NECESSITY OF EXAMINING THE CONDITION OF THE STATES BEFORE THAT OF THE UNION AT LARGE
IN the following chapter the form of government established in America on the principle of the sovereignty of the people will be examined; what are its means of action, its hindrances, its advantages and its dangers. The first difficulty that 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 to be adopted; and it is in fact nothing more than 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, as I have just observed, is 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 now govern American society undoubtedly took their origin and their growth in the state. We must know the state, then, in order to gain a clue to the rest. The states that now compose the American Union all present the same features, as far as regards the external aspect of their institutions. Their political or administrative life is centered in three focuses of action, which may be compared to the different nervous centers that give motion to the human body. The township is the first in order, then the county, and lastly the state.
THE AMERICAN SYSTEM OF TOWNSHIPS. 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 without intention 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, then, exists in all nations, whatever their laws and customs may be: it is man who makes monarchies and establishes republics, but the township seems to come directly from the hand of God. But although the existence of the township is coeval with that of man, its freedom is an infrequent and fragile thing. A nation can always 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, on the contrary, is composed of coarser materials, which are less easily fashioned by the legislator. The difficulty of establishing its independence rather augments than diminishes with the increasing intelligence of the people. A highly civilized community can hardly tolerate a local independence, is disgusted at its numerous blunders, and is apt to despair of success before the experiment is completed. Again, the immunities of townships, which have been obtained with so much difficulty, are least of all protected against the encroachments of the supreme power. They are unable to struggle, single-handed, against a strong and enterprising government, and they cannot defend themselves with success unless they are 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 efforts; it is rarely created by others, but is, as it were, secretly self-produced 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 that has experienced its advantages. Yet municipal institutions 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 free government, but without municipal institutions it cannot have the spirit of liberty. Transient passions, the interests of an hour, or the chance of circumstances may create the external forms of independence, but the despotic tendency which has been driven into the interior of the social system will sooner or later reappear on the surface.
To make the reader understand the general principles on which the political organization of the counties and townships in the United States rests, I have thought it expedient to choose one of the states of New England as an example, to examine in detail the mechanism of its constitution, and then to cast a general glance over the rest of the country.
The township and the county are not organized in the same manner in every part of the Union; it is easy to perceive, however, that nearly 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 and have produced greater results in New England than elsewhere. Consequently they stand out there in higher relief and offer greater facilities to the observations of a stranger.
The township institutions of New England form a complete and regular whole; they are old; they have the support of the laws and the still stronger support of the manners of the community, over which they exercise a prodigious influence. For all these reasons they deserve our special attention.
LIMITS OF THE TOWNSHIP
THE township of New England holds a middle place between the commune and the canton of France. Its average population is from two to three thousand,1 so that it is not so large, on the one hand, that the interests of its inhabitants would be likely to conflict, and not so small, on the other, but that men capable of conducting its affairs may always be found among its citizens.
POWERS OF THE TOWNSHIP IN NEW ENGLAND. The people the source of all power in the township as elsewhere--Manages its affairs--No municipal council--The greater part of the authority vested in the selectmen--How the selectmen act-Town meeting--Enumeration of the officers of the township --Obligatory and remunerated functions.
IN the township, as well as everywhere else, the people are the source of power; but nowhere do they exercise their power more immediately. In America the people form a master who must be obeyed to the utmost limits of possibility.
In New England the majority act by representatives in conducting the general business of the state. It is necessary that it should be so. But in the townships, where the legislative and administrative action of the government is nearer to the governed, the system of representation is not adopted. There is no municipal council; but the body of voters, after having chosen its magistrates, directs them in everything that exceeds the simple and ordinary execution of the laws of the state.2
This state of things is so contrary to our ideas, and so different from our customs that I must furnish some examples to make it intelligible.
The public duties in the township are extremely numerous and minutely divided, as we shall see farther on; but most of the administrative power is vested in a few persons, chosen annually, called "the selectmen." 3
The general laws of the state impose certain duties on the selectmen, which they may fulfill without the authority of their townsmen, but which they can neglect only on their own responsibility. The state law requires them, for instance, to draw up a list of voters in their townships; and if they omit this duty, they are guilty of a misdemeanor. In all the affairs that are voted in town meeting, however, the selectmen carry into effect 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 that have been previously recognized by the majority. But if they wish to make any change in the existing state of things or to undertake any new enterprise, they must refer to the source of their power. If, for instance, a school is to be established, the selectmen call a meeting of the voters on a certain day at an appointed place. They explain the urgency of the case; they make known the means of satisfying it, the probable expense, and the site that seems to be most favorable. The meeting is consulted on these several points; it adopts the principle, marks out the site, votes the tax, and confides the execution of its resolution to the selectmen.
The selectmen alone have the right of calling a town meeting; but they may be required to do so. If ten citizens wish to submit a new project to the assent of the town, they may demand a town meeting; the selectmen are obliged to comply and have only the right of presiding at the meeting.4 These political forms, these social customs, doubtless seem strange to us in France. I do not here undertake to judge them or to make known the secret causes by which they are produced and maintained. I only describe them.
