Chapter Summary
It predominates over the whole of society in America—Application made
of this principle by the Americans even before their
Revolution—Development given to it by that Revolution—Gradual and
irresistible extension of the elective qualification.
The Principle Of The Sovereignty Of The People In America
Whenever the political laws of the United States are to be discussed,
it is with the doctrine of the sovereignty of the people that we must
begin. The principle of the sovereignty of the people, which is to be
found, more or less, at the bottom of almost all human institutions,
generally remains concealed from view. It is obeyed without being
recognized, or if for a moment it be brought to light, it is hastily
cast back into the gloom of the sanctuary. “The will of the nation” is
one of those expressions which have been most profusely abused by the
wily and the despotic of every age. To the eyes of some it has been
represented by the venal suffrages of a few of the satellites of power;
to others by the votes of a timid or an interested minority; and some
have even discovered it in the silence of a people, on the supposition
that the fact of submission established the right of command.
In America the principle of the sovereignty of the people is not either
barren or concealed, as it is with some other nations; it is recognized
by the customs and proclaimed by the laws; it spreads freely, and
arrives without impediment at its most remote consequences. If there be
a country in the world where the doctrine of the sovereignty of the
people can be fairly appreciated, where it can be studied in its
application to the affairs of society, and where its dangers and its
advantages may be foreseen, that country is assuredly America.
I have already observed that, from their origin, the sovereignty of the
people was the fundamental principle of the greater number of British
colonies in America. It was far, however, from then exercising as much
influence on the government of society as it now does. Two obstacles,
the one external, the other internal, checked its invasive progress. It
could not ostensibly disclose itself in the laws of colonies which were
still constrained to obey the mother-country: it was therefore obliged
to spread secretly, and to gain ground in the provincial assemblies,
and especially in the townships.
American society was not yet prepared to adopt it with all its
consequences. The intelligence of New England, and the wealth of the
country to the south of the Hudson (as I have shown in the preceding
chapter), long exercised a sort of aristocratic influence, which tended
to retain the exercise of social authority in the hands of a few. The
public functionaries were not universally elected, and the citizens
were not all of them electors. The electoral franchise was everywhere
placed within certain limits, and made dependent on a certain
qualification, which was exceedingly low in the North and more
considerable in the South.
The American revolution broke out, and the doctrine of the sovereignty
of the people, which had been nurtured in the townships and
municipalities, took possession of the State: every class was enlisted
in its cause; battles were fought, and victories obtained for it, until
it became the law of laws.
A no less rapid change was effected in the interior of society, where
the law of descent completed the abolition of local influences.
At the very time when this consequence of the laws and of the
revolution was apparent to every eye, victory was irrevocably
pronounced in favor of the democratic cause. All power was, in fact, in
its hands, and resistance was no longer possible. The higher orders
submitted without a murmur and without a struggle to an evil which was
thenceforth inevitable. The ordinary fate of falling powers awaited
them; each of their several members followed his own interests; and as
it was impossible to wring the power from the hands of a people which
they did not detest sufficiently to brave, their only aim was to secure
its good-will at any price. The most democratic laws were consequently
voted by the very men whose interests they impaired; and thus, although
the higher classes did not excite the passions of the people against
their order, they accelerated the triumph of the new state of things;
so that by a singular change the democratic impulse was found to be
most irresistible in the very States where the aristocracy had the
firmest hold. The State of Maryland, which had been founded by men of
rank, was the first to proclaim universal suffrage, and to introduce
the most democratic forms into the conduct of its government.
When a nation modifies the elective qualification, it may easily be
foreseen that sooner or later that qualification will be entirely
abolished. There is no more invariable rule in the history of society:
the further electoral rights are extended, the greater is the need of
extending them; for after each concession the strength of the democracy
increases, and its demands increase with its strength. The ambition of
those who are below the appointed rate is irritated in exact proportion
to the great number of those who are above it. The exception at last
becomes the rule, concession follows concession, and no stop can be
made short of universal suffrage.
At the present day the principle of the sovereignty of the people has
acquired, in the United States, all the practical development which the
imagination can conceive. It is unencumbered by those fictions which
have been thrown over it in other countries, and it appears in every
possible form according to the exigency of the occasion. Sometimes the
laws are made by the people in a body, as at Athens; and sometimes its
representatives, chosen by universal suffrage, transact business in its
name, and almost under its immediate control.
In some countries a power exists which, though it is in a degree
foreign to the social body, directs it, and forces it to pursue a
certain track. In others the ruling force is divided, being partly
within and partly without the ranks of the people. But nothing of the
kind is to be seen in the United States; there society governs itself
for itself. All power centres in its bosom; and scarcely an individual
is to be meet with who would venture to conceive, or, still less, to
express, the idea of seeking it elsewhere. The nation participates in
the making of its laws by the choice of its legislators, and in the
execution of them by the choice of the agents of the executive
government; it may almost be said to govern itself, so feeble and so
restricted is the share left to the administration, so little do the
authorities forget their popular origin and the power from which they
emanate. *a [Footnote a: See Appendix, H.]
Chapter V: Necessity Of Examining The Condition Of The States—Part I
Necessity Of Examining The Condition Of The States Before That Of The
Union At Large.
It is proposed to examine in the following chapter what is the form of
government established in America on the principle of the sovereignty
of the people; what are its resources, its hindrances, its advantages,
and its dangers. The first difficulty which presents itself arises from
the complex nature of the constitution of the United States, which
consists of two distinct social structures, connected and, as it were,
encased one within the other; two governments, completely separate and
almost independent, the one fulfilling the ordinary duties and
responding to the daily and indefinite calls of a community, the other
circumscribed within certain limits, and only exercising an exceptional
authority over the general interests of the country. In short, there
are twenty-four small sovereign nations, whose agglomeration
constitutes the body of the Union. To examine the Union before we have
studied the States would be to adopt a method filled with obstacles.
