American Institutions and Their Influence
by
Alexis de Tocqueville et al
Part 2 out of 11
The towns named their own magistrates of every kind, rated themselves,
and levied their own taxes.[45] In the townships of New England the law
of representation was not adopted, but the affairs of the community were
discussed, as at Athens, in the market-place, by a general assembly of
the citizens.
In studying the laws which were promulgated at this first era of the
American republics, it is impossible not to be struck by the remarkable
acquaintance with the science of government, and the advanced theory of
legislation, which they display. The ideas there formed of the duties of
society toward its members, are evidently much loftier and more
comprehensive than those of the European legislators at that time:
obligations were there imposed which were elsewhere slighted. In the
states of New England, from the first, the condition of the poor was
provided for;[46] strict measures were taken for the maintenance of
roads, and surveyors were appointed to attend to them;[47] registers
were established in every parish, in which the results of public
deliberations, and the births, deaths, and marriages of the citizens
were entered;[48] clerks were directed to keep these registers;[49]
officers were charged with the administration of vacant inheritances,
and with the arbitration of litigated landmarks; and many others were
created whose chief functions were the maintenance of public order in
the community.[50] The law enters into a thousand useful provisions for
a number of social wants which are at present very inadequately felt in
France.
But it is by the attention it pays to public education that the original
character of American civilisation is at once placed in the clearest
light. "It being," says the law, "one chief project of Satan to keep men
from the knowledge of the Scripture by persuading from the use of
tongues, to the end that learning may not be buried in the graves of our
forefathers, in church and commonwealth, the Lord assisting our
endeavors."[51] Here follow clauses establishing schools in every
township, and obliging the inhabitants, under pain of heavy fines, to
support them. Schools of a superior kind were founded in the same manner
in the more populous districts. The municipal authorities were bound to
enforce the sending of children to school by their parents; they were
empowered to inflict fines upon all who refused compliance; and in cases
of continued resistance, society assumed the place of the parent, took
possession of the child, and deprived the father of those natural rights
which he used to so bad a purpose. The reader will undoubtedly have
remarked the preamble of these enactments: in America, religion is the
road to knowledge, and the observance of the divine laws leads men to
civil freedom.
If, after having cast a rapid glance over the state of American society
in 1650, we turn to the condition of Europe, and more especially to that
of the continent, at the same period, we cannot fail to be struck with
astonishment. On the continent of Europe, at the beginning of the
seventeenth century, absolute monarchy had everywhere triumphed over the
ruins of the oligarchical and feudal liberties of the middle ages. Never
were the notions of right more completely confounded than in the midst
of the splendor and literature of Europe; never was there less political
activity among the people; never were the principles of true freedom
less widely circulated, and at that very time, those principles, which
were scorned or unknown by the nations of Europe, were proclaimed in the
deserts of the New World, and were accepted as the future creed of a
great people. The boldest theories of the human reason were put into
practice by a community so humble, that not a statesman condescended to
attend to it; and a legislation without precedent was produced off-hand
by the imagination of the citizens. In the bosom of this obscure
democracy, which had as yet brought forth neither generals, nor
philosophers, nor authors, a man might stand up in the face of a free
people, and pronounce amid general acclamations the following fine
definition of liberty:[52]--
"Nor would I have you to mistake in the point of your own liberty. There
is a liberty of corrupt nature, which is affected both by men and beasts
to do what they list; and this liberty is inconsistent with authority,
impatient of all restraint; by this liberty '_sumus omnes deteriores_;'
it is the grand enemy of truth and peace, and all the ordinances of God
are bent against it. But there is a civil, a moral, a federal liberty,
which is the proper end and object of authority; it is a liberty for
that only which is just and good: for this liberty you are to stand with
the hazard of your very lives, and whatsoever crosses it is not
authority, but a distemper thereof. This liberty is maintained in a way
of subjection to authority; and the authority set over you will, in all
administrations for your good, be quietly submitted unto by all but such
as have a disposition to shake off the yoke and lose their true liberty,
by their murmuring at the honor and power of authority."
The remarks I have made will suffice to display the character of
Anglo-American civilisation in its true light. It is the result (and
this should be constantly present to the mind) of two distinct elements,
which in other places have been in frequent hostility, but which in
America have admirably incorporated and combined with one another. I
allude to the spirit of religion and the spirit of liberty.
The settlers of New England were at the same time ardent sectarians and
daring innovators. Narrow as the limits of some of their religious
opinions were, they were entirely free from political prejudices.
Hence arose two tendencies, distinct but not opposite, which are
constantly discernible in the manners as well as in the laws of the
country.
It might be imagined that men who sacrificed their friends, their
family, and their native land, to a religious conviction, were absorbed
in the pursuit of the intellectual advantages which they purchased at so
dear a rate. The energy, however, with which they strove for the
acquirements of wealth, moral enjoyment, and the comforts as well as the
liberties of the world, was scarcely inferior to that with which they
devoted themselves to Heaven.
