American Institutions and Their Influence. Alexis de Tocqueville

---

Скачать книгу

---

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 elective 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 counter-balance 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 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 English justices of the peace, but they have deprived it of that aristocratic character which is discernible in the mother-country. The governor of Massachusetts80 appoints a certain number of justices of the peace in every county, whose functions last seven years.81 He farther designates three individuals from among 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 intrusted with administrative functions in conjunction with elected officers;82 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 number83 of public officers.84 It must be observed that in the state of Massachusetts the court of sessions is at the same time an administrative body, properly so called, and a political tribunal. It has been asserted that the county is a purely administrative division. The court of sessions presides over that small number of affairs which, as they concern several townships, or all the townships of the county in common, cannot be intrusted to any of them in particular.85

      In all that concerns county business, the duties of the court of sessions are therefore purely administrative; and if in its investigations it occasionally borrows the forms of judicial procedure, it is only with a view to its own information,86 or as a guarantee to the community over which it presides. But when the administration of the township is brought before it, it almost always acts as a judicial body, and in some few cases as an administrative assembly.

      The first difficulty is to procure the obedience of an authority so 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.87 The fine is levied on each of the inhabitants; and the sheriff of the county, who is an 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 the influence is at the same time fortified by that irresistible power with which men have invested the formalities of law.

      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.88 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:

      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 to town elections, they may be condemned to pay a fine;89 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 administrative 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 subordinate 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 for 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.

      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.90

      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.

      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

---

Скачать книгу