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 conceived 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 resist 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 invested 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; but the favor of the people would not be so necessary to him as to induce him to court it by humoring 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 complaints, 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.
{The question of the propriety of leaving the president re-eligible, is one of that class which probably must for ever remain undecided. The author himself, at page 125, gives a strong reason for re-eligibility, "so that the chance of a prolonged administration may inspire him with hopeful undertakings for the public good, and with the means of carrying them into execution,"—considerations of great weight. There is an important fact bearing upon this question, which should be stated in connexion with it. President Washington established the practice of declining a third election, and every one of his successors, either from a sense of its propriety or from apprehensions of the force of public opinion, has followed the example. So that it has become as much a part of the constitution, that no citizen can be a third time elected president, as if it were expressed in that instrument in words. This may perhaps be considered a fair adjustment of objections on either side. Those against a continued and perpetual re-eligibility are certainly met: while the arguments in favor of an opportunity to prolong an administration under circumstances that may justify it, are allowed their due weight. One effect of this practical interpolation of the constitution unquestionably is, to increase the chances of a president's being once re-elected; as men will be more disposed to acquiesce in a measure that thus practically excludes the individual from ever again entering the field of competition.—American Editor}
FEDERAL COURTS.{142}
Political Importance of the Judiciary in the United States.—Difficulty of treating this Subject.—Utility of judicial Power in Confederations—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 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 among what are properly called political institutions: in this respect they are peculiarly deserving of our attention. But I am at a 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 prolix 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 constitution 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 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 it 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.