DEMOCRACY IN AMERICA
by Alexis de Tocqueville
Translated by Henry Reeve
Vol. One / Chapters 14 - 16
Chapter XIV WHAT ARE THE REAL ADVANTAGES WHICH AMERICAN SOCIETYDERIVES FROM A DEMOCRATIC GOVERNMENT
BEFORE entering upon the present chapter I must remind the reader of what I have more than once observed in this book. The political Constitution of the United States appears to me to be one of the forms of government that a democracy may adopt; but I do not regard the American Constitution as the best, or as the only one, that a democratic people may establish. In showing the advantages which the Americans derive from the government of democracy, I am therefore very far from affirming, or believing, that similar advantages can be obtained only from the same laws.
GENERAL TENDENCY OF THE LAWS UNDER AMERICAN DEMOCRACY, AND INSTINCTS OF THOSE WHO APPLY THEM. Defects of a democratic government easy to be discovered--Its advantages discerned only by long observation--Democracy in America often inexpert, but the general tendency of the laws is advantageous--In the American democracy public officers have no permanent interests distinct from those of the majority--Results of this state of things.
THE defects and weaknesses of a democratic government may readily be discovered; they can be proved by obvious facts, whereas their healthy influence becomes evident in ways which are not obvious and are, so to speak, hidden. A glance suffices to detect its faults, but its good qualities can be discerned only by long observation. The laws of the American democracy are frequently defective or incomplete; they sometimes attack vested rights, or sanction others which are dangerous to the community; and even if they were good, their frequency would still be a great evil. How comes it, then, that the American republics prosper and continue?
In the consideration of laws a distinction must be carefully observed between the end at which they aim and the means by which they pursue that end; between their absolute and their relative excellence. If it be the intention of the legislator to favor the interests of the minority at the expense of the majority, and if the measures he takes are so combined as to accomplish the object he has in view with the least possible expense of time and exertion, the law may be well drawn up although its purpose is bad; and the more efficacious it is, the more dangerous it will be.
Democratic laws generally tend to promote the welfare of the greatest possible number; for they emanate from the majority of the citizens, who are subject to error, but who cannot have an interest opposed to their own advantage. The laws of an aristocracy tend, on the contrary, to concentrate wealth and power in the hands of the minority; because an aristocracy, by its very nature, constitutes a minority. It may therefore be asserted, as a general proposition, that the purpose of a democracy in its legislation is more useful to humanity than that of an aristocracy. This, however, is the sum total of its advantages.
Aristocracies are infinitely more expert in the science of legislation than democracies ever can be. They are possessed of a selfcontrol that protects them from the errors of temporary excitement; and they form far-reaching designs, which they know how to mature till a favorable opportunity arrives. Aristocratic government proceeds with the dexterity of art; it understands how to make the collective force of all its laws converge at the same time to a given point. Such is not the case with democracies, whose laws are almost always ineffective or inopportune. The means of democracy are therefore more imperfect than those of aristocracy, and the measures that it unwittingly adopts are frequently opposed to its own cause; but the object it has in view is more useful.
Let us now imagine a community so organized by nature or by its constitution that it can support the transitory action of bad laws, and that it can await, without destruction, the general tendency of its legislation: we shall then conceive how a democratic government, notwithstanding its faults, may be best fitted to produce the prosperity of this community. This is precisely what has occurred in the United States; and I repeat, what I have before remarked, that the great advantage of the Americans consists in their being able to commit faults which they may afterwards repair.
An analogous observation may be made respecting public officers. It is easy to perceive that American democracy frequently errs in the choice of the individuals to whom it entrusts the power of the administration; but it is more difficult to say why the state prospers under their rule. In the first place, it is to be remarked that if, in a democratic state, the governors have less honesty and less capacity than elsewhere, the governed are more enlightened and more attentive to their interests. As the people in democracies are more constantly vigilant in their affairs and more jealous of their rights, they prevent their representatives from abandoning that general line of conduct which their own interest prescribes. In the second place, it must be remembered that if the democratic magistrate is more apt to misuse his power, he possesses it for a shorter time. But there is yet another reason which is still more general and conclusive. It is no doubt of importance to the welfare of nations that they should be governed by men of talents and virtue; but it is perhaps still more important for them that the interests of those men should not differ from the interests of the community at large; for if such were the case, their virtues might become almost useless and their talents might be turned to a bad account. I have said that it is important that the interests of the persons in authority should not differ from or oppose the interests of the community at large; but I do not insist upon their having the same interests as the whole population, because I am not aware that such a state of things ever existed in any country.
No political form has hitherto been discovered that is equally favorable to the prosperity and the development of all the classes into which society is divided. These classes continue to form, as it were, so many distinct communities in the same nation; and experience has shown that it is no less dangerous to place the fate of these classes exclusively in the hands of any one of them than it is to make one people the arbiter of the destiny of another. When the rich alone govern, the interest of the poor is always endangered, and when the poor make the laws, that of the rich incurs very serious risks. The advantage of democracy does not consist, therefore, as has sometimes been asserted, in favoring the prosperity of all, but simply in contributing to the well-being of the greatest number. The men who are entrusted with the direction of public affairs in the United States are frequently inferior, in both capacity and morality, to those whom an aristocracy would raise to power. But their interest is identified and mingled with that of the majority of their fellow citizens. They may frequently be faithless and frequently mistaken, but they will never systematically adopt a line of conduct hostile to the majority; and they cannot give a dangerous or exclusive tendency to the government.
The maladministration of a democratic magistrate, moreover, is an isolated fact, which has influence only during the short period for which he is elected. Corruption and incapacity do not act as common interests which may connect men permanently with one another. A corrupt or incapable magistrate will not combine his measures with another magistrate simply because the latter is as corrupt and incapable as himself; and these two men will never unite their endeavors to promote the corruption and inaptitude of their remote posterity. The ambition and the maneuvers of the one will serve, on the contrary, to unmask the other. The vices of a magistrate in democratic states are usually wholly personal.
But under aristocratic governments public men are swayed by the interest of their order, which, if it is sometimes confused with the interests of the majority, is very frequently distinct from them. This interest is the common and lasting bond that unites them; it induces them to coalesce and combine their efforts to attain an end which is not always the happiness of the greatest number; and it serves not only to connect the persons in authority with one another, but to unite them with a considerable portion of the community, since a numerous body of citizens belong to the aristocracy without being invested with official functions. The aristocratic magistrate is therefore constantly supported by a portion of the community as well as by the government of which he is a member.
The common purpose which in aristocracies connects the interest of the magistrates with that of a portion of their contemporaries identifies it also with that of future generations; they labor for the future as well as for the present. The aristocratic magistrate is urged at the same time towards the same point by the passions of the community, by his own, and, I may almost add, by those of his posterity. Is it, then, wonderful that he does not resist such repeated impulses? And, indeed, aristocracies are often carried away by their class spirit without being corrupted by it; and they unconsciously fashion society to their own ends and prepare it for their own descendants.
The English aristocracy is perhaps the most liberal that has ever existed, and no body of men has ever, uninterruptedly, furnished so many honorable and enlightened individuals to the government of a country. It cannot escape observation, however, that in the legislation of England the interests of the poor have often been sacrificed to the advantages of the rich, and the rights of the majority to the privileges of a few. The result is that England at the present day combines the extremes of good and evil fortune in the bosom of her society; and the miseries and privations of her poor almost equal her power and renown.
In the United States, where public officers have no class interests to promote, the general and constant influence of the government is beneficial, although the individuals who conduct it are frequently unskillful and sometimes contemptible. There is, indeed, a secret tendency in democratic institutions that makes the exertions of the citizens subservient to the prosperity of the community in spite of their vices and mistakes; while in aristocratic institutions there is a secret bias which, notwithstanding the talents and virtues of those who conduct the government, leads them to contribute to the evils that oppress their fellow creatures. In aristocratic governments public men may frequently do harm without intending it; and in democratic states they bring about good results of which they have never thought.
PUBLIC SPIRIT IN THE UNITED STATES. Instinctive patriotism--Patriotism of reflection--Their different characteristics--Nations ought to strive to acquire the second when the first has disappeared--Efforts of the Americans to acquire it--Interest of the individual intimately connected with that of the country.
THERE is one sort of patriotic attachment which principally arises from that instinctive, disinterested, and undefinable feeling which connects the affections of man with his birthplace. This natural fondness is united with a taste for ancient customs and a reverence for traditions of the past; those who cherish it love their country as they love the mansion of their fathers. They love the tranquillity that it affords them; they cling to the peaceful habits that they have contracted within its bosom; they are attached to the reminiscences that it awakens; and they are even pleased by living there in a state of obedience. This patriotism is sometimes stimulated by religious enthusiasm, and then it is capable of making prodigious efforts. It is in itself a kind of religion: it does not reason, but it acts from the impulse of faith and sentiment. In some nations the monarch is regarded as a personification of the country; and, the fervor of patriotism being converted into the fervor of loyalty, they take a sympathetic pride in his conquests, and glory in his power. power was a time under the ancient monarchy when the French felt a sort of satisfaction in the sense of their dependence upon the arbitrary will of their king; and they were wont to say with pride: "We live under the most powerful king in the world."
But, like all instinctive passions, this kind of patriotism incites great transient exertions, but no continuity of effort. It may save the state in critical circumstances, but often allows it to decline in times of peace. While the manners of a people are simple and its faith unshaken, while society is steadily based upon traditional institutions whose legitimacy has never been contested, this instinctive patriotism is wont to endure.
