The Online Library of Liberty

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• Translator’s Note
• Acknowledgments
• Key Terms
• Foreword
• The Manuscripts of Tocqueville
• Some Details Concerning the Present Edition
• Abbreviations and Symbols Used In This Edition
• Note On the Manuscripts
• Acknowledgments
• Illustrations
• Editor’s Introduction
• I: Legacies
• II: To Understand the Revolution
• Democracy In America a (1835), Volume I]: Part I
• Introduction a
• Chapter 1: Exterior Configuration of North America
• Chapter 2: Of the Point of Departure and Its Importance For the Future of the Anglo-americans a
• Reasons For Some Singularities That the Laws and Customs B of the Anglo-americans Present
• Chapter 3: Social State of the Anglo-americans
• That the Salient Point of the Social State of the Anglo-americans Is to Be Essentially Democratic
• Political Consequences of the Social State of the Anglo-americans
• Chapter 4: Of the Principle of the Sovereignty of the People In America
• Chapter 5: Necessity of Studying What Happens In the Individual States Before Speaking About the Government of the Union a
• Of the Town System In America C
• Town District
• Town Powers In New England
• Of Town Life
• Of Town Spirit In New England
• Of the County In New England
• Of Administration In New England a
• General Ideas On Administration In the United States
• Of the State
• Legislative Power of the State
• Of the Executive Power of the State
• Of the Political Effects of Administrative Decentralization In the United States C
• Chapter 6 A: of the Judicial Power In the United States and Its Action On Political Society B
• Other Powers Granted to American Judges
• Chapter 7: Of Political Jurisdiction In the United States Tn 4
• Chapter 8: Of the Federal Constitution
• Historical Background of the Federal Constitution a
• Summary Picture of the Federal Constitution J
• Attributions of the Federal Government
• Federal Powers
• Legislative Powers: R [difference Between the Constitution of the Senate and That of the House of Representatives]
• Another Difference Between the Senate and the House of Representatives W
• Of Executive Power 16
• How the Position of the President of the United States Differs From That of a Constitutional King In France
• Accidental Causes That Can Increase the Influence of the Executive Power
• Why the President of the United States, to Lead Public Affairs, Does Not Need to Have a Majority In the Chambers
• Of the Election of the President
• Mode of Election
• Election Crisis
• Of the Re-election of the President
• Of the Federal Courts 24
• Way of Determining the Jurisdiction Tn 5 of the Federal Courts
• Different Cases of Jurisdiction
• The Federal Courts’ Way of Proceeding
• Elevated Rank That the Supreme Court Occupies Among the Great Powers of the State
• How the Federal Constitution Is Superior to the State Constitutions
• What Distinguishes the Federal Constitution of the United States of America From All Other Federal Constitutions
• Of the Advantages of the Federal System In General, and of Its Special Utility For America M
• What Keeps the Federal System From Being Within the Reach of All Peoples; and What Has Allowed the Anglo-americans to Adopt It

DEMOCRACY IN AMERICAa (1835), Volume I]

PART I

Introductiona

[The work that you are about to read is not a travelogue,b <the reader can rest easy>. I do not want him to be concerned with me. You will also not find in this book a complete summary of all the institutions of the United States; but I flatter myself that, in it, the public will find some new documentation and, from it, will gain useful knowledge about a subject that is more important for us than the fate of America and no less worthy of holding our attention.c ]

Among the new objects that attracted my attention during my stay in the United States, none struck me more vividly than the equality of conditions.d I discovered without difficulty the prodigious influence that this primary fact exercises on the march of society; it gives a certain direction to the public mind, a certain turn to the laws; to those governing, new maxims, and particular habits to the governed.

Soon I recognized that this same fact extends its influence far beyond political mores and laws, and that it has no less dominion over civil society, than over government: it creates opinions, gives birth to sentiments, suggests customs and modifies all that it does not produce.

Therefore, as I studied American society, I saw more and more, in equality of conditions, the generating fact from which each particular fact seemed to derive, and I rediscovered it constantly before me as a central point where all of my observations came together.

Then I turned my thought back toward our hemisphere, and it seemed to me that I perceived something analogous to the spectacle that the New World offered me. I saw equality of conditions that, without having reached its extreme limits as in the United States, approached those limits more each day; and this same democracy that reigned in American societies, appeared to me to advance rapidly toward power in Europe.e

From that moment, I conceived the idea of the book you are about to read.f

A great democratic revolution is taking placeg among us; everyone sees it, but not everyone judges it in the same way. Some consider it as something new and, taking it for an accident, they hope still to be able to stop it; while others judge it irresistible, because it seems to them the most continuous, oldest and most permanent fact known in history.

I look back for a moment to what France was seven hundred years ago: I find it divided up among a small number of families who own the land and govern the inhabitants; at that time, the right to command is passed down with inheritances from generation to generation; men have only a single way to act on one another, force; you discover only a single source of power, landed property.

But then the political power of the clergy becomes established and is soon expanding.h The clergy opens its ranks to all, to the poor and to the rich, to the commoner and to the lord; equality begins to penetrate through the Church into the government, and someone who would have vegetated as a serf in eternal slavery takes his place as a priest among nobles and often goes to take a seat above kings.

As society becomes more civilized and more stable with time, the different relationships among men become more complicated and more numerous. The need for civil laws is intensely felt. Then jurists arise; they emerge from the dark precinct of the courts and from the dusty recess of the clerks’ offices, and they go to sit in the court of the prince, alongside feudal barons covered with ermine and iron.

Kings ruin themselves in great enterprises; nobles exhaust themselves in private wars; commoners enrich themselves in commerce. The influence of money begins to make itself felt in affairs of State. Trade is a new source of power, and financiers become a political power that is scorned and flattered.

Little by little, enlightenment spreads; the taste for literature and the arts reawakens; then the mind becomes an element of success; knowledge is a means of government; intelligence, a social force; men of letters reach public affairs.

As new roads to achieve power are found, however, we see the value of birth fall. In the XIth century, nobility had an inestimable value; it is purchased in the XIIIth; the first granting of nobility takes place in 1270,j and equality is finally introduced into government by aristocracy itself.

During the seven hundred years that have just passed, it sometimes happened that, in order to struggle against royal authority, or to take power away from their rivals, the nobles gave political power to the people.

Even more often, you saw kings make the lower classes of the State participate in government in order to humblek the aristocracy.

In France, kings showed themselves to be the most active and most constant of levelers. When they were ambitious and strong, they worked to raise the people to the level of the nobles, and when they were moderate and weak, they allowedm the people to put themselves above kings. The former helped democracy by their talents, the latter by their vices. Louis XI and Louis XIV took care to equalize everything below the throne, and Louis XV himself finally descended into the dust with his court.n

As soon as citizens began to own the land in ways other than by feudal tenure, and as soon as personal wealth, once known, could in turn create influence and confer power, no discoveries were made in the arts, no further improvements were introduced into commerce and industry, without also creating as many new elements of equality among men. From this moment, all processes that are found, all needs that are born, all desires that demand to be satisfied, are progress toward universal leveling. The taste for luxury, the love of war, the sway of fashion, the most superficial passions of the human heart as well as the most profound, seem to work in concert to impoverish the rich and to enrich the poor.

From the time when works of the mind became sources of strength and wealth, each development of science, each new element of knowledge, each new idea had to be considered as a germ of power put within reach of the people. Poetry, eloquence, memory, mental graces, fires of the imagination, depth of thought, all these gifts that heaven distributes at random, profited democracy, and even when they were in the possession of democracy’s adversaries, they still served its cause by putting into relief the natural grandeur of man; so democracy’s conquests spread with those of civilization and enlightenment, and literature was an arsenal open to all, where the weak and the poor came each day to find arms.

When you skim the pages of our history you do not find so to speak any great events that for seven hundred years have not turned to the profit of equality.

The Crusades and the English wars decimate the nobles and divide their lands; the institution of the towns introduces democratic liberty into the feudal monarchy; [<the rigors enforced against the Jews bring about the invention of paper wealtho >]; the discovery of firearms equalizes the villein and the noble on the field of battle; printing offers equal resources to their minds; the post comes to deposit enlightenment at the threshold of the hut of the poor as at the gate of palaces; Protestantism maintains that all men are equally able to find the way to heaven. America, which comes into sight, presents a thousand new paths to fortune and delivers the wealth and power [reserved to kings] to obscure adventurers.

If you examine what is happening in France from the XIth century every fifty years, at the end of each one of these periods, you will not fail to notice that a double revolution has taken place in the state of society. The noble will have slipped on the social ladder, the commoner will have risen; the one descends, the other ascends. Each half-century brings them closer together, and soon they are going to touch.

And this is not only particular to France. In whatever direction we cast our eyes, we notice the same revolution continuing in all of the Christian universe. [Let someone cite to me a republic or a kingdom in which the nobles of today can be compared, I would not say to the nobles of feudal times, but only to their fathers of the last century. {If France hastened the democratic revolution of which I am speaking, France did not give it birth}.

For seven hundred years, there is not a single event among Christians that has not turned to the profit of democracy, not a man who has not served its triumph. <≠The clergy by spreading enlightenment and by applying within its bosom the principle of Christian equality, kings by opposing the people to nobles, nobles by opposing the people to kings; writers and the learned by creating intellectual riches for democracy’s use; tradesmen by providing unknown resources for democracy’s activity; the navigator by finding democracy new worlds.≠>]

Everywhere you saw the various incidents in the lives of peoples turn to the profit of democracy; all men aided it by their efforts:p those who had in view contributing to its success and those who did not think of serving it; those who fought for it and even those who declared themselves its enemies; all were pushed pell-mell along the same path, and all worked in common, some despite themselves, others without their knowledge, blind instruments in the hands of God.

So the gradual development of equality of conditions [{democracy}] is a providential fact;q it has the principal characteristics of one: it is universal, it is lasting, it escapes every day from human power; all events, like all men, serve its development.r

Would it be wise to believe that a social movement that comes from so far could be suspended by the efforts of a generation?s Do you think that after having destroyed feudalism and vanquished kings, democracy will retreat before the bourgeois and the rich?t Will it stop now that it has become so strong and its adversaries so weak?

So where are we going? No one can say; for we are already lacking terms of comparison; conditions are more equal today among Christians than they have ever been in any time or in any country in the world; thus we are prevented by the magnitude of what is already done from foreseeing what can still be done.

The entire book that you are about to read has been written under the impression of a sort of religious terror produced in the soul of the author by the sight of this irresistible revolution that has marched for so many centuries over all obstacles, and that we still see today advancing amid the ruins that it has made.

It isn’t necessary for God himself to speak in order for us to discover sure signs of his will; it is enough to examine the regular march of nature and the continuous tendency of events; I know, without the Creator raising his voice, that the stars in space follow the curves traced by his fingers.

If long observations and sincere meditations led men of today to recognize that the gradual and progressive development of equality is at once the past and the future of their history, this discovery alone would give this development the sacred character of the will of God. To want to stop democracy would then seem to be struggling against God himself, and it would only remain for nations to accommodate themselves to the social state that Providence imposes on them.u

Christian peoples seem to me to offer today a frightening spectacle.v The movement that sweeps them along is already so strong that it cannot be suspended, and it is not yet so rapid as to despair of directing it. Their fate is in their hands; but soon it escapes them.w

To instruct democracy, to revive its beliefs if possible, to purify its mores, to regulate its movements, to substitute little by little the science of public affairs for its inexperience, knowledge of its true interests for its blind instincts; to adapt its government to times and places; to modify it according to circumstances and men; such is the first of duties imposed today on those who lead society.

A new political sciencex is needed for a world entirely newy [{for a unique situation, laws without precedents are needed}].

But that is what we scarcely consider; placed in the middle of a rapid river, we obstinately fix our eyes on some debris that we still see on the bank, while the current carries us away and pushes us backwards toward the abyss.

There is no people of Europe among whom the great social revolutionz that I have just described has made more rapid progress than among us; but here it has always marched haphazardly.

The heads of State [{legislator}] never thought to prepare anything in advance for it; it came about despite them or without their knowledge. The most powerful, most intelligent and most moral classes of the nation did not try to take hold of it in order to direct it. So democracy has been abandoned to its wild instincts; it has grown up like those children, deprived of paternal care, who raise themselves in the streets of our cities, and who know society only by its vices and miseries. We still seemed unaware of its existence, when it took hold of power without warning. Then each person submitted with servility to its slightest desires; it was adored as the image of strength; when later it was weakened by its own excesses, legislators conceived the imprudent plan of destroying it instead of trying to instruct and correct it, and not wanting to teach it to govern, they thought only about pushing it away from government.

The result was that the democratic revolution took place in the material aspect of society without happening in the laws, ideas, habits and mores,a the change that would have been necessary to make this revolutionb useful. We therefore have democracy, minus what must attenuate its vices and bring out its natural advantages; and seeing already the evils that it brings, we are still unaware of the good that it can give.

When royal power, supported by the aristocracy, peacefully governed the peoples of Europe, society, amid its miseries, enjoyed several kinds of happiness, which are difficult to imagine and appreciate today.

The power of some subjects raised insurmountable barriers to the tyranny of the prince; and kings, feeling vested in the eyes of the crowd with a nearly divine character, drew, from the very respect that they caused, the will not to abuse their power.

Placed an immense distance from the people, the nobles nonetheless took the type of benevolent and tranquil interest in the fate of the people that the shepherdc gives to his flock; and without seeing the poor man as their equal, they watched over his lot as a trust put in their hands by Providence.

Not having conceived the idea of a social state other than their own, not imagining that they could ever be equal to their rulers, the people accepted the benefits and did not question the rights of their rulers. They loved them when they were lenient and just and submitted without difficulty and without servility to their rigors as to inevitable evils sent to them by the hand of God. Custom and mores had, moreover, established limits to tyranny and founded a kind of right in the very midst of force.

Since the noble did not think that someone would want to wrest from him the privileges that he believed legitimate, and the serf regarded his inferiority as a result of the immutable order of nature, it is conceivable that a kind of reciprocal benevolence could be established between these two classes sharing so different a fate. You then saw in society inequality, miseries, but souls were not degraded.

It is not the use of power or the habit of obedience that depraves men; it is the use of a power that they consider as illegitimate and obedience to a power that they regard as usurped and oppressive.

On one side were wealth, force, leisure and with them the pursuit of luxury, refinements of taste, pleasures of the mind, devotion to the arts; on the other, work, coarseness and ignorance.

But within this ignorant and coarse crowd, you met energetic passions, generous sentiments, profound beliefs and untamed virtues.

The social body organized in this way could have stability, power, and above all glory.

But ranks are merging; barriers raised between men are falling; estates are being divided; power is being shared, enlightenment is spreading, intellects are becoming equal; the social state is becoming democratic, and the dominion of democracy is finally being established peacefully in institutions and in mores.

Then I imagine a society where all, seeing the law as their work, would love it and would submit to it without difficulty; where since the authority of the government is respected as necessary and not as divine, the love that is felt for the head of State would be not a passion, but a reasoned and calm sentiment. Since each person has rights and is assured of preserving his rights, a manly confidence and a kind of reciprocal condescension, as far from pride as from servility, would be established among all classes.

Instructed in their true interests, the people would understand that, in order to take advantage of the good things of society, you must submit to its burdens. The free association of citizens would then be able to replace the individual power of the nobles, and the State would be sheltered from tyranny and from license.

I understand that in a democratic State, constituted in this manner, society will not be immobile; but the movements of the social body will be able to be regulated and progressive; if you meet less brilliance there than within an aristocracy, you will find less misery; pleasures will be less extreme and well-being more general; knowledge not as great and ignorance more rare; sentiments less energetic and habits more mild; there you will notice more vices and fewer crimes.d

If there is no enthusiasm and fervor of beliefs, enlightenment and experience will sometimes obtain great sacrifices from citizens; each man, equally weak, will feel an equal need for his fellows; and knowing that he can gain their support only on condition of lending them his help, he will discover without difficulty that for him particular interest merges with the general interest.

The nation taken as a body will be less brilliant, less glorious, less strong perhaps; but the majority of citizens there will enjoy a more prosperous lot, and the people will appear untroubled, not because they despair of being better, but because they know they are well-off.e

If everything was not good and useful in such an order of things, society at least would have appropriated everything useful and good that such an order can present; and men, while abandoning forever the social advantages that aristocracy can provide, would have taken from democracy all the good that the latter can offer to them.

But we, while giving up the social state of our ancestors, while throwing pell-mell their institutions, their ideas, and their mores behind us, what have we put in their place?

The prestige of royal power has vanished, without being replaced by the majesty of laws; today the people scorn authority, but they fear it, and fear extracts more from them than respect and love formerly yielded.

I notice that we have destroyed the individual existences that could struggle separately against tyranny [{but I do not see that we have created a collective strength to fulfill their function}], but I see the government that alone inherits all the prerogatives wrenched from families, from corporations or from men; so, to the sometimes oppressive but often conservative strength of a small number of citizens, the weakness of all has succeeded.

The division of fortunes has reduced the distance that separated the poor from the rich; but by coming closer together, they seem to have found new reasons to hate each other, and, eyeing one another with looks full of terror and envy, they mutually push each other away from power; for the one as for the other, the idea of rights does not exist, and force appears to them both as the only reason for the present and the sole guarantee of the future.

The poor man has kept most of the prejudices of his fathers, without their beliefs; their ignorance, without their virtues; he has accepted, as the rule for his actions, the doctrine of interest, without knowing the science of interest, and his egoism is as wanting in enlightenment as his devotion formerly was.

Society is tranquil, not because it is conscious of its strength and its well-being, but on the contrary because it believes itself weak and frail; it is afraid of dying by making an effort. Everyone feels that things are going badly, but no one has the necessary courage and energy to seek something better; we have desires, regrets, sorrows and joys that produce nothing visible or lasting, similar to the passions of old men that end in impotence.

Thus we have abandoned what the old state could present of the good, without acquiring what the current state would be able to offer of the useful; we have destroyed an aristocratic society, [and we do not think about organizing on its ruins a moral and tranquil democracy] and, stopping out of complacency amid the debris of the former edifice, we seem to want to settle there forever.f

What is happening in the intellectual world is no less deplorable.

Hindered in its march or abandoned without support to its disorderly passions, democracy in France has overturned everything that it met on its way, weakening what it did not destroy. You did not see it take hold of society little by little in order to establish its dominion peacefully; it has not ceased to march amid the disorders and the agitation of battle. Animated by the heat of the struggle, pushed beyond the natural limits of his opinion by the opinions and excesses of his adversaries, each person loses sight of the very object of his pursuits and uses a language that corresponds badly to his true sentiments and to his secret instincts.

From that results the strange confusion that we are forced to witness.

I search my memory in vain; I find nothing that deserves to excite more distress and more pity than what is happening before our eyes;g it seems that today we have broken the natural bond that unites opinions to tastes and actions to beliefs; the sympathy that has been observed in all times between the sentiments and the ideas of men seems to be destroyed, and you would say that all the laws of moral analogy are abolished.

You still meet among us Christians full of zeal, whose religious souls love to be nourished by the truths of the other life; they are undoubtedly going to become active in favor of human liberty, source of all moral grandeur. [<Their hearts will open without difficulty to the holy love of country, this religion of the political world so fruitful in generous devotions.>] Christianity, which has made all men equal before God, will not be loath to see all citizens equal before the law. But, by a combination of strange events, religion is at the moment involved amid the powers that democracy is overturning, and it often happens that religion rejects the equality that it loves and curses liberty as an adversary, while, by taking liberty by the hand, religion could be able to sanctify its efforts.

Next to these religious men, I find others whose sights are turned toward the earth rather than toward heaven; partisans of liberty, not only because they see in it the origin of the most noble virtues, but above all because they consider it as the source of the greatest advantages, they sincerely desire to secure its dominion and to have men taste its benefits. I understand that the latter are going to hasten to call religion to their aid, for they must know that you cannot establish the reign of liberty without that of mores, nor found mores without beliefs; but they have seen religion in the ranks of their adversaries; that is enough for them; some attack religion and the others dare not defend it [all lack enlightenment or courage].

Past centuries saw base and venal souls advocate slavery, while independent spirits and generous hearts struggled without hope to save human liberty. But today you often meet men naturally noble and proud whose opinions are in direct opposition to their tastes, and who speak in praise of the servility and baseness that they have never known for themselves. There are others, in contrast, who speak of liberty as if they could feel what is holy and great in it and who loudly claim on behalf of humanity rights that they have always disregarded.

I notice virtuous and peaceful men placed naturally by their pure morals, tranquil habits, prosperity and enlightenment at the head of the populations that surround them. Full of a sincere love of country, they are ready to make great sacrifices for it. Civilization, however, often finds them to be adversaries; they confuse its abuses with its benefits, and in their minds the idea of evil is indissolubly united with the idea of the new [and they seem to want to establish a monstrous bond between virtue, misery and ignorance so that all three may be struck with the same blowh ].

Nearby I see other men who, in the name of progress, try hard to materialize man, wanting to find the useful without attending to the just, wanting to find knowledge far from beliefs and well-being separate from virtue. These claim to be champions of modern civilization and they arrogantly put themselves at its head, usurping a place that is abandoned to them and that their unworthiness denies to them.j

So where are we?

Religious men combat liberty, and the friends of liberty attack religion; noble and generous spirits speak in praise of slavery, and base and servile souls advocate independence; honest and enlightened citizens are enemies of all progress, while men without patriotism and without mores become the apostles of civilization and enlightenment!

Have all centuries resembled ours then? Has man always had before his eyes, as today, a world where nothing is connected, where virtue is without genius,k and genius without honor; where love of order merges with the taste for tyrants and the holy cult of liberty with scorn for human laws; where conscience throws only a doubtful light upon human actions; where nothing any longer seems either forbidden, or permitted, or honest, or shameful, or true, or false?

Will I think that the Creator made man in order to leave him to struggle endlessly amid the intellectual miseries that surround us? I cannot believe it; God is preparing for European societies a future more settled and more calm; I do not know his plans, but I will not cease to believe in them because I cannot fathom them, and I will prefer to doubt my knowledge than his justice.

There is a country in the world where the great social revolution that I am speaking about seems more or less to have reached its natural limits; it came about there in a simple and easy way, or rather it can be said that this country sees the results of the democratic revolution that is taking place among us, without having had the revolution itself.

The emigrants who came to settle in America at the beginning of the XVIIth century in a way freed the principle of democracy from all those principles that it struggled against within the old societies of Europe, and they transplanted it alone to the shores of the New World. There it was able to grow in liberty and, moving ahead with mores, to develop peacefully in the laws.

It seems to me beyond doubt that sooner or later, we will arrive, like the Americans, at a nearly complete equality of conditions. From that, I do not conclude that one day we are necessarily called to draw from such a social state the political consequences that the Americans have drawn from it.m I am very far from believing that they have found the only form of government that democracy may take; but in the two countries the generating cause of laws and mores is the same; that is enough for us to have an immense interest in knowing what that generating cause has produced in each of them.

So it is not only to satisfy a curiosity, legitimate for that matter, that I examined America; I wanted to find lessons there from which we would be able to profit. You would be strangely mistaken if you thought that I wanted to do a panegyric; whoever reads this book will be clearly convinced that such was not my purpose;n nor was my goal to advocate any particular form of government in general; for I am among those who believe that there is hardly ever absolute good in laws; I did not even claim to judge if the social revolution, whose march seems irresistible to me, was advantageous or harmful to humanity. I have acknowledged this revolution as an accomplished or nearly accomplished fact, and, from among the peoples who have seen it taking place among them, I sought the people among whom it has reached the most complete and most peaceful development, in order to discern clearly its natural consequences and, if possible, to see the means to make it profitable to men. I admit that in America I saw more than America;o I sought there an image of democracy itself, its tendencies, its character, its prejudices, its passions; I wanted to know democracy, if only to know at least what we must hope or fear from it.

In the first part of this work, I tried to show the direction that democracy, delivered in America to its tendencies and abandoned almost without constraint to its instincts, gave naturally to laws, the course that it imparted to government, and in general the power that it gained over public affairs. I wanted to know what good and bad it produced. I sought out what precautions the Americans have used to direct it and what others they have omitted, and I undertook to discern the causes that allow it to govern society.

My goal was to portray in a second part [{third volume}] the influence that equality of conditions and the government of democracy exercise in America on civil society, on habits, ideas and mores;p but I begin to feel less enthusiasmq about accomplishing this plan. Before I can complete in this way the task that I proposed for myself, my work will have become nearly useless. Someone else will soon show readers the principal features of the American character and, hiding the seriousness of the descriptions behind a light veil, will lend truth charms with which I would not be able to adorn it.1

I do not know if I have succeeded in making known what I saw in America, but I am sure that I sincerely desired to do so, and that I never yielded, except unknowingly, to the need to adapt facts to ideas, instead of subjecting ideas to facts.

When a point could be established with the help of written documents, I have taken care to turn to original texts and to the most authentic and most respected works.2 I have indicated my sources in notes, and everyone will be able to verify them. When it was a matter of opinions, of political customs, of observations of mores, I sought to consult the most enlightened men. If something happened to be important or doubtful, I was not content with one witness, but decided only on the basis of the body of testimonies.

Here the reader must necessarily take me at my word. I would often have been able to cite in support of what I advance the authority of names that are known to him, or that at least are worthy to be; but I have refrained from doing so. The stranger often learns by the hearth of his host important truths, that the latter would perhaps conceal from a friend; with the stranger you ease the burden of a forced silence; you are not afraid of his indiscretion because he is passing through. Each one of these confidences was recorded by me as soon as received, but they will never emerge from my manuscripts; I prefer to detract from the success of my accounts than to add my name to the list of those travelers who send sorrows and troubles in return for the generous hospitality that they received.

I know that, despite my care, nothing will be easier than to criticize this book, if anyone ever thinks to examine it critically.

Those who will want to look closely at it will find, I think, in the entire work, a generative thought that links so to speak all its parts. But the diversity of the subjects that I had to treat is very great, and whoever will undertake to contrast an isolated fact to the whole of the facts that I cite, a detached idea to the whole of the ideas, will succeed without difficulty. So I would like you to grant me the favor of reading me with the same spirit that presided over my work, and would like you to judge this book by the general impression that it leaves, as I myself came to a decision, not due to a particular reason, but due to the mass of reasons.

Nor must it be forgotten that the author who wants to make himself understood is obliged to push each of his ideas to all of their theoretical consequences, and often to the limits of what is false and impractical;t for if it is sometimes necessary to step back from the rules of logic in actions, you cannot do the same in discourses, and man finds it almost as difficult to be inconsistent in his words as he normally finds it to be consistent in his actions. [<This, to say in passing, brings out one of the great advantages of free governments, an advantage about which you scarcely think. In these governments, it is necessary to talk a great deal. The need to talk forces men of State to reason, and from speeches a bit of logic is introduced into public affairs.>]

I finish by pointing out myself what a great number of readersu will consider as the capital defect of the work.v This book follows in no one’s train exactly; by writing it I did not mean either to serve or to combat any party; I set about to see, not differently, but farther than parties;w and while they are concerned with the next day, I wanted to think about the future.x

CHAPTER 1

Exterior Configuration of North America

North America, in its exterior configuration, presents general features that are easy to distinguish at first glance.

A kind of methodical order presided over the separation of land and waterways, mountains and valleys. A simple and majestic arrangement is revealed even in the midst of the confusion of objects and among the ex treme variety of scenes.

Two vast regions divide North America almost equally.*

One is limited, in the North, by the Arctic pole; in the East, in the West, by the two great oceans. Then it advances southward and forms a triangle whose sides, irregularly drawn, finally meet below the Great Lakes of Canada.

The second begins where the first finishes and extends over the entire remainder of the continent.

The one inclines slightly toward the pole; the other, toward the equator.

The lands included in the first region descend toward the north in a slope so slight that they could almost be said to form a plateau. In the interior of this immense flatland, there are neither high mountains nor deep valleys.

There the waterways wind as if haphazardly. The rivers mingle, join together, part, meet again, vanish in a thousand swamps, are lost continually within a watery labyrinth that they have created, and only after in numerable twists and turns do they finally reach the polar seas. The Great Lakes, where this first region terminates, are not, like most of the lakes of the Old World, steeply embanked by hills and rocks; their shores are flat and rise only a few feet above sea level. So each of them forms some thing like a vast basin filled to the brim: the slightest changes in the structure of the globe would hurl their waters toward either the pole or the tropical sea.

The second region is more uneven and better prepared to become the permanent dwelling place of man; two long mountain ranges divide it along its length: one, named the Allegheny Mountains, follows the shores of the Atlantic Ocean; the other parallels the Pacific Ocean.

The space enclosed between these two mountain ranges includes 228,843 square leagues.1 So its area is about six times greater than that of France.2

Yet this vast territory forms only a single valley that descends from the rounded summits of the Allegheny Mountains, and, without meeting any obstacles, climbs again to the peaks of the Rocky Mountains.

At the bottom of the valley flows an immense river. From all directions, waterways descending from the mountains are seen to rush toward it.

Formerly the French called it the Saint Louis River, in memory of the absent homeland; and the Indians, in their pompous language, named it the Father of Waters, or the Mississippi.

The Mississippi has its source at the boundaries of the two great regions that I spoke about above, near the top of the plateau that separates them.

Near the source of the Mississippi another river3 arises that empties into the polar seas. Sometimes even the Mississippi seems uncertain of the path it should take; several times it retraces its steps, and only after slowing its pace amidst lakes and marshes does it finally settle upon its route and set its course slowly toward the south.

Sometimes calm within the clayey bed that nature has dug for it, some times swollen by storms, the Mississippi waters more than a thousand leagues along its way.4

Six hundred leagues5 above its mouth, the river already has an average depth of 15 feet, and vessels of 300 tons go up for a distance of nearly two hundred leagues.

Fifty-seven large navigable rivers flow into it. The tributaries of the Mississippi include a river with a length of 1,300 leagues,6 one of 900,7 one of 600,8 one of 500,9 four of 200,10 without considering an innumerable multitude of streams that rush from all directions to become lost within it.

The valley watered by the Mississippi seems to have been created for it alone; there the river dispenses good and evil at will, and seems like a god. Near the river, nature displays an inexhaustible fecundity. As you move away from its banks, plant energies fail; the soil thins; everything languishes or dies. Nowhere have the great convulsions of the earth left clearer traces than in the Mississippi Valley. The whole appearance of the country attests to the action of water. Its sterility, like its abundance, is the work of water. At the bottom of the valley, the waves of the early ocean built up huge layers of vegetable matter and then wore them down over time. On the right bank of the river you find immense plains, made smooth like the surface of a field worked over by the farmworker’s roller. In contrast, the closer you get to the mountains, the more and more broken and sterile the ground becomes; the soil is pierced, so to speak, in a thousand places; and here and there primitive rocks appear, like the bones of a skeleton after time has consumed the surrounding muscles and flesh. Granite sand and stones of irregular size cover the surface of the earth; the shoots of a few plants grow with great difficulty among these obstacles; it seems like a fertile field covered by the ruins of some vast edifice. By analyzing these stones and this sand, it is in fact easy to notice a perfect analogy between their materials and those that form the dry and broken peaks of the Rocky Mountains. After pushing the earth headlong into the bottom of the valley, the water almost certainly ended up carrying along a portion of the rocks themselves; it rolled them along the nearest slopes; and, after grinding them against each other, it scattered these fragments, torn from the summits, at the base of the mountains.b (A)

All in all, the Mississippi Valley is the most magnificent dwelling place ever prepared by God for human habitation;c and yet, it can be said that it is still only a vast wilderness.d

On the eastern slope of the Allegheny Mountains, between the foot of the mountains and the Atlantic Ocean, stretches a long band of rocks and sand that the sea seems to have forgotten as it withdrew. This territory is, on average, only 48 leagues wide,11 but it is 390 leagues long.12 The soil, in this part of the American continent, lends itself to cultivation only with difficulty. Vegetation there is sparse and uniform.

On this inhospitable coast the efforts of human industry were first concentrated. On this strip of arid land were born and grew the English colonies, which would one day become the United States of America. Still today the center of power is found there, while behind, almost in secret, gather the true elements of a great people to whom the future of the continent no doubt belongs.

When Europeans landed on the shores of the Antilles and later on the coasts of South America, they thought themselves transported into the fabled regions celebrated by poets.e The sea sparkled with the fiery glow of the tropics. For the first time, the extraordinary transparency of the waters exposed the depth of the ocean bottom to the eyes of the navigator.13 Here and there small perfumed islands appeared, seeming to float like baskets of flowers on the calm surface of the Ocean. In these enchanted places, all that came into view seemed prepared for the needs of man or planned for his pleasures. Most of the trees were laden with nourishing fruits, and those least useful to man charmed his vision with the vividness and variety of their colors. In a forest of fragrant lemon trees, of wild figs, of myrtle oaks, of acacias and of oleanders, all intertwined by flowering creepers, a multitude of birds unknown in Europe flashed their wings of crimson and azure and mingled the chorus of their songs with the harmonies of a nature full of movement and life.f^B

Death was hidden under this brilliant cloak; but it was not noticed at all at that time. Moreover, in the air of these regions, there reigned I do not know what enervating influence, attaching man to the present and rendering him unmindful of the future.

North America presented another appearance; everything there was grave, serious, solemn. You could have said that it had been created to be come the domain of the mind, as the other was to be the dwelling place of the senses.

A turbulent and foggy ocean enveloped its coasts; granite rocks or sandy shores girdled it; the forests that covered its banks displayed a somber and melancholy foliage; hardly anything other than pine, larch, holm oak, wild olive and laurel grew there.

After penetrating this first barrier, people entered into the shade of the central forest; there the largest trees that grow in the two hemispheres were found mixed together. The plane tree, catalpa, sugar maple, and Virginia poplar [eastern poplar][*] intertwined their branches with those of the oak, the beech and the linden.

As in forests subjected to the dominion of man, death struck here with out respite; but no one took responsibility for clearing the remains that death had caused. So they piled up; time could not reduce them to dust quickly enough to prepare new places. But in the very midst of these re mains, the work of reproduction went on without ceasing. Climbing plants and weeds of all types grew up through the obstacles; they crept along the fallen tree trunks, wormed into their dust, lifted up and broke the withered bark that still covered them, and cleared a path for their young offshoots. Thus, in a way, death there came to the aid of life. They were face to face, and seemed to want to mix and mingle their work.g

These forests concealed a profound darkness. A thousand small streams, not yet channeled by human effort, maintained an unending humidity. Scarcely any flowers, wild fruits, or any birds were seen.

Only the fall of a tree toppled by age, the cataract of a river, the bellowing of the buffalo and the whistling of the winds disturbed the silence of nature.h

East of the great river, the woods partially disappeared; in their place spread limitless prairies. Had nature, in its infinite variety, denied the seeds of trees to these fertile fields, or had the forest that once covered them been destroyed long ago by the hand of man? This is something that neither tradition nor scientific research has been able to discover.

These immense wilderness areas were not entirely without the presence of man however; for centuries, a few small tribes wandered in the shade of the forest or across the prairie lands. From the mouth of the Saint Lawrence to the delta of the Mississippi, from the Atlantic to the Pacific Ocean, these savages shared certain similarities that testified to their common origin. But they also differed from all known races.14 They were neither white like the Europeans, nor yellow like most of the Asians, nor black like the Negroes. Their skin was reddish; their hair, long and lustrous; their lips, thin; and their cheekbones, very prominent. The languages spoken by the savage tribes of America differed from each other in words, but all were bound by the same grammatical rules. On several points, these rules deviated from those that, until then, had seemed to govern the formation of human language.

The idiom of the Americans seemed to result from new combinations; it indicated on the part of its inventors an exercise of intelligence of which the Indians of today seem little capable.^C

The social state of these peoples also differed in several respects from what was seen in the Old World: it could have been said that they multiplied freely in their wilderness, without contact with more civilized races. So among them, you found none of those doubtful and incoherent notions of good and evil, none of that profound corruption which is usually combined with ignorance and crudeness of mores among civilized nations who have descended into barbarism again. The Indian owed nothing to anyone except himself. His virtues, his vices, his prejudices were his own work; he grew up in the wild independence of his own nature.

The coarseness of common men, in civilized countries, comes not only from their ignorance and poverty, but also from their daily contact, as ignorant and poor men, with those who are enlightened and rich.

The sight of their misfortune and weakness, which is in daily contrast to the good fortune and power of certain of their fellows, excites anger and fear simultaneously in their heart; the feeling of their inferiority and dependence irritates and humiliates them. This inner state of soul is reproduced in their mores, as well as in their language; at the very same time, they are insolent and servile.

The truth of this is easily proved by observation. The people are more coarse in aristocratic countries than anywhere else, and in opulent cities more than in the countryside.j

In these places, where men so rich and powerful are found, the weak and poor feel as though overwhelmed by their low condition; finding no point by which they can regain equality, they completely lose hope in themselves and allow themselves to fall below the dignity of human nature.

This unfortunate effect of the contrast in conditions is not found in savage life; the Indians, at the same time that they are all ignorant and poor, are all equal and free.k

At the time of the arrival of the Europeans, the native of North America was still unaware of the value of wealth and showed himself indifferent to the material well-being that civilized man obtains from it. He exhibited no coarseness however; on the contrary, an habitual reserve and a kind of aristocratic courtesy governed the way he behaved.

In peace, mild and hospitable, in war, merciless even beyond the known limits of human ferocity, the Indian risked death by starvation in order to aid a stranger who knocked at night on the door of his hut and, with his own hands, tore apart the quivering limbs of his prisoner. The most famous republics of antiquity never admired firmer courage, prouder souls, a more uncompromising love of independence than what was then hidden in the wild forests of the New World.15 The Europeans made only a small impression when landing on the shores of North America; their presence gave rise to neither envy nor fear. What hold could they have over such men? The Indian knew how to live without needs, how to suffer without com plaint, and how to die singing.16 Like all the other members of the great human family, moreover, these savages believed in the existence of a better world, and under different names worshipped God, creator of the universe. Their notions about the great intellectual truths were generally simple and philosophical.^D

Yet, no matter how primitive the people whose character we are describing may appear, it cannot be doubted that they had been preceded in the same regions by another people, more civilized and advanced in all ways.

An obscure tradition, but one widespread among most of the Indian tribes along the Atlantic coast, teaches us that long ago the dwelling place of these very bands was located west of the Mississippi. Mounds raised by human hands are still found every day along the banks of the Ohio and throughout the central valley. We are told that when you dig into the center of these monuments, you hardly ever fail to find human bones, strange instruments, weapons, implements of all sorts that are made of a metal or that recall uses unknown to the present races.n

The Indians of today can give no information at all about the history of this unknown people. Nor did those who lived three hundred years ago, at the time of the discovery of America, say anything from which even an hypothesis could be inferred. Traditions, those perishable and constantly recurring memorials of the primitive world, furnish no light whatsoever. It cannot be doubted, however, that thousands of people similar to us lived there. When did they come there; what was their origin, their destiny, their history? When and how did they perish? No one could say.

Strange thing! Some peoples have so completely disappeared from the earth that even the memory of their name has been blotted out; their languages are lost; their glory has faded like a sound without an echo. But I do not know if there is even one who has not at least left one tomb to mark its passage. Thus, of all the works of man, the most durable is still the one that best recounts his nothingness and his woes!

Although the vast country just described was inhabited by numerous tribes of natives, you could justly say that, at the time of discovery, it was still only a wilderness. The Indians occupied, but did not possess it. Man appropriates the soil by agriculture, and the first inhabitants of North America lived by the hunt. Their implacable prejudices, their untamed passions, their vices, and perhaps even more their wild virtues delivered them to an inevitable destruction. The ruin of these people began the day Europeans landed on their shores; it has continued constantly since then; to day it reaches completion. Providence, while placing them in the midst of the riches of the New World, seemed to have given them only a short usufruct; in a way, these people were there only waiting. These coasts, so well prepared for commerce and industry; these rivers, so deep; this inexhaustible Mississippi Valley; this entire continent, appeared at that time as the still empty cradle of a great nation.o

That is where civilized men had to try to build society on new foundations. Applying, for the first time, theories until then unknown or considered inapplicable, civilized men were going to present a spectacle for which past history had not prepared the world.p

CHAPTER 2

Of the Point of Departure and Its Importance for the Future of the Anglo-Americansa

A man is newly born; his first years pass obscurely amid the pleasures or occupations of childhood. He grows up; manhood begins; finally the doors of the world open to receive him; he enters into contact with his fellow men. Then, for the first time, you study him and think that the seeds of the vices and virtues of his mature years can be seen developing in him.b

If I am not mistaken, that is a great error.c

Go back to the beginning; examine the child even in the arms of his mother; see the exterior world reflected for the first time in the still dark mirror of his intellect; contemplate the first examples that catch his eye; listen to the first words that awaken his slumbering powers of thought; finally, witness the first struggles that he has to sustain. And only then will you understand the origin of the prejudices, the habits and the passions that are going to dominate his life. The whole man is there, so to speak, in the infant swaddled in his cradle.

Something similar happens among nations. Peoples always feel the effects of their origin. The circumstances that accompanied their birth and were useful to their development influence all the rest of their course.

If it were possible for us to go back to the elements of societies and examine the first memorials of their history, I am certain that we would be able to discover there the first cause of the prejudices, habits, dominant passions, of all that ultimately composes what is called the national character. [{There, no doubt, we would find the key to more than one historical enigma}]. There we would happen to find the explanation for customs that today seem contrary to the reigning mores; for laws that seem opposed to recognized principles; for incoherent opinions found here and there in society like fragments of broken chains that are sometimes seen still hanging from the vaults of an old edifice and that no longer hold up anything. Thus would be explained the destiny of certain peoples who seem to be dragged by an unknown force toward an end unknown even to themselves. But until now facts have been lacking for such a study. The spirit of analysis came to nations only as they grew older, and when, at last, they thought to contemplate their birth, time had already enveloped it in a mist; ignorance and pride had surrounded it with fables that hid the truth.

[Human remains are said to volatilize after death. Separated from each other, these human molecules are incorporated with other living substances. Each of us can therefore consider himself as the summary of many other individuals of the same species who have lived before him. An analogous phenomenon occurs again in the history of the formation of peoples. Moreover, since the time when the various human races began to succeed one another and to graft together, what people of the Old World is not today composed of the remnants of older nations? It is true that, in place of peoples who have ceased to exist, we have seen new peoples arise who have borrowed something from each of their precursors. From this one, its tongue; from that one, its laws; from another, its mores; from a fourth, certain opinions and prejudices. Because these elements already exist, only their combination is new. Amid all this debris of societies that slides haphazardly over the earth, there is no one who could now recapture an original type, or who would dare to trace how time has subjected an original type to changes by combining it with strange elements. Science, in such a labyrinth, provides only incomplete conclusions and vague hypotheses.]

America is the only country where we have been able to witness the natural and tranquil development of a society and where it has been possible to clarify the influence that the point of departure exercised on the future of States.d

At the time when European peoples descended upon the shores of the New World, the features of their national character were already well fixed; each of them had a distinct physiognomy. And since they had already reached the level of civilization that leads men to self-study, they have handed down to us a faithful picture of their opinions, mores, and laws. The men of the fifteenth century are almost as well-known to us as those of our own. So America shows us in full light what the ignorance and the barbarism of the first ages concealed from our view.

Close enough to the era of the founding of the American societies to know their elements in detail, far enough from that time to be able already to judge what these seeds produced, men in our time seem destined to see further into human events than their predecessors. Providence has put within our reach a light that our fathers lacked and has allowed us to discern the first causes of the destiny of nations that the obscurity of the past hid from them.

When, after attentively studying the history of America, you carefully examine its political and social state, you feel deeply convinced of this truth: there is not an opinion, not a habit, not a law, I could say not an event, that the point of departure does not easily explain. So those who read this book will find in the present chapter the germ of what must follow and the key to nearly the whole book.e

The emigrants who came at different times to occupy the territory that the American Union covers today differed from each other in many ways; their aim was not the same, and they governed themselves according to various principles.

These men shared common features, however, and they all found themselves in an analogous situation.

The bond of language is perhaps the strongest and most durable that can unite men. All the emigrants spoke the same language; they were all children of the same people. They were born in a country troubled, for centuries, by the struggle of parties, and where the factions had been obliged, one by one, to place themselves under the protection of the laws. Their political education was shaped in this rude school, and you saw more notions of rights, more principles of true liberty spread among them than among most of the peoples of Europe. At the time of the first migrations, town government, this fertile seed of free institutions, had already entered deeply into English habits; and with it, the dogma of the sovereignty of the people was introduced even within the Tudor monarchy.

People were then in the middle of the religious quarrels that troubled the Christian world. England had thrown itself into this new course with a sort of fury. The character of the inhabitants, which had always been grave and thoughtful, had become austere and argumentative. These intellectual struggles had greatly increased education and had stimulated deeper cultivation of the mind. While people were occupied with talk of religion, mores became more pure. All these general features of the nation were found more or less in the physiognomy of those of its sons who had come to seek a new future on the opposite shores of the ocean.

Moreover, a remark, which we will have the occasion to return to later, is applicable not only to the English but also to the French, to the Spanish, and to all the Europeans who came successively to settle the shores of the New World. All the new European colonies contained, if not the development, at least the germ, of a complete democracy. Two causes led to this result. [Among the emigrants, unlike in the old societies of Europe, neither conquerors nor conquered were seen.] It can be said in general, that, at their departure from the mother country, the emigrants had no idea whatsoever of any kind of superiority of some over others. It is hardly the happy and the powerful who go into exile, and poverty as well as misfortune are the best guarantees of equality that are known among men. It happened, however, that on several occasions great lords went to America following political or religious quarrels. Laws were made in order to establish a hierarchy of ranks there, but it was soon noticed that the American soil absolutely rejected territorial aristocracy. To clear that intractable land nothing less was required than the constant and interested efforts of the proprietor himself. The ground prepared, it was found that production was not great enough to enrich both a master and a tenant at the same time. So the land was naturally divided into small estates that the proprietor cultivated alone.f Now, aristocracy clings to the land; it is attached to the soil and relies upon the soil for support. It is not privileges alone that establish it; it is not birth that constitutes it; it is landed property handed down by inheritance. A nation may exhibit immense fortunes and great misery; but if these fortunes are not territorial, you see poor and rich in its bosom; truly speaking, there is no aristocracy.g

So all the English colonies, at the time of their birth, shared a great family resemblance. All, from their beginning, seemed destined to present the development of liberty, not the aristocratic liberty of their mother country, but the bourgeois and democratic liberty of which the history of the world did not yet offer a complete model.h

Noticeable in the midst of this general coloration, however, were some very strong nuances that must be pointed out.

In the great Anglo-American family, two principal branches can be distinguished, one in the South, one in the North; until now, they have grown up without being completely merged.

Virginia received the first English colony. The emigrants arrived there in 1607. At this time, Europe was still singularly preoccupied with the idea that mines of gold and silver constituted the wealth of peoples. This destructive idea has done more to impoverish the European nations that embraced it and, in America, has destroyed more men than war and all bad laws put together. So it was gold seekers who were sent to Virginia,1 men without resources and without proper behavior, whose restless and turbulent spirit troubled the early years of the colony2 and made its progress uncertain. Afterwards came the manufacturers and farmers, a more moral and quieter breed, but one that in hardly any ways rose above the level of the lower classes of England.3 No noble thought, no plans that were not material, directed the foundation of these new establishments. The colony was scarcely established before slavery was introduced there;4 that was the capital fact that would exercise an immense influence on the character, the laws and the entire future of the South.

Slavery, as we will explain later, dishonors work; into society, it introduces idleness, along with ignorance and pride, poverty and luxury. It enervates the forces of the mind and puts human activity to sleep. The influence of slavery, combined with the English character, explains the mores and the social state [{the character}] of the South.j

[≠Even the outward appearance of the settlers assumed the imprint of the habits of their life. The Virginian race is recognizable everywhere by its height and by the air of nobility and command that prevails among its features.≠]

In the North, completely opposite nuances were painted on this same English background. Allow me some details here.

In the English colonies of the North, better known as the New England states,5 were combined the two or three principal ideas that today form the foundations of the social theory of the United States.

The principles of New England first spread into neighboring states; then, one by one, they reached the most distant states and finished, if I can express myself in this way, by penetrating the entire confederation. Now they exercise their influence beyond its limits, over the entire American world. The civilization of New England has been like those fires kindled on the hilltops that, after spreading warmth around them, light the farthest bounds of the horizon with their brightness.

The founding of New England offered a new spectacle; everything there was singular and original.

[≠You would search the entire history of humanity in vain for an event that presented some analogy to what we are describing.k ≠]

Nearly all colonies have had as first inhabitants either men without education and without resources, who were pushed out of the country where they had been born by poverty and misconduct, or avid speculators and business agents. There are some colonies that cannot claim even such an origin. Santo Domingo was founded by pirates; and today the English courts of justice are in charge of peopling Australia.m

The emigrants who came to settle the shores of New England all belonged to the comfortable classes of the mother country. Their gathering on American soil presented, from the beginning, the singular phenomenon of a society in which there were neither great lords,n nor lower classes, neither poor, nor rich, so to speak. [I have already said that, among the Europeans who went to America, conditions were in general largely equal, but it can be said that, in a way, these emigrants {the Puritans} carried democracy even within democracy.] In proportion, there was a greater amount of learning spread among these men than within any European nation of the present day. All, perhaps without a single exception, had received a rather advanced education; and several among them had made themselves known in Europe by their talents and knowledge. The other colonies had been founded by adventurers without families; the emigrants of New England brought with them admirable elements of order and morality; they went to the wilderness accompanied by their wives and children. But what distinguished them, above all, from all the others was the very aim of their enterprise. It was not necessity that forced them to abandon their country; there they left a social position worthy of regret and a secure livelihood. Nor did they come to the New World in order to improve their situation or to increase their wealth; they tore themselves from the comforts of their homeland to obey a purely intellectual need. By exposing themselves to the inevitable hardships of exile, they wanted to assure the triumph of an idea.

