Part 9 (1/2)
There may be nations whom this distribution of social powers might lead to anarchy; but in itself it is not anarchical. The action of authority is indeed thus rendered less irresistible, and less perilous, but it is not totally suppressed.
The revolution of the United States was the result of a mature and deliberate taste for freedom, not of a vague or ill-defined craving for independence. It contracted no alliance with the turbulent pa.s.sions of anarchy; but its course was marked, on the contrary, by an attachment to whatever was lawful and orderly.
It was never a.s.sumed 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 const.i.tution, which accounts for its pa.s.sing unperceived. The power exists, but its representative is not to be discerned.
We have already seen that the independent towns.h.i.+ps of New England protect their own private interests; and the munic.i.p.al magistrates are the persons to whom the execution of the laws of the state is most frequently intrusted.[73] Beside the general laws, the state sometimes pa.s.ses general police regulations; but more commonly the towns.h.i.+ps and town officers, conjointly with the justices of the peace, regulate the minor details of social life, according to the necessities of the different localities, and promulgate such enactments as concern the health of the community, and the peace as well as morality of the citizens.[74] Lastly, these munic.i.p.al magistrates provide of their own accord and without any delegated powers, for those unforeseen emergencies which frequently occur in society.[75]
It results, from what we have said, that in the state of Ma.s.sachusetts the administrative authority is almost entirely restricted to the towns.h.i.+p,[76] but that it is distributed among a great number of individuals. In the French commune there is properly but one official functionary, namely, the maire; and in New England we have seen that there are nineteen. These nineteen functionaries do not in general depend upon one another. The law carefully prescribes a circle of action to each of these magistrates; and within that circle they have an entire right to perform their functions independently of any other authority.
Above the towns.h.i.+p scarcely any trace of a series of official dignities is to be found. It sometimes happens that the county officers alter a decision of the towns.h.i.+ps, or town magistrates,[77] but in general the authorities of the county have no right to interfere with the authorities of the towns.h.i.+p,[78] except in such matters as concern the county.
The magistrates of the towns.h.i.+p, as well as those of the county, are bound to communicate their acts to the central government in a very small number of predetermined cases.[79] But the central government is not represented by an individual whose business it is to publish police regulations and ordinances enforcing the execution of the laws; to keep up a regular communication with the officers of the towns.h.i.+p and the county; to inspect their conduct, to direct their actions, or reprimand their faults. There is no point which serves as a centre to the radii of the administration.
What, then, is the uniform plan on which the government is conducted, and how is the compliance of the counties and their magistrates, or the towns.h.i.+ps 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 mult.i.tude of strict and rigorously defined obligations on the secondary functionaries of the state. The consequence of this is, that if all the secondary functionaries of the administration conform to the law, society in all its branches proceeds with the greatest uniformity; the difficulty remains of compelling the secondary functionaries of the administration to conform to the law. It may be affirmed that, in general, society has only two methods of enforcing the execution of the laws at its disposal; a discretionary power may be intrusted to a superior functionary of directing all the others, and of cas.h.i.+ering them in case of disobedience; or the courts of justice may be authorized to inflict judicial penalties on the offender: but these two methods are not always available.
The right of directing a civil officer pre-supposes that of cas.h.i.+ering 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 cas.h.i.+ered 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 const.i.tuents; 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 inst.i.tution of elective functionaries as one concession, and the subjection of the elective magistrate to the judges of the land as another. They are equally averse to both these innovations; and as they are more pressingly solicited to grant the former than the latter, they accede to the election of the magistrate, and leave him independent of the judicial power. Nevertheless, the second of these measures is the only thing that can possibly counter-balance the first; and it will be found that an elective authority which is not subject to judicial power will, sooner or later, either elude all control or be destroyed. The courts of justice are the only possible medium between the central power and the administrative bodies; they alone can compel the elected functionary to obey, without violating the rights of the elector. The extension of judicial power in the political world ought therefore to be in the exact ratio of the extension of elective offices; if these two inst.i.tutions 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 inst.i.tution which is unknown upon the continent of Europe: I allude to that of justices of the peace.
The justice of the peace is a sort of _mezzo termine_ between the magistrate and the man of the world, between the civil officer and the judge. A justice of the peace is a well-informed citizen, though he is not necessarily versed in the knowledge of the laws. His office simply obliges him to execute the police regulations of society; a task in which good sense and integrity are of more avail than legal science.
