Democracy In America, Volume 1
by
Alexis de Toqueville
Part 2 out of 11
Nor did they cross the Atlantic to improve their situation or to
increase their wealth; the call which summoned them from the
comforts of their homes was purely intellectual; and in facing
the inevitable sufferings of exile their object was the triumph
of an idea.
The emigrants, or, as they deservedly styled themselves, the
Pilgrims, belonged to that English sect the austerity of whose
principles had acquired for them the name of Puritans.
Puritanism was not merely a religious doctrine, but it
corresponded in many points with the most absolute democratic and
republican theories. It was this tendency which had aroused its
most dangerous adversaries. Persecuted by the Government of the
mother-country, and disgusted by the habits of a society opposed
to the rigor of their own principles, the Puritans went forth to
seek some rude and unfrequented part of the world, where they
could live according to their own opinions, and worship God in
freedom.
A few quotations will throw more light upon the spirit of
these pious adventures than all we can say of them. Nathaniel
Morton, *f the historian of the first years of the settlement,
thus opens his subject:
[Footnote f: "New England's Memorial," p. 13; Boston, 1826. See
also "Hutchinson's History," vol. ii. p. 440.]
"Gentle Reader, - I have for some length of time looked upon
it as a duty incumbent, especially on the immediate successors of
those that have had so large experience of those many memorable
and signal demonstrations of God's goodness, viz., the first
beginners of this Plantation in New England, to commit to writing
his gracious dispensations on that behalf; having so many
inducements thereunto, not onely otherwise but so plentifully in
the Sacred Scriptures: that so, what we have seen, and what our
fathers have told us (Psalm lxxviii. 3, 4), we may not hide from
our children, showing to the generations to come the praises of
the Lord; that especially the seed of Abraham his servant, and
the children of Jacob his chosen (Psalm cv. 5, 6), may remember
his marvellous works in the beginning and progress of the
planting of New England, his wonders and the judgments of his
mouth; how that God brought a vine into this wilderness; that he
cast out the heathen, and planted it; that he made room for it
and caused it to take deep root; and it filled the land (Psalm
lxxx. 8, 9). And not onely so, but also that he hath guided his
people by his strength to his holy habitation and planted them in
the mountain of his inheritance in respect of precious Gospel
enjoyments: and that as especially God may have the glory of all
unto whom it is most due; so also some rays of glory may reach
the names of those blessed Saints that were the main instruments
and the beginning of this happy enterprise."
It is impossible to read this opening paragraph without an
involuntary feeling of religious awe; it breathes the very savor
of Gospel antiquity. The sincerity of the author heightens his
power of language. The band which to his eyes was a mere party
of adventurers gone forth to seek their fortune beyond seas
appears to the reader as the germ of a great nation wafted by
Providence to a predestined shore.
The author thus continues his narrative of the departure of
the first pilgrims: -
"So they left that goodly and pleasant city of Leyden, *g
which had been their resting-place for above eleven years; but
they knew that they were pilgrims and strangers here below, and
looked not much on these things, but lifted up their eyes to
Heaven, their dearest country, where God hath prepared for them a
city (Heb. xi. 16), and therein quieted their spirits. When they
came to Delfs- Haven they found the ship and all things ready;
and such of their friends as could not come with them followed
after them, and sundry came from Amsterdam to see them shipt, and
to take their leaves of them. One night was spent with little
sleep with the most, but with friendly entertainment and
Christian discourse, and other real expressions of true Christian
love. The next day they went on board, and their friends with
them, where truly doleful was the sight of that sad and mournful
parting, to hear what sighs and sobs and prayers did sound
amongst them; what tears did gush from every eye, and pithy
speeches pierced each other's heart, that sundry of the Dutch
strangers that stood on the Key as spectators could not refrain
from tears. But the tide (which stays for no man) calling them
away, that were thus loth to depart, their Reverend Pastor
falling down on his knees, and they all with him, with watery
cheeks commended them with most fervent prayers unto the Lord and
his blessing; and then, with mutual embraces and many tears they
took their leaves one of another, which proved to be the last
leave to many of them."
[Footnote g: The emigrants were, for the most part, godly
Christians from the North of England, who had quitted their
native country because they were "studious of reformation, and
entered into covenant to walk with one another according to the
primitive pattern of the Word of God." They emigrated to Holland,
and settled in the city of Leyden in 1610, where they abode,
being lovingly respected by the Dutch, for many years: they left
it in 1620 for several reasons, the last of which was, that their
posterity would in a few generations become Dutch, and so lose
their interest in the English nation; they being desirous rather
to enlarge His Majesty's dominions, and to live under their
natural prince. - Translator's Note.]
The emigrants were about 150 in number, including the women
and the children. Their object was to plant a colony on the
shores of the Hudson; but after having been driven about for some
time in the Atlantic Ocean, they were forced to land on that arid
coast of New England which is now the site of the town of
Plymouth. The rock is still shown on which the pilgrims
disembarked. *h
[Footnote h: 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 how
entirely 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?]
"But before we pass on," continues our historian, "let the
reader with me make a pause and seriously consider this poor
people's present condition, the more to be raised up to
admiration of God's goodness towards them in their preservation:
for being now passed the vast ocean, and a sea of troubles before
them in expectation, they had now no friends to welcome them, no
inns to entertain or refresh them, no houses, or much less towns
to repair unto to seek for succour: and for the season it was
winter, and they that know the winters of the country know them
to be sharp and violent, subject to cruel and fierce storms,
dangerous to travel to known places, much more to search unknown
coasts. Besides, what could they see but a hideous and desolate
wilderness, full of wilde beasts, and wilde men? and what
multitudes of them there were, they then knew not: for which way
soever they turned their eyes (save upward to Heaven) they could
have but little solace or content in respect of any outward
object; for summer being ended, all things stand in appearance
with a weather-beaten face, and the whole country full of woods
and thickets, represented a wild and savage hew; if they looked
behind them, there was the mighty ocean which they had passed,
and was now as a main bar or gulph to separate them from all the
civil parts of the world."
It must not be imagined that the piety of the Puritans was
of a merely speculative kind, or that it took no cognizance of
the course of worldly affairs. Puritanism, as I have already
remarked, was scarcely less a political than a religious
doctrine. No sooner had the emigrants landed on the barren coast
described by Nathaniel Morton than it was their first care to
constitute a society, by passing the following Act:
"In the name of God. Amen. We, whose names are
underwritten, the loyal subjects of our dread Sovereign Lord King
James, etc., etc., Having undertaken for the glory of God, and
advancement of the Christian Faith, and the honour of our King
and country, a voyage to plant the first colony in the northern
parts of Virginia; Do by these presents solemnly and mutually, in
the presence of God and one another, covenant and combine
ourselves together into a civil body politick, for our better
ordering and preservation, and furtherance of the ends aforesaid:
and by virtue hereof do enact, constitute and frame such just and
equal laws, ordinances, acts, constitutions, and officers, from
time to time, as shall be thought most meet and convenient for
the general good of the Colony: unto which we promise all due
submission and obedience," etc. *i
[Footnote i: 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 acceded to by all the interested parties. See "Pitkin's
History," pp. 42 and 47.]
