American Institutions and Their Influence Part 48

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 const.i.tution; 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 const.i.tution, these three powers united cannot alter a law by virtue of which alone they govern. Out of the pale of the const.i.tution, 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 const.i.tution; but in 1830, it was avowedly created by, and dependant on, the const.i.tution.

A part therefore of the French const.i.tution is immutable, because it is united to the destiny of a family; and the body of the const.i.tution 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 const.i.tution, who can a.s.sert when its const.i.tution is changed.

APPENDIX M.--Page 97.

The most esteemed authors who have written upon the English const.i.tution agree with each other in establis.h.i.+ng 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 c.o.ke (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 const.i.tution 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 const.i.tution 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."

APPENDIX N.--Page 107.

There is no question upon which the American const.i.tutions agree more fully than upon that of political jurisdiction. All the const.i.tutions which take cognizance of this matter, give to the house of delegates the exclusive right of impeachment; excepting only the const.i.tution of North Carolina which grants the same privilege to grand-juries. (Article 23.)

Almost all the const.i.tutions give the exclusive right of p.r.o.nouncing sentence to the senate, or to the a.s.sembly 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 const.i.tution 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 const.i.tution (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 const.i.tution of Ma.s.sachusetts (chap. 1, section 2); that of North Carolina (art. 23); of Virginia (p. 252), misconduct and mal-administration.

In the const.i.tution of New Hamps.h.i.+re (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.

APPENDIX O.--Page 171.

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 distance from his; and that the immensity of the American continent would of itself present an insurmountable obstacle to its conquest.

APPENDIX P.--Page 186.

The first American journal appeared in April, 1704, and was published at Boston. See collection of the Historical Society of Ma.s.sachusetts, vol.

vi., p. 66.

It would be a mistake to suppose that the periodical press has always been entirely free in the American colonies: an attempt was made to establish something a.n.a.logous to a censors.h.i.+p and preliminary security.

Consult the Legislative Doc.u.ments of Ma.s.sachusetts of the 14th of January, 1722.

The committee appointed by the general a.s.sembly (the legislative body of the province), for the purpose of examining into circ.u.mstances connected with a paper ent.i.tled "The New England Courier," expresses its opinion that "the tendency of the said journal is to turn religion into derision, and bring it into contempt; that it mentions the sacred writings in a profane and irreligious manner; that it puts malicious interpretations upon the conduct of the ministers of the gospel; and that the government of his majesty is insulted, and the peace and tranquillity of the province disturbed by the said journal. The committee is consequently of opinion that the printer and publisher, James Franklin, should be forbidden to print and publish the said journal or any other work in future, without having previously submitted it to the secretary of the province; and that the justices of the peace for the county of Suffolk should be commissioned to require bail of the said James Franklin for his good conduct during the ensuing year."

The suggestion of the committee was adopted and pa.s.sed into a law, but the effect of it was null, for the journal eluded the prohibition by putting the name of Benjamin Franklin instead of James Franklin at the bottom of its columns, and this manoeuvre was supported by public opinion.

APPENDIX Q.--Page 287.

The federal const.i.tution has introduced the jury into the tribunals of the Union in the same way as the states had introduced it into their own several courts: but as it has not established any fixed rules for the choice of jurors, the federal courts select them from the ordinary jury-list which each state makes for itself. The laws of the states must therefore be examined for the theory of the formation of juries.

See Story's Commentaries on the Const.i.tution, B. iii., chap. 38, pp.

654-659; Sergeant's Const.i.tutional Law, p. 165. See also the federal laws, of the years 1789, 1800, and 1802, upon the subject.

For the purpose of thoroughly understanding the American principles with respect to the formation of juries, I examined the laws of states at a distance from one another, and the following observations were the result of my inquiries.

In America all the citizens who exercise the elective franchise have the right of serving upon a jury. The great state of New York, however, has made a slight difference between the two privileges, but in a spirit contrary to that of the laws of France; for in the state of New York there are fewer persons eligible as jurymen than there are electors. It may be said in general that the right of forming part of a jury, like that of electing representatives, is open to all the citizens; the exercise of this right, however, is not put indiscriminately into any hands.

Every year a body of munic.i.p.al or county magistrates--called _selectmen_ in New England, _supervisors_ in New York, _trustees_ in Ohio, and _sheriffs of the parish_ in Louisiana--choose for each county a certain number of citizens who have the right of serving as jurymen, and who we supposed to be capable of exercising their functions. These magistrates, being themselves elective, excite no distrust: their powers, like those of most republican magistrates, are very extensive and very arbitrary, and they frequently make use of them to remove unworthy or incompetent jurymen.

The names of the jurymen thus chosen are transmitted to the county court; and the jury who have to decide any affair are drawn by lot from the whole list of names.

The Americans have contrived in every way to make the common people eligible to the jury, and to render the service as little onerous as possible. The sessions are held in the chief town of every county; and the jury are indemnified for their attendance either by the state or the parties concerned. They receive in general a dollar per day, beside their travelling expenses. In America the being placed upon the jury is looked upon as a burden, but it is a burden which is very supportable.

See Brevard's Digest of the Public Statute Law of South Carolina, vol.

i, pp. 446 and 454, vol. ii., pp. 218 and 333; The General Laws of Ma.s.sachusetts, revised and published by Authority of the Legislature, v. ii., pp. 187 and 331; The Revised Statutes of the State of New York, vol. ii., pp. 411, 643, 717, 720; The Statute Law of the State of Tennessee, vol. i., p. 209; Acts of the State of Ohio, pp. 95 and 210; and Digeste General des Actes de la Legislature de la Louisiana.

APPENDIX R.--Page 290.

If we attentively examine the const.i.tution of the jury as introduced into civil proceedings in England, we shall readily perceive that the jurors are under the immediate control of the judge. It is true that the verdict of the jury, in civil as well as in criminal cases, comprises the question of fact and the question of right in the same reply; thus, a house is claimed by Peter as having been purchased by him: this is the fact to be decided. The defendant puts in a plea of incompetency on the part of the vendor: this is the legal question to be resolved.

But the jury do not enjoy the same character of infallibility in civil cases, according to the practice of the English courts, as they do in criminal cases. The judge may refuse to receive the verdict; and even after the first trial has taken place, a second or new trial may be awarded by the court. See Blackstone's Commentaries, book iii., ch. 24.