《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2节
In matters which fell under laws or customs of an earlier date, when this precaution had not been taken, the Council continually intervened, by way of what was termed evocation, or the calling up to its own superior jurisdiction from the hands of the ordinary officers of justice suits in which the administration of the State had an interest. The registers of the Council are full of minutes of evocation of this nature. By degrees the exception became the rule, and a theory was invented to justify the fact. It came to be regarded as a maxim of state, not in the laws of France, but in the minds of those by whom those laws were applied, that all suits in which a public interest was involved, or which arose out of the construction to be put on any act of the administration, were not within the competency of the ordinary judges, whose only business it was to decide between private interests. On this point we, in more recent times, have only added a mode of expression; the idea had preceded the Revolution of 1789. Already at that time most of the disputed questions which arose out of the collection of the revenue were held to fall under the exclusive jurisdiction of the Intendant and the King’s Council. So, too, with reference to the regulation of public waggons and stage-coaches, drainage, the navigation of rivers, etc.; and in general all the suits in which the public authorities were interested came to be disposed of by administrative tribunals only. The Intendants took the greatest care that this exceptional jurisdiction should be continually extended. They urged on the Comptroller-General, and stimulated the Council. The reason one of these officers assigned to induce the Council to call up one of these suits deserves to be remembered. ‘An ordinary judge,’ said he, ‘is subject to fixed rules, which compel him to punish any transgression of the law; but the Council can always set aside rules for a useful purpose.’ On this principle, it often happened that the Intendant or the Council called up to their own jurisdiction suits which had an almost imperceptible connection with any subject of administrative interest, or even which had no perceptible connection with such questions at all. A country gentleman quarrels with his neighbour, and being dissatisfied with the apparent disposition of his judges, he asks the Council to evoke his cause. The Intendant reports that, ‘although this is a case solely affecting private rights, which fall under the cognisance of the courts of justice, yet that his Majesty can always, when he pleases, reserve to himself the decision of any suit whatever, without rendering any account at all of his motives.’
注释摘要
托克维尔在这一段里解剖的，是旧制度司法体系中最具侵蚀性的一种程序：调卷。这个词本身听起来不过是把案子从一个法院提到另一个法院，但它的运作逻辑直接通向行政权对司法权的系统置换。他所描述的场景发生在那些较早的法律和习惯里——当时的立法者还没有来得及在每一条新法令末尾加上那句标准附录，把一切争议预先划给总督和御前会议。面对这些漏网之鱼，御前会议并不坐等立法补丁，…