In New England, for instance, the selectmen of each
township are bound to draw up the list of persons
who are to serve on the jury; the only rule which
is laid down to guide them in their choice is that
they are to select citizens possessing the elective
franchise and enjoying a fair reputation. b In
France the lives and liberties of the subjects would
be thought to be in danger if a public officer of any
kind was entrusted with so formidable a right.
In New England the same magistrates are empowered
to post the names of habitual drunkards in public-houses,
and to prohibit the inhabitants of a town from supplying
them with liquor. c A censorial power of this
excessive kind would be revolting to the population
of the most absolute monarchies; here, however, it
is submitted to without difficulty.
[Footnote b: See the Act of February 27, 1813.
“General Collection of the Laws of Massachusetts,”
vol. ii. p. 331. It should be added that the
jurors are afterwards drawn from these lists by lot.]
[Footnote c: See Act of February 28, 1787.
“General Collection of the Laws of Massachusetts,”
vol. i. p. 302.]
Nowhere has so much been left by the law to the arbitrary
determination of the magistrate as in democratic republics,
because this arbitrary power is unattended by any
alarming consequences. It may even be asserted
that the freedom of the magistrate increases as the
elective franchise is extended, and as the duration
of the time of office is shortened. Hence arises
the great difficulty which attends the conversion
of a democratic republic into a monarchy. The
magistrate ceases to be elective, but he retains the
rights and the habits of an elected officer, which
lead directly to despotism.
It is only in limited monarchies that the law, which
prescribes the sphere in which public officers are
to act, superintends all their measures. The
cause of this may be easily detected. In limited
monarchies the power is divided between the King and
the people, both of whom are interested in the stability
of the magistrate. The King does not venture
to place the public officers under the control of the
people, lest they should be tempted to betray his interests;
on the other hand, the people fears lest the magistrates
should serve to oppress the liberties of the country,
if they were entirely dependent upon the Crown; they
cannot therefore be said to depend on either one or
the other. The same cause which induces the king
and the people to render public officers independent
suggests the necessity of such securities as may prevent
their independence from encroaching upon the authority
of the former and the liberties of the latter.
They consequently agree as to the necessity of restricting
the functionary to a line of conduct laid down beforehand,
and they are interested in confining him by certain
regulations which he cannot evade.
Chapter XIII: Government Of The Democracy In America—Part II
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Democracy in America — Volume 1 from Project Gutenberg. Public domain.