The emigrants, or, as they so accurately called themselves, the pilgrims, belonged to that English sect given the name Puritan because of the austerity of its principles. Puritanism was not only a religious doctrine, but also at several points it was mingled with the most absolute democratic and republican theories. From that had come its most dangerous adversaries. The Puritans, persecuted by the government of the mother country and, in the strictness of their principles, offended by the daily course of the society in which they lived, sought a land so barbarous and so abandoned by the world that they would still be allowed to live there as they wished and to pray to God in liberty.

A few citations will show the spirit of these pious adventurers better than anything that we could add.

Nathaniel Morton, historian of the first years of New England, begins in this way:6

It is impossible to read this beginning without being imbued, despite yourself, with a religious and solemn impression; you seem to inhale an air of antiquity and a kind of biblical perfume.

The conviction that animates the writer elevates his language. In your eyes, as in his, it no longer concerns a small band of adventurers going to seek their fortune across the seas; it is the seed of a great people that God comes to set down with his own hands in a predestined land.

The author continues and depicts the departure of the first emigrants in this way:7

The emigrants numbered about one hundred and fifty, men as well as women and children. Their goal was to found a colony on the banks of the Hudson, but, after wandering a long time on the ocean, they were finally forced to land on the arid coasts of New England, at the place where the town of Plymouth is found today. The rock where the pilgrims landed is still displayed.8

Says the historian I have already quoted:

You must not believe that the piety of the Puritans was only speculative, or that it proved to be unfamiliar with the course of human concerns. Puritanism, as I said above, was almost as much a political theory as a religious doctrine. So, scarcely are these emigrants disembarked on this inhospitable coast that Nathaniel Morton has just described than their first concern is to organize themselves as a society. They immediately enact an agreement [<It is the social contract in proper form that Rousseau dreamed of in the following century>] which* reads:10

This took place in 1620. From that period on, emigration did not stop. Each year, the religious and political passions that tore apart the British Empire throughout the reign of Charles I drove new swarms of sectarians to the coasts of America. In England, the center of Puritanism continued to be located in the middle classes;u most of the emigrants came from within the middle classes. The population of New England increased rapidly; and, while in the mother country men were still classed despotically according to the hierarchy of ranks, the colony increasingly presented the novel spectacle of a thoroughly homogeneous society. Democracy, such as antiquity had not dared dream it, burst forth fully grown and fully armed from the midst of the old feudal society.

Content to remove the seeds of troubles and the elements of new revolutions, the English government watched this heavy emigration without distress. It even encouraged it with all of its power and seemed hardly at all concerned with the fate of those who came to American soil seeking a refuge from the harshness of its laws. You could have said that the English government saw New England as a region delivered to the dreams of the imagination that should be abandoned to the free experiments of innovators.

The English colonies, and this was one of the principal causes of their prosperity, always enjoyed more internal liberty and more political independence than the colonies of other peoples; but nowhere was this principle of liberty more completely applied than in the states of New England.

It was then generally agreed that the lands of the New World belonged to the European nation that had first discovered them.

In this way, nearly the entire littoral of North America became an English possession toward the end of the sixteenth century. The means used by the British government to populate these new domains were of different kinds. In certain cases, the king subjected a portion of the New World to a governor of his choosing, charged with administering the country in his name and under his direct orders;11 this is the colonial system adopted by the rest of Europe. At other times, he granted ownership of certain portions of the country to a man or to a company.12 All the civil and political powers were then concentrated in the hands of one or several individuals who, under the inspection and control of the crown, sold the land and governed the inhabitants. Finally, a third system consisted of giving a certain number of emigrants the right to form a political society, under the patronage of the mother country, and to govern themselves in everything not contrary to its laws.

This method of colonization, so favorable to liberty, was put into practice only in New England.13

As early as 1628,14 a charter of this nature was granted by Charles I to the emigrants who came to found the colony of Massachusetts.

But, in general, charters were not granted to the colonies of New England until long after their existence had become an accomplished fact. Plymouth, Providence, New Haven, the states of Connecticut and Rhode Island15 were founded without the support and, in a sense, without the knowledge of the mother country. The new inhabitants, without denying the supremacy of the home country, did not draw on it as the source of powers; they incorporated themselves. And it was only thirty or forty years after, under Charles II, that a royal charter legalized their existence.

So it is often difficult, while surveying the first historical and legislative memorials of New England, to see the link connecting the emigrants to the country of their ancestors. At every moment you can see them performing some act of sovereignty; they name their magistrates, make peace and war, establish regulations for public order, provide laws for themselves as if they were answerable only to God alone16 [≠later, when the colonies began to become powerful, the mother country raised the claim of defending and directing them≠].

Nothing is more singular and, at the very same time, more instructive than the legislation of this period;v there, above all, is found the key to the great social enigma that the United States presents to the world of today.

Among these memorials, we will particularly single out, as one of the most characteristic, the law code that the small state of Connecticut gave itself in 1650.17

The legislators of Connecticut18 first take charge of the penal laws; and to write them, they conceive the strange idea of drawing upon sacred texts:

“Whoever will worship a God other than the Lord,” they begin by saying, “will be put to death.”

Ten or twelve clauses of the same nature, borrowed word for word from Deuteronomy,Exodus and Leviticus, follow.

Blasphemy, witchcraft, adultery,19 rape are punished with death; the same punishment is imposed on flagrant insult by a son toward his parents. In this way, the legislation of a primitive and half-civilized people was transferred to a society in which minds were enlightened and mores were mild; so the death penalty was never so common in the laws, nor so rarely applied to the guilty.

Above all, in this body of penal laws, the legislators are preoccupied with upholding moral order and standards of good behavior; they constantly enter, therefore, into the realm of conscience. There is hardly any sin that they do not manage to submit to the censure of the magistrate. The reader has been able to observe how harshly the laws punished adultery and rape. Mere flirtation between unmarried people is severely suppressed. On the guilty, the judge has the right to inflict one of three punishments: a fine, a flogging or a wedding.20 And if the records of the old courts of New Haven are to be believed, proceedings of this nature were not rare; you find, dated May 1, 1660, a verdict with a fine and reprimand against a young woman accused of having uttered a few indiscreet words and of allowing herself to be kissed.21 The Code of 1650 abounds in preventive measures. Laziness and drunkenness are severely punished.22 Innkeepers cannot provide more than a certain quantity of wine to each consumer; a fine or a flogging cracks down on a simple lie when it might be harmful.23 In other places, the legislator, completely forgetting the great principles of religious liberty that he claimed in Europe, forces, by threat of fines, attendance at divine24 worship.w And he goes so far as to impose severe penalties,25 and often death, on Christians who want to worship God according to a creed different from his own.26 Finally, the fervor for regulations, which possesses him, sometimes leads him to deal with concerns most unworthy of him. Thus, in the same code, there is a law that prohibits the use of tobacco.27 It must not be forgotten, moreover, that these bizarre or tyrannical laws were not at all imposed; that they were voted by the free participation of all those concerned; and that the mores were still more austere and puritanical than the laws. In the year 1649, a solemn association was formed in Boston whose purpose was to prevent the worldly luxury of long hair.28^E

Such errors undoubtedly shame the human spirit; they testify to the infirmity of our nature, which, incapable of firmly grasping the true and the just, is most often reduced to choosing only between two excesses.

Alongside this penal legislation, so strongly stamped by narrow sectarian spirit and by all the religious passions that were excited by persecution and were still seething deep within souls, a body of political laws is found. The two are, in a way, bound together. But those political laws, written two hundred years ago, still seem very far ahead of the spirit of liberty of our age.

The general principles on which modern constitutions rest, which most of the Europeans of the seventeenth century scarcely understood and which at that time triumphed incompletely in Great Britain, were all recognized and laid down by the laws of New England. There, the intervention of the people in public affairs, the free vote of taxes, the responsibility of the agents of power, individual liberty, and jury trial were established without argument and in fact.

There, these generative principles receive an application and developments that not a single European nation has yet dared to give them.

In Connecticut, from the beginning, the electoral body was comprised of all citizens, and that is understood without difficulty.29 Among this emerging people, a nearly perfect equality of means and, even more, of minds then reigned.30

In Connecticut, at that time, all the agents of executive power were elected, even the Governor of the state.31

[In Connecticut in 1650, all] The citizens older than sixteen years of age were obliged to bear arms; they formed a national militia that named its officers and had to be ready at all times to march in defense of the country.32

In the laws of Connecticut, as in all those of New England, you see arising and developing the town independence that still today constitutes the principle and life of American liberty.

Among most European nations, political existence began in the higher ranks of society; little by little and always incompletely, it was transmitted to the various parts of the social body.

In America, in contrast, you can say that the town was organized before the county; the county, before the state; the state, before the Union.

In New England, as early as 1650, the town is completely and definitively formed. Gathered around this town individuality and strongly attached to it are interests, passions, duties, and rights. Within the town, a real, active, totally democratic and republican political life reigns. The colonies still recognize the supremacy of the mother country; the monarchy is the law of the state, but in the town, the republic is already fully alive.

The town names its magistrates of all sorts; it taxes itself; it apportions and levies the tax on itself.33 In the New England town, the law of representation is not accepted. As in Athens, matters that touch the interests of all are treated in the public square and within the general assembly of citizens.

When you attentively examine the laws that were promulgated during these early years of the American republics, you are struck by the legislator’s knowledge of government and advanced theories.

It is evident that he had a more elevated and complete idea of the duties of society toward its members than European legislators of that time and that he imposed obligations on society that society still eluded elsewhere. In the states of New England, from the start, the fate of the poor was assured;34 strict measures were taken for maintaining roads; and officers were named to oversee them.35 Towns had public records in which the results of general deliberations, deaths, marriages, births were inscribed;36 clerks were appointed to maintain these records.37 Some officers were charged with the administration of unclaimed inheritances, others, with overseeing the boundaries of legacies. The principal function of several was to maintain public peace in the town.38

[≠The legislation of this era announces in the mass of the people and in its leaders a civilization already well advanced; you feel that those who make the laws and those who submit to them all belong to a race of intelligent and enlightened men who have never been completely preoccupied by the material concerns of life.≠]

The law gets into a thousand different details to provide for and to satisfy a host of social needs of which, today in France, we still have only a vague awareness. [{Nothing then in our old Europe could give the idea of a social organization as extensive and as perfect.}]

But it is in the prescriptions relating to public education that, from the very beginning, you see fully revealed the original character of American civilization.

“Whereas, says the law, Satan, enemy of humanity, finds in the ignorance of men his most powerful weapons, and it is important that the knowledge brought by our fathers does not remain buried in their grave;—whereas the education of children is one of the first interests of the State, with the help of the Lord . . .”39 Then follow the provisions that create schools in all the towns and oblige the inhabitants, under penalty of heavy fines, to tax themselves to support them. Secondary schools are established in the same way in the most populated districts. Municipal magistrates must watch that parents send their children to school; they have the right to levy fines against those who refuse to do so. And if resistance continues, society then displaces the family, lays hold of the child and removes from the fathers the rights that nature had given to them, but that they knew so poorly how to use.40 The reader will undoubtedly have noticed the preamble of these ordinances: in America, it is religion that leads to enlightenment; it is the observance of divine laws that brings men to liberty.

When, after thus casting a rapid glance over American society in 1650, you examine the state of Europe and particularly that of the continent around this same era, you are filled by a profound astonishment. On the European continent, at the beginning of the seventeenth century, absolute monarchy triumphed on all sides over the ruins of the oligarchic and feudal liberty of the Middle Ages. [<≠The top of the social edifice already received the lights of modern civilization, while the base still remained in the darkness of ignorance [v. of the Middle Ages].≠>] In the heart of this brilliant and literary Europe, the idea of rights had perhaps never been more completely misunderstood; never had peoples experienced less of political life; never had minds been less preoccupied by the notions of true liberty. And at that time these same principles, unknown or scorned by European nations, were proclaimed in the wilderness of the New World and became the future creed [{political catechism}] of a great people. The boldest theories of the human mind were reduced to practice in this society so humble in appearance, a society in which probably not a single statesman would then have deigned to be involved; there, the imagination of man, abandoned to its natural originality, improvised legislation without precedent. Within this obscure democracy that had still not brought forth either generals, or philosophers, or great writers, a man could stand up in the presence of a free people and give, to the acclamation of all, this beautiful definition of liberty:41

I have already said enough to reveal Anglo-American civilization in its true light. It is the product (and this point of departure must always be kept in mind) of two perfectly distinct elements that elsewhere are often at odds. But in America, these two have been successfully blended, in a way, and marvelously combined. I mean the spirit of religion and the spirit of liberty.

The founders of New England were at the very same time ardent sectarians and impassioned innovators. Restrained by the tightest bonds of certain religious beliefs, they were free of all political prejudices. [{Religion led them to enlightenment; the observance of divine laws brought them to liberty.}]

From that, two diverse but not opposite tendencies resulted whose traces can easily be found everywhere, in the mores as in the laws.z

Some men sacrifice their friends, family, and native land for a religious opinion; you could believe that they are absorbed in the pursuit of the intellectual good that they have come to purchase at such a high price. You see them, however, seeking material riches and moral enjoyments with an almost equal fervor, heaven in the other world, and well-being and liberty in this one.

In their hands, political principles, laws, and human institutions seem to be malleable things that can be shaped and combined at will.

The barriers that imprisoned the society where they were born fall before them; old opinions that for centuries ruled the world vanish; an almost limitless course and a field without horizons open. The human mind rushes toward them, sweeping over them in all directions. But having arrived at the limits of the political world, it stops by itself. In fear and trembling, it sets aside the use of its most formidable abilities, abjures doubt, renounces the need to innovate, refrains even from lifting the veil of the sanctuary, and bows respectfully before truths that it accepts without discussion. [≠After having rested awhile in the midst of the certainties of the moral order, man begins to move again and reenters the political arena with more fervor.≠]a

In the moral world, therefore, everything is classified, coordinated, foreseen, decided in advance. In the political world, everything is agitated, contested, uncertain; in the one, passive though voluntary obedience; in the other, independence, scorn for experience and jealousy of all authority.

Far from harming each other, these two tendencies, apparently so opposed, move in harmony and seem to offer mutual support.

Religion sees in civil liberty a noble exercise of the faculties of man; in the political world, a field offered by the Creator to the efforts of intelligence. Free and powerful in its sphere, satisfied with the place reserved for it, religion knows that its dominion is that much better established because it rules only by its own strength and dominates hearts without other support.

Liberty sees in religion the companion of its struggles and triumphs, the cradle of its early years, the divine source of its rights. Liberty considers religion as the safeguard of mores, mores as the guarantee of laws and the pledge of its own duration.^F

[Both, taking man by the hand, guide his steps and show his way in the wilderness.]

Reasons for Some Singularities That the Laws and Customsb of the Anglo-Americans Present

[≠From whatever side I envisage the laws and mores of the Anglo-Americans, I rediscover striking traces of their origin {of the point of departure}. The reading of historians, the study of legislation, the sight of things all involuntarily lead my steps back toward the point of departure. {But I despair of making the whole extent of my idea understood by those who have not seen English America with their own eyes.}≠]

The reader must not draw from what precedes consequences that are too general and absolute. The social condition, the religion and the mores of the first emigrants undoubtedly exercised an immense influence over the destiny of their new country. It was not up to them, however, to establish a society whose point of departure was found only within themselves; no one can entirely free himself from the past. With ideas and customs that were their own, they mingled, either voluntarily or unknowingly, other customs and ideas that they got from their education or from the national traditions of their country.

So when you want to know and judge the Anglo-Americans of today, what is of Puritan origin or of English origin must be carefully distinguished.

You often encounter in the United States laws and customs that contrast with all that surrounds them. These laws seem written in a spirit opposed to the dominant spirit of American legislation; these mores seem contrary to the social state as a whole. If the English colonies had been founded in a century of darkness, or if their origin was already lost in the shadows of time, the problem would be insoluble.

I will cite a single example to make my thought understood.

The civil and criminal legislation of the Americans knows only two means of action: prison or bail.c The first action in proceedings consists of obtaining bail from the defendant or, if he refuses, of having him incarcerated; afterwards the validity of the evidence or the gravity of the charges is discussed.

Clearly such legislation is directed against the poor and favors only the rich.

A poor man does not always make bail, even in civil matters, and if he is forced to await justice in prison, his forced inactivity soon reduces him to destitution.d

A wealthy man, on the contrary, always succeeds in escaping imprisonment in civil matters; even more, if he has committed a crime, he easily evades the punishment awaiting him: after providing bail, he disappears. So it can be said that for him all the penalties of the law are reduced to fines.42 What is more aristocratic than such legislation?e

In America, however, it is the poor who make the law, and usually they reserve the greatest advantages of society for themselves.

It is in England where the explanation for this phenomenon must be found: the laws I am speaking about are English.43 The Americans have not changed them, even though they are repugnant to their legislation as a whole and to the mass of their ideas.

The thing that people change the least after their customs is their civil legislation. The civil laws are familiar only to jurists, that is, to those who have a direct interest in keeping them as they are, good or bad, because they know them. The bulk of the nation knows them hardly at all; they see them in action only in individual cases, grasp their tendency only with difficulty, and submit to them without thinking about it.

I have cited an example; I could have pointed out many others.

The picture that American society presents is, if I can express myself in this way, covered by a democratic layer beneath which from time to time you catch a glimpse of the old colors of the aristocracy.

CHAPTER 3

Social State of the Anglo-Americans

[Definition of the words social state.a /

I will speak so frequently about the social state of the Anglo-Americans that, first and foremost, I need to say what I mean by the words social state.

In my view, the social state is the material and intellectual condition in which a people finds itself in a given period.]

The social state is ordinarily the result of a fact, sometimes of laws, most often of these two causes together. But once it exists, it can itself be considered the first cause of most of the laws, customs and ideas that regulate the conduct of nations; what it does not produce, it modifies.b

So to know the legislation and the mores of a people, it is necessary to begin by studying its social state.c

That the Salient Point of the Social State of the Anglo-Americans Is to Be Essentially Democratic

Several important remarks about the social state of the Anglo-Americans could be made, but one dominates all the others.d

The social state of the Americans is eminently democratic. It has had this character since the birth of the colonies; it has it even more today.e

[≠As soon as you look at the civil and political society of the United States, you discover two great facts that dominate all the others and from which the others are derived. Democracy constitutes the social state; the dogma of the sovereignty of the people, the political law.

These two things are not analogous. Democracy is society’s way of being. Sovereignty of the people, a form of [v. the essence of] government. Nor are they inseparable, because democracyf is even more compatible with despotism than with liberty.

But they are correlative. Sovereignty of the people is always more or less a fiction wherever democracy is not established.≠]g

I said in the preceding chapter that a very great equality reigned among the emigrants who came to settle on the shores of New England. Not even the germ of aristocracy was ever deposited in that part of the Union. No influences except intellectual ones [{a kind of intellectual patronage}] could ever be established there. The people got used to revering certain names, as symbols of learning and virtue. The voice of certain citizens gained a power over the people that perhaps could have been correctly called aristocratic, if it could have been passed down invariably from father to son.

This happened [{north}] east of the Hudson; [{south}] southwest of this river, and as far down as Florida, things were otherwise.

In most of the States situated southwesth of the Hudson, great English landholders had come to settle. Aristocratic principles, and with them English laws of inheritance, had been imported.[*] I have shown the reasons that prevented a powerful aristocracy from ever being established in America. But these reasons, though existing southwestj of the Hudson, had less power there than [{north}] east of this river. To the south, one man alone could, with the help of slaves, cultivate a large expanse of land. So in this part of the continent wealthy landed proprietors were seen; but their influence was not precisely aristocratic, as understood in Europe, because they had no privileges at all, and cultivation by slaves gave them no tenants and therefore no patronage. Nonetheless, south of the Hudson, the great landholders formed a superior class, with its own ideas and tastes and generally concentrating political activity within its ranks. It was a kind of aristocracy not much different from the mass of the people whose passions and interests it easily embraced, exciting neither love nor hate;k in sum, weak and not very hardy. It was this class that, in the South, put itself at the head of the insurrection; the American Revolution owed its greatest men to it.

In this period, the entire society was shaken.m The people, in whose name the struggle was waged, the people—now a power—conceived the desire to act by themselves; democratic instincts awoke.n By breaking the yoke of the home country, the people acquired a taste for all kinds of independence. Little by little, individual influences ceased to make themselves felt; habits as well as laws began to march in unison toward the same end.

But it was the law of inheritance that pushed equality to its last stage.o

I am astonished that ancient and modern political writers have not attributed a greater influence on the course of human affairs to the laws of landed inheritance.1 These laws belong, it is true, to the civil order; but they should be placed at the head of all political institutions, for they have an incredible influence on the social state of peoples, political laws being just the expression of the social state. In addition, the laws of inheritance have a sure and uniform way of operating on society; in a sense they lay hold of generations before their birth. Through them, man is armed with an almost divine power over the future of his fellows. The law-maker regulates the inheritance of citizens once, and he remains at rest for centuries: his work put in motion, he can keep his hands off; the machine acts on its own power, and moves as if self-directed toward an end set in advance.

Constituted in a certain way, the law of inheritance reunites, concentrates, gathers property and, soon after, power, around some head; in a way it makes aristocracy spring from the soil. Driven by other principles and set along another path, its action is even more rapid; it divides, shares, disseminates property and power. Sometimes people are then frightened by the rapidity of its march. Despairing of stopping its movement, they seek at least to create difficulties and obstacles before it; they want to counterbalance its action with opposing efforts; useless exertions! It crushes or sends flying into pieces all that gets in its way; it constantly rises and falls on the earth until nothing is left in sight but a shifting and intangible dustp on which democracy takes its seat.

When the law of inheritance allows and, even more, requires the equal division of the father’s property among all the children, its effects are of two sorts; they should be carefully distinguished, even though they lead to the same end.

Due to the law of inheritance, the death of each owner leads to a revolution in property; not only do the holdings change masters, but so to speak, they change nature; they are constantly split into smaller portions. [The generations grow poorer as they succeed each other.]

That is the direct and, in a sense, the material effect of the law.q So in countries where legislation establishes equal division, property and particularly territorial fortunes necessarily have a permanent tendency to grow smaller. Nonetheless, if the law were left to itself, the effects of this legislation would make themselves felt only over time. Because as long as the family includes not more than two children (and the average for families in a populated country like France, we are told, is only three),r these children, sharing the wealth of their father and their mother, will be no less wealthy than each parent individually.

But the law of equal division exerts its influence not on the fate of property alone; it acts on the very soul of the proprietors, and calls their passions to its aid. These indirect effects rapidly destroy great fortunes and, above all, great estates.s

Among peoples for whom the inheritance law is based on the right of primogeniture, landed estates most often pass from generation to generation without being divided. That causes family spirit to be, in a way, embodied in the land. The family represents the land; the land represents the family; the land perpetuates its name, origin, glory, power and virtues. It is an undying witness to the past and a precious guarantee of life to come.t

When the inheritance law establishes equal division, it destroys the intimate connection that existed between family spirit and keeping the land; the land ceases to represent the family, for the land, inescapably divided after one or two generations, clearly must shrink continually and disappear entirely in the end. The sons of a great landed proprietor, if they are few, or if fortune favors them, can maintain the hope of not being poorer than their progenitor, but not of owning the same lands as he; their wealth will necessarily consist of other elements than his.u

Now, from the moment you take away from landed proprietors any great interest—arising from sentiment, memory, pride, or ambition—in keeping the land, you can be sure that sooner or later they will sell it. They have a great pecuniary interest in selling, since movable assets produce more income than other assets and lend themselves much more easily to satisfying the passions of the moment.v

Once divided, great landed estates are never reassembled; for the small landholder gains proportionately more revenue from his field2 than the large landholder; so he sells it at a much higher price than the large landholder. Thus the economic calculations that brought a rich man to sell vast properties, will prevent him, with all the more reason, from buying small properties in order to reassemble large estates.w

What is called family spirit is often based on an illusion of individualegoism.x A person seeks to perpetuate and, in a way, to immortalize himself in his great-nephews.y Where family spirit ends, individual egoism reverts to its true inclinations. Since the family no longer enters the mind except as something vague, indeterminate, and uncertain, each man concentrates on present convenience; he considers the establishment of the generation immediately following, and nothing more.

So a person does not try to perpetuate his family, or at least he tries to perpetuate it by means other than landed property.

Thus, not only does the inheritance law make it difficult for families to keep the same estates intact, but also it removes the desire to try and leads families, in a way, to cooperate in their own ruin.

The law of equal division proceeds in two ways: by acting on the thing, it acts on the man; by acting on the man, it affects the thing.

In these two ways it succeeds in profoundly attacking landed property and in making families as well as fortunes rapidly disappear.3

Surely it is not up to us, the French of the nineteenth century, daily witnesses to the political and social changes that the inheritance law brings about, to question its power. Each day we see it constantly move back and forth over our soil, toppling in its path the walls of our dwellings and destroying the hedges of our fields. But if the inheritance law has already accomplished much among us, much still remains for it to do. Our memories, opinions, and habits present it with powerful obstacles.z

In the United States, its work of destruction is nearly finished. That is where its principal results can be studied.

English legislation on the transmission of property was abolished in nearly all the states at the time of the Revolution.

The law of entail was modified so as to interfere only imperceptibly with the free circulation of property.a^G

The first generation disappeared; landed estates began to divide. As time went by, the movement became more and more rapid [as a stone thrown from the top of a tower accelerates as it moves through space]. Today, when hardly sixty years have gone by, the appearance of society is already unrecognizable; the families of the great landed proprietors are almost entirely engulfed by the common mass. In the state of New York, which had a very large number of such families, two barely stay afloat above the abyss ready to swallow them.b Today, the sons of these opulent citizens are businessmen, lawyers, doctors. Most have fallen into the most profound obscurity. The last trace of hereditary rank and distinction is destroyed; the law of inheritance has done its leveling everywhere.c

It is not that there are no rich in the United States as there are elsewhere; I do not even know of a country where the love of money holds a greater place in the human heart and where a deeper contempt is professed for the theory of the permanent equality of property.d But wealth circulates there with incredible rapidity, and experience teaches that it is rare to see two generations reap the rewards of wealth.e [{The people are like the divinity of this new world; everything emanates from and returns to them.}]

This picture, however colored you think it is, still gives only an incomplete idea of what is happening in the new states of the West and Southwest.f

At the end of the last century, hardy adventurers began to penetrate the valleys of the Mississippi. This was like a new discovery of America: soon the bulk of emigration went there; you saw unknown societies suddenly emerge from the wilderness. States, whose names did not even exist a few years before, took a place within the American Union. [<≠Hardly a year passed without the republic being forced to have some new star attached to its flag.≠>] In the West democracy can be observed carried to its extreme limit. In these states, in a way improvised by chance, the inhabitants arrived but yesterday on the soil they occupy. They scarcely know each other, and each one is unaware of the history of his closest neighbor. So in this part of the American continent, the population escapes not only from the influence of great names and great wealth, but also from the natural aristocracy that arises from enlightenment and virtue. There, no one exercises the power that men grant out of respect for an entire life spent in doing good before their eyes. The new states of the West already have inhabitants; society still does not exist.

But not only fortunes are equal in America; to a certain degree, equality extends to minds themselves.

I do not think there is any country in the world where, in proportion to the population, there exist so small a number of ignorant and fewer learned men than in America.

There primary education is available to every one; higher education is hardly available to anyone.

This is easily understood and is, so to speak, the necessary result of what we advanced above.

Nearly all Americans live comfortably; so they can easily gain the primary elements of human knowledge.

In America, there are few rich [≠and the rich do not form a class apart. The consequences of this fact in relation to education are of several kinds.≠]; nearly all Americans need to have an occupation. Now, every occupation requires an apprenticeship. So Americans can devote only the first years of life to general cultivation of the mind; at age fifteen, they begin a career; most often, therefore, their education concludes when ours begins. If pursued further, it is directed only toward a specialized and lucrative field; they study a field of knowledge in the way they prepare for a trade; and they take only the applications recognized to have immediate utility.

In America, most of the rich began by being poor; nearly all the men of leisure were busy men in their youth. The result is that when they could have the taste for study, they do not have the time to devote themselves to it; and when they have gained the time, they no longer have the taste.

So in America no class exists that honors intellectual work and in which the penchant for intellectual pleasures is handed down with affluence and hereditary leisure.

Both the will and the power to devote oneself to this work are therefore missing.

In America a certain middling level of human knowledge is established. All minds have approached it; some by rising, others by falling.

So you meet a great multitude of individuals who have about the same number of notions in matters of religion, history, the sciences, political economy, legislation, and government.

Intellectual inequality comes directly from God, and man cannot prevent it from always reappearing.

But it follows, at least from what we have just said, that minds, while still remaining unequal as the Creator intended, find equal means at their disposal. Thus, today in America, the aristocratic element, always feeble since its birth, is, if not destroyed, at least weakened further; so it is difficult to assign it any influence whatsoever in the course of public affairs.

Time, events, and the laws have, on the contrary, made the democratic element not only preponderant but also, so to speak, unique. No family or group influence can be seen; often not even an individual influence, no matter how ephemeral, can be found.

[{Society there [is (ed.)] profoundly and radically democratic in its religion, ideas, habits, and passions.g }

≠For a people that has reached such a social state, mixed governments are more or less impractical; hardly any choice exists for them other than absolute power or a republic [v: sovereignty of the people].

America found itself in circumstances fortunate for escaping despotism and favorable for adopting a republic.≠]

So America presents, in its social state, the strangest phenomenon. There, men appear more equal in fortune and in mind or, in other words, more equal in strength than they are in any other country in the world and have been in any century that history remembers.

Political Consequences of the Social State of the Anglo-Americans

The political consequences of such a social state are easy to deduce.

It is impossible to think that, in the end, equality would not penetrate the political world as it does elsewhere. You cannot imagine men, equal in all other ways, forever unequal to each other on a single point; so in time they will become equal in all ways.

Now I know only two ways to have equality rule in the political world: rights must either be given to each citizen or given to no one [and apart from the government of the United States I see nothing more democratic than the empire of the great lord].TN 2

For peoples who have arrived at the same social state as the Anglo-Americans, it is therefore very difficult to see a middle course between the sovereignty of all [v: of the people] and the absolute power of one man [v: of a king].

[≠So peoples who have a similar social state are faced with a frightening alternative; they must choose between the sovereignty of the people and the absolute power of a king≠].

We must not hide from the fact that the social state I have just described lends itself almost as easily to the one as to the other of these two consequences.

There is in fact a manly and legitimate passion for equality that incites men to want to be strong and esteemed. This passion tends to elevate the small to the rank of the great. But in the human heart a depraved taste for equality is also found that leads the weak to want to bring the strong down to their level and that reduces men to preferring equality in servitude to inequality in liberty. Not that peoples whose social state is democratic naturally scorn liberty; on the contrary, they have an instinctive taste for it. But liberty is not the principal and constant object of their desire; what they love with undying love is equality; they rush toward liberty by rapid impulses and sudden efforts, and if they miss the goal, they resign themselves; but without equality nothing can satisfy them, and rather than lose it, they would agree to perish.h

On the other hand, when citizens are all more or less equal, it becomes difficult for them to defend their independence against the aggressions of power. Since none among them is then strong enough to struggle alone with any advantage, it is only the combination of the strength of all that can guarantee liberty. Now, such a combination is not always found.j

Peoples can therefore draw two great political consequences from the same social state; these consequences differ prodigiously, but they both arise from the same fact.

The first to be subjected to this fearful alternative that I have just described, the Anglo-Americans have been fortunate enough to escape absolute power. Circumstances, origin, enlightenment, and above all, mores have allowed them to establishk and to maintain the sovereignty of the people.m

CHAPTER 4

Of the Principle of the Sovereignty of the People in America

When you want to talk about the political laws of the United States, you must always begin with the dogma of the sovereignty of the people.a

The principle of the sovereignty of the people, which is more or less always found at the base of nearly all human institutions, ordinarily remains there as if buried. It is obeyed without being recognized, or if sometimes it happens, for a moment, to be brought into the full light of day, people soon rush to push it back into the shadows of the sanctuary.

The national will is one of those terms abused most widely by schemers of all times and despots of all ages. Some have seen it expressed in votes bought from the brokers of power; others in the votes of an interested or fearful minority. There are even some who have discovered it fully formulated in the silence of the people and who have thought that from the fact of obedience came, for them, the right of command.b

In America, the principle of the sovereignty of the people is not hidden or sterile as it is in certain nations [a vain show and a false principle as among certain others; it is a legal and omnipotent fact that rules the entire society; that spreads freely and reaches its fullest consequences without obstacles]; it is recognized by the mores, proclaimed by the laws; it spreads freely and reaches its fullest consequences without obstacles.

If there is a single country in the world where the true value of the dogma of the sovereignty of the people can hope to be appreciated, where its application to the affairs of society can be studied and where its advantages and dangers can be judged, that country is assuredly America.

I said before that, from the beginning, the principle of the sovereignty of the people had been the generative principle of most of the English colonies of America.

It then fell far short, however, of dominating the government of society as it does today.

Two obstacles, one external, one internal, slowed its invasive march.

It could not appear openly in the laws because the colonies were still forced to obey the home country; so it was reduced to hiding in the provincial assemblies and especially in the town. There it spread in secret.

American society at that time was not yet ready to adopt it in all its consequences. For a long time, learning in New England and wealth south of the Hudson, exercised, as I showed in the preceding chapter, a sort of aristocratic influence that tended to confine the exercise of social powers to a few hands. It still fell far short of electing all public officials and of making all citizens, voters. Everywhere the right to vote was restricted to certain limits and subordinated to the existence of a property qualification which was very low in the North and more considerable in the South.c

The American Revolution broke out. The dogma of the sovereignty of the people emerged from the town and took over the government;d all classes took risks for its cause; they fought and triumphed in its name; it became the law of laws.e

A change almost as rapid was carried out within the interior of society. The law of inheritance completed the dismantling of local influences.

At the moment when this effect of the laws and of the revolution began to be evident to all, victory had already been irrevocably declared in favor of democracy. Power was in fact in its hands. Even struggling against it was no longer permitted. So the upper classes submitted without a murmur and without a fight to an evil henceforth inevitable. What usually happens to powers that are in decline happened to them: individual egoism took hold of the members of the upper classes.f Since force could no longer be wrested from the hands of the people and since they did not detest the multitude enough to take pleasure in defying it, they came to think only of winning its good will at any cost. [≠Moreover, men have at their disposal such a deep reservoir of baseness, that it is always found more or less the same in the service of all despots, whether people or king.≠] In an effort to outdo each other, the most democratic laws were then voted by the men whose interests were most damaged by them. In this way, the upper classes did not incite [{implacable}] popular passions against themselves; but they themselves hastened the triumph of the new order. So, a strange thing! The democratic impulse showed itself that much more irresistible in the states where aristocracy had more roots.

The state of Maryland, which had been founded by great lords, was the first to proclaim universal suffrage1 and introduced the most democratic forms into its whole government.g

When a people begins to tamper with the electoral qualification, you can foresee that, after a more or less long delay, it will make that qualification disappear completely. That is one of the most invariable rules that govern societies. As the limit of electoral rights is pushed back, the need grows to push it further; for, after each new concession, the forces of democracy increase and its demands grow with its new power. [It is the history of the Romans buying peace with gold.h ] The ambition of those left below the electoral qualification is aroused in proportion to the great number of those who are found above. Finally, the exception becomes the rule; concessions follow one after the other without letup, and there is no more stopping until universal suffrage is reached.j

Today in the United States the principle of the sovereignty of the people has attained all the practical developments that imagination can conceive. It has been freed from all the fictions that have been carefully placed around it elsewhere; it is seen successively clothed in all forms according to the necessity of the case. Sometimes the people as a body make the laws as at Athens; sometimes the deputies created by universal suffrage represent the people and act in their name under their almost immediate supervision.

There are countries where a power, in a way external to the social body, acts on it and forces it to follow a certain path.

There are others where force is divided, being simultaneously inside and outside the society. Nothing of the sort is seen in the United States; there society acts by itself and on itself. Power exists only inside it;k hardly anyone may even be found who dares to conceive and especially to express the idea of seeking power elsewhere. The people participate in the composition of the lawsm by the choice of the legislators, in their application by the election of the agents of executive power. It can be said that they govern themselves, so weak and restricted is the part left to the administration, so much does the administration feel its popular origin and obey the power from which it emanates. The people rule the American political world as God rules the universe. They are the cause and the end of all things; everything arises from them and everything is absorbed by them.^H

CHAPTER 5

Necessity of Studying What Happens in the Individual States before Speaking about the Government of the Uniona

The following chapter is intended to examine what form government founded on the principle of sovereignty of the people takes in America, what its means of action, difficulties, advantages and dangers are.b

A first difficulty arises: the United States has a complex constitution. You notice two distinct societies there, bound together and, if I can explain it in this way, nested like boxes one inside the other. Two completely separate and nearly independent governments are seen: the one, habitual and undefined, which answers to the daily needs of the society; the other, exceptional and circumscribed, which applies only to certain general interests. They are, in a word, twenty-four small sovereign nations, that together form the great body of the Union.

To examine the Union before studying the state is to embark on a path strewn with difficulties. The form of the federal government in the United States appeared last; it was only a modification of the republic, a summary of political principles spread throughout the entire society before the federal government existed, and subsisting there independently of it. As I have just said, the federal government is, moreover, only an exception; the government of the states is the common rule. The writer who would like to show such a picture as a whole before pointing out its details would necessarily lapse into obscurities and repetitions.

There can be no doubt that the great political principles that govern American society today arose and developed in the state. So to have the key to all the rest, the state must be understood.

The states that make up the American Union today all look the same with regard to the external appearance of institutions. Political and administrative life there is found concentrated in three centers of action that could be compared to the various nerve centers that make the human body move.

At the first level is found the town;TN 3 higher, the county; finally, the state.

Of the Town System in Americac

Not by chance do I first examine the town.

[≠The town is the first element of the societies out of which peoples take form; it is the social molecule; if I can express myself in this way, it is the embryo that already represents and contains the seed of the complete being.≠]

The town is the only association that is so much a part of nature that wherever men are gathered together, a town takes shape by itself.

Town society exists therefore among all peoples no matter what their customs and their laws; it is man who establishes kingdoms and creates republics; the town seems to come directly from the hands of God. [≠The town is not only the first of social elements, but also the most important of all.≠] But if the town has existed ever since there have been men, town liberty is something rare and fragile.d A people can always establish great political assemblies, because it usually contains a certain number of men among whom, to a certain degree, enlightenment takes the place of the practice of public affairs. The town is made up of crude elements that often resist the action of the legislator. Instead of diminishing as nations become more enlightened, the difficulty of establishing town independence increases with their enlightenment. A highly civilized society tolerates the trial efforts of town liberty only with difficulty; it rebels at the sight of its numerous errors and despairs of success before having reached the final result of the experiment.

Of all liberties, town liberty, which is so difficult to establish, is also the most exposed to the encroachments of power. Left to themselves, town institutions could scarcely resist a strong and enterprising government; to defend themselves successfully, they must have reached their fullest development and be mingled with national ideas and habits. Thus, as long as town liberty has not become part of the mores, it is easy to destroy; and it can become part of the mores only after existing in the laws for a long time.

Town liberty therefore escapes human effort so to speak. Consequently it is rarely created;e in a sense it arises by itself. It develops almost in secretf within a semi-barbaric society. The continuous action of laws and of mores, circumstances, and above all time succeed in its consolidation. You can say that, of all the nations of the European continent, not a single one knows town liberty.

The strength of free peoples resides in the town, however. Town institutions are to liberty what primary schools are to knowledge; they put it within the grasp of the people; they give them a taste of its peaceful practice and accustom them to its use. Without town institutions, a nation can pretend to have a free government, but it does not possess the spirit of liberty.g Temporary passions, momentary interests, the chance of circumstances can give it the external forms of independence; but despotism, driven back into the interior of the social body, reappears sooner or later at the surface.

To make the reader understand well the general principles on which the political organization of the town and the county in the United States rests, I thought that it was useful to take one state in particular as a model, to examine in detail what happens there, and then to cast a quick glance over the rest of the country.

I have chosen one of the states of New England.

The town and the county are not organized in the same way in all the parts of the Union; it is easy to recognize, however, that throughout the Union the same principles, more or less, have presided over the formation of both.

[≠The town institutions of New England were the first to reach a state of maturity. They present a complete and uniform whole. They serve as a model for the other parts of the Union and tend more and more to become the standard to which all the rest must sooner or later conform.≠]

Now, it seemed to me that in New England these principles were considerably more developed and had attained further consequences than anywhere else. So they are, so to speak, more evident there and are thus more accessible to the observation of the foreigner.

The town institutions of New England form a complete and regular whole. They are old; they are strong because of the laws, stronger still because of the mores; they exercise a prodigious influence over the entire society.

In all these ways, they merit our attention.

Town District

The town in New England (Township) falls between the canton and the commune [town] in France. Generally it numbers from two to three thousand inhabitants.1 So it is not too extensive for all its inhabitants to share nearly the same interests; and on the other hand, it is populated enough to assure that elements of a good administration are always found within it.

Town Powers in New England

In the town as everywhere else, the people are the source of social powers, but nowhere else do they exercise their power more directly. In America, the people are a master who has to be pleased to the greatest possible degree.

In New England, the majority acts through representatives when the general affairs of the state must be dealt with. This was necessary; but in the town, where legislative and governmental action is closer to the governed, the law of representation is not accepted.h There is no town council; the body of voters, after naming their magistrates, directs them in everything that is not the pure and simple execution of the laws of the state.2

This state of things is so contrary to our ideas, and so opposed to our habits, that it is necessary to provide a few examples here for it to be well understood.

Public offices are extremely numerous and highly divided in the town, as we will see below. The largest part of administrative powers is concentrated, however, in the hands of a small number of individuals elected annually who are called selectmen.3

The general laws of the state have imposed a certain number of obligations on the selectmen. To fulfill them they do not need the authorization of those under their jurisdiction, and they cannot avoid their obligations without engaging their personal responsibility. State law charges them, for example, with drawing up the electoral lists in their town; if they fail to do so, they make themselves guilty of a misdemeanor. But in all things that are left to the direction of the town authority, the selectmen are the executors of the popular will, as with us the mayor is the executor of the deliberations of the town council. Most often they act on their private responsibility and, in actual practice, only carry out the implications of principles previously set down by the majority. But if they want to introduce any change whatsoever in the established order, if they desire to pursue a new undertaking, they must return to the source of their power. Suppose that it is a question of establishing a school: the selectmen convoke on a given day, in a place specified in advance, the whole body of voters; there, they set forth the need that is felt; they show the means to satisfy it, the money that must be spent, the location that should be chosen. The assembly, consulted on all those points, adopts the principle, determines the location, votes the tax and puts the execution of its will into the hands of the selectmen.

Only the selectmen have the right to call the town meeting, but they can be made to do so. If ten property owners conceive a new project and want to submit it for approval by the town, they call for a general convocation of the inhabitants; the selectmen are obliged to agree to the call and only retain the right to preside over the meeting.4

Without a doubt, these political mores, these social customs are very far from us. At this moment I want neither to judge them nor to show the hidden causes that produce and animate them; I am limiting myself to presenting them.

The selectmen are elected annually in the month of April or May. At the same time the town meeting chooses a host of other town magistrates,5 appointed for certain important administrative tasks.k Some, known as assessors, must determine the tax; others, known as collectors, must collect it. One officer, called the constable, is charged with keeping the peace, supervising public places and assuring the physical execution of the laws. Another, named the town clerk, records all deliberations; he keeps minutes of the acts of the civil registry. A treasurer keeps the town funds. Add to these officers an overseer of the poor, whose duty, very difficult to fulfill, is to enforce the laws relative to the poor; school commissioners, who direct public education; road surveyors, who are responsible for all the routine tasks relating to the roadways, large and small; and you will have the list of the principal agents of town administration. But the division of offices does not stop there. You still find, among the town officers,6 parish commissioners who must regulate church expenses;m inspectors of various kinds, some charged with directing the efforts of citizens in case of fire; others, with overseeing the harvest; these, with temporarily relieving difficulties that can arise from fencing; those, with supervising wood allotments or with inspecting weights and measures.

In all, principal offices in the town number nineteen. Each inhabitant is obligated, under penalty of a fine, to accept these different offices; but also most of these offices are paid,n so that poor citizens can devote their time to them without suffering a loss. The American system, moreover, does not give any fixed salary to officers. In general, each act of their administration has a value, and they are remunerated only in proportion to what they have done.o

Of Town Life

I said previously that the principle of sovereignty of the people hovers over the entire political system of the Anglo-Americans. Each page of this book will show some new applications of this doctrine.

Among nations where the dogma of the sovereignty of the people reigns, each individual forms an equal portion of the sovereign power, and participates equally in the government of the state.

Each individual is therefore considered to be as enlightened, as virtuous, as strong as any of his fellows.

So why does he obey society, and what are the natural limits of this obedience?

He obeys society, not at all because he is inferior to those who direct it, or less capable than another man of governing himself; he obeys society because union with his fellows seems useful to him and because he knows that this union cannot exist without a regulatory power.

So in all that concerns the mutual duties of citizens, he has become a subject. In all that concerns only himself, he has remained the master; he is free and is accountable for his actions only to God. Thus this maxim, that the individual is the best as well as the only judge of his particular interest and that society has the right to direct his actions only when it feels harmed by them, or when it needs to call for his support.

This doctrine is universally accepted in the United States. Elsewhere I will examine what general influence it exercises over even the ordinary acts of life; but at this moment I am talking about the towns.

The town, taken as a whole and in relation to the central government, is only an individual like any other to whom the theory I have just indicated applies.

Town liberty in the United States follows, therefore, from the very dogma of the sovereignty of the people. All the American republics have more or less recognized this independence; but among the people of New England, circumstances have particularly favored its development.

In this part of the Union, political life was born very much within the towns; you could almost say that at its origin each of them was an independent nation. When the Kings of England later demanded their share of sovereignty, they limited themselves to taking central power. They left the town in the situation where they found it; now the towns of New England are subjects; but in the beginning they were not or were scarcely so. They did not therefore receive their powers; on the contrary, they seem to have relinquished a portion of their independence in favor of the state; an important distinction which the reader must keep in mind.p

In general the towns are subject to the states only when an interest that I will call social is concerned, that is to say, an interest that the towns share with others.q

For everything that relates only to them alone, the towns have remained independent bodies. No one among the inhabitants of New England, I think, recognizes the right of the state government to intervene in the direction of purely town interests.r

So the towns of New England are seen to buy and sell, to sue and to defend themselves before the courts, to increase or reduce their budget without any administrative authority whatsoever thinking to oppose them.7 [<≠This right has only a single limit. That is found in the institution of the judicial power, but we will examine it later.≠>]

As for social duties, they are required to fulfill them. Thus, if the state needs money, the town is not free to grant or to deny its cooperation.8 If the state wants to open a road, the town does not have the right to close its territory. If it establishes a regulation concerning public order, the town must execute it. If it wants to organize education according to a uniform plan throughout the country, the town is required to create the schools desired by the law.9 We will see, when we talk about administration in the United States, how and by whom the towns, in all these different cases, are forced to obey. Here I only want to establish the existence of the obligation. This obligation is strict, but the state government, while imposing it, only enacts a principle; for carrying out the principle, the town generally recovers all its rights of individuality. Thus, it is true that the tax is voted by the legislature, but it is the town that apportions and collects it; a school is prescribed, but it is the town that builds, funds and directs it.

In France the tax collector of the State levies the taxes of the town; in America the tax collector of the town raises the tax of the state.

With us, therefore, the central government lends its agents to the town; in America, the town lends its officers to the government. That alone makes clear to what degree the two societies differ.

Of Town Spirit in New England

[≠Laws act on mores; and mores, on laws. Wherever these two things do not lend each other mutual support, there is unrest, revolution tearing apart the society.

The legislation of New England constituted the town. Habits have completed the establishment of a true town spirit there.

The town is a center around which interests and passions gather and where real and sustained activity reigns.≠]

In America not only do town institutions exist, but also a town spirit that sustains and animates them.s

The New England town brings together two advantages that, wherever they are found, strongly excite the interest of men—namely, independence and power. It acts, it is true, within a circle that it cannot leave, but within that circle its movements are free. This independence alone would already give the town real importance even if its population and size would not assure its importance.

You must realize that in general the affections of men go only where strength is found. Love of native land does not reign for long in a conquered country.t The inhabitant of New England is attached to his town, not so much because he was born there as because he sees in this town a free and strong corporate body to which he belongs and which merits the trouble of trying to direct it.

In Europe the very people who govern often regret the absence of town spirit; for everyone agrees that town spirit is a great element of order and public tranquillity; but they do not know how to produce it. By making the town strong and independent, they fear dividing social power and exposing the State to anarchy. Now, take strength and independence away from the town, and you will forever find there only people who are administered, not citizens.

Note, moreover, an important fact. The New England town is so constituted that it can serve as a center of strong affections, and at the same time there is nothing nearby that strongly attracts the ambitious passions of the human heart.

The officials of the county are not elected and their authority is limited. The state itself has only a secondary importance; its existence is indistinct and tranquil. To gain the right to administer it, few men agree to distance themselves from the center of their interests and to disrupt their existence.

The federal government confers power and glory on those who direct it; but the number of men who are able to influence its destiny is very small. The presidency is a high office that can hardly be attained except after reaching an advanced age. When someone reaches other high level federal offices, it is by chance in a way and after already becoming famous by pursuing another career.u Ambition cannot make these high offices the permanent aim of its efforts. [{The Union is a nearly ideal being that nothing represents to the mind.}]v It is in the town, at the center of the ordinary relations of life, that the desire for esteem, the need for real interests, the taste for power and notice are focused. These passions, which so often trouble society, change character when they can operate thus near the domestic hearth and, in a way, within the family.

