American Institutions and Their Influence Part 9

There may be nations whom this distribution of social powers might lead to anarchy; but in itself it is not anarchical. The action of authority is indeed thus rendered less irresistible, and less perilous, but it is not totally suppressed.

The revolution of the United States was the result of a mature and deliberate taste for freedom, not of a vague or ill-defined craving for independence. It contracted no alliance with the turbulent pa.s.sions of anarchy; but its course was marked, on the contrary, by an attachment to whatever was lawful and orderly.

It was never a.s.sumed in the United States that the citizen of a free country has a right to do whatever he pleases: on the contrary, social obligations were there imposed upon him more various than anywhere else; no idea was ever entertained of attacking the principles, or of contesting the rights of society; but the exercise of its authority was divided, to the end that the office might be powerful and the officer insignificant, and that the community should be at once regulated and free. In no country in the world does the law hold so absolute a language as in America; and in no country is the right of applying it vested in so many hands. The administrative power in the United States presents nothing either central or hierarchical in its const.i.tution, which accounts for its pa.s.sing unperceived. The power exists, but its representative is not to be discerned.

We have already seen that the independent towns.h.i.+ps of New England protect their own private interests; and the munic.i.p.al magistrates are the persons to whom the execution of the laws of the state is most frequently intrusted.[73] Beside the general laws, the state sometimes pa.s.ses general police regulations; but more commonly the towns.h.i.+ps 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 enactments as concern the health of the community, and the peace as well as morality of the citizens.[74] Lastly, these munic.i.p.al magistrates provide of their own accord and without any delegated powers, for those unforeseen emergencies which frequently occur in society.[75]

It results, from what we have said, that in the state of Ma.s.sachusetts the administrative authority is almost entirely restricted to the towns.h.i.+p,[76] but that it is distributed among a great number of individuals. In the French commune there is properly but one official functionary, namely, the maire; and in New England we have seen that there are nineteen. These nineteen functionaries do not in general depend upon one another. The law carefully prescribes a circle of action to each of these magistrates; and within that circle they have an entire right to perform their functions independently of any other authority.

Above the towns.h.i.+p scarcely any trace of a series of official dignities is to be found. It sometimes happens that the county officers alter a decision of the towns.h.i.+ps, or town magistrates,[77] but in general the authorities of the county have no right to interfere with the authorities of the towns.h.i.+p,[78] except in such matters as concern the county.

The magistrates of the towns.h.i.+p, as well as those of the county, are bound to communicate their acts to the central government in a very small number of predetermined cases.[79] But the central government is not represented by an individual whose business it is to publish police regulations and ordinances enforcing the execution of the laws; to keep up a regular communication with the officers of the towns.h.i.+p and the county; to inspect their conduct, to direct their actions, or reprimand their faults. There is no point which serves as a centre to the radii of the administration.

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 towns.h.i.+ps 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 mult.i.tude 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 intrusted to a superior functionary of directing all the others, and of cas.h.i.+ering 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 pre-supposes that of cas.h.i.+ering 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 cas.h.i.+ered 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 const.i.tuents; 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 inst.i.tution of elective functionaries as one concession, and the subjection of the elective 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 counter-balance 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 inst.i.tutions 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 inst.i.tution which is unknown upon the continent of Europe: I allude to that of 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 superst.i.tions which render legal officers unfit members of a government. The Americans have adopted the system of English justices of the peace, but they have deprived it of that aristocratic character which is discernible in the mother-country. The governor of Ma.s.sachusetts[80] appoints a certain number of justices of the peace in every county, whose functions last seven years.[81] He farther designates three individuals from among 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 intrusted with administrative functions in conjunction with elected officers;[82]

they sometimes const.i.tute 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 Ma.s.sachusetts it is empowered to enforce the obedience of the greater number[83] of public officers.[84] It must be observed that in the state of Ma.s.sachusetts the court of sessions is at the same time an administrative body, properly so called, and a political tribunal. It has been a.s.serted that the county is a purely administrative division. The court of sessions presides over that small number of affairs which, as they concern several towns.h.i.+ps, or all the towns.h.i.+ps of the county in common, cannot be intrusted to any of them in particular.[85]

