American Institutions and Their Influence by Alexis de Tocqueville (most popular ebook readers .txt) 📕

It is incorrect to assert that centralization was produced by the French revolution: the revolution brought it to perfection, but did not create it. The mania for centralization and government regulations dates from the time when jurists began to take a share in the government, in the time of Philippe-le-Bel; ever since which period they have been on the increase. In the year 1775, M. de Malesherbes, speaking in the name of the Cour des Aides, said to Louis XIV.[Footnote:

See “M�moires pour servir � l’Histoire du Droit Public de la France en mati�re d’lmpots,” p. 654, printed at Brussels in 1779.

]

“* * * * Every corporation and every community of citizens retained the right of administering its own affairs; a right which not only forms part of the primitive constitution of the kingdom, but has a still higher origin; for it is the right of nature and of reason. Nevertheless, your subjects, sire, have been deprived of it; and we cannot refrain from saying that in this respect your government has fallen into puerile extremes.

From the time when powerful ministers made it a political principle to prevent the convocation of a national assembly, one consequence has succeeded another, until the deliberations of the inhabitants of a village are declared null when they have not been authorized by the intendant. Of course, if the community have an expensive undertaking to carry through, it must remain under the control of the sub-delegate of the intendant, and consequently follow the plan he proposes, employ his favorite workmen, pay them according to his pleasure; and if an action at law is deemed necessary, the intendant’s permission must be obtained. The cause must be pleaded before this first tribunal, previous to its being carried into a public court; and if the opinion of the intendant is opposed to that of the inhabitants, or if their adversary enjoys his favor, the community is deprived of the power of defending its rights. Such are the means, sire, which have been exerted to extinguish the municipal spirit in France; and to stifle, if possible, the opinions of the citizens.

The nation may be said to lie under an interdict, and to be in wardship under guardians.”

What could be said more to the purpose at the present day, when the revolution has achieved what are called its victories in centralization?

In 1789, Jefferson wrote from Paris to one of his friends: “There is no country where the mania for over-governing has taken deeper root than in France, or been the source of greater mischief.”

Letter to Madison, 28th August, 1789.

The fact is that for several centuries past the central power of France has done everything it could to extend central administration; it has acknowledged no other limits than its own strength. The central power to which the revolution gave birth made more rapid advances than any of its predecessors, because it was stronger and wiser than they had been; Louis XIV. committed the welfare of such communities to the caprice of an intendant; Napoleon left them to that of the minister. The same principle governed both, though its consequences were more or less remote.

This immutability of the constitution of France is a necessary consequence of the laws of that country.

To begin with the most important of all the laws, that which decides the order of succession to the throne; what can be more immutable in its principle than a political order founded upon the natural succession of father to son? In 1814 Louis XVIII. had established the perpetual law of hereditary succession in favor of his own family. The individuals who regulated the consequences of the revolution of 1830 followed his example; they merely established the perpetuity of the law in favor of another family. In this respect they imitated the Chancellor Maurepas, who, when he erected the new parliament upon the ruins of the old, took care to declare in the same ordinance that the rights of the new magistrates should be as inalienable as those of their predecessors had been.

The laws of 1830, like those of 1814, point out no way of changing the constitution; and it is evident that the ordinary means of legislation are insufficient for this purpose. As the king, peers, and deputies, all derive their authority from the constitution, these three powers united cannot alter a law by virtue of which alone they govern. Out of the pale of the constitution, they are nothing; where, then, could they take their stand to effect a change in its provisions? The alternative is clear; either their efforts are powerless against the charter, which continues to exist in spite of them, in which case they only reign in the name of the charter; or, they succeed in changing the charter, and then the law by which they existed being annulled, they themselves cease to exist. By destroying the charter, they destroy themselves.

This is much more evident in the laws of 1830 than in those of 1814. In 1814, the royal prerogative took its stand above and beyond the constitution; but in 1830, it was avowedly created by, and dependant on, the constitution.

A part therefore of the French constitution is immutable, because it is united to the destiny of a family; and the body of the constitution is equally immutable, because there appear to be no legal means of changing it.

These remarks are not applicable to England. That country having no written constitution, who can assert when its constitution is changed.

The most esteemed authors who have written upon the English constitution agree with each other in establishing the omnipotence of the parliament.

Delolme says: “It is a fundamental principle with the English lawyers, that parliament can do everything except making a woman a man, or a man a woman.”

Blackstone expresses himself more in detail if not more energetically than Delolme, in the following terms:—

“The power and jurisdiction of parliament,” says Sir Edward Coke (4 Inst. 36), “is so transcendant and absolute, that it cannot be confined, either for causes or persons, within any bounds. And of this high court,” he adds, “may be truly said, ‘Si antiquitatem spectes, est vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est capacissima.’ It hath sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible denominations; ecclesiastical or temporal; civil, military, maritime, or criminal; this being the place where that absolute despotic power which must, in all governments, reside somewhere, is intrusted by the constitution of these kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the succession to the crown; as was done in the reigns of Henry VIII. and William III. It can alter the established religion of the land; as was done in a variety of instances in the reigns of King Henry VIII. and his three children. It can change and create afresh even the constitution of the kingdom, and of the parliaments themselves; as was done by the act of union and the several statutes for triennial and septennial elections. It can, in short, do everything that is not naturally impossible to be done; and, therefore, some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament.”

There is no question upon which the American constitutions agree more fully than upon that of political jurisdiction. All the constitutions which take cognizance of this matter, give to the house of delegates the exclusive right of impeachment; excepting only the constitution of North Carolina which grants the same privilege to grand-juries. (Article 23.) Almost all the constitutions give the exclusive right of pronouncing sentence to the senate, or to the assembly which occupies its place.

The only punishments which the political tribunals can inflict are removal and interdiction of public functions for the future.

There is no other constitution but that of Virginia (152), which enables them to inflict every kind of punishment.

The crimes which are subject to political jurisdiction, are, in the federal constitution (section 4, art. 1); in that of Indiana (art. 3, paragraphs 23 and 24); of New York (art. 5); of Delaware (art. 5); high treason, bribery, and other high crimes or offences.

In the constitution of Massachusetts (chap. 1, section 2); that of North Carolina (art. 23); of Virginia (p. 252), misconduct and mal-administration.

In the constitution of New Hampshire (p. 105) corruption, intrigue and mal-administration.

In Vermont (chap, ii., art 24), mal-administration.

In South Carolina (art. 5); Kentucky (art. 5); Tennessee (art. 4); Ohio (art. 1, �23, 24); Louisiana (art. 5); Mississippi (art. 5); Alabama (art. 6); Pennsylvania (art. 4); crimes committed in the non-performance of official duties.

In the states of Illinois, Georgia, Maine, and Connecticut, no particular offences are specified.

It is true that the powers of Europe may carry on maritime wars with the Union; but there is always greater facility and less danger in supporting a maritime than a continental war. Maritime warfare only requires one species of effort. A commercial people which consents to furnish its government with the necessary funds, is sure to possess a fleet. And it is far easier to induce a nation to part with its money, almost unconsciously, than to reconcile it to sacrifices of men and personal efforts.

Moreover, defeat by sea rarely compromises the existence or independence of the people which endures it.

As for continental wars, it is evident that the nations of Europe cannot be formidable in this way to the American Union. It would be very difficult to transport and maintain in America more than 25,000 soldiers; an army which maybe considered to represent a nation of 2,000,000 of men. The most populous nation of Europe contending in this way against the Union, is in the position of a nation of 2,000,000 of inhabitants at war with one of 12,000,000.

Add to this, that America has all its resources within reach, while the European is at 4,000 miles