The form of the Federal Government of the United States was the last
which was adopted; and it is in fact nothing more than a modification
or a summary of those republican principles which were current in the
whole community before it existed, and independently of its existence.
Moreover, the Federal Government is, as I have just observed, the
exception; the Government of the States is the rule. The author who
should attempt to exhibit the picture as a whole before he had
explained its details would necessarily fall into obscurity and
repetition.
The great political principles which govern American society at this
day undoubtedly took their origin and their growth in the State. It is
therefore necessary to become acquainted with the State in order to
possess a clue to the remainder. The States which at present compose
the American Union all present the same features, as far as regards the
external aspect of their institutions. Their political or
administrative existence is centred in three focuses of action, which
may not inaptly be compared to the different nervous centres which
convey motion to the human body. The township is the lowest in order,
then the county, and lastly the State; and I propose to devote the
following chapter to the examination of these three divisions.
The American System Of Townships And Municipal Bodies
Why the Author begins the examination of the political institutions
with the township—Its existence in all nations—Difficulty of
establishing and preserving municipal independence—Its importance—Why
the Author has selected the township system of New England as the main
topic of his discussion.
It is not undesignedly that I begin this subject with the Township. The
village or township is the only association which is so perfectly
natural that wherever a number of men are collected it seems to
constitute itself.
The town, or tithing, as the smallest division of a community, must
necessarily exist in all nations, whatever their laws and customs may
be: if man makes monarchies and establishes republics, the first
association of mankind seems constituted by the hand of God. But
although the existence of the township is coeval with that of man, its
liberties are not the less rarely respected and easily destroyed. A
nation is always able to establish great political assemblies, because
it habitually contains a certain number of individuals fitted by their
talents, if not by their habits, for the direction of affairs. The
township is, on the contrary, composed of coarser materials, which are
less easily fashioned by the legislator. The difficulties which attend
the consolidation of its independence rather augment than diminish with
the increasing enlightenment of the people. A highly civilized
community spurns the attempts of a local independence, is disgusted at
its numerous blunders, and is apt to despair of success before the
experiment is completed. Again, no immunities are so ill protected from
the encroachments of the supreme power as those of municipal bodies in
general: they are unable to struggle, single-handed, against a strong
or an enterprising government, and they cannot defend their cause with
success unless it be identified with the customs of the nation and
supported by public opinion. Thus until the independence of townships
is amalgamated with the manners of a people it is easily destroyed, and
it is only after a long existence in the laws that it can be thus
amalgamated. Municipal freedom is not the fruit of human device; it is
rarely created; but it is, as it were, secretly and spontaneously
engendered in the midst of a semi-barbarous state of society. The
constant action of the laws and the national habits, peculiar
circumstances, and above all time, may consolidate it; but there is
certainly no nation on the continent of Europe which has experienced
its advantages. Nevertheless local assemblies of citizens constitute
the strength of free nations. Town-meetings are to liberty what primary
schools are to science; they bring it within the people’s reach, they
teach men how to use and how to enjoy it. A nation may establish a
system of free government, but without the spirit of municipal
institutions it cannot have the spirit of liberty. The transient
passions and the interests of an hour, or the chance of circumstances,
may have created the external forms of independence; but the despotic
tendency which has been repelled will, sooner or later, inevitably
reappear on the surface.
In order to explain to the reader the general principles on which the
political organization of the counties and townships of the United
States rests, I have thought it expedient to choose one of the States
of New England as an example, to examine the mechanism of its
constitution, and then to cast a general glance over the country. The
township and the county are not organized in the same manner in every
part of the Union; it is, however, easy to perceive that the same
principles have guided the formation of both of them throughout the
Union. I am inclined to believe that these principles have been carried
further in New England than elsewhere, and consequently that they offer
greater facilities to the observations of a stranger. The institutions
of New England form a complete and regular whole; they have received
the sanction of time, they have the support of the laws, and the still
stronger support of the manners of the community, over which they
exercise the most prodigious influence; they consequently deserve our
attention on every account.
Limits Of The Township
The township of New England is a division which stands between the
commune and the canton of France, and which corresponds in general to
the English tithing, or town. Its average population is from two to
three thousand; *a so that, on the one hand, the interests of its
inhabitants are not likely to conflict, and, on the other, men capable
of conducting its affairs are always to be found among its citizens.
a
[ In 1830 there were 305 townships in the State of Massachusetts, and
610,014 inhabitants, which gives an average of about 2,000 inhabitants
to each township.]
Authorities Of The Township In New England
The people the source of all power here as elsewhere—Manages its own
affairs—No corporation—The greater part of the authority vested in the
hands of the Selectmen—How the Selectmen act—Town-meeting—Enumeration
of the public officers of the township—Obligatory and remunerated
functions.
In the township, as well as everywhere else, the people is the only
source of power; but in no stage of government does the body of
citizens exercise a more immediate influence. In America the people is
a master whose exigencies demand obedience to the utmost limits of
possibility.
In New England the majority acts by representatives in the conduct of
the public business of the State; but if such an arrangement be
necessary in general affairs, in the townships, where the legislative
and administrative action of the government is in more immediate
contact with the subject, the system of representation is not adopted.
There is no corporation; but the body of electors, after having
designated its magistrates, directs them in everything that exceeds the
simple and ordinary executive business of the State. *b
b
[ The same rules are not applicable to the great towns, which generally
have a mayor, and a corporation divided into two bodies; this, however,
is an exception which requires the sanction of a law.—See the Act of
February 22, 1822, for appointing the authorities of the city of
Boston. It frequently happens that small towns as well as cities are
subject to a peculiar administration. In 1832, 104 townships in the
State of New York were governed in this manner.—Williams’ Register.]
This state of things is so contrary to our ideas, and so different from
our customs, that it is necessary for me to adduce some examples to
explain it thoroughly.
