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CHAPTER 5 Necessity of Studying What Happens in the Individual States before Speaking about the Government of the Union ^a

The following chapter is intended to examine what form government founded on the principle of sovereignty of the people takes in America, what its means of action, difficulties, advantages and dangers are.^b

A first difficulty arises: the United States has a complex constitution. You notice two distinct societies there, bound together and, if I can explain it in this way, nested like boxes one inside the other. Two completely separate and nearly independent governments are seen: the one, habitual and undefined, which answers to the daily needs of the society; the other, exceptional and circumscribed, which applies only to certain general interests. They are, in a word, twenty-four small sovereign nations, that together form the great body of the Union.

To examine the Union before studying the state is to embark on a path strewn with difficulties. The form of the federal government in the United States appeared last; it was only a modification of the republic, a summary of political principles spread throughout the entire society before the federal government existed, and subsisting there independently of it. As I have just said, the federal government is, moreover, only an exception; the government of the states is the common rule. The writer who would like to

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show such a picture as a whole before pointing out its details would necessarily lapse into obscurities and repetitions.

There can be no doubt that the great political principles that govern American society today arose and developed in the state. So to have the key to all the rest, the state must be understood.

The states that make up the American Union today all look the same with regard to the external appearance of institutions. Political and administrative life there is found concentrated in three centers of action that could be compared to the various nerve centers that make the human body move.

At the first level is found the town;^{TN 3} higher, the county; finally, the state.

Of the Town System in America ^c

Why the author begins the examination of political institutions with the town.—The town is found among all peoples.—Difficulty of establishing and maintaining town liberty.—

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Its importance.—Why the author has chosen the town organization of New England as the principal object of his examination.

Not by chance do I first examine the town.

[≠The town is the first element of the societies out of which peoples take form; it is the social molecule; if I can express myself in this way, it is the embryo that already represents and contains the seed of the complete being.≠]

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The town is the only association that is so much a part of nature that wherever men are gathered together, a town takes shape by itself.

Town society exists therefore among all peoples no matter what their customs and their laws; it is man who establishes kingdoms and creates republics; the town seems to come directly from the hands of God. [≠The town is not only the first of social elements, but also the most important of all.≠] But if the town has existed ever since there have been men, town liberty is something rare and fragile.^d A people can always establish great political assemblies, because it usually contains a certain number of men among whom, to a certain degree, enlightenment takes the place of the practice of public affairs. The town is made up of crude elements that often resist the action of the legislator. Instead of diminishing as nations become more enlightened, the difficulty of establishing town independence increases with their enlightenment. A highly civilized society tolerates the trial efforts of town liberty only with difficulty; it rebels at the sight of its numerous errors and despairs of success before having reached the final result of the experiment.

Of all liberties, town liberty, which is so difficult to establish, is also the most exposed to the encroachments of power. Left to themselves, town institutions could scarcely resist a strong and enterprising government; to defend themselves successfully, they must have reached their

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fullest development and be mingled with national ideas and habits. Thus, as long as town liberty has not become part of the mores, it is easy to destroy; and it can become part of the mores only after existing in the laws for a long time.

Town liberty therefore escapes human effort so to speak. Consequently it is rarely created;^e in a sense it arises by itself. It develops almost in secret^f within a semi-barbaric society. The continuous action of laws and of mores, circumstances, and above all time succeed in its consolidation. You can say that, of all the nations of the European continent, not a single one knows town liberty.

The strength of free peoples resides in the town, however. Town institutions are to liberty what primary schools are to knowledge; they put it within the grasp of the people; they give them a taste of its peaceful practice and accustom them to its use. Without town institutions, a nation can pretend to have a free government, but it does not possess the spirit of liberty.^g Temporary passions, momentary interests, the chance of circumstances can give it the external forms of independence; but despotism,

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driven back into the interior of the social body, reappears sooner or later at the surface.

To make the reader understand well the general principles on which the political organization of the town and the county in the United States rests, I thought that it was useful to take one state in particular as a model, to examine in detail what happens there, and then to cast a quick glance over the rest of the country.

I have chosen one of the states of New England.

The town and the county are not organized in the same way in all the parts of the Union; it is easy to recognize, however, that throughout the Union the same principles, more or less, have presided over the formation of both.

[≠The town institutions of New England were the first to reach a state of maturity. They present a complete and uniform whole. They serve as a model for the other parts of the Union and tend more and more to become the standard to which all the rest must sooner or later conform.≠]

Now, it seemed to me that in New England these principles were considerably more developed and had attained further consequences than anywhere else. So they are, so to speak, more evident there and are thus more accessible to the observation of the foreigner.

The town institutions of New England form a complete and regular whole. They are old; they are strong because of the laws, stronger still because of the mores; they exercise a prodigious influence over the entire society.

In all these ways, they merit our attention.

Town District

The town in New England (Township) falls between the canton and the commune [town] in France. Generally it numbers from two to three thousand inhabitants.¹ So it is not too extensive for all its inhabitants to share

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nearly the same interests; and on the other hand, it is populated enough to assure that elements of a good administration are always found within it.

Town Powers in New England

The people, source of all powers in the town as elsewhere.—There they deal with principal matters by themselves.—No town council.—The largest part of town authority concentrated in the hands of the selectmen.—How the selectmen function.—General assembly of the inhabitants of the town (Town Meeting).—Enumeration of all the town officers.—Offices mandatory and paid.

In the town as everywhere else, the people are the source of social powers, but nowhere else do they exercise their power more directly. In America, the people are a master who has to be pleased to the greatest possible degree.

In New England, the majority acts through representatives when the general affairs of the state must be dealt with. This was necessary; but in the town, where legislative and governmental action is closer to the governed, the law of representation is not accepted.^h There is no town council; the body of voters, after naming their magistrates, directs them in everything that is not the pure and simple execution of the laws of the state.²

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This state of things is so contrary to our ideas, and so opposed to our habits, that it is necessary to provide a few examples here for it to be well understood.

Public offices are extremely numerous and highly divided in the town, as we will see below. The largest part of administrative powers is concentrated, however, in the hands of a small number of individuals elected annually who are called selectmen.³

The general laws of the state have imposed a certain number of obligations on the selectmen. To fulfill them they do not need the authorization of those under their jurisdiction, and they cannot avoid their obligations without engaging their personal responsibility. State law charges them, for example, with drawing up the electoral lists in their town; if they fail to do so, they make themselves guilty of a misdemeanor. But in all things that are left to the direction of the town authority, the selectmen are the executors of the popular will, as with us the mayor is the executor of the deliberations of the town council. Most often they act on their private responsibility and, in actual practice, only carry out the implications of principles previously set down by the majority. But if they want to introduce any change whatsoever in the established order, if they desire to pursue a new undertaking, they must return to the source of their power. Suppose that it is a question of establishing a school: the selectmen convoke on a

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given day, in a place specified in advance, the whole body of voters; there, they set forth the need that is felt; they show the means to satisfy it, the money that must be spent, the location that should be chosen. The assembly, consulted on all those points, adopts the principle, determines the location, votes the tax and puts the execution of its will into the hands of the selectmen.

Only the selectmen have the right to call the town meeting, but they can be made to do so. If ten property owners conceive a new project and want to submit it for approval by the town, they call for a general convocation of the inhabitants; the selectmen are obliged to agree to the call and only retain the right to preside over the meeting.⁴

Without a doubt, these political mores, these social customs are very far from us. At this moment I want neither to judge them nor to show the hidden causes that produce and animate them; I am limiting myself to presenting them.

The selectmen are elected annually in the month of April or May. At the same time the town meeting chooses a host of other town magistrates,⁵ appointed for certain important administrative tasks.^k Some, known as assessors, must determine the tax; others, known as collectors, must collect it. One officer, called the constable, is charged with keeping the peace, supervising public places and assuring the physical execution of the laws. Another, named the town clerk, records all deliberations; he keeps minutes of the acts of the civil registry. A treasurer keeps the town funds. Add to these officers an overseer of the poor, whose duty, very difficult to fulfill, is to enforce the laws relative to the poor; school commissioners, who direct public education; road surveyors, who are responsible for all the routine tasks relating to the roadways, large and small; and you will have the list of the principal agents of town administration. But the division of offices does

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not stop there. You still find, among the town officers,⁶ parish commissioners who must regulate church expenses;^m inspectors of various kinds, some charged with directing the efforts of citizens in case of fire; others, with overseeing the harvest; these, with temporarily relieving difficulties that can arise from fencing; those, with supervising wood allotments or with inspecting weights and measures.