Political principles, and all human laws and institutions were moulded
and altered at their pleasure; the barriers of the society in which they
were born were broken down before them; the old principles which had
governed the world for ages were no more; a path without a turn, and a
field without a horizon, were opened to the exploring and ardent
curiosity of man; but at the limits of the political world he checks his
researches, he discreetly lays aside the use of his most formidable
faculties, he no longer consents to doubt or to innovate, but carefully
abstaining from raising the curtain of the sanctuary, he yields with
submissive respect to truths which he will not discuss.
Thus in the moral world, everything is classed, adapted, decided, and
foreseen; in the political world everything is agitated, uncertain, and
disputed: in the one is a passive, though a voluntary obedience; in the
other an independence, scornful of experience and jealous of authority.
These two tendencies, apparently so discrepant, are far from
conflicting; they advance together, and mutually support each other.
Religion perceives that civil liberty affords a noble exercise to the
faculties of man, and that the political world is a field prepared by
the Creator for the efforts of the intelligence. Contented with the
freedom and the power which it enjoys in its own sphere, and with the
place which it occupies, the empire of religion is never more surely
established than when it reigns in the hearts of men unsupported by
aught besides its native strength.
Religion is no less the companion of liberty in all its battles and its
triumphs; the cradle of its infancy, and the divine source of its
claims. The safeguard of morality is religion, and morality is the best
security of law as well as the surest pledge of freedom.[53]
* * * * *
REASONS OF CERTAIN ANOMALIES WHICH THE LAWS AND CUSTOMS OF THE
ANGLO-AMERICANS PRESENT.
Remains of aristocratic Institutions in the midst of a complete
Democracy.--Why?--Distinction carefully to be drawn between what is of
Puritanical and what is of English Origin.
The reader is cautioned not to draw too general or too absolute an
inference from what has been said. The social condition, the religion,
and the manners of the first emigrants undoubtedly exercised an immense
influence on the destiny of their new country. Nevertheless it was not
in their power to found a state of things originating solely in
themselves; no man can entirely shake off the influence of the past, and
the settlers, unintentionally or involuntarily, mingled habits derived
from their education and from the traditions of their country, with
those habits and notions which were exclusively their own. To form a
judgment on the Anglo-Americans of the present day, it is therefore
necessary carefully to distinguish what is of puritanical from what is
of English origin.
Laws and customs are frequently to be met with in the United States
which contrast strongly with all that surrounds them. These laws seem to
be drawn up in a spirit contrary to the prevailing tenor of the American
legislation; and these customs are no less opposed to the general tone
of society. If the English colonies had been founded in an age of
darkness, or if their origin was already lost in the lapse of years, the
problem would be insoluble.
I shall quote a single example to illustrate what I advance.
The civil and criminal procedure of the Americans has only two means of
action--committal or bail. The first measure taken by the magistrate is
to exact security from the defendant, or, in case of refusal, to
incarcerate him: the ground of the accusation, and the importance of the
charges against him are then discussed.
It is evident that a legislation of this kind is hostile to the poor
man, and favorable only to the rich. The poor man has not always a
security to produce, even in a civil cause: and if he is obliged to wait
for justice in prison, he is speedily reduced to distress. The wealthy
individual, on the contrary, always escapes imprisonment in civil
causes; nay, more, he may readily elude the punishment which awaits him
for a delinquency, by breaking his bail. So that all the penalties of
the law are, for him, reducible to fines.[54] Nothing can be more
aristocratic than this system of legislation. Yet in America it is the
poor who make the law, and they usually reserve the greatest social
advantages to themselves. The explanation of the phenomenon is to be
found in England; the laws of which I speak are English,[55] and the
Americans have retained them, however repugnant they may be to the tenor
of their legislation, and the mass of their ideas.
Next to its habits, the thing which a nation is least apt to change is
its civil legislation. Civil laws are only familiarly known to legal
men, whose direct interest it is to maintain them as they are, whether
good or bad, simply because they themselves are conversant with them.
The body of the nation is scarcely acquainted with them: it merely
perceives their action in particular cases; but it has some difficulty
in seizing their tendency, and obeys them without reflection.
I have quoted one instance where it would have been easy to adduce a
great number of others.
The surface of American society is, if I may use the expression, covered
with a layer of democracy, from beneath which the old aristocratic
colors sometimes peep.[56]
* * * * *
Notes:
[14] The charter granted by the crown of England, in 1609, stipulated,
among other conditions, that the adventurers should pay to the crown a
fifth of the produce of all gold and silver mines. See Marshall's "Life
of Washington," vol i., pp. 18-66.
[15] A large portion of the adventurers, says Stith (History of
Virginia), were unprincipled young men of family, whom their parents
were glad to ship off, discharged servants, fraudulent bankrupts, or
debauchees: and others of the same class, people more apt to pillage and
destroy than to assist the settlement, were the seditious chiefs who
easily led this band into every kind of extravagance and excess. See for
the history of Virginia the following works:--
"History of Virginia, from the first Settlements in the year 1624," by
Smith.
