FALLING AFOUL OF “DEMOCRACY”
And yet we should do the subject less than justice were we not to
recall an historical adventure that befell the county in the period
of its coming of age, when it was assuming something like its typical
American form.
It was about the time of the Revolution when the atmosphere was
particularly uncomfortable for “tyrants” and for every created thing
that could be given the semblance of “tyranny.”
“The history of the present King of Great Britain is a history of
repeated injuries and usurpations, all having in direct object the
establishment of an absolute tyranny over those States.” So ran the
Declaration of Independence, and if it was not a precise statement of
fact, it was at least an accurate gauge of the fighting public opinion
that was making political institutions. King George’s “frightfulness”
seems to have been chiefly and most concretely brought into the public
eye in the colonies by the acts of “swarms of officers” that had been
sent over “to harass our people and eat out their substance.”
From the point of view of the British Empire, it was a stiffening up
of the colonial administration to make effective the Navigation Acts,
the Stamp Acts, and similar measures. But it had come too late. Through
a century and a half the spirit of independence had grown firmer and
firmer and the colonists’ sense of identity with the British Empire
had sensibly diminished. So that when the imperial revenue collectors
began to “swarm” on their shores, the colonists were goaded into a
smashing antimonarchical mood. It was no mere temporary fit of rage,
and when physical violence of the Revolution was over, the intellectual
upheaval steadily gathered new force through the influence of men of
the Jefferson school. One of the feats to which the statesmen of the
Revolution devoted themselves was devising means for preventing future
“swarms” and the “tyranny” they brought with them.
What irritated them more than all else was the fact that these imperial
agents were not colonially selected and controlled. But now the people
had replaced the king. _They_ would now select the officers. A
happy thought! But how to work it out; that was the question.
It is easy enough to pick flaws in their handicraft, but it should be
borne in mind that the architects of the nineteenth century American
democracy were working in the dark without models or precedents and
without established principles of organization. It is easy now to look
back and say: “You carried your ‘democracy’ too far. It would have
been not only enough, but infinitely more effective to have let the
people select simply the legislative or ‘policy-determining’ officers
and subordinated the administration to them. The thing to do was to
control the _source_ of power. If you had been careful to separate
‘politics’ from ‘administration’ you would have saved our generation a
whole world of political woe.”
But the fact is that the then existing institutions had come into
being as a patchwork development to meet successive new needs. As for
local government, there was so little of it and it ministered to such
elementary wants that very few serious questions of policy ever rose
within its jurisdiction. Moreover, the officers who came in time to
have regulative or semi-legislative functions, seem to have been from
the beginning, concerned with the details rather than the policies of
government. This was true of the justices of the peace in Virginia, the
selectmen in the New England town, the supervisors in New York, and the
assessors in New Jersey. There was no choice except between selecting
and controlling (or trying to control) administrative officers and
foregoing any part whatever in local affairs.
It is of course not to be understood that no local officers were
elected before the Revolution. Massachusetts had always had its town
“selectmen” and even as early as 1854 each county elected its treasurer
and, beginning at a somewhat later date, the county lieutenants.
Supervisors were created as elective officers in New York in 1691, but
they were executive and representative officers from the very start.
And the same may be said of the town assessors in New Jersey (1693)
and the county assessors in Pennsylvania. But the real precedent for
“electing everybody” was set in Pennsylvania in 1703 when the sheriffs
were first chosen by the people--a step which was followed in 1726 by
the establishment of elective county commissioners.
But immediately after the Revolution the new notions of democracy began
to work more aggressively. Virginia now organized counties and its
constitution stipulated that officers not otherwise provided for should
be elected by the people. Sheriffs and coroners were made elective
under the New Jersey constitution and New York took away the governor’s
power of appointment and vested it in a council of appointment,
which was composed of the governor and four senators chosen by the
legislature.
There were cross-currents in this movement, however, and both in the
Northwest (under the ordinance of 1787) and in Kentucky and Tennessee,
county officers established in the closing years of the eighteenth
century were made appointive, in the one case by the governor and in
the other by the county judges. But in the new constitutions of Ohio
(1802), Indiana (1816), and Illinois (1818), the elective principle
worked without a hitch. Mississippi, Alabama, and Missouri followed.
By 1821 the passion had seized New York State, and sheriffs and county
clerks were thereafter elected by the voters of the counties.
