h 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 omissi