Democracy In America, Volume 1
by
Alexis de Toqueville
Part 7 out of 11
gardens, museums, etc.; and the conduct of the people in these
places of amusement has improved in the same proportion.]]
The government of 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 the members of the community; and I confess that, to
my mind, this is one of its greatest advantages. I do not assert
that it is easy to teach men 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 our own.
It is clear that the influence of religious belief is shaken, and
that the notion of divine rights is declining; it is evident that
public morality is vitiated, and the notion of moral rights is
also disappearing: these are general symptoms of the substitution
of argument for faith, and of calculation for the impulses of
sentiment. If, in the midst of this general disruption, you do
not succeed in connecting the notion of rights with that of
personal 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, since the laws are weak and the
populace is wild, since passions are excited and the authority of
virtue is paralyzed, no measures must be taken to increase the
rights of the democracy, I reply, that it is for these very
reasons that some measures of the kind must be taken; and I am
persuaded that governments are still more interested in taking
them than society at large, because governments are liable to be
destroyed and society cannot perish.
I am not, however, inclined to exaggerate the example which
America furnishes. In those States the people are invested with
political rights at a time when they could scarcely be abused,
for the citizens were few in number and simple in their manners.
As they have increased, the Americans have not augmented the
power of the democracy, but they have, if I may use the
expression, extended its dominions. 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, though it be a
necessary one. 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 away from him. The lower
orders, when first they are 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 even
be perceived in America. The States in which the citizens have
enjoyed their rights 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. Such is not the
case with despotic institutions: 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 which accrues to it, until
it is roused to a sense of its own misery. Liberty, on the
contrary, is generally established in the midst of agitation, it
is perfected by civil discord, and its benefits cannot be
appreciated until it is already old.
Chapter XIV: Advantages American Society Derive From Democracy -
Part II
Respect For The Law In The United States
Respect of the Americans for the law - Parental affection which
they entertain for it - Personal interest of everyone to increase
the authority of the law.
It is not always feasible to consult the whole people,
either directly or indirectly, in the formation of the law; but
it cannot be denied that, when such a measure is possible the
authority of the law is very much augmented. This popular origin,
which impairs the excellence and the wisdom of legislation,
contributes prodigiously to increase its power. There is an
amazing strength in the expression of the determination of a
whole people, and when it declares itself the imagination of
those who are most inclined to contest it is overawed by its
authority. The truth of this fact is very 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 the body
of those persons who had no votes to give.
In the United States, except slaves, servants, and paupers
in the receipt of relief from 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 design to
attack the laws must consequently either modify the opinion of
the nation or trample upon its decision.
A second reason, which is still more weighty, may be further
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 originates in his own authority,
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 which always looks upon the law as its
natural enemy, and accordingly surveys it with fear and with fear
and with distrust. It is impossible, on the other hand, not to
perceive that all classes display the utmost reliance upon the
legislation of their country, and that they 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, the wealthy
are there placed in a position analogous to that of the poor in
the Old World, and it is the opulent classes which frequently
look upon the 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 the whole community,
but simply that it protects those of the majority. In the United
States, where the poor rule, the rich have always some reason to
dread the abuses of their power. This natural anxiety of the rich
may produce a sullen dissatisfaction, but society is not
disturbed by it; for the same reason which induces the rich to
withhold their confidence in the legislative authority makes them
obey its mandates; their wealth, which prevents them from making
the law, prevents them from withstanding it. Amongst civilized
nations revolts are rarely excited, except by such persons as
have nothing to lose by them; and if the laws of a democracy are
not always worthy of respect, at least they always obtain it; for
those who usually infringe the laws have no excuse for not
complying with the enactments they have themselves made, and by
which they are themselves benefited, whilst the citizens whose
interests might be promoted by the infraction of them are
induced, by their character and their stations, to submit to the
decisions of the legislature, whatever they may be. Besides
which, the people in America obeys the law not only because it
emanates from the popular authority, but because that authority
may modify it in any points which may prove vexatory; a law is
observed because it is a self-imposed evil in the first place,
and an evil of transient duration in the second.
Activity Which Pervades All The Branches Of The Body Politic In
The United States; Influence Which It Exercises Upon Society
More difficult to conceive the political activity which pervades
the United States than the freedom and equality which reign there
- The great activity which perpetually agitates the legislative
bodies is only an episode to 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 country in which free institutions are
established to one where they do not exist, the traveller is
struck by the change; in the former all is bustle and activity,
in the latter everything is calm and motionless. In the one,
amelioration and progress are the general topics of inquiry; in
the other, it seems as if the community only aspired to repose in
the enjoyment of the advantages which it has acquired.
Nevertheless, the country which exerts itself so strenuously to
promote its welfare is generally more wealthy and more prosperous
than that which appears to be so contented with its lot; and when
we compare them together, we can scarcely conceive how so many
new wants are daily felt in the former, whilst so few seem to
occur in the latter.
If this remark is applicable to those free countries in
which monarchical and aristocratic institutions subsist, it is
still more striking with regard to democratic republics. In
these States it is not only a portion of the people which is
busied with the amelioration of its social condition, but the
whole community is engaged in the task; and it is not the
exigencies and the convenience of a single class for which a
provision is to be made, but the exigencies and the convenience
of all ranks of life.
It is not impossible to conceive the surpassing liberty
which the Americans enjoy; some idea may likewise be formed of
the extreme equality which subsists amongst them, but the
political activity which pervades the United States must be seen
in order to be understood. No sooner do you set foot upon the
American soil than you are stunned by a kind of tumult; a
confused clamor is heard on every side; and a thousand
simultaneous voices demand the immediate 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 further the delegates of a district are
posting to the town in order to consult upon some local
improvements; or in another place the laborers of a village quit
their ploughs 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 line of conduct pursued by
the Government; whilst in other assemblies the 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 under which the State labors, and which
solemnly bind themselves to give a constant example of
temperance. *c
[Footnote c: 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
fermented liquors by 500,000 gallons per annum in the State of
Pennsylvania alone.]
The great political agitation of the American legislative
bodies, which is the only kind of excitement that attracts the
attention of foreign countries, 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 efforts in the
pursuit of enjoyment.
The cares of political life engross a most prominent place
in the occupation of a citizen in the United States, and almost
the only pleasure of which an American has any idea is to take a
part in the Government, and to discuss the part he has taken.
This feeling pervades the most trifling habits of life; even the
women frequently attend public meetings and listen to political
harangues as a recreation after their household labors. Debating
clubs are to a certain extent a substitute for theatrical
entertainments: an American cannot converse, but he can discuss;
and when he attempts to talk he falls into a dissertation. He
speaks to you as if he was addressing a meeting; and if he should
chance to warm in the course of the discussion, he will
infallibly say, "Gentlemen," to the person with whom he is
conversing.