See with what art, in the American town, care has been taken to scatter power, if I can express myself in this way, in order to interest more people in public life. Apart from the voters called from time to time to perform the acts of government, how many diverse offices, how many different magistrates, who all, in the circle of their attributions, represent the powerful corporate body in whose name they act! How many men thus exploit the power of the town for their profit and are interested in it for themselves!

Nor is the American system, even as it divides municipal power among a great number of citizens, afraid to multiply town duties. In the United States people think rightly that love of country is a kind of religious cult that attaches men by observances.

In this way, town life makes itself felt at every moment as it were; it manifests itself every day by the accomplishment of a duty or by the exercise of a right. This political existence imparts a continual, but at the same time peaceful, movement to society that agitates without troubling it.w

The Americans are attached to the city by a reason analogous to the one that makes mountain dwellers love their country. Among them the native land has marked and characteristic features; it has a more distinctive physiognomy than elsewhere.

In general the New England towns have a happy existence. Their government suits their taste and is their choice as well. Within the profound peace and material prosperity that reign in America, the storms of municipal life are few. Leadership of town interests is easy. The political education of the people, moreover, was done a long time ago, or rather they arrived already educated on the soil they occupy. In New England, division of ranks does not exist even in memory; so there is no portion of the town tempted to oppress the other, and injustices, which strike only isolated individuals, are lost in the general contentment. Should the government exhibit some faults, and certainly it is easy to point them out, they are not obvious to view, because the government truly derives from the governed. And it is sufficient for town government to operate, whether well or poorly, for it to be protected by a kind of paternal pride. The Americans, moreover, have no point of comparison. England once ruled the colonies as a whole, but the people have always directed town affairs. So sovereignty of the people in the town is not only a long-standing condition, but also an original one.

The inhabitant of New England is attached to his town, because it is strong and independent; he is interested in it, because he participates in its leadership; he loves it, because he has nothing to complain about in his lot. In the town he places his ambition and his future; he joins in each of the incidents of town life; in this limited sphere, accessible to him, he tries his hand at governing society. He becomes accustomed to the forms without which liberty proceeds only by revolutions, is infused with their spirit, acquires a taste for order, understands the harmony of powers, and finally gathers clear and practical ideas about the nature of his duties as well as the extent of his rights.

Of the County in New England

The American county is very analogous to the French arrondissement. As for the latter, an arbitrary circumscription was drawn for the former; it forms a body whose different parts have no necessary bonds with each other and for whom neither affection nor memory nor shared existence serve as attachments. It is created only for a purely administrative interest.

The town was too limited in area ever to contain the administration of justice. The county is, therefore, the primary judicial center. Each county has a court of justice,10 a sheriff to execute the decisions of the courts, a prison that must hold the criminals.

There are needs that are felt in a more or less equal way by all the towns of a county; it was natural that a central authority was charged with providing for them. In Massachusetts, this authority resides in the hands of a certain number of magistrates, appointed by the Governor of the state, with the advice11 of his council.12

The county administrators have only a limited and exceptional power that applies only to a very small number of cases provided for in advance. The state and the town are sufficient for the ordinary course of things. These administrators only prepare the county budget; the legislature votes it.13 There is no assembly that, directly or indirectly, represents the county.

So truly speaking, the county has no political existence.x

A double tendency is noticeable in most American constitutions, which leads the law-makers to divide executive power and to concentrate legislative power. The New England town by itself has a principle of existence that is not stripped away from it. But this existence would have to be created artificially in the county, and the usefulness of doing so has not been felt. All the towns united together have only a single representative, the state,y center of all national powers;z apart from town and national action, you could say that there are only individual powers.

Of Administration in New Englanda

What most strikes the European who travels across the United States is the absence of what among us we call government or administration. In America, you see written laws; you see their daily execution; everything is in motion around you, and the motor is nowhere to be seen. The hand that runs the social machine escapes at every moment.

But just as all peoples, in order to express their thoughts, are obliged to resort to certain grammatical forms that constitute human languages, all societies, in order to continue to exist, are compelled to submit to a certain amount of authority; without it, they fall into anarchy. This authority can be distributed in different ways; but it must always be found somewhere.

There are two means to diminish the strength of authorityb in a nation.

The first is to weaken power in its very principle, by taking from society the right or the capacity to defend itself in certain cases; to weaken authority in this way is what, in Europe, is generally called establishing liberty.c

[{This method has always seemed to me barbaric and antisocial.}]

There is a second means to diminish the action of authority. This one consists not of stripping society of some of its rights or paralyzing its efforts, but of dividing the use of its powers among several hands; of multiplying officials while attributing to each all the power needed to carry out what he is meant to do. There are peoples who can still be led to anarchy by this division of the social powers; in itself, however, it is not anarchic. By sharing authority in this way, its action is made less irresistible and less dangerous, it is true; but authority is not destroyed.

The Revolution in the United States was produced by a mature and thoughtful taste for liberty, and not by a vague and undefined instinct for independence. It was not based upon passions for disorder; on the contrary, it proceeded with love of order and of legality.d

So in the United States, the Americans did not claim that, in a free country, a man had the right to do everything; on the contrary, social obligations more varied than elsewhere were imposed on him. They did not have the idea of attacking the power of society in its principle and of contesting its rights; they limited themselves to dividing power in its exercise. In this way they wanted to make authority great and the official small, so that society might continue to be well regulated and remain free.

There is no country in the world where the law speaks a language as absolute as in America, nor is there one where the right to apply the law is divided among so many hands.

Administrative power in the United States presents nothing either centralized or hierarchical in its constitution; that is why you do not see it. Power exists, but you do not know where to find its representative.

We saw above that the New England towns were not subordinate. So they take care of their own individual interests.

It is also the town magistrates who are usually charged with seeing to the execution of the general laws of the state or with executing them themselves.14

Apart from the general laws, the state sometimes makes general regulations concerning public order. But ordinarily it is the towns and the town officers who, jointly with the justices of the peace and according to the needs of the localities, regulate the details of social existence and promulgate prescriptions relating to public health, good order and the morality of citizens.15

Finally it is the municipal magistrates who, by themselves and without needing to wait for outside initiative, provide for the unexpected needs that societies often feel.e16

As a result of what we have just said, administrative power in Massachusetts is almost entirely contained within the town;17 but it is divided there among many hands.

In the French town there is in fact only a single administrative official, the mayor.f

We have seen that there were at least nineteen in the New England town.

The nineteen officers do not generally depend on each other. The law has carefully drawn a circle of action around each of these magistrates. Within this circle, they have all the power needed to fulfill the duties of their office and are not under any town authority.

If you look above the town, you see scarcely a trace of an administrative hierarchy. Sometimes county officials correct a decision made by the towns or by the town magistrates,18 but in general you can say that the administrators of the county do not have the right to direct the conduct of the administrators of the town.19 The former have authority over the latter only in things that concern the county.

The town magistrates and those of the county are required, in a very small number of cases stipulated in advance, to report the result of their actions to the officers of the central government.20 But the central government is not represented by one man charged with making general regulations concerning public order or ordinances for the execution of the laws, with communicating routinely with the administrators of the county and town, with examining their conduct, with directing their actions and punishing their mistakes.

So there is no center where the lines of administrative power come together.

Then how do you manage to run society according to a more or less uniform plan? How can counties and their administrators, towns and their officers be made to obey?g

In the states of New England, the legislative power extends to more objects than with us. The legislator penetrates in a way to the very heart of the administration; the law gets into the smallest details. It simultaneously prescribes the principles and the means to apply them; thus it encloses the secondary bodies and their administrators within a multitude of strict and rigorously defined obligations.

As a result, if all the secondary bodies and all the officials follow the law, all parts of society proceed in a uniform way. But there still remains the question of knowing how the secondary bodies and their officials can be forced to follow the law.

In a general way you can say that society finds at its disposal only two means to force officials to obey the laws.

It can entrust to one of the officers the discretionary power to direct all the others and to remove them from office in case of disobedience.

Or it can charge the courts with imposing judicial penalties on those who break the law.h

You are not always free to choose one or the other of these means.

The right of directing an official assumes the right to remove him from office, if he does not follow the orders given to him, or to promote him if he zealously fulfills all of his duties. Now, an elected magistrate can be neither removed nor promoted. Elective offices are by nature irrevocable until the end of the term. In reality, the elected magistrate has nothing either to hope or to fear except from the voters.j So when all public offices result from election, there can be no true hierarchy among officials, since both the right to command and the right to quell disobedience effectively cannot be given to the same man; and the power to command cannot be joined with that of rewarding and punishing.

People who introduce election into the secondary mechanisms of their government are therefore led necessarily to make heavy use of judicial penalties as a means of administration.

This is not obvious at first glance. Those who govern see making offices elective as a first concession, and submitting elected magistrates to the decisions of judges as a second concession. They dread these two innovations equally; and because they are requested to do the first more than the second, they grant the election of the official and leave him independent of the judge. One of these two measures, however, is the only counterbalance that can be given to the other. We should be very careful about this; an elective power not submitted to a judicial power escapes sooner or later from all control or is destroyed. Between the central power and elected administrative bodies, only the courts can serve as an intermediary. They alone can force the elected official to obey without violating the right of the voter.

So in the political world, the extension of judicial power must be correlative with the extension of elective power. If these two things do not go together, the State ends by falling into anarchy or servitude.k

It has been noted in all times that judicial habits prepared men rather poorly for the exercise of administrative power.

The Americans took from their fathers, the English, the idea of an institution that has no analogy whatsoever with what we know on the continent of Europe: the justices of the peace.

The justice of the peace holds a middle place between a public figure and the magistrate, administrator and judge. The justice of the peace is an enlightened citizen, but not necessarily one who is versed in knowledge of the laws. Consequently, he is charged only with keeping order in society, something that requires good sense and uprightness more than knowledge. The justice of the peace brings to administration, when he takes part in it, a certain taste for forms and for publicity that makes him a highly troublesome instrument to despotism. But he does not appear to be a slave to those legal superstitions that make magistratesm little capable of governing.

The Americans appropriated the institution of justices of the peace, all the while removing the aristocratic character that distinguished it in the mother country.

The Governorn of Massachusetts21 appoints, in all the counties, a certain number of justices of the peace, whose term in office lasts seven years.22

Among these justices of the peace, moreover, he designates three of them who form in each county what is called the court of sessions.

The justices of the peace individually take part in public administration. Sometimes, along with the elected officials, they are charged with certain administrative acts;23 sometimes they form a court before which the magistrates summarily charge the citizen who refuses to obey, or the citizen denounces the crimes of the magistrates. But it is in the court of sessions that the justices of the peace exercise the most important of their administrative functions.

The court of sessions meets twice a year at the county seat. In Massachusetts it is charged with upholding the obedience of most24 of the public officials.25

Careful attention must be paid to the fact that in Massachusetts the court of sessions is simultaneously an administrative body strictly speaking and a political court.

[≠The administrative and judicial functions of the court of sessions are so often confused in practice, that it is difficult to separate them even in theory. But it is useful to do so.

<The court of sessions has attributions of two kinds. It administers the county and ensures the administration of the towns.>≠]

We said that the county26 had only an administrative existence. It is the court of sessions by itself that is in charge of the small number of interests that relate to several towns at the same time or to all the towns of the county at once, interests that consequently cannot be entrusted to any single town in particular.

When it concerns the county, the duties of the court of sessions are therefore purely administrative, and if it often introduces judicial forms into its way of proceeding, it is only as a means to inform itself,27 and as a guarantee given to the citizens. But when the administration of the towns must be ensured, the court of sessions almost always acts as a judicial body, and only in a few rare cases, as an administrative body.

The first difficulty that presents itself is making the town itself, a nearly independent power, obey the general laws of the state.

We have seen that each year the towns must appoint a certain number of magistrates who, as assessors, apportion taxes. A town tries to evade the obligation to pay the tax by not appointing the assessors. The court of sessions imposes a heavy fine.28 The fine is raised by head on all the inhabitants. The county sheriff, officer of the law, executes the decision. In this way, in the United States, power seems eager to hide itself carefully from sight. Administrative command is almost always veiled there as a judicial mandate; as such it is only more powerful, having in its favor the almost irresistible strength that men grant to legal forms.

This procedure is easy to follow and is easily understood. What is required of the town is, in general, clear and defined; it consists of a simple and uncomplicated act, of a principle, and not a detailed application.29 But the difficulty begins when it concerns securing the obedience, not of the town any longer, but of the town officers.

All the reprehensible actions that a public official can commit fall definitively into one of these categories:

He can do, without enthusiasm and without zeal, what the law requires of him.

He cannot do what the law requires of him.

Finally, he can do what the law forbids.

A court can get at the conduct of an official only in the last two cases. A positive and appreciable act is needed as grounds for judicial action.

Thus, if the selectmen fail to fulfill the formalities required by law in the case of town elections, they can be fined.30

But when the public official fulfills his duty without intelligence, when he obeys the instructions of the law without enthusiasm and without zeal, he is entirely beyond the reach of a judicial body.

In this case, the court of sessions, even when vested with its administrative attributions, is impotent to force him to fulfill all of his obligations. Only fear of removal can prevent these quasi-failings; and the court of sessions does not hold within itself the source of town powers; it cannot remove officials that it does not appoint.p

In order to make certain, moreover, that there is negligence or lack of zeal, the subordinate official would have to be put under constant supervision. Now, the court of sessions meets only twice a year; it does not conduct inspections; it judges only the reprehensible acts that are brought before it.

Only the discretionary power to remove public officials can guarantee the kind of enlightened and active obedience on their part that judicial suppression cannot impose.

In France we seek this last guarantee in administrative hierarchy; in America, they seek it in election.

Thus to summarize in a few words what I have just explained:

Should the public official in New England commit a crime in the exercise of his duties, the ordinary courts are always called to bring him to justice.

Should he commit an administrative fault, a purely administrative court is charged with punishing him, and when the matter is serious or urgent the judge does what the official should have done.31

Finally, should the same official be guilty of one of those intangible failings that human justice can neither define nor assess, he appears annually before a tribunal from which there is no appeal, that can suddenly reduce him to impotence [{remove him from power without even telling him why}]. His power is lost with his mandate.

Certainly this system encompasses great advantages,q but in its execution a practical difficulty is encountered that must be noted.

I have already remarked that the administrative tribunal that is called the court of sessions did not have the right to inspect the town magistrates; following a legal term, it can only act when it is apprised. But that is the delicate point of the system.

The Americans of New England have not established a public prosecutor attached to the court of sessions,32 and you must understand how difficult it would have been for them to establish one. If they had limited themselves to placing a prosecutor at each county seat, and if they had not given him agents in the towns, why would this magistrate have been more informed about what was happening in the county than the members of the court of sessions themselves? If he had been given agents in each town, the power most to be feared,w[*] that of administering through the courts, would have been centralized in his hands. Laws are, moreover, the daughters of habits, and nothing similar existed in English legislation.

So the Americans have divided, like all other administrative functions, the right of inspection and the right of complaint.

Under the terms of the law, the members of the grand jury must notify the court, to which they are attached, of crimes of all kinds that might be committed in their county.33 There are certain great administrative crimes that the ordinary public prosecutor must pursue as a matter of course.34 Most often, the obligation to have the offenders punished is imposed on the fiscal officer, charged with collecting the proceeds of the fine; thus the town treasurer is charged with pursuing most of the administrative crimes that are committed in his sight.

But above all, American legislation appeals to individual interest;35 that is the great principle found constantly when you study the laws of the United States.

American legislators show little confidence in human honesty; but they always assume an intelligent man. So most often they rely on personal interest for the execution of laws.

Indeed, when an individual is positively and presently hurt by an administrative crime, it is understood that personal interest guarantees the lodging of a complaint.

But it is easy to foresee that, if it concerns a legal prescription that has no utility felt by an individual at the moment, even though the legal prescription is useful to society, each person will hesitate to come forward as accuser. In this way, by a kind of tacit agreement, the laws could fall into disuse.

Thrown into this extremity by their system, the Americans are forced to interest informers by calling them in certain cases to share in the fines.36

Dangerous measure that assures the execution of laws by debasing mores.

Above the county magistrates, there is truly no other administrative power, only a governmental power.

General Ideas on Administration in the United States

I previously announced that, after having examined in detail the constitution of the town and county in New England, I would cast a general glance over the rest of the Union.

There are towns and town life in each state; but in none of the confederated states do you find a town identical to the New England town.

As you move toward the south, you notice that town life becomes less active; the town has fewer magistrates, rights and duties; the population there does not exercise so direct an influence on town affairs; town meetings are less frequent and involve fewer matters. The power of the elected magistrate is therefore comparatively greater and that of the voter, smaller; town spirit there is less awake and less powerful.37

You begin to see these differences in the state of New York; they are already very apparent in Pennsylvania; but they become less striking when you move toward the Northwest. Most of the emigrants who go to establish the states of the Northwest come from New England, and they bring the administrative habits of their mother land to their adopted country. The Ohio town has much in common with the Massachusetts town.

We have seen that in Massachusetts the principle of public administration is found in the town. The town is the center where the interests and affections of men converge. But it ceases to be so the more you move toward the states where enlightenment is less universally spread and where, consequently, the town offers fewer guarantees of wisdom and fewer elements of administration. So as you move away from New England, town life passes in a way to the county. The county becomes the great administrative center and forms the intermediate power between the [central] government and the ordinary citizens.

I said that in Massachusetts county matters were directed by the court of sessions. The court of sessions is made up of a certain number of magistrates appointed by the Governor and his council. The county has no representation, and its budget is voted by the national [sic: state] legislature.

In the large state of New York, on the contrary, in the state of Ohio and in Pennsylvania, the inhabitants of each county elect a certain number of deputies; these deputies meet together to form a representative county assembly.38

The county assembly possesses, within certain limits, the right to tax the inhabitants; in this regard, it constitutes a true legislature. It simultaneously administers the county, directs the administration of the towns in several instances, and limits their powers much more strictly than in Massachusetts.r

These are the principal differences presented by the constitution of the town and county in the various confederated states. If I wanted to get into the details of the means of execution, there are still many other dissimilarities that I could point out. But my goal is not to give a course in American administrative law.

I have said enough about it, I think, to make the general principles that administration in the United States rests upon understood. These principles are applied in different ways; they have more or less numerous consequences depending on the place; but fundamentally they are the same everywhere. The laws vary; their physiognomy changes; the same spirit animates them.

The town and county are not constituted in the same way everywhere; but you can say that everywhere in the United States the organization of the town and county rests on the same idea: that each person is the best judge of what concerns himself alone, and the one most able to provide for his individual needs. So the town and county are charged with looking after their special interests. The state governs and does not administer. Exceptions to this principle are found, but not a contrary principle.s

The first consequence of this doctrine has been to have all the administratorst of the town and county chosen by the inhabitants themselves, or at least to choose these magistrates exclusively from among the inhabitants.[*]

[≠The second, to put into their hands the administration [v. direction] of nearly all the interests of the town and county.

The state has retained the power to impose laws on all the towns and counties, but it has not put into the hands of any official the power to direct the administration in a general way.≠]

Since administrators everywhere are elected or at least irrevocable, the result has been that rules of hierarchy have not been able to be introduced anywhere. So there are nearly as many independent officials as offices. Administrative power finds itself scattered among a multitude of hands.

Since administrative hierarchy exists nowhere and administrators are elected and irrevocable until the end of their term, the obligation followed to introduce courts, more or less, into the administration. From that comes the system of fines, by means of which the secondary bodies and their representatives are forced to obey the law. This system is found from one end of the Union to the other.

The power of suppressing administrative crimes or of taking administrative actions as needed has not been granted, moreover, to the same judges in all the states.

The Anglo-Americans have drawn the institution of the justices of the peace from a common source; it is found in all the states. But they have not always taken advantage of it in the same way.

Everywhere the justices of the peace take part in the administration of the towns and counties,39 either by administering them directly or by suppressing certain administrative crimes committed in them. But in most states, the most serious of these crimes are submitted to ordinary courts.

Election of administrative officials, or irremovability from office, lack of administrative hierarchy, and introduction of judicial measures into the government of society at the secondary level are, therefore, the principal characteristics by which American administration, from Maine to Florida, is recognized.v

There are some states where signs of administrative centralization begin to be seen. The state of New York is the most advanced along this path.

In the state of New York, officials of the central government exercise, in certain cases, a kind of supervision and control over the conduct of the secondary bodies.40 In certain other cases, they form a type of court of appeal for deciding matters.41 In the state of New York, judicial penalties are used less than elsewhere as an administrative measure. There, the right to bring proceedings against administrative crimes is also placed in fewer hands.42

The same tendency is slightly felt in several other states.43 But, in general, you can say that the salient characteristic of public administration in the United States is to be prodigiously decentralized.

Of the State

I have talked about the towns and about administration; I still have to talk about the state and about government.

Here, I can move faster without fear of being misunderstood; what I have to say is found all sketched out in written constitutions that anyone can easily obtain.44 These constitutions rest on a simple and rational theory.

Most of the forms that they prescribe have been adopted by all peoples who have constitutions; they have therefore become familiar to us.

So I have only to do a brief overview here. Later I will try to judge what I am about to describe.

Legislative Power of the State

The legislative power of the state is entrusted to two assemblies; the first is generally called the senate.

The senate is normally a legislative body; but sometimes it becomes an administrative and judicial body.

It takes part in administration in several ways depending on the different constitutions;45 but ordinarily it enters into the sphere of executive power by taking part in the choice of officials.

It participates in judicial power by judging certain political crimes and sometimes as well by ruling on certain civil actions.46

Its members are always few in number.

The other branch of the legislature, usually called the house of representatives, participates in nothing related to administrative power, and takes part in judicial power only when accusing public officials before the senate.

The members of the two houses are subject almost everywhere to the same conditions of eligibility. Both are elected in the same way and by the same citizens.

The only difference that exists between them is due to the fact that the mandate of senators is generally longer than that of representatives. The second rarely remain in office more than a year; the first ordinarily hold their seats two or three years.

By granting senators the privilege of being named for several years, and by replacing them by cohort, the law has taken care to maintain, among the legislators, a nucleus of men, already used to public affairs, who can exercise a useful influence over the newcomers.

So by the division of the legislative body into two branches, the Americans did not want to create one hereditary assembly and another elective one; they did not intend to make one into an aristocratic body, and the other into a representative of the democracy. Nor was their goal to make the first into a support for the governing power, while leaving the interests and passions of the people to the second.y

To divide legislative power, to slow in this way the movement of political assemblies, and to create a court of appeal for the revision of laws, such are the only advantages that result from the current constitution of the two houses in the United States.

Time and experience have shown the Americans that, reduced to these advantages, the division of legislative powers is still a necessity of the first order.

Pennsylvania alone, among all the united republics, tried at first to establish a single assembly. Franklin himself, carried away by the logical consequences of the dogma of sovereignty of the people, had worked toward this measure. The law soon had to be changed and two houses established. The principle of the division of legislative power thus received its final consecration; henceforth then, the necessity to divide legislative activity among several bodies can be considered a demonstrated truth. This theory, more or less unknown in the ancient republics, introduced into the world almost by chance, like most great truths, misunderstood among several modern peoples, has finally passed as an axiom into the political science of today.z

Of the Executive Power of the State

The executive power of the state is represented by the Governor.[*] [≠Not only is the Governor of each state an elected magistrate, but also he is generally elected only for a year; in this way he is tied by the shortest possible chain to the body from which he emanates.≠]

It is not by chance that I have used the word represents. The Governor of the state in effect represents the executive power; but he exercises only some of its rights.

The supreme magistrate, who is called the Governor, is placed alongside the legislature as a moderator and adviser. He is armed with a qualified veto that allows him to stop or at least to slow the legislature’s movements as he wishes. To the legislative body, he sets forth the needs of the country and makes known the means that he judges useful to provide for those needs; for all enterprises that interest the entire nation [sic: state], he is the natural executor of its will.47 In the absence of the legislature, he must take all proper measures to protect the state from violent shocks and unforeseen dangers.

The Governor combines in his hands all of the military power of the state. He is the commander of the militia and chief of the armed forces.

When the power of opinion, which men have agreed to grant to the law, is not recognized, the Governor advances at the head of the physical force of the state; he breaks down resistance and reestablishes customary order.

The Governor, moreover, does not get involved in the administration of the towns and counties, or at least he participates only very indirectly by the appointment of the justices of the peace whom he cannot thereafter remove.48

The Governor is an elected magistrate. Care is even taken, generally, to elect him only for one or two years; in this way, he always remains narrowly dependenta on the majority that created him.b

Of the Political Effects of Administrative Decentralization in the United Statesc

Centralization is a word repeated constantly today, and, in general, no one tries to clarify its meaning.

Two very distinct types of centralization exist, however, that are important to know well.

Certain interests are common to all parts of the nation, such as the formation of general laws and the relationships of the people with foreigners.

Other interests are special to certain parts of the nation, such as town enterprises, for example.

To concentrate in the same place or in the same hands the power to direct the first is to establish what I will call governmental centralization.d

To concentrate in the same way the power to direct the second is to establish what I will name administrative centralization.e

There are points at which these two types of centralization merge. But by taking, as a whole, the matters that fall more particularly in the domain of each of them, we easily manage to distinguish them.f

It is understood that governmental centralization acquires immense strength when it is joined with administrative centralization. In this way, it accustoms men to making a complete and continuous abstraction of their will, to obeying, not once and on one point, but in everything and every day. Then, not only does it subdue them by force, but also it captures them by their habits; it isolates them and then, within the common mass, catches hold of them, one by one.

These two types of centralization lend each other mutual aid, attract each other; but I cannot believe that they are inseparable.

Under Louis XIV, France saw the greatest governmental centralization that could be imagined, since the same man made general laws and had the power to interpret them, represented France to the outside world and acted in its name. L’Etat, c’est moi, he said; and he was right.g

Under Louis XIV, however, there was much less administrative centralization than today.h

In our time, we see a power, England, where governmental centralization is carried to a very high degree; the State there seems to move like a single man; at will, it rouses immense masses, gathers and delivers, wherever it wants, the utmost of its strength.

England, which has done such great things for the last fifty years, does not have administrative centralization.

For my part, I cannot imagine that a nation could live or, above all, prosper without strong governmental centralization.

But I think that administrative centralization is suitable only to enervate the peoples who submit to it, because it constantly tends to diminish the spirit of citizenship in them.j Administrative centralization, it is true, succeeds in gathering at a given time and in a certain place all the available forces of a nation, but it is harmful to the multiplication of those forces. It brings the nation victory on the day of battle and over time reduces its power. So it can work admirably toward the passing greatness of a man, not toward the lasting prosperity of a people.k [<≠I see there an element of despotism, but not of lasting national strength [in pencil: that would be].≠>]

You must be very careful; when someone says that a State is unable to act because it has no centralization, he is, without knowing it, almost always talking about governmental centralization.m The German empire, it is said repeatedly, has never been able to gain all that it possibly could from its forces. Agreed. But why? Because national force has never been centralized there; because the State has never been able to compel obedience to its general laws; because the separate parts of this great body have always had the right or the possibility to refuse their support to the agents of the common authority, even in what concerned all citizens; in other words, because there was no governmental centralization. The same remark applies to the Middle Ages. What produced all the miseries of feudal society was that the power, not only to administer, but also to govern, was divided among a thousand hands and fragmented in a thousand ways; the absence of any governmental centralization then prevented the nations of Europe from moving with energy toward any goal.

[≠Moreover, like nearly all the harmful things of this world, administrative centralization is easily established and, once organized, can hardly ever be destroyed again except with the social body itself.n

When all the governmental force of a nation is gathered at one point, it is always easy enough for an enterprising genius to create administrative centralization. We ourselves have seen this phenomenon take place before our eyes. The Convention had centralized government to the highest degree, and Bonaparte needed only to will it in order to centralize the administration. It is true that for centuries in France our habits, mores and laws had always worked simultaneously toward the establishment of an intelligent and enlightened despotism.[*]

Once administrative centralization has lasted for a time, should the power that established it sincerely desire to destroy it, that same power almost always finds itself unable to bring about its ruin.

In fact, administrative centralization assumes a skillful organization of authority; it forms a complicated machine in which all the gears fit together and offer mutual support.

When the law-maker undertakes to scatter this administrative power that he has concentrated in a single place, he does not know where to begin, because he cannot remove one piece of the mechanism without disrupting the whole thing. At each moment, he sees that either nothing must be changed or everything; but what hand, so foolhardy, would dare to smash with one blow the administrative machinery of a great people?

To attempt it would be to invite disorder and confusion into the State.

The art of administration is assuredly a science, and peoples do not have more innate knowledge than individuals do. Delivered to itself without any transition, society would almost entirely cease to be administered.

Moreover, one of the greatest misfortunes of despotism is that it creates in the soul of the men submitted to it a kind of depraved taste for tranquillity and obedience, a sort of self-contempt, that ends by making them indifferent to their interests and enemies of their own rights. In nothing, however, is it more necessary for the governed themselves to show a definite and sustained will.

Nearly all the passionate and ambitious men who talk about centralization lack a real desire to destroy it. What happened to the Praetorians happens to them; they willingly suffer the tyranny of the emperor in the hope of gaining the empire. So decentralization, like liberty, is something that the leaders of the people promise, but that they never deliver. In order to gain and keep it, nations can count only on their own efforts; and if they themselves do not have a taste for it, the evil is without remedy.

Surprisingly, the same corporations, in whose name the power of self-administration has been passionately claimed, are often seen to accept without enthusiasm the portion of power granted to them and to show themselves almost eager to lay it down again, like a useless and heavy burden.≠]o

We have seen that in the United States no administrative centralization existed. Scarcely a trace of hierarchy is found there. Decentralization there has been carried to a point that no European nation could bear, I think, without a profound uneasiness, and that, even in America, produces unfortunate effects. But, in the United States, governmental centralization exists to the highest degree. It would be easy to prove that national [sic: state] power is more concentrated there than it has been in any of the old monarchies of Europe. Not only is there just a single body in each state that makes laws; not only is there just a single power able to create political life around it; but in general, the Americans have avoided bringing together numerous district or county assemblies for fear that these assemblies would be tempted to move beyond their administrative attributions and hinder the movement of the government. In America the legislature of each state is faced by no power capable of resisting it. Nothing can stop it in its tracks, neither privileges, nor local immunity, nor personal influence, not even the authority of reason, for it represents the majority that claims to be the only instrument of reason. So it has no limit to its action other than its own will. Next to it and close at hand is found the representative of the executive power who, with the aid of physical force, has to compel the discontent to obey.p

Weakness is found only in certain details of governmental action.

The American republics do not have a permanent armed force to suppress minorities, but up to now minorities there have never been reduced to starting a war; and the need for an army has not yet been felt.q Most often, the state uses town or county officials to act upon the citizens. Thus, for example, in New England, it is the town assessor who apportions the tax; the town tax collector levies it; the town treasurer makes sure that the tax revenue goes into the public treasury; and complaints that arise are submitted to the ordinary courts. Such a way to collect taxes is slow and awkward; at every instant it would hinder the movement of a government that had great pecuniary needs. In general, for everything essential to its existence, you would want the government to have officials of its own, chosen and removable by it, and to have ways to move ahead rapidly; but it will always be easy for the central power, organized as it is in America, to introduce more energetic and effective means of action, as needed.[*]

So it is not, as is often repeated, because there is no centralization in the United States, that the republics of the New World will perish.r It can be asserted that the American governments, very far from not being centralized enough, are centralized too much; I will prove it later. Each day the legislative assemblies devour some of the remains of governmental powers; they tend to gather them all unto themselves, just as the Convention did.s The social power, thus centralized, constantly changes hands, because it is subordinate to popular power. Often it happens to lack wisdom and foresight, because it can do everything. That is where the danger to it is found. So it is because of its very strength, and not as a result of its weakness, that the social power is threatened with perishing one day.t

Administrative decentralization produces several diverse effects in America.

We have seen that the Americans had almost entirely isolated administration from government; in that, they seem to me to have gone beyond the limits of healthy reason, because order, even in secondary things, is still a national interest.49

The state has no administrative officials of its own, who are placed in permanent posts at different points of the territory and to whom it can give a common impulse; the result is that it rarely attempts to establish general rules of public order. Now, the need for these rules makes itself sharply felt. The European often notices their absence. This appearance of disorder, which reigns on the surface, persuades him, at first view, that there is complete anarchy in the society; it is only by examining things in depth that he corrects his error.

[This absence of national (v: central) administration often prevents the different states from engaging in certain undertakings of a general interest, the execution of which would present great difficulties if handed over to the localities and left to temporary and special agents. Besides, it is always to be feared that, without a permanent authority to centralize and supervise, the work, once done, might self-destruct.

As for differences that would make themselves felt between the administrative principles of one portion of the territory and those of another, differences that would be very great in Europe are not noticeable in America. The states are not so vast as to present examples; and above all, their population is too perfectly homogeneous and too enlightened for these differences to be lasting. All the counties, moreover, are forced to obey general laws that are the same for each of them.

≠I recognize as well that in America the views that direct the administration are rarely permanent. It is difficult to decentralize administrative power without putting a portion of it back into the hands of the people; and the people never proceed except by momentary efforts and sudden impulses.

I come to the great objection that has been made from time immemorial to the system of administrative decentralization, the objection that encompass [sic] all of the others.≠

The partisans of centralization in Europe . . .]

Certain enterprises interest the entire state and yet cannot be carried out because there is no national [sic: state] administration to direct them. Abandoned to the care of the towns and counties, left to elected and temporary agents, they lead to no result or produce nothing lasting.

The partisans of centralization in Europe maintain that governmental power administers the localities better than they would be able to administer themselves. Perhaps that is true, when the central power is enlightened, and the localities are not; when it is active, and they are passive; when it is in the habit of taking action, and they are in the habit of obeying. You can even understand that the more centralization increases, the more this double tendency grows; and the capacity of the one and incapacity of the other become more striking.

But I deny that this is so when the people are enlightened, alert to their interests, and accustomed to consider them as they do in America.

I am persuaded, on the contrary, that in this case the collective strength of the citizens will always be more powerful for producing social well-being than the authority of the government.

I admit that it is difficult to indicate with certainty how to awaken a people who are asleep, how to give them the passions and enlightenment that they lack. To persuade men that they should take charge of their own affairs is, I am aware, a difficult enterprise. Often it would be less awkward to interest them in the details of court etiquette than in the repair of their town hall [{and I would conclude, if you want, that there are certain nations [v: peoples] who cannot do without despotism.}].

But I also think that when the central administration claims to replace completely the free participation of those who have the primary interest, it is mistaken or wants to deceive you.

A central power, as enlightened, as skillful as can be imagined, cannot by itself encompass all the details of the life of a great people. It cannot, because such a task exceeds human power. When, on its own, it wants to create and put into operation so many different mechanisms, it either contents itself with a very incomplete result or exhausts itself in useless efforts.

Centralization easily manages, it is true, to subject the outward actions of men to a certain uniformity that is ultimately loved for itself, apart from the things to which it is applied; like the devout who worship the statue, forgetting the divinity it represents. Centralization succeeds without difficulty in imparting a steady appearance to everyday affairs; in skillfully dictating the details of social order; in suppressing slight disturbances and small transgressions; in maintaining society in a status quo which is not exactly either decadence or progress; in keeping a kind of administrative somnolence in the social body that administrators customarily call good order and public tranquillity.50 In a word, it excels at preventing, not at doing. When it is a matter of profoundly shaking society or moving it rapidly, centralization loses its strength. As soon as its measures need the support of individuals, you are totally surprised by the weakness of this immense machine; it suddenly finds itself reduced to impotence.

Then sometimes centralization, in desperation, tries to call citizens to its aid. But it says to them: “You will act as I want, as long as I want, and exactly in the way that I want. You will take charge of these details without aspiring to direct the whole; you will work in the shadows, and later you will judge my work by its results.” Under such conditions you do not gain the support of human will, which requires liberty in its ways, responsibility in its actions. Man is made so that he prefers remaining immobile to moving without independence toward an unknown end.u

[During the almost forty years that we in France have completed the system of administrative centralization, what great improvement has been introduced into the state of the civilization of the people? Who would compare our social progress to that of the English during the same period? But, centralization does not exist in England.]

I will not deny that in the United States you often regret the lack of those uniform rules that seem constantly to watch over each of us.

From time to time, great examples of unconcern and of social negligence are found there. Here and there crude blemishes appear that seem completely at odds with the surrounding civilization.

Useful undertakings that require constant care and rigorous exactitude in order to succeed often end up being abandoned; for in America, as elsewhere, the people proceed by momentary efforts and sudden impulses.v

The European, accustomed to finding an official constantly at hand who gets involved in nearly everything, becomes used to these different mechanisms of town administration with difficulty. In general it can be said that the small details of social order that make life pleasant and easy are neglected in America; but the guarantees essential to man in society exist there as much as everywhere else. Among the Americans, the force that administers the State is much less stable, less enlightened, less skillful, but is one hundred times greater than in Europe. When all is said and done, there is no country in the world where men make as many efforts to create social well-being. I know of no people who have managed to establish schools so numerous and so effective; churches more appropriate to the religious needs of the inhabitants; town roads better maintained. So, in the United States, do not look for uniformity and permanence of views, minute attention to details, perfection in administrative procedures.51 What is found there is the image of strength, a little wild, it is true, but full of power; of life, accompanied by accidents, but also by activities and efforts.x

I will admit, moreover, if you want, that the villages and counties of the United States would be administered more profitably by a central authority that was located far from them and remained unknown to them, than by officials drawn from within. I will acknowledge, if you insist, that more security would reign in America, that wiser and more judicious use of social resources would be made there, if the administration of the entire country were concentrated in a single hand. The political advantages that the Americans gain from the system of decentralization would still make me prefer it to the opposite system.

So what, after all, if there is an authority always at the ready, [{that muzzles dogs [v: waters public walkways] during the heat wave, that breaks up river ice during the winter}] that makes sure that my pleasures are peaceful, that flies before my steps to turn all dangers aside without the need for me even to think about them; if this authority, at the same time that it removes the smallest thorn from my route, is absolute master of my liberty and life; if it monopolizes movement and existence to such a degree that everything around it must languish when it languishes, sleep when it sleeps, perish if it dies?

There are such nations in Europe where the inhabitant considers himself a sort of settler, indifferent to the destiny of the place where he lives. The greatest changes occur in his country without his participation; he does not even know precisely what happened; he surmises; he has heard about the event by chance. Even more, the fortune of his village, the policing of his street, the fate of his church and his presbytery have nothing to do with him; he thinks that all these things are of no concern to him whatsoever, and that they belong to a powerful stranger called the government. [v: At each moment, you think you hear him say: what concern is this to me; it is the business of the authorities to provide for all of this, not mine.] As for him, he enjoys these benefits like a usufructuary, without a sense of ownership and without ideas of any improvement whatsoever. This disinterestedness in himself goes so far that if his own security or that of his children is finally compromised, instead of working himself to remove the danger, he crosses his arms to wait until the entire nation comes to his aid. Moreover, this man, even though he has so completely sacrificed his own free will, likes to obey no more than anyone else. He submits, it is true, to the will of a clerk; but, like a defeated enemy, he likes to defy the law as soon as power withdraws. Consequently, you see him oscillate constantly between servitude and license.

When nations have reached this point, they must modify their laws and mores or perish, for the source of public virtues has dried up; subjects are still found there, but citizens are seen no more.

I say that such nations are prepared for conquest. If they do not vanish from the world stage, it is because they are surrounded by similar or inferior nations. It is because within them there still remains a kind of indefinable patriotic instinct, I do not know what unthinking pride in the name that the nation carries. It is because there still remains I do not know what vague memory of past glory, not precisely linked to anything, but enough to impart an impulse of preservation as needed.

You would be wrong to reassure yourself by thinking that certain peoples have made prodigious efforts to defend a native land where, so to speak, they lived as strangers. Be very careful here, and you will see that in that case religion was almost always their principal motive.

For them, the duration, glory or prosperity of the nation had become sacred dogmas, and by defending their native land, they also defended this holy city in which they were all citizens.

The Turkish populations have never taken any part in the direction of the affairs of society; they accomplished immense enterprises, however, as long as they saw the triumph of the religion of Mohammed in the conquests of the Sultans. Today religion is disappearing; despotism alone remains for them; they are in decline.y

Montesquieu, by giving despotism a strength of its own, gave it, I think, an honor that it did not deserve. Despotism, all by itself, can sustain nothing lasting. When you look closely, you notice that what made absolute governments prosper for a long time was religion, and not fear.

No matter what, you will never find true power among men except in the free participation of wills.z Now, in the world, only patriotism or religion can make the totality of citizens march for long toward the same goal.

It does not depend on the laws to revive beliefs that are fading; but it does depend on the laws to interest men in the destinies of their country. It depends on the laws to awaken and to direct that vague patriotic instinct that never leaves the human heart, and, by linking it to thoughts, passions, daily habits, to make it into a thoughtful and lasting sentiment. And do not say that it is too late to try; nations do not grow old in the same way that men do. Each generation born within the nation is like a new people who comes to offer itself to the hand of the law-maker.

What I admire most in America are not the administrative effects of decentralization, but its political effects. In the United States, country makes itself felt everywhere. It is an object of solicitude from the village to the whole Union. The inhabitant becomes attached to each of the interests of his country as to his very own. He glories in the glory of the nation; in the successes that it achieves, he believes that he recognizes his own work, and he rises with them; he rejoices in the general prosperity that benefits him. For his country, he has a sentiment analogous to that you feel for your family, and it is even by a kind of egoism that he is interested in the State.

Often the European sees in the public official only force; the American sees the law. So it can be said that in America, a man never obeys a man, but obeys justice or the law.

Consequently, he has conceived an often exaggerated, but almost always salutary opinion of himself. Without fear, he relies on his own powers that seem to him all sufficient. An individual conceives the idea of some enterprise; even if this enterprise has some direct connection with the well-being of society, it does not occur to him to address himself to public authority to gain its support. He makes his plan known, offers to carry it out, calls other individual powers to his aid, and struggles hand-to-hand against all obstacles. Often, doubtlessly, he succeeds less than if the State took his place; but in the long run the general result of all of these individual undertakings surpasses by a great deal what the government would be able to accomplish.a

Since administrative authority is placed next to the administered, and in a way represents them, it excites neither jealousy nor hate. Since its means of action are limited, each person feels that he cannot rely on it alone.

So when the administrative power intervenes within the circle of its attributions, it does not find itself alone, as in Europe. No one believes that the duties of individuals have ceased because the public representative happens to act. On the contrary, each person guides, supports and sustains him.

By joining the action of individual powers with the action of social powers, you often succeed in doing what the most concentrated and energetic administration would be unable to carry out.^I

I could cite many facts to support what I am advancing; but I prefer to present only one and to choose the one I know best.

In America, the means put at the disposal of authority to uncover crimes and to pursue criminals are few.

Police control does not exist; passports are unknown. Officers of the court in the United States cannot be compared to ours. The agents of the public prosecutor’s office are few; [they do not communicate with each other;] they do not always have the right to initiate legal proceedings; preliminary investigation is rapid and oral. I doubt, however, that, in any country, crime as rarely escapes punishment.

The reason for it is that everyone believes himself interested in providing proof of the crime and in catching the offender.

I saw, during my stay in the United States, the inhabitants of a county, where a great crime had been committed, spontaneously form committees for the purpose of pursuing the guilty party and delivering him to the courts.

In Europe, the criminal is an unfortunate who is fighting to hide from the agents of power; the population in a way helps in the struggle. In America, he is an enemy of the human species, and he has all of humanity against him.

I believe provincial institutions useful to all peoples; but none seems to me to have a more real need for these institutions than the one whose social state is democratic.

In an aristocracy, a certain order is sure to be maintained in the midst of liberty.

Since those who govern have a great deal to lose, order has a great interest for them.

In an aristocracy, it can be said as well that the people are sheltered from the excesses of despotism, because organized forces are always found, ready to resist the despot.

A democracy without provincial institutions possesses no guarantee against similar evils.

How can a multitude that has not learned how to make use of liberty in small things, be made to support it in larger ones?

How to resist tyranny in a country where each individual is weak, and where individuals are united by no common interest?

So those who are afraid of license and those who fear absolute power must equally desire the gradual development of provincial liberties.b

I am convinced, moreover, that there are no nations more at risk of falling under the yoke of administrative centralization than those whose social state is democratic.

Several causes lead to this result, but among others, these:

The permanent tendency of these nations is to concentrate all governmental power in the hands of the single power that directly represents the people, because, beyond the people, nothing more is seen except equal individuals merged into a common mass.

Now, when the same power is already vested with all the attributes of government, it is highly difficult for it not to try to get into the details of administration [{so you often see democratic peoples simultaneously establish liberty and the instruments of despotism}]; and it hardly ever fails to find eventually the opportunity to do so. We have witnessed it among ourselves.

[≠If we shift our view to times closer to us, we see a strange confusion prevailing in most of the States of Europe. Kings descend into the administration of {the narrowest communal interests}.≠]c

In the French Revolution,d there were two opposing movements that must not be confused: one favorable to liberty, the other favorable to despotism.e

In the old monarchy, the King alone made the law.

Below the sovereign power were found some remnants, half destroyed, of provincial institutions. These provincial institutions were incoherent, poorly ordered, often absurd. In the hands of the aristocracy, they had sometimes been instruments of oppression.

The Revolution has declared itself against royalty and provincial institutions at the same time. It has mingled in the same hatred all that had preceded it, absolute power and what could temper its rigors; it has been simultaneously republican and centralizing.

This double character of the French Revolution is a fact that the friends of absolute power have laid hold of with great care. When you see them defend administrative centralization, do you think that they are working in favor of despotism? Not at all; they are defending one of the great conquests of the Revolution.^K In this way, they can remain a man of the people and an enemy of the rights of the people, secret servant of tyranny, and declared friend of liberty.f

I have visited the two nations that have developed the system of provincial liberties to the highest degree, and I have heard the voice of the parties dividing these nations.

In America, I found men who secretly longed to destroy the democratic institutions of their country. In England, I found others who openly attacked the aristocracy; I did not meet a single one who did not view provincial liberty as a great good.g

In these two countries, I saw the ills of the State imputed to an infinity of diverse causes, but never to town liberty.

I heard citizens attribute the greatness or the prosperity of their native land to a multitude of reasons; but I heard all of them put provincial liberty in the first rank and list it at the head of all the other advantages.

When men, who are naturally so divided that they do not agree on either religious doctrines or on political theories, fall into agreement on a single fact, a fact that they can best judge, since it occurs everyday before their eyes, am I to believe that this fact might be wrong?

Only peoples who have only a few or no provincial institutions deny their utility; that is, only those who do not know the thing at all, speak ill of it.

CHAPTER 6a

Of the Judicial Power in the United States and Its Action on Political Societyb

I have thought that a separate chapter must be devoted to the judicial power. Its political importance is so great that it seemed to me that talking about it in passing would diminish it in the eyes of readers.

There have been confederations elsewhere than in America; we have seen republics in places other than on the shores of the New World; the representative system is adopted in several States in Europe; but I do not think that until now any nation in the world has constituted the judicial power in the same way as the Americans.c

[≠The Americans have established the judicial power as counterbalance and barrier to the legislative power. They have made it a political power of the first order.≠]

What is most difficult for a foreigner to understand in the United States is the judicial organization. There is, so to speak, no political event in which he does not hear the authority of the judge invoked; and he naturally concludes that in the United States the judge is one of the premier political powers. Then when he comes to examine the constitution of the courts, he discovers at first view only judicial attributions and habits. In his eyes, the magistrate seems never to get into public affairs except by chance; but this very chance recurs daily.

When the Parlement of Paris made remonstrances and refused to register an edict, when on its own it summoned a corrupt official to appear before it, the political action of the judicial power could be recognized. But nothing similar is seen in the United States. [{The American judge never enters into direct conflict [v: is never found battling] with the political powers strictly defined.}]

The Americans have kept all the characteristics by which the judicial power is customarily recognized. They have enclosed it exactly within the circle where it habitually moves.

The first characteristic of the judicial power, among all peoples, is to serve as arbiter. For the courts to take action, a case must be brought. For there to be a judge, there must be proceedings. As long as a law does not give rise to a case, the judicial power has no occasion to get involved with it. The judicial power is there, but it doesn’t see the law. When a judge, as part of a trial, attacks a law relating to the trial, he extends the circle of his attributions, but he does not go beyond them, since in a way he must judge the law in order to be able to judge the trial. When he delivers a verdict on a law, outside of a trial, he goes completely beyond his sphere and enters into that of the legislative power.

The second characteristic of the judicial power is to deliver a verdict concerning particular cases and not concerning general principles. Should a judge, while deciding a particular question, make it certain that each of the consequences of the same principle is struck down in the same way, the principle becomes sterile. While destroying the general principle in this way, he remains within the natural circle of his action. But should a judge directly attack the general principle and destroy it without having a particular case in view, he goes beyond the circle where all peoples have agreed to enclose him; he becomes something more important, perhaps more useful than a magistrate, but he ceases to represent the judicial power.

The third characteristic of the judicial power is to be able to act only when it is called upon, or, following the legal expression, when it is apprised. This characteristic is not found as generally as the other two. I believe, however, that, despite exceptions, it can be considered as essential. By its nature, the judicial power is passive; to stir, it must be put in motion. Someone denounces a crime before it and it punishes the guilty; someone calls upon it to redress an injustice and it redresses it; someone submits an act to it and it interprets it; but it does not go on its own to pursue criminals, seek out injustice and examine facts. In a way the judicial power would do violence to this passive nature if it took initiative on its own and set itself up as censor of the laws.