The selectmen are elected every year, in the month of March or April. The town meeting chooses at the same time a multitude of other town officers,5 who are entrusted with important administrative functions. The assessors rate the township; the collectors receive the tax. A constable is appointed to keep the peace, to watch the streets, and to execute the laws; the town clerk records the town votes, orders, and grants. The treasurer keeps the funds. The overseers of the poor perform the difficult task of carrying out the poor-laws. Committee-men are appointed to attend to the schools and public instruction; and the surveyors of highways, who take care of the greater and lesser roads of the township, complete the list of the principal functionaries. But there are other petty officers still; such as the parish committee, who audit the expenses of public worship; fire wardens, who direct the efforts of the citizens in case of fire; tithing-men, hog-reeves, fence-viewers, timber-measurers, and sealers of weights and measures.6
There are, in all, nineteen principal offices in a township. Every inhabitant is required, on pain of being fined, to undertake these different functions, which, however, are almost all paid, in order that the poorer citizens may give time to them without loss. In general, each official act has its price, and the officers are remunerated in proportion to what they have done.
LIFE IN THE TOWNSHIP. Everyone the best judge of his own interest-- Corollary of the principle of the sovereignty of the people--Application of these doctrines in the townships of --The township of New England is sovereign in all that concerns itself alone, and subject to the state in all other matters--Duties of the township to the state--In France the government lends its agents to the commune--In America it is the reverse.
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 applications of the same doctrine. In the nations by which the sovereignty of the people is recognized, every individual has an equal share of power and participates equally in the government of the state. Why, then, does he obey society, and what are the natural limits of this obedience? Every individual is always supposed to be as well informed, as virtuous, and as strong as any of his fellow citizens. He obeys society, not because he is inferior to those who conduct it or because he is less capable than any other of governing himself, but because he acknowledges the utility of an association with his fellow men and he knows that no such association can exist without a regulating force. He is a subject in all that concerns the duties of citizens to each other; he is free and responsible to God alone, for all that concerns himself. Hence arises the maxim, that everyone is the best and 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 help. This doctrine is universally admitted in the United States. I shall hereafter examine the general influence that it exercises on the ordinary actions of life: I am now speaking of the municipal bodies.
The township, taken as a whole, and in relation to the central government, is only an individual, like any other to whom the theory I have just described is applicable. Municipal independence in the United States is therefore a natural consequence of this very principle of the sovereignty of the people. 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 political life had its origin in the townships; and it may almost be said that each of them originally formed an independent nation. When the kings of England afterwards asserted their supremacy, they were content to assume the central power of the state. They left the townships where they were before; and although they are now subject to the state, they were not at first, or were hardly so. They did not receive their powers from the central authority, but, on the contrary, they gave up a portion of their independence to the state. This is an important distinction and one that the reader must constantly recollect. The townships are generally subordinate to the state only in those interests which I shall term social, as they are common to all the others. They are independent in all that concerns themselves alone; and among 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 town affairs. The towns of New England buy and sell, sue and are sued, augment or diminish their budgets, and no administrative authority ever thinks of offering any opposition.7
There are certain social duties, however, that they are bound to fulfill. If the state is in need of money, a town cannot withhold the supplies; 8 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; if a uniform system of public instruction is enacted, every town is bound to establish the schools which the law ordains.9 When I come to speak of the administration of the laws in the United States, I shall point out how and by what means 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 establishment of a school is obligatory, but the township builds, pays for, 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 lends its agents to the government. This fact alone shows how widely the two nations differ.
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--Sources of local attachment in the United States--How town spirit shows itself in New England--Its happy effects.
IN America not only do municipal bodies exist, but they are kept alive and supported by town spirit. The township of New England possesses two advantages which strongly excite the interest of mankind: namely, independence and authority. Its sphere is limited, indeed; but within that sphere its action is unrestrained. This independence alone gives it a real importance, which its extent and population would not ensure.
It is to be remembered, too, that the affections of men generally turn towards power. Patriotism is not durable in a conquered nation. The New Englander is attached to his township not so much because he was born in it, but because it is a free and strong community, of which he is a member, and which deserves the care spent in managing it. 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 tranquillity, and yet nothing is more difficult to create. If the municipal bodies were made powerful and independent, it is feared that they would become too strong and expose the state to anarchy. 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 county 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 home 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 of a high class are generally men who have been favored by good luck or have been distinguished in some other career. Such cannot be the permanent aim of the ambitious. But the township, at the center of the ordinary relations of life, serves as a field for the desire of public esteem, the want of exciting interest, and the taste for authority and popularity; and the passions that commonly embroil society change their character when they find a vent so near the domestic hearth and the family circle.
In the American townships power has been distributed with admirable skill, for the purpose of interesting the greatest possible number of persons in the common weal. Independently of the voters, who are from time to time called into action, the power is divided among innumerable functionaries and officers, who all, in their several spheres, represent the powerful community 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 fulfillment 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 little community for the same reason that the mountaineer clings to his hills, because the characteristic features of his country are there more distinctly marked; it has a more striking physiognomy.
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 that reign in America, the commotions of municipal life are infrequent. 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 rank; no portion of the community is tempted to oppress the remainder; and the wrongs that may injure isolated individuals are forgotten in the general contentment that prevails. If the government has faults (and it would no doubt be easy to point out some), they do not attract notice, for the government really emanates from those it governs, and whether it acts ill or well, this fact casts the protecting spell of a parental pride over its demerits. Besides, they have nothing wherewith to compare it. 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 interests, 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 occurence in the place; he practices the art of government in the small sphere within his reach; he accustoms himself to those forms without which liberty can only advance by revolutions; he imbibes their spirit; he acquires a taste for order, comprehends 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 counties in America has considerable analogy with that of the arrondissements of France. The limits of both are arbitrarily laid down, and the various districts which they contain have no necessary connection, no common tradition or natural sympathy, no community of existence; their object is simply to facilitate the administration.
