Democracy in America Vol 1 Part 3

In some countries a power exists which, though it is in a degree foreign to the social body, directs it, and forces it to pursue a certain track. In others the ruling force is divided, being partly within and partly without the ranks of the people. But nothing of the kind is to be seen in the United States; there society governs itself for itself. All power centres in its bosom; and scarcely an individual is to be meet with who would venture to conceive, or, still less, to express, the idea of seeking it elsewhere. The nation partic.i.p.ates in the making of its laws by the choice of its legislators, and in the execution of them by the choice of the agents of the executive government; it may almost be said to govern itself, so feeble and so restricted is the share left to the administration, so little do the authorities forget their popular origin and the power from which they emanate. *a [Footnote a: See Appendix, H.]

Chapter V: Necessity Of Examining The Condition Of The States-Part I

Necessity Of Examining The Condition Of The States Before That Of The Union At Large.

It is proposed to examine in the following chapter what is the form of government established in America on the principle of the sovereignty of the people; what are its resources, its hindrances, its advantages, and its dangers. The first difficulty which presents itself arises from the complex nature of the const.i.tution of the United States, which consists of two distinct social structures, connected and, as it were, encased one within the other; two governments, completely separate and almost independent, the one fulfilling the ordinary duties and responding to the daily and indefinite calls of a community, the other circ.u.mscribed within certain limits, and only exercising an exceptional authority over the general interests of the country. In short, there are twenty-four small sovereign nations, whose agglomeration const.i.tutes the body of the Union. To examine the Union before we have studied the States would be to adopt a method filled with obstacles. The form of the Federal Government of the United States was the last which was adopted; and it is in fact nothing more than a modification or a summary of those republican principles which were current in the whole community before it existed, and independently of its existence. Moreover, the Federal Government is, as I have just observed, the exception; the Government of the States is the rule. The author who should attempt to exhibit the picture as a whole before he had explained its details would necessarily fall into obscurity and repet.i.tion.

The great political principles which govern American society at this day undoubtedly took their origin and their growth in the State. It is therefore necessary to become acquainted with the State in order to possess a clue to the remainder. The States which at present compose the American Union all present the same features, as far as regards the external aspect of their inst.i.tutions. Their political or administrative existence is centred in three focuses of action, which may not inaptly be compared to the different nervous centres which convey motion to the human body. The township is the lowest in order, then the county, and lastly the State; and I propose to devote the following chapter to the examination of these three divisions.

The American System Of Townships And Munic.i.p.al Bodies Why the Author begins the examination of the political inst.i.tutions with the township-Its existence in all nations-Difficulty of establishing and preserving munic.i.p.al independence-Its importance-Why the Author has selected the township system of New England as the main topic of his discussion.

It is not undesignedly that I begin this subject with the Township. The village or township is the only a.s.sociation which is so perfectly natural that wherever a number of men are collected it seems to const.i.tute itself.

The town, or t.i.thing, as the smallest division of a community, must necessarily exist in all nations, whatever their laws and customs may be: if man makes monarchies and establishes republics, the first a.s.sociation of mankind seems const.i.tuted by the hand of G.o.d. But although the existence of the township is coeval with that of man, its liberties are not the less rarely respected and easily destroyed. A nation is always able to establish great political a.s.semblies, because it habitually contains a certain number of individuals fitted by their talents, if not by their habits, for the direction of affairs. The township is, on the contrary, composed of coa.r.s.er materials, which are less easily fashioned by the legislator. The difficulties which attend the consolidation of its independence rather augment than diminish with the increasing enlightenment of the people. A highly civilized community spurns the attempts of a local independence, is disgusted at its numerous blunders, and is apt to despair of success before the experiment is completed. Again, no immunities are so ill protected from the encroachments of the supreme power as those of munic.i.p.al bodies in general: they are unable to struggle, single-handed, against a strong or an enterprising government, and they cannot defend their cause with success unless it be identified with the customs of the nation and supported by public opinion. Thus until the independence of townships is amalgamated with the manners of a people it is easily destroyed, and it is only after a long existence in the laws that it can be thus amalgamated. Munic.i.p.al freedom is not the fruit of human device; it is rarely created; but it is, as it were, secretly and spontaneously engendered in the midst of a semi-barbarous state of society. The constant action of the laws and the national habits, peculiar circ.u.mstances, and above all time, may consolidate it; but there is certainly no nation on the continent of Europe which has experienced its advantages. Nevertheless local a.s.semblies of citizens const.i.tute the strength of free nations. Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of munic.i.p.al inst.i.tutions it cannot have the spirit of liberty. The transient pa.s.sions and the interests of an hour, or the chance of circ.u.mstances, may have created the external forms of independence; but the despotic tendency which has been repelled will, sooner or later, inevitably reappear on the surface.

