《旧制度与大革命·卷二·第四章·行政法庭与官吏免责皆旧制度所立》第1节
In no country in Europe were the ordinary courts of justice less dependent on the Government than in France; but in no country were extraordinary courts of justice more extensively employed. These two circumstances were more nearly connected than might be imagined. As the King was almost entirely powerless in relation to the judges of the land--as he could neither dismiss them, nor translate them, nor even, for the most part, promote them--as, in short, he held them neither by ambition nor by fear, their independence soon proved embarrassing to the Crown. The result had been, in France, more than anywhere else, to withdraw from their jurisdiction the suits in which the authority of the Crown was directly interested, and to call into being, as it were beside them, a species of tribunal more dependent on the sovereign, which should present to the subjects of the Crown some semblance of justice without any real cause for the Crown to dread its control. In other countries, as, for instance, in some parts of Germany, where the ordinary courts of justice had never been as independent of the Government as those of France, no such precautions were taken, and no administrative justice (as it was termed) existed. The sovereign was so far master of the judges, that he needed no special commissions. The edicts and declarations of the Kings of France, published in the last century of the monarchy, and the Orders in Council promulgated within the same period, almost all provided on behalf of the Government, that the differences which any given measure might occasion and the litigation which might ensue, should be exclusively heard before the Intendants and before the Council. ‘It is moreover ordered by his Majesty, that all the disputes which may arise upon the execution of this order, with all the circumstances and incidents thereunto belonging, shall be carried before the Intendant to be judged by him, saving an appeal to the Council, and all courts of justice and tribunals are forbidden to take cognisance of the same.’ Such was the ordinary form of these decrees.
注释摘要
托克维尔在这一段中揭示了一个法国旧制度下极具悖论性的司法格局。他观察到，法国普通法院的法官相对于政府而言，其独立性在欧洲首屈一指；然而，恰恰是在这个国家，形形色色的特别法庭被最为广泛地运用。这两种现象看似矛盾，在托克维尔看来却互为因果。旧制度下，许多法官职位是通过买卖获得的私人财产，国王几乎无权将其免职、调任或提拔——也就是说，王室手中既无野心作诱饵，也无…