User:VargasMilan/Mob rule in democracy/modern world
- 1 Eleven modern authors with short excerpts (and one long excerpt) on democracy and mob rule
- 2 Three short excerpts from William Shakespeare
- 3 Two short excerpts from Thomas Hobbes' Leviathan
- 4 Blaise Pascal, Pensées, No. 878
- 5 Three short excerpts from Montesquieu, The Spirit of Laws
- 5.1 Book III. Of the principles of the three kinds of government, ch. 3, Of the principle of democracy
- 5.2 Book VI. Consequences of the principles of different governments with respect to the simplicity of civil and criminal laws, the form of judgments, and the inflicting of punishments, ch. 5, In what governments the sovereign may be judge
- 5.3 Book VIII: Of the corruption of the principles of the three governments, ch. 1-4
- 6 Three short excerpts from Edward Gibbon's Decline and Fall of the Roman Empire
- 7 Two short excerpts from James Boswell's Life of Samuel Johnson
- 8 Six short excerpts from Alexander Hamilton's and James Madison's Federalist Papers
- 8.1 No. 9 (Hamilton) The union as a safeguard against domestic faction and insurrection
- 8.2 No. 10 (Madison) The union as a safeguard, Continued
- 8.3 No. 22 (Hamilton) Other defects of the present confederation, Continued
- 8.4 No. 51 (Madison) The structure of the government must furnish the proper checks and balances between the different departments
- 8.5 No. 58 (Madison) Objection that the number of members will be augmented as the progress of population demands considered
- 8.6 No. 63 (Madison) The Senate, Continued
- 9 Five short excerpts from Georg Wilhelm Friedrich Hegel's Philosophy of Right and Philosophy of History
- 9.1 Philosophy of Right
- 9.2 Philosophy of History
- 9.2.1 Intro
- 9.2.2 Part III: The Roman world: Distinction between the Roman, Persian and Greek Principle, section 2: Rome from the Second Punic War to the Emperors
- 9.2.3 Part IV: The German world: The principle of spiritual freedom, section 3: The modern time
- 10 Three short and one long excerpt (with section breaks) from Alexis De Tocqueville, Democracy in America trans. by Henry Reeve, 19th century
- 10.1 Volume One
- 10.1.1 Chapter 12: Political associations in the United States [excerpt]
- 10.1.2 Chapter 15: Unlimited power of majority, and its consequences—Part II [whole semi-chapter]
- 10.1.2.1 Effects of the unlimited power of the majority upon the arbitrary authority of the American public officers
- 10.1.2.2 Power exercised by the majority in America upon opinion
- 10.1.2.3 Effects of the tyranny of the majority upon the national character of the Americans
- 10.1.2.4 The greatest dangers of the American republics proceed from the unlimited power of the majority
- 10.1.3 Chapter 16: Causes mitigating tyranny in the United States [entire chapter]—Part I
- 10.1.4 Chapter 16: Causes mitigating tyranny in the United States [entire chapter]—Part II
- 10.2 Volume Two
- 10.1 Volume One
- 11 Five short excerpts from John Stuart Mill's On Liberty and Representative Government
- 11.1 On Liberty (1859)
- 11.2 Representative Government (1861)
William Shakespeare, 1564-1616, playwright, poet
Thomas Hobbes, 1588-1679, philosopher
Blaise Pascal, 1623-1662, mathematician, physicist, theologian
Montesquieu, 1689-1755, literary artist, civic philosopher
Edward Gibbon, 1737-1794, historian
James Boswell, 1740-1795, biographer, diarist
James Madison, 1751-1836, civic philosopher, American revolutionist and high officeholder
Alexander Hamilton, 1755 or 1757-1804, civic philosopher, American revolutionist and high officeholder
Georg Wilhelm Friedrich Hegel, 1770-1831, philosopher
Alexis De Tocqueville, 1805-1859, civic philosopher, French diplomat, historian
John Stuart Mill, 1806-1873, philosopher, economist, high British officeholder
(Sometimes the writers say "the mob" takes the form of a majority.)
Three short excerpts from William Shakespeare
Shakespeare, William (1591-1616). The Plays and Sonnets of Sir William Shakespeare, edited by William George Clarke and William Aldis Wright (London and Cambridge: Macmillan, 1864).
2nd Henry VI, Act. 4, SCENE VI-VIII.
SCENE VI. London. Cannon Street.
[Enter JACK CADE and the rest, and strikes his staff on London-stone.]
CADE. Now is Mortimer lord of this city. And here, sitting upon
London-stone, I charge and command that, of the city's cost, the
conduit run nothing but claret wine this first year of our reign.
And now henceforward it shall be treason for any that calls me
other than Lord Mortimer.
[Enter a Soldier, running.]
SOLDIER. Jack Cade! Jack Cade!
CADE. Knock him down there.
[They kill him.]
SMITH. If this fellow be wise, he'll never call ye Jack
Cade more; I think he hath a very fair warning.
DICK. My lord, there's an army gathered together in Smithfield.
CADE. Come then, let's go fight with them. But first, go and set
London bridge on fire; and, if you can, burn down the Tower too.
Come, let's away. [Exeunt.]
SCENE VII. London. Smithfield.
[Alarums. MATTHEW GOFFE is slain, and all the rest. Then enter JACK CADE, with his company.]
CADE. So, sirs.—Now go some and pull down the Savoy; others
to the inns of court; down with them all.
DICK. I have a suit unto your lordship.
CADE. Be it a lordship, thou shalt have it for that word.
DICK. Only that the laws of England may come out of
HOLLAND. [Aside.] Mass, 't will be sore law, then; for he
was thrust in the mouth with a spear, and 't is not whole yet.
SMITH. [Aside.] Nay, John, it will be stinking law, for his
breath stinks with eating toasted cheese.
CADE. I have thought upon it, it shall be so. Away, burn
all the records of the realm. My mouth shall be the parliament
HOLLAND. [Aside.] Then we are like to have biting statutes,
unless his teeth be pulled out.
CADE. And henceforward all things shall be in common.
[Enter a Messenger.]
MESSENGER. My lord, a prize, a prize! here's the Lord
Say, which sold the towns in France; he that made us pay
one and twenty fifteens, and one shilling to the pound, the
[Enter GEORGE BEVIS, with the LORD SAY.]
CADE. Well, he shall be beheaded for it ten times.
—Ah, thou say,
thou serge, nay, thou buckram lord! now art thou within point-
blank of our jurisdiction regal. What canst thou answer to my
majesty for giving up of Normandy unto Mounsieur Basimecu, the
dauphin of France? Be it known unto thee by these presence, even
the presence of Lord Mortimer, that I am the besom that must
sweep the court clean of such filth as thou art. Thou hast most
traitorously corrupted the youth of the realm in erecting a
grammar school; and whereas, before, our forefathers had no other
books but the score and the tally, thou hast caused printing to
be used, and, contrary to the king, his crown, and dignity, thou
hast built a paper-mill. It will be proved to thy face that thou
hast men about thee that usually talk of a noun and a verb, and
such abominable words as no Christian ear can endure to hear.
Thou hast appointed justices of peace, to call poor men before
them about matters they were not able to answer. Moreover, thou
hast put them in prison, and because they could not read, thou
hast hanged them; when, indeed, only for that cause they have
been most worthy to live. Thou dost ride in a foot-cloth, dost
SAY. What of that?
CADE. Marry, thou oughtest not to let thy horse wear a cloak
when honester men than thou go in their hose and doublets.
DICK. And work in their shirt too; as myself, for example, that
am a butcher.
SAY. You men of Kent,—
DICK. What say you of Kent?
SAY. Nothing but this; 't is 'bona terra, mala gens.'
CADE. Away with him, away with him! he speaks Latin.
SAY. Hear me but speak, and bear me where you will.
Kent, in the Commentaries Caesar writ,
Is term'd the civil'st place of all this isle.
Sweet is the country, because full of riches;
The people liberal, valiant, active, wealthy;
Which makes me hope you are not void of pity.
I sold not Maine, I lost not Normandy,
Yet, to recover them, would lose my life.
Justice with favour have I always done;
Prayers and tears have mov'd me, gifts could never.
When have I aught exacted at your hands
But to maintain the king, the realm, and you?
Large gifts have I bestow'd on learned clerks,
Because my book preferr'd me to the king;
And seeing ignorance is the curse of God,
Knowledge the wing wherewith we fly to heaven,
Unless you be possess'd with devilish spirits,
You cannot but forbear to murther me.
This tongue hath parley'd unto foreign kings
For your behoof,—
CADE. Tut, when struck'st thou one blow in the field?
SAY. Great men have reaching hands; oft have I struck
Those that I never saw, and struck them dead.
GEORGE. O monstrous coward! what, to come behind folks?
SAY. These cheeks are pale for watching for your good.
CADE. Give him a box o' the ear, and that will make 'em red
SAY. Long sitting to determine poor men's causes
Hath made me full of sickness and diseases.
CADE. Ye shall have a hempen caudle then, and the help of
DICK. Why dost thou quiver, man?
SAY. The palsy, and not fear, provokes me.
CADE. Nay, he nods at us, as who should say, I'll be even with
you. I'll see if his head will stand steadier on a pole or
no. Take him away, and behead him.
SAY. Tell me wherein have I offended most?
Have I affected wealth or honour? speak.
Are my chests fill'd up with extorted gold?
Is my apparel sumptuous to behold?
Whom have I injur'd, that ye seek my death?
These hands are free from guiltless bloodshedding,
This breast from harbouring foul deceitful thoughts.
O, let me live!
CADE. [Aside.] I feel remorse in myself with his words, but I'll bridle
it; he shall die, an it be but for pleading so well for his
life.—Away with him! he has a familiar under his tongue; he speaks not
o' God's name. Go, take him away, I say, and strike off his head
presently; and then break into his son-in-law's house, Sir James
Cromer, and strike off his head, and bring them both upon two
ALL. It shall be done.
SAY. Ah, countrymen! if when you make your prayers,
God should be so obdurate as yourselves,
How would it fare with your departed souls?
And therefore yet relent, and save my life.
CADE. Away with him! and do as I command ye.—[Exeunt some with
Lord Say.] The proudest peer in the realm shall not
wear a head on his shoulders unless he pay me tribute; there
shall not a maid be married but she shall pay to me her
maidenhead ere they have it. Men shall hold of me in capite;
and we charge and command that their wives be as free as
heart can wish or tongue can tell.
DICK. My lord, when shall we go to Cheapside, and take up
commodities upon our bills?
CADE. Marry, presently.
ALL. O, brave! [Re-enter one with the heads.]
CADE. But is not this braver? Let them kiss one another,
for they loved well when they were alive. Now part them again,
lest they consult about the giving up of some more towns in
France.—Soldiers, defer the spoil of the city until night; for
with these borne before us, instead of maces will we ride
through the streets, and at every corner have them kiss.—Away!
SCENE VIII. Southwark
[Alarum and retreat. Enter CADE and all his rabblement.]
CADE. Up Fish Street! down Saint Magnus' Corner! kill
and knock down! Throw them into Thames! [Sound a parley.]
What noise is this I hear? Dare any be so bold to sound retreat
or parley when I command them kill?
[Enter BUCKINGHAM and old CLIFFORD, attended.]
BUCKINGHAM. Ay, here they be that dare and will disturb thee.
Know, Cade, we come ambassadors from the king
Unto the commons whom thou hast misled,
And here pronounce free pardon to them all
That will forsake thee and go home in peace.
