Procedure Of The Federal Courts
Natural weakness of the judiciary power in
confederations—Legislators ought to strive as much as possible to bring private
individuals, and not States, before the Federal Courts—How the Americans have
succeeded in this—Direct prosecution of private individuals in the Federal
Courts—Indirect prosecution of the States which violate the laws of the
Union—The decrees of the Supreme Court enervate but do not destroy the
provincial laws.
I have shown what the privileges of the Federal courts
are, and it is no less important to point out the manner in which they are
exercised. The irresistible authority of justice in countries in which the
sovereignty in undivided is derived from the fact that the tribunals of those
countries represent the entire nation at issue with the individual against whom
their decree is directed, and the idea of power is thus introduced to
corroborate the idea of right. But this is not always the case in countries in
which the sovereignty is divided; in them the judicial power is more frequently
opposed to a fraction of the nation than to an isolated individual, and its
moral authority and physical strength are consequently diminished. In federal
States the power of the judge is naturally decreased, and that of the
justiciable parties is augmented. The aim of the legislator in confederate
States ought therefore to be to render the position of the courts of justice
analogous to that which they occupy in countries where the sovereignty is
undivided; in other words, his efforts ought constantly to tend to maintain the
judicial power of the confederation as the representative of the nation, and
the justiciable party as the representative of an individual interest.
Every government, whatever may be its constitution,
requires the means of constraining its subjects to discharge their obligations,
and of protecting its privileges from their assaults. As far as the direct
action of the Government on the community is concerned, the Constitution of the
United States contrived, by a master-stroke of policy, that the federal courts,
acting in the name of the laws, should only take cognizance of parties in an
individual capacity. For, as it had been declared that the Union consisted of
one and the same people within the limits laid down by the Constitution, the
inference was that the Government created by this Constitution, and acting
within these limits, was invested with all the privileges of a national
government, one of the principal of which is the right of transmitting its
injunctions directly to the private citizen. When, for instance, the Union
votes an impost, it does not apply to the States for the levying of it, but to
every American citizen in proportion to his assessment. The Supreme Court,
which is empowered to enforce the execution of this law of the Union, exerts
its influence not upon a refractory State, but upon the private taxpayer; and,
like the judicial power of other nations, it is opposed to the person of an
individual. It is to be observed that the Union chose its own antagonist; and
as that antagonist is feeble, he is naturally worsted.
But the difficulty increases when the proceedings are not
brought forward by but against the Union. The Constitution recognizes the
legislative power of the States; and a law so enacted may impair the privileges
of the Union, in which case a collision in unavoidable between that body and
the State which has passed the law: and it only remains to select the least
dangerous remedy, which is very clearly deducible from the general principles I
have before established. *k
k [ See Chapter VI. on "Judicial
Power in America."]
It may be conceived that, in the case under
consideration, the Union might have used the State before a Federal court,
which would have annulled the act, and by this means it would have adopted a
natural course of proceeding; but the judicial power would have been placed in
open hostility to the State, and it was desirable to avoid this predicament as
much as possible. The Americans hold that it is nearly impossible that a new
law should not impair the interests of some private individual by its
provisions: these private interests are assumed by the American legislators as
the ground of attack against such measures as may be prejudicial to the Union,
and it is to these cases that the protection of the Supreme Court is extended.
Suppose a State vends a certain portion of its territory
to a company, and that a year afterwards it passes a law by which the territory
is otherwise disposed of, and that clause of the Constitution which prohibits
laws impairing the obligation of contracts violated. When the purchaser under
the second act appears to take possession, the possessor under the first act
brings his action before the tribunals of the Union, and causes the title of
the claimant to be pronounced null and void. *l Thus, in point of fact, the
judicial power of the Union is contesting the claims of the sovereignty of a
State; but it only acts indirectly and upon a special application of detail: it
attacks the law in its consequences, not in its principle, and it rather
weakens than destroys it.
l [ See Kent's
"Commentaries," vol. i. p. 387.]
The last hypothesis that remained was that each State
formed a corporation enjoying a separate existence and distinct civil rights,
and that it could therefore sue or be sued before a tribunal. Thus a State
could bring an action against another State. In this instance the Union was not
called upon to contest a provincial law, but to try a suit in which a State was
a party. This suit was perfectly similar to any other cause, except that the
quality of the parties was different; and here the danger pointed out at the
beginning of this chapter exists with less chance of being avoided. The
inherent disadvantage of the very essence of Federal constitutions is that they
engender parties in the bosom of the nation which present powerful obstacles to
the free course of justice.