This happened in 1620, and from that time forwards the
emigration went on. The religious and political passions which
ravaged the British Empire during the whole reign of Charles I
drove fresh crowds of sectarians every year to the shores of
America. In England the stronghold of Puritanism was in the
middle classes, and it was from the middle classes that the
majority of the emigrants came. The population of New England
increased rapidly; and whilst the hierarchy of rank despotically
classed the inhabitants of the mother-country, the colony
continued to present the novel spectacle of a community
homogeneous in all its parts. A democracy, more perfect than any
which antiquity had dreamt of, started in full size and panoply
from the midst of an ancient feudal society.
Chapter II: Origin Of The Anglo-Americans - Part II
The English Government was not dissatisfied with an
emigration which removed the elements of fresh discord and of
further revolutions. On the contrary, everything was done to
encourage it, and great exertions were made to mitigate the
hardships of those who sought a shelter from the rigor of their
country's laws on the soil of America. It seemed as if New
England was a region given up to the dreams of fancy and the
unrestrained experiments of innovators.
The English colonies (and this is one of the main causes of
their prosperity) have always enjoyed more internal freedom and
more political independence than the colonies of other nations;
but this principle of liberty was nowhere more extensively
applied than in the States of New England.
It was generally allowed at that period that the territories
of the New World belonged to that European nation which had been
the first to discover them. Nearly the whole coast of North
America thus became a British possession towards the end of the
sixteenth century. The means used by the English Government to
people these new domains were of several kinds; the King
sometimes appointed a governor of his own choice, who ruled a
portion of the New World in the name and under the immediate
orders of the Crown; *j this is the colonial system adopted by
other countries of Europe. Sometimes grants of certain tracts
were made by the Crown to an individual or to a company, *k in
which case all the civil and political power fell into the hands
of one or more persons, who, under the inspection and control of
the Crown, sold the lands and governed the inhabitants. Lastly,
a third system consisted in allowing a certain number of
emigrants to constitute a political society under the protection
of the mother-country, and to govern themselves in whatever was
not contrary to her laws. This mode of colonization, so
remarkably favorable to liberty, was only adopted in New England.
*l
[Footnote j: This was the case in the State of New York.]
[Footnote k: Maryland, the Carolinas, Pennsylvania, and New
Jersey were in this situation. See "Pitkin's History," vol. i.
pp. 11-31.]
[Footnote l: 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
Hasard. Philadelphia, 1792," for a great number of documents
relating to the commencement of the colonies, which are valuable
from their contents and their authenticity: amongst 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.]
In 1628 *m a charter of this kind was granted by Charles I
to the emigrants who went to form the colony of Massachusetts.
But, in general, charters were not given to the colonies of New
England till they had acquired a certain existence. Plymouth,
Providence, New Haven, the State of Connecticut, and that of
Rhode Island *n were founded without the co-operation and almost
without the knowledge of the mother-country. The new settlers
did not derive their incorporation from the seat of the empire,
although they did not deny its supremacy; they constituted a
society of their own accord, and it was not till thirty or forty
years afterwards, under Charles II. that their existence was
legally recognized by a royal charter.
[Footnote m: See "Pitkin's History," p, 35. See the "History of
the Colony of Massachusetts Bay," by Hutchinson, vol. i. p. 9.]
[Footnote n: See "Pitkin's History," pp. 42, 47.]
This frequently renders its it difficult to detect the link
which connected the emigrants with the land of their forefathers
in studying the earliest historical and legislative records of
New England. They exercised the rights of sovereignty; they
named their magistrates, concluded peace or declared war, made
police regulations, and enacted laws as if their allegiance was
due only to God. *o Nothing can be more curious and, at the same
time more instructive, than the legislation of that period; it is
there that the solution of the great social problem which the
United States now present to the world is to be found.
[Footnote o: 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.]
Amongst these documents we shall notice, as especially
characteristic, the code of laws promulgated by the little State
of Connecticut in 1650. *p The legislators of Connecticut *q
begin with the penal laws, and, strange to say, they borrow their
provisions from the text of Holy Writ. "Whosoever shall worship
any other God than the Lord," says the preamble of the Code,
"shall surely be put to death." This is followed by ten or twelve
enactments of the same kind, copied verbatim from the books of
Exodus, Leviticus, and Deuteronomy. Blasphemy, sorcery,
adultery, *r and rape were punished with death; an outrage
offered by a son to his parents was to be expiated by the same
penalty. The legislation of a rude and half-civilized people was
thus applied to an enlightened and moral community. The
consequence was that the punishment of death was never more
frequently prescribed by the statute, and never more rarely
enforced towards the guilty.
[Footnote p: Code of 1650, p. 28; Hartford, 1830.]
[Footnote q: 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.]
[Footnote r: 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.]
The chief care of the legislators, in this body of penal
laws, was the maintenance of orderly conduct and good morals in
the community: they constantly invaded the domain of conscience,
and there was scarcely a sin which was not subject to magisterial
censure. The reader is aware of the rigor with which these laws
punished rape and adultery; intercourse between unmarried persons
was likewise severely repressed. The judge was empowered to
inflict a pecuniary penalty, a whipping, or marriage *s on the
misdemeanants; and if the records of the old courts of New Haven
may be believed, prosecutions of this kind were not unfrequent.
We find a sentence bearing date the first of May, 1660,
inflicting a fine and reprimand on a young woman who was accused
of using improper language, and of allowing herself to be kissed.
*t The Code of 1650 abounds in preventive measures. It punishes
idleness and drunkenness with severity. *u Innkeepers are
forbidden to furnish more than a certain quantity of liquor to
each consumer; and simple lying, whenever it may be injurious, *v
is checked by a fine or a flogging. In other places, the
legislator, entirely forgetting the great principles of religious
toleration which he had himself upheld in Europe, renders
attendance on divine service compulsory, *w and goes so far as to
visit with severe punishment, ** and even with death, the
Christians who chose to worship God according to a ritual
differing from his own. *x Sometimes indeed the zeal of his
enactments induces him to descend to the most frivolous
particulars: thus a law is to be found in the same Code which
prohibits the use of tobacco. *y It must not be forgotten that
these fantastical and vexatious laws were not imposed by
authority, but that they were freely voted by all the persons
interested, and that the manners of the community were even more
austere and more puritanical than the laws. In 1649 a solemn
association was formed in Boston to check the worldly luxury of
long hair. *z
[Footnote s: Code of 1650, p. 48. It seems sometimes to have
happened that the judges superadded these punishments to each
other, as is seen in a sentence pronounced in 1643 (p. 114, "New
Haven Antiquities"), by which Margaret Bedford, convicted of
loose conduct, was condemned to be whipped, and afterwards to
marry Nicholas Jemmings, her accomplice.]
[Footnote t: "New Haven Antiquities," p. 104. See also
"Hutchinson's History," for several causes equally
extraordinary.]
[Footnote u: Code of 1650, pp. 50, 57.]
[Footnote v: Ibid., p. 64.]
[Footnote w: Ibid., p. 44.]
[Footnote *: This was not peculiar to Connecticut. See, for
instance, the law which, on September 13, 1644, banished the
Anabaptists from the State of Massachusetts. ("Historical
Collection of State Papers," vol. i. p. 538.) See also the law
against the Quakers, passed on October 14, 1656: "Whereas," says
the preamble, "an accursed race of heretics called Quakers has
sprung up," etc. 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.]