In some countries the inhabitants display a certain
repugnance to avail themselves of the political privileges with
which the law invests 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 prefer to withdraw within the exact limits of
a wholesome egotism, 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.
*d I am persuaded that, if ever a despotic government is
established in America, it will find it more difficult to
surmount the habits which free institutions have engendered than
to conquer the attachment of the citizens to freedom.
[Footnote d: The same remark was made at Rome under the first
Caesars. 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.]
This ceaseless agitation which democratic government has
introduced into the political world influences all social
intercourse. I am not sure that upon the whole this is not the
greatest advantage of democracy. And I am much less inclined to
applaud it for what it does than for what it causes to be done.
It is incontestable that the people frequently conducts
public business very ill; but it is impossible that the lower
orders should take a part in public business without extending
the circle of their ideas, and without quitting the ordinary
routine of their mental acquirements. The humblest individual
who is called upon to co-operate in the government of society
acquires a certain degree of self-respect; and as he possesses
authority, he can command the services of minds much more
enlightened than his own. He is canvassed by a multitude of
applicants, who seek to deceive him in a thousand different ways,
but who instruct him by their deceit. He takes a part in
political undertakings which did not originate in his own
conception, but which give him a taste for undertakings of the
kind. New ameliorations are daily pointed out in the property
which he holds in common with others, and this gives him the
desire of improving that property which is more peculiarly 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 engendered by the laws, but the people
learns how to promote it by the experience derived from
legislation.
When the opponents of democracy assert that a single
individual performs the duties which he undertakes much better
than the government of the community, it appears to me that they
are perfectly right. The government of an individual, supposing
an equality of instruction on either side, is more consistent,
more persevering, and more accurate than that of a multitude, and
it is much better qualified judiciously to discriminate the
characters of the men it employs. If any deny what I advance,
they have certainly never seen a democratic government, or have
formed their opinion upon very partial evidence. It is true that
even when local circumstances and the disposition of the people
allow democratic institutions to subsist, they never display a
regular and methodical system of government. Democratic liberty
is far from accomplishing all the projects it undertakes, with
the skill of an adroit despotism. It frequently abandons them
before they have borne their fruits, or risks them when the
consequences may prove dangerous; but in the end it produces more
than any absolute government, and if it do fewer things well, it
does a greater number of things. Under its sway the transactions
of the public administration are not nearly so important as what
is done by private exertion. Democracy does not confer the most
skilful kind of government upon the people, but it produces that
which the most skilful governments are frequently unable to
awaken, namely, an all-pervading and restless activity, a
superabundant force, and an energy which is inseparable from it,
and which may, under favorable circumstances, beget the most
amazing benefits. 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 its foe
whilst it is yet in its early growth; and others are ready with
their vows of adoration for this new deity which is springing
forth from chaos: but both parties are very imperfectly
acquainted with the object of their hatred or of their desires;
they strike in the dark, and distribute their blows by mere
chance.
We must first understand what the purport of society and the
aim of government is held to be. If it be your intention to
confer a certain elevation upon the human mind, and to teach it
to regard the things of this world with generous feelings, to
inspire men with a scorn of mere temporal advantage, to give
birth to living convictions, and to keep alive the spirit of
honorable devotedness; if you hold it to be a good thing to
refine the habits, to embellish the manners, to cultivate the
arts of a nation, and to promote the love of poetry, of beauty,
and of renown; if you would constitute a people not unfitted to
act with power upon all other nations, nor unprepared for those
high enterprises which, whatever be the result of its efforts,
will leave a name forever famous in time - if you believe such to
be the principal object of society, you must avoid the government
of democracy, which would be a very uncertain guide to the end
you have in view.
But if you hold it to be expedient to divert the moral and
intellectual activity of man to the production of comfort, and to
the acquirement of the necessaries of life; if a clear
understanding be more profitable to man than genius; if your
object be not to stimulate the virtues of heroism, but to create
habits of peace; if you had rather witness vices than crimes and
are content to meet with fewer noble deeds, provided offences be
diminished in the same proportion; if, instead of living in the
midst of a brilliant state of society, you are contented to have
prosperity around you; if, in short, you are of opinion that the
principal object of a Government is not to confer the greatest
possible share of power and of glory upon the body of the nation,
but to ensure the greatest degree of enjoyment and the least
degree of misery to each of the individuals who compose it - if
such be your desires, you can have no surer means of satisfying
them than by equalizing the conditions of men, and establishing
democratic institutions.
But if the time be passed at which such a choice was
possible, and if some superhuman power impel us towards one or
the other of these two governments without consulting our wishes,
let us at least endeavor to make the best of that which is
allotted to us; and let us so inquire into its good and its evil
propensities as to be able to foster the former and repress the
latter to the utmost.
Chapter XV: Unlimited Power Of Majority, And Its Consequences -
Part I
Chapter Summary
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.
Unlimited Power Of The Majority In The United States, And Its
Consequences
The very essence of democratic government consists in the
absolute sovereignty of the majority; for there is nothing in
democratic States which is capable of resisting it. Most of the
American Constitutions have sought to increase this natural
strength of the majority by artificial means. *a
[Footnote a: We observed, in examining the Federal Constitution,
that the efforts of the legislators of the Union had been
diametrically opposed to the present tendency. 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 external affairs; and the
governments of the State are in the governments of the States are
in reality the authorities which direct society in America.]
The legislature is, of all political institutions, the one
which is most easily swayed by the wishes of the majority. The
Americans determined that the members of the legislature should
be elected by the people immediately, and for a very brief term,
in order to subject them, not only to the general convictions,
but even to the daily passion, of their constituents. The
members of both houses are taken from the same class in society,
and are nominated in the same manner; so that the modifications
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.
But whilst 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 of all stability and
independence, and by subjecting them completely to the caprices
of the legislature, it robbed them of the slender influence which
the nature of a democratic government might have allowed them to
retain. In several States the judicial power was also submitted
to the elective discretion 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, however, has done even more than law. A proceeding
which will in the end set all the guarantees of representative
government at naught is becoming more and more general in the
United States; it frequently happens that the electors, who
choose a delegate, point out a certain line of conduct to him,
and impose upon him a certain number of positive obligations
which he is pledged to fulfil. With the exception of the tumult,
this comes to the same thing as if the majority of the populace
held its deliberations in the market-place.
Several other circumstances concur in rendering 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 more wisdom in a great
number of men collected together than in a single individual, and
that the quantity of legislators is more important than their
quality. The theory of equality is in fact applied to the
intellect of man: and human pride is thus assailed in its last
retreat by a doctrine which the minority hesitate to admit, and
in which they very slowly concur. Like all other powers, and
perhaps more than all other powers, the authority of the many
requires the sanction of time; at first it enforces obedience by
constraint, but its laws are not respected until they have long
been 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 would be sufficient of itself to create a free nation, has
now been amalgamated with the manners of the people and the minor
incidents of social intercourse.