CLIFFORD. What say ye, countrymen? will ye relent
And yield to mercy whilst 't is offer'd you,
Or let a rebel lead you to your deaths?
Who loves the king and will embrace his pardon,
Fling up his cap, and say 'God save his Majesty!'
Who hateth him and honours not his father,
Henry the Fifth, that made all France to quake,
Shake he his weapon at us and pass by.
ALL. God save the king! God save the king!
CADE. What, Buckingham and Clifford, are ye so brave?—
And you, base peasants, do ye believe him? will you needs be
hang'd with your about your necks? Hath my sword therefore
broke through London gates, that you should leave me at the
White Hart in Southwark? I thought ye would never have given
out these arms till you had recovered your ancient freedom;
but you are all recreants and dastards, and delight to live in
slavery to the nobility. Let them break your backs with burthens,
take your houses over your heads, ravish your wives and daughters
before your faces. For me, I will make shift for one; and so,
God's curse light upon you all!
ALL. We'll follow Cade, we'll follow Cade!
CLIFFORD. Is Cade the son of Henry the Fifth,
That thus you do exclaim you'll go with him?
Will he conduct you through the heart of France,
And make the meanest of you earls and dukes?
Alas, he hath no home, no place to fly to;
Nor knows he how to live but by the spoil,
Unless by robbing of your friends and us.
Were 't not a shame that whilst you live at jar
The fearful French, whom you late vanquished,
Should make a start o'er seas and vanquish you?
Methinks already in this civil broil
I see them lording it in London streets,
Crying 'Villiaco!' unto all they meet.
Better ten thousand base-born Cades miscarry
Than you should stoop unto a Frenchman's mercy.
To France, to France, and get what you have lost;
Spare England, for it is your native coast.
Henry hath money, you are strong and manly;
God on our side, doubt not of victory.
ALL. A Clifford! a Clifford! we'll follow the king and
CADE. Was ever feather so lightly blown to and fro as this
multitude? The name of Henry the Fifth hales them to an hundred
mischiefs and makes them leave me desolate. I see them lay their
heads together to surprise me. My sword make way for me, for
here is no staying.—In despite of the devils and hell, have
through the very middest of you! and heavens and honour be witness
that no want of resolution in me, but only my followers' base and
ignominious treasons, makes me betake me to my heels. [Exit.]
BUCKINGHAM. What, is he fled?—Go some, and follow him;
And he that brings his head unto the king
Shall have a thousand crowns for his reward.—[Exeunt some of them.]
Follow me, soldiers; we'll devise a mean
To reconcile you all unto the king. [Exeunt.]
ACT I, SCENE I, LL. 1-225, Rome. A street.
[Enter a company of mutinous citizens, with staves, clubs, and other weapons.]
FIRST CITIZEN. Before we proceed any further, hear me speak.
ALL. Speak, speak.
FIRST CITIZEN. You are all resolved rather to die than to famish?
ALL. Resolved, resolved.
FIRST CITIZEN. First, you know Caius Marcius is chief enemy to the people.
ALL. We know't, we know't.
FIRST CITIZEN. Let us kill him, and we'll have corn at our own price. Is't a
ALL. No more talking on't; let it be done: away, away!
SECOND CITIZEN. One word, good citizens.
FIRST CITIZEN. We are accounted poor citizens; the patricians good.
What authority surfeits on would relieve us; if they would yield
us but the superfluity, while it were wholesome, we might guess
they relieved us humanely; but they think we are too dear: the
leanness that afflicts us, the object of our misery, is as an
inventory to particularize their abundance; our sufferance is a
gain to them.—Let us revenge this with our pikes ere we become
rakes: for the gods know I speak this in hunger for bread, not in
thirst for revenge.
SECOND CITIZEN. Would you proceed especially against Caius Marcius?
FIRST CITIZEN. Against him first: he's a very dog to the commonalty.
SECOND CITIZEN. Consider you what services he has done for his country?
FIRST CITIZEN. Very well; and could be content to give him good report for't,
but that he pays himself with being proud.
SECOND CITIZEN. Nay, but speak not maliciously.
FIRST CITIZEN. I say unto you, what he hath done famously he did it to that end:
though soft-conscienced men can be content to say it was for his
country, he did it to please his mother, and to be partly proud;
which he is, even to the altitude of his virtue.
SECOND CITIZEN. What he cannot help in his nature you account a vice in him. You
must in no way say he is covetous.
FIRST CITIZEN. If I must not, I need not be barren of accusations; he hath
faults, with surplus, to tire in repetition. [Shouts within.]
What shouts are these? The other side o' the city is risen: why
stay we prating here? to the Capitol!
ALL. Come, come.
FIRST CITIZEN. Soft! who comes here?
SECOND CITIZEN. Worthy Menenius Agrippa; one that hath always loved the people.
FIRST CITIZEN. He's one honest enough; would all the rest were so!
[Enter MENENIUS AGRIPPA.]
MENENIUS. What work's, my countrymen, in hand? where go you
With bats and clubs? the matter? speak, I pray you.
FIRST CITIZEN. Our business is not unknown to the senate; they have had inkling
this fortnight what we intend to do, which now we'll show 'em in
deeds. They say poor suitors have strong breaths; they shall know
we have strong arms too.
MENENIUS. Why, masters, my good friends, mine honest neighbours,
Will you undo yourselves?
FIRST CITIZEN. We cannot, sir; we are undone already.
MENENIUS. I tell you, friends, most charitable care
Have the patricians of you. For your wants,
Your suffering in this dearth, you may as well
Strike at the heaven with your staves as lift them
Against the Roman state; whose course will on
The way it takes, cracking ten thousand curbs
Of more strong link asunder than can ever
Appear in your impediment: for the dearth,
The gods, not the patricians, make it; and
Your knees to them, not arms, must help. Alack,
You are transported by calamity
Thither where more attends you; and you slander
The helms o' th' state, who care for you like fathers,
When you curse them as enemies.
FIRST CITIZEN. Care for us! True, indeed! They ne'er cared for us yet. Suffer us
to famish, and their storehouses crammed with grain; make edicts
for usury, to support usurers; repeal daily any wholesome act
established against the rich, and provide more piercing statutes
daily to chain up and restrain the poor. If the wars eat us not
up, they will; and there's all the love they bear us.
MENENIUS. Either you must
Confess yourselves wondrous malicious,
Or be accus'd of folly. I shall tell you
A pretty tale: it may be you have heard it;
But, since it serves my purpose, I will venture
To stale't a little more.
FIRST CITIZEN. Well, I'll hear it, sir; yet you must not think to fob off our
disgrace with a tale: but, an't please you, deliver.
MENENIUS. There was a time when all the body's members
Rebell'd against the belly; thus accus'd it:—
That only like a gulf it did remain
I' the midst o' the body, idle and unactive,
Still cupboarding the viand, never bearing
Like labour with the rest; where th' other instruments
Did see and hear, devise, instruct, walk, feel,
And, mutually participate, did minister
Unto the appetite and affection common
Of the whole body. The belly answered,—
FIRST CITIZEN. Well, sir, what answer made the belly?
MENENIUS. Sir, I shall tell you.—With a kind of smile,
Which ne'er came from the lungs, but even thus,—
For, look you, I may make the belly smile
As well as speak,—it tauntingly replied
To the discontented members, the mutinous parts
That envied his receipt; even so most fitly
As you malign our senators for that
They are not such as you.
FIRST CITIZEN. Your belly's answer? What!
The kingly crowned head, the vigilant eye,
The counsellor heart, the arm our soldier,
Our steed the leg, the tongue our trumpeter,
With other muniments and petty helps
Is this our fabric, if that they,—
MENENIUS. What then?—
'Fore me, this fellow speaks!—what then? what then?
FIRST CITIZEN. Should by the cormorant belly be restrain'd,
Who is the sink o' the body,—
MENENIUS. Well, what then?
FIRST CITIZEN. The former agents, if they did complain,
What could the belly answer?
MENENIUS. I will tell you;
If you'll bestow a small,—of what you have little,—
Patience awhile, you'll hear the belly's answer.
FIRST CITIZEN. You are long about it.
MENENIUS. Note me this, good friend;
Your most grave belly was deliberate,
Not rash like his accusers, and thus answer'd:
'True is it, my incorporate friends,' quoth he,
'That I receive the general food at first
Which you do live upon; and fit it is,
Because I am the storehouse and the shop
Of the whole body: but, if you do remember,
I send it through the rivers of your blood,
Even to the court, the heart,—to the seat o' the brain;
And, through the cranks and offices of man,
The strongest nerves and small inferior veins
From me receive that natural competency
Whereby they live: and though that all at once
You, my good friends,'—this says the belly,—mark me,—
FIRST CITIZEN. Ay, sir; well, well.
MENENIUS. 'Though all at once cannot
See what I do deliver out to each,
Yet I can make my audit up, that all
From me do back receive the flour of all,
And leave me but the bran.' What say you to't?
FIRST CITIZEN. It was an answer: how apply you this?
MENENIUS. The senators of Rome are this good belly,
And you the mutinous members; for, examine
Their counsels and their cares; digest things rightly
Touching the weal o' the common; you shall find
No public benefit which you receive
But it proceeds or comes from them to you,
And no way from yourselves.—What do you think,
You, the great toe of this assembly?
FIRST CITIZEN. I the great toe? why the great toe?
MENENIUS. For that, being one o' the lowest, basest, poorest,
Of this most wise rebellion, thou go'st foremost:
Thou rascal, that art worst in blood to run,
Lead'st first to win some vantage.—
But make you ready your stiff bats and clubs:
Rome and her rats are at the point of battle;
The one side must have bale.—
[Enter CAIUS MARCIUS.]
Hail, noble Marcius!
MARCIUS. Thanks.—What's the matter, you dissentious rogues
That, rubbing the poor itch of your opinion,
Make yourselves scabs?
FIRST CITIZEN. We have ever your good word.
MARCIUS. He that will give good words to thee will flatter
Beneath abhorring.—What would you have, you curs,
That like nor peace nor war? The one affrights you,
The other makes you proud. He that trusts to you,
Where he should find you lions, finds you hares;
Where foxes, geese: you are no surer, no,
Than is the coal of fire upon the ice,
Or hailstone in the sun. Your virtue is
To make him worthy whose offence subdues him,
And curse that justice did it. Who deserves greatness
Deserves your hate; and your affections are
A sick man's appetite, who desires most that
Which would increase his evil. He that depends
Upon your favours swims with fins of lead,
And hews down oaks with rushes. Hang ye! Trust ye!
With every minute you do change a mind;
And call him noble that was now your hate,
Him vile that was your garland. What's the matter,
That in these several places of the city
You cry against the noble senate, who,
Under the gods, keep you in awe, which else
Would feed on one another?—What's their seeking?
MENENIUS. For corn at their own rates; whereof they say
The city is well stor'd.
MARCIUS. Hang 'em! They say!
They'll sit by th' fire and presume to know
What's done i' the Capitol; who's like to rise,
Who thrives and who declines; side factions, and give out
Conjectural marriages; making parties strong,
And feebling such as stand not in their liking
Below their cobbled shoes. They say there's grain enough!
Would the nobility lay aside their ruth
And let me use my sword, I'd make a quarry
With thousands of these quarter'd slaves, as high
As I could pick my lance.
MENENIUS. Nay, these are almost thoroughly persuaded;
For though abundantly they lack discretion,
Yet are they passing cowardly. But, I beseech you,
What says the other troop?
MARCIUS. They are dissolved: hang 'em!
