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 Unconstitutional.—How they use this Right.—Precautions taken by the Legislator to prevent its abuse.
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 lessened2 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 on the shores 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 hitherto organized a judicial power on the principle adopted by the Americans. The judicial organization of the United States is the institution which the stranger has the greatest difficulty in understanding. He hears the authority of a judge invoked3 in the political occurrences of every day, and he naturally concludes that in the United States the judges are important political functionaries4: 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 magistrates6 seem to him to interfere7 in public affairs by chance, but by a chance which recurs8 every day.
When the Parliament of Paris remonstrated9, or refused to enregister an edict, or when it summoned a functionary10 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 arbitration11. 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 a 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 pronounces upon a law without resting upon a case, he clearly steps beyond his sphere, and invades that of the legislative12 authority.
The second characteristic of judicial power is, that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle, by passing a judgment13 which tends to reject all the inferences from that principle, and consequently to annul14 it, he remains15 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 assumes a more important, and perhaps a more useful influence than that of the magistrate5, but he ceases to represent 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 devoid16 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 redressed18, it is ready to redress17 it; when an act requires interpretation19, 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 proceedings21, and usurp22 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 conversant23 with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore perfectly24 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 derives25 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 American constitution. In France the constitution is (or at least is supposed to be) immutable26; and the received theory is that no power has the right of changing any part of it. In England, the parliament has an acknowledged right to modify the constitution: as, therefore, the constitution may undergo perpetual changes, it does not in reality exist; the parliament is at once a legislative and a constituent27 assembly. The political theories of America are more simple and more rational. An American constitution is not supposed to be immutable as in France; nor is it susceptible28 of modification29 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 binding30 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.{114}
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 authorized31 to disobey the laws on the ground of their being opposed to the constitution, the supreme32 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. Undoubtedly33, as the French judges are incompetent34 to declare a law to be unconstitutional, the power of changing the constitution is indirectly35 given to the legislative body, since no legal barrier would oppose the alterations36 which it might prescribe. But it is better to grant the power of changing the constitution of the people to men who represent (however imperfectly) the will of the people, than to men who represent no one but themselves.
It would be still more unreasonable37 to invest the English judges with the right of resisting the decisions of the legislative body, since the parliament which makes the laws also makes the constitution; and consequently a law emanating38 from the three powers of the state can in no case be unconstitutional. But neither of these remarks is applicable to America.{115}
In the United States the constitution governs the legislator as much as the private citizen: as it is the first of laws, it cannot be modified by a law; and it is therefore just that the tribunals should obey the constitution in preference to any law. This condition is essential to the power of the judicature; for to select that legal obligation by which he is most strictly39 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 acting40. In this case the state motive41 clearly prevails over the motives42 of an individual. In America, where the nation can always reduce its magistrates to obedience43 by changing its constitution, no danger of this kind is to be feared. Upon this point therefore the political and the logical reason agree, and the people as well as the judges preserve their privileges.
Whenever a law which the judge holds to be unconstitutional is argued in a tribunal of the United States, he may refuse to admit it as a rule; this power is the only one which is peculiar44 to the American magistrate, but it gives rise to immense political influence. Few laws can escape the searching analysis; for there are few which are not prejudicial to some private interest or other, and none which may not be brought before a court of justice by the choice of parties, or by the necessity of the case. But from the time that a judge has refused to apply any given law in a case, that law loses a portion of its moral sanction. The persons to whose interest it is prejudicial, learn that means exist of evading45 its authority; and similar suits are multiplied, until it becomes powerless. One of two alternatives must then be resorted to: the people must alter the constitution, or the legislature must repeal46 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 considerably47 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 censure48 on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist49 of a party, he would have arrayed the hostile passions of the nation in the conflict. But when a judge contests a law, applied50 to some particular case in an obscure proceeding20, the importance of his attack is concealed51 from the public gaze; his decision bears upon the interest of an individual, and if the law is slighted, it is only collaterally52. Moreover, although it be censured53, it is not abolished; its moral force may be diminished, but its cogency54 is by no means suspended; and its final destruction can only be accomplished55 by the reiterated56 attacks of judicial functionaries. It will readily be understood that by connecting the censorship of the laws with the private interests of members of the community, and by intimately uniting the prosecution57 of the law with the prosecution of an individual, the legislation is protected from wanton assailants, and from the daily aggressions of party spirit. The errors of the legislator are exposed whenever their evil consequences are most felt; and it is always a positive and appreciable58 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 emanate59 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 arena60 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 parties, and he cannot refuse to decide it without abdicating61 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 indiscriminately, inasmuch as some of them can never give rise to that precise species of contestation which is termed a lawsuit62; and even when such a contestation is possible, it may happen that no one cares to bring it before a court of justice. The Americans have often felt this disadvantage, but they have left the remedy incomplete, lest they should give it efficacy which in some cases might prove dangerous. Within these limits, the power vested in the American courts of justice of pronouncing a statute63 to be unconstitutional, forms one of the most powerful barriers which have ever been devised against the tyranny of political assemblies.
