American Institutions and Their Influence Part 11

[69] See the act of 14th February, 1821. Laws of Ma.s.sachusetts, vol i., p. 551.

[70] See the act of 20th February, 1819. Laws of Ma.s.sachusetts, vol ii., p. 494.

[71] The council of the governor is an elective body.

[72] See the act of 2d November, 1791. Laws of Ma.s.sachusetts, vol i., p.

61.

[73] See "The Town Officer," especially at the words SELECTMEN, a.s.sESSORS, COLLECTORS, SCHOOLS, SURVEYORS OF HIGHWAYS. I take one example in a thousand: the state prohibits travelling on a Sunday; the _tything-men_, who are town-officers, are especially charged to keep watch and to execute the law. See the laws of Ma.s.sachusetts, vol. i., p.

410. The selectmen draw up the lists of electors for the election of the governor, and transmit the result of the ballot to the secretary of the state. See act of 24th February, 1796; _Ib_., vol. i., p. 488.

[74] Thus, for instance, the selectmen authorise the construction of drains, point out the proper sites for slaughter-houses and other trades which are a nuisance to the neighborhood. See the act of 7th June, 1735; Laws of Ma.s.sachusetts, vol. i., p. 193.

[75] The selectmen take measures for the security of the public in case of contagious disease, conjointly with the justices of the peace. See the act of 22d June, 1797; vol. i., p. 539.

[76] I say _almost_, for there are various circ.u.mstances in the annals of a towns.h.i.+p which are regulated by the justice of the peace in his individual capacity, or by the justices of the peace, a.s.sembled in the chief town of the county; thus licenses are granted by the justices. See the act of 28th Feb., 1787; vol. i., p. 297.

[77] Thus licenses are only granted to such persons as can produce a certificate of good conduct from the selectmen. If the selectmen refuse to give the certificate, the party may appeal to the justices a.s.sembled in the court of sessions; and they may grant the license. See the act of 12th March, 1808; vol. ii., p. 186.

The towns.h.i.+ps have the right to make by-laws, and to enforce them by fines which are fixed by law; but these by-laws must be approved by the court of sessions. See the act of 23d March, 1786; vol. i., p. 254.

[78] In Ma.s.sachusetts 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.

[79] The town committees of schools are obliged to make an annual report to the secretary of the state on the condition of the School. See the act of 10th March, 1827; vol. iii., p. 183.

[80] 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.

[81] See the const.i.tution of Ma.s.sachusetts, chap ii., -- 1; chap iii., -- 3.

[82] Thus, for example, a stranger arrives in a towns.h.i.+p from a country where a contagious disease prevails, and he falls ill. Two justices of the peace can, with the a.s.sent of the selectmen, order the sheriff of the county to remove and take care of him. Act of 22d June, 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.

[83] I say the greater number because certain administrative misdemeanors are brought before the ordinary tribunals. If, for instance, a towns.h.i.+p refuses to make the necessary expenditure for its schools, or to name a school-committee, it is liable to a heavy fine.

But this penalty is p.r.o.nounced by the supreme judicial court or the court of common pleas. See the act of 10th March, 1827; laws of Ma.s.sachusetts, vol. iii., p. 190. Or when a towns.h.i.+p neglects to provide the necessary war-stores. Act of 21st February, 1822; Id. vol. ii., p.

570.

[84] In their individual capacity, the justices of the peace take a part in the business of the counties and towns.h.i.+ps. The more important acts of the munic.i.p.al government are rarely decided upon without the co-operation of one of their body.

[85] These affairs may be brought under the following heads: 1. The erection of prisons and courts of justice. 2. The county budget, which is afterward voted by the state. 3. The a.s.sessment of the taxes so voted. 4. Grants of certain patents. 5. The laying down and repairs of the county roads.

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

[87] See the act of the 20th February, 1786; laws of Ma.s.sachusetts, vol.

1., p. 217.

[88] There is an indirect method of enforcing the obedience of a towns.h.i.+p. 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 towns.h.i.+p. Thus by threatening the officer, the court of sessions exacts compliance from the town. See the act of 5th March, 1787; laws of Ma.s.sachusetts, vol.

1., p. 305.

[89] Laws of Ma.s.sachusetts, vol. 2., p. 45.

[90] If, for instance, a towns.h.i.+p persists in refusing to name its a.s.sessors, the court of sessions nominates them; and the magistrates thus appointed are invested with the same authority as elected officers See the act quoted above, 20th February, 1787.

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

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

[93] If, for instance, the treasurer of the county holds back his account. Laws of Ma.s.sachusetts, vol. i., p. 406.

[94] Thus, if a private individual breaks down or is wounded in consequence of the badness of a road, he can sue the towns.h.i.+p or the county for damages at the sessions. Laws of Ma.s.sachusetts, vol. i., p.

309.

[95] In cases of invasion or insurrection, if the town officers neglect to furnish the necessary stores and ammunition for the militia, the towns.h.i.+p may be condemned to a fine of from two to five hundred dollars.

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 the fine shall belong to the plaintiff. See the act of 6th March, 1810; vol. ii., p. 236. The same clause is frequently to be met with in the laws of Ma.s.sachusetts. Not only are private individuals thus incited to prosecute public officers, but the public officers are encouraged in the same manner to bring the disobedience of private individuals to justice. If a citizen refuses to perform the work which has been a.s.signed to him upon a road, the road-surveyor may prosecute him, and he receives half the penalty for himself. See the laws above quoted, vol. i., p. 308.

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

See in the digest of the laws of Pennsylvania, the words, a.s.sESSORS, COLLECTOR, CONSTABLES, OVERSEER OF THE POOR, SUPERVISORS OF HIGHWAYS: and in the acts of a general nature of the state of Ohio, the act of 25th February, 1834, relating to towns.h.i.+ps, p. 412; beside the peculiar dispositions relating to divers town officers, such as towns.h.i.+p's clerks, trustees, overseers of the poor, fence-viewers, appraisers of property, towns.h.i.+p's treasurer, constables, supervisors of highways.

[97] The author means the state legislature. The congress has no control over the expenditure of the counties or of the states.

[98] See the Revised Statutes of the state of New York, part i., chap.

xi., vol. i., p. 410. _Idem_, chap, xii., p. 366: also in the acts of the state of Ohio, an act relating to county commissioners, 26th February, 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 towns.h.i.+p elects a representative, who has a share in the administration of the county as well as in that of the towns.h.i.+p.

[99] 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, &c.

[100] 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 lieutenant-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., "Public Instruction," Revised Statutes, vol i., p. 455.

The school commissioners are obliged to send an annual report to the superintendent of the state. _Idem_, p. 448.

A similar report is annually made to the same person on the number and condition of the poor. _Idem_, p. 631.

[101] 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 centralisation 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 punis.h.i.+ng 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.

[102] Thus the district-attorney is directed to recover all fines, unless such a right has been specially awarded to another magistrate.

Revised Statutes, vol. i., p. 383.

[103] Several traces of centralisation may be discovered in Ma.s.sachusetts, for instance, the committees of the town-schools are directed to make an annual report to the secretary of state. See Laws of Ma.s.sachusetts, vol. i., p. 367.

[104] See the const.i.tution of New York.

[105] In Ma.s.sachusetts the Senate is not invested with any administrative functions.