In all, principal offices in the town number nineteen. Each inhabitant is obligated, under penalty of a fine, to accept these different offices; but also most of these offices are paid,ⁿ so that poor citizens can devote their time to them without suffering a loss. The American system, moreover, does not give any fixed salary to officers. In general, each act of their administration has a value, and they are remunerated only in proportion to what they have done.^o

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Of Town Life

Each person is the best judge of what concerns only himself alone.—Corollary of the principle of sovereignty of the people.—Application that the American towns make of these doctrines.—The New England town, sovereign in everything that concerns only itself, subject in everything else.—Obligation of the town toward the state.—In France, the government lends its agents to the town.—In America, the town lends its to the government.

I said previously that the principle of sovereignty of the people hovers over the entire political system of the Anglo-Americans. Each page of this book will show some new applications of this doctrine.

Among nations where the dogma of the sovereignty of the people reigns, each individual forms an equal portion of the sovereign power, and participates equally in the government of the state.

Each individual is therefore considered to be as enlightened, as virtuous, as strong as any of his fellows.

So why does he obey society, and what are the natural limits of this obedience?

He obeys society, not at all because he is inferior to those who direct it, or less capable than another man of governing himself; he obeys society because union with his fellows seems useful to him and because he knows that this union cannot exist without a regulatory power.

So in all that concerns the mutual duties of citizens, he has become a subject. In all that concerns only himself, he has remained the master; he is free and is accountable for his actions only to God. Thus this maxim, that the individual is the best as well as the only judge of his particular interest and that society has the right to direct his actions only when it feels harmed by them, or when it needs to call for his support.

This doctrine is universally accepted in the United States. Elsewhere I will examine what general influence it exercises over even the ordinary acts of life; but at this moment I am talking about the towns.

The town, taken as a whole and in relation to the central government,

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is only an individual like any other to whom the theory I have just indicated applies.

Town liberty in the United States follows, therefore, from the very dogma of the sovereignty of the people. All the American republics have more or less recognized this independence; but among the people of New England, circumstances have particularly favored its development.

In this part of the Union, political life was born very much within the towns; you could almost say that at its origin each of them was an independent nation. When the Kings of England later demanded their share of sovereignty, they limited themselves to taking central power. They left the town in the situation where they found it; now the towns of New England are subjects; but in the beginning they were not or were scarcely so. They did not therefore receive their powers; on the contrary, they seem to have relinquished a portion of their independence in favor of the state; an important distinction which the reader must keep in mind.^p

In general the towns are subject to the states only when an interest that I will call social is concerned, that is to say, an interest that the towns share with others.^q

For everything that relates only to them alone, the towns have remained independent bodies. No one among the inhabitants of New England, I think, recognizes the right of the state government to intervene in the direction of purely town interests.^r

So the towns of New England are seen to buy and sell, to sue and to defend themselves before the courts, to increase or reduce their budget

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without any administrative authority whatsoever thinking to oppose them.⁷ [<≠This right has only a single limit. That is found in the institution of the judicial power, but we will examine it later.≠>]

As for social duties, they are required to fulfill them. Thus, if the state needs money, the town is not free to grant or to deny its cooperation.⁸ If the state wants to open a road, the town does not have the right to close its territory. If it establishes a regulation concerning public order, the town must execute it. If it wants to organize education according to a uniform plan throughout the country, the town is required to create the schools desired by the law.⁹ We will see, when we talk about administration in the United States, how and by whom the towns, in all these different cases, are forced to obey. Here I only want to establish the existence of the obligation. This obligation is strict, but the state government, while imposing it, only enacts a principle; for carrying out the principle, the town generally recovers all its rights of individuality. Thus, it is true that the tax is voted by the legislature, but it is the town that apportions and collects it; a school is prescribed, but it is the town that builds, funds and directs it.

In France the tax collector of the State levies the taxes of the town; in America the tax collector of the town raises the tax of the state.

With us, therefore, the central government lends its agents to the town; in America, the town lends its officers to the government. That alone makes clear to what degree the two societies differ.

Of Town Spirit in New England

Why the New England town attracts the affections of those who live there.—Difficulty met in Europe in creating town spirit.—Town rights and duties that work together in America to form this spirit.—The native land has a more distinctive

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physiognomy in the United States than elsewhere.—How town spirit is shown in New England.—What fortunate effects it produces there.

[≠Laws act on mores; and mores, on laws. Wherever these two things do not lend each other mutual support, there is unrest, revolution tearing apart the society.

The legislation of New England constituted the town. Habits have completed the establishment of a true town spirit there.

The town is a center around which interests and passions gather and where real and sustained activity reigns.≠]

In America not only do town institutions exist, but also a town spirit that sustains and animates them.^s

The New England town brings together two advantages that, wherever they are found, strongly excite the interest of men—namely, independence and power. It acts, it is true, within a circle that it cannot leave, but within that circle its movements are free. This independence alone would already give the town real importance even if its population and size would not assure its importance.

You must realize that in general the affections of men go only where strength is found. Love of native land does not reign for long in a conquered country.^t The inhabitant of New England is attached to his town, not so much because he was born there as because he sees in this town a free and strong corporate body to which he belongs and which merits the trouble of trying to direct it.

In Europe the very people who govern often regret the absence of town spirit; for everyone agrees that town spirit is a great element of order and public tranquillity; but they do not know how to produce it. By making the town strong and independent, they fear dividing social power and exposing the State to anarchy. Now, take strength and independence away

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from the town, and you will forever find there only people who are administered, not citizens.

Note, moreover, an important fact. The New England town is so constituted that it can serve as a center of strong affections, and at the same time there is nothing nearby that strongly attracts the ambitious passions of the human heart.

The officials of the county are not elected and their authority is limited. The state itself has only a secondary importance; its existence is indistinct and tranquil. To gain the right to administer it, few men agree to distance themselves from the center of their interests and to disrupt their existence.

The federal government confers power and glory on those who direct it; but the number of men who are able to influence its destiny is very small. The presidency is a high office that can hardly be attained except after reaching an advanced age. When someone reaches other high level federal offices, it is by chance in a way and after already becoming famous by pursuing another career.^u Ambition cannot make these high offices the permanent aim of its efforts. [{The Union is a nearly ideal being that nothing represents to the mind.}]^v It is in the town, at the center of the ordinary relations of life, that the desire for esteem, the need for real interests, the taste for power and notice are focused. These passions, which so often trouble society, change character when they can operate thus near the domestic hearth and, in a way, within the family.

See with what art, in the American town, care has been taken to scatter power, if I can express myself in this way, in order to interest more people in public life. Apart from the voters called from time to time to perform the acts of government, how many diverse offices, how many different magistrates, who all, in the circle of their attributions, represent the powerful corporate body in whose name they act! How many men thus

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exploit the power of the town for their profit and are interested in it for themselves!

Nor is the American system, even as it divides municipal power among a great number of citizens, afraid to multiply town duties. In the United States people think rightly that love of country is a kind of religious cult that attaches men by observances.

In this way, town life makes itself felt at every moment as it were; it manifests itself every day by the accomplishment of a duty or by the exercise of a right. This political existence imparts a continual, but at the same time peaceful, movement to society that agitates without troubling it.^w

The Americans are attached to the city by a reason analogous to the one that makes mountain dwellers love their country. Among them the native land has marked and characteristic features; it has a more distinctive physiognomy than elsewhere.

In general the New England towns have a happy existence. Their government suits their taste and is their choice as well. Within the profound peace and material prosperity that reign in America, the storms of municipal life are few. Leadership of town interests is easy. The political education of the people, moreover, was done a long time ago, or rather they arrived already educated on the soil they occupy. In New England, division of ranks does not exist even in memory; so there is no portion of the town tempted to oppress the other, and injustices, which strike only isolated individuals, are lost in the general contentment. Should the government exhibit some faults, and certainly it is easy to point them out, they are not obvious to view, because the government truly derives from the governed. And it is sufficient for town government to operate, whether well or poorly, for it to be protected by a kind of paternal pride. The Americans, moreover, have no point of comparison. England once ruled the colonies as a whole, but the people have always directed town affairs. So sovereignty of the

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people in the town is not only a long-standing condition, but also an original one.

