Political Jurisdiction In The United States
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 accrue3 from the introduction of extraordinary forms of procedure; the prince in whose name an offender4 is prosecuted5 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 should be neglected, and that his authority should 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 monarch6, the judicial7 power has occasionally been vested for a time in the representatives of the nation. 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 unity8 of government.
England, France, and the United States have established this political jurisdiction by law; and it is curious to examine the different adaptations which these three great nations have made of the principle. In England and in France the House of Lords and the Chambre des Paris *a constitute the highest criminal court of their respective nations, and although they do not habitually9 try all political offences, they are competent to try them all. Another political body enjoys the right of impeachment11 before the House of Lords: the only difference which exists between the two countries in this respect is, that in England the Commons may impeach10 whomsoever they please before the Lords, whilst in France the Deputies can only employ this mode of prosecution12 against the ministers of the Crown.
a
In both countries the Upper House may make use of all the existing penal2 laws of the nation to punish the delinquents14.
In the United States, as well as in Europe, one branch of the legislature is authorized15 to impeach and another to judge: the House of Representatives arraigns16 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 functionaries17. Thus the jurisdiction of the Senate is less extensive than that of the Peers of France, whilst 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 inflict18 all the dispositions19 of the penal code, while in America, when they have deprived the offender of his official rank, and have declared him incapable20 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 impeaches21 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 accurately22 illustrates23 the subject we are treating. The political jurisdiction which is established by the laws of Europe is intended to try great offenders24, 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 the magistrate25; 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 functionary26 is impeached27 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 interdict28 is a consequence of the sentence, and not the sentence itself. In Europe the sentence of a political tribunal is to be regarded as a judicial verdict rather than as an administrative29 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 motives30 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 proceeding31 is purely32 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 influence is the first of authorities, and where the strength of many a reader 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 justice, 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 subversion33 of the laws are not likely to murmur34 at a political interdict.
The main object of the political jurisdiction which obtains in the United States is, therefore, to deprive the ill-disposed 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 a judicial decision. 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, whilst the military, whose crimes are nevertheless more formidable, are exempted37 from that tribunal. In the civil service none of the American functionaries can be said to be removable; the places which some of them occupy are inalienable, and the others are chosen for a term which cannot be shortened. 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 condemns38 him is a blow upon them all.
If we now compare the American and the 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 incessantly39 the lives and liberties of the subject. The same political jurisdiction in the United States is only indirectly40 hostile to the balance of power; it cannot menace the lives of the citizens, and it does not hover41, as in Europe, over the heads of the community, since those only who have submitted to its authority on accepting office are exposed to the severity of its investigations42. 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 irresistible43 impulse to the vindictive44 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 acquitting45 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 condemnation36 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 latitude46 with which political offences are described in the laws of America. Article II., Section 4, of the Constitution of the United States runs thus:—"The President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery48, or other high crimes and misdemeanors." Many of the Constitutions of the States are even less explicit49. "Public officers," says the Constitution of Massachusetts, *b "shall be impeached for misconduct or maladministration;" the Constitution of Virginia declares that all the civil officers who shall have offended against the State, by maladministration, corruption50, or other high crimes, may be impeached by the House of Delegates; in some constitutions no offences are specified51, in order to subject the public functionaries to an unlimited52 responsibility. *c But I will venture to affirm that it is precisely53 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 interdiction54 are the consequences of the penalty he is to undergo, and that in America they constitute the penalty itself. The consequence 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 recoil55. To condemn35 a political opponent to death, in order to deprive him of his power, is to commit what all the world would execrate56 as a horrible assassination57; but to declare that opponent unworthy to exercise that authority, to deprive him of it, and to leave him uninjured in life and limb, may be judged to be the fair issue of the struggle. But this sentence, which it is so easy to pronounce, is not the less fatally severe to the majority of those upon whom it is inflicted58. Great criminals may undoubtedly59 brave its intangible rigor60, but ordinary offenders will dread61 it as a condemnation which destroys their position in the world, casts a blight62 upon their honor, and condemns them to a shameful63 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 directly coerce64 the subject, but it renders the majority more absolute over those in power; it does not confer an unbounded authority on the legislator which can be exerted at some momentous65 crisis, but it establishes a temperate66 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 inflicting67 judicial punishments the Americans seem to have eluded68 the worst consequences of legislative69 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 weapon which has ever been placed in the rude grasp of a popular majority. When the American republics begin to degenerate70 it will be easy to verify the truth of this observation, by remarking whether the number of political impeachments71 augments72.*d
b
c
[ See the constitutions of Illinois, Maine, Connecticut, and Georgia.]
d
[ See Appendix, N.
[The impeachment of President Andrew Johnson in 1868—which was resorted to by his political opponents solely73 as a means of turning him out of office, for it could not be contended that he had been guilty of high crimes and misdemeanors, and he was in fact honorably acquitted74 and reinstated in office—is a striking confirmation75 of the truth of this remark.—Translator's Note, 1874.]]
