American Institutions and Their Influence Part 28

The very essence of democratic government consists in the absolute sovereignty of the majority: for there is nothing in democratic states which is capable of resisting it. Most of the American const.i.tutions have sought to increase this natural strength of the majority by artificial means.[182]

The legislature is, of all political inst.i.tutions, the one which is most easily swayed by the wishes of the majority. The Americans determined that the members of the legislature should be elected by the people immediately, and for a very brief term, in order to subject them not only to the general convictions, but even to the daily pa.s.sions of their const.i.tuents. The members of both houses are taken from the same cla.s.s in society, and are nominated in the same manner; so that the modifications of the legislative bodies are almost as rapid and quite as irresistible as those of a single a.s.sembly. It is to a legislature thus const.i.tuted, that almost all the authority of the government has been intrusted.

But while the law increased the strength of those authorities which of themselves were strong, it enfeebled more and more those which were naturally weak. It deprived the representatives of the executive of all stability and independence; and by subjecting them completely to the caprices of the legislature, it robbed them completely of the slender influence which the nature of a democratic government might have allowed them to retain. In several states the judicial power was also submitted to the elective discretion of the majority; and in all of them its existence was made to depend on the pleasure of the legislative authority, since the representatives were empowered annually to regulate the stipend of the judges.

Custom, however, has done even more than law. A proceeding which will in the end set all the guarantees of representative government at naught, is becoming more and more general in the United States: it frequently happens that the electors, who choose a delegate, point out a certain line of conduct to him, and impose upon him a certain number of positive obligations which he is pledged to fulfil. With the exception of the tumult, this comes to the same thing as if the majority of the populace held its deliberations in the market-place.

Several other circ.u.mstances concur in rendering the power of the majority in America, not only preponderant, but irresistible. The moral authority of the majority is partly based upon the notion, that there is more intelligence and more wisdom in a great number of men collected together than in a single individual, and that the quant.i.ty of legislators is more important than their quality. The theory of equality is in fact applied to the intellect of man; and human pride is thus a.s.sailed in its last retreat, by a doctrine which the minority hesitate to admit, and in which they very slowly concur. Like all other powers, and perhaps more than all other powers, the authority of the many requires the sanction of time; at first it enforces obedience by constraint; but its laws are not respected until they have long been maintained.

The right of governing society, which the majority supposes itself to derive from its superior intelligence, was introduced into the United States by the first settlers; and this idea, which would be sufficient of itself to create a free nation, has now been amalgamated with the manners of the people, and the minor incidents of social intercourse.

The French, under the old monarchy, held it for a maxim (which is still a fundamental principle of the English const.i.tution), that the king could do no wrong; and if he did wrong, the blame was imputed to his advisers. This notion was highly favorable to habits of obedience; and it enabled the subject to complain of the law, without ceasing to love and honor the lawgiver. The Americans entertain the same opinion with respect to the majority.

The moral power of the majority is founded upon yet another principle, which is, that the interests of the many are to be preferred to those of the few. It will readily be perceived that the respect here professed for the rights of the majority must naturally increase or diminish according to the state of parties. When a nation is divided into several irreconcilable factions, the privilege of the majority is often overlooked, because it is intolerable to comply with its demands.

If there existed in America a cla.s.s of citizens whom the legislating majority sought to deprive of exclusive privileges, which they had possessed for ages, and to bring down from an elevated station to the level of the ranks of the mult.i.tude, it is probable that the minority would be less ready to comply with its laws. But as the United States were colonized by men holding an equal rank among themselves, there is as yet no natural or permanent source of dissension between the interests of its different inhabitants.

There are certain communities in which the persons who const.i.tute the minority can never hope to draw over the majority to their side, because they must then give up the very point which is at issue between them.

Thus, an aristocracy can never become a majority 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 to turn those rights to their own advantage at some future time. The majority therefore in that country exercises a prodigious actual authority, and a moral influence which is scarcely less preponderant; no obstacles exist which can impede, or so much as r.e.t.a.r.d its progress, or which can induce it to heed the complaints of those whom it crushes upon its path. This state of things is fatal in itself and dangerous for the future.

HOW THE UNLIMITED POWER OF THE MAJORITY INCREASES, IN AMERICA, THE INSTABILITY OF LEGISLATION AND THE ADMINISTRATION INHERENT IN DEMOCRACY.

The Americans increase the mutability of the Laws which is inherent in Democracy by changing the Legislature every Year, and by vesting it with unbounded Authority.--The same Effect is produced upon the Administration.--In America social Melioration is conducted more energetically, but less perseveringly than in Europe.

I have already spoken of the natural defects of democratic inst.i.tutions, and they all of them increase in the exact ratio of the power of the majority. To begin with the most evident of them all; the mutability of the laws is an evil inherent in democratic government, because it is natural to democracies to raise men to power in very rapid succession.

But this evil is more or less sensible in proportion to the authority and the means of action which the legislature possesses.

