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 constitution 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 circumscribed 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 constitutes 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 repetition.
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 institutions. 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 Municipal Bodies
Why the Author begins the examination of the political institutions with the township — Its existence in all nations — Difficulty of establishing and preserving municipal 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 association which is so perfectly natural that wherever a number of men are collected it seems to constitute itself.
The town, or tithing, 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 association of mankind seems constituted by the hand of God. 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 assemblies, 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 coarser 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 municipal 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. Municipal 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 circumstances, 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 assemblies of citizens constitute 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 municipal institutions it cannot have the spirit of liberty. The transient passions and the interests of an hour, or the chance of circumstances, 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 constitution, 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 institutions 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 tithing, or town. Its average population is from two to three thousand; 60 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.
60: In 1830 there were 305 townships in the State of Massachusetts, 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. 61
61: 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.” 62 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 municipal 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.
62: Three selectmen are appointed in the small townships, and nine in the large ones. See “The Town–Officer,” p. 186. See also the principal laws of the State of Massachusetts 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 assent 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. 63
63: See Laws of Massachusetts, 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 municipal magistrates, who are entrusted with important administrative functions. The assessors 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 principal functionaries. They are, however, still further subdivided; and amongst the municipal officers are to be found parish commissioners, who audit the expenses of public worship; different classes of inspectors, some of whom are to direct the citizens in case of fire; tithing-men, listers, haywards, chimney-viewers, fence-viewers to maintain the bounds of property, timber-measurers, and sealers of weights and measures. 64
64: 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 Massachusetts,” 3 vols., Boston, 1823.
There are nineteen principal 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 participates 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 association with his fellow-men, and because he knows that no such association 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 God 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 municipal 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. Municipal 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 circumstances 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 asserted their supremacy, they were contented to assume 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 municipal 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 constitutes 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 municipal 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 constituted as to excite the warmest of human affections, without arousing the ambitious passions 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 passions 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 municipal 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 mass 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 analogy with that of the arrondissements 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 institutions; each county has, however, a court of justice, 65 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 Massachusetts this authority is vested in the hands of several magistrates, who are appointed by the Governor of the State, with the advice 66 of his council. 67 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 assembly which directly or indirectly represents the county. It has, therefore, properly speaking, no political existence.
65: See the Act of February 14, 1821, Laws of Massachusetts, vol. i. p. 551.
66: See the Act of February 20, 1819, Laws of Massachusetts, vol. ii. p. 494.
67: The council of the Governor is an elective body.] A twofold tendency may be discerned in the American constitutions, 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 fictitiously 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 circumstances. 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 passions of anarchy; but its course was marked, on the contrary, by an attachment to whatever was lawful and orderly.
It was never assumed 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 constitution, which accounts for its passing, 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 municipal magistrates are the persons to whom the execution of the laws of the State is most frequently entrusted. 68 Besides the general laws, the State sometimes passes 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. 69 Lastly, these municipal magistrates provide, of their own accord and without any delegated powers, for those unforeseen emergencies which frequently occur in society. 70
68: See “The Town–Officer,” especially at the words Selectmen, Assessors, 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 Massachusetts, 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.
69: 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.
70: 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 Massachusetts the administrative authority is almost entirely restricted to the township,71 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, 72 but in general the authorities of the county have no right to interfere with the authorities of the township, 73 except in such matters as concern the county.
71: I say almost, for there are various circumstances 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 assembled 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.
72: 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 assembled 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.
73: In Massachusetts 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. 74 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.
74: 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.
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 multitude 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 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 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 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 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 superstitions 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 Massachusetts 75 appoints a certain number of justices of the peace in every county, whose functions last seven years. 76 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, 77 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 number 78 of public officers. 79 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 entrusted to any one of them in particular. 80 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, 81 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 assembly.
75: 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.
76: See the Constitution of Massachusetts, chap. II. sect. 1. Section 9; chap. III. Section 3.
77: 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 assent 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.
78: 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 pronounced by the Supreme Judicial Court or the Court of Common Pleas. See Act of March 10, 1827, Laws of Massachusetts, 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.
79: In their individual capacity the justices of the peace take a part in the business of the counties and townships.
80: 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.
81: 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 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. 82 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.
82: See Act of February 20, 1786, Laws of Massachusetts, 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. 83 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:
83: 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; 84 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.
84: 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 omission of the functionary. 85 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.
85: If, for instance, a township persists in refusing to name its assessors, 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, 86 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 unassisted 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. 87 There are certain great offences which are officially prosecuted by the States; 88 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; 89 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, 90 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.