In order to explain to the reader the general principles on which the political organization of the counties and townships of the United States rests, I have thought it expedient to choose one of the States of New England as an example, to examine the mechanism of its const.i.tution, and then to cast a general glance over the country. The township and the county are not organized in the same manner in every part of the Union; it is, however, easy to perceive that the same principles have guided the formation of both of them throughout the Union. I am inclined to believe that these principles have been carried further in New England than elsewhere, and consequently that they offer greater facilities to the observations of a stranger. The inst.i.tutions of New England form a complete and regular whole; they have received the sanction of time, they have the support of the laws, and the still stronger support of the manners of the community, over which they exercise the most prodigious influence; they consequently deserve our attention on every account.

Limits Of The Township The township of New England is a division which stands between the commune and the canton of France, and which corresponds in general to the English t.i.thing, or town. Its average population is from two to three thousand; *a so that, on the one hand, the interests of its inhabitants are not likely to conflict, and, on the other, men capable of conducting its affairs are always to be found among its citizens.

a [ In 1830 there were 305 townships in the State of Ma.s.sachusetts, and 610,014 inhabitants, which gives an average of about 2,000 inhabitants to each township.]

Authorities Of The Township In New England The people the source of all power here as elsewhere-Manages its own affairs-No corporation-The greater part of the authority vested in the hands of the Selectmen-How the Selectmen act-Town-meeting-Enumeration of the public officers of the township-Obligatory and remunerated functions.

In the township, as well as everywhere else, the people is the only source of power; but in no stage of government does the body of citizens exercise a more immediate influence. In America the people is a master whose exigencies demand obedience to the utmost limits of possibility.

In New England the majority acts by representatives in the conduct of the public business of the State; but if such an arrangement be necessary in general affairs, in the townships, where the legislative and administrative action of the government is in more immediate contact with the subject, the system of representation is not adopted. There is no corporation; but the body of electors, after having designated its magistrates, directs them in everything that exceeds the simple and ordinary executive business of the State. *b b [ The same rules are not applicable to the great towns, which generally have a mayor, and a corporation divided into two bodies; this, however, is an exception which requires the sanction of a law.-See the Act of February 22, 1822, for appointing the authorities of the city of Boston. It frequently happens that small towns as well as cities are subject to a peculiar administration. In 1832, 104 townships in the State of New York were governed in this manner.-Williams' Register.]

This state of things is so contrary to our ideas, and so different from our customs, that it is necessary for me to adduce some examples to explain it thoroughly.

The public duties in the township are extremely numerous and minutely divided, as we shall see further on; but the larger proportion of administrative power is vested in the hands of a small number of individuals, called "the Selectmen." *c The general laws of the State impose a certain number of obligations on the selectmen, which they may fulfil without the authorization of the body they represent, but which they can only neglect on their own responsibility. The law of the State obliges them, for instance, to draw up the list of electors in their townships; and if they omit this part of their functions, they are guilty of a misdemeanor. In all the affairs, however, which are determined by the town-meeting, the selectmen are the organs of the popular mandate, as in France the Maire executes the decree of the munic.i.p.al council. They usually act upon their own responsibility, and merely put in practice principles which have been previously recognized by the majority. But if any change is to be introduced in the existing state of things, or if they wish to undertake any new enterprise, they are obliged to refer to the source of their power. If, for instance, a school is to be established, the selectmen convoke the whole body of the electors on a certain day at an appointed place; they explain the urgency of the case; they give their opinion on the means of satisfying it, on the probable expense, and the site which seems to be most favorable. The meeting is consulted on these several points; it adopts the principle, marks out the site, votes the rate, and confides the execution of its resolution to the selectmen.

c [ Three selectmen are appointed in the small townships, and nine in the large ones. See "The Town-Officer," p. 186. See also the princ.i.p.al laws of the State of Ma.s.sachusetts relative to the selectmen: Act of February 20, 1786, vol. i. p. 219; February 24, 1796, vol. i. p. 488; March 7, 1801, vol. ii. p. 45; June 16, 1795, vol. i. p. 475; March 12, 1808, vol. ii. p. 186; February 28, 1787, vol. i. p. 302; June 22, 1797, vol. i. p. 539.]