In all that concerns county business, the duties of the court of sessions are therefore purely administrative; and if in its investigations it occasionally borrows the forms of judicial procedure, it is only with a view to its own information,[86] or as a guarantee to the community over which it presides. But when the administration of the towns.h.i.+p is brought before it, it almost always acts as a judicial body, and in some few cases as an administrative a.s.sembly.

The first difficulty is to procure the obedience of an authority so entirely independent of the general laws of the state as the towns.h.i.+p is. We have stated that a.s.sessors are annually named by the town meetings, to levy the taxes. If a towns.h.i.+p attempts to evade the payment of the taxes by neglecting to name its a.s.sessors, the court of sessions condemns it to a heavy penalty.[87] The fine is levied on each of the inhabitants; and the sheriff of the county, who is an officer of justice, executes the mandate. Thus it is that in the United States the authority of the government is mysteriously concealed under the forms of a judicial sentence; and the influence is at the same time fortified by that irresistible power with which men have invested the formalities of law.

These proceedings are easy to follow, and to understand. The demands made upon a towns.h.i.+p are in general plain and accurately defined; they consist in a simple fact without any complication, or in a principle without its application in detail.[88] But the difficulty increases when it is not the obedience of the towns.h.i.+p, but that of the town officers, which is to be enforced. All the reprehensible actions of which a public functionary may be guilty are reducible to the following heads:

He may execute the law without energy or zeal;

He may neglect to execute the law;

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

The last two violations of duty can alone come under the cognizance of a tribunal; a positive and appreciable fact is the indispensable foundation of an action at law. Thus, if the selectmen omit to fulfil the legal formalities usual to town elections, they may be condemned to pay a fine;[89] but when the public officer performs his duty without ability, and when he obeys the letter of the law without zeal or energy, he is at least beyond the reach of judicial interference. The court of sessions, even when it is invested with its administrative powers, is in this case unable to compel him to a more satisfactory obedience. The fear of removal is the only check to these quasi offences; and as the court of sessions does not originate the town authorities, it cannot remove functionaries whom it does not appoint. Moreover, a perpetual investigation would be necessary to convict the subordinate officer of negligence or lukewarmness; and the court of sessions sits but twice a year, and then only judges such offences as are brought before its notice. The only security for that active and enlightened obedience, which a court of justice cannot impose upon public officers, lies in the possibility of their arbitrary removal. In France this security is sought for in powers exercised by the heads of the administration; in America it is sought for in the principle of election.

Thus, to recapitulate in a few words what I have been showing:--

If a public officer in New England commits a crime in the exercise of his functions, the ordinary courts of justice are always called upon to pa.s.s sentence upon him.

If he commits a fault in his official capacity, a purely administrative tribunal is empowered to punish him; and, if the affair is important or urgent, the judge supplies the omission of the functionary.[90]

Lastly, if the same individual is guilty of one of those intangible offences, of which human justice has no cognizance, he annually appears before a tribunal from which there is no appeal, which can at once reduce him to insignificance, and deprive him of his charge. This system undoubtedly possesses great advantages, but its execution is attended with a practical difficulty which it is important to point out.

I have already observed, that the administrative tribunal, which is called the court of sessions, has no right of inspection over the town officers. It can only interfere when the conduct of a magistrate is specially brought under its notice; and this is the delicate part of the system. The Americans of New England are unacquainted with the office of public prosecutor in the court of sessions,[91] and it may readily be perceived that it could not have been established without difficulty.

