If it had been the intention of the American legislator to invest a political body with great judicial authority, its action would not have been limited to the circle of public functionaries, since the most dangerous enemies of the State may be in the possession of no functions at、 all; and this is especially true in republics, where party favor is the first of authorities, and where the strength of many a leader is increased by his exercising no legal power. If it had been the intention of the American legislator to give society the means of repressing State offences by exemplary punishment, according to the practice of ordinary justice, the resources of the penal code would all have been placed at the disposal of the political tribunals. But the weapon with which they are entrusted is an imperfect one, and it can never reach the most dangerous offenders; since men who aim at the entire subversion of the laws are not likely to murmur at a political interdict.

The main object of the political jurisdiction which obtains in the United States is, therefore, to deprive the citizen of an authority which he has used amiss, and to prevent him from ever acquiring it again. This is evidently an administrative measure sanctioned by the formali. ties of a judicial investigation. In this matter the Americans have created a mixed system: they have surrounded the act which removes a public functionary with the securities of a political trial; and they have deprived all political condemnations of their severest penalties. Every link of the system may easily be traced from this point; we at once perceive why the American constitutions subject all the civil functionaries to the jurisdiction of the Senate, while the military, whose crimes are nevertheless more formidable, are exempted from that tribunal. In the civil service none of the American functionaries can be said to be removeable; the places which some of them occupy are inalienable, and the others derive their rights from a power which cannot be abrogated. It is therefore necessary to try them all in order to deprive them of their authority. But military officers are dependent on the chief magistrate of the State, who is himself a civil functionary; and the decision which condemns him is a blow upon them all.

If we now compare the American and European systems, we shall meet with differences no less striking in the different effects which each of them produces or may produce. In France and in England the jurisdic. tion of political bodies is looked upon as an extraordinary resource, which is only to be employed in order to rescue society from unwonted dangers. It is not to be denied that these tribunals, as they are constituted in Europe, are apt to violate the conservative principle of

the balance of power in the State, and to threaten incessantly the lives and liberties of the subject. The same political jurisdiction in the United States is only indirectly hostile to the balance of power; it cannot menace the lives of the citizens, and it does not hover, as in Europe, over the heads of the community, since those only who have beforehand submitted to its authority upon accepting office are exposed to its severity. It is at the same time less formidable and less efficacious; indeed, it has not been considered by the legislators of the United States as a remedy for the more violent evils of society, but as an ordinary means of conducting the government. In this respect it probably exercises more real influence on the social body in America than in Europe. We must not be misled by the apparent mildness of the American legislation in all that relates to political jurisdiction. It is to be observed, in the first place, that in the United States the tribunal which passes sentence is composed of the same elements, and subject to the same influences, as the body which impeaches the offender, and that this uniformity gives an almost irresistible impulse to the vindictive passions of parties. If political judges in the United States cannot inflict such heavy penalties as those of Europe, there is the less chance of their acquitting a prisoner; and the conviction, if it is less formidable, is more certain. The principal object of the political tribunals of Europe is to punish the offender; the purpose of those in America is to deprive him of his authority. A political condemnation in the United States may, therefore, be looked upon as a preventive measure; and there is no reason for restricting the judges to the exact definitions of criminal law. Nothing can be more alarming than the excessive latitude with which political offences are described in the laws of America. Article II. Section iv. of the Constitution of the United States runs thus: "The President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." Many of the Constitutions of the States are even less explicit. "Public officers," says the Constitution of Massachusetts,* * "shall be impeached for misconduct or mal-administration." The Constitution of Virginia declares that all the civil officers who shall have offended against the State by mal-administration, corruption, or other high crimes, may be impeached by the House of Delegates in some constitutions no offences are specified, in order to sub

*Chapter 1. sect. ii. § 8.