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jurisdiction
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| n.司法权，审判权，管辖权，控制权 | |
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penal
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| adj.刑罚的；刑法上的 | |
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accrue
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| v.(利息等)增大，增多 | |
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offender
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| n.冒犯者，违反者，犯罪者 | |
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prosecuted
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| a.被起诉的 | |
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monarch
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| n.帝王，君主，最高统治者 | |
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judicial
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| adj.司法的，法庭的，审判的，明断的，公正的 | |
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unity
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| n.团结，联合，统一；和睦，协调 | |
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habitually
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| ad.习惯地，通常地 | |
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impeach
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| v.弹劾；检举 | |
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impeachment
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| n.弹劾；控告；怀疑 | |
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prosecution
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| n.起诉，告发，检举，执行，经营 | |
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monarchy
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| n.君主，最高统治者；君主政体，君主国 | |
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delinquents
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| n.（尤指青少年）有过失的人，违法的人( delinquent的名词复数 ) | |
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authorized
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| a.委任的，许可的 | |
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arraigns
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| v.告发( arraign的第三人称单数 )；控告；传讯；指责 | |
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functionaries
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| n.公职人员，官员( functionary的名词复数 ) | |
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inflict
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| vt.(on)把…强加给，使遭受，使承担 | |
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dispositions
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| 安排( disposition的名词复数 )； 倾向； （财产、金钱的）处置； 气质 | |
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incapable
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| adj.无能力的，不能做某事的 | |
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impeaches
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| v.控告（某人）犯罪( impeach的第三人称单数 )；弹劾；对（某事物）怀疑；提出异议 | |
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accurately
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| adv.准确地，精确地 | |
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illustrates
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| 给…加插图( illustrate的第三人称单数 )； 说明； 表明； （用示例、图画等）说明 | |
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offenders
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| n.冒犯者( offender的名词复数 )；犯规者；罪犯；妨害…的人（或事物） | |
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magistrate
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| n.地方行政官，地方法官，治安官 | |
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functionary
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| n.官员；公职人员 | |
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impeached
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| v.控告（某人）犯罪( impeach的过去式和过去分词 )；弹劾；对（某事物）怀疑；提出异议 | |
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interdict
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| v.限制；禁止；n.正式禁止；禁令 | |
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administrative
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| adj.行政的，管理的 | |
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motives
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| n.动机，目的( motive的名词复数 ) | |
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proceeding
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| n.行动，进行，(pl.)会议录，学报 | |
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purely
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| adv.纯粹地，完全地 | |
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subversion
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| n.颠覆，破坏 | |
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murmur
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| n.低语，低声的怨言；v.低语，低声而言 | |
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condemn
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| vt.谴责，指责；宣判(罪犯)，判刑 | |
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condemnation
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| n.谴责; 定罪 | |
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exempted
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| 使免除[豁免]( exempt的过去式和过去分词 ) | |
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condemns
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| v.（通常因道义上的原因而）谴责( condemn的第三人称单数 )；宣判；宣布…不能使用；迫使…陷于不幸的境地 | |
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incessantly
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| ad.不停地 | |
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indirectly
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| adv.间接地，不直接了当地 | |
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hover
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| vi.翱翔，盘旋；徘徊；彷徨，犹豫 | |
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investigations
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| （正式的）调查( investigation的名词复数 )； 侦查； 科学研究； 学术研究 | |
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irresistible
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| adj.非常诱人的，无法拒绝的，无法抗拒的 | |
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vindictive
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| adj.有报仇心的，怀恨的，惩罚的 | |
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acquitting
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| 宣判…无罪( acquit的现在分词 )； 使（自己）作出某种表现 | |
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latitude
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| n.纬度，行动或言论的自由(范围)，(pl.)地区 | |
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sect
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| n.派别，宗教，学派，派系 | |
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bribery
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| n.贿络行为，行贿，受贿 | |
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explicit
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| adj.详述的，明确的；坦率的；显然的 | |
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corruption
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| n.腐败，堕落，贪污 | |
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specified
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| adj.特定的 | |
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unlimited
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| adj.无限的，不受控制的，无条件的 | |
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precisely
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| adv.恰好，正好，精确地，细致地 | |
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interdiction
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| n.禁止；封锁 | |
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recoil
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| vi.退却，退缩，畏缩 | |
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execrate
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| v.憎恶；厌恶；诅咒 | |
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assassination
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| n.暗杀；暗杀事件 | |
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inflicted
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| 把…强加给，使承受，遭受( inflict的过去式和过去分词 ) | |
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undoubtedly
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| adv.确实地，无疑地 | |
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rigor
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| n.严酷，严格，严厉 | |
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dread
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| vt.担忧，忧虑；惧怕，不敢；n.担忧，畏惧 | |
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blight
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| n.枯萎病；造成破坏的因素；vt.破坏，摧残 | |
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shameful
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| adj.可耻的，不道德的 | |
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coerce
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| v.强迫，压制 | |
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momentous
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| adj.重要的，重大的 | |
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temperate
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| adj.温和的，温带的，自我克制的，不过分的 | |
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inflicting
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| 把…强加给，使承受，遭受( inflict的现在分词 ) | |
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eluded
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| v.（尤指机敏地）避开( elude的过去式和过去分词 )；逃避；躲避；使达不到 | |
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legislative
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| n.立法机构，立法权；adj.立法的，有立法权的 | |
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degenerate
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| v.退步，堕落；adj.退步的，堕落的；n.堕落者 | |
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impeachments
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| n.控告( impeachment的名词复数 )；检举；弹劾；怀疑 | |
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augments
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| 增加，提高，扩大( augment的名词复数 ) | |
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solely
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| adv.仅仅，唯一地 | |
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acquitted
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| 宣判…无罪( acquit的过去式和过去分词 )； 使（自己）作出某种表现 | |
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confirmation
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| n.证实，确认，批准 | |
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