But there is another species of attachment to country which is more rational than the one I have been describing. It is perhaps less generous and less ardent, but it is more fruitful and more lasting: it springs from knowledge; it is nurtured by the laws, it grows by the exercise of civil rights; and, in the end, it is confounded with the personal interests of the citizen. A man comprehends the influence which the well-being of his country has upon his own; he is aware that the laws permit him to contribute to that prosperity, and he labors to promote it, first because it benefits him, and secondly because it is in part his own work.
But epochs sometimes occur in the life of a nation when the old customs of a people are changed, public morality is destroyed, religious belief shaken, and the spell of tradition broken, while the diffusion of knowledge is yet imperfect and the civil rights of the community are ill secured or confined within narrow limits. The country then assumes a dim and dubious shape in the eyes of the citizens; they no longer behold it in the soil which they inhabit, for that soil is to them an inanimate clod; nor in the usages of their forefathers, which they have learned to regard as a debasing yoke; nor in religion, for of that they doubt; nor in the laws, which do not originate in their own authority; nor in the legislator, whom they fear and despise. The country is lost to their senses; they can discover it neither under its own nor under borrowed features, and they retire into a narrow and unenlightened selfishness. They are emancipated from prejudice without having acknowledged the empire of reason; they have neither the instinctive patriotism of a monarchy nor the reflecting patriotism of a republic; but they have stopped between the two in the midst of confusion and distress.
In this predicament to retreat is impossible, for a people cannot recover the sentiments of their youth any more than a man can return to the innocent tastes of childhood; such things may be regretted, but they cannot be renewed. They must go forward and accelerate the union of private with public interests, since the period of disinterested patriotism is gone by forever.
I am certainly far from affirming that in order to obtain this result the exercise of political rights should be immediately granted to all men. But I maintain that the most powerful and perhaps the only means that we still possess of interesting men in the welfare of their country is to make them partakers in the government. At the present time civic zeal seems to me to be inseparable from the exercise of political rights; and I think that the number of citizens will be found to augment or decrease in Europe in proportion as those rights are extended.
How does it happen that in the United States, where the inhabitants have only recently immigrated to the land which they now occupy, and brought neither customs nor traditions with them there; where they met one another for the first time with no previous acquaintance; where, in short, the instinctive love of country can scarcely exist; how does it happen that everyone takes as zealous an interest in the affairs of his township, his county, and the whole state as if they were his own? It is because everyone, in his sphere, takes an active part in the government of society.
The lower orders in the United States understand the influence exercised by the general prosperity upon their own welfare; simple as this observation is, it is too rarely made by the people. Besides, they are accustomed to regard this prosperity as the fruit of their own exertions. The citizen looks upon the fortune of the public as his own, and he labors for the good of the state, not merely from a sense of pride or duty, but from what I venture to term cupidity.
It is unnecessary to study the institutions and the history of the Americans in order to know the truth of this remark, for their manners render it sufficiently evident. As the American participates in all that is done in his country, he thinks himself obliged to defend whatever may be censured in it; for it is not only his country that is then attacked, it is himself. The consequence is that his national pride resorts to a thousand artifices and descends to all the petty tricks of personal vanity.
Nothing is more embarrassing in the ordinary intercourse of life than this irritable patriotism of the Americans. A stranger may be well inclined to praise many of the institutions of their country, but he begs permission to blame some things in it, a permission that is inexorably refused. America is therefore a free country in which, lest anybody should be hurt by your remarks, you are not allowed to speak freely of private individuals or of the state, of the citizens or of the authorities, of public or of private undertakings, or, in short, of anything at all except, perhaps, the climate and the soil; and even then Americans will be found ready to defend both as if they had co-operated in producing them.
In our times we must choose between the patriotism of all and the government of a few; for the social force and activity which the first confers are irreconcilable with the pledges of tranquillity which are given by the second.
THE IDEA OF RIGHTS IN THE UNITED STATES. No great people without an idea of right--How the idea of right can be given to a people--Respect for right in the United States--Whence it arises.
After the general idea of virtue, I know no higher principle than that of right; or rather these two ideas are united in one. The idea of right is simply that of virtue introduced into the political world. It was the idea of right that enabled men to define anarchy and tyranny, and that taught them how to be independent without arrogance and to obey without servility. The man who submits to violence is debased by his compliance; but when he submits to that right of authority which he acknowledges in a fellow creature, he rises in some measure above the person who gives the command. There are no great men without virtue; and there are no great nations--it may almost be added, there would be no society--without respect for right; for what is a union of rational intelligent beings who are held together only by the bond of force?
I am persuaded that the only means which we possess at the present time of inculcating the idea of right and of rendering it, as it were, palpable to the senses is to endow all with the peaceful exercise of certain rights; this is very clearly seen in children, who are men without the strength and the experience of manhood. When a child begins to move in the midst of the objects that surround him, he is instinctively led to appropriate to himself everything that he can lay his hands upon; he has no notion of the property of others, but as he gradually learns the value of things and begins to perceive that he may in his turn be despoiled, he becomes more circumspect, and he ends by respecting those rights in others which he wishes to have respected in himself. The principle which the child derives from the possession of his toys is taught to the man by the objects which he may call his own. In America, the most democratic of nations, those complaints against property in general, which are so frequent in Europe, are never heard, because in America there are no paupers. As everyone has property of his own to defend, everyone recognizes the principle upon which he holds it.
The same thing occurs in the political world. In America, the lowest classes have conceived a very high notion of political rights, because they exercise those rights; and they refrain from attacking the rights of others in order that their own may not be violated. While in Europe the same classes sometimes resist even the supreme power, the American submits without a murmur to the authority of the pettiest magistrate.
This truth appears even in the trivial details of national life. In France few pleasures are exclusively reserved for the higher classes; the poor are generally admitted wherever the rich are received; and they consequently behave with propriety, and respect whatever promotes the enjoyments that they themselves share. In England, where wealth has a monopoly of amusement as well as of power, complaints are made that whenever the poor happen to enter the places reserved for the pleasures of the rich, they do wanton mischief: can this be wondered at, since care has been taken that they should have nothing to lose?
The government of a democracy brings the notion of political rights to the level of the humblest citizens, just as the dissemination of wealth brings the notion of property within the reach of all men; to my mind, this is one of its greatest advantages. I do not say it is easy to teach men how to exercise political rights, but I maintain that, when it is possible, the effects which result from it are highly important; and I add that, if there ever was a time at which such an attempt ought to be made, that time is now. Do you not see that religious belief is shaken and the divine notion of right is declining, that morality is debased and the notion of moral right is therefore fading away? Argument is substituted for faith, and calculation for the impulses of sentiment. If, in the midst of this general disruption, you do not succeed in connecting the notion of right with that of private interest, which is the only immutable point in the human heart, what means will you have of governing the world except by fear? When I am told that the laws are weak and the people are turbulent, that passions are excited and the authority of virtue is paralyzed, and therefore no measures must be taken to increase the rights of the democracy, I reply that for these very reasons some measures of the kind ought to be taken; and I believe that governments are still more interested in taking them than society at large, for governments may perish, but society cannot die.
But I do not wish to exaggerate the example that America furnishes. There the people were invested with political rights at a time when they could not be abused, for the inhabitants were few in number and simple in their manners. As they have increased the Americans have not augmented the power of the democracy they have rather extended its domain.
It cannot be doubted that the moment at which political rights are granted to a people that had before been without them is a very critical one, that the measure, though often necessary, is always dangerous. A child may kill before he is aware of the value of life; and he may deprive another person of his property before he is aware that his own may be taken from him. The lower orders, when they are first invested with political rights, stand in relation to those rights in the same position as the child does to the whole of nature; and the celebrated adage may then be applied to them: Homo puer robustus. This truth may be perceived even in America. The states in which the citizens have enjoyed their tights longest are those in which they make the best use of them.
It cannot be repeated too often that nothing is more fertile in prodigies than the art of being free; but there is nothing more arduous than the apprenticeship of liberty. It is not so with despotism: despotism often promises to make amends for a thousand previous ills; it supports the right, it protects the oppressed, and it maintains public order. The nation is lulled by the temporary prosperity that it produces, until it is roused to a sense of its misery. Liberty, on the contrary, is generally established with difficulty in the midst of storms; it is perfected by civil discord; and its benefits cannot be appreciated until it is already old.
RESPECT FOR LAW IN THE UNITED STATES. Respect of the Americans for law--Parental affection which they entertain for it- Personal interest of everyone to increase the power of law.
IT is not always feasible to consult the whole people, either directly or indirectly, in the formation of law; but it cannot be denied that, when this is possible, the authority of law is much augmented. This popular origin, which impairs the excellence and the wisdom of legislation, contributes much to increase its power. There is an amazing strength in the expression of the will of a whole people; and when it declares itself, even the imagination of those who would wish to contest it is overawed. The truth of this fact is well known by parties, and they consequently strive to make out a majority whenever they can. If they have not the greater number of voters on their side, they assert that the true majority abstained from voting; and if they are foiled even there, they have recourse to those persons who had no right to vote.
In the United States, except slaves, servants, and paupers supported by the townships, there is no class of persons who do not exercise the elective franchise and who do not indirectly contribute to make the laws. Those who wish to attack the laws must consequently either change the opinion of the nation or trample upon its decision.
A second reason, which is still more direct and weighty, may be adduced: in the United States everyone is personally interested in enforcing the obedience of the whole community to the law; for as the minority may shortly rally the majority to its principles, it is interested in professing that respect for the decrees of the legislator which it may soon have occasion to claim for its own. However irksome an enactment may be, the citizen of the United States complies with it, not only because it is the work of the majority, but because it is his own, and he regards it as a contract to which he is himself a party.
In the United States, then, that numerous and turbulent multitude does not exist who, regarding the law as their natural enemy, look upon it with fear and distrust. It is impossible, on the contrary, not to perceive that all classes display the utmost reliance upon the legislation of their country and are attached to it by a kind of parental affection.
