American Institutions and Their Influence - Alexis de Tocqueville (i am reading a book .TXT) 📗

man who bears them.

I am inclined to believe that the influence which costumes really exercise, in an age like that in which we live, has been a good deal exaggerated. I never perceived that a public officer in America was the less respected while he was in the discharge of his duties because his own merit was set off by no adventitious signs. On the other hand, it is very doubtful whether a peculiar dress contributes to the respect which public characters ought to have for their own position, at least when they are not otherwise inclined to respect it. When a magistrate (and in France such instances are not rare), indulges his trivial wit at the expense of a prisoner, or derides a predicament in which a culprit is placed, it would be well to deprive him of his robes of office, to see whether he would recall some portion of the natural dignity of mankind when he is reduced to the apparel of a private citizen.

A democracy may, however, allow a certain show of magisterial pomp, and clothe its officers in silks and gold, without seriously compromising its principles. Privileges of this kind are transitory; they belong to the place, and are distinct from the individual: but if public officers are not uniformly remunerated by the state, the public charges must be intrusted to men of opulence and independence, who constitute the basis of an aristocracy; and if the people still retains its right of election, that election can only be made from a certain class of citizens.

When a democratic republic renders offices which had formerly been remunerated, gratuitous, it may safely be believed that that state is advancing to monarchical institutions; and when a monarchy begins to remunerate such officers as had hitherto been unpaid, it is a sure sign that it is approaching toward a despotic or a republican form of government. The substitution of paid for unpaid functionaries is of itself, in my opinion, sufficient to constitute a serious revolution.

I look upon the entire absence of gratuitous functionaries in America as one of the most prominent signs of the absolute dominion which democracy exercises in that country. All public services, of whatsoever nature they may be, are paid; so that every one has not merely a right, but also the means of performing them. Although, in democratic states, all the citizens are qualified to occupy stations in the government, all are not tempted to try for them. The number and the capacities of the candidates are more apt to restrict the choice of electors than the conditions of the candidateship.

In nations in which the principle of election extends to every place in the state, no political career can, properly speaking, be said to exist. Men are promoted as if by chance to the rank which they enjoy, and they are by no means sure of retaining it.

The consequence is that in tranquil times public functions offer but few lures to ambition. In the United States the persons who engage in the perplexities of political life are individuals of very moderate pretensions The pursuit of wealth generally diverts men of great talents and of great passions from the pursuit of power; and it very frequently happens that a man does not undertake to direct the fortune of the state until he has discovered his incompetence to conduct his own affairs. The vast number of very ordinary men who occupy public stations is quite as attributable to these causes as to the bad choice of the democracy. In the United States, I am not sure that the people would return the men of superior abilities who might solicit its support, but it is certain that men of this description do not come forward.

* * * * * ARBITRARY POWER OF MAGISTRATES

[Footnote:

I here use the word magistrates in the widest sense in which it can be taken; I apply it to all the officers to whom the execution of the laws is intrusted.

]

UNDER THE RULE OF AMERICAN DEMOCRACY.

For what Reason the arbitrary Power of Magistrates is greater in absolute Monarchies and in democratic Republics that it is in limited Monarchies.—Arbitrary Power of the Magistrates in New England.

In two different kinds of government the magistrates exercise a considerable degree of arbitrary power; namely, under the absolute government of a single individual, and under that of a democracy.

This identical result proceeds from causes which are nearly analogous.

In despotic states the fortune of no citizen is secure; and public officers are not more safe than private individuals. The sovereign, who has under his control the lives, the property, and sometimes the honor of the men whom he employs, does not scruple to allow them a great latitude of action, because he is convinced that they will not use it to his prejudice. In despotic states the sovereign is so attached to the exercise of his power, that he dislikes the constraint even of his own regulations; and he is well pleased that his agents should follow a somewhat fortuitous line of conduct, provided he be certain that their actions will never counteract his desires.

In democracies, as the majority has every year the right of depriving the officers whom it has appointed of their power, it has no reason to fear abuse of their authority. As the people is always able to signify its wishes to those who conduct the government, it prefers leaving them to make their own exertions, to prescribing an invariable rule of conduct which would at once fetter their activity and the popular authority.

