Democracy in America: In Two Volumes

Chapter 7. Of Political Jurisdiction in the United StatesTN4

179 s4s4s4s4s4 c h a p t e r 7 Of Political Jurisdiction in the United StatesTN 4 What the author understands by political jurisdiction.—How political jurisdiction is understood in France, England and the United States.—In America, the political judge concerns himself only with public officials.—He orders dismissals rather than punishments.—Political jurisdiction, customary method of government.—Political jurisdiction, as understood in the United States, is, despite its mildness, and perhaps because of it, a very powerful weapon in the hands of the majority. [⫽Political jurisdiction is a violation of the great principleof theseparation of powers; you resort to it as an extreme measure to reach certain guilty individuals.⫽] I understand by political jurisdiction the decision delivered by apolitical body temporarily vested with the right to judge. In absolute governments, it is useless to give judgments extraordinary forms. The prince, in whose name the accused is prosecuted, is master of the courts as of everything else, and he has no need to seek a guarantee beyond the idea that is held of his power.a The only fearthathecanimagine Translator’s Note 4: For this chapter, there is no totally satisfactory way to translate jugement politique. The most direct translation, political judgment, is extremely ambiguous. For want of a better alternative, I have decided to use the traditional translation , political jurisdiction, since the chapter has to do with the right of a political body, in particular circumstances, to bring to trial, to judge and to punish a public figure. a. In the margin: It was necessary to give the superior political power control of all powers for the unity of government, and for that it was necessary to give the legislature the entirely administrative power to dismiss or the entirely judicial power to judge. 180 of political jurisdiction in the united states is that not even the external appearances of justice are kept, and that his authority is dishonored in the desire to assert it. But in most free countries, wherethemajoritycanneveractonthecourts as an absoluteprincewould,judicialpowerissometimesplacedtemporarily in the hands of the very representatives of society. Temporarily mixing powers in this way is preferred to violating the necessary principle of the unity of government. England, France and the United States have introduced political jurisdiction into their laws; it is curious to examine how these three great peoples have turned it to good account. In England and in France, the chamber of peers forms the highest criminal court1 of the nation. It does not judge all political crimes, but it can do so. Alongside the chamber of peers is another political power, vested with the right to accuse. On this point, the only difference that exists between the two countries is this: in England, the members of the House of Commons can accuse whomever they choose before the Lords; while in France the deputies can only prosecute the ministers of the King in this way.b In these two countries, moreover,thechamberof peersfindsallthepenal laws at its disposal for striking the delinquents. In the United States, as in Europe, one of the two branches of the legislature is vested with the right to accuse, and the other with the right to judge. The representatives denounce the guilty party; the Senate punishes him. But a matter can be referred to the Senate only by the representatives; and before the Senate, the representatives can accuseonlypublicofficials. Therefore the Senate has a more limited competence than the French court of On the other hand, it was very dangerous to liberty and humanity tovestapolitical power with the most formidable rights of a judicial body. From that the mixed American system. Political jurisdiction more than dismissal, less than a ruling. 1. The court of Lords in England furthermore forms the last appealin certaincivilmatters. See Blackstone, book III, chap. IV. b. In the margin: “I find nothing inBlackstonethatjustifiesthisdistinction.However I think it is correct.” of political jurisdiction in the united states 181 the peers, and the representatives have a broader right to accuse than our deputies. But here is the greatest difference that exists between America and Europe . In Europe, political courts can apply all the provisions of the penal code. In America, when they have removed from the guilty party thepublic character with which he was vested, and have declared him unworthy to hold any political offices whatsoever in the future, their right is exhausted, and the task of the ordinary courts begins. I suppose that...