AMONG the novel objects that attracted my attention during my stay in the United States, nothing struck me more forcibly than the general equality of condition among the people. I readily discovered the prodigious influence that this primary fact exercises on the whole course of society; it gives a peculiar direction to public opinion and a peculiar tenor to the laws; it imparts new maxims to the governing authorities and peculiar habits to the governed.
I soon perceived that the influence of this fact extends far beyond the political character and the laws of the country, and that it has no less effect on civil society than on the government; it creates opinions, gives birth to new sentiments, founds novel customs, and modifies whatever it does not produce. The more I advanced in the study of American society, the more I perceived that this equality of condition is the fundamental fact from which all others seem to be derived and the central point at which all my observations constantly terminated.
I then turned my thoughts to our own hemisphere, and thought that I discerned there something analogous to the spectacle which the New World presented to me. I observed that equality of condition, though it has not there reached the extreme limit which it seems to have attained in the United States, is constantly approaching it; and that the democracy which governs the American communities appears to be rapidly rising into power in Europe.
Hence I conceived the idea of the book that is now before the reader.
It is evident to all alike that a great democratic revolution is going on among us, but all do not look at it in the same light. To some it appears to be novel but accidental, and, as such, they hope it may still be checked; to others it seems irresistible, because it is the most uniform, the most ancient, and the most permanent tendency that is to be found in history.
I look back for a moment on the situation of France seven hundred years ago, when the territory was divided among a small number of families, who were the owners of the soil and the rulers of the inhabitants; the right of governing descended with the family inheritance from generation to generation; force was the only means by which man could act on man; and landed property was the sole source of power.
Soon, however, the political power of the clergy was founded and began to increase: the clergy opened their ranks to all classes, to the poor and the rich, the commoner and the noble; through the church, equality penetrated into the government, and he who as a serf must have vegetated in perpetual bondage took his place as a priest in the midst of nobles, and not infrequently above the heads of kings.
The different relations of men with one another became more complicated and numerous as society gradually became more stable and civilized. Hence the want of civil laws was felt; and the ministers of law soon rose from the obscurity of the tribunals and their dusty chambers to appear at the court of the monarch, by the side of the feudal barons clothed in their ermine and their mail.
While the kings were ruining themselves by their great enterprises, and the nobles exhausting their resources by private wars, the lower orders were enriching themselves by commerce. The influence of money began to be perceptible in state affairs. The transactions of business opened a new road to power, and the financier rose to a station of political influence in which he was at once flattered and despised.
Gradually enlightenment spread, a reawakening of taste for literature and the arts became evident; intellect and will contributed to success; knowledge became an attribute of government, intelligence a social force; the educated man took part in affairs of state.
The value attached to high birth declined just as fast as new avenues to power were discovered. In the eleventh century, nobility was beyond all price; in the thirteenth, it might be purchased. Nobility was first conferred by gift in 1270, and equality was thus introduced into the government by the aristocracy itself.
In the course of these seven hundred years it sometimes happened that the nobles, in order to resist the authority of the crown or to diminish the power of their rivals, granted some political power to the common people. Or, more frequently, the king permitted the lower orders to have a share in the government, with the intention of limiting the power of the aristocracy.
In France the kings have always been the most active and the most constant of levelers. When they were strong and ambitious, they spared no pains to raise the people to the level of the nobles; when they were temperate and feeble, they allowed the people to rise above themselves. Some assisted democracy by their talents, others by their vices. Louis XI and Louis XIV reduced all ranks beneath the throne to the same degree of subjection; and finally Louis XV descended, himself and all his court, into the dust.
As soon as land began to be held on any other than a feudal tenure, and personal property could in its turn confer influence and power, every discovery in the arts, every improvement in commerce of manufactures, created so many new elements of equality among men. Henceforward every new invention, every new want which it occasioned, and every new desire which craved satisfaction were steps towards a general leveling. The taste for luxury, the love of war, the rule of fashion, and the most super ficial as well as the deepest passions of the human heart seemed to co-operate to enrich the poor and to impoverish the rich.
From the time when the exercise of the intellect became a source of strength and of wealth, we see that every addition to science, every fresh truth, and every new idea became a germ of power placed within the reach of the people. Poetry, eloquence, and memory, the graces of the mind, the fire of imagination, depth of thought, and all the gifts which Heaven scatters at a venture turned to the advantage of democracy; and even when they were in the possession of its adversaries, they still served its cause by throwing into bold relief the natural greatness of man. Its conquests spread, therefore, with those of civilization and knowledge; and literature became an arsenal open to all, where the poor and the weak daily resorted for arms.
In running over the pages of our history, we shall scarcely find a single great event of the last seven hundred years that has not promoted equality of condition.
The Crusades and the English wars decimated the nobles and divided their possessions: the municipal corporations introduced democratic liberty into the bosom of feudal monarchy; the inven tion of firearms equalized the vassal and the noble on the field of battle; the art of printing opened the same resources to the minds of all classes; the post brought knowledge alike to the door of the cottage and to the gate of the palace; and Protestantism proclaimed that all men are equally able to find the road to heaven. The discovery of America opened a thousand new paths to fortune and led obscure adventurers to wealth and power,
If, beginning with the eleventh century, we examine what has happened in France from one half-century to another, we shall not fail to perceive that at the end of each of these periods a two- fold revolution has taken place in the state of society. The noble has gone down the social ladder, and the commoner has gone up; the one descends as the other rises. Every half-century brings them nearer to each other, and they will soon meet.
Nor is this peculiar to France. Wherever we look, we perceive the same revolution going on throughout the Christian world.
The various occurrences of national existence have everywhere turned to the advantage of democracy: all men have aided it by their exertions, both those who have intentionally labored in its cause and those who have served it unwittingly; those who have fought for it and even those who have declared themselves its opponents have all been driven along in the same direction, have all labored to one end; some unknowingly and some despite themselves, all have been blind instruments in the hands of God.
The gradual development of the principle of equality is, therefore, a providential fact. It has all the chief characteristics of such a fact: it is universal, it is lasting, it constantly eludes all human interference, and all events as well as all men contribute to its progress.
Would it, then, be wise to imagine that a social movement the causes of which lie so far back can be checked by the efforts of one generation? Can it be believed that the democracy which has overthrown the feudal system and vanquished kings will retreat before tradesmen and capitalists? Will it stop now that it has grown so strong and its adversaries so weak?
Whither, then, are we tending? No one can say, for terms of comparison already fail us. There is greater equality of condition in Christian countries at the present day than there has been at any previous time, in any part of the world, so that the magnitude of what already has been done prevents us from foreseeing what is yet to be accomplished.
The whole book that is here offered to the public has been written under the influence of a kind of religious awe produced in the author's mind by the view of that irresistible revolution which has advanced for centuries in spite of every obstacle and which is still advancing in the midst of the ruins it has caused. It is not necessary that God himself should speak in order that we may discover the unquestionable signs of his will. It is enough to ascertain what is the habitual course of nature and the constant tendency of events. I know, without special revelation, that the planets move in the orbits traced by the Creator's hand.
If the men of our time should be convinced, by attentive observation and sincere reflection, that the gradual and progressive development of social equality is at once the past and the future of their history, this discovery alone would confer upon the change the sacred character of a divine decree. To attempt to check democracy would be in that case to resist the will of God; and the nations would then be constrained to make the best of the social lot awarded to them by Providence.
The Christian nations of our day seem to me to present a most alarming spectacle; the movement which impels them is already so strong that it cannot be stopped, but it is not yet so rapid that it cannot be guided. Their fate is still in their own hands; but very soon they may lose control.
The first of the duties that are at this time imposed upon those who direct our affairs is to educate democracy, to reawaken, if possible, its religious beliefs; to purify its morals; to mold its actions; to substitute a knowledge of statecraft for its inexperience, and an awareness of its true interest for its blind instincts, to adapt its government to time and place, and to modify it according to men and to conditions. A new science of politics is needed for a new world.
This, however, is what we think of least; placed in the middle of a rapid stream, we obstinately fix our eyes on the ruins that may still be descried upon the shore we have left, while the current hurries us away and drags us backward towards the abyss.
In no country in Europe has the great social revolution that l have just described made such rapid progress as in France; but it has always advanced without guidance. The heads of the state have made no preparation for it, and it has advanced without their consent or without their knowledge. The most powerful, the most intelligent, and the most moral classes of the nation have never attempted to control it in order to guide it. Democracy has consequently been abandoned to its wild instincts, and it has grown up like those children who have no parental guidance, who receive their education in the public streets, and who are acquainted only with the vices and wretchedness of society. Its existence was seemingly unknown when suddenly it acquired supreme power. All then servilely submitted to its caprices; it was worshipped as the idol of strength; and when afterwards it was enfeebled by its own excesses, the legislator conceived the rash project of destroying it, instead of instructing it and correcting its vices. No attempt was made to fit it to govern, but all were bent on excluding it from the government.