If an accusing magistrate had merely been appointed in the chief town of each county, and if he had been una.s.sisted by agents in the towns.h.i.+ps, 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 towns.h.i.+p, would have been to centre in his person the most formidable of powers, that of a judicial administration. Moreover, laws are the children of habit, and nothing of the kind exists in the legislation of England. The Americans have therefore divided the officers of inspection and of prosecution as well as all the other functions of the administration. Grand-jurors are bound by the law to apprize the court to which they belong of all the misdemeanors which may have been committed in their county.[92] There are certain great offences which are officially prosecuted by the state;[93] but more frequently the task of punis.h.i.+ng delinquents devolves upon the fiscal officer, whose province it is to receive the fine; thus the treasurer of the towns.h.i.+p is charged with the prosecution of such administrative offences as fall under his notice. But a more especial appeal is made by American legislation to the private interest of the citizen,[94] and this great principle is constantly to be met with in studying the laws of the United States. American legislators are more apt to give men credit for intelligence than for honesty; and they rely not a little on personal cupidity for the execution of the laws. When an individual is really and sensibly injured by an administrative abuse, it is natural that his personal interest should induce him to prosecute. But if a legal formality be required which, however advantageous to the community, is of small importance to individuals, plaintiffs may be less easily found; and thus, by a tacit agreement, the laws might fall into disuse. Reduced by their system to this extremity, the Americans are obliged to encourage informers by bestowing on them a portion of the penalty in certain cases;[95] and to ensure the execution of the laws by the dangerous expedient of degrading the morals of the people.

The only administrative authority above the county magistrates is, properly speaking, that of the government.

GENERAL REMARKS ON THE ADMINISTRATION OF THE UNITED STATES.

Difference of the States of the Union in their Systems of Administration.--Activity and Perfection of the local Authorities decreases towards the South.--Power of the Magistrates increases; that of the Elector diminishes.--Administration pa.s.ses from the Towns.h.i.+p to the County.--States of New York, Ohio, Pennsylvania.--Principles of Administration applicable to the whole Union.--Election of public Officers, and Inalienability of their Functions.--Absence of Gradation of Ranks.--Introduction of judicial Resources into the Administration.

I have already promised that after having examined the const.i.tution of the towns.h.i.+p and the county of New England in detail, I should take a general view of the remainder of the Union. Towns.h.i.+ps and a local activity exist in every state; but in no part of the confederation is a towns.h.i.+p to be met with precisely similar to those in New England. The more we descend toward the south, the less active does the business of the towns.h.i.+p or parish become; the number of magistrates, of functions, and of rights, decreases; the population exercises a less immediate influence on affairs; town-meetings are less frequent, and the subjects of debates less numerous. The power of the elected magistrate is augmented, and that of the elector diminished, while the public spirit of the local communities is less awakened and less influential.[96]

These differences may be perceived to a certain extent in the state of New York; they are very sensible in Pennsylvania; but they become less striking as we advance to the northwest. The majority of the emigrants who settle in the northwestern states are natives of New England, and they carry the habits of their mother-country with them into that which they adopt. A towns.h.i.+p in Ohio is by no means dissimilar from a towns.h.i.+p in Ma.s.sachusetts.

We have seen that in Ma.s.sachusetts the princ.i.p.al part of the public administration lies in the towns.h.i.+p. 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 towns.h.i.+p 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 Ma.s.sachusetts the business of the town is conducted by the court of sessions, which is composed of a _quorum_ named by the governor and his council; but the county has no representative a.s.sembly, and its expenditure is voted by the national[97] 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 const.i.tute the a.s.sembly of the county.[98] The county a.s.sembly 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 towns.h.i.+ps, and restricts their authority within much narrower bounds than in Ma.s.sachusetts.

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

The first consequence of this doctrine has been to cause all the magistrates to be chosen either by, or at least from among the citizens.

