American Institutions and Their Influence - Alexis de Tocqueville (i am reading a book .TXT) 📗

is easy to attack a public man in a journal, but the motives which can warrant an action at law must be serious.

A solid ground of complaint must therefore exist, to induce an individual to prosecute a public officer, and public officers careful not to furnish these grounds of complaint, when they are afraid of being prosecuted.

This does not depend upon the republican form of the American institutions, for the same facts present themselves in England.

These two nations do not regard the impeachment of the principal officers of state as a sufficient guarantee of their independence. But they hold that the right of minor prosecutions, which are within the reach of the whole community, is a better pledge of freedom than those great judicial actions which are rarely employed until it is too late.

In the middle ages, when it was very difficult to overtake offenders, the judges inflicted the most dreadful tortures on the few who were arrested, which by no means diminished the number of crimes. It has since been discovered that when justice is more certain and more mild, it is at the same time more efficacious.

The English and the Americans hold that tyranny and oppression are to be treated like any other crime, by lessening the penalty and facilitating conviction.

In the year VIII. of the French republic, a constitution was drawn up in which the following clause was introduced: “Art. 75.

All the agents of the government below the rank of ministers can only be prosecuted for offences relating to their several functions by virtue of a decree of the conseil d’etat; in which case the prosecution takes place before the ordinary tribunals.”

This clause survived the “Constitution de l’an VIII.,” and it is still maintained in spite of the just complaints of the nation.

I have always found the utmost difficulty in explaining its meaning to Englishmen or Americans. They were at once led to conclude that the conseil d’etat in France was a great tribunal, established in the centre of the kingdom, which exercised a preliminary and somewhat tyrannical jurisdiction in all political causes. But when I told them that the conseil d’etat was not a judicial body, in the common sense of the term, but an administrative council composed of men dependent on the crown—so that the king, after having ordered one of his servants, called a prefect, to commit an injustice, has the power of commanding another of his servants, called a councillor of state, to prevent the former from being punished—when I demonstrated to them that the citizen who had been injured by the order of the sovereign is obliged to solicit from the sovereign permission to obtain redress, they refused to credit so flagrant an abuse, and were tempted to accuse me of falsehood or of ignorance. It frequently happened before the revolution that a parliament issued a warrant against a public officer who had committed an offence; and sometimes the proceedings were annulled by the authority of the crown. Despotism then displayed itself openly, and obedience was extorted by force. We have then retrograded from the point which our forefathers had reached, since we allow things to pass under the color of justice and the sanction of the law, which violence alone could impose upon them.

* * * * * CHAPTER VII. POLITICAL JURISDICTION IN THE UNITED STATES.

Definition of political Jurisdiction.—What is understood by political Jurisdiction in France, in England, and in the United States.—In America the political Judge can only pass Sentence on public Officers.—He more frequently passes a Sentence of Removal from Office than a Penalty.—Political Jurisdiction, as it Exists in the United States, is, notwithstanding its Mildness, and perhaps in Consequence of that Mildness, a most powerful Instrument in the Hands of the Majority.

I understand, by political jurisdiction, that temporary right of pronouncing a legal decision with which a political body may be invested.

In absolute governments no utility can accrue from the introduction of extraordinary forms of procedure; the prince, in whose name an offender is prosecuted, is as much the sovereign of the courts of justice as of everything else, and the idea which is entertained of his power is of itself a sufficient security.

The only thing he has to fear is, that the external formalities of justice may be neglected, and that his authority may be dishonored, from a wish to render it more absolute. But in most free countries, in which the majority can never exercise the same influence upon the tribunals as an absolute monarch, the judicial power has occasionally been vested for a time in the representatives of society. It has been thought better to introduce a temporary confusion between the functions of the different authorities, than to violate the necessary principle of the unity of government.

England, France, and the United States, have established this political jurisdiction in their laws; and it is curious to examine the different use which these three great nations have made of the principle. In England and in France the house of lords and the chambre des pairs constitute the highest criminal court of their respective nations; and although they do not habitually try all political offences, they are competent to try them all. Another political body enjoys the right of impeachment before the house of lords: the only difference which exists between the two countries in this respect is, that in England the commons may impeach whomsoever they please before the lords, while in France the deputies can only employ this mode of prosecution against the ministers of the crown.

