individual, those talents have been rendered almost useless; and to keep an expedient for extraordinary perils, the country has been exposed to continual dangers.

Political Importance of the Judiciary in the United States. Difficulty of treating this Subject. - Utility of Judicial Power in Confederations. What Tribunals could be introduced into the Union. Necessity of establishing Federal Courts of Justice. Judiciary. The Supreme Court. Tribunals.

Organization of the National

- In what it differs from all known

I HAVE examined the legislative and executive power of the Union, and the judicial power now remains to be considered; but here I cannot conceal my fears from the reader. Their judicial institutions exercise a great influence on the condition of the Anglo-Americans, and they occupy a very important place amongst political institutions, properly so called: in this respect, they are peculiarly deserving of our attention. But I am at a loss how to explain the political action of the American tribunals without entering into some technical details respecting their constitution and their forms of proceeding; and I cannot descend to these minutia without wearying the reader by the natural dryness of the subject, or falling into obscurity through a desire to be succinct. I can scarcely hope to escape these different evils. Ordinary readers will complain that I am tedious, lawyers that I am too concise. But these are the natural disadvantages of my subject, and especially of the point which I am now to discuss.

The great difficulty was, not to know how to constitute the Federal government, but to find out a method of enforcing its laws. Governments have generally but two

* See Chapter VI., entitled "Judicial Power in the United States." This chapter explains the general principles of the American judiciary.

means of overcoming the opposition of the governed namely, the physical force which is at their own disposal, and the moral force which they derive from the decisions of the courts of justice.

A government which should have no other means of exacting obedience than open war, must be very near its ruin, for one of two things would then probably happen to it. If it was weak and temperate, it would resort to violence only at the last extremity, and would connive at many partial acts of insubordination; then the state would gradually fall into anarchy. If it was enterprising and powerful, it would every day have recourse to physical strength, and thus would soon fall into a military despotism, Thus its activity and its inertness would be equally prejudicial to the community.

The great end of justice is, to substitute the notion of right for that of violence, and to place a legal barrier between the government and the use of physical force. It is a strange thing, the authority which is accorded to the intervention of a court of justice by the general opinion of mankind! It clings even to the mere formalities of justice, and gives a bodily influence to the mere shadow of the law. The moral force which courts of justice possess renders the use of physical force very rare, and is frequently substituted for it; but if force proves to be indispensable, its power is doubled by the association of the idea of law.

A federal government stands in greater need than any other of the support of judicial institutions, because it is naturally weak, and exposed to formidable opposition.* If

* Federal laws are those which most require courts of justice, and those, at the same time, which have most rarely established them. The reason is, that confederations have usually been formed by independent states, which had no real intention of obeying the central government; and though they readily ceded the right of command to the central government, they carefully reserved the right of non-compliance to themselves.

it were always obliged to resort to violence in the first instance, it could not fulfil its task. The Union, therefore, stood in special need of a judiciary to make its citizens obey the laws, and to repel the attacks which might be directed against them. But what tribunals were to exercise these privileges? Were they to be intrusted to the courts of justice which were already organized in every State? Or was it necessary to create Federal courts? It may easily be proved that the Union could not adapt to its wants the judicial power of the States. The separation of the judiciary from the other powers of the state is necessary for the security of each, and the liberty of all. But it is no less important to the existence of the nation, that the several powers of the state should have the same origin, follow the same principles, and act in the same sphere; in a word, that they should be correlative and homogeneous. No one, I presume, ever thought of causing offences committed in France to be tried by a foreign court of justice, in order to insure the impartiality of the judges. The Americans form but one people in relation to their Federal government; but in the bosom of this people divers political bodies have been allowed to subsist, which are dependent on the national government in a few points, and independent in all the rest, which have all a distinct origin, maxims peculiar to themselves, and special means of carrying on their affairs. To intrust the execution of the laws of the Union to tribunals instituted by these political bodies, would be to allow foreign judges to preside over the nation. Nay, more; not only is each State foreign to the Union at large, but it is a perpetual adversary, since whatever authority the Union loses turns to the advantage of the States. Thus, to enforce the laws of the Union by means of the State tribunals would be to allow not only foreign, but partial, judges to preside over the

nation.

But the number, still more than the mere character, of the State tribunals, made them unfit for the service of the nation. When the Federal Constitution was formed, there were already thirteen courts of justice in the United States, which decided causes without appeal. That number is now increased to twenty-four [thirty-four]. To suppose that a state can subsist, when its fundamental laws are subjected to four-and-twenty different interpretations at the same time, is to advance a proposition alike contrary to reason and to experience.

The American legislators therefore agreed to create a Federal judicial power to apply the laws of the Union, and to determine certain questions affecting general interests, which were carefully defined beforehand. The entire judicial power of the Union was centred in one tribunal, called the Supreme Court of the United States. But, to facilitate the expedition of business, inferior courts were appended to it, which were empowered to decide causes of small importance without appeal, and, with appeal, causes of more magnitude. The members of the Supreme Court are appointed neither by the people nor the legislature, but by the President of the United States, acting with the advice of the Senate. In order to render them indepen-` dent of the other authorities, their office was made inalienable; and it was determined that their salary, when once fixed, should not be diminished by the legislature.* It was easy to proclaim the principle of a Federal judiciary, but difficulties multiplied when the extent of its jurisdiction was to be determined.

* The Union was divided into districts, in each of which a resident Federal judge was appointed, and the court in which he presided was termed a "District Court." Each of the judges of the Supreme Court annually visits a certain portion of the country, in order to try the most important causes upon the spot the court presided over by this magistrate is styled a "Circuit Court." Lastly, all the most serious cases of litigation are brought, either primarily or by appeal, before the Supreme Court, which holds a

MEANS OF DETERMINING THE JURISDICTION OF THE

FEDERAL COURTS.

Difficulty of determining the Jurisdiction of the different Courts of Justice

in Confederations. - The Courts of the Union obtained the Right of fixing their own Jurisdiction. -In what respects this Rule attacks the

Portion of Sovereignty reserved to the several States.

- The Sovereignty of these States restricted by the Laws and by the Interpretation - Danger thus incurred by the several States more appar

of the Laws. ent than real.

As the constitution of the United States recognized two distinct sovereignties, in presence of each other, represented in a judicial point of view by two distinct classes of courts of justice, the utmost care taken in defining their separate jurisdictions would have been insufficient to prevent frequent collisions between those tribunals. The question then arose, to whom the right of deciding the competency of each court was to be referred.

In nations which constitute a single body politic, when a question of jurisdiction is debated between two courts, a third tribunal is generally within reach to decide the difference; and this is effected without difficulty, because, in these nations, questions of judicial competency have no connection with questions of national sovereignty. But it was impossible to create an arbiter between a superior court of the Union and the superior court of a separate State, which would not belong to one of these two classes. It was therefore necessary to allow one of these courts to

solemn session once a year, at which all the judges of the Circuit Courts must attend. The jury was introduced into the Federal courts, in the same manner, and for the same cases, as into the courts of the States.

It will be observed that no analogy exists between the Supreme Court of the United States and the French Cour de Cassation, since the latter only hears appeals. The Supreme Court judges of the fact, as well as the law, of the case; the Cour de Cassation does not pronounce a decision of its own, but refers the cause to another tribunal.