CHAPTER XXXI.

OF CHECKS AND CONTROLS ON OTHER BRANCHES OF THE GOVERNMENT.

IS there any foundation for the position, that in a republic the people are naturally betrayed by those in whom they trust?

Is it true that personal , power and independence in the magistrate, being the immediate consequence of the favour of the people, they are under an unavoidable necessity of being betrayed? 1

Were this objection well founded, we should shrink with horror from the formation of a republic. Let us examine how it is attempted to be supported.

The first postulate is, that those who are in possession of power, generally strive to enlarge it for their own advantage in preference to the public good. In those governments where no restraint on the conduct of public officers is provided, we see to what an extent this propensity has been sometimes carried. Rome is the favourite example adduced to support the proposition.

It was found impossible for the people of that state, ever, to have faithful defenders. Neither those whom they expressly chose, nor those whom some personal advantages enabled to govern the assemblies, were united to them by any common feeling of the same concern. The tribunes pursued with zeal and perseverance, no greater object than to procure admission to all the different dignities in the republic. To admit the plebeians to participate in offices previously confined to patricians, was considers a it great victory over the latter. The use they made of the power of the people was to increase prerogatives, which they falsely called the prerogatives of all, but which the tribunes and their friends alone were likely to enjoy. But it does not appear that they ever set bounds to the terrible power of the magistrates, or repressed that class of citizens who knew how to make their crimes pass unpunished, or to regulate and strengthen the judicial power; precautions without which men might struggle to the end of time, and never attain true liberty.

Such are the views taken of this great, but internally imperfect republic, and a general proposition is illogically deduced from a particular instance.

If a Constitution is so framed that official power becomes at once absolute and independent of law; if the magistrates who are to administer the law are authorized like the prętors, to make it from time to time as they think proper, and if a competition is admitted among the public officers, as to who shall exercise the most authority, and he who succeeds the best, cannot be compelled by the people either to surrender or reduce it; the very appointment, in such case, tends to stimulate all the evil propensities, and create a dereliction of all the moral obligations of man. But it is an error to suppose, (if it is supposed,) that this is confined to republican forms. The distinction would only be in name. Create a government of any kind, and invest its officers with powers so extensive and uncontrollable, and there will be the same abuses. The only difference will be that in one case we shall say the people are oppressed; in the other that they are betrayed.

A knowledge of human nature, too perspicacious not to perceive the danger, and too cautious not to provide against it, dictated in the composition of our Constitution, those checks and balances on which its purity and continuance were calculated to depend. While all necessary power was granted, every sound precaution was adopted to prevent its abuse.

We have already considered the express restrictions on the legislature, and have seen that on some points they cannot legislate at all, and on many others they can act only to a limited extent; but a wider view may be now taken, and an examination of the entire context will fully exhibit a pervading principle, which, while it secures the due performance of public duty, prevents its abuse.

The legislature is in the first place restrained by a fixed and absolute Constitution, over which it has no sort of power. In wine countries, and in one of our own states, 2 the legislature laying their hands on the Constitution, may so mould it from time to time, as to give a sanction to measures not within its original contemplation. But the Constitution of the United States, the work of the people, alterable only by the people, possesses a sacred and intangible character in respect to the legislature. This is, therefore, the great restraint. When the legislature feels that it has no power unless the Constitution has given it, the mere shame of being defeated in any step which cannot be supported, compels it to look to the Constitution for its authority, and if it cannot find it there, to desist from the measure.

Secondly, as this may not always be a sufficient restraint, the judicial power presents an effectual barrier against its excesses, the observations on which head need not be, repeated. But, as observed, the judicial power possesses no spontaneous motion — it must be called into action by the application of others either individuals, or constituted authorities, — and in the mean time, the obnoxious law may not only take its place in the statute book, but be injuriously acted upon. The third corrective therefore, is the hands of the people, who do not, as disingenuously remarked,3 make no other use of their power than to give it away. The biennial election of the house of representatives, of which the people can by no artifice be deprived, secures to them the power of removing every member of that house who has shown, either an inability to comprehend, or an unwillingness to conform to the transcendent obligations of the Constitution, which he has sworn to support. Here, then, we have the protection and safety unknown to those countries where, either the legislature elect themselves, or enjoy an hereditary right, or where, although the representative principle may be nominally kept up, its exercise may be suspended or postponed at the pleasure of another part of the government.

