was passed in 1822, fixes the proportion at one for 4S,000. The popu
lation represented is composed of all the freemen and of three-fifths of
the slaves.



THE FEDERAL CONSTITUTION. 115

the only two conflicting interests which existed among the
Anglo-Americans ; and a compromise was necessarily made
between them.

It is, however, just to acknowledge that this part of the con-
stitution 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 consequently never been induced to league them
selves together in the senate to oppose the designs of the
larger ones ; and indeed there is so irresistible an authority
in the legitimate expression of the will of a people, that the
senate could offer but a feeble opposition to the vote of the
majority of the house of representatives.

It must not be forgotten, on the other hand, that it was not
in the power of the American legislators to reduce to a single
nation the people for whom they were making laws. The
object of the federal constitution was not to destroy the inde
pendence 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 in
fluence of the states into the mechanism of the federal govern
ment was by no means to be wondered at ; since it only
attested the existence of an acknowledged power, which was
to be humored, and not forcibly checked.



A FARTHER DIFFERENCE BETWEEN THE SENATE AND THE
HOUSE OF REPRESENTATIVES.

The Senate named by the provincial Legislature the Representatives,
by the People. Double Election of the Former Single Election of
the Latter. Term of the different Offices. Peculiar Functions of
each House.

THE senate not only differs from the other house in the prin
ciple which it represents, but also in the mode of its election,
in the term for which it is chosen, and in the nature of its
functions. The house of representatives is named by the
people, the senate by the legislators of each state ; the former
is directly elected ; the latter is elected by an elected body ;
the term for which the representatives are chosen is only two
years, that of the senators is six. The functions of the house



110 THE FEDERAL CONSTITUTION.

of representatives are purely legislative, and the only share it
takes in the judicial power is in the impeachment of public
officers. The senate co-operates in the work of legislation,
and tries those political offences which the house of represen
tatives submits to its decision. It also acts as the great
executive council of the nation ; the treaties which are con
cluded 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 POWER, f

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 indispensa
ble to the maintenance of the republican form of government
that the representatives of the executive power should be sub
ject to the will of the nation.

The president is an elective magistrate. His honor, his
property, his liberty, and his life, are the securities which the
people has for the temperate use of his power. But in the
exercise of his authority he cannot be said to be perfectly
independent ; the senate takes cognizance of his relations with
foreign powers, and of the distribution of public appointments,
so that he can neither be bribed, nor can he employ the
means of corruption. The legislators of the Union acknow
ledged that the executive power would be incompetent to fulfil
its task with dignity and utility, unless it enjoyed a greater
degree of stability and of strength than had been granted to it
in the separate states.

The president is chosen for four years, and he may be re-
elected ; so that the chances of a prolonged administration
may inspire him with hopeful undertakings for the public
good, and with the means of carrying them into execution.
The president was made the sole representative of the execu
tive power of the Union ; and care was taken not to ivnder

* See the Federalist, Nos. 52-66, inclusive. Story, pp. 199-314
Constitutor! of the United States, sections 2 and 3.

f See the Federalist, Nos. 67-77. Constitution of the United States,
a t. 2. ^t iy, pp. 115; 515-780. Kent's Commentaries, p. 255



THE FEDERAL CONSTITUTION. 117

his decisions subordinate to the vote of a council a danger
ous measure, which tends at the same time to clog the action
of the government and to diminish its responsibility. The
senate has the right of annulling certain acts of the president ;
but it cannot compel him to take any steps, nor does it parti
cipate in the exercise of the executive power.

The action of the legislature on the executive power may
be direct ; and we have just shown that the Americans care
fully obviated this influence ; but it may, on the other hand,
be indirect. Public assemblies which have the power of de
priving 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 them
selves 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 ten
dency which legislative assemblies have to get possession
of the government, but they have rendered this propensity
less irresistible. The salary of the president is fixed, at the
time of his entering upon office, for the whole period of his
magistracy. The president is, moreover, provided with a
suspensive veto, which allows him to oppose the passing of
such laws as might destroy the portion of independence which
the constitution awards him. The struggle between the pre
sident and the legislature must always be an unequal one,
since the latter is certain of bearing down all resistance by
persevering in its plans ; but the suspensive veto forces it at
least to reconsider the matter, and, if the motion be persisted
in, it must then be backed by a majority of two-thirds of the
whole house. The veto is, in fact, a sort of appeal to the
people. The executive power, which, without this security,
might have been secretly oppressed, adopts this means of
pleading its cause and stating its motives. But if the legis
lature is certain of overpowering all resistance by persevering
in its plans, I reply, that in the constitutions of all nations,
of whatever kind they may be, a certain point exists at
which the legislator is obliged to have recourse to the good
sense and the virtue of his fellow-citizens. This point is more
prominent and more discoverable in republics, while it is
more remote and more carefully concealed in monarchies,
but it always exists somewhere. There is no country in the
world in which everything can be provided for by the laws,
or in which political institutions can prove a substitute for
common sense and public morality.