In America the authority exercised by the legislative bodies is supreme; nothing prevents them from accomplis.h.i.+ng their wishes with celerity, and with irresistible power, while they are supplied by new representatives every year. That is to say, the circ.u.mstances which contribute most powerfully to democratic instability, and which admit of the free application of caprice to every object in the state, are here in full operation. In conformity with this principle, America is, at the present day, the country in the world where laws last the shortest time. Almost all the American const.i.tutions have been amended within the course of thirty years: there is, therefore, not a single American state which has not modified the principles of its legislation in that lapse of time.

As for the laws themselves, a single glance upon the archives of the different states of the Union suffices to convince one, that in America the activity of the legislator never slackens. Not that the American democracy is naturally less stable than any other, but that it is allowed to follow its capricious propensities in the formation of the laws.[183]

The omnipotence of the majority and the rapid as well as absolute manner in which its decisions are executed in the United States, have not only the effect of rendering the law unstable, but they exercise the same influence upon the execution of the law and the conduct of the public administration. As the majority is the only power which it is important to court, all its projects are taken up with the greatest ardor; but no sooner is its attention distracted, than all this ardor ceases; while in the free states of Europe, the administration is at once independent and secure, so that the projects of the legislature are put into execution, although its immediate attention may be directed to other objects.

In America certain meliorations are undertaken with much more zeal and activity than elsewhere; in Europe the same ends are promoted by much less social effort, more continuously applied.

Some years ago several pious individuals undertook to meliorate the condition of the prisons. The public was excited by the statements which they put forward, and the regeneration of criminals became a very popular undertaking. New prisons were built; and, for the first time, the idea of reforming as well as of punis.h.i.+ng the delinquent, formed a part of prison discipline. But this happy alteration, in which the public had taken so hearty an interest, and which the exertions of the citizens had irresistibly accelerated, could not be completed in a moment. While the new penitentiaries were being erected (and it was the pleasure of the majority they should be terminated with all possible celerity), the old prisons existed, which still contained a great number of offenders. These jails became more unwholesome and more corrupt in proportion as the new establishments were beautified and improved, forming a contrast which may readily be understood. The majority was so eagerly employed in founding the new prisons, that those which already existed were forgotten; and as the general attention was diverted to a novel object, the care which had hitherto been bestowed upon the others ceased. The salutary regulations of discipline were first relaxed, and afterward broken; so that in the immediate neighborhood of a prison which bore witness to the mild and enlightened spirit of our time, dungeons might be met with, which reminded the visitor of the barbarity of the middle ages.

TYRANNY OF THE MAJORITY.

How the Principle of the Sovereignty of the People is to be understood.--Impossibility of conceiving a mixed Government.--The sovereign Power must centre somewhere.--Precautions to be taken to control its Action.--These Precautions have not been taken in the United States.--Consequences.

I hold it to be an impious and an execrable maxim that, politically speaking, a people has a right to do whatsoever it pleases; and yet I have a.s.serted that all authority originates in the will of the majority.

Am I, then, in contradiction with myself?

A general law--which bears the name of justice--has been made and sanctioned, not only by a majority of this or that people, but by a majority of mankind. The rights of every people are consequently confined within the limits of what is just. A nation may be considered in the light of a jury which is empowered to represent society at large, and to apply the great and general law of justice. Ought such a jury, which represents society, to have more power than the society in which the laws it applies originate?

When I refuse to obey an unjust law, I do not contest the right which the majority has of commanding, but I simply appeal from the sovereignty of the people to the sovereignty of mankind. It has been a.s.serted that a people can never entirely outstep the boundaries of justice and of reason in those affairs which are more peculiarly its own; and that consequently full power may fearlessly be given to the majority by which it is represented. But this language is that of a slave.

A majority taken collectively may be regarded as a being whose opinions, and most frequently whose interests, are opposed to those of another being, which is styled a minority. If it be admitted that a man, possessing absolute power, may misuse that power by wronging his adversaries, why should a majority not be liable to the same reproach?

Men are not apt to change their characters by agglomeration; nor does their patience in the presence of obstacles increase with the consciousness of their strength.[184] And for these reasons I can never willingly invest any number of my fellow-creatures with that unlimited authority which I should refuse to any one of them.

I do not think it is possible to combine several principles in the same government, so as at the same time to maintain freedom, and really to oppose them to one another. The form of government which is usually termed _mixed_ has always appeared to me to be a mere chimera.

Accurately speaking, there is no such thing as a mixed government (with the meaning usually given to that word), because in all communities some one principle of action may be discovered, which preponderates over the others. England in the last century, which has been more especially cited as an example of this form of government, was in point of fact an essentially aristocratic state, although it comprised very powerful elements of democracy: for the laws and customs of the country were such, that the aristocracy could not but preponderate in the end, and subject the direction of public affairs to its own will. The error arose from too much attention being paid to the actual struggle which was going on between the n.o.bles and the people, without considering the probable issue of the contest, which was in reality the important point.

When a community really has a mixed government, that is to say, when it is equally divided between two adverse principles, it must either pa.s.s through a revolution, or fall into complete dissolution.

I am therefore of opinion that some one social power must always be made to predominate over the others; but I think that liberty is endangered when this power is checked by no obstacles which may r.e.t.a.r.d its course, and force it to moderate its own vehemence.