It is true, that this mode of reforming the abuse, is not at first full and complete. The senate, which must have concurred in the unconstitutional law, is not renewed at the same period, but the Constitution, which for reasons heretofore assigned, conferred on this body a longer duration of office, has regulated the continuance of each senator, so that at the end of every two years one-third of the whole must be chosen anew. The sense of the people, indicated by a full change in the house of representatives, and by the change of one-third of the senate, could not be without effect, and in two years more it would be imperious and irresistible.

A further restraint, though less definite, yet not without considerable weight, may be conceived in the influence arising from the portion of sovereignty remaining in the states.

Although, to the full extent established by the Constitution, the power of the legislature of the United States is superior to that of the states, yet in the smallest particular in which they pass beyond the true line, the power of the states is in full effect. The states will always maintain a reasonable jealousy on this subject.

In all matters not transferred to the general government, the rights and interests of the people are confided to the care of the state governments, and an anxiety to secure and defend them has been uniformly apparent in all the states. The desire of preserving harmony and order, nay, the very love of power, always more valuable where it is least resisted, will operate with great effect on the national legislature to prevent its falling into unnecessary collisions with the states. This consideration will have the greatest influence with the members of the senate, who, although they do not in any sense sit and act as states in a federative quality, and are not bound by instructions — yet cannot but look with much respect to, and feel a close connection with the legislature of the state that appoints them.

2dly. The fears of those theoretical writers, who have gratified themselves by lamenting the internal dangers of our republic, have been chiefly directed against the tendency of the executive authority to overpower the freedom of the people.

It is supposed that much is to be apprehended from the influence of an officer who has the power of appointing so many other officers, and who is entrusted with the management of the military force. It is true, they admit that as he has not exclusively the appointment to office, this influence is thereby somewhat diminished, but the recommendations proceeding from him alone, and the power of dismission being exclusively with him, the hope of the one, and the fear of the other, must confer on him an excessive and alarming influence. All these considerations may have weight, yet the evil consequences predicted are not likely to ensue.

The military force, as we have seen, is well regulated not only by the constitutional prohibition to provide for its support for a longer term than two years, but also by the power that congress have to shorten even that period, and by the great improbability that an American army would consent to substitute for regular subsistence and the approbation of their countrymen, the tumultuary and precarious exactions of internal warfare, and convulsions, personal dangers which must be certain, and eventual ruin from which they cannot be exempted. The influence supposed to arise in respect to the appointments to, or dismissions from office, can operate only in a narrow circle, and however far it might be carried, would not tend to the subversion of the government, or even to any material alteration of it, since the value of the offices would always depend on the preservation of the Constitution and the laws, and their emoluments could not be carried beyond their legal limits.

No person is eligible to the office of president before he attains the age of thirty-five years, nor unless he has been a resident within the United States for fourteen years.

The object of the latter provision is, that his habits and opinions shall be as much as possible purely American, but temporary absence on public business, and particularly on an embassy to a foreign nation, would not be an interruption of residence in the sense here affixed to it.

The senator must have attained the age of thirty years, and the members of the house of representatives the age of twenty five years.

In some of the states, the chief executive magistrate is not again eligible, until an interval has elapsed, after having served a certain time. The Constitution of the United States, on the contrary, admits the same individual to be continued in office by re-election during his life.

The propriety of a rotation in office, has had some warm advocates. The chief arguments in its favour seem to be,

1. That it renders the people more secure in their rights against an artful and ambitious man. If it were impossible that the chief magistrate should be re-elected after serving for a given time, it would be in vain for him to concert plans and create an insidious influence for the promotion of his own continuance in power.

2. On an opposite principle, it is supposed that he would be more independent in the exercise of his office: when, knowing that he could not be re-elected to it, he would not be under the necessity of courting the popular favour.

And 3dly. It has occurred to the imaginations of some, that there would be no small danger that the great powers of Europe, being interested in having a friend in the president of the United States, would interpose in his election, and the dangers and misfortunes of Poland be renewed in America. 4

In answer to these objections, it has been said with great truth and force:

1st. That one ill effect of the exclusion would be a diminution of the inducements to good behaviour. Less zeal would be felt in the discharge of a duty, when the advantage of the station must be relinquished at a determinate period. The desire of reward is one of the strongest incentives of human conduct, and the best security for fidelity, is to make interest coincide with duty. Even the love of fame, the ruling passion of noble minds, prompting a man to plan and undertake arduous enterprises for the public benefit, which might require time to perfect them, would deter him from the undertaking, if he foresaw that he must quit the scene before he could accomplish the work, and commit it, together with his own reputation, to bands that might be unequal or unfriendly to the task.

