American Institutions and Their Influence by Alexis de Tocqueville et al

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[87] See the act of the 20th February, 1786; laws of Massachusetts, vol.
1., p. 217.

[88] There is an indirect method of enforcing the obedience of a
township. Suppose that the funds which the law demands for the
maintenance of the roads have not been voted; the town-surveyor is then
authorized, _ex-officio_, to levy the supplies. As he is personally
responsible to private individuals for the state of the roads, and
indictable before the court of sessions, he is sure to employ the
extraordinary right which the law gives him against the township. Thus
by threatening the officer, the court of sessions exacts compliance from
the town. See the act of 5th March, 1787; laws of Massachusetts, vol.
1., p. 305.

[89] Laws of Massachusetts, vol. 2., p. 45.

[90] If, for instance, a township persists in refusing to name its
assessors, the court of sessions nominates them; and the magistrates
thus appointed are invested with the same authority as elected officers
See the act quoted above, 20th February, 1787.

[91] I say the court of sessions, because in common courts there is a
magistrate who exercises some of the functions of a public prosecutor.

[92] The grand-jurors are, for instance, bound to inform the court of
the bad state of the roads. Laws of Massachusetts, vol. i., p. 308.

[93] If, for instance, the treasurer of the county holds back his
account. Laws of Massachusetts, vol. i., p. 406.

[94] Thus, if a private individual breaks down or is wounded in
consequence of the badness of a road, he can sue the township or the
county for damages at the sessions. Laws of Massachusetts, vol. i., p.
309.

[95] In cases of invasion or insurrection, if the town officers neglect
to furnish the necessary stores and ammunition for the militia, the
township may be condemned to a fine of from two to five hundred dollars.
It may readily be imagined that in such a case it might happen that no
one cared to prosecute: hence the law adds that all the citizens may
indict offences of this kind, and that half the fine shall belong to the
plaintiff. See the act of 6th March, 1810; vol. ii., p. 236. The same
clause is frequently to be met with in the laws of Massachusetts. Not
only are private individuals thus incited to prosecute public officers,
but the public officers are encouraged in the same manner to bring the
disobedience of private individuals to justice. If a citizen refuses to
perform the work which has been assigned to him upon a road, the
road-surveyor may prosecute him, and he receives half the penalty for
himself. See the laws above quoted, vol. i., p. 308.

[96] For details, see Revised Statutes of the state of New York, part I,
chap, xi., vol. i., pp. 336-364, entitled, "Of the Powers, Duties, and
Privileges of Towns."

See in the digest of the laws of Pennsylvania, the words, ASSESSORS,
COLLECTOR, CONSTABLES, OVERSEER OF THE POOR, SUPERVISORS OF HIGHWAYS:
and in the acts of a general nature of the state of Ohio, the act of
25th February, 1834, relating to townships, p. 412; beside the peculiar
dispositions relating to divers town officers, such as township's
clerks, trustees, overseers of the poor, fence-viewers, appraisers of
property, township's treasurer, constables, supervisors of highways.

[97] The author means the state legislature. The congress has no control
over the expenditure of the counties or of the states.

[98] See the Revised Statutes of the state of New York, part i., chap.
xi., vol. i., p. 410. _Idem_, chap, xii., p. 366: also in the acts of
the state of Ohio, an act relating to county commissioners, 26th
February, 1824, p. 263. See the Digest of the Laws of Pennsylvania, at
the words, COUNTY-RATES AND LEVIES, p. 170.

In the state of New York, each township elects a representative, who has
a share in the administration of the county as well as in that of the
township.

[99] In some of the southern states the county-courts are charged with
all the details of the administration. See the Statutes of the State of
Tennessee, _arts._ JUDICIARY, TAXES, &c.

[100] For instance, the direction of public instruction centres in the
hands of the government. The legislature names the members of the
university, who are denominated regents; the governor and
lieutenant-governor of the state are necessarily of the number. Revised
Statutes, vol. i., p. 455. The regents of the university annually visit
the colleges and academies, and make their report to the legislature.
Their superintendence is not inefficient, for several reasons: the
colleges in order to become corporations stand in need of a charter,
which is only granted on the recommendation of the regents: every year
funds are distributed by the state for the encouragement of learning,
and the regents are the distributors of this money. See chap. xv.,
"Public Instruction," Revised Statutes, vol i., p. 455.

The school commissioners are obliged to send an annual report to the
superintendent of the state. _Idem_, p. 448.

A similar report is annually made to the same person on the number and
condition of the poor. _Idem_, p. 631.

[101] 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 centralisation 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 punishing 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.

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

[103] Several traces of centralisation may be discovered in
Massachusetts, for instance, the committees of the town-schools are
directed to make an annual report to the secretary of state. See Laws of
Massachusetts, vol. i., p. 367.

[104] See the constitution of New York.

[105] In Massachusetts the Senate is not invested with any
administrative functions.