The public duties in the township are extremely numerous and minutely
divided, as we shall see further on; but the larger proportion of
administrative power is vested in the hands of a small number of
individuals, called “the Selectmen.” *c The general laws of the State
impose a certain number of obligations on the selectmen, which they may
fulfil without the authorization of the body they represent, but which
they can only neglect on their own responsibility. The law of the State
obliges them, for instance, to draw up the list of electors in their
townships; and if they omit this part of their functions, they are
guilty of a misdemeanor. In all the affairs, however, which are
determined by the town-meeting, the selectmen are the organs of the
popular mandate, as in France the Maire executes the decree of the
municipal council. They usually act upon their own responsibility, and
merely put in practice principles which have been previously recognized
by the majority. But if any change is to be introduced in the existing
state of things, or if they wish to undertake any new enterprise, they
are obliged to refer to the source of their power. If, for instance, a
school is to be established, the selectmen convoke the whole body of
the electors on a certain day at an appointed place; they explain the
urgency of the case; they give their opinion on the means of satisfying
it, on the probable expense, and the site which seems to be most
favorable. The meeting is consulted on these several points; it adopts
the principle, marks out the site, votes the rate, and confides the
execution of its resolution to the selectmen.
c
[ Three selectmen are appointed in the small townships, and nine in the
large ones. See “The Town-Officer,” p. 186. See also the principal laws
of the State of Massachusetts relative to the selectmen:
Act of February 20, 1786, vol. i. p. 219; February 24, 1796, vol. i. p.
488; March 7, 1801, vol. ii. p. 45; June 16, 1795, vol. i. p. 475;
March 12, 1808, vol. ii. p. 186; February 28, 1787, vol. i. p. 302;
June 22, 1797, vol. i. p. 539.]
The selectmen have alone the right of calling a town-meeting, but they
may be requested to do so: if ten citizens are desirous of submitting a
new project to the assent of the township, they may demand a general
convocation of the inhabitants; the selectmen are obliged to comply,
but they have only the right of presiding at the meeting. *d
d
[ See Laws of Massachusetts, vol. i. p. 150, Act of March 25, 1786.]
The selectmen are elected every year in the month of April or of May.
The town-meeting chooses at the same time a number of other municipal
magistrates, who are entrusted with important administrative functions.
The assessors rate the township; the collectors receive the rate. A
constable is appointed to keep the peace, to watch the streets, and to
forward the execution of the laws; the town-clerk records all the town
votes, orders, grants, births, deaths, and marriages; the treasurer
keeps the funds; the overseer of the poor performs the difficult task
of superintending the action of the poor-laws; committee-men are
appointed to attend to the schools and to public instruction; and the
road-surveyors, who take care of the greater and lesser thoroughfares
of the township, complete the list of the principal functionaries. They
are, however, still further subdivided; and amongst the municipal
officers are to be found parish commissioners, who audit the expenses
of public worship; different classes of inspectors, some of whom are to
direct the citizens in case of fire; tithing-men, listers, haywards,
chimney-viewers, fence-viewers to maintain the bounds of property,
timber-measurers, and sealers of weights and measures. *e
e
[ All these magistrates actually exist; their different functions are
all detailed in a book called “The Town-Officer,” by Isaac Goodwin,
Worcester, 1827; and in the “Collection of the General Laws of
Massachusetts,” 3 vols., Boston, 1823.]
There are nineteen principal officers in a township. Every inhabitant
is constrained, on the pain of being fined, to undertake these
different functions; which, however, are almost all paid, in order that
the poorer citizens may be able to give up their time without loss. In
general the American system is not to grant a fixed salary to its
functionaries. Every service has its price, and they are remunerated in
proportion to what they have done.
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 those doctrines in the
townships of America—The township of New England is sovereign in all
that concerns itself alone: subject to the State in all other
matters—Bond of the township and the State—In France the Government
lends its agent 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 recognized 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 recognize 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 have, on the
contrary, forfeited 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 amongst 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, sue or are
sued, 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 organized 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 levied 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 gives to it a real importance which its extent and
population may not always ensure.
It is to be remembered that the affections of men generally lie on the
side of authority. 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 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; everyone agrees that there
is no surer guarantee of order and tranquility, 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 country 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 whole 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 unfrequent. 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 or 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 countries 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 connection, no common tradition or natural sympathy;
their object is simply to facilitate the administration of justice.
The extent of the township was too small to contain a system of
judicial institutions; each county has, however, a court of justice, *f
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 *g of his council. *h 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 drawn up by its officers, and is voted by the
legislature, but there is no assembly which directly or indirectly
represents the county. It has, therefore, properly speaking, no
political existence.
f
[ See the Act of February 14, 1821, Laws of Massachusetts, vol. i. p.
551.]
g
[ See the Act of February 20, 1819, Laws of Massachusetts, vol. ii. p.
494.]
h
[ The council of the Governor is an elective body.] 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; and this distinct existence could only be
fictitiously introduced into the county, where its utility has not been
felt. But 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 amongst the
town-officers—No trace of an administrative body 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 an European traveller in the United States
than the absence of what we term the 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 peoples 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 dose 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 paralyzing
its efforts, but in distributing the exercise of its privileges in
various hands, and in multiplying functionaries, to each of whom the
degree of power necessary for him to perform his duty is entrusted.
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
dignified taste for freedom, and 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 perceived.
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 entrusted. *i Besides the general laws, the State sometimes
passes general police regulations; but more commonly the townships and
town officers, conjointly with 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. *j Lastly, these municipal magistrates provide, of their own
accord and without any delegated powers, for those unforeseen
emergencies which frequently occur in society. *k
i
[ See “The Town-Officer,” especially at the words Selectmen, Assessors,
Collectors, Schools, Surveyors of Highways. I take one example in a
thousand: the State prohibits travelling on the Sunday; the
tything-men, who are town-officers, are specially charged to keep watch
and to execute the law. See the Laws of Massachusetts, vol. i. p. 410.
