Democracy in America Vol 1 Part 4

j [ If any one conceives himself to be wronged by the school-commissioners (who are town-officers), he can appeal to the superintendent of the primary schools, whose decision is final.-Revised Statutes, vol. i. p. 487.

Provisions similar to those above cited are to be met with from time to time in the laws of the State of New York; but in general these attempts at centralization are weak and unproductive. The great authorities of the State have the right of watching and controlling the subordinate agents, without that of rewarding or punis.h.i.+ng them. The same individual is never empowered to give an order and to punish disobedience; he has therefore the right of commanding, without the means of exacting compliance. In 1830 the Superintendent of Schools complained in his Annual Report addressed to the legislature that several school-commissioners had neglected, notwithstanding his application, to furnish him with the accounts which were due. He added that if this omission continued he should be obliged to prosecute them, as the law directs, before the proper tribunals.]

k [ Thus the district-attorney is directed to recover all fines below the sum of fifty dollars, unless such a right has been specially awarded to another magistrate.-Revised Statutes, vol. i. p. 383.]

l [ Several traces of centralization may be discovered in Ma.s.sachusetts; for instance, the committees of the town-schools are directed to make an annual report to the Secretary of State. See Laws of Ma.s.sachusetts, vol. i. p. 367.]

Of The State I have described the towns.h.i.+ps and the administration; it now remains for me to speak of the State and the Government. This is ground I may pa.s.s over rapidly, without fear of being misunderstood; for all I have to say is to be found in written forms of the various const.i.tutions, which are easily to be procured. These const.i.tutions rest upon a simple and rational theory; their forms have been adopted by all const.i.tutional nations, and are become familiar to us. In this place, therefore, it is only necessary for me to give a short a.n.a.lysis; I shall endeavor afterwards to pa.s.s judgment upon what I now describe.

Chapter V: Necessity Of Examining The Condition Of The States-Part III

Legislative Power Of The State

Division of the Legislative Body into two Houses-Senate-House of Representatives-Different functions of these two Bodies.

The legislative power of the State is vested in two a.s.semblies, the first of which generally bears the name of the Senate. The Senate is commonly a legislative body; but it sometimes becomes an executive and judicial one. It takes a part in the government in several ways, according to the const.i.tution of the different States; *m but it is in the nomination of public functionaries that it most commonly a.s.sumes an executive power. It partakes of judicial power in the trial of certain political offences, and sometimes also in the decision of certain civil cases. *n The number of its members is always small. The other branch of the legislature, which is usually called the House of Representatives, has no share whatever in the administration, and only takes a part in the judicial power inasmuch as it impeaches public functionaries before the Senate. The members of the two Houses are nearly everywhere subject to the same conditions of election. They are chosen in the same manner, and by the same citizens. The only difference which exists between them is, that the term for which the Senate is chosen is in general longer than that of the House of Representatives. The latter seldom remain in office longer than a year; the former usually sit two or three years. By granting to the senators the privilege of being chosen for several years, and being renewed seriatim, the law takes care to preserve in the legislative body a nucleus of men already accustomed to public business, and capable of exercising a salutary influence upon the junior members.

m [ In Ma.s.sachusetts the Senate is not invested with any administrative functions.]

n [ As in the State of New York.]

The Americans, plainly, did not desire, by this separation of the legislative body into two branches, to make one house hereditary and the other elective; one aristocratic and the other democratic. It was not their object to create in the one a bulwark to power, whilst the other represented the interests and pa.s.sions of the people. The only advantages which result from the present const.i.tution of the United States are the division of the legislative power and the consequent check upon political a.s.semblies; with the creation of a tribunal of appeal for the revision of the laws.

Time and experience, however, have convinced the Americans that if these are its only advantages, the division of the legislative power is still a principle of the greatest necessity. Pennsylvania was the only one of the United States which at first attempted to establish a single House of a.s.sembly, and Franklin himself was so far carried away by the necessary consequences of the principle of the sovereignty of the people as to have concurred in the measure; but the Pennsylvanians were soon obliged to change the law, and to create two Houses. Thus the principle of the division of the legislative power was finally established, and its necessity may henceforward be regarded as a demonstrated truth. This theory, which was nearly unknown to the republics of antiquity-which was introduced into the world almost by accident, like so many other great truths-and misunderstood by several modern nations, is at length become an axiom in the political science of the present age.

