which was destined, amongst other functions, to maintain the balance of power which had been established by the Constitution between the two rival Governments |. * 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 gene- ral law on bankruptcy, which,_however, it neglects to do. Each State is then at liberty to make a law for itself. This point, however, has been established by discussion in the law-courts, and may be said to belong more properly to jurisprudence. f The action of this court is indirect, as we shall hereafter show. J It is thus that the Federalist, No. 45, explains the division of su- premacy 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 tfc State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. The pow- ers reserved to the several States wiB extend to all the objects which, in the ordinary course of affairs, concern the internal order and pro- sperity 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., 127 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 OH French monarchy. THE external relations of a people may be compared to those of private individuals, and they cannot be advan- tageously maintained without the agency of the 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 therefore grant- ed to the Union*. The necessity of a national Govern- ment was less imperiously felt in the conduct of the in- ternal affairs of society ; but there are certain general in- terests which can only be attended to with advantage by a general authority. The Union was invested with the power of controling 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 t. The independence of the Government of each State was formally recognised in its sphere ; ne- vertheless, the Federal Government was authorized to interfere in the internal affairs of the States J in a few 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. See Constitution, sect. 8. Federalist, Nos. 41 and 42. Kent's Commentaries, vol. i. p. 207. Story, pp. 358-382 ; ibid., pp. 409 426. f 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. I Even in these cases its interference is indirect. The Union in- terferes by means of the tribunals, as will be hereafter shown. 128 predetermined cases, in which an indiscreet abuse of their independence might compromise the security of the Union at large. Thus, whilst the power of modify- ing and changing their legislation at pleasure was pre- served in all the republics, they were forbidden to enact ex-post-facto laws, or to create a class of nobles in their community*. Lastly, as it was necessary that the Fede- ral Government should be able to fulfill its engage- ments, it was endowed with an unlimited power of levying taxes f. 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 no- tions on the nature of the centralization of government. The United States form not only a republic, but a con- federation ; 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 foUowing 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 cPEtats, 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 * Federal Constitution, sect. 10, art. 1. t Constitution, sect. 8, 9, and 10. Federalist, Nos. 30-36, inclusive, and 41-44. Kent's Commentaries, voU i. pp. 207 and. 381. Story } pp. 329 and 514. 129 binding upon all the citizens. In these two essential points, therefore, the Union exercises more central autho- rity than the French monarchy possessed, although the Union is only an assemblage of confederate republics. In Spain certain provinces had the right of esta- blishing 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 commer- cial 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 conse- quently the same ; but I am here discussing the theory of the Constitution. FEDERAL POWERS. AFTER having settled the limits witnin which the Fede- ral Government was to act, the next point was to determine the powers which it was to exert. LEGISLATIVE POWERS. Division of the Legislative Body into two branches. Difference in the manner of forming the two Houses. The principle of the in- dependence 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 G 5 130 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 prin- ciples in the formation of each 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 na- tion, 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 ex- ceedingly different. The question was, whether a league was to be esta- blished instead of a national Government ; whether the majority of the States, 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, then retained the character of an independent power, and entered the Union upon a footing of perfect equality. If, on the contrary, the inhabitants of the United States were to be considered as belonging to one and the same nation, it was natural 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 coequal and co- legislative authority, to that of an insignificant fraction 131 of a great people. 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 irreconcileable. The principle of the independence of the States pre- vailed in the formation of the Senate, and that of the sovereignty of the nation predominated in the composi- tion 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*. It results from this arrangement that the State of New York has at the present day forty repre- sentatives, 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 paralyse the decisions of the majority represented in the other House, w r hich is contrary to the spirit of constitutional government. Every ten years Congress fixes anew the number of representa- tives 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 (14th of April, 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 freemen and of three fifths of the slaves. 132 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 esta- blished, 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 interest 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 wants 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 con- sequently never been induced to league themselves to- gether 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 133 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 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 acknow- ledged power, which was to be humoured, and not forcibly checked. A FURTHER DIFFERENCE BETWEEN THE SENATE AND THE HOUSE OF REPRESENTATIVES. The Senate named by the provincial legislators; the Representa- tives, 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 Representa- tives is named by the people, the Senate by the legisla- tors 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 cooperates in the work of legislation, and tries those political offences which the House of Representatives submits to its decision. It 134 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 definitively approved by the same body*. THE EXECUTIVE POWERf. 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 execu- tive power should be subject to the will of the nation. The President is an elective magistrate. His honour, 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 cogni- zance 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 cor- ruption. The legislators of the Union acknowledged that the executive power would be incompetent to fulfill its task with dignity and utility, unless it enjoyed a greater degree of stability and of strength than had been granted it in the separate States. * See The Federalist, Nos. 5266, inclusive. Story, pp. 199 314. Constitution of the United States, sections 2 and 3. t See The Federalist, Nos. 6777. Constitution of the U. S., art. 2. Story, p. 315, pp. 515 780. Kent's Commentaries, p. 255. 135 The President is chosen for four years, and he may be re-elected ; so that the chances of a prolonged ad- ministration 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 thellnion ; 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 Govern- ment and to diminish its responsibility. The Senate has the right of annulling 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 Ame- ricans 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 tend- ency which legislative assemblies have to get possession of the government, but they have rendered this pro- pensity 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 more- over 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 136 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 what- ever 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 institu- tions can prove a substitute for common sense and public morality. DIFFERENCES BETWEEN THE POSITION OF THE PRESI- DENT OF THE UNITED STATES AND THAT OF A CON- STITUTIONAL KING OF FRANCE. Executive power in the United 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 depend- ing upon the executive power in the two countries. THE executive power has so important an influence on 137 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 trans- formed into a republic, the executive power retains the titles, the honours, 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 demeanour of the sove- reign 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 5 houses. It is there- fore necessary to look below the surface. The sovereignty of the United States is shared be- tween 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 Presi- dent, 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. 138 This first cause of inferiority results from the nature of things, but it is not the only one ; the second in im- portance 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 cooperate in their formation, since the refusal of his assent does not annul them. He is there- fore merely to be considered as the agent of the sove- reign power. But not only does the King of France exercise a portion of the sovereign power, he also con- tributes to the nomination of the legislature, which ex- ercises the other portion. He has the privilege of ap- pointing 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 legis- lative 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 Govern- ment. The President and his ministers are alike exclud- ed from Congress ; so that his influence and his opi- nions 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 139 President labours 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 Presi- dent : 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*. The King of France is absolute in the sphere of the executive power. The President of the United States is responsible for his actions ; but the person of the King is declared in- violable by the French Charter. 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 re- sults more or less extensive. Whence I am led to conclude, that France with its King is nearer akin to a The Constitution had left it doubtful whether the President was obliged to consult the Senate in the removal as well as in the ap- pointment of Federal officers. The Federalist (No. 77.) seemed to establish the affirmative ; but in 1 789 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. 140 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 ex- ceeds its natural limits, however extensive they may be, and penetrates in a thousand different ways into the administration of private interests. Amongst the exam- ples 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* 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 1 2,000 f. ACCIDENTAL CAUSES WHICH MAY INCREASE THE IN- FLUENCE OF THE EXECUTIVE. 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 power is feebler in America than in * The sums annually paid by the State to these officers amount to 200,000,000 francs (eight millions sterling). f This number is extracted from the 'National Calendar' for 1833. The National Calendar is an American Almanac which con- tains 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. 141 France, the cause is more attributable to the circum- stances 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 vigour. If the existence of the Union were perpetually threatened, and if its chief interests were in daily con- nexion with those of other powerful nations, the execu- tive 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 neighbours. Sepa- rated 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 pre- rogatives, 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 for that reason modifying its constitution. If the laws had made 142 it as feeble and as circumscribed as it is in the Union, its influence would very soon become much greater. 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 constitu- tional King cannot persevere in a system of government which is opposed by the two other branches of the le- gislature. 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 in- dependence 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 legis- lature to enable him to perform the duties imposedupon him by the Constitution, because those duties are enor- mous. A constitutional King in Europe is not merely the executor of the law, but the execution of its pro- visions devolves so completely upon him, that he has the power of paralysing 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 enfor- cing it. His sincere and zealous cooperation is no doubt useful, but it is not indispensable, in the carrying 143 on of public affairs. All his important acts are directly or indirectly submitted to the legislature ; and where he is independent of it 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 betw r een them may prove serious ; in America, this harmony is not indispen- sable, 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 favourable to the elective system. Why the election of the Presi- dent does not cause a deviation from the principles of the Govern- ment. 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 want- ing, force may not unfrequently seize what right denies. It is clear that the greater the privileges of the execu- tive authority are, the greater is the temptation; the 144 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 pa- tron 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 are not solely attributable to the elective system in general, but to the fact that the elected magistrate was the head of a power- ful monarchy. Before we can discuss the absolute ad- vantages of the elective system, we must make preli- minary 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 re- presentative 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 pre- rogatives, and to accustom the people to live without its protection. Nothing, however, is further from the de- signs of the republicans of Europe than this course : as many of them only owe their hatred of tyranny to the sufferings which they have personally undergone, the extent of the executive power does not excite their hostility, and they only attack its origin without per- ceiving how nearly the two things are connected. Hitherto no citizen has shown any disposition to ex- pose his honour 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 145 in so desperate a game. No candidate has as yet been able to arouse the dangerous enthusiasm or the passion- ate sympathies of the people in his favour, 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 govern- ment cease to act, as it were of their ow r n accord, at the approach of an election, and even for some time previous to that event. The laws may indeed accelerate the ope- ration 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 precau- tions, a break necessarily occurs in the minds of the people. At the approach of an election the head of the execu- tive government is wholly occupied by the coming strug- gle ; his future plans are doubtful ; he can undertake nothing new, and he will only prosecute with indiffer- ence those designs which another will perhaps termi- nate. " 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 ap- pears to me just to leave to my successor the commence- VOL. i. H 146 ment 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 cen- tred on a single point ; all are watching the gradual birth of so important an event. The wider the influ- ence 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 accus- tomed to the government, or, still more, one used to the administrative protection of a powerful executive autho- rity, would be infallibly convulsed by an election of this kind. In the United States the action of the Govern- ment may be slackened with impunity, because it is always weak and circumscribed. 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 as- sembly, possessed the directing authority. If the elec- tive system w r ere adopted in Europe, the condition of most of the monarchical States would be changed at every new election. In America the President exer- cises a certain influence on State affairs, but he does not conduct them ; the preponderating power is vested in the representatives of the w r hole nation. The politi- cal maxims of the country depend therefore on the mass of the people, not on the President alone ; and conse- quently in America the elective system has no very pre- judicial influence on the fixed principles of the Govern- ment. But the want of fixed principles is an evil so inherent in the elective system, that it is still extremely 147 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 w r hole responsi- bility of the duties he is called upon to fulfill, ought to be empowered to choose his own agents, and to remove them at pleasure : the legislative bodies watch the con- duct 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 removeable function- ary 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 suc- cessive ministries are rapidly formed ; but as the prin- cipal 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 Ame- rica every four years by law, is to cause a sort of revo- lution. As to the misfortunes which may fall upon in- dividuals 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 Ame- rica than elsewhere. It is so easy to acquire an inde- pendent position in the United States, that the public H 2 148 officer who loses his place may be deprived of the com- forts 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 cir- cumstances of the people which adopts it. However the functions of the executive power may be restricted, it must always exercise a great influence upon the foreign policy of the country, for a negotiation cannot be opened or successfully carried on otherwise than by a single agent. The more precarious and the more perilous the position of a people becomes, the more absolute is the want of a fixed and consistent external policy, and the more dangerous does the elective system of the chief magistrate become. The policy of the Americans in relation to the whole world is exceedingly simple ; and it may almost be said that no country stands in need of them, nor do they require the cooperation 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 elec- tion, and the moment of its duration, must always be considered as a national crisis, which is perilous in pro- portion 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 149 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 Represen- tatives is called upon to ehoose 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 elec- tion, 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 proceed- ing, 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 po- litical as well as the social condition of the United States, we are struck by the admirable harmony of the gifts of fortune and the efforts of man. That nation possessed two of the main causes of internal peace ; it was a new country, but it was inhabited by a people grown old in the exercise of freedom. America had no hostile neighbours to dread ; and the American legislators, profiting by these favourable circumstances, created a weak and subordinate executive power, which could without danger be made elective. 