American Institutions And Their Influence

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* * * * *

OTHER POWERS GRANTED TO THE AMERICAN JUDGES.

In 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
functionaries before the ordinary tribunals, and that all the
judges should have the power of punishing public offences. The
right granted to the courts of justice, of judging the agents of
the executive government, when they have violated the laws, is so
natural a one that it cannot be looked upon as an extraordinary
privilege. Nor do the springs of government appear to me to be
weakened in the United States by the custom which renders all
public officers responsible to the judges of the land. The
Americans seem, on the contrary, to have increased by this means
that respect which is due to the authorities, and at the same
time to have rendered those who are in power more scrupulous of
offending public opinion. I was struck by the small number of
political trials which occur in the United States; but I 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
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 facilitating conviction.

In the year VIII. of the French republic, a constitution was
drawn up in which the following clause was introduced: "Art. 75.
All the agents of the government below the rank of ministers can
only be prosecuted for offences relating to their several
functions by virtue of a decree of the conseil d'etat; in which
case the prosecution takes place before the ordinary tribunals."
This clause survived the "Constitution de l'an VIII.," and it is
still maintained in spite of the just complaints of the nation.
I have always found the utmost difficulty in explaining its
meaning to Englishmen or Americans. They were at once led to
conclude that the conseil d'etat in France was a great tribunal,
established in the centre of the kingdom, which exercised a
preliminary and somewhat tyrannical jurisdiction in all political
causes. But when I told them that the conseil d'etat was not a
judicial body, in the common sense of the term, but an
administrative council composed of men dependent on the crown--so
that the king, after having ordered one of his servants, called a
prefect, to commit an injustice, has the power of commanding
another of his servants, called a councillor of state, to prevent
the former from being punished--when I demonstrated to them that
the citizen who 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 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 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 been 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 both countries the upper house make use of all the existing
penal laws of the nation to punish the delinquents.

In the United States, as well as in Europe, one branch of the
legislature is authorized to impeach, and another to judge: the
house of representatives arraigns the offender, and the senate
awards his sentence. But the senate can only try such persons as
are brought before it by the house of representatives, and those
persons must belong to the class of public functionaries. Thus
the jurisdiction of the senate is less extensive than that of the
peers of France, 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 political tribunals are empowered to inflict all
the dispositions of the penal code, while in America, when they
have deprived the offender of his official rank, and have
declared him incapable of filling any political office for the
future, their jurisdiction terminates and that of the ordinary
tribunals begins.

Suppose, for instance, that the president of the United States
has committed the crime of high treason; the house of
representatives impeaches him, and the senate degrades him; he
must then be tried by a jury, which alone can deprive him of his
liberty or his life. This accurately illustrates the subject we
are treating. The political jurisdiction which is established by
the laws of Europe is intended to try great offenders, whatever
may be their birth, their rank, or their powers in the state; and
to this end all the privileges of the courts of justice are
temporarily extended to a great political assembly. The
legislator is then transformed into a magistrate: he is called
upon to admit, to distinguish, and to punish the offence; and as
he exercises all the authority of a judge, the law restricts him
to the observance of all the duties of that high office, and of
all the formalities of justice. When a public functionary is
impeached before an English or a French political tribunal, 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 respect to the motives on which it is founded, since
the senate is in general obliged to take an offence at common law
as the basis of its sentence; nevertheless the object of the
proceeding is purely administrative.

If it had been the intention of the American legislator to invest
a political body with great judicial authority, its action would
not have been limited to the circle of public functionaries,
since the most dangerous enemies of the state may be in the
possession of no functions at all; and this is especially true in
republics, where party favor is the first of authorities, and
where the strength of many a leader is increased 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, according 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 administrative measure
sanctioned by the formalities of judicial investigation. In this
matter the Americans have created a mixed system: they have
surrounded the act which removes a public functionary with the
securities of a political trial; and they have deprived all
political condemnations of their severest penalties. Every link
of the system may easily be traced from this point; we at once
perceive why the American 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 tribunal. In the civil service none of the
American functionaries 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
therefore 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
functionary; and the decision which condemns him is a blow upon
them all.

