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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 dependant upon the crown: they cannot therefore be said to depend on either the 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.
[The observations respecting the arbitrary powers of magistrates are practically among the most erroneous in the work. The author seems to have confounded the idea of magistrates being independent with their being arbitrary. Yet he had just before spoken of their dependance on popular election as a reason why there was no apprehension of the abuse of their authority. The independence then to which he alludes must be an immunity from responsibility to any other department. But it is a fundamental principle of our system, that all officers are liable to criminal prosecution “whenever they act partially or oppressively from a malicious or corrupt motive.” See 15 Wendell's Reports, 278. That our magistrates are independent when they do not act partially or oppressively is very true, and it is to be hoped, is equally true in every form of government. There would seem, therefore, not to be such a degree of independence as necessarily to produce arbitrariness. The author supposes that magistrates are more arbitrary in a despotism and in a democracy than in a limited monarchy. And yet, the limits of independence and of responsibility existing in the United States are borrowed from and identical with those established in England—the most prominent instance of a limited monarchy. See the authorities referred to in the case in Wendell's Reports, before quoted. Discretion in the execution of various ministerial duties, and in the awarding of punishment by judicial officers, is indispensable in every system of government, from the utter impossibility of “laying down beforehand a line of conduct” (as the author expresses it) in such cases. The very instances of discretionary power to which he refers, and which he considers arbitrary, exist in England. There, the persons from whom juries are to be formed for the trial of causes civil and criminal, are selected by the sheriffs, who are appointed by the crown—a power, certainly more liable to abuse in their hands, than in those of selectmen or other town-officers, chosen annually by the people. The other power referred to, that of posting the names of habitual drunkards, and forbidding their being supplied with liquor, is but a reiteration of the principles contained in the English statute of 32 Geo. III. ch. 45, respecting idle and