The selectmen draw up the lists of electors for the election of the
Governor, and transmit the result of the ballot to the Secretary of the
State. See Act of February 24, 1796: Id., vol. i. p. 488.]
j
[ Thus, for instance, the selectmen authorize the construction of
drains, point out the proper sites for slaughter-houses and other
trades which are a nuisance to the neighborhood. See the Act of June 7,
1785: Id., vol. i. p. 193.]
k
[ The selectmen take measures for the security of the public in case of
contagious diseases, conjointly with the justices of the peace. See Act
of June 22, 1797, vol. i. p. 539.]
It results from what we have said that in the State of Massachusetts
the administrative authority is almost entirely restricted to the
township, *l 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 dignitaries is to be found. It sometimes happens that the
county officers alter a decision of the townships or town magistrates,
*m but in general the authorities of the county have no right to
interfere with the authorities of the township, *n except in such
matters as concern the county.
l
[ I say almost, for there are various circumstances in the annals of a
township which are regulated by the justice of the peace in his
individual capacity, or by the justices of the peace assembled in the
chief town of the county; thus licenses are granted by the justices.
See the Act of February 28, 1787, vol. i. p. 297.]
m
[ Thus licenses are only granted to such persons as can produce a
certificate of good conduct from the selectmen. If the selectmen refuse
to give the certificate, the party may appeal to the justices assembled
in the Court of Sessions, and they may grant the license. See Act of
March 12, 1808, vol. ii. p. 186.
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 Act of March 23, 1786, vol. i. p. 254.]
n
[ In Massachusetts the county magistrates are frequently called upon to
investigate the acts of the town magistrates; but it will be shown
further on that this investigation is a consequence, not of their
administrative, but of their judicial power.]
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. *o 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 to
reprimand their faults. There is no point which serves as a centre to
the radii of the administration.
o
[ The town committees of schools are obliged to make an annual report
to the Secretary of the State on the condition of the school. See Act
of March 10, 1827, vol. iii. p. 183.]
Chapter V: Necessity Of Examining The Condition Of The States—Part II
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 entrusted 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 presupposes 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
elected 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 counterbalance 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 the
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 the
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 *p appoints a certain number of justices of
the peace in every county, whose functions last seven years. *q He
further designates three individuals from amongst 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 entrusted with administrative functions in conjunction with
elected officers, *r 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 *s of
public officers. *t 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 entrusted to any one of them in particular. *u In
all that concerns county business the duties of the Court of Sessions
are 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, *v or as a guarantee to the community over which it
presides. But when the administration of the township is brought before
it, it always acts as a judicial body, and in some few cases as an
official assembly.
p
[ We shall hereafter learn what a Governor is: I shall content myself
with remarking in this place that he represents the executive power of
the whole State.]
q
[ See the Constitution of Massachusetts, chap. II. sect. 1. Section 9;
chap. III. Section 3.]
r
[ Thus, for example, a stranger arrives in a township from a country
where a contagious disease prevails, and he falls ill. Two justices of
the peace can, with the assent of the selectmen, order the sheriff of
the county to remove and take care of him.—Act of June 22, 1797, vol.
i. p. 540.
In general the justices interfere in all the important acts of the
administration, and give them a semi-judicial character.] [Footnote s:
I say the greater number, because certain administrative misdemeanors
are brought before ordinary tribunals. If, for instance, a township
refuses to make the necessary expenditure for its schools or to name a
school-committee, it is liable to a heavy fine. But this penalty is
pronounced by the Supreme Judicial Court or the Court of Common Pleas.
See Act of March 10, 1827, Laws of Massachusetts, vol. iii. p. 190. Or
when a township neglects to provide the necessary war-stores.—Act of
February 21, 1822: Id., vol. ii. p. 570.]
t
[ In their individual capacity the justices of the peace take a part in
the business of the counties and townships.] [Footnote u: These affairs
may be brought under the following heads:—1. The erection of prisons
and courts of justice. 2. The county budget, which is afterwards voted
by the State. 3. The distribution of the taxes so voted. 4. Grants of
certain patents. 5. The laying down and repairs of the country roads.]
v
[ Thus, when a road is under consideration, almost all difficulties are
disposed of by the aid of the jury.]
The first difficulty is to procure the obedience of an authority as
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. *w The fine is levied on each
of the inhabitants; and the sheriff of the county, who is the 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 its influence is at the same time
fortified by that irresistible power with which men have invested the
formalities of law.
w
[ See Act of February 20, 1786, Laws of Massachusetts, vol. i. p. 217.]
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. *x 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:
x
[ There is an indirect method of enforcing the obedience of a township.
Suppose that the funds which the law demands for the maintenance of the
roads have not been voted, the town surveyor is then authorized, ex
officio, to levy the supplies. As he is personally responsible to
private individuals for the state of the roads, and indictable before
the Court of Sessions, he is sure to employ the extraordinary right
which the law gives him against the township. Thus by threatening the
officer the Court of Sessions exacts compliance from the town. See Act
of March 5, 1787, Id., vol. i. p. 305.]
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 at town elections, they may be condemned to
pay a fine; *y 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 official 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 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 of 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.
y
[ Laws of Massachusetts, vol. ii. p. 45.]
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. *z 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.
z
[ If, for instance, a township persists in refusing to name its
assessors, the Court of Sessions nominates them; and the magistrates
thus appointed are invested with the same authority as elected
officers. See the Act quoted above, February 20, 1787.]