[<Two things must not be confused. The same man can be vested with political and judicial powers without thereby mingling political and judicial power. The mind sees them as distinct in the very midst of the confusion of actions. When the Parlement of Paris issued decisions, registered edicts and made regulations for public order, it formed only a single body; but within it three different powers were easily distinguished>>.]

The Americans have kept these three distinctive characteristics for the judicial power. The American judge can deliver a verdict only when there is a lawsuit. He can never get involved except in a particular case; and to act he must always wait to be apprised.

So the American judge perfectly resembles the magistrates of other nations. He is vested, however, with an immense political power [that the latter do not have. His power forms the most formidable barrier to the encroachments of the legislature].

What causes that? He moves within the same circle and uses the same means as other judges; why does he possess a power that the latter do not have?

The cause is this single fact: the Americans have recognized the right of judges to base their decisions on the constitution rather than on the laws. In other words, they have allowed them not to apply laws that would appear unconstitutional to them.

I know that a similar right has sometimes been claimed by the courts of other countries; but it has never been granted to them. In America, it is recognized by all powers; no party, not even a man is met who contests it.

The explanation for this must be found in the very principle of American constitutions.

In France, the constitution is, or is considered to be, an immutable work.d No power can change anything in it; such is the accepted theory.e^L

In England, Parliament is recognized to have the right to modify the constitution. In England, therefore, the constitution can change constantly, or rather it does not exist at all. Parliament is, at the same time, the legislative body and the constituent body.^M

In America, political theories are simpler and more rational.

An American constitution is not considered to be immutable, as in France; it cannot be modified by the ordinary powers of society, as in England. It forms a work apart that, representing the will of all the people, binds legislators as well as ordinary citizens; but it can be changed by the will of the people following established forms and in cases for which provisions have been made.

So in America, the constitution can vary; but as long as it exists, it is the source of all powers. Predominant force resides in it alone.

It is easy to see how these differences must influence the position and rights of the judicial body in the three countries that I have cited.

If, in France, the courts could disobey the laws on the grounds that they found them unconstitutional, the constituent power would actually be in their hands, since they alone would have the right to interpret a constitution whose terms no one could change. They would therefore take the place of the nation and would dominate society, at least in so far as the inherent weakness of the judicial power would allow them to do so.f

I know that by denying judges the right to declare laws unconstitutional, we indirectly give the legislative body the power to change the constitution, since it no longer encounters a legal barrier that stops it. But better to grant the power to change the constitution of the people to men who imperfectly represent the will of the people, than to others who represent only themselves.

It would be still more unreasonable to give English judges the right to resist the will of the legislative body, because Parliament, which makes the law, makes the constitution as well, and because, as a result, a law cannot in any case be called unconstitutional when it issues from the three powers.

Neither of these two arguments applies to America.

In the United States, the constitution dominates the legislators as well as ordinary citizens. It is, therefore, the highest law and cannot be modified by a law. So it is right that the courts obey the constitution in preference to all laws [and by doing so, they do not make themselves masters of society since the people, by changing the constitution, can always reduce the judges to obedience. So American judges refuse without hesitation to apply laws that seem to them contrary to the constitution]. This follows from the very essence of the judicial power: to choose from among legal provisions those that bind him most strictly is in a way the natural right of the magistrate.

In France, as well, the constitution is the highest law, and judges have an equal right to base their decisions on it. But by exercising this right, they would not be able to avoid encroaching upon another right still more sacred than theirs: that of the society in whose name they act. Here ordinary reason must yield to reason of state.g

In America, where the nation can always reduce magistrates to obedience by changing its constitution, a similar danger is not to be feared. On this point, therefore, politics and logic are in agreement, and the people as well as the judges equally retain their privileges.

When a law that the judge considers contrary to the constitution is invoked before the courts of the United States, he can refuse to apply it. This power is the only one particular to the American magistrate, but a great political influence follows from it.

There are, in fact, very few laws that can by nature escape judicial analysis for long, for there are very few of them that do not harm an individual interest, and that litigants cannot or must not cite before the courts.

Now, from the day when the judge refuses to apply a law in a trial, it instantly loses part of its moral force. Those who have been wronged by the law are then alerted that a way exists to escape the obligation to obey it; trials multiply, and it becomes powerless. Then one of these two things happens: the people change the constitution or the legislature revokes its law.

So the Americans have given their courts an immense political power; but by forcing them to challenge laws only by judicial means, they have greatly diminished the dangers of this power.

If the judge had been able to challenge laws in a theoretical and general fashion; if he had been able to take the initiative and censure the legislator, he would have burst upon the political scene. Having become the champion or the adversary of one party, he would have called upon all the passions that divide the country to join in the struggle. But when the judge challenges a law in an obscure debate and on a particular application, he partially conceals the importance of the challenge from the eyes of the public. His decision intends only to strike an individual interest; the law is harmed only by chance.

The law censured in this way, moreover, is not destroyed; its moral force is lessened, but its material effect is not suspended. Only little by little, and under the repeated blows of jurisprudence, does it finally succumb. [{If the law were challenged directly it would triumph or succumb in a day.}]

Furthermore, it is easily understood that by charging individual interest with provoking the censure of laws, by intimately linking the trial of the law to the trial of a man, you assure that legislation will not be lightly challenged. In this system legislation is no longer exposed to the daily aggression of parties. By pointing out the mistakes of the legislator, you obey a real need; you start with a definite and appreciable fact, since it must serve as the basis for a trial.

I do not know whether the way in which the American courts act, at the same time that it is most favorable to public order, is not most favorable to liberty as well.

If the judge could challenge the legislators only head on, there are times when he would be afraid to do so; there are other times when partisan spirit would push him daily to dare to do so. Thus the laws would be challenged when the power from which they came was weak, and you would submit to them in silence when that power was strong. That is to say that the laws would often be challenged when respect for them would be most useful, and would be respected when oppression in their name would become easy.h

But the American judge is led onto political terrain despite himself. He judges the law only because he has a trial to judge and cannot avoid judging the trial. The political question that he must resolve is linked with the interest of the litigants, and he cannot refuse to settle it without committing a denial of justice. By fulfilling the strict duties imposed on the profession of magistrate, he performs the act of a citizen. It is true that judicial censure, exercised by the courts on legislation, cannot be extended in this way to all laws without distinction, for there are some that can never give rise to this kind of clearly formulated dispute that is called a trial. And when such a dispute is possible, it is still conceivable that there will be no one who wants to submit it to the courts.

The Americans have often felt this drawback, but they have left the remedy incomplete for fear of making it dangerously effective in all cases.

Enclosed within its limits, the power granted to the American courts to rule on the unconstitutionality of laws still forms one of the most powerful barriers that has ever been raised against the tyranny of political assemblies.j

Other Powers Granted to American Judges

I do not know if I need to say that among a free people, like the Americans, all citizens have the right to accuse public officials before ordinary judges, and that all judges have the right to condemn public officials, it is so natural a thing.

To allow the courts to punish agents of the executive power when they violate the law is not giving the courts a particular privilege. To forbid them to do so is taking away a natural right.

It did not appear to me that in the United States, by making all officials responsible to the courts, the forces of government had been weakened.

It seemed to me, on the contrary, that the Americans, by acting in this way, had increased the respect that is owed to those who govern, the latter being much more careful to avoid criticism.

Nor did I observe in the United States that many political trials were instituted, and it is easily explained. A trial is always, whatever its nature, a difficult and costly enterprise. It is easy to accuse a public man in the newspapers, but it is not without grave motives that someone decides to bring him before the law. So to bring legal proceedings against an official, it is necessary to have just grounds of complaint; and officials hardly provide such grounds when they fear having proceedings brought.

This does not result from the republican form that the Americans have adopted, for the same experience can occur every day in England.

These two peoples did not believe that their independence had been assured by allowing the principal agents of power to be put on trial. Instead, they thought that they succeeded in guaranteeing liberty, much more by small trials, placed daily within the reach of the least citizen, than by great proceedings that were never used or were used too late.

In the Middle Ages, when it was very difficult to reach criminals, judges, when they got hold of some of them, often inflicted terrible punishments on these unfortunates; this did not reduce the number of those guilty. Since then, we have discovered that by making justice both more certain and milder, we have made it more effective at the same time.

The Americans and the English think that arbitrariness and tyranny must be treated like theft: make it easier to take legal action and make the penalty more mild.

In the year VIII of the French Republic, a constitution appeared whose article 75 was worded thus: “The agents of the government, other than the ministers, cannot have legal proceedings instituted against them for facts relating to their functions, except by virtue of a decision of the Conseil d’État; in this case, the proceedings take place before the ordinary courts.”

The constitution of the year VIII passed from the scene, but not this article, which remained after it [{and we are still so inexperienced in the art of [being (ed.)] free.}]; and it is still used every day to oppose the just complaints of citizens.

[{But this is particular to France.}]

I have often tried to explain the sense of this art. 75 to some Americans or Englishmen, and it has always been very difficult for me to succeed in doing so.

What they noticed first was that the Conseil d’État, in France, was a high court seated at the center of the kingdom; there was a kind of tyranny in sending all complainants before it as a preliminary step.

But when I tried to make them understand that the Conseil d’État was not a judicial body at all, in the ordinary sense of the term, but an administrative body, whose members were dependent on the King; and that the King, as sovereign, after ordering one of his servants, called prefect, to commit a wrongful act, could order, as sovereign, another of his servants, called councilor of the Conseil d’État, to prevent someone from having the first punished; when I showed them the citizen harmed by the order of the prince, reduced to asking the prince himself for the authorization to seek justice, they refused to believe in such enormities and accused me of lying and of ignorance.

Often, in the old monarchy, the parlement ordered the arrest of the public official who made himself guilty of a crime. Sometimes the royal authority, intervening, had the procedure annulled. Despotism then showed itself openly, and people, while obeying, submitted only to force.

So we have retreated far from the point reached by our fathers; for we allow, under the color of justice, and consecrate, in the name of law, deeds that violence alone imposed on them.

CHAPTER 7

Of Political Jurisdiction in the United StatesTN 4

[≠Political jurisdiction is a violation of the great principle of the separation of powers; you resort to it as an extreme measure to reach certain guilty individuals.≠]

I understand by political jurisdiction the decision delivered by a political body temporarily vested with the right to judge.

In absolute governments, it is useless to give judgments extraordinary forms. The prince, in whose name the accused is prosecuted, is master of the courts as of everything else, and he has no need to seek a guarantee beyond the idea that is held of his power.a The only fear that he can imagine is that not even the external appearances of justice are kept, and that his authority is dishonored in the desire to assert it.

But in most free countries, where the majority can never act on the courts as an absolute prince would, judicial power is sometimes placed temporarily in the hands of the very representatives of society. Temporarily mixing powers in this way is preferred to violating the necessary principle of the unity of government. England, France and the United States have introduced political jurisdiction into their laws; it is curious to examine how these three great peoples have turned it to good account.

In England and in France, the chamber of peers forms the highest criminal court1 of the nation. It does not judge all political crimes, but it can do so.

Alongside the chamber of peers is another political power, vested with the right to accuse. On this point, the only difference that exists between the two countries is this: in England, the members of the House of Commons can accuse whomever they choose before the Lords; while in France the deputies can only prosecute the ministers of the King in this way.b

In these two countries, moreover, the chamber of peers finds all the penal laws at its disposal for striking the delinquents.

In the United States, as in Europe, one of the two branches of the legislature is vested with the right to accuse, and the other with the right to judge. The representatives denounce the guilty party; the Senate punishes him.

But a matter can be referred to the Senate only by the representatives; and before the Senate, the representatives can accuse only public officials. Therefore the Senate has a more limited competence than the French court of the peers, and the representatives have a broader right to accuse than our deputies.

But here is the greatest difference that exists between America and Europe. In Europe, political courts can apply all the provisions of the penal code. In America, when they have removed from the guilty party the public character with which he was vested, and have declared him unworthy to hold any political offices whatsoever in the future, their right is exhausted, and the task of the ordinary courts begins.

I suppose that the President of the United States has committed a crime of high treason.

The House of Representatives accuses him; the senators decide his removal. Afterward he appears before a jury that alone can take away life or liberty.

This succeeds in throwing a bright light on the subject that occupies us.

By introducing political jurisdiction into their laws, Europeans wanted to reach great criminals whatever their birth, rank or power in the State. To achieve that, they temporarily united, within a great political body, all the prerogatives of the courts.

The legislator is then transformed into a magistrate; he can establish the crime, classify and punish it. By giving him the rights of the judge, the law imposed all of the judge’s obligations on him, and bound him to the observation of all the forms of justice.

When a political court, French or English, has a public official as a defendant and delivers a verdict condemning him, by doing so, it removes him from office and can declare him unworthy to hold any office in the future. But here the dismissal and political interdiction are a consequence of the decision and not the decision itself.

So in Europe, political jurisdiction is more a judicial act than an administrative measure.

The opposite is seen in the United States, and it is easy to be persuaded that political jurisdiction there is more an administrative measure than a judicial act.

It is true that the decision of the Senate is judicial in form; to make it, the senators are obliged to conform to the solemnity and customs of the procedure. It is also judicial by the grounds on which it is based; the Senate is, in general, obliged to base its decision on a crime of the common law. But it is administrative in its objective.

If the principal aim of the American law-maker had really been to arm a political body with a great judicial power, he would not have restricted its action to the circle of public officials, for the most dangerous enemies of the State may hold no office at all. This is true above all in republics, where the favor of parties is the first of powers, and where someone is often much stronger when not legally exercising any power.

If the American law-maker had wanted to give society itself, like judges, the right to prevent great crimes by fear of punishment, he would have put at the disposal of the political courts all the resources of the penal code. But he only provided them with an incomplete weapon that cannot reach the most dangerous of criminals. For what use is a judgment of political interdiction against someone who wants to overturn the laws themselves?

The principal aim of political jurisdiction in the United States is, therefore, to withdraw power from someone who is making poor use of it, and to prevent the same citizen from being vested with power in the future. That, as we see, is an administrative act that has been given the solemnity of a judgment.

So in this matter, the Americans have created something mixed. They have given all the guarantees of political jurisdiction to administrative dismissal, and they have removed from political jurisdiction its greatest rigors.

This point settled, everything closely follows; we then discover why the American constitutions submit all civil officials to the jurisdiction of the Senate, and exempt the military whose crimes are, however, more to be feared [{in republics}]. In the civil order, the Americans have, so to speak, no removable officials; some are irremovable; others hold their rights by a mandate that cannot be abrogated. So to remove them from power, they must all be judged.c But military officers depend on the head of State, who himself is a civil officer. By reaching the head of State, they strike them all with the same blow.2

Now, if we come to compare the European and American systems in the effects that each produces or can produce, we discover differences no less noticeable.

In France and in England, political jurisdiction is considered as an extraordinary weapon that society should use only to save itself in moments of great peril.

We cannot deny that political jurisdiction, as understood in Europe, violates the conservative principle of the separation of powers and constantly threatens the life and liberty of men.

Political jurisdiction in the United States strikes only an indirect blow at the principle of separation of powers. It does not threaten the existence of citizens; it does not, as in Europe, hang over all heads, since it strikes only those who, by accepting public offices, subject themselves to its rigors in advance.

It is simultaneously less to be feared and less effective.

Moreover, the law-makers of the United States did not consider it as an extreme remedy for the great ills of society, but as a customary means of government.

From this point of view, it perhaps exercises more real influence over the social body in America than in Europe. You must not in fact be fooled by the apparent mildness of the American legislation regarding political jurisdiction. It must be noted, in the first place, that in the United States the court that delivers these judgments is composed of the same elements and is subject to the same influences as the body charged with accusing; this gives an almost irresistible impulse to the vindictive passions of parties. If political judges, in the United States, cannot order punishments as severe as those ordered by political judges in Europe, there is less chance of being acquitted by them as a result. Conviction is less to be feared and more certain.

Europeans, by establishing political courts, had as their principal object to punish the guilty; Americans, to remove them from power. Political jurisdiction in the United States is a preventive measure in a way. So judges there must not be bound by very exact criminal definitions.

Nothing is more frightening than the vagueness of American laws, when they define political crimes strictly speaking. The crimes that will justify the conviction of the President, says the Constitution of the United States, section IV, art. I [sic: Article II, Section 4], are “Treason, Bribery, or other high Crimes and Misdemeanors.” Most of the state constitutions are even more obscure.

“Public officials, says the constitution of Massachusetts,d will be condemned for their culpable behavior and for their bad administration.3 All officials who put the State in danger by bad administration, corruption or other misdemeanors, says the constitution of Virginia, are impeachable by the House of Delegates.” There are constitutions that, in order to let an unlimited responsibility weigh upon the public officials, specify no crime.4

But what makes the American laws in this matter so formidable arises, I dare say, from their very mildness.

We have seen that in Europe the dismissal of an official, and his political interdiction, were consequences of the penalty, and that in America it was the penalty itself. The result is this. In Europe, the political courts are vested with terrible rights that sometimes they do not know how to use; and it happens that they do not punish for fear of punishing too much. But in America, they do not back away from a penalty that humanity does not bemoan. To condemn a political enemy to death, in order to remove him from power, is in everybody’s eyes a horrible assassination. To declare an adversary unworthy to possess this same power and to take it away from him, while leaving him his life and liberty, can appear as the honest outcome of the struggle.

Now, this judgment, so easy to decide, is nonetheless the height of misfortune for the ordinary man among those to whom it is applied. Great criminals will undoubtedly defy its empty rigors; ordinary men will see in it a decision that destroys their position, stains their honor, and that condemns them to a shameful inaction worse than death.

So the less formidable political jurisdiction in the United States seems, the greater the influence it exercises on the course of society. It does not act directly on the governed, but it makes the majority entirely master of those who govern. It does not give the legislature an immense power that could be exercised only in a day of crisis; it allows the legislature to have a moderate and regular power that can be used every day. If the power is less, on the other hand, its use is more convenient and its abuse easier.

By preventing political courts from ordering judicial punishments, the Americans seem to me therefore to have avoided the most horrible consequences of legislative tyranny, rather than tyranny itself. And all things considered, I do not know if political jurisdiction, as it is understood in the United States, is not the most formidable weapon ever put in the hands of the majority.

When the American republics begin to degenerate, I believe that it will be easy to recognize; it will be enough to see if the number of cases of political jurisdiction increases.^N

CHAPTER 8

Of the Federal Constitution

Until now I have considered each state as forming a complete whole, and I have shown the different mechanisms that the people put in motion there, as well as the means of action that they use. But all these states that I have envisaged as independent are, in certain cases, forced to obey a supreme authority, which is that of the Union. The time has come to examine the portion of sovereignty that has been conceded to the Union, and to cast a rapid glance over the federal constitution.1

Historical Background of the Federal Constitutiona

[≠I am not among those who profess a blind faith in legal prescriptions and who think that it is sufficient to change the laws of a people in order to modify easily their social and political state. Laws act only in two ways, either by their long duration, when a power superior to society manages to impose them over many years, or by their perfect harmony with the mores, habits and civilization of the people. In this last case, the laws are only the conspicuous and legal manifestation of a preexistent fact.b

But I admit that when laws are found to be in harmony with the needs {the social state} of a country, its mores and its habits, their effect is often something of a miracle.

No country on earth more than America has ever given a greater example of the power of laws on the life of political society.≠]

The thirteen colonies that simultaneously threw off the yoke of England at the end of the last century had, as I have already said, the same religion, the same language, the same mores, nearly the same laws; they struggled against a common enemy. So they must have had strong reasons to unite closely together, and to be absorbed into one and the same nation.

But each of them, having always had a separate existence and a government close at hand, had created particular interests as well as customs; and each found repugnant a solid and complete union that would have made its individual importance disappear within a common importance. From that, two opposing tendencies: one that led the Anglo-Americans to unite; the other that led them to separate.

As long as the war with the mother country lasted, necessity made the principle of union prevail. And, although the laws that constituted the union were defective, the common bond continued to exist in spite of them.2

But as soon as peace was concluded, the vices of the legislationc became clear; the State seemed to dissolve all at once. Each colony, having become an independent republic, seized full sovereignty. The federal government, condemned by its very constitution to weakness, and no longer supported by the feeling of public danger, saw its flag abandoned to the outrages of the great peoples of Europe. At the same time, it could not find sufficient resources to stand up to the Indian nations and to pay the interest on debts contracted during the war for independence. About to perish, it officially declared its own impotence and summoned the constituent power.3

If ever America was capable of rising for a few moments to the high level of glory that the proud imaginationd of its inhabitants would like constantly to show us, it was at this supreme moment when the national power had, in a way, just abdicated authority.

For a people to struggle energetically to conquer its independence is a spectacle that every century has been able to provide. The efforts made by the Americans to escape from the yoke of the English have, moreover, been much exaggerated. Separated from their enemies by 1,300 leagues of ocean, aided by a powerful ally, the United States owed their victory to their position much more than to the merit of their armies or to the patriotism of their citizens.e Who would dare to compare the American war to the wars of the French Revolution, and the efforts of the Americans to ours? France, the object of attacks from the whole of Europe, without money, credit, allies, threw one-twentieth of its population before its enemies, with one hand putting out the conflagration that devoured its bowels and with the other carrying the torch abroad.f But what is new in the history of societies is to see a great people, warned by its legislators that the gears of government are grinding to a halt, turn its attention to itself, without rushing and without fear; sound the depth of the trouble; keep self-control for two whole years, in order to take time to find the remedy; and, when this remedy is indicated, voluntarily submit to it without costing humanity either a tear or a drop of blood.

When the insufficiency of the first federal constitution made itself felt, the excitement of the political passions that had given birth to the revolution was partially calmed, and all the great men that it had created still lived. This was double good fortune for America. The small assembly,4 which charged itself with drafting the second constitution, included the best minds and most noble characters that had ever appeared in the New World. George Washington presided over it.h

This national commission, after long and mature deliberations, finally offered to the people for adoption the body of organic laws that still governs the Union today. All the states successively adopted it.5 The new federal government began to operate in 1789, after two years of interregnum. So the American Revolution finished precisely at the moment when ours began.

Summary Picture of the Federal Constitutionj

A first difficulty must have presented itself to the minds of the Americans. It was a question of sharing sovereignty in such a way that the different states that formed the Union continued to govern themselves in everything that related only to their internal prosperity, and that the whole nation, represented by the Union, did not cease to be a body and to provide for all its general needs. A complex question, difficult to resolve.k

It was impossible to set in advance, in an exact and complete manner, the portion of power that had to revert to each of these two governments that were going to share sovereignty.

Who would be able to anticipate in advance all the details of the life of a people?

The duties and rights of the federal government were simple and easy enough to define, because the Union had been formed for the purpose of meeting a number of great general needs. The duties and rights of the government of the states were, on the contrary, numerous and complicated, because this government penetrated into all the details of social life.

So the attributions of the federal government were defined with great care,m and everything that was not included in the definition was declared to be part of the attributions of the government of the states. Thus, the government of the states remained the normal law; the federal government was the exception.6

But it was anticipated that, in practice, questions could arise relative to the exact limits of this exceptional government, and that it would be dangerous to abandon the solution of these questions to the ordinary courts established in the different states, by the states themselves. So a high federal court,7 a single tribunal, was created; one of its attributions was to maintain the division of powers between the two rival governments as the Constitution had established it.8

Attributions of the Federal Government

Peoples in relation to one another are only individuals. Above all, a nation needs a single government to appear with advantage in regard to foreigners.

So the Union was granted the exclusive right to make war and peace; to conclude treaties of commerce; to raise armies, to equip fleets.9

The necessity of a national government does not make itself as strongly felt in the direction of the internal affairs of society.

Nonetheless, there are certain general interests for which only a general authority can usefully provide.

The Union was left the right to regulate all that relates to the value of money; it was charged with the postal service; it was given the right to open the great avenues of communication that had to unite the various parts of the territory.10

The government of the different states was generally considered free in its sphere, but it could abuse this independence and compromise the security of the entire Union through imprudent measures. For these rare cases, defined in advance, the federal government was permitted to intervene in the internal affairs of the states.11 That explains how, while still recognizing in each of the confederated republics the power to modify and change its legislation, each was, nevertheless, forbidden to make retroactive laws and to create bodies of noblemen within its midst.12

Finally, since the federal government had to be able to fulfill the obligations imposed on it, it was given the unlimited right to levy taxes.13

When you pay attention to the division of powers as the federal constitution has established it; when, on the one hand, you examine the portion of sovereignty that the particular states have reserved to themselves and, on the other, the share of power that the Union took, it is easily discovered that the federal law-makers had formed very clear and very sound ideas about what I earlier called governmental centralization.o

The United States forms not only a republic, but also a confederation.p But the national authority there is, in several respects, more centralized than it was in the same period under several of the absolute monarchies of Europe. I will cite only two examples.

France counted thirteen sovereign courts that, most often, had the right to interpret the law without appeal. It possessed, in addition, certain provinces called pays d’États that could refuse their support, after the sovereign authority, charged with representing the nation, had ordered the raising of a tax.

The Union has only a single court to interpret the law, as well as a single legislature to make the law; a tax voted by the representatives of the nation obligates all the citizens. So the Union is more centralized on these two essential points than the French monarchy was; the Union, however, is only a collection of confederated republics.

In Spain, certain provincesq had the power to establish their own customs system, a power that, by its very essence, stems from national sovereignty.

In America, Congress alone has the right to regulate commerce among the states. So the government of the confederation is more centralized on this point than that of the kingdom of Spain.

It is true that, in the end, you arrived at the same point, since in France and in Spain the royal power is always able to execute, by force if necessary, what the constitution of the kingdom denied it the right to do. But I am talking here about theory.

Federal Powers

After having enclosed the federal government within a clearly drawn circle of action, it was a matter of knowing how to make it work.

Legislative Powers:r[difference between the constitution of the senate and that of the house of representatives]

In the organization of the powers of the Union, the plan that was traced in advance by the particular constitution of each of the states was followed on many points.

The federal legislative body of the Union was composed of a Senate and a House of Representatives.

The spirit of conciliation caused different rules to be followed in the formation of each of these assemblies.

I brought out above that, when the Americans wanted to establish the federal constitution, two opposing interests found themselves face to face. These two interests had given birth to two opinions.

Some wanted to make the Union a league of independent states, a sort of congress where the representatives of distinct peoples would come to discuss certain points of common interest.

Others wanted to unite all the inhabitants of the old colonies into one and the same people, and give them a government that, although its sphere would be limited, would be able to act within this sphere, as the one and only representative of the nation. The practical consequences of these two theories were very different.

Thus, if it was a matter of organizing a league and not a national government, it was up to the majority of the states to make laws, and not up to the majority of the inhabitants of the Union. For each state, large or small, would then conserve its character of independent power and would enter into the Union on a perfectly equal footing.

On the contrary, from the moment when the inhabitants of the United States were considered to form one and the same people, it was natural that only the majority of the citizens of the Union made the law.

Understandably, the small states could not consent to the application of this doctrine without completely abdicating their existence in what concerned federal sovereignty; for, from co-regulating power, they would become an insignificant fraction of a great people. The first system would have granted them an unreasonable power; the second nullified them.

In this situation, what almost always happens when interests are opposed to arguments happened: the rules of logic were made to bend. The law-makers adopted a middle course that forced conciliation of two systems theoretically irreconcilable.

The principle of the independence of the states triumphed in the formation of the Senate;s the dogma of national sovereignty, in the composition of the House of Representatives.t

Each state had to send two senators to Congress and a certain number of representatives,u in proportion to its population.14

Today, as a result of this arrangement, the state of New York has forty representatives in Congress and only two senators; the state of Delaware, two senators and only one representative. So in the Senate, the state of Delaware is the equal of the state of New York, while the latter has, in the House of Representatives, forty times more influence than the first. Thus, it can happen that the minority of the nation, dominating the Senate, entirely paralyzes the desires of the majority, represented by the other chamber; this is contrary to the spirit of constitutional governments.

All this shows clearly how rare and difficult it is to link all the parts of legislation together in a logical and rational manner.

In the long run, time always gives birth to different interests and consecrates diverse rights in the same people. Then, when it is a question of establishing a general constitution, each of these interests and rights serves as so many natural obstacles that are opposed to following all of the consequences of any one political principle. So only at the birth of societies can you be perfectly logical in the laws. When you see a people enjoy this advantage, do not rush to conclude that they are wise; instead, think that they are young.

At the time when the federal Constitution was formed, only two interests positively opposed to each other existed among the Anglo-Americans: the interest of individuality for the particular states, and the interest of union for the whole people. It was necessary to come to a compromise.

You must recognize, nonetheless, that up to now this part of the Constitution has not produced the evils that could be feared.

All the states are young;v they are near each other; they have homogeneous mores, ideas and needs; the difference that results from their greater or lesser size is not sufficient to give them strongly opposed interests. So the small states have never been seen to join together in the Senate against the plans of the large. There is, moreover, such an irresistible force in the legal expression of the will of an entire people that, when the majority expresses itself in the organ of the House of Representatives, the Senate, facing it, finds itself quite weak.

Beyond that, it must not be forgotten that it did not depend on the American law-makers to make one and the same nation out of the people to whom they wanted to give laws. The aim of the federal Constitution was not to destroy the existence of the states, but only to restrain it. So, from the moment when a real power was left to those secondary bodies (and it could not be taken from them), the habitual use of constraint to bend them to the will of the majority was renounced in advance. This said, the introduction of the individual strengths of the states into the mechanism of the federal government was nothing extraordinary. It only took note of an existing fact, a recognized power that had to be treated gently and not violated.

Another Difference between the Senate and the House of Representativesw

The Senate differs from the other chamber not only by the very principle of representation, but also by the mode of election, by the length of mandate and by the diversity of attributions.

The House of Representatives is named by the people; the Senate, by the legislators of each state.

The one is the product of direct election; the other, of indirect election.

The mandate of representatives lasts only two years; that of the senators, six.

The House of Representatives has only legislative functions; it participates in judicial power only by accusing public officials. The Senate participates in the making of laws; it judges political crimes that are referred to it by the House of Representatives; it is, in addition, the great executive council of the nation. Treaties, concluded by the President, must be validated by the Senate; his choices, to be definitive, need to receive the approval of the same body.15

Of Executive Power16

The American law-makers had a difficult task to fulfill: they wanted to create an executive power that depended on the majority and yet was strong enough by itself to act freely in its sphere.x

The maintenance of the republican form required that the representative of the executive power be subject to the national will.

The President is an elective magistrate. His honor, goods, liberty, life answer continually to the people for the good use that he will make of his power. While exercising his power, moreover, he is not completely independent. The Senate watches over him in his relations with foreign powers, as well as in the distribution of positions; so he can be neither corrupted nor corrupt.

The law-makers of the Union recognized that the executive power could not fulfill its task usefully and with dignity, if they did not succeed in giving it more stability and strength than it had been granted in the particular states.

The President was named for four years and could be re-elected. With a future, he had the courage to work for the public good and the means to implement it.

The President was made the one and only representative of the executive power of the Union. Care was even taken not to subordinate his will to those of a council: a dangerous measure that, while weakening the action of the government, lessens the accountability of those who govern. The Senate has the right to strike down some of the acts of the President, but it can neither force him to act, nor share the executive power with him.

The action of the legislature on the executive power can be direct; we have just seen that the Americans took care that it was not. It can also be indirect.

The chambers, by depriving the public official of his salary, take away a part of his independence; it must be feared that, masters of making laws, they will little by little take away the portion of power that the Constitution wanted to keep for him.

This dependence of the executive power is one of the vices inherent in republican constitutions. The Americans have not been able to destroy the inclination that leads legislative assemblies to take hold of government,y but they have made this inclination less irresistible.

The salary of the President is fixed, at his entry into office, for the entire time that his leadership lasts. In addition, the President is armed with a qualified veto that permits him to stop the passage of laws that would be able to destroy the portion of independence that the constitution left to him. There can only be an unequal struggle, however, between the President and the legislature, since the latter, by persevering in its intentions, always has the power to overcome the resistance that opposes it. But the qualified veto at least forces it to retrace its steps; it forces the legislature to consider the question again; and this time, it can no longer decide except with a two-thirds majority of those voting. The veto, moreover, is a kind of appeal to the people; the executive power pleads its cause and makes its reasons heard. Without this guarantee, it could be oppressed in secret. But if the legislature perseveres in its intentions, can it not always overcome the resistance that opposes it? To that I will answer that in the constitution of all peoples, no matter what its nature, there is a point where the law-maker is obliged to rely on the good sense and virtue of the citizens. This point is closer and more visible in republics, more removed and more carefully hidden in monarchies; but it is always found somewhere. There is no country where the law can foresee everything and where the institutions must take the place of reason and mores.

How the Position of the President of the United States Differs from That of a Constitutional King in France

The executive power plays such a great role in the destiny of nations that I want to stop for an instant here in order to explain better what place it occupies among the Americans.

In order to conceive a clear and precise idea of the position of the President of the United States, it is useful to compare it to that of the King in one of the constitutional monarchies of Europe.z

In this comparison, I will attach little importance to the external signs of power; they fool the observer more than they help.

When a monarchy is gradually transformed into a republic, the executive power there keeps titles, honors, respect, and even money, long after it has lost the reality of power. The English, after having cut off the head of one of their kings and having chased another from the throne, still knelt to speak to the successors of these princes.

On the other hand, when republics fall under the yoke of one man, power continues to appear simple, plain and modest in its manners, as if it had not already risen above everyone. When the emperors despotically disposed of the fortune and the life of their citizens, they were still called Caesar when spoken to, and they went informally to have supper at the homes of their friends.

So we must abandon the surface and penetrate deeper.

Sovereignty, in the United States, is divided between the Union and the states; while among us, it is one and compact. From that arises the first and greatest difference that I notice between the President of the United States and the King in France.

In the United States, executive power is limited and exceptional,a like the very sovereignty in whose name it acts; in France, it extends to everything, like the sovereignty there.

The Americans have a federal government; we have a national government.

This is a primary cause of inferiority that results from the very nature of things; but it is not the only one. The second in importance is this: strictly speaking, sovereignty can be defined as the right to make laws.

The King, in France, really constitutes one part of the sovereign power, since laws do not exist if he refuses to sanction them. In addition, he executes the law.

The President also executes the law, but he does not really take part in making the law, since, by refusing his consent, he cannot prevent it from existing. So he is not part of the sovereign power; he is only its agent.

Not only does the King, in France, constitute one portion of the sovereign power, but he also participates in the formation of the legislature, which is the other portion. He participates by naming the members of one chamber and by ending at his will the term of the mandate of the other. The President of the United States takes no part in the composition of the legislative body and cannot dissolve it.

The King shares with the Chambers the right to propose laws.

The President has no similar initiative.

The King is represented, within the Chambers, by a certain number of agents who set forth his views, uphold his opinions and make his maxims of government prevail.

The President has no entry into Congress; his ministers are excluded as he is, and it is only by indirect pathways that he makes his influence and his opinion penetrate this great body.

So the King of France operates as an equal with the legislature, which cannot act without him, as he cannot act without it.

The President is placed beside the legislature, as an inferior and dependent power.

In the exercise of executive power strictly speaking, the point on which his position seems closest to that of the King in France, the President still remains inferior due to several very great causes.

First, the power of the King in France has the advantage of duration over that of the President. Now, duration is one of the first elements of strength. Only what must exist for a long time is loved and feared.

The President of the United States is a magistrate elected for four years. The King in France is a hereditary leader.

In the exercise of executive power, the President of the United States is constantly subject to jealous oversight. He prepares treaties, but he does not make them; he designates people for offices, but he does not appoint them.17

The King of France is the absolute master in the sphere of executive power.

The President of the United States is accountable for his actions. French law says that the person of the King of France is inviolable.

But above the one as above the other stands a ruling power, that of public opinion. This power is less defined in France than in the United States; less recognized, less formulated in the laws; but, in fact, it exists there. In America, it proceeds by elections and by decisions; in France, by revolutions. Hence France and the United States, despite the diversity of their constitutions, have this point in common: public opinion is, in effect, the dominant power.b So the generative principle of the laws is, in actual fact, the same among the two peoples, although its developments are more or less free, and the consequences that are drawn from it are often different. This principle, by its nature, is essentially republican. Consequently, I think that France, with its King, resembles a republic more than the Union, with its President, resembles a monarchy.

In all that precedes, I have been careful to point out only the main points of difference. If I had wanted to get into details, the picture would have been still more striking. But I have too much to say not to want to be brief.

I remarked that the power of the President of the United States, in his sphere, exercises only a limited sovereignty, while that of the King, in France, acts within the circle of a complete sovereignty.

I could have shown the governmental power of the King in France surpassing even its natural limits, however extensive they were, and penetrating into the administration of individual interests in a thousand ways.

To this cause of influence, I could join that which results from the great number of public officials, nearly all of whom owe their mandate to the executive power. This number has surpassed all known limits among us; it reaches 138,000.18 Each of these 138,000 nominations must be considered as an element of strength. The President does not have an absolute right to appoint to public positions, and those positions hardly exceed 12,000.19

Accidental Causes That Can Increase the Influence of the Executive Power

If the executive power is less strong in America than in France, the cause must be attributed to circumstances perhaps more than to laws.

It is principally in its relations with foreigners that the executive power of a nation finds the opportunity to deploy skill and force.

If the life of the Union were constantly threatened, if its great interests were found involved daily in those of other powerful peoples, you would see the executive power grow in opinion by what would be expected of it and by what it would execute.

The President of the United States is, it is true, the head of the army, but this army is composed of 6,000 soldiers;c he commands the fleet, but the fleet numbers only a few vessels; he directs the foreign affairs of the Union, but the United States has no neighbors. Separated from the rest of the world by the ocean, still too weak to want to dominate the sea, they have no enemies; and their interests are only rarely in contact with those of the other nations of the globe.

This demonstrates well that the practice of government must not be judged by theory.

The President of the United States possesses some nearly royal prerogatives that he does not have the opportunity to use; and the rights that, up to now, he is able to use are very circumscribed. The laws allow him to be strong; circumstances keep him weak.

On the contrary, circumstances, still more than the laws, give royal authority in France its greatest strength.

In France, the executive power struggles constantly against immense obstacles and disposes of immense resources to overcome them. It increases with the greatness of the things that it executes and with the importance of the events that it directs, without thereby modifying its constitution.

Had the laws created it as weak and as circumscribed as that of the Union, its influence would soon become very much greater.

Why the President of the United States, to Lead Public Affairs, Does Not Need to Have a Majority in the Chambers

It is an established axiom in Europe that a constitutional King cannot govern when the opinion of the legislative chambers is not in agreement with his.

Several Presidents of the United States have been seen to lose the support of the majority of the legislative body, without having to leave power, nor without causing any great harm to society.

I have heard this fact cited to prove the independence and strength of the executive power in America. A few moments of reflection are sufficient, on the contrary, to see there the proof of its weakness.

A European King needs to obtain the support of the legislative body to fulfill the task that the constitution imposes on him, because this task is immense. A European constitutional King is not only the executor of the law; the care of its execution so completely devolves onto him that, if the law is against him, he would be able to paralyze its force. He needs the chambers to make the law; the chambers need him to execute it; they are two powers that cannot live without each other; the gears of government stop at the moment when there is discord between them.

In America, the President cannot stop the making of laws; he cannot escape the obligation to execute them. His zealous and sincere support is undoubtedly useful, but it is not necessary to the course of government. In everything essential that he does, he is directly or indirectly subject to the legislature; where he is entirely independent of it, he can hardly do anything. So it is his weakness, and not his strength, that allows him to live in opposition to the legislative power.

In Europe, there must be agreement between the King and the Chambers, because there can be a serious struggle between them. In America, agreement is not required, because the struggle is impossible.

Of the Election of the President

The system of election, applied to the head of the executive power among a great people, presents some dangers that experience and historians have sufficiently pointed out.

Consequently, I do not want to talk about it except in relation to America.

The dangers feared from the system of election are more or less great, depending on the place that the executive power occupies and its importance in the State, depending on the method of election and the circumstances in which the people who elect are found.

Not without reason, the elective system, applied to the head of State, is criticized for offering such a great lure to individual ambitions and inflaming them so strongly in the pursuit of power that often, when legal means are no longer sufficient, they appeal to force when right happens to desert them.

It is clear that the greater the prerogatives of the executive power, the greater the lure; also, the more the ambition of the pretenders is excited, the more it finds support among a host of men of lesser ambition who hope to share power after their candidate has triumphed.d

The dangers of the elective system increase therefore in direct proportion to the influence exercised by the executive power in the affairs of the State.

The Polish revolutions should not be attributed only to the elective system in general, but to the fact that the elected magistrate was the head of a large monarchy.e

So before discussing the absolute goodness of the elective system, there is always an intervening question to resolve, that of knowing if the geographic position, laws, habits, mores and opinions of the people among whom you want to introduce it allow you to establish a weak and dependent executive power. To want the representative of the State to be simultaneously armed with great power and elected is, to my mind, to express two contradictory desires. For my part, I know only one way to make hereditary royalty change to a state of elected power. Its sphere of action must be contracted in advance; its prerogatives gradually reduced; and little by little, the people accustomed to living without its aid. But the republicans of Europe are hardly concerned with this. Since many among them hate tyranny only because they are the objects of its rigors, the extent of executive power does not offend them; they attack only its origin, without noticing the tight bond that links these two things.

No one has yet been found who cared about risking his honor and his life to become President of the United States, because the President has only a temporary, limited and dependent power. Fortune must put an immense prize at stake in order for desperate players to enter the lists. [≠For my part, I would prefer to be Premier Ministre in France than President of the Union.≠] No candidate, until now, has been able to raise ardent sympathies and dangerous popular passions in his favor.f The reason is simple. Once at the head of the government,g he can distribute to his friends neither much power, nor much wealth, nor much glory; and his influence in the Stateh is too weak for factions to see their success or their ruin in his elevation to power.

Hereditary monarchies have a great advantage. Since the particular interest of a family is continually tied in a close way to the interest of the State, there is never a single moment when the latter is left abandoned to itself. I do not know if in these monarchies public affairs are better conducted than elsewhere; but at least there is always someone who takes charge for good or ill, depending on his capacity.j

In elective States, on the contrary, at the approach of the election and a long time before it happens, the gears of government no longer function, in a way, except by themselves. The laws can undoubtedly be put together so that the election takes place at one go and rapidly, and the seat of executive power never remains vacant so to speak; but no matter what is done, an empty place exists mentally despite the efforts of the law-maker.

At the approach of the election, the head of the executive power thinks only of the struggle to come; he no longer has a future; he can undertake nothing, and pursues only languidly what someone else perhaps is going to achieve. “I am so near the moment of my retirement,” wrote President Jefferson on 21 [28 (ed.)] January 1809 (six weeks before the election), “that I no longer take part in public affairs except by expressing my opinion. To me, it seems just to leave to my successor the initiation of measures that he will have to execute and for which he will have to bear responsibility.”

On its side, the nation has its eyes focused only on a single point; it is occupied only with overseeing the birth about to take place.

The more vast the place occupied by the executive power in the leadership of public affairs, the greater and more necessary is its habitual action, and the more dangerous such a state of things is. Among a people who have contracted the habit of being governed by the executive power, and with even more reason, of being administered by it, election cannot help but produce a profound disturbance.

In the United States, the action of the executive power can slow down with impunity, because this action is weak and circumscribed.

When the head of government is elected, a lack of stability in the internal and external policies of the State almost always follows. That is one of the principal vices of this system.

But this vice is felt more or less, depending on the portion of power granted to the elected magistrate. In Rome, the principles of government never varied, although the consuls were changed annually, because the Senate was the directing power; and the Senate was an hereditary body. In most of the monarchies of Europe, if the King were elected, the kingdom would change faces with each new choice.

In America, the President exercises a fairly great influence on affairs of State, but he does not conduct them; the preponderant power resides in the whole national representation. Therefore, the mass of people must be changed, and not only the President, in order for the maxims of policy to change. Consequently, in America, the system of election, applied to the head of the executive power, does not harm the steadiness of government in a very tangible way.

The lack of steadiness is an evil so inherent in the elective system, moreover, that it still makes itself keenly felt in the President’s sphere of action, no matter how circumscribed.

Mr. Quincy Adams, when he took power, dismissed most of those appointed by his predecessor; and of all the removable officials that the federal administration uses, I do not know of a single one who was left in office by General Jackson in the first year that followed the election.k

The Americans thought correctly that the head of the executive power, in order to fulfill his mission and bear the weight of full responsibility, had to remain free, as much as possible, to choose his agents himself and to remove them at will;m the legislative body watches over rather than directs the President. From that it follows that at each new election, the fate of all federal employees is as if in suspense.

In the constitutional monarchies of Europe, the complaint is that the destiny of the obscure agents of the administration often depends on the fate of the ministers. It is even worse in States where the head of government is elected. The reason for this is simple. In constitutional monarchies, ministers replace each other rapidly; but the principal representative of the executive power never changes, which contains the spirit of innovation within certain limits. So administrative systems there vary in the details rather than in the principles; one cannot be suddenly substituted for another without causing a kind of revolution. In America, this revolution takes place every four years in the name of law.

As for the individual misfortunes that are the natural consequence of such legislation, it must be admitted that the lack of stability in the lot of officials does not produce in America the evils that would be expected elsewhere. In the United States, it is so easy to make an independent living that to remove an official from an office that he holds sometimes means taking away the comforts of life, but never the means to sustain it.

I said at the beginning of this chapter that the dangers of the mode of election, applied to the head of the executive power, were more or less great, depending on the circumstances in which the people who elect are found.

Efforts to reduce the role of the executive power are made in vain. There is something over which this power exercises a great influence, whatever the place that the laws have given it. That is foreign policy; a negotiation can hardly be started and successfully carried through except by a single man. [{Physical force can only be adequately put in motion [v: directed] by a single will.}]

The more precarious and perilous the position of a people, the more the need for consistency and stability makes itself felt in the direction of foreign affairs, and the more dangerous the system of election of the head of State becomes.

The policy of the Americans in relation to the whole world is simple; you would almost be able to say that no one needs them, and that they need no one. Their independence is never threatened.

So among them, the role of executive power is as limited by circumstances as by laws. The President can frequently change his views without having the State suffer or perish.

Whatever the prerogatives with which the executive power is vested, the time that immediately precedes the election and the time while it is taking place can always be considered as a period of national crisis.

The more the internal situation of a country is troubled and the greater its external perils, the more dangerous this moment of crisis is for it. Among the peoples of Europe, there are very few who would not have to fear conquest or anarchy every time that they chose a new leader.

In America, society is so constituted that it can maintain itself on its own and without help; external dangers are never pressing. The election of the President is a cause for agitation, not for ruin.

Mode of Election

Apart from the dangers inherent in the principle, there are many others that arise from the very forms of election and that can be avoided by the care of the law-maker.n

When a people gather in arms in the public square to choose a leader, it exposes itself not only to the dangers presented by the elective system itself, but also to all those of civil war which arise from such a method of election.

When Polish laws made the choice of the king depend on the veto of a single man, they invited the murder of this man or created anarchy in advance.

As you study the institutions of the United States and look more attentively at the political and social situation of this country, you notice a marvelous accord there between fortune and human efforts. America was a new country; but the people who lived there had already long made use of liberty elsewhere: two great causes of internal order. Furthermore, America had no fear of conquest. The American law-makers, taking advantage of these favorable circumstances, had no difficulty in establishing a weak and dependent executive power; having created it so, they could make it elective without risk.

Nothing remained for them to do except to choose, from among the different systems of election, the least dangerous; the rules that they drew up in this respect completed admirably the guarantees that the physical and political constitution of the country already provided.

The problem to solve was to find a mode of election that, while still expressing the real will of the people, little excited their passions and kept the people in the least possible suspense. First, they granted that a simple majority would make the law. But it was still very difficult to obtain this majority without having to fear delays that they wanted to avoid above all.

It is rare, in fact, to see a man get the majority of votes on the first try from among a large population. The difficulty increases still more in a republic of confederated states where local influences are much more developed and more powerful.

A way to obviate this second obstacle presented itself: to delegate the electoral powers of the nation to a body that represented it.

This mode of election made a majority more probable; for the fewer the electors, the easier it is for them to agree among themselves. It also presented more guarantees for a good choice.

But should the right to elect be entrusted to the legislative body itself, the usual representative of the nation; or, on the contrary, must an electoral college be formed whose sole purpose would be to proceed to the naming of the President?o

The Americans preferred this last option. They thought that the men sent to make ordinary laws would only incompletely represent the wishes of the people relating to the election of the first magistrate. Being elected, moreover, for more than a year, they could represent a will that had already changed. They judged that, if the legislature was charged with electing the head of the executive power, its members would become, long before the election, the objects of corrupting maneuvers and the playthings of intrigue; while special electors, like jurors, would remain unknown in the crowd until the day when they must act and would only appear at one moment to deliver their decision.

So they established that each state would name a certain number of electors,20 who would in turn elect the President. And, since they had noticed that assemblies charged with choosing heads of government in elective countries inevitably became centers of passions and intrigue, that sometimes they took hold of powers that did not belong to them, and that often their operations, and the uncertainties that followed, lasted long enough to put the State in danger, they decided that the electors would all vote on a set day, but without meeting together.21

The mode of election in two stages made a majority probable, but did not guarantee it, for it could be that the electors would differ among themselves as those who named them would have differed.

In this case, the Americans were led necessarily to take one of three measures: it was necessary to have new electors named, or to consult once again those already named, or finally to refer the choice to a new authority.

The first two methods, apart from the fact that they were not very certain, led to delays and perpetuated an always dangerous excitement.

