taxes by neglecting to name its assessors, the Court of Sessions con. demns it to a heavy penalty.* The fine is levied on each of the inhabitants; and the sheriff of the county, who is an officer of justice, executes the mandate. Thus it is that in the United States the authority of the Government is mysteriously concealed under the forms of a judicial sentence; and its influence is at the same time fortified by that irresistible power with which men have invested the formalities of law.

These proceedings are easy to follow, and to understand. The demands made upon a township are in general plain and accurately defined; they consist in a simple fact without any complication, or in a principle without its application in detail. But the difficulty increases when it is not the obedience of the township, but that of the town-offi. cers, which is to be enforced. All the reprehensible actions of which a public functionary may be guilty are reducible to the following heads: He may execute the law without energy or zeal ;

He may neglect to execute the law;

He may do what the law enjoins him not to do.

The last two violations of duty can alone come under the cognizance of a tribunal; a positive and appreciable fact is the indispensable foundation of an action at law. Thus, if the selectmen omit to fulfil the legal formalities usual at town elections, they may be condemned to pay a fine ; but when the public officer performs his duty without ability, and when he obeys the letter of the law without zeal or energy, he is at least beyond the reach of judicial interference. The Court of Sessions, even when it is invested with its administrative powers, is in this case unable to compel him to a more satisfactory obedience. The fear of removal is the only check to these quasi offences; and as the Court of Sessions does not originate the town-authorities, it cannot remove functionaries whom it does not appoint. Moreover, a perpetual investigation would be necessary to convict the subordinate officer of negligence or lukewarmness; and the Court of Sessions sits but twice

* See Act of 20th February, 1786, Laws of Massachusetts, vol. i. p. 217. ! + There is an indirect method of enforcing the obedience of a township. Suppose that the funds which the law demands for the maintenance of the roads have not been voted; the town-surveyor is then authorised, ex officio, to levy the supplies. As he is personally responsible to private individuals for the state of the roads, and indictable before the Court of Sessions, he is sure to employ the extraordinary right which the law gives him against the township Thus by threatening the officer, the Court of Sessions exacts compliance from the town. See Act of 5th March, 1787, Id. vol. i. p. 305.

Laws of Massachusetts, vol ii. p. 45.

a year, and then only judges such offences as are brought before its notice. The only security for that active and enlightened obedience, which a court of justice cannot impose upon public officers, lies in the possibility of their arbitrary removal. In France this security is sought for in powers exercised by the heads of the administration; in America it is sought for in the principle of election.

Thus, to recapitulate in a few words what I have been showing:

If a public officer in New England commits a crime in the exercise of his functions, the ordinary courts of justice are always called upon to pass sentence upon him.

If he commits a fault in his official capacity, a purely administrative tribunal is empowered to punish him; and, if the affair is important or urgent, the judge supplies the omission of the functionary.✻

Lastly, if the same individual is guilty of one of those intangible offences, of which human justice has no cognizance, he annually appears before a tribunal from which there is no appeal, which can at once reduce him to insignificance, and deprive him of his charge. This system undoubtedly possesses great advantages, but its execution is attended with a practical difficulty which it is important to point out.

I have already observed that the administrative tribunal, which is called the Court of Sessions, has no right of inspection over the townofficers. It can only interfere when the conduct of a magistrate is specially brought under its notice; and this is the delicate part of the system. The Americans of New England are unacquainted with the office of public prosecutor in the Court of Sessions, 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 offices of inspection and of prosecution as well as all the other functions of the administration.

* If, for instance, a township persists in refusing to name its assessors, the Court of Sessions nominates them; and the magistrates thus appointed are invested with the same authority as elected officers. See the Act quoted above, 20th February, 1787.

I say the Court of Sessions, because in common courts there is a magistrate who exercises some of the functions of a public prosecutor.

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.✻ There are certain great offences which are officially prosecuted by the State;† but more frequently the task of punishing delinquents devolves upon the fiscal officer, whose province it is to rcceive 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, 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; 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.

The Grand-jurors are, for instance, bound to inform the court of the bad state of the roads. Laws of Massachusetts, vol. i. p. 303.

† If, for instance, the treasurer of the county holds back his accounts. 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 203 to 500 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 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.

GENERAL REMARKS ON THE ADMINISTRATION OF THE

UNITED STATES.

Difference of the States of the Union in their system of administration -Activity and perfection of the local authorities decreases towards the South.—Power of the magistrate 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 judical resources into the administration.

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 in 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 diminish. ed, while the public spirit of the local communities is less awakened and less influential.✻

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 North-west. The majority of the emigrants who settle in the north-western 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

*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 Acts of the 25th February, 1834, relating to townships, p. 412; besides the peculiar dispositions relating to divers town officers, such as l'ownship's Clerk, Trustees, Overseers of the Poor, Fence-viewers, Appraisers of Property, Township's Treasurer, Constables, Supervisors of Highways.

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 dif. fused, 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. 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 nut 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

* See the Revised Statutes of the State of New York, Part I. chap. xi. vol i. p. 410. Id., chap. xii. p. 366: also in the Acts of the State of Ohio, an act relating to county commissioners. 25th February, 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.