"History of Virginia," by William Stith.
"History of Virginia, from the earliest Period," by Beverley.
[16] It was not till some time later that a certain number of rich
English capitalists came to fix themselves in the colony.
[17] Slavery was introduced about the year 1620, by a Dutch vessel,
which landed twenty negroes on the banks of the river James. See
Chalmer.
[18] The states of New England are those situated to the east of the
Hudson; they are now six in number: 1. Connecticut; 2. Rhode Island; 3.
Massachusetts; 4. Vermont; 5. New Hampshire; 6. Maine.
[19] "New England's Memorial," p. 13. Boston, 1826. See also
"Hutchinson's History," vol. ii., p. 440
[20] This rock is become an object of veneration in the United States. I
have seen bits of it carefully preserved in several towns of the Union.
Does not this sufficiently show that all human power and greatness is in
the soul of man? Here is a stone which the feet of a few outcasts
pressed for an instant, and this stone becomes famous; it is treasured
by a great nation, its very dust is shared as a relic; and what is
become of the gateways of a thousand palaces?
[21] "New England Memorial," p. 37.
[22] The emigrants who founded the state of Rhode Island in 1638, those
who landed at New Haven in 1637, the first settlers in Connecticut in
1639, and the founders of Providence in 1640, began in like manner by
drawing up a social contract, which was submitted to the approval of all
the interested parties. See "Pitkin's History," pp 42, 47.
[23] This was the case in the state of New York.
[24] Maryland, the Carolinas, Pennsylvania, and New Jersey, were in this
situation. See Pitkin's History, vol. i., pp. 11-31.
[25] See the work entitled, "_Historical Collection of State Papers and
other Authentic Documents intended as Materials for a History of the
United States of America_" by Ebenezer Hazard, Philadelphia, 1792, for a
great number of documents relating to the commencement of the colonies,
which are valuable from their contents and their authenticity; among
them are the various charters granted by the king of England, and the
first acts of the local governments.
See also the analysis of all these charters given by Mr. Story, judge of
the supreme court of the United States, in the introduction to his
Commentary on the Constitution of the United States. It results from
these documents that the principles of representative government and the
external forms of political liberty were introduced into all the
colonies at their origin. These principles were more fully acted upon in
the North than in the South, but they existed everywhere.
[26] See Pitkin's History, p. 35. See the History of the Colony of
Massachusetts Bay, by Hutchinson, vol. i., p. 9.
[27] See Pitkin's History, pp. 42, 47.
[28] The inhabitants of Massachusetts had deviated from the forms which
are preserved in the criminal and civil procedure of England: in 1650
the decrees of justice were not yet headed by the royal style. See
Hutchinson, vol. i., p. 452.
[29] Code of 1650, p. 28. Hartford, 1830.
[30] See also in Hutchinson's History, vol. i., pp. 435, 456, the
analysis of the penal code adopted in 1648, by the colony of
Massachusetts: this code is drawn up on the same principles as that of
Connecticut.
[31] Adultery was also punished with death by the law of Massachusetts;
and Hutchinson, vol. i., p. 441, says that several persons actually
suffered for this crime. He quotes a curious anecdote on this subject,
which occurred in the year 1663. A married woman had had criminal
intercourse with a young man; her husband died, and she married the
lover. Several years had elapsed, when the public began to suspect the
previous intercourse of this couple; they were thrown into prison, put
upon trial, and very narrowly escaped capital punishment.
[32] Code of 1650, p. 48. It seems sometimes to have happened that the
judge superadded these punishments to each other, as is seen in a
sentence pronounced in 1643 (New Haven Antiquities, p. 114), by which
Margaret Bedford, convicted of loose conduct, was condemned to be
whipped, and afterward to marry Nicolas Jemmings her accomplice.
[33] New Haven Antiquities, p. 104. See also Hutchinson's History for
several causes equally extraordinary.
[34] Code of 1650, pp. 50, 57.
[35] Ibid, p. 64.
[36] Ibid, p. 44.
[37] This was not peculiar to Connecticut. See for instance the law
which, on the 13th of September, 1644, banished the ana-baptists from
the state of Massachusetts. (Historical Collection of State Papers, vol.
i., p. 538.) See also the law against the quakers, passed on the 14th of
October, 1656. "Whereas," says the preamble, "an accursed race of
heretics called quakers has sprung up," &c. The clauses of the statute
inflict a heavy fine on all captains of ships who should import quakers
into the country. The quakers who may be found there shall be whipped
and imprisoned with hard labor. Those members of the sect who should
defend their opinions shall be first fined, then imprisoned, and finally
driven out of the province. (Historical Collection of State Papers, vol.
i., p. 630.)
[38] By the penal law of Massachusetts, any catholic priest who should
set foot in the colony after having been once driven out of it, was
liable to capital punishment.
[39] Code of 1650, p. 96.