So they settled on the third and agreed that the votes of the electors would be transmitted in secret to the president of the Senate. He would count the votes on the day fixed and in the presence of the two houses. If no candidate had gained a majority, the House of Representatives would itself proceed immediately to the election; but they took care to limit its right. The Representatives could only elect one of the three candidates who had obtained the largest number of votes.22

As you see, only in a rare case, difficult to foresee in advance, is the election left to the ordinary representatives of the nation; and even then, they can only choose a citizen already designated by a strong minority of the special electors; a happy combination, that reconciles the respect owed to the will of the people with the rapidity of execution and the guarantees of order required by the interest of the State. Yet, by making the House of Representatives decide the question, in case of division, the complete solution of all difficulties had still not been achieved; for the majority in the House of Representatives could in turn be doubtful, and this time the Constitution offered no remedy. But by establishing required candidates, by restricting their number to three, by relying on the choices of some enlightened men, it had smoothed all the obstacles23 over which it could have some power; the others were inherent in the elective system itself.p

During the forty-five years the federal Constitution has existed, the United States has already elected its President twelve times.

Ten elections were done immediately, by the simultaneous vote of the special electors seated at different points of the territory.

The House of Representatives has used the exceptional right with which it is vested in case of division only twice. The first, in 1801, was at the time of the election of Jefferson; and the second, in 1825, when Quincy Adams was named.

Election Crisis

I have talked about the favorable circumstances in which the United States was found for adopting the elective system, and I have shown the precautions taken by the law-makers to reduce its dangers. The Americans are used to having all kinds of elections. Experience has taught them what level of agitation they can reach and where they must stop. The vast extent of their territory and the distribution of the inhabitants make a collision among the different parties less probable and less perilous than anywhere else. Until now, the political circumstances in which the nation has found itself during elections have not presented any real danger. [<Finally, the power of the President is so dependent and so limited that the passions of the candidates and those of their partisans can never be either very ardent or very long-lasting.>]

But the moment of the election of the President of the United States can still be considered a period of national crisis.

The influence that the President exercises on the course of public affairs is undoubtedly weak and indirect, but it extends over the entire nation; the choice of President has only a moderate importance for each citizen, but it matters to all citizens. Now, an interest, however small, assumes a character of great importance from the moment it becomes a general interest.

Compared to a king of Europe, the President has certainly few means to create partisans for himself; nonetheless, the places he has at his disposal are numerous enoughq for several thousands of the voters to be either directly or indirectly interested in his cause.

In the United States as elsewhere, moreover, parties feel the need to gather around a man, in order to be more easily understood by the crowd. So they generally use the name of the candidate for President as a symbol; in him, they personify their theories. Thus, parties have a great interest in determining the election in their favor, not so much for making their doctrines triumph with the help of the elected President, as for showing, by his election, that these doctrines have won the majority.

Long before the fixed moment arrives, the election becomes the greatest and, so to speak, the sole matter that preoccupies minds. Factions redouble their ardor [the administration finds itself attacked from all directions; {slanders, insults, rantings of all types are thrown lavishly against it}]; all the artificial passions that can be imagined, in a happy and tranquil country, are stirred up at this moment in full view.

On his side, the President is absorbed by the care to defend himself. He no longer governs in the interest of the State, but in that of his re-election; he grovels before the majority; and often, instead of resisting its passions, as his duty requires, he runs ahead of its caprices.

As the election approaches, intrigues become more active; agitation, more intense and more widespread. The citizens divide into several camps, each taking the name of its candidate. The entire nation falls into a feverish state; the election is then the daily story of the public papers, the subject of individual conversations, the goal of all moves, the object of all thoughts, the sole interest of the moment. [≠The danger certainly is more apparent than real.≠]

It is true that as soon as fortune has decided, this ardor dissipates; everything becomes calm, and the river, once overflowing, retreats peacefully to its bed. But shouldn’t we be astonished that the storm could arise? [<For the choice that so strongly preoccupied the nation can influence its prosperity and its dreams only in a very indirect way; the passions that arose did not find their source in those real interests and penchants [doubtful reading (ed.)] that so profoundly trouble the human heart [v: society] [v: stirring the deepest levels of the human heart and turning society upside down to be satisfied]. For the election of the President of the United States cannot put into play any of those dangerous human passions that find their source in profound beliefs or in great positive interests.>]

Of the Re-election of the President

Were the law-makers of the United States wrong or right to allow the re-election of the President?r

To prevent the head of the executive power from being re-elected seems, at first glance, contrary to reason.s We know what influence the talents or character of one man exercise over the destiny of an entire people, especially in difficult circumstances and in times of crisis. Laws that forbid citizens to re-elect their primary magistrate would deny them the best means of ensuring the prosperity of the State or of saving it. You would, moreover, arrive at this bizarre result, that a man would be excluded from the government at the very moment when he would have finally proved that he was capable of governing well.t

These reasons are certainly powerful; but can’t they be opposed by still stronger ones?u

Intrigue and corruption are the natural vices of elective governments. But when the head of the State can be re-elected, these vices spread indefinitely and compromise the very existence of the country. When an ordinary candidate wants to succeed by intrigue, his maneuvers can only be extended over a circumscribed space. When, on the contrary, the head of the State himself gets into the fray, he borrows for his own use the strength of the government.v

In the first case, it is one man with his limited means; in the second, it is the State itself with its immense resources that schemes and corrupts.

The ordinary citizen who uses reprehensible maneuverings to gain power can harm public prosperity only in an indirect manner; but if the representative of the executive power enters the lists, concern for the government becomes, for him, something of secondary interest; the main interest is his election. Negotiations, like laws, are, for him, nothing more than electoral schemes; positions become recompense for services rendered, not to the nation, but to its leader. Even if the action of the government would not always be contrary to the interest of the country, it would at least no longer serve it. Yet the action of the government is undertaken for its use alone.

It is impossible to consider the ordinary course of affairs in the United States, without noticing that the desire to be re-elected dominates the thoughts of the President; that the entire policy of his administration leads to this point; that his smallest steps are subordinated to this end; that above all, as the moment of crisis approaches, individual interest replaces general interest in his mind.

So the principle of re-election makes the corrupting influence of elective government more widespread and more dangerous. It tends to degrade the political morality of the people and to replace patriotism with cleverness.

In America, it attacks the sources of national existence even more fundamentally.

Every government carries within itself a natural vice that seems attached to the very principle of its life; the genius of the law-maker is to discern this well.w A State can overcome many bad laws, and the evil they cause is often exaggerated. But every law whose effect is to develop this seed of death cannot miss becoming fatal in the long run, even if its bad effects do not immediately make themselves felt.

The principle of ruin in absolute monarchies is the unlimited and unreasonable expansion of royal power. A measure that removes the counterweight that the constitution left to this power would therefore be radically bad, even if its effects seemed unnoticeable for a long time.

In the same way, in countries where democracy governs and where the people constantly draw everything to themselves, laws which make their action more and more immediate and irresistible attack, in a direct way, the existence of the government.

The greatest merit of the American law-makers is to have seen this truth clearly and to have had the courage to put it into practice. [{The greatest glory of this people is to have known how to appreciate it and to submit themselves to it.}]

They understood that beyond the people there needed to be a certain number of powers that, without being completely independent of the people, nonetheless enjoyed in their sphere a fairly large degree of liberty; so, though forced to obey the permanent direction of the majority, they could nevertheless struggle against its caprices and refuse its dangerous demands.

To this effect, they concentrated all the executive power of the nation in one pair of hands; they gave the President extensive prerogatives, and armed him with a veto, to resist the encroachments of the legislature.x

But by introducing the principle of re-election, they have partially destroyed their work. They have granted great power to the President, and have taken from him the will to use it.

Not re-eligible, the President was not independent of the people, for he did not cease being responsible to them; but the favor of the people was not so necessary to him that he had to bend in all cases to their will.

Re-eligible (and this is true above all in our time when political morality is becoming lax and when men of great character are disappearing), the President of the United States is only a docile instrument in the hands of the majority. He loves what it loves, hates what it hates; he flies ahead of its will, anticipates its complaints, bends before its slightest desires. The law-makers wanted him to lead the majority, and he follows it.

Thus, in order not to deprive the State of the talents of one man, they have rendered his talents almost useless; and to arrange for a resource in extraordinary circumstances, they have exposed the country to daily dangers.y

Of the Federal Courts24

I have examined the legislative power and the executive power of the Union. It still remains for me to consider the judicial power.

Here I must reveal my fears to readers.

The judicial institutions exercise a great influence on the destiny of the Anglo-Americans; they hold a very important place among political institutions properly so called. From this point of view, they particularly merit our attention.

But how to make the political action of the American courts understood, without entering into some of the technical details of their constitution and of their forms; and how to get into the details without discouraging, by the natural dryness of such a subject, the curiosity of the reader? How to remain clear and still be concise?

[<So I have said only what I believed indispensable for someone to judge the political action of courts within the confederation.> So often, I have assumed the reader’s pre-existent ideas on the administration of justice among the people of the English race; even more often I counted on him searching in the sources that I point out in order to fill out my ideas. In a word, I have said only what I believed indispensable for someone to be able to understand the political action of the federal courts.]

I do not flatter myself that I have escaped these different dangers. Men of the world will still find that I go on too long; legal specialists will think that I am too brief. But that is a disadvantage connected to my subject in general and to the special matter that I am treating at this moment.

The greatest difficulty was not to know how the federal government would be constituted, but how obedience to its laws would be assured.

Governments generally have only two means to overcome the efforts of the governed to resist them: the physical force that they find within themselves; the moral force that the decisions of the courts bestow on them.

A government that would have only war to enforce obedience to its laws would be very close to its ruin. One of two things would probably happen to it. If it were weak and moderate, it would use force only at the last extremity and would let a host of incidents of partial disobedience go by unnoticed; then the State would fall little by little into anarchy.

If it were audacious and powerful, it would resort daily to the use of violence, and soon you would see it degenerate into pure military despotism. Its inaction and its action would be equally harmful to the governed.

The great object of justice is to substitute the idea of law for that of violence; to place intermediaries between the government and the use of physical force.

The power of opinion generally granted by men to the intervention of the courts is something surprising. This power is so great that it is still attached to judicial form when the substance no longer exists; it gives flesh to the shadow.

The moral force with which the courts are vested renders the use of physical force infinitely rarer, substituting for it in most cases; and when, finally, physical force must be exerted, its power is doubled by the moral force that is joined with it.

A federal government, more than another government, must desire to obtain the support of the judicial system, because it is weaker by its nature; and efforts at resistance can more easily be organized against it.25 If it always and immediately had to resort to the use of force, it would not be adequate to its task.z

To make citizens obey its laws, or to repel the aggressions that would be directed against it, the Union therefore had a particular need for courts.

But what courts could it use? Each state already had a judicial power organized within it. Would it be necessary to resort to these courts? Would it be necessary to create a federal judicial system? It is easy to prove that the Union could not adapt to its use the judicial power established in the states.

It is undoubtedly important to the security of each person and to the liberty of all that the judicial power should be separated from all the others; but it is no less necessary to national existence that the different powers of the State have the same origin, follow the same principles and act in the same sphere, in a word, that they are correlative and homogeneous. No one, I imagine, has ever thought to have crimes committed in France judged by foreign courts in order to be more certain of the impartiality of the magistrates.

The Americans form only a single people, in relation to their federal government. But in the midst of this people, political bodies, dependent on the national government on certain points and independent on all the others, have been allowed to continue to exist; they have their particular origins, their own doctrines and their special means of action. To entrust the enforcement of the laws of the Union to courts instituted by these political bodies, was to deliver the nation to foreign judges.

Even more, each state is not only a foreigner in relation to the Union, but it is also a daily adversary, since the sovereignty of the Union can only be lost to the profit of that of the states.

So by having the laws of the Union applied by the courts of the individual states, the nation would be delivered, not only to foreign judges, but also to partial judges.

It was not their character alone, moreover, that made the state courts incapable of serving a national end; it was above all their number.

At the moment when the federal Constitution was formed, there were already in the United States thirteen supreme courts of justice from which there was no appeal. Today they number twenty-four. How to accept that a State can endure when its fundamental laws can be interpreted and applied in twenty-four different ways at once! Such a system is as contrary to reason as to the lessons of experience.

So the law-makers of America agreed to create a federal judicial power, in order to apply the laws of the Union and to decide certain questions of general interest which were carefully defined in advance.

All of the judicial power of the Union was concentrated in a single tribunal called the Supreme Court of the United States. But to facilitate the dispatch of affairs, inferior courts were added to assist and were charged with judging with sovereign power cases of little importance or with ruling on more important disputes in the first instance. The members of the Supreme Court were not elected by the people or the legislature; the President of the United States had to choose them with the advice of the Senate.

In order to make them independent of the other powers, they were made irremovable, and it was decided that their salary, once fixed, would be beyond the control of the legislature.26

It was easy enough to proclaim the establishment of a federal judicial system in principle, but a host of difficulties arose the moment its attributions had to be set.

Way of Determining the JurisdictionTN 5 of the Federal Courts

A first question arose. The Constitution of the United States set up, face to face, two distinct sovereignties, represented in terms of judicial structure by two different court systems; no matter what care was taken to establish the jurisdiction of each of these two court systems, you could not prevent frequent conflicts between them. Now, in this case, who would have the right to establish jurisdiction?

Among peoples who form only one and the same political society, when a question of jurisdiction arises between two courts, it is usually brought before a third that serves as arbiter.

This is easily done because, among these peoples, questions of judicial jurisdiction do not have any relation to questions of national sovereignty.

But above the highest court of an individual state and the highest court of the United States, it was impossible to establish any kind of court that was not either one or the other.

So one of these two courts had to be given the right to judge in its own case and to take or accept cognizance of the matter in dispute. This privilege could not be granted to the various courts of the states; that would have destroyed the sovereignty of the Union in fact, after having established it in law; for interpretation of the Constitution would soon have given back to the individual states the portion of independence that the terms of the Constitution took away from them.

By creating a federal court, the desire had been to remove from the courts of the states the right to settle, each in its own way, questions of national interest and, by doing so, to succeed in shaping a uniform body of jurisprudence for the interpretation of the laws of the Union. The goal would not have been reached at all if the courts of the individual states, while abstaining from judging cases considered federal, had been able to judge them by pretending that they were not federal.

The Supreme Court of the United States was therefore vested with the right to decide all questions of jurisdiction.27

That was the most dangerous blow brought against the sovereignty of the states. It thus found itself limited not only by the laws, but also by the interpretation of the laws; by a known limit and by another that was unknown; by a fixed rule and by an arbitrary one. It is true that the Constitution had set precise limits to federal sovereignty; but each time this sovereignty is in competition with that of the states, a federal court must decide.

The dangers, moreover, with which this way of proceeding seemed to menace the sovereignty of the states were not as great in reality as they appeared to be.

We will see further along that, in America, real strength resides more in the provincial governments than in the federal government. Federal judges sense the relative weakness of the power in whose name they act; and they are more likely to abandon a right of jurisdiction in cases where it is granted to them by law, than they are led to claim it illegally.

Different Cases of Jurisdiction

After having recognized the means to set federal jurisdiction, the law-makers of the Union determined the cases in which that jurisdiction must be exercised.

They acknowledged that there were certain litigants who could only be judged by the federal courts, no matter what the subject of the proceedings.

They then established that there were certain proceedings that could only be decided by these same courts, no matter what the qualification of the litigants.

So the person and the matter became the two bases of federal jurisdiction.

Ambassadors represent nations friendly to the Union; everything that involves ambassadors involves in a way the entire Union. When an ambassador is party to a legal proceeding, the proceeding becomes an affair that touches on the welfare of the nation; it is natural that a federal court decides.

The Union itself can be the subject of proceedings; in this case, it would have been contrary to reason as well as to the custom of nations, to bring it for judgment before courts representing a sovereignty other than its own. It is for the federal courts alone to decide.

When two individuals, belonging to two different states, have a legal proceeding, you cannot, without disadvantage, have them judged by the courts of one of the two states. It is safer to choose a court that cannot incite the suspicion of any of the parties, and the court that very naturally presents itself is that of the Union.

When the two litigants are no longer isolated individuals, but states, this reason for equity is joined by a political reason of the first order. Here the status of the litigants gives a national importance to all proceedings; the smallest litigious issue between two states involves the peace of the entire Union.28

Often the very nature of the proceedings must serve as a rule of jurisdiction. Thus all questions that are related to maritime commerce must be settled by federal courts.29

The reason is easy to point out: nearly all these questions get into an estimation of the law of nations. From this perspective, they essentially involve the whole Union in relation to foreigners. Since the sea, moreover, does not fall into one judicial circumscription rather than another, only the national court system can have a claim on legal proceedings that have a maritime origin.

The Constitution has enclosed in a single category nearly all the proceedings that, by their nature, must be under the jurisdiction of the federal courts.

In this regard, the rule that it indicates is simple, but it comprises in itself alone a vast system of ideas and a multitude of facts.

The federal courts, it says, must judge all proceedings that arise in the laws of the United States.

Two examples will make the thought of the law-maker perfectly clear.

The Constitution forbids the states the right to make laws on the circulation of money; despite this prohibition, a state makes such a law. Interested parties refuse to obey it, understanding that it is contrary to the Constitution. The matter must be brought before a federal court, because the grounds for the case are drawn from the laws of the United States.

Congress establishes a tariff law. Difficulties arise over the understanding of this law. Again, the matter must be presented before the federal courts, because the cause for the proceeding is in the interpretation of a law of the United States.

This rule is in perfect agreement with the bases adopted for the federal Constitution.

The Union, as constituted in 1789, had, it is true, only a limited sovereignty, but the desire was that, within this circle, the Union formed only one and the same people.30 Within this circle, it is sovereign. This point set forth and accepted, all the rest becomes easy; for if you recognize that the United States, within the limits posed by their Constitution, form only one people, the rights belonging to all peoples must surely be granted to them.

Now, since the origin of societies, this point is agreed upon: each people has the right to have all questions relating to the enforcement of its own laws judged by its courts. But you answer: the Union is in the singular position that it forms one people only relative to certain matters; for all others, it is nothing. What is the result? At least for all the laws that relate to these matters, the Union has the rights that would be granted to complete sovereignty. The real point of difficulty is knowing what those matters are. This point settled (and we have seen above, while treating jurisdiction, how it was settled), no question truly speaking remains; for once you have established that a proceeding was federal, that is, came within the portion of sovereignty reserved to the Union by the Constitution, it naturally followed that a federal court alone would decide.

So whenever someone wants to attack the laws of the United States, or invoke them in self-defense, it is the federal courts that must be addressed.

Thus, the jurisdiction of the courts of the Union expands or contracts depending on whether the sovereignty of the Union itself expands or contracts.

We have seen that the principal aim of the law-makers of 1789 had been to divide sovereignty into two distinct portions. In one, they placed the direction of all the general interests of the Union; in the other, the direction of all the interests particular to some of its parts.

Their principal concern was to arm the federal government with enough power for it to be able to defend itself, within its sphere, against the encroachments of the individual states.

As for the latter, the general principal adopted was to leave them free in their sphere. Within that sphere, the central government can neither direct them nor even inspect their conduct.

I have indicated in the chapter on the division of powers that this last principle had not always been respected. There are certain laws that an individual state cannot enact, even though the laws apparently involve only that state.

When a state of the Union enacts a law of this nature, the citizens who are harmed by the execution of this law can appeal to the federal courts.b

Thus, the jurisdiction of the federal courts extends not only to all the proceedings that have their source in the laws of the Union, but also to all those that arise in the laws that the individual states have enacted unconstitutionally.

The states are forbidden to promulgate ex post facto laws in criminal matters; the man who is sentenced by virtue of a law of this type can appeal to the federal judicial system.

The Constitution also forbids the states to make laws that can destroy or alter rights acquired by virtue of a contract (impairing the obligations [sic:obligation] of contracts).31

From the moment when an individual believes that he sees a law of his state that harms a right of this type, he can refuse to obey and appeal to the federal justice system.32

To me, this disposition seems to attack the sovereignty of the state more profoundly than all the rest.c

The rights granted to the federal government, for ends clearly national, are defined and easy to understand. Those that are indirectly conceded to it by the article that I have just cited are not easily felt, and their limits are not easily traced. There is, in fact, a multitude of political laws that act upon the existence of contracts, and that could therefore furnish grounds for encroachment by the central power.

The Federal Courts’ Way of Proceeding

I have made known the rights of the federal courts; it is no less important to know how they are exercised.

The irresistible strength of the judicial system, in countries where sovereignty is not divided, comes from the fact that, in those countries, the courts represent the entire nation in a contest with a single individual who has been struck by a judgment. To the idea of law is joined the idea of the force that supports the law.

But in countries where sovereignty is divided, it is not always so. There, the judicial system most often finds itself facing, not an isolated individual, but a fraction of the nation. Its moral power and its physical power are diminished as a result.

So in federal States, the judicial system is naturally weaker; and the one subject to trial, stronger.

The law-maker, in confederations, must constantly work to give the courts a position analogous to the one they occupy among peoples who have not divided sovereignty. In other words, his most constant efforts must strive toward having the federal judicial system represent the nation, and having the one subject to trial represent an individual interest.

A government, whatever its nature, needs to act on the governed in order to force them to give the government what it is owed; it needs to take action against them in order to defend itself from their attacks.

As for the direct action of the government on the governed, in order to force them to obey the law, the Constitution of the United States saw to it that the federal courts, acting in the name of these laws, never had any dealing except with individuals (and that was its highest achievement). In fact, since it had been declared that the confederation formed only one and the same people within the circle drawn by the Constitution, the government, created by this Constitution and acting within its limits, was, as a result, vested with all the rights of a national government, the principal one being to have its injunctions reach ordinary citizens without an intermediary. So when the Union levied a tax, for example, it did not have to apply to the states to collect it, but to each American citizen, according to his share. In turn, the federal judicial system charged with assuring the enforcement of this law of the Union, had to condemn not the recalcitrant State, but the taxpayer. Like the judicial system of other peoples, it found only an individual facing it.d

Note that here the Union itself has chosen its adversary. It has chosen a weak one; it is entirely natural that he succumbs.

But when the Union, instead of attacking, is reduced to defending itself, the difficulty increases. The Constitution recognizes the power of the states to make laws. These laws can violate the rights of the Union. Here, necessarily, the Union finds itself in conflict with the sovereignty of the state that enacted the law. Nothing remains except to chose, from among the means of action, the least dangerous. This means was indicated in advance by the general principles that I stated before.33

You see that, in the case that I have just supposed, the Union would have been able to cite the state before a federal court that would have declared the law void; this would have followed the most natural course of ideas. But, in this way, the federal judicial system would have found itself directly facing a state, something it wanted to avoid as much as possible.

The Americans have thought that it was nearly impossible for a new law, in its execution, not to harm some individual interest.

It is on this individual interest that the authors of the federal constitution rely to attack a legislative measure about which the Union could complain. To this individual interest, they offer a protection.

A state sells lands to a company; one year later, a new law disposes of the same lands in another way, and thus violates the part of the Constitution which forbids changing rights vested by contract. When the one who bought by virtue of the new law presents himself in order to take possession, the owner, who holds his rights from the former law, brings an action before the courts of the Union and has the title of the new owner voided.34 Therefore, in reality, the federal judicial system is grappling with the sovereignty of the state; but it attacks that sovereignty only indirectly and on an application of detail. It thus strikes the law in its consequences, not in its principle. It does not destroy the law; it enervates it.

A final hypothesis remained.

Each state formed a corporation that had a separate existence and separate civil laws; consequently, it could sue or be sued before the courts. A state could, for example, bring suit against another state.

In this case, it was no longer a matter for the Union of attacking a provincial law, but of judging a case in which a state was a participant. It was a case like any other; only the status of the litigants was different. Here the danger noted at the beginning of this chapter still exists. But this time it cannot be avoided; it is inherent in the very essence of federal constitutions that they will always result in creating, in the midst of the nation, individuals powerful enough to make it difficult to use the judicial system against them.

Elevated Rank That the Supreme Court Occupies among the Great Powers of the State

When, after examining the organization of the Supreme Court in detail, you come to consider all of the attributions that it has been given, you easily discover that never has a more immense judicial power been constituted among any people.

The Supreme Court is placed higher than any known court, both by the nature of its rights and by the type of those subject to trial.

In all the civilized nations of Europe, the government has always shown a great reluctance to allow the ordinary judicial system to decide questions that involve the government itself. This reluctance is naturally greater when the government is more absolute. As liberty increases, on the contrary, the circle of the attributions of the courts is always going to widen; but not one of the European nations has yet thought that every judicial question, of no matter what origin, could be left to judges of ordinary law.

In America, this theory has been put in practice. The Supreme Court of the United States is the one and only national court.

It is charged with the interpretation of laws and of treaties; questions relating to maritime trade, and all those generally relating to the law of nations, are exclusively within its competence. You can even say that its attributions are almost entirely political, although its constitution is entirely judicial. Its unique purpose is to have the laws of the Union enforced. And the Union determines only the relations of the government with the governed and of the nation with foreigners; nearly all of the relations of citizens among themselves are governed by the sovereignty of the states.

To this first cause of importance, another still greater must be added. In the nations of Europe, only individuals are subject to trial before the courts; but you can say that the Supreme Court of the United States makes sovereigns appear before it. When the bailiff, climbing the steps of the court, comes to proclaim these few words: “The State of New York versus the State of Ohio,” you feel that you are not within the realm of an ordinary court of justice. And when you consider that one of these litigants represents a million men, and the other, two million, you are astonished at the responsibility that weighs upon the seven judges whose decision is going to delight or sadden such a large number of their fellow citizens.

In the hands of seven federal judges rest unceasingly the peace, prosperity, the very existence of the Union. Without them, the Constitution is a dead letter. To them, the executive power appeals in order to resist the encroachments of the legislative body; the legislature, to defend itself against the undertakings of the executive power; the Union, to make the states obey; the states, to repulse the exaggerated pretensions of the Union; public interest against private interest; the spirit of conservation against democratic instability. Their power is immense; but it is a power of opinion. They are omnipotent as long as the people consent to obey the law; they can do nothing once the people scorn the law. Now, the power of opinion is the most difficult one to exercise, because it is impossible to know its limits exactly. Often it is as dangerous to fall short, as to go beyond those limits.

So the federal judges must be not only good citizens, learned and upright men, qualities necessary for all magistrates, but they must also be statesmen; they must know how to discern the spirit of the times, to brave the obstacles that can be overcome, and to change direction when the current threatens to carry away, with them, the sovereignty of the Union and the obedience due to its laws.

The President can fail without having the State suffer, because the President has only a limited duty. Congress can go astray without having the Union perish, because above Congress resides the electoral body that can change the spirit of Congress by changing its members.

But if imprudent or corrupt men ever came to compose the Supreme Court, the confederation would have to fear anarchy or civil war.

But make no mistake; the root cause of the danger is not in the constitution of the court, but in the very nature of federal governments. We have seen that nowhere is it more necessary to constitute a strong judicial power than among confederated peoples, because nowhere are individual existences, which can struggle against the social body, greater and in better condition to resist the use of the physical force of the government.

Now, the more necessary it is that a power be strong, the more scope and independence it must be given. The more extensive and independent a power, the more dangerous is the abuse that can be made of it. So the origin of the evil is not in the very constitution of this power, but in the very constitution of the State that necessitates the existence of such a power.

How the Federal Constitution Is Superior to the State Constitutions

The federal Constitution differs essentially from the constitutions of the states in the purpose that it intends, but it is highly similar in the means to achieve this purpose. The object of government is different, but the forms of government are the same. From this special point of view, they can usefully be compared.

I think that the federal Constitution is superior to all of the state constitutions. This superiority stems from several causes.

The present Constitution of the Union was formed only after those of most of the states; so the Union could profit from acquired experience.

You will be convinced, nonetheless, that this cause is only secondary, if you consider that, since the establishment of the federal Constitution, the American confederation has increased by eleven new states, and that these new states have nearly always exaggerated rather than mitigated the defects existing in the constitutions of their precursors.

The great cause of the superiority of the federal Constitution is in the very character of the law-makers.

At the time when it was formed, the ruin of the American confederation seemed imminent; it was obvious to all, so to speak. In this extremity, the people chose, perhaps not the men they loved most, but those they respected most.

I have already pointed out above that nearly all the law-makers of the Union had been remarkable by their enlightenment and more remarkable still by their patriotism.

They had all risen in the midst of a social crisis, during which the spirit of liberty had constantly to struggle against a strong and dominating authority. When the struggle ended, and while the excited passions of the crowd were, as usual, still fixed on combating dangers that for a long time no longer existed, these men had stopped; they had cast a calmer and more penetrating eye on their country; they had seen that a definitive revolution was accomplished, and that henceforth the perils that threatened the people could only arise from the abuses of liberty.e What they thought, they had the courage to say, because deep in their hearts they felt a sincere and passionate love for this very liberty; they dared to speak of limiting it, because they were certain of not wanting to destroy it.35

Most of the constitutions of the states give a term of one year to the house of representatives and two years to the senate. In this way the members of the legislative body are tied constantly and in the closest way to the slightest desires of their constituents.

The law-makers of the Union thought that this extreme dependence of the legislature distorted the principal effects of the representative system, by placing in the people themselves not only the source of powers, but also the government.

They increased the length of the electoral mandate in order to allow the deputy greater use of his free will.

The federal Constitution, like the different constitutions of the states, divided the legislative body into two branches.

But in the states, these two parts of the legislature were composed of the same elements and followed the same mode of election. As a result, the passions and will of the majority emerged as easily and found an organ and an instrument as rapidly in one as in the other of the houses. This gave a fierce and hasty character to the making of laws.

The federal Constitution also had the two houses come out of the votes of the people; but it varied the conditions of eligibility and the mode of election. So, if one of the two legislative branches did not represent interests different from those represented by the other, as in certain nations, at least it represented a higher wisdom.

To be a Senator you had to have reached a mature age; and a small assembly, itself already elected, was charged with the election.

Democracies are naturally led to concentrate all social force in the hands of the legislative body. The latter, being the power that comes most directly from the people, is also the one that most partakes of the omnipotence of the people.

So, in the legislative body, you notice an habitual tendency that leads it to gather all kinds of authority within itself.

This concentration of powers, at the same time that it singularly harms the good management of public affairs, establishes the despotism of the majority.

The law-makers of the states have frequently surrendered to these democratic instincts; those of the Union always fought courageously against them.

In the states, executive power is placed in the hands of a magistrate who appears to be placed alongside the legislature, but who, in reality, is only a blind agent and passive instrument of its will. From where would he draw his strength? In the length of his term in office? Generally, he is named for only one year. In his prerogatives? He has, so to speak, none at all. The legislature can reduce him to impotence by granting the execution of its laws to special committees drawn from its midst. If it wanted, it could, in a way, nullify him by taking away his salary.

The federal Constitution has concentrated all the rights of the executive power, as well as all of its responsibility, in a single man. It gave the President a four-year term; it assured him his salary during the entire length of his term in office; it created a group of supporters for him and armed him with a qualified veto. In a word, after carefully drawing the sphere of executive power, it sought, within this sphere, to give the executive power as strong and as free a position as possible.

The judicial power, of all the powers, is the one that, in the state constitutions, remained least dependent on the legislative power.

Nonetheless, in all the states, the legislature retained the authority to set the salaries of judges, which necessarily subjected the former to immediate legislative influence.

In certain states, judges are appointed only for a time, which again removes a large part of their strength and freedom.

In others, legislative and judicial powers are entirely mixed. The Senate of New York, for example, serves as the highest court of the state for certain trials.

The federal Constitution has, on the contrary, carefully separated the judicial power from all the others. In addition, it made judges independent by declaring their salaries fixed and making their office irrevocable.

The practical consequences of these differences are easy to see. It is clear to all attentive observers that the affairs of the Union are conducted infinitely better than the particular affairs of any state.

The federal government is more just and more moderate in its action than the state governments. There is more wisdom in its views, more continuity and intelligent design in its projects, more skill, steadiness and firmness in the execution of its measures.

A few words suffice to summarize this chapter.

Two principal dangers menace the existence of democracies:

The complete subservience of the legislative power to the will of the electoral body.

The concentration, in the legislative power, of all the other powers of government.

The law-makers of the states favored the development of these dangers. The law-makers of the Union did what they could to make them less to be feared.

What Distinguishes the Federal Constitution of the United States of America from All Other Federal Constitutions

The United States of America has not presented the first and only example of a confederation. Without mentioning antiquity, modern Europe has furnished several. Switzerland, the German Empire, the Dutch Republic have been or still are confederations.

When you study the constitutions of these different countries, you notice with surprise that the powers they confer on the federal government are more or less the same as those granted by the American Constitution to the government of the United States. Like the latter, they give the central power the right to make war or peace, the right to raise an army, to levy taxes, to provide for general needs and to regulate the common interests of the nation.

Among these different peoples, however, the federal government has almost always remained deficient and weak, while that of the Union conducts public affairs with vigor and ease.

Even more, the first American Union could not continue to exist because of the excessive weakness of its government. Yet this government, so weak, had received rights as extensive as the federal government of today. You can even say that in certain respects its privileges were greater.g

So several new principles are found in the current Constitution of the United States that are not striking at first, but make their influence profoundly felt.

This Constitution, which at first sight you are tempted to confuse with previous federal constitutions, rests as a matter of fact on an entirely new theory that must stand out as a great discovery in the political science of today.

In all the confederations that have preceded the American confederation of 1789, peoples who combined for a common purpose agreed to obey the injunctions of a federal government; but they retained the right to command and to supervise the execution of the laws of the Union at home.

The American states that united in 1789 agreed not only that the federal government could dictate laws to them, but also that the federal government itself would execute its laws.

In the two cases, the right is the same; only the exercise of the right is different. But this single difference produces immense results. [Such is the power of laws over the fate of societies.]h

In all the confederations that have preceded the American Union of today, the federal government, in order to provide for its needs, applied to the individual governments. In the case where the prescribed measure displeased one of them, the latter could always elude the need to obey. If it was strong it appealed to arms; if it was weak, it tolerated a resistance to the laws of the Union that had become its own, pretended weakness and resorted to the power of inertia.

Consequently, one of these two things has constantly happened: the most powerful of the united peoples, taking hold of the rights of the federal authority, has dominated all the others in its name;36 or the federal government has been left to its own forces. Then anarchy has become established among the confederated peoples, and the Union has fallen into impotence.37

In America, the Union governs not the states, but ordinary citizens. When it wants to levy a tax, it does not apply to the government of Massachusetts, but to each inhabitant of Massachusetts. Former federal governments faced peoples; the Union faces individuals. It does not borrow its strength, but draws upon its own. It has its own administrators, courts, officers of the law, and army.

Certainly the national [sic: state] spirit, collective passions, provincial prejudices of each state still strongly tend to diminish the extent of federal power so constituted, and to create centers of resistance to the will of the federal power. Limited in its sovereignty, it cannot be as strong as a government that possesses complete sovereignty; but that is an evil inherent in the federal system.

In America, each state has far fewer opportunities and temptations to resist; and if the thought occurs, the state can act on it only by openly violating the laws of the Union, by interrupting the ordinary course of justice, and by raising the standard of revolt. In a word, it must suddenly take an extreme position, something men hesitate to do for a long time.

In former confederations, the rights granted to the Union were causes of war rather than of power, since these rights multiplied its demands without augmenting its means of enforcing obedience. Consequently, the real weakness of federal governments has almost always been seen to grow in direct proportion to their nominal power.

This is not so for the American Union; the federal government, like most ordinary governments, can do everything that it has the right to do.

The human mind invents things more easily than words; this is what causes the use of so many incorrect terms and incomplete expressions.j

Several nations form a permanent league and establish a supreme authority that, without acting on ordinary citizens as a national government could, nonetheless acts on each of the confederated peoples, taken as a group.

This government, so different from all the others, is given the name federal.

Next, a form of society is found in which several peoples truly blend together as one for certain common interests, and remain separate and only confederated for all the others.

Here the central power acts without intermediary on the governed, administering and judging them as national governments do, but it acts this way only within a limited circle. Clearly that is no longer a federal government; it is an incomplete national government. So a form of government, neither precisely national nor federal, is found. But here things have stopped, and the new word needed to express the new thing does not yet exist.k

Because this new type of confederation was unknown, all unions have arrived at civil war, or slavery, or inertia. The peoples who composed them have all lacked either the enlightenment to see the remedy to their ills, or the courage to apply them.

The first American Union had also lapsed into the same faults.

But in America, the confederated states, before achieving independence, had been part of the same empire for a long time; so they had not yet contracted the habit of complete self-government, and national prejudices had not been able to become deeply rooted. Better informed than the rest of the world, they were equal to each other in enlightenment; they only weakly felt the passions that ordinarily, among peoples, resist the extension of federal power; and these passions were fought against by the greatest citizens. The Americans, at the same time that they felt the evil, resolutely envisaged the remedy. They corrected their laws and saved the country.

Of the Advantages of the Federal System in General, and of Its Special Utility for Americam

Among small nations, society keeps its eye on everything; the spirit of improvement gets down to the smallest details. Since the weakness of the people profoundly tempers their ambition, their efforts and resources are almost entirely focused on their internal well-being and are not likely to be wasted on the empty illusion of glory. Since the capacities of each one are generally limited, desires are limited as well. The mediocrity of wealth makes conditions nearly equal; and mores have a simple and peaceful air. Thus, considering everything and taking into account various degrees of morality and enlightenment, more comfort, population and tranquillity are usually found in small nations than in large ones.

When tyranny establishes itself within a small nation, it is more troublesome than anywhere else; acting inside a smaller circle, it extends to everything within this circle. Unable to undertake some great objective, it is busy with a multitude of small ones; it appears both violent and meddlesome. From the political world, which is strictly speaking its domain, it penetrates into private life. After dictating actions, it aspires to dictate tastes; after governing the State, it wishes to govern families. But that rarely happens; as a matter of fact, liberty forms the natural condition of small societies. There, government offers too little attraction to ambition, and the resources of individuals are too limited, for sovereign power to be easily concentrated in the hands of one man.n Should it happen, it is not difficult for the governed to unite together and, by a common effort, to overthrow the tyrant and the tyranny at the same time. [≠Liberty is, moreover, something so natural and so easy within a small nation that abuse can hardly be brought about.≠]

So small nations have at all times been the cradle of political liberty. It has happened that most of them have lost this liberty by growing larger, which clearly reveals that liberty is due to the small size of a people and not to the people themselves.

The history of the world provides no example of a large nation that remained a republic for long;38 this has led men to say that the thing was impractical. As for me, I think that it is very imprudent for man to want to limit the possible and to judge the future; the real and the present elude him every day, and he finds himself constantly surprised by the unexpected in the things he knows best. What can be said with certainty is that the existence of a large republic will always be infinitely more at risk than that of a small one.o

All the passions fatal to republics grow with the extent of the territory, while the virtues that serve to support them do not increase in the same measure.p

The ambition of individuals increases with the power of the State; the strength of parties, with the importance of the end that they have in mind; but love of country, which must combat these destructive passions, is not stronger in a vast republic than in a small one. It would even be easy to prove that love of country there is less developed and less powerful. Great riches and profound poverty, large cities, depravity of mores, individual egoism, complexity of interests are so many perils that almost always result from the large size of the State. Several of these things do not harm the existence of a monarchy; some can even work toward its duration. In monarchies, moreover, government has a strength of its own; it makes use of the people and does not depend on them; the more numerous the people, the stronger the prince. But to these dangers, republican government can oppose only the support of the majority. Now, this element of strength is not proportionately more powerful in a vast republic than in a small one. Thus, while the means of attack constantly increase in number and power, the strength of resistance remains the same. It can even be said that it decreases, for the more numerous the people and the more varied the nature of minds and interests, the more difficult it is, as a result, to form a compact majority.

[≠Republican government is fragile by nature. It lasts much more because of the weakness of the attacks directed against it than because of a strength of its own [v: its own power]. It relies only on a certain sentiment of order, virtue and moderation on the part of the governed. The immoderate desires of parties, great riches and great poverty, vast cities, and the profound corruption of mores that they engender, constantly threaten the existence of republics. Now, all of these things are found only among large nations alone. A government that has the source of its power outside of the people can continue to exist for a long time, whatever the opinions of the people; but a republican government has strength only in the support of the majority; the more numerous the people, the harder to form a majority. Here my reasoning is based only upon a numerical calculation.≠]

We have been able to note, moreover, that human passions acquired intensity, not only from the greatness of the end that they wanted to attain, but also from the multitude of individuals who felt them at the same time. There is no one who does not find himself more moved in the middle of an agitated crowd that shares his emotion than if he were to feel it alone. In a large republic, political passions become irresistible, not only because the objective that they pursue is immense, but also because millions of men experience those political passions in the same way and at the same moment.

So it is permissible to say that, in general, nothing is so contrary to the well-being and to the liberty of men as large empires.

Large States have particular advantages, however, that must be recognized.

In them, the desire for power is more passionate among common men than elsewhere. So too the love of glory there is more developed among certain souls who find in the applause of a great people an objective that is worthy of their efforts and appropriate for raising them, in a way, above themselves. There, thought in all fields is given a more rapid and powerful impetus; ideas circulate more freely; large cities are like vast intellectual centers where all the lights of the human mind come to shine and combine. This fact explains for us why large nations bring more rapid progress to enlightenment and to the general cause of civilization than small ones.q It must be added that important discoveries often require a development of national strength of which the government of a small people is incapable; among large nations, the government has a greater number of general ideas; it is more completely free from the routine of antecedents and from local egoism. There is more genius in its conceptions, more boldness in its ways of doing things.

Internal well-being is more complete and more widespread among small nations as long as they remain at peace; but a state of war is more harmful to them than it is to large nations. In the latter, great distance from the borders sometimes allows most people to remain far from danger for centuries. For them, war is more a cause of discomfort than of ruin. [≠Large nations are at war more than small ones, but all things considered, among the large ones, there are more men at peace.≠]

Moreover, in this matter as in many others, there is a consideration that predominates over all the rest: that of necessity.

If there were only small nations and not any large ones, humanity would certainly be freer and happier; but the existence of large nations cannot be avoided.

This introduces into the world a new element of national prosperity, which is strength. What good is it for a people to present a picture of comfort and liberty, if they are exposed each day to devastation or conquest? What good is it that they have manufacturing and commerce, if another people commands the seas and establishes the law for all markets? Small nations are often miserable, not because they are small, but because they are weak; large nations prosper, not because they are large, but because they are strong. So for nations, strength is often one of the first conditions of happiness and even of existence. Because of that, barring particular circumstances, small peoples always end up being violently united with large ones or uniting with them on their own. I know of no condition more deplorable than that of a people able neither to defend itself nor to be self-sufficient.

The federal system has been created to unite the various advantages that result from the large and the small sizes of nations.r

It is enough to look at the United States of America to see all the good that comes to those who adopt this system.

Among large centralized nations, the legislator is forced to give laws a uniform character that does not allow for the diversity of places and mores; never learning about individual cases, he can only proceed by general rules. Men are then obliged to bend to the necessity of legislation, for legislation cannot adapt to the needs and mores of men; this is a great cause of trouble and misery.s

This disadvantage does not exist in confederations. The congress regulates the principal actions of social existence; all the detail is left to the provincial legislatures.

You cannot imagine to what degree this division of sovereignty serves the well-being of each of the states that compose the Union. In these small societies, not preoccupied by the need to defend themselves or to expand, all public power and all individual energy are turned toward internal improvements.t The central government of each state, situated close to the governed, is alerted daily to needs that make themselves felt. Consequently, each year new plans are presented; these plans, discussed in town assemblies or the state legislature and then reproduced in the press, excite universal interest and the zeal of the citizens. This need to improve agitates the American republic constantly and does not trouble them; there, ambition for power is replaced by the love of well-being, a more vulgar, but less dangerous passion. It is an opinion generally shared in America that the existence and duration of republican forms in the New World depend on the existence and the duration of the federal system. A great part of the miseries engulfing the new States of South America is attributed to the desire to establish large republics there, instead of dividing sovereignty.u

As a matter of fact, it is incontestable that in the United States the taste and the practice of republican government were born in the towns and within the provincial assemblies. In a small nation such as Connecticut,v for example, where the important political matter is opening a canal or laying out a roadway, where the state has no army to pay nor war to sustain, and where the state can give to those who lead it neither wealth nor much glory, you can imagine nothing more natural and more appropriate to the nature of things than a republic. Now, this same republican spirit, these mores and these habits of a free people, after being born and developing in the various states, are then applied easily to the whole country. In a way, the public spirit of the Union is itself only a summary of provincial patriotism. Each citizen of the United States transfers, so to speak, the interest inspired in him by his small republic to the love of the common native land. By defending the Union, he defends the growing prosperity of his district, the right to direct its affairs, and the hope of winning acceptance there for the plans for improvement that are to enrich him himself: all things that ordinarily touch men more than the general interests of the country and the glory of the nation.

On the other hand, if the spirit and the mores of the inhabitants make them more suitable than others to cause a large republic to prosper, the federal system has made the task much less difficult. The confederation of all the American states does not show the usual disadvantages of numerous human agglomerations. The Union is a large republic in terms of expanse; but in a way, it can be likened to a small republic, because of the small number of matters that concern its government. Its acts are important, but rare. Since the sovereignty of the Union is hindered and incomplete, the use of this sovereignty is not dangerous to liberty. Nor does it excite those immoderate desires for power and reputation that are so deadly to great republics. Since everything there does not necessarily end up at a common center, you see neither vast cities,w nor enormous wealth, nor great poverty, nor sudden revolutions. Political passions, instead of spreading instantaneously like a firestorm over the whole surface of the country, are going to break against the individual passions and interests of each state.

Within the Union, however, ideas and things circulate freely, as among one and the same people. Nothing stops the rise of the spirit of enterprise. Its government draws upon talents and enlightenment. Within the boundaries of the Union, as within the interior of a country under the same empire, a profound peace reigns. Outside, the Union ranks among the most powerful nations of the world; it offers to foreign trade more than eight hundred leagues of coastline. Holding in its hands the keys to a whole world, it enforces respect for its flag in the far reaches of the seas.x

The Union is free and happy like a small nation, glorious and strong like a large one.y

What Keeps the Federal System from Being within the Reach of All Peoples; And What Has Allowed the Anglo-Americans to Adopt It

[Of all beings, man is assuredly the one best known; and yet his prosperity or miseries are the product of unknown laws of which only a few isolated and incomplete fragments come into our view. Absolute truth is hidden and perhaps will always remain hidden.] The law-maker sometimes succeeds, after a thousand efforts, in exercising an indirect influence on the destiny of nations, and then his genius is celebrated. While often, the geographic position of the country, over which he has no influence; a social state that was created without his support; mores and ideas, whose origin is unknown to him; a point of departure that he does not know, impart to society irresistible movements that he struggles against in vain and that carry him along as well.

The law-maker resembles a man who plots his route in the middle of the sea. He too can navigate the ship that carries him, but he cannot change its structure, raise the wind, or prevent the ocean from heaving under his feet.

I have shown what advantages the Americans gain from the federal system. It remains for me to explain what allowed them to adopt this system; for not all peoples are able to enjoy its benefits.

Accidental vices arising from the laws are found in the federal system; these can be corrected by law-makers. Others are encountered that are inherent in the system; these could not be destroyed by the peoples who adopt it. So these peoples must find within themselves the strength to withstand the natural imperfections of their government.

Among the vices inherent to all federal systems, the most visible of all is the complication of means that they use. This system necessarily brings two sovereignties face to face. The law-maker succeeds in making the movements of these two sovereignties as simple and as equal as possible, and he can enclose both of them within clearly defined spheres of action. But he cannot make it so that there is only one of them, nor prevent them from being in contact at some point.

[The federal system of the United States consists of combining two governments: one, provincial; the other, national.

It is already not so easy to find a people who have the taste and, above all, the habit of provincial government. I have already remarked earlier that, among enterprises that can be attempted, certainly one of the most difficult was to persuade men to attend to their own affairs. It follows that the federal system is hardly ever established except among nations who, independent of one another for a long time, have naturally contracted this taste and these habits to a high degree. Notably, this is what happened in the United States. Before the Revolution, they all recognized the authority of the mother country, but each of them had its individual government as well and did not depend on its neighbor.

Nonetheless, the great difficulty is not finding some peoples who know how to run their own affairs, but finding some who can understand federal sovereignty and submit to it.]

So no matter what is done, the federal system rests on a complicated theory whose application requires, in the governed, the daily use of the light of their reason.z

In general, only simple conceptions take hold of the mind of the people. An idea that is false, but clear and precise, will always have more power in the world than a true, but complicated, idea. It follows that parties, which are like small nations within a large one, are always quick to adopt, as a symbol, a name or a principle that often represents only very incompletely the end that they propose and the means that they employ. But without this symbol, they would be able neither to subsist nor to stir. Governments that rest only on a single idea or single sentiment, easy to define, are perhaps not the best, but they are assuredly the strongest and the most durable.

On the contrary, when you examine the Constitution of the United States, the most perfect of all known federal constitutions, you are alarmed by the many varieties of knowledge and by the discernment that it assumes among those whom it must govern. The government of the Union rests almost entirely on legal fictions. The Union is an ideal nation that exists only in the mind so to speak; intelligence alone reveals its extent and its limits.

Once the general theory is well understood, the difficulties of application remain; they are innumerable, for the sovereignty of the Union is so entangled with the sovereignty of the states that it is impossible at first glance to perceive their limits. Everything is by convention and by artifice in such a government, and it can only suit a people accustomed, for a long time, to running their own affairs, a people among whom political knowledge has penetrated to the lowest levels of society. I have never admired the good sense and practical intelligence of the Americans more than in the way in which they escape the innumerable difficulties that arise from their federal constitution. I almost never met a common man in America who did not, with surprising ease, discriminate between the obligations arising from the laws of Congress and those originating in the laws of his state, and who, after distinguishing the matters that were among the general attributions of the Union from those that the local legislature had to regulate, could not indicate the point at which the jurisdiction of the federal courts began and the limit at which that of the state courts ended.