[Footnote x: 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.]
[Footnote y: Code of 1650, p. 96.]
[Footnote z: "New England's Memorial," p. 316. See Appendix, E.]
These errors are no doubt discreditable to human reason;
they attest the inferiority of our nature, which is incapable of
laying firm hold upon what is true and just, and is often reduced
to the alternative of two excesses. In strict connection with
this penal legislation, which bears such striking marks of a
narrow sectarian spirit, and of those religious passions which
had been warmed by persecution and were still fermenting among
the people, a body of political laws is to be found, which,
though written two hundred years ago, is still ahead of the
liberties of our age. The general principles which are the
groundwork of modern constitutions - principles which were
imperfectly known in Europe, and not completely triumphant even
in Great Britain, in the seventeenth century - were all
recognized and determined by the laws of New England: the
intervention of the people in public affairs, the free voting of
taxes, the responsibility of authorities, personal liberty, and
trial by jury, were all positively established without
discussion. From these fruitful principles consequences have
been derived and applications have been made such as no nation in
Europe has yet ventured to attempt.
In Connecticut the electoral body consisted, from its
origin, of the whole number of citizens; and this is readily to
be understood, *a when we recollect that this people enjoyed an
almost perfect equality of fortune, and a still greater
uniformity of opinions. *b In Connecticut, at this period, all
the executive functionaries were elected, including the Governor
of the State. *c The citizens above the age of sixteen were
obliged to bear arms; they formed a national militia, which
appointed its own officers, and was to hold itself at all times
in readiness to march for the defence of the country. *d
[Footnote a: Constitution of 1638, p. 17.]
[Footnote b: 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.]
[Footnote c: "Pitkin's History," p. 47.]
[Footnote d: Constitution of 1638, p. 12.]
In the laws of Connecticut, as well as in all those of New
England, we find the germ and gradual development of that
township independence which is the life and mainspring of
American liberty at the present day. The political existence of
the majority of the nations of Europe commenced in the superior
ranks of society, and was gradually and imperfectly communicated
to the different members of the social body. In America, on the
other hand, it may be said that the township was organized before
the county, the county before the State, the State before the
Union. In New England townships were completely and definitively
constituted as early as 1650. The independence of the township
was the nucleus round which the local interests, passions,
rights, and duties collected and clung. It gave scope to the
activity of a real political life most thoroughly democratic and
republican. The colonies still recognized the supremacy of the
mother-country; monarchy was still the law of the State; but the
republic was already established in every township. The towns
named their own magistrates of every kind, rated themselves, and
levied their own taxes. *e In the parish 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.
[Footnote e: Code of 1650, p. 80.]
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 towards 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; *f
strict measures were taken for the maintenance of roads, and
surveyors were appointed to attend to them; *g registers were
established in every parish, in which the results of public
deliberations, and the births, deaths, and marriages of the
citizens were entered; *h clerks were directed to keep these
registers; *i 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. *j The law
enters into a thousand useful provisions for a number of social
wants which are at present very inadequately felt in France.
[Footnote f: Ibid., p. 78.]
[Footnote g: Ibid., p. 49.]
[Footnote h: See "Hutchinson's History," vol. i. p. 455.]
[Footnote i: Code of 1650, p. 86.]
[Footnote j: Ibid., p. 40.]
But it is by the attention it pays to Public Education that
the original character of American civilization 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. . . ." *k 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 case 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 man to
civil freedom.
[Footnote k: Ibid., p. 90.]
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 a precedent was produced offhand
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 the following fine definition of
liberty. *l
[Footnote l: 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 forwards he was
always re- elected governor of the State. See Marshal, vol. i.
p. 166.]
"Nor would I have you to mistake in the point of your own
liberty. There is a liberty of a corrupt nature which is effected
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': 'tis 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 civilization 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 been 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 acquirement of wealth, moral enjoyment,
and the comforts as well as liberties of the world, is 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 an 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 beside 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 and the surest
pledge of freedom. *m
[Footnote m: See Appendix, F.]
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 they were not in a situation to
found a state of things solely dependent on themselves: no man
can entirely shake off the influence of the past, and the
settlers, intentionally or involuntarily, mingled habits and
notions 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 to distinguish what
is of Puritanical and 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 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 and 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. *n 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, *o
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 premeditation. 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.
[Footnote n: Crimes no doubt exist for which bail is
inadmissible, but they are few in number.]
[Footnote o: See Blackstone; and Delolme, book I chap. x.]
Chapter III: Social Conditions Of The Anglo-Americans
Chapter Summary
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 In 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 germ 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
transmission from father to son.
This was the state of things to the east of the Hudson: to
the south-west of that river, and in the direction of the
Floridas, the case was different. In most of the States situated
to the south- west 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 south-west
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. *a 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,
whilst 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
unborn.
[Footnote a: I understand by the law of descent all those laws
whose principal object 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 the
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.]
Through their means man acquires a kind of preternatural
power over the future lot of his fellow-creatures. When the
legislator has 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, towards 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 it 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 amongst 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 the family to consist
of two children (and in a country people as France is the average
number is not above three), these children, sharing amongst 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 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 befriends them, may indeed entertain the hope of being as
wealthy as their father, but not that of possessing the same
property as he did; the riches must necessarily be composed of
elements different from his.
Now, from the moment that you divest the landowner 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. *b The
calculations of gain, therefore, which decide the rich man to
sell his domain will still more powerfully influence him against
buying small estates to unite them into a large one.
[Footnote b: 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.]
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 his 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. *c
[Footnote c: 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 landowner, 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.]
Most certainly it is not for us Frenchmen of the nineteenth
century, who daily witness 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. *d The first generation 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 a 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 are 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. [Footnote d: See Appendix, G.]
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 the 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 to be
overcharged, still gives a very imperfect idea of what is taking
place in the new States of the West and South-west. 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 the 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. *e
[Footnote e: This may have been true in 1832, but is not so in
1874, when great cities like Chicago and San Francisco have
sprung up in the Western States. But as yet the Western States
exert no powerful influence on American society. - Translator's
Note.]
It is not only the fortunes of men which are equal in
America; even their requirements partake in some degree of the
same uniformity. I do not believe that 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 first 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 afterwards 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. 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 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 middle 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
forever 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
are 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 aggressions of power. No one among them
being strong enough to engage 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 nations 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.
Chapter IV: The Principle Of The Sovereignty Of The People In
America
Chapter Summary
It predominates over the whole of society in America -
Application made of this principle by the Americans even before
their Revolution - Development given to it by that Revolution -
Gradual and irresistible extension of the elective qualification.
The Principle Of The Sovereignty Of The People In America
Whenever the political laws of the United States are to be
discussed, it is with the doctrine of the sovereignty of the
people that we must begin. The principle of the sovereignty of
the people, which is to be found, more or less, at the bottom of
almost all human institutions, generally remains concealed from
view. It is obeyed without being recognized, or if for a moment
it be brought to light, it is hastily cast back into the gloom of
the sanctuary. "The will of the nation" is one of those
expressions which have been most profusely abused by the wily and
the despotic of every age. To the eyes of some it has been
represented by the venal suffrages of a few of the satellites of
power; to others by the votes of a timid or an interested
minority; and some have even discovered it in the silence of a
people, on the supposition that the fact of submission
established the right of command.
