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sionally 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 taxes by neglecting to name its assessors, the court of sessions condemns 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 officers, 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 indispen

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

See the 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 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. See the act of 5th March, 1787; laws o Massachusetts, vol i., p. 305.

sable 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 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.

Laws of Massachusetts, vol. ii., p. 45.

† 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 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 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 mrely been appointed in the chief town of each county, and if he ad 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 officers of inspection and of prosecution as well as all the other functions of the administration. 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 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 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

I say the court of sessions, because in common courts there is a magistrate 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. Laws of Massachusetts, vol. i., p. 308.

If, for instance, the treasurer of the county holds back his account. Massachusetts, vol. i., p. 406.

Laws o!

§ 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.

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 asily 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.

GENERAL REMARKS ON THE ADMINISTRATION OF THE UNITED STATES.

Difference of the States of the Union in their Systems of Administration.-Activity and Perfection of the local Authorities decreases toward the South.-Power of the Magistrates 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 judicial 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 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 two to five hundred 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 the 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.

in New England. The more we descend toward 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 debates less numerous. The power of the elected magistrate is augmented, and that of the elector diminished, 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 northwest. The majority of the emigrants who settle in the northwestern states are natives of New England, and they carry the habits of their mothercountry 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 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 town 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

For details see 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 25th February, 1834, relating to townships, p. 412; beside the peculiar dispositions relating to divers town officers, such as township's clerk, trustees, overseers of the poor, fence-viewers, appraisers of prop. erty, township's treasurer, constables, supervisor of highways.

See the Revised Statutes of the state of New York, Part I. chap. xi., vol. i., p

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