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, *a 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 offices of inspection and of prosecution, as well
as all the other functions of the administration. Grand jurors are
bound by the law to apprise the court to which they belong of all the
misdemeanors which may have been committed in their county. *b There
are certain great offences which are officially prosecuted by the
States; *c 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 special appeal is made by American legislation to the
private interest of the citizen; *d 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 may 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, *e and to insure 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.
a
[ I say the Court of Sessions, because in common courts there is a
magistrate who exercises some of the functions of a public prosecutor.]
b
[ The grand-jurors are, for instance, bound to inform the court of the
bad state of the roads.—Laws of Massachusetts, vol. i. p. 308.]
c
[ If, for instance, the treasurer of the county holds back his
accounts.—Laws of Massachusetts, vol. i. p. 406.] [Footnote d: Thus, if
a private individual breaks down or is wounded in consequence of the
badness of a road, he can sue the township or the county for damages at
the sessions.—Laws of Massachusetts, vol. i. p. 309.]
e
[ In cases of invasion or insurrection, if the town-officers neglect to
furnish the necessary stores and ammunition for the militia, the
township may be condemned to a fine of from $200 to $500. It may
readily be imagined that in such a case it might happen that no one
cared to prosecute; hence the law adds that all the citizens may indict
offences of this kind, and that half of the fine shall belong to the
plaintiff. See Act of March 6, 1810, vol. ii. p. 236. The same clause
is frequently to be met with in the law of Massachusetts. Not only are
private individuals thus incited to prosecute the public officers, but
the public officers are encouraged in the same manner to bring the
disobedience of private individuals to justice. If a citizen refuses to
perform the work which has been assigned to him upon a road, the road
surveyor may prosecute him, and he receives half the penalty for
himself. See the Laws above quoted, vol. i. p. 308.]
General Remarks On The Administration Of The United States Differences
of the States of the Union in their system of administration—Activity
and perfection of the local authorities decrease towards the
South—Power of the magistrate 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 premised 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 of New England. The
more we descend towards 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 debate less numerous. The power of the elected magistrate is
augmented and that of the elector diminished, whilst the public spirit
of the local communities is less awakened and less influential. *f
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.
f
[ For details see the Revised Statutes of the State of New York, part
i. chap. xi. vol. i. pp. 336-364, entitled, “Of the Powers, Duties, and
Privileges of Towns.”
See in the Digest of the Laws of Pennsylvania, the words Assessors,
Collector, Constables, Overseer of the Poor, Supervisors of Highways;
and in the Acts of a general nature of the State of Ohio, the Act of
February 25, 1834, relating to townships, p. 412; besides the peculiar
dispositions relating to divers town-officers, such as Township’s
Clerk, Trustees, Overseers of the Poor, Fence Viewers, Appraisers of
Property, Township’s Treasurer, Constables, Supervisors of Highways.]
We have seen that in Massachusetts the mainspring of 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 county 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 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. *g 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.
g
[ See the Revised Statutes of the State of New York, part i. chap. xi.
vol. i. p. 340. Id. chap. xii. p. 366; also in the Acts of the State of
Ohio, an act relating to county commissioners, February 25, 1824, p.
263. See the Digest of the Laws of Pennsylvania, at the words
County-rates and Levies, p. 170. In the State of New York each township
elects a representative, who has a share in the administration of the
county as well as in that of the township.]
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 further 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 everyone is the best
judge of what concerns himself alone, and the most proper person 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 amongst 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. This 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, *h 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
cognizance of the ordinary tribunals.
h
[ In some of the Southern States the county courts are charged with all
the details of the administration. See the Statutes of the State of
Tennessee, arts. Judiciary, Taxes, etc.]
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 centralized
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 or control over the secondary bodies. *i
i
[ For instance, the direction of public instruction centres in the
hands of the Government. The legislature names the members of the
University, who are denominated Regents; the Governor and
Lieutentant-Governor of the State are necessarily of the
number.—Revised Statutes, vol. i. p. 455. The Regents of the University
annually visit the colleges and academies, and make their report to the
legislature. Their superintendence is not inefficient, for several
reasons: the colleges in order to become corporations stand in need of
a charter, which is only granted on the recommendation of the Regents;
every year funds are distributed by the State for the encouragement of
learning, and the Regents are the distributors of this money. See chap.
xv. “Instruction,” Revised Statutes, vol. i. p. 455.
The school-commissioners are obliged to send an annual report to the
Superintendent of the Republic.—Id. p. 488.
A similar report is annually made to the same person on the number and
condition of the poor.—Id. p. 631.]
At other times they constitute a court of appeal for the decision of
affairs. *j 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.
*k The same tendency is faintly observable in some other States; *l but
in general the prominent feature of the administration in the United
States is its excessive local independence.
j
[ If any one conceives himself to be wronged by the
school-commissioners (who are town-officers), he can appeal to the
superintendent of the primary schools, whose decision is final.—Revised
Statutes, vol. i. p. 487.
Provisions similar to those above cited are to be met with from time to
time in the laws of the State of New York; but in general these
attempts at centralization are weak and unproductive. The great
authorities of the State have the right of watching and controlling the
subordinate agents, without that of rewarding or punishing them. The
same individual is never empowered to give an order and to punish
disobedience; he has therefore the right of commanding, without the
means of exacting compliance. In 1830 the Superintendent of Schools
complained in his Annual Report addressed to the legislature that
several school-commissioners had neglected, notwithstanding his
application, to furnish him with the accounts which were due. He added
that if this omission continued he should be obliged to prosecute them,
as the law directs, before the proper tribunals.]
k
[ Thus the district-attorney is directed to recover all fines below the
sum of fifty dollars, unless such a right has been specially awarded to
another magistrate.—Revised Statutes, vol. i. p. 383.]
l
[ Several traces of centralization may be discovered in Massachusetts;
for instance, the committees of the town-schools are directed to make
an annual report to the Secretary of State. See Laws of Massachusetts,
vol. i. p. 367.]
Of The State
I have described the townships and the administration; it now remains
for me to speak of the State and the 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. 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 afterwards to pass judgment upon what I now describe.
Chapter V: Necessity Of Examining The Condition Of The States—Part III
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; *m 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. *n 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.
m
[ In Massachusetts the Senate is not invested with any administrative
functions.]
n
[ As in the State of New York.]
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, whilst 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.