I am wrong, however, in saying all classes; for as in America the European scale of authority is inverted, there the wealthy are placed in a position analogous to that of the poor in the Old World, and it is the opulent classes who frequently look upon law with suspicion. I have already observed that the advantage of democracy is not, as has been sometimes asserted, that it protects the interests of all, but simply that it protects those of the majority. In the United States, where the poor rule, the rich have always something to fear from the abuse of their power. This natural anxiety of the rich may produce a secret dissatisfaction, but society is not disturbed by it, for the same reason that withholds the confidence of the rich from the legislative authority makes them obey its mandates: their wealth, which prevents them from making the law, prevents them from withstanding it. Among civilized nations, only those who have nothing to lose ever revolt; and if the laws of a democracy are not always worthy of respect, they are always respected; for those who usually infringe the laws cannot fail to obey those which they have themselves made and by which they are benefited; while the citizens who might be interested in their infraction are induced, by their character and station, to submit to the decisions of the legislature, whatever they may be. Besides, the people in America obey the law, not only because it is their own work, but because it may be changed if it is harmful; a law is observed because, first, it is a self-imposed evil, and, secondly, it is an evil of transient duration.
ACTIVITY THAT PERVADES ALL PARTS OF THE BODY POLITIC IN THE UNITED STATES; INFLUENCE THAT IT EXERCISES UPON SOCIETY. More difficult to conceive the political activity that pervades the United States than the freedom and equality that reign there--The great activity that perpetually agitates the legislative bodies is only an episode, a prolongation of the general activity--Difficult for an American to confine himself to his own business--Political agitation extends to all social intercourse-Commercial activity of the Americans partly attributable to this cause--Indirect advantages which society derives from a democratic government.
ON passing from a free country into one which is not free the traveler is struck by the change; in the former all is bustle and activity; in the latter everything seems calm and motionless. In the one, amelioration and progress are the topics of inquiry; in the other, it seems as if the community wished only to repose in the enjoyment of advantages already acquired. Nevertheless, the country which exerts itself so strenuously to become happy is generally more wealthy and prosperous than that which appears so contented with its lot, and when we compare them, we can scarcely conceive how so many new wants are daily felt in the former, while so few seem to exist in the latter.
If this remark is applicable to those free countries which have preserved monarchical forms and aristocratic institutions, it is still more so to democratic republics. In these states it is not a portion only of the people who endeavor to improve the state of society, but the whole community is engaged in the task; and it is not the exigencies and convenience of a single class for which provision is to be made, but the exigencies and convenience of all classes at once.
It is not impossible to conceive the surprising liberty that the Americans enjoy; some idea may likewise be formed of their extreme equality; but the political activity that pervades the United States must be seen in order to be understood. No sooner do you set foot upon American ground than you are stunned by a kind of tumult; a confused clamor is heard on every side, and a thousand simultaneous voices demand the satisfaction of their social wants. Everything is in motion around you; here the people of one quarter of a town are met to decide upon the building of a church; there the election of a representative is going on; a little farther, the delegates of a district are hastening to the town in order to consult upon some local improvements; in another place, the laborers of a village quit their plows to deliberate upon the project of a road or a public school. Meetings are called for the sole purpose of declaring their disapprobation of the conduct of the government; while in other assemblies citizens salute the authorities of the day as the fathers of their country. Societies are formed which regard drunkenness as the principal cause of the evils of the state, and solemnly bind themselves to give an example of temperance.1
The great political agitation of American legislative bodies which is the only one that attracts the attention of foreigners, is a mere episode, or a sort of continuation, of that universal movement which originates in the lowest classes of the people and extends successively to all the ranks of society. It is impossible to spend more effort in the pursuit of happiness.
It is difficult to say what place is taken up in the life of an inhabitant of the United States by his concern for politics. To take a hand in the regulation of society and to discuss it is his biggest concern and, so to speak, the only pleasure an American knows. This feeling pervades the most trifling habits of life; even the women frequently attend public meetings and listen to political harangues as a recreation from their household labors. Debating clubs are, to a certain extent, a substitute for theatrical entertainments: an American cannot converse, but he can discuss, and his talk falls into a dissertation. He speaks to you as if he was addressing a meeting; and if he should chance to become warm in the discussion, he will say "Gentlemen" to the person with whom he is conversing.
In some countries the inhabitants seem unwilling to avail themselves of the political privileges which the law gives them; it would seem that they set too high a value upon their time to spend it on the interests of the community; and they shut themselves up in a narrow selfishness, marked out by four sunk fences and a quickset hedge. But if an American were condemned to confine his activity to his own affairs, he would be robbed of one half of his existence; he would feel an immense void in the life which he is accustomed to lead, and his wretchedness would be unbearable.2 I am persuaded that if ever a despotism should be established in America, it will be more difficult to overcome the habits that freedom has formed than to conquer the love of freedom itself.
This ceaseless agitation which democratic government has introduced into the political world influences all social intercourse. I am not sure that, on the whole, this is not the greatest advantage of democracy; and I am less inclined to applaud it for what it does than for what it causes to be done.
It is incontestable that the people frequently conduct public business very badly, but it is impossible that the lower orders should take a part in public business without extending the circle of their ideas and quitting the ordinary routine of their thoughts. The humblest individual who co-operates in the government of society acquires a certain degree of self-respect; and as he possesses authority, he can command the services of minds more enlightened than his own. He is canvassed by a multitude of applicants, and in seeking to deceive him in a thousand ways, they really enlighten him. He takes a part in political undertakings which he did not originate, but which give him a taste for undertakings of the kind. New improvements are daily pointed out to him in the common property, and this gives him the desire of improving that property which is his own. He is perhaps neither happier nor better than those who came before him, but he is better informed and more active. I have no doubt that the democratic institutions of the United States, joined to the physical constitution of the country, are the cause (not the direct, as is so often asserted, but the indirect cause) of the prodigious commercial activity of the inhabitants. It is not created by the laws, but the people learn how to promote it by the experience derived from legislation.
When the opponents of democracy assert that a single man performs what he undertakes better than the government of all, it appears to me that they are right. The government of an individual, supposing an equality of knowledge on either side, is more consistent, more persevering, more uniform, and more accurate in details than that of a multitude, and it selects with more discrimination the men whom it employs. If any deny this, they have never seen a democratic government, or have judged upon partial evidence. It is true that, even when local circumstances and the dispositions of the people allow democratic institutions to exist, they do not display a regular and methodical system of government. Democratic liberty is far from accomplishing all its projects with the skill of an adroit despotism. It frequently abandons them before they have borne their fruits, or risks them when the consequences may be dangerous; but in the end it produces more than any absolute government; if it does fewer things well, it does a greater number of things. Under its sway the grandeur is not in what the public administration does, but in what is done without it or outside of it. Democracy does not give the people the most skillful government, but it produces what the ablest governments are frequently unable to create: namely, an all-pervading and restless activity, a superabundant force, and an energy which is inseparable from it and which may, however unfavorable circumstances may be, produce wonders. These are the true advantages of democracy.
In the present age, when the destinies of Christendom seem to be in suspense, some hasten to assail democracy as a hostile power while it is yet growing; and others already adore this new deity which is springing forth from chaos. But both parties are imperfectly acquainted with the object of their hatred or their worship; they strike in the dark and distribute their blows at random.
We must first understand what is wanted of society and its government. Do you wish to give a certain elevation to the human mind and teach it to regard the things of this world with generous feelings, to inspire men with a scorn of mere temporal advantages, to form and nourish strong convictions and keep alive the spirit of honorable devotedness? Is it your object to refine the habits, embellish the manners, and cultivate the arts, to promote the love of poetry, beauty, and glory? Would you constitute a people fitted to act powerfully upon all other nations, and prepared for those high enterprises which, whatever be their results, will leave a name forever famous in history? If you believe such to be the principal object of society, avoid the government of the democracy, for it would not lead you with certainty to the goal.
But if you hold it expedient to divert the moral and intellectual activity of man to the production of comfort and the promotion of general well-being; if a clear understanding be more profitable to man than genius; if your object is not to stimulate the virtues of heroism, but the habits of peace; if you had rather witness vices than crimes, and are content to meet with fewer noble deeds, provided offenses be diminished in the same proportion; if, instead of living in the midst of a brilliant society, you are contented to have prosperity around you; if, in short, you are of the opinion that the principal object of a government is not to confer the greatest possible power and glory upon the body of the nation, but to ensure the greatest enjoyment and to avoid the most misery to each of the individuals who compose it--if such be your desire, then equalize the conditions of men and establish democratic institutions.
But if the time is past at which such a choice was possible, and if some power superior to that of man already hurries us, without consulting our wishes, towards one or the other of these two governments, let us endeavor to make the best of that which is allotted to us and, by finding out both its good and its evil tendencies, he able to foster the former and repress the latter to the utmost.
Footnotes
1 At the time of my stay in the United States the temperance societies already consisted of more than 270,000 members; and their effect had been to diminish the consumption of strong liquors by 500,000 gallons per annum in Pennsylvania alone. Temperance societies are organizations the members of which undertake to abstain from strong liquors
2 The same remark was made at Rome under the first Cësars. Montesquieu somewhere alludes to the excessive despondency of certain Roman citizens who, after the excitement of political life, were all at once flung back into the stagnation of private life.
UNLIMITED POWER OF THE MAJORITY IN THE UNITED STATES, AND ITS CONSEQUENCES
NATURAL STRENGTH of the majority in democracies--Most of the American constitutions have increased this strength by artificial means--How this has been done--Pledged delegates-Moral power of the majority--Opinion as to its infallibility-Respect for its rights, how augmented in the United States.
