democracy in america-1-第42节
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er in confederations … What tribunals could be introduced into the Union … Necessity of establishing federal courts of justice … Organization of the national judiciary … The Supreme Court … In what it differs from all known tribunals。
I have inquired into the legislative and executive power of the Union； and the judicial power now remains to be examined； but in this place 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 prominent place amongst what are probably called political institutions： in this respect they are peculiarly deserving of our attention。 But I am at a loss to explain the political action of the American tribunals without entering into some technical details of their constitution and their forms of proceeding； and I know not how to descend to these minutiae without wearying the curiosity of the reader by the natural aridity of the subject； or without risking to fall into obscurity through a desire to be succinct。 I can scarcely hope to escape these various evils； for if I appear too lengthy to a man of the world； a lawyer may on the other hand complain of my brevity。 But these are the natural disadvantages of my subject； and more especially of the point which I am about to discuss。
The great difficulty was； not to devise the Constitution to the Federal Government； but to find out a method of enforcing its laws。 Governments have in general but two means of overcoming the opposition of the people they govern； viz。； 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 alternatives would then probably occur： if its authority was small and its character temperate； it would not resort to violence till the last extremity； and it would connive at a number of partial acts of insubordination； in which case the State would gradually fall into anarchy； if it was enterprising and powerful； it would perpetually have recourse to its physical strength； and would speedily degenerate into a military despotism。 So that its activity would not be less prejudicial to the community than its inaction。
The great end of justice is to substitute the notion of right for that of violence； and to place a legal barrier between the power of the government and the use of physical force。 The authority which is awarded to the intervention of a court of justice by the general opinion of mankind is so surprisingly great that it clings to the mere formalities of justice； and gives a bodily influence to the shadow of the law。 The moral force which courts of justice possess renders the introduction of physical force exceedingly rare； and is very frequently substituted for it； but if the latter proves to be indispensable； its power is doubled by the association of the idea of law。
A federal government stands in greater need of the support of judicial institutions than any other； because it is naturally weak and exposed to formidable opposition。 *c If it were always obliged to resort to violence in the first instance； it could not fulfil its task。 The Union； therefore； required a national judiciary to enforce the obedience of the citizens to the laws； and to repeal the attacks which might be directed against them。 The question then remained as to what tribunals were to exercise these privileges； were they to be entrusted 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 the judicial power of the States to its wants。 The separation of the judiciary from the administrative power of the State no doubt affects the security of every citizen and the liberty of all。 But it is no less important to the existence of the nation that these several powers should have the same origin； should 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 suggested the advantage of trying offences committed in France by a foreign court of justice； in order to secure the impartiality of the judges。 The Americans form 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 entrust 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 in perpetual opposition to the common interests； 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 tribunals of the States would be to allow not only foreign but partial judges to preside over the nation。
＇Footnote c： 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 entertained no real intention of obeying the central Government； and which very readily ceded the right of command to the federal executive； and very prudently reserved the right of non…compliance to themselves。＇
But the number； still more than the mere character； of the tribunals of the States rendered 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。 To suppose that a State can subsist when its fundamental laws may be 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 judiciary power to apply the laws of the Union； and to determine certain questions affecting general interests； which were carefully determined beforehand。 The entire judicial power of the Union was centred in one tribunal； which was denominated 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 named 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 independent of the other authorities； their office was made inalienable； and it was determined that their salary； when once fixed； should not be altered by the legislature。 *d It was easy to proclaim the principle of a Federal judiciary； but difficulties multiplied when the extent of its jurisdiction was to be determined。
＇Footnote d： 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 Republic； 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 before the Supreme Court； which holds a 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 in 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 on questions of law。 The Supreme Court decides upon the evidence of the fact as well as upon the law of the case； whereas the Cour de Cassation does not pronounce a decision of its own； but refers the cause to the arbitration of another tribunal。 See the law of September 24； 1789； 〃Laws of the United States；〃 by Story； vol。 i。 p。 53。＇
Means Of Determining The Jurisdiction Of The Federal Courts Difficulty of determining the jurisdiction of separate courts of justice in confederations … The courts of the Union obtained the right of fixing their own jurisdiction … In what respect this rule attacks the portion of sovereignty reserved to the several States … The sovereignty of these States restricted by the laws； and the interpretation of the laws … Consequently； the danger of the several States is more apparent than real。
As the Constitution of the United States recognized two distinct powers in presence of each other； represented in a judicial point of view by two distinct classes of courts of justice； the utmost care which could be taken in defining their separate jurisdictions would have been i