In America the principle of the sovereignty of the people is
not either barren or concealed, as it is with some other nations;
it is recognized by the customs and proclaimed by the laws; it
spreads freely, and arrives without impediment at its most remote
consequences. If there be a country in the world where the
doctrine of the sovereignty of the people can be fairly
appreciated, where it can be studied in its application to the
affairs of society, and where its dangers and its advantages may
be foreseen, that country is assuredly America.
I have already observed that, from their origin, the
sovereignty of the people was the fundamental principle of the
greater number of British colonies in America. It was far,
however, from then exercising as much influence on the government
of society as it now does. Two obstacles, the one external, the
other internal, checked its invasive progress. It could not
ostensibly disclose itself in the laws of colonies which were
still constrained to obey the mother-country: it was therefore
obliged to spread secretly, and to gain ground in the provincial
assemblies, and especially in the townships.
American society was not yet prepared to adopt it with all
its consequences. The intelligence of New England, and the
wealth of the country to the south of the Hudson (as I have shown
in the preceding chapter), long exercised a sort of aristocratic
influence, which tended to retain the exercise of social
authority in the hands of a few. The public functionaries were
not universally elected, and the citizens were not all of them
electors. The electoral franchise was everywhere placed within
certain limits, and made dependent on a certain qualification,
which was exceedingly low in the North and more considerable in
the South.
The American revolution broke out, and the doctrine of the
sovereignty of the people, which had been nurtured in the
townships and municipalities, took possession of the State: every
class was enlisted in its cause; battles were fought, and
victories obtained for it, until it became the law of laws.
A no less rapid change was effected in the interior of
society, where the law of descent completed the abolition of
local influences.
At the very time when this consequence of the laws and of
the revolution was apparent to every eye, victory was irrevocably
pronounced in favor of the democratic cause. All power was, in
fact, in its hands, and resistance was no longer possible. The
higher orders submitted without a murmur and without a struggle
to an evil which was thenceforth inevitable. The ordinary fate
of falling powers awaited them; each of their several members
followed his own interests; and as it was impossible to wring the
power from the hands of a people which they did not detest
sufficiently to brave, their only aim was to secure its good-will
at any price. The most democratic laws were consequently voted
by the very men whose interests they impaired; and thus, although
the higher classes did not excite the passions of the people
against their order, they accelerated the triumph of the new
state of things; so that by a singular change the democratic
impulse was found to be most irresistible in the very States
where the aristocracy had the firmest hold. The State of
Maryland, which had been founded by men of rank, was the first to
proclaim universal suffrage, and to introduce the most democratic
forms into the conduct of its government.
When a nation modifies the elective qualification, it may
easily be foreseen that sooner or later that qualification will
be entirely abolished. There is no more invariable rule in the
history of society: the further electoral rights are extended,
the greater is the need of extending them; for after each
concession the strength of the democracy increases, and its
demands increase with its strength. The ambition of those who
are below the appointed rate is irritated in exact proportion to
the great number of those who are above it. The exception at
last becomes the rule, concession follows concession, and no stop
can be made short of universal suffrage.
At the present day the principle of the sovereignty of the
people has acquired, in the United States, all the practical
development which the imagination can conceive. It is
unencumbered by those fictions which have been thrown over it in
other
countries, and it appears in every possible form according to the
exigency of the occasion. Sometimes the laws are made by the
people in a body, as at Athens; and sometimes its
representatives, chosen by universal suffrage, transact business
in its name, and almost under its immediate control.
In some countries a power exists which, though it is in a
degree foreign to the social body, directs it, and forces it to
pursue a certain track. In others the ruling force is divided,
being partly within and partly without the ranks of the people.
But nothing of the kind is to be seen in the United States; there
society governs itself for itself. All power centres in its
bosom; and scarcely an individual is to be meet with who would
venture to conceive, or, still less, to express, the idea of
seeking it elsewhere. The nation participates in the making of
its laws by the choice of its legislators, and in the execution
of them by the choice of the agents of the executive government;
it may almost be said to govern itself, so feeble and so
restricted is the share left to the administration, so little do
the authorities forget their popular origin and the power from
which they emanate. *a
[Footnote a: See Appendix, H.]
Chapter V: Necessity Of Examining The Condition Of The States -
Part I
Necessity Of Examining The Condition Of The States Before That Of
The Union At Large
It is proposed to examine in the following chapter what is
the form of government established in America on the principle of
the sovereignty of the people; what are its resources, its
hindrances, its advantages, and its dangers. The first
difficulty which presents itself arises from the complex nature
of the constitution of the United States, which consists of two
distinct social structures, connected and, as it were, encased
one within the other; two governments, completely separate and
almost independent, the one fulfilling the ordinary duties and
responding to the daily and indefinite calls of a community, the
other circumscribed within certain limits, and only exercising an
exceptional authority over the general interests of the country.
In short, there are twenty- four small sovereign nations, whose
agglomeration constitutes the body of the Union. To examine the
Union before we have studied the States would be to adopt a
method filled with obstacles. The form of the Federal Government
of the United States was the last which was adopted; and it is in
fact nothing more than a modification or a summary of those
republican principles which were current in the whole community
before it existed, and independently of its existence. Moreover,
the Federal Government is, as I have just observed, the
exception; the Government of the States is the rule. The author
who should attempt to exhibit the picture as a whole before he
had explained its details would necessarily fall into obscurity
and repetition.
The great political principles which govern American society
at this day undoubtedly took their origin and their growth in the
State. It is therefore necessary to become acquainted with the
State in order to possess a clue to the remainder. The States
which at present compose the American Union all present the same
features, as far as regards the external aspect of their
institutions. Their political or administrative existence is
centred in three focuses of action, which may not inaptly be
compared to the different nervous centres which convey motion to
the human body. The township is the lowest in order, then the
county, and lastly the State; and I propose to devote the
following chapter to the examination of these three divisions.
The American System Of Townships And Municipal Bodies
Why the Author begins the examination of the political
institutions with the township - Its existence in all nations -
Difficulty of establishing and preserving municipal independence
- Its importance - Why the Author has selected the township
system of New England as the main topic of his discussion.
It is not undesignedly that I begin this subject with the
Township. The village or township is the only association which
is so perfectly natural that wherever a number of men are
collected it seems to constitute itself.
The town, or tithing, as the smallest division of a
community, must necessarily exist in all nations, whatever their
laws and customs may be: if man makes monarchies and establishes
republics, the first association of mankind seems constituted by
the hand of God. But although the existence of the township is
coeval with that of man, its liberties are not the less rarely
respected and easily destroyed. A nation is always able to
establish great political assemblies, because it habitually
contains a certain number of individuals fitted by their talents,
if not by their habits, for the direction of affairs. The
township is, on the contrary, composed of coarser materials,
which are less easily fashioned by the legislator. The
difficulties which attend the consolidation of its independence
rather augment than diminish with the increasing enlightenment of
the people. A highly civilized community spurns the attempts of
a local independence, is disgusted at its numerous blunders, and
is apt to despair of success before the experiment is completed.