The extent of the township was too small to contain a system of judicial institutions; the county, therefore, is the first center of judicial action. Each county has a court of justice,10 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 Massachusetts this authority is vested in the hands of several magistrates, who are appointed by the governor of the state, with the advice 11 Of his council.12 The county commissioners have only a limited and exceptional authority, which can be used only in certain predetermined cases. The state and the townships possess all the power requisite for ordinary and public business. The county commissioners can only prepare the budget; it is voted by the legislature; 13 there is no assembly that directly or indirectly represents the county. It has, therefore, properly speaking, no political existence.
A twofold tendency may be discerned in most of the American constitutions, which impels the legislator to concentrate the legislative and to divide the executive power. The township of New England has in itself an indestructible principle of life; but this distinct existence could only be fictitiously introduced into the county, where the want of it has not been felt. All the townships united have but one representation, which is the state, the center of all national authority; beyond the action of the township and that of the state, it may be said that there is nothing but individual action.
THE ADMINISTRATION OF GOVERNMENT 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 among the town officers--No trace of an administrative hierarchy perceived, either in the township or above it-Why this is the case--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 mode of action-Who brings matters before this court f or action--Right of inspection and indictment parceled out like the other administrative functions--Informers encouraged by the division of fines.
NOTHING is more striking to a European traveler in the United States than the absence of what we term the government, or the administration. Written laws exist in America, and one sees the daily execution of them; but although everything moves regularly, the mover can nowhere be discovered. The hand that directs the social machine is invisible. Nevertheless, as all persons must 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 amount of authority, without which they fall into 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 defense under certain circumstances. To weaken authority in this manner is the European way of establishing freedom.
The second manner of diminishing the influence of authority does not consist in stripping society of some of its rights, nor in paralyzing its efforts, but in distributing the exercise of its powers among various hands and in multiplying functionaries, to each of whom is given the degree of power necessary for him to perform his duty. There may be nations whom this distribution of social powers might lead to anarchy, but in itself it is not anarchical. The authority thus divided is, indeed, rendered less irresistible and less perilous, but it is not destroyed.
The Revolution of the United States was the result of a mature and reflecting preference 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 a love of order and law.
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, more social obligations were there imposed upon him than anywhere else. No idea was ever entertained of attacking the principle or contesting the rights of society; but the exercise of its authority was divided, in order 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 centralized or hierarchical in its constitution; this accounts for its passing unperceived. The power exists, but its representative is nowhere to be seen.
I have already mentioned that the independent townships of New England were not under guardianship, but took care of their own private interests; and the municipal magistrates are the persons who either execute the laws of the state or see that they are executed.14 Besides the general laws the state sometimes passes general police regulations; but more commonly the townships and town officers, conjointly with the justices of the peace, regulate the minor details of social life, according to the necessities of the different localities, and promulgate such orders as concern the health of the community and the peace as well as morality of the citizens.15 Lastly, these town magistrates provide, of their own accord and without any impulse from without, for those unforeseen emergencies which frequently occur in society.16
It results from what I have said that in the state of Massachusetts the administrative authority is almost entirely restricted to the township,17 and that it is there 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 one upon another. The law carefully prescribes a circle of action to each of these magistrates; within that circle they are all-powerful to perform their functions independently of any other authority. If one looks higher than the township, one can find scarcely a trace of an administrative hierarchy. It sometimes happens that the county officers alter a decision of the townships or town magistrates,18 but in general the authorities of the county have no right to interfere with the authorities of the township 19 except in such matters as concern the county.
The magistrates of the township, as well as those of the county, are bound in a small number of predetermined cases to communicate their acts to the central government.20 But the central government is not represented by an agent whose business it is to publish police regulations and ordinances for the execution of the laws, or to keep up a regular communication with the officers of the township and the county, or to inspect their conduct, direct their actions, or reprimand their faults. There is no point that serves as a center to the radii of the administration.
How, then, can the government be conducted on a uniform plan? And how is the compliance of the counties and their magistrates or the townships and their officers enforced? In the New England states 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 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 bodies and 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, how to compel the secondary bodies and administrative officials to conform to the law. It may be affirmed in general that society has only two methods of enforcing the execution of the laws: a discretionary power may be entrusted to one of them of directing all the others and of removing them in case of disobedience; or the courts of justice may be required 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 fulfills his duties with propriety. But an elected magistrate cannot be cashiered or promoted. All elective functions are inalienable until their term expires. In fact, the elected magistrate has nothing to expect or to fear except 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 person, 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 officials of the government are elected are inevitably 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 officials 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 that 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 power; if these two institutions do not go hand in hand, the state must fall into anarchy or into servitude.
It has always been remarked that judicial habits do not render men especially fitted for the exercise of administrative authority. The Americans have borrowed from their fathers, the English, the idea of an institution that is unknown on the continent of Europe: I allude to that of justices of the peace.
