Notes:
[119] See the constitution of the United States.
[120] See the articles of the first confederation formed in 1778. This constitution was not adopted by all the states until 1781. See also the analysis given of this constitution in the Federalist, from No. 15 to No. 22 inclusive, and Story's "Commentary on the Constitution of the United States," pp. 85-115.
[121] Congress made this declaration on the 21st of February, 1787.
[122] It consisted of fifty-five members: Washington, Madison, Hamilton, and the two Morrises, were among the number.
[123] It was not adopted by the legislative bodies, but representatives were elected by the people for this sole purpose; and the new constitution was discussed at length in each of these assemblies.
[124] See the amendment to the federal constitution; Federalist, No. 32. Story, p. 711. Kent's Commentaries, Vol. i., p. 364.
It is to be observed, that whenever the _exclusive_ right of regulating certain matters is not reserved to congress by the constitution, the states may take up the affair, until it is brought before the national assembly. For instance, congress has the right of making a general law of 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.
[125] The action of this court is indirect, as we shall hereafter show.
[126] It is thus that the Federalist, No. 45, explains the division of supremacy between the union and the states: "The powers delegated by the constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the internal order and prosperity of the state."
I shall often have occasion to quote the Federalist in this work. When the bill which has since become the constitution of the United States was submitted to the approval of the people, and the discussions were still pending, three men who had already acquired a portion of that celebrity which they have since enjoyed, John Jay, Hamilton, and Madison, formed an association with the intention of explaining to the nation the advantages of the measure which was proposed. With this view they published a series of articles in the shape of a journal, which now form a complete treatise. They entitled their journal, "The Federalist," a name which has been retained in the work. The Federalist is an excellent book, which ought to be familiar to the statesmen of all countries, although it especially concerns America.
[127] See constitution, sect. 8. Federalist, Nos. 41 and 42. Kent's Commentaries, vol. i., p. 207. Story, pp. 358-382; 409-426.
[128] 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.
[129] Even in these cases its interference is indirect. The Union interferes by means of the tribunals, as will be hereafter shown.
[130] Federal Constitution, sect. 10, art. 1.
[131] Constitution, sect. 8, 9, and 10. Federalist, Nos. 30-36 inclusive, and 41-44. Kent's Commentaries, vol. i., pp. 207 and 381. Story pp. 329 and 514.
[132] Every ten years congress fixes anew the number of representatives which each state is to furnish. The total number was 69 in 1789, and 240 in 1833. (See American Almanac, 1834, p. 194.)
The constitution decided that there should not be more than one representative for every 30,000 persons; but no minimum was fixed upon. 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 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 1822, fixes the proportion at one for 48,000. The population represented is composed of all the freemen and of three-fifths of the slaves.
[133] See the Federalist, Nos. 52-66, inclusive. Story, pp. 199-314 Constitution of the United States, sections 2 and 3.
[134] See the Federalist, Nos. 67-77. Constitution of the United States, a. t. 2. Story, pp. 115; 515-780. Kent's Commentaries, p. 255.
[135] The constitution had left it doubtful whether the president was obliged to consult the senate in the removal as well as in the appointment of federal officers. The Federalist (No. 77) seemed to establish the affirmative; but in 1789, congress formally decided that as the president was responsible for his actions, he ought not to be forced to employ agents who had forfeited his esteem. See Kent's Commentaries, vol. i., p. 289.
[136] The sums annually paid by the state to these officers amount to 200,000,000 francs (eight millions sterling).
[137] This number is extracted from the "National Calendar," for 1833. The National Calendar is an American almanac which contains the names of all the federal officers.
It results from this comparison that the king of France has eleven times as many places at his disposal as the president, although the population of France is not much more than double that of the Union.
[138] As many as it sends members to congress. The number of electors at the election of 1833 was 288. (See the National Calendar, 1833.)
[139] The electors of the same state 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.
[140] In this case it is the majority of the states, and not the majority of the members, which decides the question; so that New York has not more influence in the debate than Rhode Island. Thus the citizens of the Union are first consulted as members of one and the same community; and, if they cannot agree, recourse is had to the division of the states, each of which has a separate and independent vote. This is one of the singularities of the federal constitution which can only be explained by the jar of conflicting interests.
[141] Jefferson, in 1801, was not elected until the thirty-sixth time of balloting.
[142] See chapter vi., 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, 1789, in the collection of the laws of the United States, by Story, vol. i., p. 53.