The French, under the old monarchy, held it for a maxim
(which is still a fundamental principle of the English
Constitution) that the King could do no wrong; and if he did do
wrong, the blame was imputed to his advisers. This notion was
highly favorable to habits of obedience, and 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
preferred to those of the few. It will readily be perceived that
the respect here professed for the rights of the majority must
naturally increase or diminish according to the state of parties.
When a nation is divided into several irreconcilable factions,
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 ranks of the multitude, it
is probable that the minority would be less ready to comply with
its laws. But as the United States were colonized by men holding
equal rank amongst themselves, there is as yet no natural or
permanent source of dissension between the interests of its
different inhabitants.
There are certain communities in which the persons who
constitute the minority can never hope to draw over the majority
to their side, because they must then give up the very point
which is at issue between them. Thus, an aristocracy can never
become a majority whilst 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 right of the majority, because they all hope to
turn those rights to their own advantage at some future time.
The majority therefore in that country exercises a prodigious
actual authority, and a moral influence which is scarcely less
preponderant; no obstacles exist which can impede or so much as
retard its progress, or which can induce it to heed the
complaints of those whom it crushes upon its path. This state of
things is fatal in itself and dangerous for the future.
How The Unlimited Power Of The Majority Increases In America The
Instability Of Legislation And Administration Inherent In
Democracy The Americans increase the mutability of the laws which
is inherent in democracy by changing the legislature every year,
and by investing it with unbounded authority - The same effect is
produced upon the administration - In America social amelioration
is conducted more energetically but less perseveringly than in
Europe.
I have already spoken of the natural defects of democratic
institutions, and they all of them increase at the exact ratio of
the power of the majority. To begin with the most evident of them
all; the mutability of the laws is an evil inherent in democratic
government, because it is natural to democracies to raise men to
power in very rapid succession. But this evil is more or less
sensible in proportion to the authority and the means of action
which the legislature possesses.
In America the authority exercised by the legislative bodies
is supreme; nothing prevents them from accomplishing their wishes
with celerity, and with irresistible power, whilst they are
supplied by new representatives every year. That is to say, the
circumstances which contribute most powerfully to democratic
instability, and which admit of the free application of caprice
to every object in the State, are here in full operation. In
conformity with this principle, America is, at the present day,
the country in the world where laws last the shortest time.
Almost all the American constitutions have been amended within
the course of thirty years: there is therefore not a single
American State which has not modified the principles of its
legislation in that lapse of time. As for the laws themselves, a
single glance upon 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 that it is allowed to
follow its capricious propensities in the formation of the laws.
*b
[Footnote b: 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 published 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.]
The omnipotence of the majority, and the rapid as well as
absolute manner in which its decisions are executed in the United
States, has not only the effect of rendering the law unstable,
but it exercises the same influence upon the execution of the law
and the conduct of the public administration. As the majority is
the only power which 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; whilst in the
free States of Europe the administration is at once independent
and secure, so that the projects of the legislature are put into
execution, although its immediate attention may be directed to
other objects.
In America certain ameliorations are undertaken 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 was excited
by the statements which they put forward, and the regeneration of
criminals became a very popular undertaking. New prisons were
built, and for the first time the idea of reforming as well as of
punishing the delinquent formed a part of prison discipline. But
this happy alteration, in which the public had taken so hearty an
interest, and which the exertions of the citizens had
irresistibly accelerated, could not be completed in a moment.
Whilst the new penitentiaries were being erected (and it was the
pleasure of the majority that they should be terminated with all
possible celerity), the old prisons existed, which still
contained a great number of offenders. These jails became more
unwholesome and more corrupt in proportion as the new
establishments were beautified and improved, forming a contrast
which 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 afterwards broken; so that in the immediate
neighborhood of a prison which bore witness to the mild and
enlightened spirit of our time, dungeons might be met with which
reminded the visitor of the barbarity of the Middle Ages.
Chapter XV: Unlimited Power Of Majority, And Its Consequences -
Part II
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 centre 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 an execrable maxim that,
politically speaking, a people has a right to do whatsoever it
pleases, 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 consequently confined within the limits of what is just. A
nation may be considered in the light of a jury which is
empowered to represent society at large, and to apply the great
and general law of justice. Ought such a jury, which represents
society, to have more power than the society in which the laws it
applies originate?
When I refuse to obey an unjust law, I do not contest the
right which the majority has of commanding, but I simply appeal
from the sovereignty of the people to the sovereignty of mankind.
It has been asserted that a people can never entirely outstep the
boundaries of justice and of reason in those affairs which are
more peculiarly its own, and that consequently, full power may
fearlessly be given to the majority by which it is represented.
But this language is that of a slave.
A majority taken collectively may be regarded as a being
whose opinions, and most frequently whose interests, are opposed
to those of another being, which is styled a minority. If it be
admitted that a man, possessing absolute power, may misuse that
power by wronging his adversaries, why should a majority not be
liable to the same reproach? Men are not apt to change their
characters by agglomeration; nor does their patience in the
presence of obstacles increase with the consciousness of their
strength. *c And for these reasons I can never willingly invest
any number of my fellow- creatures with that unlimited authority
which I should refuse to any one of them.
[Footnote c: No one will assert that a people cannot forcibly
wrong another people; but parties may be looked upon as lesser
nations within a greater one, and they are aliens to each other:
if, therefore, it be admitted that a nation can act tyrannically
towards another nation, it cannot be denied that a party may do
the same towards another party.]
I do not think that it is possible to combine several
principles in the same government, so as at the same time to
maintain freedom, and really to oppose them to one another. The
form of government which is usually termed mixed has always
appeared to me to be a mere chimera. Accurately speaking there
is no such thing as a mixed government (with the meaning 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 more
especially cited as an example of this form of Government, was in
point of fact an essentially aristocratic State, although it
comprised very powerful elements of democracy; for the laws and
customs of the country were such that the aristocracy could not
but preponderate in the end, and subject the direction of public
affairs to its own will. The error arose from too much attention
being paid to the actual struggle which was going on between the
nobles and the people, without considering the probable issue of
the contest, which was in reality the important point. When a
community really has a mixed government, that is to say, when it
is equally divided between two adverse principles, it must either
pass through a revolution or fall into complete dissolution.
I am therefore of opinion that some one social power must
always be made to predominate over the others; but I think that
liberty is endangered when this power is checked by no obstacles
which may retard its course, and force it 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,
and God alone can be omnipotent, because His wisdom and His
justice are always equal to His power. But no power upon earth is
so worthy of honor for itself, or of reverential obedience to the
rights which it represents, that I would consent to admit its
uncontrolled and all-predominant authority. When I see that the
right and the means of absolute command are conferred on a people
or upon a king, upon an aristocracy or a democracy, a monarchy or
a republic, I recognize the germ of tyranny, and I journey onward
to a land of more hopeful institutions.