150 It then only remained for them to choose the least dangerous of the various modes of election ; and the rules which they laid down upon this point admirably complete the securities which the physical and political constitu- tion 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 excite- ment 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 w r as to delegate the electoral powers of the nation to a body of representatives. This mode of elec- tion 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 proba- bility of a judicious choice. It then remained to be decided whether this right of election was to be entrusted to the legislative body, the habitual representative as- sembly 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 represented might have changed its opinion in that time. It was thought that if the legislature was empowered to elect the head of the executive power, its members would, for some 151 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*, who in their turn should elect the President ; and as it had been observed that the assemblies to which the choice of a chief ma- gistrate had been entrusted in elective countries, inevi- tably 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 placef. 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 Avas necessary to have recourse to one of three measures; either to appoint ne\v electors, or to consult a second time those already appointed, or to defer the election to another authority. The first two of these alternatives, independ- ently 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 * As many as it sends members to Congress. The number of electors at the election of 1833 was 288. (See The National Calen- dar, 1833.) f 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. 132 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 pro- ceeds immediately to elect the President ; but with the condition that it must fix upon one of the three candi- dates who have the highest numbers*. 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 po\\ erful 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 wiiich 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 judgement of an enlightened public body, it has smoothed all the obstacles f which are not inherent in the elective system. In the forty-four years which have elapsed since the promulgation of the Federal Constitution, the United * 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 citi- zens 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. t Jefferson, in 1801, was not elected until the 36th time of bal- loting. 153 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 condi- tional 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. CRISIS 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 favoured the adoption of the elective system in the United States, and what precautions were taken by the legislators to obviate its dangers. The Americans are accustomed to all kinds of elections ; and they know 7 by experience the utmost degree of excitement which is compatible with security. The vast extent of the coun- try 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 collec- tively ; and however trifling an interest may be, it assumes a great degree of importance as soon as it be- H 5 154 comes general. The President possesses but few means of rewarding his supporters in comparison to the kings of Europe, but the places which are at his disposal are sufficiently numerous to interest, directly or indirectly, several thousand electors in his success. Moreover political parties, in the United States as well as elsewhere, are led to rally 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 elected, as to show, by the majority which returned him, the strength of the supporters of those principles. For a long while before the appointed time is at hand, the election becomes the most important and the all- engrossing topic of discussion. The ardour 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 several camps, each of which assumes the name of its favourite can- didate ; the whole nation gloAvs 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 ardour is dispelled; 155 and as a calmer season returns, the current of the State, which had nearly broken its banks, sinks to its usual level: but who can refrain from astonishment at the causes of the storm ? RE-ELECTION OF THE PRESIDENT. When the head of the executive power is re-eligible, it is the State which is the source of intrigue and corruption. The desire of being re-elected the chief aim of a President of the United States. Disadvantage of the system peculiar to America. The natural evil of democracy is that it subordinates all authority to the slightest desires of the majority. The re-election of the President encou- rages this evil. IT may be asked whether the legislators of the United States did right or wrong in allowing the re-election of the President. It seems at first sight contrary to all reason to prevent the head of the executive power from being elected a second time. The influence which the talents and the character of a single individual may exercise upon the fate of a whole people, especially in critical 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. In- trigue and corruption are the natural defects of elective government ; but -\yhen 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 156 candidate seeks to rise by intrigue, his manoeuvres must necessarily be limited to a narrow sphere ; but when the chief magistrate enters the list, he borrows the strength of the Government for his own purposes. In the former case the feeble resources of an individual are in action ; in the latter, the State itself, with all its immense influence, is busied in the work of corruption and cabal. The private citizen, who employs the most immoral practices to acquire power, can only act in a manner indirectly prejudicial to the public prosperity. But if the representative of the executive descends into the lists, the cares of government dwindle into second-rate im- portance, and the success of his election is his first concern. All laws and negotiations are then to him nothing more than electioneering schemes; places become the reward of services rendered, not to the nation, but to its chief; and the influence of the Government, if not injurious to the country, is at least no longer be- neficial 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 Presi- dent ; that his whole administration, and even his most indifferent measures, tend to this object; and that, as the crisis approaches, his personal interest takes the place of his interest in the public good. The principle of re-eligibility renders the corrupt influence of elective governments still more extensive and pernicious. It tends to degrade the political morality of the people, and to substitute adroitness for patriotism. In America it exercises a still more fatal influence on the sources of national existence. Every government seems to be afflicted by some evil inherent in its nature, and the genius of the legislator is shown in eluding its attacks. A State may survive the influence of a host of 157 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 counter- balance this influence would be radically bad, even if its consequences should long appear to be imperceptible. By a parity of reasoning, in countries governed by a democracy, where the people is perpetually drawing all authority to itself, the laws which increase or accelerate its action are the direct 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 con- ceived 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 re- sist 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 ; 158 but the favour of the people would not be so necessaiy to him as to induce him to court it by humouring 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 com- plaints, 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*. Political importance of the judiciary in the United States. Difficulty of treating this subject. Utility of judicial power in confedera- tions. 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 * See Chapter 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 Federalist, 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 the 24th September, 17S9, in the Collection of the Laws of the United States, by Story, vol. i. p. 53. 159 examined ; but in this place I cannot conceal my fears from the reader. Judicial institutions exercise a great influence on the condition of the Anglo-Americans, and they occupy a prominent place amongst what are properly called political institutions : in this respect they are pe- culiarly deserving of our attention. But I am at loss to explain the political action of the American tribunals without entering into some technical details on 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 Constitu- tion of the Federal Government, but to find out a method of enforcing its laws. Governments have in general but two means of overcoming the opposition of the people they govern, viz. the physical force which is at their own disposal, and the moral force which they derive from the decisions of the courts of justice. A government which should have no other means of exacting obedience than open war, must be very near its ruin ; for one of two alternatives would then probably occur: if its authority was small, and its character temperate, it would not resort to violence till the last extremity, and it would connive at a number of partial acts of insubordination, in which case the State would gradually fall into anarchy ; if it was enterprising and powerful, it would perpetually have recourse to its physical strength, and would speedily degenerate into 160 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 opposi- tion*. If it were always obliged to resort to violence in the first instance, it could not fulfill its task. The Union, therefore, required a national judiciary to enforce the obedience of the citizens to the laws, and to repel the attacks which might be directed against them. TJie 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, * 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 inde- pendent States, which entertained no real intention of obeying the central Government, and which very readily ceded the right of com- mand to the Federal executive, and very prudently reserved the right of non-compliance to themselves. 161 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 ensure the impartiality of the judges. The Americans form one people in relation to their Federal Government ; but in the bosom of this people divers political bodies have been allowed to subsist which are dependent on the national Government in a few points, and independent in all the rest which have all a distinct origin, maxims peculiar to themselves, and special means of carrying on their affairs. To entrust the execution of the laws of the Union to tribu- nals 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. 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 Consti- tution was formed, there were already thirteen courts of justice in the United States which decided causes without appeal. That number is now increased to twenty-four. To suppose that a State can subsist, when its funda- mental laws may be subjected to four-and-twenty dif- ferent interpretations at the same time, is to advance a proposition alike contrary to reason and to experience. 162 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 ex- pedition 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 inde- pendent 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 legisla- ture*. It was easy to proclaim the principle of a Federal judiciary, but difficulties multiplied when the extent of its jurisdiction was to be determined. * The Union was divided into districts, in each of which a resi- dent 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. 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 the 24th September, 1789, Laws of the United States, by Story, vol. i. p. 53. 163 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 inter- pretation of the laws. Consequently, the danger of the several States is more apparent than real. As the Constitution of the United States recognised two distinct powers, in presence of each other, repre- sented in a judicial point of view by two distinct classes of courts of justice, the utmost care which could be taken in denning 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, \vhen a question is debated between tw r o courts relating to their mutual jurisdiction, a third tribunal is generally within reach to decide the difference ; and this is effected with- out difficulty, because in these nations the questions of judicial competency have no connexion with the privi- leges 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 tw r o 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 esta- blished it dejure; for the interpretation of the Consti- 164 tution would soon have restored that portion of inde- pendence 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 juris- prudence 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 cas.es 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*. 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 li- mits of the Federal supremacy, but whenever this supre- macy is contested by one of the States, a Federal tribu- nal decides the question. Nevertheless, the dangers with which the independence of the States was threat- ened 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 weak- * In order to diminish the numher 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 th 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, p. 370, et seq. ; Story's Commentaries, p. 61G; and The Or- ganic Law of the United States, vol. i. p. 35. 165 ness 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 juris- diction. 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 non-performance of contracts tried by the Federal courts. Consequences of this arrangement. AFTER having appointed the means of fixing the com- petency of the Federal courts, the legislators of the Union defined the cases which should come within their juris- diction. It was established, on the one hand, that cer- tain 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 di- stinctions were therefore admitted to be the bases 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 tri- bunal is naturally called upon to decide it. The Union itself may be involved in legal proceedings, and in this case it w r ould be alike contrary to the customs of all nations, and to common sense, to appeal to a tri- bunal representing any other sovereignty than its own ; 166 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 ex- pedient 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 dis- putes ; and the most trifling litigation of the States may be said to involve the peace of the whole Union*. 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 f. Almost all these questions are connected with the interpretation of the law of na- tions ; 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 ju- risdiction, the national courts can only hear causes which originate in maritime affairs. * 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 incases 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 Chisholme v. Georgia, and was decided by the majority of the Supreme Court in the affirma- tive. This 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. f As, for instance, all cases of piracy. 167 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 ex- tend 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, notwith- standing 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, be- cause it arises under the interpretation of a law of the United States. This rule is in perfect accordance with the fundamen- tal principles of the Federal Constitution. The Union, as it was established in 1789, possesses, it is true, a li- mited supremacy ; but it was intended that within its limits it should form one and the same people*. 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 * 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. 168 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 abso- lute 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 to the Union, the natural consequence is that it should come within the jurisdiction of a Federal court. Whenever the laws of the United States are attacked, or whenever they are resorted to in self-defence, the Fe- deral 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 com- ponent States. Their chief solicitude was to arm the Federal Government \vith 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 169 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 Consti- tution. The States are prohibited from making ex-post- facto laws in criminal cases ; and any person condemned by virtue of a law of this kind can appeal to the judicial power of the Union. The States are likewise prohibited from making laws which may have a tendency to im- pair the obligations of contracts *. 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 f. * 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 under- stood 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 a 1 .!. 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. f A remarkable instance of this is given by Mr. Story (p. 508, or in the large edition 1388). "Dartmouth College in New Hamp- shire had been founded by a charter granted to certain individuals before the American Revolution, and its trustees formed a corpora- tion under this charter. The legislature of New Hampshire had, without the consent of this corporation, passed an act changing the VOL. I. 1 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 Ob- 's ions national importance are definite and easily com- prehensible : but those with which this last clause in- vests 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, Avhich may thus furnish an easy pretext for the aggres- sions of the central authority. 