In Virginia at the constitutional convention in 1829-30, local
government was the subject of an acrimonious discussion, with the
Jeffersonian influences seeking to break down the established power of
the self-perpetuating justices, who were charged with inefficiency, and
establish in their place the New England town system. But Madison and
Marshall, who were both members of the convention, successfully upheld
the existing order. By the middle of the century both Virginia and
Kentucky succumbed to the democratic influence and there was a complete
reaction from the appointive system. New York extended the elective
idea to district attorneys and county judges, and Massachusetts and New
Hampshire in due time made similar alterations.
In the states west of the Mississippi the tendency to put all the
county officers in the elective class was assumed from the start to be
the only method of insuring popular control.
“The rule of the people” at last captured the whole country, except
Rhode Island, where even the sheriff is still appointive.[2] The
movement was at its height during the long period of democratic
control from Jackson to Buchanan, and it had behind it the powerfully
stimulating spirit of the new West. It was the conception of
practical, direct, but superficial thinkers and politicians. To be
sure, the particular appointive system in use in New York and other
eastern states under the earlier constitutions had behaved badly. The
Jacksonians leaped headlong at the conclusion that the trouble lay in
the idea of appointment _per se_. Other alternatives they did not
for a moment consider, but with an air of supreme finality declared
that “the people must rule”--by electing as many officials as could be
crowded on the ballot.
The fact also that the county possessed no satisfactory appointing
power left no other course but to let the people undertake the
intricate work of an executive. So that through the passing of the
years that single course has materially multiplied the number of
elective officers--the people themselves, enamored with the dogma that
“the cure for democracy is more democracy” looked on complacently while
complication has been heaped upon complication.
In the almost unique opportunity for a simplified government which
has been presented to the people of any county, they have strenuously
and successfully resisted the change. Such an instance happened a few
years ago in the county of San Bernardino, California. The people had
already adopted a county charter in which the powers of the county were
vested in a single small board of elective officers somewhat on the
commission plan now in use in many American cities. It was regarded
by many as the highest type of modernized county organization adopted
up to that time anywhere in the United States. But in the interval
that elapsed between the adoption of the charter and its going into
effect, someone discovered (or thought they discovered) that the people
were about to be deprived of their ancient liberties and that a local
oligarchy was about to be erected. Soon petitions were in circulation
and this perfectly good charter, which had been adopted but never tried
out in practice, was amended so as to nullify the very principle of
organization which pointed to greater simplicity and a better fixing of
responsibility.
For nearly a century popular government has been galloping down the
highway that leads to governmental confusion. Nowhere does the record
state that because the people elected long strings of officers, the
people therefore _controlled_ those officers. All the while the
services which government could render have become more and more
numerous and the public needs of the people more pressing. And all the
while too, the filling and holding of office for office sake has been
vested with exaggerated importance, so that the county more perhaps
than any other civil division has been the home of fictitious political
“issues.” At regularly recurring intervals the nation-wide county
system has been shaken to its foundations over the private futures
of their local Tom Joneses and Tom Smiths. One of these respective
gentlemen must leave his growing law practice and sacrifice his time
to his county by serving papers for the county judge or prosecuting
criminals before the Grand Jury. And none but the people is competent
to judge which of the two it shall be.
Is the district attorneyship to be filled? Then, properly speaking,
there would seem to be nothing to do but to search for the highest
technical ability in sight and place it above the influences of any
consideration but that of preserving the civil rights of the whole
people. It is a simple criterion, around which no “issue” could
properly arise. But popular government has regularly and almost
universally thrown the selection of the public prosecutor over into
the political arena, where tests of fitness for specific duties count
not half so much as a good campaign speech or the ability to swing a
township into the Republican or Democratic column.
In the same way many sheriffs might have set before them the plain duty
to obey the rigid prescriptions of the statutes. But American democracy
has all but universally decreed that sheriffs shall be selected after
the manner of discretionary, policy-determining officers. As for the
coroner, who would suppose that his grim services could be made the
subject of interested, intelligent popular discussion? But the coroner,
in a majority of states, is on the “ticket,” a subject ostensibly
for the citizens to weigh in the balance with a view to the fittest
selection. And then the ballot nearly always bears the candidates
for the office of county clerk. He, like the sheriff, has his duties
minutely described in the laws, to the dotting of an “i” and the
crossing of a “t.” But in the estimation of many good citizens it is
of supreme importance that a good Republican or a deserving Democrat
should be placed in the office, in order, presumably, that the office
forms may be arranged for the filing cases according to the historical
doctrines of one or the other of the national parties.
Never was there a serious movement to elect United States marshals or
district attorneys. Other and more satisfactory methods of selection
have been employed. But for the analogous officers in the states,
nothing but popular choice would satisfy the temper of the young
American republic.
[2] By the legislature.