OTHER POWERS GRANTED TO THE AMERICAN JUDGES.
In the United States all the Citizens have the Right of indicting64 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 Purport65 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 scrupulous66 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 accounting67 for this circumstance. A lawsuit, of whatever nature it may be, is always a difficult and expensive undertaking68. 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 prosecute69 a public officer, and public officers careful not to furnish these grounds of complaint, when they are afraid of being prosecuted70.
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 impeachment71 of the principal officers of state as a sufficient guarantee of their independence. But they hold that the right of minor72 prosecutions73, 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 offenders74, the judges inflicted75 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 lessening76 the penalty and facilitating conviction.
In the year VIII. of the French republic, a constitution was drawn77 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 virtue78 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 jurisdiction79 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 administrative80 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 injustice81, 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 solicit82 from the sovereign permission to obtain redress, they refused to credit so flagrant an abuse, and were tempted83 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 annulled84 by the authority of the crown. Despotism then displayed itself openly, and obedience was extorted85 by force. We have then retrograded from the point which our forefathers86 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.
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1
judicial
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| adj.司法的，法庭的，审判的，明断的，公正的 | |
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lessened
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| 减少的，减弱的 | |
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invoked
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| v.援引( invoke的过去式和过去分词 )；行使（权利等）；祈求救助；恳求 | |
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functionaries
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| n.公职人员，官员( functionary的名词复数 ) | |
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magistrate
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| n.地方行政官，地方法官，治安官 | |
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magistrates
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| 地方法官，治安官( magistrate的名词复数 ) | |
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interfere
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| v.(in)干涉，干预；(with)妨碍，打扰 | |
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recurs
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| 再发生，复发( recur的第三人称单数 ) | |
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remonstrated
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| v.抗议( remonstrate的过去式和过去分词 )；告诫 | |
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functionary
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| n.官员；公职人员 | |
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arbitration
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| n.调停，仲裁 | |
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legislative
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| n.立法机构，立法权；adj.立法的，有立法权的 | |
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judgment
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| n.审判；判断力，识别力，看法，意见 | |
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annul
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| v.宣告…无效，取消，废止 | |
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remains
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| n.剩余物，残留物；遗体，遗迹 | |
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devoid
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| adj.全无的，缺乏的 | |
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redress
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| n.赔偿，救济，矫正；v.纠正，匡正，革除 | |
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redressed
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| v.改正( redress的过去式和过去分词 )；重加权衡；恢复平衡 | |
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interpretation
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| n.解释，说明，描述；艺术处理 | |
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proceeding
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| n.行动，进行，(pl.)会议录，学报 | |
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proceedings
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| n.进程，过程，议程；诉讼(程序)；公报 | |
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usurp
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| vt.篡夺，霸占；vi.篡位 | |
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conversant
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| adj.亲近的，有交情的，熟悉的 | |
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perfectly
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| adv.完美地，无可非议地，彻底地 | |
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derives
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| v.得到( derive的第三人称单数 )；（从…中）得到获得；源于；（从…中）提取 | |
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immutable
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| adj.不可改变的，永恒的 | |
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constituent
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| n.选民；成分，组分；adj.组成的，构成的 | |
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susceptible
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| adj.过敏的，敏感的；易动感情的，易受感动的 | |
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modification
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| n.修改，改进，缓和，减轻 | |
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binding
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| 有约束力的，有效的，应遵守的 | |
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authorized
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| a.委任的，许可的 | |
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supreme
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| adj.极度的，最重要的；至高的，最高的 | |
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undoubtedly
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| adv.确实地，无疑地 | |
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incompetent
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| adj.无能力的，不能胜任的 | |
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indirectly
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| adv.间接地，不直接了当地 | |
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alterations
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| n.改动( alteration的名词复数 )；更改；变化；改变 | |
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unreasonable
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| adj.不讲道理的，不合情理的，过度的 | |