The inhabitant of New England is attached to his town, because it is strong and independent; he is interested in it, because he participates in its leadership; he loves it, because he has nothing to complain about in his lot. In the town he places his ambition and his future; he joins in each of the incidents of town life; in this limited sphere, accessible to him, he tries his hand at governing society. He becomes accustomed to the forms without which liberty proceeds only by revolutions, is infused with their spirit, acquires a taste for order, understands the harmony of powers, and finally gathers clear and practical ideas about the nature of his duties as well as the extent of his rights.

Of the County in New England

The county in New England, analogous to the arrondissement in France.—Created for a purely administrative interest.—Has no representation.—Administered by non-elective officials.

The American county is very analogous to the French arrondissement. As for the latter, an arbitrary circumscription was drawn for the former; it forms a body whose different parts have no necessary bonds with each other and for whom neither affection nor memory nor shared existence serve as attachments. It is created only for a purely administrative interest.

The town was too limited in area ever to contain the administration of justice. The county is, therefore, the primary judicial center. Each county has a court of justice,¹⁰ a sheriff to execute the decisions of the courts, a prison that must hold the criminals.

There are needs that are felt in a more or less equal way by all the towns of a county; it was natural that a central authority was charged with providing for them. In Massachusetts, this authority resides in the hands of a

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certain number of magistrates, appointed by the Governor of the state, with the advice¹¹ of his council.¹²

The county administrators have only a limited and exceptional power that applies only to a very small number of cases provided for in advance. The state and the town are sufficient for the ordinary course of things. These administrators only prepare the county budget; the legislature votes it.¹³ There is no assembly that, directly or indirectly, represents the county.

So truly speaking, the county has no political existence.^x

A double tendency is noticeable in most American constitutions, which leads the law-makers to divide executive power and to concentrate legislative power. The New England town by itself has a principle of existence that is not stripped away from it. But this existence would have to be created artificially in the county, and the usefulness of doing so has not been felt. All the towns united together have only a single representative, the state,^y center of all national powers;^z apart from town and national action, you could say that there are only individual powers.

Of Administration in New England ^a

In America, you do not see the administration.—Why.—Europeans believe they are establishing liberty by taking away some of the rights belonging to the social power; Americans, by

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dividing their exercise.—Nearly all of the administration strictly speaking contained in the town, and divided among town officers.—No trace of an administrative hierarchy is seen, either in the town or above it.—Why it is so.—How the state happens, however, to be administered in a uniform way.—Who is charged with making the town and county administrations obey the law.—Of the introduction of the judicial power into the administration.—Result of extending the elective principle to all officials.—Of the justice of the peace in New England.—Appointed by whom.—Administers the county.—Ensures the administration of the towns.—Court of sessions.—The way in which it acts.—Who apprises it.—The right of inspection and of complaint, scattered like all administrative functions.—Informers encouraged by sharing fines.

What most strikes the European who travels across the United States is the absence of what among us we call government or administration. In America, you see written laws; you see their daily execution; everything is in motion around you, and the motor is nowhere to be seen. The hand that runs the social machine escapes at every moment.

But just as all peoples, in order to express their thoughts, are obliged to resort to certain grammatical forms that constitute human languages, all societies, in order to continue to exist, are compelled to submit to a certain amount of authority; without it, they fall into anarchy. This authority can be distributed in different ways; but it must always be found somewhere.

There are two means to diminish the strength of authority^b in a nation.

The first is to weaken power in its very principle, by taking from society the right or the capacity to defend itself in certain cases; to weaken authority

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in this way is what, in Europe, is generally called establishing liberty.^c

[{This method has always seemed to me barbaric and antisocial.}]

There is a second means to diminish the action of authority. This one consists not of stripping society of some of its rights or paralyzing its efforts, but of dividing the use of its powers among several hands; of multiplying officials while attributing to each all the power needed to carry out what he is meant to do. There are peoples who can still be led to anarchy by this division of the social powers; in itself, however, it is not anarchic. By sharing authority in this way, its action is made less irresistible and less dangerous, it is true; but authority is not destroyed.

The Revolution in the United States was produced by a mature and thoughtful taste for liberty, and not by a vague and undefined instinct for independence. It was not based upon passions for disorder; on the contrary, it proceeded with love of order and of legality.^d

So in the United States, the Americans did not claim that, in a free country, a man had the right to do everything; on the contrary, social obligations more varied than elsewhere were imposed on him. They did not have the idea of attacking the power of society in its principle and of contesting its rights; they limited themselves to dividing power in its exercise. In this way they wanted to make authority great and the official small, so that society might continue to be well regulated and remain free.

There is no country in the world where the law speaks a language as

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absolute as in America, nor is there one where the right to apply the law is divided among so many hands.

Administrative power in the United States presents nothing either centralized or hierarchical in its constitution; that is why you do not see it. Power exists, but you do not know where to find its representative.

We saw above that the New England towns were not subordinate. So they take care of their own individual interests.

It is also the town magistrates who are usually charged with seeing to the execution of the general laws of the state or with executing them themselves.¹⁴

Apart from the general laws, the state sometimes makes general regulations concerning public order. But ordinarily it is the towns and the town officers who, jointly with the justices of the peace and according to the needs of the localities, regulate the details of social existence and promulgate prescriptions relating to public health, good order and the morality of citizens.¹⁵

Finally it is the municipal magistrates who, by themselves and without needing to wait for outside initiative, provide for the unexpected needs that societies often feel.^{e 16}

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As a result of what we have just said, administrative power in Massachusetts is almost entirely contained within the town;¹⁷ but it is divided there among many hands.

In the French town there is in fact only a single administrative official, the mayor.^f

We have seen that there were at least nineteen in the New England town.

The nineteen officers do not generally depend on each other. The law has carefully drawn a circle of action around each of these magistrates. Within this circle, they have all the power needed to fulfill the duties of their office and are not under any town authority.

If you look above the town, you see scarcely a trace of an administrative hierarchy. Sometimes county officials correct a decision made by the towns or by the town magistrates,¹⁸ but in general you can say that the administrators of the county do not have the right to direct the conduct of the administrators of the town.¹⁹ The former have authority over the latter only in things that concern the county.

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The town magistrates and those of the county are required, in a very small number of cases stipulated in advance, to report the result of their actions to the officers of the central government.²⁰ But the central government is not represented by one man charged with making general regulations concerning public order or ordinances for the execution of the laws, with communicating routinely with the administrators of the county and town, with examining their conduct, with directing their actions and punishing their mistakes.

So there is no center where the lines of administrative power come together.

Then how do you manage to run society according to a more or less uniform plan? How can counties and their administrators, towns and their officers be made to obey?^g

In the states of New England, the legislative power extends to more objects than with us. The legislator penetrates in a way to the very heart of the administration; the law gets into the smallest details. It simultaneously prescribes the principles and the means to apply them; thus it encloses the secondary bodies and their administrators within a multitude of strict and rigorously defined obligations.

As a result, if all the secondary bodies and all the officials follow the law, all parts of society proceed in a uniform way. But there still remains the

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question of knowing how the secondary bodies and their officials can be forced to follow the law.

In a general way you can say that society finds at its disposal only two means to force officials to obey the laws.

It can entrust to one of the officers the discretionary power to direct all the others and to remove them from office in case of disobedience.

Or it can charge the courts with imposing judicial penalties on those who break the law.^h

You are not always free to choose one or the other of these means.

The right of directing an official assumes the right to remove him from office, if he does not follow the orders given to him, or to promote him if he zealously fulfills all of his duties. Now, an elected magistrate can be neither removed nor promoted. Elective offices are by nature irrevocable until the end of the term. In reality, the elected magistrate has nothing either to hope or to fear except from the voters.^j So when all public offices result from election, there can be no true hierarchy among officials, since both the right to command and the right to quell disobedience effectively cannot be given to the same man; and the power to command cannot be joined with that of rewarding and punishing.

