American Institutions and Their Influence by Alexis de Tocqueville et al

A >> Alexis de Tocqueville et al >> American Institutions and Their Influence

Pages:
1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | 29 | 30 | 31 | 32 | 33 | 34 | 35 | 36 | 37 | 38 | 39 | 40 | 41 | 42 | 43 | 44 | 45 | 46 | 47 | 48 | 49

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.

* * * * *

Notes:

[114] See Appendix L.

[115] See Appendix M.

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,[116] "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.[117] 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 too 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 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 than
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.[118]

* * * * *

Notes:

[116] Chapter I., sect. ii., § 8.

[117] See the constitutions of Illinois, Maine, Connecticut, and
Georgia.

[118] 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.[119]

* * * * *

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.[120] 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.[121]

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;[122] 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.[123] 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.[124]

But as it was foreseen, that, in practice, questions might arise as to
the exact limits of this exceptional authority, and that it would be
dangerous to submit these questions to the decision of the ordinary
courts of justice, established in the states by the states themselves, a
high federal court was created,[125] which was destined, among other
functions, to maintain the balance of power which had been established
by the constitution between the two rival governments.[126]

* * * * *