They said they were an-hungry; sigh'd forth proverbs,—
That hunger broke stone walls, that dogs must eat,
That meat was made for mouths, that the gods sent not
Corn for the rich men only:—with these shreds
They vented their complainings; which being answer'd,
And a petition granted them,—a strange one,
To break the heart of generosity,
And make bold power look pale,—they threw their caps
As they would hang them on the horns o' the moon,
Shouting their emulation.
MENENIUS. What is granted them?
MARCIUS. Five tribunes, to defend their vulgar wisdoms,
Of their own choice: one's Junius Brutus,
Sicinius Velutus, and I know not.—'Sdeath!
The rabble should have first unroof'd the city
Ere so prevail'd with me: it will in time
Win upon power, and throw forth greater themes
For insurrection's arguing.
MENENIUS. This is strange.
MARCIUS. Go get you home, you fragments!
ACT 3, SCENE I, LL. 140-161, Rome. A street.
BRUTUS. Enough, with over-measure.
CORIOLANUS. No, take more:
What may be sworn by, both divine and human,
Seal what I end withal!—This double worship,—
Where one part does disdain with cause, the other
Insult without all reason; where gentry, title, wisdom,
Cannot conclude but by the yea and no
Of general ignorance—it must omit
Real necessities, and give way the while
To unstable slightness: purpose so barr'd, it follows,
Nothing is done to purpose. Therefore, beseech you,—
You that will be less fearful than discreet;
That love the fundamental part of state
More than you doubt the change on't; that prefer
A noble life before a long, and wish
To jump a body with a dangerous physic
That's sure of death without it,—at once pluck out
The multitudinous tongue; let them not lick
The sweet which is their poison: your dishonour
Mangles true judgment, and bereaves the state
Of that integrity which should become't;
Not having the power to do the good it would,
For the ill which doth control't.
BRUTUS. Has said enough.
SICINIUS. Has spoken like a traitor, and shall answer
As traitors do.
Two short excerpts from Thomas Hobbes' Leviathan
Part II: Of commonwealth, ch. 21: Of the liberty of subjects
But it is an easy thing for men to be deceived by the specious name of liberty; and, for want of judgement to distinguish, mistake that for their private inheritance and birthright which is the right of the public only. And when the same error is confirmed by the authority of men in reputation for their writings on this subject, it is no wonder if it produce sedition and change of government. In these western parts of the world we are made to receive our opinions concerning the institution and rights of Commonwealths from Aristotle, Cicero, and other men, Greeks and Romans, that, living under popular states, derived those rights, not from the principles of nature, but transcribed them into their books out of the practice of their own Commonwealths, which were popular; as the grammarians describe the rules of language out of the practice of the time; or the rules of poetry out of the poems of Homer and Virgil. And because the Athenians were taught (to keep them from desire of changing their government) that they were freemen, and all that lived under monarchy were slaves; therefore Aristotle puts it down in his Politics: "In democracy, liberty is to be supposed: for it is commonly held that no man is free in any other government."[Aristotle, Politics, Book VI, chap. 2] And as Aristotle, so Cicero and other writers have grounded their civil doctrine on the opinions of the Romans, who were taught to hate monarchy: at first, by them that, having deposed their sovereign, shared amongst them the sovereignty of Rome; and afterwards by their successors. And by reading of these Greek and Latin authors, men from their childhood have gotten a habit, under a false show of liberty, of favouring tumults, and of licentious controlling the actions of their sovereigns; and again of controlling those controllers; with the effusion of so much blood, as I think I may truly say there was never anything so dearly bought as these western parts have bought the learning of the Greek and Latin tongues.
Part IV: Of the Kingdom of Darkness, ch. 46: Of darkness from vain philosophy and fabulous traditions
From Aristotle's civil philosophy, they have learned to call all manner of Commonwealths but the popular (such as was at that time the state of Athens), tyranny. All kings they called tyrants; and the aristocracy of the thirty governors set up there by the Lacedaemonians that subdued them, the thirty tyrants: as also to call the condition of the people under the democracy, liberty. A tyrant originally signified no more, simply, but a monarch. But when afterwards in most parts of Greece that kind of government was abolished, the name began to signify, not only the thing it did before, but with it the hatred which the popular states bore towards it: as also the name of king became odious after the deposing of the kings in Rome, as being a thing natural to all men to conceive some great fault to be signified in any attribute that is given in despite, and to a great enemy. And when the same men shall be displeased with those that have the administration of the democracy, or aristocracy, they are not to seek for disgraceful names to express their anger in; but call readily the one anarchy, and the other oligarchy, or the tyranny of a few. And that which offendeth the people is no other thing but that they are governed, not as every one of them would himself, but as the public representant, be it one man or an assembly of men, thinks fit; that is, by an arbitrary government: for which they give evil names to their superiors, never knowing (till perhaps a little after a civil war) that without such arbitrary government, such war must be perpetual; and that it is men and arms, not words and promises, that make the force and power of the laws.
And therefore this is another error of Aristotle's politics, that in a well-ordered Commonwealth, not men should govern, but the laws.
Blaise Pascal, Pensées, No. 878
Summum jus, summa injuria. [The greatest law, the greatest injury]
The majority is the best way, because it is visible, and has strength to make itself obeyed. Yet it is the opinion of the least able.
If men could have done it, they would have placed might in the hands of justice. But as might does not allow itself to be managed as men want, because it is a palpable quality, whereas justice is a spiritual quality of which men dispose as they please, they have placed justice in the hands of might. And thus that is called just which men are forced to obey.
Hence comes the right of the sword, for the sword gives a true right. Otherwise we should see violence on one side and justice on the other. End of the twelfth Provincial. Hence comes the injustice of the Fronde, which raises its alleged justice against power. It is not the same in the Church, for there is a true justice and no violence.
Three short excerpts from Montesquieu, The Spirit of Laws
Translated by Thomas Nugent (1750)
Book III. Of the principles of the three kinds of government, ch. 3, Of the principle of democracy
The politic Greeks, who lived under a popular government, knew no other support than virtue: the modern inhabitants of that country are entirely taken up with manufacture, commerce, finances, opulence, and luxury.
When virtue is banished, ambition invades the minds of those who are disposed to receive it, and avarice possesses the whole community. The objects of their desires are changed; what they were fond of before is become indifferent; they were free while under the restraint of laws, but they would fain now be free to act against law; and, as each citizen is like a slave who has run away from his master, what was a maxim of equity, he calls rigour; what was a rule of action, he stiles constraint; and to precaution he gives the name of fear. Frugality, and not the thirst of gain, now passes for avarice. Formerly, the wealth of individuals constituted the public treasure, but now this is become the patrimony of private persons. The members of the commonwealth riot on the public spoils, and its strength is only the power of a few and the licentiousness of many.
Book VI. Consequences of the principles of different governments with respect to the simplicity of civil and criminal laws, the form of judgments, and the inflicting of punishments, ch. 5, In what governments the sovereign may be judge
Machiavel [Discourse on the first decade of Livy, i. 7.] attributes the loss of the liberty of Florence to the people’s not judging in a body in cases of high-treason against themselves, as was customary at Rome. For this purpose they had eight judges: but the few, says Machiavel, are corrupted by a few. I should willingly adopt the maxim of this great man: but as, in those cases, the political interest prevails, in some measure, over the civil, (for it is always an inconveniency that the people should be judges in their own cause,) in order to remedy this evil, the laws must provide as much as possible for the security of individuals.
With this view, the Roman legislators did two things; they gave the persons accused permission to banish themselves [This is well explained in Cicero's oration Pro Caecina, towards the end, 100] before sentence was pronounced; [This was the law at Athens, as appears by Demonsthenes. Socrates refused to make use of it.] and they ordained, that the goods of those who were condemned should be sacred, to prevent their being confiscated to the people. We shall see, in the XIth book, the other limitations that were set to the judicatory power residing in the people.
Solon knew how to prevent the abuse which the people might make of their power in criminal judgements. He ordained, that the court of Areopagus should re-examine the affair; that, if they believed the party accused was unjustly acquitted [Demonsthenes, Pro Corona, p. 494, Frankfort, 1604.] they should impeach him again before the people; that, if they believed him unjustly condemned [See Philostratus, Lives of the Sophists, i. Life of Aeschines.] they should prevent the execution of the sentence, and make them re-judge the proceeding—an admirable law, that subjected the people to the censure of the magistracy which they most revered, and even to their own!
In affairs of this kind, it is always proper to throw in some delays, especially when the party accused is under confinement; to the end that the people may grow calm, and give their judgement coolly.
In despotic governments, the prince himself may be judge: but in monarchies this cannot be; the constitution by such means would be subverted, and the dependent intermediate powers annihilated; all set forms of judgement would cease; fear would take possession of the people’s minds, and paleness spread itself over every countenance: the more confidence, honour, affection, and security, in the subject, the more extended is the power of the monarch.
Book VIII: Of the corruption of the principles of the three governments, ch. 1-4
CHAP. I.: General idea of this book
The corruption of each government generally begins with that of the principles.
CHAP. II.: Of the corruption of the principles of democracy.
The principle of democracy is corrupted, not only when the spirit of equality is extinct, but likewise when they fall into a spirit of extreme equality, and when each citizen would fain be upon a level with those whom he has chosen to command him. Then the people, incapable of bearing the very power they have delegated, want to manage every thing themselves, to debate for the senate, to execute for the magistrate, and to decide for the judges.
When this is the case virtue can no longer subsist in the republic. The people are desirous of exercising the functions of the magistrates; who cease to be revered. The deliberations of the senate are slighted: all respect is then laid aside for the senators, and consequently for old age. If there is no more respect for old age, there will be none presently for parents: deference to husbands will be likewise thrown off, and submission to masters. This licentiousness will soon become general, and the trouble of command be as fatiguing as that of obedience. Wives, children, slaves, will shake off all subjection. No longer will there be any such things as manners, order, or virtue.
We find, in Xenophon’s Banquet, a very lively description of a republic in which the people abused their equality. Each guest gives, in his turn, the reason why he is satisfied. “Content I am, says Chamides, because of my poverty. When I was rich, I was obliged to pay my court to informers, knowing I was more liable to be hurt by them than capable of doing them harm. The republic constantly demanded some new tax of me; and I could not decline paying. Since I am grown poor, I have acquired authority; nobody threatens me; I rather threaten others. I can go or stay where I please. The rich already rise from their seats and give me the way. I am a king; I was before a slave: I paid taxes to the republic; now it maintains me: I am no longer afraid of losing, but I hope to acquire.”
The people fall into this misfortune when those in whom they confide, desirous of concealing their own corruption, endeavour to corrupt them. To disguise their own ambition, they speak to them only of the grandeur of the state; to conceal their own avarice, they incessantly flatter theirs.
The corruption will increase among the corrupters, and likewise among those who are already corrupted. The people will divide the public money among themselves, and, having added the administration of affairs to their indolence, will be for blending their poverty with the amusements of luxury. But, with their indolence and luxury, nothing but the public treasure will be able to satisfy their demands.
We must not be surprized to see their suffrages given for money. It is impossible to make great largesses to the people without great extortion: and,  to compass this, the state must be subverted. The greater the advantages they seem to derive from their liberty, the nearer they approach towards the critical moment of losing it. Petty tyrants arise, who have all the vices of a single tyrant. The small remains of liberty soon become insupportable; a single tyrant starts up, and the people are stripped of every thing, even of the profits of their corruption.