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
overpowering strength; and I am not so much alarmed at the
excessive liberty which reigns in that country as at the very
inadequate securities which exist against tyranny.
When 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 its injunctions;
if to the executive power, it is appointed by the majority, and
remains a passive tool in its hands; the public troops consist 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 evil of which you complain may be, you must submit to
it as well as you can. *d
[Footnote d: A striking instance of the excesses which may be
occasioned by the despotism of the majority occurred at Baltimore
in the year 1812. At that time the war was very popular in
Baltimore. A journal which had taken the other side of the
question excited the indignation of the inhabitants by its
opposition. The populace assembled, broke the printing-presses,
and attacked the houses of the newspaper editors. The militia
was called out, but no one obeyed the call; and the only means of
saving the poor 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 were acquitted by the jury when they
were brought to trial.
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, freed blacks are not
allowed to exercise civil rights. They pay the taxes; is it not
fair that they should have a vote?"
"You insult us," replied my informant, "if you imagine that
our legislators could have committed so gross an act of injustice
and intolerance."
"What! then the blacks possess the right of voting in this
county?"
"Without the smallest doubt."
"How comes it, then, that at the polling-booth this morning
I did not perceive a single negro in the whole meeting?"
"This 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 parts!" 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
privileges."
"What! then the majority claims the right not only of
making the laws, but of breaking the laws it has made?"]
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
certain degree of uncontrolled authority; and a judiciary, so as
to remain independent of the two other powers; a government would
be formed which would still be democratic without incurring any
risk of tyrannical abuse.
I do not say that tyrannical abuses frequently occur in
America at the present day, but I maintain that no sure barrier
is established against them, and that the causes which mitigate
the government are to be found in the circumstances and the
manners of the country more than in its laws.
Effects Of The Unlimited Power Of The Majority Upon The Arbitrary
Authority Of The 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, and in that
case it is not arbitrary; arbitrary power may be exercised for
the good of the community at large, in which case it is not
tyrannical. Tyranny usually employs arbitrary means, but, if
necessary, it can rule without them.
In the United States the unbounded power of the majority,
which is favorable to the legal despotism of the legislature, is
likewise favorable to the arbitrary authority of the magistrate.
The majority has an entire control over the law when it is made
and when it is executed; and as it possesses an equal authority
over those who are in power and the community at large, it
considers public officers as its passive agents, and readily
confides the task of serving its designs to their vigilance. The
details of their office and the privileges which they are to
enjoy are rarely defined beforehand; but the majority treats them
as a master does his servants when they are always at work in his
sight, and he has the power of directing or reprimanding them at
every instant.
In general the American functionaries are far more
independent than the French civil officers within the sphere
which is prescribed to them. 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 co-operation, of the
majority, they venture upon such manifestations of their power as
astonish a European. 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 of this - Moral power
exercised by the majority upon opinion - Democratic republics
have deprived despotism of its physical instruments - Their
despotism sways the minds of men.
It is in the examination of the display of public opinion 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. Intellectual principles exercise an
influence which is so invisible, and often so inappreciable, that
they baffle the toils of oppression. At the present time the
most absolute monarchs in Europe are unable to prevent certain
notions, which are opposed to their authority, from circulating
in secret throughout their dominions, and even in their courts.
Such is not the case in America; as long as the majority is still
undecided, discussion is carried on; but as soon as its decision
is irrevocably pronounced, a submissive silence is observed, and
the friends, as well as the opponents, of the measure unite in
assenting to its propriety. The reason of 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 with the
energy of a majority which is invested with the right of making
and of executing the laws.
The authority of a king is purely physical, and it controls
the actions of the subject without subduing his private will; but
the majority possesses a power which is physical and moral at the
same time; it acts upon the will as well as upon the actions of
men, and it represses not only all contest, but all controversy.
I know no country in which there is so little true
independence of mind and freedom of discussion as in America. In
any constitutional state in Europe every sort of religious and
political theory may be advocated and propagated abroad; for
there is no country in Europe so subdued by any single authority
as not to contain citizens who are ready 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 is upon his side; if he inhabits
a free country, he may find a shelter behind the authority of the
throne, if he require one. 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 sole authority, one
single element of strength and of success, with nothing beyond
it.
In America the majority raises very formidable barriers to
the liberty of opinion: within these barriers an author may write
whatever he pleases, but he will repent it if he ever step beyond
them. Not that he is exposed to the terrors of an auto-da-fe,
but he is tormented by the slights and persecutions of daily
obloquy. His political career is closed forever, since he has
offended the only authority which is able to promote his success.
Every sort of compensation, even that of celebrity, is refused to
him. Before he published his opinions he imagined that he held
them in common with many others; but no sooner has he declared
them openly than he is loudly censured by his overbearing
opponents, whilst those who think without having the courage to
speak, like him, abandon him in silence. He yields at length,
oppressed by the daily efforts he has been making, and he
subsides into silence, as if he was tormented by remorse for
having spoken the truth.
Fetters and headsmen were the coarse instruments which
tyranny formerly employed; but the civilization of our age has
refined the arts of despotism which seemed, however, to have been
sufficiently perfected before. The excesses of monarchical power
had devised a variety of physical means of oppression: the
democratic republics of the present day have rendered it as
entirely an affair of the mind as that will which it is intended
to coerce. Under the absolute sway of an individual despot the
body was attacked in order to subdue the soul, and the soul
escaped the blows which were directed against it and rose
superior to the attempt; but such is not the course adopted by
tyranny in democratic republics; there the body is left free, and
the soul is enslaved. The sovereign can no longer say, "You
shall think as I do on pain of death;" but he says, "You are free
to think differently from me, and to retain your life, your
property, and all that you possess; but if such be your
determination, you are henceforth an alien 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 suffrages, and they will affect to scorn you if you
solicit 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 those who are most persuaded
of your innocence will abandon you too, lest they should be
shunned in their turn. Go in peace! I have given you your life,
but it is an existence in comparably worse than death."
Monarchical institutions have thrown an odium upon
despotism; let us beware lest democratic republics should restore
oppression, and should render it less odious and less 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 deride the
follies of the times; Labruyere inhabited the palace of Louis XIV
when he composed his chapter upon the Great, and Moliere
criticised the courtiers in the very pieces which 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 which has any foundation in
truth renders it indignant; from the style of its language to the
more solid virtues of its character, everything must be made the
subject of encomium. No writer, whatever be his eminence, can
escape from this tribute of adulation to his fellow-citizens. The
majority lives in the perpetual practice of self-applause, and
there are certain truths which the Americans can only learn from
strangers or from experience.
If great writers have not at present existed in America, the
reason is very simply 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 the wish
of publishing them. Unbelievers are to be met with in America,
but, to say the truth, there is no public organ of infidelity.