The selectmen have alone the right of calling a town-meeting, but they may be requested to do so: if ten citizens are desirous of submitting a new project to the a.s.sent of the township, they may demand a general convocation of the inhabitants; the selectmen are obliged to comply, but they have only the right of presiding at the meeting. *d d [ See Laws of Ma.s.sachusetts, vol. i. p. 150, Act of March 25, 1786.]

The selectmen are elected every year in the month of April or of May. The town-meeting chooses at the same time a number of other munic.i.p.al magistrates, who are entrusted with important administrative functions. The a.s.sessors rate the township; the collectors receive the rate. A constable is appointed to keep the peace, to watch the streets, and to forward the execution of the laws; the town-clerk records all the town votes, orders, grants, births, deaths, and marriages; the treasurer keeps the funds; the overseer of the poor performs the difficult task of superintending the action of the poor-laws; committee-men are appointed to attend to the schools and to public instruction; and the road-surveyors, who take care of the greater and lesser thoroughfares of the township, complete the list of the princ.i.p.al functionaries. They are, however, still further subdivided; and amongst the munic.i.p.al officers are to be found parish commissioners, who audit the expenses of public worship; different cla.s.ses of inspectors, some of whom are to direct the citizens in case of fire; t.i.thing-men, listers, haywards, chimney-viewers, fence-viewers to maintain the bounds of property, timber-measurers, and sealers of weights and measures. *e e [ All these magistrates actually exist; their different functions are all detailed in a book called "The Town-Officer," by Isaac Goodwin, Worcester, 1827; and in the "Collection of the General Laws of Ma.s.sachusetts," 3 vols., Boston, 1823.]

There are nineteen princ.i.p.al officers in a township. Every inhabitant is constrained, on the pain of being fined, to undertake these different functions; which, however, are almost all paid, in order that the poorer citizens may be able to give up their time without loss. In general the American system is not to grant a fixed salary to its functionaries. Every service has its price, and they are remunerated in proportion to what they have done.

Existence Of The Township Every one the best judge of his own interest-Corollary of the principle of the sovereignty of the people-Application of those doctrines in the townships of America-The township of New England is sovereign in all that concerns itself alone: subject to the State in all other matters-Bond of the township and the State-In France the Government lends its agent to the Commune-In America the reverse occurs.

I have already observed that the principle of the sovereignty of the people governs the whole political system of the Anglo-Americans. Every page of this book will afford new instances of the same doctrine. In the nations by which the sovereignty of the people is recognized every individual possesses an equal share of power, and partic.i.p.ates alike in the government of the State. Every individual is, therefore, supposed to be as well informed, as virtuous, and as strong as any of his fellow-citizens. He obeys the government, not because he is inferior to the authorities which conduct it, or that he is less capable than his neighbor of governing himself, but because he acknowledges the utility of an a.s.sociation with his fellow-men, and because he knows that no such a.s.sociation can exist without a regulating force. If he be a subject in all that concerns the mutual relations of citizens, he is free and responsible to G.o.d alone for all that concerns himself. Hence arises the maxim that every one is the best and the sole judge of his own private interest, and that society has no right to control a man's actions, unless they are prejudicial to the common weal, or unless the common weal demands his co-operation. This doctrine is universally admitted in the United States. I shall hereafter examine the general influence which it exercises on the ordinary actions of life; I am now speaking of the nature of munic.i.p.al bodies.

The township, taken as a whole, and in relation to the government of the country, may be looked upon as an individual to whom the theory I have just alluded to is applied. Munic.i.p.al independence is therefore a natural consequence of the principle of the sovereignty of the people in the United States: all the American republics recognize it more or less; but circ.u.mstances have peculiarly favored its growth in New England.

In this part of the Union the impulsion of political activity was given in the townships; and it may almost be said that each of them originally formed an independent nation. When the Kings of England a.s.serted their supremacy, they were contented to a.s.sume the central power of the State. The townships of New England remained as they were before; and although they are now subject to the State, they were at first scarcely dependent upon it. It is important to remember that they have not been invested with privileges, but that they have, on the contrary, forfeited a portion of their independence to the State. The townships are only subordinate to the State in those interests which I shall term social, as they are common to all the citizens. They are independent in all that concerns themselves; and amongst the inhabitants of New England I believe that not a man is to be found who would acknowledge that the State has any right to interfere in their local interests. The towns of New England buy and sell, sue or are sued, augment or diminish their rates, without the slightest opposition on the part of the administrative authority of the State.