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People who introduce election into the secondary mechanisms of their government are therefore led necessarily to make heavy use of judicial penalties as a means of administration.

This is not obvious at first glance. Those who govern see making offices elective as a first concession, and submitting elected magistrates to the decisions of judges as a second concession. They dread these two innovations equally; and because they are requested to do the first more than the second, they grant the election of the official and leave him independent of the judge. One of these two measures, however, is the only counter balance that can be given to the other. We should be very careful about this; an elective power not submitted to a judicial power escapes sooner or later from all control or is destroyed. Between the central power and elected administrative bodies, only the courts can serve as an intermediary. They alone can force the elected official to obey without violating the right of the voter.

So in the political world, the extension of judicial power must be correlative with the extension of elective power. If these two things do not go together, the State ends by falling into anarchy or servitude.^k

It has been noted in all times that judicial habits prepared men rather poorly for the exercise of administrative power.

The Americans took from their fathers, the English, the idea of an institution that has no analogy whatsoever with what we know on the continent of Europe: the justices of the peace.

The justice of the peace holds a middle place between a public figure and the magistrate, administrator and judge. The justice of the peace is an enlightened citizen, but not necessarily one who is versed in knowledge of the laws. Consequently, he is charged only with keeping order in society, something that requires good sense and uprightness more than knowledge. The justice of the peace brings to administration, when he takes part in it, a certain taste for forms and for publicity that makes him a highly troublesome

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instrument to despotism. But he does not appear to be a slave to those legal superstitions that make magistrates^m little capable of governing.

The Americans appropriated the institution of justices of the peace, all the while removing the aristocratic character that distinguished it in the mother country.

The Governorⁿ of Massachusetts²¹ appoints, in all the counties, a certain number of justices of the peace, whose term in office lasts seven years.²²

Among these justices of the peace, moreover, he designates three of them who form in each county what is called the court of sessions.

The justices of the peace individually take part in public administration. Sometimes, along with the elected officials, they are charged with certain administrative acts;²³ sometimes they form a court before which the magistrates

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summarily charge the citizen who refuses to obey, or the citizen denounces the crimes of the magistrates. But it is in the court of sessions that the justices of the peace exercise the most important of their administrative functions.

The court of sessions meets twice a year at the county seat. In Massachusetts it is charged with upholding the obedience of most²⁴ of the public officials.²⁵

Careful attention must be paid to the fact that in Massachusetts the court of sessions is simultaneously an administrative body strictly speaking and a political court.

[≠The administrative and judicial functions of the court of sessions are so often confused in practice, that it is difficult to separate them even in theory. But it is useful to do so.

<The court of sessions has attributions of two kinds. It administers the county and ensures the administration of the towns.>≠]

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We said that the county²⁶ had only an administrative existence. It is the court of sessions by itself that is in charge of the small number of interests that relate to several towns at the same time or to all the towns of the county at once, interests that consequently cannot be entrusted to any single town in particular.

When it concerns the county, the duties of the court of sessions are therefore purely administrative, and if it often introduces judicial forms into its way of proceeding, it is only as a means to inform itself,²⁷ and as a guarantee given to the citizens. But when the administration of the towns must be ensured, the court of sessions almost always acts as a judicial body, and only in a few rare cases, as an administrative body.

The first difficulty that presents itself is making the town itself, a nearly independent power, obey the general laws of the state.

We have seen that each year the towns must appoint a certain number of magistrates who, as assessors, apportion taxes. A town tries to evade the obligation to pay the tax by not appointing the assessors. The court of sessions imposes a heavy fine.²⁸ The fine is raised by head on all the inhabitants. The county sheriff, officer of the law, executes the decision. In this way, in the United States, power seems eager to hide itself carefully from sight. Administrative command is almost always veiled there as a judicial mandate; as such it is only more powerful, having in its favor the almost irresistible strength that men grant to legal forms.

This procedure is easy to follow and is easily understood. What is required of the town is, in general, clear and defined; it consists of a simple and uncomplicated act, of a principle, and not a detailed application.²⁹ But

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the difficulty begins when it concerns securing the obedience, not of the town any longer, but of the town officers.

All the reprehensible actions that a public official can commit fall definitively into one of these categories:

He can do, without enthusiasm and without zeal, what the law requires of him.

He cannot do what the law requires of him.

Finally, he can do what the law forbids.

A court can get at the conduct of an official only in the last two cases. A positive and appreciable act is needed as grounds for judicial action.

Thus, if the selectmen fail to fulfill the formalities required by law in the case of town elections, they can be fined.³⁰

But when the public official fulfills his duty without intelligence, when he obeys the instructions of the law without enthusiasm and without zeal, he is entirely beyond the reach of a judicial body.

In this case, the court of sessions, even when vested with its administrative attributions, is impotent to force him to fulfill all of his obligations. Only fear of removal can prevent these quasi-failings; and the court of sessions does not hold within itself the source of town powers; it cannot remove officials that it does not appoint.^p

In order to make certain, moreover, that there is negligence or lack of zeal, the subordinate official would have to be put under constant supervision. Now, the court of sessions meets only twice a year; it does not conduct inspections; it judges only the reprehensible acts that are brought before it.

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Only the discretionary power to remove public officials can guarantee the kind of enlightened and active obedience on their part that judicial suppression cannot impose.

In France we seek this last guarantee in administrative hierarchy; in America, they seek it in election.

Thus to summarize in a few words what I have just explained:

Should the public official in New England commit a crime in the exercise of his duties, the ordinary courts are always called to bring him to justice.

Should he commit an administrative fault, a purely administrative court is charged with punishing him, and when the matter is serious or urgent the judge does what the official should have done.³¹

Finally, should the same official be guilty of one of those intangible failings that human justice can neither define nor assess, he appears annually before a tribunal from which there is no appeal, that can suddenly reduce him to impotence [{remove him from power without even telling him why}]. His power is lost with his mandate.

Certainly this system encompasses great advantages,^q but in its execution a practical difficulty is encountered that must be noted.

I have already remarked that the administrative tribunal that is called the court of sessions did not have the right to inspect the town magistrates; following a legal term, it can only act when it is apprised. But that is the delicate point of the system.

The Americans of New England have not established a public prosecutor attached to the court of sessions,³² and you must understand how

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difficult it would have been for them to establish one. If they had limited themselves to placing a prosecutor at each county seat, and if they had not given him agents in the towns, why would this magistrate have been more informed about what was happening in the county than the members of the court of sessions themselves? If he had been given agents in each town, the power most to be feared,^[*] that of administering through the courts, would have been centralized in his hands. Laws are, moreover, the daughters of habits, and nothing similar existed in English legislation.

So the Americans have divided, like all other administrative functions, the right of inspection and the right of complaint.

Under the terms of the law, the members of the grand jury must notify the court, to which they are attached, of crimes of all kinds that might be committed in their county.³³ There are certain great administrative crimes that the ordinary public prosecutor must pursue as a matter of course.³⁴ Most often, the obligation to have the offenders punished is imposed on the fiscal officer, charged with collecting the proceeds of the fine; thus the town treasurer is charged with pursuing most of the administrative crimes that are committed in his sight.

But above all, American legislation appeals to individual interest;³⁵ that is the great principle found constantly when you study the laws of the United States.

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American legislators show little confidence in human honesty; but they always assume an intelligent man. So most often they rely on personal interest for the execution of laws.

Indeed, when an individual is positively and presently hurt by an administrative crime, it is understood that personal interest guarantees the lodging of a complaint.

But it is easy to foresee that, if it concerns a legal prescription that has no utility felt by an individual at the moment, even though the legal prescription is useful to society, each person will hesitate to come forward as accuser. In this way, by a kind of tacit agreement, the laws could fall into disuse.

Thrown into this extremity by their system, the Americans are forced to interest informers by calling them in certain cases to share in the fines.³⁶

Dangerous measure that assures the execution of laws by debasing mores.

Above the county magistrates, there is truly no other administrative power, only a governmental power.