Attempts have been made by some governments to protect the
morality of nations by prohibiting licentious books. In the
United States no one is punished for this sort of works, but no
one is induced to write them; not because all the citizens are
immaculate in their manners, but because the majority of the
community is decent and orderly.
In these cases the advantages derived from the exercise of
this power are unquestionable, and I am simply discussing the
nature of the power itself. This irresistible authority is a
constant fact, and its judicious exercise is an accidental
occurrence.
Effects Of The Tyranny Of The Majority Upon The National
Character Of The Americans
Effects of the tyranny of the majority more sensibly felt
hitherto in the manners than in the conduct of society - They
check the development of leading characters - Democratic
republics organized like the United States bring the practice of
courting favor within the reach of the many - Proofs of this
spirit in the United States - Why there is more patriotism in the
people than in those who govern in its name.
The tendencies which I have just alluded to are as yet very
slightly perceptible in political society, but they already begin
to exercise an unfavorable influence upon the national character
of the Americans. I am inclined to attribute the singular
paucity of distinguished political characters to the
ever-increasing activity of the 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 took a full part in the general agitation of
mind common at that period, and they attained a high degree of
personal fame, which was reflected back upon the nation, but
which 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 with pride, thus exhibiting a
sort of independence in the very act of submission. These
peoples 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 necessary case
of a weak person, the other befits the temper of a lackey.
In free countries, where everyone is more or less called
upon to give his opinion in the affairs of state; in democratic
republics, where public life is incessantly commingled with
domestic affairs, where the sovereign authority is accessible on
every side, and where its attention can almost always be
attracted by vociferation, more persons are to be met with who
speculate upon its foibles and live at the cost of its passions
than in absolute monarchies. Not because men are naturally worse
in these States than elsewhere, but the temptation is stronger,
and of easier access at the same time. The result is a far more
extensive debasement of the characters of citizens.
Democratic republics extend the practice of currying favor
with the many, and they introduce it into a greater number of
classes at once: this is one of the most serious reproaches that
can be addressed to them. In democratic States organized on the
principles of the American republics, this is more especially the
case, where the authority of the majority is so absolute and so
irresistible that a man must give up his rights as a citizen, and
almost abjure his quality as a human being, if te intends to
stray from the track which it lays down.
In that immense crowd which throngs the avenues to power in
the United States I found very few men who displayed any of that
manly candor and that masculine independence of opinion which
frequently distinguished the Americans in former times, and which
constitutes the leading feature in distinguished characters,
wheresoever 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 correspond in their manner of judging. A
stranger does, indeed, sometimes meet with Americans who dissent
from these rigorous formularies; 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 which impair the
national character, and to point out such remedies as it might be
possible to apply; but no one is there to hear these things
besides 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
continue to hold a different language in public.
If ever these lines are 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
very many of them will acquit me at the bottom of their
conscience.
I have heard of patriotism in the United States, and it is a
virtue which may be found 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 has often great virtues, but the
courtiers are invariably servile. It is true that the American
courtiers do not say "Sire," or "Your Majesty" - a distinction
without a difference. They are forever talking of the natural
intelligence of the populace they serve; they do not debate the
question as to which of the virtues of their master is
pre-eminently worthy of admiration, for they assure him that he
possesses all the virtues under heaven 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 which we are addressing is too
superior to all the weaknesses of human nature to lose the
command of its temper for an instant; and 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." It would have been impossible for the
sycophants of Louis XIV to 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
cling to power. The only means of preventing men from degrading
themselves is to invest no one with that unlimited authority
which is the surest method of debasing them.
The Greatest Dangers Of The American Republics Proceed From The
Unlimited Power Of The Majority
Democratic republics liable to perish from a misuse of their
power, and not by 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 Hamilton and Jefferson upon this point.
Governments usually fall a sacrifice to impotence or to
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 once hostilities are begun between
parties, the government loses its control over society. But I do
not think that a democratic power is naturally without force or
without resources: say, rather, that it is almost always by the
abuse of its force and the misemployment of its resources that a
democratic government fails. Anarchy is almost always produced
by its tyranny or its mistakes, but not by its want of strength.
It is important not to confound stability with force, or the
greatness of a thing with its duration. In democratic republics,
the power which directs *e 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. *f
[Footnote e: This power may be centred in an assembly, in which
case it will be strong without being stable; or it may be centred
in an individual, in which case it will be less strong, but more
stable.]
[Footnote f: I presume that it is scarcely necessary to remind
the reader here, as well as throughout the remainder of this
chapter, that I am speaking, not of the Federal Government, but
of the several governments of each State, which the majority
controls at its pleasure.]
If ever the free institutions of America are destroyed, that
event may be attributed to the unlimited authority 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. Hamilton 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 has also thus expressed himself in a letter to
Madison: *g "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." I am glad to cite the opinion of Jefferson
upon this subject rather than that of another, because I consider
him to be the most powerful advocate democracy has ever sent
forth.
[Footnote g: March 15, 1789.]
Chapter XVI: Causes Mitigating Tyranny In The United States -
Part I
Chapter Summary
The national majority does not pretend to conduct all business -
Is obliged to employ the town and county magistrates to execute
its supreme decisions.
I have already pointed out the distinction which is to be
made 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 its
disposal, and united the habit of executing its own commands to
the right of commanding; if, after having established the general
principles of government, it descended to the details of public
business; and if, having regulated the great interests of the
country, it could penetrate into the privacy 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 more perfect instruments of tyranny. In the
American republics the activity of the central Government has
never as yet been extended beyond a limited number of objects
sufficiently prominent to call forth its attention. The
secondary affairs of society have never been regulated by its
authority, and nothing has hitherto betrayed its desire of
interfering in them. The majority is become more and more
absolute, but it 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 may therefore be looked upon as concealed
break-waters, which check or part the tide of popular excitement.
If an oppressive law were passed, the liberties of the people
would still be protected by the means by which that law would be
put in execution: the majority cannot descend to the details and
(as I will venture to style them) the puerilities of
administrative tyranny. Nor does the people entertain that full
consciousness of its authority which would prompt it to interfere
in these matters; it knows the extent of its natural powers, but
it is unacquainted with the increased resources which the art of
government might furnish.
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 a single individual had previously
subsisted, and the effects of a centralized administration had
sunk deep into the habits and the laws of the people, I do not
hesitate to assert, that in that country a more insufferable
despotism would prevail than any which now exists in the
monarchical States of Europe, or indeed than any which could be
found on this side of the confines of Asia.
The Profession Of The Law In The United States Serves To
Counterpoise The Democracy
Utility of discriminating the natural propensities of the members
of the legal profession - These men called upon to act a
prominent part in future society -In what manner the peculiar
pursuits of lawyers give an aristocratic turn to their ideas -
Accidental causes which 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 the 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
habits affect the legislature, the administration, and even the
people.