[40] New England's Memorial, p. 316. See Appendix E.
[41] Constitution of 1638, p. 17.
[42] In 1641 the general assembly of Rhode Island unanimously declared
that the government of the state was a democracy, and that the power was
vested in the body of free citizens, who alone had the right to make the
laws and to watch their execution. Code of 1650, p. 70.
[43] Pitkin's History, p. 47.
[44] Constitution of 1638, p. 12.
[45] Code of 1650, p 80.
[46] Code of 1650, p. 78.
[47] Code of 1750, p. 94.
[48] Ibid, p. 86.
[49] See Hutchinson's History, vol. i. p. 455.
[50] Ibid, p. 40.
[51] Code of 1650, p. 90.
[52] Mather's Magnalia Christi Americana, vol. ii., p. 13. This speech
was made by Winthrop; he was accused of having committed arbitrary
actions during his magistracy, but after having made the speech of which
the above is a fragment, he was acquitted by acclamation, and from that
time forward he was always re-elected governor of the state. See
Marshall, vol. i., p. 166.
[53] See Appendix F.
[54] Crimes no doubt exist for which bail is inadmissible, but they are
few in number.
[55] See Blackstone; and Delolme, book i., chap. x.
[56] The author is not quite accurate in this statement. A person
accused of crime is, in the first instance, arrested by virtue of a
warrant issued by the magistrate, upon a complaint granted upon proof of
a crime having been committed by the person charged. He is then brought
before the magistrate, the complainant examined in his presence, other
evidence adduced, and he is heard in explanation or defence. If the
magistrate is satisfied that a crime has been committed, and that the
accused is guilty, the latter is, then, and then only, required to give
security for his appearance at the proper court to take his trial, if an
indictment shall be found against him by a Grand Jury of twenty-three of
his fellow-citizens. In the event of his inability or refusal to give
the security he is incarcerated, so as to secure his appearance at a
trial.
In France, after the preliminary examination, the accused, unless
absolutely discharged, is in all cases incarcerated, to secure his
presence at the trial. It is the relaxation of this practice in England
and the United States, in order to attain the ends of justice at the
least possible inconvenience to the accused, by accepting what is deemed
an adequate pledge for his appearance, which our author considers
hostile to the poor man and favorable to the rich. And yet it is very
obvious, that such is not its design or tendency. Good character, and
probable innocence, ordinarily obtain for the accused man the required
security. And if they do not, how can complaint be justly made that
others are not treated with unnecessary severity, and punished in
anticipation, because some are prevented by circumstances from availing
themselves of a benign provision so favorable to humanity, and to that
innocence which our law presumes, until guilt is proved? To secure the
persons of suspected criminals, that they may abide the sentence of the
law, is indispensable to all jurisprudence. And instead of reproof or
aristocratic tendency, our system deserves credit for having
ameliorated, as far as possible, the condition of persons accused. That
this amelioration cannot be made in all instances, flows from the
necessity of the case.
It would be a mistake to suppose, as the author seems to have done, that
the forfeiture of the security given, exonerates the accused from
punishment. He may be again arrested and detained in prison, as security
would not ordinarily be received from a person who had given such
evidence of his guilt as would be derived from his attempt to escape.
And the difficulty of escape is rendered so great by our constitutional
provisions for the delivery, by the different states, of fugitives from
justice, and by our treaties with England and France for the same
purpose, that the instances of successful evasion are few and rare.
CHAPTER III.
SOCIAL CONDITION OF THE ANGLO-AMERICANS.
A Social condition is commonly the result of circumstances, sometimes of
laws, oftener still of these two causes united; but wherever it exists,
it may justly be considered as the source of almost all the laws, the
usages, and the ideas, which regulate the conduct of nations: whatever
it does not produce, it modifies.
It is, therefore, necessary, if we would become acquainted with the
legislation and the manners of a nation, to begin by the study of its
social condition.
* * * * *
THE STRIKING CHARACTERISTIC OF THE SOCIAL CONDITION OF THE
ANGLO-AMERICANS IS ITS ESSENTIAL DEMOCRACY.
The first Emigrants of New England.--Their Equality.--Aristocratic Laws
introduced in the South.--Period of the Revolution.--Change in the Law
of Descent.--Effects produced by this Change.--Democracy carried to its
utmost Limits in the new States of the West.--Equality of Education.
Many important observations suggest themselves upon the social condition
of the Anglo-Americans; but there is one which takes precedence of all
the rest. The social condition of the Americans is eminently democratic;
this was its character at the foundation of the colonies, and is still
more strongly marked at the present day.
I have stated in the preceding chapter that great equality existed among
the emigrants who settled on the shores of New England. The germe of
aristocracy was never planted in that part of the Union. The only
influence which obtained there was that of intellect; the people were
used to reverence certain names as the emblems of knowledge and virtue.
Some of their fellow-citizens acquired a power over the rest which might
truly have been called aristocratic, if it had been capable of
invariable transmission from father to son.