[See Benjamin Franklin]

The Executive Power Of The State Office of Governor in an American State-The place he occupies in relation to the Legislature-His rights and his duties-His dependence on the people.

The executive power of the State may with truth be said to be represented by the Governor, although he enjoys but a portion of its rights. The supreme magistrate, under the t.i.tle of Governor, is the official moderator and counsellor of the legislature. He is armed with a veto or suspensive power, which allows him to stop, or at least to r.e.t.a.r.d, its movements at pleasure. He lays the wants of the country before the legislative body, and points out the means which he thinks may be usefully employed in providing for them; he is the natural executor of its decrees in all the undertakings which interest the nation at large. *o In the absence of the legislature, the Governor is bound to take all necessary steps to guard the State against violent shocks and unforeseen dangers. The whole military power of the State is at the disposal of the Governor. He is the commander of the militia, and head of the armed force. When the authority, which is by general consent awarded to the laws, is disregarded, the Governor puts himself at the head of the armed force of the State, to quell resistance, and to restore order. Lastly, the Governor takes no share in the administration of towns.h.i.+ps and counties, except it be indirectly in the nomination of Justices of the Peace, which nomination he has not the power to cancel. *p The Governor is an elected magistrate, and is generally chosen for one or two years only; so that he always continues to be strictly dependent upon the majority who returned him.

o [ Practically speaking, it is not always the Governor who executes the plans of the Legislature; it often happens that the latter, in voting a measure, names special agents to superintend the execution of it.]

p [ In some of the States the justices of the peace are not elected by the Governor.]

Political Effects Of The System Of Local Administration In The United States Necessary distinction between the general centralization of Government and the centralization of the local administration-Local administration not centralized in the United States: great general centralization of the Government-Some bad consequences resulting to the United States from the local administration-Administrative advantages attending this order of things-The power which conducts the Government is less regular, less enlightened, less learned, but much greater than in Europe-Political advantages of this order of things-In the United States the interests of the country are everywhere kept in view-Support given to the Government by the community-Provincial inst.i.tutions more necessary in proportion as the social condition becomes more democratic-Reason of this.

Centralization is become a word of general and daily use, without any precise meaning being attached to it. Nevertheless, there exist two distinct kinds of centralization, which it is necessary to discriminate with accuracy. Certain interests are common to all parts of a nation, such as the enactment of its general laws and the maintenance of its foreign relations. Other interests are peculiar to certain parts of the nation; such, for instance, as the business of different towns.h.i.+ps. When the power which directs the general interests is centred in one place, or vested in the same persons, it const.i.tutes a central government. In like manner the power of directing partial or local interests, when brought together into one place, const.i.tutes what may be termed a central administration.

Upon some points these two kinds of centralization coalesce; but by cla.s.sifying the objects which fall more particularly within the province of each of them, they may easily be distinguished. It is evident that a central government acquires immense power when united to administrative centralization. Thus combined, it accustoms men to set their own will habitually and completely aside; to submit, not only for once, or upon one point, but in every respect, and at all times. Not only, therefore, does this union of power subdue them compulsorily, but it affects them in the ordinary habits of life, and influences each individual, first separately and then collectively.

These two kinds of centralization mutually a.s.sist and attract each other; but they must not be supposed to be inseparable. It is impossible to imagine a more completely central government than that which existed in France under Louis XIV.; when the same individual was the author and the interpreter of the laws, and the representative of France at home and abroad, he was justified in a.s.serting that the State was identified with his person. Nevertheless, the administration was much less centralized under Louis XIV. than it is at the present day.

In England the centralization of the government is carried to great perfection; the State has the compact vigor of a man, and by the sole act of its will it puts immense engines in motion, and wields or collects the efforts of its authority. Indeed, I cannot conceive that a nation can enjoy a secure or prosperous existence without a powerful centralization of government. But I am of opinion that a central administration enervates the nations in which it exists by incessantly diminis.h.i.+ng their public spirit. If such an administration succeeds in condensing at a given moment, on a given point, all the disposable resources of a people, it impairs at least the renewal of those resources. It may ensure a victory in the hour of strife, but it gradually relaxes the sinews of strength. It may contribute admirably to the transient greatness of a man, but it cannot ensure the durable prosperity of a nation.

