American Institutions and Their Influence by Alexis de Tocqueville et al

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There is reason to complain not only of the ambiguity, but of the style
of exaggeration which pervades all the remarks of the author on this
subject--so different from the well considered and nicely adjusted
language employed by him on all other topics. Thus, p. 262, he implies
that there is no means of redress afforded even by the judiciary, for a
wrong committed by the majority. His error is, _first_, in supposing the
jury to constitute the judicial power; _second_, overlooking what he has
himself elsewhere so well described, the independence of the judiciary,
and its means of controlling the action of a majority in a state or in
the federal government; and _thirdly_, in omitting the proper
consideration of the frequent changes of popular sentiment by which the
majority of yesterday becomes the minority of to-day, and its acts of
injustice are reversed.

Certain it is that the instances which he cites at this page, do not
establish his position respecting the disposition of the majority. The
riot at Baltimore was, like other riots in England and in France, the
result of popular phrensy excited to madness by conduct of the most
provoking character. The majority in the state of Maryland and
throughout the United States, highly disapproved the acts of violence
committed on the occasion. The acquittal by a jury of those arraigned
for the murder of General Lingan, proves only that there was not
sufficient evidence to identify the accused, or that the jury was
governed by passion. It is not perceived how the majority of the people
are answerable for the verdicts rendered. The guilty have often been
erroneously acquitted in all countries, and in France particularly,
recent instances are not wanting of acquittals especially in
prosecutions for political offences, against clear and indisputable
testimony. And it was entirely fortuitous that the jury was composed of
men whose sympathies were with the rioters and murderers, if the fact
was so. It not unfrequently happens that a jury taken from lists
furnished years perhaps, and always a long time, before the trial, are
decidedly hostile to the temporary prevailing sentiments of their city,
county, or state.

As in the other instance, if the inhabitant of Pennsylvania intended to
intimate to our author, that a colored voter would be in personal
jeopardy for venturing to appear at the polls to exercise his right, it
must be said in truth, that the incident was local and peculiar, and
contrary to what is annually seen throughout the states where colored
persons are permitted to vote, who exercise that privilege with as full
immunity from injury or oppression, as any white citizen. And, after
all, it is believed that the state of feeling intimated by the informant
of our author, is but an indication of dislike to a _caste_ degraded by
servitude and ignorance; and it is not perceived how it proves the
despotism of a majority over the freedom and independence of opinion. If
it be true, it proves a detestable tyranny over _acts_, over the
exercise of an acknowledged right. The apprehensions of a mob committing
violence deterred the colored voters from approaching the polls. Are
instances unknown in England or even in France, of peaceable subjects
being prevented by mobs or the fear of them, from the exercise of a
right, from the discharge of a duty? And are they evidences of the
despotism of a majority in those countries?--_American Editor._]

I have heard of patriotism in the United States, and it is a virtue
which may be found among the people, but never among the leaders of the
people. This may be explained by analogy; despotism debases the
oppressed, much more than the oppressor; in absolute monarchies the king
has often great virtues, but the courtiers are invariably servile. It is
true that the American courtiers do not say, "sire," or "your
majesty"--a distinction without a difference. They are for ever talking
of the natural intelligence of the populace they serve; they do not
debate the question as to which of the virtues of their master are
pre-eminently worthy of admiration; for they assure him that he
possesses all the virtues under heaven without having acquired them, or
without caring to acquire them: they do not give him their daughters and
their wives to be raised at his pleasure to the rank of his concubines,
but, by sacrificing their opinions, they prostitute themselves.
Moralists and philosophers in America are not obliged to conceal their
opinions under the veil of allegory; but, before they venture upon a
harsh truth, they say: "We are aware that the people which we are
addressing is too superior to all the weaknesses of human nature to lose
the command of its temper for an instant; and we should not hold this
language if we were not speaking to men, whom their virtues and their
intelligence render more worthy of freedom than all the rest of the
world."

It would have been impossible for the sycophants of Louis XIV. to
flatter more dexterously. For my part, I am persuaded that in all
governments, whatever their nature may be, servility will cower to
force, and adulation will cling to power. The only means of preventing
men from degrading themselves, is to invest no one with that unlimited
authority which is the surest method of debasing them.

* * * * *

THE GREATEST DANGERS OF THE AMERICAN REPUBLICS PROCEED FROM THE
UNLIMITED POWER OF THE MAJORITY.

Democratic Republics liable to perish from a misuse of their Power, and
not by Impotence.--The Governments of the American Republics are more
Centralized and more Energetic than those of the Monarchies of
Europe.--Dangers resulting from this.--Opinions of Hamilton and
Jefferson upon this Point.