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 con- stitutionality 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 im- pairing 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 hestowed 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 ; hut 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." [I have been induced somewhat to extend the mention of this case made by the author, because this precedent, whilst it explains an im- portant clause in the American Constitution, offers a curious if not a weighty opinion on the important question of private grants and foundations as contrasted with what has been termed the national property, a question which may prove the most dangerous, as it is now one of the most serious, agitated in England. Translator's Note.'] PROCEDURE OF THE FEDERAL COURTS. Natural weakness of the judiciary power in confederations. Legis- lators ought to strive as much as possible to bring private indivi- duals, and not States, before the Federal Courts. How the Ame- ricans have succeeded in this. Direct prosecution of private indi- viduals 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 is undi- vided, 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 coun- tries 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 represen- tative of the nation, and the justiciable party as the re- presentative of an individual interest. Every Government, whatever may be its constitution, requires the means of constraining its subjects to dis- charge their obligations, and of protecting its privileges i2 from their assaults. As far as the direct action of the government on the community is concerned, the Con- stitution 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 Con- stitution, 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 tax- payer; 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 anta- gonist is feeble, he is naturally worsted. But the difficulty increases when the proceedings are not brought forward by but against the Union. The Constitution recognises the legislative power of the States ; and a law so enacted may impair the privileges of the Union, in which case a collision is 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 gene- ral principles I have before established*. It may be conceived that, in the case under considera- * See Chapter VI. on Judicial Power in America. 173 tion, the Union might have sued the State before a Fede- ral 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 desira- ble 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 in- dividual 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 terri- tory 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 pos- session, the possessor under the first act brings his ac- tion before the tribunals of the Union, and causes the title of the claimant to be pronounced null and void*. 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. 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 O * 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 * See Kent's Commentaries, vol. i. p. 387. 174 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 dan- ger pointed out at the beginning of this chapter exists with less chance of being avoided. The inherent dis- advantage 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 OP THE SUPREME COURTS AMONGST THE GREAT POWERS OF STATE. No nation ever constituted so great a judicial power as the Ameri- cans. 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 or- ganization of the Supreme Court, and the entire pre- rogatives 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 con- trols. In all the civilized countries of Europe, the Govern- ment has always shown the greatest repugnance to allow the cases to which it was itself a party to be de- cided by the ordinary course of justice. This repug- nance 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 re- 175 gard to their origin, can be decided by the judges of common law. In America this theory has been actually put in prac- tice ; 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 exe- cutive and legislative authorities, to all cases of admi- ralty 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 sove- reignty 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 ordi- nary 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 disap- point 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 cooperation the Constitution would be a dead letter: the Executive appeals to them for 176 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 conser- vative 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 ele- ments 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. Con- gress 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 this tribunal, but in the very nature of Federal Governments. We have observed that in confederate peoples it is especially necessary to con- solidate the judicial authority, because in no other na- tions 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, t THE Federal Constitution differs essentially from that of the States in the ends which it is intended to accom- plish ; but in the means by which these ends are pro- moted, 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 su- perior 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, i 5 173 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 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. The chief cause of the superiority of the Federal Con- stitution lay in the character of the legislators who com- posed it. At the time when it w r as 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 nur- tured 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 independ- ence was definitively 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, be- cause they were resolutely opposed to destruction*. * At this time Alexander Hamilton, who was one of the principal 179 The greater number of the Constitutions of the States assign one year for the duration of the House of Repre- sentatives, 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 founders of the Constitution, ventured to express the following senti- ments 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 com- munity 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 inclina- tions, 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." 180 representatives were returned, in order to give them freer scope for the exercise of their own judgement. 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 Constitu- tion 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 demo- cracies ; 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 mul- titude, and it is naturally led to monopolise every species of influence. This concentration is at once prejudicial to a well-conducted administration, and favourable 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 181 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 entrusting the execu- tion of the laws to special committees of its own mem- bers, 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 regu- lating the emoluments of the judges, a practice which necessarily subjects these magistrates to its immediate influence. In some States the judges are only tem- porarily appointed, which deprives them of a great por- tion of their power and their freed6m. 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 incom- parably 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 vigour 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. Distinc- tions 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 183 of which have existed in modern Europe, without adverting to those of antiquity. Switzerland, the Ger- manic Empire, and the Republic of the United Pro- vinces 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 ineffi- ciency as that of the Union is for its vigorous and enter- prising spirit. Again, the first American Confedera- tion perished through the excessive weakness of its Government ; and this weak Government was, notwith- standing, 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 con- founded with the Federal constitutions which preceded it, rests upon a novel theory, which may be considered as a great invention in modern political sciefTce. In all the confederations w r hich 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 184 the Federal Government should not only dictate the laws, but that it should execute its 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 two alter- natives has invariably occurred : either the most prepon- derant of the allied peoples has assumed the privileges of the Federal authority, and ruled all the other States in its name*; 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 f. 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, * This was the case in Greece, when Philip undertook to execute the decree of the Araphictyons ; 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. f Such has always been the situation of the Swiss Confederation, which would have perished ages ago but for the mutual jealousies of its neighbours. 185 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 accord- ance 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, al- though 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 deno-- 186 urinated 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 \vhom 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 of 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 w r hich 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 de- fects. 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 them- selves, 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 re- medy with prudent firmness as soon as they were 187 conscious of the evil ; they amended their laws, and they saved their country. 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 favourable 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. Lv 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 we 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 188 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 wdth the arrangements of domestic life. Tastes as well as actions are to be re- gulated at its pleasure ; and the families of the citizens as w r ell 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 Govern- ment 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 cradles 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 con- sequence of their 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*, and this has led to the conclu- sion 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 * I do not speak of a confederation of small republics, but of a great consolidated republic. 189 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. 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 pow r er 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 in- terests, 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 mo- narchical States the strength of the Government is its own ; it may use, but it does not depend on the com- munity ; 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 re- public 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 propen- sities and interests of the people are diversified by the increase of population, and the difficulty of forming a compact majority is constantly augmented. It has been 190 observed, moreover, that the intensity of human passions is heightened, not only by the importance of the end Avhich 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 irre- sistible, 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 re- gard 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 im- provement than small States, we shall discover an ade- quate 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 im- portant 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 com- pletely disengaged from the routine of precedent and the egotism of local prejudice; its designs are conceived with more talent, and executed with more boldness. 191 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 af- flicted 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 mar- kets of the globe. Small nations are often impoverished, not because they are small, but because they are weak ; and 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 sin- gle glance over the United States of America suffices 192 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 po- pulation 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 Govern- ment, and all the details of the administration are re- served to the provincial legislatures. It is impossible to imagine how much this division of sovereignty contri- butes to the well-being of each of the States which com- pose 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 cen- tral Government of each State, which is in immediate juxtaposition to the citizens, is daily apprized of the wants which arise in society ; and new projects are pro- posed every year, w r hich 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 ame- lioration 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 repub- lican form of government in the New World depend 193 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 sove- reignty. It is incontestably true that the love and the habits of republican government in the United States were en- gendered in the townships and in the provincial assem- blies. In a small State, like that of Connecticut for in- stance, 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 honour cannot be bestowed upon the chief citizens, no form of government can be more na- tural 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 nur- tured 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 re- .public into the common store of American patriotism. In defending the Union, he defends the increasing pro- sperity of his own district, the right of conducting its affairs, and the hope of causing measures of improve- ment to be adopted which may be favourable to his own interests ; 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 wel- fare of a great republic, the Federal system smoothed the obstacles which they might have encountered. The VOL. I. K 194 confederation of all the American States presents none of the ordinary disadvantages resulting from great ag- glomerations of men. The Union is a great republic in extent, but the paucity of objects for which its Govern- ment 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 po- verty, 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 inha- bited by one people. Nothing checks the spirit of enter- prise. The 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 pre- vails, 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 flag 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. 195 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 thepart of the citizens. Practical know- ledge of government common amongst the Americans. Relative weakness of the Government of the Union, another defect inhe- rent in the Federal system. The Americans have diminished without remedying it. The sovereignty of the separate States ap- parently weaker, but really stronger, than that of the Union. Why. Natural causes of union must exist between confederate peoples beside 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 Britany. 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 cooperation, 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 him- self borne away by the current, after an ineffectual re- sistance. 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 K 2 196 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 inhe- rent 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 im- perfections 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 denned ; 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 com- plicated, 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 num- ber of adherents in the world than a true principle which is obscure or involved. Hence it arises that parties, w : hich 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 denned, are perhaps hot the best, but they are unquestionably the strongest and the most durable in the world. 197 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 the information and the excellence of discre- tion which it presupposes in the people whom it is meant to govern. The Government of the Union de- pends 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 appli- cation ; 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 Avhich 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 judgement of the Ame- ricans than in the ingenious devices by which they elude the numberless difficulties resulting from their Federal Constitution. I scarcely ever met with a plain Ame- rican 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 regu- late, 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 198 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 neigh- bours the Anglo-Americans as their model, and copied it with considerable accuracy*. 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 w r ere involved in ceaseless embarrass- ments between the mechanism of their double Govern- ment ; 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. 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 com- bining the restriction of the power of the Union within the naiTow 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. * See the Mexican Constitution of 1824. 