The result has been that the democratic revolution has taken place in the body of society without that concomitant change in the laws, ideas, customs, and morals which was necessary to render such a revolution beneficial. Thus we have a democracy without anything to lessen its vices and bring out its natural advantages; and although we already perceive the evils it brings, we are ignorant of the benefits it may confer.
While the power of the crown, supported by the aristocracy, peaceably governed the nations of Europe, society, in the midst of its wretchedness, had several sources of happiness which can now scarcely be conceived or appreciated. The power of a few of his subjects was an insurmountable barrier to the tyranny of the prince; and the monarch, who felt the almost divine character which he enjoyed in the eyes of the multitude, derived a motive for the just use of his power from the respect which he inspired. The nobles, placed high as they were above the people, could take that calm and benevolent interest in their fate which the shepherd feels towards his flock; and without acknowledging the poor as their equals, they watched over the destiny of those whose welfare Providence had entrusted to their care. The people, never having conceived the idea of a social condition different from their own, and never expecting to become equal to their leaders, received benefits from them without discussing their rights. They became attached to them when they were clement and just and submitted to their exactions without resistance or servility, as to the inevitable visitations of the Deity. Custom and usage, moreover, had established certain limits to oppression and founded a sort of law in the very midst of violence.
As the noble never suspected that anyone would attempt to deprive him of the privileges which he believed to be legitimate, and as the serf looked upon his own inferiority as a consequence of the immutable order of nature, it is easy to imagine that some mutual exchange of goodwill took place between two classes so differently endowed by fate. Inequality and wretchedness were then to be found in society, but the souls of neither rank of men were degraded.
Men are not corrupted by the exercise of power or debased by the habit of obedience, but by the exercise of a power which they believe to be illegitimate, and by obedience to a rule which they consider to be usurped and oppressive.
On the one side were wealth, strength, and leisure, accompanied by the pursuit of luxury, the refinements of taste, the pleasures of wit, and the cultivation of the arts; on the other were labor, clownishness, and ignorance. But in the midst of this coarse and ignorant multitude it was not uncommon to meet with energetic passions, generous sentiments, profound religious convictions, and wild virtues.
The social state thus organized might boast of its stability, its power, and, above all, its glory.
But the scene is now changed. Gradually the distinctions of rank are done away with; the barriers that once severed mankind are falling; property is divided, power is shared by many, the light of intelligence spreads, and the capacities of all classes tend towards equality. Society becomes democratic, and the empire of democracy is slowly and peaceably introduced into institutions and customs.
I can conceive of a society in which all men would feel an equal love and respect for the laws of which they consider themselves the authors; in which the authority of the government would be respected as necessary, and not divine; and in which the loyalty of the subject to the chief magistrate would not be a passion, but a quiet and rational persuasion. With every individual in the possession of rights which he is sure to retain, a kind of manly confidence and reciprocal courtesy would arise between all classes, removed alike from pride and servility. The people, well acquainted with their own true interests, would understand that, in order to profit from the advantages of the state, it is necessary to satisfy its requirements. The voluntary association of the citizens might then take the place of the individual authority of the nobles, and the community would be protected from tyranny and license.
I admit that, in a democratic state thus constituted, society would not be stationary. But the impulses of the social body might there be regulated and made progressive. If there were less splendor than in an aristocracy, misery would also be less prevalent; the pleasures of enjoyment might be less excessive, but those of comfort would be more general; the sciences might be less perfectly cultivated, but ignorance would be less common; the ardor of the feelings would be constrained, and the habits of the nation softened; there would be more vices and fewer crimes.
In the absence of enthusiasm and ardent faith, great sacrifices may be obtained from the members of a commonwealth by an appeal to their understanding and their experience; each individual will feel the same necessity of union with his fellows to protect his own weakness; and as he knows that he can obtain their help only on condition of helping them, he will readily perceive that his personal interest is identified with the interests of the whole community. The nation, taken as a whole, will be less brilliant, less glorious, and perhaps less strong; but the majority of the citizens will enjoy a greater degree of prosperity, and the people will remain peaceable, not because they despair of a change for the better, but because they are conscious that they are well off already
If all the consequences of this state of things were not good or useful, society would at least have appropriated all such as were useful and good; and having once and forever renounced the social advantages of aristocracy, mankind would enter into possession of all the benefits that democracy can offer.
But here it may be asked what we have adopted in the place of those institutions, those ideas, and those customs of our forefathers which we have abandoned.
The spell of royalty is broken, but it has not been succeeded by the majesty of the laws. The people have learned to despise all authority, but they still fear it; and fear now extorts more than was formerly paid from reverence and love.
I perceive that we have destroyed those individual powers which were able, single-handed, to cope with tyranny; but it is the government alone that has inherited all the privileges of which families, guilds, and individuals have been deprived; to the power of a small number of persons, which if it was sometimes oppressive was often conservative, has succeeded the weakness of the whole community.
The division of property has lessened the distance which separated the rich from the poor; but it would seem that, the nearer they draw to each other, the greater is their mutual hatred and the more vehement the envy and the dread with which they resist each other's claims to power; the idea of right does not exist for either party, and force affords to both the only argument for the present and the only guarantee for the future.
The poor man retains the prejudices of his forefathers without their faith, and their ignorance without their virtues; he has adopted the doctrine of self-interest as the rule of his actions without understanding the science that puts it to use; and his selfishness is no less blind than was formerly his devotion to others.
If society is tranquil, it is not because it is conscious of its strength and its well-being, but because it fears its weakness and its infirmities; a single effort may cost it its life. Everybody feels the evil, but no one has courage or energy enough to seek the cure. The desires, the repinings, the sorrows, and the joys of the present time lead to nothing visible or permanent, like the passions of old men, which terminate in impotence.
We have, then, abandoned whatever advantages the old state of things afforded, without receiving any compensation from our present condition; we have destroyed an aristocracy, and we seem inclined to survey its ruins with complacency and to accept them.
The phenomena which the intellectual world presents are not less deplorable. The democracy of France, hampered in its course or abandoned to its lawless passions, has overthrown whatever crossed its path and has shaken all that it has not destroyed. Its empire has not been gradually introduced or peaceably established, but it has constantly advanced in the midst of the disorders and the agitations of a conflict. In the heat of the struggle each partisan is hurried beyond the natural limits of his opinions by the doctrines and the excesses of his opponents, until he loses sight of the end of his exertions, and holds forth in a way which does not correspond to his real sentiments or secret instincts. Hence arises the strange confusion that we are compelled to witness.
I can recall nothing in history more worthy of sorrow and pity than the scenes which are passing before our eyes. It is as if the natural bond that unites the opinions of man to his tastes, and his actions to his principles, was now broken; the harmony that has always been observed between the feelings and the ideas of man kind appears to be dissolved and all the laws of moral analogy to be abolished.
Zealous Christians are still found among us, whose minds are nurtured on the thoughts that pertain to a future life, and who readily espouse the cause of human liberty as the source of all moral greatness. Christianity, which has declared that all men are equal in the sight of God, will not refuse to acknowledge that all citizens are equal in the eye of the law. But, by a strange coincidence of events, religion has been for a time entangled with those institutions which democracy destroys; and it is not infrequently brought to reject the equality which it loves, and to curse as a foe that cause of liberty whose efforts it might hallow by its alliance.
By the side of these religious men I discern others whose thoughts are turned to earth rather than to heaven. These are the partisans of liberty, not only as the source of the noblest virtues, but more especially as the root of all solid advantages; and they sincerely desire to secure its authority, and to impart its blessings to mankind. It is natural that they should hasten to invoke the assistance of religion, for they must know that liberty cannot be established without morality, nor morality without faith. But they have seen religion in the ranks of their adversaries, and they inquire no further; some of them attack it openly, and the rest are afraid to defend it.
In former ages slavery was advocated by the venal and slavishminded, while the independent and the warm-hearted were struggling without hope to save the liberties of mankind. But men of high and generous character are now to be met with, whose opinions are directly at variance with their inclinations, and who praise that servility and meanness which they have themselves never known. Others, on the contrary, speak of liberty as if they were able to feel its sanctity and its majesty, and loudly claim for humanity those rights which they have always refused to acknowledge.
There are virtuous and peaceful individuals whose pure morality, quiet habits, opulence, and talents fit them to be the leaders of their fellow men. Their love of country is sincere, and they are ready to make the greatest sacrifices for its welfare. But civilization often finds them among its opponents; they confound its abuses with its benefits, and the idea of evil is inseparable in their minds from that of novelty. Near these I find others whose object is to materialize mankind, to hit upon what is expedient without heeding what is just, to acquire knowledge without faith, and prosperity apart from vir tue; claiming to be the champions of modern civilization, they place themselves arrogantly at its head, usurping a place which is abandoned to them, and of which they are wholly unworthy.
Where are we, then?
The religionists are the enemies of liberty, and the friends of liberty attack religion; the high-minded and the noble advocate bondage, and the meanest and most servile preach independence; honest and enlightened citizens are opposed to all progress, while men without patriotism and without principle put themselves forward as the apostles of civilization and intelligence.
