American Institutions and Their Influence. Alexis de Tocqueville
into the Administration.—Consequence of the Extension of the elective Principle to all Functionaries.—The Justice of the Peace in New England.—By whom Appointed.—County Officer.—Ensures the Administration of the Townships.—Court of Sessions.—Its Action.—Right of Inspection and Indictment disseminated like the other administrative Functions.—Informers encouraged by the division of Fines.
Nothing is more striking to a European traveller in the United States than the absence of what we term government, or the administration. Written laws exist in America, and one sees that they are daily executed; but although everything is in motion, the hand which gives the impulse to the social machine can nowhere be discovered. Nevertheless, as all people are obliged to have recourse to certain grammatical forms, which are the foundation of human language, in order to express their thoughts; so all communities are obliged to secure their existence by submitting to a certain portion of authority, without which they fall a prey to anarchy. This authority may be distributed in several ways, but it must always exist somewhere.
There are two methods of diminishing the force of authority in a nation.
The first is to weaken the supreme power in its very principle, by forbidding or preventing society from acting in its own defence under certain circumstances. To weaken authority in this manner is what is generally termed in Europe to lay the foundations of freedom.
The second manner of diminishing the influence of authority does not consist in stripping society of any of its rights, nor in paralysing its efforts, but in distributing the exercise of its privileges among various hands, and in multiplying functionaries, to each of whom the degree of power necessary for him to perform his duty is intrusted. There may be nations whom this distribution of social powers might lead to anarchy; but in itself it is not anarchical. The action of authority is indeed thus rendered less irresistible, and less perilous, but it is not totally suppressed.
The revolution of the United States was the result of a mature and deliberate taste for freedom, not of a vague or ill-defined craving for independence. It contracted no alliance with the turbulent passions of anarchy; but its course was marked, on the contrary, by an attachment to whatever was lawful and orderly.
It was never assumed in the United States that the citizen of a free country has a right to do whatever he pleases: on the contrary, social obligations were there imposed upon him more various than anywhere else; no idea was ever entertained of attacking the principles, or of contesting the rights of society; but the exercise of its authority was divided, to the end that the office might be powerful and the officer insignificant, and that the community should be at once regulated and free. In no country in the world does the law hold so absolute a language as in America; and in no country is the right of applying it vested in so many hands. The administrative power in the United States presents nothing either central or hierarchical in its constitution, which accounts for its passing unperceived. The power exists, but its representative is not to be discerned.
We have already seen that the independent townships of New England protect their own private interests; and the municipal magistrates are the persons to whom the execution of the laws of the state is most frequently intrusted.{73} Beside the general laws, the state sometimes passes general police regulations; but more commonly the townships and town officers, conjointly with the justices of the peace, regulate the minor details of social life, according to the necessities of the different localities, and promulgate such enactments as concern the health of the community, and the peace as well as morality of the citizens.{74} Lastly, these municipal magistrates provide of their own accord and without any delegated powers, for those unforeseen emergencies which frequently occur in society.{75}
It results, from what we have said, that in the state of Massachusetts the administrative authority is almost entirely restricted to the township,{76} but that it is distributed among a great number of individuals. In the French commune there is properly but one official functionary, namely, the maire; and in New England we have seen that there are nineteen. These nineteen functionaries do not in general depend upon one another. The law carefully prescribes a circle of action to each of these magistrates; and within that circle they have an entire right to perform their functions independently of any other authority. Above the township scarcely any trace of a series of official dignities is to be found. It sometimes happens that the county officers alter a decision of the townships, or town magistrates,{77} but in general the authorities of the county have no right to interfere with the authorities of the township,{78} except in such matters as concern the county.
The magistrates of the township, as well as those of the county, are bound to communicate their acts to the central government in a very small number of predetermined cases.{79} But the central government is not represented by an individual whose business it is to publish police regulations and ordinances enforcing the execution of the laws; to keep up a regular communication with the officers of the township and the county; to inspect their conduct, to direct their actions, or reprimand their faults. There is no point which serves as a centre to the radii of the administration.
What, then, is the uniform plan on which the government is conducted, and how is the compliance of the counties and their magistrates, or the townships and their officers, enforced? In the states of New England the legislative authority embraces more subjects than it does in France; the legislator penetrates to the very core of the administration; the law descends to the most minute details; the same enactment prescribes the principle and the method of its application, and thus imposes a multitude of strict and rigorously defined obligations on the secondary functionaries of the state. The consequence of this is, that if all the secondary functionaries of the administration conform to the law, society in all its branches proceeds with the greatest uniformity; the difficulty remains of compelling the secondary functionaries of the administration to conform to the law. It may be affirmed that, in general, society has only two methods of enforcing the execution of the laws at its disposal; a discretionary power may be intrusted to a superior functionary of directing all the others, and of cashiering them in case of disobedience; or the courts of justice may be authorized to inflict judicial penalties on the offender: but these two methods are not always available.
The right of directing a civil officer pre-supposes that of cashiering him if he does not obey orders, and of rewarding him by promotion if he fulfils his duties with propriety. But an elected magistrate can neither be cashiered nor promoted. All elective functions are inalienable until their term is expired. In fact, the elected magistrate has nothing either to expect or to fear from his constituents; and when all public offices are filled by ballot, there can be no series of official dignities, because the double right of commanding and of enforcing obedience can never be vested in the same individual, and because the power of issuing an order can never be joined to that of inflicting a punishment or bestowing a reward.
The communities therefore in which the secondary functionaries of the government are elected, are perforce obliged to make great use of judicial penalties as a means of administration. This is not evident at first sight; for those in power are apt to look upon the institution of elective functionaries as one concession, and the subjection of the elective magistrate to the judges of the land as another. They are equally averse to both these innovations; and as they are more pressingly solicited to grant the former than the latter, they accede to the election of the magistrate, and leave him independent of the judicial power. Nevertheless, the second of these measures is the only thing that can possibly counter-balance the first; and it will be found that an elective authority which is not subject to judicial power will, sooner or later, either elude all control or be destroyed. The courts of justice are the only possible medium between the central power and the administrative bodies; they alone can compel the elected functionary to obey, without violating the rights of the elector. The extension of judicial power in the political world ought therefore to be in the exact ratio of the extension of elective offices; if these two institutions do not go hand in hand, the state must fall into anarchy or into subjection.
It has always been remarked that habits of legal business do not render men apt to the exercise of administrative authority. The Americans have borrowed from the English, their fathers, the idea of an institution which is unknown upon the continent of Europe: I allude to that of justices of the peace.
The justice of the