[See Benjamin Franklin]
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 veto or suspensive power, 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. *o 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 the 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 cancel. *p 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 upon the majority who returned him.
o
[ Practically speaking, it is not always the Governor who executes the
plans of the Legislature; it often happens that the latter, in voting a
measure, names special agents to superintend the execution of it.]
p
[ In some of the States the justices of the peace are not elected by
the Governor.]
Political Effects Of The System Of Local Administration In The United
States
Necessary distinction between the general centralization of Government
and the centralization of the local administration—Local administration
not centralized in the United States: great general centralization of
the Government—Some bad consequences resulting to the United States
from the local administration—Administrative advantages attending this
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.
Centralization is become a word of general and daily use, without any
precise meaning being attached to it. Nevertheless, there exist two
distinct kinds of centralization, 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 vested in the same persons, it constitutes a central
government. In like manner the power of directing partial or local
interests, when brought together into one place, constitutes what may
be termed a central administration.
Upon some points these two kinds of centralization 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 centralization. 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 this union of power subdue them compulsorily, but
it affects them in the ordinary habits of life, and influences each
individual, first separately and then collectively.
These two kinds of centralization 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 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 centralization 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
centralization 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 nation.
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
centralization 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 was never 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 centralization 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 amongst 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 has even produced some disadvantageous
consequences in America. But in the United States the centralization 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 nations
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
district assemblies and county courts have not in general been
multiplied, 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 this 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. *q 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. It is desirable that, in whatever
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.
[Footnote q: [The Civil War of 1860-65 cruelly belied this statement,
and in the course of the struggle the North alone called two millions
and a half of men to arms; but to the honor of the United States it
must be added that, with the cessation of the contest, this army
disappeared as rapidly as it had been raised.—Translator’s Note.]]
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.
*r As the State has no administrative functionaries of its own,
stationed on different points 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 him at first to imagine
that society is in a state of anarchy; nor does he perceive his mistake
till he has 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.
r
[ The authority which represents the State ought not, I think, to waive
the right of inspecting the local administration, even when it does not
interfere more actively. Suppose, for instance, that an agent of the
Government was stationed at some appointed spot in the country, to
prosecute the misdemeanors of the town and county officers, would not a
more uniform order be the result, without in any way compromising the
independence of the township? Nothing of the kind, however, exists in
America: there is nothing above the county-courts, which have, as it
were, only an incidental cognizance of the offences they are meant to
repress.]
The partisans of centralization in Europe are wont to maintain that the
Government directs the affairs of each locality better than the
citizens could do it for themselves; this may be true when the central
power is enlightened, and when the local districts are ignorant; when
it is as alert as they are slow; when it is accustomed to act, and they
to obey. Indeed, it is evident that this double tendency must augment
with the increase of centralization, and that the readiness of the one
and the incapacity of the others must become more and more prominent.
But I deny that such is the case when the people is as enlightened, as
awake to its interests, and as accustomed to reflect on them, as the
Americans are. I am persuaded, on the contrary, that in this case the
collective strength of the citizens will always conduce more
efficaciously to the public welfare than the authority of the
Government. It is difficult to point out with certainty the means of
arousing a sleeping population, and of giving it passions and knowledge
which it does not possess; it is, I am well aware, an arduous task to
persuade men to busy themselves about their own affairs; and it would
frequently be easier to interest them in the punctilios of court
etiquette than in the repairs of their common dwelling. But whenever a
central administration affects to supersede the persons most
interested, I am inclined to suppose that it is either misled or
desirous to mislead. However enlightened and however skilful a central
power may be, it cannot of itself embrace all the details of the
existence of a great nation. Such vigilance exceeds the powers of man.
And when it attempts to create and set in motion so many complicated
springs, it must submit to a very imperfect result, or consume itself
in bootless efforts.
Centralization succeeds more easily, indeed, in subjecting the external
actions of men to a certain uniformity, which at least commands our
regard, independently of the objects to which it is applied, like those
devotees who worship the statue and forget the deity it represents.
Centralization imparts without difficulty an admirable regularity to
the routine of business; provides for the details of the social police
with sagacity; represses the smallest disorder and the most petty
misdemeanors; maintains society in a status quo alike secure from
improvement and decline; and perpetuates a drowsy precision in the
conduct of affairs, which is hailed by the heads of the administration
as a sign of perfect order and public tranquillity: *s in short, it
excels more in prevention than in action. Its force deserts it when
society is to be disturbed or accelerated in its course; and if once
the co-operation of private citizens is necessary to the furtherance of
its measures, the secret of its impotence is disclosed. Even whilst it
invokes their assistance, it is on the condition that they shall act
exactly as much as the Government chooses, and exactly in the manner it
appoints. They are to take charge of the details, without aspiring to
guide the system; they are to work in a dark and subordinate sphere,
and only to judge the acts in which they have themselves cooperated by
their results. These, however, are not conditions on which the alliance
of the human will is to be obtained; its carriage must be free and its
actions responsible, or (such is the constitution of man) the citizen
had rather remain a passive spectator than a dependent actor in schemes
with which he is unacquainted.
s
[ China appears to me to present the most perfect instance of that
species of well-being which a completely central administration may
furnish to the nations among which it exists. Travellers assure us that
the Chinese have peace without happiness, industry without improvement,
stability without strength, and public order without public morality.
The condition of society is always tolerable, never excellent. I am
convinced that, when China is opened to European observation, it will
be found to contain the most perfect model of a central administration
which exists in the universe.]
