American Institutions and Their Influence by Alexis de Tocqueville et al

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They are bound, however, to comply with the demands of the community. If
the state is in need of money, a town can neither give nor withhold the
supplies. 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. A uniform system of instruction is
organised all over the country, and every town is bound to establish the
schools which the law ordains. In speaking of the administration of the
United States, I shall have occasion to point out the means by which 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 assessed and collected by the
township; the existence of a school is obligatory, but the township
builds, pays, 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 is the agent of the government. This
fact alone shows the extent of the differences which exist between the
two nations.

* * * * *

PUBLIC 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.--
Characteristics of Home in the United States.--Manifestations of public
Spirit in New England.--Its happy Effects.

In America, not only do municipal bodies exist, but they are kept alive
and supported by public spirit. The township of New England possesses
two advantages which infallibly secure the attentive interest of
mankind, namely, independence and authority. Its sphere is indeed small
and limited, but within that sphere its action is unrestrained; and its
independence would give to it a real importance, even if its extent and
population did not ensure it.

It is to be remembered that the affections of men are generally turned
only where there is strength. Patriotism is not durable in a conquered
nation. The New Englander is attached to his township, not only because
he was born in it, but because it constitutes a strong and free social
body of which he is a member, and whose government claims and deserves
the exercise of his sagacity. In Europe, the absence of local public
spirit is a frequent subject of regret to those who are in power; every
one 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, the authorities of the nation might
be disunited, and the peace of the country endangered. 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 circle 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 are generally men who have
been favored by fortune, or distinguished in some other career. Such
cannot be the permanent aim of the ambitious. But the township serves as
a centre for the desire of public esteem, the want of exciting
interests, and the taste for authority and popularity, in the midst of
the ordinary relations of life: and the passions which commonly embroil
society, change their character when they find a vent so near the
domestic hearth and the family circle.

In the American states power has been disseminated with admirable skill,
for the purpose of interesting the greatest possible number of persons
in the common weal. Independently of the electors who are from time to
time called into action, the body politic is divided into innumerable
functionaries and officers, who all, in their several spheres, represent
the same powerful corporation 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 fulfilment 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 home, as the mountaineer clings to
his hills, because the characteristic features of his country are there
more distinctly marked than elsewhere. 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 which reign in America, the commotions of
municipal discord 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 ranks; no portion of
the community is tempted to oppress the remainder; and the abuses which
may injure isolated individuals are forgotten in the general contentment
which prevails. If the government is defective (and it would no doubt be
easy to point out its deficiencies), the fact that it really emanates
from those it governs, and that it acts, either ill or well, casts the
protecting spell of a parental pride over its faults. No term of
comparison disturbs the satisfaction of the citizen: 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 interest; 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 occurrence in the place; he
practises the art of government in the small sphere within his reach; he
accustoms himself to those forms which can alone ensure the steady
progress of liberty; he imbibes their spirit; he acquires a taste for
order, comprehends the union of 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 the counties are
arbitrarily laid down, and the various districts which they contain have
no necessary connexion, no common traditional or natural sympathy; their
object is simply to facilitate the administration of public affairs.

The extent of the township was too small to contain a system of judicial
institutions; each county has, however, a court of justice,[69] 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 the state of Massachusetts this authority is vested in the
hands of several magistrates who are appointed by the governor of the
state, with the advice[70] of his council.[71] The officers of the
county have only a limited and occasional authority, which is applicable
to certain predetermined cases. The state and the townships possess all
the power requisite to conduct public business. The budget of the county
is only drawn up by its officers, and is voted by the legislature.[72]
There is no assembly which directly or indirectly represents the county;
it has, therefore, properly speaking, no political existence.

A twofold tendency may be discerned in the American constitutions, which
impels the legislator to centralize the legislative, and to disperse the
executive power. The township of New England has in itself an
indestructible element of independence; but this distinct existence
could only be fictitiously introduced into the county, where its utility
had not been felt. All the townships united have but one representation,
which is the state, the centre of the national authority: beyond the
action of the township and that of the nation, nothing can be said to
exist but the influence of individual exertion.

* * * * *

ADMINISTRATION 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 to be perceived
either in the Township, or above it.--The Reason of this.--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 Action.--Right of Inspection and
Indictment disseminated like the other administrative Functions.--
Informers encouraged by the division of Fines.

Nothing is more striking to a European traveller in the United States
than the absence of what we term government, or the administration.
Written laws exist in America, and one sees that they are daily
executed; but although everything is in motion, the hand which gives the
impulse to the social machine can nowhere be discovered. Nevertheless,
as all people are obliged to 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 portion of authority, without which they fall a
prey to 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 defence under
certain circumstances. To weaken authority in this manner is what is
generally termed in Europe to lay the foundations of freedom.

The second manner of diminishing the influence of authority does not
consist in stripping society of any of its rights, nor in paralysing its
efforts, but in distributing the exercise of its privileges among
various hands, and in multiplying functionaries, to each of whom the
degree of power necessary for him to perform his duty is intrusted.
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 passions of
anarchy; but its course was marked, on the contrary, by an attachment to
whatever was lawful and orderly.

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, 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 constitution,
which accounts for its passing unperceived. The power exists, but its
representative is not to be discerned.

We have already seen that the independent townships of New England
protect their own private interests; and the municipal 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
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 enactments as concern the
health of the community, and the peace as well as morality of the
citizens.[74] Lastly, these municipal 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 Massachusetts
the administrative authority is almost entirely restricted to the
township,[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 township 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 townships, or town magistrates,[77] but in general the
authorities of the county have no right to interfere with the
authorities of the township,[78] except in such matters as concern the
county.

The magistrates of the township, 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 township 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
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 intrusted 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 pre-supposes 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
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 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
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 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[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 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[83] of public officers.[84] 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 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
township is brought before it, it almost always acts as a judicial body,
and in some few cases as an administrative assembly.

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

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

He may execute the law without energy or zeal;

He may neglect to execute the law;

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

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

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

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