In visiting the Americans and in studying their laws we
perceive that the authority they have entrusted to members of the
legal profession, and the influence which these individuals
exercise in the Government, is 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, since it may produce analogous consequences
elsewhere.
The members of the legal profession have taken an important
part in all the vicissitudes of political society in Europe
during the last five hundred years. At one time they have been
the instruments of those who were invested with political
authority, and at another they have succeeded in converting
political authorities into their instrument. In the Middle Ages
they afforded a powerful support to the Crown, and since that
period they have exerted themselves to the utmost to limit the
royal prerogative. In England they have contracted a close
alliance with the aristocracy; in France they have proved to be
the most dangerous enemies of that class. It is my object to
inquire whether, under all these circumstances, the members of
the legal profession have been swayed by sudden and momentary
impulses; or whether they have been impelled by principles which
are inherent in their pursuits, and which will always recur in
history. I am incited to this investigation by reflecting that
this particular class of men will most likely play a prominent
part in that order of things to which the events of our time are
giving birth.
Men who have more especially devoted themselves to legal
pursuits derive from those occupations 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 which lawyers derive from their
studies ensures them a separate station in society, and they
constitute a sort of privileged body in the scale of
intelligence. 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 the blind passions of parties in
litigation to their purpose inspires them with a certain contempt
for the judgment of the multitude. To this it may be added that
they naturally constitute a body, not by any previous
understanding, or by an agreement which directs them to a common
end; but the analogy of their studies and the uniformity of their
proceedings connect their minds together, as much as a common
interest could combine their endeavors.
A portion of the tastes and of the habits of the aristocracy
may consequently be discovered in the characters of men in the
profession of the law. They participate in the same instinctive
love of order and of 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 the advantages of the
moment.
In a state of society in which the members of the legal
profession are prevented from holding 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 inquired whether the cause which induces them to innovate and
to destroy is accidental, or whether it belongs to some lasting
purpose which they entertain. 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
co-operating in the work of legislation.
Five hundred years ago the English nobles headed the people,
and spoke in its name; at the present time the aristocracy
supports the throne, and defends the royal prerogative. But
aristocracy has, notwithstanding this, 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 whatsoever form they may be, members of the legal profession
will be found at the head of all parties. The same remark is
also applicable to the aristocracy; for almost all the democratic
convulsions which 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 to content
and to employ than it can find places; so that a considerable
number of individuals are usually to be met with who are inclined
to attack those very privileges which they find it impossible to
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 usually are
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 which are the more
formidable to its security as they are independent of the
nobility by their industrious pursuits; and they feel themselves
to be its equal in point of intelligence, although they enjoy
less opulence and less 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, the consistency of a single order of 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 individuals and the executive
power than there is between them and the people; 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 occasionally resisted the prerogative of
the Crown in concert with the lower classes.
Lawyers are attached to public order beyond every other
consideration, and the best security of public order is
authority. It must not be forgotten that, if they prize the free
institutions of their country much, they nevertheless value the
legality of those institutions far more: they are less afraid of
tyranny than of arbitrary power; and provided that the
legislature take upon 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 at the shadow. He would
act more wisely in introducing men connected with the law into
the government; and if he entrusted them with the conduct of a
despotic power, bearing some marks of violence, that power would
most likely assume the external features of justice and of
legality in their hands.
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, they are sure to occupy the
highest stations, 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 to combine with the
aristocracy and to support the Crown, they are naturally brought
into 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 does not mistrust the members of the legal
profession, because it is well known that they are interested in
serving the popular cause; and it listens to them without
irritation, because it does not attribute to them any sinister
designs. The object of lawyers is not, indeed, to overthrow the
institutions of democracy, but they constantly endeavor to give
it an impulse which diverts it from its real tendency, by means
which are foreign to its nature. Lawyers belong to the people by
birth and interest, to the aristocracy by habit and by taste, and
they may be looked upon as the natural bond and connecting link
of the two great classes of society.
The profession of the law is the only aristocratic element
which can be amalgamated without violence with the natural
elements of democracy, and which can be advantageously and
permanently combined with them. I am not unacquainted with the
defects which are inherent in the character of that 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 subsist 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 legislation, and the
position which those persons 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 the decisions
of their forefathers. In the mind of an English or American
lawyer a taste and a reverence for what is old is almost always
united to 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 dr an American lawyer
quotes the opinions of others, and how little he alludes to his
own; whilst 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 perch 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 subjection of thought which he is obliged
to profess, necessarily give him more timid habits and more
sluggish inclinations in England and America than in France.
The French codes are often difficult of comprehension, but
they can be read by every one; nothing, on the other hand, can be
more impenetrable to the uninitiated than a legislation founded
upon precedents. The indispensable want of legal assistance
which is felt in England and in the United States, and the high
opinion which is generally entertained of the ability of the
legal profession, tend to separate it more and more from the
people, and to place it in 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 station which lawyers occupy in England and America
exercises no less an influence upon their habits and their
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 of 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 taste
and the ideas of the aristocratic circles in which they move with
the aristocratic interests of their profession.
And indeed the lawyer-like character which 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 be necessary to modify them in any
respect, or to adapt them the changes which time operates in
society, recourse is had to the most inconceivable contrivances
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 all intention of
innovation, and they had rather resort to absurd expedients than
plead guilty to so great a crime. This spirit appertains more
especially to the English lawyers; they seem indifferent to the
real meaning of what they treat, and they direct all their
attention to the letter, seeming inclined to infringe the rules
of common sense and of humanity rather than to swerve one title
from the law. The English legislation may be compared to the
stock of an old tree, upon which lawyers have engrafted the most
various shoots, with the hope that, although their fruits may
differ, their foliage at least will be confounded with the
venerable trunk which supports them all.
In America there are no nobles or men of letters, and the
people is apt to mistrust the wealthy; lawyers consequently form
the highest political class, and the most cultivated circle 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
composed of the rich, who are united together 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 shall we 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 perceive how eminently
the legal profession is qualified by its powers, and even by its
defects, to neutralize the vices which are inherent in popular
government. When the American people is intoxicated by passion,
or carried away by the impetuosity of its ideas, it is checked
and stopped by the almost invisible influence of its legal
counsellors, who secretly oppose their aristocratic propensities
to its democratic instincts, their superstitious attachment to
what is antique 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 most 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 which he has contracted in the study of legislation,
derives an additional love of stability from his own inalienable
functions. His legal attainments have already raised him to a
distinguished rank amongst his fellow-citizens; his political
power completes the distinction of his station, and gives him the
inclinations natural to privileged classes.
Armed with the power of declaring the laws to be
unconstitutional, *a the American magistrate perpetually
interferes in political affairs. He cannot force the people to
make laws, but at least he can oblige it not to disobey its own
enactments; or to act inconsistently with its own principles. 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 the judges from their station.
By some other constitutions the members of the tribunals are
elected, 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 the attack which is made upon the
judicial power has affected the democratic republic itself.