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emanating
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| v.从…处传出，传出( emanate的现在分词 )；产生，表现，显示 | |
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strictly
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| adv.严厉地，严格地；严密地 | |
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acting
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| n.演戏，行为，假装；adj.代理的，临时的，演出用的 | |
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motive
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| n.动机，目的；adv.发动的，运动的 | |
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motives
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| n.动机，目的( motive的名词复数 ) | |
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obedience
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| n.服从，顺从 | |
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peculiar
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| adj.古怪的，异常的；特殊的，特有的 | |
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evading
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| 逃避( evade的现在分词 )； 避开； 回避； 想不出 | |
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repeal
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| n.废止，撤消；v.废止，撤消 | |
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considerably
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| adv.极大地；相当大地；在很大程度上 | |
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48
censure
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| v./n.责备；非难；责难 | |
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antagonist
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| n.敌人，对抗者，对手 | |
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50
applied
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| adj.应用的；v.应用，适用 | |
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51
concealed
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| a.隐藏的，隐蔽的 | |
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52
collaterally
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| 担保物； 旁系亲属 | |
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53
censured
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| v.指责，非难，谴责( censure的过去式 ) | |
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54
cogency
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| n.说服力；adj.有说服力的 | |
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55
accomplished
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| adj.有才艺的；有造诣的；达到了的 | |
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56
reiterated
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| 反复地说，重申( reiterate的过去式和过去分词 ) | |
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57
prosecution
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| n.起诉，告发，检举，执行，经营 | |
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appreciable
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| adj.明显的，可见的，可估量的，可觉察的 | |
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emanate
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| v.发自，来自，出自 | |
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arena
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| n.竞技场，运动场所；竞争场所，舞台 | |
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abdicating
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| 放弃（职责、权力等）( abdicate的现在分词 )； 退位，逊位 | |
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lawsuit
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| n.诉讼，控诉 | |
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statute
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| n.成文法，法令，法规；章程，规则，条例 | |
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indicting
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| 控告，起诉( indict的现在分词 ) | |
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purport
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| n.意义，要旨，大要；v.意味著，做为...要旨，要领是... | |
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scrupulous
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| adj.审慎的，小心翼翼的，完全的，纯粹的 | |
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accounting
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| n.会计，会计学，借贷对照表 | |
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undertaking
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| n.保证，许诺，事业 | |
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69
prosecute
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| vt.告发；进行；vi.告发，起诉，作检察官 | |
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prosecuted
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| a.被起诉的 | |
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impeachment
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| n.弹劾；控告；怀疑 | |
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minor
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| adj.较小(少)的，较次要的；n.辅修学科；vi.辅修 | |
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prosecutions
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| 起诉( prosecution的名词复数 )； 原告； 实施； 从事 | |
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74
offenders
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| n.冒犯者( offender的名词复数 )；犯规者；罪犯；妨害…的人（或事物） | |
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75
inflicted
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| 把…强加给，使承受，遭受( inflict的过去式和过去分词 ) | |
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76
lessening
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| 减轻，减少，变小 | |
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77
drawn
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| v.拖，拉，拔出；adj.憔悴的，紧张的 | |
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78
virtue
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| n.德行，美德；贞操；优点；功效，效力 | |
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79
jurisdiction
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| n.司法权，审判权，管辖权，控制权 | |
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administrative
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| adj.行政的，管理的 | |
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81
injustice
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| n.非正义，不公正，不公平，侵犯（别人的）权利 | |
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82
solicit
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| vi.勾引；乞求；vt.请求，乞求；招揽(生意) | |
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83
tempted
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| v.怂恿（某人）干不正当的事；冒…的险（tempt的过去分词） | |
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84
annulled
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| v.宣告无效( annul的过去式和过去分词 )；取消；使消失；抹去 | |
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85
extorted
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| v.敲诈( extort的过去式和过去分词 )；曲解 | |
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86
forefathers
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| n.祖先，先人；祖先，祖宗( forefather的名词复数 )；列祖列宗；前人 | |
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