The justice of the peace is a sort of middle term 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 learned in the law. 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, when he takes part in it, a certain taste for established forms and publicity, which renders him a most unserviceable instrument for despotism; and, on the other hand, he is not a slave of those legal superstitions which render judges unfit members of a government. The Americans have adopted the English system of justices of the peace, depriving it of the aristocratic character that distinguishes it in the mother country. The governor of Massachusetts 21 appoints a certain number of justices of the peace in every county, whose functions last seven years.22 He further designates three individuals from the whole body of justices, who form in each county what is called the court of sessions. The justices take a personal share in the public administration; they are sometimes entrusted with administrative functions in conjunction with elected officers; 23 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 most 24 Of the public officers.25 It must be observed that in Massachusetts the court of sessions is at the same time an administrative body, properly so called, and a political tribunal. It has been mentioned 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. In all that concerns county business the duties of the court of sessions are purely administrative; and if in its procedure it occasionally introduces judicial forms, it is only with a view to its own information,26 or as a guarantee to those for whom it acts. But when the administration of the township is brought before it, it acts as a judicial body and only in some few cases as an administrative body.27
The first difficulty is to make the township itself, an almost independent power, obey the general laws of the state. I 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 fine.28 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 in the United States, government authority, anxious to keep out of sight, hides itself under the forms of a judicial sentence; and its influence is at the same time fortified by that irresistible power which men attribute to 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, or in a principle without its application in detail.29 But the difficulty begins when it is not the obedience of the township, but that of the town officers, that is to be enforced. All the reprehensible actions which a public functionary can commit are reducible to the following heads:
He may execute the law without energy or zeal; He may neglect what the law requires; He may do what the law forbids.
Only the last two violations of duty can come before a legal tribunal; a positive and appreciable fact is the indispensable foundation of an action at law. Thus, if the selectmen omit the legal formalities usual at town elections, they may be fined.30 But when the officer performs his duty unskillfully, or obeys the letter of the law without zeal or energy, he is out of the reach of judicial interference. The court of sessions, even when clothed with administrative powers, is in this case unable to enforce a more satisfactory obedience. The fear of removal is the only check to these quasi-offenses, and the court of sessions does not originate the town authorities; it cannot remove functionaries whom it does not appoint. Moreover, a perpetual supervision would be necessary to convict the officer of negligence or lukewarmness. Now, the court of sessions sits but twice a year, and then only judges such offenses as are brought to its notice. The only security for that active and enlightened obedience which a court of justice cannot enforce upon public functionaries lies in their arbitrary removal from office. In France this final security is exercised by the heads of the administration; in America it is obtained through the principle of election. Thus, to recapitulate in a few words what I have described
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 punish him.
If he commits a fault in his administrative capacity, a purely administrative tribunal is empowered to punish him; and if the affair is important or urgent, the judge does what the functionary should have done.31
Lastly, if the same individual is guilty of one of those intangible offenses which human justice can neither define nor appreciate, 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 interfere only 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 have no public prosecutor for the court of sessions,32 and it may readily be perceived that it would be difficult to create one. If an accusing magistrate had merely been appointed in the chief town of each county and 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 his agents in each township would have been to center} 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 complaint, 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.33 There are certain great offenses that are officially prosecuted by the state; 34 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 offenses as fall under his notice. But a more especial appeal is made by American legislation to the private interest of each citizen;35 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 interest for the execution of the laws. When an individual is really and sensibly injured by an administrative abuse, his personal interest is a guarantee that he will 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;36 and they thus ensure the execution of the laws by the dangerous expedient of degrading the morals of the people.
Above the county magistrates there is, properly speaking, no administrative power, but only a power of government.
GENERAL REMARKS ON ADMINISTRATION IN THE UNITED STATES. Differences of the states of the Union in their systems of administration--Activity and perfection of the town authorities decreases towards the South--Power of the magistrates in; that of the voter 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 procedures into the administration.
I HAVE already said that, after examining 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 town arrangements exist in every state, but in no other part of the Union is a township to be met with precisely similar to those of New England. The farther we go towards the South, the less active does the business of the township or parish become; it has fewer magistrates, duties, and rights; 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 voter diminished, while the public spirit of the local communities is less excited and less influential.37 These differences may be perceived to a certain extent in the state of New York; they are very evident in Pennsylvania; but they become less striking as we advance to the Northwest. The majority of the immigrants who settle in the Northwestern states are natives of New England, and they carry the administrative habits of their mother country with them into the country which they adopt. A township in Ohio is not unlike a township in Massachusetts.
We have seen that in Massachusetts the mainspring of public administration lies in the township It forms the common center of the interests and affections of the citizens. But this ceases to be the case as we descend to the states in which knowledge is less generally diffused, and where the township consequently offers fewer guarantees of a wise and active administrative. As we leave New England, therefore, we find that the importance of the town is gradually transferred to the county, which becomes the center 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 appointed by the governor and his council; but the county has no representative assembly, and its expenditure is voted by the state 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.38 The county assembly has the right of taxing the inhabitants to a certain extent; and it is in this respect 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 subject in detail, I should have to point out still further differences in the executive details of the several communities. But I have said enough to show the general principles on which the administration in 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 the same spirit animates them. If the township and the county are not everywhere organized 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 own wants. The township and the county are therefore bound to take care of their special interests; the state governs, but does not execute the laws. Exceptions to this principle may be met with, but not a contrary principle.
The first result of this doctrine has been to cause all the magistrates to be chosen either by the inhabitants or at least from among them. As the officers are everywhere elected or appointed for a certain period, it has been impossible to establish the rules of a hierarchy 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 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. One finds this system from one end of the Union to the other. The power of punishing administrative misconduct, or of performing, in urgent cases, administrative acts, 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,39 either as public OFFICERS or as the judges of public misdemeanors; but in most of the states the more important public offenses come under the cognizance of the ordinary tribunals.
