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 liberties
of the subject. The same political jurisdiction in the United States is
only indirectly hostile to the balance of power; it cannot menace the
lives of the citizens, and it does not hover, as in Europe, over the
heads of the community, since those only who have before-hand submitted
to its authority upon accepting office are exposed to its severity. It
is at the same time less formidable and less efficacious; indeed, it has
not been considered by the legislators of the United States as a remedy
for the more violent evils of society, but as an ordinary means of
conducting the government. In this respect it probably exercises more
real influence on the social body in America than in Europe. We must not
be misled by the apparent mildness of the American Legislation in all
that relates to political jurisdiction. It is to be observed, in
the first place, that in the United States the tribunal which passes
sentence is composed of the same elements, and subject to the same
influences, as the body which impeaches the offender, and that this
uniformity gives an almost irresistible impulse to the vindictive
passions of parties. If political judges in the United States cannot
inflict such heavy penalties as those of Europe, there is the less
chance of their acquitting a prisoner; and the conviction, if it is
less formidable, is more certain. The principal object of the political
tribunals of Europe is to punish the offender; the purpose of those in
America is to deprive him of his authority. A political condemnation
in the United States may, therefore, be looked upon as a preventive
measure; and there is no reason for restricting the judges to the exact
definitions of criminal law. Nothing can be more alarming than the
excessive latitude with which political offences are described in the
laws of America. Article II., section iv., of the constitution of the
United States runs thus: "The president, vice-president, and all the
civil officers of the United States shall be removed from office on
impeachment for, and conviction of, treason, bribery, _or other high
crimes and misdemeanors_." Many of the constitutions of the states
are even less explicit. "Public officers," says the constitution
of Massachusetts,[116] "shall be impeached for misconduct or
mal-administration." The constitution of Virginia declares that all
the civil officers who shall have offended against the state by
mal-administration, corruption, or other high crimes, may be impeached
by the house of delegates: in some constitutions no offences are
specified, in order to subject the public functionaries to an unlimited
responsibility.[117] But I will venture to affirm, that it is precisely
their mildness which renders the American laws most formidable in this
respect. We have shown that in Europe the removal of a functionary and
his political interdiction are consequences of the penalty he is to
undergo, and that in America they constitute the penalty itself. The
result is, that in Europe political tribunals are invested with rights
which they are afraid to use, and that the fear of punishing too much
hinders them from punishing at all. But in America no one hesitates
to inflict a penalty from which humanity does not recoil. To condemn a
political opponent to death, in order to deprive him of his power, is
to commit what all the world would execrate as a horrible assassination;
but to declare that opponent unworthy to exercise that authority, to
deprive him of it, and to leave him uninjured in life and liberty, may
appear to be the fair issue of the struggle. But this sentence, which is
so easy to pronounce, is not the less fatally severe to the majority of
those upon whom it is inflicted. Great criminals may undoubtedly
brave its intangible rigor, but ordinary offenders will dread it as a
condemnation which destroys their position in the world, casts a blight
upon their honor, and condemns them to a shameful inactivity worse than
death. The influence exercised in the United States upon the progress
of society by the jurisdiction of political bodies may not appear to be
formidable, but it is only the more immense. It does not act directly
upon the governed, but it renders the majority more absolute over those
who govern; it does not confer an unbounded authority on the legislator
which can only be exerted at some momentous crisis, but it establishes a
temperate and regular influence, which is at all times available. If
the power is decreased, it can, on the other hand, be more conveniently
employed, and more easily abused. By preventing political tribunals from
inflicting judicial punishments, the Americans seem to have eluded the
worst consequences of legislative tyranny, rather than tyranny itself;
and I am not sure that political jurisdiction, as it is constituted in
the United States, is not the most formidable which has ever been placed
in the rude grasp of a popular majority. When the American republics
begin to degenerate, it will be easy to verify the truth of this
observation, by remarking whether the number of political impeachments
augments.[118]
* * * * *
Notes:
[116] Chapter I., sect. ii., § 8.
[117] See the constitutions of Illinois, Maine, Connecticut, and
Georgia.
[118] See Appendix N.