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as a judicial body, and only in some few cases as an administrative body.

The first difficulty is, to make the township itself, an almost independent power, obey the general laws of the State. 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 taxes by neglecting to name its assessors, the Court of Sessions condemns it to a heavy fine. The fine is levied on each of the inhabitants ; and the sheriff of the county, who is the officer of justice, executes the mandate. Thus, in the United States, government authority, anxious to keep out of sight, hides itself under the forms of a judicial sentence; and its influence is at the same time fortified by that irresistible power which men attribute to 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, or in a principle without its application in detail. But the difficulty begins when it is not the obedience of the township, but that of the town officers, which is to be enforced. All the reprehensible actions which a public functionary can commit are reducible to the following heads : —

He may execute the law without energy or zeal ;
He may neglect what the law requires ;

He may do what the law forbids.

Only the last two violations of duty can come before a legal tribunal; a positive and appreciable fact is the indis

* 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 authorized, 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.

pensable foundation of an action at law. Thus, if the selectmen omit the legal formalities usual at town elections, they may be fined. But when the officer performs his duty unskilfully, or obeys the letter of the law without zeal or energy, he is out of the reach of judicial interference. The Court of Sessions, even when clothed with administrative powers, is in this case unable to enforce a more satisfactory obedience. The fear of removal is the only check to these quasi-offences, and the Court of Sessions does not originate the town authorities; it cannot remove functionaries whom it does not appoint. Moreover, a perpetual supervision would be necessary to convict the officer of negligence or lukewarmness. Now the Court of Sessions sits but twice a year, and then only judges such offences as are brought to its notice. The only security for that active and enlightened obedience, which a court of justice cannot enforce upon public functionaries, lies in the arbitrary removal of them from office. In France, this final security is exercised by the heads of the administration; in America, it is obtained through the principle of election.

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

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 punish him.

If he commits a fault in his administrative capacity, a purely administrative tribunal is empowered to punish him; and, if the affair is important or urgent, the judge does what the functionary should have done.*

Lastly, if the same individual is guilty of one of those intangible offences which human justice can neither define nor appreciate, he annually appears before a tribunal from

* 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.

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 town officers. 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 have no public prosecutor for the Court of Sessions, and it may readily be perceived that it would be difficult to create one. If an accusing magistrate had merely been appointed in the chief town of each county, and 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 his 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 hábit, and nothing of the kind exists in the legislation of England. The Americans have, therefore, divided the offices of inspection and complaint, as well as all the other functions of the administration. Grand-jurors are bound by the law to apprise 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

* I say the Court of Sessions, because, in common courts, there is an officer [the district attorney] 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.

If, for instance, the treasurer of the county holds back his accounts.

*

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 each 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 interest for the execution of the laws. When an individual is really and sensibly injured by an administrative abuse, his personal interest is a guaranty that he will 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 may 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 they thus insure the execution of the laws by the dangerous expedient of degrading the morals of the people.

* Thus, to take one example out of a thousand, if a private individual breaks his carriage, or is wounded, in consequence of the badness of a road, he can sue the township or the county for damages at the sessions.

† 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 200 to 500 dollars. It may readily be imagined that, in such a case, it might happen that no one would care to prosecute; hence the law adds, that any citizen may enter a complaint for offences of this kind, and that half the fine shall belong to the prosecutor. See Act of 6th March, 1810. The same clause is frequently to be met with in the Laws of Massachusetts. Not only are private individuals thus incited to prosecute the 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, if convicted, he receives half the penalty for himself.

Above the county magistrates, there is, properly speaking, no administrative power, but only a power of gov

ernment.

GENERAL REMARKS ON THE ADMINISTRATION IN THE UNITED STATES.

Differences of the States of the Union in their Systems of Administration. Activity and Perfection of the Town Authorities decreases towards the South. Power of the Magistrates increases; that of the Voter 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 Procedures into the Administration.

I HAVE already said that, after examining 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 town arrangements exist in every State; but in no other part of the Union is a township to be met with precisely similar to those of New England. The farther we go towards the South, the less active does the business of the township or parish become; it has fewer magistrates, duties, and rights; 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 voter diminished, whilst the public spirit of the local communities is less excited and less influential.* These differences may be perceived to a certain extent in the State of New York; they are very sensible in Penn

*For details, see the Revised Statutes of the State of New York, Part I. 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 the 25th of February, 1834, relating to townships, p. 412.

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