The Americans have retained these three distinguishing characteristics of the judicial power; an American judge can only pronounce a decision when litigation has arisen, he is only conversant with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore perfectly similar to that of the magistrate of other nations; and he is nevertheless invested with immense political power. If the sphere of his authority and his means of action are the same as those of other judges, it may be asked whence he derives a power which they do not possess. The cause of this difference lies in the simple fact that the Americans have acknowledged the right of the judges to found their decisions on the constitution rather than on the laws. In other words, they have left them at liberty not to apply such laws as may appear to them to be unconstitutional.
I am aware that a similar right has been claimed—but claimed in vain—by courts of justice in other countries; but in America it is recognized by all authorities; and not a party, nor so much as an individual, is found to contest it. This fact can only be explained by the principles of the American constitution. In France the constitution is (or at least is supposed to be) immutable; and the received theory is that no power has the right of changing any part of it. In England the Parliament has an acknowledged right to modify the constitution; as, therefore, the constitution may undergo perpetual changes, it does not in reality exist; the Parliament is at once a legislative and a constituent assembly. The political theories of America are more simple and more rational. An American constitution is not supposed to be immutable as in France, nor is it susceptible of modification by the ordinary powers of society as in England. It constitutes a detached whole, which, as it represents the determination of the whole people, is no less binding on the legislator than on the private citizen, but which may be altered by the will of the people in predetermined cases, according to established rules. In America the constitution may therefore vary, but as long as it exists it is the origin of all authority, and the sole vehicle of the predominating force.
It is easy to perceive in what manner these differences must act upon the position and the rights of the judicial bodies in the three countries I have cited. If in France the tribunals were authorized to disobey the laws on the ground of their being opposed to the constitution, the supreme power would in fact be placed in their hands, since they alone would have the right of interpreting a constitution, the clauses of which can be modified by no authority. They would therefore take the place of the nation, and exercise as absolute a sway over society as the inherent weakness of judicial power would allow them to do. Undoubtedly, as the French judges are incompetent to declare a law to be unconstitutional, the power of changing the constitution is indirectly given to the legislative body, since no legal barrier would oppose the alterations which it might prescribe. But it is better to grant the power of changing the constitution of the people to men who represent (however imperfectly) the will of the people, than to men who represent no one but themselves.
It would be still more unreasonable to invest the English judges with the right of resisting the decisions of the legislative body, since the Parliament which makes the laws also makes the constitution; and consequently a law emanating from the three powers of the State can in no case be unconstitutional. But neither of these remarks is applicable to America.
In the United States the constitution governs the legislator as much as the private citizen; as it is the first of laws it cannot be modified by a law, and it is therefore just that the tribunals should obey the constitution in preference to any law. This condition is essential to the power of the judicature, for to select that legal obligation by which he is most strictly bound is the natural right of every magistrate.
In France the constitution is also the first of laws, and the judges have the same right to take it as the ground of their decisions, but were they to exercise this right they must perforce encroach on rights more sacred than their own, namely, on those of society, in whose name they are acting. In this case the State-motive clearly prevails over the motives of an individual. In America, where the nation can always reduce its magistrates to obedience by changing its constitution, no danger of this kind is to be feared. Upon this point, therefore, the political and the logical reasons agree, and the people as well as the judges preserve their privileges.
Whenever a law which the judge holds to be unconstitutional is argued in a tribunal of the United States he may refuse to admit it as a rule; this power is the only one which is peculiar to the American magistrate, but it gives rise to immense political influence. Few laws can escape the searching analysis of the judicial power for any length of time, for there are few which are not prejudicial to some private interest or other, and none which may not be brought before a court of justice by the choice of parties, or by the necessity of the case. But from the time that a judge has refused to apply any given law in a case, that law loses a portion of its moral cogency. The persons to whose interests it is prejudicial learn that means exist of evading its authority, and similar suits are multiplied, until it becomes powerless. One of two alternatives must then be resorted to: the people must alter the constitution, or the legislature must repeal the law. The political power which the Americans have intrusted to their courts of justice is therefore immense, hut the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone. If the judge had been empowered to contest the laws on the ground of theoretical generalities, if he had been enabled to open an attack or to pass a censure on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist of a party, he would have arrayed the hostile passions of the nation in the conflict. But when a judge contests a law applied to some particular case in an obscure proceeding, the importance of his attack is concealed from the public gaze, his decision bears upon the interest of an individual, and if the law is slighted it is only collaterally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its cogency is by no means suspended, and its final destruction can only by accomplished by the reiterated attacks of judicial functionaries. It will readily be understood that by connecting the censorship of the laws with the private interests of members of the community, and by intimately uniting the prosecution of the law with the prosecution of an individual, legislation is protected from wanton assailants, and from the daily aggressions of party spirit. The errors of the legislator are exposed whenever their evil consequences are most felt, and it is always a positive and appreciable fact which serves as the basis of a prosecution.