86: I say the Court of Sessions, because in common courts there is a magistrate who exercises some of the functions of a public prosecutor.
87: The grand-jurors are, for instance, bound to inform the court of the bad state of the roads. — Laws of Massachusetts, vol. i. p. 308.
88: If, for instance, the treasurer of the county holds back his accounts. — Laws of Massachusetts, vol. i. p. 406.
89: 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 Massachusetts, vol. i. p. 309.
90: 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 Massachusetts. 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 assigned 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 passes 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 constitution 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. 91 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 Massachusetts.
91: For details see the Revised Statutes of the State of New York, part i. chap. xi. vol. i. pp. 336–364, entitled, “Of the Powers, Duties, and Privileges of Towns.”
See in the Digest of the Laws of Pennsylvania, the words Assessors, 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 Massachusetts 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 Massachusetts 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 assembly, 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 constitute the assembly of the county. 92 The county assembly 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 Massachusetts.
92: 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 principal 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 constituted 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 multitude 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 institution 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 participate in the administration of the townships and the counties, 93 either as public officers or as the judges of public misdemeanors, but in most of the States the more important classes of public offences come under the cognizance of the ordinary tribunals.
93: 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. 94
94: 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 constitute a court of appeal for the decision of affairs. 95 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. 96 The same tendency is faintly observable in some other States; 97 but in general the prominent feature of the administration in the United States is its excessive local independence.
95: If any one conceives himself to be wronged by the school-commissioners (who are town-officers), he can appeal to the superintendent of the primary schools, whose decision is final. — Revised Statutes, vol. i. p. 487.
Provisions similar to those above cited are to be met with from time to time in the laws of the State of New York; but in general these attempts at centralization are weak and unproductive. The great authorities of the State have the right of watching and controlling the subordinate agents, without that of rewarding or punishing them. The same individual is never empowered to give an order and to punish disobedience; he has therefore the right of commanding, without the means of exacting compliance. In 1830 the Superintendent of Schools complained in his Annual Report addressed to the legislature that several school-commissioners had neglected, notwithstanding his application, to furnish him with the accounts which were due. He added that if this omission continued he should be obliged to prosecute them, as the law directs, before the proper tribunals.
96: Thus the district-attorney is directed to recover all fines below the sum of fifty dollars, unless such a right has been specially awarded to another magistrate. — Revised Statutes, vol. i. p. 383.
97: Several traces of centralization may be discovered in Massachusetts; for instance, the committees of the town-schools are directed to make an annual report to the Secretary of State. See Laws of Massachusetts, vol. i. p. 367.
Of The State
I have described the townships and the administration; it now remains for me to speak of the State and the Government. This is ground I may pass over rapidly, without fear of being misunderstood; for all I have to say is to be found in written forms of the various constitutions, which are easily to be procured. These constitutions rest upon a simple and rational theory; their forms have been adopted by all constitutional nations, and are become familiar to us. In this place, therefore, it is only necessary for me to give a short analysis; I shall endeavor afterwards to pass judgment upon what I now describe.
Division of the Legislative Body into two Houses — Senate — House of Representatives — Different functions of these two Bodies.
The legislative power of the State is vested in two assemblies, the first of which generally bears the name of the Senate. The Senate is commonly a legislative body; but it sometimes becomes an executive and judicial one. It takes a part in the government in several ways, according to the constitution of the different States; 98 but it is in the nomination of public functionaries that it most commonly assumes an executive power. It partakes of judicial power in the trial of certain political offences, and sometimes also in the decision of certain civil cases. 99 The number of its members is always small. The other branch of the legislature, which is usually called the House of Representatives, has no share whatever in the administration, and only takes a part in the judicial power inasmuch as it impeaches public functionaries before the Senate. The members of the two Houses are nearly everywhere subject to the same conditions of election. They are chosen in the same manner, and by the same citizens. The only difference which exists between them is, that the term for which the Senate is chosen is in general longer than that of the House of Representatives. The latter seldom remain in office longer than a year; the former usually sit two or three years. By granting to the senators the privilege of being chosen for several years, and being renewed seriatim, the law takes care to preserve in the legislative body a nucleus of men already accustomed to public business, and capable of exercising a salutary influence upon the junior members.
98: In Massachusetts the Senate is not invested with any administrative functions.
99: As in the State of New York.
