American Institutions and Their Influence

by Alexis de Tocqueville

{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.