As the officers are everywhere elected or appointed for a certain period, it has been impossible to establish the rules of a dependent series of authorities; there are almost as many independent functionaries as there are functions, and the executive power is disseminated in a mult.i.tude of hands. Hence arose the indispensable necessity of introducing the control of the courts of justice over the administration, and the system of pecuniary penalties, by which the secondary bodies and their representatives are constrained to obey the laws. The system obtains from one end of the Union to the other. The power of punis.h.i.+ng 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 inst.i.tution 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 partic.i.p.ate in the administration of the towns.h.i.+ps and the counties,[99] either as public officers or as the judges of public misdemeanors, but in most of the states the more important cla.s.ses of public offences come under the cognisance of the ordinary tribunals.

The election of public officers, or the inalienability of their functions, the absence of a gradation of powers, and the introduction of a judicial control over the secondary branches of the administration, are the universal characteristics of the American system from Maine to the Floridas. In some states (and that of New York has advanced most in this direction) traces of a centralised administration begin to be discernible. In the state of New York the officers of the central government exercise, in certain cases, a sort of inspection of control over the secondary bodies.[100] At other times they const.i.tute a court of appeal for the decision of affairs.[101] In the state of New York judicial penalties are less used than in other parts as a means of administration; and the right of prosecuting the offences of public officers is vested in fewer hands.[102] The same tendency is faintly observable in some other states;[103] but in general the prominent feature of the administration in the United States is its excessive local independence.

OF THE STATE.

I have described the towns.h.i.+ps and the administration: it now remains for me to speak of the state and government. This is ground I may pa.s.s over rapidly, without fear of being misunderstood; for all I have to say is to be found in written forms of the various const.i.tutions, which are easily to be procured.[104] These const.i.tutions rest upon a simple and rational theory; their forms have been adopted by all const.i.tutional nations, and are become familiar to us.

In this place, therefore, it is only necessary for me to give a short a.n.a.lysis; I shall endeavor afterward to pa.s.s 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 a.s.semblies, the first of which generally bears the name of the senate.

The senate is commonly a legislative body; but it sometimes becomes an executive and judicial one. It takes a part in the government in several ways, according to the const.i.tution of the different states;[105] but it is in the nomination of public functionaries that it most commonly a.s.sumes an executive power. It partakes of judicial power in the trial of certain political offences, and sometimes also in the decision of certain civil cases.[106] The number of its members is always small. The other branch of the legislature, which is usually called the house of representatives, has no share whatever in the administration, and only takes a part in the judicial power inasmuch as it impeaches public functionaries before the senate.

The members of the two houses are nearly everywhere subject to the same conditions of election. They are chosen in the same manner, and by the same citizens.

The only difference which exists between them is, that the term for which the senate is chosen, is in general longer than that of the house of representatives. The latter seldom remain in office longer than a year; the former usually sit two or three years.

By granting to the senators the privilege of being chosen for several years, and being renewed seriatim, the law takes care to preserve in the legislative body a nucleus of men already accustomed to public business, and capable of exercising a salutary influence upon the junior members.

The Americans, plainly, did not desire, by this separation of the legislative body into two branches, to make one house hereditary and the other elective; one aristocratic and the other democratic. It was not their object to create in the one a bulwark to power, while the other represented the interests and pa.s.sions of the people. The only advantages which result from the present const.i.tution of the United States, are, the division of the legislative power, and the consequent check upon political a.s.semblies; with the creation of a tribunal of appeal for the revision of the laws.

Time and experience, however, have convinced the Americans that if these are its only advantages, the division of the legislative power is still a principle of the greatest necessity. Pennsylvania was the only one of the United States which at first attempted to establish a single house of a.s.sembly; and Franklin himself was so far carried away by the necessary consequences of the principle of the sovereignty of the people, as to have concurred in the measure; but the Pennsylvanians were soon obliged to change the law, and to create two houses. Thus the principle of the division of the legislative power was finally established, and its necessity may henceforward be regarded as a demonstrated truth.

This theory, which was nearly unknown to the republics of antiquity--which was introduced into the world almost by accident, like so many other great truths--and misunderstood by several modern nations, is at length become an axiom in the political science of the present age.