Again, no immunities are so ill protected from the encroachments
of the supreme power as those of municipal bodies in general:
they are unable to struggle, single- handed, against a strong or
an enterprising government, and they cannot defend their cause
with success unless it be identified with the customs of the
nation and supported by public opinion. Thus until the
independence of townships is amalgamated with the manners of a
people it is easily destroyed, and it is only after a long
existence in the laws that it can be thus amalgamated. Municipal
freedom is not the fruit of human device; it is rarely created;
but it is, as it were, secretly and spontaneously engendered in
the midst of a semi-barbarous state of society. The constant
action of the laws and the national habits, peculiar
circumstances, and above all time, may consolidate it; but there
is certainly no nation on the continent of Europe which has
experienced its advantages. Nevertheless local assemblies of
citizens constitute the strength of free nations. Town-meetings
are to liberty what primary schools are to science; they bring it
within the people's reach, they teach men how to use and how to
enjoy it. A nation may establish a system of free government,
but without the spirit of municipal institutions it cannot have
the spirit of liberty. The transient passions and the interests
of an hour, or the chance of circumstances, may have created the
external forms of independence; but the despotic tendency which
has been repelled will, sooner or later, inevitably reappear on
the surface.
In order to explain to the reader the general principles on
which the political organization of the counties and townships of
the United States rests, I have thought it expedient to choose
one of the States of New England as an example, to examine the
mechanism of its constitution, and then to cast a general glance
over the country. The township and the county are not organized
in the same manner in every part of the Union; it is, however,
easy to perceive that the same principles have guided the
formation of both of them throughout the Union. I am inclined to
believe that these principles have been carried further in New
England than elsewhere, and consequently that they offer greater
facilities to the observations of a stranger. The institutions
of New England form a complete and regular whole; they have
received the sanction of time, they have the support of the laws,
and the still stronger support of the manners of the community,
over which they exercise the most prodigious influence; they
consequently deserve our attention on every account.
Limits Of The Township
The township of New England is a division which stands
between the commune and the canton of France, and which
corresponds in general to the English tithing, or town. Its
average population is from two to three thousand; *a so that, on
the one hand, the interests of its inhabitants are not likely to
conflict, and, on the other, men capable of conducting its
affairs are always to be found among its citizens.
[Footnote a: In 1830 there were 305 townships in the State of
Massachusetts, and 610,014 inhabitants, which gives an average of
about 2,000 inhabitants to each township.]
Authorities Of The Township In New England
The people the source of all power here as elsewhere - Manages
its own affairs - No corporation - The greater part of the
authority vested in the hands of the Selectmen - How the
Selectmen act - Town-meeting - Enumeration of the public officers
of the township - Obligatory and remunerated functions.
In the township, as well as everywhere else, the people is
the only source of power; but in no stage of government does the
body of citizens exercise a more immediate influence. In America
the people is a master whose exigencies demand obedience to the
utmost limits of possibility.
In New England the majority acts by representatives in the
conduct of the public business of the State; but if such an
arrangement be necessary in general affairs, in the townships,
where the legislative and administrative action of the government
is in more immediate contact with the subject, the system of
representation is not adopted. There is no corporation; but the
body of electors, after having designated its magistrates,
directs them in everything that exceeds the simple and ordinary
executive business of the State. *b
[Footnote b: The same rules are not applicable to the great
towns, which generally have a mayor, and a corporation divided
into two bodies; this, however, is an exception which requires
the sanction of a law. - See the Act of February 22, 1822, for
appointing the authorities of the city of Boston. It frequently
happens that small towns as well as cities are subject to a
peculiar administration. In 1832, 104 townships in the State of
New York were governed in this manner. - Williams' Register.]
This state of things is so contrary to our ideas, and so
different from our customs, that it is necessary for me to adduce
some examples to explain it thoroughly.
The public duties in the township are extremely numerous and
minutely divided, as we shall see further on; but the larger
proportion of administrative power is vested in the hands of a
small number of individuals, called "the Selectmen." *c The
general laws of the State impose a certain number of obligations
on the selectmen, which they may fulfil without the authorization
of the body they represent, but which they can only neglect on
their own responsibility. The law of the State obliges them, for
instance, to draw up the list of electors in their townships; and
if they omit this part of their functions, they are guilty of a
misdemeanor. In all the affairs, however, which are determined
by the town-meeting, the selectmen are the organs of the popular
mandate, as in France the Maire executes the decree of the
municipal council. They usually act upon their own
responsibility, and merely put in practice principles which have
been previously recognized by the majority. But if any change is
to be introduced in the existing state of things, or if they wish
to undertake any new enterprise, they are obliged to refer to the
source of their power. If, for instance, a school is to be
established, the selectmen convoke the whole body of the electors
on a certain day at an appointed place; they explain the urgency
of the case; they give their opinion on the means of satisfying
it, on the probable expense, and the site which seems to be most
favorable. The meeting is consulted on these several points; it
adopts the principle, marks out the site, votes the rate, and
confides the execution of its resolution to the selectmen.
[Footnote c: Three selectmen are appointed in the small
townships, and nine in the large ones. See "The Town-Officer,"
p. 186. See also the principal laws of the State of
Massachusetts relative to the selectmen:
Act of February 20, 1786, vol. i. p. 219; February 24, 1796,
vol. i. p. 488; March 7, 1801, vol. ii. p. 45; June 16, 1795,
vol. i. p. 475; March 12, 1808, vol. ii. p. 186; February 28,
1787, vol. i. p. 302; June 22, 1797, vol. i. p. 539.]
The selectmen have alone the right of calling a
town-meeting, but they may be requested to do so: if ten citizens
are desirous of submitting a new project to the assent of the
township, they may demand a general convocation of the
inhabitants; the selectmen are obliged to comply, but they have
only the right of presiding at the meeting. *d
[Footnote d: See Laws of Massachusetts, vol. i. p. 150, Act of
March 25, 1786.]
The selectmen are elected every year in the month of April
or of May. The town-meeting chooses at the same time a number of
other municipal magistrates, who are entrusted with important
administrative functions. The assessors rate the township; the
collectors receive the rate. A constable is appointed to keep
the peace, to watch the streets, and to forward the execution of
the laws; the town-clerk records all the town votes, orders,
grants, births, deaths, and marriages; the treasurer keeps the
funds; the overseer of the poor performs the difficult task of
superintending the action of the poor-laws; committee-men are
appointed to attend to the schools and to public instruction; and
the road-surveyors, who take care of the greater and lesser
thoroughfares of the township, complete the list of the principal
functionaries. They are, however, still further subdivided; and
amongst the municipal officers are to be found parish
commissioners, who audit the expenses of public worship;
different classes of inspectors, some of whom are to direct the
citizens in case of fire; tithing-men, listers, haywards,
chimney-viewers, fence-viewers to maintain the bounds of
property, timber-measurers, and sealers of weights and measures.
*e
[Footnote e: All these magistrates actually exist; their
different functions are all detailed in a book called "The
Town-Officer," by Isaac Goodwin, Worcester, 1827; and in the
"Collection of the General Laws of Massachusetts," 3 vols.,
Boston, 1823.]
There are nineteen principal officers in a township. Every
inhabitant is constrained, on the pain of being fined, to
undertake these different functions; which, however, are almost
all paid, in order that the poorer citizens may be able to give
up their time without loss. In general the American system is
not to grant a fixed salary to its functionaries. Every service
has its price, and they are remunerated in proportion to what
they have done.