High Rank Of The Supreme Court Amongst The Great Powers
Of State No nation ever constituted so great a judicial power as the
Americans—Extent of its prerogative—Its political influence—The tranquillity
and the very existence of the Union depend on the discretion of the seven
Federal Judges.
When we have successively examined in detail the
organization of the Supreme Court, and the entire prerogatives which it
exercises, we shall readily admit that a more imposing judicial power was never
constituted by any people. The Supreme Court is placed at the head of all known
tribunals, both by the nature of its rights and the class of justiciable
parties which it controls.
In all the civilized countries of Europe the Government
has always shown the greatest repugnance to allow the cases to which it was
itself a party to be decided by the ordinary course of justice. This repugnance
naturally attains its utmost height in an absolute Government; and, on the
other hand, the privileges of the courts of justice are extended with the
increasing liberties of the people: but no European nation has at present held
that all judicial controversies, without regard to their origin, can be decided
by the judges of common law.
In America this theory has been actually put in practice,
and the Supreme Court of the United States is the sole tribunal of the nation.
Its power extends to all the cases arising under laws and treaties made by the
executive and legislative authorities, to all cases of admiralty and maritime
jurisdiction, and in general to all points which affect the law of nations. It
may even be affirmed that, although its constitution is essentially judicial,
its prerogatives are almost entirely political. Its sole object is to enforce
the execution of the laws of the Union; and the Union only regulates the
relations of the Government with the citizens, and of the nation with Foreign
Powers: the relations of citizens amongst themselves are almost exclusively
regulated by the sovereignty of the States.
A second and still greater cause of the preponderance of
this court may be adduced. In the nations of Europe the courts of justice are
only called upon to try the controversies of private individuals; but the
Supreme Court of the United States summons sovereign powers to its bar. When
the clerk of the court advances on the steps of the tribunal, and simply says,
"The State of New York versus the State of Ohio," it is impossible
not to feel that the Court which he addresses is no ordinary body; and when it
is recollected that one of these parties represents one million, and the other
two millions of men, one is struck by the responsibility of the seven judges
whose decision is about to satisfy or to disappoint so large a number of their
fellow-citizens.
The peace, the prosperity, and the very existence of the
Union are vested in the hands of the seven judges. Without their active
co-operation the Constitution would be a dead letter: the Executive appeals to
them for assistance against the encroachments of the legislative powers; the
Legislature demands their protection from the designs of the Executive; they
defend the Union from the disobedience of the States, the States from the
exaggerated claims of the Union, the public interest against the interests of
private citizens, and the conservative spirit of order against the fleeting
innovations of democracy. Their power is enormous, but it is clothed in the
authority of public opinion. They are the all-powerful guardians of a people
which respects law, but they would be impotent against popular neglect or popular
contempt. The force of public opinion is the most intractable of agents,
because its exact limits cannot be defined; and it is not less dangerous to
exceed than to remain below the boundary prescribed.
The Federal judges must not only be good citizens, and
men possessed of that information and integrity which are indispensable to
magistrates, but they must be statesmen—politicians, not unread in the signs of
the times, not afraid to brave the obstacles which can be subdued, nor slow to
turn aside such encroaching elements as may threaten the supremacy of the Union
and the obedience which is due to the laws.
The President, who exercises a limited power, may err
without causing great mischief in the State. Congress may decide amiss without
destroying the Union, because the electoral body in which Congress originates
may cause it to retract its decision by changing its members. But if the
Supreme Court is ever composed of imprudent men or bad citizens, the Union may
be plunged into anarchy or civil war.
The real cause of this danger, however, does not lie in
the constitution of the tribunal, but in the very nature of Federal
Governments. We have observed that in confederate peoples it is especially
necessary to consolidate the judicial authority, because in no other nations do
those independent persons who are able to cope with the social body exist in
greater power or in a better condition to resist the physical strength of the
Government. But the more a power requires to be strengthened, the more extensive
and independent it must be made; and the dangers which its abuse may create are
heightened by its independence and its strength. The source of the evil is not,
therefore, in the constitution of the power, but in the constitution of those
States which render its existence necessary.
In What Respects The Federal Constitution Is Superior To
That Of The States
In what respects the Constitution of the Union can be
compared to that of the States—Superiority of the Constitution of the Union
attributable to the wisdom of the Federal legislators—Legislature of the Union
less dependent on the people than that of the States—Executive power more
independent in its sphere—Judicial power less subjected to the inclinations of
the majority—Practical consequence of these facts—The dangers inherent in a
democratic government eluded by the Federal legislators, and increased by the
legislators of the States.