This was the state of things to the east of the Hudson: to the southwest
of that river, and in the direction of the Floridas, the case was
different. In most of the states situated to the southwest of the Hudson
some great English proprietors had settled, who had imported with them
aristocratic principles and the English law of descent. I have explained
the reasons why it was impossible ever to establish a powerful
aristocracy in America; these reasons existed with less force to the
southwest of the Hudson. In the south, one man, aided by slaves, could
cultivate a great extent of country: it was therefore common to see rich
landed proprietors. But their influence was not altogether aristocratic
as that term is understood in Europe, since they possessed no
privileges; and the cultivation of their estates being carried on by
slaves, they had no tenants depending on them, and consequently no
patronage. Still, the great proprietors south of the Hudson constituted
a superior class, having ideas and tastes of its own, and forming the
centre of political action. This kind of aristocracy sympathized with
the body of the people, whose passions and interests it easily embraced;
but it was too weak and too short-lived to excite either love or hatred
for itself. This was the class which headed the insurrection in the
south, and furnished the best leaders of the American revolution.
At the period of which we are now speaking, society was shaken to its
centre: the people, in whose name the struggle had taken place,
conceived the desire of exercising the authority which it had acquired;
its democratic tendencies were awakened; and having thrown off the yoke
of the mother-country, it aspired to independence of every kind. The
influence of individuals gradually ceased to be felt, and custom and law
united together to produce the same result.
But the law of descent was the last step to equality. I am surprised
that ancient and modern jurists have not attributed to this law a
greater influence on human affairs.[57] It is true that these laws
belong to civil affairs: but they ought nevertheless to be placed at the
head of all political institutions; for, while political laws are only
the symbol of a nation's condition, they exercise an incredible
influence upon its social state. They have, moreover, a sure and uniform
manner of operating upon society, affecting, as it were, generations yet
unknown.
Through their means man acquires a kind of preternatural power over the
future lot of his fellow-creatures. When the legislator has once
regulated the law of inheritance, he may rest from his labor. The
machine once put in motion will go on for ages, and advance, as if
self-guided, toward a given point. When framed in a particular manner,
this law unites, draws together, and vests property and power in a few
hands: its tendency is clearly aristocratic. On opposite principles its
action is still more rapid; it divides, distributes, and disperses both
property and power. Alarmed by the rapidity of its progress, those who
despair of arresting its motion endeavor to obstruct by difficulties and
impediments; they vainly seek to counteract its effect by contrary
efforts: but it gradually reduces or destroys every obstacle, until by
its incessant activity the bulwarks of the influence of wealth are
ground down to the fine and shifting sand which is the basis of
democracy. When the law of inheritance permits, still more when it
decrees, the equal division of a father's property among all his
children, its effects are of two kinds: it is important to distinguish
them from each other, although they tend to the same end.
In virtue of the law of partible inheritance, the death of every
proprietor brings about a kind of revolution in property: not only do
his possessions change hands, but their very nature is altered; since
they are parcelled into shares, which become smaller and smaller at each
division. This is the direct, and, as it were, the physical effect of
the law. It follows, then, that in countries where equality of
inheritance is established by law, property, and especially landed
property, must have a tendency to perpetual diminution. The effects,
however, of such legislation would only be perceptible after a lapse of
time, if the law was abandoned to its own working; for supposing a
family to consist of two children (and in a country peopled as France
is, the average number is not above three), these children, sharing
among them the fortune of both parents, would not be poorer than their
father or mother.
But the law of equal division exercises its influence not merely upon
the property itself, but it affects the minds of the heirs, and brings
their passions into play. These indirect consequences tend powerfully to
the destruction of large fortunes, and especially of large domains.
Among the nations whose law of descent is founded upon the right of
primogeniture, landed estates often pass from generation to generation
without undergoing division. The consequence of which is, that family
feeling is to a certain degree incorporated with the estate. The family
represents the estate, the estate the family; whose name, together with
its origin, its glory, its power, and its virtues, is thus perpetuated
in an imperishable memorial of the past, and a sure pledge of the
future.
When the equal partition of property is established by law, the intimate
connection is destroyed between family feeling and the preservation of
the paternal estate; the property ceases to represent the family; for,
as it must inevitably be divided after one or two generations, it has
evidently a constant tendency to diminish, and must in the end be
completely dispersed. The sons of the great landed proprietor, if they
are few in number, or if fortune befriend them, may indeed entertain the
hope of being as wealthy as their father, but not that of possessing the
same property as he did; their riches must necessarily be composed of
elements different from his.
Now, from the moment when you divest the land-owner of that interest in
the preservation of his estate which he derives from association, from
tradition, and from family pride, you may be certain that sooner or
later he will dispose of it; for there is a strong pecuniary interest in
favor of selling, as floating capital produces higher interest than real
property, and is more readily available to gratify the passions of the
moment.