If we pay proper attention, we shall find that whenever it is said that a State cannot act because it has no central point, it is the centralization of the government in which it is deficient. It is frequently a.s.serted, and we are prepared to a.s.sent to the proposition, that the German empire was never able to bring all its powers into action. But the reason was, that the State was never able to enforce obedience to its general laws, because the several members of that great body always claimed the right, or found the means, of refusing their co-operation to the representatives of the common authority, even in the affairs which concerned the ma.s.s of the people; in other words, because there was no centralization of government. The same remark is applicable to the Middle Ages; the cause of all the confusion of feudal society was that the control, not only of local but of general interests, was divided amongst a thousand hands, and broken up in a thousand different ways; the absence of a central government prevented the nations of Europe from advancing with energy in any straightforward course.

We have shown that in the United States no central administration and no dependent series of public functionaries exist. Local authority has been carried to lengths which no European nation could endure without great inconvenience, and which has even produced some disadvantageous consequences in America. But in the United States the centralization of the Government is complete; and it would be easy to prove that the national power is more compact than it has ever been in the old nations of Europe. Not only is there but one legislative body in each State; not only does there exist but one source of political authority; but district a.s.semblies and county courts have not in general been multiplied, lest they should be tempted to exceed their administrative duties, and interfere with the Government. In America the legislature of each State is supreme; nothing can impede its authority; neither privileges, nor local immunities, nor personal influence, nor even the empire of reason, since it represents that majority which claims to be the sole organ of reason. Its own determination is, therefore, the only limit to this action. In juxtaposition to it, and under its immediate control, is the representative of the executive power, whose duty it is to constrain the refractory to submit by superior force. The only symptom of weakness lies in certain details of the action of the Government. The American republics have no standing armies to intimidate a discontented minority; but as no minority has as yet been reduced to declare open war, the necessity of an army has not been felt. *q The State usually employs the officers of the towns.h.i.+p or the county to deal with the citizens. Thus, for instance, in New England, the a.s.sessor fixes the rate of taxes; the collector receives them; the town-treasurer transmits the amount to the public treasury; and the disputes which may arise are brought before the ordinary courts of justice. This method of collecting taxes is slow as well as inconvenient, and it would prove a perpetual hindrance to a Government whose pecuniary demands were large. It is desirable that, in whatever materially affects its existence, the Government should be served by officers of its own, appointed by itself, removable at pleasure, and accustomed to rapid methods of proceeding. But it will always be easy for the central government, organized as it is in America, to introduce new and more efficacious modes of action, proportioned to its wants. [Footnote q: [The Civil War of 1860-65 cruelly belied this statement, and in the course of the struggle the North alone called two millions and a half of men to arms; but to the honor of the United States it must be added that, with the cessation of the contest, this army disappeared as rapidly as it had been raised.-Translator's Note.]]

The absence of a central government will not, then, as has often been a.s.serted, prove the destruction of the republics of the New World; far from supposing that the American governments are not sufficiently centralized, I shall prove hereafter that they are too much so. The legislative bodies daily encroach upon the authority of the Government, and their tendency, like that of the French Convention, is to appropriate it entirely to themselves. Under these circ.u.mstances the social power is constantly changing hands, because it is subordinate to the power of the people, which is too apt to forget the maxims of wisdom and of foresight in the consciousness of its strength: hence arises its danger; and thus its vigor, and not its impotence, will probably be the cause of its ultimate destruction.

The system of local administration produces several different effects in America. The Americans seem to me to have outstepped the limits of sound policy in isolating the administration of the Government; for order, even in second-rate affairs, is a matter of national importance. *r As the State has no administrative functionaries of its own, stationed on different points of its territory, to whom it can give a common impulse, the consequence is that it rarely attempts to issue any general police regulations. The want of these regulations is severely felt, and is frequently observed by Europeans. The appearance of disorder which prevails on the surface leads him at first to imagine that society is in a state of anarchy; nor does he perceive his mistake till he has gone deeper into the subject. Certain undertakings are of importance to the whole State; but they cannot be put in execution, because there is no national administration to direct them. Abandoned to the exertions of the towns or counties, under the care of elected or temporary agents, they lead to no result, or at least to no durable benefit.

r [ The authority which represents the State ought not, I think, to waive the right of inspecting the local administration, even when it does not interfere more actively. Suppose, for instance, that an agent of the Government was stationed at some appointed spot in the country, to prosecute the misdemeanors of the town and county officers, would not a more uniform order be the result, without in any way compromising the independence of the towns.h.i.+p? Nothing of the kind, however, exists in America: there is nothing above the county-courts, which have, as it were, only an incidental cognizance of the offences they are meant to repress.]