199 It has been remarked that the American Government does not apply itself to the States, but that it imme- diately 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 in- dividual 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 Fede- ral Government would vainly attempt to subdue them individually ; they would instinctively unite in a com- mon 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 w T ay to reality, and an organized portion of the territory might then contest the central authority. The same observation holds good with regard to the Federal jurisdiction. If the courts of the Union vio- lated 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*. He would have but a partial knowledge of the world who should imagine that it is possible, by the aid of * 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 terri- tories 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 be- come 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 ,' 200 legal fictions, to prevent men from finding out and em- ploying 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 sovereignties less probable, destroyed the causes of such a misfortune. But it may even be affirmed that they w r ere 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 ac- tive ; 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 pro- tects his property, his freedom, and his life ; and when we recollect the traditions, the customs, the prejudices of local and familiar attachment with w and made subservient to the acquisition of wealth. But Captain Smith is most remarkable for uniting, to the virtues which characterized his cotemporaries, several qualities to which they were generally strangers ; his style is simple and concise, his narratives bear the stamp of truth, and his descriptions are free from false ornament. This author throws most valuable light upon the state and condition of the Indians at the time when North America was first discovered. The second historian to consult is Beverley, who com- mences his narrative with the year 1585, and ends it with 1700. The first part of his book contains historical docu- ments properly so called, relative to the infancy of the colony. The second affords a most curious picture of the state of the Indians at this remote period. The third conveys very clear ideas concerning the manners, social condition, laws, and po- litical customs of the Virginians in the author's lifetime. Beverley was a native of Virginia, which occasions him to say at the beginning of his book that he entreats his readers not to exercise their critical severity upon it, since, having been born in the Indies, he does not aspire to purity of lan- guage. Notwithstanding this colonial modesty, the author shows throughout his book the impatience with which he en- dures the supremacy of the mother- country. In this work of 251 Beverley are also found numerous traces of that spirit of civil liberty which animated the English colonies of America at the time when he wrote. He also shows the dissensions which existed among them and retarded their independence. Beverley detests his Catholic neighbours of Maryland even more than he hates the English Government : his style is simple, his narrative interesting and apparently trustworthy. I saw in America another work which ought to be consult- ed, entitled The History of Virginia, by William Stith. This book affords some curious details, but I thought it long and diffuse. The most ancient as well as the best document to be con- sulted on the history of Carolina is a work in small quarto, entitled The History of Carolina, by John Lawson, printed at London in 1718. This work contains in the first part, a jour- ney of discovery in the west of Carolina, the account of which, given in the form of a journal, is in general confused and superficial ; but it contains a very striking description of the mortality caused among the savages of that time both by the small pox and the immoderate use of brandy ; with a curious picture of the corruption of manners prevalent amongst them, which was increased by the presence of Europeans. The se- cond part of Lawson's book is taken up with a description of the physical condition of Carolina, and its productions. In the third part the author gives an interesting account of the manners, customs, and government of the Indians at that period. ' There is a good deal of talent and originality in this part of the work. Lawson concludes his history with a copy of the Charter granted to the Carolinas in the reign of Charles II. The general tone of this work is light, and often licentious, forming a perfect contrast to the solemn style of the works published at the same period in New England. Lawson's History is extremely scarce in America, and cannot be procured in Eu- rope. There is, however, a copy of it in the Royal Library at Paris. From the southern extremity of the United States I pass 252 at once to the northern limit ; as the intermediate space was not peopled till a later period. I must first point out a very curious compilation, entitled Collection of the Massachusetts Historical Society, printed for the first time at Boston in 1792, and reprinted in 1806. The Collection of which I speak, and which is continued to the present day, contains a great number of very valuable docu- ments relating to the history of the different States of New England. Among them are letters which have never been published, and authentic pieces which had been buried in pro- vincial archives. The whole work of Gookin concerning the Indians is inserted there. I have mentioned several times in the chapter to which this note relates the work of Nathaniel Norton, entitled New Eng- land's Memorial ; sufficiently perhaps to prove that it deserves the attention of those who would be conversant with the hi- story of New England. This book is in Svo, and was reprint- ed at Boston in 1826. The most valuable and important authority which exists upon the history of New England is the work of the Rev. Cotton Mather, entitled Magnolia Christi Americana, or the Ecclesiastical History of New England, 1620-1698, 2 vols. Svo, reprinted at Hartford, United States, in 1820 1 . The author divided his work into seven books. The first presents the history of the events which prepared and brought about the establishment of New England. The second contains the lives of the first governors and chief magistrates who presided over the country. The third is devoted to the lives and la- bours of the evangelical ministers who during the same period had the care of souls. In the fourth the author relates the institution and progress of the University of Cambridge (Mas- sachusetts). In the fifth he describes the principles and the discipline of the Church of New England. The sixth is taken up in retracing certain facts, which, in the opinion of Mather, prove the merciful interposition of Providence in behalf of the 1 A folio edition of this work was published in London in 1702. 253 inhabitants of New England. Lastly, in the seventh, the author gives an account of the heresies and the troubles to which the Church of New England was exposed. Cotton Mather was an evangelical minister who was born at Boston, and passed his life there. His narratives are distinguished by the same ardour and religious zeal which led to the foundation of the colonies of New England. Traces of bad taste some- times occur in his manner of writing ; but he interests, be- cause he is full of enthusiasm. He is often intolerant, still oftener credulous, but he never betrays an intention to deceive. Sometimes his book contains fine passages, and true and pro- found reflections, such as the following : " Before the arrival of the Puritans," says he, (vol. i. chap, iv.) " there were more than a few attempts of the English to people and improve the parts of New England which were to the northward of New Plymouth ; but the designs of those attempts being aimed no higher than the advancement of some worldly interests, a constant series of disasters has confounded them, until there was a plantation erected upon the nobler designs of Christianity : and that plantation, though it has had more adversaries than perhaps any one upon earth, yet, having obtained help from God, it continues to this day." Mather occasionally relieves the austerity of his descriptions with images full of tender feeling : after having spoken of an English lady whose religious ardour had brought her to Ame- rica with her husband, and who soon after sank under the fa- tigues and privations of exile, he adds, " As for her virtuous husband, Isaac Johnson, He tryed To live without her, liked it not, and dyed." (Vol. i.) Mather's work gives an admirable picture of the time and country which he describes. In his account of the motives which led the Puritans to seek an asylum beyond seas, he says : " The God of Heaven served, as it were, a summons upon the spirits of his people in the English nation, stirring up the spirits of thousands which never saw the faces of each other, 254 with a most unanimous inclination to leave all the pleasant accommodations of their native country, and go over a terrible ocean, into a more terrible desert, for the pure enjoyment of all his ordinances. It is now reasonable that, before we pass any further, the reasons of this undertaking should be more exactly made known unto posterity, especially unto the pos- terity of those that were the undertakers, lest they come at length to forget and neglect the true interest of New Eng- land. Wherefore I shall now transcribe some of them from a manuscript wherein they were then tendered unto con- sideration. " General Considerations for the Plantation of New England. " First, It will be a service unto the Church of great con- sequence, to carry the Gospel unto those parts of the world, and raise a bulwark against the kingdom of Antichrist, which the Jesuits labour to rear up in all parts of the world. " Secondly, All other Churches of Europe have been brought under desolations ; and it may be feared that the like judge- ments are coming upon us ; and who knows but God hath provided this place to be a refuge for many whom he means to save out of the general destruction ? " Thirdly, The land grows weary of her inhabitants, inso- much that man, which is the most precious of all creatures, is here more vile and base than the earth he treads upon ; children, neighbours, and friends, especially the poor, are counted the greatest burdens, which, if things were right, would be the chiefest of earthly blessings. " Fourthly, We are grown to that intemperance in all ex- cess of riot, as no mean estate almost will suffice a man to keep sail with his equals, and he that fails in it must live in scorn and contempt ; hence it comes to pass, that all arts and trades are carried in that deceitful manner and unrighteous course, as it is almost impossible for a good upright man to maintain his constant charge and live comfortably in them. "Fifthly, The schools of learning and religion are so cor- 255 rupted, as (beside the unsupportable charge of education) most children, even the best, wittiest, and of the fairest hopes, are perverted, corrupted, and utterly overthrown by the multitude of evil examples and licentious behaviours in these seminaries. " Sixthly, The whole earth is the Lord's garden, and he hath given it to the sons of Adam, to be tilled and improved by them : why then should we stand starving here for places of habitation, and in the mean time suffer whole countries, as profitable for the use of man, to lie waste without any im- provement ? " Seventhly, What can be a better or nobler work, and more worthy of a Christian, than to erect and support a reformed particular Church in its infancy, and unite our forces with such a company of faithful people, as by timely assistance may grow stronger and prosper ; but for want of it, may be put to great hazards, if not be wholly ruined ? " Eighthly, If any such as are known to be godly, and live in wealth and prosperity here, shall forsake all this to join with this reformed Church, and with it run the hazard of an hard and mean condition, it will be an example of great use, both for the removing of scandal, and to give more life unto the faith of God's people in their prayers for the plantation, and also to encourage others to join the more willingly in it." Further on, when he declares the principles of the Church of New England with respect to morals, Mather inveighs with violence against the custom of drinking healths at table, which he denounces as a pagan and abominable practice. He pro- scribes with the same rigour all ornaments for the hair used by the female sex, as well as their custom of having the arms and neck uncovered. In another part of his work he relates several instances of witchcraft which had alarmed New England. It is plain that the visible action of the devil in the affairs of this world ap- peared to him an incontestable and evident fact. This work of Cotton Mather displays, in many places, the 256 spirit of civil liberty andpolitical independence which character- ized the times in which he lived. Their principles respecting government are discoverable at every page. Thus, for instance, the inhabitants of Massachusetts, in the year 1630, ten years after the foundation of Plymouth, are found to have devoted 400^. sterling to the establishment of the University of Cam- bridge. In passing from the general documents relative to the history of New England, to those which describe the several States comprised within its limits, I ought first to no- tice The History of the Colony of Massachusetts, by Hutchinson, Lieutenant-Governor of the Massachusetts Province, 2 vols. 8vo. The History of Hutchinson, which I have several times quoted in the chapter to which this note relates, commences in the year 1628 and ends in 1750. Throughout the work there is a striking air of truth and the greatest simplicity of style : it is full of minute details. The best History to consult concerning Connecticut is that of Benjamin Trumbull, entitled, A Complete History of Con- necticut, Civil and Ecclesiastical, 1630 1764; 2 vols. 8vo, printed in 1818, at New-Haven. This history contains a clear and calm account of all the events which happened in Con- necticut during the period given in the title. The author drew from the best sources ; and his narrative bears the stamp of truth. All that he says of the early days of Connecticut is extremely curious. See especially the Constitution of 1639, vol. i. ch. vi. p. 100; and also the Penal Laws of Con- necticut, vol. i. ch. vii. p. 123. The History of New Hampshire, by Jeremy Belknap, is a work held in merited estimation. It was printed at Boston in 1792, in 2 vols. 8vo. The third chapter of the first volume is particularly worthy of attention for the valuable details it affords on the political and religious principles of the Puritans, on the causes of their emigration, and on their laws. The following curious quotation is given from a sermon delivered in 1663 : " It concerneth New England always to remember that they are a plantation religious, not a plantation of trade. The profession of the purity of doctrine, worship, and disci- 257 pline is written upon her forehead. Let merchants, and such as are encreasing cent, per cent, remember this, that world- ly gain was not the end and design of the people of New England, but religion ; and if any man among us make re- ligion as twelve, and the world as thirteen, such an one hath not the spirit of a true New Englishman." The reader of Belknap will find in his work more general ideas, and more strength of thought, than are to be met with in the American historians even to the present day. Among the Central States which deserve our attention for their remote origin, New York and Pennsylvania are the fore- most. The best history we have of the former is entitled A History of New York, by William Smith, printed at London in 1757. Smith gives us important details of the wars between the French and English in America. His is the best account of the famous confederation of the Iroquois. With respect to Pennsylvania, I cannot do better than point out the work of Proud, entitled the History of Pennsyl- vania, from the original Institution and Settlement of that Province, under the first Proprietor and Governor William Penn, in 1681, till after the year 1742; by Robert Proud, 2 vols. 8vo. printed at Philadelphia in 1797. This work is de- serving of the especial attention of the reader ; it contains a mass of curious documents concerning Penn, the doctrine of the Quakers, and the character, manners, and customs of the first inhabitants of Pennsylvania, I need not add that among the most important documents relating to this state are the Works of Penn himself and those of Franklin. APPENDIX G. Page 44. We read in Jefferson's Memoirs as follows : "At the time of the first settlement of the English in Vir- ginia, when land was to be had for little or nothing, some provident persons having obtained large grants of it, and 258 being desirous of maintaining the splendour of their families, entailed their property upon their descendants. The transmis- sion of these estates from generation to generation, to men who bore the same name, had the effect of raising up a distinct class of families, who, possessing by law the privilege of perpetuating their wealth, formed by these means a sort of patrician order, distinguished by the grandeur and luxury of their establish- ments. From this order it was that the King usually chose his councillors of state*." In the United States, the principal clauses of the English law respecting descent have been universally rejected. The first rule that we follow, says Mr. Kent, touching inheritance is the following : If a man dies intestate, his property goes to his heirs in a direct line. If he has but one heir or heiress, he or she succeeds to the whole. If there are several heirs of the same degree, they divide the inheritance equally amongst them, without distinction of sex. This rule was prescribed for the first time in the State of New York by a statute of the 23rd of February, 1786. (See Revised Statutes, vol. iii., Appendix, p. 48.) It has since then been adopted in the revised statutes of the same State. At the present day this law holds good throughout the whole of the United States, with the exception of the State of Ver- mont, where the male heir inherits a double portion. Kent's Commentaries, vol. iv. p. 370. Mr. Kent, in the same work, vol. iv. p. 1 22, gives an historical account of American legislation on the subject of entail : by this we learn, that previous to the revolution, the colonies followed the English law of entail. Estates tail were abolished in Virginia in 1776, on a motion of Mr. Jefferson. They were suppressed in Ne,w York in 1786 ; and have since been abolished in North Carolina, Kentucky, Tennessee, Georgia, and Missouri. In Vermont, Indiana, Illinois, South Carolina, and Louisiana, entail was never introduced. Those States which thought * This passage is extracted and translated from M. Conseil's work upon the Life of Jefferson, entitled ' Melanges Politiques et Philosophiques de Jefferson,' 259 proper to preserve the English law of entail, modified it in such a way as to deprive it of its most aristocratic tendencies. " Our general principles on the subject of government," says Mr. Kent, " tend to favour the free circulation of property." It cannot fail to strike the French reader who studies the law of inheritance, that on these questions the French legis- lation is infinitely more democratic even than the American. The American law makes an equal division of the father's property, hut only in the case of his will not being known ; " for every man," says the law, " in the State of New York, (Revised Statutes, vol. iii., Appendix, p. 51,) has entire liberty, power, and authority, to dispose of his property by will, to leave it entire, or divided in favour of any persons he chooses as his heirs, provided he -do not leave it to a political body or any corporation." The French law obliges the testator to divide his property equally, or nearly so, among his heirs. Most of the American republics still admit of entails, under certain restrictions ; but the French law prohibits entail in all cases. If the social condition of the Americans is more democratic than that of the French, the laws of the latter are the most democratic of the two. This may be explained more easily than at first appears to be the case. In France, democracy is still occupied in the work of destruction ; in America it reigns quietly over the ruins it has made. APPENDIX H. Page 53. SUMMARY OF THE QUALIFICATIONS OF VOTERS IN THE UNITED STATES. All the States agree in granting the right of voting at the age of twenty-one. In all of them it is necessary to have re- sided for a certain time in the district where the vote is given. This period varies from three months to two years. 