General Ideas on Administration in the United States

How the states of the Union differ among themselves, by the system of administration.—Town life less active and less complete

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as you move toward the south.—The power of the magistrate then becomes greater; that of the voter smaller.—Administration passes from the town to the county.—State of New York, Ohio, Pennsylvania.—Administrative principles applicable to all the Union.—Election of public officials or fixed term of their offices.—Absence of hierarchy.—Introduction of judicial means into the administration.

I previously announced that, after having examined in detail the constitution of the town and county in New England, I would cast a general glance over the rest of the Union.

There are towns and town life in each state; but in none of the confederated states do you find a town identical to the New England town.

As you move toward the south, you notice that town life becomes less active; the town has fewer magistrates, rights and duties; the population there does not exercise so direct an influence on town affairs; town meetings are less frequent and involve fewer matters. The power of the elected magistrate is therefore comparatively greater and that of the voter, smaller; town spirit there is less awake and less powerful.³⁷

You begin to see these differences in the state of New York; they are already very apparent in Pennsylvania; but they become less striking when you move toward the Northwest. Most of the emigrants who go to establish the states of the Northwest come from New England, and they bring the

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administrative habits of their mother land to their adopted country. The Ohio town has much in common with the Massachusetts town.

We have seen that in Massachusetts the principle of public administration is found in the town. The town is the center where the interests and affections of men converge. But it ceases to be so the more you move toward the states where enlightenment is less universally spread and where, consequently, the town offers fewer guarantees of wisdom and fewer elements of administration. So as you move away from New England, town life passes in a way to the county. The county becomes the great administrative center and forms the intermediate power between the [central] government and the ordinary citizens.

I said that in Massachusetts county matters were directed by the court of sessions. The court of sessions is made up of a certain number of magistrates appointed by the Governor and his council. The county has no representation, and its budget is voted by the national [sic: state] legislature.

In the large state of New York, on the contrary, in the state of Ohio and in Pennsylvania, the inhabitants of each county elect a certain number of deputies; these deputies meet together to form a representative county assembly.³⁸

The county assembly possesses, within certain limits, the right to tax the inhabitants; in this regard, it constitutes a true legislature. It simultaneously administers the county, directs the administration of the towns in several instances, and limits their powers much more strictly than in Massachusetts.^r

These are the principal differences presented by the constitution of the town and county in the various confederated states. If I wanted to get into

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the details of the means of execution, there are still many other dissimilarities that I could point out. But my goal is not to give a course in American administrative law.

I have said enough about it, I think, to make the general principles that administration in the United States rests upon understood. These principles are applied in different ways; they have more or less numerous consequences depending on the place; but fundamentally they are the same everywhere. The laws vary; their physiognomy changes; the same spirit animates them.

The town and county are not constituted in the same way everywhere; but you can say that everywhere in the United States the organization of the town and county rests on the same idea: that each person is the best judge of what concerns himself alone, and the one most able to provide for his individual needs. So the town and county are charged with looking after their special interests. The state governs and does not administer. Exceptions to this principle are found, but not a contrary principle.^s

The first consequence of this doctrine has been to have all the administrators^t of the town and county chosen by the inhabitants themselves, or at least to choose these magistrates exclusively from among the inhabitants.^[*]

[≠The second, to put into their hands the administration [v. direction] of nearly all the interests of the town and county.

The state has retained the power to impose laws on all the towns and counties, but it has not put into the hands of any official the power to direct the administration in a general way.≠]

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Since administrators everywhere are elected or at least irrevocable, the result has been that rules of hierarchy have not been able to be introduced anywhere. So there are nearly as many independent officials as offices. Administrative power finds itself scattered among a multitude of hands.

Since administrative hierarchy exists nowhere and administrators are elected and irrevocable until the end of their term, the obligation followed to introduce courts, more or less, into the administration. From that comes the system of fines, by means of which the secondary bodies and their representatives are forced to obey the law. This system is found from one end of the Union to the other.

The power of suppressing administrative crimes or of taking administrative actions as needed has not been granted, moreover, to the same judges in all the states.

The Anglo-Americans have drawn the institution of the justices of the peace from a common source; it is found in all the states. But they have not always taken advantage of it in the same way.

Everywhere the justices of the peace take part in the administration of the towns and counties,³⁹ either by administering them directly or by suppressing certain administrative crimes committed in them. But in most states, the most serious of these crimes are submitted to ordinary courts.

Election of administrative officials, or irremovability from office, lack of administrative hierarchy, and introduction of judicial measures into the government of society at the secondary level are, therefore, the principal

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characteristics by which American administration, from Maine to Florida, is recognized.^v

There are some states where signs of administrative centralization begin to be seen. The state of New York is the most advanced along this path.

In the state of New York, officials of the central government exercise, in certain cases, a kind of supervision and control over the conduct of the secondary bodies.⁴⁰ In certain other cases, they form a type of court of appeal for deciding matters.⁴¹ In the state of New York, judicial penalties

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are used less than elsewhere as an administrative measure. There, the right to bring proceedings against administrative crimes is also placed in fewer hands.⁴²

The same tendency is slightly felt in several other states.⁴³ But, in general, you can say that the salient characteristic of public administration in the United States is to be prodigiously decentralized.

Of the State

I have talked about the towns and about administration; I still have to talk about the state and about government.

Here, I can move faster without fear of being misunderstood; what I have to say is found all sketched out in written constitutions that anyone can easily obtain.⁴⁴ These constitutions rest on a simple and rational theory.

Most of the forms that they prescribe have been adopted by all peoples who have constitutions; they have therefore become familiar to us.

So I have only to do a brief overview here. Later I will try to judge what I am about to describe.

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Legislative Power of the State

Division of the legislative body into two houses.—Senate.—House of representatives.—Different attributions of these two bodies.

The legislative power of the state is entrusted to two assemblies; the first is generally called the senate.

The senate is normally a legislative body; but sometimes it becomes an administrative and judicial body.

It takes part in administration in several ways depending on the different constitutions;⁴⁵ but ordinarily it enters into the sphere of executive power by taking part in the choice of officials.

It participates in judicial power by judging certain political crimes and sometimes as well by ruling on certain civil actions.⁴⁶

Its members are always few in number.

The other branch of the legislature, usually called the house of representatives, participates in nothing related to administrative power, and takes part in judicial power only when accusing public officials before the senate.

The members of the two houses are subject almost everywhere to the same conditions of eligibility. Both are elected in the same way and by the same citizens.

The only difference that exists between them is due to the fact that the mandate of senators is generally longer than that of representatives. The second rarely remain in office more than a year; the first ordinarily hold their seats two or three years.

By granting senators the privilege of being named for several years, and by replacing them by cohort, the law has taken care to maintain, among the legislators, a nucleus of men, already used to public affairs, who can exercise a useful influence over the newcomers.

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So by the division of the legislative body into two branches, the Americans did not want to create one hereditary assembly and another elective one; they did not intend to make one into an aristocratic body, and the other into a representative of the democracy. Nor was their goal to make the first into a support for the governing power, while leaving the interests and passions of the people to the second.^y

To divide legislative power, to slow in this way the movement of political assemblies, and to create a court of appeal for the revision of laws, such are the only advantages that result from the current constitution of the two houses in the United States.

Time and experience have shown the Americans that, reduced to these advantages, the division of legislative powers is still a necessity of the first order.

Pennsylvania alone, among all the united republics, tried at first to establish a single assembly. Franklin himself, carried away by the logical consequences of the dogma of sovereignty of the people, had worked toward this measure. The law soon had to be changed and two houses established. The principle of the division of legislative power thus received its final consecration; henceforth then, the necessity to divide legislative activity among several bodies can be considered a demonstrated truth. This theory, more or less unknown in the ancient republics, introduced into the world almost by chance, like most great truths, misunderstood among several modern peoples, has finally passed as an axiom into the political science of today.^z

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Of the Executive Power of the State

What the Governor is in an American state.—What position he occupies vis-à-vis the legislature.—What his rights and duties are.—His dependency on the people.

The executive power of the state is represented by the Governor.^[*] [≠Not only is the Governor of each state an elected magistrate, but also he is generally elected only for a year; in this way he is tied by the shortest possible chain to the body from which he emanates.≠]

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It is not by chance that I have used the word represents. The Governor of the state in effect represents the executive power; but he exercises only some of its rights.