Unlimited power is in itself a bad and dangerous thing; human beings are not competent to exercise it with discretion; and G.o.d alone can be omnipotent, because his wisdom and his justice are always equal to his power. But no power upon earth is so worthy of honor for itself, or of reverential obedience to the rights which it represents, that I would consent to admit its uncontrolled and all-predominate authority. When I see that the right and the means of absolute command are conferred on a people or upon a king, upon an aristocracy or a democracy, a monarchy or a republic, I recognize the germ of tyranny, and I journey onward to a land of more hopeful inst.i.tutions.

In my opinion the main evil of the present democratic inst.i.tutions of the United States does not arise, as is often a.s.serted in Europe, from their weakness, but from their overpowering strength; and I am not so much alarmed at the excessive liberty which reigns in that country, as at the very inadequate securities which exist against tyranny.

When an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion const.i.tutes the majority; if to the legislature, it represents the majority, and implicitly obeys its instructions: if to the executive power, it is appointed by the majority and is a pa.s.sive tool in its hands; the public troops consist of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the evil of which you complain may be, you must submit to it as well as you can.[185]

If, on the other hand, a legislative power could be so const.i.tuted as to represent the majority without necessarily being the slave of its pa.s.sions; an executive, so as to retain a certain degree of uncontrolled authority; and a judiciary, so as to remain independent of the two other powers; a government would be formed which would still be democratic, without incurring any risk of tyrannical abuse.

I do not say that tyrannical abuses frequently occur in America at the present day; but I maintain that no sure barrier is established against them, and that the causes which mitigate the government are to be found in the circ.u.mstances and the manners of the country more than its laws.

EFFECTS OF THE UNLIMITED POWER OF THE MAJORITY UPON THE ARBITRARY AUTHORITY OF THE AMERICAN PUBLIC OFFICERS.

Liberty left by the American Laws to public Officers within a certain Sphere.--Their Power.

A distinction must be drawn between tyranny and arbitrary power.

Tyranny may be exercised by means of the law, and in that case it is not arbitrary; arbitrary power may be exercised for the good of the community at large, in which case it is not tyrannical. Tyranny usually employs arbitrary means, but, if necessary, it can rule without them.

In the United States the unbounded power of the majority, which is favorable to the legal despotism of the legislature, is likewise favorable to the arbitrary authority of the magistrates. The majority has an entire control over the law when it is made and when it is executed; and as it possesses an equal authority over those who are in power, and the community at large, it considers public officers as its pa.s.sive agents, and readily confides the task of serving its designs to their vigilance. The details of their office and the privileges which they are to enjoy are rarely defined beforehand; but the majority treats them as a master does his servants, when they are always at work in his sight, and he has the power of directing or reprimanding them at every instant.

In general the American functionaries are far more independent than the French civil officers, within the sphere which is prescribed to them.

Sometimes, even, they are allowed by the popular authority to exceed those bounds; and as they are protected by the opinion, and backed by the cooperation of the majority, they venture upon such manifestations of their power as astonish a European. By this means habits are formed in the heart of a free country which may some day prove fatal to its liberties.

POWER EXERCISED BY THE MAJORITY IN AMERICA UPON OPINION.

In America, when the Majority has once irrevocably decided a Question, all Discussion ceases.--Reason of this.--Moral Power exercised by the Majority upon Opinion.--Democratic Republics have deprived Despotism of its physical Instruments.--Their Despotism sways the Minds of Men.

It is in the examination of the display of public opinion in the United States, that we clearly perceive how far the power of the majority surpa.s.ses all the powers with which we are acquainted in Europe.

Intellectual principles exercise an influence which is so invisible and often so inappreciable, that they baffle the toils of oppression. At the present time the most absolute monarchs in Europe are unable to prevent certain notions, which are opposed to their authority, from circulating in secret throughout their dominions, and even in their courts. Such is not the case in America; so long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably p.r.o.nounced, a submissive silence is observed; and the friends, as well as the opponents of the measure, unite in a.s.senting to its propriety.

The reason of this is perfectly clear: no monarch is so absolute as to combine all the powers of society in his own hands, and to conquer all opposition, with the energy of a majority, which is invested with the right of making and of executing the laws.

The authority of a king is purely physical, and it controls the actions of the subject without subduing his private will; but the majority possesses a power which is physical and moral at the same time; it acts upon the will as well as upon the actions of men, and it represses not only all contest, but all controversy.

I know no country in which there is so little true independence of mind and freedom of discussion as in America. In any const.i.tutional state in Europe every sort of religious and political theory may be advocated and propagated abroad; for there is no country in Europe so subdued by any single authority, as not to contain citizens who are ready to protect the man who raises his voice in the cause of truth, from the consequences of his hardihood. If he is unfortunate enough to live under an absolute government, the people is upon his side; if he inhabits a free country, he may find a shelter behind the authority of the throne, if he require one. The aristocratic part of society supports him in some countries, and the democracy in others. But in a nation where democratic inst.i.tutions exist, organized like those of the United States, there is but one sole authority, one single element of strength and success, with nothing beyond it.