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CHAPTER 7 Of Political Jurisdiction in the United States ^{TN 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 principle of the separation of powers; you resort to it as an extreme measure to reach certain guilty individuals.≠]

I understand by political jurisdiction the decision delivered by a political 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 fear that he can imagine

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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, where the majority can never act on the courts as an absolute prince would, judicial power is sometimes placed temporarily 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, the chamber of peers finds all the penal 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 accuse only public officials. Therefore the Senate has a more limited competence than the French court of

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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 the public 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 the President of the United States has committed a crime of high treason.

The House of Representatives accuses him; the senators decide his removal. Afterward he appears before a jury that alone can take away life or liberty.

This succeeds in throwing a bright light on the subject that occupies us.

By introducing political jurisdiction into their laws, Europeans wanted to reach great criminals whatever their birth, rank or power in the State. To achieve that, they temporarily united, within a great political body, all the prerogatives of the courts.

The legislator is then transformed into a magistrate; he can establish the crime, classify and punish it. By giving him the rights of the judge, the law imposed all of the judge’s obligations on him, and bound him to the observation of all the forms of justice.

When a political court, French or English, has a public official as a defendant and delivers a verdict condemning him, by doing so, it removes him from office and can declare him unworthy to hold any office in the future. But here the dismissal and political interdiction are a consequence of the decision and not the decision itself.

So in Europe, political jurisdiction is more a judicial act than an administrative measure.

The opposite is seen in the United States, and it is easy to be persuaded that political jurisdiction there is more an administrative measure than a judicial act.

It is true that the decision of the Senate is judicial in form; to make it, the senators are obliged to conform to the solemnity and customs of the procedure. It is also judicial by the grounds on which it is based; the Senate

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is, in general, obliged to base its decision on a crime of the common law. But it is administrative in its objective.

If the principal aim of the American law-maker had really been to arm a political body with a great judicial power, he would not have restricted its action to the circle of public officials, for the most dangerous enemies of the State may hold no office at all. This is true above all in republics, where the favor of parties is the first of powers, and where someone is often much stronger when not legally exercising any power.

If the American law-maker had wanted to give society itself, like judges, the right to prevent great crimes by fear of punishment, he would have put at the disposal of the political courts all the resources of the penal code. But he only provided them with an incomplete weapon that cannot reach the most dangerous of criminals. For what use is a judgment of political interdiction against someone who wants to overturn the laws themselves?

The principal aim of political jurisdiction in the United States is, therefore, to withdraw power from someone who is making poor use of it, and to prevent the same citizen from being vested with power in the future. That, as we see, is an administrative act that has been given the solemnity of a judgment.

So in this matter, the Americans have created something mixed. They have given all the guarantees of political jurisdiction to administrative dismissal, and they have removed from political jurisdiction its greatest rigors.

This point settled, everything closely follows; we then discover why the American constitutions submit all civil officials to the jurisdiction of the Senate, and exempt the military whose crimes are, however, more to be feared [{in republics}]. In the civil order, the Americans have, so to speak, no removable officials; some are irremovable; others hold their rights by a mandate that cannot be abrogated. So to remove them from power, they must all be judged.^c But military officers depend on the head

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of State, who himself is a civil officer. By reaching the head of State, they strike them all with the same blow.²

Now, if we come to compare the European and American systems in the effects that each produces or can produce, we discover differences no less noticeable.

In France and in England, political jurisdiction is considered as an extraordinary weapon that society should use only to save itself in moments of great peril.

We cannot deny that political jurisdiction, as understood in Europe, violates the conservative principle of the separation of powers and constantly threatens the life and liberty of men.

Political jurisdiction in the United States strikes only an indirect blow at the principle of separation of powers. It does not threaten the existence of citizens; it does not, as in Europe, hang over all heads, since it strikes only those who, by accepting public offices, subject themselves to its rigors in advance.

It is simultaneously less to be feared and less effective.

Moreover, the law-makers of the United States did not consider it as an extreme remedy for the great ills of society, but as a customary means of government.

From this point of view, it perhaps exercises more real influence over the social body in America than in Europe. You must not in fact be fooled by the apparent mildness of the American legislation regarding political jurisdiction. It must be noted, in the first place, that in the United States the court that delivers these judgments is composed of the same elements and is subject to the same influences as the body charged with accusing; this gives an almost irresistible impulse to the vindictive passions of parties. If political judges, in the United States, cannot order punishments as severe as those ordered by political judges in Europe, there is less chance of being acquitted by them as a result. Conviction is less to be feared and more certain.

Europeans, by establishing political courts, had as their principal object

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to punish the guilty; Americans, to remove them from power. Political jurisdiction in the United States is a preventive measure in a way. So judges there must not be bound by very exact criminal definitions.

Nothing is more frightening than the vagueness of American laws, when they define political crimes strictly speaking. The crimes that will justify the conviction of the President, says the Constitution of the United States, section IV, art. I [sic: Article II, Section 4], are “Treason, Bribery, or other high Crimes and Misdemeanors.” Most of the state constitutions are even more obscure.

“Public officials, says the constitution of Massachusetts,^d will be condemned for their culpable behavior and for their bad administration.³ All officials who put the State in danger by bad administration, corruption or other misdemeanors, says the constitution of Virginia, are impeachable by the House of Delegates.” There are constitutions that, in order to let an unlimited responsibility weigh upon the public officials, specify no crime.⁴

But what makes the American laws in this matter so formidable arises, I dare say, from their very mildness.

We have seen that in Europe the dismissal of an official, and his political interdiction, were consequences of the penalty, and that in America it was the penalty itself. The result is this. In Europe, the political courts are vested with terrible rights that sometimes they do not know how to use; and it happens that they do not punish for fear of punishing too much. But in America, they do not back away from a penalty that humanity does not bemoan. To condemn a political enemy to death, in order to remove him from power, is in everybody’s eyes a horrible assassination. To declare an adversary unworthy to possess this same power and to take it away from him, while leaving him his life and liberty, can appear as the honest outcome of the struggle.

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Now, this judgment, so easy to decide, is nonetheless the height of misfortune for the ordinary man among those to whom it is applied. Great criminals will undoubtedly defy its empty rigors; ordinary men will see in it a decision that destroys their position, stains their honor, and that condemns them to a shameful inaction worse than death.

So the less formidable political jurisdiction in the United States seems, the greater the influence it exercises on the course of society. It does not act directly on the governed, but it makes the majority entirely master of those who govern. It does not give the legislature an immense power that could be exercised only in a day of crisis; it allows the legislature to have a moderate and regular power that can be used every day. If the power is less, on the other hand, its use is more convenient and its abuse easier.

By preventing political courts from ordering judicial punishments, the Americans seem to me therefore to have avoided the most horrible consequences of legislative tyranny, rather than tyranny itself. And all things considered, I do not know if political jurisdiction, as it is understood in the United States, is not the most formidable weapon ever put in the hands of the majority.

When the American republics begin to degenerate, I believe that it will be easy to recognize; it will be enough to see if the number of cases of political jurisdiction increases.^N