THE very essence of democratic government consists in the absolute sovereignty of the majority; for there is nothing in democratic states that is capable of resisting it. Most of the American constitutions have sought to increase this natural strength of the majority by artificial means.1
Of all political institutions, the legislature is the one that is most easily swayed by the will of the majority. The Americans determined that the members of the legislature should be elected by the people directly, and for a very brief term, in order to subject them, not only to the general convictions, but even to the daily passions, of their constituents. The members of both houses are taken from the same classes in society and nominated in the same manner; so that the movements of the legislative bodies are almost as rapid, and quite as irresistible, as those of a single assembly.
It is to a legislature thus constituted that almost all the authority of the government has been entrusted.
At the same time that the law increased the strength of those authorities which of themselves were strong, it enfeebled more and more those which were naturally weak. It deprived the representatives of the executive power of all stability and independence; and by subjecting them completely to the caprices of the legislature, it robbed them of the slender influence that the nature of a democratic government might have allowed them to exercise. In several states the judicial power was also submitted to the election of the majority and in all of them its existence was made to depend on the pleasure of the legislative authority, since the representatives were empowered annually to regulate the stipend of the judges.
Custom has done even more than law. A proceeding is becoming more and more general in the United States which will, in the end, do away with the guarantees of representative government: it frequently happens that the voters, in electing a delegate, point out a certain line of conduct to him and impose upon him certain positive obligations that he is pledged to fulfill. With the exception of the tumult, this comes to the same thing as if the majority itself held its deliberations in the market-place.
Several particular circumstances combine to render the power of the majority in America not only preponderant, but irresistible. The moral authority of the majority is partly based upon the notion that there is more intelligence and wisdom in a number of men united than in a single individual, and that the number of the legislators is more important than their quality. The theory of equality is thus applied to the intellects of men; and human pride is thus assailed in its last retreat by a doctrine which the minority hesitate to admit, and to which they will but slowly assent. Like all other powers, and perhaps more than any other, the authority of the many requires the sanction of time in order to appear legitimate. At first it enforces obedience by constraint; and its laws are not respected until they have been long maintained.
The right of governing society, which the majority supposes itself to derive from its superior intelligence, was introduced into the United States by the first settlers; and this idea, which of itself would be sufficient to create a free nation, has now been amalgamated with the customs of the people and the minor incidents of social life.
The French under the old monarchy held it for a maxim that the king could do no wrong; and if he did do wrong, the blame was imputed to his advisers. This notion made obedience very easy; it enabled the subject to complain of the law without ceasing to love and honor the lawgiver. The Americans entertain the same opinion with respect to the majority.
The moral power of the majority is founded upon yet another principle, which is that the interests of the many are to be pre- ferred to those of the few. It will readily be perceived that the respect here professed for the rights of the greater number must naturally increase or diminish according to the state of parties When a nation is divided into several great irreconcilable interests, the privilege of the majority is often overlooked, because it is intolerable to comply with its demands.
If there existed in America a class of citizens whom the legislating majority sought to deprive of exclusive privileges which they had possessed for ages and to bring down from an elevated station to the level of the multitude, it is probable that the minority would be less ready to submit to its laws. But as the United States was colonized by men holding equal rank, there is as yet no natural or permanent disagreement between the interests of its different inhabitants.
There are communities in which the members of the minority can never hope to draw the majority over to their side, because they must then give up the very point that is at issue between them. Thus an aristocracy can never become a majority while it retains its exclusive privileges, and it cannot cede its privileges without ceasing to be an aristocracy.
In the United States, political questions cannot be taken up in so general and absolute a manner; and all parties are willing to recognize the rights of the majority, because they all hope at some time to be able to exercise them to their own advantage. The majority in that country, therefore, exercise a prodigious actual authority, and a power of opinion which is nearly as great; no obstacles exist which can impede or even retard its progress, so as to make it heed the complaints of those whom it crushes upon its path. This state of things is harmful in itself and dangerous for the future.
HOW THE OMNIPOTENCE OF THE MAJORITY INCREASES, IN AMERICA, THE INSTABILITY OF LEGISLATION AND ADMINISTRATION INHERENT IN DEMOCRACY.
The Americans increase the mutability of law that is inherent in a democracy by changing the legislature year, and investing it with almost unbounded authority --The same effect is produced upon the administration--In America the pressure for social improvements is vastly greater, but less continuous, than in Europe.
I HAVE already spoken of the natural defects of democratic insti- tutions; each one of them increases in the same ratio as the power of the majority. To begin with the most evident of them all, the mutability of the laws is an evil inherent in a democratic government, because it is natural to democracies to raise new men to power. But this evil is more or less perceptible in proportion to the authority and the means of action which the legislature possesses.
In America the authority exercised by the legislatures is supreme; nothing prevents them from accomplishing their wishes with celerity and with irresistible power, and they are supplied with new representatives every year. That is to say, the circum- stances which contribute most powerfully to democratic instabil- ity, and which admit of the free application of caprice to the most important objects, are here in full operation. Hence America is, at the present day, the country beyond all others where laws last the shortest time. Almost all the American constitutions have been amended within thirty years; there is therefore not one American state which has not modified the principles of its legislation in that time. As for the laws themselves, a single glance at the archives of the different states of the Union suffices to convince one that in America the activity of the legislator never slackens. Not that the American democracy is naturally less stable than any other, but it is allowed to follow, in the formation of the laws, the natural instability of its desires.2
The omnipotence of the majority and the rapid as well as absolute manner in which its decisions are executed in the United States not only render the law unstable, but exercise the same influence upon the execution of the law and the conduct of the administration. As the majority is the only power that it is important to court, all its projects are taken up with the greatest ardor; but no sooner is its attention distracted than all this ardor ceases; while in the free states of Europe, where the administration is at once independent and secure, the projects of the legislature continue to be executed even when its attention is directed to other objects.
In America certain improvements are prosecuted with much more zeal and activity than elsewhere; in Europe the same ends are promoted by much less social effort more continuously applied.
Some years ago several pious individuals undertook to ameliorate the condition of the prisons. The public were moved by their statements, and the reform of criminals became a popular undertaking. New prisons were built; and for the first time the idea of reforming as well as punishing the delinquent formed a part of prison discipline.
But this happy change, in which the public had taken so hearty an interest and which the simultaneous exertions of the citizens rendered irresistible, could not be completed in a moment. While the new penitentiaries were being erected and the will of the majority was hastening the work, the old prisons still existed and contained a great number of offenders. These jails became more unwholesome and corrupt in proportion as the new establishments were reformed and improved, forming a contrast that may readily be understood. The majority was so eagerly employed in founding the new prisons that those which already existed were forgotten; and as the general attention was diverted to a novel object, the care which had hitherto been bestowed upon the others ceased. The salutary regulations of discipline were first relaxed and after. wards broken; so that in the immediate neighborhood of a prison that bore witness to the mild and enlightened spirit of our times, dungeons existed that reminded one of the barbarism of the Middle Ages.
TYRANNY OF THE MAJORITY.
How the principle of the sovereignty of the people is to be understood--Impossibility of conceiving a mixed government--The sovereign power must exist somewhere--Precautions to be taken to control its action --These precautions have not been taken in the United States --Consequences.
I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself?
A general law, which bears the name of justice, has been made and sanctioned, not only by a majority of this or that people, but by a majority of mankind. The rights of every people are therefore confined within the limits of what is just. A nation may be considered as a jury which is empowered to represent society at large and to apply justice, which is its law. Ought such a jury, which represents society, to have more power than the society itself whose laws it executes?
When I refuse to obey an unjust law, I do not contest the right of the majority to command, but I simply appeal from the sovereignty of the people to the sovereignty of mankind. Some have not feared to assert that a people can never outstep the boundaries of justice and reason in those affairs which are peculiarly its own; and that consequently full power may be given to the majority by which it is represented. But this is the language of a slave.
A majority taken collectively is only an individual, whose opinions, and frequently whose interests, are opposed to those of another individual, who is styled a minority. If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength.3 For my own part, I cannot believe it; the power to do everything, which I should refuse to one of my equals, I will never grant to any number of them.
I do not think that, for the sake of preserving liberty, it is possible to combine several principles in the same government so as really to oppose them to one another. The form of government that is usually termed mixed has always appeared to me a mere chimera. Accurately speaking, there is no such thing as a mixed government in the sense usually given to that word, because in all communities some one principle of action may be discovered which preponderates over the others. England in the last century, which has been especially cited as an example of this sort of government, was essentially an aristocratic state, although it comprised some great elements of democracy; for the laws and customs of the country were such that the aristocracy could not but preponderate in the long run and direct public affairs according to its own will. The error arose from seeing the interests of the nobles perpetually contending with those of the people, without considering the issue of the contest, which was really the important point. When a community actually has a mixed government--that is to say, when it is equally divided between adverse principles--it must either experience a revolution or fall into anarchy.
I am therefore of the opinion that social power superior to all others must always be placed somewhere; but I think that liberty is endangered when this power finds no obstacle which can retard its course and give it time to moderate its own vehemence.
Unlimited power is in itself a bad and dangerous thing. Human beings are not competent to exercise it with discretion. God alone can be omnipotent, because his wisdom and his justice are always equal to his power. There is no power on earth so worthy of honor in itself or clothed with rights so sacred that I would admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws.
In my opinion, the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country as at the inadequate securities which one finds there against tyranny. an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power, it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the measure of which you complain, you must submit to it as well as you can.4
If, on the other hand, a legislative power could be so constituted as to represent the majority without necessarily being the slave of its passions, an executive so as to retain a proper share of authority, and a judiciary so as to remain independent of the other two powers, a government would be formed which would still be democratic while incurring scarcely any risk of tyranny.
