Part 9 (2/2)
If an accusing magistrate had merely been appointed in the chief town of each county, and if he had been una.s.sisted by agents in the towns.h.i.+ps, he would not have been better acquainted with what was going on in the county than the members of the court of sessions. But to appoint agents in each towns.h.i.+p, would have been to centre in his person the most formidable of powers, that of a judicial administration. Moreover, laws are the children of habit, and nothing of the kind exists in the legislation of England. The Americans have therefore divided the officers of inspection and of prosecution as well as all the other functions of the administration. Grand-jurors are bound by the law to apprize the court to which they belong of all the misdemeanors which may have been committed in their county.[92] There are certain great offences which are officially prosecuted by the state;[93] but more frequently the task of punis.h.i.+ng delinquents devolves upon the fiscal officer, whose province it is to receive the fine; thus the treasurer of the towns.h.i.+p is charged with the prosecution of such administrative offences as fall under his notice. But a more especial appeal is made by American legislation to the private interest of the citizen,[94] and this great principle is constantly to be met with in studying the laws of the United States. American legislators are more apt to give men credit for intelligence than for honesty; and they rely not a little on personal cupidity for the execution of the laws. When an individual is really and sensibly injured by an administrative abuse, it is natural that his personal interest should induce him to prosecute. But if a legal formality be required which, however advantageous to the community, is of small importance to individuals, plaintiffs may be less easily found; and thus, by a tacit agreement, the laws might fall into disuse. Reduced by their system to this extremity, the Americans are obliged to encourage informers by bestowing on them a portion of the penalty in certain cases;[95] and to ensure the execution of the laws by the dangerous expedient of degrading the morals of the people.
The only administrative authority above the county magistrates is, properly speaking, that of the government.
GENERAL REMARKS ON THE ADMINISTRATION OF THE UNITED STATES.
Difference of the States of the Union in their Systems of Administration.--Activity and Perfection of the local Authorities decreases towards the South.--Power of the Magistrates increases; that of the Elector diminishes.--Administration pa.s.ses from the Towns.h.i.+p to the County.--States of New York, Ohio, Pennsylvania.--Principles of Administration applicable to the whole Union.--Election of public Officers, and Inalienability of their Functions.--Absence of Gradation of Ranks.--Introduction of judicial Resources into the Administration.
I have already promised that after having examined the const.i.tution of the towns.h.i.+p and the county of New England in detail, I should take a general view of the remainder of the Union. Towns.h.i.+ps and a local activity exist in every state; but in no part of the confederation is a towns.h.i.+p to be met with precisely similar to those in New England. The more we descend toward the south, the less active does the business of the towns.h.i.+p or parish become; the number of magistrates, of functions, and of rights, decreases; the population exercises a less immediate influence on affairs; town-meetings are less frequent, and the subjects of debates less numerous. The power of the elected magistrate is augmented, and that of the elector diminished, while the public spirit of the local communities is less awakened and less influential.[96]
These differences may be perceived to a certain extent in the state of New York; they are very sensible in Pennsylvania; but they become less striking as we advance to the northwest. The majority of the emigrants who settle in the northwestern states are natives of New England, and they carry the habits of their mother-country with them into that which they adopt. A towns.h.i.+p in Ohio is by no means dissimilar from a towns.h.i.+p in Ma.s.sachusetts.
We have seen that in Ma.s.sachusetts the princ.i.p.al part of the public administration lies in the towns.h.i.+p. It forms the common centre of the interests and affections of the citizens. But this ceases to be the case as we descend to states in which knowledge is less generally diffused, and where the towns.h.i.+p consequently offers fewer guarantees of a wise and active administration. As we leave New England, therefore, we find that the importance of the town is gradually transferred to the county, which becomes the centre of administration, and the intermediate power between the government and the citizen. In Ma.s.sachusetts the business of the town is conducted by the court of sessions, which is composed of a _quorum_ named by the governor and his council; but the county has no representative a.s.sembly, and its expenditure is voted by the national[97] legislature. In the great state of New York, on the contrary, and in those of Ohio and Pennsylvania, the inhabitants of each county choose a certain number of representatives, who const.i.tute the a.s.sembly of the county.[98] The county a.s.sembly has the right of taxing the inhabitants to a certain extent; and in this respect it enjoys the privileges of a real legislative body: at the same time it exercises an executive power in the county, frequently directs the administration of the towns.h.i.+ps, and restricts their authority within much narrower bounds than in Ma.s.sachusetts.
Such are the princ.i.p.al differences which the systems of county and town administration present in the federal states. Were it my intention to examine the provisions of American law minutely, I should have to point out still farther differences in the executive details of the several communities. But what I have already said may suffice to show the general principles on which the administration of the United States rests. These principles are differently applied; their consequences are more or less numerous in various localities; but they are always substantially the same. The laws differ, and their outward features change, but their character does not vary. If the towns.h.i.+p and the county are not everywhere const.i.tuted in the same manner, it is at least true that in the United States the county and the towns.h.i.+p are always based upon the same principle, namely, that every one is the best judge of what concerns himself alone, and the person most able to supply his private wants. The towns.h.i.+p and the county are therefore bound to take care of their special interests: the state governs, but it does not interfere with their administration. Exceptions to this rule may be met with, but not a contrary principle.