Democracy hath, therefore, two excesses to avoid; the spirit of inequality, which leads to aristocracy or monarchy; and the spirit of extreme equality, which leads to despotic power, as the latter is completed by conquest.
True it is, that those, who corrupted the Greek republics, did not always become tyrants. This was because they had a greater passion for eloquence than for the military art. Besides, there reigned an implacable hatred in the breasts of the Greeks against those who subverted a republican government; and, for this reason, anarchy degenerated into annihilation, instead of being changed into tyranny.
But Syracuse, being situated in the midst of a great number of petty states, whose government had been changed from oligarchy to tyranny, [See Plutarch in Timoleon and Dion.] and being governed by a senate [It was that of the Six Hundred, of whom mention is made by Diodorus, xix. 5.] scarcely ever mentioned in history, underwent such miseries as are the consequence of a more than ordinary corruption. This city, ever a prey to licentiousness [Upon the expulsion of the tyrants, they made citizens of strangers and mercenary troops, which gave rise to civil wars.—Aristotle Politics, book 5. ch. 3. The people having been the cause of the victory over the Athenians the republic was changed.—Ibid., ch. 4. The passion of two young magistrates, one of whom carried off the other’s boy, and, in revenge, the other debauched his wife, was attended with a change in the form of this republic.—Ibid., book 7, ch. 4.] or oppression, equally labouring under the sudden and alternate succession of liberty and servitude, and, notwithstanding her external strength, constantly determined to a revolution by the least foreign power—this city, I say, had in her bosom an immense multitude of people, whose fate it was to have always this cruel alternative, either of choosing a tyrant to govern them, or of acting the tyrant themselves.
CHAP. III.: Of the spirit of extreme equality.
As distant as heaven is from earth, so is the true spirit of equality from that of extreme equality. The former does not imply that every body should command, or that no one should be commanded, but that we obey or command our equals. It endeavours not to shake off the authority of a master, but that its masters should be none but its equals.
In the state of nature, indeed, all men are born equal; but they cannot continue in this equality: society makes them lose it, and they recover it only by the protection of the laws.
Such is the difference between a well regulated democracy and one that is not so, that, in the former, men are equal only as citizens, but, in the latter, they are equal also as magistrates, as senators, as judges, as fathers, as husbands, or as masters.
The natural place of virtue is near to liberty; but it is not nearer to excessive liberty than to servitude.
CHAP. IV.: Particular cause of the corruption of the people.
Great success, especially when chiefly owing to the people, intoxicates them to such a degree that it is impossible to contain them within bounds. Jealous of their magistrates, they soon become jealous likewise of the magistracy; enemies to those who govern, they soon prove enemies also to the constitution. Thus it was that the victory over the Persians, in the straits of Salamis, corrupted the republic of Athens; [Ibid.] and thus the defeat of the Athenians ruined the republic of Syracuse. [Ibid]
Marseilles never experienced those great transitions from lowness to grandeur; this was owing to the prudent conduct of that republic, who always preserved her principles.
Three short excerpts from Edward Gibbon's Decline and Fall of the Roman Empire
CHAP 2: Of the union and internal prosperity of the Roman Empire in the Age of the Antonines
Freedom of Rome; Italy
Rome gradually became the common temple of her subjects; and the freedom of the city was bestowed on all the gods of mankind.19
II. The narrow policy of preserving without any foreign mixture the pure blood of the ancient citizens, had checked the fortune, and hastened the ruin, of Athens and Sparta. The aspiring genius of Rome sacrificed vanity to ambition, and deemed it more prudent, as well as honourable, to adopt virtue and merit for her own wheresoever they were found, among slaves or strangers, enemies or barbarians.20 During the most flourishing era of the Athenian commonwealth the number of citizens gradually decreased from about thirty21 to twenty-one thousand.22 If, on the contrary, we study the growth of the Roman republic, we may discover that, notwithstanding the incessant demands of wars and colonies, the citizens, who, in the first census of Servius Tullius, amounted to no more than eighty-three thousand,23 were multiplied, before the commencement of the social war, to the number of four hundred and sixty-three thousand men able to bear arms in the service of their country.24 When the allies of Rome claimed an equal share of honours and privileges, the senate indeed preferred the chance of arms to an ignominous concession. The Samnites and the Lucanians paid the severe penalty of their rashness; but the rest of the Italian states, as they successively returned to their duty, were admitted into the bosom of the republic,25 and soon contributed to the ruin of public freedom. Under a democratical government the citizens exercise the powers of sovereignty; and those powers will be first abused, and afterwards lost, if they are committed to an unwieldy multitude. But, when the popular assemblies had been suppressed by the administration of the emperors, the conquerors were distinguished from the vanquished nations only as the first and most honourable order of subjects; and their increase, however rapid, was no longer exposed to the same dangers. Yet the wisest princes who adopted the maxims of Augustus guarded with the strictest care the dignity of the Roman name, and diffused the freedom of the city with a prudent liberality.26
Laws of the people; decrees of the Senate
The Decemvirs had been named, and their tables were approved, by an assembly of the centuries, in which riches preponderated against numbers. To the first class of Romans, the proprietors of one hundred thousand pounds of copper,27 ninety-eight votes were assigned, and only ninety-five were left for the six inferior classes, distributed according to their substance by the artful policy of Servius. But the tribunes soon established a more specious and popular maxim, that every citizen has an equal right to enact the laws which he is bound to obey. Instead of the centuries, they convened the tribes; and the patricians, after an impotent struggle, submitted to the decrees of an assembly in which their votes were confounded with those of the meanest plebeians. Yet, as long as the tribes successively passed over narrow bridges,28 and gave their voices aloud, the conduct of each citizen was exposed to the eyes and ears of his friends and countrymen. The insolvent debtor consulted the wishes of his creditor; the client would have blushed to oppose the views of his patron; the general was followed by his veterans; and the aspect of a grave magistrate was a living lesson to the multitude. A new method of secret ballot abolished the influence of fear and shame, of honour and interest, and the abuse of freedom accelerated the progress of anarchy and despotism.29 The Romans had aspired to be equal; they were levelled by the equality of servitude; and the dictates of Augustus were patiently ratified by the formal consent of the tribes or centuries. Once, and once only, he experienced a sincere and strenuous opposition. His subjects had resigned all political liberty; they defended the freedom of domestic life. A law which enforced the obligation, and strengthened the bonds, of marriage was clamorously rejected; Propertius, in the arms of Delia, applauded the victory of licentious love; and the project of reform was suspended till a new and more tractable generation had arisen in the world.30 Such an example was not necessary to instruct a prudent usurper of the mischief of popular assemblies; and their abolition, which Augustus had silently prepared, was accomplished without resistance, and almost without notice, on the accession of his successor.31 Sixty thousand plebeian legislators, whom numbers made formidable and poverty secure, were supplanted by six hundred senators, who held their honours, their fortunes, and their lives by the clemency of the emperor. The loss of executive power was alleviated by the gift of legislative authority; and Ulpian might assert, after the practice of two hundred years, that the decrees of the senate obtained the force and validity of laws. In the times of freedom, the resolves of the people had often been dictated by the passion or error of the moment; the Cornelian, Pompeian, and Julian laws were adapted by a single hand to the prevailing disorders; but the senate, under the reign of the Cæsars, was composed of magistrates and lawyers, and in questions of private jurisprudence the integrity of their judgment was seldom perverted by fear or interest.32
Judgments of the People
The free citizens of Athens and Rome enjoyed, in all criminal cases, the invaluable privilege of being tried by their country.206 1. The administration of justice is the most ancient office of a prince: it was exercised by the Roman kings, and abused by Tarquin; who alone, without law or council, pronounced his arbitrary judgments. The first consuls succeeded to this regal prerogative; but the sacred right of appeal soon abolished the jurisdiction of the magistrates, and all public causes were decided by the supreme tribunal of the people. But a wild democracy, superior to the forms, too often disdains the essential principles, of justice: the pride of despotism was envenomed by plebeian envy, and the heroes of Athens might sometimes applaud the happiness of the Persian, whose fate depended on the caprice of a single tyrant. Some salutary restraints, imposed by the people on their own passions, were at once the cause and effect of the gravity and temperance of the Romans. The right of accusation was confined to the magistrates. A vote of the thirty-five tribes could inflict a fine; but the cognisance of all capital crimes was reserved by a fundamental law to the assembly of the centuries, in which the weight of influence and property was sure to preponderate. Repeated proclamations and adjournments were interposed to allow time for prejudice and resentment to subside; the whole proceeding might be annulled by a seasonable omen, or the opposition of a tribune; and such popular trials were commonly less formidable to innocence than they were favourable to guilt. But this union of the judicial and legislative powers left it doubtful whether the accused party was pardoned or acquitted; and, in the defence of an illustrious client, the orators of Rome and Athens address their arguments to the policy and benevolence, as well as to the justice, of their sovereign.
Two short excerpts from James Boswell's Life of Samuel Johnson
The year 1775
Johnson arraigned the modern politics of this country as entirely devoid of all principle of whatever kind. "Politics (said he,) are now nothing more than means of rising in the world. With this sole view do men engage in politics, and their whole conduct proceeds upon it. How different in that respect is the state of the nation now from what it was in the time of Charles the First, during the Usurpation, and after the Restoration, in the time of Charles the Second. Hudibras affords a strong proof how much hold political principles had then upon the minds of men. There is in Hudibras a great deal of bullion which will always last. But to be sure the brightest strokes of his wit owed their force to the impression of the characters, which was upon men's mind at the time; to their knowing them, at table and in the street; in short, being familiar with them; and above all, to his satire being directed against those whom a little while before they had hated and feared. The nation in general has ever been loyal, has been at all times attached to the monarch, though a few daring rebels have been wonderfully powerful for a time. The murder of Charles the First was undoubtedly not committed with the approbation or consent of the people. Had that been the case Parliament would not have ventured to consign the regicides to their deserved punishment. And we know what exuberance of joy there was when Charles the Second was restored. If Charles the Second had bent all his mind to it, had made it his sole object, he might have been as absolute as Louis the Fourteenth." A gentleman observed he would have done no harm if he had. Johnson: "Why, sir, absolute princes seldom do any harm. But they who are governed by them are governed by chance. There is no security for good government." Cambridge: "There have been many sad victims to absolute government." Johnson: "So, sir, have there been to popular factions." Boswell: "The question is, which is worst, one wild beast or many?"
Johnson was very courteous to Lady Margaret Macdonald. "Madam, (said he,) when I was in the Isle of Sky, I heard of the people running to take the stones off the road, lest Lady Margaret's horse should stumble."
Lord Graham commended Dr. Drummond at Naples, as a man of extraordinary talents; and added that he had a great love of liberty. Johnson. "He is young, my Lord; (looking to his Lordship with an arch smile,) all boys love liberty, till experience convinces them they are not so to fit govern themselves as they imagined. We are all agreed as to our own liberty; we would have as much of it as we can get; but we are not agreed as to the liberty of others: for in proportion as we take, others must lose. I believe we hardly wish that the mob should have liberty to govern us. When that was the case some time ago, no man was at liberty not to have candles in his windows." Ramsay. "The result is, that order is better than confusion." Johnson. "The result is, that order cannot be had but by subordination."
This day a violent altercation arose between Johnson and Beauclerk, which, having made much noise at the time, I think it proper, in order to prevent any future misrepresentation, to give a minute account of it.