The Americans, plainly, did not desire, by this separation of the legislative body into two branches, to make one house hereditary and the other elective; one aristocratic and the other democratic. It was not their object to create in the one a bulwark to power, whilst the other represented the interests and passions of the people. The only advantages which result from the present constitution of the United States are the division of the legislative power and the consequent check upon political assemblies; with the creation of a tribunal of appeal for the revision of the laws.
Time and experience, however, have convinced the Americans that if these are its only advantages, the division of the legislative power is still a principle of the greatest necessity. Pennsylvania was the only one of the United States which at first attempted to establish a single House of Assembly, and Franklin himself was so far carried away by the necessary consequences of the principle of the sovereignty of the people as to have concurred in the measure; but the Pennsylvanians were soon obliged to change the law, and to create two Houses. Thus the principle of the division of the legislative power was finally established, and its necessity may henceforward be regarded as a demonstrated truth. This theory, which was nearly unknown to the republics of antiquity — which was introduced into the world almost by accident, like so many other great truths — and misunderstood by several modern nations, is at length become an axiom in the political science of the present age.
The Executive Power Of The State
Office of Governor in an American State — The place he occupies in relation to the Legislature — His rights and his duties — His dependence on the people.
The executive power of the State may with truth be said to be represented by the Governor, although he enjoys but a portion of its rights. The supreme magistrate, under the title of Governor, is the official moderator and counsellor of the legislature. He is armed with a veto or suspensive power, which allows him to stop, or at least to retard, its movements at pleasure. He lays the wants of the country before the legislative body, and points out the means which he thinks may be usefully employed in providing for them; he is the natural executor of its decrees in all the undertakings which interest the nation at large. 100 In the absence of the legislature, the Governor is bound to take all necessary steps to guard the State against violent shocks and unforeseen dangers. The whole military power of the State is at the disposal of the Governor. He is the commander of the militia, and head of the armed force. When the authority, which is by general consent awarded to the laws, is disregarded, the Governor puts himself at the head of the armed force of the State, to quell resistance, and to restore order. Lastly, the Governor takes no share in the administration of townships and counties, except it be indirectly in the nomination of Justices of the Peace, which nomination he has not the power to cancel.101 The Governor is an elected magistrate, and is generally chosen for one or two years only; so that he always continues to be strictly dependent upon the majority who returned him.
100: Practically speaking, it is not always the Governor who executes the plans of the Legislature; it often happens that the latter, in voting a measure, names special agents to superintend the execution of it.
101: In some of the States the justices of the peace are not elected by the Governor.
Political Effects Of The System Of Local Administration In The United States
Necessary distinction between the general centralization of Government and the centralization of the local administration — Local administration not centralized in the United States: great general centralization of the Government — Some bad consequences resulting to the United States from the local administration — Administrative advantages attending this order of things — The power which conducts the Government is less regular, less enlightened, less learned, but much greater than in Europe — Political advantages of this order of things — In the United States the interests of the country are everywhere kept in view — Support given to the Government by the community — Provincial institutions more necessary in proportion as the social condition becomes more democratic — Reason of this.
Centralization is become a word of general and daily use, without any precise meaning being attached to it. Nevertheless, there exist two distinct kinds of centralization, which it is necessary to discriminate with accuracy. Certain interests are common to all parts of a nation, such as the enactment of its general laws and the maintenance of its foreign relations. Other interests are peculiar to certain parts of the nation; such, for instance, as the business of different townships. When the power which directs the general interests is centred in one place, or vested in the same persons, it constitutes a central government. In like manner the power of directing partial or local interests, when brought together into one place, constitutes what may be termed a central administration.
Upon some points these two kinds of centralization coalesce; but by classifying the objects which fall more particularly within the province of each of them, they may easily be distinguished. It is evident that a central government acquires immense power when united to administrative centralization. Thus combined, it accustoms men to set their own will habitually and completely aside; to submit, not only for once, or upon one point, but in every respect, and at all times. Not only, therefore, does this union of power subdue them compulsorily, but it affects them in the ordinary habits of life, and influences each individual, first separately and then collectively.
These two kinds of centralization mutually assist and attract each other; but they must not be supposed to be inseparable. It is impossible to imagine a more completely central government than that which existed in France under Louis XIV.; when the same individual was the author and the interpreter of the laws, and the representative of France at home and abroad, he was justified in asserting that the State was identified with his person. Nevertheless, the administration was much less centralized under Louis XIV. than it is at the present day.