The partisans of centralization in Europe are wont to maintain that the Government directs the affairs of each locality better than the citizens could do it for themselves; this may be true when the central power is enlightened, and when the local districts are ignorant; when it is as alert as they are slow; when it is accustomed to act, and they to obey. Indeed, it is evident that this double tendency must augment with the increase of centralization, and that the readiness of the one and the incapacity of the others must become more and more prominent. But I deny that such is the case when the people is as enlightened, as awake to its interests, and as accustomed to reflect on them, as the Americans are. I am persuaded, on the contrary, that in this case the collective strength of the citizens will always conduce more efficaciously to the public welfare than the authority of the Government. It is difficult to point out with certainty the means of arousing a sleeping population, and of giving it pa.s.sions and knowledge which it does not possess; it is, I am well aware, an arduous task to persuade men to busy themselves about their own affairs; and it would frequently be easier to interest them in the punctilios of court etiquette than in the repairs of their common dwelling. But whenever a central administration affects to supersede the persons most interested, I am inclined to suppose that it is either misled or desirous to mislead. However enlightened and however skilful a central power may be, it cannot of itself embrace all the details of the existence of a great nation. Such vigilance exceeds the powers of man. And when it attempts to create and set in motion so many complicated springs, it must submit to a very imperfect result, or consume itself in bootless efforts.

Centralization succeeds more easily, indeed, in subjecting the external actions of men to a certain uniformity, which at least commands our regard, independently of the objects to which it is applied, like those devotees who wors.h.i.+p the statue and forget the deity it represents. Centralization imparts without difficulty an admirable regularity to the routine of business; provides for the details of the social police with sagacity; represses the smallest disorder and the most petty misdemeanors; maintains society in a status quo alike secure from improvement and decline; and perpetuates a drowsy precision in the conduct of affairs, which is hailed by the heads of the administration as a sign of perfect order and public tranquillity: *s in short, it excels more in prevention than in action. Its force deserts it when society is to be disturbed or accelerated in its course; and if once the co-operation of private citizens is necessary to the furtherance of its measures, the secret of its impotence is disclosed. Even whilst it invokes their a.s.sistance, it is on the condition that they shall act exactly as much as the Government chooses, and exactly in the manner it appoints. They are to take charge of the details, without aspiring to guide the system; they are to work in a dark and subordinate sphere, and only to judge the acts in which they have themselves cooperated by their results. These, however, are not conditions on which the alliance of the human will is to be obtained; its carriage must be free and its actions responsible, or (such is the const.i.tution of man) the citizen had rather remain a pa.s.sive spectator than a dependent actor in schemes with which he is unacquainted.

s [ China appears to me to present the most perfect instance of that species of well-being which a completely central administration may furnish to the nations among which it exists. Travellers a.s.sure us that the Chinese have peace without happiness, industry without improvement, stability without strength, and public order without public morality. The condition of society is always tolerable, never excellent. I am convinced that, when China is opened to European observation, it will be found to contain the most perfect model of a central administration which exists in the universe.]

It is undeniable that the want of those uniform regulations which control the conduct of every inhabitant of France is not unfrequently felt in the United States. Gross instances of social indifference and neglect are to be met with, and from time to time disgraceful blemishes are seen in complete contrast with the surrounding civilization. Useful undertakings which cannot succeed without perpetual attention and rigorous exact.i.tude are very frequently abandoned in the end; for in America, as well as in other countries, the people is subject to sudden impulses and momentary exertions. The European who is accustomed to find a functionary always at hand to interfere with all he undertakes has some difficulty in accustoming himself to the complex mechanism of the administration of the towns.h.i.+ps. In general it may be affirmed that the lesser details of the police, which render life easy and comfortable, are neglected in America; but that the essential guarantees of man in society are as strong there as elsewhere. In America the power which conducts the Government is far less regular, less enlightened, and less learned, but an hundredfold more authoritative than in Europe. In no country in the world do the citizens make such exertions for the common weal; and I am acquainted with no people which has established schools as numerous and as efficacious, places of public wors.h.i.+p better suited to the wants of the inhabitants, or roads kept in better repair. Uniformity or permanence of design, the minute arrangement of details, *t and the perfection of an ingenious administration, must not be sought for in the United States; but it will be easy to find, on the other hand, the symptoms of a power which, if it is somewhat barbarous, is at least robust; and of an existence which is checkered with accidents indeed, but cheered at the same time by animation and effort.