The first consequence of this doctrine has been to cause all the magistrates to be chosen either by, or at least from among the citizens.
As the officers are everywhere elected or appointed for a certain period, it has been impossible to establish the rules of a dependent series of authorities; there are almost as many independent functionaries as there are functions, and the executive power is disseminated in a mult.i.tude of hands. Hence arose the indispensable necessity of introducing the control of the courts of justice over the administration, and the system of pecuniary penalties, by which the secondary bodies and their representatives are constrained to obey the laws. The system obtains from one end of the Union to the other. The power of punis.h.i.+ng the misconduct of public officers, or of performing the part of the executive, in urgent cases, has not, however, been bestowed on the same judges in all the states. The Anglo-Americans derived the inst.i.tution of justices of the peace from a common source; but although it exists in all the states, it is not always turned to the same use. The justices of the peace everywhere partic.i.p.ate in the administration of the towns.h.i.+ps and the counties,[99] either as public officers or as the judges of public misdemeanors, but in most of the states the more important cla.s.ses of public offences come under the cognisance of the ordinary tribunals.
The election of public officers, or the inalienability of their functions, the absence of a gradation of powers, and the introduction of a judicial control over the secondary branches of the administration, are the universal characteristics of the American system from Maine to the Floridas. In some states (and that of New York has advanced most in this direction) traces of a centralised administration begin to be discernible. In the state of New York the officers of the central government exercise, in certain cases, a sort of inspection of control over the secondary bodies.[100] At other times they const.i.tute a court of appeal for the decision of affairs.[101] In the state of New York judicial penalties are less used than in other parts as a means of administration; and the right of prosecuting the offences of public officers is vested in fewer hands.[102] The same tendency is faintly observable in some other states;[103] but in general the prominent feature of the administration in the United States is its excessive local independence.
OF THE STATE.
I have described the towns.h.i.+ps and the administration: it now remains for me to speak of the state and government. This is ground I may pa.s.s over rapidly, without fear of being misunderstood; for all I have to say is to be found in written forms of the various const.i.tutions, which are easily to be procured.[104] These const.i.tutions rest upon a simple and rational theory; their forms have been adopted by all const.i.tutional nations, and are become familiar to us.
In this place, therefore, it is only necessary for me to give a short a.n.a.lysis; I shall endeavor afterward to pa.s.s judgment upon what I now describe.
LEGISLATIVE POWER OF THE STATE.
Division of the Legislative Body into two Houses.--Senate.--House of Representatives.--Different functions of these two Bodies.
The legislative power of the state is vested in two a.s.semblies, the first of which generally bears the name of the senate.
The senate is commonly a legislative body; but it sometimes becomes an executive and judicial one. It takes a part in the government in several ways, according to the const.i.tution of the different states;[105] but it is in the nomination of public functionaries that it most commonly a.s.sumes an executive power. It partakes of judicial power in the trial of certain political offences, and sometimes also in the decision of certain civil cases.[106] The number of its members is always small. The other branch of the legislature, which is usually called the house of representatives, has no share whatever in the administration, and only takes a part in the judicial power inasmuch as it impeaches public functionaries before the senate.
The members of the two houses are nearly everywhere subject to the same conditions of election. They are chosen in the same manner, and by the same citizens.
The only difference which exists between them is, that the term for which the senate is chosen, is in general longer than that of the house of representatives. The latter seldom remain in office longer than a year; the former usually sit two or three years.
By granting to the senators the privilege of being chosen for several years, and being renewed seriatim, the law takes care to preserve in the legislative body a nucleus of men already accustomed to public business, and capable of exercising a salutary influence upon the junior members.
The Americans, plainly, did not desire, by this separation of the legislative body into two branches, to make one house hereditary and the other elective; one aristocratic and the other democratic. It was not their object to create in the one a bulwark to power, while the other represented the interests and pa.s.sions of the people. The only advantages which result from the present const.i.tution of the United States, are, the division of the legislative power, and the consequent check upon political a.s.semblies; with the creation of a tribunal of appeal for the revision of the laws.
Time and experience, however, have convinced the Americans that if these are its only advantages, the division of the legislative power is still a principle of the greatest necessity. Pennsylvania was the only one of the United States which at first attempted to establish a single house of a.s.sembly; and Franklin himself was so far carried away by the necessary consequences of the principle of the sovereignty of the people, as to have concurred in the measure; but the Pennsylvanians were soon obliged to change the law, and to create two houses. Thus the principle of the division of the legislative power was finally established, and its necessity may henceforward be regarded as a demonstrated truth.
This theory, which was nearly unknown to the republics of antiquity--which was introduced into the world almost by accident, like so many other great truths--and misunderstood by several modern nations, is at length become an axiom in the political science of the present age.
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