Chapter V: Necessity Of Examining The Condition Of The States—Part II

What, then, is the uniform plan on which the government is conducted, and how is the compliance of the counties and their magistrates or the townships and their officers enforced? In the States of New England the legislative authority embraces more subjects than it does in France; the legislator penetrates to the very core of the administration; the law descends to the most minute details; the same enactment prescribes the principle and the method of its application, and thus imposes a multitude of strict and rigorously defined obligations on the secondary functionaries of the State. The consequence of this is that if all the secondary functionaries of the administration conform to the law, society in all its branches proceeds with the greatest uniformity: the difficulty remains of compelling the secondary functionaries of the administration to conform to the law. It may be affirmed that, in general, society has only two methods of enforcing the execution of the laws at its disposal: a discretionary power may be entrusted to a superior functionary of directing all the others, and of cashiering them in case of disobedience; or the courts of justice may be authorized to inflict judicial penalties on the offender: but these two methods are not always available.

The right of directing a civil officer presupposes that of cashiering him if he does not obey orders, and of rewarding him by promotion if he fulfils his duties with propriety. But an elected magistrate can neither be cashiered nor promoted. All elective functions are inalienable until their term is expired. In fact, the elected magistrate has nothing either to expect or to fear from his constituents; and when all public offices are filled by ballot there can be no series of official dignities, because the double right of commanding and of enforcing obedience can never be vested in the same individual, and because the power of issuing an order can never be joined to that of inflicting a punishment or bestowing a reward.

The communities therefore in which the secondary functionaries of the government are elected are perforce obliged to make great use of judicial penalties as a means of administration. This is not evident at first sight; for those in power are apt to look upon the institution of elective functionaries as one concession, and the subjection of the elected magistrate to the judges of the land as another. They are equally averse to both these innovations; and as they are more pressingly solicited to grant the former than the latter, they accede to the election of the magistrate, and leave him independent of the judicial power. Nevertheless, the second of these measures is the only thing that can possibly counterbalance the first; and it will be found that an elective authority which is not subject to judicial power will, sooner or later, either elude all control or be destroyed. The courts of justice are the only possible medium between the central power and the administrative bodies; they alone can compel the elected functionary to obey, without violating the rights of the elector. The extension of judicial power in the political world ought therefore to be in the exact ratio of the extension of elective offices: if these two institutions do not go hand in hand, the State must fall into anarchy or into subjection.

It has always been remarked that habits of legal business do not render men apt to the exercise of administrative authority. The Americans have borrowed from the English, their fathers, the idea of an institution which is unknown upon the continent of Europe: I allude to that of the Justices of the Peace. The Justice of the Peace is a sort of mezzo termine between the magistrate and the man of the world, between the civil officer and the judge. A justice of the peace is a well-informed citizen, though he is not necessarily versed in the knowledge of the laws. His office simply obliges him to execute the police regulations of society; a task in which good sense and integrity are of more avail than legal science. The justice introduces into the administration a certain taste for established forms and publicity, which renders him a most unserviceable instrument of despotism; and, on the other hand, he is not blinded by those superstitions which render legal officers unfit members of a government. The Americans have adopted the system of the English justices of the peace, but they have deprived it of that aristocratic character which is discernible in the mother-country. The Governor of Massachusetts *p appoints a certain number of justices of the peace in every county, whose functions last seven years. *q He further designates three individuals from amongst the whole body of justices who form in each county what is called the Court of Sessions. The justices take a personal share in public business; they are sometimes entrusted with administrative functions in conjunction with elected officers, *r they sometimes constitute a tribunal, before which the magistrates summarily prosecute a refractory citizen, or the citizens inform against the abuses of the magistrate. But it is in the Court of Sessions that they exercise their most important functions. This court meets twice a year in the county town; in Massachusetts it is empowered to enforce the obedience of the greater number *s of public officers. *t It must be observed, that in the State of Massachusetts the Court of Sessions is at the same time an administrative body, properly so called, and a political tribunal. It has been asserted that the county is a purely administrative division. The Court of Sessions presides over that small number of affairs which, as they concern several townships, or all the townships of the county in common, cannot be entrusted to any one of them in particular. *u In all that concerns county business the duties of the Court of Sessions are purely administrative; and if in its investigations it occasionally borrows the forms of judicial procedure, it is only with a view to its own information, *v or as a guarantee to the community over which it presides. But when the administration of the township is brought before it, it always acts as a judicial body, and in some few cases as an official assembly.