They are bound, however, to comply with the demands of the community. If the State is in need of money, a town can neither give nor withhold the supplies. If the State projects a road, the township cannot refuse to let it cross its territory; if a police regulation is made by the State, it must be enforced by the town. A uniform system of instruction is organized all over the country, and every town is bound to establish the schools which the law ordains. In speaking of the administration of the United States I shall have occasion to point out the means by which the townships are compelled to obey in these different cases: I here merely show the existence of the obligation. Strict as this obligation is, the government of the State imposes it in principle only, and in its performance the township resumes all its independent rights. Thus, taxes are voted by the State, but they are levied and collected by the township; the existence of a school is obligatory, but the township builds, pays, and superintends it. In France the State-collector receives the local imposts; in America the town-collector receives the taxes of the State. Thus the French Government lends its agents to the commune; in America the township is the agent of the Government. This fact alone shows the extent of the differences which exist between the two nations.

Public Spirit Of The Townships Of New England How the township of New England wins the affections of its inhabitants-Difficulty of creating local public spirit in Europe-The rights and duties of the American township favorable to it-Characteristics of home in the United States-Manifestations of public spirit in New England-Its happy effects.

In America, not only do munic.i.p.al bodies exist, but they are kept alive and supported by public spirit. The township of New England possesses two advantages which infallibly secure the attentive interest of mankind, namely, independence and authority. Its sphere is indeed small and limited, but within that sphere its action is unrestrained; and its independence gives to it a real importance which its extent and population may not always ensure.

It is to be remembered that the affections of men generally lie on the side of authority. Patriotism is not durable in a conquered nation. The New Englander is attached to his township, not only because he was born in it, but because it const.i.tutes a social body of which he is a member, and whose government claims and deserves the exercise of his sagacity. In Europe the absence of local public spirit is a frequent subject of regret to those who are in power; everyone agrees that there is no surer guarantee of order and tranquility, and yet nothing is more difficult to create. If the munic.i.p.al bodies were made powerful and independent, the authorities of the nation might be disunited and the peace of the country endangered. Yet, without power and independence, a town may contain good subjects, but it can have no active citizens. Another important fact is that the township of New England is so const.i.tuted as to excite the warmest of human affections, without arousing the ambitious pa.s.sions of the heart of man. The officers of the country are not elected, and their authority is very limited. Even the State is only a second-rate community, whose tranquil and obscure administration offers no inducement sufficient to draw men away from the circle of their interests into the turmoil of public affairs. The federal government confers power and honor on the men who conduct it; but these individuals can never be very numerous. The high station of the Presidency can only be reached at an advanced period of life, and the other federal functionaries are generally men who have been favored by fortune, or distinguished in some other career. Such cannot be the permanent aim of the ambitious. But the township serves as a centre for the desire of public esteem, the want of exciting interests, and the taste for authority and popularity, in the midst of the ordinary relations of life; and the pa.s.sions which commonly embroil society change their character when they find a vent so near the domestic hearth and the family circle.

In the American States power has been disseminated with admirable skill for the purpose of interesting the greatest possible number of persons in the common weal. Independently of the electors who are from time to time called into action, the body politic is divided into innumerable functionaries and officers, who all, in their several spheres, represent the same powerful whole in whose name they act. The local administration thus affords an unfailing source of profit and interest to a vast number of individuals.

The American system, which divides the local authority among so many citizens, does not scruple to multiply the functions of the town officers. For in the United States it is believed, and with truth, that patriotism is a kind of devotion which is strengthened by ritual observance. In this manner the activity of the township is continually perceptible; it is daily manifested in the fulfilment of a duty or the exercise of a right, and a constant though gentle motion is thus kept up in society which animates without disturbing it.

The American attaches himself to his home as the mountaineer clings to his hills, because the characteristic features of his country are there more distinctly marked than elsewhere. The existence of the townships of New England is in general a happy one. Their government is suited to their tastes, and chosen by themselves. In the midst of the profound peace and general comfort which reign in America the commotions of munic.i.p.al discord are unfrequent. The conduct of local business is easy. The political education of the people has long been complete; say rather that it was complete when the people first set foot upon the soil. In New England no tradition exists of a distinction of ranks; no portion of the community is tempted to oppress the remainder; and the abuses which may injure isolated individuals are forgotten in the general contentment which prevails. If the government is defective (and it would no doubt be easy to point out its deficiencies), the fact that it really emanates from those it governs, and that it acts, either ill or well, casts the protecting spell of a parental pride over its faults. No term of comparison disturbs the satisfaction of the citizen: England formerly governed the ma.s.s of the colonies, but the people was always sovereign in the township where its rule is not only an ancient but a primitive state.