I am inclined to believe this practice of the American courts to be at once the most favorable to liberty as well as to public order. If the judge could only attack the legislator openly and directly, he would sometimes be afraid to oppose any resistance to his will; and at other moments party spirit might encourage him to brave it at every turn. The laws would consequently be attacked when the power from which they emanate is weak, and obeyed when it is strong. That is to say, when it would be useful to respect them they would be contested, and when it would be easy to convert them into an instrument of oppression they would be respected. But the American judge is brought into the political arena independently of his own will. He only judges the law because he is obliged to judge a case. The political question which he is called upon to resolve is connected with the interest of the suitors, and he cannot refuse to decide it without abdicating the duties of his post. He performs his functions as a citizen by fulfilling the precise duties which belong to his profession as a magistrate. It is true that upon this system the judicial censorship which is exercised by the courts of justice over the legislation cannot extend to all laws indiscriminately, inasmuch as some of them can never give rise to that exact species of contestation which is termed a lawsuit; and even when such a contestation is possible, it may happen that no one cares to bring it be
fore a court of justice. The Americans have often felt this disadvantage, but they have left the remedy incomplete, lest they should give it an efficacy which might in some cases prove dangerous. Within these limits the power vested in the American courts of justice of pronouncing a statute to be unconstitutional forms one of the most powerful barriers which has ever been devised against the tyranny of political assemblies.
Other Powers Granted to American Judges
In the United States all the citizens have the right of indicting public functionaries before the ordinary tribunals—How they use this right—Art. 75 of the French Constitution of the An VIII—The Americans and the English cannot understand the purport of this clause.
It is perfectly natural that in a free country like America all the citizens should have the right of indicting public functionaries before the ordinary tribunals, and that all the judges should have the power of punishing public offences. The right granted to the courts of justice of judging the agents of the executive government, when they have violated the laws, is so natural a one that it cannot be looked upon as an extraordinary privilege. Nor do the springs of government appear to me to be weakened in the United States by the custom which renders all public officers responsible to the judges of the land. The Americans seem, on the contrary, to have increased by this means that respect which is due to the authorities, and at the same time to have rendered those who are in power more scrupulous of offending public opinion. I was struck by the small number of political trials which occur in the United States, but I had no difficulty in accounting for this circumstance. A law-suit, of whatever nature it may be, is always a difficult and expensive undertaking. It is easy to attack a public man in a journal, but the motives which can warrant an action at law must be serious. A solid ground of complaint must therefore exist to induce an individual to prosecute a public officer, and public officers are careful not to furnish these grounds of complaint when they are afraid of being prosecuted.
This does not depend upon the republican form of American institutions, for the same facts present themselves in England. These two nations do not regard the impeachment of the principal officers of State as a sufficient guarantee of their independence. But they hold that the right of minor prosecutions, which are within the reach of the whole community, is a better pledge of freedom than those great judicial actions which are rarely employed until it is too late.
In the Middle Ages, when it was very difficult to overtake offenders, the judges inflicted the most dreadful tortures on the few who were arrested, which by no means diminished the number of crimes. It has since been discovered that when justice is more certain and more mild, it is at the same time more efficacious. The English and the Americans hold that tyranny and oppression are to be treated like any other crime, by lessening the penalty and facilitating conviction.
In the year VIII of the French Republic a constitution was drawn up in which the following clause was introduced: "Art. 75. All the agents of the government below the rank of ministers can only be prosecuted for offences relating to their several functions by virtue of a decree of the Conseil d'Etat; in which case the prosecution takes place before the ordinary tribunals." This clause survived the "Constitution de l'An VIII," and it is still maintained in spite of the just complaints of the nation. I have always found the utmost difficulty in explaining its meaning to Englishmen or Americans. They were at once led to conclude that the Conseil d'Etat in France was a great tribunal, established in the centre of the kingdom, which exercised a preliminary and somewhat tyrannical jurisdiction in all political causes. But when I told them that the Conseil d'Etat was not a judicial body, in the common sense of the term, but an administrative council composed of men dependent on the Crown, so that the king, after having ordered one of his servants, called a Prefect, to commit an injustice, has the power of commanding another of his servants, called a Councillor of State, to prevent the former from being punished; when I demonstrated to them that the citizen who has been injured by the order of the sovereign is obliged to solicit from the sovereign permission to obtain redress, they refused to credit so flagrant an abuse, and were tempted to accuse me of falsehood or of ignorance. It frequently happened before the Revolution that a Parliament issued a warrant against a public officer who had committed an offence, and sometimes the proceedings were stopped by the authority of the Crown, which enforced compliance with its absolute and despotic will. It is painful to perceive how much lower we are sunk than our forefathers, since we allow things to pass under the color of justice and the sanction of the law which violence alone could impose upon them.