[Footnote a: See chapter VI. on the "Judicial Power in the United
States."]
It must not, however, be supposed that the legal spirit of
which I have been speaking has been confined, in the United
States, to the courts of justice; it extends far beyond them. As
the lawyers constitute the only enlightened class which the
people does not mistrust, they are naturally called upon to
occupy most of the public stations. They fill the legislative
assemblies, and they conduct the administration; they
consequently exercise a powerful influence upon the formation of
the law, and upon its execution. The lawyers are, however,
obliged to yield to the current of public opinion, which is too
strong for them to resist it, but it is easy to find indications
of what their conduct would be if they were free to act as they
chose. The Americans, who have made such copious innovations in
their political legislation, have introduced very sparing
alterations in their civil laws, and that with great difficulty,
although those laws are frequently repugnant to their social
condition. The reason of this is, that in matters of civil law
the majority is obliged to defer to the authority of the legal
profession, and that the American lawyers are disinclined to
innovate when they are left to their own choice.
It is curious for a Frenchman, accustomed to a very
different state of things, to hear the perpetual complaints which
are made in the United States against the stationary propensities
of legal men, and their prejudices in favor of existing
institutions.
The influence of the legal habits which are common in
America extends beyond the limits I have just pointed out.
Scarcely any question arises in the United States which does not
become, sooner or later, a subject of judicial debate; hence all
parties are obliged to borrow the ideas, and even the language,
usual in judicial proceedings in their daily controversies. As
most public men are, or have been, legal practitioners, they
introduce the customs and technicalities of their profession into
the affairs of the country. The jury extends this habitude 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 the whole people
contracts the habits and the tastes of the 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 to all the
movements of the social body; but this party extends over the
whole community, and it penetrates into all classes of society;
it acts upon the country imperceptibly, but it finally fashions
it to suit its purposes.
Chapter XVI: Causes Mitigating Tyranny In The United States -
Part II
Trial By Jury In The United States Considered As A Political
Institution
Trial by jury, which is one of the instruments of the sovereignty
of the people, deserves to be compared with the other laws which
establish that sovereignty - Composition of the jury in the
United States - Effect of trial by jury upon the national
character - It educates the people - It tends to establish the
authority of the magistrates and to extend a knowledge of law
among the people.
Since I have been led by my subject to recur to the
administration of justice in the United States, I will not pass
over this point without adverting 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 entered into
my present purpose to inquire how far trial by jury (more
especially in civil cases) contributes to insure the best
administration of justice, I admit that its utility might be
contested. As the jury was first introduced at a time when
society was in an uncivilized state, and when courts of justice
were merely called upon to decide on the evidence of facts, 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 the enlightened and
intellectual character of the age. *b
[Footnote b: The investigation of trial by jury as a judicial
institution, and the appreciation of its effects in the United
States, together with the advantages the Americans have derived
from it, would suffice to form a book, and a book upon a very
useful and curious subject. The State of Louisiana would in
particular afford the curious phenomenon of a French and English
legislation, as well as a French and English population, which
are gradually combining with each other. See the "Digeste des
Lois de la Louisiane," in two volumes; and the "Traite sur les
Regles des Actions civiles," printed in French and English at New
Orleans in 1830.]
My present object is to consider the jury as a political
institution, and any other course would divert me from my
subject. Of trial by jury, considered as a judicial institution,
I shall here say but very few words. When the English adopted
trial by jury they were a semi-barbarous people; they are become,
in course of time, one of the most enlightened nations of the
earth; and their attachment to this institution seems to have
increased with their increasing cultivation. They soon spread
beyond their insular boundaries to every corner 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 wherever
the English have been they have boasted of the privilege of trial
by jury. *c They have established it, or hastened to re-establish
it, in all their settlements. A judicial institution which
obtains the suffrages of a great people for so long a series of
ages, which is zealously renewed at every epoch of civilization,
in all the climates of the earth and under every form of human
government, cannot be contrary to the spirit of justice. *d
[Footnote c: All the English and American jurists are unanimous
upon this head. Mr. Story, judge of the Supreme Court of the
United States, speaks, in his "Treatise on the Federal
Constitution," of the advantages of trial by jury in civil cases:
- " The inestimable privilege of a trial by jury in civil cases -
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., chap. xxxviii.)]
[Footnote d: If it were our province to point out the utility of
the jury as a judicial institution in this place, much might be
said, and the following arguments might be brought forward
amongst others: -
By introducing the jury into the business of the courts you
are enabled to diminish the number of judges, which is a very
great advantage. When judges are very numerous, death is
perpetually thinning the ranks of the judicial functionaries, and
laying places vacant for newcomers. The ambition of the
magistrates is therefore continually excited, and they are
naturally made dependent upon the will of the majority, or the
individual who fills up the vacant appointments; the officers of
the court then rise like 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 of performing their important duties,
for a great magistrate is a man of no common powers; and I am
inclined to believe that a half-enlightened tribunal is the
worst of all instruments for attaining those objects which it is
the purpose of courts of justice to accomplish. For my own part,
I had rather submit the decision of a case to ignorant jurors
directed by a skilful judge than to judges a majority of whom are
imperfectly acquainted with jurisprudence and with the laws.]
I turn, however, from this part of the subject. To look
upon the jury as a mere judicial institution is to confine our
attention to a very narrow view of it; for however great its
influence may be upon the decisions of the law courts, that
influence is very subordinate to the powerful effects which it
produces on the destinies of the community 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
indiscriminately, and invested with a temporary right of judging.
Trial by jury, as applied to the repression of crime, appears to
me to introduce an eminently republican element into the
government upon the following grounds:-
The institution of the jury may be aristocratic or
democratic, according to the class of society from which the
jurors are selected; but it always preserves its republican
character, inasmuch as it places the real direction of society in
the hands of the governed, or of a portion of the governed,
instead of leaving it under the authority of the Government.
Force is never more than a transient element of success; and
after force comes the notion of right. A government which should
only be able to crush its enemies upon a field of battle would
very soon be destroyed. The true sanction of political laws is
to be found in penal legislation, and if that sanction be wanting
the law will sooner or later lose its cogency. He who punishes
infractions of the law 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 judicial authority.
The institution of the jury consequently invests the people, or
that class of citizens, with the direction of society. *e
[Footnote e: An important remark must, however, be made. Trial
by jury does unquestionably invest the people with a general
control over the actions of 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 offences 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.]
In England the jury is returned from the aristocratic
portion of the nation; *f the aristocracy makes the laws, applies
the laws, and punishes all infractions of the laws; 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 qualified to be an elector, a juror, and is
eligible to office. *g The system of the jury, 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. These institutions 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 monarchs of the House of Tudor sent to prison jurors
who refused to convict, and Napoleon caused them to be returned
by his agents.