The supreme magistrate, who is called the Governor, is placed alongside the legislature as a moderator and adviser. He is armed with a qualified veto that allows him to stop or at least to slow the legislature’s movements as he wishes. To the legislative body, he sets forth the needs of the country and makes known the means that he judges useful to provide for those needs; for all enterprises that interest the entire nation [sic: state], he is the natural executor of its will.⁴⁷ In the absence of the legislature, he must take all proper measures to protect the state from violent shocks and unforeseen dangers.

The Governor combines in his hands all of the military power of the state. He is the commander of the militia and chief of the armed forces.

When the power of opinion, which men have agreed to grant to the law, is not recognized, the Governor advances at the head of the physical force of the state; he breaks down resistance and reestablishes customary order.

The Governor, moreover, does not get involved in the administration of the towns and counties, or at least he participates only very indirectly by the appointment of the justices of the peace whom he cannot thereafter remove.⁴⁸

The Governor is an elected magistrate. Care is even taken, generally, to elect him only for one or two years; in this way, he always remains narrowly dependent^a on the majority that created him.^b

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Of the Political Effects of Administrative Decentralization in the United States ^c

Distinction to establish between governmental centralization and administrative centralization.—In the United States, no

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administrative centralization, but very great governmental centralization.—Some unfortunate effects that result in the United States from the extreme administrative decentralization.—Administrative advantages of this order of things.—The force that administers society, less steady, less enlightened, less skillful, very much greater than in Europe.—Political advantages of the same order of things.—In the United States, country makes itself felt everywhere.—Support that the governed give to the government.—Provincial institutions more necessary as the social state becomes more democratic.—Why.

Centralization is a word repeated constantly today, and, in general, no one tries to clarify its meaning.

Two very distinct types of centralization exist, however, that are important to know well.

Certain interests are common to all parts of the nation, such as the formation of general laws and the relationships of the people with foreigners.

Other interests are special to certain parts of the nation, such as town enterprises, for example.

To concentrate in the same place or in the same hands the power to direct the first is to establish what I will call governmental centralization.^d

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To concentrate in the same way the power to direct the second is to establish what I will name administrative centralization.^e

There are points at which these two types of centralization merge. But by taking, as a whole, the matters that fall more particularly in the domain of each of them, we easily manage to distinguish them.^f

It is understood that governmental centralization acquires immense strength when it is joined with administrative centralization. In this way, it accustoms men to making a complete and continuous abstraction of their will, to obeying, not once and on one point, but in everything and every day. Then, not only does it subdue them by force, but also it captures them by their habits; it isolates them and then, within the common mass, catches hold of them, one by one.

These two types of centralization lend each other mutual aid, attract each other; but I cannot believe that they are inseparable.

Under Louis XIV, France saw the greatest governmental centralization that could be imagined, since the same man made general laws and had the power to interpret them, represented France to the outside world and acted in its name. L’Etat, c’est moi, he said; and he was right.^g

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Under Louis XIV, however, there was much less administrative centralization than today.^h

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In our time, we see a power, England, where governmental centralization is carried to a very high degree; the State there seems to move like a single man; at will, it rouses immense masses, gathers and delivers, wherever it wants, the utmost of its strength.

England, which has done such great things for the last fifty years, does not have administrative centralization.

For my part, I cannot imagine that a nation could live or, above all, prosper without strong governmental centralization.

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But I think that administrative centralization is suitable only to enervate the peoples who submit to it, because it constantly tends to diminish the spirit of citizenship in them.^j Administrative centralization, it is true, succeeds in gathering at a given time and in a certain place all the available forces of a nation, but it is harmful to the multiplication of those forces. It brings the nation victory on the day of battle and over time reduces its power. So it can work admirably toward the passing greatness of a man, not toward the lasting prosperity of a people.^k [<≠I see there an element of despotism, but not of lasting national strength [in pencil: that would be].≠>]

You must be very careful; when someone says that a State is unable to act because it has no centralization, he is, without knowing it, almost always talking about governmental centralization.^m The German empire, it is said repeatedly, has never been able to gain all that it possibly could from its forces. Agreed. But why? Because national force has never been centralized there; because the State has never been able to compel obedience to its general laws; because the separate parts of this great body have always had the right or the possibility to refuse their support to the agents of the common authority, even in what concerned all citizens; in other words, because there was no governmental centralization. The same remark applies to the Middle Ages. What produced all the miseries of feudal society was that the power, not only to administer, but also to govern, was divided among a thousand hands and fragmented in a thousand ways; the absence of any governmental centralization then prevented the nations of Europe from moving with energy toward any goal.

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[≠Moreover, like nearly all the harmful things of this world, administrative centralization is easily established and, once organized, can hardly ever be destroyed again except with the social body itself.ⁿ

When all the governmental force of a nation is gathered at one point, it is always easy enough for an enterprising genius to create administrative centralization. We ourselves have seen this phenomenon take place before our eyes. The Convention had centralized government to the highest degree, and Bonaparte needed only to will it in order to centralize the administration. It is true that for centuries in France our habits, mores and laws had always worked simultaneously toward the establishment of an intelligent and enlightened despotism.^[*]

Once administrative centralization has lasted for a time, should the power that established it sincerely desire to destroy it, that same power almost always finds itself unable to bring about its ruin.

In fact, administrative centralization assumes a skillful organization of authority; it forms a complicated machine in which all the gears fit together and offer mutual support.

When the law-maker undertakes to scatter this administrative power that he has concentrated in a single place, he does not know where to begin, because he cannot remove one piece of the mechanism without disrupting the whole thing. At each moment, he sees that either nothing must be changed or everything; but what hand, so foolhardy, would dare to smash with one blow the administrative machinery of a great people?

To attempt it would be to invite disorder and confusion into the State.

The art of administration is assuredly a science, and peoples do not have more innate knowledge than individuals do. Delivered to itself without any transition, society would almost entirely cease to be administered.

Moreover, one of the greatest misfortunes of despotism is that it creates in the soul of the men submitted to it a kind of depraved taste for tranquillity and obedience, a sort of self-contempt, that ends by making them

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indifferent to their interests and enemies of their own rights. In nothing, however, is it more necessary for the governed themselves to show a definite and sustained will.

Nearly all the passionate and ambitious men who talk about centralization lack a real desire to destroy it. What happened to the Praetorians happens to them; they willingly suffer the tyranny of the emperor in the hope of gaining the empire. So decentralization, like liberty, is something that the leaders of the people promise, but that they never deliver. In order to gain and keep it, nations can count only on their own efforts; and if they themselves do not have a taste for it, the evil is without remedy.

Surprisingly, the same corporations, in whose name the power of self-administration has been passionately claimed, are often seen to accept without enthusiasm the portion of power granted to them and to show themselves almost eager to lay it down again, like a useless and heavy burden.≠]^o

We have seen that in the United States no administrative centralization existed. Scarcely a trace of hierarchy is found there. Decentralization there has been carried to a point that no European nation could bear, I think, without a profound uneasiness, and that, even in America, produces unfortunate effects. But, in the United States, governmental centralization exists to the highest degree. It would be easy to prove that national [sic: state] power is more concentrated there than it has been in any of the old monarchies of Europe. Not only is there just a single body in each state that makes laws; not only is there just a single power able to create political life around it; but in general, the Americans have avoided bringing together numerous district or county assemblies for fear that these assemblies would be tempted to move beyond their administrative attributions and hinder the movement of the government. In America the legislature of each state is faced by no power capable of resisting it. Nothing can stop it in its tracks, neither privileges, nor local immunity, nor personal influence, not even the authority of reason, for it represents the majority that claims to be the only

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instrument of reason. So it has no limit to its action other than its own will. Next to it and close at hand is found the representative of the executive power who, with the aid of physical force, has to compel the discontent to obey.^p

Weakness is found only in certain details of governmental action.