Existence Of The Township
Every one the best judge of his own interest - Corollary of the
principle of the sovereignty of the people - Application of those
doctrines in the townships of America - The township of New
England is sovereign in all that concerns itself alone: subject
to the State in all other matters - Bond of the township and the
State - In France the Government lends its agent to the Commune -
In America the reverse occurs.
I have already observed that the principle of the
sovereignty of the people governs the whole political system of
the Anglo- Americans. Every page of this book will afford new
instances of the same doctrine. In the nations by which the
sovereignty of the people is recognized every individual
possesses an equal share of power, and participates alike in the
government of the State. Every individual is, therefore,
supposed to be as well informed, as virtuous, and as strong as
any of his fellow-citizens. He obeys the government, not because
he is inferior to the authorities which conduct it, or that he is
less capable than his neighbor of governing himself, but because
he acknowledges the utility of an association with his
fellow-men, and because he knows that no such association can
exist without a regulating force. If he be a subject in all that
concerns the mutual relations of citizens, he is free and
responsible to God alone for all that concerns himself. Hence
arises the maxim that every one is the best and the sole judge of
his own private interest, and that society has no right to
control a man's actions, unless they are prejudicial to the
common weal, or unless the common weal demands his co-operation.
This doctrine is universally admitted in the United States. I
shall hereafter examine the general influence which it exercises
on the ordinary actions of life; I am now speaking of the nature
of municipal bodies.
The township, taken as a whole, and in relation to the
government of the country, may be looked upon as an individual to
whom the theory I have just alluded to is applied. Municipal
independence is therefore a natural consequence of the principle
of the sovereignty of the people in the United States: all the
American republics recognize it more or less; but circumstances
have peculiarly favored its growth in New England.
In this part of the Union the impulsion of political
activity was given in the townships; and it may almost be said
that each of them originally formed an independent nation. When
the Kings of England asserted their supremacy, they were
contented to assume the central power of the State. The
townships of New England remained as they were before; and
although they are now subject to the State, they were at first
scarcely dependent upon it. It is important to remember that
they have not been invested with privileges, but that they have,
on the contrary, forfeited a portion of their independence to the
State. The townships are only subordinate to the State in those
interests which I shall term social, as they are common to all
the citizens. They are independent in all that concerns
themselves; and amongst the inhabitants of New England I believe
that not a man is to be found who would acknowledge that the
State has any right to interfere in their local interests. The
towns of New England buy and sell, sue or are sued, augment or
diminish their rates, without the slightest opposition on the
part of the administrative authority of the State.
They are bound, however, to comply with the demands of the
community. If the State is in need of money, a town can neither
give nor withhold the supplies. If the State projects a road,
the township cannot refuse to let it cross its territory; if a
police regulation is made by the State, it must be enforced by
the town. A uniform system of instruction is organized all over
the country, and every town is bound to establish the schools
which the law ordains. In speaking of the administration of the
United States I shall have occasion to point out the means by
which the townships are compelled to obey in these different
cases: I here merely show the existence of the obligation. Strict
as this obligation is, the government of the State imposes it in
principle only, and in its performance the township resumes all
its independent rights. Thus, taxes are voted by the State, but
they are levied and collected by the township; the existence of a
school is obligatory, but the township builds, pays, and
superintends it. In France the State- collector receives the
local imposts; in America the town-collector receives the taxes
of the State. Thus the French Government lends its agents to the
commune; in America the township is the agent of the Government.
This fact alone shows the extent of the differences which exist
between the two nations.
Public Spirit Of The Townships Of New England
How the township of New England wins the affections of its
inhabitants -Difficulty of creating local public spirit in Europe
- The rights and duties of the American township favorable to it
- Characteristics of home in the United States - Manifestations
of public spirit in New England - Its happy effects.
In America, not only do municipal bodies exist, but they are
kept alive and supported by public spirit. The township of New
England possesses two advantages which infallibly secure the
attentive interest of mankind, namely, independence and
authority. Its sphere is indeed small and limited, but within
that sphere its action is unrestrained; and its independence
gives to it a real importance which its extent and population may
not always ensure.
It is to be remembered that the affections of men generally
lie on the side of authority. Patriotism is not durable in a
conquered nation. The New Englander is attached to his township,
not only because he was born in it, but because it constitutes a
social body of which he is a member, and whose government claims
and deserves the exercise of his sagacity. In Europe the absence
of local public spirit is a frequent subject of regret to those
who are in power; everyone agrees that there is no surer
guarantee of order and tranquility, and yet nothing is more
difficult to create. If the municipal bodies were made powerful
and independent, the authorities of the nation might be disunited
and the peace of the country endangered. Yet, without power and
independence, a town may contain good subjects, but it can have
no active citizens. Another important fact is that the township
of New England is so constituted as to excite the warmest of
human affections, without arousing the ambitious passions of the
heart of man. The officers of the country are not elected, and
their authority is very limited. Even the State is only a
second-rate community, whose tranquil and obscure administration
offers no inducement sufficient to draw men away from the circle
of their interests into the turmoil of public affairs. The
federal government confers power and honor on the men who conduct
it; but these individuals can never be very numerous. The high
station of the Presidency can only be reached at an advanced
period of life, and the other federal functionaries are generally
men who have been favored by fortune, or distinguished in some
other career. Such cannot be the permanent aim of the ambitious.
But the township serves as a centre for the desire of public
esteem, the want of exciting interests, and the taste for
authority and popularity, in the midst of the ordinary relations
of life; and the passions which commonly embroil society change
their character when they find a vent so near the domestic hearth
and the family circle.
In the American States power has been disseminated with
admirable skill for the purpose of interesting the greatest
possible number of persons in the common weal. Independently of
the electors who are from time to time called into action, the
body politic is divided into innumerable functionaries and
officers, who all, in their several spheres, represent the same
powerful whole in whose name they act. The local administration
thus affords an unfailing source of profit and interest to a vast
number of individuals.
The American system, which divides the local authority among
so many citizens, does not scruple to multiply the functions of
the town officers. For in the United States it is believed, and
with truth, that patriotism is a kind of devotion which is
strengthened by ritual observance. In this manner the activity
of the township is continually perceptible; it is daily
manifested in the fulfilment of a duty or the exercise of a
right, and a constant though gentle motion is thus kept up in
society which animates without disturbing it.
The American attaches himself to his home as the mountaineer
clings to his hills, because the characteristic features of his
country are there more distinctly marked than elsewhere. The
existence of the townships of New England is in general a happy
one. Their government is suited to their tastes, and chosen by
themselves. In the midst of the profound peace and general
comfort which reign in America the commotions of municipal
discord are unfrequent. The conduct of local business is easy.
The political education of the people has long been complete; say
rather that it was complete when the people first set foot upon
the soil. In New England no tradition exists of a distinction of
ranks; no portion of the community is tempted to oppress the
remainder; and the abuses which may injure isolated individuals
are forgotten in the general contentment which prevails. If the
government is defective (and it would no doubt be easy to point
out its deficiencies), the fact that it really emanates from
those it governs, and that it acts, either ill or well, casts the
protecting spell of a parental pride over its faults. No term of
comparison disturbs the satisfaction of the citizen: England
formerly governed the mass of the colonies, but the people was
always sovereign in the township where its rule is not only an
ancient but a primitive state.