t [ A writer of talent, who, in the comparison which he has drawn between the finances of France and those of the United States, has proved that ingenuity cannot always supply the place of a knowledge of facts, very justly reproaches the Americans for the sort of confusion which exists in the accounts of the expenditure in the towns.h.i.+ps; and after giving the model of a departmental budget in France, he adds:-"We are indebted to centralization, that admirable invention of a great man, for the uniform order and method which prevail alike in all the munic.i.p.al budgets, from the largest town to the humblest commune." Whatever may be my admiration of this result, when I see the communes of France, with their excellent system of accounts, plunged into the grossest ignorance of their true interests, and abandoned to so incorrigible an apathy that they seem to vegetate rather than to live; when, on the other hand, I observe the activity, the information, and the spirit of enterprise which keep society in perpetual labor, in those American towns.h.i.+ps whose budgets are drawn up with small method and with still less uniformity, I am struck by the spectacle; for to my mind the end of a good government is to ensure the welfare of a people, and not to establish order and regularity in the midst of its misery and its distress. I am therefore led to suppose that the prosperity of the American towns.h.i.+ps and the apparent confusion of their accounts, the distress of the French communes and the perfection of their budget, may be attributable to the same cause. At any rate I am suspicious of a benefit which is united to so many evils, and I am not averse to an evil which is compensated by so many benefits.]

Granting for an instant that the villages and counties of the United States would be more usefully governed by a remote authority which they had never seen than by functionaries taken from the midst of them-admitting, for the sake of argument, that the country would be more secure, and the resources of society better employed, if the whole administration centred in a single arm-still the political advantages which the Americans derive from their system would induce me to prefer it to the contrary plan. It profits me but little, after all, that a vigilant authority should protect the tranquillity of my pleasures and constantly avert all dangers from my path, without my care or my concern, if this same authority is the absolute mistress of my liberty and of my life, and if it so monopolizes all the energy of existence that when it languishes everything languishes around it, that when it sleeps everything must sleep, that when it dies the State itself must perish.

In certain countries of Europe the natives consider themselves as a kind of settlers, indifferent to the fate of the spot upon which they live. The greatest changes are effected without their concurrence and (unless chance may have apprised them of the event) without their knowledge; nay more, the citizen is unconcerned as to the condition of his village, the police of his street, the repairs of the church or of the parsonage; for he looks upon all these things as unconnected with himself, and as the property of a powerful stranger whom he calls the Government. He has only a life-interest in these possessions, and he entertains no notions of owners.h.i.+p or of improvement. This want of interest in his own affairs goes so far that, if his own safety or that of his children is endangered, instead of trying to avert the peril, he will fold his arms, and wait till the nation comes to his a.s.sistance. This same individual, who has so completely sacrificed his own free will, has no natural propensity to obedience; he cowers, it is true, before the pettiest officer; but he braves the law with the spirit of a conquered foe as soon as its superior force is removed: his oscillations between servitude and license are perpetual. When a nation has arrived at this state it must either change its customs and its laws or perish: the source of public virtue is dry, and, though it may contain subjects, the race of citizens is extinct. Such communities are a natural prey to foreign conquests, and if they do not disappear from the scene of life, it is because they are surrounded by other nations similar or inferior to themselves: it is because the instinctive feeling of their country's claims still exists in their hearts; and because an involuntary pride in the name it bears, or a vague reminiscence of its bygone fame, suffices to give them the impulse of self-preservation.

