American Institutions and Their Influence. Alexis de Tocqueville
The Americans of New England are unacquainted with the office of public prosecutor in the court of sessions,91 and it may readily be perceived that it could not have been established without difficulty. If an accusing magistrate had merely been appointed in the chief town of each county, and if he had been unassisted by agents in the townships, he would not have been better acquainted with what was going on in the county than the members of the court of sessions. But to appoint agents in each township, would have been to centre in his person the most formidable of powers, that of a judicial administration. Moreover, laws are the children of habit, and nothing of the kind exists in the legislation of England. The Americans have therefore divided the officers of inspection and of prosecution as well as all the other functions of the administration. Grand-jurors are bound by the law to apprize the court to which they belong of all the misdemeanors which may have been committed in their county.92 There are certain great offences which are officially prosecuted by the state;93 but more frequently the task of punishing delinquents devolves upon the fiscal officer, whose province it is to receive the fine; thus the treasurer of the township is charged with the prosecution of such administrative offences as fall under his notice. But a more especial appeal is made by American legislation to the private interest of the citizen,94 and this great principle is constantly to be met with in studying the laws of the United States. American legislators are more apt to give men credit for intelligence than for honesty; and they rely not a little on personal cupidity for the execution of the laws. When an individual is really and sensibly injured by an administrative abuse, it is natural that his personal interest should induce him to prosecute. But if a legal formality be required which, however advantageous to the community, is of small importance to individuals, plaintiffs may be less easily found; and thus, by a tacit agreement, the laws might fall into disuse. Reduced by their system to this extremity, the Americans are obliged to encourage informers by bestowing on them a portion of the penalty in certain cases;95 and to ensure the execution of the laws by the dangerous expedient of degrading the morals of the people.
The only administrative authority above the county magistrates is, properly speaking, that of the government.
GENERAL REMARKS ON THE ADMINISTRATION OF THE UNITED STATES
Difference of the States of the Union in their Systems of Administration.—Activity and Perfection of the local Authorities decreases towards the South.—Power of the Magistrates increases; that of the Elector diminishes.—Administration passes from the Township to the County.—States of New York, Ohio, Pennsylvania.—Principles of Administration applicable to the whole Union.—Election of public Officers, and Inalienability of their Functions.—Absence of Gradation of Ranks.—Introduction of judicial Resources into the Administration.
I have already promised that after having examined the constitution of the township and the county of New England in detail, I should take a general view of the remainder of the Union. Townships and a local activity exist in every state; but in no part of the confederation is a township to be met with precisely similar to those in New England. The more we descend toward the south, the less active does the business of the township or parish become; the number of magistrates, of functions, and of rights, decreases; the population exercises a less immediate influence on affairs; town-meetings are less frequent, and the subjects of debates less numerous. The power of the elected magistrate is augmented, and that of the elector diminished, while the public spirit of the local communities is less awakened and less influential.96
These differences may be perceived to a certain extent in the state of New York; they are very sensible in Pennsylvania; but they become less striking as we advance to the northwest. The majority of the emigrants who settle in the northwestern states are natives of New England, and they carry the habits of their mother-country with them into that which they adopt. A township in Ohio is by no means dissimilar from a township in Massachusetts.
We have seen that in Massachusetts the principal part of the public administration lies in the township. It forms the common centre of the interests and affections of the citizens. But this ceases to be the case as we descend to states in which knowledge is less generally diffused, and where the township consequently offers fewer guarantees of a wise and active administration. As we leave New England, therefore, we find that the importance of the town is gradually transferred to the county, which becomes the centre of administration, and the intermediate power between the government and the citizen. In Massachusetts the business of the town is conducted by the court of sessions, which is composed of a quorum named by the governor and his council; but the county has no representative assembly, and its expenditure is voted by the national97 legislature. In the great state of New York, on the contrary, and in those of Ohio and Pennsylvania, the inhabitants of each county choose a certain number of representatives, who constitute the assembly of the county.98 The county assembly has the right of taxing the inhabitants to a certain extent; and in this respect it enjoys the privileges of a real legislative body: at the same time it exercises an executive power in the county, frequently directs the administration of the townships, and restricts their authority within much narrower bounds than in Massachusetts.