In England the centralization of the government is carried to great perfection; the State has the compact vigor of a man, and by the sole act of its will it puts immense engines in motion, and wields or collects the efforts of its authority. Indeed, I cannot conceive that a nation can enjoy a secure or prosperous existence without a powerful centralization of government. But I am of opinion that a central administration enervates the nations in which it exists by incessantly diminishing their public spirit. If such an administration succeeds in condensing at a given moment, on a given point, all the disposable resources of a people, it impairs at least the renewal of those resources. It may ensure a victory in the hour of strife, but it gradually relaxes the sinews of strength. It may contribute admirably to the transient greatness of a man, but it cannot ensure the durable prosperity of a nation.
If we pay proper attention, we shall find that whenever it is said that a State cannot act because it has no central point, it is the centralization of the government in which it is deficient. It is frequently asserted, and we are prepared to assent to the proposition, that the German empire was never able to bring all its powers into action. But the reason was, that the State was never able to enforce obedience to its general laws, because the several members of that great body always claimed the right, or found the means, of refusing their co-operation to the representatives of the common authority, even in the affairs which concerned the mass of the people; in other words, because there was no centralization of government. The same remark is applicable to the Middle Ages; the cause of all the confusion of feudal society was that the control, not only of local but of general interests, was divided amongst a thousand hands, and broken up in a thousand different ways; the absence of a central government prevented the nations of Europe from advancing with energy in any straightforward course.
We have shown that in the United States no central administration and no dependent series of public functionaries exist. Local authority has been carried to lengths which no European nation could endure without great inconvenience, and which has even produced some disadvantageous consequences in America. But in the United States the centralization of the Government is complete; and it would be easy to prove that the national power is more compact than it has ever been in the old nations of Europe. Not only is there but one legislative body in each State; not only does there exist but one source of political authority; but district assemblies and county courts have not in general been multiplied, lest they should be tempted to exceed their administrative duties, and interfere with the Government. In America the legislature of each State is supreme; nothing can impede its authority; neither privileges, nor local immunities, nor personal influence, nor even the empire of reason, since it represents that majority which claims to be the sole organ of reason. Its own determination is, therefore, the only limit to this action. In juxtaposition to it, and under its immediate control, is the representative of the executive power, whose duty it is to constrain the refractory to submit by superior force. The only symptom of weakness lies in certain details of the action of the Government. The American republics have no standing armies to intimidate a discontented minority; but as no minority has as yet been reduced to declare open war, the necessity of an army has not been felt. 102 The State usually employs the officers of the township or the county to deal with the citizens. Thus, for instance, in New England, the assessor fixes the rate of taxes; the collector receives them; the town-treasurer transmits the amount to the public treasury; and the disputes which may arise are brought before the ordinary courts of justice. This method of collecting taxes is slow as well as inconvenient, and it would prove a perpetual hindrance to a Government whose pecuniary demands were large. It is desirable that, in whatever materially affects its existence, the Government should be served by officers of its own, appointed by itself, removable at pleasure, and accustomed to rapid methods of proceeding. But it will always be easy for the central government, organized as it is in America, to introduce new and more efficacious modes of action, proportioned to its wants.
102: The Civil War of 1860–65 cruelly belied this statement, and in the course of the struggle the North alone called two millions and a half of men to arms; but to the honor of the United States it must be added that, with the cessation of the contest, this army disappeared as rapidly as it had been raised. — Translator’s Note.
The absence of a central government will not, then, as has often been asserted, prove the destruction of the republics of the New World; far from supposing that the American governments are not sufficiently centralized, I shall prove hereafter that they are too much so. The legislative bodies daily encroach upon the authority of the Government, and their tendency, like that of the French Convention, is to appropriate it entirely to themselves. Under these circumstances the social power is constantly changing hands, because it is subordinate to the power of the people, which is too apt to forget the maxims of wisdom and of foresight in the consciousness of its strength: hence arises its danger; and thus its vigor, and not its impotence, will probably be the cause of its ultimate destruction.
The system of local administration produces several different effects in America. The Americans seem to me to have outstepped the limits of sound policy in isolating the administration of the Government; for order, even in second-rate affairs, is a matter of national importance. 103 As the State has no administrative functionaries of its own, stationed on different points of its territory, to whom it can give a common impulse, the consequence is that it rarely attempts to issue any general police regulations. The want of these regulations is severely felt, and is frequently observed by Europeans. The appearance of disorder which prevails on the surface leads him at first to imagine that society is in a state of anarchy; nor does he perceive his mistake till he has gone deeper into the subject. Certain undertakings are of importance to the whole State; but they cannot be put in execution, because there is no national administration to direct them. Abandoned to the exertions of the towns or counties, under the care of elected or temporary agents, they lead to no result, or at least to no durable benefit.