Thus the election of public officers, or the inalienability of their functions, the absence of a gradation of powers, and the introduction of judicial action over the secondary branches of the administration are the principal and 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.40 At other times they constitute a sort of court of appeal for the decision of affairs.41 In the state of New York judicial penalties are less used than in other places as a means of administration; and the right of prosecuting the offenses of public officers is vested in fewer hands.42 The same tendency is faintly observable in some other states;43 but in general the prominent feature of the administration in the United States is its excessive decentralization.
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 the various written constitutions, copies of which are easily to be procured. These constitutions rest upon a simple and rational theory; most of their forms have been adopted by all constitutional nations, and have become familiar to us.
Here, then, I have only to give a brief account; I shall endeavor afterwards 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 part in the government in several ways, according to the constitution of the different states; 44 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 offenses, and sometimes also in the decision of certain civil cases.45 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 takes a part in the judicial power only as it impeaches public functionaries before the Senate.
The members of the two houses are nearly everywhere subject to the same conditions of eligibility. 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 new-comers.
By this separation of the legislative body into two branches the Americans plainly did not desire 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 that result from the present constitution of the two houses in the United States are the division of the legislative power, and the consequent check upon political movements; together with the creation of a tribunal of appeal for the revision of the laws.
Time and experience, however, have convinced the Americans that, even 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 logical 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, nearly unknown to the republics of antiquity, first introduced into the world almost by accident, like so many other great truths, and misunderstood by several modern nations has at length become an axiom in the political science of the present age.
THE EXECUTIVE POWER OF THE STATE. Office of governor in an state--His relation to the legislature--His rights and his duties--His dependence on the people.
THE executive power of the state is represented by the governor. It is not by accident that I have used this word; the governor represents this power, although he enjoys but a portion of its rights.The supreme magistrate, under the title of governor, is the official moderator and counselor 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 that he thinks may be usefully employed in providing for them; he is the natural executor of its decrees in all the undertakings that interest the nation at large.46 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 restore order.
Lastly, the governor takes no share in the administration of the townships and counties, except through the appointment of justices of the peace, whom he cannot afterwards dismiss.47
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.
POLITICAL EFFECTS OF DECENTRALIZED THE UNITED STATES. Necessary distinction between a centralized government and a centralized administration--Administration not centralized in the United States: great centralization of the government--Some bad consequences resulting to the United States from the extremely decentralized administration--Administrative advantages of this order of things--The power that administers is less regular, less enlightened, less learned, but much greater than in Europe--Political advantages of this order of things--171 the United States the country makes itself felt everywhere--Support given to the government by the community--Provincial institutions more necessary in proportion as the social condition becomes more democratic--Reason for this.
"CENTRALIZATION" is a word in 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 the several townships. When the power that directs the former or general interests is concentrated in one place or in the same persons, it constitutes a centralized government. To concentrate in like manner in one place the direction of the latter or local interests, constitutes what may be termed a centralized administration.
Upon some points these two kinds of centralization coincide, but by classifying the objects which fall more particularly within the province of each, they may easily be distinguished
It is evident that a centralized government acquires immense power when united to centralized administration. 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 their ordinary habits; it isolates them and then influences each separately.
These two kinds of centralization assist and attract each other, but they must not be supposed to be inseparable. It is impossible to imagine a more completely centralized 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 he constituted the state. 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 one man, and its will puts immense masses in motion and turns its whole power where it pleases. But England, which has done such great things for the last fifty years, has never centralized its administration. Indeed, I cannot conceive that a nation can live and prosper without a powerful centralization of government. But I am of the opinion that a centralized administration is fit only to enervate the nations in which it exists, by incessantly diminishing their local spirit. Although such an administration can bring together at a given moment, on a given point, all the disposable resources of a people, it injures 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 help admirably the transient greatness of a man, but not the durable prosperity of a nation.
Observe that whenever it is said that a state cannot act because it is not centralized, it is the centralization of the government that is spoken of. It is frequently asserted, and I assent to the proposition, that the German Empire has never been able to bring all its powers into action. But the reason is that the state has never been able to enforce obedience to its general laws; 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 that concerned the mass of the people; in other words, there was no centralization of government. The same remark is applicable to the Middle Ages; the cause of all the miseries of feudal society was that the control, not only of administration, but of government, was divided among a thousand hands and broken up in a thousand different ways. The want of a centralized government prevented the nations of Europe from advancing with energy in any straightforward course.
I have shown that in the United States there is no centralized administration and no hierarchy of public functionaries. Local authority has been carried farther than any European nation could endure without great inconvenience, and it has even produced some disadvantageous consequences in America. But in the United States the centralization of the government is perfect; and it would be easy to prove that the national power is more concentrated there 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 numerous assemblies in districts or counties have not, in general, been multiplied lest they should be tempted to leave 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 with 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 town assessor fixes the rate of taxes; the town collector receives them; the town treasurer transmits the amount to the public treasury; and the disputes that 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 its 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 more energetic and efficacious modes of action according to its wants.
The want of a centralized government will not, then, as has often been asserted, prove the destruction of the republics of the New World; far from the American governments being 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. The social power thus centralized is constantly changing hands, because it is subordinate to the power of the people. It often forgets the maxims of wisdom and foresight in the consciousness of its strength. Hence arises its danger. Its vigor, and not its impotence, will probably be the cause of its ultimate destruction.