260 As to the qualification ; in the State of Massachusetts, it is necessary to have an income of three pounds sterling, or a capital of sixty pounds. In Rhode Island, a man must possess landed property to the amount of 133 dollars. In Connecticut, he must have a property which gives an income of seventeen dollars. A year of service in the militia also gives the elective privilege. In New Jersey, an elector must have a property of fifty pounds a year. In South Carolina and Maryland, the elector must possess fty acres of land. In Tennessee, he must possess some property. In the States of Mississippi, Ohio, Georgia, Virginia, Penn- sylvania, Delaware, New York, the only necessary qualifica- tion for voting is that of paying the taxes ; and in most of the States, to serve in the militia is equivalent to the payment of taxes. In Maine and New Hampshire, any man can vote who is not on the pauper list. Lastly, in the States of Missouri, Alabama, Illinois, Lou- isiana, Indiana, Kentucky and Vermont, the conditions of voting have no reference to the property of the elector. I believe there is no other State beside that of North Caro- lina in which different conditions are applied to the voting for the Senate and the electing the House of Representatives. The electors of the former, in this case, should possess in property fifty acres of land ; to vote for the latter, nothing more is required than to pay taxes. APPENDIX L Page 102. The small number of Custom-house officers employed in the United States compared with the extent of the coast ren- ders smuggling very easy ; notwithstanding which it is less 261 practised than elsewhere, because every body endeavours to press it. In America there is no police for the prevention of fires, and such accidents are more frequent than in Europe ; but in general they are more speedily extinguished, because the surrounding population is prompt in lending as- sistance. APPENDIX K. Page 104. It is incorrect to assert that centralization was produced by the French revolution : the revolution brought it to perfection, but did not create it. The mania for centralization and go- vernment regulations dates from the time when jurists began to take a share in the government, in the time of Phillippe- le-Bel; ever since which period they have been on the in- crease. In the year 1775, M. de Malesherbes, speaking in the name of the Cour des Aides, said to Louis XIV*. " Every corporation and every community of citizens retained the right of administering its own affairs ; a right, which not only forms part of the primitive constitution of the kingdom, but has a still higher origin ; for it is the right of nature and of reason. Nevertheless your subjects, Sire, have been deprived of it ; and we cannot refrain from saying that in this respect your government has fallen into puerile ex- tremes. From the time when powerful ministers made it a political principle to prevent the convocation of a national assembly, one consequence has succeeded another, until the deliberations of the inhabitants of a village are declared null vrhen they have not been authorized by the Intendant. Of course, if the community has an expensive undertaking to carry through, it must remain under the control of the sub-delegate of the Intendant, and consequently follow the plan he proposes, employ his favourite workmen, pay them according to his plea- sure ; and if an action at law is deemed necessary, the Intend- ant's permission must be obtained. The cause must be pleaded * See ' Memoires pour servir a 1'Histoire du Droit Public de la France en matiere d'Impots,' p. 654, printed at Brussels in 1779. 262 before this first tribunal, previous to its being carried into a public court ; and if the opinion of the Intendant is opposed to that pi the inhabitants, or if their adversary enjoys his favour, the community is deprived of the power of defending its rights. Such are the means, Sire, which have been ex- erted to extinguish the municipal spirit in France ; and to stifle, if possible, the opinions of the citizens. The nation may be said to lie under an interdict, and to be in wardship under guardians." What could be said more to the purpose at the present day, when the revolution has achieved what are called its victories in centralization ? In 1789, Jefferson wrote from Paris to one of his friends : "There is no country where the mania for over-governing has taken deeper root than in France, or been the source of greater mischief." Letter to Madison, 28th August, 1789. The fact is, that for several centuries past the central power of France has done everything it could to extend central administration ; it has acknowledged no other limits than its own strength. The central power to which the revolution gave birth made more rapid advances than any of its prede- cessors, because it was stronger and wiser than they had been ; Louis XIV. committed the welfare of such communities to the caprice of an Intendant ; Napoleon left them to that of the Minister. The same principle governed both, though its consequences were more or less remote. ' APPENDIX L. Page 109. This immutability of the Constitution of France is a neces- sary consequence of the laws of that country. . To begin with the most important of all the laws, that which decides the order of succession to the Throne ; what can be more immutable in its principle than a political order founded upon the natural succession of father to son? In 1814 Louis XVIII. had established the perpetual law of hereditary 263 succession in favour of his own family. The individuals who regulated the consequences of the revolution of 1830 followed his example ; they merely established the perpetuity of the law in favour of another family. In this respect they imitated the Chancellor Meaupou, who, when he erected the new par- liament upon the ruins of the old, took care to declare in the same ordinance that the rights of the new magistrates should be as inalienable as those of their predecessors had been. The laws of 1830, like those of 1814, point out no way of changing the Constitution ; and it is evident that the ordinary means of legislation are insufficient for this purpose. As the King, the Peers, and the Deputies all derive their authority from the Constitution, these three powers united cannot alter a law by virtue of which alone they govern. Out of the pale of the Constitution, they are nothing: where, then, could they take their stand to effect a change in its provisions ? The alternative is clear : either their efforts are powerless against the Charter, which continues to exist in spite of them, in which case they only reign in the name of the Charter ; or they succeed in changing the Charter, and then the law by which they existed being annulled, they themselves cease to exist. By destroying the Charter they destroy themselves. This is much more evident in the laws of 1 830 than in those of 1814. In 1814, the royal prerogative took its stand above and beyond the Constitution ; but in 1 830, it was avowedly created by, and dependent on, the Constitution. A part therefore of the French Constitution is immutable, because it is united to the destiny of a family ; and the body of the Constitution is equally immutable, because there appear to be no legal means of changing it. These remarks are not applicable to England. That coun- try having no written Constitution, who can assert when its Constitution is changed ? 264 APPENDIX M. Page 109. The most esteemed authors who have written upon the English Constitution agree with each other in establishing the omnipotence of the Parliament. Delolme says, "It is a fundamental principle with the English lawyers, that Parliament can do everything except making a woman a man, or a man a woman." Blackstone expresses himself more in detail, if not more energetically, than Delolme, in the following terms : " The power and jurisdiction of Parliament, says Sir Edward Coke (4 Inst. 36.), is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high Court, he adds, may be truly said, ' Si antiquitatem species, est vetustissima ; si dignitatem, est honoratissima ; si jurisdictionem, est capacissima.' It hath sovereign and uncontrollable authority in the making, confirm- ing, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible denomi- nations ; ecclesiastical or temporal ; civil, military, maritime, or criminal ; this being the place where that absolute despotic power which must, in all Governments, reside somewhere, is entrusted by the Constitution of these kingdoms. All mis- chiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new-model the succession to the Crown ; as was done in the reign of Henry VIII. and William III. It can alter the established religion of the land ; as was done in a variety of instances in the reigns of King Henry VIII. and his three children. It can change and create afresh even the Constitution of the kingdom, and of parliaments themselves ; as was done by the Act of Union and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible to be done ; and, therefore, some have not scrupled to call its power by a figure rather too bold, the omnipotence of Par- liament." 265 APPENDIX N. Page 122. There is no question upon which the American Constitu- tions agree more fully than upon that of political jurisdiction. All the Constitutions which take cognizance of this matter, give to the House of Delegates the exclusive right of impeach- ment; excepting only the Constitution of North Carolina, which grants the same privilege to grand juries. (Article 23.) Almost all the Constitutions give the exclusive right of pronouncing sentence to the Senate, or to the Assembly which occupies its place. The only punishments which the political tribunals can inflict are removal, or the interdiction of public functions for the future. There is no other Constitution but that of Vir- ginia (p. 152,) which enables them to inflict every kind of punishment. The crimes which are subject to political jurisdiction are, in the Federal Constitution, (Section 4. Art. 1.) ; in that of In- diana, (Art. 3. paragraphs 23 and 24.) ; of New York, (Art. 5.) ; of Delaware, (Art. 5.); high treason, bribery, and other high crimes or offences. In the Constitution of Massachusetts, (Chap. I. Section 2.) ; that of North Carolina, (Art. 23.); of Virginia, (p. 252,) misconduct and maladministration. In the Constitution of New Hampshire, (p. 105.) corrup- tion, intrigue, and maladministration. In Vermont, (Chap. II., Art. 24.) maladministration. In South Carolina, (Art. 5.); Kentucky, (Art. 5.); Ten- nessee, (Art. 4.); Ohio, (Art. 1. 23, 24.); Louisiana, (Art. 5.); Mississippi, (Art. 5.); Alabama, (Art. 6.); Penn- sylvania, (Art. 4.) ; crimes committed in the nonperformance of official duties. In the States of Illinois, Georgia, Maine, and Connecticut, no particular offences are specified. VOL. I. N 266 APPENDIX O. It is true that the powers of Europe may carry on maritime wars with the Union ; but there is always greater facility and less danger in supporting a maritime than a continental war. Maritime warfare only requires one species of effort. A commercial people which consents to furnish its Government \vith the necessary funds, is sure to possess a fleet. And it is far easier to induce a nation to part with its money, almost unconsciously, than to reconcile it to sacrifices of men and personal efforts. Moreover defeat by sea rarely compromises the existence or independence of the people which endures it. As for continental wars, it is evident that the nations of Europe cannot be formidable in this way to the American Union. It would be very difficult to transport and maintain in America more than 25,000 soldiers ; an army which may be considered to represent a nation of about 2,000,000 of men. The most populous nation of Europe contending in this way against the Union, is in the position of a nation of 2,000,000 of inhabitants at war with one of 12,000,000. Add to this, that America has all its resources within reach, whilst the European is at 4000 miles, distance from his ; and that the immensity of the American continent would of itself present an insurmountable obstacle to its conquest. APPENDIX P. Constitution of the United States. We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tran- quillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. 267 ARTICLE I. SECTION I. 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Se- nate and a House of Representatives. SECTION 2. 1. The House of Representatives shall be composed of members chosen every second year by the people of the several States ; and the electors in each State shall have the quali- fications requisite for electors of the most numerous branch of the State legislature. 2. No person shall be a Representative who shall not have attained to the age of twenty- five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. 3. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and ex- cluding Indians not taxed, three fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each State shall have at least one representative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three ; Massachusetts eight ; Rhode Island and Pro- vidence Plantations one ; Connecticut five ; New York six ; New Jersey four ; Pennsylvania eight ; Delaware one ; Mary land six; Virginia ten ; North Carolina five ; South Carolina five ; and Georgia three. 4. When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of elec- tion to fill up such vacancies. N 2 268 5. The House of Representatives shall choose their speaker and other officers, and shall have the sole power of impeach- ment. SECTION 3. 1. The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof, for six years ; and each senator shall have one vote. 2. Immediately after they shall be assembled in consequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year ; of the second class at the expiration of the fourth year ; and of the third class at the expiration of the sixth year ; so that one third may be chosen every second year ; and if vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointment until the next meeting of the legisla- ture, which shall then fill such vacancies. 3. No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inha- bitant of that State for which he shall be chosen. 4. The Vice-President of the United States shall be Presi- dent of the Senate, but shall have no vote, unless they be equally divided. 5. The Senate shall choose their other officers, and also a president pro tempore, in the absence of the vice-president, or when he shall exercise the office of President of the United States. 6. The Senate shall have the sole power to try all impeach- ments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the chief justice shall preside ; and no person shall be convicted without the concurrence of two thirds of the mem- bers present. 7. Judgement, in case of impeachment, shall not extend further than to removal from office, and disqualification to hold 269 and enjoy any office of honour, trust, or profit, under the United States ; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgement, and punish- ment according to law. SECTION 4. 1 . The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each State by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators. 2. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. SECTION 5. 1. Each House shall be the judge of the elections, returns, and qualifications of its own members : and a majority of each shall constitute a quorum to do business ; but a smaller num- ber may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each House may provide. 2. Each House may determine the rules of its proceedings, punish its members for disorderly behaviour, and with the concurrence of two thirds, expel a member. 3. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgement require secrecy ; and the yeas and nays of the members of either House, on any question, shall, at the desire of one fifth of those present, be entered on the journal. 4. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. 270 SECTION 6. 1. The senators and representatives shall receive a com- pensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall, in all cases, except treason, felony, and breach of the peace, be pri- vileged from arrest during their attendance at the session of their respective Houses, and in going to or returning from the same ; and for any speech or debate in either House, they shall not be questioned in any other place. 2. No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created, or the emoluments whereof shall have been increased, during such time ; and no person holding any office under the United States shall be a member of either House during his continuance in office. SECTION 7. 1 . All bills for raising revenue shall originate in the House of Representatives ; but the Senate may propose or concur with amendments, as on other bills. 2. Every bill which shall have passed the House of Repre- sentatives and the Senate, shall, before it become a law, be presented to the President of the United States ; if he approve, he shall sign it ; but if not, he shall return it, with his objec- tions, to that House in which it shall have originated, who shall enter the objection at large on their journal, and proceed to re-consider it. If, after such re-consideration, two thirds of that House shall agree to pass the bill, it shall be sent, toge- ther with the objections, to the other House, by which it shall likewise be re-considered, and if approved by two thirds of that House, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If 271 any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in^ which case it shall not be a law. 3. Every order, resolution, or vote, to which the concur- rence of the Senate and House of Representatives may be ne- cessary, (except on a question of adjournment,) shall be pre- sented to the President of the United States ; and before the same shall take effect, shall be approved by him, or being dis- approved by him, shall be repass^ed by two thirds of the Senate and House of Representatives, according to the rules and limi- tations prescribed in the case of a bill, SECTION 8. The Congress shall have power 1. To lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence and ge- neral welfare of the United States ; but all duties, imposts, and excises, shall be uniform throughout the United States : 2. To borrow money on the credit of the United States : 3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes : 4. To establish a uniform rule of naturalization, and uni- form laws on the subject of bankruptcies throughout the United States. 