[143] Federal laws are those which most require courts of justice, and those at the same time which have most rarely established them. The reason is that confederations have usually been formed by independent states, which entertained no real intention of obeying the central government, and which very readily ceded the right of commanding to the federal executive, and very prudently reserved the right of non-compliance to themselves.
[144] The Union was divided into districts, in each of which a resident federal judge was appointed, and the court in which he presided was termed a "district court." Each of the judges of the supreme court annually visits a certain portion of the Republic, in order to try the most important causes upon the spot; the court presided over by this magistrate is styled a "circuit court." Lastly, all the most serious cases of litigation are brought before the supreme court, which holds a solemn session once a year, at which all the judges of the circuit courts must attend. The jury was introduced into the federal courts in the same manner, and in the same cases as into the courts of the states.
It will be observed that no analogy exists between the supreme court of the United States and the French cour de cassation, since the latter only hears appeals. The supreme court decides upon the evidence of the fact, as well as upon the law of the case, whereas the cour de cassation does not pronounce a decision of its own, but refers the cause to the arbitration of another tribunal. See the law of 24th September, 1789, laws of the United States, by Story, vol. i., p. 53.
[145] In order to diminish the number of these suits, it was decided that in a great many federal causes, the courts of the states should be empowered to decide conjointly with those of the Union, the losing party having then a right of appeal to the supreme court of the United States. The supreme court of Virginia contested the right of the supreme court of the United States to judge an appeal from its decisions, but unsuccessfully. See Kent's Commentaries, vol. i., pp. 350, 370, _et seq._; Story's Commentaries, p. 646; and "The Organic Law of the United States," vol. i., p. 35
[146] The constitution also says that the federal courts shall decide "controversies between a state and the citizens of another state." And here a most important question of a constitutional nature arose, which was, whether the jurisdiction given by the constitution in cases in which a state is a party, extended to suits brought _against_ a state as well as _by_ it, or was exclusively confined to the latter. This question was most elaborately considered in the case of _Chisholme_ v. _Georgia_, and was decided by the majority of the supreme court in the affirmative. The decision created general alarm among the states, and an amendment was proposed and ratified by which the power was entirely taken away so far as it regards suits brought against a state. See Story's Commentaries, p. 624, or in the large edition, § 1677.
[147] As, for instance, all cases of piracy.
[148] This principle was in some measure restricted by the introduction of the several states as independent powers into the senate, and by allowing them to vote separately in the house of representatives when the president is elected by that body; but these are exceptions, and the contrary principle is the rule.
[149] It is perfectly clear, says Mr. Story (Commentaries, p. 503, or in the large edition, § 1379), that any law which enlarges, abridges, or in any manner changes the intention of the parties, resulting from the stipulations in the contract, necessarily impairs it. He gives in the same place a very long and careful definition of what is understood by a contract in federal jurisprudence. A grant made by the state to a private individual, and accepted by him, is a contract, and cannot be revoked by any future law. A charter granted by the state to a company is a contract, and equally binding to the state as to the grantee. The clause of the constitution here referred to ensures, therefore, the existence of a great part of acquired rights, but not of all. Property may legally be held, though it may not have passed into the possessor's hands by means of a contract; and its possession is an acquired right, not guaranteed by the federal constitution.
[150] A remarkable instance of this is given by Mr. Story (p. 508, or in the large edition, § 1388). "Dartmouth college in New Hampshire had been founded by a charter granted to certain individuals before the American revolution, and its trustees formed a corporation under this charter. The legislature of New Hampshire had, without the consent of this corporation, passed an act changing the organization of the original provincial charter of the college, and transferring all the rights, privileges, and franchises, from the old charter trustees to new trustees appointed under the act. The constitutionality of the act was contested, and after solemn arguments, it was deliberately held by the supreme court that the provincial charter was a contract within the meaning of the constitution (art. i, sect. 10), and that the amendatory act was utterly void, as impairing the obligation of that charter. The college was deemed, like other colleges of private foundation, to be a private eleemosynary institution, endowed by its charter with a capacity to take property unconnected with the government. Its funds were bestowed upon the faith of the charter, and those funds consisted entirely of private donations. It is true that the uses were in some sense public, that is, for the general benefit, and not for the mere benefit of the corporators; but this did not make the corporation a public corporation. It was a private institution for general charity. It was not distinguishable in principle from a private donation, vested in private trustees, for a public charity, or for a particular purpose of beneficence. And the state itself, if it had bestowed funds upon a charity of the same nature, could not resume those funds."