It may even be observed, on attentive consideration, that under the rule of a democracy the arbitrary power of the magistrate must be still greater than in despotic states. In the latter, the sovereign has the power of punishing all the faults with which he becomes acquainted, but it would be vain for him to hope to become acquainted with all those which are committed. In the former the sovereign power is not only supreme, but it is universally present. The American functionaries are, in point of fact, much more independent in the sphere of action which the law traces out for them, than any public officer in Europe. Very frequently the object which they are to accomplish is simply pointed out to them, and the choice of the means is left to their own discretion.

In New England, for instance, the selectmen of each township are bound to draw up the list of persons who are to serve on the jury; the only rule which is laid down to guide them in their choice is that they are to select citizens possessing the elective franchise and enjoying a fair reputation.[Footnote: See the act 27th February, 1813. General Collection of the Laws of Massachusetts, vol. ii., p. 331. It should be added that the Jurors are afterward drawn from these lists by lot.

] In France the lives and liberties of the subjects would be thought to be in danger, if a public officer of any kind was intrusted with so formidable a right. In New England, the same magistrates are empowered to post the names of habitual drunkards in public houses, and to prohibit the inhabitants of a town from supplying them with liquor.[Footnote:

See the act of 28th February, 1787. General Collection of the Laws of Massachusetts, vol. i., p. 302.

] A censorial power of this excessive kind would be revolting to the population of the most absolute monarchies; here, however, it is submitted to without difficulty.

Nowhere has so much been left by the law to the arbitrary determination of the magistrates as in democratic republics, because this arbitrary power is unattended by any alarming consequences. It may even be asserted that the freedom of the magistrate increases as the elective franchise is extended, and as the duration of the time of office is shortened. Hence arises the great difficulty which attends the conversion of a democratic republic into a monarchy. The magistrate ceases to be elective, but he retains the rights and the habits of an elected officer, which lead directly to despotism.

It is only in limited monarchies that the law which prescribes the sphere in which public officers are to act, superintends all their measures. The cause of this may be easily detected. In limited monarchies the power is divided between the king and the people, both of whom are interested in the stability of the magistrate. The king does not venture to place the public officers under the control of the people, lest they should be tempted to betray his interests; on the other hand, the people fears lest the magistrates should serve to oppress the liberties of the country, if they were entirely dependent upon the crown: they cannot therefore be said to depend on either the one or the other. The same cause which induces the king and the people to render public officers independent, suggests the necessity of such securities as may prevent their independence from encroaching upon the authority of the former and the liberties of the latter. They consequently agree as to the necessity of restricting the functionary to a line of conduct laid down beforehand, and they are interested in confining him by certain regulations which he cannot evade.

[The observations respecting the arbitrary powers of magistrates are practically among the most erroneous in the work. The author seems to have confounded the idea of magistrates being independent with their being arbitrary. Yet he had just before spoken of their dependance on popular election as a reason why there was no apprehension of the abuse of their authority.

The independence, then, to which he alludes must be an immunity from responsibility to any other department. But it is a fundamental principle of our system, that all officers are liable to criminal prosecution “whenever they act partially or oppressively from a malicious or corrupt motive.” See 15

Wendell’s Reports, 278. That our magistrates are independent when they do not act partially or oppressively is very true, and, it is to be hoped, is equally true in every form of government.

There would seem, therefore, not to be such a degree of independence as necessarily to produce arbitrariness. The author supposes that magistrates are more arbitrary in a despotism and in a democracy than in a limited monarchy. And yet, the limits of independence and of responsibility existing in the United States are borrowed from and identical with those established in England—the most prominent instance of a limited monarchy. See the authorities referred to in the case in Wendell’s Reports, before quoted. Discretion in the execution of various ministerial duties, and in the awarding of punishment by judicial officers, is indispensable in every system of government, from the utter impossibility of “laying down beforehand a line of conduct” (as the author expresses it) in such cases. The very instances of discretionary power to which he refers, and which he considers arbitrary, exist in England. There, the persons from whom juries are to be formed for the trial of causes, civil and criminal, are selected by the sheriffs, who are appointed by the crown—a power, certainly more liable to abuse in their hands, than in those of selectmen or other town-officers, chosen annually by the people. The other power referred to, that of posting the names of habitual drunkards, and forbidding their being supplied with liquor, is but a reiteration of the principles contained in the English