Has such been the fate of the centuries which have preceded our own? and has man always inhabited a world like the present, where all things are not in their proper relationships, where virtue is without genius, and genius without honor; where the love of order is confused with a taste for oppression, and the holy cult of freedom with a contempt of law; where the light thrown by conscience on human actions is dim, and where nothing seems to be any longer forbidden or allowed, honorable or shameful, false or true?
I cannot believe that the Creator made man to leave him in an endless struggle with the intellectual wretchedness that surrounds us. God destines a calmer and a more certain future to the communities of Europe. I am ignorant of his designs, but I shall not cease to believe in them because I cannot fathom them, and I had rather mistrust my own capacity than his justice.
There is one country in the world where the great social revolution that I am speaking of seems to have nearly reached its natural limits. It has been effected with ease and simplicity; say rather that this country is reaping the fruits of the democratic revolution which we are undergoing, without having had the revolution itself.
The emigrants who colonized the shores of America in the beginning of the seventeenth century somehow separated the democratic principle from all the principles that it had to contend with in the old communities of Europe, and transplanted it alone to the New World. It has there been able to spread in perfect freedom and peaceably to determine the character of the laws by influencing the manners of the country. It appears to me beyond a doubt that, sooner or later, we shall arrive, like the Americans, at an almost complete equality of condition. But I do not conclude from this that we shall ever be necessarily led to draw the same political consequences which the Americans have derived from a similar social organization. I am far from supposing that they have chosen the only form of government which a democracy may adopt; but as the generating cause of laws and manners in the two countries is the same, it is of immense interest for us to know what it has produced in each of them.
It is not, then, merely to satisfy a curiosity, however legitimate, that I have examined America; my wish has been to find there instruction by which we may ourselves profit. Whoever should imagine that I have intended to write a panegyric would be strangely mistaken, and on reading this book he will perceive that such was not my design; nor has it been my object to advocate any form of government in particular, for I am of the opinion that absolute perfection is rarely to be found in any system of laws. I have not even pretended to judge whether the social revolution, which I believe to be irresistible, is advantageous or prejudicial to mankind. I have acknowledged this revolution as a fact already accomplished, or on the eve of its accomplishment; and I have selected the nation, from among those which have undergone it, in which its development has been the most peaceful and the most complete, in order to discern its natural consequences and to find out, if possible, the means of rendering it profitable to mankind. I confess that in America I saw more than America; I sought there the image of democracy itself, with its inclinations, its character, its prejudices, and its passions, in order to learn what we have to fear or to hope from its progress.
In the first part of this work I have attempted to show the distinction that democracy, dedicated to its inclinations and tendencies and abandoned almost without restraint to its instincts, gave to the laws the course it impressed on the government, and in general the control which it exercised over affairs of state. I have sought to discover the evils and the advantages which it brings. I have examined the safeguards used by the Americans to direct it, as well as those that they have not adopted, and I have undertaken to point out the factors which enable it to govern society.
My object was to portray, in a second part, the influence which the equality of conditions and democratic government in America exercised on civil society, on habits, ideas, and customs; but I grew less enthusiastic about carrying out this plan. Before I could have completed the task which I set for myself, my work would have become purposeless. Someone else would before long set forth to the public the principal traits of the American character and, delicately cloaking a serious picture, lend to the truth a charm which I should not have been able to equal.1
I do not know whether I have succeeded in making known what I saw in America, but I am certain that such has been my sincere desire, and that I have never, knowingly, molded facts to ideas, instead of ideas to facts.
Whenever a point could be established by the aid of written documents, I have had recourse to the original text, and to the most authentic and reputable works.2 I have cited my authorities in the notes, and anyone may verify them. Whenever opinions political customs, or remarks on the manners of the country were concerned, I have endeavored to consult the most informed men I met with. If the point in question was important or doubtful, I was not satisfied with one witness, but I formed my opinion on the evidence of several witnesses. Here the reader must necessarily rely upon my word. I could frequently have cited names which either are known to him or deserve to be so in support of my assertions; but I have carefully abstained from this practice. A stranger frequently hears important truths at the fireside
1 At the time I published the first edition of this work, M. Gustave deBeaumont, my traveling-companion in America, was still working on his book entitled Marie, ou l'Esclaoage aux Etats-Unis, which has since appeared. M. de Beaumont's primary purpose was to portray clearly and accurately the position of Negroes in Anglo-American society. His work will throw a new and vivid light on the question of slavery, a vital one for all united republics. I am not certain whether I am mistaken, but it seems to me that M. de Beaumont's book, after having vitally interested those who will put aside their emotions and regard his descriptions dispassionately, should have a surer and more lasting success among those readers who, above all else, desire a true picture of actual conditions.
2 Legislative and executive documents have been furnished to me with a kindness which I shall always remember with gratitude. Among the American statesmen who have thus helped my researches, I will mention particularly Mr. Edward Livingston, then Secretary of State, afterwards Minister Plenipo tentiary at Paris. During my stay in Washington, he was kind enough to give me most of the documents which I possess relating to the Federal government. Mr. Livingston is one of the few men whose writings cause us to conceive an affection for them, whom we admire and respect even before we come to know them personally, and to whom it is a pleasure to give recognition. of his host, which the latter would perhaps conceal from the ear of friendship; he consoles himself with his guest for the silence to which he is restricted, and the shortness of the traveler's stay takes away all fear of an indiscretion. I carefully noted every conversation of this nature as soon as it occurred, but these notes will never leave my writing-case. I had rather injure the success of my statements than add my name to the list of those strangers who repay generous hospitality they have received by subsequent chagrin and annoyance.
I am aware that, notwithstanding my care, nothing will be easier than to criticize this book should anyone care to do so.
Those readers who may examine it closely will discover, I think, in the whole work a dominant thought that binds, so to speak, its several parts together. But the diversity of the subjects I have had to treat is exceedingly great, and it will not be difficult to oppose an isolated fact to the body of facts which I cite, or an isolated idea to the body of ideas I put forth. I hope to be read in the spirit which has guided my labors, and that my book may be judged by the general impression it leaves, as I have formed my own judgment not on any single consideration, but upon the mass of evidence.
It must not be forgotten that the author who wishes to be understood is obliged to carry all his ideas to their utmost theoretical conclusions, and often to the verge of what is false or impracticable; for if it be necessary sometimes to depart in action from the rules of logic, such is not the case in discourse, and a man finds it almost as difficult to be inconsistent in his language as to be consistent in his conduct.
I conclude by pointing out myself what many readers will consider the principal defect of the work. This book is written to favor no particular views, and in composing it I have entertained no design of serving or attacking any party. I have not undertaken to see differently from others, but to look further, and while they are busied for the morrow only, I have turned my thoughts to the whole future.
NATURAL STRENGTH of the majority in democracies--Most of the American constitutions have increased this strength by artificial means--How this has been done--Pledged delegates-Moral power of the majority--Opinion as to its infallibility-Respect for its rights, how augmented in the United States.
THE very essence of democratic government consists in the absolute sovereignty of the majority; for there is nothing in democratic states that is capable of resisting it. Most of the American constitutions have sought to increase this natural strength of the majority by artificial means.1
Of all political institutions, the legislature is the one that is most easily swayed by the will of the majority. The Americans determined that the members of the legislature should be elected by the people directly, and for a very brief term, in order to subject them, not only to the general convictions, but even to the daily passions, of their constituents. The members of both houses are taken from the same classes in society and nominated in the same manner; so that the movements of the legislative bodies are almost as rapid, and quite as irresistible, as those of a single assembly.
It is to a legislature thus constituted that almost all the authority of the government has been entrusted.
At the same time that the law increased the strength of those authorities which of themselves were strong, it enfeebled more and more those which were naturally weak. It deprived the representatives of the executive power of all stability and independence; and by subjecting them completely to the caprices of the legislature, it robbed them of the slender influence that the nature of a democratic government might have allowed them to exercise. In several states the judicial power was also submitted to the election of the majority and in all of them its existence was made to depend on the pleasure of the legislative authority, since the representatives were empowered annually to regulate the stipend of the judges.
Custom has done even more than law. A proceeding is becoming more and more general in the United States which will, in the end, do away with the guarantees of representative government: it frequently happens that the voters, in electing a delegate, point out a certain line of conduct to him and impose upon him certain positive obligations that he is pledged to fulfill. With the exception of the tumult, this comes to the same thing as if the majority itself held its deliberations in the market-place.
Several particular circumstances combine to render the power of the majority in America not only preponderant, but irresistible. The moral authority of the majority is partly based upon the notion that there is more intelligence and wisdom in a number of men united than in a single individual, and that the number of the legislators is more important than their quality. The theory of equality is thus applied to the intellects of men; and human pride is thus assailed in its last retreat by a doctrine which the minority hesitate to admit, and to which they will but slowly assent. Like all other powers, and perhaps more than any other, the authority of the many requires the sanction of time in order to appear legitimate. At first it enforces obedience by constraint; and its laws are not respected until they have been long maintained.
The right of governing society, which the majority supposes itself to derive from its superior intelligence, was introduced into the United States by the first settlers; and this idea, which of itself would be sufficient to create a free nation, has now been amalgamated with the customs of the people and the minor incidents of social life.