The native of New England is attached to his township because it is independent and free: his co-operation in its affairs ensures his attachment to its interest; the well-being it affords him secures his affection; and its welfare is the aim of his ambition and of his future exertions: he takes a part in every occurrence in the place; he practises the art of government in the small sphere within his reach; he accustoms himself to those forms which can alone ensure the steady progress of liberty; he imbibes their spirit; he acquires a taste for order, comprehends the union or the balance of powers, and collects clear practical notions on the nature of his duties and the extent of his rights.

The Counties Of New England The division of the countries in America has considerable a.n.a.logy with that of the arrondiss.e.m.e.nts of France. The limits of the counties are arbitrarily laid down, and the various districts which they contain have no necessary connection, no common tradition or natural sympathy; their object is simply to facilitate the administration of justice.

The extent of the township was too small to contain a system of judicial inst.i.tutions; each county has, however, a court of justice, *f a sheriff to execute its decrees, and a prison for criminals. There are certain wants which are felt alike by all the townships of a county; it is therefore natural that they should be satisfied by a central authority. In the State of Ma.s.sachusetts this authority is vested in the hands of several magistrates, who are appointed by the Governor of the State, with the advice *g of his council. *h The officers of the county have only a limited and occasional authority, which is applicable to certain predetermined cases. The State and the townships possess all the power requisite to conduct public business. The budget of the county is drawn up by its officers, and is voted by the legislature, but there is no a.s.sembly which directly or indirectly represents the county. It has, therefore, properly speaking, no political existence.

f [ See the Act of February 14, 1821, Laws of Ma.s.sachusetts, vol. i. p. 551.]

g [ See the Act of February 20, 1819, Laws of Ma.s.sachusetts, vol. ii. p. 494.]

h [ The council of the Governor is an elective body.] A twofold tendency may be discerned in the American const.i.tutions, which impels the legislator to centralize the legislative and to disperse the executive power. The township of New England has in itself an indestructible element of independence; and this distinct existence could only be fict.i.tiously introduced into the county, where its utility has not been felt. But all the townships united have but one representation, which is the State, the centre of the national authority: beyond the action of the township and that of the nation, nothing can be said to exist but the influence of individual exertion.

Administration In New England Administration not perceived in America-Why?-The Europeans believe that liberty is promoted by depriving the social authority of some of its rights; the Americans, by dividing its exercise-Almost all the administration confined to the township, and divided amongst the town-officers-No trace of an administrative body to be perceived, either in the township or above it-The reason of this-How it happens that the administration of the State is uniform-Who is empowered to enforce the obedience of the township and the county to the law-The introduction of judicial power into the administration-Consequence of the extension of the elective principle to all functionaries-The Justice of the Peace in New England-By whom appointed-County officer: ensures the administration of the townships-Court of Sessions-Its action-Right of inspection and indictment disseminated like the other administrative functions-Informers encouraged by the division of fines.

Nothing is more striking to an European traveller in the United States than the absence of what we term the Government, or the Administration. Written laws exist in America, and one sees that they are daily executed; but although everything is in motion, the hand which gives the impulse to the social machine can nowhere be discovered. Nevertheless, as all peoples are obliged to have recourse to certain grammatical forms, which are the foundation of human language, in order to express their thoughts; so all communities are obliged to secure their existence by submitting to a certain dose of authority, without which they fall a prey to anarchy. This authority may be distributed in several ways, but it must always exist somewhere.

There are two methods of diminishing the force of authority in a nation: The first is to weaken the supreme power in its very principle, by forbidding or preventing society from acting in its own defence under certain circ.u.mstances. To weaken authority in this manner is what is generally termed in Europe to lay the foundations of freedom. The second manner of diminishing the influence of authority does not consist in stripping society of any of its rights, nor in paralyzing its efforts, but in distributing the exercise of its privileges in various hands, and in multiplying functionaries, to each of whom the degree of power necessary for him to perform his duty is entrusted. There may be nations whom this distribution of social powers might lead to anarchy; but in itself it is not anarchical. The action of authority is indeed thus rendered less irresistible and less perilous, but it is not totally suppressed.

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 pa.s.sions of anarchy; but its course was marked, on the contrary, by an attachment to whatever was lawful and orderly.

It was never a.s.sumed 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 const.i.tution, which accounts for its pa.s.sing, 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 munic.i.p.al 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 pa.s.ses 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 munic.i.p.al magistrates provide, of their own accord and without any delegated powers, for those unforeseen emergencies which frequently occur in society. *k i [ See "The Town-Officer," especially at the words Selectmen, a.s.sessors, 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 Ma.s.sachusetts, 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.]

