democracy in america-1-第19章
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The revolution of the United States was the result of a mature and dignified taste for freedom； and not of a vague or ill…defined craving for independence。 It contracted no alliance with the turbulent passions of anarchy； but its course was marked； on the contrary； by an attachment to whatever was lawful and orderly。
It was never assumed in the United States that the citizen of a free country has a right to do whatever he pleases； on the contrary； social obligations were there imposed upon him more various than anywhere else。 No idea was ever entertained of attacking the principles or of contesting the rights of society； but the exercise of its authority was divided； to the end that the office might be powerful and the officer insignificant； and that the community should be at once regulated and free。 In no country in the world does the law hold so absolute a language as in America； and in no country is the right of applying it vested in so many hands。 The administrative power in the United States presents nothing either central or hierarchical in its constitution； which accounts for its passing； unperceived。 The power exists； but its representative is not to be perceived。
We have already seen that the independent townships of New England protect their own private interests； and the municipal magistrates are the persons to whom the execution of the laws of the State is most frequently entrusted。 *i Besides the general laws； the State sometimes passes general police regulations； but more commonly the townships and town officers； conjointly with justices of the peace； regulate the minor details of social life； according to the necessities of the different localities； and promulgate such enactments as concern the health of the community； and the peace as well as morality of the citizens。 *j Lastly； these municipal magistrates provide； of their own accord and without any delegated powers； for those unforeseen emergencies which frequently occur in society。 *k
＇Footnote i： See 〃The Town…Officer；〃 especially at the words Selectmen； Assessors； Collectors； Schools； Surveyors of Highways。 I take one example in a thousand： the State prohibits travelling on the Sunday； the tything…men； who are town…officers； are specially charged to keep watch and to execute the law。 See the Laws of Massachusetts； vol。 i。 p。 410。
The selectmen draw up the lists of electors for the election of the Governor； and transmit the result of the ballot to the Secretary of the State。 See Act of February 24； 1796： Id。； vol。 i。 p。 488。＇
＇Footnote j： Thus； for instance； the selectmen authorize the construction of drains； point out the proper sites for slaughter… houses and other trades which are a nuisance to the neighborhood。 See the Act of June 7； 1785： Id。； vol。 i。 p。 193。＇
＇Footnote k： The selectmen take measures for the security of the public in case of contagious diseases； conjointly with the justices of the peace。 See Act of June 22； 1797； vol。 i。 p。 539。＇
It results from what we have said that in the State of Massachusetts the administrative authority is almost entirely restricted to the township； *l but that it is distributed among a great number of individuals。 In the French commune there is properly but one official functionary； namely； the Maire； and in New England we have seen that there are nineteen。 These nineteen functionaries do not in general depend upon one another。 The law carefully prescribes a circle of action to each of these magistrates； and within that circle they have an entire right to perform their functions independently of any other authority。 Above the township scarcely any trace of a series of official dignitaries is to be found。 It sometimes happens that the county officers alter a decision of the townships or town magistrates； *m but in general the authorities of the county have no right to interfere with the authorities of the township； *n except in such matters as concern the county。
＇Footnote l： I say almost； for there are various circumstances in the annals of a township which are regulated by the justice of the peace in his individual capacity； or by the justices of the peace assembled in the chief town of the county； thus licenses are granted by the justices。 See the Act of February 28； 1787； vol。 i。 p。 297。＇
＇Footnote m： Thus licenses are only granted to such persons as can produce a certificate of good conduct from the selectmen。 If the selectmen refuse to give the certificate； the party may appeal to the justices assembled in the Court of Sessions； and they may grant the license。 See Act of March 12； 1808； vol。 ii。 p。 186。
The townships have the right to make by…laws； and to enforce them by fines which are fixed by law； but these by…laws must be approved by the Court of Sessions。 See Act of March 23； 1786； vol。 i。 p。 254。＇
＇Footnote n： In Massachusetts the county magistrates are frequently called upon to investigate the acts of the town magistrates； but it will be shown further on that this investigation is a consequence； not of their administrative； but of their judicial power。＇
The magistrates of the township； as well as those of the county； are bound to communicate their acts to the central government in a very small number of predetermined cases。 *o But the central government is not represented by an individual whose business it is to publish police regulations and ordinances enforcing the execution of the laws； to keep up a regular communication with the officers of the township and the county； to inspect their conduct； to direct their actions； or to reprimand their faults。 There is no point which serves as a centre to the radii of the administration。