5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures : 6. To provide for the punishment of counterfeiting the se- curities and current coin of the United States : 7 . To establish post offices and post roads : 8. To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the ex- clusive right to their respective writings and discoveries : 9. To constitute tribunals inferior to the supreme court: To define and punish piracies and felonies committed on the high geas and offences against the law of nations : 272 10. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water : 1 1 . To raise and support armies ; but no appropriation of money to that use shall be for a longer term than two years : 12. To provide and maintain a navy : ] 3. To make rules for the government and regulation of the land and naval forces : 14. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions : 15. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be em- ployed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress : 16. To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square,) as may, by cession of particular States, and the acceptance of Con- gress, become the seat of government of the United States, and to exercise like authority over all places purchased, by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings : and, 17. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. SECTION 9. 1. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight ; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each per- son. 2. The privilege of the writ of habeas corpus shall not be 273 suspended, unless when, in cases of rebellion or* invasion, the public safety may require it. 3. No bill of attainder, or ex post facto law, shall be passed. 4. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. 5. No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another : nor shall vessels bound to or from one State, be obliged to enter, clear, or pay duties in another. 6. No money shall be drawn from the treasury, but in con- sequence of appropriations made by law ; and a regular state- ment and account of the receipts and expenditures of all public money shall be published from time to time. 7. No title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any pre- sent, emolument, office, or title of any kind whatever, from any king, prince, or foreign state. SECTION 10. 1. No State shall enter into any treaty, alliance, or con- federation ; grant letters of marque and reprisal ; coin money ; emit bills of credit ; make anything but gold and silver coin a tender in payment of debts ; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts ; or grant any title of nobility. 2. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws ; and the neat produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States, and all such laws shall be subject to the revision and control of the Congress. No State shall, with- out the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agree- N 5 274 ment or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such immi- nent danger as will not adroit of delay. ARTICLE II. SECTION 1. 1 . The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice-President, chosen for the same term, be elected as follows : 2. Each State shall appoint, in such manner as the legisla- ture thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the State may be entitled in the Congress ; but no senator or re- presentative, or person holding any office of trust or profit under the United States, shall be appointed an elector. 3. The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each ; which list they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. The Presidentof the Senpte shall, in the presence of the Senate and House of Re- presentatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed ; and if there be more than one who have such a- majority, and have an equal number of votes, then the House of Representatives shall immediately choose, by ballot, one of them for President ; and if no person have a majority, then, from the five highest on the list, the said House shall, in like manner, choose the President. But, in choosing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall 275 be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors, shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them, by ballot, the Vice-President. 4. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes ; which day shall be the same throughout the United States. 5. No person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Consti- tution, shall be eligible to the office of President : neither shall any person be eligible to that office who shall not have at- tained to the age of thirty-five years, and been fourteen years, a resident within the United States. 6. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice- President, and the Congress may, by law, provide for the case of removal, death, resignation, or inability, both of the Presi- dent and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. 7., The President shall, at stated times, receive for his ser- vices a compensation, which shall neither be increased nor di- minished during the period for which he shall have been elect- ed, and he shall not receive within that period any other emolu- ment from the United States, or any of them. 8. Before he enter on the execution of his office, he shall take the following oath or affirmation : 9. " I do solemnly swear (or affirm) that I will faithfully exe- cute the office of President of the United States, and will to the best of my ability preserve, protect, and defend the Con- stitution of the United States." SECTION 2. 1 . The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the seve- 276 ral States, when called into the actual service of the United States ; he may require the opinion, in writing, of the prin- cipal officer in each of the executive departments, upon any subjects relating to the duties of their respective offices ; and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. 2. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the sena- tors present concur : and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassa- dors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose ap- pointments are not herein otherwise provided for, and which shall be established by law. But the Congress may, by law, vest the appointment of such inferior officers as they think proper, in the President alone, in the courts of law, or in the heads of departments. 3. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next ses- sion. SECTION 3. 1 . He shall from time to time give to the Congress infor- mation of the state of the Union, and recommend to their con- sideration such measures as he shall judge necessary and ex- pedient ; he may on extraordinary occasions convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper ; he shall receive ambassadors and other public ministers ; he shall take care that the laws be faithfully executed ; and shall commission U the officers of the United States. SECTION 4. 1. The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeach- 277 ment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. ARTICLE III. SECTION 1. 1 . The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the Con- gress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour ; and shall at stated times receive for their services a compensation, which shall not be diminished during their continuance in office. SECTION 2. 1. The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States ; be- tween a State and citizens of another State ; between citizens of different States ; between citizens of the same State claim- ing lands under grants of different States ; and between a State or the citizens thereof, and foreign States, citizens or subjects. 2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make. 3. The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. 278 SECTION 3. 1. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall he convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. 2. The Congress shall have power to declare the punish- ment of treason ; but no attainder of treason shall work cor- ruption of blood, or forfeiture, except during the life of the person attainted. ARTICLE IV. SECTION 1. 1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect thereof. SECTION 2. 1 . The citizens of each State shall be entitled to all privi- leges and immunities of citizens in the several States. 2. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in ano- ther State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. 3. No person held to service or labour in one State under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such ser- vice or labour ; but shall be delivered up on claim of the party to whom such service or labour may be due. SECTION 3. 1. New States may be admitted by the Congress into this Union : but no new State shall be formed or erected within 279 the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress. 2. The Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States ; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. SECTION 4. 1 . The United States shall guarantee to every State in this Union a republican form of Government, and shall protect each of them against invasion ; and, on application of the legisla- ture, or of the executive, (when the legislature cannot be con- vened,) against domestic violence. ABTICLE v. 1. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitu- tion ; or, on the application of the legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States, or by con- ventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress ; provided, that no amendment which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first article : and that no State, without its consent, shall be de- prived of its equal suffrage in the Senate. ARTICLE VI. 1. All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid 280 against the United States under this Constitution as under the Confederation. 2. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, anything in the Consti- tution or laws of any State to the contrary notwithstanding. 3. The senators and representatives before mentioned, and the members of the several State legislatures, and all execu- tive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation to sup- port this Constitution : but no religious test shall ever be re- quired as a qualification to any office or public trust under the United States. ARTICLE VII. 1. The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same. Done in Convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty- seven, and of the Independence of the United States of America the twelfth. In witness whereof, we have hereunto sub- scribed our names. GEORGE WASHINGTON, President and Deputy from Virginia. NEW HAMPSHIRE. CONNECTICUT. John Langdon, William Samuel Johnson, Nicholas Gilman. Roger Sherman. MASSACHUSETTS. NEW YORK. Nathaniel Gorman, Alexander Hamilton. Rufus King. NEW JERSY. William Livingston, David Bearly, William Paterson, Jonathan Dayton. PENNSYLVANIA. Benjamin Franklin, Thomas Mafflin, Robert Morris, George Clymer, Thomas Fitzsimons, Jared Ingersoll, James Wilson, Governeur Morris. DELAWARE. George Read, Gunning Bedford, jun. John Dickinson, Richard Bassett, Jacob Broom. 281 MARYLAND. James M'Henry, Daniel of St. Tho. Jenifer, Daniel Carrol. VIRGINIA. John Blair, James Madison, jun. NORTH CAROLINA. William Blount, Richard Dobbs Spaight, Hugh Williamson. SOUTH CAROLINA. John Rutledge, Chas. Cotes worth Pinckney, Charles Pinckney, Pierce Butler. GEORGIA. William Few, Abraham Baldwin. Attest, WILLIAM JACKSON, Secretary. AMENDMENTS TO THE CONSTITUTION. Art. 1 . Congress shall make no law respecting an establish- ment of religion or prohibiting the free exercise thereof ; or abridging the freedom of speech or of the press ; or the right of the people peaceably to assemble, and to petition the Go- vernment for a redress of grievances. Art. 2. A well-regulated militia being necessary to the se- curity of a free Stafr:, the right of the people to keep and bear arms shall not be infringed. Art. 3. No soldier shall, in time of peace, be quartered in any house without the consent of the owner ; nor in time of war, but in a manner prescribed by law. 282 Art. 4. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated ; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and par- ticularly describing the place to be searched, and the persons or things to be seized. Art. 5. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indict- ment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall be compelled, in any criminal case, to be a witness against himself ; nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation. Art. 6. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been com- mitted, which district shall have been previously ascertained by law ; and to be informed of the nature and cause of the ac- cusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his fa- vour ; and to have the assistance of counsel for his defence. Art. 7. In suits at common law, where the value in contro- versy shall exceed twenty dollars, the right of trial by jury shall be preserved ; and no fact tried by a jury shall be other- wise re-examined in any court of the United States, than ac- cording to the rules of the common law. Art. 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Art. 9. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Art. 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are re- served to the States respectively, or to the people. 283 Art. 11. The judicial power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. Art. 12. 1. The electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President ; and they shall make dis- tinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the president of the Senate ; the president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted ; the person having the greatest num- ber of votes for President, shall be the President, if such of the number be a majority of the whole number of electors ap- pointed ; and if no person have such a majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Re- presentatives shall choose immediately, by ballot, the Presi- dent. But, in choosing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President when- ever the right of choice shall devolve upon them, before the fourth day of March next following, the Vice-President shall act as President, as in the case of the death or other constitu- tional disability of the President. 2. The person having the greatest number of votes as Vice- President, shall be the Vice-President, if such number be a 284 majority of the whole number of electors appointed ; and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President : a quorum for the purpose shall consist of two thirds of the whole number of senators, and a majority of the whole num- ber shall be necessary to a choice. 3. But no person constitutionally ineligible to the office of President, shall be eligible to that of Vice-President of the United States. APPENDIX Q. Constitution of New York, AS AMENDED. WE, the people of the State of New York, acknowledging with gratitude the grace and beneficence of God, in permit- ting us to make choice of our form of government, do esta- lish this Constitution. ARTICLE 1. 1 . The legislative power of this State shall be vested in a Senate and an Assembly. 2. The Senate shall consist of thirty-two members. The senators shall be chosen for four years, and shall be free- holders. The assembly shall consist of one hundred and twenty-eight members, who shall be annually elected. 3. A majority of each House shall constitute a quorum to do business. Each House shall determine the rules of its own proceedings, and be the judge of the qualifications of its own members. Each House shall choose its own officers, and the Senate shall choose a temporary president, when the lieutenant-governor shall not attend as president, or shall act as governor. 4. Each House shall keep a journal of its proceedings, and 285 publish the same, except such parts as may require secrecy. The doors of each House shall be kept open, except when the public welfare shall require secrecy. Neither House shall, without the consent of the other, adjourn for more than two days. 5. The State shall be divided into eight districts, to be called Senate districts, each of which shall choose four sena- tors. And as soon as the Senate shall meet, after the first elec- tion to be held in pursuance of this Constitution, they shall cause the senators to be divided by lot, into four classes, of eight in each, so that every district shall have one senator of each class : the classes to be numbered, one, two, three, and four. And the seats of the first class shall be vacated at the end of the first year ; of the second class, at the end of the second year ; of the third class, at the end of the third year ; of the fourth class, at the end of the fourth year ; in order that one senator be annually elected in each Senate district. 6. An enumeration of the inhabitants of the State shall be taken, under the direction of the legislature, in the year one thousand eight hundred and twenty-five, and at the end of every ten years thereafter ; and the said districts shall be so altered by the legislature, at the first session after the 'return of every enumeration, that each Senate district shall contain, as nearly as may be, an equal number of inhabitants, exclu- ding aliens, paupers, and persons of colour not taxed ; and shall remain unaltered until the return of another enumera- tion, and shall at all times consist of contiguous territory ; and no county shall be divided in the formation of a Senate district. 