Chapter 7: Political Jurisdiction in the United States
Definition of political jurisdiction—What is understood by political jurisdiction in France, in England, and in the United States—In America the political judge can only pass sentence on public officers—He more frequently passes a sentence of removal from office than a penalty—Political jurisdiction as it exists in the United States is, notwithstanding its mildness, and perhaps in consequence of that mildness, a most powerful instrument in the hands of the majority.
I UNDERSTAND, by political jurisdiction, that temporary right of pronouncing a legal decision with which a political body may be invested.
In absolute governments no utility can accrue from the introduction of extraordinary forms of procedure; the prince in whose name an offender is prosecuted is as much the sovereign of the courts of justice as of everything else, and the idea which is entertained of his power is of itself a sufficient security. The only thing he has to fear is, that the external formalities of justice should be neglected, and that his authority should be dishonored from a wish to render it more absolute. But in most free countries, in which the majority can never exercise the same influence upon the tribunals as an absolute monarch, the judicial power has occasionally been vested for a time in the representatives of the nation. It has been thought better to introduce a temporary confusion between the functions of the different authorities than to violate the necessary principle of the unity of government.
England, France, and the United States have established this political jurisdiction by law; and it is curious to examine the different adaptations which these three great nations have made of the principle. In England and in France the House of Lords and the Chambre des Paris constitute the highest criminal court of their respective nations, and although they do not habitually try all political offences, they are competent to try them all. Another political body enjoys the right of impeachment before the House of Lords: the only difference which exists between the two countries in this respect is, that in England the Commons may impeach whomsoever they please before the Lords, whilst in France the Deputies can only employ this mode of prosecution against the ministers of the Crown.
In both countries the Upper House may make use of all the existing penal laws of the nation to punish the delinquents.
In the United States, as well as in Europe, one branch of the legislature is authorized to impeach and another to judge: the House of Representatives arraigns the offender, and the Senate awards his sentence. But the Senate can only try such persons as are brought before it by the House of Representatives, and those persons must belong to the class of public functionaries. Thus the jurisdiction of the Senate is less extensive than that of the Peers of France, whilst the right of impeachment by the Representatives is more general than that of the Deputies. But the great difference which exists between Europe and America is, that in Europe political tribunals are empowered to inflict all the dispositions of the penal code, while in America, when they have deprived the offender of his official rank, and have declared him incapable of filling any political office for the future, their jurisdiction terminates and that of the ordinary tribunals begins.
Suppose, for instance, that the President of the United States has committed the crime of high treason; the House of Representatives impeaches him, and the Senate degrades him; he must then be tried by a jury, whic
h alone can deprive him of his liberty or his life. This accurately illustrates the subject we are treating. The political jurisdiction which is established by the laws of Europe is intended to try great offenders, whatever may be their birth, their rank, or their powers in the State; and to this end all the privileges of the courts of justice are temporarily extended to a great political assembly. The legislator is then transformed into the magistrate; he is called upon to admit, to distinguish, and to punish the offence; and as he exercises all the authority of a judge, the law restricts him to the observance of all the duties of that high office, and of all the formalities of justice. When a public functionary is impeached before an English or a French political tribunal, andis found guilty, the sentence deprives him ipso facto of his functions, and it may pronounce him to be incapable of resuming them or any others for the future. But in this case the political interdict is a consequence of the sentence, and not the sentence itself. In Europe the sentence of a political tribunal is to be regarded as a judicial verdict rather than as an administrative measure. In the United States the Contrary takes place; and although the decision of the Senate is judicial in its form, since the Senators are obliged to comply with the practices and formalities of a court of justice; although it is judicial in respect to the motives on which it is founded, since the Senate is in general obliged to take an offence at common law as the basis of its sentence; nevertheless the object of the proceeding is purely administrative. If it had been the intention of the American legislator to invest a political body with great judicial authority, its action would not have been limited to the circle of public functionaries, since the most dangerous enemies of the State may be in the possession of no functions at all; and this is especially true in republics, where party influence is the first of authorities, and where the strength of many a leader is increased by his exercising no legal power.
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