Democracy In America, Volume 1 (of 2)

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I have already premised 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 of New England. The
more we descend towards 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 debate less numerous. The power of the elected magistrate is
augmented and that of the elector diminished, whilst the public spirit
of the local communities is less awakened and less influential. *f 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.

[Footnote f: For details see the 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
February 25, 1834, relating to townships, p. 412; besides the peculiar
dispositions relating to divers town-officers, such as Township's Clerk,
Trustees, Overseers of the Poor, Fence Viewers, Appraisers of Property,
Township's Treasurer, Constables, Supervisors of Highways.]

We have seen that in Massachusetts the mainspring of 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 county 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 national
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. *g 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.

[Footnote g: See the Revised Statutes of the State of New York, part i.
chap. xi. vol. i. p. 340. Id. chap. xii. p. 366; also in the Acts of
the State of Ohio, an act relating to county commissioners, February 25,
1824, p. 263. See the Digest of the Laws of Pennsylvania, at the words
County-rates and Levies, p. 170. 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.]

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 further 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 everyone is the best judge
of what concerns himself alone, and the most proper person 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 amongst 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. This 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, *h 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
cognizance of the ordinary tribunals.

[Footnote h: 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, arts. Judiciary, Taxes, etc.]

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 centralized 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 or control
over the secondary bodies. *i

[Footnote i: For instance, the direction of public instruction centres
in the hands of the Government. The legislature names the members of
the University, who are denominated Regents; the Governor
and Lieutentant-Governor of the State are necessarily of the
number.--Revised Statutes, vol. i. p. 455. The Regents of the University
annually visit the colleges and academies, and make their report to
the legislature. Their superintendence is not inefficient, for several
reasons: the colleges in order to become corporations stand in need of
a charter, which is only granted on the recommendation of the Regents;
every year funds are distributed by the State for the encouragement of
learning, and the Regents are the distributors of this money. See chap.
xv. "Instruction," Revised Statutes, vol. i. p. 455.

The school-commissioners are obliged to send an annual report to the
Superintendent of the Republic.--Id. p. 488.

A similar report is annually made to the same person on the number and
condition of the poor.--Id. p. 631.]

At other times they constitute a court of appeal for the decision of
affairs. *j 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. *k
The same tendency is faintly observable in some other States; *l but in
general the prominent feature of the administration in the United States
is its excessive local independence.

[Footnote j: If any one conceives himself to be wronged by the
school-commissioners (who are town-officers), he can appeal to the
superintendent of the primary schools, whose decision is final.--Revised
Statutes, vol. i. p. 487.

Provisions similar to those above cited are to be met with from time to
time in the laws of the State of New York; but in general these attempts
at centralization are weak and unproductive. The great authorities of
the State have the right of watching and controlling the subordinate
agents, without that of rewarding or punishing them. The same individual
is never empowered to give an order and to punish disobedience; he
has therefore the right of commanding, without the means of exacting
compliance. In 1830 the Superintendent of Schools complained in
his Annual Report addressed to the legislature that several
school-commissioners had neglected, notwithstanding his application,
to furnish him with the accounts which were due. He added that if this
omission continued he should be obliged to prosecute them, as the law
directs, before the proper tribunals.]

[Footnote k: Thus the district-attorney is directed to recover all fines
below the sum of fifty dollars, unless such a right has been specially
awarded to another magistrate.--Revised Statutes, vol. i. p. 383.]

[Footnote l: Several traces of centralization may be discovered in
Massachusetts; for instance, the committees of the town-schools are
directed to make an annual report to the Secretary of State. See Laws of
Massachusetts, vol. i. p. 367.]

Of The State

I have described the townships and the administration; it now remains
for me to speak of the State and the Government. This is ground I may
pass over rapidly, without fear of being misunderstood; for all I have
to say is to be found in written forms of the various constitutions,
which are easily to be procured. These constitutions rest upon a simple
and rational theory; their forms have been adopted by all constitutional
nations, and are become familiar to us. In this place, therefore, it
is only necessary for me to give a short analysis; I shall endeavor
afterwards to pass judgment upon what I now describe.




Chapter V: Necessity Of Examining The Condition Of The States--Part III

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 assemblies, 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 constitution of the different States; *m but it is in
the nomination of public functionaries that it most commonly assumes 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. *n 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.

[Footnote m: In Massachusetts the Senate is not invested with any
administrative functions.]

[Footnote n: As in the State of New York.]