The Constitution of the United States resembles those beautiful creations of human industry that shower glory and wealth on those who invent them, but that remain sterile in other hands.

This is what Mexico has demonstrated in our times.

The inhabitants of Mexico, wanting to establish the federal system, took as a model and almost completely copied the federal constitution of the Anglo-Americans, their neighbors.39 But while importing the letter of the law, they could not at the same time import the spirit that gives it life. So they are seen constantly encumbered by the mechanism of their double government. The sovereignty of the states and that of the Union, leaving the circle that the constitution had drawn, penetrate each other daily. Still today, Mexico is constantly dragged from anarchy to military despotism, and from military despotism to anarchy.

[But even if a people were advanced enough in civilization and versed enough in the art of government to submit intelligently to so complicated a political theory, it would still not mean that the federal system could meet all their needs.

There is, in fact, a vice inherent in this system that will manifest itself no matter what is done. That is the relative weakness of the government of the Union.]

The second and more destructive of all the vices, which I regard as inherent in the federal system itself, is the relative weakness of the government of the Union.

The principle on which all confederations rest is the division of sovereignty. Law-makers make this division hardly noticeable; they even hide it from view for awhile, but they cannot keep it from existing. Now, divided sovereignty will always be weaker than complete sovereignty.

In the account of the Constitution of the United States, we saw how artfully the Americans, while enclosing the power of the Union within the limited circle of federal governments, succeeded in giving it the appearance and, to a certain extent, the strength of a national government.

By acting in this way, the law-makers of the Union reduced the natural danger of confederations; but they were not able to make it disappear entirely.

The American government, it is said, does not address itself to the states; it applies its injunctions directly to the citizens and bends them, separately, to the work of the common will.

But if federal law collided with the interests and prejudices of a state, should it not be feared that each of the citizens of this state would believe himself interested in the cause of the man who refuses to obey? When all the citizens of the state found themselves thus harmed at the same time and in the same way by the authority of the Union, the federal government would seek in vain to isolate them in order to combat them. They would instinctively feel that they must unite to defend themselves, and in the portion of sovereignty left for their state to enjoy, they would find an organization already prepared. Fiction would then disappear and give way to reality, and you would be able to see the organized power of one part of the territory joining battle with the central authority.

[This is, moreover, the spectacle most recently presented by South Carolina. The regulations of the United States concerning the tariff had become completely unpopular in Carolina; the state legislature took the initiative and suspended the enforcement of the federal law. This result is inevitable. When the interest or passions of men are left a powerful means of satisfaction, you can be assured that legal fictions will not long prevent them from noticing and making use of that means. ≠This is so well understood even in America that, no matter how large certain states already are, care has been taken not to create district assemblies that could represent a collective resistance. The legislature never has to make anything obey, other than towns, without links to each other.≠

Former federal constitutions obliged the states to act. The Constitution of the United States only obliges them to allow action, an essential difference that makes resistance very rare; for it is very much easier to refuse to act than to prevent someone else from acting. But once what you resolved simply to endure reaches a certain level of pain, the reluctance that men have to take initiative does not take long to disappear, and the precaution of the law-maker is found wanting.

The principle of federal law is that the Court of the United States must endeavor to judge only individuals. In this way, it does [not (ed.)] generally attack the laws of the states, which reduces the danger of a collision between the two sovereignties. But if, in a particular interest, it violates an important state law, or harms a general state principle or interest, the precautions of the law-maker are again useless; and the struggle, real if not obvious, is between the harmed state, represented by a citizen, and the Union, represented by its courts. The Constitution gives the Union . . . [text of note 40 (ed.)].

It is enough, moreover, to see in what a persuading and conciliatory manner the federal government calls for the execution of laws, in order to judge that, despite appearances and the efforts of the law-maker, the federal government constantly finds itself facing not individuals, but sovereigns.

It is even easy to go further, and it must be said with the famous Hamilton in the Federalist that of the two sovereignties, the stronger is assuredly the sovereignty of the state.

You can even go further . . . [cf. infra (ed.)] . . .]

I will say as much about the federal judicial system. If, in a particular trial, the courts of the Union violated an important state law, the real, if not obvious, struggle would be between the harmed state, represented by a citizen, and the Union, represented by its courts.40

You must have little experience in the ways of this world to imagine that, after leaving the passions of men a means of satisfaction, you will always prevent them, with the aid of legal fictions, from noticing and making use of that means.

So the American law-makers, while making the struggle between the sovereignties less probable, did not destroy the causes.

You can even go further and say that they were not able to secure preponderance to the federal power in case of conflict.a

They gave the Union money and soldiers, but the states retain the love and the prejudices of the people.

The sovereignty of the Union is an abstract thing connected to only a small number of external matters. The sovereignty of the states is felt by all the senses; it is understood without difficulty; every moment, it is seen in action. One is new; the other was born with the people themselves.

The sovereignty of the Union is a work of art. The sovereignty of the states is natural; it exists by itself, without effort, like the authority of the father of a family.

The sovereignty of the Union touches men only through a few general interests; it represents an immense and distant country, a vague and indefinite sentiment. The sovereignty of the states envelops each citizen in a way and catches him every day by details. It is the state that takes responsibility for guaranteeing his prosperity, his liberty, his life; at every moment, it influences his well-being or his misery. The sovereignty of the states rests on memories, on habits, on local prejudices, on the egoism of province and of family; in a word, on all the things that make the instinct for native land so powerful in the heart of man. How can its advantages be doubted?

Since the law-makers cannot prevent the occurrence of dangerous collisions between the two sovereignties that are brought face to face by the federal system, their efforts to turn confederated peoples away from war must be joined with particular dispositions that carry them toward peace.

It follows that the federal pact cannot exist for long if, among the peoples to whom it applies, a certain number of conditions for union are not found that make this common life easy for them and facilitate the task of government.

Thus, to succeed, the federal system needs not only good laws, but also favorable circumstances.

All peoples who have been seen to form a confederation have had a certain number of common interests that serve as the intellectual bonds of the association.

But beyond material interests, man still has ideas and sentiments. For a confederation to last for a long time, there must be no less homogeneity in the civilization than in the needs of the diverse peoples who constitute it. The civilization of a canton in Vaud compared with that of a canton in Uri is like the XIXth century compared with the XVth; so Switzerland has never truly had a federal government. The union among the different cantons exists only on the map; and that would be clearly seen if a central authority wanted to apply the same laws over the whole territory.b

[There are men who pretend that one of the advantages of federal constitutions is to allow each portion of the same empire to live entirely in its own way, without ceasing to be united. That is true, if confederation means a kind of offensive and defensive league, by means of which different peoples unite to repel a common danger and remain strangers to each other for everything else. But if, among confederated peoples, you want to create a common existence and a true national government, it is absolutely necessary that their civilization be homogeneous in nature. This necessity makes itself felt even much more in confederations than in monarchies, because in order to be obeyed, government has much more need for the support of the governed in the first than in the second.

The federal system allows and favors diversity in laws dealing with specifics, which is a great good; but it often resists uniformity in general laws, which is a great evil.]

In the United States there is a fact that admirably facilitates the existence of the federal government. The different states not only have more or less the same interests, the same origin and the same language, but also the same degree of civilization; this almost always makes agreement among them easy. I do not know if there exists any European nation, however small, that, in its different parts, does not present a less homogeneous face than the American people whose territory is as large as half of Europe.

From the state of Maine to the state of Georgia, there are about four hundred leagues. However, less difference exists between the civilization of Maine and that of Georgia than between the civilization of Normandy and that of Brittany. So Maine and Georgia, placed at two extremities of a vast empire, naturally find more real ease in forming a confederation, than Normandy and Brittany, which are separated only by a stream.

With these opportunities, which the mores and habits of a people offer to the American law-makers, are joined others that arise from the geographic position of the country. It is principally to the latter that the adoption and maintenance of the federal system must be attributed.c

[Despite all these obstacles, I believe federal governments still more appropriate for maintaining internal peace and for favoring, over a vast empire, the peaceful development of social well-being, than for struggling with advantage against foreign enemies.

It is the difficulty that confederations find in sustaining great wars that makes so many peoples incapable of enduring federal government.]

The most important of all the actions that can mark the life of a people is war. In war, a people acts as a single individual vis-à-vis foreign peoples; it fights for its very existence.

As long as it is only a question of maintaining peace within the interior of a country and of favoring prosperity, skill in the government, reason among the governed, and a certain natural attachment that men almost always have for their country can easily suffice. But for a nation to be able to wage a great war, the citizens must impose numerous and painful sacrifices on themselves. To believe that a large number of men will be capable of submitting themselves to such social exigencies, is to know humanity very badly. [Were the necessity of war to be universally acknowledged, the natural inclination of the human mind is to reject the annoying consequences of the principle that it previously accepted. So once the principle of war is accepted, an authority capable of forcing individuals to bear its consequences must be found somewhere.]

It follows that all peoples who have had to wage great wars have been led, almost despite themselves, to augment the forces of the government. Those who have not been able to succeed in doing so have been conquered. A long war almost always puts nations in this sad alternative; their defeat delivers them to destruction, and their triumph, to despotism.

[There is a great nation in Europe where the forces of society [v: governmental forces] are centralized in such a way that in case of war, a drumbeat assembles the entire nation, so to speak, around its leader, like the inhabitants of a village. This nation, apart from its courage, must have a great advantage over others for waging war; on several occasions, therefore, we have seen it dominate all of Europe by force of arms.

The fact is that to draw from people the enormous sacrifices of men and money that war requires and to concentrate, in one place and at a given time, all national forces, nothing less is required than the efforts of complete sovereignty.

Now, the inevitable evil of confederations, I have already said, is the division of sovereignty. In the federal system, not only is there no administrative centralization or anything approaching it, but also governmental centralization itself exists only very incompletely. That is always a great cause of weakness when it is a question of defense against peoples among whom governmental centralization exists.

In the federal Constitution of the United States . . . [cf. infra (ed.).

So, in general, it is during a war that the weakness of a government is revealed in a most visible and dangerous manner; and I have shown that the inherent vice of federal governments was to be very weak.

In the federal system, not only is there no administrative centralization or anything approaching it, but also governmental centralization itself exists only incompletely. That is always a great cause of weakness, when defense is necessary against peoples among whom governmental centralization is complete.

In the federal Constitution of the United States, of all federal constitutions, the one where the central government is vested with the most real strength, this evil still makes itself acutely felt. [The law gives Congress, it is true, the right to take all measures required by the interest of the country, but the difficulty is to exercise such a right. If Congress, pressed by urgent needs, comes to impose on the governed sacrifices equal to the dangers, the discontent of those individuals who suffer does not fail to find a place of support in the sovereignty of the states, or at least in the ambition of those who lead the states and who, in turn, want the support of the malcontents. The states that do not want to wage war, or to whom the war is useless or harmful, easily find in the interpretation of the Constitution the means to refuse their support. The physical and, above all, the moral force of the nation is considerably reduced by it, for even the possibility of such an event renders the federal government weak and slow to act; it fills the government with hesitations and fears and prevents it from even attempting all that it could do.

“It is evident,” says Hamilton in the Federalist, no. 12, “from the state of the country, from the habits of the people, from the experience we have had on the point itself that it is impracticable to raise any very considerable sums by direct taxation.” The direct tax is in fact the most visible and burdensome of taxes; but at the same time, it is the only one that can always be resorted to during a war.]

A single example will allow the reader to judge.

The Constitution gives Congress the right to call the state militias into active duty when it is a matter of suppressing an insurrection or repelling an invasion. Another article says that in this case the President of the United States is the Commander in Chief of the militia.

At the time of the War of 1812, the President ordered the militias of the North to move toward the national borders; Connecticut and Massachusetts, whose interests were harmed by the war, refused to send their contingents.

The Constitution, they said, authorizes the federal government to use the militias in cases of insurrection or invasion; but in the present situation there was neither insurrection nor invasion. They added that the same Constitution that gave the Union the right to call the militias into active service, left the states the right to appoint the officers. It followed, according to them, that even in war, no officer of the Union had the right to command the militias, except the President in person. But this was a matter of serving in an army commanded by someone other than him.

These absurd and destructive doctrines received not only the sanction of the Governors and the legislature, but also that of the courts of justice of these two states; and the federal government was forced to find elsewhere the troops that it needed.41

[A fact of this nature proves, better than all that I could say, the inability the American Union would have to sustain a great war, even with the improved organization that the 1789 Constitution gave it.

Allow for a moment the existence of such a nation in the midst of the aggressive peoples of Europe where sovereignty is unified and omnipotent, and the relative weakness of the American Union will become for you a proven and plain truth.]

So how is it that the American Union, all protected as it is by the relative perfection of its laws, does not dissolve in the middle of a great war? It is because it has no great wars to fear.e

[In general, we must give up citing the example of the United States to prove that confederations can sustain great wars, for the Union has never had a single one of this nature.

Even that of 1812, which the Americans speak about with such pride, was nothing compared to the smallest of those that the ambition of Louis XIV or the French Revolution brought about in Europe. The reason is simple.]

Placed in the center of an immense continent, where human industry can expand without limits, the Union is almost as isolated from the world as if it were enclosed on all sides by the ocean.f

Canada numbers only a million inhabitants; its population is divided into two enemy nations. The rigors of climate limit the extent of its territory and close its ports for six months of the year.

From Canada to the Gulf of Mexico, there are still a few, half-destroyed, savage tribes that six thousand soldiersg drive before them.

In the South, the Union at one point touches the empire of Mexico; probably great wars will come from there one day [if the Anglo-Americans and the Mexicans each continue to form a single, unified nation. In Mexico, in fact, there is a numerous population that, different from its neighbors by language, religion, habits and interest [broken text (ed.). But, for a long time still, the little developed state of its civilization, the corruption of its mores and its poverty will prevent Mexico from taking an elevated rank among nations. As for the great powers of Europe, their distance makes them little to be feared.^O

So the great happiness of the United States is not to have found a federal constitution that allows it to sustain great wars, but to be so situated that there are none to fear.

No one can appreciate more than I the advantages of the federal system. There I see one of the most powerful devices favoring prosperity and human liberty. I envy the fate of nations permitted to adopt it. But I refuse, nonetheless, to believe that confederated republics could struggle for long, with equal strength, against a nation where governmental power would be centralized.

The people who, in the presence of the great military monarchies of Europe, would come to divide sovereignty, would seem to me to abdicate, by this fact alone, its power and perhaps its existence and its name.

Admirable position of the New World where man has only himself as an enemy. To be happy and free, he only has to want to be.

[a. ] The drafts contain the following note, probably meant to announce the publication of the book:

[a. ] Ideas of the preface./

Irresistible movement of democracy, great fact of the modern world. Importance of this fact superior to all questions of time and of internal politics. America showing this fact come to its completion.

Goal of this work to give accurate notions about this fact; moreover, I do not judge this fact. I do not even believe that there is anything of an absolute goodness in institutions. Montesquieu ...

Ease of criticizing me. I know that nothing will be easier than to criticize this book, if anyone ever thinks of examining it critically. You will have only to contrast certain particular facts to certain of my general ideas. Nothing is easier; there are facts and arguments for all doctrines. For you to judge me, I would like you to want to do what I did, to see an ensemble of facts and to come to a decision based on the mass of reasons. To whoever will do that and then does not agree with me, I am ready to submit. For if I am sure of having sincerely sought the truth, I am far from considering myself as certain to have found it.

To contrast an isolated fact to the ensemble of facts, a detached idea to the sequence of ideas.

It isn’t that I don’t have set ideas, but they are general (for there is absolute truth only in general ideas). I believe that tyranny is the greatest evil, liberty the first good. But as for knowing what is most appropriate for preventing the one and creating the other among peoples and knowing if all peoples are made to escape tyranny, that is where doubt begins (YTC, CVh, 3, pp. 96-97).

[b. ] The criticism of this passage (YTC, CIIIb, 1, p. 7) made by Louis de Kergorlay has been published in Correspondance avec Kergorlay (OC, XIII, 1, p. 367).

[c. ] In a first version of the drafts:

[d. ] This first paragraph differs a bit from the manuscript: “There is a fact that more than all the rest attracts the attention of the European upon his arrival on the shores of the New World. A surprising equality reigns there among fortunes; at first glance minds themselves seem equal. I was struck, like others, at the sight of this extreme equality of conditions and I discovered without difficulty ...”

[e. ] In the margin: “≠I remember that I saw something analogous in France; I think that you can usefully examine the effects in the two countries, and I conceive the idea of the book.≠” Another version is presented to the side that specifies: “≠in Europe and principally in my own country.≠”

The version not struck out in the manuscript says: “... appeared to me ready to take power among us.” Hervé de Tocqueville remarks: “The word ready does not seem good to me. Besides, isn’t it too absolute relative to what is still happening at the moment among us and to the government that succeeded the Restoration?”

Next to this observation, another is found, probably from Édouard de Tocqueville, brother of Alexis: “I also agree that this expression must be softened” (YTC, CIIIb, 1, p. 9).

The criticisms of Hervé de Tocqueville, father of Alexis, of Edouard and Hippolyte de Tocqueville, his brothers, and those of his friends Gustave de Beaumont and Louis de Kergorlay, made at the time of reading a copy of the manuscript of the first Democracy, are known to us thanks to a copy in Bonnel’s hand. The latter does not identify the authors. Nonetheless, the written comments can be attributed to them without great difficulty, by taking into account tone, style, and the following facts: the observations of Louis de Kergorlay consisted of small slips of paper inserted into the manuscript (only a few of them remain relating to the introduction and to the last section of chapter X of the 1835 part); certain of his notes on the introduction have been published in the correspondence of Tocqueville and Kergorlay (cf. OC, XIII, 1, pp. 364-68; note that the list reproduced on p. 368 is Tocqueville’s, not Kergorlay’s); all comments using the vous form can be attributed to Beaumont, who always used vous with Tocqueville, in distinction to the members of Tocqueville’s family and Kergorlay; finally a letter included in the critical observations (reproduced in note c for p. 142) and some sentences of the first readers of the manuscript inform us that the notes found alongside the commentaries of Hervé were written by Édouard de Tocqueville. By elimination, some remaining less interesting comments could be by Hippolyte, older brother of Alexis. Certain reflections inserted between texts seem to us to be by Alexis himself.

The whole of these commentaries are found at the Beinecke Library under the classification CIIIb. There are also a few brief commentaries by Hervé de Tocqueville for chapter IX of the second part of the first volume of 1835 under the classification YTC, CVh, 3, pp. 14-17.

[f. ] At the top of the sheet appears, crossed out, the beginning of the section importance of what precedes in relation to europe, the conclusion of chapter 9 of the second part of volume II, constituting at the start the conclusion of the book (since chapter 10 was added at the last moment). This fact, as well as numerous similarities and displacements of paragraphs between the introduction and the conclusion of chapter 9, indicate that the two chapters were very likely written at the same time, probably at the end of the spring or at the beginning of the summer of 1834.

[g. ] In the manuscript: “... is reaching completion among us.”

Hervé de Tocqueville: “This sentence seems too absolute to me for the reasons that I have just enumerated a short while ago; instead of the words reaching completion, I would like better seems due to take place.”

Édouard de Tocqueville: “That is right” (YTC, CIIIb, 1, p. 9).

[j. ] The manuscript says “1370.” The correct date is indeed 1270.

[k. ] In the manuscript: “... in order to pull down the aristocracy.”

Hervé de Tocqueville: “Aren’t the words pull down too absolute here?”

Édouard de Tocqueville: “Perhaps humble would be better” (YTC, CIIIb, 1, p. 10).

[m. ] Hervé de Tocqueville: “I would like better: they suffered the people, etc” (YTC, CIIIb, 1, p. 10).

[n. ] Hervé de Tocqueville:

Édouard de Tocqueville:

[o. ] In the margin: “<Letters of exchange, the most democratic of all wealth.>“

[p. ] In the manuscript: “The Catholic priest and the sectarian, the jurist and the poet, the financier and the learned man, the manufacturer and the navigator, kings, nobles themselves, each worked for the people. The people profited from all efforts. Those who had in view ...”

[q. ] This sentence has not failed to provoke numerous commentaries. From it certain commentators have been able to conclude a bit quickly that Tocqueville was fatalistic. Thus François Furet (“Le système conceptuel de la Démocratie en Amèrique,” in Michael Hereth and Jutta Höffken, Alexis de Tocqueville. Zur Politik in der Demokratie, Baden Baden: Nomos, 1981, pp. 19-52, especially pp. 23 and 28) sees in Tocqueville the development of the idea of inevitability already present in Chateaubriand. If it is incontestable that this paragraph acknowledges a destiny of a providential nature for the idea of equality, the rest of the book, and all of Tocqueville’s work, is no less a plea in favor of liberty against all forms of fatalism. Marvin Zetterbaum (Tocqueville and the Problem of Democracy, Stanford: Stanford University Press, 1967, pp. 15-19) attempted to resolve this contradiction by attributing to Tocqueville, in this passage, motives of the kind for persuasion and pedagogy: the latter would have insisted on the providential character of democracy in order to take advantage of the religious sentiments of the French aristocracy of the period and thus to persuade the French aristocracy not to oppose the march of democracy. Other authors, in particular Wilhelm Hennis, used a similar argument to see in Tocqueville less of a political thinker than a rhetorician (in the positive sense of the term). Without getting into a discussion of the rhetorical value of Tocqueville’s work (what political discourse is not rhetorical?), it is necessary, nonetheless, to point out that in other places in the book Tocqueville sees in the inevitable character of political equality the result of social equality and of the cartesian method. This time the argument has psychological bases. If one time, even if in the middle of revolutionary disorders, men have had the experience of equality or have thought of themselves as equal, it is very difficult afterward to make them accept social inequality and political differences. So social equality is inevitable if it has existed previously, if only for a short moment, and if you accept the principle according to which social conditions determine political life.

The development of social equality remains to be explained. To understand it, it is indispensable to refer to a little known text of Tocqueville, drafted when he worked on Democracy: “Mémoire sur le paupérisme” (Mémoires de la société académique de Cherbourg, 1835, pp. 293-344, reproduced in Commentaire XXIII (1983): 630-36; XXIV, pp. 880-88). There Tocqueville sketches a general history of civilization. Almost literally following the Rousseau of Discours sur l’origine de l’inégalité, he offers a picture according to which men are equal solely when, coming out of the forests, they seek to associate together with their fellow men in order to gain sufficient food and shelter against the elements. Inequality owes its origin to ownership of territory which, in turn, produces the aristocracy.

The process of equality of conditions is dependent on the increase in intellectual and material needs. Tocqueville writes again:

Equality is consequently the direct result of a law of the evolution of intelligence, and only intermediately, like all laws, a product of Providence. Finally, it must be recalled that Tocqueville is content to note here what the entire book will demonstrate and make convincing by the development of precise arguments. (See Correspondance avec Kergorlay,OC, XIII, 1, p. 375; according to André Jardin, this letter in reality would have been written to Eugène Stoffels.)

[r. ] Democracy! Don’t you notice that these are the waters of the flood? Don’t you see them advance constantly by a slow and irresistible effort? <Already they cover the fields and the cities, they roll over the destroyed battlements of fortified castles and come to wash against the steps of thrones.> You withdraw, the waves continue their march. You flee, they run behind you. Here you are finally in your last refuge and scarcely have you sat down to take a breath when the waves have already covered the space that still separates you from them. So let us know how to face the future steadily and with open eyes. Instead of wanting to raise impotent dikes, let us seek rather to build the holy [v: tutelary] ark that must carry the human species over this ocean without shores.

But this is what hardly occupies us already placed in the middle ...

It would be very insane to believe that we have seen the end of this great revolution. This movement continues, no one can say where it will stop. For we are already lacking terms of comparison. Conditions are more equal among us than they have ever been in any time and in any country of the world.

Thus the very grandeur of what is done prevents us from foreseeing what can still be done.

What will the probable consequences of this immense social revolution be? What new order will emerge from the debris of the one that is falling? Who can say? The men of the IVth century, witnesses to the barbarian invasions, gave themselves over, like us, to a thousand conjectures, but no one thought to foresee the universal establishment of the feudal system that followed the ruin of Rome in all of Europe. To discern effects without going back to causes, to judge what is without knowing what will be, isn’t that moreover the whole of human destiny? We see that the sun changes place and that it advances constantly toward other heavens, we recognize that its movement is regulated, we feel that it obeys the hand of the Creator, but we will not be able to determine the force that makes it move and we are carried along with the sun toward a still unknown point in the universe.

In the middle of this impenetrable obscurity of the future, however, the eye sees some shafts of light. You can glimpse even now that the centuries of limited monarchy are rapidly passing and that modern societies are carried by a force superior to that of man either toward the republic or toward despotism and perhaps alternately from one to the other. As for me, I admit, in this century of liberty I fear for the future liberty of the human species. I [do not (ed.)] draw my fears from the past, which cannot be reproduced, but from the very nature of man, which does not change.

I see that by a strange oddity of our nature the passion for equality, which should decrease along with inequality of conditions, on the contrary increases as conditions become equal. In proportion [that (ed.)] the trace of hierarchies disappears, that passion alone seems to rule the human heart. Now, men [have (ed.)] two ways to be equal. They can all have the same rights or all be equally deprived of rights, and I tremble at the idea of the choice that they are going to make when I see the little care that is taken to (illegible word) [instruct? (ed.)] them, when I think how much more difficult it is to live free than to vegetate in slavery. I know that there are many honest men who are scarcely frightened by this idea and who would ask no better than to sleep peacefully in the arms of despotism while stammering some words about liberty. But my tastes, like my reason, distance me from them. Those who want thus to achieve order by way of despots hardly know what they desire. Liberty sometimes happens to make light of the existence of men, to be lavish with the resources of society, to disturb souls and to make beliefs waver, but despotism attacks all these things in their principle and in their [broken text (ed.)] (YTC, CVh, 3, pp. 27-30).

From the variant of this text (YTC, CVb, pp. 30-32, 26-31), the following details will be retained (pp. 29-30):

[s. ] Hervé de Tocqueville: “The word effort that I advised deleting a bit above is found again here. Is the word generation suitable? It includes the idea of unanimity of action which will certainly not be found against democracy in the present generation” (YTC, CIIIb, 1, pp. 12-13).

[t. ] In the margin: “≠The democratic revolution that carries us along will not retreat after having triumphed for seven hundred years over so many obstacles.≠”

[u. ] This paragraph and the preceding one do not exist in the manuscript. In their place, you find this: “If, to want to stop the development of democracy, is to struggle against God himself, what then remains for men to do if not to accommodate themselves to the social state that Providence imposes on them?”

The two new paragraphs were probably added following this suggestion by Louis de Kergorlay:

[v. ] In the manuscript: “... offer today the most terrible of spectacles.”

Hervé de Tocqueville: “The most terrible here is too strong an expression, since the author says farther along that you must not yet despair of being able to direct the movement.”

Édouard de Tocqueville: “The word terrible does not seem to me very good either; this expression which prepares for something frightening is not justified by what follows” (YTC, CIIIb, 1, p. 13).

[w. ] It would be falling into a great error to believe that the period in which we live resembled any other and that the habitual routine of human passions could be applied to it equally. At the moment when I am speaking, the destinies of the Christian world are in suspense and nations find themselves in a position unique in their lives. The movement that carries them along is already too strong to be able to hope to stop it and not yet strong enough to despair of directing it.

At the period in which we are, what are the destinies of a man, the fortune of a law, the successes of a party? These interests of one day disappear before an interest a thousand times greater still, that touches all men and all parties equally and that must be the goal of all laws. Today the question is no longer only knowing what progress civilization will make, but what the fate of civilization will be, not what laws will regulate property, but what the very principle of property will be. It is no longer only a matter of regulating political rights, but civil rights, inheritance, paternity, marriage like the right to vote [v: property qualification].

The time has passed when you struggled to conquer or to keep, not some liberty, but all liberties together, up to that of living.

Today, in a word, you must not forget, it is still much more a matter of the very existence of society than of the forms of the government.

You can no longer have anything except despotism or the republic.

Despotism such as our fathers never knew in any period of history, Roman or Byzantine despotism, mixture of corruption [v: plunder], barbarism, brutality and subtlety, of obsequiousness and of arrogance, no more collective resistance, no more esprit de corps, family honor, aristocratic (four illegible words). Honest men who want absolute power today do not know what they want. They will no longer have the good absolute power of the old monarchy, moderated by mores ... but the absolute power of the Roman Empire ... (YTC, CVh, 3, pp. 20-21, 21-22).

[x. ] This affirmation is central and cannot be minimized. Criticism has too generally put the accent on Tocqueville as a traveler, observer of mores and institutions, historian foreshadowing the sociologist. Whereas, the objective that Tocqueville is fixed upon is above all political. The fact that this “science” is defined in terms that to us signal more sociology, history, or psychology must not diminish its importance. Like all political thinkers, like Montequieu or Rousseau, Tocqueville wants to try to rethink what he calls “political science” and to redefine it. He will not cease to come back to the question of the language used to designate concepts and new realities; he will introduce neologisms. It is also the meaning of the memorable speech delivered at the Academy of Moral and Political Sciences in which the author presents himself as a political theorist. It is precisely his talents as a theoretician, he thinks, that have prevented him from making a political career:

For Tocqueville, political science is a science based on the faculties and eternal instincts of human nature; it spreads from philosophy to the civil law, from theory to written laws and to facts. Such an upside down pyramid is conceived so that the closer you get to facts, the farther you get from generalities: “There is no commentator who does not often rely upon the abstract and general truths that writers on politics have found, and the latter need constantly to base their theory on particular facts and on the studied institutions that commentators have revealed or described” (ibid., p. 305). Parallel to this science exists the art of governing, politics of the practical order, able to be modified constantly. The degree of civilization of a people is always proportional to the complexity of its political science. In other words, the more civilization, the more elaborate the political science; a new world demands as well a new political science:

[y. ] Hervé de Tocqueville: “I do not know if you can use the expression for a world entirely new while speaking of old Europe. I know well that it is a matter of the political world, but the changes there are not so abrupt that world entirely new applies very exactly.”

Édouard de Tocqueville: “Current society is certainly entirely new by comparison with that of forty years ago” (YTC, CIIIb, 1, p. 13).

[z. ] “The French Revolution did the same good as the Nile that fertilizes the fields of Egypt by covering them with muck” (YTC, CVh, 3, p. 97).

[a. ] This idea is found in the fourth lecture of Guizot’s course on civilization in France. “The revolution that the last century caused to burst forth was a social revolution; it was much more concerned with changing the reciprocal situation of men than their internal and personal dispositions; it wanted to reform the society rather than the individual” (François Guizot, Histoire de la civilisation en France in Cours d’histoire moderne, Brussels: Hauman, 1839, p. 160). Tocqueville attended this course on the history of civilization in France taught by Guizot at the Sorbonne in 1829-1830. The notes for the course, from 11 April 1829 to 29 March 1830, are preserved. His correspondence indicates nonetheless that he attended the course before the month of April (see Correspondance avec Beaumont,OC, VIII, 1, pp. 76-77). Tocqueville, in a letter to Beaumont, dated 30 August 1829 (OC, VIII, 1, pp. 80-81), asserts that he has already read “most of Guizot” and that he found him so “prodigious” that he proposes to his friend to read Guizot with him during the winter. Reading Guizot enlightened him notably about the IVth century (note r from p. 12 bears a reference to the same century). Several times, furthermore, Tocqueville will allude in the Democracy to the eighth lecture of the Cours. Two years later, when he is in America, he writes to his friend and colleague Ernest de Chabrol: “We cannot find here a book that is very necessary to us for helping us analyze American society; this is the lectures of Guizot, including what he said and published three years ago on Roman society and the Middle Ages” (New York, 18 May 1831, YTC, BIa2). It is following Guizot, in the fourth lecture of the Cours, that Tocqueville divides his first notes on American society into civil state and social state.

Guizot did not fail to find himself in Tocqueville’s work. In De la démocratie en France (janvier 1849) (Brussels: J. Petit, 1849), whose title alone makes explicit reference to Tocqueville, he seems to blame the latter for having taken the concept of equality and having transformed it into a universal process that pushes irremediably toward popular sovereignty while making the dominion of the middle classes disappear by its momentum. It is not the only time, as we will see, that Tocqueville repeats an idea of Guizot for his particular ends.

See Luis Díez del Corral, El pensamiento político de Tocqueville (Madrid: Alianza Universidad, 1989), pp. 353-91; Aurelian Craiutu, Liberalism Under Siege: The Political Thought of the French Doctrinaires (Lanham, Md.: Lexington Books, 2003), pp. 87-122.

[b. ] Édouard de Tocqueville: “How can a revolution take place in the material aspect of society without the ideas, laws, habits and mores seconding it? So what then do you call the material aspect of society?” (YTC, CIIIb, 1, p. 14).

[c. ] Hervé de Tocqueville: “I am afraid that some might respond to the author that these shepherds were really wolves. You will avoid this disadvantage by generalizing less, by putting a portion of the nobles” (YTC, CIIIb, 1, p. 14).

[d. ] “For nearly ten years I have been thinking a part of the things that I revealed to you just now. I was in America only to enlighten myself on this point,” Tocqueville mentions to Kergorlay (?) in a letter dated from 1835 (?) (OC, XIII, 1, p. 374). See note q for p. 12.

A certain number of the constituent ideas of the Democracy already appear in a letter from Tocqueville to Charles Stoffels, dated Versailles, 21 April 1830 (that is, nearly a year before the departure for the United States). This letter is reproduced in appendix V.

[e. ] Mass floating in the middle, inert, egoistic, without energy, without patriotism, sensual, sybaritic, that has only instincts, that lives from day to day, that becomes in turn the plaything of all the others./

Moderation without virtue, nor courage; moderation that is born from cowardice of the heart and not from virtue, from exhaustion, from fear, from egoism; tranquillity, that does not come about because you are well-off, but because you do not have the courage and the energy necessary to seek something better. Debasement of souls.

The passions of old men that end in impotence (YTC, CVh, 3, pp. 36-37).

[f. ] There are two states of society that I imagine without difficulty, the one that has been, the other that could be.

We have left the virtues of the old order without taking the ideas of the new order.

We have thrown pell-mell behind us the vices and the virtues of our ancestors, their habits, their ideas, their mores, and we have put nothing in their place (YTC, CVh, 3, pp. 106-107).

aristocratic and monarchical system. our fathers.

• 1.Love of the King.
• 2.(illegible word) aristocracy.
• 3.Individual strength against tyranny.
• 4.Beliefs, devotion, wild virtues, instincts.
• 5.Idea of duty.
• 6.Tranquillity of the people that arises from their not seeing anything better.
• 7.Monarchical immobility.
• 8.Strength and grandeur of the state which you reach by the constant efforts of some.

democratic and republican system.

• 1.Respect for law, idea of rights.
• 2.Benevolence arising from equality of rights.
• 3.Association.
• 4.Interest well understood, enlightenment.
• 5.Love of liberty.
• 6.That they know that they are well-off.
• 7.Orderly and progressive movement of democracy.
• 8.Id. by the simultaneous efforts of all.

current state.

• 1.Fear of authority that is scorned.
• 2. War of the poor and the rich, individual egoism without strength.
• 3. Equal weakness without collective power {of association}.
• 4. Prejudices without beliefs, ignorance without virtues, the doctrine of interest without the science, stupid egoism.
• 5. Taste for license.
• 6. Who do not have the courage to change, passions of old men (YTC, CVh, 3, pp. 110-11).

[g. ] Hervé de Tocqueville:

[h. ] Hervé de Tocqueville: “This last thought is not very clear. Would it perhaps seem a bit gigantesque? It is a kind of irony. But is it very accurate? Who would want to strike virtue? No one, I think.”

Édouard de Tocqueville: “This sentence did not fully satisfy me either. I do not see clearly why the persons in question here would desire that virtue, misery and ignorance be struck with the same blow” (YTC, CIIIb, 1, p. 16).

[j. ] In the margin: “≠Thus some wanted virtue and misery; others, well-being without virtue.≠”

[k. ] Hervé de Tocqueville: “This whole sentence is very beautiful and I would very much like to let the word genius go by. But I cannot do so, because it expresses more than is necessary. It will be asked where is the genius in France and each person will answer: I do not know.”

Édouard de Tocqueville: “After long and careful reflection, I do not share the opinion of my father. Genius here means intellectual superiorities and there are always some in a country” (YTC, CIIIb, 1, p. 17).

[m. ] Hervé de Tocqueville:

Édouard de Tocqueville:

The phrase “I am very far ... that democracy may take” does not appear in the manuscript.

[n. ] “That governments have relative goodness. When Montesquieu ... I admire him. But when he portrays to me the English constitution as the model of perfection, it seems to me that, for the first time, I see the limit of his genius. This constitution today falls in the same [interrupted text (ed.)]” (YTC, CVh, 4, p. 91).

[o. ] Why would I be afraid to say so? While I had my eyes fixed on America, I thought about Europe. I thought about this immense social revolution that is coming to completion among us while we are still discussing its legitimacy and its rights. I thought about the irresistible slope where [we (ed.)] are running, who knows, perhaps toward despotism, perhaps also toward the republic, but definitely toward democracy. There are men who see in the Revolution of 1789 a pure accident and who, like the traveler in the fable, sit down waiting for the river to pass. Vain illusion! Our fathers did not see it being born and we will not see it end. Its turbulent currents will flow for still many generations. More than six hundred years ago the first impulse was given.

[In the margin] Some among us consider the present state as a beginning; others, as an end. It is neither the one nor the other; it is an incident in an immense revolution that began before it and has continued since (YTC, CVh, 3, pp. 22-23; see a more or less identical fragment in YTC, CVh, 4, p. 1, and Souvenirs,OC, XII, p. 30).

[p. ] Although the second part had been published, probably on the recommendation of Gosselin, the publisher, with the title of the first part, Tocqueville had at one moment wanted to entitle it Influence of Equality on the Ideas and Feelings of Men (See letter to Mill of 14 November 1839, Correspondance anglaise,OC, VI, 1, p. 326).

[q. ] In the manuscript: “... but each day I feel less enthusiasm ...”

Hervé de Tocqueville: “This turn of phrase seems too explicit to me; it removes in too absolute a way the hope for a 3rd volume.”

Édouard de Tocqueville: “That is very true; a sentence more or less like this would be needed: and I give up at least at present.

“I also do not like my work will have become useless. We do not know if you are speaking about the future work or this one. At least would become useless would be necessary” (YTC, CIIIb, 1, p. 19). The manuscript says: “... will have become nearly useless.”

[t. ] Tocqueville is eager to emphasize that the goal of his book is the description of models, of ideal types that, by definition, do not perfectly coincide with reality. He probably borrows the concept from Montesquieu, even if from Montesquieu to Tocqueville, and later to Max Weber, differences are perceptible. The use of the idea of ideal types (aristocracy and democracy) is of a hermeneutical nature; all attempts to make it a mechanical and automatic process would destroy one of the most remarkable aspects of Tocqueville’s theory. For the latter, the good political regime is characterized by an eternal tension between the two types, idea that points at the very same time to Pascal and to the romanticism of the period. (See in this regard Auguste Comte, Cours de philosophie positive, lesson 47; Emile Durkheim, Montesquieu et Rousseau, précurseurs de la sociologie, Paris: Marcel Rivière, 1953, ch. III; Melvin Richter, “Comparative Political Analysis in Montesquieu and Tocqueville,” Comparative Politics 1, no. 2 (1969): 129-60; Pierre Birnbaum, Sociologie de Tocqueville, Paris: PUF, 1970, pp. 29-39; Gianfranco Poggi, Images of Society, Stanford: Stanford University Press, 1972, pp. 2-82). Cf. note m of p. 694 of volume III.

[u. ] In the manuscript: “... what most readers ...”

Hervé de Tocqueville: “You must not put most readers. That would shock them because you seem to doubt their intelligence too much. So put some readers in place of most readers.

Édouard de Tocqueville (?): “Very right” (YTC, CIIIb, 1, pp. 19-20).

[v. ] In the margin: “≠Why I have not put many figures and statistics. Change so rapidly. Insignificant.≠”

[w. ] “I believe what I say, only advantage that I have over most of my contemporaries. Nothing more common than to talk of liberty, but nearly everyone wants something more or less than liberty. But I really love it and want it” (YTC, CVh, 3, p. 97).

“I am sure that my subject does not lack grandeur. If I fail it will be my fault and not the fault of my subject. In any case, I will have pointed out the path” (YTC, CVh, 3, p. 98).

[x. ] “To point out if possible to men what to do to escape tyranny and debasement while becoming democratic. Such is, I think, the general idea by which my book can be summarized and which will appear on every page of the one I am writing at this moment. To work in this direction is, in my eyes, a holy occupation and one for which you must spare neither your money, nor your time, nor your life,” writes Tocqueville to Kergorlay. 26 December 1836 (Correspondance avec Kergorlay,OC, XIII, 1, pp. 431-32).

[* ] See the map placed at the end of the volume. [See volume II, following p. 687. This map was deleted after the first editions. (ed.)]

[2. ] France measures 35,181 square leagues.

[3. ] The Red River.

[4. ] 2,500 miles, 1,032 leagues. See Description of the United States, by Warden, vol. I, p. 166.

[5. ] 1,364 miles, 563 leagues. See id., vol. I, p. 169.

[6. ] The Missouri. See id., vol. I, p. 132 (1,278 leagues).

[7. ] The Arkansas. See id., vol. I, p. 188 (897 leagues).

[8. ] The Red River. See id., vol. I, p. 190 (598 leagues).

[9. ] The Ohio. See id., vol. I, p. 192 (490 leagues).

[10. ] The Illinois, the Saint Peter [the Minnesota (ed.)], the Saint Francis, the Des Moines.

In the measurements above, I have taken as a measure the legal mile (statute mile) and the postal league of 2,000 toises.

[b. ] In the margin: “≠For more exactitude in this picture consult and cite Volney. Examination of trees, nature of lands, shape of the country.≠”

[c. ] “The general population doubles in 22 years, that of the Mississippi Valley in 10 years. 3.25% for the whole, 5% in the valley. Darby, p. 446, calculates that in 1865 the preponderance will be in the Mississippi Valley” (YTC, CVh, 1, p. 63).

[d. ] Here Tocqueville tries to convey the sense of the English word wilderness, for which Beaumont had proposed sauvagerie. For him, throughout his book, désert designates the virgin forest, unexplored and not cultivated. See Roderick Nash, Wilderness and the American Mind, New Haven, Ct.: Yale University Press, 1973, pp. 1-7.

[11. ] 100 miles.

[12. ] About 900 miles.

[e. ] Hervé de Tocqueville: “Alexis thinks correctly that the description of South America must be shortened a great deal, perhaps even removed entirely. 1. Because he was not there. 2. Because South America is entirely outside of his subject” (YTC, CIIIb, 3, p. 45).

[13. ] The waters are so transparent in the Caribbean Sea, says hMalte-hBrun, vol. V, p. 726, that corals and fish are distinguishable at a depth of 60 fathoms. The ship seems to glide on air; a kind of vertigo grips the traveler whose view plunges beyond the crystalline fluid into the midst of underground gardens where shellfish and gilded fish shimmer among the clumps of fucus and the thickets of marine algae.

[f. ] In the manuscript: “The objects that caught the eye in these enchanted places appeared destined to satisfy needs or to give rise to pleasures. Most of the trees produced fruits; and all of them, flowers. (The wild fig, the lemon tree, the myrtle oak and the oleander grew in dense groves. The acacia arose from the middle of the beach and scattered its fragrant remains over the shores.

The bignonias, the granadillas [passion fruit], the acacias with large pods, fifty species of creepers were thrown as) species of garlands thrown from tree to tree or branch to branch, repeating the image of the works of man in the middle of the inimitable charms of nature. A multitude of birds unknown to Europe made these flowery arches and domes of greenery sparkle with their many colors. There you heard resounding from all directions the sound of a thousand living creatures.

Death was ...”

The published version is in Gustave de Beaumont—s hand (YTC, CIIIb, 3, pp. 42-43). See note e supra, in which Tocqueville—s desire to shorten this description is clear.

[[*]. ] See Tableau des Etats-Unis, by Volney, p. 9.

[g. ] Cf. Journey to Lake Oneida, pp. 1295-1302, in the fourth volume.

[h. ] In this paragraph as in the preceding one, Tocqueville took into account the sty listic modifications suggested by Beaumont (YTC, CIIIb, 3, p. 44).

[14. ] Some similarities have since been discovered between the physical structure, the language and the habits of the Indians of North America and those of the Tungus, Manchus, Mongols, Tartars and other nomadic tribes of Asia. The latter occupy a position near the Bering Strait, which allows the supposition that, at a period long ago, they were able to come to people the empty American continent. But science has not yet succeeded in clarifying this point. On this question, see Malte-Brun, vol. V; the works of Humboldt; Fischer, Conjectures sur l—origine des Américains; Adair, History of the American Indians.

[j. ] Hervé de Tocqueville: “This entire paragraph is well thought out and strikingly true. But isn’t it a little long? You could perhaps delete the section from the words cited above [The truth of this, etc..... (ed.)] to these: This unfortunate effect. It seems to me that the expression of the thought would gain in precision.”

édouard de Tocqueville: “This thought is excellent. I do not know what must be deleted or cut, but it seems to me that you must revise and rework this entire passage, perfect in thought and uneven and not very refined in style” (YTC, CIIIb, 3, p. 46). Nonetheless, Tocqueville did not modify the passage, identical in the manuscript and in the published version.

[k. ] Note in the margin: “≠Idea of K[ergorlay (ed.)]. What makes the lower classes coarse is contact with the upper classes and the feeling of their low condition. All the savages are equal and free.≠”

[15. ] Among the Iroquois, attacked by superior forces, says President Jefferson (Notes sur la Virginie, p. 148), one saw old men disdain to flee or to outlive the destruction of their country and to brave death, like the old Romans during the sack of Rome by the Gauls. Further along, p. 150: “There never was an instance known, he says, of an Indian begging his life when in the power of his enemies; on the contrary, that he courts death by every possible insult and provocation.”

[Documents on the Indians./

See the work entitled Historical Collections of the Indians in New England, by Daniel Gookin, printed in 1792. It is found in the historical collections of Massachusetts, vol. 1, p. 141-226 (ed.)].

Gookin says that there are people who believe that the Indians are the descendents of the ten tribes of Israel, which explains the state of barbarism and darkness in which they are found. “But this opinion [.... (ed.) ....], says Gookin, doth not greatly obtain. [But (ed.)] surely it is not impossible and perhaps not so improbable as many learned men think” [p. 145 (ed.)].

See as well a work entitled Key into the Language of the Indians of New England by Roger Williams, printed in London in 1643. It is found reprinted in the collection of the historical society of Massachusetts, vol. 3, p. 203 [-238 (ed.)].]

[n. ] Cf. Conversation with Mr. Houston, December 31, 1831 (Notebook E, YTC, BIIa, and Voyage, OC, V, 1, p. 264). This fragment also recalls the “journal sans date” of the Voyage en Amérique of Chateaubriand (Oeuvres romanesques et voyages, Paris: Pléiade, 1969, I, pp. 710-13).

[o. ] Cf. A Fortnight in the Wilderness (appendix II, especially p. 1354 of the fourth volume).

[p. ] In this place are found remarks on the Governor, reproduced in note b of pp. 140-42.

[a. ]Point of departure./

Influence of the point of departure on the future of society.

Homogeneous ideas, mores, needs, passions of the founders of American society.

Influence of the extent of the territory, of the nature of the country, of its geographic situation, of its ports, of its population, immigration from Europe, and in the West, from America itself.

The point of departure gave birth to the society as it is organized today, primitive fact after which come the consequences, formulated as principles (YTC, CVh, 1, p. 23).

[b. ] In the margin: “≠It must be very much remembered that this chapter still requires research on the laws of New England, Massachusetts, Rhode Island. See especially the Town Officer [Isaac Goodwin, Town Officer: or Laws of Massachusetts Relative to the Duties of Municipal Officers, second edition, Worcester: Dorr and Howland, 1829. (ed.)].≠”

[c. ] In the margin:

[d. ] Tocqueville seems not to have been satisfied with the draft of this paragraph. At the time of the correction of proofs in October 1834, he writes expressly to Beaumont to ask him what he thinks of it (Correspondance avec Beaumont, OC, VIII, 1, p. 144). Two corrections concerning the style were certainly suggested by Beaumont (the original version said discern the influence and spoke only of tranquil development). In relation to the same subject, Tocqueville notes in a rough draft:

In America Tocqueville found the history of the establishment of a people that Rousseau lacked:

[e. ] Circumstances without number, theory to make.

Point of departure. The most important of all in my eyes, because it is the one that has had the most influence on mores; I regard mores as by far the most powerful of the three general causes. Equality. Democracy introduced in germ. Comfort, result of the small population and the immense resources of the country.

Emigration, new resources equal to new needs.

The absence of neighbors, no war, no permanent army.

New country, no large cities, no manufacturing districts, no capital. Men are not pressed one against the other; popular movements less electric and less destructive./

It is a land that presents itself with all the strength and fertility of youth.

The discovery of America is like the complement of creation.

America.

In this state it is presented to man, not to the ignorant and barbaric man of the first centuries of the world, but to man already educated by an experience of 6,000 years (YTC, CVj, 2, pp. 20-21).

[f. ] In the margin: “Put the details of this idea further along at democracy.”

[g. ] To the side, with a bracket that includes the last three sentences of the paragraph: “{Hasn’t this been said a hundred times?}”

[h. ] In the margin: “≠The great point of view of America is the development of democracy≠”

[1. ] The charter granted by the English crown in 1609 included, among others, the clause that the colonists would pay one-fifth of the production of gold and silver mines to the crown. See Life of Washington, by Marshall, vol. I, pp. 18-66.