Nor can the prodigious exertions made by tribes in the defence of a country to which they did not belong be adduced in favor of such a system; for it will be found that in these cases their main incitement was religion. The permanence, the glory, or the prosperity of the nation were become parts of their faith, and in defending the country they inhabited they defended that Holy City of which they were all citizens. The Turkish tribes have never taken an active share in the conduct of the affairs of society, but they accomplished stupendous enterprises as long as the victories of the Sultan were the triumphs of the Mohammedan faith. In the present age they are in rapid decay, because their religion is departing, and despotism only remains. Montesquieu, who attributed to absolute power an authority peculiar to itself, did it, as I conceive, an undeserved honor; for despotism, taken by itself, can produce no durable results. On close inspection we shall find that religion, and not fear, has ever been the cause of the long-lived prosperity of an absolute government. Whatever exertions may be made, no true power can be founded among men which does not depend upon the free union of their inclinations; and patriotism and religion are the only two motives in the world which can permanently direct the whole of a body politic to one end.

Laws cannot succeed in rekindling the ardor of an extinguished faith, but men may be interested in the fate of their country by the laws. By this influence the vague impulse of patriotism, which never abandons the human heart, may be directed and revived; and if it be connected with the thoughts, the pa.s.sions, and the daily habits of life, it may be consolidated into a durable and rational sentiment.

Let it not be said that the time for the experiment is already past; for the old age of nations is not like the old age of men, and every fresh generation is a new people ready for the care of the legislator.

It is not the administrative but the political effects of the local system that I most admire in America. In the United States the interests of the country are everywhere kept in view; they are an object of solicitude to the people of the whole Union, and every citizen is as warmly attached to them as if they were his own. He takes pride in the glory of his nation; he boasts of its success, to which he conceives himself to have contributed, and he rejoices in the general prosperity by which he profits. The feeling he entertains towards the State is a.n.a.logous to that which unites him to his family, and it is by a kind of egotism that he interests himself in the welfare of his country.

The European generally submits to a public officer because he represents a superior force; but to an American he represents a right. In America it may be said that no one renders obedience to man, but to justice and to law. If the opinion which the citizen entertains of himself is exaggerated, it is at least salutary; he unhesitatingly confides in his own powers, which appear to him to be all-sufficient. When a private individual meditates an undertaking, however directly connected it may be with the welfare of society, he never thinks of soliciting the co-operation of the Government, but he publishes his plan, offers to execute it himself, courts the a.s.sistance of other individuals, and struggles manfully against all obstacles. Undoubtedly he is often less successful than the State might have been in his position; but in the end the sum of these private undertakings far exceeds all that the Government could have done.

As the administrative authority is within the reach of the citizens, whom it in some degree represents, it excites neither their jealousy nor their hatred; as its resources are limited, every one feels that he must not rely solely on its a.s.sistance. Thus, when the administration thinks fit to interfere, it is not abandoned to itself as in Europe; the duties of the private citizens are not supposed to have lapsed because the State a.s.sists in their fulfilment, but every one is ready, on the contrary, to guide and to support it. This action of individual exertions, joined to that of the public authorities, frequently performs what the most energetic central administration would be unable to execute. It would be easy to adduce several facts in proof of what I advance, but I had rather give only one, with which I am more thoroughly acquainted. *u In America the means which the authorities have at their disposal for the discovery of crimes and the arrest of criminals are few. The State police does not exist, and pa.s.sports are unknown. The criminal police of the United States cannot be compared to that of France; the magistrates and public prosecutors are not numerous, and the examinations of prisoners are rapid and oral. Nevertheless in no country does crime more rarely elude punishment. The reason is, that every one conceives himself to be interested in furnis.h.i.+ng evidence of the act committed, and in stopping the delinquent. During my stay in the United States I witnessed the spontaneous formation of committees for the pursuit and prosecution of a man who had committed a great crime in a certain county. In Europe a criminal is an unhappy being who is struggling for his life against the ministers of justice, whilst the population is merely a spectator of the conflict; in America he is looked upon as an enemy of the human race, and the whole of mankind is against him.

u [ See Appendix, I.]

I believe that provincial inst.i.tutions are useful to all nations, but nowhere do they appear to me to be more indispensable than amongst a democratic people. In an aristocracy order can always be maintained in the midst of liberty, and as the rulers have a great deal to lose order is to them a first-rate consideration. In like manner an aristocracy protects the people from the excesses of despotism, because it always possesses an organized power ready to resist a despot. But a democracy without provincial inst.i.tutions has no security against these evils. How can a populace, unaccustomed to freedom in small concerns, learn to use it temperately in great affairs? What resistance can be offered to tyranny in a country where every private individual is impotent, and where the citizens are united by no common tie? Those who dread the license of the mob, and those who fear the rule of absolute power, ought alike to desire the progressive growth of provincial liberties.