The native of New England is attached to his township
because it is independent and free: his co-operation in its
affairs ensures his attachment to its interest; the well-being it
affords him secures his affection; and its welfare is the aim of
his ambition and of his future exertions: he takes a part in
every occurrence in the place; he practises the art of government
in the small sphere within his reach; he accustoms himself to
those forms which can alone ensure the steady progress of
liberty; he imbibes their spirit; he acquires a taste for order,
comprehends the union or the balance of powers, and collects
clear practical notions on the nature of his duties and the
extent of his rights.
The Counties Of New England
The division of the countries in America has considerable
analogy with that of the arrondissements of France. The limits
of the counties are arbitrarily laid down, and the various
districts which they contain have no necessary connection, no
common tradition or natural sympathy; their object is simply to
facilitate the administration of justice.
The extent of the township was too small to contain a system
of judicial institutions; each county has, however, a court of
justice, *f a sheriff to execute its decrees, and a prison for
criminals. There are certain wants which are felt alike by all
the townships of a county; it is therefore natural that they
should be satisfied by a central authority. In the State of
Massachusetts this authority is vested in the hands of several
magistrates, who are appointed by the Governor of the State, with
the advice *g of his council. *h The officers of the county have
only a limited and occasional authority, which is applicable to
certain predetermined cases. The State and the townships possess
all the power requisite to conduct public business. The budget
of the county is drawn up by its officers, and is voted by the
legislature, but there is no assembly which directly or
indirectly represents the county. It has, therefore, properly
speaking, no political existence.
[Footnote f: See the Act of February 14, 1821, Laws of
Massachusetts, vol. i. p. 551.]
[Footnote g: See the Act of February 20, 1819, Laws of
Massachusetts, vol. ii. p. 494.]
[Footnote h: The council of the Governor is an elective body.]
A twofold tendency may be discerned in the American
constitutions, which impels the legislator to centralize the
legislative and to disperse the executive power. The township of
New England has in itself an indestructible element of
independence; and this distinct existence could only be
fictitiously introduced into the county, where its utility has
not been felt. But all the townships united have but one
representation, which is the State, the centre of the national
authority: beyond the action of the township and that of the
nation, nothing can be said to exist but the influence of
individual exertion.
Administration In New England
Administration not perceived in America - Why? - The Europeans
believe that liberty is promoted by depriving the social
authority of some of its rights; the Americans, by dividing its
exercise - Almost all the administration confined to the
township, and divided amongst the town-officers - No trace of an
administrative body to be perceived, either in the township or
above it -The reason of this - How it happens that the
administration of the State is uniform - Who is empowered to
enforce the obedience of the township and the county to the law -
The introduction of judicial power into the administration -
Consequence of the extension of the elective principle to all
functionaries - The Justice of the Peace in New England - By whom
appointed - County officer: ensures the administration of the
townships - Court of Sessions - Its action - Right of inspection
and indictment disseminated like the other administrative
functions - Informers encouraged by the division of fines.
Nothing is more striking to an European traveller in the
United States than the absence of what we term the Government, or
the Administration. Written laws exist in America, and one sees
that they are daily executed; but although everything is in
motion, the hand which gives the impulse to the social machine
can nowhere be discovered. Nevertheless, as all peoples are
obliged to have recourse to certain grammatical forms, which are
the foundation of human language, in order to express their
thoughts; so all communities are obliged to secure their
existence by submitting to a certain dose of authority, without
which they fall a prey to anarchy. This authority may be
distributed in several ways, but it must always exist somewhere.
There are two methods of diminishing the force of authority
in a nation: The first is to weaken the supreme power in its very
principle, by forbidding or preventing society from acting in its
own defence under certain circumstances. To weaken authority in
this manner is what is generally termed in Europe to lay the
foundations of freedom. The second manner of diminishing the
influence of authority does not consist in stripping society of
any of its rights, nor in paralyzing its efforts, but in
distributing the exercise of its privileges in various hands, and
in multiplying functionaries, to each of whom the degree of power
necessary for him to perform his duty is entrusted. There may be
nations whom this distribution of social powers might lead to
anarchy; but in itself it is not anarchical. The action of
authority is indeed thus rendered less irresistible and less
perilous, but it is not totally suppressed.
The revolution of the United States was the result of a
mature and dignified taste for freedom, and not of a vague or
ill-defined craving for independence. It contracted no alliance
with the turbulent passions of anarchy; but its course was
marked, on the contrary, by an attachment to whatever was lawful
and orderly.
It was never assumed in the United States that the citizen
of a free country has a right to do whatever he pleases; on the
contrary, social obligations were there imposed upon him more
various than anywhere else. No idea was ever entertained of
attacking the principles or of contesting the rights of society;
but the exercise of its authority was divided, to the end that
the office might be powerful and the officer insignificant, and
that the community should be at once regulated and free. In no
country in the world does the law hold so absolute a language as
in America, and in no country is the right of applying it vested
in so many hands. The administrative power in the United States
presents nothing either central or hierarchical in its
constitution, which accounts for its passing, unperceived. The
power exists, but its representative is not to be perceived.
We have already seen that the independent townships of New
England protect their own private interests; and the municipal
magistrates are the persons to whom the execution of the laws of
the State is most frequently entrusted. *i Besides the general
laws, the State sometimes passes general police regulations; but
more commonly the townships and town officers, conjointly with
justices of the peace, regulate the minor details of social life,
according to the necessities of the different localities, and
promulgate such enactments as concern the health of the
community, and the peace as well as morality of the citizens. *j
Lastly, these municipal magistrates provide, of their own accord
and without any delegated powers, for those unforeseen
emergencies which frequently occur in society. *k
[Footnote i: See "The Town-Officer," especially at the words
Selectmen, Assessors, Collectors, Schools, Surveyors of Highways.
I take one example in a thousand: the State prohibits travelling
on the Sunday; the tything-men, who are town-officers, are
specially charged to keep watch and to execute the law. See the
Laws of Massachusetts, vol. i. p. 410.
The selectmen draw up the lists of electors for the election
of the Governor, and transmit the result of the ballot to the
Secretary of the State. See Act of February 24, 1796: Id., vol.
i. p. 488.]
[Footnote j: Thus, for instance, the selectmen authorize the
construction of drains, point out the proper sites for slaughter-
houses and other trades which are a nuisance to the neighborhood.
See the Act of June 7, 1785: Id., vol. i. p. 193.]
[Footnote k: The selectmen take measures for the security of the
public in case of contagious diseases, conjointly with the
justices of the peace. See Act of June 22, 1797, vol. i. p.
539.]
It results from what we have said that in the State of
Massachusetts the administrative authority is almost entirely
restricted to the township, *l but that it is distributed among a
great number of individuals. In the French commune there is
properly but one official functionary, namely, the Maire; and in
New England we have seen that there are nineteen. These nineteen
functionaries do not in general depend upon one another. The law
carefully prescribes a circle of action to each of these
magistrates; and within that circle they have an entire right to
perform their functions independently of any other authority.