Six short excerpts from Alexander Hamilton's and James Madison's Federalist Papers
No. 9 (Hamilton) The union as a safeguard against domestic faction and insurrection
A Firm Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection. It is impossible to read the history of the petty Republics of Greece and Italy, without feeling sensations of horror and disgust, at the distractions with which they were continually agitated, and at the rapid succession of revolutions, by which they were kept in a state of perpetual vibration, between the extremes of tyranny and anarchy. If they exhibit occasional calms, these only serve as short-lived contrasts to the furious storms, that are to succeed. If, now and then, intervals of felicity open themselves to view, we behold them with a mixture of regret, arising from the reflection, that the pleasing scenes before us are soon to be overwhelmed by the tempestuous waves of sedition and party rage. If momentary rays of glory break forth from the gloom, while they dazzle us with a transient and fleeting brilliancy, they, at the same time, admonish us to lament, that the vices of Government should pervert the direction, and tarnish the lustre of those bright talents and exalted endowments, for which the favored soils that produced them have been so justly celebrated.
From the disorders that disfigure the annals of those Republics, the advocates of despotism have drawn arguments, not only against the forms of Republican Government, but against the very principles of civil liberty. They have decried all free Government as inconsistent with the order of society, and have indulged themselves in malicious exultation over its friends and partisans. Happily for mankind, stupendous fabrics reared on the basis of liberty, which have flourished for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I trust, America will be the broad and solid foundation of other edifices, not less magnificent, which will be equally permanent monuments of their errors.
But it is not to be denied, that the portraits they have sketched of Republican Government were too just copies of the originals from which they were taken. If it had been found impracticable to have devised models of a more perfect structure, the enlightened friends to liberty would have been obliged to abandon the cause of that species of Government as indefensible. The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of Courts composed of Judges holding their offices during good behavior; the representation of the people in the Legislature, by Deputies of their own election; these are either wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of Republican Government may be retained, and its imperfections lessened, or avoided. To this catalogue of circumstances, that tend to the amelioration of popular systems of civil Government, I shall venture, however novel it may appear to some, to add one more, on a principle which has been made the foundation of an objection to the New Constitution; I mean the enlargement of the orbit within which such systems are to revolve, either in respect to the dimensions of a single State, or to the consolidation of several smaller States into one great Confederacy. The latter is that which immediately concerns the object under consideration. It will, however, be of use to examine the principle, in its application to a single State, which shall be attended to in another place.
No. 10 (Madison) The union as a safeguard, Continued
By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.
There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.
There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.
It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
The second expedient is as impracticable, as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of Government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.
The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning Government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for preëminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other, than to coöperate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions, and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold, and those who are without property, have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern Legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the Government.
No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? and what are the different classes of Legislators, but advocates and parties to the causes which they determine?
No. 22 (Hamilton) Other defects of the present confederation, Continued
In this review of the [Articles of] Confederation, I have confined myself to the exhibition of its most material defects; passing over those imperfections in its details by which even a great part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who can divest themselves of the prepossessions of preconceived opinions, that it is a system so radically vicious and unsound, as to admit not of amendment but by an entire change in its leading features and characters.
The organization of Congress is itself utterly improper for the exercise of those powers which are necessary to be deposited in the Union. A single Assembly may be a proper receptacle of those slender, or rather fettered, authorities, which have been heretofore delegated to the Fœderal head; but it would be inconsistent with all the principles of good government, to intrust it with those additional powers, which, even the moderate and more rational adversaries of the proposed Constitution admit, ought to reside in the United States. If that plan should not be adopted; and if the necessity of the Union should be able to withstand the ambitious aims of those men, who may indulge magnificent schemes of personal aggrandizement from its dissolution; the probability would be, that we should run into the project of conferring supplementary powers upon Congress, as they are now constituted; and either the machine, from the intrinsic feebleness of its structure, will moulder into pieces, in spite of our ill-judged efforts to prop it; or, by successive augmentations of its force and energy, as necessity might prompt, we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity, one of the most execrable forms of Government that human infatuation ever contrived. Thus, we should create in reality that very tyranny, which the adversaries of the new Constitution either are, or affect to be, solicitous to avert.
It has not a little contributed to the infirmities of the existing Fœderal system, that it never had a ratification by the people. Resting on no better foundation than the consent of the several Legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers; and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature, proves the necessity of laying the foundations of our National Government deeper than in the mere sanction of delegated authority. The fabric of American Empire ought to rest on the solid basis of the consent of the people.
No. 51 (Madison) The structure of the government must furnish the proper checks and balances between the different departments
If the principles on which these observations are founded be just [against establishing politically independent executive departments], as I persuade myself they are, and they be applied as a criterion to the several State Constitutions, and to the Fœderal Constitution, it will be found, that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.
There are moreover two considerations particularly applicable to the Fœderal system of America, which place that system in a very interesting point of view.
First. In a single republic, all the power surrendered by the People is submitted to the administration of a single Government; and the usurpations are guarded against, by a division of the Government into distinct and separate departments. In the compound republic of America, the power surrendered by the People is first divided between two distinct Governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the People. The different Governments will control each other, at the same time that each will be controlled by itself.
Second. 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. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority,—that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all Governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the Fœderal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority. In a free Government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases, will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of People comprehended under the same Government. This view of the subject must particularly recommend a proper Fœderal system to all the sincere and considerate friends of republican government; since it shows, that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States, oppressive combinations of a majority will be facilitated; the best security, under the republican forms, for the rights of every class of citizens, will be diminished; and consequently, the stability and independence of some member of the Government, the only other security, must be proportionately increased. 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 or parties 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 oppressions of 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. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the Government a will not dependent on the latter: or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the Fœderal principle.
No. 58 (Madison) Objection that the number of members will be augmented as the progress of population demands considered
The utmost degree of firmness that can be displayed by the Fœderal Senate or President, will not be more than equal to a resistance, in which they will be supported by constitutional and patriotic principles.
In this review of the Constitution of the House of Representatives, I have passed over the circumstance of economy, which, in the present state of affairs, might have had some effect in lessening the temporary number of Representatives; and a disregard of which would probably have been as rich a theme of declamation against the Constitution, as has been shown by the smallness of the number proposed. I omit also any remarks on the difficulty which might be found, under present circumstances, in engaging in the Fœderal service a large number of such characters as the People will probably elect. One observation, however, I must be permitted to add on this subject, as claiming, in my judgment, a very serious attention. It is, that in all Legislative Assemblies, the greater the number composing them may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous any Assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on characters of this description, that the eloquence and address of the few are known to act with all their force. In the ancient republics, where the whole body of the People assembled in person, a single orator, or an artful statesman, was generally seen to rule with as complete a sway, as if a sceptre had been placed in his single hand. On the same principle, the more multitudinous a representative Assembly may be rendered, the more it will partake of the infirmities incident to collective meetings of the People. Ignorance will be the dupe of cunning; and passion the slave of sophistry and declamation. The People can never err more than in supposing, that by multiplying their Representatives beyond a certain limit, they strengthen the barrier against the Government of a few. Experience will forever admonish them, that on the contrary, after securing a sufficient number for the purposes of safety, of local information, and of diffusive sympathy with the whole society, they will counteract their own views, by every addition to their Representatives. The countenance of the Government may become more democratic; but the soul that animates it will be more oligarchic. The machine will be enlarged; but the fewer, and often the more secret, will be the springs by which its motions are directed.
No. 63 (Madison) The Senate, Continued
Nor is it possible for the People to estimate the share of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult, to preserve a personal responsibility in the members of a numerous body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents.
The proper remedy for this defect must be an additional body in the Legislative department, which having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.
Thus far I have considered the circumstances which point out the necessity of a well-constructed Senate only as they relate to the Representatives of the People. To a People as little blinded by prejudice, or corrupted by flattery, as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary, as a defence to the People against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all Governments, and actually will, in all free Governments, ultimately prevail over the views of its rulers: so there are particular moments in public affairs, when the People, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the People against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the People of Athens have often escaped, if their Government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day, and statues on the next.
It may be suggested, that a People spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions, or to the danger of combining in pursuit of unjust measures. I am far from denying that this is a distinction of peculiar importance. I have, on the contrary, endeavored in a former paper to show, that it is one of the principal recommendations of a confederated republic. At the same time, this advantage ought not to be considered as superseding the use of auxiliary precautions. It may even be remarked, that the same extended situation, which will exempt the People of America from some of the dangers incident to lesser republics, will expose them to the inconveniency of remaining for a longer time under the influence of those misrepresentations which the combined industry of interested men may succeed in distributing among them.
It adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a Senate. Sparta, Rome, and Carthage are, in fact, the only States to whom that character can be applied. In each of the two first, there was a Senate for life. The constitution of the Senate in the last is less known. Circumstantial evidence makes it probable, that it was not different in this particular from the two others. It is at least certain, that it had some quality or other which rendered it an anchor against popular fluctuations; and that a smaller Council, drawn out of the Senate, was appointed not only for life, but filled up vacancies itself. These examples, though as unfit for the imitation, as they are repugnant to the genius of America, are, notwithstanding, when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty.
Five short excerpts from Georg Wilhelm Friedrich Hegel's Philosophy of Right and Philosophy of History
Philosophy of Right
Translated by S. W. Dyde (1896)
Part III: Ethical life, Section 3: The state
A. Constitutional law, 1st. The constitution (on its internal side only)
(3) The legislature
Para. 302. Addition. The constitution is essentially a system of mediation. In despotic lands where there are only princes and people, the people act, if they act at all, in such a way as to disturb or destroy the political organization. But when the multitude has an organic relation to the whole, it obtains its interests in a right and orderly way. If this middle term is not present, the utterance of the masses is always violent. Therefore, the despot treats the people with indulgence, while his rage affects only those in his immediate neighbourhood. So also the people in a despotism pay light taxes, which in a constitutional state become larger through the people’s own consciousness. In no other land are taxes so heavy as they are in England.
Para. 303. The universal class, the class devoted to the service of the government, has directly in its structure the universal as the end of its essential activity. In that branch of the legislative function, which contains the classes, the private individual attains political significance and efficiency. Hence, private persons cannot appear in the legislature either as a mere undistinguished mass, or as an aggregate of atoms. In fact, they already exist under two distinct aspects. They are found in the class which is based upon particular interests and the labour by which they are secured (§ 201 and fol.) Only in this way is the actual particular in the state securely attached to the universal.
Note—This view makes against another widespread idea, that since the private class is in the legislature exalted to participation in the universal business, it must appear in the form of individuals, be it that representatives are chosen for this purpose, or that every person shall exercise a voice. But even in the family this abstract atomic view is no longer to be found, nor in the civic community, in both of which the individual makes his appearance only as a member of a universal. As to the state, it is essentially an organization, whose members are independent spheres, and in it no phase shall show itself as an unorganized multitude. The many, as individuals, whom we are prone to call the people, are indeed a collective whole, but merely as a multitude or formless mass, whose movement and action would be elemental, void of reason, violent, and terrible. When in reference to the constitution we still hear the people, that is, this unorganized mass, spoken of, we may take it for granted that we shall be given only generalities and warped declamations.
The view leading to the disintegration of the common existence found in the various circles, which are elements in the political world or highest concrete universality, would seek to divide the civic from the political life. The basis of the state would then be only the abstract individuality of wilfulness and opinion, a foundation which is merely accidental, and not absolutely steadfast and authoritative. That would be like building political life in the air. Although in these so-called theories the classes of the civic community generally and the classes in their political significance lie far apart, yet speech has retained their unity, a union which indeed existed long ago.