116 THE FEDERAL CONSTITUTION.



DIFFERENCE BETWEEN THE POSITION OF THE PRESIDENT OF
THE UNITED STATES AND THAT OF A CONSTITUTIONAL 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 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 accu
rate 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 honors, the etiquette, and even the funds of royalty, long
after its authority has disappeared. The English, after hav
ing cut off the head of one king, and expelled another from
his throne, were accustomed to accost the successors of those
princes upon their knees. On the other hand, when a repub
lic falls under the sway of a single individual, the demeanor
of the sovereign is simple and unpretending, as if his authority
was not yet paramount. When the emperors exercised an
unlimited control over the fortunes and the lives of their fellow-
citizens, it was customary to call them Cesar in conversation,
and they were in the habit of supping without formality at
their friends' houses. It is therefore necessary to look below
the surface.

The sovereignty of the United States is shared between
the Union and the states, while in France it is undivided and
compact : hence arises the first and the most notable differ
ence which exists between the president of the United States
and the king of France. In the United States the executive
power is as limited and partial as the sovereignty of the Union
in whose name it acts ; in France it is as universal as the



THE FEDERAL CONSTITUTION. 119

authority of the state. The Americans have a federal, and
the French a national government.

The first cause of inferiority results from the nature of
things, but it is not the only one ; the second in importance
is as follows : sovereignty may be defined to be the right of
making laws : in France, the king really exercises a portion
of the sovereign power, since the laws have no weight till he
has given his assent to them ; he is moreover the executor
of all they ordain. The president is also the executor of the
laws, but he does not really co-operate in their formation,
since the refusal of his assent does not annul them. He is
therefore merely to be considered as the agent of the sovereign
power. But not only does the king of France exercise a por
tion of the sovereign power, he also contributes to the nomi
nation of the legislature, which exercises the other portion.
He has the privilege of appointing the members of one
chamber, and of dissolving the other at his pleasure ; where
as the president of the United States has no share in the
formation of the legislative body, and cannot dissolve any
part of it. The king has the same right of bringing forward
measures as the chambers ; a righ x which the president does
not possess. The king is represented in each assembly by
his ministers, who explain his intentions, support his opinions,
and maintain the principles of the government. The presi
dent and his ministers are alike excluded from congress ; so
that his influence .and his opinions can only penetrate indi
rectly 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 exer
cises 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 almost
analogous to that of the king of France the president labors
under several causes of inferiority. The authority of the
king, in France, has, in the first place, the advantage of dura
tion over that of the president : and durability is one of the
chief elements of strength ; nothing is either loved or, feared
but what is likely to endure. The president of the United
States is a magistrate elected for four years. The king, in
France, is an hereditary sovereign.

In the exercise of the executive power the president of the
Uuiied States is constantly subject to jealous scrutiny. He
*iibke, but he cannot conclude a treaty ; he may desig-



120 THE FEDERAL CONSTITUTION.

nate, 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 inviolable by
the French charter.

Nevertheless, the supremacy of public opinion is no less
above the head of 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 exists. In America it
acts by elections and decrees ; in France it proceeds by revo
lutions ; but notwithstanding the different constitutions of
these two countries, public opinion is the predominant autho
rity* in both of them. The fundamental principle of legisla
tion a principle essentially republican is the same in both
countries, although its consequences may be different, and
its results more or less extensive. Whence I am led to con
clude, that France with its king is nearer akin to a republic,
than the Union with its president is to a monarchy.

In what I have been saying I have only touched upon the
main points of distinction ; and if I could have entered into
details, the contrast would have been rendered still more
striking.

I have remarked that the authority of the president in the
United States is only exercised within the limits of a partial
sovereignty, while that of the king, in France, is undivided.
I might have gone on to show that the power of the king's
government in France exceeds its natural . limits, however
extensive they may be, and penetrates in a thousand different
ways into the administration of private interests. Among the
examples of this influence may be quoted that which results
from the great number of public functionaries, who all derive
their appointments from the government. This number now
exceeds all previous limits; it amounts to 138,000f nomina
tions, each of which may be considered as an element of power.
The president of the United States has not the exclusive right

* The constitution had left it doubtful whether the president was
obliged to consult the senate in the removal as well as in the appoint
ment 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 Keni's Commenta
ries, vol. i., p. 289.

f The sums annually paid by the state to these officers amount to
200,000,000 francs (eight millions sterling).



THE FEDERAL CONSTITUTION.



121



of making any public appointments, and their whole number
scarcely exceeds 12,000.*

[Those who are desirous of tracing the question respecting the power
of the president to remove every executive officer of the government
without the sanction of the senate, will find some light upon it by re
ferring to 5th Marshall's Life of Washington, p. 196 : 5 Sergeant and
Rawle's Reports (Pennsylvania), 451 : Elliot's Debates on the Federal
Constitution, vol iv., p. 355, contains the debate in the House of Re
presentatives, June 16, 1799, when the question was first mooted
Report of a committee of the senate in 1822, in Niles's Register of 29th
August in that year. It is certainly very extraordinary that such a vast
power, and one so extensively affecting the whole administration of
the government, should rest on such slight foundations, as an inference
from an act of congress, providing that when the secretary of the trea
sury should be removed by the president, his assistant should discharge
the duties of the office. How congress could confer the power, even
by a direct act, is not perceived. It must be a necessary implication
from the words of the constitution, or it does ftot exist. It has been
repeatedly denied in and out of congress, and must be considered, as
yet, an unsettled question. American Editor.]