103: The authority which represents the State ought not, I think, to waive the right of inspecting the local administration, even when it does not interfere more actively. Suppose, for instance, that an agent of the Government was stationed at some appointed spot in the country, to prosecute the misdemeanors of the town and county officers, would not a more uniform order be the result, without in any way compromising the independence of the township? Nothing of the kind, however, exists in America: there is nothing above the county-courts, which have, as it were, only an incidental cognizance of the offences they are meant to repress.
The partisans of centralization in Europe are wont to maintain that the Government directs the affairs of each locality better than the citizens could do it for themselves; this may be true when the central power is enlightened, and when the local districts are ignorant; when it is as alert as they are slow; when it is accustomed to act, and they to obey. Indeed, it is evident that this double tendency must augment with the increase of centralization, and that the readiness of the one and the incapacity of the others must become more and more prominent. But I deny that such is the case when the people is as enlightened, as awake to its interests, and as accustomed to reflect on them, as the Americans are. I am persuaded, on the contrary, that in this case the collective strength of the citizens will always conduce more efficaciously to the public welfare than the authority of the Government. It is difficult to point out with certainty the means of arousing a sleeping population, and of giving it passions and knowledge which it does not possess; it is, I am well aware, an arduous task to persuade men to busy themselves about their own affairs; and it would frequently be easier to interest them in the punctilios of court etiquette than in the repairs of their common dwelling. But whenever a central administration affects to supersede the persons most interested, I am inclined to suppose that it is either misled or desirous to mislead. However enlightened and however skilful a central power may be, it cannot of itself embrace all the details of the existence of a great nation. Such vigilance exceeds the powers of man. And when it attempts to create and set in motion so many complicated springs, it must submit to a very imperfect result, or consume itself in bootless efforts.
Centralization succeeds more easily, indeed, in subjecting the external actions of men to a certain uniformity, which at least commands our regard, independently of the objects to which it is applied, like those devotees who worship the statue and forget the deity it represents. Centralization imparts without difficulty an admirable regularity to the routine of business; provides for the details of the social police with sagacity; represses the smallest disorder and the most petty misdemeanors; maintains society in a status quo alike secure from improvement and decline; and perpetuates a drowsy precision in the conduct of affairs, which is hailed by the heads of the administration as a sign of perfect order and public tranquillity: 104 in short, it excels more in prevention than in action. Its force deserts it when society is to be disturbed or accelerated in its course; and if once the co-operation of private citizens is necessary to the furtherance of its measures, the secret of its impotence is disclosed. Even whilst it invokes their assistance, it is on the condition that they shall act exactly as much as the Government chooses, and exactly in the manner it appoints. They are to take charge of the details, without aspiring to guide the system; they are to work in a dark and subordinate sphere, and only to judge the acts in which they have themselves cooperated by their results. These, however, are not conditions on which the alliance of the human will is to be obtained; its carriage must be free and its actions responsible, or (such is the constitution of man) the citizen had rather remain a passive spectator than a dependent actor in schemes with which he is unacquainted.
104: China appears to me to present the most perfect instance of that species of well-being which a completely central administration may furnish to the nations among which it exists. Travellers assure us that the Chinese have peace without happiness, industry without improvement, stability without strength, and public order without public morality. The condition of society is always tolerable, never excellent. I am convinced that, when China is opened to European observation, it will be found to contain the most perfect model of a central administration which exists in the universe.
It is undeniable that the want of those uniform regulations which control the conduct of every inhabitant of France is not unfrequently felt in the United States. Gross instances of social indifference and neglect are to be met with, and from time to time disgraceful blemishes are seen in complete contrast with the surrounding civilization. Useful undertakings which cannot succeed without perpetual attention and rigorous exactitude are very frequently abandoned in the end; for in America, as well as in other countries, the people is subject to sudden impulses and momentary exertions. The European who is accustomed to find a functionary always at hand to interfere with all he undertakes has some difficulty in accustoming himself to the complex mechanism of the administration of the townships. In general it may be affirmed that the lesser details of the police, which render life easy and comfortable, are neglected in America; but that the essential guarantees of man in society are as strong there as elsewhere. In America the power which conducts the Government is far less regular, less enlightened, and less learned, but an hundredfold more authoritative than in Europe. In no country in the world do the citizens make such exertions for the common weal; and I am acquainted with no people which has established schools as numerous and as efficacious, places of public worship better suited to the wants of the inhabitants, or roads kept in better repair. Uniformity or permanence of design, the minute arrangement of details,105 and the perfection of an ingenious administration, must not be sought for in the United States; but it will be easy to find, on the other hand, the symptoms of a power which, if it is somewhat barbarous, is at least robust; and of an existence which is checkered with accidents indeed, but cheered at the same time by animation and effort.
