American Institutions And Their Influence

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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 offices in a township. Every
inhabitant is constrained, on pain of being fined, to undertake
these different functions; which, however, are almost all paid,
in order that the poor 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
these Doctrines in the Townships of America.--The Township of
New England is Sovereign in that which concerns itself alone;
subject to the State in all other matters.--Bond of Township
and the State.--In France the Government lends its Agents to
the _Commune_.--In America the Reverse occurs.

I have already observed, that the principle of the sovereignty of
the people governs the whole political system of the
Anglo-Americans. Every page of this book will afford new
instances of the same doctrine. In the nations by which the
sovereignty of the people is recognised, every individual
possesses an equal share of power, and participates alike in the
government of the state. Every individual is therefore supposed
to be as well informed, as virtuous, and as strong, as any of his
fellow-citizens. He obeys the government, not because he is
inferior to the authorities which conduct it, or that he is less
capable than his neighbor of governing himself, but because he
acknowledges the utility of an association with his fellow-men,
and because he knows that no such association can exist without a
regulating force. If he be a subject in all that concerns the
mutual relations of citizens, he is free and responsible to God
alone for all that concerns himself. Hence arises the maxim that
every one is the best and the sole judge of his own private
interest, and that society has no right to control a man's
actions, unless they are prejudicial to the common weal, or
unless the common weal demands his co-operation. This doctrine
is universally admitted in the United States. I shall hereafter
examine the general influence which it exercises on the ordinary
actions of life: I am now speaking of the nature of municipal
bodies.

The township, taken as a whole, and in relation to the government
of the country, may be looked upon as an individual to whom the
theory I have just alluded to is applied. Municipal independence
is therefore a natural consequence of the principle of the
sovereignty of the people in the United States, all the American
republics recognise it more or less; but circumstances have
peculiarly favored its growth in New England.

In this part of the Union the impulsion of political activity was
given in the townships; and it may almost be said that each of
them originally formed an independent nation. When the kings of
England asserted their supremacy, they were contented to assume
the central power of the state. The townships of New England
remained as they were before; and although they are now subject
to the state, they were at first scarcely dependent upon it. It
is important to remember that they have not been invested with
privileges, but that they seem, on the contrary, to have
surrendered a portion of their independence to the state. The
townships are only subordinate to the state in those interests
which I shall term _social_, as they are common to all the
citizens. They are independent in all that concerns themselves;
and among the inhabitants of New England I believe that not a man
is to be found who would acknowledge that the state has any right
to interfere in their local interests. The towns of New England
buy and sell, prosecute or are indicted, augment or diminish
their rates, without the slightest opposition on the part of the
administrative authority of the state.

They are bound, however, to comply with the demands of the
community. If the state is in need of money, a town can neither
give nor withhold the supplies. If the state projects a road,
the township cannot refuse to let it cross its territory; if a
police regulation is made by the state, it must be enforced by
the town. A uniform system of instruction is organised all over
the country, and every town is bound to establish the schools
which the law ordains. In speaking of the administration of the
United States, I shall have occasion to point out the means by
which the townships are compelled to obey in these different
cases: I here merely show the existence of the obligation.
Strict as this obligation is, the government of the state imposes
it in principle only, and in its performance the township resumes
all its independent rights. Thus, taxes are voted by the state,
but they are assessed and collected by the township; the
existence of a school is obligatory, but the township builds,
pays, and superintends it. In France the state collector
receives the local imposts; in America the town collector
receives the taxes of the state. Thus the French government
lends its agents to the commune; in America, the township is the
agent of the government. This fact alone shows the extent of the
differences which exist between the two nations.

* * * * *

PUBLIC SPIRIT OF THE TOWNSHIPS OF NEW ENGLAND.

How the Township of New England wins the Affections of its
Inhabitants.--Difficulty of creating local public Spirit in
Europe.--The Rights and Duties of the American Township
favorable to it.--Characteristics of Home in the United
States.--Manifestations of public Spirit in New England.--Its
happy Effects.