The system of decentralized administration produces several different effects in America. The Americans seem to me to have overstepped the limits of sound policy in isolating the administration of the government; for order, even in secondary affairs, is a matter of national importance.48 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 one at first to imagine that society is in a state of anarchy; nor does one perceive one's mistake till one 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 state administration to direct them. Abandoned to the exertions of the towns or counties, under the care of elected and temporary agents, they lead to no result, or at least to no durable benefit.
The partisans of centralization in Europe are wont to maintain that the government can administer the affairs of each locality better than the citizens can do it for themselves. This may be true when the central power is enlightened and the local authorities are ignorant; when it is alert and 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 it is so when the people are as enlightened, as awake to their 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 efficacious to the public welfare than the authority of the government. I know 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. 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 completely to supersede the desirous to mislead. However enlightened and skillfull a central power may be, it cannot of itself embrace all the details of the life of a great nation. Such vigilance exceeds the powers of man. And when it attempts unaided to create and set in motion so many complicated springs, it must submit to a very imperfect result or exhaust itself in bootless efforts.
Centralization easily succeeds, indeed, in subjecting the external actions of men to a certain uniformity, which we come at last to love for its own sake, 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 skillfully for the details of the social police; represses small disorders and petty misdemeanors; maintains society in a status quo alike secure from improvement and decline; and perpetuates a drowsy regularity in the conduct of affairs which the heads of the administration are wont to call good order and public tranquillity; 49 in short, it excels in prevention, but not in action. Its force deserts it when society is to be profoundly moved, 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 while the centralized power, in its despair, invokes the assistance of the citizens, it says to them: "You shall act just as I please, as much as I please, and in the direction which I please. You are to take charge of the details without aspiring to guide the system; you are to work in darkness; and afterwards you may judge my work by its results." These are not the conditions on which the alliance of the human will is to be obtained; it must be free in its gait and responsible for its acts, 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.
It is undeniable that the want of those uniform regulations which control the conduct of every inhabitant of France is not infrequently 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 frequently abandoned; for in America, as well as in other countries, the people proceed by sudden impulses and momentary exertions. The European, accustomed to find a functionary always at hand to interfere with all he undertakes, reconciles himself with difficulty 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 that conducts the administration is far less regular, less enlightened, and less skillful, but a hundredfold greater than in Europe. In no country in the world do the citizens make such exertions for the common weal. I know of no people who have established schools so numerous and 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,50 and the perfection of administrative system must not be sought for in the United States; what we find there is the presence of a power which, if it is somewhat wild, is at least robust, and an existence checkered with accidents, indeed, but full of animation and effort.
Granting, for an instant, that the villages and counties of the United States would be more usefully governed by a central au authority which they had never seen than by functionaries taken from among them; admitting, for the sake of argument, that there would be more security in America, and the resources of society would be better employed there, if the whole administration centered in a single arm--still the political advantages which the Americans derive from their decentralized system would induce me to prefer it to the contrary plan. It profits me but little, after all, that a vigilant authority always protects the tranquillity of my pleasures and constantly averts all dangers from my path, without my care or concern, if this same authority is the absolute master of my liberty and my life, and if it so monopolizes movement and life that when it languishes everything languishes around it, that when it sleeps everything must sleep, and that when it dies the state itself must perish.
There are countries in Europe where the native considers himself as a kind of settler, indifferent to the fate of the spot which he inhabits. The greatest changes are effected there without his concurrence, and (unless chance may have apprised him of the event ) without his knowledge; nay, more, the condition of his village, the police of his street, the repairs of the church or the parsonage, do not concern him; 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, without the spirit of ownership or any ideas of improvement. This want of interest in his own affairs goes so far that if his own safety or that of his children is at last endangered, instead of trying to avert the peril, he will fold his arms and wait till the whole nation comes to his aid. This man who has so completely sacrificed his own free will does not, more than any other person, love 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 withdrawn; he perpetually oscillates between servitude and license.
When a nation has arrived at this state, it must either change its customs and its laws, or perish; for the source of public virtues is dried up; and though it may contain subjects, it has no citizens. Such communities are a natural prey to foreign conquests; and if they do not wholly disappear from the scene, it is only because they are surrounded by other nations similar or inferior to themselves; it is because they still have an indefinable instinct of patriotism; and an involuntary pride in the name of their country, or a vague reminiscence of its bygone fame, suffices to give them an impulse of self-preservation.
Nor can the prodigious exertions made by certain nations to defend a country in which they had lived, so to speak, as strangers 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 had become parts of their faith, and in defending their country, they defended also that Holy City of which they were all citizens. The Turkish tribes have never taken an active share in the conduct of their affairs, but they accomplished stupendous enterprises as long as the victories of the Sultan were 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 maintain nothing durable. On close inspection we shall find that religion, and not fear, has ever been the cause of the longlived prosperity of an absolute government. Do what you may, there is no true power among men except in the free union of their will; and patriotism and religion are the only two motives in the world that can long urge all the people towards the same end.
Laws cannot rekindle an extinguished faith, but men may be interested by the laws in the fate of their country. It depends upon the laws to awaken and direct the vague impulse of patriotism, which never abandons the human heart; 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 it is too late to make the experiment; for nations do not grow old as men do, 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 decentralization 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 selfishness that he interests himself in the welfare of his country.