[106] As in the state of New York.

[107] 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.

[108] In some of the states the Justices of the peace are not nominated
by the governor.

[109] 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 county,
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 township? Nothing of the kind, however, exists in
America; there is nothing above the county courts, which have, as it
were, only an accidental cognizance of the offences they are meant to
repress.

[This note seems to have been written without reference to the provision
existing, it is believed in every state of the Union, by which a local
officer is appointed in each county, to conduct all public prosecutions
at the expense of the state. And in each county, a grand-jury is
assembled three or four times at least in every year, to which all who
are aggrieved have free access, and where every complaint, particularly
those against public officers, which has the least color of truth, is
sure to be heard and investigated.

Such an agent as the author suggests would soon come to be considered a
public informer, the most odious of all characters in the United States;
and he would lose all efficiency and strength. With the provision above
mentioned, there is little danger that a citizen, oppressed by a public
officer, would find any difficulty in becoming his own informer, and
inducing a rigid inquiry into the alleged misconduct.--_American
Editor_.]

[110] 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 assure 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.

[111] 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 townships; and
after giving the model of a departmental budget in France, he adds: "We
are indebted to centralisation, that admirable invention of a great man,
for the uniform order and method which prevail alike in all the
municipal 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 in 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 keeps society in perpetual labor, in those American
townships 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 townships 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.

[112] See Appendix I.

[113] See Appendix K.

CHAPTER VI.

JUDICIAL POWER IN THE UNITED STATES, AND ITS INFLUENCE ON POLITICAL
SOCIETY.

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 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 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 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
by 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 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 legislative 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 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 assumes a more important, and
perhaps a more useful influence than that of the magistrate, 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 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 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 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 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) 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 perpetual changes, it does not
in reality exist; the parliament is at once a legislative and a
constituent 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 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.[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 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 legislative body, since no legal barrier would
oppose the alterations which it might prescribe. But it is better to
grant the power of changing the constitution of the people to men who
represent (however imperfectly) the will of the people, than to men who
represent no one but themselves.

It would be still more unreasonable to invest the English judges with
the right of resisting the decisions of the legislative body, since the
parliament which makes the laws also makes the constitution; and
consequently a law emanating from the three powers of the state can in
no case be unconstitutional. But neither of these remarks is applicable
to America.[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 strictly bound, is the natural right of every
magistrate.

In France the constitution is also the first of laws, and the judges
have the same right to take it as the ground of their decisions; but
were they to exercise this right, they must perforce encroach on rights
more sacred than their own, namely, on those of society, in whose name
they are acting. In this case the state motive clearly prevails over the
motives of an individual. In America, where the nation can always reduce
its magistrates to obedience by changing its constitution, no danger of
this kind is to be feared. Upon this point therefore the political and
the logical reason agree, and the people as well as the judges preserve
their privileges.

Whenever a law which the judge holds to be unconstitutional is argued in
a tribunal of the United States, he may refuse to admit it as a rule;
this power is the only one which is peculiar to the American magistrate,
but it gives rise to immense political influence. Few laws can escape
the searching analysis; for there are few which are not prejudicial to
some private interest or other, and none which may not be brought before
a court of justice by the choice of parties, or by the necessity of the
case. But from the time that a judge has refused to apply any given law
in a case, that law loses a portion of its moral sanction. The persons
to whose interest it is prejudicial, learn that means exist of evading
its authority; and similar suits are multiplied, until it becomes
powerless. One of two alternatives must then be resorted to: the people
must alter the constitution, or the legislature must repeal the law.

The political power which the Americans have 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, applied to some particular case in an
obscure proceeding, the importance of his attack is concealed from the
public gaze; his decision bears upon the interest of an individual, and
if the law is slighted, it is only collaterally. Moreover, although it
be censured, it is not abolished; its moral force may be diminished, but
its cogency is by no means suspended; and its final destruction can only
be accomplished by the reiterated attacks of judicial functionaries. It
will readily be understood that by connecting the censorship of the laws
with the private interests of members of the community, and by
intimately uniting the prosecution of the law with the prosecution of an
individual, the legislation is protected from wanton assailants, and
from the daily aggressions of party spirit. The errors of the legislator
are exposed whenever their evil consequences are most felt; and it is
always a positive and appreciable fact which serves as the basis of a
prosecution.

I am inclined to believe this practice of the American courts to be at
once the most favorable to liberty as well as to public order. If the
judge could only attack the legislator openly and directly, he would
sometimes be afraid to oppose any resistance to his will; and at other
moments party spirit might encourage him to brave it every day. The laws
would consequently be attacked when the power from which they emanate is
weak, and obeyed when it is strong. That is to say, when it would be
useful to respect them, they would be contested; and when it 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 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 indiscriminately,
inasmuch as some of them can never give rise to that precise 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 efficacy which in some cases might prove dangerous. Within these
limits, the power vested in the American courts of justice 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.

* * * * *

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.