105: A writer of talent, who, in the comparison which he has drawn between the finances of France and those of the United States, has proved that ingenuity cannot always supply the place of a knowledge of facts, very justly reproaches the Americans for the sort of confusion which exists in the accounts of the expenditure in the townships; and after giving the model of a departmental budget in France, he adds:—“We are indebted to centralization, that admirable invention of a great man, for the uniform order and method which prevail alike in all the municipal budgets, from the largest town to the humblest commune.” Whatever may be my admiration of this result, when I see the communes of France, with their excellent system of accounts, plunged into the grossest ignorance of their true interests, and abandoned to so incorrigible an apathy that they seem to vegetate rather than to live; when, on the other hand, I observe the activity, the information, and the spirit of enterprise which keep society in perpetual labor, in those American townships whose budgets are drawn up with small method and with still less uniformity, I am struck by the spectacle; for to my mind the end of a good government is to ensure the welfare of a people, and not to establish order and regularity in the midst of its misery and its distress. I am therefore led to suppose that the prosperity of the American townships and the apparent confusion of their accounts, the distress of the French communes and the perfection of their budget, may be attributable to the same cause. At any rate I am suspicious of a benefit which is united to so many evils, and I am not averse to an evil which is compensated by so many benefits.
Granting for an instant that the villages and counties of the United States would be more usefully governed by a remote authority which they had never seen than by functionaries taken from the midst of them — admitting, for the sake of argument, that the country would be more secure, and the resources of society better employed, if the whole administration centred in a single arm — still the political advantages which the Americans derive from their system would induce me to prefer it to the contrary plan. It profits me but little, after all, that a vigilant authority should protect the tranquillity of my pleasures and constantly avert all dangers from my path, without my care or my concern, if this same authority is the absolute mistress of my liberty and of my life, and if it so monopolizes all the energy of existence that when it languishes everything languishes around it, that when it sleeps everything must sleep, that when it dies the State itself must perish.
In certain countries of Europe the natives consider themselves as a kind of settlers, indifferent to the fate of the spot upon which they live. The greatest changes are effected without their concurrence and (unless chance may have apprised them of the event) without their knowledge; nay more, the citizen is unconcerned as to the condition of his village, the police of his street, the repairs of the church or of the parsonage; for he looks upon all these things as unconnected with himself, and as the property of a powerful stranger whom he calls the Government. He has only a life-interest in these possessions, and he entertains no notions of ownership or of improvement. This want of interest in his own affairs goes so far that, if his own safety or that of his children is endangered, instead of trying to avert the peril, he will fold his arms, and wait till the nation comes to his assistance. This same individual, who has so completely sacrificed his own free will, has no natural propensity to obedience; he cowers, it is true, before the pettiest officer; but he braves the law with the spirit of a conquered foe as soon as its superior force is removed: his oscillations between servitude and license are perpetual. When a nation has arrived at this state it must either change its customs and its laws or perish: the source of public virtue is dry, and, though it may contain subjects, the race of citizens is extinct. Such communities are a natural prey to foreign conquests, and if they do not disappear from the scene of life, it is because they are surrounded by other nations similar or inferior to themselves: it is because the instinctive feeling of their country’s claims still exists in their hearts; and because an involuntary pride in the name it bears, or a vague reminiscence of its bygone fame, suffices to give them the impulse of self-preservation.
Nor can the prodigious exertions made by tribes in the defence of a country to which they did not belong be adduced in favor of such a system; for it will be found that in these cases their main incitement was religion. The permanence, the glory, or the prosperity of the nation were become parts of their faith, and in defending the country they inhabited they defended that Holy City of which they were all citizens. The Turkish tribes have never taken an active share in the conduct of the affairs of society, but they accomplished stupendous enterprises as long as the victories of the Sultan were the triumphs of the Mohammedan faith. In the present age they are in rapid decay, because their religion is departing, and despotism only remains. Montesquieu, who attributed to absolute power an authority peculiar to itself, did it, as I conceive, an undeserved honor; for despotism, taken by itself, can produce no durable results. On close inspection we shall find that religion, and not fear, has ever been the cause of the long-lived prosperity of an absolute government. Whatever exertions may be made, no true power can be founded among men which does not depend upon the free union of their inclinations; and patriotism and religion are the only two motives in the world which can permanently direct the whole of a body politic to one end.
