American Institutions and Their Influence - Alexis de Tocqueville (i am reading a book .TXT) 📗

them as sound and authoritative expositions of the true sense of the constitution, except perhaps in those very few cases, where there has been a constant and uninterrupted practice from the organization of the government. The judiciary is looked to as the only authentic expounder of the constitution, and until a law of congress has passed that ordeal, its constitutionality is open to question: of which our history furnishes many examples … There are errors in some of the instances given by our author, which would materially mislead, if not corrected. That in relation to the Indians proceeds upon the assumption that the United States claimed some rights over Indians or the territory occupied by them, inconsistent with the claims of the states.

But this is a mistake. As to their lands, the United States never pretended to any right in them, except such as was granted by the cessions of the states. The principle universally acknowledged in the courts of the United States and of the several states, is, that by the treaty with Great Britain in which the independence of the colonies was acknowledged, the states became severally and individually independent, and as such succeeded to the rights of the crown of England to and over the lands within the boundaries of the respective states. The right of the crown in these lands was the absolute ownership, subject only to the rights of occupancy by the Indians so long as they remained a tribe. This right devolved to each state by the treaty which established their independence, and the United States have never questioned it. See 6th Cranch, 87; 8th Wheaton, 502, S84; 17th Johnson’s Reports, 231. On the other hand, the right of holding treaties with the Indians has universally been conceded to the United States. The right of a state to the lands occupied by the Indians, within the boundaries of such state, does not in the least conflict with the right of holding treaties on national subjects by the United States with those Indians. With respect to Indians residing in any territory without the boundaries of any state, or on lands ceded to the United States, the case is different; the United States are in such cases the proprietors of the soil, subject to the Indian right of occupancy, and when that right is extinguished the proprietorship becomes absolute. It will be seen, then, that in relation to the Indians and their lands, no question could arise respecting the interpretation of the constitution. The observation that “as soon as an Indian tribe attempted to fix its dwelling upon a given spot, the adjacent states claimed possession of the lands, and the rights of sovereignty over the natives”—is a strange compound of error and of truth. As above remarked, the Indian right of occupancy has ever been recognized by the states, with the exception of the case referred to by the author, in which Georgia claimed the right to possess certain lands occupied by the Cherokees. This was anomalous, and grew out of treaties and cessions, the details of which are too numerous and complicated for the limits of a note. But in no other cases have the states ever claimed the possession of lands occupied by Indians, without having previously extinguished their right by purchase.

As to the rights of sovereignty over the natives, the principle admitted in the United States is that all persons within the territorial limits of a state are and of necessity must be, subject to the jurisdiction of its laws. While the Indian tribes were numerous, distinct, and separate from the whites, and possessed a government of their own, the state authorities, from considerations of policy, abstained from the exercise of criminal jurisdiction for offences committed by the Indians among themselves, although for offences against the whites they were subjected to the operation of the state laws. But as these tribes diminished in numbers, as those who remained among them became enervated by bad habits, and ceased to exercise any effectual government, humanity demanded that the power of the states should be interposed to protect the miserable remnants from the violence and outrage of each other. The first recorded instance of interposition in such a case was in 1821, when an Indian of the Seneca tribe in the state of New York was tried and convicted of murder on a squaw of the tribe. The courts declared their competency to take cognizance of such offences, and the legislature confirmed the declaration by a law.—Another instance of what the author calls interpretation of the constitution against the general government, is given by him in the proposed act of 1832, which passed both houses of congress, but was vetoed by the president, by which, as he says, “the greatest part of the revenue derived from the sale of lands, was made over to the new western republics.” But this act was not founded on any doubt of the title of the United States to the lands in question, or of its constitutional power over them, and cannot be cited as any evidence of the interpretation of the constitution. An error of fact in this statement ought to be corrected. The bill to which the author refers, is doubtless that usually called Mr. Clay’s land bill. Instead of making over the greatest part of the revenue to the new states, it appropriated twelve and a half per cent. to them, in addition to five per cent. which had been originally granted for the purpose of making roads. See Niles’s Register, vol. 42, p. 355.—_American Editor._]

The slightest observation in the United States enables one to appreciate the advantages which the country derives from the bank. These advantages are of several kinds, but one of them is peculiarly striking to the stranger. The bank-notes of the United States are taken upon the borders of the desert for the same value as at Philadelphia, where the bank conducts its operations.[Footnote:

The present bank of the United States was established in 1816, with a capital of 35,000,000 dollars; its charter expires in 1836. Last year congress passed a law to renew it, but the president put his veto upon the bill. The struggle is still going on with great violence on either side, and the speedy fall of the bank may easily be foreseen.