I do not say that there is a frequent use of tyranny in America at the present day; but I maintain that there is no sure barrier against it, and that the causes which mitigate the government there are to be found in the circumstances and the manners of the country more than in its laws.
EFFECTS OF THE OMNIPOTENCE OF THE MAJORITY UPON THE ARBITRARY AUTHORITY OF AMERICAN PUBLIC OFFICERS.
Liberty left by the American laws to public officers within a certain sphere --Their power.
A DISTINCTION must be drawn between tyranny and arbitrary power. Tyranny may be exercised by means of the law itself, and in that case it is not arbitrary; arbitrary power may be exercised for the public good, in which case it is not tyrannical. Tyranny usually employs arbitrary means, but if necessary it can do without them.
In the United States the omnipotence of the majority, which is favorable to the legal despotism of the legislature, likewise favors the arbitrary authority of the magistrate. The majority has absolute power both to make the laws and to watch over their execution; and as it has equal authority over those who are in power and the community at large, it considers public officers as its passive agents and readily confides to them the task of carrying out its de signs. The details of their office and the privileges that they are to enjoy are rarely defined beforehand. It treats them as a master does his servants, since they are always at work in his sight and he can direct or reprimand them at any instant.
In general, the American functionaries are far more independent within the sphere that is prescribed to them than the French civil officers. Sometimes, even, they are allowed by the popular authority to exceed those bounds; and as they are protected by the opinion and backed by the power of the majority, they dare do things that even a European, accustomed as he is to arbitrary power, is astonished at. By this means habits are formed in the heart of a free country which may some day prove fatal to its liberties.
POWER EXERCISED BY THE MAJORITY IN AMERICA UPON OPINION.
In America, when the majority has once irrevocably decided a question, all discussion ceases--Reason f or this--Moral power exercised by the majority upon opinion--Democratic republics have applied despotism to the minds of men.
IT is in the examination of the exercise of thought in the United States that we clearly perceive how far the power of the majority surpasses all the powers with which we are acquainted in Europe. Thought is an invisible and subtle power that mocks all the efforts of tyranny. At the present time the most absolute monarchs in Europe cannot prevent certain opinions hostile to their authority from circulating in secret through their dominions and even in their courts. It is not so in America; as long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably pronounced, everyone is silent, and the friends as well as the opponents of the measure unite in assenting to its propriety. The reason for this is perfectly clear: no monarch is so absolute as to combine all the powers of society in his own hands and to conquer all opposition, as a majority is able to do, which has the right both of making and of executing the laws.
The authority of a king is physical and controls the actions of men without subduing their will. But the majority possesses a power that is physical and moral at the same time, which acts upon the will as much as upon the actions and represses not only all contest, but all controversy.
I know of no country in which there is so little independence of mind and real freedom of discussion as in America. In any constitutional state in Europe every sort of religious and political theory may be freely preached and disseminated; for there is no country in Europe so subdued by any single authority as not to protect the man who raises his voice in the cause of truth from the consequences of his hardihood. If he is unfortunate enough to live under an absolute government, the people are often on his side; if he inhabits a free country, he can, if necessary, find a shelter behind the throne. The aristocratic part of society supports him in some countries, and the democracy in others. But in a nation where democratic institutions exist, organized like those of the United States, there is but one authority, one element of strength and success, with nothing beyond it.
In America the majority raises formidable barriers around the liberty of opinion; within these barriers an author may write what he pleases, but woe to him if he goes beyond them. Not that he is in danger of an auto-da-f‚, but he is exposed to continued obloquy and persecution. His political career is closed forever, since he has offended the only authority that is able to open it. Every sort of compensation, even that of celebrity, is refused to him. Before making public his opinions he thought he had sympathizers; now it seems to him that he has none any more since he has revealed himself to everyone; then those who blame him criticize loudly and those who think as he does keep quiet and move away without courage. He yields at length, overcome by the daily effort which he has to make, and subsides into silence, as if he felt remorse for having spoken the truth.
Fetters and headsmen were the coarse instruments that tyranny formerly employed; but the civilization of our age has perfected despotism itself, though it seemed to have nothing to learn. Monarchs had, so to speak, materialized oppression; the democratic republics of the present day have rendered it as entirely an affair of the mind as the will which it is intended to coerce. Under the absolute sway of one man the body was attacked in order to subdue the soul; but the soul escaped the blows which were directed against it and rose proudly superior. Such is not the course adopted by tyranny in democratic republics; there the body is left free, and the soul is enslaved. The master no longer says: "You shall think as I do or you shall die"; but he says: "You are free to think differently from me and to retain your life, your property, and all that you possess; but you are henceforth a stranger among your people. You may retain your civil rights, but they will be useless to you, for you will never be chosen by your fellow citizens if you solicit their votes; and they will affect to scorn you if you ask for their esteem. You will remain among men, but you will be deprived of the rights of mankind. Your fellow creatures will shun you like an impure being; and even those who believe in your innocence will abandon you, lest they should be shunned in their turn. Go in peace! I have given you your life, but it is an existence worse than death."
Absolute monarchies had dishonored despotism; let us beware lest democratic republics should reinstate it and render it less odious and degrading in the eyes of the many by making it still more onerous to the few.
Works have been published in the proudest nations of the Old World expressly intended to censure the vices and the follies of the times: LabruyŠre inhabited the palace of Louis XIV when he composed his chapter upon the Great, and MoliŠre criticized the courtiers in the plays that were acted before the court. But the ruling power in the United States is not to be made game of. The smallest reproach irritates its sensibility, and the slightest joke that has any foundation in truth renders it indignant, from the forms of its language up to the solid virtues of its character, everything must be made the subject of encomium. No writer, whatever be his eminence, can escape paying this tribute of adulation to his fellow citizens. The majority lives in the perpetual utterance of self-applause, and there are certain truths which the Americans can learn only from strangers or from experience.
If America has not as yet had any great writers, the reason is given in these facts; there can be no literary genius without freedom of opinion, and freedom of opinion does not exist in America. The Inquisition has never been able to prevent a vast number of anti-religious books from circulating in Spain. The empire of the majority succeeds much better in the United States, since it actually removes any wish to publish them. Unbelievers are to be met with in America, but there is no public organ of infidelity. Attempts have been made by some governments to protect morality by prohibiting licentious books. In the United States no one is punished for this sort of books, but no one is induced to write them; not because all the citizens are immaculate in conduct, but because the majority of the community is decent and orderly.
In this case the use of the power is unquestionably good; and I am discussing the nature of the power itself. This irresistible authority is a constant fact, and its judicious exercise is only an accident.
EFFECTS OF THE TYRANNY OF THE MAJORITY UPON THE NATIONAL CHARACTER OF THE AMERICANS--THE COURTIER SPIRIT IN THE UNITED STATES.
Effects of the tyranny of the majority more sensibly felt hitherto on the manners than on the conduct of society--They check the development of great characters--Democratic republics, organized like the United States, infuse the courtier spirit into the mass of the people--Proofs of this spirit in the United States--Why there is more patriotism in the people than in those who govern in their name.
THE tendencies that I have just mentioned are as yet but slightly perceptible in political society, but they already exercise an unfavorable influence upon the national character of the Americans. I attribute the small number of distinguished men in political life to the ever increasing despotism of the majority in the United States.
When the American Revolution broke out, they arose in great numbers; for public opinion then served, not to tyrannize over, but to direct the exertions of individuals. Those celebrated men, sharing the agitation of mind common at that period, had a gran- deur peculiar to themselves, which was reflected back upon the nation, but was by no means borrowed from it.
In absolute governments the great nobles who are nearest to the throne flatter the passions of the sovereign and voluntarily truckle to his caprices. But the mass of the nation does not degrade itself by servitude; it often submits from weakness, from habit, or from ignorance, and sometimes from loyalty. Some nations have been known to sacrifice their own desires to those of the sovereign with pleasure and pride, thus exhibiting a sort of independence of mind in the very act of submission. These nations are miserable, but they are not degraded. There is a great difference between doing what one does not approve, and feigning to approve what one does; the one is the weakness of a feeble person, the other befits the temper of a lackey.
In free countries, where everyone is more or less called upon to give his opinion on affairs of state, in democratic republics, where public life is incessantly mingled with domestic affairs, where the sovereign authority is accessible on every side, and where its attention can always be attracted by vociferation, more persons are to be met with who speculate upon its weaknesses and live upon ministering to its passions than in absolute monarchies. Not because men are naturally worse in these states than elsewhere, but the temptation is stronger and at the same time of easier access. The result is a more extensive debasement of character.
Democratic republics extend the practice of currying favor with the many and introduce it into all classes at once; this is the most serious reproach that can be addressed to them. This is especially true in democratic states organized like the American republics, where the power of the majority is so absolute and irresistible that one must give up one's rights as a citizen and almost abjure one's qualities as a man if one intends to stray from the track which it prescribes.
In that immense crowd which throngs the avenues to power in the United States, I found very few men who displayed that manly candor and masculine independence of opinion which frequently distinguished the Americans in former times, and which constitutes the leading feature in distinguished characters wherever they may be found. It seems at first sight as if all the minds of the Americans were formed upon one model, so accurately do they follow the same route. A stranger does, indeed, sometimes meet with Americans who dissent from the rigor of these formulas, with men who deplore the defects of the laws, the mutability and the ignorance of democracy, who even go so far as to observe the evil tendencies that impair the national character, and to point out such remedies as it might be possible to apply; but no one is there to hear them except yourself, and you, to whom these secret reflections are confided, are a stranger and a bird of passage. They are very ready to communicate truths which are useless to you, but they hold a different language in public.
If these lines are ever read in America, I am well assured of two things: in the first place, that all who peruse them will raise their voices to condemn me; and, in the second place, that many of them will acquit me at the bottom of their conscience.