Governments usually fall a sacrifice to impotence or to tyranny. In the
former case their power escapes from them: it is wrested from their
grasp in the latter. Many observers who have noticed the anarchy of
domestic states, have imagined that the government of those states was
naturally weak and impotent. The truth is, that when once hostilities
are begun between parties, the government loses its control over
society. But I do not think that a democratic power is naturally without
resources: say rather, that it is almost always by the abuse of its
force, and the misemployment of its resources, that a democratic
government fails. Anarchy is almost always produced by its tyranny or
its mistakes, but not by its want of strength.

It is important not to confound stability with force, or the greatness
of a thing with its duration. In democratic republics, the power which
directs[186] 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.[187]

If ever the free institutions of America are destroyed, that event may
be attributed to the unlimited authority of the majority, which may at
some future time urge the minorities to desperation, and oblige them to
have recourse to physical force. Anarchy will then be the result, but it
will have been brought about by despotism.

Mr. Hamilton expresses the same opinion in the Federalist, No. 51. "It
is of great importance in a republic not only to guard the society
against the oppression of its rulers, but to guard one part of the
society against the injustice of the other part. Justice is the end of
government. It is the end of civil society. It ever has been, and ever
will be pursued until it be obtained, or until liberty be lost in the
pursuit. In a society, under the forms of which the stronger faction can
readily unite and oppress the weaker, anarchy may as truly be said to
reign as in a state of nature, where the weaker individual is not
secured against the violence of the stronger: and as in the latter state
even the stronger individuals are prompted by the uncertainty of their
condition to submit to a government which may protect the weak as well
as themselves, so in the former state will the more powerful factions be
gradually induced by a like motive to wish for a government which will
protect all parties, the weaker as well as the more powerful. It can be
little doubted, that if the state of Rhode Island was separated from the
confederacy and left to itself, the insecurity of rights under the
popular form of government within such narrow limits, would be displayed
by such reiterated oppression of the factious majorities, that some
power altogether independent of the people would soon be called for by
the voice of the very factions whose misrule had proved the necessity of
it."

Jefferson has also expressed himself in a letter to Madison:[188] "The
executive power in our government is not the only, perhaps not even the
principal object of my solicitude. The tyranny of the legislature is
really the danger most to be feared, and will continue to be so for many
years to come. The tyranny of the executive power will come in its turn,
but at a more distant period."

I am glad to cite the opinion of Jefferson upon this subject rather than
that of another, because I consider him to be the most powerful advocate
democracy has ever sent forth.

* * * * *

Notes:

[182] We observed in examining the federal constitution that the efforts
of the legislators of the Union had been diametrically opposed to the
present tendency. The consequence has been that the federal government
is more independent in its sphere than that of the states. But the
federal government scarcely ever interferes in any but external affairs;
and the governments of the states are in reality the authorities which
direct society in America.

[183] The legislative acts promulgated by the state of Massachusetts
alone, from the year 1780 to the present time, already fill three stout
volumes: and it must not be forgotten that the collection to which I
allude was published in 1823, when many old laws which had fallen into
disuse were omitted. The state of Massachusetts, which is not more
populous than a department of France, may be considered as the most
stable, the most consistent, and the most sagacious in its undertakings
of the whole Union.

[184] No one will assert that a people cannot forcibly wrong another
people: but parties may be looked upon as lesser nations within a
greater one, and they are aliens to each other: if therefore it be
admitted that a nation can act tyrannically toward another nation, it
cannot be denied that a party may do the same toward another party.

[185] A striking instance of the excesses which may be occasioned by the
despotism of the majority occurred at Baltimore in the year 1812. At
that time the war was very popular in Baltimore. A journal which had
taken the other side of the question excited the indignation of the
inhabitants by its opposition. The populace assembled, broke the
printing-presses, and attacked the houses of the newspaper editors. The
militia was called out, but no one obeyed the call; and the only means
of saving the poor wretches who were threatened by the phrensy of the
mob, was to throw them into prison as common malefactors. But even this
precaution was ineffectual; the mob collected again during the night;
the magistrates again made a vain attempt to call out the militia; the
prison was forced, one of the newspaper editors was killed upon the
spot, and the others were left for dead: the guilty parties were
acquitted by the jury when they were brought to trial.

I said one day to an inhabitant of Pennsylvania: "Be so good as to
explain to me how it happens, that in a state founded by quakers, and
celebrated for its toleration, freed blacks are not allowed to exercise
civil rights. They pay the taxes: is it not fair that they should have a
vote."

"You insult us," replied my informant, "if you imagine that our
legislators could have committed so gross an act of injustice and
intolerance."

"What, then, the blacks possess the right of voting in this country?"

"Without the smallest doubt."

"How comes it then, that at the polling-booth this morning I did not
perceive a single negro in the whole meeting?"

"This is not the fault of the law; the negroes have the undisputed right
of voting; but they voluntarily abstain from making their appearance."