The Federal Constitution differs essentially from that of
the States in the ends which it is intended to accomplish, but in the means by
which these ends are promoted a greater analogy exists between them. The
objects of the Governments are different, but their forms are the same; and in
this special point of view there is some advantage in comparing them together.
I am of opinion that the Federal Constitution is superior
to all the Constitutions of the States, for several reasons.
The present Constitution of the Union was formed at a
later period than those of the majority of the States, and it may have derived
some ameliorations from past experience. But we shall be led to acknowledge
that this is only a secondary cause of its superiority, when we recollect that
eleven new States *n have been added to the American Confederation since the
promulgation of the Federal Constitution, and that these new republics have
always rather exaggerated than avoided the defects which existed in the former
Constitutions.
n [ [The number of States has now risen
to 46 (1874), besides the District of Columbia.]]
The chief cause of the superiority of the Federal
Constitution lay in the character of the legislators who composed it. At the
time when it was formed the dangers of the Confederation were imminent, and its
ruin seemed inevitable. In this extremity the people chose the men who most
deserved the esteem, rather than those who had gained the affections, of the
country. I have already observed that distinguished as almost all the
legislators of the Union were for their intelligence, they were still more so
for their patriotism. They had all been nurtured at a time when the spirit of
liberty was braced by a continual struggle against a powerful and predominant
authority. When the contest was terminated, whilst the excited passions of the
populace persisted in warring with dangers which had ceased to threaten them,
these men stopped short in their career; they cast a calmer and more
penetrating look upon the country which was now their own; they perceived that
the war of independence was definitely ended, and that the only dangers which America
had to fear were those which might result from the abuse of the freedom she had
won. They had the courage to say what they believed to be true, because they
were animated by a warm and sincere love of liberty; and they ventured to
propose restrictions, because they were resolutely opposed to destruction. *o
o [ At this time Alexander Hamilton,
who was one of the principal founders of the Constitution, ventured to express
the following sentiments in "The Federalist," No. 71:—
"There are some who would be inclined to regard the
servile pliancy of the Executive to a prevailing current, either in the
community or in the Legislature, as its best recommendation. But such men
entertain very crude notions, as well of the purposes for which government was instituted
as of the true means by which the public happiness may be promoted. The
Republican principle demands that the deliberative sense of the community
should govern the conduct of those to whom they entrust the management of their
affairs; but it does not require an unqualified complaisance to every sudden
breeze of passion, or to every transient impulse which the people may receive
from the arts of men who flatter their prejudices to betray their interests. It
is a just observation, that the people commonly intend the public good. This
often applies to their very errors. But their good sense would despise the
adulator who should pretend that they always reason right about the means of
promoting it. They know from experience that they sometimes err; and the wonder
is that they so seldom err as they do, beset, as they continually are, by the
wiles of parasites and sycophants; by the snares of the ambitious, the
avaricious, the desperate; by the artifices of men who possess their confidence
more than they deserve it, and of those who seek to possess rather than to
deserve it. When occasions present themselves in which the interests of the
people are at variance with their inclinations, it is the duty of persons whom
they have appointed to be the guardians of those interests to withstand the
temporary delusion, in order to give them time and opportunity for more cool
and sedate reflection. Instances might be cited in which a conduct of this kind
has saved the people from very fatal consequences of their own mistakes, and
has procured lasting monuments of their gratitude to the men who had courage
and magnanimity enough to serve them at the peril of their displeasure."]
The greater number of the Constitutions of the States
assign one year for the duration of the House of Representatives, and two years
for that of the Senate; so that members of the legislative body are constantly
and narrowly tied down by the slightest desires of their constituents. The
legislators of the Union were of opinion that this excessive dependence of the
Legislature tended to alter the nature of the main consequences of the
representative system, since it vested the source, not only of authority, but
of government, in the people. They increased the length of the time for which
the representatives were returned, in order to give them freer scope for the
exercise of their own judgment.
The Federal Constitution, as well as the Constitutions of
the different States, divided the legislative body into two branches. But in
the States these two branches were composed of the same elements, and elected
in the same manner. The consequence was that the passions and inclinations of
the populace were as rapidly and as energetically represented in one chamber as
in the other, and that laws were made with all the characteristics of violence
and precipitation. By the Federal Constitution the two houses originate in like
manner in the choice of the people; but the conditions of eligibility and the
mode of election were changed, to the end that, if, as is the case in certain
nations, one branch of the Legislature represents the same interests as the
other, it may at least represent a superior degree of intelligence and
discretion. A mature age was made one of the conditions of the senatorial
dignity, and the Upper House was chosen by an elected assembly of a limited
number of members.