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

It is to be remembered that the affections of men are generally
turned only where there is strength. Patriotism is not durable
in a conquered nation. The New Englander is attached to his
township, not only because he was born in it, but because it
constitutes a strong and free social body of which he is a
member, and whose government claims and deserves the exercise of
his sagacity. In Europe, the absence of local public spirit is a
frequent subject of regret to those who are in power; every one
agrees that there is no surer guarantee of order and
tranquillity, and yet nothing is more difficult to create. If
the municipal bodies were made powerful and independent, the
authorities of the nation might be disunited, and the peace of
the country endangered. Yet, without power and independence, a
town may contain good subjects, but it can have no active
citizens. Another important fact is, that the township of New
England is so constituted as to excite the warmest of human
affections, without arousing the ambitious passions of the heart
of man. The officers of the county are not elected, and their
authority is very limited. Even the state is only a second-rate
community, whose tranquil and obscure administration offers no
inducement sufficient to draw men away from the circle of their
interests into the turmoil of public affairs. The federal
government confers power and honor on the men who conduct it; but
these individuals can never be very numerous. The high station
of the presidency can only be reached at an advanced period of
life; and the other federal functionaries are generally men who
have been favored by fortune, or distinguished in some other
career. Such cannot be the permanent aim of the ambitious. But
the township serves as a centre for the desire of public esteem,
the want of exciting interests, and the taste for authority and
popularity, in the midst of the ordinary relations of life: and
the passions which commonly embroil society, change their
character when they find a vent so near the domestic hearth and
the family circle.

In the American states power has been disseminated with admirable
skill, for the purpose of interesting the greatest possible
number of persons in the common weal. Independently of the
electors who are from time to time called into action, the body
politic is divided into innumerable functionaries and officers,
who all, in their several spheres, represent the same powerful
corporation in whose name they act. The local administration
thus affords an unfailing source of profit and interest to a vast
number of individuals.

The American system, which divides the local authority among so
many citizens, does not scruple to multiply the functions of the
town officers. For in the United States, it is believed, and
with truth, that patriotism is a kind of devotion, which is
strengthened by ritual observance. In this manner the activity
of the township is continually perceptible; it is daily
manifested in the fulfilment of a duty, or the exercise of a
right; and a constant though gentle motion is thus kept up in
society which animates without disturbing it.

The American attaches himself to his home, as the mountaineer
clings to his hills, because the characteristic features of his
country are there more distinctly marked than elsewhere. The
existence of the townships of New England is in general a happy
one. Their government is suited to their tastes, and chosen by
themselves. In the midst of the profound peace and general
comfort which reign in America, the commotions of municipal
discord are infrequent. The conduct of local business is easy.
The political education of the people has long been complete; say
rather that it was complete when the people first set foot upon
the soil. In New England no tradition exists of a distinction of
ranks; no portion of the community is tempted to oppress the
remainder; and the abuses which may injure isolated individuals
are forgotten in the general contentment which prevails. If the
government is defective (and it would no doubt be easy to point
out its deficiencies), the fact that it really emanates from
those it governs, and that it acts, either ill or well, casts the
protecting spell of a parental pride over its faults. No term of
comparison disturbs the satisfaction of the citizen: England
formerly governed the mass of the colonies, but the people was
always sovereign in the township, where its rule is not only an
ancient, but a primitive state.

The native of New England is attached to his township because it
is independent and free; his co-operation in its affairs ensures
his attachment to its interest; the well-being it affords him
secures his affection; and its welfare is the aim of his ambition
and of his future exertions; he takes a part in every occurrence
in the place; he practises the art of government in the small
sphere within his reach; he accustoms himself to those forms
which can alone ensure the steady progress of liberty; he imbibes
their spirit; he acquires a taste for order, comprehends the
union of the balance of powers, and collects clear practical
notions on the nature of his duties and the extent of his rights.

* * * * *

THE COUNTIES OF NEW ENGLAND.

The division of the counties in America has considerable analogy
with that of the arrondissements of France. The limits of the
counties are arbitrarily laid down, and the various districts
which they contain have no necessary connexion, no common
traditional or natural sympathy; their object is simply to
facilitate the administration of public affairs.

The extent of the township was too small to contain a system of
judicial institutions; each county has, however, a court of
justice,[Footnote:

See the act of 14th February, 1821. Laws of Massachusetts,
vol. i., p. 551.