I have heard of patriotism in the United States, and I have found true patriotism among the people, but never among the leaders of the people. This may be explained by analogy: despotism debases the oppressed much more than the oppressor: in absolute monarchies the king often has great virtues, but the courtiers are invariably servile. It is true that American courtiers do not say "Sire," or "Your Majesty," a distinction without a difference. They are forever talking of the natural intelligence of the people whom they serve; they do not debate the question which of the virtues of their master is pre-eminently worthy of admiration, for they assure him that he possesses all the virtues without having acquired them, or without caring to acquire them; they do not give him their daughters and their wives to be raised at his pleasure to the rank of his concubines; but by sacrificing their opinions they prostitute themselves. Moralists and philosophers in America are not obliged to conceal their opinions under the veil of allegory; but before they venture upon a harsh truth, they say: "We are aware that the people whom we are addressing are too superior to the weaknesses of human nature to lose the command of their temper for an instant. We should not hold this language if we were not speaking to men whom their virtues and their intelligence render more worthy of freedom than all the rest of the world." The sycophants of Louis XIV could not flatter more dexterously.
For my part, I am persuaded that in all governments, whatever their nature may be, servility will cower to force, and adulation will follow power. The only means of preventing men from degrading themselves is to invest no one with that unlimited authority which is the sure method of debasing them.
THE GREATEST DANGERS OF THE AMERICAN REPUBLICS PROCEED FROM THE OMNIPOTENCE OF THE MAJORITY.
Democratic republics liable to perish from a misuse of their power, and not from impotence--The governments of the American republics are more centralized and more energetic than those of the monarchies of Europe--Dangers resulting from this--Opinions of Madison and Jefferson upon this point.
GOVERNMENTS usually perish from impotence or from tyranny. In the former case, their power escapes from them; it is wrested from their grasp in the latter. Many observers who have witnessed the anarchy of democratic states have imagined that the government of those states was naturally weak and impotent. The truth is that when war is once begun between parties, the government loses its control over society. But I do not think that a democratic power is naturally without force or resources; say, rather, that it is almost always by the abuse of its force and the misemployment of its resources that it becomes a failure. Anarchy is almost always produced by its tyranny or its mistakes, but not by its want of strength.
It is important not to confuse stability with force, or the greatness of a thing with its duration. In democratic republics the power that directs 5 society is not stable, for it often changes hands and assumes a new direction. But whichever way it turns, its force is almost irresistible. The governments of the American republics appear to me to be as much centralized as those of the absolute monarchies of Europe, and more energetic than they are. I do not, therefore, imagine that they will perish from weakness.6
If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force. Anarchy will then be the result, but it will have been brought about by despotism.
Mr. Madison expresses the same opinion in The Federalist, No. 51. "It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued until it be obtained, or until liberty be lost in the pursuit. In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger: and as, in the latter state, even the stronger individuals are prompted by the uncertainty of their condition to submit to a government which may protect the weak as well as themselves, so, in the former state, will the more powerful factions be gradually induced by a like motive to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted, that, if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of right under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of the factious majorities, that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.¯
Jefferson also said: "The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period." 7
I am glad to cite the opinion of Jefferson upon this subject rather than that of any other, because I consider him the most powerful advocate democracy has ever had.
Footnotes
1 We have seen, in examining the Federal Constitution, that the e fforts of the legislators of the Union were directed against this absolute power. The consequence has been that the Federal government is more independent in its sphere than that of the states. But the Federal government scarcely ever interferes in any but foreign affairs; and the governments of the states in reality direct society in America.
2 The legislative acts promulgated by the state of Massachusetts alone from the year 1780 to the present time already fill three stout volumes; and it must not be forgotten that the collection to which I allude was revised in 1823, when many old laws which had fallen into disuse were omitted. The state of Massachusetts, which is not more populous than a department of France, may be considered as the most stable, the most consistent, and the most sagacious in its undertakings of the whole Union.
3 No one will assert that a people cannot forcibly wrong another people; but parties may be looked upon as lesser nations within a great one, and they are aliens to each other. If, therefore, one admits that a nation can act tyrannically towards another nation, can it be denied that a party may do the same towards another party?
4 A striking instance of the excesses that may be occasioned by the despotism of the majority occurred at Baltimore during the War of 1812. At that time the war was very popular in Baltimore. A newspaper that had taken the other side excited, by its opposition, the indignation of the inhabitants. The mob assembled, broke the printing-presses, and attacked the house of the editors. The militia was called out, but did not obey the call; and the only means of saving the wretches who were threatened by the frenzy of the mob was to throw them into prison as common malefactors. But even this precaution was ineffectual, the mob collected again during the night; the magistrates again made a vain attempt to call out the militia; the prison was forced, one of the newspaper editors was killed upon the spot, and the others were left for dead. The guilty parties, when they were brought to trial, were acquitted by the jury. I said one day to an inhabitant of Pennsylvania: "Be so good as to explain to me how it happens that in a state founded by Quakers, and celebrated for its toleration, free blacks are not allowed to exercise civil rights. They pay taxes; is it not fair that they should vote?" "You insult us," replied my informant, "if you imagine that our legislators could have committed so gross an act of injustice and intolerance." "Then the blacks possess the right of voting in this country?" "Without doubt." "How comes it, then, that at the polling-booth this morning I did not perceive a single Negro?" "That is not the fault of the law. The Negroes have an undisputed right of voting, but they voluntarily abstain from making their appearance." "A very pretty piece of modesty on their part!" rejoined I. "Why, the truth is that they are not disinclined to vote, but they are afraid of being maltreated; in this country the law is sometimes unable to maintain its authority without the support of the majority. But in this case the majority entertains very strong prejudices against the blacks, and the magistrates are unable to protect them in the exercise of their legal rights." "Then the majority claims the right not only of making the laws, but of breaking the laws it has made?"
5 This power may be centralized in an assembly, in which case it will be strong without being stable; or it may be centralized in an individual, in which case it will be less strong, but more stable.
6 I presume that it is scarcely necessary to remind the reader here, as well as throughout this chapter, that I am speaking, not of the Federal government, but of the governments of the individual states, which the majority controls at its pleasure.
7 Letter from Jefferson to Madison. March 15. 1789.
CAUSES WHICH MITIGATE THE TYRANNY OF THE MAJORITY IN THE UNITED STATES
ABSENCE OF CENTRALIZED ADMINISTRATION. The national majority does not pretend to do everything--Is obliged to employ the town and county magistrates to execute its sovereign will.
I HAVE already pointed out the distinction between a centralized government and a centralized administration. The former exists in America, but the latter is nearly unknown there. If the directing power of the American communities had both these instruments of government at is disposal and united the habit of executing its commands to the right of commanding; if, after having established the general principles of government, it descended to the details of their application; and if, having regulated the great interests of the country, it could descend to the circle of individual interests, freedom would soon be banished from the New World.
But in the United States the majority, which so frequently displays the tastes and the propensities of a despot, is still destitute of the most perfect instruments of tyranny.
In the American republics the central government has never as yet busied itself except with a small number of objects, sufficiently prominent to attract its attention. The secondary affairs of society have never been regulated by its authority; and nothing has hitherto betrayed its desire of even interfering in them. The majority has become more and more absolute, but has not increased the prerogatives of the central government; those great prerogatives have been confined to a certain sphere; and although the despotism of the majority may be galling upon one point, it cannot be said to extend to all. However the predominant party in the nation may be carried away by its passions, however ardent it may be in the pursuit of its projects, it cannot oblige all the citizens to comply with its desires in the same manner and at the same time throughout the country. When the central government which represents that majority has issued a decree, it must entrust the execution of its will to agents over whom it frequently has no control and whom it cannot perpetually direct. The townships, municipal bodies, and counties form so many concealed breakwaters, which check or part the tide of popular determination. If an oppressive law were passed, liberty would still be protected by the mode of executing that law; the majority cannot descend to the details and what may be called the puerilities of administrative tyranny. It does not even imagine that it can do so, for it has not a full consciousness of its authority. It knows only the extent of its natural powers, but is unacquainted with the art of increasing them.
This point deserves attention; for if a democratic republic, similar to that of the United States, were ever founded in a country where the power of one man had previously established a centralized administration and had sunk it deep into the habits and the laws of the people, I do not hesitate to assert that in such a republic a more insufferable despotism would prevail than in any of the absolute monarchies of Europe; or, indeed, than any that could be found on this side of Asia.
THE TEMPER OF THE LEGAL PROFESSION IN THE UNITED STATES, AND HOW IT SERVES AS A COUNTERPOISE TO DEMOCRACY.
Utility of ascertaining what are the natural instincts of the legal profession--These men are to act a prominent part in future society--How the peculiar pursuits of lawyers give an aristocratic turn to their ideas--Accidental causes that may check this tendency--Ease with which the aristocracy coalesces with legal men--Use of lawyers to a despot--The profession of the law constitutes the only aristocratic element with which the natural elements of democracy will combine--Peculiar causes which tend to give an aristocratic turn of mind to English and American lawyers--The aristocracy of America is on the bench and at the bar--Influence of lawyers upon American society--Their peculiar magisterial spirit affects the legislature, the administration, and even the people.
IN visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence; that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy. This effect seems to me to result from a general cause, which it is useful to investigate, as it may be reproduced elsewhere.
The members of the legal profession have taken a part in all the movements of political society in Europe for the last five hundred years. At one time they have been the instruments of the political authorities, and at another they have succeeded in converting the political authorities into their instruments. In the Middle Ages they afforded a powerful support to the crown; and since that period they have exerted themselves effectively to limit the royal prerogative. In England they have contracted a close alliance with the aristocracy; in France they have shown themselves its most dangerous enemies. Under all these circumstances have the members of the legal profession been swayed by sudden and fleeting impulses, or have they been more or less impelled by instincts which are natural to them and which will always recur in history? I am incited to this investigation, for perhaps this particular class of men will play a prominent part in the political society that is soon to be created.
Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.
The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. Add to this that they naturally constitute a body; not by any previous understanding, or by an agreement that directs them to a common end; but the analogy of their studies and the uniformity of their methods connect their minds as a common interest might unite their endeavors.
Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other} men, are governed by their private interests, and especially by the interests of the moment.
In a state of society in which the members of the legal profession cannot hold that rank in the political world which they enjoy in private life, we may rest assured that they will be the foremost agents of revolution. But it must then be asked whether the cause that then induces them to innovate and destroy results from a permanent disposition or from an accident. It is true that lawyers mainly contributed to the overthrow of the French monarchy in 1789; but it remains to be seen whether they acted thus because they had studied the laws or because they were prohibited from making them.
Five hundred years ago the English nobles headed the people and spoke in their name; at the present time the aristocracy sup- ports the throne and defends the royal prerogative. But notwith- standing this, aristocracy has its peculiar instincts and propensities. We must be careful not to confound isolated members of a body with the body itself. In all free governments, of whatever form they may be, members of the legal profession will be found in the front ranks of all parties. The same remark is also applicable to the aristocracy; almost all the democratic movements that have agitated the world have been directed by nobles. A privileged body can never satisfy the ambition of all its members: it has always more talents and more passions than it can find places to employ, so that a considerable number of individuals are usually to be met with who are inclined to attack those very privileges which they cannot soon enough turn to their own account.
I do not, then, assert that all the members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them are usually so. In a community in which lawyers are allowed to occupy without opposition that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic. When an aristocracy excludes the leaders of that profession from its ranks, it excites enemies who are the more formidable as they are independent of the nobility by their labors and feel themselves to be their equals in intelligence though inferior in opulence and power. But whenever an aristocracy consents to impart some of its privileges to these same individuals, the two classes coalesce very readily and assume, as it were, family interests.
I am in like manner inclined to believe that a monarch will always be able to convert legal practitioners into the most serviceable instruments of his authority. There is a far greater affinity between this class of persons and the executive power than there is between them and the people, though they have often aided to overturn the former; just as there is a greater natural affinity between the nobles and the monarch than between the nobles and the people, although the higher orders of society have often, in concert with the lower classes, resisted the prerogative of the crown.
Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, also, that if they prize freedom much, they generally value legality still more: they are less afraid of tyranny than of arbitrary power; and, provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.
I am therefore convinced that the prince who, in presence of an encroaching democracy, should endeavor to impair the judicial authority in his dominions, and to diminish the political influence of lawyers, would commit a great mistake: he would let slip the substance of authority to grasp the shadow. He would act more wisely in introducing lawyers into the government; and if he entrusted despotism to them under the form of violence, perhaps he would find it again in their hands under the external features of justice and law.
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it. The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
The profession of the law is the only aristocratic element that can be amalgamated without violence with the natural elements of democracy and be advantageously and permanently combined with them. I am not ignorant of the defects inherent in the character of this body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could hope to exist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people.
This aristocratic character, which I hold to be common to the legal profession, is much more distinctly marked in the United States and in England than in any other country. This proceeds not only from the legal studies of the English and American lawyers, but from the nature of the law and the position which these interpreters of it occupy in the two countries. The English and the Americans have retained the law of precedents; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their predecessors. In the mind of an English or American lawyer a taste and a reverence for what is old is almost always united with a love of regular and lawful proceedings.
This predisposition has another effect upon the character of the legal profession and upon the general course of society. The English and American lawyers investigate what has been done; the French advocate inquires what should have been done; the former produce precedents, the latter reasons. A French observer is surprised to hear how often an English or an American lawyer quotes the opinions of others and how little he alludes to his own, while the reverse occurs in France. There the most trifling litigation is never conducted without the introduction of an entire system of ideas peculiar to the counsel employed; and the fundamental principles of law are discussed in order to obtain a rod of land by the decision of the court. This abnegation of his own opinion and this implicit deference to the opinion of his forefathers, which are common to the English and American lawyer, this servitude of thought which he is obliged to profess, necessarily give him more timid habits and more conservative inclinations in England and America than in France.
The French codes are often difficult to comprehend, but they can be read by everyone; nothing, on the other hand, can be more obscure and strange to the uninitiated than a legislation founded upon precedents. The absolute need of legal aid that is felt in England and the United States, and the high opinion that is entertained of the ability of the legal profession, tend to separate it more and more from the people and to erect it into a distinct class. The French lawyer is simply a man extensively acquainted with the statutes of his country; but the English or American lawyer resembles the hierophants of Egypt, for like them he is the sole interpreter of an occult science.
The position that lawyers occupy in England and America exercises no less influence upon their habits and opinions. The English aristocracy, which has taken care to attract to its sphere whatever is at all analogous to itself, has conferred a high degree of importance and authority upon the members of the legal profession. In English society, lawyers do not occupy the first rank, but they are contented with the station assigned to them: they constitute, as it were, the younger branch of the English aristocracy; and they are attached to their elder brothers, although they do not enjoy all their privileges. The English lawyers consequently mingle the aristocratic tastes and ideas of the circles in which they move with the aristocratic interests of their profession.
And, indeed, the lawyer-like character that I am endeavoring to depict is most distinctly to be met with in England: there laws are esteemed not so much because they are good as because they are old; and if it is necessary to modify them in any respect, to adapt them to the changes that time operates in society, recourse is had to the most inconceivable subtleties in order to uphold the traditionary fabric and to maintain that nothing has been done which does not square with the intentions and complete the labors of former generations. The very individuals who conduct these changes disclaim any desire for innovation and had rather resort to absurd expedients than plead guilty to so great a crime. This spirit appertains more especially to the English lawyers; they appear indifferent to the real meaning of what they treat, and they direct all their attention to the letter, seeming inclined to abandon reason and humanity rather than to swerve one tittle from the law. English legislation may be compared to the stock of an old tree upon which lawyers have engrafted the most dissimilar shoots in the hope that, although their fruits may differ, their foliage at least will be confused with the venerable trunk that supports them all.
In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.
The more we reflect upon all that occurs in the United States the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.
The courts of justice are the visible organs by which the legal profession is enabled to control the democracy. The judge is a lawyer who, independently of the taste for regularity and order that he has contracted in the study of law, derives an additional love of stability from the inalienability of his own functions. His legal attainments have already raised him to a distinguished rank among his fellows; his political power completes the distinction of his station and gives him the instincts of the privileged classes.
Armed with the power of declaring the laws to be unconstitutional,1 the American magistrate perpetually interferes in political affairs. He cannot force the people to make laws, but at least he can oblige them not to disobey their own enactments and not to be inconsistent with themselves. I am aware that a secret tendency to diminish the judicial power exists in the United States; and by most of the constitutions of the several states the government can, upon the demand of the two houses of the legislature, remove judges from their station. Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.
It must not be supposed, moreover, that the legal spirit is con fined in the United States to the courts of justice; it extends far beyond them. As the lawyers form the only enlightened class whom the people do not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative assemblies and are at the head of the administration; they consequently exercise a powerful influence upon the formation of the law and upon its execution. The lawyers are obliged, however, to yield to the current of public opinion, which is too strong for them to resist; but it is easy to find indications of what they would do if they were free to act. The Americans, who have made so many innovations in their political laws, have introduced very sparing alterations in their civil laws, and that with great difficulty, although many of these laws are repugnant to their social condition. The reason for this is that in matters of civil law the majority are obliged to defer to the authority of the legal profession, and the American lawyers are disinclined to innovate when they are left to their own choice.
It is curious for a Frenchman to hear the complaints that are made in the United States against the stationary spirit of legal men and their prejudices in favor of existing institutions.
The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.
TRIAL BY JURY IN THE UNITED STATES CONSIDERED AS A POLITICAL INSTITUTION
Trial by jury, which is one of the forms of the sovereignty of the people, ought to be compared with the other which establish that sovereignty--Composition of the in the United States--Effect of trial by jury upon the national character--lt educates the people--How it tends to establish the influence of the magistrates and to extend the legal spirit among the people.
SINCE my subject has led me to speak of the administration of justice in the United States, I will not pass over it without referring to the institution of the jury. Trial by jury may be considered in two separate points of view: as a judicial, and as a political institution. If it was my purpose to inquire how far trial by jury, especially in civil cases, ensures a good administration of justice I admit that its utility might be contested. As the jury was first established when society was in its infancy and when courts of justice merely decided simple questions of fact, it is not an easy task to adapt it to the wants of a highly civilized community when the mutual relations of men are multiplied to a surprising extent and have assumed an enlightened and intellectual character.2
My present purpose is to consider the jury as a political institution; any other course would divert me from my subject. Of trial by jury considered as a judicial institution I shall here say but little. When the English adopted trial by jury, they were a semi-barbarous people; they have since become one of the most enlightened nations of the earth, and their attachment to this institution seems to have increased with their increasing cultivation. They have emigrated and colonized every part of the habitable globe; some have formed colonies, others independent states; the mother country has maintained its monarchical constitution; many of its offspring have founded powerful republics; but everywhere they have boasted of the privilege of trial by jury.3 They have established it, or hastened to re-establish it, in all their settlements. A judicial institution which thus obtains the suffrages of a great people for so long a series of ages, which is zealously reproduced at every stage of civilization, in all the climates of the earth, and under every form of human government, cannot be contrary to the spirit of justice.4
But to leave this part of the subject. It would be a very narrow view to look upon the jury as a mere judicial institution; for however great its influence may be upon the decisions of the courts, it is still greater on the destinies of society at large. The jury is, above all, a political institution, and it must be regarded in this light in order to be duly appreciated.
