American Institutions and Their Influence by Alexis de Tocqueville et al

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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 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
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 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 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 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 promised 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 in New England. The
more we descend toward 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 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 township in Ohio is by no means dissimilar from a township
in Massachusetts.

We have seen that in Massachusetts the principal part of the 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 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 assembly, 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 constitute the
assembly of the county.[98] 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.

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 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 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 every one is the best judge
of what concerns himself alone, and the person most able 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 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 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. The 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,[99] 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
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 constitute 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 townships and the administration: it now remains
for me to speak of the state and 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.[104] 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 afterward to pass judgment upon what I now
describe.

* * * * *

LEGISLATIVE POWER OF THE STATE.

Division of the Legislative Body into two Houses.--Senate.--House of
Representatives.--Different functions of these two Bodies.

The legislative power of the state is vested in two assemblies, the
first of which generally bears the name of the senate.

The senate is commonly a legislative body; but it sometimes becomes an
executive and judicial one. It takes a part in the government in several
ways, according to the constitution of the different states;[105] but it
is in the nomination of public functionaries that it most commonly
assumes an executive power. It partakes of judicial power in the trial
of certain political 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 passions of the people. The only
advantages which result from the present constitution of the United
States, are, the division of the legislative power, and the consequent
check upon political assemblies; 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 assembly; 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.

* * * * *

THE EXECUTIVE POWER OF THE STATE.

Office of Governor in an American State.--The Place he occupies in
relation to the Legislature.--His Rights and his Duties.--His Dependence
on the People.

The executive power of the state may with truth be said to be
_represented_ by the governor, although he enjoys but a portion of its
rights. The supreme magistrate, under the title of governor, is the
official moderator and counsellor of the legislature. He is armed with a
suspensive veto, which allows him to stop, or at least to retard, its
movements at pleasure. He lays the wants of the country before the
legislative body, and points out the means which he thinks may be
usefully employed in providing for them; he is the natural executor of
its decrees in all the undertakings which interest the nation at
large.[107] In the absence of the legislature, the governor is bound to
take all necessary steps to guard the state against violent shocks and
unforeseen dangers.

The whole military power of the state is at the disposal of the
governor. He is commander of the militia and head of the armed force.
When the authority, which is by general consent awarded to the laws, is
disregarded, the governor puts himself at the head of the armed force of
the state, to quell resistance and to restore order.

Lastly, the governor takes no share in the administration of townships
and counties, except it be indirectly in the nomination of justices of
the peace, which nomination he has not the power to revoke.[108]

The governor is an elected magistrate, and is generally chosen for one
or two years only; so that he always continues to be strictly dependent
on the majority who returned him.

* * * * *

POLITICAL EFFECTS OF THE SYSTEM OF LOCAL ADMINISTRATION IN THE UNITED
STATES.

Necessary Distinction between the general Centralisation of Government
and the Centralisation of the local Administration.--Local
Administration not centralized in the United States; great general
Centralisation of the Government.--Some bad Consequences resulting to
the United States from the local Administration.--Administrative
Advantages attending the Order of things.--The Power which conducts the
Government is less regular, less enlightened, less learned, but much
greater than in Europe.--Political Advantages of this Order of
things.--In the United States the Interests of the Country are
everywhere kept in View.--Support given to the Government by the
Community.--Provincial Institutions more necessary in Proportion as the
social Condition becomes more democratic.--Reason of this.

Centralisation is become a word of general and daily use, without any
precise meaning being attached to it. Nevertheless, there exist two
distinct kinds of centralisation, which it is necessary to discriminate
with accuracy.

Certain interests are common to all parts of a nation, such as the
enactment of its general laws, and the maintenance of its foreign
relations. Other interests are peculiar to certain parts of the nation;
such, for instance, as the business of different townships. When the
power which directs the general interests is centred in one place, or in
the same persons, it constitutes a central government. The power of
directing partial or local interests, when brought together, in like
manner constitutes what may be termed a central administration.

Upon some points these two kinds of centralisation coalesce; but by
classifying the objects which fall more particularly within the province
of each of them, they may easily be distinguished.

It is evident that a central government acquires immense power when
united to administrative centralisation. Thus combined, it accustoms men
to set their own will habitually and completely aside; to submit, not
only for once or upon one point, but in every respect, and at all times.
Not only, therefore, does the union of power subdue them by force, but
it affects them in the ordinary habits of life, and influences each
individual, first separately, and then collectively.

These two kinds of centralisation mutually assist and attract each
other: but they must not be supposed to be inseparable. It is impossible
to imagine a more completely central government than that which existed
in France under Louis XIV.; when the same individual was the author and
the interpreter of the laws, and being the representative of France at
home and abroad, he was justified in asserting that the state was
identified with his person. Nevertheless, the administration was much
less centralized under Louis XIV., than it is at the present day.