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.]

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 Ma.s.sachusetts 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.

l [ I say almost, for there are various circ.u.mstances 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 a.s.sembled 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.]

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 a.s.sembled 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.]

n [ In Ma.s.sachusetts 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.

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 mult.i.tude 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 const.i.tuents; 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 inst.i.tution 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 inst.i.tutions 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 inst.i.tution 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 superst.i.tions 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 Ma.s.sachusetts *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 const.i.tute 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 Ma.s.sachusetts it is empowered to enforce the obedience of the greater number *s of public officers. *t It must be observed, that in the State of Ma.s.sachusetts the Court of Sessions is at the same time an administrative body, properly so called, and a political tribunal. It has been a.s.serted 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 entrusted to any one of them in particular. *u In all that concerns county business the duties of the Court of Sessions are 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, *v or as a guarantee to the community over which it presides. But when the administration of the township is brought before it, it always acts as a judicial body, and in some few cases as an official a.s.sembly.

p [ We shall hereafter learn what a Governor is: I shall content myself with remarking in this place that he represents the executive power of the whole State.]

q [ See the Const.i.tution of Ma.s.sachusetts, chap. II. sect. 1. Section 9; chap. III. Section 3.]

r [ Thus, for example, a stranger arrives in a township from a country where a contagious disease prevails, and he falls ill. Two justices of the peace can, with the a.s.sent of the selectmen, order the sheriff of the county to remove and take care of him.-Act of June 22, 1797, vol. i. p. 540.

In general the justices interfere in all the important acts of the administration, and give them a semi-judicial character.] [Footnote s: I say the greater number, because certain administrative misdemeanors are brought before ordinary tribunals. If, for instance, a township refuses to make the necessary expenditure for its schools or to name a school-committee, it is liable to a heavy fine. But this penalty is p.r.o.nounced by the Supreme Judicial Court or the Court of Common Pleas. See Act of March 10, 1827, Laws of Ma.s.sachusetts, vol. iii. p. 190. Or when a township neglects to provide the necessary war-stores.-Act of February 21, 1822: Id., vol. ii. p. 570.]

t [ In their individual capacity the justices of the peace take a part in the business of the counties and townships.] [Footnote u: These affairs may be brought under the following heads:-1. The erection of prisons and courts of justice. 2. The county budget, which is afterwards voted by the State. 3. The distribution of the taxes so voted. 4. Grants of certain patents. 5. The laying down and repairs of the country roads.]

v [ Thus, when a road is under consideration, almost all difficulties are disposed of by the aid of the jury.]

The first difficulty is to procure the obedience of an authority as entirely independent of the general laws of the State as the township is. We have stated that a.s.sessors 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 a.s.sessors, the Court of Sessions condemns it to a heavy penalty. *w The fine is levied on each of the inhabitants; and the sheriff of the county, who is the 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 its influence is at the same time fortified by that irresistible power with which men have invested the formalities of law.

w [ See Act of February 20, 1786, Laws of Ma.s.sachusetts, vol. i. p. 217.]

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. *x 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: x [ There is an indirect method of enforcing the obedience of a township. Suppose that the funds which 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.

y [ Laws of Ma.s.sachusetts, 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 pa.s.s 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. *z 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.

z [ If, for instance, a township persists in refusing to name its a.s.sessors, the Court of Sessions nominates them; and the magistrates thus appointed are invested with the same authority as elected officers. See the Act quoted above, February 20, 1787.]

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 part of the system. The Americans of New England are unacquainted with the office of public prosecutor in the Court of Sessions, *a and it may readily be perceived that it could not have been established without difficulty. If an accusing magistrate had merely been appointed in the chief town of each county, and if he had been una.s.sisted by agents in the townships, he would not have been better acquainted with what was going on in the county than the members of the Court of Sessions. But to appoint agents in each township would have been to centre in his person the most formidable of powers, that of a judicial administration. Moreover, laws are the children of habit, and nothing of the kind exists in the legislation of England. The Americans have therefore divided the offices of inspection and of prosecution, as well as all the other functions of the administration. Grand jurors are bound by the law to apprise the court to which they belong of all the misdemeanors which may have been committed in their county. *b There are certain great offences which are officially prosecuted by the States; *c but more frequently the task of punishing delinquents devolves upon the fiscal officer, whose province it is to receive the fine: thus the treasurer of the township is charged with the prosecution of such administrative offences as fall under his notice. But a more special appeal is made by American legislation to the private interest of the citizen; *d and this great principle is constantly to be met with in studying the laws of the United States. American legislators are more apt to give men credit for intelligence than for honesty, and they rely not a little on personal cupidity for the execution of the laws. When an individual is really and sensibly injured by an administrative abuse, it is natural that his personal interest should induce him to prosecute. But if a legal formality be required, which, however advantageous to the community, is of small importance to individuals, plaintiffs may be less easily found; and thus, by a tacit agreement, the laws may fall into disuse. Reduced by their system to this extremity, the Americans are obliged to encourage informers by bestowing on them a portion of the penalty in certain cases, *e and to insure the execution of the laws by the dangerous expedient of degrading the morals of the people. The only administrative authority above the county magistrates is, properly speaking, that of the Government.