Laws cannot succeed in rekindling the ardor of an extinguished faith, but men may be interested in the fate of their country by the laws. By this influence the vague impulse of patriotism, which never abandons the human heart, may be directed and revived; and if it be connected with the thoughts, the passions, and the daily habits of life, it may be consolidated into a durable and rational sentiment.
Let it not be said that the time for the experiment is already past; for the old age of nations is not like the old age of men, and every fresh generation is a new people ready for the care of the legislator.
It is not the administrative but the political effects of the local system that I most admire in America. In the United States the interests of the country are everywhere kept in view; they are an object of solicitude to the people of the whole Union, and every citizen is as warmly attached to them as if they were his own. He takes pride in the glory of his nation; he boasts of its success, to which he conceives himself to have contributed, and he rejoices in the general prosperity by which he profits. The feeling he entertains towards the State is analogous to that which unites him to his family, and it is by a kind of egotism that he interests himself in the welfare of his country.
The European generally submits to a public officer because he represents a superior force; but to an American he represents a right. In America it may be said that no one renders obedience to man, but to justice and to law. If the opinion which the citizen entertains of himself is exaggerated, it is at least salutary; he unhesitatingly confides in his own powers, which appear to him to be all-sufficient. When a private individual meditates an undertaking, however directly connected it may be with the welfare of society, he never thinks of soliciting the co-operation of the Government, but he publishes his plan, offers to execute it himself, courts the assistance of other individuals, and struggles manfully against all obstacles. Undoubtedly he is often less successful than the State might have been in his position; but in the end the sum of these private undertakings far exceeds all that the Government could have done.
As the administrative authority is within the reach of the citizens, whom it in some degree represents, it excites neither their jealousy nor their hatred; as its resources are limited, every one feels that he must not rely solely on its assistance. Thus, when the administration thinks fit to interfere, it is not abandoned to itself as in Europe; the duties of the private citizens are not supposed to have lapsed because the State assists in their fulfilment, but every one is ready, on the contrary, to guide and to support it. This action of individual exertions, joined to that of the public authorities, frequently performs what the most energetic central administration would be unable to execute. It would be easy to adduce several facts in proof of what I advance, but I had rather give only one, with which I am more thoroughly acquainted. 106 In America the means which the authorities have at their disposal for the discovery of crimes and the arrest of criminals are few. The State police does not exist, and passports are unknown. The criminal police of the United States cannot be compared to that of France; the magistrates and public prosecutors are not numerous, and the examinations of prisoners are rapid and oral. Nevertheless in no country does crime more rarely elude punishment. The reason is, that every one conceives himself to be interested in furnishing evidence of the act committed, and in stopping the delinquent. During my stay in the United States I witnessed the spontaneous formation of committees for the pursuit and prosecution of a man who had committed a great crime in a certain county. In Europe a criminal is an unhappy being who is struggling for his life against the ministers of justice, whilst the population is merely a spectator of the conflict; in America he is looked upon as an enemy of the human race, and the whole of mankind is against him.
106 The small number of custom-house officers employed in the United States, compared with the extent of the coast, renders smuggling very easy; notwithstanding which, it is less practised than elsewhere, because everybody endeavors to repress it. In America there is no police for the prevention of fires, and such accidents are more frequent than in Europe; but in general they are more speedily extinguished, because the surrounding population is prompt in lending assistance.
I believe that provincial institutions are useful to all nations, but nowhere do they appear to me to be more indispensable than amongst a democratic people. In an aristocracy order can always be maintained in the midst of liberty, and as the rulers have a great deal to lose order is to them a first-rate consideration. In like manner an aristocracy protects the people from the excesses of despotism, because it always possesses an organized power ready to resist a despot. But a democracy without provincial institutions has no security against these evils. How can a populace, unaccustomed to freedom in small concerns, learn to use it temperately in great affairs? What resistance can be offered to tyranny in a country where every private individual is impotent, and where the citizens are united by no common tie? Those who dread the license of the mob, and those who fear the rule of absolute power, ought alike to desire the progressive growth of provincial liberties.