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The bank of the United States is nevertheless an object of great animosity. Its directors have proclaimed their hostility to the president; and they are accused, not without some show of probability, of having abused their influence to thwart his election. The president therefore attacks the establishment which they represent, with all the warmth of personal enmity; and he is encouraged in the pursuit of his revenge by the conviction that he is supported by the secret propensities of the majority.

The bank may be regarded as the great monetary tie of the Union, just as congress is the great legislative tie; and the same passions which tend to render the states independent of the central power, contribute to the overthrow of the bank.

The bank of the United States always holds a great number of the notes issued by the provincial banks, which it can at any time oblige them to convert into cash. It has itself nothing to fear from a similar demand, as the extent of its resources enables it to meet all claims. But the existence of the provincial banks is thus threatened, and their operations are restricted, since they are only able to issue a quantity of notes duly proportioned to their capital. They submit with impatience to this salutary control. The newspapers which they have bought over, and the president, whose interest renders him their instrument, attack the bank with the greatest vehemence. They rouse the local passions, and the blind democratic instinct of the country to aid their cause; and they assert that the bank-directors form a permanent aristocratic body, whose influence must ultimately be felt in the government, and must affect those principles of equality upon which society rests in America.

The contest between the bank and its opponents is only an incident in the great struggle which is going on in America between the provinces and the central power; between the spirit of democratic independence, and the spirit of gradation and subordination. I do not mean that the enemies of the bank are identically the same individuals, who, on other points, attack the federal government; but I assert that the attacks directed against the bank of the United States originate in the propensities which militate against the federal government; and that the very numerous opponents of the former afford a deplorable symptom of the decreasing support of the latter.

The Union has never displayed so much weakness as in the celebrated question of the tariff.[Footnote: See principally for the details of this affair, the legislative documents, 22d congress, 2d session, No 3.

] The wars of the French revolution and of 1812 had created manufacturing establishments in the north of the Union, by cutting off all free communication between America and Europe.

When peace was concluded, and the channel of intercourse reopened by which the produce of Europe was transmitted to the New World, the Americans thought fit to establish a system of import duties, for the twofold purpose of protecting their incipient manufactures, and of paying off the amount of the debt contracted during the war. The southern states, which have no manufactures to encourage, and which are exclusively agricultural, soon complained of this measure. Such were the simple facts, and I do not pretend to examine in this place whether their complaints were well founded or unjust.

As early as the year 1820, South Carolina declared, in a petition to Congress, that the tariff was “unconstitutional, oppressive, and unjust.” And the states of Georgia, Virginia, North Carolina, Alabama, and Mississippi, subsequently remonstrated against it with more or less vigor. But Congress, far from lending an ear to these complaints, raised the scale of tariff duties in the years 1824 and 1828, and recognized anew the principle on which it was founded. A doctrine was then proclaimed, or rather revived, in the south, which took the name of nullification.

I have shown in the proper place that the object of the federal constitution was not to form a league, but to create a national government. The Americans of the United States form a sole and undivided people, in all the cases which are specified by that constitution; and upon these points the will of the nation is expressed, as it is in all constitutional nations, by the voice of the majority. When the majority has pronounced its decision, it is the duty of the minority to submit. Such is the sound legal doctrine, and the only one which agrees with the text of the constitution, and the known intention of those who framed it.

The partisans of nullification in the south maintain, on the contrary, that the intention of the Americans in uniting was not to reduce themselves to the condition of one and the same people; that they meant to constitute a league of independent states; and that each state, consequently, retains its entire sovereignty, if not de facto, at least de jure; and has the right of putting its own construction upon the laws of congress, and of suspending their execution within the limits of its own territory, if they are held to be unconstitutional or unjust.

The entire doctrine of nullification is comprised in a sentence uttered by Vice-President Calhoun, the head of that party in the south, before the senate of the United States, in the year 1833: “The constitution is a compact to which the states were parties in their sovereign capacity; now, whenever a contract is entered into by parties which acknowledge no tribunal above their authority to decide in the last resort, each of them has a right to judge