The French under the old monarchy held it for a maxim that the king could do no wrong; and if he did do wrong, the blame was imputed to his advisers. This notion made obedience very easy; it enabled the subject to complain of the law without ceasing to love and honor the lawgiver. The Americans entertain the same opinion with respect to the majority.
The moral power of the majority is founded upon yet another principle, which is that the interests of the many are to be pre- ferred to those of the few. It will readily be perceived that the respect here professed for the rights of the greater number must naturally increase or diminish according to the state of parties When a nation is divided into several great irreconcilable interests, the privilege of the majority is often overlooked, because it is intolerable to comply with its demands.
If there existed in America a class of citizens whom the legislating majority sought to deprive of exclusive privileges which they had possessed for ages and to bring down from an elevated station to the level of the multitude, it is probable that the minority would be less ready to submit to its laws. But as the United States was colonized by men holding equal rank, there is as yet no natural or permanent disagreement between the interests of its different inhabitants.
There are communities in which the members of the minority can never hope to draw the majority over to their side, because they must then give up the very point that is at issue between them. Thus an aristocracy can never become a majority while it retains its exclusive privileges, and it cannot cede its privileges without ceasing to be an aristocracy.
In the United States, political questions cannot be taken up in so general and absolute a manner; and all parties are willing to recognize the rights of the majority, because they all hope at some time to be able to exercise them to their own advantage. The majority in that country, therefore, exercise a prodigious actual authority, and a power of opinion which is nearly as great; no obstacles exist which can impede or even retard its progress, so as to make it heed the complaints of those whom it crushes upon its path. This state of things is harmful in itself and dangerous for the future.
The Americans increase the mutability of law that is inherent in a democracy by changing the legislature year, and investing it with almost unbounded authority --The same effect is produced upon the administration--In America the pressure for social improvements is vastly greater, but less continuous, than in Europe.
I HAVE already spoken of the natural defects of democratic insti- tutions; each one of them increases in the same ratio as the power of the majority. To begin with the most evident of them all, the mutability of the laws is an evil inherent in a democratic government, because it is natural to democracies to raise new men to power. But this evil is more or less perceptible in proportion to the authority and the means of action which the legislature possesses.
In America the authority exercised by the legislatures is supreme; nothing prevents them from accomplishing their wishes with celerity and with irresistible power, and they are supplied with new representatives every year. That is to say, the circum- stances which contribute most powerfully to democratic instabil- ity, and which admit of the free application of caprice to the most important objects, are here in full operation. Hence America is, at the present day, the country beyond all others where laws last the shortest time. Almost all the American constitutions have been amended within thirty years; there is therefore not one American state which has not modified the principles of its legislation in that time. As for the laws themselves, a single glance at the archives of the different states of the Union suffices to convince one that in America the activity of the legislator never slackens. Not that the American democracy is naturally less stable than any other, but it is allowed to follow, in the formation of the laws, the natural instability of its desires.2
The omnipotence of the majority and the rapid as well as absolute manner in which its decisions are executed in the United States not only render the law unstable, but exercise the same influence upon the execution of the law and the conduct of the administration. As the majority is the only power that it is important to court, all its projects are taken up with the greatest ardor; but no sooner is its attention distracted than all this ardor ceases; while in the free states of Europe, where the administration is at once independent and secure, the projects of the legislature continue to be executed even when its attention is directed to other objects.
In America certain improvements are prosecuted with much more zeal and activity than elsewhere; in Europe the same ends are promoted by much less social effort more continuously applied.
Some years ago several pious individuals undertook to ameliorate the condition of the prisons. The public were moved by their statements, and the reform of criminals became a popular undertaking. New prisons were built; and for the first time the idea of reforming as well as punishing the delinquent formed a part of prison discipline.
But this happy change, in which the public had taken so hearty an interest and which the simultaneous exertions of the citizens rendered irresistible, could not be completed in a moment. While the new penitentiaries were being erected and the will of the majority was hastening the work, the old prisons still existed and contained a great number of offenders. These jails became more unwholesome and corrupt in proportion as the new establishments were reformed and improved, forming a contrast that may readily be understood. The majority was so eagerly employed in founding the new prisons that those which already existed were forgotten; and as the general attention was diverted to a novel object, the care which had hitherto been bestowed upon the others ceased. The salutary regulations of discipline were first relaxed and after. wards broken; so that in the immediate neighborhood of a prison that bore witness to the mild and enlightened spirit of our times, dungeons existed that reminded one of the barbarism of the Middle Ages.
How the principle of the sovereignty of the people is to be understood--Impossibility of conceiving a mixed government--The sovereign power must exist somewhere--Precautions to be taken to control its action --These precautions have not been taken in the United States --Consequences.
I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself?
A general law, which bears the name of justice, has been made and sanctioned, not only by a majority of this or that people, but by a majority of mankind. The rights of every people are therefore confined within the limits of what is just. A nation may be considered as a jury which is empowered to represent society at large and to apply justice, which is its law. Ought such a jury, which represents society, to have more power than the society itself whose laws it executes?
When I refuse to obey an unjust law, I do not contest the right of the majority to command, but I simply appeal from the sovereignty of the people to the sovereignty of mankind. Some have not feared to assert that a people can never outstep the boundaries of justice and reason in those affairs which are peculiarly its own; and that consequently full power may be given to the majority by which it is represented. But this is the language of a slave.
A majority taken collectively is only an individual, whose opinions, and frequently whose interests, are opposed to those of another individual, who is styled a minority. If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength.3 For my own part, I cannot believe it; the power to do everything, which I should refuse to one of my equals, I will never grant to any number of them.
I do not think that, for the sake of preserving liberty, it is possible to combine several principles in the same government so as really to oppose them to one another. The form of government that is usually termed mixed has always appeared to me a mere chimera. Accurately speaking, there is no such thing as a mixed government in the sense usually given to that word, because in all communities some one principle of action may be discovered which preponderates over the others. England in the last century, which has been especially cited as an example of this sort of government, was essentially an aristocratic state, although it comprised some great elements of democracy; for the laws and customs of the country were such that the aristocracy could not but preponderate in the long run and direct public affairs according to its own will. The error arose from seeing the interests of the nobles perpetually contending with those of the people, without considering the issue of the contest, which was really the important point. When a community actually has a mixed government--that is to say, when it is equally divided between adverse principles--it must either experience a revolution or fall into anarchy.
I am therefore of the opinion that social power superior to all others must always be placed somewhere; but I think that liberty is endangered when this power finds no obstacle which can retard its course and give it time to moderate its own vehemence.
Unlimited power is in itself a bad and dangerous thing. Human beings are not competent to exercise it with discretion. God alone can be omnipotent, because his wisdom and his justice are always equal to his power. There is no power on earth so worthy of honor in itself or clothed with rights so sacred that I would admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws.
In my opinion, the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country as at the inadequate securities which one finds there against tyranny. an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power, it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the measure of which you complain, you must submit to it as well as you can.4
If, on the other hand, a legislative power could be so constituted as to represent the majority without necessarily being the slave of its passions, an executive so as to retain a proper share of authority, and a judiciary so as to remain independent of the other two powers, a government would be formed which would still be democratic while incurring scarcely any risk of tyranny.
I do not say that there is a frequent use of tyranny in America at the present day; but I maintain that there is no sure barrier against it, and that the causes which mitigate the government there are to be found in the circumstances and the manners of the country more than in its laws.
Liberty left by the American laws to public officers within a certain sphere --Their power.
A DISTINCTION must be drawn between tyranny and arbitrary power. Tyranny may be exercised by means of the law itself, and in that case it is not arbitrary; arbitrary power may be exercised for the public good, in which case it is not tyrannical. Tyranny usually employs arbitrary means, but if necessary it can do without them.
In the United States the omnipotence of the majority, which is favorable to the legal despotism of the legislature, likewise favors the arbitrary authority of the magistrate. The majority has absolute power both to make the laws and to watch over their execution; and as it has equal authority over those who are in power and the community at large, it considers public officers as its passive agents and readily confides to them the task of carrying out its de signs. The details of their office and the privileges that they are to enjoy are rarely defined beforehand. It treats them as a master does his servants, since they are always at work in his sight and he can direct or reprimand them at any instant.
In general, the American functionaries are far more independent within the sphere that is prescribed to them than the French civil officers. Sometimes, even, they are allowed by the popular authority to exceed those bounds; and as they are protected by the opinion and backed by the power of the majority, they dare do things that even a European, accustomed as he is to arbitrary power, is astonished at. By this means habits are formed in the heart of a free country which may some day prove fatal to its liberties.
In America, when the majority has once irrevocably decided a question, all discussion ceases--Reason f or this--Moral power exercised by the majority upon opinion--Democratic republics have applied despotism to the minds of men.