The American republics do not have a permanent armed force to suppress minorities, but up to now minorities there have never been reduced to starting a war; and the need for an army has not yet been felt.^q Most often, the state uses town or county officials to act upon the citizens. Thus, for example, in New England, it is the town assessor who apportions the tax; the town tax collector levies it; the town treasurer makes sure that the tax revenue goes into the public treasury; and complaints that arise are submitted to the ordinary courts. Such a way to collect taxes is slow and awkward; at every instant it would hinder the movement of a government that had great pecuniary needs. In general, for everything essential to its existence,

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you would want the government to have officials of its own, chosen and removable by it, and to have ways to move ahead rapidly; but it will always be easy for the central power, organized as it is in America, to introduce more energetic and effective means of action, as needed.^[*]

So it is not, as is often repeated, because there is no centralization in the United States, that the republics of the New World will perish.^r It can be asserted that the American governments, very far from not being centralized enough, are centralized too much; I will prove it later. Each day the legislative assemblies devour some of the remains of governmental powers; they tend to gather them all unto themselves, just as the Convention did.^s The social power, thus centralized, constantly changes hands, because it is subordinate to popular power. Often it happens to lack wisdom and foresight, because it can do everything. That is where the danger to it is found. So it is because of its very strength, and not as a result of its weakness, that the social power is threatened with perishing one day.^t

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Administrative decentralization produces several diverse effects in America.

We have seen that the Americans had almost entirely isolated administration from government; in that, they seem to me to have gone beyond the limits of healthy reason, because order, even in secondary things, is still a national interest.⁴⁹

The state has no administrative officials of its own, who are placed in permanent posts at different points of the territory and to whom it can give a common impulse; the result is that it rarely attempts to establish general rules of public order. Now, the need for these rules makes itself sharply felt. The European often notices their absence. This appearance of disorder, which reigns on the surface, persuades him, at first view, that there is complete anarchy in the society; it is only by examining things in depth that he corrects his error.

[This absence of national (v: central) administration often prevents the different states from engaging in certain undertakings of a general interest, the execution of which would present great difficulties if handed over to the localities and left to temporary and special agents. Besides, it is always to be feared that, without a permanent authority to centralize and supervise, the work, once done, might self-destruct.

As for differences that would make themselves felt between the administrative principles of one portion of the territory and those of another, differences that would be very great in Europe are not noticeable in America. The states are not so vast as to present examples; and above all, their population is too perfectly homogeneous and too enlightened for these differences to be lasting. All the counties, moreover, are forced to obey general laws that are the same for each of them.

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≠I recognize as well that in America the views that direct the administration are rarely permanent. It is difficult to decentralize administrative power without putting a portion of it back into the hands of the people; and the people never proceed except by momentary efforts and sudden impulses.

I come to the great objection that has been made from time immemorial to the system of administrative decentralization, the objection that encompass [sic] all of the others.≠

The partisans of centralization in Europe …]

Certain enterprises interest the entire state and yet cannot be carried out because there is no national [sic: state] administration to direct them. Abandoned to the care of the towns and counties, left to elected and temporary agents, they lead to no result or produce nothing lasting.

The partisans of centralization in Europe maintain that governmental power administers the localities better than they would be able to administer themselves. Perhaps that is true, when the central power is enlightened, and the localities are not; when it is active, and they are passive; when it is in the habit of taking action, and they are in the habit of obeying. You can even understand that the more centralization increases, the more this double tendency grows; and the capacity of the one and incapacity of the other become more striking.

But I deny that this is so when the people are enlightened, alert to their interests, and accustomed to consider them as they do in America.

I am persuaded, on the contrary, that in this case the collective strength of the citizens will always be more powerful for producing social well-being than the authority of the government.

I admit that it is difficult to indicate with certainty how to awaken a people who are asleep, how to give them the passions and enlightenment that they lack. To persuade men that they should take charge of their own affairs is, I am aware, a difficult enterprise. Often it would be less awkward to interest them in the details of court etiquette than in the repair of their town hall [{and I would conclude, if you want, that there are certain nations [v: peoples] who cannot do without despotism.}].

But I also think that when the central administration claims to replace

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completely the free participation of those who have the primary interest, it is mistaken or wants to deceive you.

A central power, as enlightened, as skillful as can be imagined, cannot by itself encompass all the details of the life of a great people. It cannot, because such a task exceeds human power. When, on its own, it wants to create and put into operation so many different mechanisms, it either contents itself with a very incomplete result or exhausts itself in useless efforts.

Centralization easily manages, it is true, to subject the outward actions of men to a certain uniformity that is ultimately loved for itself, apart from the things to which it is applied; like the devout who worship the statue, forgetting the divinity it represents. Centralization succeeds without difficulty in imparting a steady appearance to everyday affairs; in skillfully dictating the details of social order; in suppressing slight disturbances and small transgressions; in maintaining society in a status quo which is not exactly either decadence or progress; in keeping a kind of administrative somnolence in the social body that administrators customarily call good order and public tranquillity.⁵⁰ In a word, it excels at preventing, not at doing. When it is a matter of profoundly shaking society or moving it rapidly, centralization loses its strength. As soon as its measures need the support of individuals, you are totally surprised by the weakness of this immense machine; it suddenly finds itself reduced to impotence.

Then sometimes centralization, in desperation, tries to call citizens to its aid. But it says to them: “You will act as I want, as long as I want, and exactly in the way that I want. You will take charge of these details without aspiring to direct the whole; you will work in the shadows, and later you will judge my work by its results.” Under such conditions you do not gain the support

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of human will, which requires liberty in its ways, responsibility in its actions. Man is made so that he prefers remaining immobile to moving without independence toward an unknown end.^u

[During the almost forty years that we in France have completed the system of administrative centralization, what great improvement has been introduced into the state of the civilization of the people? Who would compare our social progress to that of the English during the same period? But, centralization does not exist in England.]

I will not deny that in the United States you often regret the lack of those uniform rules that seem constantly to watch over each of us.

From time to time, great examples of unconcern and of social negligence are found there. Here and there crude blemishes appear that seem completely at odds with the surrounding civilization.

Useful undertakings that require constant care and rigorous exactitude in order to succeed often end up being abandoned; for in America, as elsewhere, the people proceed by momentary efforts and sudden impulses.^v

The European, accustomed to finding an official constantly at hand who gets involved in nearly everything, becomes used to these different mechanisms of town administration with difficulty. In general it can be said that the small details of social order that make life pleasant and easy are neglected in America; but the guarantees essential to man in society exist there as much as everywhere else. Among the Americans, the force that administers the State is much less stable, less enlightened, less skillful, but is one hundred times greater than in Europe. When all is said and done, there is no country in the world where men make as many efforts to create social well-being. I know of no people who have managed to establish schools so numerous and so effective; churches more appropriate to the religious needs of the inhabitants; town roads better maintained. So, in the United States, do not look for uniformity and permanence of views, minute attention to

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details, perfection in administrative procedures.⁵¹ What is found there is the image of strength, a little wild, it is true, but full of power; of life, accompanied by accidents, but also by activities and efforts.^x

I will admit, moreover, if you want, that the villages and counties of the United States would be administered more profitably by a central authority that was located far from them and remained unknown to them, than by officials drawn from within. I will acknowledge, if you insist, that more security would reign in America, that wiser and more judicious use of social resources would be made there, if the administration of the entire country were concentrated in a single hand. The political advantages that the Americans gain from the system of decentralization would still make me prefer it to the opposite system.

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So what, after all, if there is an authority always at the ready, [{that muzzles dogs [v: waters public walkways] during the heat wave, that breaks up river ice during the winter}] that makes sure that my pleasures are peaceful, that flies before my steps to turn all dangers aside without the need for me even to think about them; if this authority, at the same time that it removes the smallest thorn from my route, is absolute master of my liberty and life; if it monopolizes movement and existence to such a degree that everything around it must languish when it languishes, sleep when it sleeps, perish if it dies?

There are such nations in Europe where the inhabitant considers himself a sort of settler, indifferent to the destiny of the place where he lives. The greatest changes occur in his country without his participation; he does not even know precisely what happened; he surmises; he has heard about the event by chance. Even more, the fortune of his village, the policing of his street, the fate of his church and his presbytery have nothing to do with him; he thinks that all these things are of no concern to him whatsoever, and that they belong to a powerful stranger called the government. [v: At each moment, you think you hear him say: what concern is this to me; it is the business of the authorities to provide for all of this, not mine.] As for him, he enjoys these benefits like a usufructuary, without a sense of ownership and without ideas of any improvement whatsoever. This disinterestedness in himself goes so far that if his own security or that of his children is finally compromised, instead of working himself to remove the danger, he crosses his arms to wait until the entire nation comes to his aid. Moreover, this man, even though he has so completely sacrificed his own free will, likes to obey no more than anyone else. He submits, it is true, to the will of a clerk; but, like a defeated enemy, he likes to defy the law as soon as power withdraws. Consequently, you see him oscillate constantly between servitude and license.