2dly. Experience is the parent of wisdom, and highly desirable in the first magistrate of a nation. It would be injurious and absurd to declare, that as soon as it is acquired, its possessor shall be compelled to abandon the station in which he acquired it, and to which it is adapted.

3dly. A third ill effect of the exclusion would be, the banishing men from stations in which their presence might be of the greatest moment to the public interest on particular emergencies. An ordinance which prevents a nation from making use of its own citizens, in the manner best suited to peculiar exigencies and circumstances, must be unwise. Suppose, for instance, a war to exist, and the president then in place, peculiarly fitted by his military talents and experience to conduct it to advantage: to be obliged to exclude him from office, perhaps to substitute inexperience for experience, and thereby unhinge and set afloat the settled train of administration, might be of the greatest, detriment. 5

The apprehension of the interference of foreign nations in regard to the office of president, unless he was at first elected for life, seems to be without foundation. While he is elected only for four years at a time, it is evident that it would be of no use to foreign powers to corrupt him, unless they can intimidate or corrupt those who elect him; but by the guarded provisions of the Constitution, it is impossible to know for a long time beforehand, who those electors will be. As, however, this mode of election has now become the act of the people, and the electors are merely nominal, the whole body of the people, or at least a majority of them, must be corrupted or intimidated, before such a scheme can succeed; a measure not very practicable by any foreign power. It is well known that in Poland, the king was elected, not by the people at large, but by an aristocratic class, small in number, and therefore accessible to foreign intrigues.

If It were desired by such powers to obtain an undue ascendancy in our government, the attempts would be made, not on the president, but on the members of the legislature, and particularly of the senate, but in no government is it recollected that a necessary rotation in office was ever imposed on the members of the legislature.

Down to the present moment, nothing in point of fact has occurred among us to excite a regret at the continued eligibility of the same individual. No undue influence has been practised, and the voice of the people, sovereign in fact, as well as in theory, has been independently exercised, both in the continuance and in the removal of their public agents. The predominant feature of the American character, seems, in truth, to be that sort of good sense, which invariably leads to just distinctions between partial and general benefit. It is not pretended, that party ebullitions do not sometimes overpower the calm reflection of the community, but the illusions are temporary, and the sound judgment which never wholly departs from the entire body, ultimately recovers its ascendancy.

That universal phrenzy of the nation, of which Europe, both in ancient and modern times has exhibited instances, never found place with us. Temperate and self-collected in the most trying seasons, America always pursued a regular course, terminating in that security and peace, which violent agitations and tumultuous passions could not have procured. Their good sense displays itself in the utter rejection of personal influence, when the pursuits of the party are hostile to the general sentiment. What is believed to be for the public good, is never sacrificed to the views of any individual, however distinguished.

But there are certain legitimate restraints on the office of president, which remove from the people every cause of uneasiness in respect to it.

These restraints consist, in part, of those already mentioned in regard to the legislative bodies. In the first place, he is equally bound by the Constitution, and must feet the same interest in conforming to it, that is felt by those bodies. He has even less to do in respect to alterations of the Constitution than the two houses have. He cannot recommend to the people an amendment of it, and if the two houses resolve to submit one to them, his concurrence in their so doing is not required, 6 and perhaps would not be allowed.

Self-interest, (as just before observed,) is one of the strongest permanent influences of human action, and wherever it can be coupled with public duty, it affords great reason for believing that they will act in concert.

Now, if we consider that the president, being a single officer, without those combinations which may be formed by the members of the two houses; not at any time during his official existence, returning to and mixing with the mass of the people, and thereby to some extent enabled to deceive and mislead them; but whatever may personally be his social habits and republican simplicity, still separated from extensive practical intercourse by the very nature of his office; we shall at once perceive that all eyes being constantly fixed on him, his motions will always be scrupulously watched, and so much of the regular execution of his power as may be considered to depend on popular acquiescence, will be diminished, in proportion as he evinces a design to extend it beyond its constitutional bounds.

