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TO M. FRESLON. - Alexis de Tocqueville, Memoir, Letters, and Remains of Alexis de Tocqueville, vol. 2 [1861]

Edition used:

Memoir, Letters, and Remains of Alexis de Tocqueville. Translated from the French by the translator of Napoleon’s Correspondence with King Joseph. With large Additions. In Two Volumes (London: Macamillan, 1861). 2 vols.

Part of: Memoir, Letters, and Remains of Alexis de Tocqueville, 2 vols.

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TO M. FRESLON.

St. Cyr, August 10, 1853.

Again many thanks, dear friend, for your information and for your news. The former was very useful, and the latter very interesting.

I found in the public library of Tours most of the books which you mention. . . .

My search into the state papers has already taught me much on the subject of the administrative powers of the judicial tribunals before 1789. Two things I chiefly remarked; first, that these powers gradually became more restricted as the administrative power, properly so called, grew more active and more enlightened. The rights of the tribunal of justice, not being exclusive, and being subordinate to the Administration, as represented by the Conseil d’ Étât, it could act only when the latter had not already acted. The more the Administration wished to extend its natural sphere, the more contracted became by degrees that of the tribunals.

Secondly, one is struck, when one studies these documents, with the continual interference of the Government in matters of justice. The lawyers who write on administration tell us, that the greatest vice of the internal administration under the Ancien Régime was, that the judges interfered with the executive. One might as reasonably complain, that the Government interfered with the judges. The only change is that we have improved upon the Ancien Régime in the first respect, and imitated it in the last. Till now I had been foolish enough to believe that what we call la Justice Administrative (justice administered by the Government) was a creation of Napoleon’s. It is only a part of the Ancien Régime which we have preserved. And the principle that even in a case of a contract, that is of a regular engagement formally entered into between an individual and the State, the cause is to be tried by the State—this axiom, which is unknown to most modern nations, was held as sacred by an intendant* of the Ancien Régime as it can be in our day by the personage who most resembles him—a prefect.

In reading the correspondence of the ministers of Louis XV. with their subordinates, you see a crowd of little embryo professors of imperial administrative law. So true is it, that the better one is acquainted with the Ancien Régime the more one finds that the Revolution has been far from doing either all the good or all the harm that is supposed, and that it may be said rather to have disturbed than to have altered society. This truth springs up in all directions as soon as one ploughs the ancient soil.

Ampère and Corcelle are with us. I need not tell you how often we talk of you. Rivet came three weeks ago. Adieu.

[*]Governor of a district, and responsible only to the Crown.—Tr.