"A very pretty piece of modesty on their parts," rejoined I.

"Why, the truth is, that they are not disinclined to vote, but they are
afraid of being maltreated; in this country the law is sometimes unable
to maintain its authority without the support of the majority. But in
this case the majority entertains very strong prejudices against the
blacks, and the magistrates are unable to protect them in the exercise
of their legal privileges."

"What, then, the majority claims the right not only of making the laws,
but of breaking the laws it has made?"

[186] This power may be centred in an assembly, in which case it will be
strong without being stable; or it may be centred in an individual, in
which case it will be less strong, but more stable.

[187] I presume that it is scarcely necessary to remind the reader here,
as well as throughout the remainder of this chapter, that I am speaking
not of the federal government, but of the several governments of each
state which the majority controls at its pleasure.

[188] 15th March, 1789.

CHAPTER XVI.

CAUSES WHICH MITIGATE THE TYRANNY OF THE MAJORITY IN THE UNITED STATES.

* * * * *

ABSENCE OF CENTRAL ADMINISTRATION.

The national Majority does not pretend to conduct all Business.--Is
obliged to employ the town and county Magistrates to execute its supreme
Decisions.

I have already pointed out the distinction which is to be made between a
centralized government and a centralized administration. The former
exists in America, but the latter is nearly unknown there. If the
directing power of the American communities had both these instruments
of government at its disposal, and united the habit of executing its own
commands to the right of commanding; if, after having established the
general principles of government, it descended to the details of public
business; and if, having regulated the great interests of the country,
it would penetrate into the privacy of individual interest, freedom
would soon be banished from the New World.

But in the United States the majority, which so frequently displays the
tastes and the propensities of a despot, is still destitute of the more
perfect instruments of tyranny.

In the American republics the activity of the central government has
never as yet been extended beyond a limited number of objects
sufficiently prominent to call forth its attention. The secondary
affairs of society have never been regulated by its authority; and
nothing has hitherto betrayed its desire of interfering in them. The
majority is become more and more absolute, but it has not increased the
prerogatives of the central government; those great prerogatives have
been confined to a certain sphere; and although the despotism of the
majority may be galling upon one point, it cannot be said to extend to
all. However the predominant party of 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 desire 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
intrust the execution of its will to agents, over whom it frequently has
no control, and whom it cannot perpetually direct. The townships,
municipal bodies, and counties, may therefore be looked upon as
concealed breakwaters, which check or part the tide of popular
excitement. If an oppressive law were passed, the liberties of the
people would still be protected by the means by which that law would be
put in execution: the majority cannot descend to the details, and (as I
will venture to style them) the puerilities of administrative tyranny.
Nor does the people entertain that full consciousness of its authority,
which would prompt it to interfere in these matters; it knows the extent
of its natural powers, but it is unacquainted with the increased
resources which the art of government might furnish.

This point deserves attention; for if a democratic republic, similar to
that of the United States, were ever founded in a country where the
power of a single individual had previously subsisted, and the effects
of a centralized administration had sunk deep into the habits and the
laws of the people, I do not hesitate to assert, that in that country a
more insufferable despotism would prevail than any which now exists in
the absolute monarchies of Europe; or indeed than any which could be
found on this side the confines of Asia.

* * * * *

THE PROFESSION OF THE LAW IN THE UNITED STATES SERVES TO COUNTERPOISE
THE DEMOCRACY.

Utility of discriminating the natural Propensities of the Members of the
legal Profession.--These Men called upon to act a prominent Part in
future Society.--In what Manner the peculiar Pursuits of Lawyers give an
aristocratic turn to their Ideas.--Accidental Causes which may check
this Tendency.--Ease with which the Aristocracy coalesces with legal
Men.--Use of Lawyers to a Despot.--The Profession of the Law constitutes
the only aristocratic Element with which the natural Elements of
Democracy will combine.--Peculiar Causes which tend to give an
aristocratic turn of Mind to the English and American Lawyer.--The
Aristocracy of America is on the Bench and at the Bar.--Influence of
Lawyers upon American Society.--Their peculiar magisterial Habits affect
the Legislature, the Administration, and even the People.

In visiting the Americans and in studying their laws, we perceive that
the authority they have intrusted to members of the legal profession,
and the influence which these individuals exercise in the government, is
the most powerful existing security against the excesses of democracy.

This effect seems to me to result from a general cause which it is
useful to investigate, since it may produce analogous consequences
elsewhere.