Great landed estates which have once been divided, never come together
again; for the small proprietor draws from his land a better revenue in
proportion, than the large owner does from his; and of course he sells
it at a higher rate.[58] The calculations of gain, therefore, which
decided the rich man to sell his domain, will still more powerfully
influence him against buying small estates to unite them into a large
one.
What is called family pride is often founded upon an illusion of
self-love. A man wishes to perpetuate and immortalize himself, as it
were, in his great-grandchildren. Where the _esprit de famille_ ceases
to act, individual selfishness comes into play. When the idea of family
becomes vague, indeterminate, and uncertain, a man thinks of his present
convenience; he provides for the establishment of the succeeding
generation, and no more.
Either a man gives up the idea of perpetuating his family, or at any
rate he seeks to accomplish it by other means than that of a landed
estate.
Thus not only does the law of partible inheritance render it difficult
for families to preserve their ancestral domains entire, but it deprives
them of the inclination to attempt it, and compels them in some measure
to co-operate with the law in their own extinction.
The law of equal distribution proceeds by two methods: by acting upon
things, it acts upon persons; by influencing persons, it affects things.
By these means the law succeeds in striking at the root of landed
property, and dispersing rapidly both families and fortunes.[59]
Most certainly is it not for us, Frenchmen of the nineteenth century,
who daily behold the political and social changes which the law of
partition is bringing to pass, to question its influence. It is
perpetually conspicuous in our country, overthrowing the walls of our
dwellings and removing the landmarks of our fields. But although it has
produced great effects in France, much still remains for it to do. Our
recollections, opinions, and habits, present powerful obstacles to its
progress.
In the United States it has nearly completed its work of destruction,
and there we can best study its results. The English laws concerning the
transmission of property were abolished in almost all the states at the
time of the revolution. The law of entail was so modified as not to
interrupt the free circulation of property.[60] The first having passed
away, estates began to be parcelled out; and the change became more and
more rapid with the progress of time. At this moment, after a lapse of
little more than sixty years, the aspect of society is totally altered;
the families of the great landed proprietors are almost all commingled
with the general mass. In the state of New York, which formerly
contained many of these, there are but two who still keep their heads
above the stream; and they must shortly disappear. The sons of these
opulent citizens have become merchants, lawyers, or physicians. Most of
them have lapsed into obscurity. The last trace of hereditary ranks and
distinctions is destroyed--the law of partition has reduced all to one
level.
I do not mean that there is any deficiency of wealthy individuals in the
United States; I know of no country, indeed, where the love of money has
taken stronger hold on the affections of men, and where a profounder
contempt is expressed for the theory of the permanent equality of
property. But wealth circulates with inconceivable rapidity, and
experience shows that it is rare to find two succeeding generations in
the full enjoyment of it.
This picture, which may perhaps be thought overcharged, still gives a
very imperfect idea of what is taking place in the new states of the
west and southwest. At the end of the last century a few bold
adventurers began to penetrate into the valleys of the Mississippi, and
the mass of the population very soon began to move in that direction:
communities unheard of till then were seen to emerge from their wilds:
states, whose names were not in existence a few years before, claimed
their place in the American Union; and in the western settlements we may
behold democracy arrived at its utmost extreme. In these states, founded
off hand, and as it were by chance, the inhabitants are but of
yesterday. Scarcely known to one another, the nearest neighbors are
ignorant of each other's history. In this part of the American
continent, therefore, the population has not experienced the influence
of great names and great wealth, nor even that of the natural
aristocracy of knowledge and virtue. None are there to wield that
respectable power which men willingly grant to the remembrance of a life
spent in doing good before their eyes. The new states of the west are
already inhabited; but society has no existence among them.
It is not only the fortunes of men which are equal in America; even
their acquirements partake in some degree of the same uniformity. I do
not believe there is a country in the world where, in proportion to the
population, there are so few uninstructed, and at the same time so few
learned individuals. Primary instruction is within the reach of
everybody; superior instruction is scarcely to be obtained by any. This
is not surprising; it is in fact the necessary consequence of what we
have advanced above. Almost all the Americans are in easy circumstances,
and can therefore obtain the elements of human knowledge.
In America there are comparatively few who are rich enough to live
without a profession. Every profession requires an apprenticeship, which
limits the time of instruction to the early years of life. At fifteen
they enter upon their calling, and thus their education ends at the age
when ours begins. Whatever is done afterward, is with a view to some
special and lucrative object; a science is taken up as a matter of
business, and the only branch of it which is attended to is such as
admits of an immediate practical application.
[This paragraph does not fairly render the meaning of the author. The
original French is as follows:--
"En Amerique il y a peu de riches; presque tous les Americains ont donc
besoin d'exercer une profession. Or, toute profession exige an
apprentissage. Les Americains ne peuvent donc donner a la culture
generale de l'intelligence que les premieres annees de la vie: a quinze
ans ils entrent dans une carriere: ainsi leur education finit le plus
souvent a l'epoque ou la notre commence."
