Tribunals obey the constitution
Court. gavers the legislator

81

interpreting a constitution, the clauses of which can be modified by ko authority. They would therefore take the place of the nation, and exercise as absolute a sway over society as the in'herent 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 reason 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; 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 sanction. The persons to whose interest 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 entrusted to their courts of justice is therefore immense, but 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 be 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 be accomplished by the reiterated attacks of judicial functionaries. It will readily be understood that by connecting the censureship 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, the 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 every day. 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

ove rever

powerful barriers,

Judiciar

is

one of most,

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 po-
litical question which he is called upon to resolve is connected
with the interest of the parties, and he cannot refuse to decide it
without abdicating the duties of his post. He performs his func-
tions as a citizen by fulfilling the strict duties which belong to
his profession as a magistrate. It is true that upon this system
the judicial censureship which is exercised by the courts of jus-
tice over the legislation cannot extend to all laws indistinctly, in
as much as some of them can never give rise to that precise spe-
cies 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 before a court of justice. The Americans have often
felt this disadvantage, but they have left the remedy incomplete,
lest they should give it efficacy which might in some cases prove
dangerous. Within these limits, the power vested in the Ame
rican courts of justice of pronouncing a statute to be unconsti-
tutional, forms one of the most powerful barriers which has ever
been devised against the tyranny of political assemblies.

In the United States all the citizens have the right of indicting the public func-
tionaries before the ordinary tribunals.-How they use this right.-Art. 75. 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 gov-
ernment, 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 offi-
cers responsible to the judges of the land. The Americans seem
on the contrary, to have increased by this means that respec
which is due to the authorities, and at the same time to have

Public officers responsible to the judges

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 have no difficulty in accounting for this circumstance. A lawsuit, 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 the 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 faciliating 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 had 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 annulled by the authority of the Crown. Despotism then displayed itself openly, and obedience was extorted by force. We have then retrograded from the point which our forefathers had reached, 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 VII.

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 every thing else, and the idea which