Such are the principal differences which the systems of county and town administration present in the federal states. Were it my intention to examine the provisions of American law minutely, I should have to point out still farther differences in the executive details of the several communities. But what I have already said may suffice to show the general principles on which the administration of the United States rests. These principles are differently applied; their consequences are more or less numerous in various localities; but they are always substantially the same. The laws differ, and their outward features change, but their character does not vary. If the township and the county are not everywhere constituted in the same manner, it is at least true that in the United States the county and the township are always based upon the same principle, namely, that every one is the best judge of what concerns himself alone, and the person most able to supply his private wants. The township and the county are therefore bound to take care of their special interests: the state governs, but it does not interfere with their administration. Exceptions to this rule may be met with, but not a contrary principle.
The first consequence of this doctrine has been to cause all the magistrates to be chosen either by, or at least from among the citizens. As the officers are everywhere elected or appointed for a certain period, it has been impossible to establish the rules of a dependent series of authorities; there are almost as many independent functionaries as there are functions, and the executive power is disseminated in a multitude of hands. Hence arose the indispensable necessity of introducing the control of the courts of justice over the administration, and the system of pecuniary penalties, by which the secondary bodies and their representatives are constrained to obey the laws. The system obtains from one end of the Union to the other. The power of punishing the misconduct of public officers, or of performing the part of the executive, in urgent cases, has not, however, been bestowed on the same judges in all the states. The Anglo-Americans derived the institution of justices of the peace from a common source; but although it exists in all the states, it is not always turned to the same use. The justices of the peace everywhere participate in the administration of the townships and the counties,99 either as public officers or as the judges of public misdemeanors, but in most of the states the more important classes of public offences come under the cognisance of the ordinary tribunals.
The election of public officers, or the inalienability of their functions, the absence of a gradation of powers, and the introduction of a judicial control over the secondary branches of the administration, are the universal characteristics of the American system from Maine to the Floridas. In some states (and that of New York has advanced most in this direction) traces of a centralised administration begin to be discernible. In the state of New York the officers of the central government exercise, in certain cases, a sort of inspection of control over the secondary bodies.
I say the court of sessions, because in common courts there is a magistrate who exercises some of the functions of a public prosecutor.
The grand-jurors are, for instance, bound to inform the court of the bad state of the roads. Laws of Massachusetts, vol. i., p. 308.
If, for instance, the treasurer of the county holds back his account. Laws of Massachusetts, vol. i., p. 406.
Thus, if a private individual breaks down or is wounded in consequence of the badness of a road, he can sue the township or the county for damages at the sessions. Laws of Massachusetts, vol. i., p. 309.
In cases of invasion or insurrection, if the town officers neglect to furnish the necessary stores and ammunition for the militia, the township may be condemned to a fine of from two to five hundred dollars. It may readily be imagined that in such a case it might happen that no one cared to prosecute: hence the law adds that all the citizens may indict offences of this kind, and that half the fine shall belong to the plaintiff. See the act of 6th March, 1810; vol. ii., p. 236. The same clause is frequently to be met with in the laws of Massachusetts. Not only are private individuals thus incited to prosecute public officers, but the public officers are encouraged in the same manner to bring the disobedience of private individuals to justice. If a citizen refuses to perform the work which has been assigned to him upon a road, the road-surveyor may prosecute him, and he receives half the penalty for himself. See the laws above quoted, vol. i., p. 308.
For details, see Revised Statutes of the state of New York, part I, chap, xi., vol. i., pp. 336-364, entitled, "Of the Powers, Duties, and Privileges of Towns."
See in the digest of the laws of Pennsylvania, the words, ASSESSORS, COLLECTOR, CONSTABLES, OVERSEER OF THE POOR, SUPERVISORS OF HIGHWAYS: and in the acts of a general nature of the state of Ohio, the act of 25th February, 1834, relating to townships, p. 412; beside the peculiar dispositions relating to divers town officers, such as township's clerks, trustees, overseers of the poor, fence-viewers, appraisers of property, township's treasurer, constables, supervisors of highways.
The author means the state legislature. The congress has no control over the expenditure of the counties or of the states.
See the Revised Statutes of the state of New York, part i., chap. xi., vol. i., p. 410.
In the state of New York, each township elects a representative, who has a share in the administration of the county as well as in that of the township.
In some of the southern states the county-courts are charged with all the details of the administration. See the Statutes of the State of Tennessee,