IT is in the examination of the exercise of thought in the United States that we clearly perceive how far the power of the majority surpasses all the powers with which we are acquainted in Europe. Thought is an invisible and subtle power that mocks all the efforts of tyranny. At the present time the most absolute monarchs in Europe cannot prevent certain opinions hostile to their authority from circulating in secret through their dominions and even in their courts. It is not so in America; as long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably pronounced, everyone is silent, and the friends as well as the opponents of the measure unite in assenting to its propriety. The reason for this is perfectly clear: no monarch is so absolute as to combine all the powers of society in his own hands and to conquer all opposition, as a majority is able to do, which has the right both of making and of executing the laws.
The authority of a king is physical and controls the actions of men without subduing their will. But the majority possesses a power that is physical and moral at the same time, which acts upon the will as much as upon the actions and represses not only all contest, but all controversy.
I know of no country in which there is so little independence of mind and real freedom of discussion as in America. In any constitutional state in Europe every sort of religious and political theory may be freely preached and disseminated; for there is no country in Europe so subdued by any single authority as not to protect the man who raises his voice in the cause of truth from the consequences of his hardihood. If he is unfortunate enough to live under an absolute government, the people are often on his side; if he inhabits a free country, he can, if necessary, find a shelter behind the throne. The aristocratic part of society supports him in some countries, and the democracy in others. But in a nation where democratic institutions exist, organized like those of the United States, there is but one authority, one element of strength and success, with nothing beyond it.
In America the majority raises formidable barriers around the liberty of opinion; within these barriers an author may write what he pleases, but woe to him if he goes beyond them. Not that he is in danger of an auto-da-f‚, but he is exposed to continued obloquy and persecution. His political career is closed forever, since he has offended the only authority that is able to open it. Every sort of compensation, even that of celebrity, is refused to him. Before making public his opinions he thought he had sympathizers; now it seems to him that he has none any more since he has revealed himself to everyone; then those who blame him criticize loudly and those who think as he does keep quiet and move away without courage. He yields at length, overcome by the daily effort which he has to make, and subsides into silence, as if he felt remorse for having spoken the truth.
Fetters and headsmen were the coarse instruments that tyranny formerly employed; but the civilization of our age has perfected despotism itself, though it seemed to have nothing to learn. Monarchs had, so to speak, materialized oppression; the democratic republics of the present day have rendered it as entirely an affair of the mind as the will which it is intended to coerce. Under the absolute sway of one man the body was attacked in order to subdue the soul; but the soul escaped the blows which were directed against it and rose proudly superior. Such is not the course adopted by tyranny in democratic republics; there the body is left free, and the soul is enslaved. The master no longer says: "You shall think as I do or you shall die"; but he says: "You are free to think differently from me and to retain your life, your property, and all that you possess; but you are henceforth a stranger among your people. You may retain your civil rights, but they will be useless to you, for you will never be chosen by your fellow citizens if you solicit their votes; and they will affect to scorn you if you ask for their esteem. You will remain among men, but you will be deprived of the rights of mankind. Your fellow creatures will shun you like an impure being; and even those who believe in your innocence will abandon you, lest they should be shunned in their turn. Go in peace! I have given you your life, but it is an existence worse than death."
Absolute monarchies had dishonored despotism; let us beware lest democratic republics should reinstate it and render it less odious and degrading in the eyes of the many by making it still more onerous to the few.
Works have been published in the proudest nations of the Old World expressly intended to censure the vices and the follies of the times: LabruyŠre inhabited the palace of Louis XIV when he composed his chapter upon the Great, and MoliŠre criticized the courtiers in the plays that were acted before the court. But the ruling power in the United States is not to be made game of. The smallest reproach irritates its sensibility, and the slightest joke that has any foundation in truth renders it indignant, from the forms of its language up to the solid virtues of its character, everything must be made the subject of encomium. No writer, whatever be his eminence, can escape paying this tribute of adulation to his fellow citizens. The majority lives in the perpetual utterance of self-applause, and there are certain truths which the Americans can learn only from strangers or from experience.
If America has not as yet had any great writers, the reason is given in these facts; there can be no literary genius without freedom of opinion, and freedom of opinion does not exist in America. The Inquisition has never been able to prevent a vast number of anti-religious books from circulating in Spain. The empire of the majority succeeds much better in the United States, since it actually removes any wish to publish them. Unbelievers are to be met with in America, but there is no public organ of infidelity. Attempts have been made by some governments to protect morality by prohibiting licentious books. In the United States no one is punished for this sort of books, but no one is induced to write them; not because all the citizens are immaculate in conduct, but because the majority of the community is decent and orderly.
In this case the use of the power is unquestionably good; and I am discussing the nature of the power itself. This irresistible authority is a constant fact, and its judicious exercise is only an accident.
Effects of the tyranny of the majority more sensibly felt hitherto on the manners than on the conduct of society--They check the development of great characters--Democratic republics, organized like the United States, infuse the courtier spirit into the mass of the people--Proofs of this spirit in the United States--Why there is more patriotism in the people than in those who govern in their name.
THE tendencies that I have just mentioned are as yet but slightly perceptible in political society, but they already exercise an unfavorable influence upon the national character of the Americans. I attribute the small number of distinguished men in political life to the ever increasing despotism of the majority in the United States.
When the American Revolution broke out, they arose in great numbers; for public opinion then served, not to tyrannize over, but to direct the exertions of individuals. Those celebrated men, sharing the agitation of mind common at that period, had a gran- deur peculiar to themselves, which was reflected back upon the nation, but was by no means borrowed from it.
In absolute governments the great nobles who are nearest to the throne flatter the passions of the sovereign and voluntarily truckle to his caprices. But the mass of the nation does not degrade itself by servitude; it often submits from weakness, from habit, or from ignorance, and sometimes from loyalty. Some nations have been known to sacrifice their own desires to those of the sovereign with pleasure and pride, thus exhibiting a sort of independence of mind in the very act of submission. These nations are miserable, but they are not degraded. There is a great difference between doing what one does not approve, and feigning to approve what one does; the one is the weakness of a feeble person, the other befits the temper of a lackey.
In free countries, where everyone is more or less called upon to give his opinion on affairs of state, in democratic republics, where public life is incessantly mingled with domestic affairs, where the sovereign authority is accessible on every side, and where its attention can always be attracted by vociferation, more persons are to be met with who speculate upon its weaknesses and live upon ministering to its passions than in absolute monarchies. Not because men are naturally worse in these states than elsewhere, but the temptation is stronger and at the same time of easier access. The result is a more extensive debasement of character.
Democratic republics extend the practice of currying favor with the many and introduce it into all classes at once; this is the most serious reproach that can be addressed to them. This is especially true in democratic states organized like the American republics, where the power of the majority is so absolute and irresistible that one must give up one's rights as a citizen and almost abjure one's qualities as a man if one intends to stray from the track which it prescribes.
In that immense crowd which throngs the avenues to power in the United States, I found very few men who displayed that manly candor and masculine independence of opinion which frequently distinguished the Americans in former times, and which constitutes the leading feature in distinguished characters wherever they may be found. It seems at first sight as if all the minds of the Americans were formed upon one model, so accurately do they follow the same route. A stranger does, indeed, sometimes meet with Americans who dissent from the rigor of these formulas, with men who deplore the defects of the laws, the mutability and the ignorance of democracy, who even go so far as to observe the evil tendencies that impair the national character, and to point out such remedies as it might be possible to apply; but no one is there to hear them except yourself, and you, to whom these secret reflections are confided, are a stranger and a bird of passage. They are very ready to communicate truths which are useless to you, but they hold a different language in public.
If these lines are ever read in America, I am well assured of two things: in the first place, that all who peruse them will raise their voices to condemn me; and, in the second place, that many of them will acquit me at the bottom of their conscience.
I have heard of patriotism in the United States, and I have found true patriotism among the people, but never among the leaders of the people. This may be explained by analogy: despotism debases the oppressed much more than the oppressor: in absolute monarchies the king often has great virtues, but the courtiers are invariably servile. It is true that American courtiers do not say "Sire," or "Your Majesty," a distinction without a difference. They are forever talking of the natural intelligence of the people whom they serve; they do not debate the question which of the virtues of their master is pre-eminently worthy of admiration, for they assure him that he possesses all the virtues without having acquired them, or without caring to acquire them; they do not give him their daughters and their wives to be raised at his pleasure to the rank of his concubines; but by sacrificing their opinions they prostitute themselves. Moralists and philosophers in America are not obliged to conceal their opinions under the veil of allegory; but before they venture upon a harsh truth, they say: "We are aware that the people whom we are addressing are too superior to the weaknesses of human nature to lose the command of their temper for an instant. We should not hold this language if we were not speaking to men whom their virtues and their intelligence render more worthy of freedom than all the rest of the world." The sycophants of Louis XIV could not flatter more dexterously.
For my part, I am persuaded that in all governments, whatever their nature may be, servility will cower to force, and adulation will follow power. The only means of preventing men from degrading themselves is to invest no one with that unlimited authority which is the sure method of debasing them.
Democratic republics liable to perish from a misuse of their power, and not from impotence--The governments of the American republics are more centralized and more energetic than those of the monarchies of Europe--Dangers resulting from this--Opinions of Madison and Jefferson upon this point.