If we now compare the American and European systems, we shall
meet with differences no less striking in the different 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 dangers. 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
formidable 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
exercises more real influence on the social body in America than
in Europe. We must not be misled by the apparent mildness of the
American Legislation in all that relates to political
jurisdiction. It is to be observed, in the first place, that in
the United States the tribunal which passes sentence is composed
of the same elements, and subject to the same influences, as the
body which impeaches the offender, and that this uniformity gives
an almost irresistible impulse to the vindictive passions of
parties. If political judges in the United States cannot inflict
such heavy penalties as those of Europe, there is the less chance
of their acquitting a prisoner; and the conviction, if it is less
formidable, is more certain. The principal object of the
political tribunals of Europe is to punish the offender; the
purpose of those in America is to deprive him of his authority.
A political condemnation in the United States may, therefore, be
looked upon as a preventive measure; and there is no reason for
restricting the judges to the exact definitions of criminal law.
Nothing can be more alarming than the excessive latitude with
which political offences are described in the laws of America.
Article II., section iv., of the constitution of the United
States runs thus: "The president, vice-president, and all the
civil officers of the United States shall be removed from office
on impeachment for, and conviction of, treason, bribery, _or
other high crimes and misdemeanors_." Many of the
constitutions of the states are even less explicit. "Public
officers," says the constitution of Massachusetts,[Footnote:

Chapter I., sec. ii., Sec. 8.

] "shall be impeached for misconduct or mal-administration." The
constitution of Virginia declares that all the civil officers who
shall have offended against the state by mal-administration,
corruption, or other high crimes, may be impeached by the house
of delegates: in some constitutions no offences are specified, in
order to subject the public functionaries to an unlimited
responsibility.[Footnote:

See the constitutions of Illinois, Maine, Connecticut, and
Georgia.

] But I will venture to affirm, that it is precisely their
mildness which renders the American laws most formidable in this
respect. We have shown that in Europe the removal of a
functionary and his political interdiction are consequences of
the penalty he is to undergo, and that in America they constitute
the penalty itself. The result is, that in Europe political
tribunals are invested with rights which they are afraid to use,
and that the fear of punishing to much hinders them from
punishing at all. But in America no one hesitates to inflict a
penalty from which humanity does not recoil. To condemn a
political opponent to death, in order to deprive him of his
power, is to commit what all the world would execrate as a
horrible assassination; but to declare that opponent unworthy to
exercise that authority, to deprive him of it, and to leave him
uninjured in life and liberty, may appear to be the fair issue of
the struggle. But this sentence, which it is so easy to
pronounce, is not the less fatally severe to the majority of
those upon whom it is inflicted. Great criminals may undoubtedly
brave its intangible rigor, but ordinary offenders will dread it
as a condemnation which destroys their position in the world,
casts a blight upon their honor, and condemns them to a shameful
inactivity worse that death. The influence exercised in the
United States upon the progress of society by the jurisdiction of
political bodies may not appear to be formidable, but it is only
the more immense. It does not act directly upon the governed,
but it renders the majority more absolute over those who govern;
it does not confer an unbounded authority on the legislator which
can only be exerted at some momentous crisis, but it establishes
a temperate and regular influence, which is at all times
available. If the power is decreased, it can, on the other hand,
be more conveniently employed, and more easily abused. By
preventing political tribunals from inflicting judicial
punishments, the Americans seem to have eluded the worst
consequences of legislative tyranny, rather than tyranny itself;
and I am not sure that political jurisdiction, as it is
constituted in the United States, is not the most formidable
which has ever been placed in the rude grasp of a popular
majority. When the American republics begin to degenerate, it
will be easy to verify the truth of this observation, by
remarking whether the number of political impeachments
augments.[Footnote:

See Appendix N.

]

* * * * *

CHAPTER VIII.

THE FEDERAL CONSTITUTION.

I have hitherto considered each state as a separate whole, and I
have explained the different springs which the people sets in
motion, and the different means of action which it employs. But
all the states which I have considered as independent are forced
to submit, in certain cases, to the supreme authority of the
Union. The time is now come for me to examine the partial
sovereignty which has been conceded to the Union, and to cast a
rapid glance over the federal constitution.[Footnote:

See the constitution of the United States.

]

* * * * *

HISTORY OF THE FEDERAL CONSTITUTION.

Origin of the first Union.--Its Weakness.--Congress appeals to
the constituent Authority.--Interval of two Years between the
Appeal and the Promulgation of the new Constitution.