In both countries the upper house make use of all the existing penal laws of the nation to punish the delinquents.

In the United States, as well as in Europe, one branch of the legislature is authorized to impeach, and another to judge: the house of representatives arraigns the offender, and the senate awards his sentence. But the senate can only try such persons as are brought before it by the house of representatives, and those persons must belong to the class of public functionaries. Thus the jurisdiction of the senate is less extensive than that of the peers of France, while the right of impeachment by the representatives is more general than that of the deputies. But the great difference which exists between Europe and America is, that in Europe political tribunals are empowered to inflict all the dispositions of the penal code, while in America, when they have deprived the offender of his official rank, and have declared him incapable of filling any political office for the future, their jurisdiction terminates and that of the ordinary tribunals begins.

Suppose, for instance, that the president of the United States has committed the crime of high treason; the house of representatives impeaches him, and the senate degrades him; he must then be tried by a jury, which alone can deprive him of his liberty or his life. This accurately illustrates the subject we are treating. The political jurisdiction which is established by the laws of Europe is intended to try great offenders, whatever may be their birth, their rank, or their powers in the state; and to this end all the privileges of the courts of justice are temporarily extended to a great political assembly. The legislator is then transformed into a magistrate: he is called upon to admit, to distinguish, and to punish the offence; and as he exercises all the authority of a judge, the law restricts him to the observance of all the duties of that high office, and of all the formalities of justice. When a public functionary is impeached before an English or a French political tribunal, and is found guilty, the sentence deprives him ipso facto of his functions, and it may pronounce him to be incapable of resuming them or any others for the future. But in this case the political interdict is a consequence of the sentence, and not the sentence itself. In Europe the sentence of a political tribunal is therefore to be regarded as a judicial verdict, rather than as an administrative measure. In the United States the contrary takes place; and although the decision of the senate is judicial in its form, since the senators are obliged to comply with the practices and formalities of a court of justice; although it is judicial in respect to the motives on which it is founded, since the senate is in general obliged to take an offence at common law as the basis of its sentence; nevertheless the object of the proceeding is purely administrative.

If it had been the intention of the American legislator to invest a political body with great judicial authority, its action would not have been limited to the circle of public functionaries, since the most dangerous enemies of the state may be in the possession of no functions at all; and this is especially true in republics, where party favor is the first of authorities, and where the strength of many a leader is increased by his exercising no legal power. If it had been the intention of the American legislator to give society the means of repressing state offences by exemplary punishment, according to the practice of ordinary judgment, the resources of the penal code would all have been placed at the disposal of the political tribunals. But the weapon with which they are intrusted is an imperfect one, and it can never reach the most dangerous offenders; since men who aim at the entire subversion of the laws are not likely to murmur at a political interdict.

The main object of the political jurisdiction which obtains in the United States is, therefore, to deprive the citizen of an authority which he has used amiss, and to prevent him from ever acquiring it again. This is evidently an administrative measure sanctioned by the formalities of judicial investigation. In this matter the Americans have created a mixed system: they have surrounded the act which removes a public functionary with the securities of a political trial; and they have deprived all political condemnations of their severest penalties. Every link of the system may easily be traced from this point; we at once perceive why the American constitutions subject all the civil functionaries to the jurisdiction of the senate, while the military, whose crimes are nevertheless more formidable, are exempt from that tribunal. In the civil service none of the American functionaries can be said to be removeable; the places which some of them occupy are inalienable, and the others derive their rights from a power which cannot be abrogated. It is therefore necessary to try them all in order to deprive them of their authority. But military officers are dependent on the chief magistrate of the state, who is himself a civil functionary; and the decision which condemns him is a blow upon them all.

If we now compare the American and European systems, we shall meet with differences no less striking in the different effects which each of them produces or may produce. In France and in England the jurisdiction of political bodies is looked upon as an extraordinary resource, which is only to be employed in order to rescue society from unwonted dangers. It is not to be denied that these tribunals, as they are constituted in Europe, are apt to violate the conservative principle of the balance of power in the state, and to threaten incessantly the lives and