What is meant by the remark; that "at fifteen they enter upon a career,
and thus their education is very often finished at the epoch when ours
commences," is not clearly perceived. Our professional men enter upon
their course of preparation for their respective professions, wholly
between eighteen and twenty-one years of age. Apprentices to trades are
bound out, ordinarily, at fourteen, but what general education they
receive is after that period. Previously, they have acquired the mere
elements of reading, writing, and arithmetic. But it is supposed there
is nothing peculiar to America, in the age at which apprenticeship
commences. In England, they commence at the same age, and it is believed
that the same thing occurs throughout Europe. It is feared that the
author has not here expressed himself with his usual clearness and
precision.--_American Editor_.]
In America most of the rich men were formerly poor; most of those who
now enjoy leisure were absorbed in business during their youth; the
consequence of which is, that when they might have had a taste for study
they had no time for it, and when the time is at their disposal they
have no longer the inclination.
There is no class, then, in America in which the taste for intellectual
pleasures is transmitted with hereditary fortune and leisure, and by
which the labors of the intellect are held in honor. Accordingly there
is an equal want of the desire and the power of application to these
objects.
A middling standard is fixed in America for human knowledge. All
approach as near to it as they can; some as they rise, others as they
descend. Of course, an immense multitude of persons are to be found who
entertain the same number of ideas on religion, history, science,
political economy, legislation, and government. The gifts of intellect
proceed directly from God, and man cannot prevent their unequal
distribution. But in consequence of the state of things which we have
here represented, it happens, that although the capacities of men are
widely different, as the Creator has doubtless intended they should be,
they are submitted to the same method of treatment.
In America the aristocratic element has always been feeble from its
birth; and if at the present day it is not actually destroyed, it is at
any rate so completely disabled that we can scarcely assign to it any
degree of influence in the course of affairs.
The democratic principle, on the contrary, has gained so much strength
by time, by events, and by legislation, as to have become not only
predominant but all-powerful. There is no family or corporate authority,
and it is rare to find even the influence of individual character enjoy
any durability.
America, then, exhibits in her social state a most extraordinary
phenomenon. Men are there seen on a greater equality in point of fortune
and intellect, or in other words, more equal in their strength, than in
any other country of the world, or, in any age of which history has
preserved the remembrance.
* * * * *
POLITICAL CONSEQUENCES OF THE SOCIAL CONDITION OF THE ANGLO-AMERICANS.
The political consequences of such a social condition as this are easily
deducible.
It is impossible to believe that equality will not eventually find its
way into the political world as it does everywhere else. To conceive of
men remaining for ever unequal upon one single point, yet equal on all
others, is impossible; they must come in the end to be equal upon all.
Now I know of only two methods of establishing equality in the political
world: every citizen must be put in possession of his rights, or rights
must be granted to no one. For nations which have arrived at the same
stage of social existence as the Anglo-Americans, it is therefore very
difficult to discover a medium between the sovereignty of all and the
absolute power of one man: and it would be vain to deny that the social
condition which I have been describing is equally liable to each of
these consequences.
There is, in fact, a manly and lawful passion for equality, which
excites men to wish all to be powerful and honored. This passion tends
to elevate the humble to the rank of the great; but there exists also in
the human heart a depraved taste for equality, which impels the weak to
attempt to lower the powerful to their own level, and reduces men to
prefer equality in slavery to inequality with freedom. Not that those
nations whose social condition is democratic naturally despise liberty;
on the contrary, they have an instinctive love of it. But liberty is not
the chief and constant object of their desires; equality is their idol:
they make rapid and sudden efforts to obtain liberty, and if they miss
their aim, resign themselves to their disappointment; but nothing can
satisfy them except equality, and rather than lose it they resolve to
perish.
On the other hand, in a state where the citizens are nearly on an
equality, it becomes difficult for them to preserve their independence
against the aggression of power. No one among them being strong enough
to engage singly in the struggle with advantage, nothing but a general
combination can protect their liberty: and such a union is not always to
be found.
From the same social position, then, nations may derive one or the other
of two great political results; these results are extremely different
from each other, but they may both proceed from the same cause.
The Anglo-Americans are the first who, having been exposed to this
formidable alternative, have been happy enough to escape the dominion of
absolute power. They have been allowed by their circumstances, their
origin, their intelligence, and especially by their moral feeling, to
establish and maintain the sovereignty of the people.
* * * * *
Notes:
[57] I understand by the law of descent all those laws whose principal
object it is to regulate the distribution of property after the death of
its owner. The law of entail is of this number: it certainly prevents
the owner from disposing of his possessions before his death; but this
is solely with a view of preserving them entire for the heir. The
principal object, therefore, of the law of entail is to regulate the
descent of property after the death of its owner: its other provisions
are merely means to this end.
[58] I do not mean to say that the small proprietor cultivates his land
better, but he cultivates it with more ardor and care; so that he makes
up by his labor for his want of skill.
[59] Land being the most stable kind of property, we find, from time to
time, rich individuals who are disposed to make great sacrifices in
order to obtain it, and who willingly forfeit a considerable part of
their income to make sure of the rest. But these are accidental cases.