In England the centralisation of the government is carried to great
perfection; the state has the compact vigor of a man, and by the sole
act of its will it puts immense engines in motion, and wields or
collects the efforts of its authority. Indeed, I cannot conceive that a
nation can enjoy a secure or prosperous existence without a powerful
centralisation of government. But I am of opinion that a central
administration enervates the nations in which it exists by incessantly
diminishing their public spirit. If such an administration succeeds in
condensing at a given moment on a given point all the disposable
resources of a people, it impairs at least the renewal of those
resources. It may ensure a victory in the hour of strife, but it
gradually relaxes the sinews of strength. It may contribute admirably to
the transient greatness of a man, but it cannot ensure the durable
prosperity of a people.

If we pay proper attention, we shall find that whenever it is said that
a state cannot act because it has no central point, it is the
centralisation of the government in which it is deficient. It is
frequently asserted, and we are prepared to assent to the proposition,
that the German empire was never able to bring all its powers into
action. But the reason was, that the state has never been able to
enforce obedience to its general laws, because the several members of
that great body always claimed the right, or found the means, of
refusing their co-operation to the representatives of the common
authority, even in the affairs which concerned the mass of the people;
in other words, because there was no centralisation of government. The
same remark is applicable to the middle ages; the cause of all the
confusion of feudal society was that the control, not only of local but
of general interests, was divided among a thousand hands, and broken up
in a thousand different ways; the absence of a central government
prevented the nations of Europe from advancing with energy in any
straightforward course.

We have shown that in the United States no central administration, and
no dependent series of public functionaries, exist. Local authority has
been carried to lengths which no European nation could endure without
great inconvenience, and which have even produced some disadvantageous
consequences in America. But in the United States the centralisation of
the government is complete; and it would be easy to prove that the
national power is more compact than it has ever been in the old
monarchies of Europe. Not only is there but one legislative body in each
state; not only does there exist but one source of political authority;
but numerous district assemblies and county courts have in general been
avoided, lest they should be tempted to exceed their administrative
duties and interfere with the government. In America the legislature of
each state is supreme; nothing can impede its authority; neither
privileges, nor local immunities, nor personal influence, nor even the
empire of reason, since it represents that majority which claims to be
the sole organ of reason. Its own determination is, therefore, the only
limit to its action. In juxtaposition to it, and under its immediate
control, is the representative of the executive power, whose duty it is
to constrain the refractory to submit by superior force. The only
symptom of weakness lies in certain details of the action of the
government. The American republics have no standing armies to intimidate
a discontented minority; but as no minority has as yet been reduced to
declare open war, the necessity of an army has not been felt. The state
usually employs the officers of the township or the county, to deal with
the citizens. Thus, for instance, in New England the assessor fixes the
rate of taxes; the collector receives them; the town treasurer transmits
the amount to the public treasury; and the disputes which may arise are
brought before the ordinary courts of justice. This method of collecting
taxes is slow as well as inconvenient, and it would prove a perpetual
hindrance to a government whose pecuniary demands were large. In general
it is desirable that in what ever materially affects its existence, the
government should be served by officers of its own, appointed by itself,
removable at pleasure, and accustomed to rapid methods of proceeding.
But it will always be easy for the central government, organized as it
is in America, to introduce new and more efficacious modes of action
proportioned to its wants.

The absence of a central government will not, then, as has often been
asserted, prove the destruction of the republics of the New World; far
from supposing that the American governments are not sufficiently
centralized, I shall prove hereafter that they are too much so. The
legislative bodies daily encroach upon the authority of the government,
and their tendency, like that of the French convention, is to
appropriate it entirely to themselves. Under these circumstances the
social power is constantly changing hands, because it is subordinate to
the power of the people, which is too apt to forget the maxims of wisdom
and of foresight in the consciousness of its strength: hence arises its
danger; and thus its vigor, and not its impotence, will probably be the
cause of its ultimate destruction.

The system of local administration produces several different effects in
America. The Americans seem to me to have outstepped the limits of sound
policy, in isolating the administration of the government; for order,
even in second-rate affairs, is a matter of national importance.[109] As
the state has no administrative functionaries of its own, stationed on
different parts of its territory, to whom it can give a common impulse,
the consequence is that it rarely attempts to issue any general police
regulations. The want of these regulations is severely felt, and is
frequently observed by Europeans. The appearance of disorder which
prevails on the surface, leads them at first to imagine that society is
in a state of anarchy; nor do they perceive their mistake till they have
gone deeper into the subject. Certain undertakings are of importance to
the whole state; but they cannot be put in execution, because there is
no national administration to direct them. Abandoned to the exertions of
the towns or counties, under the care of elected or temporary agents,
they lead to no result, or at least to no durable benefit.