＇Footnote o： The town committees of schools are obliged to make an annual report to the Secretary of the State on the condition of the school。 See Act of March 10； 1827； vol。 iii。 p。 183。＇
Chapter V： Necessity Of Examining The Condition Of The States … Part II
What； then； is the uniform plan on which the government is conducted； and how is the compliance of the counties and their magistrates or the townships and their officers enforced？ In the States of New England the legislative authority embraces more subjects than it does in France； the legislator penetrates to the very core of the administration； the law descends to the most minute details； the same enactment prescribes the principle and the method of its application； and thus imposes a multitude of strict and rigorously defined obligations on the secondary functionaries of the State。 The consequence of this is that if all the secondary functionaries of the administration conform to the law； society in all its branches proceeds with the greatest uniformity： the difficulty remains of compelling the secondary functionaries of the administration to conform to the law。 It may be affirmed that； in general； society has only two methods of enforcing the execution of the laws at its disposal： a discretionary power may be entrusted to a superior functionary of directing all the others； and of cashiering them in case of disobedience； or the courts of justice may be authorized to inflict judicial penalties on the offender： but these two methods are not always available。
The right of directing a civil officer presupposes that of cashiering him if he does not obey orders； and of rewarding him by promotion if he fulfils his duties with propriety。 But an elected magistrate can neither be cashiered nor promoted。 All elective functions are inalienable until their term is expired。 In fact； the elected magistrate has nothing either to expect or to fear from his constituents； and when all public offices are filled by ballot there can be no series of official dignities； because the double right of commanding and of enforcing obedience can never be vested in the same individual； and because the power of issuing an order can never be joined to that of inflicting a punishment or bestowing a reward。
The communities therefore in which the secondary functionaries of the government are elected are perforce obliged to make great use of judicial penalties as a means of administration。 This is not evident at first sight； for those in power are apt to look upon the institution of elective functionaries as one concession； and the subjection of the elected magistrate to the judges of the land as another。 They are equally averse to both these innovations； and as they are more pressingly solicited to grant the former than the latter； they accede to the election of the magistrate； and leave him independent of the judicial power。 Nevertheless； the second of these measures is the only thing that can possibly counterbalance the first； and it will be found that an elective authority which is not subject to judicial power will； sooner or later； either elude all control or be destroyed。 The courts of justice are the only possible medium between the central power and the administrative bodies； they alone can compel the elected functionary to obey； without violating the rights of the elector。 The extension of judicial power in the political world ought therefore to be in the exact ratio of the extension of elective offices： if these two institutions do not go hand in hand； the State must fall into anarchy or into subjection。
It has always been remarked that habits of legal business do not render men apt to the exercise of administrative authority。 The Americans have borrowed from the English； their fathers； the idea of an institution which is unknown upon the continent of Europe： I allude to that of the Justices of the Peace。 The Justice of the Peace is a sort of mezzo termine between the magistrate and the man of the world； between the civil officer and the judge。 A justice of the peace is a well…informed citizen； though he is not necessarily versed in the knowledge of the laws。 His office simply obliges him to execute the police regulations of society； a task in which good sense and integrity are of more avail than legal science。 The justice introduces into the administration a certain taste for established forms and publicity； which renders him a most unserviceable instrument of despotism； and； on the other hand； he is not blinded by those superstitions which render legal officers unfit members of a government。 The Americans have adopted the system of the English justices of the peace； but they have deprived it of that aristocratic character which is discernible in the mother…country。 The Governor of Massachusetts *p appoints a certain number of justices of the peace in every county； whose functions last seven years。 *q He further designates three individuals from amongst the whole body of justices who form in each county what is called the Court of Sessions。 The justices take a personal share in public business； they are sometimes entrusted with administrative functions in conjunction with elected officers； *r they sometimes constitute a tribunal； before which the magistrates summarily prosecute a refractory citizen； or the citizens inform against the abuses of the magistrate。 But it is in the Court of Sessions that they exercise their most important functions。 This court meets twice a year in the county town； in Massachusetts it is empowered to enforce the obedience of the greater n