[2. ] A great portion of the new settlers, says Stith (History of Virginia) [pp. 167-68 (ed.)], were dissolute young men of good families, shipped off by their relatives to save them from an ignominious fate. Former servants, fraudulent bankrupts, the debauched, and other people of this type, more appropriate for pillage and destruction than for consolidating the settlement, formed the rest. Seditious leaders easily led this troop into all sorts of extravagances and excesses. See, relative to the history of Virginia, the following works:

History of Virginia from the First Settlements to the Year 1624, by Smith.

History of Virginia, by William Stith.

History of Virginia from the Earliest Period, by Beverley, translated into French in 1707.

[3. ] It is only later that a certain number of rich English proprietors came to settle in the colony.

[4. ] Slavery was introduced about the year 1620 by a Dutch vessel that disembarked twenty Negroes on the banks of the James River. See Chalmer.

[j. ] In the travel notes and early drafts, as well as in the first drafts of the manuscript, Tocqueville’s thinking tends to be oriented toward a North-South division of the United States. This understanding is modified further, particularly following the observations made by his family. Compare this note with note h of p. 77 and p. 602.

[5. ] The states of New England are those situated east of the Hudson; today they number six: 1. Connecticut; 2. Rhode Island; 3. Massachusetts; 4. Vermont; 5. New Hampshire; 6. Maine.

[k. ] In the margin: “≠Their birth has no more precedents in world history than the social and political state that we see among them today.≠”

[m. ] To the side: “≠Union of liberty and of religion, of independence of individuals and of austerity of mores.≠”

John Quincy Adams had conversed with Tocqueville about the differences between the colonization of New England and of the states in the West and had also mentioned the importance of the “point of departure,” of the way in which the United States was born (non-alphabetic notebooks 2 and 3, YTC, BIIa, and Voyage, OC, V, 1, p. 152).

[n. ] Hervé de Tocqueville: “It has been said above that great lords had come to settle in America. Farther along, in chapter 4, it will be said that they founded the colony of Maryland. Beware of apparent contradictions. They will be avoided by developing the thought. This is often necessary. The author is too brief, sometimes” (YTC, CIIIb, 2, p. 104).

[p. ] Tocqueville cites texts more or less freely as his times allowed. Deletions of words or sentences are not indicated. The editor has carefully corrected most of these citations; in certain cases judged to be of little importance, he has simply noted the deletions made by the author.

The first fragment from Morton says:

The second text from Morton reads:

[7. ]New England’s Memorial, p. 23 [-24 (ed.)].

[8. ]This rock has become an object of veneration in the United States. I saw fragments of it carefully preserved in several cities of the Union. Doesn’t this show quite clearly that the power and greatness of man is entirely in his soul? Here is a rock touched for a moment by the feet of a few wretched individuals, and this rock becomes famous; it attracts the attention of a great people; the remains are venerated; far away, tiny pieces are shared. What has become of the threshold of so many palaces? Who worries about it?

[9. ]New England’s Memorial, p. 35 [-36 (ed.)].

[q. ] The original text says:

[*]New England’s Memorial, p. 37 [-38. Note omitted in certain editions. (ed.)].

[10. ] The emigrants who created the state of Rhode Island in 1638, those who established New Haven in 1637, the first inhabitants of Connecticut in 1639, and the founders of Providence in 1640, also began by drawing up a social contract that was submitted for approval to all those affected, Pitkin’s History, [vol I, (ed.)] pp. 42 [43 (ed.)] and 47.

[r. ] The quoted fragment reads:

[s. ] Omitted: “our king and our country . . .”

[t. ] The text says: “in the northern parts of Virginia.”

[u. ] Tocqueville uses the words class and rank indiscriminately.

[11. ] This was the case for the state of New York.

[12. ] Maryland, the Carolinas, Pennsylvania, New Jersey were in this case. See Pitkin’s History, vol. I, pp. 13-31.

[13. ] See in the work entitled: Historical Collection of State Papers and other Authentic Documents Intended as Materials for an History of the United States of America, by Ebenezer Hazard, printed at Philadelphia, MDCCXCII, a very large number of precious documents valuable in their contents and authenticity, relating to the early years of the colonies, among others, the different charters that were granted by the English crown, as well as the first acts of their governments.

Also see the analysis of all these charters that Mr. Story, Justice of the Supreme Court of the United States, makes in the introduction of his Commentary on the Constitution of the United States.

All these documents demonstrate that the principles of representative government and the external forms of political liberty were introduced in all the colonies almost from their birth. These principles were developed more fully in the North than in the South, but they existed everywhere.

[14. ] See Pitkin’s History, vol. I, p. 35 [36 (ed.)]. See The History of the Colony of Massachusetts, by Hutchinson, vol. I, p. 9.

[15. ] See id., pp. 42-47 [vol. I (ed.)].

[16. ] The inhabitants of Massachusetts, in the establishment of criminal and civil laws for proceedings and for the courts of justice, moved away from the customs followed in England: in 1650 the name of the King still did not appear at the head of judicial orders. See Hutchinson, vol. I, p. 452.

[v. ] “Ask Niles about the authenticity of the blue laws” (YTC, CVb, p. 33).

The laws of the first colonists of Connecticut were called blue laws. Understood in the broadest sense, the term designates the regulations for the strict observance of the Sabbath, which formerly existed throughout the American territory and which partially survive today.

Nathaniel Niles was the secretary of the American delegation in Paris from 1830 to 1833.

[17. ]Code of 1650, p. 28 (Hartford, 1830).

[18. ] See as well in the History of Hutchinson, vol. I, pp. 435-56, the analysis of the penal code adopted in 1648 by the colony of Massachusetts; this code is drafted on principles analogous to that of Connecticut.

[19. ] Adultery was likewise punished by death under the law of Massachusetts, and Hutchinson, vol. I, p. 441, says that several persons in fact suffered death for this crime; he cites on this subject a curious anecdote which relates to the year 1663. A married woman had relations with a young man; she became a widow and married him; several years passed; the public finally began to suspect the intimacy that had formerly existed between the spouses; they were charged under the criminal law; they were imprisoned, and both were nearly condemned to death.

[20. ]Code of 1650, p. 48.

It seems that sometimes judges gave these various penalties cumulatively, as you see in a decision rendered in 1643 (p. 114, New Haven Antiquities), which declares that Marguerite Bedfort [Bedforde (ed.)], convicted of having committed reprehensible acts, will suffer the penalty of whipping and will be enjoined to marry Nicolas Jemmings [Jennings (ed.)], her accomplice.

[21. ]New Haven Antiquities, p. 104 [-106 (ed.)]. Also see in the History of Hutchinson, vol. I, p. 435 [-436 (ed.)], several judgments as extraordinary as the former.

[22. ]Code of 1650, pp. 50, 57.

[23. ]Id., p. 64.

[24. ]Id., p. 44.

[w. ] Cf. Beaumont, Marie, I, p. 536-37, and Tocqueville’s account (appendix III).

[25. ] This was not particular to Connecticut. See among others the law of December 13, 1644, in Massachusetts, which sentences Anabaptists to banishment. Historical Collection of State Papers, vol. I, p. 538. Also see the law published on October 14, 1656, against the Quakers: “Whereas, says the law, an accursed sect of heretics called Quakers has recently arisen . . .” Clauses follow which impose a very heavy fine on captains of vessels that bring Quakers into the country. The Quakers who succeed in entering will be flogged and put into prison to work. Those who defend their opinions will first be fined, then sentenced to prison and driven from the province. Same collection, vol. I, p. 630.

[If the Quakers banished in this way were found once again in the state, they were, once identified, condemned to death. See same collection, vol. II, p. 456, the sentencing to death of two men and a woman convicted of this crime (October 18, 1649). The woman, named Mary Dyer, received mercy, but had to attend the execution of her two accomplices with the cord around her neck.

Also see in the same collection, p. 573, a law of Plymouth: “Whereas, says this law, the Quakers sometimes obtain places to stay, [and (ed.)] horses by means of which they move rapidly from place to place and escape the searches of the legal authorities, poisoning the people with their accursed doctrines . . . [this law (ed.)] orders that the horses seized in possession of the Quakers will be confiscated.”

See in general at the end of this volume the acts of the government of New Plymouth against the Quakers.]

[26. ] In the penal law of Massachusetts, the Catholic priest who sets foot in the colony after being expelled is punished by death.

[27. ]Code of 1650, p. 96.

[28. ]New England’s Memorial, p. 316.

[29. ]Constitution of 1638, p. 17 [12 (ed.)].

[30. ] As early as 1641, the General Assembly of Rhode Island unanimously declared that the state government consisted of a democracy and that power rested with the body of freemen who alone had the right to make laws and to oversee their execution. Pitkin’s History, p. 47 [46 (ed.)].

[31. ]Constitution of 1638, p. 12.

[32. ]Code of 1650, p. 70.

[33. ]Code of 1650, p. 80.

[34. ]Code of 1650, p. 78.

[35. ]Id., p. 49.

[36. ] See the History of Hutchinson, vol. I, p. 455.

[37. ]Code of 1650, p. 86.

[38. ]Id., p. 40.

[40. ]Code of 1650, p. 38.

[41. ]Mather’s Magnalia Christi Americana, vol. II, p. 13 [vol. I, p. 113 (ed.)].

This speech was given by Winthrop; he was accused of having committed arbitrary acts as a magistrate; after delivering the speech of which I have just given a fragment, he was acquitted with applause, and from that time on he was always re-elected Governor of the State. See Marshall, vol. I, p. 166 [167 (ed.)].

[y. ] The original says:

[z. ] Variant in the margin: “≠Extreme obedience to established rules in the moral world, extreme independence, restless spirit of innovation in the political world, these are the two diverse and seemingly opposing tendencies that are revealed at each step in the course of American society.≠”

[a. ] In the margin: “≠There will be many things to say about that. The American political world rests upon foundations different from ours, but just as settled and certain. So you cannot say that there is more uncertainty and vagueness there than in the moral world.≠”

[b. ] In an early draft, the title said: “. . . that the social state of the anglo-americans presents.” This section was initially at the beginning of chapter III (YTC, CVh, 3, p. 82).

[c. ] “Ask Mr. Livingston about prisons and bail” (YTC, CVb, p. 33). Probably Edward Livingston. See note 2 of Tocqueville’s introduction (p. 30).

[d. ] “For prison ruins him by preventing him from working and bail makes him give up the fruit of his work.

“To develop. Opinion of Mr. Duponceau.

“Little guarantee that the poor have against the oppression of municipal magistrates.

“Unwritten law that puts justice into the hands of the privileged class of lawyers” (YTC, CVj, 2, pp. 4-5). The conversation with Mr. Duponceau is found in portable notebook 3 (YTC, BIIa, and Voyage, OC, V, 1, p. 182); see the conversation with [Alexander] Everett (ibid., p. 95).

[42. ] There are certainly crimes for which there is no bail, but they are very few in number.

[e. ] Cf. Beaumont, Marie, I, pp. 197, 367-70.

[43. ] See Blackstone and Delolme, book I, chap. X.

[a. ] Hervé de Tocqueville: “I do not know if this definition is very useful. It slows the transition from the second to the third chapter.

In any case, mores should be put before the other causes that modify social state. Mores come before the fact whatever it may be. They precede laws. Example: Puritan mores precede and lead to the fact of emigration.”

Édouard de Tocqueville: “I do not share this opinion” (YTC, CIIIb, 2, p. 92).

[b. ] “Among a people property is divided in a certain way, enlightenment is more or less equal, morality is more or less high, that is what I call its social state./

“In general the social state is the result of a fact predating the laws, but the laws develop its consequences and modify it” (YTC, CVh, 5, p. 9).

The social state according to Tocqueville recalls Montesquieu’s concept of the general spirit of the nation (cf. L’esprit des lois, book XIX, chapters IV and V). On this question, see Anna Maria Battista, “Lo stato sociale democratico nella analisi di Tocqueville,” Pensiero Politico 4, no. 3 (1973): 336-95.

[c. ] In the margin, in pencil: “Vague, indeterminate. Perhaps examples instead of definitions.”

[d. ]Causes of the social state and current government of America:

• 1.Their origin: excellent point of departure. Intimate mix of religion and of the spirit of liberty. Cold and rational race.
• 2.Their geographic position: no neighbors.
• 3.Their commercial and industrial activity. Everything, even their vices, is favorable to them now.
• 4.The material good fortune that they enjoy.
• 5.The religious spirit that reigns: republican and democratic religion.
• 6.The diffusion of useful knowledge.
• 7.Very pure morals.
• 8.The division into small States. They prove nothing for a large one.
• 9.The absence of a great capital where everything is concentrated. Care to avoid it.
• 10.Commercial and provincial activity that means that each person finds something to do at home (Alphabetic Notebook A, YTC, BIIa and Voyage, OC, V, 1, p. 207).

[e. ] Hervé de Tocqueville:

[f. ] With a reminder in the margin, in pencil: “Explain what is understood by democracy.”

Tocqueville never arrived at a satisfactory definition of democracy. He always used the term in different senses. Harold Laski, in his introduction to Democracy in America (OC, I, p. xxx), distinguishes four; James T. Schleifer, The Making of Tocqueville’s “Democracy in America” (pp. 263-74), identified as many as eight: inevitable development or tendency, social condition, popular sovereignty, government of the people, mobility, middle classes, equality of conditions, open society. Jean-François Sutter, in “Tocqueville et le problème de la démocratie” (Revue internationale de philosophie 49 (1959): 330-40), examined the reason why Tocqueville did not manage to give one single definition of democracy. Cf. the revealing letter of Louis de Kergorlay, dated January 6, 1838, a letter that Tocqueville kept with the early drafts of the second part of his book (YTC, CVg, 2, published in Correspondance avec Kergorlay,OC, XIII, 2, pp. 16-17).

[g. ] In the margin: “≠Note that in this chapter the social state must never be confused with the political laws that follow from it; equality or inequality of conditions, which are facts, with democracy or aristocracy, which are laws. Reexamine from this point of view.≠”

[h. ] This word is added later. At first, the word was south.

[[*]. ] Note from Jefferson.

[j. ] Hervé de Tocqueville:

[k. ] Hervé de Tocqueville:

Édouard de Tocqueville: “I agree with my father only for the last paragraph, which must absolutely be revised. How can a weak and not very hardy class lead an insurrection?” (YTC, CIIIb, 2, pp. 93-94). The author paid no attention to these criticisms; the published version is identical to that in the manuscript.

[m. ] Hervé de Tocqueville:

Édouard de Tocqueville: “Apt observation. This first paragraph must be reworked a bit” (YTC, CIIIb, 2, p. 94).

[n. ] In the margin: “≠It was the aristocracy, if this name can be given to what was then at the head of society in America, which had armed the people and led them on the fields of battle.≠”

[o. ] “Give me, for thirty years, a law for equal division of inheritance and liberty of the press and I will bring you a republic” (YTC, Cve, p. 63).

Tocqueville gives a privileged position to the structure of landed property in his theory. In his Mémoire sur le paupérisme (Commentaire, XXIII, 1983, p. 633), he repeats that it is the concentration of land that provoked the concentration of power and the birth of the aristocracy. The same idea often appears in the notes taken during his journey in America (conversations with Livingston, Clay, Latrobe, Sparks in YTC, BIIa, and Voyage,OC, V, 1, pp. 59, 87-88, 102, 109, 111-13), as well as during his journey in England (Voyages en Angleterre, Irlande, Suisse et Algérie,OC, V, 2, pp. 52, 28, 41-42). In a letter to Kergorlay of June 29, 1831 (Correspondance avec Kergorlay,OC, XIII, 1, pp. 231-33), he explains that it is one of the particulars of American society that most surprised him. Moreover, his interest in this question predates the journey to America. The division of the land is already mentioned in the notes of the journey in Sicily in 1827 (Voyage,OC, V, 1, pp. 43, 45). The same idea reappears in his article on the social and political state of France before and after the Revolution of 1789, and in L’Ancien Régime et la Révolution.

We know that the social consequences of the inheritance laws have been considered by Aristotle in the Politics (1266b8). Montesquieu took up the question again in De l’esprit des lois (book V, chapters V and VIII). Afterward the question occupied a central place in the political considerations of the revolutionary era. The beginning of the nineteenth century still had in mind the posthumous speech of Mirabeau (Discours de M. de Mirabeau l’ainé sur l’égalité des partages dans les successions en ligne directe, Imprimerie Nationale, Paris, 1791, 23 p.). Even the father of the author had treated it in one of his publications (De la charte provinciale, Paris: J.= J. Blaise, 1829, 62p., pp. 12-13).

[1. ]By the inheritance laws, I understand all the laws whose principal end is to regulate the disposition of property after the death of the owner.

The law of entail is among this number. It is true that it also has the result of preventing the owner from disposing of his property before his death; but it imposes the obligation on him of keeping it only with the view of having it go intact to his inheritor. So the principal end of the law of entail is to regulate the disposition of property after the death of the owner. All the rest is the means used.

[p. ] In the margin in pencil: “This image of dust is exaggerated and lacks precision.”

[q. ] To the side in an earlier draft: “ Explanatory note and on Rodat.”

Is this Rodat Claude Raudot, magistrate and friend of Tocqueville and Beaumont? We can hardly think that the author would misspell the name of someone that he knew so well. Bonnel notes “Rodat” at two places in the drafts (see note s infra). In any case, no one of this name is found in the papers and correspondence of Tocqueville.

[r. ] Hervé de Tocqueville: “Isn’t Alexis considerably underestimating the family average? At least, 4 should be put in place of 3, father, mother and two children. I do not know if the law of averages should be invoked here. The family that has only one descendant escapes from the law of division. But the family that has 5 or 6! What a progression of division of the land!” (YTC, CIIIb, 2, p. 95).

[s. ] Law of inheritance./

Tocqueville will devote a chapter in the second part of his book to the manufacturing aristocracy (chapter XX of volume III). On this point, this note and note d of p. 85 attest to an interest well before the voyage to England in 1835. Tocqueville had briefly visited England in 1833, but the notes of this first journey carry no trace of a particular attention to the problem of industry. It is generally agreed that his visit to Manchester, Liverpool and Birmingham in 1835 is at the origin of this interest (Voyages en Angleterre, Irlande, Suisse et Algérie,OC, V, 2, pp. 67, 81).

During a conversation with Tocqueville in the United States, Robert Vaux had already referred to the effects of manufacturing on the population (non-alphabetic notebooks 2 and 3, YTC, BIIa and Voyage,OC, V, p. 104). Beaumont, for his part, will not hesitate to affirm in the novel that he would publish in 1835: “In truth there exists in America something that resembles the feudal aristocracy. The factory is the manor; the manufacturer, the sovereign lord; the workers are the serfs” (Marie, I, pp. 241-42).

[t. ] “Ask Livingston if in the United States there is still the possibility of establishing entails [in English in the text (ed.)]” (YTC, CVb, p. 33).

[u. ] See the conversation with Mr. Latrobe (YTC, BIIa and Voyage,OC, V, 1, p. 109).

[v. ] In L’Irlande, Beaumont will recommend the law of equal division as the way to divide property and socially weaken the English aristocracy of Ireland (see especially vol. II, pp. 191-200). Beaumont, like Tocqueville, had also observed in the United States the effects of the inheritance law (cf. in particular two letters, dated respectively July 4 and September 31, 1831, Lettres d’Amérique, pp. 80 and 147).

[2. ] I do not mean that the small landholder cultivates better, but he cultivates with more enthusiasm and care, and gains by work what he lacks in skill.

[w. ] In the margin: “≠The inheritance law acts much more forcefully on the destruction of landed fortunes than of fortunes in general.≠”

[x. ] Hervé de Tocqueville: “I do not believe that the word egoism is the right word here. Egoism is only concerned with the present and does not rush toward the future. The word pride would seem more suitable to me.”

Édouard de Tocqueville: “I find the word egoism good” (YTC, CIIIb, 2, p. 95).

[y. ] Note in pencil in the manuscript that seems to speak about a first version that lacked the sentence to which this note refers: “≠Think about this. A bad inference could be drawn from it, too generalized.≠”

[3. ]Since land is the most secure property, there are, from time to time, wealthy men who are inclined to make great sacrifices to acquire it and who willingly lose a considerable portion of their income in order to assure the rest. But these are accidents. The love of landed property is no longer usually found except among the poor. The small landholder, who is less enlightened and who has less imagination and fewer passions than the large landholder, is generally preoccupied only with the desire to enlarge his domain; and it often happens that inheritance, marriage or turns of fortune in trade provide him the means little by little.

So alongside the tendency that brings men to divide the land, there exists another that brings them to consolidate it. This tendency, which is enough to prevent property from being infinitely divided, is not strong enough to create great territorial fortunes, nor above all to keep them in the same families.

[z. ] Hervé de Tocqueville:

[a. ] [Note] “≠Here citation of Kent and analysis of Lippitt and then a remark on how the French laws on inheritance and entail are more democratic than the American laws.≠” Cf. note G.

In 1834, Tocqueville felt the need to have help in the organization and reading of American books, brochures and codes. The following advertisement is found in one of the notebooks of the copyist Bonnel:

This advertisement seems not to have been published. Francis Lippitt states that he was hired on the recommendation of the American delegation in Paris by Nathaniel Niles or Edward Livingston probably. In a letter to Daniel Gilman (reproduced in Daniel C. Gilman, “Alexis de Tocqueville and his book on America, sixty years after,” The Century Illustrated Monthly Magazine, 56, May-October 1898, pp. 703-15), Francis Lippitt asserts that his work consisted of reading and summarizing books, newspaper clippings and legal collections. Theodore Sedgwick, another American who had helped the author, unquestionably had a more important role. His conversations seem to have been useful to Tocqueville while drafting certain points of the book. (Also see, George W. Pierson, Tocqueville and Beaumont in America, pp. 731-34.)

[b. ] [Note] “≠The Livingstons and the Van Rensselaers.≠”

[c. ] At the time of his voyage, Tocqueville met Charles Carroll, signatory of the Declaration of Independence and one of the wealthiest Americans of the time. On November 8, 1831, Tocqueville, in a draft of a letter to an unidentified recipient, noted concerning him: “[Charles Carroll], a little old man of 95 years, straight as an arrow, . . . saw all the great families disappear as a result of the new inheritance law. For sixty years he has seen their descendants grow poorer, the noble families disappear, and the democracy take hold of the power that the great landholders held in his time” (YTC, BIa2).

[d. ] In the margin: “≠Put here, I think, the inequality arising from the accumulation of the personal wealth of manufacturing.≠”

[e. ] Democracy./

What is most important for democracy, is not that there are no great fortunes; it is that great fortunes do not rest in the same hands. In this way, there are the rich, but they do not form a class.

Commerce, industry perhaps create larger individual fortunes in America now than sixty years ago. However, the abolition of primogeniture and entail make democracy, its passions, interests, maxims, tastes more powerful in our time than sixty years ago.

Furthermore, equality of political rights has introduced a powerful new element of democracy.

American societies had always been democratic by their nature; the Revolution made democratic principles pass into the laws (YTC, CVe, pp. 60-61).

[f. ] Hervé de Tocqueville:

[g. ] In the margin, with a bracket uniting this paragraph with the two preceding ones: “≠To sacrifice, I think, because all of that implies something more than the social state. Ask G[ustave (ed.)]. and L[ouis (ed.)].≠”

[Translator’s Note 2: ] Here Tocqueville probably means the Sultan.

[h. ] Hervé de Tocqueville:

[j. ] In the version put at the disposal of the family, the sentence continues as follows: “. . . such a combination is not always found. It happens that they resign themselves without difficulty to servitude” (YTC, CIIIb, 2, pp. 100-101).

[k. ] In another version, in the margin: “. . . mores, ≠this hidden will of God that is called chance≠, have allowed them . . .”

[m. ] Hervé de Tocqueville: “Erase the word establish. The sovereignty of the aggregation of all the individuals of a nation that is called the people is not established, for this sovereignty exists by itself and everywhere. Even in Turkey, it strangles the sultan; in Spain, the Cortes is needed to sanction a change in the inheritance of the throne” (YTC, CIIIb, 2, p. 99).

[a. ]“Sovereignty of the people and democracy are two perfectly correlative words; the one represents the theoretical idea, the other its practical realization” (YTC, CVh, 1, p. 22).

[b. ] In the margin, with a bracket enclosing the entire paragraph: “≠{This seems trite to me.}≠”

[c. ] To the side, with a note: “{Know exactly the state of things on this point.}”

[d. ] The manuscript says: “{and occupied the throne}.” A note in pencil in the margin specifies: “≠The word throne does not seem to me the right word since it concerns a republic.≠”

[e. ] Of the sovereignty of the people./

I draw a great difference between the right of a people to choose its government, and the right that each individual among this people would have to take part in the government.

The first proposition seems to me to contain an incontestable truth; the second, a manifest error.

I cannot acknowledge the absolute right of each man to take an active part in the affairs of his country, and I am astonished that this doctrine, so contradictory to the ordinary course of human affairs, could be proposed.

What is more precious to man than his liberty? It is recognized, however, that society can take liberty away from one of its members who makes poor use of it.

What is more natural [than (ed.)] to manage your own property? All peoples have recognized, however, that, before a certain age and in certain [missing word (ed.)], this control could be withdrawn, because it was thought [that (ed.)] these individuals either did not yet have or had never had the judgment necessary to make good use of this power. And would this faculty of judgment that some individuals are found to lack for conducting themselves then be granted to everyone for conducting the affairs of society? The constitutions that have apparently been founded on the doctrine that I am combating have never dared to admit all of its consequences. Even in the United States the poor man who pays no taxes obeys laws to which he has consented neither directly nor indirectly. How does that happen if the right to be involved in the affairs of government is a right inherent in the nature of man?

So all questions of democracy and aristocracy (aristocracy as a ruling body), of monarchy and republic, are not questions of right, but questions of fact, or rather the question of fact always precedes the other. Show me a people in which all the citizens may be involved in the government and, in my eyes, this people will have the right to govern itself democratically. Imagine another, if you can, in which no class or citizen may have the required capacity; and although I hardly like the power of one man alone, I will grant that it is legitimate and will take care to live elsewhere.

[In the margin: How so? If you recognize that some of the individuals who compose a people are incapable of taking part in its government, how even more would they be able to make a good choice? Now, if you remove some from this choice, it is no longer the people who choose. Moreover, from the moment you recognize that some can be incapable of choosing well, you must imagine a social state where no one could choose well; and then you are moving even further from the maxim that all people have the right to choose their government. Everything is reduced to this: to choose a government and to take part in government, these are two analogous products of human judgment. It is difficult entirely to concede the one while entirely refusing the other.

Response:

Judgment is necessary to choose a good government. But only intelligence and experience are needed to find that an existing government is not suitable and that it should be changed.] (YTC, CVh, 5, pp. 4-6). Cf. Guizot, tenth lecture, entitled De la représentation, in Journal des cours publics de jurisprudence, histoire et belles-lettres (Paris: au bureau du journal, 1821-1822, vol. II, especially pages 131-33). Also see note c of pp. 99-100.

[f. ] Hervé de Tocqueville:

Édouard de Tocqueville: “Doesn’t inequality come from the lack of inheritance laws?” (YTC, CIIIb, 2, pp. 89-90).

Was Hervé thinking here of Montesquieu? Cf. Considérations sur la cause de la grandeur des Romains et de leur décadence, in Œuvres complètes (Paris: Pléiade, 1951), II, chapter XIII, p. 142.

[1. ] Amendments made to the constitution of Maryland in 1801 and 1809.

[g. ] Hervé de Tocqueville

[h. ] Hervé de Tocqueville: “The example does not seem to me to relate to the subject” (YTC, CIIIb, 2, p. 90). These are the very words of Montesquieu. Considération sur les causes de la grandeur des Romains et de leur décadence, in Œuvres complètes (Paris: Pléiade, 1951), II, chapter XVIII, p. 171.

[j. ] In a letter to an unknown recipient, Tocqueville again takes up some arguments expressed at the time of a conversation with Charles Carroll:

[k. ] A symbol in the text refers to the following note: “Place a chapter here explaining what is called a constitution in America. Say that it is only a changing expression of the sovereignty of the people, that has nothing of the perpetual, that binds only until it is amended. Difference from what is understood by constitution in Europe, even in England.

[In the margin: Ask advice here.]”

[m. ] In the manuscript: “The people enter into the composition of the laws ...”

Hervé de Tocqueville:

Édouard de Tocqueville: “I understand the preceding objection when it involved explaining the successive formation of American society; but here it isn’t the same thing anymore. Alexis describes the government of democracy, and in this case the word people is appropriate and is perfectly understood. This entire passage seems remarkable to me” (YTC, CIIIb, 2, p. 90).

[a. ] According to a rough draft (YTC, CVh, 3, p. 83), this section would at first have constituted an independent chapter.

[b. ] In the margin: “≠Perhaps immediately after having treated the sovereignty of the people, it would be necessary to talk about election, which is its first and most complete application to the government of society.≠”

[Translator’s Note 3: ] I have translated commune, when it refers to America, as town rather than township.Town is, by far, the more common term in the United States, especially in New England. And American historians almost unanimously use the term town. When commune refers to France, I have usually left it in French, italicized.

[c. ] When he starts on the study of the American administration, Tocqueville realizes that he hardly knows that of his own country. In the month of October 1831, he asks his father and two of his colleagues, Ernest de Chabrol and Ernest de Blosseville, to draw up for him a summary sketch of the French administration. Tocqueville writes to his father:

In reply, Hervé de Tocqueville sends his son a long report bearing the title Coup d’oeil sur l’administration française [Brief View of the French Administration]. There the former prefect develops several of the ideas presented in De la charte provinciale (Paris: J.= J. Blaise, 1829, 62 pp.). After several pages devoted to description of the administration, the author considers in detail the problem of centralization and the way to lessen its abuses. Hervé de Tocqueville, who fears that the autonomy of the French communes [towns] will divide the country into a multitude of small republics, insists a great deal on the fact that the King must exercise the administration and have the right to dissolve the conseils communaux [town councils]. But he recognizes, nonetheless, the extreme slowness of an excessively centralized administration and recommends the creation of special juries for the purpose of deciding administrative questions as the most effective means to accelerate decision making. In his response, Chabrol considers, above all, the question of administrative jurisdiction. Macarel had in fact pointed out to him that the majority of trials between the administration and individuals that were judged by the conseils municipaux [municipal councils] were trials of an ordinary type that could have been judged according to the forms of the ordinary judicial system. Chabrol also points out that a large part of the administration still carries the trace of the centralizing concepts of the Napoleonic administration. The report of Blosseville, shorter and less precise than the other two, allows for the shift of administrative trials to ordinary jurisdiction, in agreement with Chabrol. (A copy of the three reports is found at Yale, under the classification CIIIa).

For the preparation of this chapter, the report on the local administration of New England, written by Jared Sparks for Alexis de Tocqueville, also has considerable importance. On this document and Brief View of the French Administration, see George W. Pierson, Tocqueville and Beaumont in America, pp. 403-13. Finally, there is a note by Beaumont that relates an interesting conversation with Sparks (in Beaumont, Lettres d’Amérique, pp. 152-54). The questions posed by Tocqueville to Jared Sparks and the responses of the latter have been published by H.= B. Adams in Jared Sparks and Alexis de Tocqueville,Johns Hopkins University Studies in Historical and Political Science, XVIth series, n. 12, 1898. A rough draft with several notes for this chapter also contains numerous references to the report of Sparks (YTC, CVb, p. 17). It is Jared Sparks who points out to Tocqueville that Nathaniel Niles, Secretary of the American delegation in Paris and native of New England, can be useful to him for the chapter on the town administration of this part of the United States. It seems that, following this suggestion, Tocqueville contacted the latter (see note v for p. 62).

[d. ] In the margin:

[e. ] In his report on Algeria to the Chamber of Deputies (“Rapport fait par M. de Tocqueville sur le projet de loi relatif aux crédits extraordinaires demandés pour l’Algérie” and discussions on Algeria, Moniteur universel, 24, 25 May, 1, 9, 10, 11, 12 June 1847, reproduced in OCB, IX, pp. 423-512 and in Écrits et discours politiques,OC, III, 1, pp. 308-409), Tocqueville insists, nonetheless, on the necessity of creating town institutions in Algeria. He sees it as a condition of the French colonial presence in that country (Écrits et discours politiques,OC, III, 1, p. 352). See Seymour Drescher, Dilemmas of Democracy: Tocqueville and Modernization (Pittsburgh: University of Pittsburgh Press, 1968), p. 61.

[f. ] Hervé de Tocqueville: “This does not seem to me to agree very well with what precedes. How does it develop almost in secret, if it has subsisted for a long time in the laws?” (YTC, CIIIb, 2, p. 84).

[g. ] In his notes on the government of India, Tocqueville sees in the permanence and power of the town the reason for the survival of Hindu culture through revolution and the lack of interest in general politics: “The entire political life of the Indians withdrew into the town; the entire administration was concentrated there. As long as the town still existed, who controlled the empire was of little importance to the inhabitants. They hardly noticed the change of masters” (Écrits et discours politiques,OC, III, 1, p. 450).

[1. ] In 1830, the number of towns, in the State of Massachusetts, was 305; the number of inhabitants 610,014; this gives an average of about 2,000 inhabitants per town.

[h. ] For Tocqueville, the lack of representation is the principal characteristic of the town; he gives the town a role similar to that of the small republic in the thought of Rousseau. If here he asserts that the lack of representation is a characteristic of the town across the Atlantic, in the Ancien Régime et la Révolution (OC, II, 1, pp. 119-20), he will admit that in the parish of the old regime he found the lack of political representation and other traits that he had formerly judged as belonging only to North America.

[3. ] Three are elected in the smallest towns; nine, in the largest. See The Town Officer, p. 186. Also see the principal laws of Massachusetts relative to the selectmen:

Law of 20 February 1786, vol. I, p. 219;—24 February 1796, vol. I, p. 488;—7 March 1801, vol. II, p. 45;—16 June 1795, vol. I, p. 473;—12 March 1808, vol. II, p. 186;—28 February 1787, vol. I, p. 302;—22 June 1797, vol. I, p. 539.

[4. ] See Laws of Massachusetts, vol. I, p. 250; law of 23 March 1786.

[5. ]Ibid.

[k. ] In the margin: “≠What makes town spirit powerful./

“Independence of the town.

“Importance of the town.

“Constant political life.

“Division of town powers.≠”

[6. ] All these magistrates actually exist in practice.

To know the details of the duties of all of these town magistrates, see the book entitled Town Officer, by Isaac Goodwin, Worcester 1829; and the collection of the general laws of Massachusetts in 3 vols., Boston, 1823.

[m. ] Tocqueville learned from Goodwin that in the United States the town inhabitants were obliged to contribute to the support of a Protestant minister. This seems to him nearly the sign of a State religion, and he says so to Sparks. Apparently in agreement, Sparks answers him: “It is one of those cases in which early prejudice, habit, and accidental causes, may pervert the sense of a majority and operate against the equal rights of the whole” (H.= B. Adams, Jared Sparks and Alexis de Tocqueville, p. 25).

[n. ] The manuscript says: “paid, little it is true, but enough, however, so that poor citizens . . .”

[o. ] I found myself in a Boston salon behind two respectable gentlemen who appeared to treat an important subject with interest:

“How much will that gain you much [sic]?” said one.

“It’s a fairly good business,” answered the other, “about one hundred dollars is given for each.”

“As you say,” replied the first, “that truly is a good business.”

Now, it concerned nothing less than two pirates who were to be hanged the next day. One of these speakers, who was the City Marshal, was obliged by his position to be present at the execution and to see that everything was done according to order. The law allocated to him for his right to be present one hundred dollars for each one hanged; and he spoke of these two condemned men like a pair of cattle that he had to sell the next day at the market.

Told by the consul (alphabetic notebook B, YTC, BIIa, and Voyage,OC, V, 1, p. 241).

[p. ] In the margin: “≠The dogma of sovereignty of the people, it must not be forgotten, has as its end not to make the people do all that they should want, but all that they do want.≠”

[q. ] Cf. conversations with Sparks and Mr. Gray (non-alphabetic notebooks 2 and 3, YTC, BIIa, and Voyage, p. 90, 96). See also H.= B. Adams, Jared Sparks and Alexis de Tocqueville, p. 18.

[r. ] Earlier draft: “≠I do not believe anyone has ever dared to profess that the duty and the right of a government was to watch over the governed in such a paternal way that they could not even do what can be of harm only to themselves.≠”

[7. ] See Laws of Massachusetts, law of 23 March 1786, vol. I, p. 250.

[8. ]Ibid., law of 20 February 1786, vol. I, p. 217.

[9. ] See the same collection, law of 2 June 1789, and 8 [10 (ed.)] March, 1827, vol. I, p. 367, and vol. III, p. 179.

[s. ] In the margin: “<The person who focuses his affections and his hopes on the town, who knows how to take his place there and to participate in its governance, that person possesses what I call town spirit.>”

[t. ] In the margin, in pencil, on a paper glued into place: “I do not know if this thought is very accurate. Witness, Poland.”

[u. ] The drafting of this sentence, and of the preceding one, is by Beaumont (YTC, CIIIb, 2, pp. 68-69). In this chapter, Tocqueville seems to have largely taken into account numerous stylistic suggestions made by Beaumont.

[v. ] In pencil in the margin: “≠There again, an idea that is a bit undeveloped and that consequently lacks clarity.≠”

[w. ] “Rights and duties are multiplied in the town in order to attach man by its benefits, like religion by its observances. Town life makes itself felt at every moment. Duty, flexible and easy to fulfill; social importance that that scatters” (YTC, CVb, p. 17).

[10. ] See the law of 14 February 1821, Laws of Massachusetts, vol. II, p. 551.

[11. ] See the law of 20 February 1819, Laws of Massachusetts, vol. II, p. 494.

[12. ] The Governor’s Council is an elected body.

[13. ] See the law of 2 November 1781, Laws of Massachusetts, vol. I, p. 61.

[x. ] In a working note for the draft of Ireland, Beaumont will write:

“—In Ireland political life is in the county, because Ireland is aristocratic.

—In America, in the town, because America is democratic.

—Among us, in the State, because France, still monarchical” (Beaumont, YTC, CX).

[y. ] In a first draft, this section was followed by that which treats the state.

[z. ] The style of the last three sentences had been modified following remarks by Beaumont (YTC, CIIIb, 2, p. 70).

[a. ] The manuscript mentions the following titles: “of administration in the united states,” “what is meant in the united states by administration and government. their means of action and their elements,” and “of executive power in the united states. of government and administration.”

[b. ] Hervé de Tocqueville: “I do not like the word authority here very much. It seems too generic to me to apply to the species; there is the authority of laws that cannot be diminished, nor that of the magistrates. I would prefer power. It would be dropped in the following sentence” (YTC, CIIIb, 2, p. 86 prima).

[c. ] Édouard de Tocqueville:

[d. ] In the margin of another version: “≠When democracy comes with mores and beliefs, it leads to liberty.

When it comes with moral and religious anarchy, it leads to despotism.≠”

[14. ] See The Town Officer, particularly the words Selectmen, Assessors, Collectors, Schools, Surveyors of Highways . . . Example among many others: the state forbids unnecessary travel on Sunday. It is the tythingmen, town officers, who are especially charged with using their authority to enforce the law.

See the law of 8 March 1792, Laws of Massachusetts, vol. I, p. 410.

The selectmen draw up the electoral lists for the election of the Governor and forward the result of the vote to the secretary of the republic. Law of 24 February 1796, id., vol. I, p. 488.

[15. ] Example: the selectmen authorize the construction of sewers, designate the locations where slaughterhouses can be built, and where certain types of business whose proximity is harmful can be established.

See the law of 7 June 1785, vol. I, p. 193.

[e. ] In the first draft: “≠The administration in societies where the legislative and executive powers are not concentrated in the same hands {where the principle of sovereignty of the people reigns} has only two obligations:

• 1.

  To execute the existing laws.

• 2.

  To provide for the unforeseen accidents of social life.≠”

[16. ] Example: the selectmen attend to public health in case of contagious diseases, and jointly with the justices of the peace, take necessary measures. Law of 22 June 1797, vol. I, p. 539 [549 (ed.)].

[17. ] I say almost, because there are several incidents of town life that are regulated, either by a justice of the peace in their individual capacity, or by the justices of the peace assembled as a body at the county-seat. Example: it is the justices of the peace who grant licenses. See the law of 28 February 1787, vol. I, p. 297.

[f. ] Initially, Tocqueville wrote more specifically: “≠In the French town the mayor is only the representative of an official at a higher level than he; his power is only the reflection of a superior power, a delegation of authority; the representative must always disappear before the one who gave the mandate.≠”

[18. ] Example: a license is granted only to those who present a certificate of good conduct given by the selectmen. If the selectmen refuse to give this certificate, the person can complain to the justices of the peace assembled in the court of sessions, and they can grant the license. See the law of 12 March 1808, vol. II, p. 186. The towns have the right to make regulations (bylaws) and to require the observation of these bylaws by fines the level of which are fixed; but these bylaws must be approved by the court of sessions. See the law of 23 March 1786, vol. I, p. 254.

[19. ] In Massachusetts, the county administrators are often called to assess the acts of the town administrators; but we will see later that they engage in this examination as a judicial power, and not as an administrative authority.

[20. ] Example: the town school committees are bound to make an annual report on the state of the school to the secretary of the republic. See the law of 10 March 1827, vol. III, p. 183.

[g. ] Administrative and judicial powers./

Among all nations there are two methods of executing the laws:

The administrative method.

The judicial method.

The administrative method always addresses the cause; the other, the effect. The one is direct; the other, indirect.

Example: a town makes an illegal decree.

The executive power quashes it. The judicial power prevents it from having any effects and protects those who resist it.

An obstruction arises on the public road. The executive power has it removed; the judicial power gets to the same end indirectly by fining those who caused it (YTC, CVb, pp. 19-20).

[h. ] Centralization. Town liberties.

In France there are two means available against the decisions of the Administration, an administrative means and a judicial means.

When an agent of the administration orders something contrary to the law, you can apply to his superior and have his decision changed.

In the same situation, you can refuse to obey, and then the question comes before the courts that decide indirectly if the official had the right to issue the order. See a discussion where these ideas are treated by Odilon Barrot. Débats [Journal des débats (ed.)] of 1 March 1834 (YTC, CVj, 2, pp. 26-27).

Tocqueville’s papers contain an article clipped from the Journal des débats of the same date, relating to the discussion on 28 February 1834 on the municipal law (copied in YTC, CVj, 2, pp. 27-46). On the occasion of the debate, Barrot defends the independence of the French towns against Thiers and the government, which took a position in favor of a strict control of the mayor by the prefect.

[j. ] “Where there is election, the supervision by the superior official of his inferior is less necessary. Elections deal with negligence; the courts, with misdeed.

Be careful to distinguish carefully what is judicial from what is administrative. Nearly all the administration strictly speaking is concentrated in the towns; it is only a matter of having them fulfill their obligations” (YTC, CVb, p. 6).

[k. ] Hervé de Tocqueville: “This sentence is abstract.”

Édouard de Tocqueville: “It is very concise. I do not find it obscure” (YTC, CIIIb, 2, p. 87).

Gustave de Beaumont: “Excellent sentence. Do not listen to paternal advice” (YTC, CIIIb, 2, p. 72).

[m. ] Édouard de Tocqueville: “I would like there: that generally make magistrates little capable, etc.. . . No one must be hurt, and by allowing for exceptions, everyone applies the exception to himself; besides, I believe that there really are some” (YTC, CIIIb, 2, p. 82).

[n. ] Édouard de Tocqueville (?):

Note 21 does not exist in the manuscript.

[21. ] We will see further on what the Governor is; I must say at this moment that the Governor represents the executive power of the whole state.

[22. ] See the Constitution of Massachusetts, chap. II, section I, paragraph 9; chap. III, paragraph 3.

[23. ] Example among many others: a stranger arrives in a town, coming from a country ravaged by a contagious disease. He falls ill. Two justices of the peace, with the advice of the selectmen, can order the county sheriff to transport him elsewhere and to watch over him. Law of 22 June 1797, vol. I, p. 540.

In general, the justices of the peace intervene in all the important acts of administrative life and give them a semi-judicial character.

[24. ] I say most because in fact certain administrative crimes are referred to the ordinary courts. Example: when a town refuses to raise the funds needed for its schools, or to appoint the school committee, a very considerable fine is imposed. The court called supreme judicial court or the court of common pleas pronounces this fine. See the law of 10 March 1827, vol. III, p. 190. Id. When a town fails to make provision for war supplies. Law of 21 February 1822, vol. II, p. 570.

[26. ] The things relating to the county and that the court of sessions attends to can be reduced to these:

1. The building of prisons and courts of justice; 2. The proposed county budget (it is the state legislature that votes on it); 3. The apportionment of these taxes thus voted; 4. The distribution of certain licenses; 5. The establishment and repair of county roads.

[27. ] When it is a matter of a road, this is the way that the court of sessions, with the help of the jury, settles nearly all the difficulties of execution.

[28. ] See the law of 20 February 1786, vol. I, p. 217.

[29. ] There is an indirect way to make the town obey. The towns are compelled by law to keep their roads in good condition. If they neglect to vote the funds required for this maintenance, the town magistrate responsible for the roads is then authorized, as a matter of course, to raise the needed money. Since he is himself responsible to individuals for the bad condition of the roads, and can be sued by them before the court of sessions, it is assured that he will exercise against the town the extraordinary right given to him by the law. Thus, by threatening the officer, the court of sessions forces the town to obey. See the law of 5 March 1787, vol. I, p. 305.

[30. ]Laws of Massachusetts, vol. II, p. 45.

[p. ] Hervé de Tocqueville: “Que,qui,que within a few lines. I do not know why, when the thought is powerful, the style drags. It comes from repeated use of c’est que,il n’y a que; you must fight to the death against them. In a work of this type a concise and dogmatic sentence is better than a drawn-out sentence. Example: Montesquieu” (YTC, CIIIb, p. 109).

[31. ] Example: if a town stubbornly persists in not naming assessors, the court of sessions names them, and the magistrates chosen in this way are vested with the same powers as the elected magistrates. See the law already cited of 20 February 1787.

[q. ] In the margin: “≠Perhaps enumerate them at this time.

Human dignity.

Legal, not arbitrary habits.

People at their business.≠”

[32. ] I say attached to the court of sessions. There is a magistrate, attached to the ordinary courts, who fulfills several of the functions of the public prosecutor’s office.

[[*]. ] <≠Far from wanting to create a magistrate of this kind, the Americans have, on the contrary, such a great fear of combining too much administrative power in the same hands, that when they assign responsibility to someone for suing for administrative crimes, they hardly ever choose the most important officials.

Should a town refuse to raise the state tax, it is not the Governor who notifies the court of sessions, it is the state Treasurer. L[aws (ed.)] of M[assachusetts (ed.)], vol. I, p. 209.

Should an assessor refuse to accept the functions that are granted to him, it is not the selectmen who sue, it is the town treasurer. Id., vol. I, p. 218.≠>

[33. ] Grand juries are obliged, for example, to inform the courts about the bad condition of the roads. Laws of Massachusetts, vol. I, p. 308 [307-308 (ed.)].

[34. ] If, for example, the county treasurer does not provide his books. Laws of Massachusetts, vol. I, p. 406.

[35. ] Example among many: an individual damages his vehicle or is hurt on a poorly maintained road; he has the right to ask the town or the county responsible for the road for damages before the court of sessions. Laws of Massachusetts, vol. I, p. 309 [307-308 (ed.)].

[36. ] In case of invasion or insurrection, when the town officers neglect to provide the militia with necessary equipment and supplies, the town may be fined 200 to 500 dollars (1000 to 2700 [2500 (ed.)] francs). It can easily be imagined that, in such a case, it could happen that no one would have either the interest or the desire to take the role of accuser. Consequently, the law adds: “[the fine is] to be sued for and recovered by any person, who may prosecute for the same, [. . .(ed.). . .] one moiety to the prosecutor.” See the law of 6 March 1810, vol. II, p. 236.

The same arrangement is found very frequently reproduced in the laws of Massachusetts.

Sometimes it is not the individual that the law incites in this way to sue public officials; it is the official who is encouraged to have the disobedience of particular individuals punished. Example: an inhabitant refuses to do the share of work assigned to him on a major roadway. The surveyor of roads must sue him; and if the surveyor has him found guilty, half of the fine comes to him. See the laws already cited, vol. I, p. 308.

[37. ] See, for detail, The Revised Statutes of the State of New York, at part I, chap. XI, entitled: Of the Powers, Duties and Privileges of Towns, vol. I, pp. 336-64.

See in the collection entitled: Digest of the Laws of Pennsylvania, the words Assessors, Collectors, Constables, Overseers of the Poor, Supervisors of highways. And in the collection entitled: Acts of a General Nature of the State of Ohio, the law of 25 February 1824, relating to the towns, p. 412. And next, the particular arrangements relative to the diverse town officers, such as: Township’s Clerks, Trustees, Overseers of the Poor, Fence Viewers, Appraisers of Property, Township’s Treasurers, Constables, Supervisors of Highways.

[38. ] See Revised Statutes of the State of New York, part I, chap. XI, vol. I, p. 340. Id. chap. XII; id., p. 366. Id.,Acts of the State of Ohio, law of 25 February 1824, relating to the county commissioners, p. 263. See Digest of the Laws of Pennsylvania, the words County Rates, and Levies, p. 170.

In the state of New York, each town elects a deputy, and this deputy participates at the same time in the county administration and in that of the town.