GOVERNMENTS usually perish from impotence or from tyranny. In the former case, their power escapes from them; it is wrested from their grasp in the latter. Many observers who have witnessed the anarchy of democratic states have imagined that the government of those states was naturally weak and impotent. The truth is that when war is once begun between parties, the government loses its control over society. But I do not think that a democratic power is naturally without force or resources; say, rather, that it is almost always by the abuse of its force and the misemployment of its resources that it becomes a failure. Anarchy is almost always produced by its tyranny or its mistakes, but not by its want of strength.
It is important not to confuse stability with force, or the greatness of a thing with its duration. In democratic republics the power that directs 5 society is not stable, for it often changes hands and assumes a new direction. But whichever way it turns, its force is almost irresistible. The governments of the American republics appear to me to be as much centralized as those of the absolute monarchies of Europe, and more energetic than they are. I do not, therefore, imagine that they will perish from weakness.6
If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force. Anarchy will then be the result, but it will have been brought about by despotism.
Mr. Madison expresses the same opinion in The Federalist, No. 51. "It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Justice is the end of government. It is the end of civil society. It ever has been, and ever will be, pursued until it be obtained, or until liberty be lost in the pursuit. In a society, under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger: and as, in the latter state, even the stronger individuals are prompted by the uncertainty of their condition to submit to a government which may protect the weak as well as themselves, so, in the former state, will the more powerful factions be gradually induced by a like motive to wish for a government which will protect all parties, the weaker as well as the more powerful. It can be little doubted, that, if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of right under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of the factious majorities, that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it.¯
Jefferson also said: "The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period." 7
I am glad to cite the opinion of Jefferson upon this subject rather than that of any other, because I consider him the most powerful advocate democracy has ever had.
1 We have seen, in examining the Federal Constitution, that the efforts of the legislators of the Union were directed against this absolute power. The consequence has been that the Federal government is more independent in its sphere than that of the states. But the Federal government scarcely ever interferes in any but foreign affairs; and the governments of the states in reality direct society in America.
2 The legislative acts promulgated by the state of Massachusetts alone from the year 1780 to the present time already fill three stout volumes; and it must not be forgotten that the collection to which I allude was revised in 1823, when many old laws which had fallen into disuse were omitted. The state of Massachusetts, which is not more populous than a department of France, may be considered as the most stable, the most consistent, and the most sagacious in its undertakings of the whole Union.
3 No one will assert that a people cannot forcibly wrong another people; but parties may be looked upon as lesser nations within a great one, and they are aliens to each other. If, therefore, one admits that a nation can act tyrannically towards another nation, can it be denied that a party may do the same towards another party?
4 A striking instance of the excesses that may be occasioned by the despotism of the majority occurred at Baltimore during the War of 1812. At that time the war was very popular in Baltimore. A newspaper that had taken the other side excited, by its opposition, the indignation of the inhabitants. The mob assembled, broke the printing-presses, and attacked the house of the editors. The militia was called out, but did not obey the call; and the only means of saving the wretches who were threatened by the frenzy of the mob was to throw them into prison as common malefactors. But even this precaution was ineffectual, the mob collected again during the night; the magistrates again made a vain attempt to call out the militia; the prison was forced, one of the newspaper editors was killed upon the spot, and the others were left for dead. The guilty parties, when they were brought to trial, were acquitted by the jury.
I said one day to an inhabitant of Pennsylvania: "Be so good as to explain to me how it happens that in a state founded by Quakers, and celebrated for its toleration, free blacks are not allowed to exercise civil rights. They pay taxes; is it not fair that they should vote?"
"You insult us," replied my informant, "if you imagine that our legislators could have committed so gross an act of injustice and intolerance."
"Then the blacks possess the right of voting in this country?"
"Without doubt."
"How comes it, then, that at the polling-booth this morning I did not perceive a single Negro?"
"That is not the fault of the law. The Negroes have an undisputed right of voting, but they voluntarily abstain from making their appearance."
"A very pretty piece of modesty on their part!" rejoined I.
"Why, the truth is that they are not disinclined to vote, but they are afraid of being maltreated; in this country the law is sometimes unable to maintain its authority without the support of the majority. But in this case the majority entertains very strong prejudices against the blacks, and the magistrates are unable to protect them in the exercise of their legal rights."
"Then the majority claims the right not only of making the laws, but of breaking the laws it has made?"
5 This power may be centralized in an assembly, in which case it will be strong without being stable; or it may be centralized in an individual, in which case it will be less strong, but more stable.
6 I presume that it is scarcely necessary to remind the reader here, as well as throughout this chapter, that I am speaking, not of the Federal government, but of the governments of the individual states, which the majority controls at its pleasure.
7 Letter from Jefferson to Madison. March 15. 1789.
ABSENCE OF CENTRALIZED ADMINISTRATION. The national majority does not pretend to do everything--Is obliged to employ the town and county magistrates to execute its sovereign will.I HAVE already pointed out the distinction between a centralized government and a centralized administration. The former exists in America, but the latter is nearly unknown there. If the directing power of the American communities had both these instruments of government at is disposal and united the habit of executing its commands to the right of commanding; if, after having established the general principles of government, it descended to the details of their application; and if, having regulated the great interests of the country, it could descend to the circle of individual interests, freedom would soon be banished from the New World.
But in the United States the majority, which so frequently displays the tastes and the propensities of a despot, is still destitute of the most perfect instruments of tyranny.
In the American republics the central government has never as yet busied itself except with a small number of objects, sufficiently prominent to attract its attention. The secondary affairs of society have never been regulated by its authority; and nothing has hitherto betrayed its desire of even interfering in them. The majority has become more and more absolute, but has not increased the prerogatives of the central government; those great prerogatives have been confined to a certain sphere; and although the despotism of the majority may be galling upon one point, it cannot be said to extend to all. However the predominant party in the nation may be carried away by its passions, however ardent it may be in the pursuit of its projects, it cannot oblige all the citizens to comply with its desires in the same manner and at the same time throughout the country. When the central government which represents that majority has issued a decree, it must entrust the execution of its will to agents over whom it frequently has no control and whom it cannot perpetually direct. The townships, municipal bodies, and counties form so many concealed breakwaters, which check or part the tide of popular determination. If an oppressive law were passed, liberty would still be protected by the mode of executing that law; the majority cannot descend to the details and what may be called the puerilities of administrative tyranny. It does not even imagine that it can do so, for it has not a full consciousness of its authority. It knows only the extent of its natural powers, but is unacquainted with the art of increasing them.
This point deserves attention; for if a democratic republic, similar to that of the United States, were ever founded in a country where the power of one man had previously established a centralized administration and had sunk it deep into the habits and the laws of the people, I do not hesitate to assert that in such a republic a more insufferable despotism would prevail than in any of the absolute monarchies of Europe; or, indeed, than any that could be found on this side of Asia.
Utility of ascertaining what are the natural instincts of the legal profession--These men are to act a prominent part in future society--How the peculiar pursuits of lawyers give an aristocratic turn to their ideas--Accidental causes that may check this tendency--Ease with which the aristocracy coalesces with legal men--Use of lawyers to a despot--The profession of the law constitutes the only aristocratic element with which the natural elements of democracy will combine--Peculiar causes which tend to give an aristocratic turn of mind to English and American lawyers--The aristocracy of America is on the bench and at the bar--Influence of lawyers upon American society--Their peculiar magisterial spirit affects the legislature, the administration, and even the people.IN visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence; that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy. This effect seems to me to result from a general cause, which it is useful to investigate, as it may be reproduced elsewhere.
The members of the legal profession have taken a part in all the movements of political society in Europe for the last five hundred years. At one time they have been the instruments of the political authorities, and at another they have succeeded in converting the political authorities into their instruments. In the Middle Ages they afforded a powerful support to the crown; and since that period they have exerted themselves effectively to limit the royal prerogative. In England they have contracted a close alliance with the aristocracy; in France they have shown themselves its most dangerous enemies. Under all these circumstances have the members of the legal profession been swayed by sudden and fleeting impulses, or have they been more or less impelled by instincts which are natural to them and which will always recur in history? I am incited to this investigation, for perhaps this particular class of men will play a prominent part in the political society that is soon to be created.
Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.
The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. Add to this that they naturally constitute a body; not by any previous understanding, or by an agreement that directs them to a common end; but the analogy of their studies and the uniformity of their methods connect their minds as a common interest might unite their endeavors.
Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other} men, are governed by their private interests, and especially by the interests of the moment.
In a state of society in which the members of the legal profession cannot hold that rank in the political world which they enjoy in private life, we may rest assured that they will be the foremost agents of revolution. But it must then be asked whether the cause that then induces them to innovate and destroy results from a permanent disposition or from an accident. It is true that lawyers mainly contributed to the overthrow of the French monarchy in 1789; but it remains to be seen whether they acted thus because they had studied the laws or because they were prohibited from making them.
