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THE COUNTIES OF NEW ENGLAND.

The division of the counties in America has considerable analogy with that of the arrondissements of France. The limits of the counties are arbitrarily laid down, and the various districts which they contain have no necessary connexion, no common traditional or natural sympathy; their object is simply to facilitate the administration of public affairs.

The extent of the township was too small to contain a system of ju. dicial institutions; each county has however a court of justice,✻ a sheriff to execute its decrees, and a prison for criminals. There are certain wants which are felt alike by all the townships of a county; it is therefore natural that they should be satisfied by a central authority. In the State of Massachusetts this authority is vested in the hands of several magistrates, who are appointed by the Governor of the State, with the advice† of his council. The officers of the county have only a limited and occasional authority, which is applicable to certain predetermined cases. The State and the townships possess all the power requisite to conduct public business. The budget of the county is only drawn up by its officers, and is voted by the legislature. There is no assembly which directly or indirectly represents the county: it has therefore, properly speaking, no political existence.

A twofold tendency may be discerned in the American constitutions, which impels the legislator to centralize the legislative, and to disperse the executive power. The township of New England has in itself an indestructible element of independence; but this distinct existence could only be fictitiously introduced into the county, where its utility had not been felt. All the townships united have but one representation, which is the State, the centre of the national authority: beyond the action of the township and that of the nation, nothing can be said to exist but the influence of individual exertion.

✻ See the Act of the 14th of February, 1821. Laws of Massachusetts, vol. i. p. 551 † See the Act of the 20th February, 1819. Laws of Massachusetts, vol. ii. p. 494. The council of the Governor is an elective body.

§ See the Act of 2d November, 1791. Laws of Massachusetts, vol. i. p. 61.

ADMINISTRATION IN NEW ENGLAND.

Administration not perceived in America.—Why?—The Europeans believe that liberty is promoted by depriving the social authority of some of its rights; the Americans, by dividing its exercise. Almost all the administration confined to the township, and divided among the town officers.—No trace of an administrative hierarchy to be perceived either in the township, or above it.—The reason of this. -How it happens that the administration of the State is uniform.—Who is empowered to enforce the obedience of the township and the county to the law.The introduction of judicial power 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 the Government, or the Administration. Written laws exist in America, and one sees that they are daily executed; but although every thing is in motion, the hand which gives the impulse to the social machine can nowhere be discovered. Nevertheless, as all peoples 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 entrusted. There may be nations whom this distribution of social powers might

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reprimand their faults. There is no point which serves as a centre to the radii of the adininistration.

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What, then, is the uniform plan on which the government is conducted, and how is the compliance of the counties and their magis. trates, 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 obliga. tions 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 entrusted 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 elected 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 counterbalance 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 func. tionary 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 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 superstitions 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 inother-country. The Governor of Massachusetts appoints a certain number of justices of the peace in every county, whose functions last seven years,† He farther desig. nates 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 entrusted with administrative functions in conjunction with elected offi. cers; they sometimes constitute a tribunal, before which the magis

We shall hereafter learn what a Governor is: I shall content myself with remarking in this place that he represents the executive power of the whole State. See the Constitution of Massachusetts, chap. II. sect. 1. § 9; chap. III. § 3. Thus, for example, a stranger arrives in a township from a country where a contagious disease prevails, and he falls ill. Two justices of the peace can, with

trates 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 Massachusetts it is empowered to enforce the obedience of the greater number✻ of public officers.† It must be observed that in the State of Massachusetts the Court of Sessions is at the same time an administrative body, properly so called, and a political tribunal. It has been asserted that the county is a purely administrative division. The Court of Sessions presides over that small number of affairs which, as they concern several townships, or all the townships of the county in common, cannot be entrusted to any one of them in particular.‡ 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, or as a guarantee to the community over which it presides. But when the administration of the township is brought before it, it almost always acts as a judicial body, and in some few cases as an administrative assembly.

The first difficulty is to procure the obedience of an authority so entirely independent of the general laws of the State as the township is. We have stated that assessors are annually named by the town-meetings, to levy the taxes. If a township attempts to evade the payment of the

the assent of the selectmen, order the sheriff of the county to remove and take care of him. Act of 22d June, 1797: vol. i. p. 540.

In general the justices interfere in all the important acts of the administration, and give them a semi-judicial character.

✻ I say the greater number because certain administrative misdemeanors are brought before the ordinary tribunals. If, for instance, a township refuses to make the necessary expenditure for its schools, or to name a school-committee, it is liable to a heavy line. But this penalty is pronounced by the Supreme Judicial Court or the Court of Common Pleas. See Act of 10th March, 1827, Laws of Massachusetts, vol. iii. p. 190. Or when a township neglects to provide the necessary war-stores. Act of 21st February, 1822, Id. vol. ii. p. 570.

In their individual capacity the Justices of the Peace take a part in the business of the counties and townships. The more important acts of the municipal government are rarely decided upon without the co-operation of one of their body.

These affairs may be brought under the following heads: 1. The erection of prisons and courts of Justice. 2. The county budget, which is afterwards voted by the State. 3. The assessment of the taxes so voted. 4. Grants of certain patents. 5. The laying down and repairs of the county roads.

Thus, when a road is under consideration, almost all difficulties are disposed of by the aid of the Jury.

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