《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4节
Amongst the nine or ten constitutions which have been established in perpetuity in France within the last sixty years, there is one in which it was expressly provided that no agent of the administration can be prosecuted before the ordinary courts of law without having previously obtained the assent of the Government to such a prosecution. This clause appeared to be so well devised that when the constitution to which it belonged was destroyed, this provision was saved from the wreck, and it has ever since been carefully preserved from the injuries of revolutions. The administrative body still calls the privilege secured to them by this article one of the great conquests of 1789; but in this they are mistaken, for under the old monarchy the Government was not less solicitous than it is in our own times to spare its officers the unpleasantness of rendering an account in a court of law, like any other private citizens. The only essential difference between the two periods is this: before the Revolution the Government could only shelter its agents by having recourse to illegal and arbitrary measures; since the Revolution it can legally allow them to violate the laws. When the ordinary tribunals of the old monarchy allowed proceedings to be instituted against any officer representing the central authority of the Government, an Order in Council usually intervened to withdraw the accused person from the jurisdiction of his judges, and to arraign him before commissioners named by the Council; for, as was said by a councillor of state of that time, a public officer thus attacked would have had to encounter an adverse prepossession in the minds of the ordinary judges, and the authority of the King would have been compromised. This sort of interference occurred not only at long intervals, but every day--not only with reference to the chief agents of the Government, but to the least. The slightest thread of a connection with the administration sufficed to relieve an officer from all other control. A mounted overseer of the Board of Public Works, whose business was to direct the forced labour of the peasantry, was prosecuted by a peasant whom he had ill-treated. The Council evoked the cause, and the chief engineer of the district, writing confidentially to the Intendant, said on this subject: ‘It is quite true that the overseer is greatly to blame, but that is not a reason for allowing the case to follow the ordinary jurisdiction; for it is of the utmost importance to the Board of Works that the courts of common law should not hear or decide on the complaints of the peasants engaged in forced labour against the overseers of these works. If this precedent were followed, those works would be disturbed by continual litigation, arising out of the animosity of the public against the officers of the Government.’
注释摘要
在这一段里，托克维尔提出一个极具反讽意味的判断：行政机构自鸣得意地把官员起诉需经政府事先同意这一条款称为“1789年的伟大成果”，但在托克维尔看来，这恰恰不是大革命的新发明，而是旧制度实践在革命后获得的合法外衣。他点出的要害在于形式与实质的断裂。旧制度下的政府同样急于让官员免受普通法庭的传唤与审判，只不过它只能靠一纸御前会议的调案令，把案子从法官手中抽走，…