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

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.[Footnote: This translation does not accurately convey the meaning of M. de Tocqueville’s expression. He says: “Ils craignent moins la tyrannie que l’arbitraire, et pourvu que le l�gislateur se charge lui-m�me d’enlever aux hommes leur ind�pendance, ils sont � peu pr�s content.”

The more correct rendering would be: ‘They fear tyranny less than arbitrary sway, and provided it is the legislator himself who undertakes to deprive men of their independence, they are almost content.’—_Reviser_.

]

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.

The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince, are excluded from the government, they are sure to occupy the highest stations in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes to combine with the aristocracy, and to support the crown, they are naturally brought into contact with the people by their interests. They like the government of democracy, without participating in its propensities, and without imitating its weaknesses; whence they derive a twofold authority from it and over it. The people in democratic states does not mistrust the members of the legal profession, because it is well known that they are interested in serving the popular cause; and it listens to them without irritation, because it does not attribute to them any sinister designs. The object of lawyers is not, indeed, to overthrow the institutions of democracy, but they constantly endeavor to give it an impulse which diverts it from its real tendency, by means which are foreign to its nature.

Lawyers belong to the people by birth and interest, to the aristocracy by habit and by taste, and they may be looked upon as the natural bond and connecting link of the two great classes of society.

The profession of the law is the only aristocratic element which can be amalgamated without violence with the natural elements of democracy, and which can be advantageously and permanently combined with them. I am not unacquainted with the defects which are inherent in the character of that body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could subsist at the present time, if the influence of lawyers in public business did not increase in proportion to the power of the people.

This aristocratic character, which I hold to be common to the legal profession, is much more distinctly marked in the United States and in England than in any other country. This proceeds not only from the legal studies of the English and American lawyers, but from the nature of the legislation, and the position which those persons occupy, in the two countries. The English and the Americans have retained the law of precedents; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their forefathers. In the mind of an English or an American lawyer, a taste and a reverence for what is old are almost always united to a love of regular and lawful proceedings.

This predisposition has another effect upon the character of the legal profession and upon the general course of society. The English and American lawyers investigate what has been done; the French advocate inquires what should have been done: the former produces precedents; the latter reasons. A French observer is surprised to hear how often an English or 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 perch of land by the decision of the court. This abnegation of his own opinion, and this implicit deference to the opinion of his forefathers, which are common to the English and American lawyer, this subjection of thought which he is obliged to profess, necessarily give him more timid habits and more sluggish inclinations in England and America than in France.

The French codes are often difficult of comprehension, but they can be read by every one; nothing, on the other hand, can be more impenetrable to the uninitiated than a legislation founded upon precedents. The indispensable want of legal assistance which is felt in England and in the United States, and the high opinion which is generally entertained of the ability of the legal profession, tend to separate it more and more from the people, and to place it in a distinct class. The French lawyer is simply a man extensively acquainted with the statutes of his country; but the English or American lawyer resembles the hierophants of Egypt, for, like them, he is the sole interpreter of an occult science.

[The remark that English and American lawyers found their opinions and their decisions upon those of their forefathers, is calculated to excite surprise in an American reader, who supposes that law, as a prescribed rule of action, can only be ascertained in cases where the statutes are silent, by reference to the decisions of courts. On the continent, and particularly in France, as the writer of this note learned from the conversation of M. de Tocqueville, the judicial tribunals do not deem