Democracy in America - Volume 1

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.