To the European, a public officer represents a superior force; to an American, he represents a right. In America, then, it may be said that no one renders obedience to man, but to justice and to law. If the opinion that 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, 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 in some degree it represents, it excites neither their jealousy nor hatred; as its resources are limited, everyone feels that he must not rely solely on its aid. Thus when the administration thinks fit to act within its own limits, it is not abandoned to itself, as in Europe; the duties of private citizens are not supposed to have lapsed because the state has come into action, but everyone is ready, on the contrary, to guide and support it. This action of individuals, joined to that of the public authorities, frequently accomplishes what the most energetic centralized administration would be unable to do.51
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 best acquainted. In America the means that the authorities have at their disposal for the discovery of crimes and the arrest of criminals are few. A state police does not exist, and passports are unknown. The criminal police of the United States cannot be compared with that of France; the magistrates and public agents are not numerous; they do not always initiate the measures for arresting the guilty; and the examinations of prisoners are rapid and oral. Yet I believe that in no country does crime more rarely elude punishment. The reason is that everyone conceives himself to be interested in furnishing evidence of the crime and in seizing the delinquent. During my stay in the United States I witnessed the spontaneous formation of committees in a county for the pursuit and prosecution of a man who had committed a great crime. In Europe a criminal is an unhappy man who is struggling for his life against the agents of power, while the people are 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.
I believe that provincial institutions are useful to all nations, but nowhere do they appear to me to be more necessary than among 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 matter of great interest. 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 each individual is weak and where the citizens are not united by any common interest? Those who dread the license of the mob and those who fear absolute power ought alike to desire the gradual development of provincial liberties.
I am also convinced that democratic nations are most likely to fall beneath the yoke of a centralized administration, for several reasons, among 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 that directly represents the people; because beyond the people nothing is to be perceived but a mass of equal individuals. But when the same power already has all the attributes of 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 long run, 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 arranged, and frequently absurd; in the hands of the aristocracy they had sometimes been converted into instruments of oppression. The Revolution declared itself the enemy at once of royalty and of provincial institutions; it confounded in indiscriminate hatred all that had preceded it, despotic power and the checks to its abuses; and its tendency was at once to republicanize 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 centralized administration which was one of the great innovations of the Revolution? 52 In this manner popularity may be united with hostility to the rights of the people, and the secret slave of tyranny may be the professed lover of freedom.
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 openly attacked the aristocracy; but I found no one who did not regard provincial independence as a great good. In both countries I heard a thousand different causes assigned for the evils of the state, but the local system was never mentioned among them. I 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 which they can best judge, as it is 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, only those censure the institution who do not know it.
1 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. 2 The same rules are not applicable to the cities, which generally have a mayor, and a corporation divided into two bodies, this, however, is an exception that requires the sanction of a law.--See the Act of February 22, 1822, regulating the powers of the city of Boston. Laws of Massachusetts, Vol. II, p. 588. 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's Register. 3 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 Massachusetts relating to selectmen: law of February 20, 1780, 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. 4 See Laws of Massachusetts, Vol. I, p. 150. Law of March 25,1786. 5 Ibid. 6 All these magistrates actually exist; their different functions are all detailed in a book called The Town Officer, by Isaac Goodwin (Worcester, 1827), and the General Laws of Massachusetts in 3 vols. (Boston, 1823). 7 See Laws of Massachusetts, law of March 23, 1786, Vol. I, p. 250. 8 Ibid., law of February 20, 1786, Vol. I, p. 217. 9 Ibid., law of June 25, 1789, Vol. I, p. 367, and of March 8, 1827, Vol. III, p. 179. 10 See Laws of Massachusetts, law of February 14, 1821, Vol. I, p. 551. 11 Ibid., law of February 20, 1819, Vol. II, p. 494. 12 The council of the governor is an elective body. 13 See Laws of Massachusetts, law of November 2, 1791, Vol. I, p.61. 14 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 traveling on Sunday without good reason; the tithing-men, who are town officers, are required to keep watch and to execute the law. See Laws of Massachusetts, law of March 8, 1792, Vol. I, p. 410. The selectmen draw up the lists of voters for the election of the governor and transmit the result of the ballot to the state secretary of state. Ibid., law of February 24, 1790, Vol. I, p. 488. 15 Thus, for instance, the selectmen authorize the construction of drains, and point out the proper sites for slaughterhouses and other trades which are a nuisance to the neighborhood. See ibid., law of June 7, 1785, Vol. I, p. 193. 16 For example, the selectmen, conjointly with the justices of the peace, take measures for the security of the public in case of contagious diseases Ibid., law of June 22, 1797, Vol. I, p. 539. 17 I say almost, for there are many incidents in town life which are regulated by the justices of peace in their individual capacity, or by an assembly of them in the chief town of the county; thus, licenses are granted by the justices. See ibid., Law of February 28, 1797, Vol. I, p. 297. 18 Thus, licenses are granted only 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 ibid., law 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. Ibid., Law of March 25, 1786, Vol. I, p. 254. 19 In Massachusetts the county magistrates are frequently called upon to investigate the acts of the town magistrates; but it will be shown farther on that this investigation is a consequence, not of their administrative, but of their judicial power. 20 Thus, the town school committees are obliged to make an annual report to the secretary of the state on the condition of the schools. See ibid., law of March 10, 1827, Vol. III, p. 183. 21 Later on we shall see the nature of the governor's functions; here it is enough to note that the governor represents the entire executive power of the state. 