Philosophy of History
Translated by J. Sibree (1861)
The farther interests connected with the necessities and external concerns of life, as well as the development that has to take place within their circle, i.e. of the children constitute a common object for the members of the Family. The Spirit of the Family − the Penates − form one substantial being, as much as the Spirit of a People in the State; and morality in both cases consists in a feeling, a consciousness, and a will, not limited to individual personality and interest, but embracing the common interests of the members generally. But this unity is in the case of the Family essentially one of feeling; not advancing beyond the limits of the merely natural. The piety of the Family relation should be respected in the highest degree by the State; by its means the State obtains as its members individuals who are already moral (for as mere persons they are not) and who in uniting to form a state bring with them that sound basis of a political edifice − the capacity of feeling one with a Whole. But the expansion of the Family to a patriarchal unity carries us beyond the ties of blood−relationship − the simply natural elements of that basis; and outside of these limits the members of the community must enter upon the position of independent personality. A review of the patriarchal condition, in extenso, would lead us to give special attention to the Theocratical Constitution. The head of the patriarchal clan is also its priest. If the Family in its general relations, is not yet separated from civic society and the state, the separation of religion from it has also not yet taken place; and so much the less since the piety of the hearth is itself a profoundly subjective state of feeling.
We have considered two aspects of Freedom, − the objective and the subjective; if, therefore, Freedom is asserted to consist in the individuals of a State all agreeing in its arrangements it is evident that only the subjective aspect is regarded. The natural inference from this principle is, that no law can be valid without the approval of all. This difficulty is attempted to be obviated by the decision that the minority must yield to the. majority; the majority therefore bear the sway. But long ago J. J. Rousseau remarked, that in that case there would be no longer freedom, for the will of the minority would cease to be respected. At the Polish Diet each single member had to give his consent before any political step could be taken; and this kind of freedom it was that ruined the State. Besides, it is a dangerous and false prejudice, that the People alone have reason and insight, and know what justice is; for each popular faction may represent itself as the People, and the question as to what constitutes the State is one of advanced science, and not of popular decision.
If the principle of regard for the individual will is recognised as the only basis of political liberty, viz., that nothing should be done by or for the State to which all the members of the body politic have not given their sanction, we have, properly speaking, no constitution. The only arrangement that would be necessary, would be, first, a centre having no will of its own but which should take into consideration what appeared to be the necessities of the State; and, secondly, a contrivance for calling the members of the State together, for taking the votes, and for performing the arithmetical operations of reckoning and comparing the number of votes for the different propositions, and thereby deciding upon them. The State is an abstraction, having even its generic existence in its citizens; but it is an actuality, and its simply generic existence must embody itself in individual will and activity. The want of government and political administration in general is felt; this necessitates the selection and separation from the rest of those who have to take the helm in political affairs, to decide, concerning them, and to give orders to other citizens, with a view to the execution of their plans. If, e.g., even the people in a Democracy resolve on a war, a general must head the army. It is only by a Constitution that the abstraction − the State − attains life and reality; but this involves the distinction between those who command and those who obey. − Yet obedience seems inconsistent with liberty, and those who command appear to do the very opposite of that which the fundamental idea of the State, viz. that of Freedom, requires.
Part III: The Roman world: Distinction between the Roman, Persian and Greek Principle, section 2: Rome from the Second Punic War to the Emperors
Forty senators and six hundred knights were sacrificed to his ambition and lust of power.
Mithridates was indeed defeated, but not overcome, and was able to begin the war anew. At the same time, Sertorius, a banished Roman, arose in revolt in Spain, carried on a contest there for eight years, and perished only through treachery. The war against Mithridates was terminated by Pompey; the King of Pontus killed himself when his resources were exhausted. The Servile War in Italy is a contemporaneous event. A great number of gladiators and mountaineers had formed a union under Spartacus, but were vanquished by Crassus. To this confusion was added the universal prevalence of piracy, which Pompey rapidly reduced by a large armament.
We thus see the most terrible and dangerous powers arising against Rome; yet the military force of this state is victorious over all. Great individuals now appear on the stage as during the times of the fall of Greece. The biographies of Plutarch are here also of the deepest interest. It was from the disruption of the state, which had no longer any consistency or firmness in itself, that these colossal individualities arose, instinctively impelled to restore that political unity which was no longer to be found in men's dispositions. It is their misfortune that they cannot maintain a pure morality, for their course of action contravenes things as they are, and is a series of transgressions. Even the noblest—the Gracchi—were not merely the victims of injustice and violence from without, but were themselves involved in the corruption and wrong that universally prevailed. But that which these individuals purpose and accomplish, has on its side the higher sanction of the World-Spirit, and must eventually triumph. The idea of an organization for the vast empire being altogether absent, the senate could not assert the authority of government. The sovereignty was made dependent on the people—that people which was now a mere mob, and was obliged to be supported by corn from the Roman provinces. We should refer to Cicero to see how all affairs of state were decided in riotous fashion, and with arms in hand, by the wealth and power of the grandees on the one side, and by a troop of rabble on the other. The Roman citizens attach themselves to individuals who flatter them, and who then become prominent in factions, in order to make themselves masters of Rome. Thus we see in Pompey and Caesar the two foci of Rome's splendor coming into hostile opposition: on the one side, Pompey with the Senate, and therefore apparently the defender of the Republic—on the other, Caesar with his legions and a superiority of genius. This contest between the two most powerful individualities could not be decided at Rome in the Forum. Caesar made himself master in succession, of Italy, Spain, and Greece, utterly routed his enemy at Pharsalus, forty-eight years before Christ, made himself sure of Asia, and so returned victor to Rome.
Part IV: The German world: The principle of spiritual freedom, section 3: The modern time
Number 3: The Éclaircissement and revolution, 1st. The course which the revolution in France took
(2) The form of freedom, involving the consciousness of his activity on the part of the individual
But the agency which gives the laws practical effect is the government generally. Government is primarily the formal execution of the laws and the maintenance of their authority: in respect to foreign relations it prosecutes the interest of the State; that is, it assists the independence of the nation as an individuality against other nations; lastly, it has to provide for the internal weal of the State and all its classes—what is called administration: for it is not enough that the citizen is allowed to pursue a trade or calling, it must also be a source of gain to him; it is not enough that men are permitted to use their powers, they must also find an opportunity of applying them to purpose. Thus the State involves a body of abstract principles and a practical application of them. This application must be the work of a subjective will, a will which resolves and decides. Legislation itself—the invention and positive enactment of these statutory arrangements, is an application of such general principles. The next step, then, consists in [specific] determination and execution. Here then the question presents itself: what is the decisive will to be? The ultimate decision is the prerogative of the monarch: but if the State is based on Liberty, the many wills of individuals also desire to have a share in political decisions. But the many are all; and it seems but a poor expedient, rather a monstrous in consistency, to allow only a few to take part in those decisions, since each wishes that his volition should have a share in determining what is to be law for him. The Few assume to be the deputies, but they are often only the despoilers of the many. Nor is the sway of the Majority over the Minority a less palpable inconsistency.
(3) The individual self-recognition in such acts
This collision of subjective wills leads therefore to the consideration of a third point, that of disposition—an ex animo acquiescence in the laws; not the mere customary observance of them, but the cordial recognition of laws and the Constitution as in principle fixed and immutable, and of the supreme obligation of individuals to subject their particular wills to them.
Three short and one long excerpt (with section breaks) from Alexis De Tocqueville, Democracy in America trans. by Henry Reeve, 19th century
Chapter 12: Political associations in the United States [excerpt]
Daily use which the Anglo-Americans make of the right of association—Three kinds of political associations—In what manner the Americans apply the representative system to associations—Dangers resulting to the State—Great Convention of 1831 relative to the Tariff—Legislative character of this Convention—Why the unlimited exercise of the right of association is less dangerous in the United States than elsewhere—Why it may be looked upon as necessary—Utility of associations in a democratic people.
At the present time the liberty of association is become a necessary guarantee against the tyranny of the majority. In the United States, as soon as a party is become preponderant, all public authority passes under its control; its private supporters occupy all the places, and have all the force of the administration at their disposal. As the most distinguished partisans of the other side of the question are unable to surmount the obstacles which exclude them from power, they require some means of establishing themselves upon their own basis, and of opposing the moral authority of the minority to the physical power which domineers over it. Thus a dangerous expedient is used to obviate a still more formidable danger.
The omnipotence of the majority appears to me to present such extreme perils to the American Republics that the dangerous measure which is used to repress it seems to be more advantageous than prejudicial. And here I am about to advance a proposition which may remind the reader of what I said before in speaking of municipal freedom: There are no countries in which associations are more needed, to prevent the despotism of faction or the arbitrary power of a prince, than those which are democratically constituted. In aristocratic nations the body of the nobles and the more opulent part of the community are in themselves natural associations, which act as checks upon the abuses of power. In countries in which these associations do not exist, if private individuals are unable to create an artificial and a temporary substitute for them, I can imagine no permanent protection against the most galling tyranny; and a great people may be oppressed by a small faction, or by a single individual, with impunity.
The meeting of a great political Convention (for there are Conventions of all kinds), which may frequently become a necessary measure, is always a serious occurrence, even in America, and one which is never looked forward to, by the judicious friends of the country, without alarm. This was very perceptible in the Convention of 1831, at which the exertions of all the most distinguished members of the Assembly tended to moderate its language, and to restrain the subjects which it treated within certain limits. It is probable, in fact, that the Convention of 1831 exercised a very great influence upon the minds of the malcontents, and prepared them for the open revolt against the commercial laws of the Union which took place in 1832.
It cannot be denied that the unrestrained liberty of association for political purposes is the privilege which a people is longest in learning how to exercise. If it does not throw the nation into anarchy, it perpetually augments the chances of that calamity. On one point, however, this perilous liberty offers a security against dangers of another kind; in countries where associations are free, secret societies are unknown. In America there are numerous factions, but no conspiracies.
Different ways in which the right of association is understood in Europe and in the United States—Different use which is made of it.
The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow-creatures, and of acting in common with them. I am therefore led to conclude that the right of association is almost as inalienable as the right of personal liberty. No legislator can attack it without impairing the very foundations of society. Nevertheless, if the liberty of association is a fruitful source of advantages and prosperity to some nations, it may be perverted or carried to excess by others, and the element of life may be changed into an element of destruction. A comparison of the different methods which associations pursue in those countries in which they are managed with discretion, as well as in those where liberty degenerates into license, may perhaps be thought useful both to governments and to parties.
The greater part of Europeans look upon an association as a weapon which is to be hastily fashioned, and immediately tried in the conflict. A society is formed for discussion, but the idea of impending action prevails in the minds of those who constitute it: it is, in fact, an army; and the time given to parley serves to reckon up the strength and to animate the courage of the host, after which they direct their march against the enemy. Resources which lie within the bounds of the law may suggest themselves to the persons who compose it as means, but never as the only means, of success.
Such, however, is not the manner in which the right of association is understood in the United States. In America the citizens who form the minority associate, in order, in the first place, to show their numerical strength, and so to diminish the moral authority of the majority; and, in the second place, to stimulate competition, and to discover those arguments which are most fitted to act upon the majority; for they always entertain hopes of drawing over their opponents to their own side, and of afterwards disposing of the supreme power in their name. Political associations in the United States are therefore peaceable in their intentions, and strictly legal in the means which they employ; and they assert with perfect truth that they only aim at success by lawful expedients.
