Volume 1, Chapter 7, 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 has to do only with public officers–He more frequently decrees removal from office than an ordinary penalty–Political jurisdiction as it exists in the United States is, notwithstanding its mildness, and perhaps 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 it is useless to introduce any 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 that 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 strengthen it. But in most free countries, in which the majority can never have the same influence over the tribunals as an absolute monarch, the judicial power has occasionally been vested for a time in the representatives of the people. It has been thought better temporarily to merge 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 by law; and it is curious to see the different use that these three great nations have made of it. In England and in France the House of Lords and the Chamber of Peers constitute the highest criminal court 1 of their respective nations; and although they do not habitually try all political offenses, they are competent to try them all. Another political body has the right of bringing the accusation before the Peers; 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 employ this mode of prosecution only against the ministers of the crown. In both countries the upper house may 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 the other to judge: the House of Representatives arraigns the offender, and the Senate punishes him. But the Senate can try only 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 the political tribunals can apply all the enactments 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 from office; he must then be tried by a jury, which alone can deprive him of Liberty or life. This accurately illustrates the subject we are treating. The political jurisdiction that is established by the laws of Europe is intended to reach great offenders, whatever may be their birth, their rank, or their power in the state; and to this end all the privileges of a court of justice are temporarily given to a great political assembly. The legislator is then transformed into a magistrate; he is called upon to prove, to classify, and to punish the offense; and as he exercises all the authority of a judge, the law imposes upon him all the duties of that high office and requires 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 may pronounce him 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, then, the sentence of a political tribunal is a judicial verdict rather than 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 rules and formalities of a court of justice; although it is judicial also, in respect to the motives on which it is founded, since the Senate is generally obliged to take an offense at common law as the basis of its sentence; yet the political judgment is rather an administrative than a judicial act. If it had been the intention of the American legislator really to invest a political body with great judicial authority, its action would not have been limited to public functionaries, since the most dangerous enemies of the state may not have any public functions; and this is especially true in republics where party influence has the most force and where the strength of many a leader is increased by his exercising no legitimate power.
If the American legislator had wished to give society itself the means of preventing great offenses by the fear of punishment according to the practice of ordinary justice, all the resources of the penal code would have been given to the political tribunals. But he gave them only an imperfect weapon, which 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 that obtains in the United States is therefore to take away the power from him who would make a bad use of it 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 that removes a public functionary with all the securities of a political trial, and they have deprived 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 exempted from that tribunal. In the civil service none of the American functionaries can be said to be removable; the places that 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 that condemns him is a blow to them all.2
If we now compare the American and the European systems, we shall meet with differences no less striking in the effects which each of them produces or may produce. In France and 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, violate the conservative principle of the division of powers in the state and threaten incessantly the lives and liberties of the subject. The same political jurisdiction in the United States is only indirectly hostile to the division of powers; it cannot menace the lives of the citizens, and it does not hover, as in Europe, over the heads of the whole community, since it reaches those only who have voluntarily submitted to its authority by accepting office. 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 an extreme remedy for the more violent evils of society, but as an ordinary means of 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 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 that passes judgment is composed of the same elements, and subject to the same influences, as the body which impeaches the offender, and that this 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 in Europe, there is the less chance of their acquitting an offender; the conviction, if it is less formidable, is more certain. The principal object of the political tribunals of Europe is to punish the offender; of those in America, to deprive him of his power. A political sentence in the United States may therefore be looked upon as a preventive measure; and there is no reason for tying down the judges to the exact definitions of criminal law. Nothing can be more alarming than the vagueness with which political offenses, properly so called, 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, 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, “shall be impeached for misconduct or maladministration.”3 The Constitution of Virginia declares that “all the civil officers who shall have offended against the State by maladministration, corruption, or other high crimes, may be impeached by the House of Delegates.” In some of the states the constitutions do not specify any offenses, in order to subject the public functionaries to an unlimited responsibility.4 I venture to affirm that it is precisely their mildness that renders the American laws so formidable in this respect. I have shown that in Europe the removal of a functionary and his political disqualification 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 terrible powers which they are afraid to use, and 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 and to deprive him of it, leaving him uninjured in life and limb, may seem 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 most of those upon whom it is inflicted. Great criminals may undoubtedly brave its vain rigor, but ordinary offenders will dread it as a condemnation that destroys their position in the world, casts a blight upon their honor, and condemns them to a shameful inactivity worse than death. In the United States the influence exercised upon the progress of society by the jurisdiction of political bodies is the more powerful in proportion as it seems less frightful. It does not directly coerce the subject, but it renders the majority more absolute over those in power; it does not give to the legislature an unbounded authority that can be exerted only at some great 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, all things considered, the most formidable weapon that has ever been placed in the grasp of a 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 is increased.5
1 The House of Lords in England is also the court of last resort in certain civil cases. See Blackstone, Bk III, ch 4.
2 An officer cannot be removed from his grade, but he can be relieved of his command.
3 Chap 1, section 2, # 8
4 See the Constitutions of Illinois, Maine, Connecticut, and
5 See Appendix N.
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