7. The members of the Assembly shall be chosen by coun- ties, and shall be apportioned among the several counties of the State, as nearly as may be, according to the numbers of their respective inhabitants, excluding aliens, paupers, and persons of colour not taxed. An apportionment of membeis of Assembly shall be made by the legislature at its first ses- 286 sion after the return of every enumeration ; and, when made, shall remain unaltered until another enumeration shall have been taken. But an apportionment of members of the As- sembly shall be made by the present legislature according to the last enumeration, taken under the authority of the United States, as nearly as may be. Every county heretofore established, and separately organized, shall always be entitled to one member of the Assembly, and no new county shall hereafter be erected, unless its population shall entitle it to a member. 8. Any bill may originate in either House of the legisla- ture ; and all bills passed by one House, may be amended by the other. 9. The members of the legislature shall receive for their services a compensation, to be ascertained by law, and paid out of the public treasury ; but no increase of the compensa- tion shall take effect during the year in which it shall have been made. And no law shall be passed increasing the com- pensation of the members of the legislature, beyond the sum of the three dollars a day. 10. No member of the legislature shall receive any civil appointment from the governor and Senate, or from the legislature, during the term for which he shall have been elected. 1 1 . No person being a member of Congress, or holding any judicial or military office under the United States, shall hold a seat in the legislature. And if any person shall, while a member of the legislature, be elected to Congress, or ap- pointed to any office, civil or military, under the United States, his acceptance thereof shall vacate his seat. 12. Every bill which shall have passed the Senate and As- sembly, shall, before it become a law, be presented to the governor : if he approve, he shall sign it, but if not, he shall return it with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it : if, after such reconsideration, two thirds of the members present shall 287 agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered ; and if approved by two thirds of the members present, it shall become a law ; but in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journals of each House respectively : if any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the legislature shall, by their adjournment, prevent its return ; in which case it shall not be a law. 13. All officers holding their offices during good behaviour, may be removed by joint resolution of the two Houses of the legislature, if two thirds of all the members elected to the As- sembly, and a majority of all the members elected to the Se- nate, concur therein. 14. The political year shall begin on the first day of Janu- ary ; and the legislature shall every year assemble on the first Tuesday in January, unless a different day shall be appointed by law. 15. The next election for governor, lieutenant-governor, senators, and members of Assembly, shall commence on the first Monday of November one thousand eight hundred and twenty-two ; and all subsequent elections shall be held at such time in the month of October or November as the legis- lature shall by law provide. 16. The governor, lieutenant-governors, senators, and mem- bers of Assembly, first elected under this Constitution, shall enter on the duties of their respective offices on the first day of January one thousand eight hundred and twenty-three ; and the governor, lieutenant-governor, senators, and members of Assembly, now in office, shall continue to hold the same until the first day of January one thousand eight hundred and twenty-three, and no longer. ARTICLE 2. 1 . Every male citizen of the age of twenty-one years, who 288 shall have been an inhabitant of this State one year preceding any election, and for the last six months a resident of the town or county where he may offer his vote ; and shall have, within the year next preceding the election, paid a tax to the State or county, assessed upon his real or personal property ; or shall by law be exempted from taxation ; or being armed and equipped according to law, shall have performed within that year, military duty in the militia of this State ; or who shall be exempted from performing militia duty in conse- quence of being a fireman in any city, town, or village in this State ; and also every male citizen of the age of twenty-one years, who shall have been for three years next preceding such elections an inhabitant of this State ; and for the last year a resident in the town or county where he may offer his vote ; and shall have been, within the last year, assessed to labour upon the public highways, and shall have performed the labour, or paid an equivalent therefore, according to law ; shall be entitled to vote in the town or ward where he actually resides, and not elsewhere, for all officers that now are, or hereafter may be, elective by the people : but no man of colour, unless he shall have been for three years a citizen of this State, and for one year next preceding any election shall be seized and possessed of a freehold estate of the value of two hundred and fifty dollars over and above all debts and in- cumbrances charged thereon, and shall have been actually rated, and paid a tax thereon, shall be entitled to vote at such election. And no person of colour shall be subject to direct taxation, unless he shall be seized and possessed of such real estate as aforesaid. 2. Laws may be passed excluding from the right of suffrage persons who have been, or may be, convicted of infamous crimes. 3. Laws shall be made for ascertaining, by proper proofs, the citizen who shall be entitled to the right of suffrage hereby established. 4. All elections by the citizens shall be by ballot, except for such town officers as may by law be directed to be other- wise chosen. 289 ARTICLE 3. 1. The executive power shall be vested in a governor. He shall hold his office for two years; and a lieutenant- governor shall be chosen at the same time, and for the same term. 2. No person, except a native citizen of the United States, shall be eligible to the office of governor, nor shall any person be eligible to that office who shall not be a freeholder, and shall not have attained the age of thirty years, and have been five years a resident within the State ; unless he shall have been absent during that time on public business of the United States, or of this State. 3. The governor and lieutenant-governor shall be elected at the times and places of choosing members of the legislature. The persons respectively having the highest number of votes for governor and lieutenant-governor, shall be elected; but in case two or more shall have an equal and the highest number of v6tes for governor or for lieutenant-governor, the two Houses of the legislature shall, by joint ballot, choose one of the said persons, so having an equal and the highest number of votes, for governor or lieutenant-governor. 4. The governor shall be general and commander-in- chief of all the militia, and admiral of the navy of the State. He shall have power to convene the legislature (or the Senate only,) on extraordinary occasions. He shall communicate by message to the legislature, at every Session, the condition of the State ; and recommend such matters to them as he shall judge expedient. He shall transact all necessary business with the officers of Government, civil and military. He shall expediate all such measures as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed. He shall, at stated times, receive for his services a compensation, which shall neither be increased nor dimin- ished during the term for which he shall have been elected. 5. The governor shall have power to grant reprieves and pardons, after conviction, for all offences except treason and cases of impeachment. Upon convictions for treason, he shall VOL. I. O 290 have power to suspend the execution of the sentence until the case shall be reported to the legislature at its next meeting ; when the legislature shall either pardon, or direct the execu- tion of the criminal, or grant a further reprieve. 6. In case of the impeachment of the governor, or his re- moval from office, death, resignation, or absence from the State, the powers and duties of the office shall devolve upon the lieutenant-governor for the residue of the term, or until the governor absent or impeached shall return or be acquitted. But when the governor shall, with the consent of the legisla- ture, be out of the State in time of war, at the head of a mili- tary force thereof, he shall still continue commander-in-chief of all the military force of the State. 7. The lieutenant-governor shall be president of the Senate, but shall have only a casting vote therein. If during a vacancy of the office of governor the lieutenant-governor shall be im- peached, displaced, resign, die, or be absent from the State, the president of the Senate shall act as governor until the va- cancy shall be filled or the disability shall cease. ARTICLE 4. 1. Militia officers shall be chosen, or appointed, as fol- lows : Captains, subalterns, and non-commissioned officers, shall be chosen by the written votes of the members of their respective companies. Field officers of regiments and separate battalions, by the written votes of the commissioned officers of the respective regiments and separate battalions. Briga- dier-generals, by the field officers of their respective brigades. Major-generals, brigadier-generals, and commanding offi- cers of regiments or separate battalions, shall appoint the staff officers to their respective divisions, brigades, regiments, or separate battalions. '2. The governor shall nominate, and, with the consent of the Senate, appoint, all major-generals, brigade inspectors, and chiefs in the ' staff departments, except the adjutants- general and commissary-general. The adjutant-general shall be appointed by the governor. 291 3. The legislature shall, bylaw, direct the time and manner of electing militia officers, and of certifying their elections to the governor. 4. The commissioned officers of the militia shall be com- missioned by the governor ; and no commissioned officer shall be removed from office, unless by the Senate, on the recom- mendation of the governor, stating the grounds on which such removal is recommended, or by the decision of a court-martial, pursuant to law. The present officers of the militia shall hold their commissions subject to removal, as before provided. 5. In case the mode of election and appointment of militia officers hereby directed, shall not be found conducive to the improvement of the militia, the legislature may abolish the same, and provide by law for their appointment and removal, if two thirds of the members present in each House shall concur therein. 6. The secretary of state, comptroller, treasurer, attorney- general, surveyor-general, and commissary-general, shall be appointed as follows : The Senate and Assembly shall each openly nominate one person for the said offices respectively ; after which they shall meet together, and if they shall agree in their nominations, the person so nominated shall be appoint- ed to the office for which he shall be nominated. If they shall disagree, the appointment shall be made by the joint ballot of the senators and members of Assembly. The treasurer shall be chosen annually. The secretary of state, comptroller, attorney- general, surveyor-general, and commissary-general, shall hold their offices for three years, unless sooner removed by concur- rent resolution of the Senate and Assembly. 7. The governor shall nominate, by message, in writing, and, with the consent of the Senate, shall appoint all judicial officers, except justices of the peace, who shall be appointed in manner following, that is to say : The board of supervisors in every county in this State, shall, at such tunes as the legis- lature may direct, meet together : and they, or a majority of them so assembled, shall nominate so many persons as shall be equal to the number of justices of the peace, to be appointed o 2 292 in the several towns in the respective counties. And the judges of the respective county courts, or a majority of them, shall also meet and nominate a like number of persons : and it shall be the duty of the said board of supervisors and judges of county courts, to compare such nominations, at such time and place as the legislature may direct ; and if, on such com- parison, the said boards of supervisors and judges of county courts shall agree in their nominations, in all or in part, they shall file a certificate of the nominations, in which they shall agree in the office of the clerk of the county : and the person or persons named in such certificates shall be justices of the peace ; and in case of disagreement in whole or in part, it shall be the further duty of the said boards of supervisors and judges respectively to transmit their said nominations, so far as they disagree in the same, to the governor, who shall se- lect from the said nominations, and appoint so many justices of the peace as shall be requisite to fill the vacancies. Every person appointed as justice of the peace shall hold his office for four years, unless removed by the county court for causes particu- larly assigned by the judges of the said court. And no justice of the peace shall be removed until he shall have notice of the charges made against him, and an opportunity of being heard in his defence. 8. Sheriffs and clerks of counties, including the register, and clerks of the city and county of New York, shall be chosen by the electors of the respective counties, once in every three years, and as often as vacancies shall happen. Sheriffs shall hold no other office, and be ineligible for the next three years after the termination of their offices. They may be required by law to renew their security from time to time, and in default of giving such new security their offices shall be deemed vacant. But the county shall never be made responsible for the acts of the sheriff. And the governor may remove any such sheriff, clerk, or register, at any time within the three years for which he shall be elected, giving to such sheriff, clerk, or register, a copy of the charge against him, and an opportunity of being heard in his defence, before any removal shall be made. 293 9. The clerks of courts, except those clerks whose appoint- ment is provided for in the preceding section, shall be appointed by the courts of which they respectively are clerks ; and district attorneys, by the county courts. Clerks of courts and district attorneys shall hold their offices for three years, unless sooner removed by the courts appointing them. 10. The mayors of all the cities in this State shall be appoint- ed annually by the common councils of their respective cities. 11. So many coroners as the legislature may direct, not exceeding four in each county, shall be elected in the same manner as sheriffs, and shall hold their offices for the same term, and be removable in like manner. 12. The governor shall nominate, and, with the consent of the Senate, appoint masters and examiners in chancery ; who shall hold their offices for three years, unless sooner removed by the Senate on the recommendation of the governor. The registers and assisting registers shall be appointed by the chancellor, and hold their offices during his pleasure. 13. The clerk of the court of oyer and terminer, and general sessions of the peace, in and for the city and county of New York, shall be appointed by the court of general sessions of the peace in said city, and hold his office during the pleasure of said court ; and such clerks and other officers of courts, whose appointment is not herein provided for, shall be appoin- ted by the several courts ; or by the governor, with the consent of the Senate, as may be directed by law. 14. The special justices and the assistant justices, and their clerks, in the city of New York, shall be appointed by the common council of the said city ; and shall hold their offices for the same term that the justices of the peace, in the other counties of this State, hold their offices, and shall be remov- able in like manner. 15. All officers heretofore elective by the people shall con- tinue to be elected ; and all other officers whose appointment is not provided for by this Constitution, and all officers whose offices may be hereafter created by law, shall be elected- by the people, or appointed, as may by law be directed. 294 16. Where the duration of any office is not prescribed by this Constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment. ARTICLE 5. 1. The court for the trial of impeachments, and the cor- rection of errors, shall consist of the President of the Senate, the senators, the chancellors, and the justices of the supreme court, or the major part of them : but when an impeachment shall be prosecuted against the chancellor, or any justice of the supreme court, the person so impeached shall be suspended from exercising his office until his acquittal ; and when an appeal from a decree in chancery shall be heard, the chancellor shall inform the court of the reasons for his decree, but shall have no voice in the final sentence ; and when a writ of error shall be brought, on a judgement of the supreme court, the justices of that court shall assign the reasons for their judgement, but shall not have a voice for its affirmance or reversal. 2. The assembly shall have the power of impeaching all civil officers of this State for male and corrupt conduct in office, and high crimes and misdemeanors : but a majority of all the members elected shall concur in an impeachment. Be- fore the trial of an impeachment, the members of the court shall take an oath or affirmation, truly and impartially to try and determine the charge in question according to evidence : and no person shall be convicted without the concurrence of two thirds of the members present. Judgement, in cases of impeachment, shall not extend further than the removal from office, and disqualification to hold and enjoy any office of honour, trust, or profit under this State ; but the party convicted shall be liable to indictment and punishment, according to law. 3. The chancellor, and justices of the supreme court, shall hold their offices during good behaviour, or until they shall attain the age of sixty years. 4. The supreme court shall consist of a chief justice and two justices, any of whom may hold the court. 295 5. The State shall be divided, by law, into a convenient number of circuits, not less than four, nor exceeding eight, subject to alteration, by the legislature, from time to time, as the public good may require ; for each of which a circuit judge shall be appointed in the same manner, and hold his office by the same tenure, as the justices of the supreme court; and who shall possess the powers of a justice of the supreme court at chambers, and in the trial of issues joined in the supreme court, and in courts of oyer and tenniner and jail delivery. And such equity powers may be vested in the said circuit judges, or in the county courts, or in such other subordinate courts as the legislature may by law direct, subject to the appellate jurisdiction of the chancellor. 