The difference which exists between the Americans and ourselves depends on several causes. In Europe there are numerous parties so diametrically opposed to the majority that they can never hope to acquire its support, and at the same time they think that they are sufficiently strong in themselves to struggle and to defend their cause. When a party of this kind forms an association, its object is, not to conquer, but to fight. In America the individuals who hold opinions very much opposed to those of the majority are no sort of impediment to its power, and all other parties hope to win it over to their own principles in the end. The exercise of the right of association becomes dangerous in proportion to the impossibility which excludes great parties from acquiring the majority. In a country like the United States, in which the differences of opinion are mere differences of hue, the right of association may remain unrestrained without evil consequences. The inexperience of many of the European nations in the enjoyment of liberty leads them only to look upon the liberty of association as a right of attacking the Government. The first notion which presents itself to a party, as well as to an individual, when it has acquired a consciousness of its own strength, is that of violence: the notion of persuasion arises at a later period and is only derived from experience. The English, who are divided into parties which differ most essentially from each other, rarely abuse the right of association, because they have long been accustomed to exercise it. In France the passion for war is so intense that there is no undertaking so mad, or so injurious to the welfare of the State, that a man does not consider himself honored in defending it, at the risk of his life.
But perhaps the most powerful of the causes which tend to mitigate the excesses of political association in the United States is Universal Suffrage. In countries in which universal suffrage exists the majority is never doubtful, because neither party can pretend to represent that portion of the community which has not voted. The associations which are formed are aware, as well as the nation at large, that they do not represent the majority: this is, indeed, a condition inseparable from their existence; for if they did represent the preponderating power, they would change the law instead of soliciting its reform. The consequence of this is that the moral influence of the Government which they attack is very much increased, and their own power is very much enfeebled.
Chapter 15: Unlimited power of majority, and its consequences—Part II [whole semi-chapter]
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 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 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 asserted 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. *c 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.
[Footnote c: 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 towards another nation, it cannot be denied that a party may do the same towards another party.]
I do not think that 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 nobles 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 pass 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 retard 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 God 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-predominant 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 institutions.
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 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 constitutes the majority; if to the legislature, it represents the majority, and implicitly obeys its injunctions; if to the executive power, it is appointed by the majority, and remains a passive 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. *d
[Footnote d: 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 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 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 county?"
"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 an 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?"]
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 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 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, 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 magistrate. 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 passive 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 co-operation, 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 surpasses 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; as long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably pronounced, a submissive silence is observed, and the friends, as well as the opponents, of the measure unite in assenting 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 constitutional 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 institutions exist, organized like those of the United States, there is but one sole authority, one single element of strength and of success, with nothing beyond it.
In America the majority raises very formidable barriers to the liberty of opinion: within these barriers an author may write whatever he pleases, but he will repent it if he ever step beyond them. Not that he is exposed to the terrors of an auto-da-fe, but he is tormented by the slights and persecutions of daily obloquy. His political career is closed forever, since he has offended the only authority which is able to promote his success. Every sort of compensation, even that of celebrity, is refused to him. Before he published his opinions he imagined that he held them in common with many others; but no sooner has he declared them openly than he is loudly censured by his overbearing opponents, whilst those who think without having the courage to speak, like him, abandon him in silence. He yields at length, oppressed by the daily efforts he has been making, and he subsides into silence, as if he was tormented by remorse for having spoken the truth.
Fetters and headsmen were the coarse instruments which tyranny formerly employed; but the civilization of our age has refined the arts of despotism which seemed, however, to have been sufficiently perfected before. The excesses of monarchical power had devised a variety of physical means of oppression: the democratic republics of the present day have rendered it as entirely an affair of the mind as that will which it is intended to coerce. Under the absolute sway of an individual despot the body was attacked in order to subdue the soul, and the soul escaped the blows which were directed against it and rose superior to the attempt; but such is not the course adopted by tyranny in democratic republics; there the body is left free, and the soul is enslaved. The sovereign can no longer say, "You shall think as I do on pain of death;" but he says, "You are free to think differently from me, and to retain your life, your property, and all that you possess; but if such be your determination, you are henceforth an alien 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 suffrages, and they will affect to scorn you if you solicit 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 those who are most persuaded of your innocence will abandon you too, lest they should be shunned in their turn. Go in peace! I have given you your life, but it is an existence in comparably worse than death."
Monarchical institutions have thrown an odium upon despotism; let us beware lest democratic republics should restore oppression, and should render it less odious and less 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 deride the follies of the times; Labruyere inhabited the palace of Louis XIV when he composed his chapter upon the Great, and Moliere criticised the courtiers in the very pieces which 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 which has any foundation in truth renders it indignant; from the style of its language to the more solid virtues of its character, everything must be made the subject of encomium. No writer, whatever be his eminence, can escape from this tribute of adulation to his fellow-citizens. The majority lives in the perpetual practice of self-applause, and there are certain truths which the Americans can only learn from strangers or from experience.
If great writers have not at present existed in America, the reason is very simply 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 the wish of publishing them. Unbelievers are to be met with in America, but, to say the truth, there is no public organ of infidelity. Attempts have been made by some governments to protect the morality of nations by prohibiting licentious books. In the United States no one is punished for this sort of works, but no one is induced to write them; not because all the citizens are immaculate in their manners, but because the majority of the community is decent and orderly.
In these cases the advantages derived from the exercise of this power are unquestionable, and I am simply discussing the nature of the power itself. This irresistible authority is a constant fact, and its judicious exercise is an accidental occurrence.
Effects of the tyranny of the majority upon the national character of the Americans
Effects of the tyranny of the majority more sensibly felt hitherto in the manners than in the conduct of society—They check the development of leading characters—Democratic republics organized like the United States bring the practice of courting favor within the reach of the many—Proofs of this spirit in the United States—Why there is more patriotism in the people than in those who govern in its name.
The tendencies which I have just alluded to are as yet very slightly perceptible in political society, but they already begin to exercise an unfavorable influence upon the national character of the Americans. I am inclined to attribute the singular paucity of distinguished political characters to the ever-increasing activity of the 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 took a full part in the general agitation of mind common at that period, and they attained a high degree of personal fame, which was reflected back upon the nation, but which 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 with pride, thus exhibiting a sort of independence in the very act of submission. These peoples 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 necessary case of a weak person, the other befits the temper of a lackey.
In free countries, where everyone is more or less called upon to give his opinion in the affairs of state; in democratic republics, where public life is incessantly commingled with domestic affairs, where the sovereign authority is accessible on every side, and where its attention can almost always be attracted by vociferation, more persons are to be met with who speculate upon its foibles and live at the cost of its passions than in absolute monarchies. Not because men are naturally worse in these States than elsewhere, but the temptation is stronger, and of easier access at the same time. The result is a far more extensive debasement of the characters of citizens.
Democratic republics extend the practice of currying favor with the many, and they introduce it into a greater number of classes at once: this is one of the most serious reproaches that can be addressed to them. In democratic States organized on the principles of the American republics, this is more especially the case, where the authority of the majority is so absolute and so irresistible that a man must give up his rights as a citizen, and almost abjure his quality as a human being, if he intends to stray from the track which it lays down.
In that immense crowd which throngs the avenues to power in the United States I found very few men who displayed any of that manly candor and that masculine independence of opinion which frequently distinguished the Americans in former times, and which constitutes the leading feature in distinguished characters, wheresoever 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 correspond in their manner of judging. A stranger does, indeed, sometimes meet with Americans who dissent from these rigorous formularies; 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 which impair the national character, and to point out such remedies as it might be possible to apply; but no one is there to hear these things besides 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 continue to hold a different language in public.
If ever these lines are 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 very many of them will acquit me at the bottom of their conscience.
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 forever 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 is 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 witnessed the anarchy of democratic 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 force or 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 *e 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. *f
[Footnote e: 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.]
[Footnote f: 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.]
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 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 has also thus expressed himself in a letter to Madison: *g "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.
[Footnote g: March 15, 1789.]
Chapter 16: Causes mitigating tyranny in the United States [entire chapter]—Part I
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 could penetrate into the privacy 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 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 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 may therefore be looked upon as concealed break-waters, 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 monarchical States of Europe, or indeed than any which could be found on this side of 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 lawyers—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 entrusted 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 were 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 connection 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 an 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 could 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 will 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 to content and to employ than it can find places; 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 the 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 take upon 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 at the shadow. He would act more wisely in introducing men connected with the law into the government; and if he entrusted 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 the decisions of their forefathers. In the mind of an English or American lawyer a taste and a reverence for what is old is 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 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; whilst 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 station which lawyers occupy in England and America exercises no less an influence upon their habits and their 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 of 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 taste and the ideas of the aristocratic circles in which they move with the aristocratic interests of their profession.
And indeed the lawyer-like character which 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 be necessary to modify them in any respect, or to adapt them the changes which time operates in society, recourse is had to the most inconceivable contrivances 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 all intention of innovation, and they had rather resort to absurd expedients than plead guilty to so great a crime. This spirit appertains more especially to the English lawyers; they seem indifferent to the real meaning of what they treat, and they direct all their attention to the letter, seeming inclined to infringe the rules of common sense and of humanity rather than to swerve one title from the law. The English legislation may be compared to the stock of an old tree, upon which lawyers have engrafted the most various shoots, with the hope that, although their fruits may differ, their foliage at least will be confounded with the venerable trunk which supports them all.
In America there are no nobles or men of letters, and the people is apt to mistrust the wealthy; lawyers consequently form the highest political class, and the most cultivated circle 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 composed of the rich, who are united together 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 shall we 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 perceive how eminently the legal profession is qualified by its powers, and even by its defects, to neutralize the vices which are inherent in popular government. When the American people is intoxicated by passion, or carried away by the impetuosity of its ideas, it is checked and stopped by the almost invisible influence of its legal counsellors, who secretly oppose their aristocratic propensities to its democratic instincts, their superstitious attachment to what is antique 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 most 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 which he has contracted in the study of legislation, derives an additional love of stability from his own inalienable functions. His legal attainments have already raised him to a distinguished rank amongst his fellow-citizens; his political power completes the distinction of his station, and gives him the inclinations natural to privileged classes.
Armed with the power of declaring the laws to be unconstitutional, *a the American magistrate perpetually interferes in political affairs. He cannot force the people to make laws, but at least he can oblige it not to disobey its own enactments; or to act inconsistently with its own principles. 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 the judges from their station. By some other constitutions the members of the tribunals are elected, 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 the attack which is made upon the judicial power has affected the democratic republic itself.
[Footnote a: See chapter VI. on the "Judicial Power in the United States."]
It must not, however, be supposed that the legal spirit of which I have been speaking has been confined, in the United States, to the courts of justice; it extends far beyond them. As the lawyers constitute the only enlightened class which the people does not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative assemblies, and they conduct the administration; they consequently exercise a powerful influence upon the formation of the law, and upon its execution. The lawyers are, however, obliged to yield to the current of public opinion, which is too strong for them to resist it, but it is easy to find indications of what their conduct would be if they were free to act as they chose. The Americans, who have made such copious innovations in their political legislation, have introduced very sparing alterations in their civil laws, and that with great difficulty, although those laws are frequently repugnant to their social condition. The reason of this is, that in matters of civil law the majority is obliged to defer to the authority of the legal profession, and that the American lawyers are disinclined to innovate when they are left to their own choice.
It is curious for a Frenchman, accustomed to a very different state of things, to hear the perpetual complaints which are made in the United States against the stationary propensities of legal men, and their prejudices in favor of existing institutions.