On the other hand, I am convinced that democratic nations are most exposed to fall beneath the yoke of a central administration, for several reasons, amongst which is the following. The constant tendency of these nations is to concentrate all the strength of the Government in the hands of the only power which directly represents the people, because beyond the people nothing is to be perceived but a ma.s.s of equal individuals confounded together. But when the same power is already in possession of all the attributes of the Government, it can scarcely refrain from penetrating into the details of the administration, and an opportunity of doing so is sure to present itself in the end, as was the case in France. In the French Revolution there were two impulses in opposite directions, which must never be confounded-the one was favorable to liberty, the other to despotism. Under the ancient monarchy the King was the sole author of the laws, and below the power of the sovereign certain vestiges of provincial inst.i.tutions, half destroyed, were still distinguishable. These provincial inst.i.tutions were incoherent, ill compacted, and frequently absurd; in the hands of the aristocracy they had sometimes been converted into instruments of oppression. The Revolution declared itself the enemy of royalty and of provincial inst.i.tutions at the same time; it confounded all that had preceded it-despotic power and the checks to its abuses-in indiscriminate hatred, and its tendency was at once to overthrow and to centralize. This double character of the French Revolution is a fact which has been adroitly handled by the friends of absolute power. Can they be accused of laboring in the cause of despotism when they are defending that central administration which was one of the great innovations of the Revolution? *v In this manner popularity may be conciliated with hostility to the rights of the people, and the secret slave of tyranny may be the professed admirer of freedom.

v [ See Appendix K.]

I have visited the two nations in which the system of provincial liberty has been most perfectly established, and I have listened to the opinions of different parties in those countries. In America I met with men who secretly aspired to destroy the democratic inst.i.tutions of the Union; in England I found others who attacked the aristocracy openly, but I know of no one who does not regard provincial independence as a great benefit. In both countries I have heard a thousand different causes a.s.signed for the evils of the State, but the local system was never mentioned amongst them. I have heard citizens attribute the power and prosperity of their country to a mult.i.tude of reasons, but they all placed the advantages of local inst.i.tutions in the foremost rank. Am I to suppose that when men who are naturally so divided on religious opinions and on political theories agree on one point (and that one of which they have daily experience), they are all in error? The only nations which deny the utility of provincial liberties are those which have fewest of them; in other words, those who are unacquainted with the inst.i.tution are the only persons who pa.s.s a censure upon it.

Chapter VI: Judicial Power In The United States

Chapter Summary

The Anglo-Americans have retained the characteristics of judicial power which are common to all nations-They have, however, made it a powerful political organ-How-In what the judicial system of the Anglo-Americans differs from that of all other nations-Why the American judges have the right of declaring the laws to be unconst.i.tutional-How they use this right-Precautions taken by the legislator to prevent its abuse.

Judicial Power In The United States And Its Influence On Political Society.

I have thought it essential to devote a separate chapter to the judicial authorities of the United States, lest their great political importance should be lessened in the reader's eyes by a merely incidental mention of them. Confederations have existed in other countries beside America, and republics have not been established upon the sh.o.r.es of the New World alone; the representative system of government has been adopted in several States of Europe, but I am not aware that any nation of the globe has. .h.i.therto organized a judicial power on the principle now adopted by the Americans. The judicial organization of the United States is the inst.i.tution which a stranger has the greatest difficulty in understanding. He hears the authority of a judge invoked in the political occurrences of every day, and he naturally concludes that in the United States the judges are important political functionaries; nevertheless, when he examines the nature of the tribunals, they offer nothing which is contrary to the usual habits and privileges of those bodies, and the magistrates seem to him to interfere in public affairs of chance, but by a chance which recurs every day.

When the Parliament of Paris remonstrated, or refused to enregister an edict, or when it summoned a functionary accused of malversation to its bar, its political influence as a judicial body was clearly visible; but nothing of the kind is to be seen in the United States. The Americans have retained all the ordinary characteristics of judicial authority, and have carefully restricted its action to the ordinary circle of its functions.