] 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
[Footnote:

See the act of 20th February, 1819. Laws of Massachusetts,
vol. ii., p. 494.

] of his council.[Footnote:

The council of the governor is an elective body.

] The officers of the county have only a limited and occasional
authority, which is applicable to certain predetermined cases.
The state and the townships possess all the power requisite to
conduct public business. The budget of the county is only drawn
up by its officers, and is voted by the legislature.[Footnote:

See the act of 2d November, 1791. Laws of Massachusetts,
vol. i., p. 61.

] There is no assembly which directly or indirectly represents
the county; it has, therefore, properly speaking, no political
existence.

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

* * * * *

CONDITION OF THE STATES.

ADMINISTRATION IN NEW ENGLAND.

Administration not perceived in America.--Why?--The Europeans
believe that Liberty is promoted by depriving the social
Authority of some of its Rights; the Americans, by dividing its
Exercise.--Almost all the Administration confined to the
Township, and divided among the town Officers.--No trace of an
administrative Hierarchy to be perceived either in the
Township, or above it.--The Reason of this.--How it happens
that the Administration of the State is uniform.--Who is
empowered to enforce the Obedience of the Township and the
County to the Law.--The introduction of judicial Power into the
Administration.--Consequence of the Extension of the elective
Principle to all Functionaries.--The Justice of the Peace in
New England.--By whom Appointed.--County Officer.--Ensures the
Administration of the Townships.--Court of Sessions.--Its
Action.--Right of Inspection and Indictment disseminated like
the other administrative Functions.--Informers encouraged by
the division of Fines.

Nothing is more striking to a European traveller in the United
States than the absence of what we term government, or the
administration. Written laws exist in America, and one sees that
they are daily executed; but although everything is in motion,
the hand which gives the impulse to the social machine can
nowhere be discovered. Nevertheless, as all people are obliged
to have recourse to certain grammatical forms, which are the
foundation of human language, in order to express their thoughts;
so all communities are obliged to secure their existence by
submitting to a certain portion of authority, without which they
fall a prey to anarchy. This authority may be distributed in
several ways, but it must always exist somewhere.

There are two methods of diminishing the force of authority in a
nation.

The first is to weaken the supreme power in its very principle,
by forbidding or preventing society from acting in its own
defence under certain circumstances. To weaken authority in this
manner is what is generally termed in Europe to lay the
foundations of freedom.

The second manner of diminishing the influence of authority does
not consist in stripping society of any of its rights, nor in
paralysing its efforts, but in distributing the exercise of its
privileges among various hands, and in multiplying functionaries,
to each of whom the degree of power necessary for him to perform
his duty is intrusted. There may be nations whom this
distribution of social powers might lead to anarchy; but in
itself it is not anarchical. The action of authority is indeed
thus rendered less irresistible, and less perilous, but it is not
totally suppressed.

The revolution of the United States was the result of a mature
and deliberate taste for freedom, not of a vague or ill-defined
craving for independence. It contracted no alliance with the
turbulent passions of anarchy; but its course was marked, on the
contrary, by an attachment to whatever was lawful and orderly.

It was never assumed in the United States that the citizen of a
free country has a right to do whatever he pleases: on the
contrary, social obligations were there imposed upon him more
various than anywhere else; no idea was ever entertained of
attacking the principles, or of contesting the rights of society;
but the exercise of its authority was divided, to the end that
the office might be powerful and the officer insignificant, and
that the community should be at once regulated and free. In no
country in the world does the law hold so absolute a language as
in America; and in no country is the right of applying it vested
in so many hands. The administrative power in the United States
presents nothing either central or hierarchical in its
constitution, which accounts for its passing unperceived. The
power exists, but its representative is not to be discerned.

We have already seen that the independent townships of New
England protect their own private interests; and the municipal
magistrates are the persons to whom the execution of the laws of
the state is most frequently intrusted.[Footnote:

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 a
Sunday; the _tything-men_, who are town-officers, are
especially 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 24th February, 1796;
_Ib._, vol. i., p. 488.

