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.



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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.