It is undeniable that the want of those uniform regulations which
control the conduct of every inhabitant of France is not unfrequently
felt in the United States. Gross instances of social indifference and
neglect are to be met with, and from time to time disgraceful blemishes
are seen in complete contrast with the surrounding civilization. Useful
undertakings which cannot succeed without perpetual attention and
rigorous exactitude are very frequently abandoned in the end; for in
America, as well as in other countries, the people is subject to sudden
impulses and momentary exertions. The European who is accustomed to
find a functionary always at hand to interfere with all he undertakes
has some difficulty in accustoming himself to the complex mechanism of
the administration of the townships. In general it may be affirmed that
the lesser details of the police, which render life easy and
comfortable, are neglected in America; but that the essential
guarantees of man in society are as strong there as elsewhere. In
America the power which conducts the Government is far less regular,
less enlightened, and less learned, but an hundredfold more
authoritative than in Europe. In no country in the world do the
citizens make such exertions for the common weal; and I am acquainted
with no people which has established schools as numerous and as
efficacious, places of public worship better suited to the wants of the
inhabitants, or roads kept in better repair. Uniformity or permanence
of design, the minute arrangement of details, *t and the perfection of
an ingenious administration, must not be sought for in the United
States; but it will be easy to find, on the other hand, the symptoms of
a power which, if it is somewhat barbarous, is at least robust; and of
an existence which is checkered with accidents indeed, but cheered at
the same time by animation and effort.
t
[ A writer of talent, who, in the comparison which he has drawn between
the finances of France and those of the United States, has proved that
ingenuity cannot always supply the place of a knowledge of facts, very
justly reproaches the Americans for the sort of confusion which exists
in the accounts of the expenditure in the townships; and after giving
the model of a departmental budget in France, he adds:—“We are indebted
to centralization, that admirable invention of a great man, for the
uniform order and method which prevail alike in all the municipal
budgets, from the largest town to the humblest commune.” Whatever may
be my admiration of this result, when I see the communes of France,
with their excellent system of accounts, plunged into the grossest
ignorance of their true interests, and abandoned to so incorrigible an
apathy that they seem to vegetate rather than to live; when, on the
other hand, I observe the activity, the information, and the spirit of
enterprise which keep society in perpetual labor, in those American
townships whose budgets are drawn up with small method and with still
less uniformity, I am struck by the spectacle; for to my mind the end
of a good government is to ensure the welfare of a people, and not to
establish order and regularity in the midst of its misery and its
distress. I am therefore led to suppose that the prosperity of the
American townships and the apparent confusion of their accounts, the
distress of the French communes and the perfection of their budget, may
be attributable to the same cause. At any rate I am suspicious of a
benefit which is united to so many evils, and I am not averse to an
evil which is compensated by so many benefits.]
Granting for an instant that the villages and counties of the United
States would be more usefully governed by a remote authority which they
had never seen than by functionaries taken from the midst of
them—admitting, for the sake of argument, that the country would be
more secure, and the resources of society better employed, if the whole
administration centred in a single arm—still the political advantages
which the Americans derive from their system would induce me to prefer
it to the contrary plan. It profits me but little, after all, that a
vigilant authority should protect the tranquillity of my pleasures and
constantly avert all dangers from my path, without my care or my
concern, if this same authority is the absolute mistress of my liberty
and of my life, and if it so monopolizes all the energy of existence
that when it languishes everything languishes around it, that when it
sleeps everything must sleep, that when it dies the State itself must
perish.
In certain countries of Europe the natives consider themselves as a
kind of settlers, indifferent to the fate of the spot upon which they
live. The greatest changes are effected without their concurrence and
(unless chance may have apprised them of the event) without their
knowledge; nay more, the citizen is unconcerned as to the condition of
his village, the police of his street, the repairs of the church or of
the parsonage; for he looks upon all these things as unconnected with
himself, and as the property of a powerful stranger whom he calls the
Government. He has only a life-interest in these possessions, and he
entertains no notions of ownership or of improvement. This want of
interest in his own affairs goes so far that, if his own safety or that
of his children is endangered, instead of trying to avert the peril, he
will fold his arms, and wait till the nation comes to his assistance.
This same individual, who has so completely sacrificed his own free
will, has no natural propensity to obedience; he cowers, it is true,
before the pettiest officer; but he braves the law with the spirit of a
conquered foe as soon as its superior force is removed: his
oscillations between servitude and license are perpetual. When a nation
has arrived at this state it must either change its customs and its
laws or perish: the source of public virtue is dry, and, though it may
contain subjects, the race of citizens is extinct. Such communities are
a natural prey to foreign conquests, and if they do not disappear from
the scene of life, it is because they are surrounded by other nations
similar or inferior to themselves: it is because the instinctive
feeling of their country’s claims still exists in their hearts; and
because an involuntary pride in the name it bears, or a vague
reminiscence of its bygone fame, suffices to give them the impulse of
self-preservation.
Nor can the prodigious exertions made by tribes in the defence of a
country to which they did not belong be adduced in favor of such a
system; for it will be found that in these cases their main incitement
was religion. The permanence, the glory, or the prosperity of the
nation were become parts of their faith, and in defending the country
they inhabited they defended that Holy City of which they were all
citizens. The Turkish tribes have never taken an active share in the
conduct of the affairs of society, but they accomplished stupendous
enterprises as long as the victories of the Sultan were the triumphs of
the Mohammedan faith. In the present age they are in rapid decay,
because their religion is departing, and despotism only remains.
Montesquieu, who attributed to absolute power an authority peculiar to
itself, did it, as I conceive, an undeserved honor; for despotism,
taken by itself, can produce no durable results. On close inspection we
shall find that religion, and not fear, has ever been the cause of the
long-lived prosperity of an absolute government. Whatever exertions may
be made, no true power can be founded among men which does not depend
upon the free union of their inclinations; and patriotism and religion
are the only two motives in the world which can permanently direct the
whole of a body politic to one end.
Laws cannot succeed in rekindling the ardor of an extinguished faith,
but men may be interested in the fate of their country by the laws. By
this influence the vague impulse of patriotism, which never abandons
the human heart, may be directed and revived; and if it be connected
with the thoughts, the passions, and the daily habits of life, it may
be consolidated into a durable and rational sentiment.