[r. ] In the margin: “≠Ask L[ouis (ed.)] and B[eaumont (ed.)] if it is necessary to support these generalities with notes. Here either very minutely detailed notes are needed or nothing.≠”

[s. ] “To place.

Jealousy of legislatures against intermediate bodies.

In New England the justice of the peace prepares the county budget; it is the legislature that votes on it. In the state of New York it is a representation of the county that votes on the tax, but its power is confined to very narrow limits” (YTC, CVh, 5, p. 13).

[t. ] Hervé de Tocqueville: “It seems to me that you cannot say as positively that these administrators are chosen by the inhabitants since you have taught us that the justices of the peace are chosen by the Governor” (YTC, CIIIb, 2, p. 111). Cf. note 48.

[[*]. ] I say this because in the laws of Tennessee, which are probably those found among all those of Virginian descent, the justices of the peace or magistrates composing the county court (who hold their offices during good behavior) are in charge of the entire administration. I believe that it is purely and simply the English system.

[v. ] “No hierarchy and no centralization, character of American administration. So in the town, more powers and more magistrates than in the French town, but all independent.

“Division of powers among those charged with making them fulfill their duties. Finally, when they are concentrated, it is in a judicial body, that is to say, legal and far from arbitrary [v: slave to forms]” (YTC, CVb, p. 16).

[40. ] Example: the running of public education is centralized in the hands of the government. The legislature appoints the members of the university, called regents; the Governor and the Lieutenant-Governor of the state are members ex officio. (Revised Statutes, vol. I, p. 456). The regents of the university visit the colleges and universities each year and submit an annual report to the legislature; their supervision is not illusory, for the following particular reasons: the colleges, in order to become corporations that can buy, sell and own, need a charter; but this charter is granted by the legislature only on the advice of the regents. Each year the state distributes to the colleges and academies the interest from a special fund created to encourage education. It is the regents who are the distributors of this money. See chap. XV, Public Education, Revised Statutes, vol. I, p. 455.

Each year, the boards of public schools are required to send a report on conditions to the superintendent of the Republic, Id., p. 488.

A similar report on the number and condition of the poor must be made annually to him. Id., p. 631.

[41. ] When someone believes himself wronged by certain acts coming from the school commissioners (these are town officers), he can appeal to the superintendent of primary schools whose decision is final. Revised Statutes, vol. I, p. 487.

You find here and there, in the laws of the state of New York, provisions analogous to those I have just cited as examples. But in general these tentative efforts at centralization are weak and not very productive. While the highest officials of the state were given the right to supervise and direct inferior agents, they were not given the right to reward or punish them. The same man is hardly ever charged with giving the order and with suppressing disobedience; so he has the right to command, but not the ability to make himself obeyed.

In 1830, the superintendent of schools, in his annual report to the legislature, complained that several school commissioners, despite notice from him, had not forwarded the accounts they owed him. “If this omission occurs again, he added, I will be reduced to prosecuting them to the full extent of the law before the courts of competent jurisdiction.”

[42. ] Example: the district attorney in each county is charged with suing for the recovery of all fines above 50 dollars, as long as this right has not been expressly granted by law to another magistrate. Revised Statutes, part I, chap. XII, vol. I, p. 383.

[43. ] There are several signs of administrative centralization in Massachusetts. Example: the town school boards are charged with making an annual report to the Secretary of State. Laws of Massachusetts, vol. I, p. 367.

[45. ] In Massachusetts, the Senate is vested with no administrative function.

[y. ] Division of administrative power, concentration of legislative power. American principle (important).

The legislature most often appoints special agents to enforce its will. Thus, power not even regular or necessary executor of the laws.

The Governor’s veto is not a barrier to the democracy, the Governor emanating entirely from it. Only the judges are a real barrier.

Not only is power divided among several hands, but the exercise of power is divided. The Governor cannot appoint the official and direct him at the same time. Subtle and dubious.

The institution of the senate is a barrier to the democracy because named for a longer time; they [sic] are not as immediately subject to the fear of not being reelected (YTC, CVb, pp. 15-16).

[z. ] Tocqueville, it must be remembered, was part of the commission charged with drafting the constitution of 1848. There, he defended the division of legislative power into two branches. This idea came to nothing. In his Souvenirs (OC, XII, pp. 148-87), he gives some details about it. The notes taken by Beaumont during the work of the commission offer in this regard some interesting, previously unpublished details (YTC, DIVk). Beaumont notes as follows, in a rapid and necessarily schematic fashion, Tocqueville’s answers to the proposal of Marrast concerning the creation of a single chamber (25 May 1848):

[[*]. ] See the Constitution of Massachusetts, chap. I, part II, chap 11.

[47. ] In practice, it is not always the Governor who carries out the enterprises conceived by the legislature; often, at the same time that the latter votes a principle, it names special agents to oversee its execution.

[48. ] In several states, the justices of the peace are not appointed by the Governor.

[a. ] The manuscript says: “. . . he is tied by the shortest possible chain to the body from which he emanates.”

Édouard de Tocqueville: “This sentence is absolutely unintelligible. Why? What do you mean by the body from which he emanates? From what body does he emanate? And how is he tied to this body by the shortest possible chain by the fact that he is named for only two years? I repeat, I do not understand this paragraph at all” (YTC, CIIIb, 2 p. 112).

[b. ] In the manuscript, at the end of the first chapter, is a cover sheet with the title: Of the real influence that the President exercises in the conduct of public affairs [in the margin: Real and habitual influence in foreign affairs, almost entirely personal influence in domestic affairs./Study to do.]; in it, the following fragment on the Governor is found:

[c. ] Letter of Édouard de Tocqueville to his brother, Alexis:

[d. ] “The power to have men and money, such in sum is governmental centralization” (YTC, CVb, p. 12).

Beaumont thus summarizes the intervention of Tocqueville in favor of governmental centralization during the session of the constitutional commission on 31 May 1848:

[e. ] “Administrative centralization does not create strength within a nation, but despotism” (YTC, CVb, p. 25).

[f. ] Variant: “<≠The first, which I will call governmental centralization, is the concentration in a single hand or in the same place of the great social powers. The power to make the general laws and the strength to force obedience to them. The direction of the foreign affairs of the State and the means to succeed in them.

The second type of centralization, which I will name administrative centralization, is the concentration in a single hand or in the same place of the power to regulate the ordinary affairs of society, to rule the diverse parts of the State in the direction of their special affairs and to be in charge of the daily details of their existence.≠>”

[g. ] “In France the administrative power has been placed at the center, not because it was in itself more useful there, perhaps the opposite, but in order to increase political power, which is different” (YTC, CVb, p. 10).

[h. ] In the essay on the French administration drafted in response to the request for information from his son, Hervé de Tocqueville remarks:

After having praised the effects of centralization on the accountability of the French towns, he adds:

And further along:

It is difficult to establish the precise influence that the report of the author’s father, the letters of Chabrol and Blosseville, the conversations and correspondence with Sparks had on the formation of Tocqueville’s ideas on centralization. If all of this material was able to help him clarify several points, it seems that his ideas on centralization date at least from the first days of his journey on American territory.

In a letter to his father of 3 June 1831, that is, four months before asking for help, Tocqueville already referred to centralization: “All that there is of good in centralization seems to be as unknown as what there is of bad; no central idea seems to regulate the movement of the machine” (OCB, VII, p. 21). The theme is found again a month later in a letter also addressed to his father:

Two months before meeting Sparks, 29 June 1831, he had written to Louis de Kergorlay in nearly identical terms (Correspondance avec Kergorlay,OC, XIII, I, pp. 233-34). See George W. Pierson, Tocqueville and Beaumont in America, p. 363; and James T. Schleifer, The Making of Tocqueville’s “Democracy in America,” pp. 122-23. See note q for p. 150.

Tocqueville returns to this subject in his report on Algeria (Écrits et discours politiques,OC, III, 1, especially pp. 331-38). There he denounces an excess of administrative centralization and a lack of political centralization. Algeria opens to Tocqueville a potential for political creativity in which he envisions using the theoretical tools forged in America. More than once, Tocqueville encounters in French Africa situations entirely similar to those at the beginning of the American colonies. His intervention in parliament retains a certain transatlantic flavor easy to detect. The project of buying land in Algeria with Kergorlay, which would come to nothing, is there to attest to his interest in the colony. See the reports and parliamentary interventions, published in the Moniteur Universel, 24 and 25 May, and 1, 9, 10, 11, and 12 June 1847 (reproduced in OCB, IX, pp. 423-512, and in Écrits et discours politiques,OC, III, 1, pp. 308-409). His travel notes and other writings on Algeria also contain numerous references to centralization and to other American subjects. Cf. note f for p. 1210 of volume II.

[j. ] In the manuscript: “. . . to diminish the number of citizens.. . .”

[k. ] In the manuscript: “. . . the greatness of a man, but not that of the State.”

Gustave de Beaumont:

[m. ] The same idea appears in Beaumont, Irlande, vol. II, pp. 157-59.

[n. ] In the margin: “≠Perhaps all of that to delete as irrelevant.≠”

[[*]. ] “≠Truthfully, in France, the provinces have never administered themselves; it was always the authority of one man that was exercised and that regulated, directly or indirectly, all the affairs of society. Only, the administrative range was limited; the Revolution of 1789 just extended it.≠”

[o. ] In the margin: “<{To review the part on centralization and perhaps shorten it. Advice of Beau[mont (ed.)].}>”

[p. ] In the manuscript: “Next to it and close at hand is found an executive power, absolute head of physical force, to compel the minorities to obedience.”

[q. ] In a letter to Ernest de Chabrol, Tocqueville explained:

[[*]. ] The creation of paid and standing military bodies to suppress or to prevent insurrections has already happened in Massachusetts and in Pennsylvania. See Federalist, p. 115 [No. 28 (ed.)].

[r. ] Variant in a draft: “. . . but because the central power is constantly in different hands and is subordinated to popular power, a power eminently variable by nature and, for this reason, incapable of governing society for long” (YTC, CVb, p. 1).

[s. ] In a first version, under a paper glued into place: “{Executive power is nothing while remaining in their hands. This is, moreover, an inherent weakness in completely [uncertain reading (ed.)] democratic government. See the Federalist, p. 213 [No. 48 (ed.)].}”

[t. ] In the margin:

Recall the words of Montesquieu: “No tyranny is more cruel than the one you exercise under the cloak of the laws and with the colors of justice: when, so to speak, you drown the unfortunate on the very plank on which they were saved.” Considérations sur les causes de la grandeur des Romains et de leur décadence, in Œuvres complètes (Paris: Pléiade, 1951), II, chapter XIV, p. 144. Cf. note o for p. 1228 of the fourth volume.

[49. ] The authority that represents the state, even when it does not itself administer, must not, I think, relinquish the right to inspect local administration. I suppose, for example, that a government agent, placed at a set post in each county, might refer crimes that are committed in the towns and in the county to the judiciary. In this case, would not orderly organization be more uniformly followed without compromising the independence of the localities? Now, nothing like this exists in America. Above the county courts, there is nothing; and in a way, only by chance are these courts made officially aware of administrative crimes that they must suppress.

[50. ] China seems to me to offer the most perfect symbol of the type of social well-being that can be provided by a very centralized administration to the people who submit to it. Travelers tell us that the Chinese have tranquillity without happiness, industry without progress, stability without strength, physical order without public morality. Among them, society functions always well enough, never very well. I imagine that when China opens to Europeans, the latter will find there the most beautiful model of administrative centralization that exists in the universe.

[u. ] To the side, in the manuscript: “≠Louis advises placing this elsewhere, but where?≠”

[v. ] In the margin: “≠{The small details of} social {order} are generally neglected, but in short the guarantees essential to man in society exist as much in America as everywhere else.≠”

[x. ] “The admirable effect of republican governments (where they can subsist) is not to present a glimpse of regularity, of methodical order in the administration of a people, but the picture of life. Liberty does not carry out each of its enterprises with the same perfection as intelligent despotism, but in the long run, it produces more than intelligent despotism” (pocket notebook 3, YTC, BIIa, and Voyage,OC, V, 1, p. 184).

[y. ] Original version in one of the drafts:

Tocqueville defends the preeminence of social and intellectual habits over laws; it is therefore inevitable that he finds Montesquieu’s idea of despotism based far too much on legal criteria. The author seems to be more concerned with the problems envisioned by Montesquieu than with the solutions he proposes, which does not, for all that, reduce the influence of the author of Esprit des lois. Nonetheless, Kergorlay denies a stylistic influence of Montesquieu on his friend (“Étude littéraire sur Alexis de Tocqueville,” Correspondant 52 (1861): 758-59): “I would not go so far as to say that Tocqueville never, at any period of his literary life, sought in Montesquieu some models to follow. But it was only in a quite secondary manner, not very lasting and not very effective.” On the other hand, Kergorlay recognizes the influence of Pascal, Voltaire and La Bruyère. On the influence of Montesquieu, see Melvin Richter, “Modernity and Its Distinctive Threats to Liberty: Montesquieu and Tocqueville on New Forms of Illegitimate Domination,” in Michael Hereth and Jutta Höffken, eds., Alexis de Tocqueville. Zur Politik in der Demokratie, Baden Baden: Nomos, 1981, pp. 362-98.

[z. ] Édouard de Tocqueville: “How did Louis XIV, Peter the Great, Frederick, Bonaparte, not give great power to their nations? And with them what became of the free collaboration of wills?” (YTC, CIIIb, 2, p. 113).

[a. ] The example was provided to Tocqueville by Mr. Quincy, President of Harvard University, 20 September 1831 ([non-[alphabetic notebooks 1 and 2, YTC, BIIa, and Voyage,OC, V, 1, pp. 89-90).

[b. ] Once a man has contracted the habit of obeying a foreign and arbitrary will in nearly all the actions of his life, and notably in those that come closest to the human heart, how do you expect him to conceive a true taste for great political liberty and independence in general actions?

Town institutions not only give the art of using great political liberty, but they bring about the true taste for liberty. Without them, the taste for political liberty comes over peoples like childish desires or the hotheadedness of a young man that the first obstacle extinguishes and calms (YTC, CVh, 1, pp. 1-2; the same fragment is found, almost word for word, in YTC, CVe, p. 61).

[c. ] In the margin: “≠That is, you have wanted to make a city without citizens, a republic with subjects [v: servants] submitted to a clerk [v: and transform servants of a clerk into republicans] [v: and place the spirit of liberty in the very midst of servitude].” On the idea of citizenship as participation, see Doris S. Goldstein, “Alexis de Tocqueville’s Concept of Citizenship,” Proceedings of the American Philosophical Society 108, no. 1 (1964): 39-53.

[d. ] “Ask Mr. Feuillet if there is a book that can give basic ideas about the French constitution in 1789” (YTC, CVb, p. 33). Feuillet was the librarian at the Bibliothèque Royale. See note v for pp. 1110-13 of the fourth volume.

[f. ] The manuscript indicates that Tocqueville at one moment considered the possibility of placing here a section entitled of the excellence of town institutions.

[g. ] To the side: “≠Aristocrats and democrats, royalists and republicans.≠”

[a. ] This chapter and the following one are not found in the copy read by friends and family, which suggests that they were included belatedly in the project. From the beginning of the voyage, Tocqueville, as a lawyer, showed a lively interest in how the American judicial power functioned. Notebook F of his travel notes is devoted exclusively to civil and criminal law in America (YTC, BIIa, and Voyage, OC, V, 1, pp. 296-335); and in the first plans of the book (YTC, CVh, 1, pp. 20-31) the judicial power, as well as the civil and criminal laws, occupy an important place. Beyond the notebook cited, a great number of commentaries on the American judicial power appear in the other notebooks of the travel diaries and in the correspondence. There are certain indications that Tocqueville had in particular asked his friend, Élie de Beaumont, judge at Versailles, for information about the French judicial power. We recall that Tocqueville used this method of comparing the situation in France with that in the United States when he considered centralization. A letter from Tocqueville to another magistrate, Ernest de Chabrol, dated November 26, 1831 (YTC, BI a2) contains, along with a description of the American jurisdictional organization, a reference to an earlier note on justices of the peace; the note was a reflection made in a letter (apparently lost) addressed to Élie de Beaumont. Another possible source of information is mentioned in a rough draft: “Speak to Mr. Livingston about the American judicial system” (YTC, CVh, 3, p. 10).

[b. ] Judicial power./

The most original and most difficult part to understand of all the American constitution. Elsewhere there have been confederations, a representative system, a democracy; but no where a judicial power organized as that of the Union.

How the judicial power of the Union is conservative without harming that great principle of the necessity of a single dominating principle in constitutions. It slows, it cannot stop the people, because the latter by changing the constitution can always arrive at what they desire.

How all the laws that challenge the judicial power in America are truly destructive of order and of liberty (YTC, CVh, 5, p. 40).

[c. ] “≠In my eyes, the constitution of the judicial power forms the newest and most original portion of the entire political system of the Americans≠” (YTC, CVh, 4, pp. 16-17).

[d. ] In the margin: “≠The oath is therefore a very rational consequence of very absurd principles.≠”

[e. ] In the margin, with a mark: “≠Is this true?≠”

[g. ] “In France {during the Restoration}, we have often seen the executive power seek to reduce judicial authority, while the democratic party sought with all its efforts to raise it up. It seems to me that on both sides they acted against themselves” (YTC, CVh, 5, pp. 26-27).

[h. ] Note: “≠This is what happened particularly at the time of the constitution of the year VIII. The senate was established as overseer of the other powers, and it had to denounce to the legislative bodies attacks against the constitution. We know that it refrained from doing so on any occasion. Under Napoleon’s son, this very senate could perhaps have hindered the legal course of government.≠”

[j. ] “≠The absence of administrative centralization is more a fortunate circumstance than the result of the wisdom of the law-maker. But the judicial power in the United States is a barrier raised by design against the omnipotence of the majority. It can be considered as the only powerful or real obstacle that the American laws have placed before the steps of the people≠” (YTC, CVh, 4, pp. 16-17).

“Judicial power in general./

“Utility of the judicial power to oppose the encroachments of popular power. See Kent, vol. 1, p. 275” (YTC, CVh, 5, p. 41).

[Translator’s Note 4: ] For this chapter, there is no totally satisfactory way to translate jugement politique. The most direct translation, political judgment, is extremely ambiguous. For want of a better alternative, I have decided to use the traditional translation, political jurisdiction, since the chapter has to do with the right of a political body, in particular circumstances, to bring to trial, to judge and to punish a public figure.

[a. ] In the margin:

[1. ] The court of Lords in England furthermore forms the last appeal in certain civil matters. See Blackstone, book III, chap. IV.

[b. ] In the margin: “I find nothing in Blackstone that justifies this distinction. However I think it is correct.”

[c. ] To the side: “≠Action of the two systems.

“French system more effective, more dangerous.

“American system more just, more rational in the separation of power. Less effective in times of crisis, more everyday.≠”

[2. ] Not that his rank can be taken from an officer, but he can be removed from his command.

[d. ] The Massachusetts Constitution reads: “The senate shall be a court with full authority to hear and determine all impeachments made by the house of representatives, against any officer or officers of the commonwealth, for misconduct and mal-administration in their offices.”

[3. ] Chap. 1, sect. II, § 8.

[4. ] See the constitutions of Illinois, Maine, Connecticut and Georgia.

[1. ] See the text of the federal Constitution. [In Appendix in the first editions (ed.)]

[a. ] In the margin: “≠Where to find the outline of the first federation?

“Bad result of the first federation. See Federalist, p. 60 [No. 15 (ed.)].≠”

The Federalist is, without any doubt, the work that Tocqueville cites most often. Its decisive influence on the drafting of this chapter must be recognized, even if such an influence on the whole book is difficult to define and remains to be determined. When Tocqueville reads the Federalist, he certainly has in mind, and at hand, Montesquieu and Rousseau. He rediscovers many of their ideas in the American work. An initial examination of the citations taken from the work seems to indicate that, above all, Tocqueville found in it a confirmation of his own ideas. This does not mean, as has often been asserted, that he intentionally omitted citations of the text in other chapters. If undeniable similarities exist between the American text and the Democracy, they demonstrate the result of a shared origin of ideas between the two texts more than a direct influence of the first book on the second. Another important work concerning information on the political organization of the United States is the commentaries on the Constitution by Justice Joseph Story. In a letter to Francis Lieber of May 9, 1840, Story, apparently unable to recognize the significance of the Democracy, judges that Lieber’s knowledge of the American political system is much superior to that of Tocqueville; according to Story, Tocqueville simply took his ideas from the Federalist and from Story’s own book on the American Constitution (Life and Letters of Joseph Story, Boston: Charles C. Little and James Brown, 1851, vol. II, p. 330). John W. Henry Canoll (“The Authorship of Democracy in America,” Historical Magazine 8, no. 9 (1864): 332-33), who reports the words of Mgr. Alexander Vattemare, asserts that the American author who had a direct influence on Tocqueville’s thought is John C. Spencer. According to Canoll, Tocqueville would have shown Spencer a plan of his work; the latter would have reviewed and criticized it and, after numerous interviews, would have given the canvas of the Democracy to the author.

[b. ] In the margin:

[2. ] See the articles of the first confederation formed in 1778. This federal constitution was adopted by all the States only in 1781.

Also see the analysis that the Federalist makes of this constitution, from No. 15 to No. 22 inclusive, and Mr. Story in his Commentaries on the Constitution of the United States, pp. 85 [84 (ed.)]-115.

[c. ] Hervé de Tocqueville: “I do not know if you shouldn’t say: of the constitution” (YTC, CIIIb, 3, pp. 9-10).

[3. ] Congress made this declaration on February 21, 1787.

[d. ] The manuscript says: “. . . that the vain imagination . . .”

Hervé de Tocqueville: “I would cross out the word vain in order not to shock the Americans among whom the book should have a great deal of success” (YTC, CIIIb, 3, p. 10).

[e. ] In the margin: “≠If you want to know what a people can do for its independence, it is not America that you must look at.≠”

[f. ] Hervé de Tocqueville: “If you keep this paragraph, you must suppress this last sentence which is declamatory, vague and could be interpreted as praise for violence in the manner of Thiers” (YTC, CIIIb, 3, p. 10).

In a bundle of notes where Tocqueville had gathered information for new chapters, the following title is found: Of the Great Men of America and of Washington in Particular (YTC, CVh, 1, p. 1).

[5. ]It was not the legislators who adopted it. The people named deputies for this express purpose. In each of these assemblies the new Constitution was the object of thorough discussion.

[k. ] In the margin: “I believe that the principle of the unity of the American people regarding the matters provided for in the Constitution—principle rich in consequences and which you come back to constantly—must be placed at the beginning of this part (I do not know where).”

[6. ]See amendments to the federal Constitution. Federalist, No. 32. Story [Commentaries (ed.)], p. 711. Kent’s Commentaries, vol. I, p. 364.

Note indeed that, whenever the Constitution has not reserved to Congress the exclusive right to regulate certain matters, the states can do so, while waiting for Congress to choose to take charge of them. Example: Congress has the right to pass a general bankruptcy law; it doesn’t do so; each state could pass one in its own way. This point was established, moreover, only after discussion before the courts. It is only jurisprudence.

[7. ] The action of this court is indirect, as we will see later.

[9. ] See Constitution, sect. VIII. Federalist, Nos. 41 and 42. Kent’s Commentaries, vol. I, p. 207 and following. Story [Commentaries (ed.)], pp. 358-82; id., pp. 409-26.

[10. ]There are also several other rights of this type, such as that to pass a general law on bankruptcy, to grant patents. . . . What made the intervention of the whole Union necessary in these matters is felt well enough.

[11. ]Even in this case, its intervention is indirect. The Union intervenes through its courts, as we will see further on.

[12. ]Federal Constitution, sect. X, art. 1.

[13. ] Constitution, sect. VIII, IX and X. Federalist, Nos. 30-36, inclusive. Id., 41, 42, 43, 44. Kent’s Commentaries, vol. I, pp. 207 and 381. Story, id., pp. 329-514.

[o. ] In a variant of the manuscript: “≠You can even say that the necessity of governmental centralization was better understood by them than it was in several of the monarchies of Europe.≠”

[p. ] Throughout the book, Tocqueville uses the words federation and confederation with not much precision.

[q. ] In the manuscript: “each province.”

[r. ] In the manuscript: “legislative power.”

[t. ] “Political assemblies./

“The more numerous they are, the more prone they are to the oligarchical direction of some members. See Federalist, p. 235 [No. 58 (ed.)].

“January 30, 1832, Washington. Small number of the members of Congress” (YTC, CVe, p. 51; this note is not reproduced in Voyage,OC, V, 1).

[u. ] “Ask Mr. Livingston or other Americans at the nomination of the King what the current rule of apportionment for the representatives is” (YTC, CVb, p. 34).

[14. ]Every ten years, Congress again fixes the number of deputies that each state must send to the House of Representatives. The total number was 69 [65 (ed.)] in 1789; it was 240 in 1833. (American Almanac, 1834, p. 194 [124 (ed.)].)

The Constitution had said that there would not be more than one representative for 30,000 inhabitants; but it did not set a lower limit. Congress has not believed that it had to increase the number of representatives in proportion to the growth of the population. By the first law that dealt with this subject, April 14, 1792 (see Laws of the United States by Story, vol. I, p. 235), it was decided that there would be one representative for 33,000 inhabitants. The last law, which occurred in 1832, set the number at 1 representative for 48,000 inhabitants. The population represented is composed of all free men and three-fifths of the number of slaves.

[v. ] Hervé de Tocqueville: “I would prefer new, for if they are young in terms of establishment, they are old in terms of civilization” (YTC, CIIIb, 3, p. 12).

[w. ] In the manuscript: “other differences between . . .”

[15. ]See Federalist, Nos. 52-66, inclusive. Story [Commentaries (ed.)], pp. 199-314. Constitution, sect. II and III.

[16. ] Federalist, Nos. 67-77, inclusive. Constitution, art. 2. Story [Commentaries (ed.)], p. 315, pp. 515-80. Kent’s Commentaries [vol. I (ed.)], p. 255 [235 (ed.)].

[y. ] In the manuscript: “The Americans have not been able to destroy the inclination [v: tendency], but they have made it less irresistible [v: rapid].”

Gustave de Beaumont:

[z. ] Dissimilarity and similarity between the President and the King of England. Federalist, pp. 295 and 300 [No. 69 (ed.)].

America.

1.Elective magistrate.

2.Subject to the courts, accountable.

3.Qualified veto.

4.Commands the militia, but only in time of war.

5.Cannot pardon in case of impeachment.

6.He cannot adjourn the legislature except in a case allowed.

7.He can make treaties only with two-thirds of the Senate.

8.He can only appoint to office with the advice and consent of the Senate.

9.He can prescribe no rule concerning commerce and monetary system of the country.

10.He has no ecclesiastical jurisdiction whatsoever.

England.

1.Hereditary.

2.Inviolable.

3.Absolute veto.

4.At all times and throughout the kingdom.

5.In all cases.

6.He can always prorogue and dissolve Parliament.

7.He alone makes treaties. He is the only representative of England abroad.

8.He appoints to all offices, even creates offices, and beyond that can confer a multitude of graces, either honorary or lucrative.

9.On certain points he is the arbiter of commerce; he can establish markets, regulate weights and measures, strike money, set an embargo.

10.He is the head of the national church (YTC, CVh, 1, pp. 58-59).

[a. ] Édouard de Tocqueville:

[17. ]The Constitution had left it doubtful whether the President was required to ask the advice of the Senate in the case of removal, as in the case of nomination of a federal official. The Federalist, in No. 77, seemed to establish the affirmative; but in 1789, Congress decided with all good reason that, since the President was accountable, he could not be forced to use agents that did not have his confidence. See Kent’s Commentaries, vol. I, p. 289.

[b. ] In the margin: “≠This fact, the sovereignty of the people, the capital point common to the two countries, gives a similarity to their constitutions despite the diversity of the laws.≠”

[18. ]The sums paid by the State to these various officials amount annually to 200,000,000 francs.

[19. ]Each year in the United States an almanac, called the National Calendar, is published; the names of all the federal officials are found there. The National Calendar of 1833 furnished me with the figure I give here.

It would follow from what precedes that the King of France has at his disposal eleven times more places than the President of the United States, although the population of France is only one and a half times greater than that of the Union.

[c. ] 4,000 in the manuscript.

[d. ] The wording of this paragraph is a bit different in the manuscript. The published version was suggested by Beaumont (YTC, CIIIb, 3, pp. 52-53).

[e. ] Cf. Rousseau, Considérations sur le gouvernement de Pologne, chapters VIII and XIV.

[f. ] Hervé de Tocqueville: “Carefully check if this paragraph agrees well with what the author says in the chapters on the crisis [of election] and on re-election. You must be careful about even the appearance of contradiction. Later you talk about intrigues, about the efforts of the President to get himself re-elected and about the development of his power in this regard” (YTC, CIIIb, 3, p. 13).

[g. ] In the manuscript: “. . . the President has only a few places . . .”

Hervé de Tocqueville: “These sentences are in clear opposition to what the author says on pages 346 and 347. Moreover, can one say that a man has only a few places to distribute when 20,000 nominations depend on him in a machine as simple as the American organization?” (YTC, CIIIb, 3, p. 14).

[h. ] Cf. non-alphabetic notebook 1, conversation with John (?) Livingston (YTC, BIIa, and Voyage,OC, V, 1, p. 60).

[j. ] “In France, for society to work, social power must be not only centralized, but also stable.

“Power can be centralized in an assembly; then it is strong, but not stable. It can be centralized in a man. Then it is less strong, but more stable” (YTC, Cve, p. 64).

[k. ] This paragraph, which does not appear in the manuscript, is included in the edition of 1835 and eliminated from the sixth and later editions, following a letter from John Quincy Adams, dated June 12, 1837:

On December 4, 1837, Tocqueville answers from Paris:

[m. ] In the manuscript:

Hervé de Tocqueville:

Gustave de Beaumont:

Édouard de Tocqueville:

[n. ] The draft of this passage has been corrected by Gustave de Beaumont (YTC, CIIIb, 3, p. 55).

[o. ] Gustave de Beaumont: “335, 336, 337, 338, etc. . . . All these pages seem excellent to me and I very strongly urge the author not to make the corrections that are advised by imprudent friends” (YTC, CIIIb, 3, pp. 55-56).

[20. ]As many as the members they send to Congress. The number of electors for the election of 1833 was 288 (The National Calendar [1833] [p. 19 (ed.)]).

[21. ]The electors of the same state meet; but they send to the seat of the central government the list of individual votes and not the result of the majority vote.

[22. ]In this circumstance, it is the majority of the states, and not the majority of the members, that decides the question. So that New York does not have more influence on the deliberation than Rhode Island. Thus the citizens of the Union, considered as forming one and the same people, are consulted first; and when they cannot agree, the division by states is revived, and each of the latter is given a separate and independent vote.

That again is one of the strange things that the federal constitution presents and only the clash of opposing interests can explain.

[23. ] In 1801, however, Jefferson was named only on the thirty-sixth ballot.

[p. ] Tocqueville writes to Corcelle:

In the report that he did as a member of the Commission charged with the revision of the constitution (“Rapport fait à l’Assemblée législative au nom de la Commission chargée d’examiner les propositions relatives à la révision de la constitution . . .,” Moniteur Universel, July 9, 1851, pp. 1943-1945, and OCB, IX, pp. 574-606), Tocqueville praises the American system of indirect election of the President. He sees there a way to avoid revolutions as well as the temptation to resort to dictatorship. In a letter of 1853 (partially reproduced in OCB, VI, pp. 212-20), he will share with W.= R. Greg, English essayist and ardent defender of free trade, extremely lucid views on French electoral laws under the monarchy and the republic.

[q. ] Hervé de Tocqueville: “Check if that agrees with page 324 where it is said: no candidate, until now, has been able to raise, etc.” (YTC, CIIIb, 3, p. 15).

[r. ] In the Souvenirs, Tocqueville reproaches himself for having supported, in the committee to draft the Constitution of 1848, Beaumont’s proposal that urged that a president leaving office not be re-elected. “On this occasion, we both fell into a great error that, I am very afraid, will have very damaging consequences,” wrote Tocqueville in March 1851 (Souvenirs,OC, XII, p. 190). The impossibility of being re-elected was, we know, one of the reasons that pushed Louis Napoleon to the coup d’état.

[s. ] In the margin: “≠Eight years, term indicated by experience.≠” See note y p. 229.

[t. ] In the margin: “≠1. The great end of the laws is to mingle individual interest and State interest.

2.Weakening of the executive power, capital vice to avoid in republics.≠”

[u. ] Variant:

[v. ] Hervé de Tocqueville: “Isn’t Alexis drawing too excited a picture there, relative to what precedes? He tried hard in several places to show us that the President has only limited means at his disposal. Here he exalts his strength and his immense resources. Perhaps the imagination of the author has sought to prove too much, for fear of not proving enough” (YTC, CIIIb, 3, p. 16).

[w. ] Cf. Montesquieu, De l’esprit des lois, particularly books II and VIII.

[x. ] Hervé de Tocqueville:

Édouard de Tocqueville:

[y. ] “In my opinion the President of the United States should be chosen for a longer term and not be re-eligible” (YTC, CVh, 1, p. 58).

[24. ] See ch. VI entitled “Of the Judicial Power in the United States.” This chapter shows the general principles of the Americans in the matter of the judicial system. Also see the federal Constitution, art. 3.

See the work with the title: The Federalist, Nos. 78-83 inclusive. Constitutional Law, Being a View of the Practice and Jurisdiction of the Courts of the United States, by Thomas Sergeant.

See Story [Commentaries (ed.)], pp. 134-62, 489-511, 581-668. See the organic law of September 24, 1789, in the collection entitled: Laws of the United States, by Story, vol. I, p. 53.

[Kent’s Commentaries, vol. I, p. 275 [273 (ed.)] and following.]

[25. ]It is federal laws that most need courts, and yet federal laws have least accepted them. The cause is that most confederations have been formed by independent states that had no real intention of obeying the central government; and, while giving it the right to command, they carefully reserved to themselves the ability to disobey.

[Translator’s Note 5:]Compétence, in relation to the courts, has a more narrowly legal, a more restricted meaning in French than competence would have in English; the English word jurisdiction is closer to the meaning.

[27. ] Moreover, to make the cases of jurisdiction less frequent, it was decided that, in a very large number of federal cases, the courts of the individual states would have the right to decide concurrently with the courts of the Union; but then the losing party would always have the right to 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 hear an appeal of its decisions, but unsuccessfully. See Kent’s Commentaries, vol. I, pp. 300, 370, and following. See Story’s Commentaries, p. 646, and the organic law of 1789, Laws of the United States, vol. I, p. 53.

[28. ] The Constitution says as well that the proceedings that can arise between a state and the citizens of another state will be under the jurisdiction of the federal courts. Soon the question arose of knowing if the Constitution meant all proceedings that can arise between a state and the citizens of another state, whether the ones or the others were plaintiffs. The Supreme Court decided affirmatively; but this decision alarmed the individual states who feared being brought despite themselves, for the slightest reason, before the federal court system. So an amendment was introduced to the Constitution, by virtue of which the judicial power of the Union could not extend to judging the cases that had been initiated against one of the United States by the citizens of another. See Story’s Commentaries, p. 624.

[29. ] Example: all acts of piracy.

[30. ] A few restrictions were certainly placed on this principle by introducing the individual states as independent powers in the Senate, and by having them vote separately in the House of Representatives in the case of election of the President; but these are exceptions. The opposite principle is the dominant one.

[b. ] “Other defect of federal jurisdiction. The federal courts can only be apprised by an individual interest. Now, what would happen if a state passed an unconstitutional act that harmed only the sovereignty of the Union? Nearly impossible case” (YTC, CVh, 1, pp. 50-51).

[31. ]It is perfectly clear, says Mr. Story, p. 503, that every law that expands, contracts or changes in whatever way the intention of the parties, such as result from the stipulations contained in a contract, impairs this contract. In the same place, this same author carefully defines what federal jurisprudence understands by a contract. The definition is very broad. A concession made by a state to an individual and accepted by him is a contract, and cannot be taken away by the effect of a new law. A charter granted by the state to a company is a contract, and binds the state as well as the concessionary. The article of the Constitution that we are speaking about therefore assures the existence of a great portion of vested rights, but not all. I can very legitimately own a property without its having passed into my hands by a contract. Its possession is for me a vested right, and this right is not guaranteed by the federal constitution.

[32. ]Here is a remarkable example cited by Mr. Story, p. 508. Darmouth [Dartmouth (ed.)] College, in New Hampshire, had been founded by virtue of a charter granted to certain individuals before the American Revolution. Its administrators formed, by virtue of this charter, a constituted body, or, following the American expression, a corporation. The legislature of New Hampshire believed it necessary to change the terms of the original charter and transferred to new administrators all the rights, privileges and immunities that resulted from this charter. The former administrators resisted and appealed to the federal court, which agreed to hear the case, understanding that, since the original charter was a true contract between the state and the concessionaries, the new law could not change the disposition of this charter without violating the vested rights of a contract and consequently violating article I, section X, of the Constitution of the United States.

[c. ] In a first version: “≠. . . than all the rest. But it is so difficult to calculate in advance the impact of laws, that it is not unusual to see the most numerous assemblies consecrate long discussions to uninteresting points, while an article that will lead to the most characteristic effect of the law is precisely the one that passes unnoticed and is revealed only by experience.≠”

[d. ] In the margin: “≠In this, the judicial power only follows the laws of its nature which lead it to judge only on particular cases. Only a political court can break a legislative measure.≠”

[33. ]See the chapter entitled: “Of the Judicial Power in America [in the United States (ed.)].”

[34. ]See Kent’s Commentaries, vol. I, p. 387.

[e. ] In the manuscript: “of their power {of their liberty}.”

[35. ]In this period, the celebrated Alexander Hamilton, one of the most influential framers of the Constitution, was not afraid to publish the following in the Federalist, No. 71 [p. 307]. He said:

[f. ] In the margin: “Temporary alliance, league.

“Lasting alliance, confederation.

“Limited [v: incomplete] national government.

“Complete national government.

“The Union is not a confederation [v: federal government], but an incomplete national government.”

[g. ] “The old constitution gave Congress great power to command the different states (illegible word) in order to compel them other than by war. It established a league among independent states, not a federal government” (YTC, CVh, 1, p. 47).

[h. ] Hervé de Tocqueville: “I believe that this paragraph could be deleted. It develops an idea that springs from what precedes and comes naturally to the mind of the reader. By removing it, the pace will be faster. Be careful about slowing the pace by reflections, when they are not absolutely necessary. The last sentence of the paragraph is a useless commonplace” (YTC, CIIIb, 3, p. 22).

[36. ]This is what was seen among the Greeks under Philip, when this prince took charge of enforcing the decree of the Amphictyons. This is what happened to the republic of the Netherlands, where the province of Holland has always made the law. The same thing is still going on today among the Germans. Austria and Prussia are the agents of the Diet and, in its name, dominate the entire confederation.

[37. ]It has always been so for the Swiss confederation.—Were it not for the jealousy of its neighbors, Switzerland, for several centuries, would no longer exist.

[j. ] Hervé de Tocqueville: “In my opinion, this paragraph and the four following must be deleted and replaced by one or two sentences. It is long and a bit heavy; its importance does not justify its defects. I therefore advise pruning the grammatical discussion and quickly going straight to the paragraph: Because this new type of confederation was unknown . . .”

Édouard de Tocqueville: “I cannot share this opinion. This reflection seems very profound to me. Moreover, if you went to the paragraph beginning Because this new type . . ., it would have absolutely no sense, since it relates only to the deleted paragraph” (YTC, CIIIb, 3, p. 22).

[k. ] In the margin: “≠The thing is new [v: other], but an old word is still needed to designate it.≠”

[m. ] In the margin: “Perhaps this chapter should be shifted to the place where I will talk about the future of the Union.”

[n. ] In the margin: “≠The power of one man easily succeeds in putting itself above the law and the interest of all.≠”

[38. ]I am not speaking here about a confederation of small republics, but of a large consolidated republic.

[o. ] “I suspect that this doctrine that presents small States to us as the only ones that are suitable for republican forms will be refuted by experience. Perhaps it will be recognized that in order to establish a republic in which justice reigns, the republic must be large enough so that local egoism is never able to harm the whole, nor corrupt the major part of those who lead it; so that on every question you will always be sure to find in the councils a majority free of particular interests and capable of making solely the principles of justice prevail.”

Jefferson to Davernois [d’Ivernois (ed.)], 6 February 1795. (YTC, CVh, 5, p. 2). Citation from Louis P. Conseil, editor. Mélanges politiques et philosophiques extraits des mémoires et de la correspondance de Thomas Jefferson (Paris: Paulin, 1833), vol. I, pp. 407-9.

[p. ] The wording of this sentence comes from Beaumont (YTC, CIIIb, 3, p. 34).

[q. ] This sentence and the preceding one have been corrected by Beaumont (YTC, CIIIb, 3, pp. 34-35).

[r. ] Rousseau made the following recommendation to the Poles: “Apply yourselves to expanding and perfecting the system of federative governments, the only one that unites the advantages of large and small States” (Considérations sur le gouvernement de Pologne, chapter V, in Œuvres complètes, III, Paris: Pléiade, 1964, p. 971). The same idea is set forth at the beginning of Jugement sur le projet de paix perpétuelle, and it appears in a note at the end of chapter XV of book III of the Contrat social (ibid., p. 431). The advantages of the federal form had been equally praised by Montesquieu in the first chapter of book IX of Esprit des lois (in Oeuvres complètes, Paris: Pléiade, 1951, II, p. 369).

[s. ] Cf. conversation with Mr. Bowring (Voyage en Angleterre, OC, V, 2, p. 35).

[t. ] “≠Nevertheless, the greatest difficulty is not to find some peoples who know how to manage their own affairs, but to find some with this habit who can understand federal sovereignty and submit to it≠” (YTC, CVh, 4, p. 4).

[u. ] Hervé de Tocqueville: “All that precedes is very good. A thought however: Isn’t the well-being that, for the states of the Union, results from the division of sovereignty disturbed by the vices of their democratic organization that Alexis had pointed out?”

Édouard de Tocqueville: “It seems to me that this can only be related to the whole. It is certain that the United States, as they are constituted, enjoy an enormous prosperity, and that the nations of the South are in anarchy” (YTC, CIIIb, 3, p. 24).

[v. ] In the first version, the state cited was Massachusetts.

[w. ] Hervé de Tocqueville: “And New York which is so large?

Édouard de Tocqueville: “New York, it seems to me, is only a large city and not a metropolis, in the true meaning of this word” (YTC, CIIIb, 3, p. 24).

[x. ] Hervé de Tocqueville: “This peroration is beautiful, but isn’t Alexis making America into too much of an El Dorado? It must not be forgotten that he thinks himself obliged to disenchant us in the following chapters. Two sentences here appear too strong to me: that of the profound peace that reigns within the interior—two recent examples have shown that this peace is easily troubled—and that of respect for the flag, which exists only because the European nations wish it or do not agree to humiliate it. Not with its small fleet would America force the maritime powers to respect its flag.”

Édouard de Tocqueville: “Alexis shows in several places what the future dangers of the American government are, and what its weak side is at the present time. But, if one judges it now as a whole, one can say, as in the last sentence, ‘The Union is free and happy, etc.’” (YTC, CIIIb, 3, pp. 24-25).

[y. ] See the conversation with Mr. MacLean (non-alphabetic notebooks 2 and 3, YTC BIIa, and Voyage, OC, V, 1, p. 127).

[z. ] In the fourth lecture of his course on civilization in Europe, Guizot insisted on this point:

[39. ]See the Mexican constitution of 1824.

[40. ]Example: The Constitution gave the Union the right to have unoccupied lands sold for its benefit. I suppose that Ohio claims this same right for those that are enclosed within its borders, under the pretext that the Constitution only meant territory not yet submitted to the jurisdiction of any state; and that consequently Ohio itself wanted to sell the lands. The judicial question would be posed, it is true, between the buyers who held their title from the Union and the buyers who held their title from the state, and not between the Union and Ohio. But if the court of the United States ruled that the federal buyer was in possession, and the courts of Ohio maintained the holdings of his competitor, then what would become of the legal fiction?

[a. ] With a bracket that goes from this paragraph to the one that ends with the words “that carry them toward peace”:

[b. ] Before the 1836 visit, Tocqueville probably went to Switzerland in 1829 and 1832 (Cf. Luc Monnier, “Tocqueville et la Suisse,” in Alexis de Tocqueville. Livre du centenaire, Paris: Editions du C.N.R.S., 1960, pp. 101-13).

André Jardin indicates that in his view Tocqueville must have visited Switzerland at least five times between 1823 and 1836. The notes of the voyage to Switzerland in 1836 are known to us thanks to the text published in the Oeuvres complètes, Beaumont edition. André Jardin (“Tocqueville et la décentralisation,” in La décentralisation, VI colloque d’histoire, Aix-en-Provence: Publication des Annales de la Faculté des Lettres, 1961, pp. 89-117, 97) has nonetheless remarked that certain similarities between these notes and Democracy lead to the thought that these texts, published by Beaumont as dating from 1836, are perhaps the fruit of an earlier voyage (Voyages en Angleterre, Irelande, Suisse et Algérie, OC, V, 2, pp. 173-88). In his “Rapport fait à l’Académie des sciences morales et politiques sur l’ouvrage de M. Cherbuliez, entitled De la démocratie en Suisse” (Séances et travaux de l’Académie des sciences morales et politiques, XII, 1848, pp. 97-119, reproduced as an appendix to Democracy beginning with the twelfth edition), Tocqueville comments on the Swiss confederation in terms entirely similar to those of this chapter, and concludes that Switzerland possesses the most ineffective federal constitution that could exist.

[c. ] In the margin:

[e. ] In the beginning, note 41 was found at this place in the manuscript.

[f. ] In the margin, with a bracket that includes this paragraph and the two following:

“To note.

I also say part of all of this at the future. Quid?”

[g. ] The figure 4,000 appears in the manuscript as well as in a few other places.

[Translator’s Note 1: ] Floral games were a literary competition held annually in Toulouse and elsewhere in France.

[r. ] For obvious reasons, the beginning of this note was a bit different in the first edition: “M. Gustave de Beaumont, my traveling companion in America, intends to publish during the first days of 1835, a book entitled Marie, or Slavery in the United States. The principal goal ...”

[s. ] This note does not appear in the manuscript of the book and no reference to it is found in the other papers of Tocqueville. At the end of the year 1834, Livingston was in Paris in a very delicate situation because of the famous affair of the American indemnities. It is possible that the note had been written in sympathy with the man whose name appears several times in the drafts as a source of information. On the affair of the indemnities and Edward Livingston, see Richard A. McLemore, Franco-American Diplomatic Relations, 1816-1836 (Baton Rouge: Louisiana State University Press, 1941).

[a. ] A toise equals 1,949 millimeters.

[m. ] These works, included only in certain editions, do not appear at this place in the manuscript. They are, however, cited elsewhere.

[o. ] Probably the appendix, A Summary of the Affairs of the Colony of New-Plymouth, from the First Settlement until the incorporation with Massachusets-Bay &c. in one Province, pp. 449-81.

[x. ] The code of 1650 says:

[j. ] Hervé de Tocqueville:

[o. ] Hervé de Tocqueville:

Édouard de Tocqueville: “Quite right. It seems to me that here the word capacity means attribution. This word would be better I believe” (YTC, CIIIb, 2, pp. 87-88).

[u. ] Hervé de Tocqueville: “If there are states where the court of sessions is charged with all details of the administration, what becomes in these states of the town spirit so praised by the author?

“It would seem, from the end of the chapter, that certain states are beginning to feel the disadvantage of excessive decentralization. This consideration must be weighed by the author in the following chapter” (YTC, CIIIb, 2, p. 77).

[w. ] Reproduced as an appendix in the first editions.

[x. ] See conversation with Mr. Spencer ([non-[alphabetic notebook 1, YTC, BIIa, and Voyage,OC, V, 1, p. 68).

[w. ] Sébastien L. Saulnier, “Nouvelles observations sur les finances des États-Unis, en réponse à une brochure publié par le Général La Fayette,” Revue Britannique, n. s., 8, October 1831, pp. 195-260), p. 239. On this article and the polemic over American finances, see note j for pp. 345-50.

[1. ] The American Union, which is a confederation, is more centralized on this point than was the absolute monarchy of France.

[2. ] Thus in France, when the King intervened in the administration of justice, the abuse of governmental centralization was pointed out; when, on the contrary, the courts were free to establish judicial anarchy, all minds felt the abuse of administrative decentralization. But no one perceived the precise limits of the one and the other” (YTC, CVe, pp. 57-60, and BIIb, pp. 6-8).

[1. ] Don’t I previously say the opposite? (YTC, CVh, 5, pp. 16-19).

[g. ] The manuscript says 39, which indicates the number of delegates to the convention approving the proposed constitution on September 17, 1787.

[1. ] Some restriction has indeed been put on these principles by introducing the states as independent powers in the Senate and by making them vote separately in the House of Representatives in the case of election of the President. But these are exceptions. The opposite principle predominates≠ (YTC, CVb, p. 20).

[n. ] James T. Schleifer has identified the English edition used by Tocqueville. It was the one published in Washington by Thomson & Homans, in 1831. In his notes, Tocqueville also cites a French edition of 1792 (probably that of Buisson, Paris).

[1. ] There are governments for which the rapidity of enforcement is a condition of life (YTC, CVb, pp. 21-22).

[[*]. ] “≠See, for the organization, the organic law of 1789, Kent’s Commentaries, vol. I, p. 273 and following. Sargent’s [sic: Sergeant’s] Constitutional Law.≠”

[a. ] In the manuscript: “only in the third instance.”

Gustave de Beaumont:

[d. ] At first, the text of this note was found before “[In general . . .].”