in the United States the judges are important political functionaries;
nevertheless, when he examines the nature of the tribunals, they offer
nothing which is contrary to the usual habits and privileges of those
bodies, and the magistrates seem to him to interfere in public affairs
of chance, but by a chance which recurs every day.

When the Parliament of Paris remonstrated, or refused to enregister an
edict, or when it summoned a functionary accused of malversation to its
bar, its political influence as a judicial body was clearly visible; but
nothing of the kind is to be seen in the United States. The Americans
have retained all the ordinary characteristics of judicial authority,
and have carefully restricted its action to the ordinary circle of its
functions.

The first characteristic of judicial power in all nations is the duty
of arbitration. But rights must be contested in order to warrant the
interference of a tribunal; and an action must be brought to obtain the
decision of a judge. As long, therefore, as the law is uncontested, the
judicial authority is not called upon to discuss it, and it may exist
without being perceived. When a judge in a given case attacks a law
relating to that case, he extends the circle of his customary duties,
without however stepping beyond it; since he is in some measure obliged
to decide upon the law in order to decide the case. But if he pronounces
upon a law without resting upon a case, he clearly steps beyond his
sphere, and invades that of the legislative authority.

The second characteristic of judicial power is that it pronounces on
special cases, and not upon general principles. If a judge in deciding
a particular point destroys a general principle, by passing a judgment
which tends to reject all the inferences from that principle, and
consequently to annul it, he remains within the ordinary limits of his
functions. But if he directly attacks a general principle without having
a particular case in view, he leaves the circle in which all nations
have agreed to confine his authority, he assumes a more important, and
perhaps a more useful, influence than that of the magistrate, but he
ceases to be a representative of the judicial power.

The third characteristic of the judicial power is its inability to act
unless it is appealed to, or until it has taken cognizance of an
affair. This characteristic is less general than the other two; but,
notwithstanding the exceptions, I