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EXISTENCE OF THE TOWNSHIP
Every one the best Judge of his own Interest.—Corollary of the Principle of the Sovereignty of the People.—Application of these Doctrines in the Townships of America.—The Township of New England is Sovereign in that which concerns itself alone; subject to the State in all other matters.—Bond of Township and the State.—In France the Government lends its Agents to the Commune.—In America the Reverse occurs.
I have already observed, that the principle of the sovereignty of the people governs the whole political system of the Anglo-Americans. Every page of this book will afford new instances of the same doctrine. In the nations by which the sovereignty of the people is recognised, every individual possesses an equal share of power, and participates alike in the government of the state. Every individual is therefore supposed to be as well informed, as virtuous, and as strong, as any of his fellow-citizens. He obeys the government, not because he is inferior to the authorities which conduct it, or that he is less capable than his neighbor of governing himself, but because he acknowledges the utility of an association with his fellow-men, and because he knows that no such association can exist without a regulating force. If he be a subject in all that concerns the mutual relations of citizens, he is free and responsible to God alone for all that concerns himself. Hence arises the maxim that every one is the best and the sole judge of his own private interest, and that society has no right to control a man's actions, unless they are prejudicial to the common weal, or unless the common weal demands his co-operation. This doctrine is universally admitted in the United States. I shall hereafter examine the general influence which it exercises on the ordinary actions of life: I am now speaking of the nature of municipal bodies.
The township, taken as a whole, and in relation to the government of the country, may be looked upon as an individual to whom the theory I have just alluded to is applied. Municipal independence is therefore a natural consequence of the principle of the sovereignty of the people in the United States, all the American republics recognise it more or less; but circumstances have peculiarly favored its growth in New England.
In this part of the Union the impulsion of political activity was given in the townships; and it may almost be said that each of them originally formed an independent nation. When the kings of England asserted their supremacy, they were contented to assume the central power of the state. The townships of New England remained as they were before; and although they are now subject to the state, they were at first scarcely dependent upon it. It is important to remember that they have not been invested with privileges, but that they seem, on the contrary, to have surrendered a portion of their independence to the state. The townships are only subordinate to the state in those interests which I shall term social, as they are common to all the citizens. They are independent in all that concerns themselves; and among the inhabitants of New England I believe that not a man is to be found who would acknowledge that the state has any right to interfere in their local interests. The towns of New England buy and sell, prosecute or are indicted, augment or diminish their rates, without the slightest opposition on the part of the administrative authority of the state.
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 advice70 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 Massachusetts80 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 number83 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.
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 townships 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.
In general the justices interfere in all the important acts of the administration, and give them a semi-judicial character.