Let it not be said that the time for the experiment is already past;
for the old age of nations is not like the old age of men, and every
fresh generation is a new people ready for the care of the legislator.
It is not the administrative but the political effects of the local
system that I most admire in America. In the United States the
interests of the country are everywhere kept in view; they are an
object of solicitude to the people of the whole Union, and every
citizen is as warmly attached to them as if they were his own. He takes
pride in the glory of his nation; he boasts of its success, to which he
conceives himself to have contributed, and he rejoices in the general
prosperity by which he profits. The feeling he entertains towards the
State is analogous to that which unites him to his family, and it is by
a kind of egotism that he interests himself in the welfare of his
country.
The European generally submits to a public officer because he
represents a superior force; but to an American he represents a right.
In America it may be said that no one renders obedience to man, but to
justice and to law. If the opinion which the citizen entertains of
himself is exaggerated, it is at least salutary; he unhesitatingly
confides in his own powers, which appear to him to be all-sufficient.
When a private individual meditates an undertaking, however directly
connected it may be with the welfare of society, he never thinks of
soliciting the co-operation of the Government, but he publishes his
plan, offers to execute it himself, courts the assistance of other
individuals, and struggles manfully against all obstacles. Undoubtedly
he is often less successful than the State might have been in his
position; but in the end the sum of these private undertakings far
exceeds all that the Government could have done.
As the administrative authority is within the reach of the citizens,
whom it in some degree represents, it excites neither their jealousy
nor their hatred; as its resources are limited, every one feels that he
must not rely solely on its assistance. Thus, when the administration
thinks fit to interfere, it is not abandoned to itself as in Europe;
the duties of the private citizens are not supposed to have lapsed
because the State assists in their fulfilment, but every one is ready,
on the contrary, to guide and to support it. This action of individual
exertions, joined to that of the public authorities, frequently
performs what the most energetic central administration would be unable
to execute. It would be easy to adduce several facts in proof of what I
advance, but I had rather give only one, with which I am more
thoroughly acquainted. *u In America the means which the authorities
have at their disposal for the discovery of crimes and the arrest of
criminals are few. The State police does not exist, and passports are
unknown. The criminal police of the United States cannot be compared to
that of France; the magistrates and public prosecutors are not
numerous, and the examinations of prisoners are rapid and oral.
Nevertheless in no country does crime more rarely elude punishment. The
reason is, that every one conceives himself to be interested in
furnishing evidence of the act committed, and in stopping the
delinquent. During my stay in the United States I witnessed the
spontaneous formation of committees for the pursuit and prosecution of
a man who had committed a great crime in a certain county. In Europe a
criminal is an unhappy being who is struggling for his life against the
ministers of justice, whilst the population is merely a spectator of
the conflict; in America he is looked upon as an enemy of the human
race, and the whole of mankind is against him.
u
[ See Appendix, I.]
I believe that provincial institutions are useful to all nations, but
nowhere do they appear to me to be more indispensable than amongst a
democratic people. In an aristocracy order can always be maintained in
the midst of liberty, and as the rulers have a great deal to lose order
is to them a first-rate consideration. In like manner an aristocracy
protects the people from the excesses of despotism, because it always
possesses an organized power ready to resist a despot. But a democracy
without provincial institutions has no security against these evils.
How can a populace, unaccustomed to freedom in small concerns, learn to
use it temperately in great affairs? What resistance can be offered to
tyranny in a country where every private individual is impotent, and
where the citizens are united by no common tie? Those who dread the
license of the mob, and those who fear the rule of absolute power,
ought alike to desire the progressive growth of provincial liberties.
On the other hand, I am convinced that democratic nations are most
exposed to fall beneath the yoke of a central administration, for
several reasons, amongst which is the following. The constant tendency
of these nations is to concentrate all the strength of the Government
in the hands of the only power which directly represents the people,
because beyond the people nothing is to be perceived but a mass of
equal individuals confounded together. But when the same power is
already in possession of all the attributes of the Government, it can
scarcely refrain from penetrating into the details of the
administration, and an opportunity of doing so is sure to present
itself in the end, as was the case in France. In the French Revolution
there were two impulses in opposite directions, which must never be
confounded—the one was favorable to liberty, the other to despotism.
Under the ancient monarchy the King was the sole author of the laws,
and below the power of the sovereign certain vestiges of provincial
institutions, half destroyed, were still distinguishable. These
provincial institutions were incoherent, ill compacted, and frequently
absurd; in the hands of the aristocracy they had sometimes been
converted into instruments of oppression. The Revolution declared
itself the enemy of royalty and of provincial institutions at the same
time; it confounded all that had preceded it—despotic power and the
checks to its abuses—in indiscriminate hatred, and its tendency was at
once to overthrow and to centralize. This double character of the
French Revolution is a fact which has been adroitly handled by the
friends of absolute power. Can they be accused of laboring in the cause
of despotism when they are defending that central administration which
was one of the great innovations of the Revolution? *v In this manner
popularity may be conciliated with hostility to the rights of the
people, and the secret slave of tyranny may be the professed admirer of
freedom.
v
[ See Appendix K.]
I have visited the two nations in which the system of provincial
liberty has been most perfectly established, and I have listened to the
opinions of different parties in those countries. In America I met with
men who secretly aspired to destroy the democratic institutions of the
Union; in England I found others who attacked the aristocracy openly,
but I know of no one who does not regard provincial independence as a
great benefit. In both countries I have heard a thousand different
causes assigned for the evils of the State, but the local system was
never mentioned amongst them. I have heard citizens attribute the power
and prosperity of their country to a multitude of reasons, but they all
placed the advantages of local institutions in the foremost rank. Am I
to suppose that when men who are naturally so divided on religious
opinions and on political theories agree on one point (and that one of
which they have daily experience), they are all in error? The only
nations which deny the utility of provincial liberties are those which
have fewest of them; in other words, those who are unacquainted with
the institution are the only persons who pass a censure upon it.