When nations have reached this point, they must modify their laws and mores or perish, for the source of public virtues has dried up; subjects are still found there, but citizens are seen no more.

I say that such nations are prepared for conquest. If they do not vanish from the world stage, it is because they are surrounded by similar or inferior nations. It is because within them there still remains a kind of indefinable

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patriotic instinct, I do not know what unthinking pride in the name that the nation carries. It is because there still remains I do not know what vague memory of past glory, not precisely linked to anything, but enough to impart an impulse of preservation as needed.

You would be wrong to reassure yourself by thinking that certain peoples have made prodigious efforts to defend a native land where, so to speak, they lived as strangers. Be very careful here, and you will see that in that case religion was almost always their principal motive.

For them, the duration, glory or prosperity of the nation had become sacred dogmas, and by defending their native land, they also defended this holy city in which they were all citizens.

The Turkish populations have never taken any part in the direction of the affairs of society; they accomplished immense enterprises, however, as long as they saw the triumph of the religion of Mohammed in the conquests of the Sultans. Today religion is disappearing; despotism alone remains for them; they are in decline.^y

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Montesquieu, by giving despotism a strength of its own, gave it, I think, an honor that it did not deserve. Despotism, all by itself, can sustain nothing lasting. When you look closely, you notice that what made absolute governments prosper for a long time was religion, and not fear.

No matter what, you will never find true power among men except in the free participation of wills.^z Now, in the world, only patriotism or religion

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can make the totality of citizens march for long toward the same goal.

It does not depend on the laws to revive beliefs that are fading; but it does depend on the laws to interest men in the destinies of their country. It depends on the laws to awaken and to direct that vague patriotic instinct that never leaves the human heart, and, by linking it to thoughts, passions, daily habits, to make it into a thoughtful and lasting sentiment. And do not say that it is too late to try; nations do not grow old in the same way that men do. Each generation born within the nation is like a new people who comes to offer itself to the hand of the law-maker.

What I admire most in America are not the administrative effects of decentralization, but its political effects. In the United States, country makes itself felt everywhere. It is an object of solicitude from the village to the whole Union. The inhabitant becomes attached to each of the interests of his country as to his very own. He glories in the glory of the nation; in the successes that it achieves, he believes that he recognizes his own work, and he rises with them; he rejoices in the general prosperity that benefits him. For his country, he has a sentiment analogous to that you feel for your family, and it is even by a kind of egoism that he is interested in the State.

Often the European sees in the public official only force; the American sees the law. So it can be said that in America, a man never obeys a man, but obeys justice or the law.

Consequently, he has conceived an often exaggerated, but almost always salutary opinion of himself. Without fear, he relies on his own powers that seem to him all sufficient. An individual conceives the idea of some enterprise; even if this enterprise has some direct connection with the well-being of society, it does not occur to him to address himself to public authority to gain its support. He makes his plan known, offers to carry it out, calls other individual powers to his aid, and struggles hand-to-hand against all obstacles. Often, doubtlessly, he succeeds less than if the State took his place; but in the long run the general result of all of these individual undertakings surpasses by a great deal what the government would be able to accomplish.^a

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Since administrative authority is placed next to the administered, and in a way represents them, it excites neither jealousy nor hate. Since its means of action are limited, each person feels that he cannot rely on it alone.

So when the administrative power intervenes within the circle of its attributions, it does not find itself alone, as in Europe. No one believes that the duties of individuals have ceased because the public representative happens to act. On the contrary, each person guides, supports and sustains him.

By joining the action of individual powers with the action of social powers, you often succeed in doing what the most concentrated and energetic administration would be unable to carry out.^I

I could cite many facts to support what I am advancing; but I prefer to present only one and to choose the one I know best.

In America, the means put at the disposal of authority to uncover crimes and to pursue criminals are few.

Police control does not exist; passports are unknown. Officers of the court in the United States cannot be compared to ours. The agents of the public prosecutor’s office are few; [they do not communicate with each other;] they do not always have the right to initiate legal proceedings; preliminary investigation is rapid and oral. I doubt, however, that, in any country, crime as rarely escapes punishment.

The reason for it is that everyone believes himself interested in providing proof of the crime and in catching the offender.

I saw, during my stay in the United States, the inhabitants of a county, where a great crime had been committed, spontaneously form committees for the purpose of pursuing the guilty party and delivering him to the courts.

In Europe, the criminal is an unfortunate who is fighting to hide from the agents of power; the population in a way helps in the struggle. In America, he is an enemy of the human species, and he has all of humanity against him.

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I believe provincial institutions useful to all peoples; but none seems to me to have a more real need for these institutions than the one whose social state is democratic.

In an aristocracy, a certain order is sure to be maintained in the midst of liberty.

Since those who govern have a great deal to lose, order has a great interest for them.

In an aristocracy, it can be said as well that the people are sheltered from the excesses of despotism, because organized forces are always found, ready to resist the despot.

A democracy without provincial institutions possesses no guarantee against similar evils.

How can a multitude that has not learned how to make use of liberty in small things, be made to support it in larger ones?

How to resist tyranny in a country where each individual is weak, and where individuals are united by no common interest?

So those who are afraid of license and those who fear absolute power must equally desire the gradual development of provincial liberties.^b

I am convinced, moreover, that there are no nations more at risk of falling under the yoke of administrative centralization than those whose social state is democratic.

Several causes lead to this result, but among others, these:

The permanent tendency of these nations is to concentrate all governmental power in the hands of the single power that directly represents the people, because, beyond the people, nothing more is seen except equal individuals merged into a common mass.

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Now, when the same power is already vested with all the attributes of government, it is highly difficult for it not to try to get into the details of administration [{so you often see democratic peoples simultaneously establish liberty and the instruments of despotism}]; and it hardly ever fails to find eventually the opportunity to do so. We have witnessed it among ourselves.

[≠If we shift our view to times closer to us, we see a strange confusion prevailing in most of the States of Europe. Kings descend into the administration of {the narrowest communal interests}.≠]^c

In the French Revolution,^d there were two opposing movements that must not be confused: one favorable to liberty, the other favorable to despotism.^e

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In the old monarchy, the King alone made the law.

Below the sovereign power were found some remnants, half destroyed, of provincial institutions. These provincial institutions were incoherent, poorly ordered, often absurd. In the hands of the aristocracy, they had sometimes been instruments of oppression.

The Revolution has declared itself against royalty and provincial institutions at the same time. It has mingled in the same hatred all that had preceded it, absolute power and what could temper its rigors; it has been simultaneously republican and centralizing.

This double character of the French Revolution is a fact that the friends of absolute power have laid hold of with great care. When you see them defend administrative centralization, do you think that they are working in favor of despotism? Not at all; they are defending one of the great conquests of the Revolution.^K In this way, they can remain a man of the people and an enemy of the rights of the people, secret servant of tyranny, and declared friend of liberty.^f

I have visited the two nations that have developed the system of provincial liberties to the highest degree, and I have heard the voice of the parties dividing these nations.

In America, I found men who secretly longed to destroy the democratic institutions of their country. In England, I found others who openly attacked the aristocracy; I did not meet a single one who did not view provincial liberty as a great good.^g

In these two countries, I saw the ills of the State imputed to an infinity of diverse causes, but never to town liberty.

I heard citizens attribute the greatness or the prosperity of their native land to a multitude of reasons; but I heard all of them put provincial liberty in the first rank and list it at the head of all the other advantages.

When men, who are naturally so divided that they do not agree on either religious doctrines or on political theories, fall into agreement on a single

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fact, a fact that they can best judge, since it occurs everyday before their eyes, am I to believe that this fact might be wrong?

Only peoples who have only a few or no provincial institutions deny their utility; that is, only those who do not know the thing at all, speak ill of it.