ACCIDENTAL CAUSES WHICH MAY INCREASE THE INFLUENCE 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
France, the cause is more attributable to the circumstances
than to the laws of the country.

It is chiefly in its foreign relations that the executive power
of a nation is called upon to exert its skill and vigor. If the
existence of the Union were perpetually threatened, and its
chief interest were in daily connexion with those of other pow
erful nations, the executive government would assume an in
creased 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 coin-

* 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



122 THE FEDERAL CONSTITUTION.

mands the fleet, but the fleet reckons but few sail ; he cmi
ducts the foreign relations of the Union, but the United States
are a nation without neighbors. Separated from the rest of
the world by the ocean, and too weak as yet to aim at the
dominion of the seas, they have no enemies, and their inter-
ests rarely come into contact with those of any other nation
of the globe.

The practical part of a government must not be judged by
the theory of its constitution. The president of the United
States is in the possession of almost royal prerogatives, which
he has no opportunity of exercising ; and those privileges
which he can at present use are very circumscribed : the laws
allow him to possess a degree of influence which circum
stances do not permit him to employ.

On the other hand, the great strength of the royal preroga
tive in France arises from circumstances far more than
from the laws. There the executive government is con
stantly 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 con
stitution. If the laws had made it as feeble and as circum
scribed as it is in the Union, its influence would very soon
become much greater.



WHY THE PRESIDENT OF THE UNITED STATES DOES NOT RE
QUIRE THE MAJORITY OF THE TWO HOUSES IN ORDER TO
CARRY ON THE GOVERNMENT.

IT is an established axiom in Europe that a constitutional
king cannot persevere in a system of government which is
opposed by the two other branches of the legislature. But
several presidents of the United States have been known to
lose the majority in the legislative body, without being
obliged to abandon the supreme power, and without inflicting
a serious evil upon society. I have heard this fact quoted
as an instance of the independence and power of executive
government in America : a moment's reflection will convince
us, on the contrary, that it is a proof of its extreme weakness.
A king in Europe requires the support of the legislature
to enable him to perform the duties imposed upon him by the
constitution, because those duties are enormous. A constitu
tional king in Europe is not merely the executor of the lav/,



THE FEDERAL CONSTITUTION. 123

out the execution of its provisions devolves so completely
upon him, that he has the power of paralyzing its influence
if it opposes his designs. He requires the assistance of the
legislative assemblies to make the law, but those assemblies
stand in need of his aid to execute it : these two authorities
cannot subsist without each other, and the mechanism of
government is stopped as soon as they are at variance.

In America the president cannot prevent any law from
being passed, nor can he evade the obligation of enforcing it.
His sincere and zealous co-operation is no doubt useful, but
it is not indispensable in the carrying on of public affairs.
All his important acts are directly or indirectly submitted to
the legislature ; and 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 between
them may prove serious ; in America, this harmony is not
indispensable, because such a collision is impossible.



ELECTION OF THE PRESIDENT.

Dangers of the elective System increase in Proportion to the Extent
of the Prerogative. This System possible in America because no
powerful executive Authority is required. What Circumstances
are favorable to the elective System. Why the Election of the
President does not cause a Deviation from the Principles of the Gov-
frnment. 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 suf
ficiently 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 impor
tance it possesses in the state ; and they may vary accord
ing to the mode of election, and the circumstances in which
the electors are placed. The most weighty argument against
the election of a chief-magistrate is, that it offers so splendid
a lure to private ambition, and is so apt to inflame men in the
pursuit of power, that when legitimate means are wanting,
force may not unfrequently seize what right denies.

It is clear that the greater the privileges of the executive



124 THE FEDERAL CONSTITUTION.

authority are, the greater is the temptation ; the more the
ambition of the candidates is excited, the more warmly are
their interests espoused by a throng of partisans who hope to
share the power when their patron has won the prize. The
dangers of the elective system increase, therefore, in the ex
act 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 powerful mon
archy. Before we can discuss the absolute advantages of
the elective system, we must make preliminary inquiries as
to whether the geographical position, the laws, the habits, the
mariners, and the opinions of the people among whom it is to
be introduced, will admit of the establishment of a weak and
dependent executive government ; for to attempt to render
the representative of the state a powerful sovereign, and at
the same time elective, is, in my opinion, to entertain two in
compatible 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 be
forehand, gradually to diminish its prerogatives, and to accus
tom the people to live without its protection. Nothing, how
ever, is farther from the designs 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 under