Above the township scarcely any trace of a series of official
dignitaries is to be found. It sometimes happens that the county
officers alter a decision of the townships or town magistrates,
*m but in general the authorities of the county have no right to
interfere with the authorities of the township, *n except in such
matters as concern the county.
[Footnote l: I say almost, for there are various circumstances in
the annals of a township which are regulated by the justice of
the peace in his individual capacity, or by the justices of the
peace assembled in the chief town of the county; thus licenses
are granted by the justices. See the Act of February 28, 1787,
vol. i. p. 297.]
[Footnote m: Thus licenses are only granted to such persons as
can produce a certificate of good conduct from the selectmen. If
the selectmen refuse to give the certificate, the party may
appeal to the justices assembled in the Court of Sessions, and
they may grant the license. See Act of March 12, 1808, vol. ii.
p. 186.
The townships have the right to make by-laws, and to enforce
them by fines which are fixed by law; but these by-laws must be
approved by the Court of Sessions. See Act of March 23, 1786,
vol. i. p. 254.]
[Footnote n: In Massachusetts the county magistrates are
frequently called upon to investigate the acts of the town
magistrates; but it will be shown further on that this
investigation is a consequence, not of their administrative, but
of their judicial power.]
The magistrates of the township, as well as those of the
county, are bound to communicate their acts to the central
government in a very small number of predetermined cases. *o But
the central government is not represented by an individual whose
business it is to publish police regulations and ordinances
enforcing the execution of the laws; to keep up a regular
communication with the officers of the township and the county;
to inspect their conduct, to direct their actions, or to
reprimand their faults. There is no point which serves as a
centre to the radii of the administration.
[Footnote o: The town committees of schools are obliged to make
an annual report to the Secretary of the State on the condition
of the school. See Act of March 10, 1827, vol. iii. p. 183.]
Chapter V: Necessity Of Examining The Condition Of The States -
Part II
What, then, is the uniform plan on which the government is
conducted, and how is the compliance of the counties and their
magistrates or the townships and their officers enforced? In the
States of New England the legislative authority embraces more
subjects than it does in France; the legislator penetrates to the
very core of the administration; the law descends to the most
minute details; the same enactment prescribes the principle and
the method of its application, and thus imposes a multitude of
strict and rigorously defined obligations on the secondary
functionaries of the State. The consequence of this is that if
all the secondary functionaries of the administration conform to
the law, society in all its branches proceeds with the greatest
uniformity: the difficulty remains of compelling the secondary
functionaries of the administration to conform to the law. It
may be affirmed that, in general, society has only two methods of
enforcing the execution of the laws at its disposal: a
discretionary power may be entrusted to a superior functionary of
directing all the others, and of cashiering them in case of
disobedience; or the courts of justice may be authorized to
inflict judicial penalties on the offender: but these two methods
are not always available.
The right of directing a civil officer presupposes that of
cashiering him if he does not obey orders, and of rewarding him
by promotion if he fulfils his duties with propriety. But an
elected magistrate can neither be cashiered nor promoted. All
elective functions are inalienable until their term is expired.
In fact, the elected magistrate has nothing either to expect or
to fear from his constituents; and when all public offices are
filled by ballot there can be no series of official dignities,
because the double right of commanding and of enforcing obedience
can never be vested in the same individual, and because the power
of issuing an order can never be joined to that of inflicting a
punishment or bestowing a reward.
The communities therefore in which the secondary
functionaries of the government are elected are perforce obliged
to make great use of judicial penalties as a means of
administration. This is not evident at first sight; for those in
power are apt to look upon the institution of elective
functionaries as one concession, and the subjection of the
elected magistrate to the judges of the land as another. They
are equally averse to both these innovations; and as they are
more pressingly solicited to grant the former than the latter,
they accede to the election of the magistrate, and leave him
independent of the judicial power. Nevertheless, the second of
these measures is the only thing that can possibly counterbalance
the first; and it will be found that an elective authority which
is not subject to judicial power will, sooner or later, either
elude all control or be destroyed. The courts of justice are the
only possible medium between the central power and the
administrative bodies; they alone can compel the elected
functionary to obey, without violating the rights of the elector.
The extension of judicial power in the political world ought
therefore to be in the exact ratio of the extension of elective
offices: if these two institutions do not go hand in hand, the
State must fall into anarchy or into subjection.
It has always been remarked that habits of legal business do
not render men apt to the exercise of administrative authority.
The Americans have borrowed from the English, their fathers, the
idea of an institution which is unknown upon the continent of
Europe: I allude to that of the Justices of the Peace. The
Justice of the Peace is a sort of mezzo termine between the
magistrate and the man of the world, between the civil officer
and the judge. A justice of the peace is a well-informed citizen,
though he is not necessarily versed in the knowledge of the laws.
His office simply obliges him to execute the police regulations
of society; a task in which good sense and integrity are of more
avail than legal science. The justice introduces into the
administration a certain taste for established forms and
publicity, which renders him a most unserviceable instrument of
despotism; and, on the other hand, he is not blinded by those
superstitions which render legal officers unfit members of a
government. The Americans have adopted the system of the English
justices of the peace, but they have deprived it of that
aristocratic character which is discernible in the
mother-country. The Governor of Massachusetts *p appoints a
certain number of justices of the peace in every county, whose
functions last seven years. *q He further designates three
individuals from amongst the whole body of justices who form in
each county what is called the Court of Sessions. The justices
take a personal share in public business; they are sometimes
entrusted with administrative functions in conjunction with
elected officers, *r they sometimes constitute a tribunal, before
which the magistrates summarily prosecute a refractory citizen,
or the citizens inform against the abuses of the magistrate. But
it is in the Court of Sessions that they exercise their most
important functions. This court meets twice a year in the county
town; in Massachusetts it is empowered to enforce the obedience
of the greater number *s of public officers. *t It must be
observed, that in the State of Massachusetts the Court of
Sessions is at the same time an administrative body, properly so
called, and a political tribunal. It has been asserted that the
county is a purely administrative division. The Court of
Sessions presides over that small number of affairs which, as
they concern several townships, or all the townships of the
county in common, cannot be entrusted to any one of them in
particular. *u In all that concerns county business the duties of
the Court of Sessions are purely administrative; and if in its
investigations it occasionally borrows the forms of judicial
procedure, it is only with a view to its own information, *v or
as a guarantee to the community over which it presides. But when
the administration of the township is brought before it, it
always acts as a judicial body, and in some few cases as an
official assembly.
[Footnote p: We shall hereafter learn what a Governor is: I shall
content myself with remarking in this place that he represents
the executive power of the whole State.]
[Footnote q: See the Constitution of Massachusetts, chap. II.
sect. 1. Section 9; chap. III. Section 3.]
[Footnote r: Thus, for example, a stranger arrives in a township
from a country where a contagious disease prevails, and he falls
ill. Two justices of the peace can, with the assent of the
selectmen, order the sheriff of the county to remove and take
care of him. - Act of June 22, 1797, vol. i. p. 540.
In general the justices interfere in all the important acts
of the administration, and give them a semi-judicial character.]
[Footnote s: I say the greater number, because certain
administrative misdemeanors are brought before ordinary
tribunals. If, for instance, a township refuses to make the
necessary expenditure for its schools or to name a
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