22 See Constitution of Massachusetts Chap. II. section 1, paragraph 9; Chap. II, paragraph 3. 23 Thus, as one example among many others, 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. Laws of Massachusetts, law 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. 24 I say most of them because certain administrative misdemeanors are brought before the 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 ibid., law of March 10, 1821, Vol. III, p. 190. For the failure of the town to make provision for military supplies, see ibid., law of February 21, 1822, Vol. II, p. 570. 25 In their individual capacity the justices of the peace take a part in the business of the counties and townships. In general the most important acts of the town can be performed only with the concurrence of some one of them. 26 These affairs may be brought under the following heads: (1) the creation of prisons and courts of justice; (2) the county budget, which is afterwards voted by the state legislature; (3) the distribution of the taxes so voted; (4) grants of certain patents; (5) the building and repair of the county roads. 27 Thus, when a road is under consideration, the court of sessions decides almost all questions regarding the execution of the project with the aid of a jury. 28 See Laws of Massachusetts,, law of February 20, 1786, Vol. I, p. 217. 29 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 ibid., law of March S, 1787, Vol. I, p. 305. 30 Laws of Massachusetts, vol. II, p. 45. 31 If, for instance, a township persists in refusing to name its assessors, the court of sessions nominates them; and the magistrates thus appointed are in vested with the same authority as elected officers. See ibid., the law of February 20, 1787, previously cited. 32 I say the court of sessions because in common courts there is an officer who exercises some of the functions of a public prosecutor. 33 The grand jurors are, for instance, bound to inform the court of the bad state of the roads. Laws of Massachusetts, Vol. 1, p. 308. 34 If, for instance, the treasurer of the county holds back his accounts. Ibid., Vol. I, p. 400. 35 Thus, to take one example out of a thousand, if a private individual breaks his carriage or is injured in consequence of the badness of a road, he can sue the to township or the county for damages at the sessions. Ibid., Vol. I, p. 309. 36 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 1,000 to 2,700 francs. It may readily be imagined that, in such a case, it might happen that no one would care to prosecute. Hence the law adds that "any citizen may enter a complaint for offences of this kind, and that half the fine shall belong to the prosecutor." See ibid., law of March 6, 1810, Vol. II, p. 236. The same clause is frequently found in the Laws 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, if he is convicted, the surveyor receives half the penalty for himself. See the law previously cited, Vol. I, p. 308. 37 For details, see the Revised Statutes of the State of New York, Part I, chap. xi, "Of the powers, duties and privileges of towns," Vol. I, pp. 336-64. 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. And note the special provisions relating to various town officials such as TOWNSHIP'S CLERKS, TRUSTEES, OVERSEERS OF THE POOR, FENCE-VIEWERS, APPRAISERS OF PROPERTY, TOWNSHIP'S TREASURER, SUPERVISORS OF HIGHWAYS. 38 See the Revised Statutes of the State of New York Part I, chap. xi Vol. I, p. 340; ibid., 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. 39 In some of the Southern states the county courts are charged with all the detail of the administration. See the Statutes of the State of Tennessee, at Arts. JUDICIARY, TAXES, etc. 40 For instance, the direction of public instruction is centralized in the hands of the government. The legislature names the members of the university, who are denominated regents; the governor and lieutenant governor of the state are necessarily of the number. ( Revised Statutes [of the state of New York], Vol. I, p. 456. ) 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 Revised Statutes, chap. xv, "Public Instruction," Vol. I, p. 455. The school commissioners are obliged to send an annual report to the general superintendent of the schools. Ibid., p. 488. A similar report is annually made to the same person on the number and condition of the poor. Ibid., p. 631. 41 If anyone 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 feeble 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, in his annual report to the legislature, complained that several school commissioners, notwithstanding his application, had neglected to furnish him with the accounts which were due. He added that "if this omission continues, I shall be obliged to prosecute them, as the law directs, before the proper tribunals." 42 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, Part I, chap. x, Vol. I, p. 383. 43 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. Laws of Massachusetts, Vol. I, p. 361. 44 In Massachusetts the senate is not invested with any administrative functions. 45 As in the state of New York. 46 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 its execution. 47 In some of the states justices of the peace are not appointed by the governor. 48 The authority that represents the state ought not, I think, to waive the right of inspecting the local administration, even when it does not itself administer. Suppose, for instance, that an agent of the government was stationed at some appointed spot in each county 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 knowledge of the administrative offenses they ought to repress. 49 China appears to me to present the most perfect instance of that species of well-being which a highly centralized administration may furnish to its subjects. Travelers assure us that the Chinese have tranquillity without happiness, industry without improvement, stability without strength, and public order without public morality. The condition of society there is always tolerable, never excellent. I imagine that when China is opened to European observation, it will be found to contain the most perfect model of a centralized administration that exists in the universe. 50 A writer of talent who, in a comparison of the finances of France with those of the United States, has proved that ingenuity cannot always supply the place of the knowledge of facts, justly reproaches the Americans for the sort of confusion that 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 order and method which prevail alike in all the municipal budgets, from the largest city 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 in those American townships whose budgets are neither methodical nor uniform, I see that society there is always at work 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 merely to es- tablish order in the midst of its misery I am therefore led to suppose that the prosperity of the American townships and the apparent confusion of their finances, the distress of the French communes and the perfection or their budget, may be attributable to the same cause At any rate, I am suspicious of a good that is united with so many evils, and I am not averse to an evil that is compensated by so many benefits. 51 See Appendix I 52 See Appendix K