inferences from that principle, and consequently to annul it,
he remains within the ordinary limits or his functions. But
96 JUDICIAL POWER IN THE UNITED STATES,
if he directly attacks a general principle without having a
particular case in view, he leaves the circle in which all na- /
tions have agreed to confine his authority ; he assumes a
more important, and perhaps a more useful influence than I
that of the magistrate, but he ceases to represent the judicial (
power.
The third characteristic of the judicial power is its inability x
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 mu$t be put in motion in order to pro-
'duce 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 censorship of the laws, would in some measure do [
violence to the passive nature of his authority.
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 posi
tion 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 the 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 Ame
rican 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
17=
AND ITS INFLUENCE ON POLITICAL SOClETi'. 9/
perpetual changes, it does not in reality exist ; the parliament
is at once a legislative and a constituent assembly. The po
litical 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 legisla
tive 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 repre
sent (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 legis
lative 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 uncon
stitutional. But neither of these remarks is applicable to
Arnerica.f
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 judica-
* See Appendix L. f See Appendix M.
-
JUDICIAL POWER OF THE UNITED STATES,
ture ; 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 constitu
tion, 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 unconstitu
tional io argued in a tribunal of the United States, he may re
fuse 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 prejudi
cial 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 le
gislature 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 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, ap
plied 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 diani-
AND ITS INFLUENCE ON POLITICAL SOCIETY. 90
nislied, 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 under
stood that by connecting the censorship of the laws with the
private interests of members of the community, and by inti
mately uniting the prosecution of the law with the prosecu
tion 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 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 inde
pendently of his own will. He only judges the law be
cause he is obliged to judge a case. The political question
which he is called upon to resolve is connected with the inte
rest of the parties, and he cannot refuse to decide it without
abdicating the duties of his post. He performs his functions
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 censorship which is exercised by the courts of
justice over the legislation cannot extend to all laws indis
criminately, inasmuch as some of them can never give rise
to that precise species of contestation which is termed a law
suit ; 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 effi
cacy which in some cases might prove dangerous. Within
these limits, the power vested in the American courts of jus
tice of pronouncing a statute to be unconstitutional, forms one
of the most powerful barriers which have ever been devised
against the tyranny of political assemblies.
tOO JUDICIAL POWER OF THE UNITED STATES,
OTHER POWERS GRANTED TO THE AMERICAN JUDGES.
[n the United States all the Citizens have the Right of indicting the
public Functionaries 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 func
tionaries 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 extra-
ordinary privilege. Nor do the springs of government appeal
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 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 impeach-
ment 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 com
munity, 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 tha
when justice is more certain and more mild, it is at the same
time more efficacious. The English and the Americans hold
AND ITS INFLUENCE ON POLITICAL SOCIETY. 101
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 1'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 Ameri
cans. 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 1 told them that the conseil d'etat was not a judicial
body, in the common sense of the terrn, 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.
10*
102 POLITICAL JURISDICTION
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 Offi
cers. 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 suffi
cient security. The only thing he has to fear is, that the
external formalities of justice may be neglected, and that his
authority may 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 be< n
vested for a time in the representatives of society. 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 in their laws ; and it is curious to
examine the different use which these three great nations have
made of the principle. In England and in France the house
of lords and the chambre des pairs 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, while in France the deputies can only
employ this mode of prosecution against the ministers of the
crown.
iN THE UNITED STATES. 103
In both countries the upper house make use of all the ex.
isting 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 repre
sentatives, 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, while 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 politi
cal 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 inca
pable of filling any political office for the future, their juris
diction 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, which alone can deprive him
of his liberty or his life. This accurately illustii^&s 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 a magis
trate : 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, and is 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 therefore 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 rosprct to tho
104 POLITICAL JURISDICTION
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 ac
tion would not have been limited to the circle of public func
tionaries, since the most dangerous enemies of the state may
be in the possession of no functions at all ; and this is espe
cially true in republics, where party favor is the first of
authorities, and where the strength of many a leader is in
creased by his exercising no legal power. If it had been the
intention of the American legislator to give society the means
of repressing state offences by exemplary punishment, ac
cording to the practice of ordinary judgment, the resources
of the penal code would all have been placed at the disposal
of the political tribunals. But the weapon with which they
are intrusted is an imperfect one, and it can never reach the
most dangerous offenders ; since men who aim at the entire
subversion of the laws are not likely to murmur at a political
interdict.
The main object of the political jurisdiction which obtains
in the United States is, therefore, to deprive the citizen of an
authority which he has used amiss, and to prevent him from
ever acquiring it again. This is evidently an administra
tive measure sanctioned by the formalities of judicial investi
gation. In this matter the Americans have created a mixed
system : they have surrounded the act which removes a pub
lic functionary with the securities of a political trial ; and
they have deprived all political condemnations of their sever
est penalties. Every link of the system may easily be
traced from this point ; we at once perceive why the Ameri
can constitutions subject all the civil functionaries to the
jurisdiction of the senate, while the military, whose crimes
are nevertheless more formidable, are exempt from that tri
bunal. In the civil service none of the American functiona
ries can be said to be removeable ; the places which some
of them occupy are inalienable, and the others derive their
rights from a power which cannot be abrogated. It is there
fore necessary to try them all in order to deprive them of
their authority. But military officers are dependent on the
chief magistrate of the state, who is himself a civil function
ary ; and the decision which condemns him is a blow upon
them all.
If we now compare the American and European systems,
IN THE UNITED STATES. 105
we shall meet with differences no less striking in- the differ
ent effects which each of them produces or may produce, in
France and in England the jurisdiction of political bodies is
looked upon as an extraordinary resource, which is only to
be employed in order to rescue society from unwonted dan
gers. It is not to be denied that these tribunals, as they are
constituted in Europe, are apt to violate the conservative
principle of the balance of power in the state, and to threaten
incessantly the lives and liberties of the subject. The same
political jurisdiction in the United States is only indirectly
hostile to the balance of power ; it cannot menace the lives
of the citizens, and it does not hover, as in Europe, over the
heads of the community, since those only who have before
hand submitted to its authority upon accepting office are
exposed to its severity. It is at the same time less formida
ble and less efficacious ; indeed, it has not been considered
by the legislators of the United States as a remedy for the
more violent evils of society, but as an ordinary means of
conducting the government. In this respect it probably ex
ercises more real influence on the social body in America