Five hundred years ago the English nobles headed the people and spoke in their name; at the present time the aristocracy sup- ports the throne and defends the royal prerogative. But notwith- standing this, aristocracy has its peculiar instincts and propensities. We must be careful not to confound isolated members of a body with the body itself. In all free governments, of whatever form they may be, members of the legal profession will be found in the front ranks of all parties. The same remark is also applicable to the aristocracy; almost all the democratic movements that have agitated the world have been directed by nobles. A privileged body can never satisfy the ambition of all its members: it has always more talents and more passions than it can find places to employ, so that a considerable number of individuals are usually to be met with who are inclined to attack those very privileges which they cannot soon enough turn to their own account.
I do not, then, assert that all the members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them are usually so. In a community in which lawyers are allowed to occupy without opposition that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic. When an aristocracy excludes the leaders of that profession from its ranks, it excites enemies who are the more formidable as they are independent of the nobility by their labors and feel themselves to be their equals in intelligence though inferior in opulence and power. But whenever an aristocracy consents to impart some of its privileges to these same individuals, the two classes coalesce very readily and assume, as it were, family interests.
I am in like manner inclined to believe that a monarch will always be able to convert legal practitioners into the most serviceable instruments of his authority. There is a far greater affinity between this class of persons and the executive power than there is between them and the people, though they have often aided to overturn the former; just as there is a greater natural affinity between the nobles and the monarch than between the nobles and the people, although the higher orders of society have often, in concert with the lower classes, resisted the prerogative of the crown.
Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, also, that if they prize freedom much, they generally value legality still more: they are less afraid of tyranny than of arbitrary power; and, provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.
I am therefore convinced that the prince who, in presence of an encroaching democracy, should endeavor to impair the judicial authority in his dominions, and to diminish the political influence of lawyers, would commit a great mistake: he would let slip the substance of authority to grasp the shadow. He would act more wisely in introducing lawyers into the government; and if he entrusted despotism to them under the form of violence, perhaps he would find it again in their hands under the external features of justice and law.
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it. The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
The profession of the law is the only aristocratic element that can be amalgamated without violence with the natural elements of democracy and be advantageously and permanently combined with them. I am not ignorant of the defects inherent in the character of this body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could hope to exist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people.
This aristocratic character, which I hold to be common to the legal profession, is much more distinctly marked in the United States and in England than in any other country. This proceeds not only from the legal studies of the English and American lawyers, but from the nature of the law and the position which these interpreters of it occupy in the two countries. The English and the Americans have retained the law of precedents; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their predecessors. In the mind of an English or American lawyer a taste and a reverence for what is old is almost always united with a love of regular and lawful proceedings.
This predisposition has another effect upon the character of the legal profession and upon the general course of society. The English and American lawyers investigate what has been done; the French advocate inquires what should have been done; the former produce precedents, the latter reasons. A French observer is surprised to hear how often an English or an American lawyer quotes the opinions of others and how little he alludes to his own, while the reverse occurs in France. There the most trifling litigation is never conducted without the introduction of an entire system of ideas peculiar to the counsel employed; and the fundamental principles of law are discussed in order to obtain a rod of land by the decision of the court. This abnegation of his own opinion and this implicit deference to the opinion of his forefathers, which are common to the English and American lawyer, this servitude of thought which he is obliged to profess, necessarily give him more timid habits and more conservative inclinations in England and America than in France.
The French codes are often difficult to comprehend, but they can be read by everyone; nothing, on the other hand, can be more obscure and strange to the uninitiated than a legislation founded upon precedents. The absolute need of legal aid that is felt in England and the United States, and the high opinion that is entertained of the ability of the legal profession, tend to separate it more and more from the people and to erect it into a distinct class. The French lawyer is simply a man extensively acquainted with the statutes of his country; but the English or American lawyer resembles the hierophants of Egypt, for like them he is the sole interpreter of an occult science.
The position that lawyers occupy in England and America exercises no less influence upon their habits and opinions. The English aristocracy, which has taken care to attract to its sphere whatever is at all analogous to itself, has conferred a high degree of importance and authority upon the members of the legal profession. In English society, lawyers do not occupy the first rank, but they are contented with the station assigned to them: they constitute, as it were, the younger branch of the English aristocracy; and they are attached to their elder brothers, although they do not enjoy all their privileges. The English lawyers consequently mingle the aristocratic tastes and ideas of the circles in which they move with the aristocratic interests of their profession.
And, indeed, the lawyer-like character that I am endeavoring to depict is most distinctly to be met with in England: there laws are esteemed not so much because they are good as because they are old; and if it is necessary to modify them in any respect, to adapt them to the changes that time operates in society, recourse is had to the most inconceivable subtleties in order to uphold the traditionary fabric and to maintain that nothing has been done which does not square with the intentions and complete the labors of former generations. The very individuals who conduct these changes disclaim any desire for innovation and had rather resort to absurd expedients than plead guilty to so great a crime. This spirit appertains more especially to the English lawyers; they appear indifferent to the real meaning of what they treat, and they direct all their attention to the letter, seeming inclined to abandon reason and humanity rather than to swerve one tittle from the law. English legislation may be compared to the stock of an old tree upon which lawyers have engrafted the most dissimilar shoots in the hope that, although their fruits may differ, their foliage at least will be confused with the venerable trunk that supports them all.
In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.
The more we reflect upon all that occurs in the United States the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.
The courts of justice are the visible organs by which the legal profession is enabled to control the democracy. The judge is a lawyer who, independently of the taste for regularity and order that he has contracted in the study of law, derives an additional love of stability from the inalienability of his own functions. His legal attainments have already raised him to a distinguished rank among his fellows; his political power completes the distinction of his station and gives him the instincts of the privileged classes.
Armed with the power of declaring the laws to be unconstitutional,1 the American magistrate perpetually interferes in political affairs. He cannot force the people to make laws, but at least he can oblige them not to disobey their own enactments and not to be inconsistent with themselves. I am aware that a secret tendency to diminish the judicial power exists in the United States; and by most of the constitutions of the several states the government can, upon the demand of the two houses of the legislature, remove judges from their station. Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.
It must not be supposed, moreover, that the legal spirit is con fined in the United States to the courts of justice; it extends far beyond them. As the lawyers form the only enlightened class whom the people do not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative assemblies and are at the head of the administration; they consequently exercise a powerful influence upon the formation of the law and upon its execution. The lawyers are obliged, however, to yield to the current of public opinion, which is too strong for them to resist; but it is easy to find indications of what they would do if they were free to act. The Americans, who have made so many innovations in their political laws, have introduced very sparing alterations in their civil laws, and that with great difficulty, although many of these laws are repugnant to their social condition. The reason for this is that in matters of civil law the majority are obliged to defer to the authority of the legal profession, and the American lawyers are disinclined to innovate when they are left to their own choice.
It is curious for a Frenchman to hear the complaints that are made in the United States against the stationary spirit of legal men and their prejudices in favor of existing institutions.
The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.
Trial by jury, which is one of the forms of the sovereignty of the people, ought to be compared with the other which establish that sovereignty--Composition of the in the United States--Effect of trial by jury upon the national character--lt educates the people--How it tends to establish the influence of the magistrates and to extend the legal spirit among the people.SINCE my subject has led me to speak of the administration of justice in the United States, I will not pass over it without referring to the institution of the jury. Trial by jury may be considered in two separate points of view: as a judicial, and as a political institution. If it was my purpose to inquire how far trial by jury, especially in civil cases, ensures a good administration of justice I admit that its utility might be contested. As the jury was first established when society was in its infancy and when courts of justice merely decided simple questions of fact, it is not an easy task to adapt it to the wants of a highly civilized community when the mutual relations of men are multiplied to a surprising extent and have assumed an enlightened and intellectual character.2
My present purpose is to consider the jury as a political institution; any other course would divert me from my subject. Of trial by jury considered as a judicial institution I shall here say but little. When the English adopted trial by jury, they were a semi-barbarous people; they have since become one of the most enlightened nations of the earth, and their attachment to this institution seems to have increased with their increasing cultivation. They have emigrated and colonized every part of the habitable globe; some have formed colonies, others independent states; the mother country has maintained its monarchical constitution; many of its offspring have founded powerful republics; but everywhere they have boasted of the privilege of trial by jury.3 They have established it, or hastened to re-establish it, in all their settlements. A judicial institution which thus obtains the suffrages of a great people for so long a series of ages, which is zealously reproduced at every stage of civilization, in all the climates of the earth, and under every form of human government, cannot be contrary to the spirit of justice.4
But to leave this part of the subject. It would be a very narrow view to look upon the jury as a mere judicial institution; for however great its influence may be upon the decisions of the courts, it is still greater on the destinies of society at large. The jury is, above all, a political institution, and it must be regarded in this light in order to be duly appreciated.
By the jury I mean a certain number of citizens chosen by lot and invested with a temporary right of judging. Trial by jury, as applied to the repression of crime, appears to me an eminently republican element in the government, for the following reasons.