The members of the legal profession have taken an important part in all
the vicissitudes of political society in Europe during the last five
hundred years. At one time they have been the instruments of those who
are invested with political authority, and at another they have
succeeded in converting political authorities into their instrument. In
the middle ages they afforded a powerful support to the crown; and since
that period they have exerted themselves to the utmost to limit the
royal prerogative. In England they have contracted a close alliance with
the aristocracy; in France they have proved to be the most dangerous
enemies of that class. It is my object to inquire whether, under all
these circumstances, the members of the legal profession have been
swayed by sudden and momentary impulses; or whether they have been
impelled by principles which are inherent in their pursuits, and which
will always recur in history. I am incited to this investigation by
reflecting that this particular class of men will most likely play a
prominent part in that order of things to which the events of our time
are giving birth.

Men who have more especially devoted themselves to legal pursuits,
derive from those occupations certain habits of order, a taste for
formalities, and a kind of instinctive regard for the regular connexion
of ideas, which naturally render them very hostile to the revolutionary
spirit and the unreflecting passions of the multitude.

The special information which lawyers derive from their studies, ensures
them a separate station in society: and they constitute a sort of
privileged body in the scale of intelligence. This notion of their
superiority perpetually recurs to them in the practice of their
profession: they are the masters of a science which is necessary, but
which is not very generally known: they serve as arbiters between the
citizens; and the habit of directing the blind passions of parties in
litigation to their purpose, inspires them with a certain contempt for
the judgment of the multitude. To this it may be added, that they
naturally constitute _a body_; not by any previous understanding, or by
any agreement which directs them to a common end; but the analogy of
their studies and the uniformity of their proceedings connect their
minds together, as much as a common interest would combine their
endeavors.

A portion of the tastes and of the habits of the aristocracy may
consequently be discovered in the characters of men in the profession of
the law. They participate in the same instinctive love of order and of
formalities; and they entertain the same repugnance to the actions of
the multitude, and the same secret contempt of the government of the
people. I do not mean to say that the natural propensities of lawyers
are sufficiently strong to sway them irresistibly; for they, like most
other men, are governed by their private interests and the advantages of
the moment.

In a state of society in which the members of the legal profession are
prevented from holding that rank in the political world which they enjoy
in private life, we may rest assured that they will be the foremost
agents of revolution. But it must then be inquired whether the cause
which induces them to innovate and to destroy is accidental, or whether
it belongs to some lasting purpose which they entertain. It is true that
lawyers mainly contributed to the overthrow of the French monarchy in
1789; but it remains to be seen whether they acted thus because they had
studied the laws, or because they were prohibited from co-operating in
the work of legislation.

Five hundred years ago the English nobles headed the people, and spoke
in its name; at the present time, the aristocracy supports the throne,
and defends the royal prerogative. But aristocracy has, notwithstanding
this, its peculiar instincts and propensities. We must be careful not to
confound isolated members of a body with the body itself. In all free
governments, of whatsoever form they may be, members of the legal
profession may be found at the head of all parties. The same remark is
also applicable to the aristocracy; for almost all the democratic
convulsions which have agitated the world have been directed by nobles.

A privileged body can never satisfy the ambition of all its members; it
has always more talents and more passions than it can find places to
content and 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 find it impossible to turn to their own account.

I do not, then, assert that _all_ the members of the legal profession
are at _all_ times the friends of order and the opponents of innovation,
but merely that most of them usually are so. In a community in which
lawyers are allowed to occupy, without opposition, that high station
which naturally belongs to them, their general spirit will be eminently
conservative and anti-democratic. When an aristocracy excludes the
leaders of that profession from its ranks, it excites enemies which are
the more formidable to its security as they are independent of the
nobility by their industrious pursuits; and they feel themselves to be
its equal in point of intelligence, although they enjoy less opulence
and less power. But whenever an aristocracy consents to impart some of
its privileges to these same individuals, the two classes coalesce very
readily, and assume, as it were, the consistency of a single order of
family interests.

I am, in like manner, inclined to believe that a monarch will always be
able to convert legal practitioners into the most serviceable
instruments of his authority. There is a far greater affinity between
this class of individuals and the executive power, than there is between
them and the people; just as there is a greater natural affinity between
the nobles and monarch, than between the nobles and the people, although
the higher orders of society have occasionally resisted the prerogative
of the crown in concert with the lower classes.

Lawyers are attached to public order beyond every other consideration,
and the best security of public order is authority. It must not be
forgotten, that if they prize the free institutions of their country
much, they nevertheless value the legality of those institutions far
more; they are less afraid of tyranny than of arbitrary power: and
provided that the legislature takes upon itself to deprive men of their
independence, they are not dissatisfied.[189]

I am therefore convinced that the prince who, in presence of an
encroaching democracy, should endeavor to impair the judicial authority
in his dominions, and to diminish the political influence of lawyers,
would commit a great mistake. He would let slip the substance of
authority to grasp at the shadow. He would act more wisely in
introducing men connected with the law into the government; and if he
intrusted them with the conduct of a despotic power, bearing some marks
of violence, that power would most likely assume the external features
of justice and of legality in their hands.