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

q
[ See the Constitution of Massachusetts, chap. II. sect. 1. Section 9; chap. III. Section 3.]

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

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

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

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

The first difficulty is to procure the obedience of an authority as entirely independent of the general laws of the State as the township is. We have stated that assessors are annually named by the town-meetings to levy the taxes. If a township attempts to evade the payment of the taxes by neglecting to name its assessors, the Court of Sessions condemns it to a heavy penalty. *w The fine is levied on each of the inhabitants; and the sheriff of the county, who is the officer of justice, executes the mandate. Thus it is that in the United States the authority of the Government is mysteriously concealed under the forms of a judicial sentence; and its influence is at the same time fortified by that irresistible power with which men have invested the formalities of law.

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

These proceedings are easy to follow and to understand. The demands made upon a township are in general plain and accurately defined; they consist in a simple fact without any complication, or in a principle without its application in detail. *x But the difficulty increases when it is not the obedience of the township, but that of the town officers which is to be enforced. All the reprehensible actions of which a public functionary may be guilty are reducible to the following heads:

x
[ There is an indirect method of enforcing the obedience of a township. Suppose that the funds which the law demands for the maintenance of the roads have not been voted, the town surveyor is then authorized, ex officio, to levy the supplies. As he is personally responsible to private individuals for the state of the roads, and indictable before the Court of Sessions, he is sure to employ the extraordinary right which the law gives him against the township. Thus by threatening the officer the Court of Sessions exacts compliance from the town. See Act of March 5, 1787, Id., vol. i. p. 305.]

He may execute the law without energy or zeal;

He may neglect to execute the law;

He may do what the law enjoins him not to do.

The last two violations of duty can alone come under the cognizance of a tribunal; a positive and appreciable fact is the indispensable foundation of an action at law. Thus, if the selectmen omit to fulfil the legal formalities usual at town elections, they may be condemned to pay a fine; *y but when the public officer performs his duty without ability, and when he obeys the letter of the law without zeal or energy, he is at least beyond the reach of judicial interference. The Court of Sessions, even when it is invested with its official powers, is in this case unable to compel him to a more satisfactory obedience. The fear of removal is the only check to these quasi-offences; and as the Court of Sessions does not originate the town authorities, it cannot remove functionaries whom it does not appoint. Moreover, a perpetual investigation would be necessary to convict the officer of negligence or lukewarmness; and the Court of Sessions sits but twice a year and then only judges such offences as are brought before its notice. The only security of that active and enlightened obedience which a court of justice cannot impose upon public officers lies in the possibility of their arbitrary removal. In France this security is sought for in powers exercised by the heads of the administration; in America it is sought for in the principle of election.

y
[ Laws of Massachusetts, vol. ii. p. 45.]

Thus, to recapitulate in a few words what I have been showing: If a public officer in New England commits a crime in the exercise of his functions, the ordinary courts of justice are always called upon to pass sentence upon him. If he commits a fault in his official capacity, a purely administrative tribunal is empowered to punish him; and, if the affair is important or urgent, the judge supplies the omission of the functionary. *z Lastly, if the same individual is guilty of one of those intangible offences of which human justice has no cognizance, he annually appears before a tribunal from which there is no appeal, which can at once reduce him to insignificance and deprive him of his charge. This system undoubtedly possesses great advantages, but its execution is attended with a practical difficulty which it is important to point out.