By the jury I mean a certain number of citizens chosen by lot and invested with a temporary right of judging. Trial by jury, as applied to the repression of crime, appears to me an eminently republican element in the government, for the following reasons.
The institution of the jury may be aristocratic or democratic, according to the class from which the jurors are taken; but it always preserves its republican character, in that it places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government. Force is never more than a transient element of success, and after force comes the notion of right. A government able to reach its enemies only upon a field of battle would soon be destroyed. The true sanction of political laws is to be found in penal legislation; and if that sanction is wanting, the law will sooner or later lose its cogency. He who punishes the criminal is therefore the real master of society. Now, the institution of the jury raises the people itself, or at least a class of citizens, to the bench of judges. The institution ------ institution, many arguments might be brought forward, and among others the following:
In proportion as you introduce the jury into the business of the courts you are enabled to diminish the number of judges, which is a great advantage. When judges are very numerous, death is perpetually thinning the ranks of the judicial functionaries and leaving places vacant for new-comers. The ambition of the magistrates is therefore continually excited, and they are naturally made dependent upon the majority or the person who nominates to vacant offices; the officers of the courts then advance as do the officers of an army. This state of things is entirely contrary to the sound administration of justice and to the intentions of the legislator. The office of a judge is made inalienable in order that he may remain independent, but of what advantage is it that his independence should be protected if he be tempted to sacrifice it of his own accord? When judges are very numerous many of them must necessarily be incapable; for a great magistrate is a man of no common powers: I do not know if a half-enlightened tribunal is not the worst of all combinations for attaining those ends which underlie the establishment of courts of justice. For my own part, I had rather submit the decision of a case to ignorant jurors directed by a skillful judge than to judges a majority of whom are imperfectly acquainted with jurisprudence and with the laws. of the jury consequently invests the people, or that class of citizens, with the direction of society.5
In England the jury is selected from the aristocratic portion of the nation; the aristocracy makes the laws, applies the laws, and punishes infractions of the laws; 6 everything is established upon a consistent footing, and England may with truth be said to constitute an aristocratic republic. In the United States the same system is applied to the whole people. Every American citizen is both an eligible and a legally qualified voter.7 The jury system as it is understood in America appears to me to be as direct and as extreme a consequence of the sovereignty of the people as universal suffrage. They are two instruments of equal power, which contribute to the supremacy of the majority. All the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its directions, have destroyed or enfeebled the institution of the jury. The Tudor monarchs sent to prison jurors who refused to convict, and Napoleon caused them to be selected by his agents.
However clear most of these truths may seem to be, they do not command universal assent; and in France, at least, trial by jury is still but imperfectly understood. If the question arises as to the proper qualification of jurors, it is confined to a discussion of the intelligence and knowledge of the citizens who may be returned, as if the jury was merely a judicial institution. This appears to me the least important part of the subject. The jury is pre-eminently a political institution; it should be regarded as one form of the sovereignty of the people: when that sovereignty is repudiated, it must be rejected, or it must be adapted to the laws by which that sovereignty is established. The jury is that portion of the nation to which the execution of the laws is entrusted, as the legislature is that part of the nation which makes the laws; and in order that society may be governed in a fixed and uniform manner, the list of citizens qualified to serve on juries must increase and diminish with the list of electors. This I hold to be the point of view most worthy of the attention of the legislator; all that remains is merely accessory.
I am so entirely convinced that the jury is pre-eminently a political institution that I still consider it in this light when it is applied in civil causes. Laws are always unstable unless they are founded upon the customs of a nation: customs are the only durable and resisting power in a people. When the jury is reserved for criminal offenses, the people witness only its occasional action in particular cases; they become accustomed to do without it in the ordinary course of life, and it is considered as an instrument, but not as the only instrument, of obtaining justice.8
When, on the contrary, the jury acts also on civil causes, its application is constantly visible; it affects all the interests of the community; everyone co-operates in its work: it thus penetrates into all the usages of life, it fashions the human mind to its peculiar forms, and is gradually associated with the idea of justice itself.
The institution of the jury, if confined to criminal causes, is always in danger; but when once it is introduced into civil proceedings, it defies the aggressions of time and man. If it had been as easy to remove the jury from the customs as from the laws of England, it would have perished under the Tudors, and the civil jury did in reality at that period save the liberties of England. In whatever manner the jury be applied, it cannot fail to exercise a powerful influence upon the national character; but this influence is prodigiously increased when it is introduced into civil causes. The jury, and more especially the civil jury, serves to communicate the spirit of the judges to the minds of all the citizens and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged and with the notion of right. If these two elements be removed, the love of independence becomes a mere destructive passion. It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged. And this is especially true of the jury in civil causes, for while the number of persons who have reason to apprehend a criminal prosecution is small, everyone is liable to have a lawsuit. The jury teaches every man not to recoil before the responsibility of his own actions and impresses him with that manly confidence without which no political virtue can exist. It invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society.
The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties. I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use that they have made of the jury in civil causes.
I do not know whether the jury is useful to those who have lawsuits, but I am certain it is highly beneficial to those who judge them; and I look upon it as one of the most efficacious means for the education of the people which society can employ.
What I have said applies to all nations, but the remark I am about to make is peculiar to the Americans and to democratic com- munities. I have already observed that in democracies the members of the legal profession and the judicial magistrates constitute the only aristocratic body which can moderate the movements of the people. This aristocracy is invested with no physical power; it exercises its conservative influence upon the minds of men; and the most abundant source of its authority is the institution of the civil jury. In criminal causes, when society is contending against a single man, the jury is apt to look upon the judge as the passive instrument of social power and to mistrust his advice. Moreover, criminal causes turn entirely upon simple facts, which common sense can readily appreciate; upon this ground the judge and the jury are equal. Such is not the case, however, in civil causes; then the judge appears as a disinterested arbiter between the conflicting passions of the parties. The jurors look up to him with confidence and listen to him with respect, for in this instance, his intellect entirely governs theirs. It is the judge who sums up the various arguments which have wearied their memory, and who guides them through the devious course of the proceedings; he points their attention to the exact question of fact that they are called upon to decide and tells them how to answer the question of law. His influence over them is almost unlimited.
If I am called upon to explain why I am but little moved by the arguments derived from the ignorance of jurors in civil causes, I reply that in these proceedings, whenever the question to be solved is not a mere question of fact, the jury has only the semblance of a judicial body. The jury only sanctions the decision of the judge; they sanction this decision by the authority of society which they represent, and he by that of reason and of law.9
In England and in America the judges exercise an influence upon criminal trials that the French judges have never possessed. The reason for this difference may easily be discovered; the English and American magistrates have established their authority in civil causes and only transfer it afterwards to tribunals of another kind, where it was not first acquired. In some cases, and they are frequently the most important ones, the American judges have the right of deciding causes alone.10 On these occasions they are accidentally placed in the position that the French judges habitually occupy, but their moral power is much greater; they are still surrounded by the recollection of the jury, and their judgment has almost as much authority as the voice of the community represented by that institution. Their influence extends far beyond the limits of the courts; in the recreations of private life, as well as in the turmoil of public business, in public, and in the legislative assemblies, the American judge is constantly surrounded by men who are accustomed to regard his intelligence as superior to their own; and after having exercised his power in the decision of causes, he continues to influence the habits of thought, and even the characters, of those who acted with him in his official capacity.
The jury, then, which seems to restrict the rights of the judiciary, does in reality consolidate its power; and in no country are the judges so powerful as where the people share their privileges.
Footnotes
1 See Chapter VI, on "The Judicial Power in the United States."
2 The consideration of trial by jury as a judicial institution, and the appraisal of its effects in the United States, together with an inquiry into the manner in which the Americans have used it, would suffice to form a book, and a book very interesting to France. One might trace therein, for example, what parts of the American system pertaining to the jury might be introduced among us, and by what steps. The state of Louisiana would throw the most light upon the subject, as it has a mingled population of French and English. The two systems of law, as well as the two nations, are there found side by side and are gradually combining with each other. The most useful books to consult would be the Digeste des Lois de la Louis¡ane; and the Trait‚ sur les RŠgles des Actions civiles, printed in French and English at New Orleans, in 1830, by Buisson. This book has a special advantage, it presents, for Frenchmen, an exact and an authentic glossary of English legal terms. The language of law is everywhere different from that of the people, a fact particularly true of the English.
3 All the English and American jurists are unanimous on this point. Mr. Story, Justice of the Supreme Court of the United States, speaks, in his Commentaries on the Constitution, of the advantages of trial by jury in civil cases: "The inestimable privilege of a trial by jury in civil cases," says he, "a privilege scarcely inferior to that in criminal cases, which is counted by all persons to be essential to political and civil liberty." ( Story, Book III, Ch. 38. )
4 If it were our object to establish the utility of the jury as a judicial
5 An important remark must, however, be made. Trial by jury does unquestionably invest the people with a general control over the actions of the citizens, but it does not furnish means of exercising this control in all cases or with an absolute authority. When an absolute monarch has the right of trying offenses by his representatives, the fate of the prisoner is, as it were, decided beforehand. But even if the people were predisposed to convict, the composition and the non-responsibility of the jury would still afford some chances favorable to the protection of innocence
6 See Appendix Q.
7 See Appendix R.
8 This is unequivocally true since the jury is employed only in certain criminal cases.
9 See Appendix S.
10 The Federal judges decide almost always only such questions as touch directly the government of the country. It is especially by means of the jury in civil causes that the American magistrates imbue even the lower classes of society with the spirit of their profession. Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it how to rule well.
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