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, whilst the
other represented the interests and passions of the people. The only
advantages which result from the present constitution of the United
States are the division of the legislative power and the consequent
check upon political assemblies; 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 Assembly, 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.

[See Benjamin Franklin]

The Executive Power Of The State

Office of Governor in an American State--The place he occupies in
relation to the Legislature--His rights and his duties--His dependence
on the people.

The executive power of the State may with truth be said to be
represented by the Governor, although he enjoys but a portion of its
rights. The supreme magistrate, under the title of Governor, is the
official moderator and counsellor of the legislature. He is armed with
a veto or suspensive power, which allows him to stop, or at least to
retard, its movements at pleasure. He lays the wants of the country
before the legislative body, and points out the means which he thinks
may be usefully employed in providing for them; he is the natural
executor of its decrees in all the undertakings which interest the
nation at large. *o In the absence of the legislature, the Governor is
bound to take all necessary steps to guard the State against violent
shocks and unforeseen dangers. The whole military power of the State is
at the disposal of the Governor. He is the commander of the militia, and
head of the armed force. When the authority, which is by general consent
awarded to the laws, is disregarded, the Governor puts himself at
the head of the armed force of the State, to quell resistance, and to
restore order. Lastly, the Governor takes no share in the administration
of townships and counties, except it be indirectly in the nomination of
Justices of the Peace, which nomination he has not the power to cancel.
*p The Governor is an elected magistrate, and is generally chosen
for one or two years only; so that he always continues to be strictly
dependent upon the majority who returned him.

[Footnote o: Practically speaking, it is not always the Governor who
executes the plans of the Legislature; it often happens that the latter,
in voting a measure, names special agents to superintend the execution
of it.]

[Footnote p: In some of the States the justices of the peace are not
elected by the Governor.]

Political Effects Of The System Of Local Administration In The United
States

Necessary distinction between the general centralization of Government
and the centralization of the local administration--Local administration
not centralized in the United States: great general centralization of
the Government--Some bad consequences resulting to the United States
from the local administration--Administrative advantages attending
this order of things--The power which conducts the Government is less
regular, less enlightened, less learned, but much greater than in
Europe--Political advantages of this order of things--In the United
States the interests of the country are everywhere kept in view--Support
given to the Government by the community--Provincial institutions
more necessary in proportion as the social condition becomes more
democratic--Reason of this.

Centralization is become a word of general and daily use, without any
precise meaning being attached to it. Nevertheless, there exist two
distinct kinds of centralization, which it is necessary to discriminate
with accuracy. Certain interests are common to all parts of a nation,
such as the enactment of its general laws and the maintenance of its
foreign relations. Other interests are peculiar to certain parts of the
nation; such, for instance, as the business of different townships. When
the power which directs the general interests is centred in one place,
or vested in the same persons, it constitutes a central government.
In like manner the power of directing partial or local interests,
when brought together into one place, constitutes what may be termed a
central administration.

Upon some points these two kinds of centralization coalesce; but by
classifying the objects which fall more particularly within the province
of each of them, they may easily be distinguished. It is evident that a
central government acquires immense power when united to administrative
centralization. Thus combined, it accustoms men to set their own will
habitually and completely aside; to submit, not only for once, or upon
one point, but in every respect, and at all times. Not only, therefore,
does this union of power subdue them compulsorily, but it affects them
in the ordinary habits of life, and influences each individual, first
separately and then collectively.

These two kinds of centralization mutually assist and attract each
other; but they must not be supposed to be inseparable. It is impossible
to imagine a more completely central government than that which existed
in France under Louis XIV.; when the same individual was the author and
the interpreter of the laws, and the representative of France at home
and abroad, he was justified in asserting that the State was identified
with his person. Nevertheless, the administration was much less
centralized under Louis XIV. than it is at the present day.

In England the centralization of the government is carried to great
perfection; the State has the compact vigor of a man, and by the
sole act of its will it puts immense engines in motion, and wields or
collects the efforts of its authority. Indeed, I cannot conceive that
a nation can enjoy a secure or prosperous existence without a powerful
centralization of government. But I am of opinion that a central
administration enervates the nations in which it exists by incessantly
diminishing their public spirit. If such an administration succeeds
in condensing at a given moment, on a given point, all the disposable
resources of a people, it impairs at least the renewal of those
resources. It may ensure a victory in the hour of strife, but it
gradually relaxes the sinews of strength. It may contribute admirably
to the transient greatness of a man, but it cannot ensure the durable
prosperity of a nation.