On the other hand, I am convinced that democratic nations are most exposed to fall beneath the yoke of a central administration, for several reasons, amongst which is the following. The constant tendency of these nations is to concentrate all the strength of the Government in the hands of the only power which directly represents the people, because beyond the people nothing is to be perceived but a mass of equal individuals confounded together. But when the same power is already in possession of all the attributes of the Government, it can scarcely refrain from penetrating into the details of the administration, and an opportunity of doing so is sure to present itself in the end, as was the case in France. In the French Revolution there were two impulses in opposite directions, which must never be confounded — the one was favorable to liberty, the other to despotism. Under the ancient monarchy the King was the sole author of the laws, and below the power of the sovereign certain vestiges of provincial institutions, half destroyed, were still distinguishable. These provincial institutions were incoherent, ill compacted, and frequently absurd; in the hands of the aristocracy they had sometimes been converted into instruments of oppression. The Revolution declared itself the enemy of royalty and of provincial institutions at the same time; it confounded all that had preceded it — despotic power and the checks to its abuses — in indiscriminate hatred, and its tendency was at once to overthrow and to centralize. This double character of the French Revolution is a fact which has been adroitly handled by the friends of absolute power. Can they be accused of laboring in the cause of despotism when they are defending that central administration which was one of the great innovations of the Revolution? 107 In this manner popularity may be conciliated with hostility to the rights of the people, and the secret slave of tyranny may be the professed admirer of freedom.
107 It is incorrect to assert that centralization was produced by the French Revolution; the revolution brought it to perfection, but did not create it. The mania for centralization and government regulations dates from the time when jurists began to take a share in the government, in the time of Philippele–Bel; ever since which period they have been on the increase. In the year 1775, M. de Malesherbes, speaking in the name of the Cour des Aides, said to Louis XIV:— 352
352: See “Memoires pour servir a l’Histoire du Droit Public de la France en matiere d’impots,” p. 654, printed at Brussels in 1779.
“ . . . Every corporation and every community of citizens retained the right of administering its own affairs; a right which not only forms part of the primitive constitution of the kingdom, but has a still higher origin; for it is the right of nature, and of reason. Nevertheless, your subjects, Sire, have been deprived of it; and we cannot refrain from saying that in this respect your government has fallen into puerile extremes. From the time when powerful ministers made it a political principle to prevent the convocation of a national assembly, one consequence has succeeded another, until the deliberations of the inhabitants of a village are declared null when they have not been authorized by the Intendant. Of course, if the community has an expensive undertaking to carry through, it must remain under the control of the sub-delegate of the Intendant, and, consequently, follow the plan he proposes, employ his favorite workmen, pay them according to his pleasure; and if an action at law is deemed necessary, the Intendant’s permission must be obtained. The cause must be pleaded before this first tribunal, previous to its being carried into a public court; and if the opinion of the Intendant is opposed to that of the inhabitants, or if their adversary enjoys his favor, the community is deprived of the power of defending its rights. Such are the means, Sire, which have been exerted to extinguish the municipal spirit in France; and to stifle, if possible, the opinions of the citizens. The nation may be said to lie under an interdict, and to be in wardship under guardians.” What could be said more to the purpose at the present day, when the Revolution has achieved what are called its victories in centralization?
In 1789, Jefferson wrote from Paris to one of his friends:—“There is no country where the mania for over-governing has taken deeper root than in France, or been the source of greater mischief.” (Letter to Madison, August 28, 1789.) The fact is, that for several centuries past the central power of France has done everything it could to extend central administration; it has acknowledged no other limits than its own strength. The central power to which the Revolution gave birth made more rapid advances than any of its predecessors, because it was stronger and wiser than they had been; Louis XIV committed the welfare of such communities to the caprice of an intendant; Napoleon left them to that of the Minister. The same principle governed both, though its consequences were more or less remote.
I have visited the two nations in which the system of provincial liberty has been most perfectly established, and I have listened to the opinions of different parties in those countries. In America I met with men who secretly aspired to destroy the democratic institutions of the Union; in England I found others who attacked the aristocracy openly, but I know of no one who does not regard provincial independence as a great benefit. In both countries I have heard a thousand different causes assigned for the evils of the State, but the local system was never mentioned amongst them. I have heard citizens attribute the power and prosperity of their country to a multitude of reasons, but they all placed the advantages of local institutions in the foremost rank. Am I to suppose that when men who are naturally so divided on religious opinions and on political theories agree on one point (and that one of which they have daily experience), they are all in error? The only nations which deny the utility of provincial liberties are those which have fewest of them; in other words, those who are unacquainted with the institution are the only persons who pass a censure upon it.
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