The preference for landed property is no longer found habitually in any
class but among the poor. The small land-owner, who has less
information, less imagination, and fewer passions, than the great one,
is generally occupied with the desire of increasing his estate; and it
often happens that by inheritance, by marriage, or by the chances of
trade, he is gradually furnished with the means. Thus, to balance the
tendency which leads men to divide their estates, there exists another,
which incites them to add to them. This tendency, which is sufficient to
prevent estates from being divided _ad infinitum_, is not strong enough
to create great territorial possessions, certainly not to keep them up
in the same family.
[60] See Appendix G.
CHAPTER IV.
THE PRINCIPLE OF THE SOVEREIGNTY OF THE PEOPLE IN AMERICA.
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.
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 recognised, 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 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 recognised
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 the
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 the 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 limit the exercise of social authority within 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 dependant 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, 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 scarcely 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
became 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 interest; 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,[61] 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 farther electoral rights are extended, the more is felt 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 met with who
would venture to conceive, or, still more, 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.[62]
* * * * *
Notes:
[61] See the amendments made to the constitution of Maryland in 1801 and
1809.
[62] See Appendix H.
CHAPTER V.
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 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 these 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 clew 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 foci of action, which may not inaptly be
compared to the different nervous centres which convey motion to the
human body. The township is in the lowest 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.[63]
Why the Author begins the Examination of the Political Institutions with
the Township.--Its Existence in all Nations.--Difficulty of Establishing
and Preserving Independence.--Its Importance.--Why the Author has
selected the Township System of New England as the main Object of his
Inquiry.
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 eludes the exertions of man; 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.
Municipal institutions 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 organisations of the counties and townships of the United
States rest, 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
farther 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;[64] so that, on the one hand, the interests of the
inhabitants are not likely to conflict, and, on the other, men capable
of conducting its affairs are always to be found among its citizens.
* * * * *
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 exigences 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 township, 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 anything that exceeds the simple and
ordinary executive business of the state.[65]
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 farther on; but the large proportion of
administrative power is vested in the hands of a small number of
individuals called "the selectmen."[66]
The general laws of the state impose a certain number of obligations on
the selectmen, which may they fulfil without the authorization of the
body they govern, 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 the 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 recognised 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 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.
The selectmen alone have the right of calling a town-meeting; but they
may be requested to do so: if the 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.[67]
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 municipal
magistrates, who are intrusted 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 farther subdivided; and among 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.[68]
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,[69] 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[70] of his council.[71] 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.[72]
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.
* * * * *
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.[73] 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.[74] Lastly, these municipal magistrates provide of their own
accord and without any delegated powers, for those unforeseen
emergencies which frequently occur in society.[75]
It results, from what we have said, that in the state of Massachusetts
the administrative authority is almost entirely restricted to the
township,[76] 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,[77] but in general the
authorities of the county have no right to interfere with the
authorities of the township,[78] 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.[79] 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 counter-balance 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
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[80] appoints a certain number of justices of the peace in
every county, whose functions last seven years.[81] 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;[82]
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[83] of public officers.[84] 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.[85]
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,[86] 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.[87] 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.[88] 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;[89] 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.[90]
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,[91] 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.[92] There are certain great
offences which are officially prosecuted by the state;[93] 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,[94] 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;[95] 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 promised 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.[96]
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[97] 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.[98] 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,[99] 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.[100] At other times they constitute a court
of appeal for the decision of affairs.[101] 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.[102] The same tendency is faintly
observable in some other states;[103] but in general the prominent
feature of the administration in the United States is its excessive
local independence.
* * * * *
OF THE STATE.
I have described the townships and the administration: it now remains
for me to speak of the state and 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.[104] 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 afterward to pass judgment upon what I now
describe.
* * * * *
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;[105] 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.[106] 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.
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, while 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.
* * * * *
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
suspensive veto, 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.[107] 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 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 revoke.[108]
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
on the majority who returned him.
* * * * *
POLITICAL EFFECTS OF THE SYSTEM OF LOCAL ADMINISTRATION IN THE UNITED
STATES.
Necessary Distinction between the general Centralisation of Government
and the Centralisation of the local Administration.--Local
Administration not centralized in the United States; great general
Centralisation of the Government.--Some bad Consequences resulting to
the United States from the local Administration.--Administrative
Advantages attending the 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.
Centralisation is become a word of general and daily use, without any
precise meaning being attached to it. Nevertheless, there exist two
distinct kinds of centralisation, 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 in
the same persons, it constitutes a central government. The power of
directing partial or local interests, when brought together, in like
manner constitutes what may be termed a central administration.
Upon some points these two kinds of centralisation 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 centralisation. 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 the union of power subdue them by force, but
it affects them in the ordinary habits of life, and influences each
individual, first separately, and then collectively.
These two kinds of centralisation 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 being 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 centralisation 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
centralisation 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
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