The justice introduces into the administration a certain taste for established forms and publicity, which renders him a most unserviceable instrument of despotism; and, on the other hand, he is not blinded by those superst.i.tions which render legal officers unfit members of a government. The Americans have adopted the system of English justices of the peace, but they have deprived it of that aristocratic character which is discernible in the mother-country. The governor of Ma.s.sachusetts[80] appoints a certain number of justices of the peace in every county, whose functions last seven years.[81] He farther designates three individuals from among the whole body of justices, who form in each county what is called the court of sessions. The justices take a personal share in public business; they are sometimes intrusted with administrative functions in conjunction with elected officers;[82]
they sometimes const.i.tute 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 Ma.s.sachusetts it is empowered to enforce the obedience of the greater number[83] of public officers.[84] It must be observed that in the state of Ma.s.sachusetts the court of sessions is at the same time an administrative body, properly so called, and a political tribunal. It has been a.s.serted that the county is a purely administrative division. The court of sessions presides over that small number of affairs which, as they concern several towns.h.i.+ps, or all the towns.h.i.+ps of the county in common, cannot be intrusted to any of them in particular.[85]
In all that concerns county business, the duties of the court of sessions are therefore purely administrative; and if in its investigations it occasionally borrows the forms of judicial procedure, it is only with a view to its own information,[86] or as a guarantee to the community over which it presides. But when the administration of the towns.h.i.+p is brought before it, it almost always acts as a judicial body, and in some few cases as an administrative a.s.sembly.
The first difficulty is to procure the obedience of an authority so entirely independent of the general laws of the state as the towns.h.i.+p is. We have stated that a.s.sessors are annually named by the town meetings, to levy the taxes. If a towns.h.i.+p attempts to evade the payment of the taxes by neglecting to name its a.s.sessors, the court of sessions condemns it to a heavy penalty.[87] The fine is levied on each of the inhabitants; and the sheriff of the county, who is an officer of justice, executes the mandate. Thus it is that in the United States the authority of the government is mysteriously concealed under the forms of a judicial sentence; and the influence is at the same time fortified by that irresistible power with which men have invested the formalities of law.
These proceedings are easy to follow, and to understand. The demands made upon a towns.h.i.+p are in general plain and accurately defined; they consist in a simple fact without any complication, or in a principle without its application in detail.[88] But the difficulty increases when it is not the obedience of the towns.h.i.+p, but that of the town officers, which is to be enforced. All the reprehensible actions of which a public functionary may be guilty are reducible to the following heads:
He may execute the law without energy or zeal;
He may neglect to execute the law;
He may do what the law enjoins him not to do.
The last two violations of duty can alone come under the cognizance of a tribunal; a positive and appreciable fact is the indispensable foundation of an action at law. Thus, if the selectmen omit to fulfil the legal formalities usual to town elections, they may be condemned to pay a fine;[89] but when the public officer performs his duty without ability, and when he obeys the letter of the law without zeal or energy, he is at least beyond the reach of judicial interference. The court of sessions, even when it is invested with its administrative powers, is in this case unable to compel him to a more satisfactory obedience. The fear of removal is the only check to these quasi offences; and as the court of sessions does not originate the town authorities, it cannot remove functionaries whom it does not appoint. Moreover, a perpetual investigation would be necessary to convict the subordinate officer of negligence or lukewarmness; and the court of sessions sits but twice a year, and then only judges such offences as are brought before its notice. The only security for that active and enlightened obedience, which a court of justice cannot impose upon public officers, lies in the possibility of their arbitrary removal. In France this security is sought for in powers exercised by the heads of the administration; in America it is sought for in the principle of election.
Thus, to recapitulate in a few words what I have been showing:--
If a public officer in New England commits a crime in the exercise of his functions, the ordinary courts of justice are always called upon to pa.s.s sentence upon him.
If he commits a fault in his official capacity, a purely administrative tribunal is empowered to punish him; and, if the affair is important or urgent, the judge supplies the omission of the functionary.[90]
Lastly, if the same individual is guilty of one of those intangible offences, of which human justice has no cognizance, he annually appears before a tribunal from which there is no appeal, which can at once reduce him to insignificance, and deprive him of his charge. This system undoubtedly possesses great advantages, but its execution is attended with a practical difficulty which it is important to point out.
I have already observed, that the administrative tribunal, which is called the court of sessions, has no right of inspection over the town officers. It can only interfere when the conduct of a magistrate is specially brought under its notice; and this is the delicate part of the system. The Americans of New England are unacquainted with the office of public prosecutor in the court of sessions,[91] and it may readily be perceived that it could not have been established without difficulty.