ject the public functionaries to an unlimited responsibility. But I will venture to affirm, that it is precisely their mildness which renders the American laws most formidable in this respect. We have shown that in Europe the removal of a functionary and his political interdiction are consequences of the penalty he is to undergo, and that in America they constitute the penalty itself. The result is, that in Europe political tribunals are invested with rights which they are afraid to use, and that the fear of punishing too much hinders them from punishing at all. But in America no one hesitates to inflict a penalty from which humanity does mot recoil. To condemn a political oppo. nent to death, in order to deprive him of his power, is to commit what all the world would execrate as a horrible assassination; but to declare that opponent unworthy to exercise that authority, to deprive him of it, and to leave him uninjured in life and liberty, may appear to be the fair issue of the struggle. But this sentence, which it is so easy to pronounce, is not the less fatally severe to the majority of those upon whom it is inflicted. Great criminals may undoubtedly brave its intangible rigor, but ordinary offenders will dread it as a condemna. tion which destroys their position in the world, casts a blight upon their honor, and condemns them to a shameful inactivity worse than death. The influence exercised in the United States upon the progress of society by the jurisdiction of political bodies may not appear to be formidable, but it is only the more immense. It does not act directly upon the governed, but it renders the majority more absolute over those who govern; it does not confer an unbounded authority on the legislator which can only be exerted at some momentous crisis, but it establishes a temperate and regular influence, which is at all times availa. ble. If the power is decreased, it can, on the other hand, be more conveniently employed, and more easily abused. By preventing political tribunals from inflicting judicial punishments, the Americans seem to have eluded the worst consequences of legislative tyranny, rather than tyranny itself; and I am not sure that political jurisdiction, as it is constituted in the United States, is not the most formidable which has ever been placed in the rude grasp of a popular majority. When the American republics begin to degenerate, it will be easy to verify the truth of this observation, by remarking whether the number of political impeachments augments.†

* See the Constitutions of Illinois, Maine, Connecticut, and Georgia. † See Appendix, N.

CHAPTER VIII.

THE FEDERAL CONSTITUTION.

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

HISTORY OF THE FEDERAL CONSTITUTION.

Origin of the first Union.—Its weakness.—Congress appeals to the constituent authority.—Interval of two years between the appeal and the promulgation of the new Constitution.

The thirteen colonies which simultaneously threw off the yoke of England towards the end of the last century, possessed, as I have already observed, the same religion, the same language, the same customs, and almost the same laws; they were struggling against a common enemy; and these reasons were sufficiently strong to unite them one to another, and to consolidate them into one nation. But as each of them had en. joyed a separate existence, and a government within its own control, the peculiar interests and customs which resulted from this system were opposed to a compact and intimate union, which would have absorbed the individual importance of each in the general importance of all. Hence arose two opposite tendencies, the one prompting the AngloAmericans to unite, the other to divide their strength. As long as the war with the mother-country lasted, the principle of union was kept alive by necessity; and although the laws which constituted it

See the Constitution of the United States.

were defective, the common tie subsisted in spite of their imperfections.✻ But no sooner was peace concluded than the faults of the legislation became manifest, and the State seemed to be suddenly dissolved. Each colony became an independent republic, and assumed an absolute sovereignty. The federal government, condemned to impotence by its constitution, and no longer sustained by the presence of a common danger, saw the outrages offered to its flag by the great nations of Europe, while it was scarcely able to maintain its ground against the In. dian tribes, and to pay the interest of the debt which had been contract. ed during the War of Independence. It was already on the verge of destruction, when it officially proclaimed its inability to conduct the government, and appealed to the constituent authority of the nation.†

If America ever approached (for however brief a time) that lofty pin. nacle of glory to which the proud fancy of its inhabitants is wont to point, it was at the solemn moment at which the power of the nation abdicated, as it were, the empire of the land. All ages have furnished the spectacle of a people struggling with energy to win its independence; and the efforts of the Americans in throwing off the English yoke have been considerably exaggerated. Separated from their enemies by three thousand miles of ocean, and backed by a powerful ally, the success of the United States may be more justly attributed to their geographical position than to the valor of their armies, or the patriotism of their citizens. It would be ridiculous to compare the American war to the wars of the French Revolution, or the efforts of the Americans to those of the French, who, when they were attacked by the whole of Europe, without credit and without allies, were still capable of opposing a twen tieth part of their population to their foes, and of bearing the torch of revolution beyond their frontiers while they stifled its devouring flame within the bosom of their country. But it is a novelty in the history of society to see a great people turn a calm and scrutinizing eye upon itself when apprized by the legislature that the wheels of government had stopped; to see it carefully examine the extent of the evil, and patiently wait for two whole years until a remedy was discovered, which it voluntarily adopted without having wrung a tear or a drop of blood from mankind. At the time when the inadequacy of the first constitution was discovered, America possessed the double advantage of that

* See the articles of the first cenfederation 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 "Commenta ries on the Constitution of the United States,' pp. 85-115.

† Congress made this declaration on the 21st of Feb. 1787,