American Institutions and Their Influence
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In all that concerns county business, the duties of the court of sessions are therefore 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,86 or as a guarantee to the community over which it presides. But when the administration of the township is brought before it, it almost always acts as a judicial body, and in some few cases as an administrative assembly.
The first difficulty is to procure the obedience of an authority so 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.87 The fine is levied on each of the inhabitants; and the sheriff of the county, who is an 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 the influence is at the same time fortified by that irresistible power with which men have invested the formalities of law.
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.88 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:
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 to town elections, they may be condemned to pay a fine;89 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 administrative 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 subordinate 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 for 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.
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.90
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.
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,91 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 officers of inspection and of prosecution as well as all the other functions of the administration. Grand-jurors are bound by the law to apprize the court to which they belong of all the misdemeanors which may have been committed in their county.92 There are certain great offences which are officially prosecuted by the state;93 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 especial appeal is made by American legislation to the private interest of the citizen,94 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 might 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;95 and to ensure 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.
GENERAL REMARKS ON THE ADMINISTRATION OF THE UNITED STATES
Difference of the States of the Union in their Systems of Administration.—Activity and Perfection of the local Authorities decreases towards the South.—Power of the Magistrates 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 promised 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 in New England. The more we descend toward 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 debates less numerous. The power of the elected magistrate is augmented, and that of the elector diminished, while the public spirit of the local communities is less awakened and less influential.96
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.
We have seen that in Massachusetts the principal part of the 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 town 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 national97 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.98 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.
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 farther 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 every one is the best judge of what concerns himself alone, and the person most able 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 among 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. The 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,99 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 cognisance of the ordinary tribunals.
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 centralised 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 of control over the secondary bodies.100 At other times they constitute a court of appeal for the decision of affairs.101 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.102 The same tendency is faintly observable in some other states;103 but in general the prominent feature of the administration in the United States is its excessive local independence.
OF THE STATE
I have described the townships and the administration: it now remains for me to speak of the state and 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.104 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 afterward to pass judgment upon what I now describe.
LEGISLATIVE POWER OF THE STATE
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;105 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.106 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.
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, while 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 suspensive veto, 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.107 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 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 revoke.108
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 on the majority who returned him.
POLITICAL EFFECTS OF THE SYSTEM OF LOCAL ADMINISTRATION IN THE UNITED STATES
Necessary Distinction between the general Centralisation of Government and the Centralisation of the local Administration.—Local Administration not centralized in the United States; great general Centralisation of the Government.—Some bad Consequences resulting to the United States from the local Administration.—Administrative Advantages attending the 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.
Centralisation is become a word of general and daily use, without any precise meaning being attached to it. Nevertheless, there exist two distinct kinds of centralisation, 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 in the same persons, it constitutes a central government. The power of directing partial or local interests, when brought together, in like manner constitutes what may be termed a central administration.
Upon some points these two kinds of centralisation 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 centralisation. 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 the union of power subdue them by force, but it affects them in the ordinary habits of life, and influences each individual, first separately, and then collectively.
These two kinds of centralisation 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 being 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 centralisation 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 centralisation 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 people.
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 centralisation 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 has never been 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 centralisation 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 among 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 have even produced some disadvantageous consequences in America. But in the United States the centralisation 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 monarchies 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 numerous district assemblies and county courts have in general been avoided, 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 its 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. 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. In general it is desirable that in what ever 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.