[151] See chapter vi., on judicial power in America.
[152] See Kent's Commentaries, vol. i., p. 387.
[153] At this time Alexander Hamilton, who was one of the principal founders of the constitution, ventured to express the following sentiments in the Federalist, No. 71: "There are some who would be inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation. But such men entertain very crude notions, as well of the purpose for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberative sense of the community should govern the conduct of those to whom they intrust the managements of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men who flatter their prejudices to betray their interests. It is a just observation that the people commonly _intend_ the _public good_. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they would always _reason right_, about the _means_ of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants; by the snares of the ambitious, the avaricious, the desperate; by the artifices of men who possess their confidence more than they deserve it; and of those who seek to possess rather than to deserve it. When occasions present themselves in which the interests of the people are at variance with their inclinations, it is the duty of persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection. Instances might be cited in which a conduct of this kind has saved the people from very fatal consequences of their own mistakes, and has procured lasting monuments of their gratitude to the men who had courage and magnanimity enough to serve at the peril of their displeasure."
[154] This was the case in Greece, when Philip undertook to execute the decree of the Amphictyons; in the Low Countries, where the province of Holland always gave the law; and in our time in the Germanic confederation, in which Austria and Prussia assume a great degree of influence over the whole country, in the name of the Diet.
[155] Such has always been the situation of the Swiss confederation, which would have perished ages ago but for the mutual jealousies of its neighbors.
[156] I do not speak of a confederation of small republics, but of a great consolidated republic.
[157] See the Mexican constitution of 1824.
[158] For instance, the Union possesses by the constitution the right of selling unoccupied lands for its own profit. Supposing that the state of Ohio should claim the same right in behalf of certain territories lying within its boundaries, upon the plea that the constitution refers to those lands alone which do not belong to the jurisdiction of any particular state, and consequently should choose to dispose of them itself, the litigation would be carried on in the name of the purchasers from the state of Ohio, and the purchasers from the Union, and not in the names of Ohio and the Union. But what would become of this legal fiction if the federal purchaser was confirmed in his right by the courts of the Union, while the other competitor was ordered to retain possession by the tribunals of the state of Ohio?
[The difficulty supposed by the author in this note is imaginary. The question of title to the lands in the case put, must depend upon the constitution, treaties, and laws of the United States; and a decision in the state court adverse to the claim or title set up under those laws, must, by the very words of the constitution and of the judiciary act, be subject to review by the supreme court of the United States, whose decision is final.
The remarks in the text of this page upon the relative weakness of the government of the Union, are equally applicable to any form of republican or democratic government, and are not peculiar to a federal system. Under the circumstances supposed by the author, of all the citizens of a state, or a large majority of them, aggrieved at the same time and in the same manner, by the operation of any law, the same difficulty would arise in executing the laws of the state as those of the Union. Indeed, such instances of the total inefficacy of state laws are not wanting. The fact is, that all republics depend on the willingness of the people to execute the laws. If they will not enforce them, there is, so far, an end to the government, for it possesses no power adequate to the control of the physical power of the people.
Not only in theory, but in fact, a republican government must be administered by the people themselves. They, and they alone, must execute the laws. And hence, the first principles in such governments, that on which all others depend, and without which no other can exist, is and must be, obedience to the existing laws at all times and under all circumstances. It is the vital condition of the social compact. He who claims a dispensing power for himself, by which he suspends the operation of the law in his own case, is worse than a usurper, for he not only tramples under foot the constitution of his country, but violates the reciprocal pledge which he has given to his fellow-citizens, and has received from them, that he will abide by the laws constitutionally enacted; upon the strength of which pledge, his own personal rights and acquisitions are protected by the rest of the community.--_American Editor_.]
[159] Kent's Commentaries, vol. i., p. 244. I have selected an example which relates to a time posterior to the promulgation of the present constitution. If I had gone back to the days of the confederation, I might have given still more striking instances. The whole nation was at that time in a state of enthusiastic excitement; the revolution was represented by a man who was the idol of the people; but at that very period congress had, to say the truth, no resources at all at its disposal. Troops and supplies were perpetually wanting. The best devised projects failed in the execution, and the Union, which was constantly on the verge of destruction, was saved by the weakness of its enemies far more than by its own strength.
[160] Appendix O.
