按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
＇Footnote p： We shall hereafter learn what a Governor is： I shall content myself with remarking in this place that he represents the executive power of the whole State。＇
＇Footnote q： See the Constitution of Massachusetts； chap。 II。 sect。 1。 Section 9； chap。 III。 Section 3。＇
＇Footnote r： Thus； for example； a stranger arrives in a township from a country where a contagious disease prevails； and he falls ill。 Two justices of the peace can； with the assent of the selectmen； order the sheriff of the county to remove and take care of him。 … Act of June 22； 1797； vol。 i。 p。 540。
In general the justices interfere in all the important acts of the administration； and give them a semi…judicial character。＇ ＇Footnote s： I say the greater number； because certain administrative misdemeanors are brought before ordinary tribunals。 If； for instance； a township refuses to make the necessary expenditure for its schools or to name a school…committee； it is liable to a heavy fine。 But this penalty is pronounced by the Supreme Judicial Court or the Court of Common Pleas。 See Act of March 10； 1827； Laws of Massachusetts； vol。 iii。 p。 190。 Or when a township neglects to provide the necessary war…stores。 … Act of February 21； 1822： Id。； vol。 ii。 p。 570。＇
＇Footnote t： In their individual capacity the justices of the peace take a part in the business of the counties and townships。＇ ＇Footnote u： These affairs may be brought under the following heads： … 1。 The erection of prisons and courts of justice。 2。 The county budget； which is afterwards voted by the State。 3。 The distribution of the taxes so voted。 4。 Grants of certain patents。 5。 The laying down and repairs of the country roads。＇
＇Footnote v： Thus； when a road is under consideration； almost all difficulties are disposed of by the aid of the jury。＇
The first difficulty is to procure the obedience of an authority as entirely independent of the general laws of the State as the township is。 We have stated that assessors are annually named by the town…meetings to levy the taxes。 If a township attempts to evade the payment of the taxes by neglecting to name its assessors； the Court of Sessions condemns it to a heavy penalty。 *w The fine is levied on each of the inhabitants； and the sheriff of the county； who is the officer of justice； executes the mandate。 Thus it is that in the United States the authority of the Government is mysteriously concealed under the forms of a judicial sentence； and its influence is at the same time fortified by that irresistible power with which men have invested the formalities of law。
＇Footnote w： See Act of February 20； 1786； Laws of Massachusetts； vol。 i。 p。 217。＇
These proceedings are easy to follow and to understand。 The demands made upon a township are in general plain and accurately defined； they consist in a simple fact without any complication； or in a principle without its application in detail。 *x But the difficulty increases when it is not the obedience of the township； but that of the town officers which is to be enforced。 All the reprehensible actions of which a public functionary may be guilty are reducible to the following heads：
＇Footnote x： There is an indirect method of enforcing the obedience of a township。 Suppose that the funds which the law demands for the maintenance of the roads have not been voted； the town surveyor is then authorized； ex officio； to levy the supplies。 As he is personally responsible to private individuals for the state of the roads； and indictable before the Court of Sessions； he is sure to employ the extraordinary right which the law gives him against the township。 Thus by threatening the officer the Court of Sessions exacts compliance from the town。 See Act of March 5； 1787； Id。； vol。 i。 p。 305。＇
He may execute the law without energy or zeal；
He may neglect to execute the law；
He may do what the law enjoins him not to do。
The last two violations of duty can alone come under the cognizance of a tribunal； a positive and appreciable fact is the indispensable foundation of an action at law。 Thus； if the selectmen omit to fulfil the legal formalities usual at town elections； they may be condemned to pay a fine； *y but when the public officer performs his duty without ability； and when he obeys the letter of the law without zeal or energy； he is at least beyond the reach of judicial interference。 The Court of Sessions； even when it is invested with its official powers； is in this case unable to compel him to a more satisfactory obedience。 The fear of removal is the only check to these quasi…offences； and as the Court of Sessions does not originate the town authorities； it cannot remove functionaries whom it does not appoint。 Moreover； a perpetual investigation would be necessary to convict the officer of negligence or lukewarmness； and the Court of Sessions sits but twice a year and then only judges such offences as are brought before its notice。 The only security of that active and enlightened obedience which a court of justice cannot impose upon public officers lies in the possibility of their arbitrary removal。 In France this security is sought for in powers exercised by the heads of the administration； in America it is sought for in the principle of election。
＇Footnote y： Laws of Massachusetts； vol。 ii。 p。 45。＇
Thus； to recapitulate in a few words what I have been showing： If a public officer in New England commits a crime in the exercise of his functions； the ordinary courts of justice are always called upon to pass sentence upon him。 If he commits a fault in his official capacity； a purely administrative tribunal is empowered to punish him； and； if the affair is important or urgent； the judge supplies the omission of the functionary。 *z Lastly； if the same individual is guilty of one of those intangible offences of which human justice has no cognizance； he annually appears before a tribunal from which there is no appeal； which can at once reduce him to insignificance and deprive him of his charge。 This system undoubtedly possesses great advantages； but its execution is attended with a practical difficulty which it is important to point out。
＇Footnote z： If； for instance； a township persists in refusing to name its assessors； the Court of Sessions nominates them； and the magistrates thus appointed are invested with the same authority as elected officers。 See the Act quoted above； February 20； 1787。＇
I have already observed that the administrative tribunal； which is called the Court of Sessions； has no right of inspection over the town officers。 It can only interfere when the conduct of a magistrate is specially brought under its notice； and this is the delicate part of the system。 The Americans of New England are unacquainted with the office of public prosecutor in the Court of Sessions； *a and it may readily be perceived that it could not have been established without difficulty。 If an accusing magistrate had merely been appointed in the chief town of each county； and if he had been unassisted by agents in the townships； he would not have been better acquainted with what was going on in the county than the members of the Court of Sessions。 But to appoi