The institution of the jury may be aristocratic or democratic, according to the class from which the jurors are taken; but it always preserves its republican character, in that it places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government. Force is never more than a transient element of success, and after force comes the notion of right. A government able to reach its enemies only upon a field of battle would soon be destroyed. The true sanction of political laws is to be found in penal legislation; and if that sanction is wanting, the law will sooner or later lose its cogency. He who punishes the criminal is therefore the real master of society. Now, the institution of the jury raises the people itself, or at least a class of citizens, to the bench of judges. The institution ------ institution, many arguments might be brought forward, and among others the following:
In proportion as you introduce the jury into the business of the courts you are enabled to diminish the number of judges, which is a great advantage. When judges are very numerous, death is perpetually thinning the ranks of the judicial functionaries and leaving places vacant for new-comers. The ambition of the magistrates is therefore continually excited, and they are naturally made dependent upon the majority or the person who nominates to vacant offices; the officers of the courts then advance as do the officers of an army. This state of things is entirely contrary to the sound administration of justice and to the intentions of the legislator. The office of a judge is made inalienable in order that he may remain independent, but of what advantage is it that his independence should be protected if he be tempted to sacrifice it of his own accord? When judges are very numerous many of them must necessarily be incapable; for a great magistrate is a man of no common powers: I do not know if a half-enlightened tribunal is not the worst of all combinations for attaining those ends which underlie the establishment of courts of justice. For my own part, I had rather submit the decision of a case to ignorant jurors directed by a skillful judge than to judges a majority of whom are imperfectly acquainted with jurisprudence and with the laws. of the jury consequently invests the people, or that class of citizens, with the direction of society.5
In England the jury is selected from the aristocratic portion of the nation; the aristocracy makes the laws, applies the laws, and punishes infractions of the laws; 6 everything is established upon a consistent footing, and England may with truth be said to constitute an aristocratic republic. In the United States the same system is applied to the whole people. Every American citizen is both an eligible and a legally qualified voter.7 The jury system as it is understood in America appears to me to be as direct and as extreme a consequence of the sovereignty of the people as universal suffrage. They are two instruments of equal power, which contribute to the supremacy of the majority. All the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its directions, have destroyed or enfeebled the institution of the jury. The Tudor monarchs sent to prison jurors who refused to convict, and Napoleon caused them to be selected by his agents.
However clear most of these truths may seem to be, they do not command universal assent; and in France, at least, trial by jury is still but imperfectly understood. If the question arises as to the proper qualification of jurors, it is confined to a discussion of the intelligence and knowledge of the citizens who may be returned, as if the jury was merely a judicial institution. This appears to me the least important part of the subject. The jury is pre-eminently a political institution; it should be regarded as one form of the sovereignty of the people: when that sovereignty is repudiated, it must be rejected, or it must be adapted to the laws by which that sovereignty is established. The jury is that portion of the nation to which the execution of the laws is entrusted, as the legislature is that part of the nation which makes the laws; and in order that society may be governed in a fixed and uniform manner, the list of citizens qualified to serve on juries must increase and diminish with the list of electors. This I hold to be the point of view most worthy of the attention of the legislator; all that remains is merely accessory.
I am so entirely convinced that the jury is pre-eminently a political institution that I still consider it in this light when it is applied in civil causes. Laws are always unstable unless they are founded upon the customs of a nation: customs are the only durable and resisting power in a people. When the jury is reserved for criminal offenses, the people witness only its occasional action in particular cases; they become accustomed to do without it in the ordinary course of life, and it is considered as an instrument, but not as the only instrument, of obtaining justice.8
When, on the contrary, the jury acts also on civil causes, its application is constantly visible; it affects all the interests of the community; everyone co-operates in its work: it thus penetrates into all the usages of life, it fashions the human mind to its peculiar forms, and is gradually associated with the idea of justice itself.
The institution of the jury, if confined to criminal causes, is always in danger; but when once it is introduced into civil proceedings, it defies the aggressions of time and man. If it had been as easy to remove the jury from the customs as from the laws of England, it would have perished under the Tudors, and the civil jury did in reality at that period save the liberties of England. In whatever manner the jury be applied, it cannot fail to exercise a powerful influence upon the national character; but this influence is prodigiously increased when it is introduced into civil causes. The jury, and more especially the civil jury, serves to communicate the spirit of the judges to the minds of all the citizens and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged and with the notion of right. If these two elements be removed, the love of independence becomes a mere destructive passion. It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged. And this is especially true of the jury in civil causes, for while the number of persons who have reason to apprehend a criminal prosecution is small, everyone is liable to have a lawsuit. The jury teaches every man not to recoil before the responsibility of his own actions and impresses him with that manly confidence without which no political virtue can exist. It invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society.
The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties. I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use that they have made of the jury in civil causes.
I do not know whether the jury is useful to those who have lawsuits, but I am certain it is highly beneficial to those who judge them; and I look upon it as one of the most efficacious means for the education of the people which society can employ.
What I have said applies to all nations, but the remark I am about to make is peculiar to the Americans and to democratic com- munities. I have already observed that in democracies the members of the legal profession and the judicial magistrates constitute the only aristocratic body which can moderate the movements of the people. This aristocracy is invested with no physical power; it exercises its conservative influence upon the minds of men; and the most abundant source of its authority is the institution of the civil jury. In criminal causes, when society is contending against a single man, the jury is apt to look upon the judge as the passive instrument of social power and to mistrust his advice. Moreover, criminal causes turn entirely upon simple facts, which common sense can readily appreciate; upon this ground the judge and the jury are equal. Such is not the case, however, in civil causes; then the judge appears as a disinterested arbiter between the conflicting passions of the parties. The jurors look up to him with confidence and listen to him with respect, for in this instance, his intellect entirely governs theirs. It is the judge who sums up the various arguments which have wearied their memory, and who guides them through the devious course of the proceedings; he points their attention to the exact question of fact that they are called upon to decide and tells them how to answer the question of law. His influence over them is almost unlimited.
If I am called upon to explain why I am but little moved by the arguments derived from the ignorance of jurors in civil causes, I reply that in these proceedings, whenever the question to be solved is not a mere question of fact, the jury has only the semblance of a judicial body. The jury only sanctions the decision of the judge; they sanction this decision by the authority of society which they represent, and he by that of reason and of law.9
In England and in America the judges exercise an influence upon criminal trials that the French judges have never possessed. The reason for this difference may easily be discovered; the English and American magistrates have established their authority in civil causes and only transfer it afterwards to tribunals of another kind, where it was not first acquired. In some cases, and they are frequently the most important ones, the American judges have the right of deciding causes alone.10 On these occasions they are accidentally placed in the position that the French judges habitually occupy, but their moral power is much greater; they are still surrounded by the recollection of the jury, and their judgment has almost as much authority as the voice of the community represented by that institution. Their influence extends far beyond the limits of the courts; in the recreations of private life, as well as in the turmoil of public business, in public, and in the legislative assemblies, the American judge is constantly surrounded by men who are accustomed to regard his intelligence as superior to their own; and after having exercised his power in the decision of causes, he continues to influence the habits of thought, and even the characters, of those who acted with him in his official capacity.
The jury, then, which seems to restrict the rights of the judiciary, does in reality consolidate its power; and in no country are the judges so powerful as where the people share their privileges.
1 See Chapter VI, on "The Judicial Power in the United States."2 The consideration of trial by jury as a judicial institution, and the appraisal of its effects in the United States, together with an inquiry into the manner in which the Americans have used it, would suffice to form a book, and a book very interesting to France. One might trace therein, for example, what parts of the American system pertaining to the jury might be introduced among us, and by what steps. The state of Louisiana would throw the most light upon the subject, as it has a mingled population of French and English. The two systems of law, as well as the two nations, are there found side by side and are gradually combining with each other. The most useful books to consult would be the Digeste des Lois de la Louis¡ane; and the Trait‚ sur les RŠgles des Actions civiles, printed in French and English at New Orleans, in 1830, by Buisson. This book has a special advantage, it presents, for Frenchmen, an exact and an authentic glossary of English legal terms. The language of law is everywhere different from that of the people, a fact particularly true of the English.
3 All the English and American jurists are unanimous on this point. Mr. Story, Justice of the Supreme Court of the United States, speaks, in his Commentaries on the Constitution, of the advantages of trial by jury in civil cases: "The inestimable privilege of a trial by jury in civil cases," says he, "a privilege scarcely inferior to that in criminal cases, which is counted by all persons to be essential to political and civil liberty." ( Story, Book III, Ch. 38. )
4 If it were our object to establish the utility of the jury as a judicial
5 An important remark must, however, be made. Trial by jury does unquestionably invest the people with a general control over the actions of the citizens, but it does not furnish means of exercising this control in all cases or with an absolute authority. When an absolute monarch has the right of trying offenses by his representatives, the fate of the prisoner is, as it were, decided beforehand. But even if the people were predisposed to convict, the composition and the non-responsibility of the jury would still afford some chances favorable to the protection of innocence
6 See Appendix Q.
7 See Appendix R.
8 This is unequivocally true since the jury is employed only in certain criminal cases.
9 See Appendix S.
10 The Federal judges decide almost always only such questions as touch directly the government of the country. It is especially by means of the jury in civil causes that the American magistrates imbue even the lower classes of society with the spirit of their profession. Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it how to rule well.