[Footnote f: [This may be true to some extent of special juries,
but not of common juries. The author seems not to have been
aware that the qualifications of jurors in England vary
exceedingly.]]
[Footnote g: See Appendix, Q.]
However clear most of these truths may seem to be, they do
not command universal assent, and in France, at least, the
institution of trial by jury is still very 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 to be the least part of the subject. The jury is
pre-eminently a political institution; it must 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 Houses of Parliament constitute that part of
the nation which makes the laws; and in order that society may be
governed with consistency and uniformity, 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, and 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 manners of a nation; manners are the
only durable and resisting power in a people. When the jury is
reserved for criminal offences, the people only witnesses its
occasional action in certain particular cases; the ordinary
course of life goes on without its interference, and it is
considered as an instrument, but not as the only instrument, of
obtaining justice. This is true a fortiori when the jury is only
applied to certain criminal causes.
When, on the contrary, the influence of the jury is extended
to civil causes, its application is constantly palpable; 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 of man. If it
had been as easy to remove the jury from the manners as from the
laws of England, it would have perished under Henry VIII, and
Elizabeth, and the civil jury did in reality, at that period,
save the liberties of the country. 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 jury in civil cases, 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 is
reduced to 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, whilst the number of persons who have reason
to apprehend a criminal prosecution is small, every one is liable
to have a civil action brought against him. The jury teaches
every man not to recoil before the responsibility of his own
actions, and impresses him with that manly confidence without
which political virtue cannot 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 the Government. By obliging men to turn their
attention to affairs which are not exclusively their own, it rubs
off that individual egotism which is the rust of society.
The jury contributes most powerfully to form the judgement
and to increase the natural intelligence of a people, and this
is, in my opinion, its greatest advantage. It may be regarded as
a gratuitous public school ever open, in which every juror learns
to exercise his rights, enters into daily communication with the
most learned and enlightened members of the upper classes, and
becomes practically acquainted with the laws of his country,
which are brought within the reach of his capacity by the efforts
of the bar, the advice of the judge, and even by 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 which they have made of the jury in civil causes. I
do not know whether the jury is useful to those who are in
litigation; but I am certain it is highly beneficial to those who
decide the litigation; 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 hitherto said applies to all nations, but the
remark I am now about to make is peculiar to the Americans and to
democratic peoples. I have already observed that in democracies
the members of the legal profession and the magistrates
constitute the only aristocratic body which can check the
irregularities of the people. This aristocracy is invested with
no physical power, but 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 armed against a single individual, the
jury is apt to look upon the judge as the passive instrument of
social power, and to mistrust his advice. Moreover, criminal
causes are entirely founded upon the evidence of facts which
common sense can readily appreciate; upon this ground the judge
and the jury are equal. Such, however, is not the case 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 their intelligence is completely under the control of
his learning. It is the judge who sums up the various arguments
with which their memory has been wearied out, and who guides them
through the devious course of the proceedings; he points their
attention to the exact question of fact which they are called
upon to solve, and he puts the answer to the question of law into
their mouths. His influence upon their verdict 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 sanctions the
decision of the judge, they by the authority of society which
they represent, and he by that of reason and of law. *h
[Footnote h: See Appendix, R.]
In England and in America the judges exercise an influence
upon criminal trials which the French judges have never
possessed. The reason of this difference may easily be
discovered; the English and American magistrates establish their
authority in civil causes, and only transfer it afterwards to
tribunals of another kind, where that authority was not acquired.
In some cases (and they are frequently the most important ones)
the American judges have the right of deciding causes alone. *i
Upon these occasions they are accidentally placed in the position
which the French judges habitually occupy, but they are invested
with far more power than the latter; they are still surrounded by
the reminiscence of the jury, and their judgment has almost as
much authority as the voice of the community at large,
represented by that institution. Their influence extends beyond
the limits of the courts; in the recreations of private life as
well as in the turmoil of public business, abroad 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 the characters of the individuals who took a part in
his judgment.
[Footnote i: The Federal judges decide upon their own authority
almost all the questions most important to the country.]
The jury, then, which seems to restrict the rights of
magistracy, does in reality consolidate its power, and in no
country are the judges so powerful as there, where the people
partakes their privileges. It is more especially by means of the
jury in civil causes that the American magistrates imbue all
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 to rule
well.
Chapter XVII: Principal Causes Maintaining The Democratic
Republic - Part I
Principal Causes Which Tend To Maintain The Democratic Republic
In The United States
A democratic republic subsists in the United States, and the
principal object of this book has been to account for the fact of
its existence. Several of the causes which contribute to maintain
the institutions of America have been involuntarily passed by or
only hinted at as I was borne along by my subject. Others I have
been unable to discuss, and those on which I have dwelt most are,
as it were, buried in the details of the former parts of this
work. I think, therefore, that before I proceed to speak of the
future, I cannot do better than collect within a small compass
the reasons which best explain the present. In this
retrospective chapter I shall be succinct, for I shall take care
to remind the reader very summarily of what he already knows; and
I shall only select the most prominent of those facts which I
have not yet pointed out.
All the causes which contribute to the maintenance of the
democratic republic in the United States are reducible to three
heads: -
I. The peculiar and accidental situation in which Providence
has placed the Americans.
II. The laws.
III. The manners and customs of the people.
Accidental Or Providential Causes Which Contribute To The
Maintenance Of The Democratic Republic In The United States
The Union has no neighbors - No metropolis - The Americans have
had the chances of birth in their favor - America an empty
country - How this circumstance contributes powerfully to the
maintenance of the democratic republic in America - How the
American wilds are peopled - Avidity of the Anglo-Americans in
taking possession of the solitudes of the New World -Influence of
physical prosperity upon the political opinions of the Americans.
A thousand circumstances, independent of the will of man,
concur to facilitate the maintenance of a democratic republic in
the United States. Some of these peculiarities are known, the
others may easily be pointed out; but I shall confine myself to
the most prominent amongst them.
The Americans have no neighbors, and consequently they have
no great wars, or financial crises, or inroads, or conquest to
dread; they require neither great taxes, nor great armies, nor
great generals; and they have nothing to fear from a scourge
which is more formidable to republics than all these evils
combined, namely, military glory. It is impossible to deny the
inconceivable influence which military glory exercises upon the
spirit of a nation. General Jackson, whom the Americans have
twice elected to the head of their Government, is a man of a
violent temper and mediocre talents; no one circumstance in the
whole course of his career ever proved that he is qualified to
govern a free people, and indeed the majority of the enlightened
classes of the Union has always been opposed to him. But he was
raised to the Presidency, and has been maintained in that lofty
station, solely by the recollection of a victory which he gained
twenty years ago under the walls of New Orleans, a victory which
was, however, a very ordinary achievement, and which could only
be remembered in a country where battles are rare. Now the
people which is thus carried away by the illusions of glory is
unquestionably the most cold and calculating, the most unmilitary
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