If we pay proper attention, we shall find that whenever it is said
that a State cannot act because it has no central point, it is the
centralization of the government in which it is deficient. It is
frequently asserted, and we are prepared to assent to the proposition,
that the German empire was never able to bring all its powers into
action. But the reason was, that the State was never able to enforce
obedience to its general laws, because the several members of that great
body always claimed the right, or found the means, of refusing their
co-operation to the representatives of the common authority, even in the
affairs which concerned the mass of the people; in other words, because
there was no centralization of government. The same remark is applicable
to the Middle Ages; the cause of all the confusion of feudal society
was that the control, not only of local but of general interests, was
divided amongst a thousand hands, and broken up in a thousand different
ways; the absence of a central government prevented the nations of
Europe from advancing with energy in any straightforward course.

We have shown that in the United States no central administration and no
dependent series of public functionaries exist. Local authority has been
carried to lengths which no European nation could endure without
great inconvenience, and which has even produced some disadvantageous
consequences in America. But in the United States the centralization
of the Government is complete; and it would be easy to prove that the
national power is more compact than it has ever been in the old nations
of Europe. Not only is there but one legislative body in each State;
not only does there exist but one source of political authority;
but district assemblies and county courts have not in general been
multiplied, lest they should be tempted to exceed their administrative
duties, and interfere with the Government. In America the legislature
of each State is supreme; nothing can impede its authority; neither
privileges, nor local immunities, nor personal influence, nor even the
empire of reason, since it represents that majority which claims to be
the sole organ of reason. Its own determination is, therefore, the only
limit to this action. In juxtaposition to it, and under its immediate
control, is the representative of the executive power, whose duty it
is to constrain the refractory to submit by superior force. The only
symptom of weakness lies in certain details of the action of the
Government. The American republics have no standing armies to intimidate
a discontented minority; but as no minority has as yet been reduced to
declare open war, the necessity of an army has not been felt. *q The
State usually employs the officers of the township or the county to
deal with the citizens. Thus, for instance, in New England, the assessor
fixes the rate of taxes; the collector receives them; the town-treasurer
transmits the amount to the public treasury; and the disputes which may
arise are brought before the ordinary courts of justice. This method of
collecting taxes is slow as well as inconvenient, and it would prove a
perpetual hindrance to a Government whose pecuniary demands were large.
It is desirable that, in whatever materially affects its existence, the
Government should be served by officers of its own, appointed by itself,
removable at pleasure, and accustomed to rapid methods of proceeding.
But it will always be easy for the central government, organized as it
is in America, to introduce new and more efficacious modes of action,
proportioned to its wants. [Footnote q: [The Civil War of 1860-65
cruelly belied this statement, and in the course of the struggle the
North alone called two millions and a half of men to arms; but to the
honor of the United States it must be added that, with the cessation
of the contest, this army disappeared as rapidly as it had been
raised.--Translator's Note.]]

The absence of a central government will not, then, as has often been
asserted, prove the destruction of the republics of the New World;
far from supposing that the American governments are not sufficiently
centralized, I shall prove hereafter that they are too much so. The
legislative bodies daily encroach upon the authority of the Government,
and their tendency, like that of the French Convention, is to
appropriate it entirely to themselves. Under these circumstances the
social power is constantly changing hands, because it is subordinate to
the power of the people, which is too apt to forget the maxims of wisdom
and of foresight in the consciousness of its strength: hence arises its
danger; and thus its vigor, and not its impotence, will probably be the
cause of its ultimate destruction.

The system of local administration produces several different effects in
America. The Americans seem to me to have outstepped the limits of sound
policy in isolating the administration of the Government; for order,
even in second-rate affairs, is a matter of national importance. *r As
the State has no administrative functionaries of its own, stationed on
different points of its territory, to whom it can give a common impulse,
the consequence is that it rarely attempts to issue any general police
regulations. The want of these regulations is severely felt, and is
frequently observed by Europeans. The appearance of disorder which
prevails on the surface leads him at first to imagine that society is
in a state of anarchy; nor does he perceive his mistake till he has gone
deeper into the subject. Certain undertakings are of importance to the
whole State; but they cannot be put in execution, because there is no
national administration to direct them. Abandoned to the exertions of
the towns or counties, under the care of elected or temporary agents,
they lead to no result, or at least to no durable benefit.