a [ I say the Court of Sessions, because in common courts there is a magistrate who exercises some of the functions of a public prosecutor.]

b [ The grand-jurors are, for instance, bound to inform the court of the bad state of the roads.-Laws of Ma.s.sachusetts, vol. i. p. 308.]

c [ If, for instance, the treasurer of the county holds back his accounts.-Laws of Ma.s.sachusetts, vol. i. p. 406.] [Footnote d: Thus, if a private individual breaks down or is wounded in consequence of the badness of a road, he can sue the township or the county for damages at the sessions.-Laws of Ma.s.sachusetts, vol. i. p. 309.]

e [ In cases of invasion or insurrection, if the town-officers neglect to furnish the necessary stores and ammunition for the militia, the township may be condemned to a fine of from $200 to $500. It may readily be imagined that in such a case it might happen that no one cared to prosecute; hence the law adds that all the citizens may indict offences of this kind, and that half of the fine shall belong to the plaintiff. See Act of March 6, 1810, vol. ii. p. 236. The same clause is frequently to be met with in the law of Ma.s.sachusetts. Not only are private individuals thus incited to prosecute the public officers, but the public officers are encouraged in the same manner to bring the disobedience of private individuals to justice. If a citizen refuses to perform the work which has been a.s.signed to him upon a road, the road surveyor may prosecute him, and he receives half the penalty for himself. See the Laws above quoted, vol. i. p. 308.]

General Remarks On The Administration Of The United States Differences of the States of the Union in their system of administration-Activity and perfection of the local authorities decrease towards the South-Power of the magistrate increases; that of the elector diminishes-Administration pa.s.ses from the township to the county-States of New York, Ohio, Pennsylvania-Principles of administration applicable to the whole Union-Election of public officers, and inalienability of their functions-Absence of gradation of ranks-Introduction of judicial resources into the administration.

I have already premised that, after having examined the const.i.tution of the township and the county of New England in detail, I should take a general view of the remainder of the Union. Townships and a local activity exist in every State; but in no part of the confederation is a township to be met with precisely similar to those of New England. The more we descend towards the South, the less active does the business of the township or parish become; the number of magistrates, of functions, and of rights decreases; the population exercises a less immediate influence on affairs; town meetings are less frequent, and the subjects of debate less numerous. The power of the elected magistrate is augmented and that of the elector diminished, whilst the public spirit of the local communities is less awakened and less influential. *f These differences may be perceived to a certain extent in the State of New York; they are very sensible in Pennsylvania; but they become less striking as we advance to the northwest. The majority of the emigrants who settle in the northwestern States are natives of New England, and they carry the habits of their mother country with them into that which they adopt. A township in Ohio is by no means dissimilar from a township in Ma.s.sachusetts.

f [ For details see the Revised Statutes of the State of New York, part i. chap. xi. vol. i. pp. 336-364, ent.i.tled, "Of the Powers, Duties, and Privileges of Towns."

See in the Digest of the Laws of Pennsylvania, the words a.s.sessors, Collector, Constables, Overseer of the Poor, Supervisors of Highways; and in the Acts of a general nature of the State of Ohio, the Act of February 25, 1834, relating to townships, p. 412; besides the peculiar dispositions relating to divers town-officers, such as Township's Clerk, Trustees, Overseers of the Poor, Fence Viewers, Appraisers of Property, Township's Treasurer, Constables, Supervisors of Highways.]

