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since been employed in remodeling, upon their own plan, the laws and the manners of the nation. At present, the richer classes take little part in politics; and wealth, far from conferring power, is a source of distrust, and an obstacle to its attainment. The rich, therefore, prefer rather to abandon the arena than to maintain an unequal contest with their poorest fellow citizens. Unable to assume, in political life, the same station which they hold in domestic intercourse, they abandon the former and occupy themselves exclusively with the latter. Living in the midst of the community, they are separated from it by distinct tastes and enjoyments.
"Look at yonder opulent citizen: you would take him for a Jew of the twelfth century, afraid that his wealth might be suspected. He affects simplicity in his dress and deportment; yet, within his house, no one can be more luxurious. Into that sanctuary, however, only a few select friends, whom he condescends to call his equals, are permitted to penetrate. There is not a noble in Europe more jealous of the privileges of his station than he; nor one more exclusive in his pleasures. The same man, on his way to his dusty counting-house, in the busy part of the town, where he is accessible to every one, stops in the street to talk politics with his shoemaker, and shakes hands with him at parting. Under all this disguise of enthusiastic obsequiousness, it is easy to perceive that the rich are disgusted with democracy, and that they hate and despise the people."
We are abundantly surprised that so sagacious an observer as M. de Tocqueville, should have allowed himself to fall into such gross absurdities. In the first place he has himself satisfactorily shown, that wealth in America seldom outlasts a single generation. It is therefore a solecism, to point at the wealthy citizens of the current period as the remnants of a political party, abandoning the arena in consequence of the triumph of Mr. Jefferson in 1801. In the next place, it is by no means universally true, that wealthy men are excluded from office; though it generally happens that they do not voluntarily choose to tread a very thorny path, which leads to nothing but regret for lost repose. In the third place, the two facts out of which he has formed such a Janus-Sybarite and demagogue, with one face looking in, the other out of doors--exist principally in his own imagination. Rich men in America, as in other countries, enjoy their wealth in their own way, and with friends of their own choice-if unostentatiously, so much the better; and as to the political interview with the shoemaker, it is (when it takes place at all) the result of the social equality we have spoken of above, and is as much a matter of course, as any other result of it. The shoemaker may be a shrewd person, and capable of making the conversation a beneficial one; or perhaps the two men are united in some useful undertaking, as joint managers of a charity, or joint trustees of a fund. Men in America do not find public political office the surest way to influence. If M. de Tocqueville had looked through the whole class of which he has formed so erroneous
an estimate, he would have discovered very few whose ascendency is not exerted upon numerous associations of their fellow men, and exerted to most excellent purpose. In these associations, it seldom happens that wealth is an obstacle to confidence. The Jew of the twelfth century in M. de Tocqueville's picture, was probably neither thanking his shoemaker for his vote of yesterday, nor soliciting it for to-morrow; yet he probably had received it, and expected it on the next occasion. In a community where men are in such real contact as they are in ours, the apparent contact should not be a matter of surprise. The web is not so close, that the filaments must not occasionally be visible. That wealth gives little power in the United States, we are perfectly willing to grant; but property is amply protected, for the very reason that it is shared by all classes, and that the poor man of to-day may be the rich one of to-morrow. This being the case, the richer classes who wish only to enjoy, according to M. de Tocqueville, are either not discontented, or (which is not to be presumed) are so without a cause. What they desire, is secure-their possessions and their enjoyments; what they do not aspire to, political distinction, they need not complain of wanting. Our author has mistaken a universal concomitant of wealth, in all ages and countries, for an incident in American political physiology. The rich are those who doubt and fear most, because they are those who have most to lose. A French rentier is not among the hottest of revolutionists; he shifts his cockade at the eleventh hour. Festina lente is good advice in politics, but the rich most fully feel its propriety. If M. de Tocqueville will but read his own notes, or even the pages of his own printed book, he will discover, in what he has there set down concerning America, an ample refutation of one of the few serious mistakes into which he has been led concerning us.