Nor would the supposed influence of the other executive officers support him in such cases. Compared with the mass of the people, their numbers are small, and their very dependence on him would render them suspected. But the interests of those officers would operate in another direction: as a wilful infringement of the Constitution will naturally terminate in some way, in a destitution of the president's power, their interest would not be promoted by contributing to an event injurious to themselves, since his successor would of course manifest a deference to public opinion by removing all the promoters and participators of the preceding delinquency.

The Constitution may therefore be considered as having a still stronger hold on the president, than on the legislative body.

2dly. If, from its nature, any political or casual motives could have an effect on the judicial interposition when regularly called forth, it would seem that it would be exercised with more alacrity against a single officer, already become the subject of general suspicion or disapprobation, than against those acts which must be considered as the measures of the entire government.

But this is altogether an illegitimate view of the character of the judicial power and mode of action. On the contrary, the president, while labouring under public reprobation, would look forward to the judiciary, with a certain confidence that prejudice and error would find no room in the judgments by which the legality of his conduct would be decided.

This check upon lam would therefore be the more complete by being unbiassed and certain.

3dly. But, as before observed in regard to the legislature, the opportunity for this judicial intervention in its common form, may be remote, and one transgression not resisted, may lead to another, till the accumulation becomes too heavy to be borne.

Then, the power of the people arises in its majesty, and through their appropriate organs, the house of representatives, the judicial power is appealed to in another, a most imposing and conclusive form.

The dignified tribunal which the Constitution has provided for the trial of impeachments, has now the eyes of the public immovably fixed on it. Guilt or innocence, not prejudice or party motives, form the ground of decision, and although the senate does not directly vacate or annul the illegal acts that have taken place, which are still left to the redress of the ordinary tribunals; it prevents the possibility of their being again committed by the same individual, and the probability of their being copied by another.

4thly. And so effectual are the disqualifications which the senate may pronounce, that if the people, subsequently imposed on and misled by the discarded president or his partisans, were inclined again to confide a public trust to him, it would not be in their power to do so. The sentence of the senate is immutable.

No similar caution, no analogous defence of the people against their own dangerous clemency or forgetfulness, are to be found elsewhere. The ostracism of Athens, the interdictions from fire and water of Rome, the disqualifications in sentences on impeachments in England, might all be repealed, and the party, however politically dangerous, be restored to his former rank.

It may be inquired, why the power of pardoning should be absolutely excluded in such a case as this? The answer has already been given. The safety of the people is the supreme law: their liberties properly regulated and secured are the cardinal objects of republican constitutions. Those who have evinced the capacity to abuse a public trust ought not to have a second opportunity to do so. If it were possible to remove the disqualification thus solemnly imposed, the state might be thrown into disorder; factions in favour of the delinquent be formed; contrary pretensions be warmly, perhaps forcibly asserted — and the bloody, civic contests of ancient Rome might be renewed on the polluted arena of a modern and a temperate republic. It is infinitely preferable that one man should be meritedly deprived of part of the rights and privileges of citizenship, than that the peace and happiness of the whole community should be endangered.

The sentence itself is at the utmost a mild one; but the object of it is still liable to the ordinary process of justice. If his crime should be of that high class which subjects him to the forfeiture of life, the president for the time being still possesses the power to prevent its infliction. The individual with the accumulated weight of two convictions, might safely be pardoned in respect to the second. He never could again become an object of public confidence.

To these views of the checks upon this office, we may add the power of the people, when the quadrennial period of election returns, to remove him, whose conduct, although it may not have amounted to actual delinquency, has excited even their suspicion.

Referring, without repeating it, to the last chapter, we may thus recognise in every part of the Constitution those cautious provisions, forming, adequate checks on every power it confers, restraining all from doing wrong, yet not productive of an inconvenient interference with each other when all do right; contributing to preserve a necessary purity and vigour, and rendering the mere distribution of power the means of correcting its abuse.


1. See this bold assertion and its feeble illustration, in Delolme, book 2, ch. ix.

2. The state of Maryland. The legislature of that state may alter or abolish any part of the Constitution or the bill of rights, provided the bill for that purpose is passed three months before a new election, and is confirmed by the general assembly at the first session after such election, the object of which proviso undoubtedly is to afford the people an opportunity to testify by the removal of the members a disapprobation of their measures.

3. By Delolme, in the chapter already referred to.

4. See debates in Virginia convention, vol. iii. p. 67.

5. Federalist, No. 72.

6. 4 Hollingsworth v. Virginia, 3 Dallas, 378.


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