6. Judges of the county courts, and recorders of cities, shall hold their office for five years, but may be removed by the Senate, on the recommendation of the governor, for causes to be stated in such recommendation. 7. Neither the chancellor, nor justices of the supreme court, nor any circuit judge, shall hold any other office or public trust. All votes for any elective office, given by the legislature or the people, for the chancellor, or a justice of the supreme court, or circuit judge, during his continuance in his judicial office, shall be void. ARTICLE 6. 1 . Members of the legislature, and all officers, executive and judicial, except such inferior officers as may by law be exempted, shall, before they enter on the duties of their re- spective offices, take and subscribe the following oath or affirmation : I do solemnly swear, (or affirm, as the case may be,) that I will support the Constitution of the United States, and the Constitution of the State of New York, and that I will faith- fully discharge the duties of the office of according to the best of my ability. And no other oath, declaration, or test, shall be required as a qualification for any office or public trust. 296 ARTICLE 7. 1 . No member of this State shall be disfranchised, or de- prived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgement of his peers. 2. The trial by jury, in all cases in which it has been here- tofore used, shall remain inviolate for ever ; and no new court shall be instituted, but such as shall proceed according to the course of the common law ; except such courts of equity as the legislature is herein authorized to establish. 3. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall for ever be allowed in this State to all mankind ; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State. 4. And whereas the ministers of the Gospel are, by their profession, dedicated to the service of God and the care of souls, and ought not to be diverted from the great duties of their functions : therefore no minister of the Gospel, or priest of any denomination whatsoever, shall at any time hereafter, under any pretence or description whatever, be eligible to, or capable of holding any civil or military office or place within this State. 5. The militia of this State shall, at all times hereafter, be armed and disciplined and in readiness for service ; but all such inhabitants of this State, of any religious denomination whatever, as from scruples of conscience may be averse to bearing arms, shall be excused therefrom by paying to the State an equivalent in money ; and the legislature shall pro- vide by law for the collection of such equivalent, to be estima- ted according to the expense in time and money of "an ordinary able-bodied militia-man. 6. The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension. 297 7. No person shall be held to answer for a capital or other infamous crime, [except in cases of impeachment, and in cases of the militia when in actual service, and the land and naval forces in time of war, or which this State may keep, with the consent of the Congress, in time of peace, and in cases of petit larceny, under the regulation of the legislature,] unless on presentment, or indictment of a grand jury ; and in every trial on impeachment or indictment the party accused shall be allowed counsel as in civil actions. No person shall be subject for the same offence to be twice put in jeopardy of life or limb ; nor shall he be compelled, in any criminal case, to be a witness against himself ; nor be deprived of life, liberty or property, without due process of law : nor shall private property be taken for public use, without just compensation. 8. Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right ; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or in- dictments for libels, the truth may be given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted ; and the jury shall have the right to determine the law and the fact. 9. The assent of two thirds of the members elected to each branch of the legislature, shall be requisite to every bill ap- propriating the public moneys or property, for local or private purposes, or creating, continuing, altering, or renewing, any body politic or corporate. 10. The proceeds of all lands belonging to this State, ex- cept such parts thereof as may be reserved or appropriated to public use, or ceded to the United States, which shall here- after be sold or disposed of, together with the fund denomina- ted the common school fund, shall be and remain a perpetual fund, the interest of which shall be inviolably appropriated and applied to the support of common schools throughout this State. Rates of toll, not less than those agreed to by the canal commissioners, and set forth in their report to the 298 legislature of the twelfth of March one thousand eight hun- dred and twenty-one, shall be imposed on, and collected from, all parts of the navigable communication between the great western and northern lakes and the Atlantic Ocean, which now are, or hereafter shall be, made and completed : and the said tolls, together with the duties on the manufacture of all salt, as established by the act of the fifteenth of April one thousand eight hundred and seventeen ; and the duties on goods sold at auction, excepting therefrom the sum of thirty-three thousand five hundred dollars otherwise appropriated by the said act ; and the amount of the revenue, established by the act of the legislature of the thirtieth of March one thousand eight hun- dred and twenty, in lieu of the tax upon steam-boat passen- gers ; shall be and remain inviolably appropriated and applied to the completion of such navigable communications, and to the payment of the interest, and reimbursement of the capital, of the money already borrowed, or which hereafter shall be borrowed, to make and complete the same. And neither the rates of toll on the said navigable communications, nor the duties on the manufacture of salt aforesaid, nor the duties on goods sold at auction, as established by the act of the fifteenth of April one thousand eight hundred and seventeen ; nor the amount of the revenue established by the act of March the thirtieth, one thousand eight hundred and twenty, in lieu of the tax upon steam- boat passengers ; shall be reduced or di- verted, at any time, before the full and complete payment of the principal, and interest of the money borrowed, or to be borrowed, as aforesaid. And the legislature shall never sell or dispose of the salt springs belonging to this State, nor the lands contiguous thereto, which may be necessary or con- venient for their use, nor the said navigable communications or any part or section thereof, but the same shall be and re- main the property of this State. 11. No lottery shall hereafter be authorized in this State; and the legislature shall pass laws to prevent the sale of all lottery tickets within this State, except in lotteries already provided for by law. 299 12. No purchase or contract for the sale of lands in this State, made since the fourteenth day of October one thousand seven hundred and seventy-five, or which may hereafter be made, of or with the Indians in this State, shall be valid, un- less under the authority and with the consent of the legislature. 13. Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the nineteenth day of April one thousand seven hundred and seventy-five, and the resolutions of the Congress of the said colony, and of the convention o* the State of New York, in force on the twentieth day of April one thousand seven hundred and seventy-seven, which have not since expired, or been repealed or altered ; and such acts of the legislature of this State as are now in force, shall be and continue the law of this State, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are here- by abrogated. 14. All grants of land within the State, made by the King of Great Britain, or persons acting under his authority, after the fourteenth day of October one thousand seven hundred and seventy-five, shall be null and void ; but nothing'contained in this Constitution shall affect any grants of land within this State, made by the authority of the'said King or his prede- cessors, or shall annul any charters to bodies politic and cor- porate, by him or them made before that day ; or shall affect any such grants or charters since made by this State, or by persons acting under its authority ; or shall impair the obliga- tions of any debts contracted by the State, or individuals, or bodies corporate, or any other rights of property, or any suits, actions, rights of action, or other proceedings, in courts .of justice. ARTICLE 8. 1 . Any amendment or amendments to this Constitution may be proposed in the Senate or Assembly ; and if the same shall be agreed to by a majority of the members elected to 300 each of the two Houses, such proposed amendment or amend- ments shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature then next to be chosen ; and shall be published, for three months pre- vious to the time of making such choice ; and if, in the legis- lature next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by two thirds of all the mem- bers elected to each House, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people, in such manner, and at such time as the legisla- ture shall prescribe ; and if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the legislature voting thereon, such amendment or amendments shall become part of the Constitution. ARTICLE 9. 1. This Constitution shall be in force from the last day of December in the year one thousand eight hundred and twenty-two. But all those parts of the same which relate to the right of suffrage, the division of the State into Senate dis- tricts, the number of members of the Assembly to be elected in pursuance of this Constitution, the appointment of mem- bers of Assembly, the elections hereby directed to commence on the first Monday of November in the year one thousand eight hundred and twenty-two, the continuance of the mem- bers of the present legislature in office until the first day of January in the year one thousand eight hundred and twenty- three, and the prohibition agairist authorizing lotteries, the prohibition against appropriating the public moneys or pro- perty for local or private purposes, or creating, continuing, altering, or renewing any body politic or corporate without the assent of two thirds of the members elected to each branch of the legislature, shall be in force and take effect from the last day of February next. The members of the present le- gislature shall, on the first Monday of March next, take and subscribe an oath or affirmation to support the Constitution, 301 so far as the same shall then be in force. Sheriffs, clerks of counties, and coroners, shall be elected at the election hereby directed to commence on the first Monday of November in the year one thousand eight hundred and twenty-two ; but they shall not enter on the duties of their offices before the first day of January then next following. The commissions of all persons holding civil offices on the last day of December one thousand eight hundred and twenty-two, shall expire on that day ; but the officers then in commission may respectively continue to hold their said offices until new appointments or elections shall take place under this Constitution. 2. The existing laws, relative to the manner of notifying, holding, and conducting elections, making returns, and can- vassing votes, shall be in force and observed, in respect of the elections hereby directed to commence on the first Monday of November in the year one thousand eight hundred and twenty-two, so far as the same are applicable. And the pre- sent legislature shall pass such other and further laws as may be requisite for the execution of the provisions of this Con- stitution in respect to elections. Done in Convention, at the Capitol, in the city of Albany, the tenth day of November in the year one thousand eight hundred and twenty-one, and of the independence of the United States of America, the forty-sixth. Jn witness whereof, we have hereunto subscribed our names. DANIEL D. TOMPKINS, President. JOHN F.BACON, } Seere t aries . bAMUEL b. (jrARDINEB, J APPENDIX A. Page 227. The first American journal appeared in April 1704, and was published at Boston. See Collection of the Historical Society of Massachusetts, vol vi. p. 66. VOL. I. P 302 It would be a mistake to suppose that the periodical press has always been entirely free in the Afterican colonies : an attempt was made to establish something analogous to a cen- sorship and preliminary security. Consult the Legislative Documents of Massachusetts of the 14th of January 1722. The Committee appointed by the General Assembly (the legislative body of the province,) for the purpose of examining into circumstances connected with a paper entitled " The New England Courier," expresses its opinion that " the tend- ency of the said journal is to turn religion into derision, and bring it into contempt ; that it mentions the sacred writers in a profane and irreligious manner ; that it puts malicious inter- pretations upon the conduct of the ministers of the Gospel ; and that the Government of His Majesty is insulted, and the peace and tranquillity of the province disturbed by the said journal. The Committee is consequently of opinion that the printer and publisher, James Franklin, should be forbidden to print and publish the said journal or any other work in future, without having previously submitted it to the Secretary of the province ; and that the justices of the peace for. the county of Suffolk should be commissioned to require bail of the said James Franklin for his good conduct during the ensuing year." The suggestion of the Committee was adopted and passed into a law, but the effect of it was null, for the journal eluded the prohibition by putting the name of Benjamin Franklin in- stead of James Franklin at the bottom of its columns, and this manoeuvre was supported by public opinion. END OF THE FIRST VOLUME. Printed by Richard ahd John E. Taylor, Red Lion Court, Fleet-itreet. TERMS OF SUBSCRIPTION TO SAUNDERS AND OTLEY'S, PUBLISHERS AND BOOKSELLERS, (LATE COLBURN, SAUNDERS, AND OTLEY'S,) ana ^foreign public ^Ubrartv, Commit Street, $anotocr Square, jILon&on, TO FAMILIES, BOOK SOCIETIES, AND LITERARY INSTITUTIONS, THROUGHOUT ENGLAND, SCOTLAND, AND IRELAND. MONTHLY SUPPLIES OF NEW BOOKS FOR PERUSAL. The Proprietors of the BRITISH and FOREIGN LIBRARY, Conduit Street, Hanover Square, feeling the necessity of meeting the great and increasing demand for the perusal of NEW PUBLICATIONS, have devoted their attention to the subject, and have digested a plan for the constant and regular Monthly supply, in Town or Country, of all New Works, English and Foreign, as soon as published.. This new plan is founded on the German and Prussian mode of circulating New Books ; and the Proprietors conducting an extensive PUBLISHING BUSINESS, (chiefly devoted to the productions of the most popular writers,) in connexion with their Library, are prepared to furnish ample supplies in the various branches of Literature. Subscribers to this Establishment are assisted in the CHOICE of NEW BOOKS by the publication of SELECT LISTS of the modern works, (furnished gratuitously,) which will be found to contain the most esteemed productions in the following branches of Lite- rature. HISTORY, BIOGRAPHY, DIVINITY, BELLES LETTRES, MORAL PHILOSOPHY, POLITICAL PHILOSOPHY, FICTION, POETRY, VOYAGES AND TRAVELS, THE DRAMA, &c. AN ANNUAL SUBSCRIPTION OF EIGHT GUINEAS Entitles the Subscriber to Twelve Volumes at a time in Town, or Twenty-four in the Country, one half consisting of NEW PUBLICATIONS, and the remainder, Works selected from the Catalogue ; or, if desired, for Four Guineas additional the year, each supply to consist entirely of the New and Popular Publications, with the privilege of directing the purchase of any work not previously added to the Library. 1 he whole or any por- tion of each supply can be exchanged as often as desired. *,* Two or more Families resident in the same neighbourhood may unite in the above Subscription, subject to the same regulations as the Societies hereinafter men- tioned. AN ANNUAL SUBSCRIPTION OF SIX GUINEAS Entitles the Subscriber to Ten Volumes at a time in Town, or Twenty in the Country, one half consisting of NEW PUBLICATIONS, and the remainder, Works selected from the Catalogue. The half Yearly Subscription, FOUR GUINEAS. The Quarterly Subscription, TWO GUINEAS AND A HALF. A SOCIETY CONSISTING OF SIX MEMBERS, On payment of an Annual Subscription of TEN GUINEAS, is entitled to TWENTY-FOUR Volumes at a time English or Foreign. A SOCIETY CONSISTING OF TWELVE MEMBERS, On payment of an annual Subscription of FIFTEEN GUINEAS, is entitled to THIRTY VOLUMES at a time English or Foreign. A SOCIETY CONSISTING OF EIGHTEEN MEMBERS, On payment of an Annual Subscription of TWENTY GUINEAS, is entitled to THIRTY-SIX VOLUMES at a time English or Foreign. Societies consisting of any number of Members arc also supplied in the same ratio. The Books to be exchanged Monthly, or at more distant intervals if desired, and each supply to consist of Two THIRDS New and Popular Publications, and ONE THIRD to be selected from the Catalogues of the Library, containing an immense collection of standard works in the ENGLISH, FRENCH, ITALIAN, AND GERMAN LANGUAGES. The best Periodical Works are included, and will be supplied in the following pro- portions : Six for Eighteen Members FOUR for Twelve Members and THREE for Six Mem- bers. REGULATIONS, &c. THE SUBSCRIPTION TO BE PAID IN ADVANCE AT THE TIME OF SUBSCRIBING. The expense of carriage to and from the Library, Postage, &c., to be defrayed by the Subscriber. (The most economical mode of conveyance is always adopted.) Library Boxes are furnished gratuitously. All Books to be returned at the termination of the subscription, or it detained, to be considered as a renewal. Books are not to be suffered, on any account, to pass into the hands oi a non-sub- For Joint Subscriptions, or Reading Societies, one Memler forwarding his name and address to engage for the return of the Books, and all orders for the supplies to be given in his name on behalf of the Society. A List of Fifteen or Twenty Works is requested, and in order to avoid loss of time in the exchange of Books, Subscribers are requested to write by post a week previous to sending of their boxes, specifying the Books they wish in return. 8$- Orders to be addressed to MESSRS. SAUNDERS ^D OTLEY, Publishers and Booksellers, Conduit Street, Hanover Square, London.