The first characteristic of judicial power in all nations is the duty of arbitration. But rights must be contested in order to warrant the interference of a tribunal; and an action must be brought to obtain the decision of a judge. As long, therefore, as the law is uncontested, the judicial authority is not called upon to discuss it, and it may exist without being perceived. When a judge in a given case attacks a law relating to that case, he extends the circle of his customary duties, without however stepping beyond it; since he is in some measure obliged to decide upon the law in order to decide the case. But if he p.r.o.nounces upon a law without resting upon a case, he clearly steps beyond his sphere, and invades that of the legislative authority.

The second characteristic of judicial power is that it p.r.o.nounces on special cases, and not upon general principles. If a judge in deciding a particular point destroys a general principle, by pa.s.sing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority, he a.s.sumes a more important, and perhaps a more useful, influence than that of the magistrate, but he ceases to be a representative of the judicial power.

The third characteristic of the judicial power is its inability to act unless it is appealed to, or until it has taken cognizance of an affair. This characteristic is less general than the other two; but, notwithstanding the exceptions, I think it may be regarded as essential. The judicial power is by its nature devoid of action; it must be put in motion in order to produce a result. When it is called upon to repress a crime, it punishes the criminal; when a wrong is to be redressed, it is ready to redress it; when an act requires interpretation, it is prepared to interpret it; but it does not pursue criminals, hunt out wrongs, or examine into evidence of its own accord. A judicial functionary who should open proceedings, and usurp the censors.h.i.+p of the laws, would in some measure do violence to the pa.s.sive nature of his authority.

The Americans have retained these three distinguis.h.i.+ng characteristics of the judicial power; an American judge can only p.r.o.nounce 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 const.i.tution 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 unconst.i.tutional.

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 const.i.tution. In France the const.i.tution 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 const.i.tution; as, therefore, the const.i.tution may undergo perpetual changes, it does not in reality exist; the Parliament is at once a legislative and a const.i.tuent a.s.sembly. The political theories of America are more simple and more rational. An American const.i.tution 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 const.i.tutes 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 const.i.tution may therefore vary, but as long as it exists it is the origin of all authority, and the sole vehicle of the predominating force. *a a [ [The fifth article of the original Const.i.tution of the United States provides the mode in which amendments of the Const.i.tution may be made. Amendments must be proposed by two-thirds of both Houses of Congress, and ratified by the Legislatures of three-fourths of the several States. Fifteen amendments of the Const.i.tution have been made at different times since 1789, the most important of which are the Thirteenth, Fourteenth, and Fifteenth, framed and ratified after the Civil War. The original Const.i.tution of the United States, followed by these fifteen amendments, is printed at the end of this edition. -Translator's Note, 1874.]]

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 const.i.tution, the supreme power would in fact be placed in their hands, since they alone would have the right of interpreting a const.i.tution, 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 unconst.i.tutional, the power of changing the const.i.tution 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 const.i.tution 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 const.i.tution; and consequently a law emanating from the three powers of the State can in no case be unconst.i.tutional. But neither of these remarks is applicable to America.

In the United States the const.i.tution 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 const.i.tution 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 const.i.tution 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 const.i.tution, 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 unconst.i.tutional 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 a.n.a.lysis 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 const.i.tution, or the legislature must repeal the law. The political power which the Americans have intrusted 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 pa.s.s 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 pa.s.sions 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 be accomplished by the reiterated attacks of judicial functionaries. It will readily be understood that by connecting the censors.h.i.+p 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 a.s.sailants, 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 censors.h.i.+p 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 before 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 p.r.o.nouncing a statute to be unconst.i.tutional forms one of the most powerful barriers which has ever been devised against the tyranny of political a.s.semblies.

Other Powers Granted To American Judges 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 Const.i.tution 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 punis.h.i.+ng 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 circ.u.mstance. 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 American inst.i.tutions, for the same facts present themselves in England. These two nations do not regard the impeachment of the princ.i.p.al 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 const.i.tution 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 the case the prosecution takes place before the ordinary tribunals." This clause survived the "Const.i.tution 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 pa.s.s 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

Chapter Summary

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 pa.s.s sentence on public officers-He more frequently pa.s.ses 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.

Political Jurisdiction In The United States I understand, by political jurisdiction, that temporary right of p.r.o.nouncing 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 *a const.i.tute 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.