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

I have already observed that the administrative tribunal, which is called the Court of Sessions, has no right of inspection over the town officers. It can only interfere when the conduct of a magistrate is specially brought under its notice; and this is the delicate part of the system. The Americans of New England are unacquainted with the office of public prosecutor in the Court of Sessions, *a and it may readily be perceived that it could not have been established without difficulty. If an accusing magistrate had merely been appointed in the chief town of each county, and if he had been unassisted by agents in the townships, he would not have been better acquainted with what was going on in the county than the members of the Court of Sessions. But to appoint agents in each township would have been to centre in his person the most formidable of powers, that of a judicial administration. Moreover, laws are the children of habit, and nothing of the kind exists in the legislation of England. The Americans have therefore divided the offices of inspection and of prosecution, as well as all the other functions of the administration. Grand jurors are bound by the law to apprise the court to which they belong of all the misdemeanors which may have been committed in their county. *b There are certain great offences which are officially prosecuted by the States; *c but more frequently the task of punishing delinquents devolves upon the fiscal officer, whose province it is to receive the fine: thus the treasurer of the township is charged with the prosecution of such administrative offences as fall under his notice. But a more special appeal is made by American legislation to the private interest of the citizen; *d and this great principle is constantly to be met with in studying the laws of the United States. American legislators are more apt to give men credit for intelligence than for honesty, and they rely not a little on personal cupidity for the execution of the laws. When an individual is really and sensibly injured by an administrative abuse, it is natural that his personal interest should induce him to prosecute. But if a legal formality be required, which, however advantageous to the community, is of small importance to individuals, plaintiffs may be less easily found; and thus, by a tacit agreement, the laws may fall into disuse. Reduced by their system to this extremity, the Americans are obliged to encourage informers by bestowing on them a portion of the penalty in certain cases, *e and to insure the execution of the laws by the dangerous expedient of degrading the morals of the people. The only administrative authority above the county magistrates is, properly speaking, that of the Government.

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

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

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

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

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

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

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

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

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

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

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

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

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

The election of public officers, or the inalienability of their functions, the absence of a gradation of powers, and the introduction of a judicial control over the secondary branches of the administration, are the universal characteristics of the American system from Maine to the Floridas. In some States (and that of New York has advanced most in this direction) traces of a centralized administration begin to be discernible. In the State of New York the officers of the central government exercise, in certain cases, a sort of inspection or control over the secondary bodies. *i

i
[ For instance, the direction of public instruction centres in the hands of the Government. The legislature names the members of the University, who are denominated Regents; the Governor and Lieutentant-Governor of the State are necessarily of the number.—Revised Statutes, vol. i. p. 455. The Regents of the University annually visit the colleges and academies, and make their report to the legislature. Their superintendence is not inefficient, for several reasons: the colleges in order to become corporations stand in need of a charter, which is only granted on the recommendation of the Regents; every year funds are distributed by the State for the encouragement of learning, and the Regents are the distributors of this money. See chap. xv. “Instruction,” Revised Statutes, vol. i. p. 455.

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

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

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

j
[ If any one conceives himself to be wronged by the school-commissioners (who are town-officers), he can appeal to the superintendent of the primary schools, whose decision is final.—Revised Statutes, vol. i. p. 487.

Provisions similar to those above cited are to be met with from time to time in the laws of the State of New York; but in general these attempts at centralization are weak and unproductive. The great authorities of the State have the right of watching and controlling the subordinate agents, without that of rewarding or punishing them. The same individual is never empowered to give an order and to punish disobedience; he has therefore the right of commanding, without the means of exacting compliance. In 1830 the Superintendent of Schools complained in his Annual Report addressed to the legislature that several school-commissioners had neglected, notwithstanding his application, to furnish him with the accounts which were due. He added that if this omission continued he should be obliged to prosecute them, as the law directs, before the proper tribunals.]

k
[ Thus the district-attorney is directed to recover all fines below the sum of fifty dollars, unless such a right has been specially awarded to another magistrate.—Revised Statutes, vol. i. p. 383.]

l
[ Several traces of centralization may be discovered in Massachusetts; for instance, the committees of the town-schools are directed to make an annual report to the Secretary of State. See Laws of Massachusetts, vol. i. p. 367.]

Of The State

I have described the townships and the administration; it now remains for me to speak of the State and the Government. This is ground I may pass over rapidly, without fear of being misunderstood; for all I have to say is to be found in written forms of the various constitutions, which are easily to be procured. These constitutions rest upon a simple and rational theory; their forms have been adopted by all constitutional nations, and are become familiar to us. In this place, therefore, it is only necessary for me to give a short analysis; I shall endeavor afterwards to pass judgment upon what I now describe.