To concentrate the whole social force in the hands of the
legislative body is the natural tendency of democracies; for as this is the
power which emanates the most directly from the people, it is made to
participate most fully in the preponderating authority of the multitude, and it
is naturally led to monopolize every species of influence. This concentration
is at once prejudicial to a well-conducted administration, and favorable to the
despotism of the majority. The legislators of the States frequently yielded to
these democratic propensities, which were invariably and courageously resisted
by the founders of the Union.
In the States the executive power is vested in the hands
of a magistrate, who is apparently placed upon a level with the Legislature,
but who is in reality nothing more than the blind agent and the passive
instrument of its decisions. He can derive no influence from the duration of
his functions, which terminate with the revolving year, or from the exercise of
prerogatives which can scarcely be said to exist. The Legislature can condemn
him to inaction by intrusting the execution of the laws to special committees
of its own members, and can annul his temporary dignity by depriving him of his
salary. The Federal Constitution vests all the privileges and all the
responsibility of the executive power in a single individual. The duration of
the Presidency is fixed at four years; the salary of the individual who fills
that office cannot be altered during the term of his functions; he is protected
by a body of official dependents, and armed with a suspensive veto. In short,
every effort was made to confer a strong and independent position upon the executive
authority within the limits which had been prescribed to it.
In the Constitutions of all the States the judicial power
is that which remains the most independent of the legislative authority;
nevertheless, in all the States the Legislature has reserved to itself the
right of regulating the emoluments of the judges, a practice which necessarily
subjects these magistrates to its immediate influence. In some States the
judges are only temporarily appointed, which deprives them of a great portion
of their power and their freedom. In others the legislative and judicial powers
are entirely confounded; thus the Senate of New York, for instance, constitutes
in certain cases the Superior Court of the State. The Federal Constitution, on
the other hand, carefully separates the judicial authority from all external
influences; and it provides for the independence of the judges, by declaring
that their salary shall not be altered, and that their functions shall be
inalienable.
The practical consequences of these different systems may
easily be perceived. An attentive observer will soon remark that the business
of the Union is incomparably better conducted than that of any individual
State. The conduct of the Federal Government is more fair and more temperate
than that of the States, its designs are more fraught with wisdom, its projects
are more durable and more skilfully combined, its measures are put into
execution with more vigor and consistency.
I recapitulate the substance of this chapter in a few
words: The existence of democracies is threatened by two dangers, viz., the
complete subjection of the legislative body to the caprices of the electoral
body, and the concentration of all the powers of the Government in the
legislative authority. The growth of these evils has been encouraged by the
policy of the legislators of the States, but it has been resisted by the
legislators of the Union by every means which lay within their control.
Characteristics Which Distinguish The Federal
Constitution Of The United States Of America From All Other Federal
Constitutions American Union appears to resemble all other
confederations—Nevertheless its effects are different—Reason of
this—Distinctions between the Union and all other confederations—The American
Government not a federal but an imperfect national Government.
The United States of America do not afford either the
first or the only instance of confederate States, several of which have existed
in modern Europe, without adverting to those of antiquity. Switzerland, the
Germanic Empire, and the Republic of the United Provinces either have been or
still are confederations. In studying the constitutions of these different
countries, the politician is surprised to observe that the powers with which
they invested the Federal Government are nearly identical with the privileges
awarded by the American Constitution to the Government of the United States.
They confer upon the central power the same rights of making peace and war, of
raising money and troops, and of providing for the general exigencies and the
common interests of the nation. Nevertheless the Federal Government of these
different peoples has always been as remarkable for its weakness and
inefficiency as that of the Union is for its vigorous and enterprising spirit.
Again, the first American Confederation perished through the excessive weakness
of its Government; and this weak Government was, notwithstanding, in possession
of rights even more extensive than those of the Federal Government of the
present day. But the more recent Constitution of the United States contains
certain principles which exercise a most important influence, although they do
not at once strike the observer.