We have already seen that M. de Tocqueville attributes great virtue (and very justly so,) to the experience and activity acquired in the local management of the affairs of towns. He may have pushed his theory too far, but there can be no question as to the beneficial results of provincial legislation. The management of township and county affairs fits men, as in a school, for the more enlarged duties of directing the interests of the state. It moreover gives to each individual a degree of influence and importance felt in his own sphere, and persuades him that he too has a part in forwarding the interests of his country, and promoting the general welfare. Comparing a centralised administration, like that of France, with the diffused power which produces similar ends here, the author says:
"It is undeniable, that the want of those uniform regulations which
control the conduct of every inhabitant of France, is not unfrequently felt in the United States. Gross instances of social indifference and neglect are to be met with; and from time to time disgraceful blemishes are seen, in complete contrast with the surrounding civilisation. Useful undertakings, which cannot succeed without perpetual attention and rigorous exactitude, are very frequently abandoned in the end; for in America as well as in other countries the people is subject to sudden impulses and momentary exertions. The European who is accustomed to find a functionary always at hand to interfere with all he undertakes, has some difficulty in accustoming himself to the complex mechanism of the administration of the townships. In general it may be affirmed that the lesser details of the police, which render life easy and comfortable, are neglected in America; but that the essential guarantees of man in society are as strong there as elsewhere. In America the power which conducts the government is far less regular, less enlightened, and less learned, but an hundred fold more authoritative than in Europe. In no country in the world do the citizens make such exertions for the common weal: and I am acquainted with no people which has established schools as numerous and as efficacious, places of public worship better suited to the wants of the inhabitants, or roads kept in better repair. Uniformity or permanence of design, the minute arrangement of details, and the perfection of an ingenious administration, must not be sought for in the United States: but it will be easy to find, on the other hand, the symptoms of a power, which, if it is somewhat barbarous, is at least robust; and of an existence, which is checkered with accidents indeed, bat cheered at the same time by animation and effort.
"It is not the administrative, but the political effects of the local system that I most admire in America. In the United States the interests of the country are every where kept in view; they are an object of solicitude to the people of the whole Union, and every citizen is as warmly attached to them as if they were his own. He takes pride in the glory of his nation; he boasts of its success, to which he conceives himself to have contributed; and he rejoices in the general prosperity by which he profits. The feeling he entertains towards the state is analogous to that which unites him to his family, and it is by a kind of egotism that he interests himself in the welfare of his country.
"The European generally submits to a public officer because he represents a superior force; but to an American he represents a right. In America it may be said that no one renders obedience to man, but to justice and to law. If the opinion which the citizen entertains of himself is exaggerated, it is at least salutary; he unhesitatingly confides in his own powers, which appear to him to be all-sufficient. When a private individual meditates an undertaking, however directly connected it may be with the welfare of society, he never thinks of soliciting the co-operation of the government; but he publishes his plan, offers to execute it himself, courts the assistance of other individuals, and struggles manfully against all obstacles. Undoubtedly he is often less successful than the state might have been in his position; but in the end, the sum of these private undertakings far exceeds all that the government could have done.
"I believe that provincial institutions are useful to all nations, but nowhere do they appear to me to be more indispensable than amongst a democratic people. In an aristocracy, order can always be maintained in the midst of liberty; and as the rulers have a great deal to lose, order is to them a first-rate consideration. In like manner an aristocracy protects the people from the excesses of despotism, because it always
VOL. XIX.-No. 37.
possesses an organised power ready to resist a despot. But a democracy without provincial institutions has no security against these evils. How can a populace, unaccustomed to freedom in small concerns, learn to use it temperately in great affairs? What resistance can be offered to tyranny in a country where every private individual is impotent, and where the citizens are united by no common tie? Those who dread the license of the mob, and those who fear the rule of absolute power, ought alike to desire the progressive growth of provincial liberties."
M. de Tocqueville's opinions upon the importance of the judicial function in the United States are too important to be wholly passed over, though we have not room for them in He is nearly right in his view of the unanimity with which the character of the principal of those functions is acknowledged, although he goes too far when he asserts that not so much as an individual is found to contest it. Should he again visit the United States, we shall take pleasure in furnishing him with the elaborate opinion of a learned and ingenious judge in strong, though we believe not very successful, contravention of the powers of his order. Ampliare jurisdictionem is said to be a besetting judicial sin; henceforth the calumny cannot be proverbial.
"The Americans have retained the 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 recognised by all the authorities; and not a party, nor so much as an individual, is found to contest it.
"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 of the judicial power for any length of time, 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 cogency. The persons to whose interests 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 a 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 censureship of the laws with the private interests of members of the community, and by intimately uniting 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 favourable 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 at every turn. 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 precise duties which belong to his profession as a magistrate. It is true that upon this system the judicial censureship which is exercised by the courts of justice over the legislation cannot extend to all laws indistinctly, in as much as some of them can never give rise to that exact species of contestation which is termed a law-suit; 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 an efficacy which might in some cases 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 has ever been devised against the tyranny of political assemblies."
We cannot follow our author through the history of the federal constitution. The road is too familiar to our readers, and the journey would seem tedious. But we shall cull, without any comment, here and there an opinion or sentiment, to