The thirteen colonies which simultaneously threw off the yoke of
England toward the end of the last century, possessed, as I have
already observed, the same religion, the same language, the same
customs, and almost the same laws; they were struggling against a
common enemy; and these reasons were sufficiently strong to unite
them one to another, and to consolidate them into one nation.
But as each of them had enjoyed a separate existence, and a
government within its own control, the peculiar interests and
customs which resulted from this system, were opposed to a
compact and intimate union, which would have absorbed the
individual importance of each in the general importance of all.
Hence arose two opposite tendencies, the one prompting the
Anglo-Americans to unite, the other to divide their strength. As
long as the war with the mother-country lasted, the principle of
union was kept alive by necessity; and although the laws which
constituted it were defective, the common tie subsisted in spite
of their imperfections.[Footnote:

See the articles of the first confederation formed in 1778. This
constitution was not adopted by all the states until 1781. See
also the analysis given of this constitution in the Federalist,
from No. 15 to No. 22 inclusive, and Story's "Commentary on the
Constitution of the United States," pp. 85-115.

] But no sooner was peace concluded than the faults of the
legislation became manifest, and the state seemed to be suddenly
dissolved. Each colony became an independent republic, and
assumed an absolute sovereignty. The federal government,
condemned to impotence by its constitution, and no longer
sustained by the presence of a common danger, saw the outrages
offered to its flag by the great nations of Europe, while it was
scarcely able to maintain its ground against the Indian tribes,
and to pay the interest of the debt which had been contracted
during the war of independence. It was already on the verge of
destruction, when it officially proclaimed its inability to
conduct the government, and appealed to the constituent authority
of the nation.[Footnote:

Congress made this declaration on the 21st of February, 1787.

]

If America ever approached (for however brief a time) that lofty
pinnacle of glory to which the proud fancy of its inhabitants is
wont to point, it was at the solemn moment at which the power of
the nation abdicated, as it were, the empire of the land. All
ages have furnished the spectacle of a people struggling with
energy to win its independence; and the efforts of the Americans
in throwing off the English yoke have been considerably
exaggerated. Separated from their enemies by three thousand
miles of ocean, and backed by a powerful ally, the success of the
United States may be more justly attributed to their geographical
position, than to the valor of their armies or the patriotism of
their citizens. It would be ridiculous to compare the American
war to the wars of the French revolution, or the efforts of the
Americans to those of the French, who, when they were attacked by
the whole of Europe, without credit and without allies, were
still capable of opposing a twentieth part of their population to
their foes, and of bearing the torch of revolution beyond their
frontiers while they stifled its devouring flame within the bosom
of their country. But it is a novelty in the history of society
to see a great people turn a calm and scrutinizing eye upon
itself when apprised by the legislature that the wheels of
government had stopped; to see it carefully examine the extent of
the evil, and patiently wait for two whole years until a remedy
was discovered, which it voluntarily adopted without having wrung
a tear or a drop of blood from mankind. At the time when the
inadequacy of the first constitution was discovered, America
possessed the double advantage of that calm which had succeeded
the effervescence of the revolution, and of those great men who
had led the revolution to a successful issue. The assembly which
accepted the task of composing the second constitution was
small;[Footnote:

It consisted of fifty-five members: Washington, Madison,
Hamilton, and the two Morrises, were among the number.

] but George Washington was its president, and it contained the
choicest talents and the noblest hearts which had ever appeared
in the New World. This national commission, after long and
mature deliberation, offered to the acceptance of the people the
body of general laws which still rules the Union. All the states
adopted it successively.[Footnote:

It was not adopted by the legislative bodies, but representatives
were elected by the people for this sole purpose; and the new
constitution was discussed at length in each of these assemblies.

] The new federal government commenced its functions in 1789,
after an interregnum of two years. The revolution of America
terminated when that of France began.

* * * * *

SUMMARY OF THE FEDERAL CONSTITUTION.

Division of Authority between the Federal Government and the
States.--The Government of the States is the Rule: the Federal
Government the Exception.

The first question which awaited the Americans was intricate, and
by no means easy of solution; the object was so to divide the
authority of the different states which composed the Union, that
each of them should continue to govern itself in all that
concerned its internal prosperity, while the entire nation,
represented by the Union, should continue to form a compact body,
and to provide for the exigencies of the people. It was as
impossible to determine beforehand, with any degree of accuracy,
the share of authority which each of the two governments was to
enjoy, as to foresee all the incidents in the existence of a
nation.

The obligations and the claims of the federal government were
simple and easily definable, because the Union had been formed
with the express purpose of meeting the general exigencies of the
people; but the claims and obligations of the states were, on the
other hand, complicated and various, because those governments
penetrated into all the details of social life. The attributes
of the federal government were, therefore, carefully enumerated,
and all that was not included among them was declared to
constitute a part of the privileges of the several governments of
the states. Thus the government of the states remained the rule,
and that of the confederation became the exception.[Footnote: