American Institutions And Their Influence

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It has always been remarked that habits of legal business do not
render men apt to the exercise of administrative authority. The
Americans have borrowed from the English, their fathers, the idea
of an institution which is unknown upon the continent of Europe:
I allude to that of justices of the peace.

The justice of the peace is a sort of _mezzo termine_
between the magistrate and the man of the world, between the
civil officer and the judge. A justice of the peace is a
well-informed citizen, though he is not necessarily versed in the
knowledge of the laws. His office simply obliges him to execute
the police regulations of society; a task in which good sense and
integrity are of more avail than legal science. The justice
introduces into the administration a certain taste for
established forms and publicity, which renders him a most
unserviceable instrument of despotism; and, on the other hand, he
is not blinded by those superstitions which render legal officers
unfit members of a government. The Americans have adopted the
system of English justices of the peace, but they have deprived
it of that aristocratic character which is discernible in the
mother-country. The governor of Massachusetts[Footnote:

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.

] appoints a certain number of justices of the peace in every
county, whose functions last seven years.[Footnote:

See the constitution of Massachusetts, chap, ii., Sec. 1; chap
iii., Sec. 3.

] He farther designates three individuals from among the whole
body of justices, who form in each county what is called the
court of sessions. The justices take a personal share in public
business; they are sometimes intrusted with administrative
functions in conjunction with elected officers;[Footnote: 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 22d June, 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.

] 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[Footnote:

I say _the greater number_ because certain administrative
misdemeanors are brought before the 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 the act of 10th
March, 1827; laws of Massachusetts, vol. iii., p. 190. Or when a
township neglects to provide the necessary war-stores. Act of
21st February, 1822; _Id._ vol. ii., p. 570.

] of public officers.[Footnote:

In their individual capacity, the justices of the peace take a
part in the business of the counties and townships. The more
important acts of the municipal government are rarely decided
upon without the co-operation of one of their body.

] It must be observed that in the state of Massachusetts the
court of sessions is at the same time an administrative body,
properly so called, and a political tribunal. It has been
asserted that the county is a purely administrative division.
The court of sessions presides over that small number of affairs
which, as they concern several townships, or all the townships of
the county in common, cannot be intrusted to any of them in
particular.[Footnote:

These affairs may be brought under the following heads: 1. The
erection of prisons and courts of justice. 2. The county budget,
which is afterward voted by the state. 3. The assessment of the
taxes so voted. 4. Grants of certain patents. 5. The laying
down and repairs of the county roads.

] In all that concerns county business, the duties of the court
of sessions are therefore purely administrative; and if in its
investigations it occasionally borrows the forms of judicial
procedure, it is only with a view to its own information,
[Footnote:

Thus, when a road is under consideration, almost all difficulties
are disposed of by the aid of the jury.

] or as a guarantee to the community over which it presides. But
when the administration of the township is brought before it, it
almost always acts as a judicial body, and in some few cases as
an administrative assembly.

The first difficulty is to procure the obedience of an authority
so entirely independent of the general laws of the state as the
township is. We have stated that assessors are annually named by
the town meetings, to levy the taxes. If a township attempts to
evade the payment of the taxes by neglecting to name its
assessors, the court of sessions condemns it to a heavy
penalty.[Footnote:

See the act of the 20th February, 1786; laws of Massachusetts,
vol. i., p. 217.

] The fine is levied on each of the inhabitants; and the sheriff
of the county, who is an officer of justice, executes the
mandate. Thus it is that in the United States the authority of
the government is mysteriously concealed under the forms of a
judicial sentence; and the influence is at the same time
fortified by that irresistible power with which men have invested
the formalities of law.

These proceedings are easy to follow, and to understand. The
demands made upon a township are in general plain and accurately
defined; they consist in a simple fact without any complication,
or in a principle without its application in detail.[Footnote:

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 the act of 5th
March, 1787; laws of Massachusetts, vol. i., p. 305.

] But the difficulty increases when it is not the obedience of
the township, but that of the town officers, which is to be
enforced. All the reprehensible actions of which a public
functionary may be guilty are reducible to the following heads:--
He may execute the law without energy or zeal; He may neglect to
execute the law; He may do what the law enjoins him not to do.

The last two violations of duty can alone come under the
cognizance of a tribunal; a positive and appreciable fact is the
indispensable foundation of an action at law. Thus, if the
selectmen omit to fulfil the legal formalities usual to town
elections, they may be condemned to pay a fine; [Footnote:

Laws of Massachusetts, vol. ii., p. 45.

] but when the public officer performs his duty without ability,
and when he obeys the letter of the law without zeal or energy,
he is at least beyond the reach of judicial interference. The
court of sessions, even when it is invested with its
administrative powers, is in this case unable to compel him to a
more satisfactory obedience. The fear of removal is the only
check to these quasi offences; and as the court of sessions does
not originate the town authorities, it cannot remove
functionaries whom it does not appoint. Moreover, a perpetual
investigation would be necessary to convict the subordinate
officer of negligence or lukewarmness; and the court of sessions
sits but twice a year, and then only judges such offences as are
brought before its notice. The only security for that active and
enlightened obedience, which a court of justice cannot impose
upon public officers, lies in the possibility of their arbitrary
removal. In France this security is sought for in powers
exercised by the heads of the administration; in America it is
sought for in the principle of election.

Thus, to recapitulate in a few words what I have been showing:--

If a public officer in New England commits a crime in the
exercise of his functions, the ordinary courts of justice are
always called upon to pass sentence upon him.

If he commits a fault in his official capacity, a purely
administrative tribunal is empowered to punish him; and, if the
affair is important or urgent, the judge supplies the omission of
the functionary.[Footnote:

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, 20th February,
1787.

]

Lastly, if the same individual is guilty of one of those
intangible offences, of which human justice has no cognizance, he
annually appears before a tribunal from which there is no appeal,
which can at once reduce him to insignificance, and deprive him
of his charge. This system undoubtedly possesses great
advantages, but its execution is attended with a practical
difficulty which it is important to point out.

I have already observed, that the administrative tribunal, which
is called the court of sessions, has no right of inspection over
the town officers. It can only interfere when the conduct of a
magistrate is specially brought under its notice; and this is the
delicate part of the system. The Americans of New England are
unacquainted with the office of public prosecutor in the court of
sessions,[Footnote:

I say the court of sessions, because in common courts there is a
magistrate who exercises some of the functions of a public
prosecutor.

] and it may readily be perceived that it could not have been
established without difficulty. If an accusing magistrate had
merely been appointed in the chief town of each county, and if he
had been unassisted by agents in the townships, he would not have
been better acquainted with what was going on in the county than
the members of the court of sessions. But to appoint agents in
each township, would have been to centre in his person the most
formidable of powers, that of a judicial administration.
Moreover, laws are the children of habit, and nothing of the kind
exists in the legislation of England. The Americans have
therefore divided the officers of inspection and of prosecution
as well as all the other functions of the administration.
Grand-jurors are bound by the law to apprize the court to which
they belong of all the misdemeanors which may have been committed
in their county.[Footnote:

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.

] There are certain great offences which are officially
prosecuted by the state;[Footnote:

If, for instance, the treasurer of the county holds back his
account. Laws of Massachusetts, vol. i., p. 406.

] but more frequently the task of punishing delinquents devolves
upon the fiscal officer, whose province it is to receive the
fine; thus the treasurer of the township is charged with the
prosecution of such administrative offences as fall under his
notice. But a more especial appeal is made by American
legislation to the private interest of the citizen,[Footnote:

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.

] and this great principle is constantly to be met with in
studying the laws of the United States. American legislators are
more apt to give men credit for intelligence than for honesty;
and they rely not a little on personal cupidity for the execution
of the laws. When an individual is really and sensibly injured
by an administrative abuse, it is natural that his personal
interest should induce him to prosecute. But if a legal
formality be required which, however advantageous to the
community, is of small importance to individuals, plaintiffs may
be less easily found; and thus, by a tacit agreement, the laws
might fall into disuse. Reduced by their system to this
extremity, the Americans are obliged to encourage informers by
bestowing on them a portion of the penalty in certain
cases;[Footnote:

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 two to
five hundred dollars. 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 the fine shall belong to the plaintiff. See the
act of 6th March, 1810; vol. ii., p. 236. The same clause is
frequently to be met with in the laws of Massachusetts. Not only
are private individuals thus incited to prosecute 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.

] and to ensure the execution of the laws by the dangerous
expedient of degrading the morals of the people.

The only administrative authority above the county magistrates
is, properly speaking, that of the government.

* * * * *

GENERAL REMARKS ON THE ADMINISTRATION OF THE UNITED
STATES.

Difference of the States of the Union in their Systems of
Administration.--Activity and Perfection of the local
Authorities decreases towards the South.--Power of the
Magistrates increases; that of the Elector
diminishes.--Administration passes from the Township to the
County.--States of New York, Ohio, Pennsylvania.--Principles of
Administration applicable to the whole Union.--Election of
public Officers, and Inalienability of their
Functions.--Absence of Gradation of Ranks.--Introduction of
judicial Resources into the Administration.

I have already 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 in New England. The more we descend
toward the south, the less active does the business of the
township or parish become; the number of magistrates, of
functions, and of rights, decreases; the population exercises a
less immediate influence on affairs; town-meetings are less
frequent, and the subjects of debates less numerous. The power
of the elected magistrate is augmented, and that of the elector
diminished, while the public spirit of the local communities is
less awakened and less influential.[Footnote:

For details, see 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 25th February, 1834, relating to
townships, p. 412; beside the peculiar dispositions relating to
divers town officers, such as township's clerks, trustees,
overseers of the poor, fence-viewers, appraisers of property,
township's treasurer, constables, supervisors of highways.

]

These differences may be perceived to a certain extent in the
state of New York; they are very sensible in Pennsylvania; but
they become less striking as we advance to the northwest. The
majority of the emigrants who settle in the northwestern states
are natives of New England, and they carry the habits of their
mother-country with them into that which they adopt. A township
in Ohio is by no means dissimilar from a township in
Massachusetts.

We have seen that in Massachusetts the principal part of the
public administration lies in the township. It forms the common
centre of the interests and affections of the citizens. But this
ceases to be the case as we descend to states in which knowledge
is less generally diffused, and where the township consequently
offers fewer guarantees of a wise and active administration. As
we leave New England, therefore, we find that the importance of
the town is gradually transferred to the county, which becomes
the centre of administration, and the intermediate power between
the government and the citizen. In Massachusetts the business of
the town is conducted by the court of sessions, which is composed
of a _quorum_ named by the governor and his council; but the
county has no representative assembly, and its expenditure is
voted by the national[Footnote:

The author means the state legislature. The congress has no
control over the expenditure of the counties or of the states.

] 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.[Footnote:

See the Revised Statutes of the state of New York, part i.,
chap. xi., vol. i., p. 410. _Idem_, chap. xii., p. 366:
also in the acts of the state of Ohio, an act relating to county
commissioners, 26th February, 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.

] The county assembly has the right of taxing the inhabitants to
a certain extent; and in this respect it enjoys the privileges of
a real legislative body: at the same time it exercises an
executive power in the county, frequently directs the
administration of the townships, and restricts their authority
within much narrower bounds than in Massachusetts.

Such are the principal differences which the systems of county
and town administration present in the federal states. Were it
my intention to examine the provisions of American law minutely,
I should have to point out still farther differences in the
executive details of the several communities. But what I have
already said may suffice to show the general principles on which
the administration of the United States rests. These principles
are differently applied; their consequences are more or less
numerous in various localities; but they are always substantially
the same. The laws differ, and their outward features change,
but their character does not vary. If the township and the
county are not everywhere constituted in the same manner, it is
at least true that in the United States the county and the
township are always based upon the same principle, namely, that
every one is the best judge of what concerns himself alone, and
the person most able to supply his private wants. The township
and the county are therefore bound to take care of their special
interests: the state governs, but it does not interfere with
their administration. Exceptions to this rule may be met with,
but not a contrary principle.

The first consequence of this doctrine has been to cause all the
magistrates to be chosen either by, or at least from among the
citizens. As the officers are everywhere elected or appointed
for a certain period, it has been impossible to establish the
rules of a dependent series of authorities; there are almost as
many independent functionaries as there are functions, and the
executive power is disseminated in a multitude of hands. Hence
arose the indispensable necessity of introducing the control of
the courts of justice over the administration, and the system of
pecuniary penalties, by which the secondary bodies and their
representatives are constrained to obey the laws. The system
obtains from one end of the Union to the other. The power of
punishing the misconduct of public officers, or of performing the
part of the executive, in urgent cases, has not, however, been
bestowed on the same judges in all the states. The
Anglo-Americans derived the institution of justices of the peace
from a common source; but although it exists in all the states,
it is not always turned to the same use. The justices of the
peace everywhere participate in the administration of the
townships and the counties,[Footnote:

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, &c.

] either as public officers or as the judges of public
misdemeanors, but in most of the states the more important
classes of public offences come under the cognisance of the
ordinary tribunals.

The election of public officers, or the inalienability of their
functions, the absence of a gradation of powers, and the
introduction of a judicial control over the secondary branches of
the administration, are the universal characteristics of the
American system from Maine to the Floridas. In some states (and
that of New York has advanced most in this direction) traces of a
centralised administration begin to be discernible. In the state
of New York the officers of the central government exercise, in
certain cases, a sort of inspection of control over the secondary
bodies.[Footnote:

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
lieutenant-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., "Public
Instruction," Revised Statutes, vol. i., p. 455.

The school commissioners are obliged to send an annual report to
the superintendent of the state. _Idem_, p. 448.

A similar report is annually made to the same person on the
number and condition of the poor. _Idem_, p. 631.

] At other times they constitute a court of appeal for the
decision of affairs.[Footnote:

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 centralisation 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.

] 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.[Footnote:

Thus the district-attorney is directed to recover all fines below
the sum of fifty dollars,[Footnote:

(a) The words below the sum of fifty dollars should be omitted in
the above note.

] unless such a right has been specially awarded to another
magistrate. Revised Statutes, vol. i., p. 383.

] The same tendency is faintly observable in some other
states;[Footnote:

Several traces of centralisation 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.