] Beside the general laws, the state sometimes passes general
police regulations; but more commonly the townships and town
officers, conjointly with the justices of the peace, regulate the
minor details of social life, according to the necessities of the
different localities, and promulgate such enactments as concern
the health of the community, and the peace as well as morality of
the citizens.[Footnote:

Thus, for instance, the selectmen authorise 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
7th June, 1735; Laws of Massachusetts, vol. i., p. 193.

] Lastly, these municipal magistrates provide of their own
accord and without any delegated powers, for those unforeseen
emergencies which frequently occur in society.[Footnote:

The selectmen take measures for the security of the public in
case of contagious disease, conjointly with the justices of the
peace. See the act of 22d June, 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,[Footnote:

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 28th Feb., 1787;
vol. i., p. 297.

] but that it is distributed among a great number of individuals.
In the French commune there is properly but one official
functionary, namely, the maire; and in New England we have seen
that there are nineteen. These nineteen functionaries do not in
general depend upon one another. The law carefully prescribes a
circle of action to each of these magistrates; and within that
circle they have an entire right to perform their functions
independently of any other authority. Above the township
scarcely any trace of a series of official dignities is to be
found. It sometimes happens that the county officers alter a
decision of the townships, or town magistrates,[Footnote:

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 the act of 12th March, 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 the act of 23d March,
1786; vol. i., p. 254.

] but in general the authorities of the county have no right to
interfere with the authorities of the township,[Footnote:

In Massachusetts the county-magistrates are frequently called
upon to investigate the acts of the town-magistrates; but it will
be shown farther on that this investigation is a consequence, not
of their administrative, but of their judicial power.

] except in such matters as concern the county.

The magistrates of the township, as well as those of the county,
are bound to communicate their acts to the central government in
a very small number of predetermined cases,[Footnote:

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 the act of 10th March, 1827; vol. iii., p. 183.

] But the central government is not represented by an individual
whose business it is to publish police regulations and ordinances
enforcing the execution of the laws; to keep up a regular
communication with the officers of the township and the county;
to inspect their conduct, to direct their actions, or reprimand
their faults. There is no point which serves as a centre to the
radii of the administration.

What, then, is the uniform plan on which the government is
conducted, and how is the compliance of the counties and their
magistrates, or the townships and their officers, enforced? In
the states of New England the legislative authority embraces more
subjects than it does in France; the legislator penetrates to the
very core of the administration; the law descends to the most
minute details; the same enactment prescribes the principle and
the method of its application, and thus imposes a multitude of
strict and rigorously defined obligations on the secondary
functionaries of the state. The consequence of this is, that if
all the secondary functionaries of the administration conform to
the law, society in all its branches proceeds with the greatest
uniformity; the difficulty remains of compelling the secondary
functionaries of the administration to conform to the law. It
may be affirmed that, in general, society has only two methods of
enforcing the execution of the laws at its disposal; a
discretionary power may be intrusted to a superior functionary of
directing all the others, and of cashiering them in case of
disobedience; or the courts of justice may be authorized to
inflict judicial penalties on the offender: but these two methods
are not always available.

The right of directing a civil officer pre-supposes that of
cashiering him if he does not obey orders, and of rewarding him
by promotion if he fulfils his duties with propriety. But an
elected magistrate can neither be cashiered nor promoted. All
elective functions are inalienable until their term is expired.
In fact, the elected magistrate has nothing either to expect or
to fear from his constituents; and when all public offices are
filled by ballot, there can be no series of official dignities,
because the double right of commanding and of enforcing obedience
can never be vested in the same individual, and because the power
of issuing an order can never be joined to that of inflicting a
punishment or bestowing a reward.

The communities therefore in which the secondary functionaries of
the government are elected, are perforce obliged to make great
use of judicial penalties as a means of administration. This is
not evident at first sight; for those in power are apt to look
upon the institution of elective functionaries as one concession,
and the subjection of the elective magistrate to the judges of
the land as another. They are equally averse to both these
innovations; and as they are more pressingly solicited to grant
the former than the latter, they accede to the election of the
magistrate, and leave him independent of the judicial power.
Nevertheless, the second of these measures is the only thing that
can possibly 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.