We have seen that in Ma.s.sachusetts the mainspring of public administration lies in the township. It forms the common centre of the interests and affections of the citizens. But this ceases to be the case as we descend to States in which knowledge is less generally diffused, and where the township consequently offers fewer guarantees of a wise and active administration. As we leave New England, therefore, we find that the importance of the town is gradually transferred to the county, which becomes the centre of administration, and the intermediate power between the Government and the citizen. In Ma.s.sachusetts the business of the county is conducted by the Court of Sessions, which is composed of a quorum named by the Governor and his council; but the county has no representative a.s.sembly, and its expenditure is voted by the national legislature. In the great State of New York, on the contrary, and in those of Ohio and Pennsylvania, the inhabitants of each county choose a certain number of representatives, who const.i.tute the a.s.sembly of the county. *g The county a.s.sembly has the right of taxing the inhabitants to a certain extent; and in this respect it enjoys the privileges of a real legislative body: at the same time it exercises an executive power in the county, frequently directs the administration of the townships, and restricts their authority within much narrower bounds than in Ma.s.sachusetts.

g [ See the Revised Statutes of the State of New York, part i. chap. xi. vol. i. p. 340. Id. chap. xii. p. 366; also in the Acts of the State of Ohio, an act relating to county commissioners, February 25, 1824, p. 263. See the Digest of the Laws of Pennsylvania, at the words County-rates and Levies, p. 170. In the State of New York each township elects a representative, who has a share in the administration of the county as well as in that of the township.]

Such are the princ.i.p.al differences which the systems of county and town administration present in the Federal States. Were it my intention to examine the provisions of American law minutely, I should have to point out still further differences in the executive details of the several communities. But what I have already said may suffice to show the general principles on which the administration of the United States rests. These principles are differently applied; their consequences are more or less numerous in various localities; but they are always substantially the same. The laws differ, and their outward features change, but their character does not vary. If the township and the county are not everywhere const.i.tuted in the same manner, it is at least true that in the United States the county and the township are always based upon the same principle, namely, that everyone is the best judge of what concerns himself alone, and the most proper person to supply his private wants. The township and the county are therefore bound to take care of their special interests: the State governs, but it does not interfere with their administration. Exceptions to this rule may be met with, but not a contrary principle.

The first consequence of this doctrine has been to cause all the magistrates to be chosen either by or at least from amongst the citizens. As the officers are everywhere elected or appointed for a certain period, it has been impossible to establish the rules of a dependent series of authorities; there are almost as many independent functionaries as there are functions, and the executive power is disseminated in a mult.i.tude of hands. Hence arose the indispensable necessity of introducing the control of the courts of justice over the administration, and the system of pecuniary penalties, by which the secondary bodies and their representatives are constrained to obey the laws. This system obtains from one end of the Union to the other. The power of punishing the misconduct of public officers, or of performing the part of the executive in urgent cases, has not, however, been bestowed on the same judges in all the States. The Anglo-Americans derived the inst.i.tution of justices of the peace from a common source; but although it exists in all the States, it is not always turned to the same use. The justices of the peace everywhere partic.i.p.ate in the administration of the townships and the counties, *h either as public officers or as the judges of public misdemeanors, but in most of the States the more important cla.s.ses of public offences come under the cognizance of the ordinary tribunals.

h [ In some of the Southern States the county courts are charged with all the details of the administration. See the Statutes of the State of Tennessee, arts. Judiciary, Taxes, etc.]

The election of public officers, or the inalienability of their functions, the absence of a gradation of powers, and the introduction of a judicial control over the secondary branches of the administration, are the universal characteristics of the American system from Maine to the Floridas. In some States (and that of New York has advanced most in this direction) traces of a centralized administration begin to be discernible. In the State of New York the officers of the central government exercise, in certain cases, a sort of inspection or control over the secondary bodies. *i i [ For instance, the direction of public instruction centres in the hands of the Government. The legislature names the members of the University, who are denominated Regents; the Governor and Lieutentant-Governor of the State are necessarily of the number.-Revised Statutes, vol. i. p. 455. The Regents of the University annually visit the colleges and academies, and make their report to the legislature. Their superintendence is not inefficient, for several reasons: the colleges in order to become corporations stand in need of a charter, which is only granted on the recommendation of the Regents; every year funds are distributed by the State for the encouragement of learning, and the Regents are the distributors of this money. See chap. xv. "Instruction," Revised Statutes, vol. i. p. 455.

The school-commissioners are obliged to send an annual report to the Superintendent of the Republic.-Id. p. 488.

A similar report is annually made to the same person on the number and condition of the poor.-Id. p. 631.]

At other times they const.i.tute a court of appeal for the decision of affairs. *j In the State of New York judicial penalties are less used than in other parts as a means of administration, and the right of prosecuting the offences of public officers is vested in fewer hands. *k The same tendency is faintly observable in some other States; *l but in general the prominent feature of the administration in the United States is its excessive local independence.