This Constitution, which may at first sight be confounded
with the federal constitutions which preceded it, rests upon a novel theory,
which may be considered as a great invention in modern political science. In
all the confederations which had been formed before the American Constitution
of 1789 the allied States agreed to obey the injunctions of a Federal
Government; but they reserved to themselves the right of ordaining and
enforcing the execution of the laws of the Union. The American States which
combined in 1789 agreed that the Federal Government should not only dictate the
laws, but that it should execute it own enactments. In both cases the right is
the same, but the exercise of the right is different; and this alteration
produced the most momentous consequences.
In all the confederations which had been formed before
the American Union the Federal Government demanded its supplies at the hands of
the separate Governments; and if the measure it prescribed was onerous to any
one of those bodies means were found to evade its claims: if the State was
powerful, it had recourse to arms; if it was weak, it connived at the
resistance which the law of the Union, its sovereign, met with, and resorted to
inaction under the plea of inability. Under these circumstances one of the two
alternatives has invariably occurred; either the most preponderant of the allied
peoples has assumed the privileges of the Federal authority and ruled all the
States in its name, *p or the Federal Government has been abandoned by its
natural supporters, anarchy has arisen between the confederates, and the Union
has lost all powers of action. *q
p [ This was the case in Greece, when
Philip undertook to execute the decree of the Amphictyons; in the Low
Countries, where the province of Holland always gave the law; and, in our own
time, in the Germanic Confederation, in which Austria and Prussia assume a
great degree of influence over the whole country, in the name of the Diet.]
q [ Such has always been the situation
of the Swiss Confederation, which would have perished ages ago but for the
mutual jealousies of its neighbors.]
In America the subjects of the Union are not States, but
private citizens: the national Government levies a tax, not upon the State of
Massachusetts, but upon each inhabitant of Massachusetts. All former
confederate governments presided over communities, but that of the Union rules
individuals; its force is not borrowed, but self-derived; and it is served by
its own civil and military officers, by its own army, and its own courts of
justice. It cannot be doubted that the spirit of the nation, the passions of the
multitude, and the provincial prejudices of each State tend singularly to
diminish the authority of a Federal authority thus constituted, and to
facilitate the means of resistance to its mandates; but the comparative
weakness of a restricted sovereignty is an evil inherent in the Federal system.
In America, each State has fewer opportunities of resistance and fewer
temptations to non-compliance; nor can such a design be put in execution (if
indeed it be entertained) without an open violation of the laws of the Union, a
direct interruption of the ordinary course of justice, and a bold declaration
of revolt; in a word, without taking a decisive step which men hesitate to
adopt.
In all former confederations the privileges of the Union
furnished more elements of discord than of power, since they multiplied the
claims of the nation without augmenting the means of enforcing them: and in
accordance with this fact it may be remarked that the real weakness of federal
governments has almost always been in the exact ratio of their nominal power.
Such is not the case in the American Union, in which, as in ordinary
governments, the Federal Government has the means of enforcing all it is
empowered to demand.
The human understanding more easily invents new things
than new words, and we are thence constrained to employ a multitude of improper
and inadequate expressions. When several nations form a permanent league and
establish a supreme authority, which, although it has not the same influence
over the members of the community as a national government, acts upon each of
the Confederate States in a body, this Government, which is so essentially
different from all others, is denominated a Federal one. Another form of
society is afterwards discovered, in which several peoples are fused into one
and the same nation with regard to certain common interests, although they
remain distinct, or at least only confederate, with regard to all their other
concerns. In this case the central power acts directly upon those whom it
governs, whom it rules, and whom it judges, in the same manner, as, but in a
more limited circle than, a national government. Here the term Federal
Government is clearly no longer applicable to a state of things which must be
styled an incomplete national Government: a form of government has been found
out which is neither exactly national nor federal; but no further progress has
been made, and the new word which will one day designate this novel invention
does not yet exist.
The absence of this new species of confederation has been
the cause which has brought all Unions to Civil War, to subjection, or to a
stagnant apathy, and the peoples which formed these leagues have been either
too dull to discern, or too pusillanimous to apply this great remedy. The
American Confederation perished by the same defects.
But the Confederate States of America had been long
accustomed to form a portion of one empire before they had won their
independence; they had not contracted the habit of governing themselves, and
their national prejudices had not taken deep root in their minds. Superior to
the rest of the world in political knowledge, and sharing that knowledge
equally amongst themselves, they were little agitated by the passions which
generally oppose the extension of federal authority in a nation, and those
passions were checked by the wisdom of the chief citizens. The Americans
applied the remedy with prudent firmness as soon as they were conscious of the
evil; they amended their laws, and they saved their country.
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