The influence of the legal habits which are common in America extends beyond the limits I have just pointed out. Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate; hence all parties are obliged to borrow the ideas, and even the language, usual in judicial proceedings in their daily controversies. As most public men are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the affairs of the country. The jury extends this habitude 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 the whole people contracts the habits and the tastes of the 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 to all the movements of the social body; but this party extends over the whole community, and it penetrates into all classes of society; it acts upon the country imperceptibly, but it finally fashions it to suit its purposes.
Chapter 16: Causes mitigating tyranny in the United States [entire chapter]—Part II
Trial By Jury In The United States Considered As A Political Institution
Trial by jury, which is one of the instruments of the sovereignty of the people, deserves to be compared with the other laws which establish that sovereignty—Composition of the jury in the United States—Effect of trial by jury upon the national character—It educates the people—It tends to establish the authority of the magistrates and to extend a knowledge of law among the people.
Since I have been led by my subject to recur to the administration of justice in the United States, I will not pass over this point without adverting 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 entered into my present purpose to inquire how far trial by jury (more especially in civil cases) contributes to insure the best administration of justice, I admit that its utility might be contested. As the jury was first introduced at a time when society was in an uncivilized state, and when courts of justice were merely called upon to decide on the evidence of facts, 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 the enlightened and intellectual character of the age. *b
[Footnote b: The investigation of trial by jury as a judicial institution, and the appreciation of its effects in the United States, together with the advantages the Americans have derived from it, would suffice to form a book, and a book upon a very useful and curious subject. The State of Louisiana would in particular afford the curious phenomenon of a French and English legislation, as well as a French and English population, which are gradually combining with each other. See the "Digeste des Lois de la Louisiane," in two volumes; and the "Traite sur les Regles des Actions civiles," printed in French and English at New Orleans in 1830.]
My present object is to consider the jury as a political institution, and any other course would divert me from my subject. Of trial by jury, considered as a judicial institution, I shall here say but very few words. When the English adopted trial by jury they were a semi-barbarous people; they are become, in course of time, one of the most enlightened nations of the earth; and their attachment to this institution seems to have increased with their increasing cultivation. They soon spread beyond their insular boundaries to every corner 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 wherever the English have been they have boasted of the privilege of trial by jury. *c They have established it, or hastened to re-establish it, in all their settlements. A judicial institution which obtains the suffrages of a great people for so long a series of ages, which is zealously renewed at every epoch of civilization, in all the climates of the earth and under every form of human government, cannot be contrary to the spirit of justice. *d
[Footnote c: All the English and American jurists are unanimous upon this head. Mr. Story, judge of the Supreme Court of the United States, speaks, in his "Treatise on the Federal Constitution," of the advantages of trial by jury in civil cases:—"The inestimable privilege of a trial by jury in civil cases—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., chap. xxxviii.)]
[Footnote d: If it were our province to point out the utility of the jury as a judicial institution in this place, much might be said, and the following arguments might be brought forward amongst others:—
By introducing the jury into the business of the courts you are enabled to diminish the number of judges, which is a very great advantage. When judges are very numerous, death is perpetually thinning the ranks of the judicial functionaries, and laying places vacant for newcomers. The ambition of the magistrates is therefore continually excited, and they are naturally made dependent upon the will of the majority, or the individual who fills up the vacant appointments; the officers of the court then rise like 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 of performing their important duties, for a great magistrate is a man of no common powers; and I am inclined to believe that a half-enlightened tribunal is the worst of all instruments for attaining those objects which it is the purpose of courts of justice to accomplish. For my own part, I had rather submit the decision of a case to ignorant jurors directed by a skilful judge than to judges a majority of whom are imperfectly acquainted with jurisprudence and with the laws.]
I turn, however, from this part of the subject. To look upon the jury as a mere judicial institution is to confine our attention to a very narrow view of it; for however great its influence may be upon the decisions of the law courts, that influence is very subordinate to the powerful effects which it produces on the destinies of the community 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 indiscriminately, and invested with a temporary right of judging. Trial by jury, as applied to the repression of crime, appears to me to introduce an eminently republican element into the government upon the following grounds:—
The institution of the jury may be aristocratic or democratic, according to the class of society from which the jurors are selected; but it always preserves its republican character, inasmuch as it places the real direction of society in the hands of the governed, or of a portion of the governed, instead of leaving it under the authority of the Government. Force is never more than a transient element of success; and after force comes the notion of right. A government which should only be able to crush its enemies upon a field of battle would very soon be destroyed. The true sanction of political laws is to be found in penal legislation, and if that sanction be wanting the law will sooner or later lose its cogency. He who punishes infractions of the law 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 judicial authority. The institution of the jury consequently invests the people, or that class of citizens, with the direction of society. *e
[Footnote e: An important remark must, however, be made. Trial by jury does unquestionably invest the people with a general control over the actions of 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 offences 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.]
In England the jury is returned from the aristocratic portion of the nation; *f the aristocracy makes the laws, applies the laws, and punishes all infractions of the laws; 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 qualified to be an elector, a juror, and is eligible to office. *g The system of the jury, 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. These institutions 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 monarchs of the House of Tudor sent to prison jurors who refused to convict, and Napoleon caused them to be returned by his agents.
[Footnote f: [This may be true to some extent of special juries, but not of common juries. The author seems not to have been aware that the qualifications of jurors in England vary exceedingly.]]
[Footnote g: See Appendix, Q.]
However clear most of these truths may seem to be, they do not command universal assent, and in France, at least, the institution of trial by jury is still very 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 to be the least part of the subject. The jury is pre-eminently a political institution; it must 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 Houses of Parliament constitute that part of the nation which makes the laws; and in order that society may be governed with consistency and uniformity, 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, and 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 manners of a nation; manners are the only durable and resisting power in a people. When the jury is reserved for criminal offences, the people only witnesses its occasional action in certain particular cases; the ordinary course of life goes on without its interference, and it is considered as an instrument, but not as the only instrument, of obtaining justice. This is true a fortiori when the jury is only applied to certain criminal causes.
When, on the contrary, the influence of the jury is extended to civil causes, its application is constantly palpable; 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 of man. If it had been as easy to remove the jury from the manners as from the laws of England, it would have perished under Henry VIII, and Elizabeth, and the civil jury did in reality, at that period, save the liberties of the country. 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 jury in civil cases, 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 is reduced to 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, whilst the number of persons who have reason to apprehend a criminal prosecution is small, every one is liable to have a civil action brought against him. The jury teaches every man not to recoil before the responsibility of his own actions, and impresses him with that manly confidence without which political virtue cannot 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 the Government. By obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society.
The jury contributes most powerfully to form the judgement and to increase the natural intelligence of a people, and this is, in my opinion, its greatest advantage. It may be regarded as a gratuitous public school ever open, in which every juror learns to exercise his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws of his country, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even by 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 which they have made of the jury in civil causes. I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide the litigation; 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 hitherto said applies to all nations, but the remark I am now about to make is peculiar to the Americans and to democratic peoples. I have already observed that in democracies the members of the legal profession and the magistrates constitute the only aristocratic body which can check the irregularities of the people. This aristocracy is invested with no physical power, but 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 armed against a single individual, the jury is apt to look upon the judge as the passive instrument of social power, and to mistrust his advice. Moreover, criminal causes are entirely founded upon the evidence of facts which common sense can readily appreciate; upon this ground the judge and the jury are equal. Such, however, is not the case 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 their intelligence is completely under the control of his learning. It is the judge who sums up the various arguments with which their memory has been wearied out, and who guides them through the devious course of the proceedings; he points their attention to the exact question of fact which they are called upon to solve, and he puts the answer to the question of law into their mouths. His influence upon their verdict 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 sanctions the decision of the judge, they by the authority of society which they represent, and he by that of reason and of law. *h
[Footnote h: See Appendix, R.]
In England and in America the judges exercise an influence upon criminal trials which the French judges have never possessed. The reason of this difference may easily be discovered; the English and American magistrates establish their authority in civil causes, and only transfer it afterwards to tribunals of another kind, where that authority was not acquired. In some cases (and they are frequently the most important ones) the American judges have the right of deciding causes alone. *i Upon these occasions they are accidentally placed in the position which the French judges habitually occupy, but they are invested with far more power than the latter; they are still surrounded by the reminiscence of the jury, and their judgment has almost as much authority as the voice of the community at large, represented by that institution. Their influence extends beyond the limits of the courts; in the recreations of private life as well as in the turmoil of public business, abroad 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 the characters of the individuals who took a part in his judgment.
[Footnote i: The Federal judges decide upon their own authority almost all the questions most important to the country.]
The jury, then, which seems to restrict the rights of magistracy, does in reality consolidate its power, and in no country are the judges so powerful as there, where the people partakes their privileges. It is more especially by means of the jury in civil causes that the American magistrates imbue all 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 to rule well.
Chapter 2: Of the principal source of belief among democratic nations [excerpt]
In the United States the majority undertakes to supply a multitude of ready-made opinions for the use of individuals, who are thus relieved from the necessity of forming opinions of their own. Everybody there adopts great numbers of theories, on philosophy, morals, and politics, without inquiry, upon public trust; and if we look to it very narrowly, it will be perceived that religion herself holds her sway there, much less as a doctrine of revelation than as a commonly received opinion. The fact that the political laws of the Americans are such that the majority rules the community with sovereign sway, materially increases the power which that majority naturally exercises over the mind. For nothing is more customary in man than to recognize superior wisdom in the person of his oppressor. This political omnipotence of the majority in the United States doubtless augments the influence which public opinion would obtain without it over the mind of each member of the community; but the foundations of that influence do not rest upon it. They must be sought for in the principle of equality itself, not in the more or less popular institutions which men living under that condition may give themselves. The intellectual dominion of the greater number would probably be less absolute amongst a democratic people governed by a king than in the sphere of a pure democracy, but it will always be extremely absolute; and by whatever political laws men are governed in the ages of equality, it may be foreseen that faith in public opinion will become a species of religion there, and the majority its ministering prophet.
Thus intellectual authority will be different, but it will not be diminished; and far from thinking that it will disappear, I augur that it may readily acquire too much preponderance, and confine the action of private judgment within narrower limits than are suited either to the greatness or the happiness of the human race. In the principle of equality I very clearly discern two tendencies; the one leading the mind of every man to untried thoughts, the other inclined to prohibit him from thinking at all. And I perceive how, under the dominion of certain laws, democracy would extinguish that liberty of the mind to which a democratic social condition is favorable; so that, after having broken all the bondage once imposed on it by ranks or by men, the human mind would be closely fettered to the general will of the greatest number.
If the absolute power of the majority were to be substituted by democratic nations, for all the different powers which checked or retarded overmuch the energy of individual minds, the evil would only have changed its symptoms. Men would not have found the means of independent life; they would simply have invented (no easy task) a new dress for servitude. There is—and I cannot repeat it too often—there is in this matter for profound reflection for those who look on freedom as a holy thing, and who hate not only the despot, but despotism. For myself, when I feel the hand of power lie heavy on my brow, I care but little to know who oppresses me; and I am not the more disposed to pass beneath the yoke, because it is held out to me by the arms of a million of men.
Chapter 21: Why great revolutions will become more rare [excerpt]
In aristocracies men have often much greatness and strength of their own: when they find themselves at variance with the greater number of their fellow-countrymen, they withdraw to their own circle, where they support and console themselves. Such is not the case in a democratic country; there public favor seems as necessary as the air we breathe, and to live at variance with the multitude is, as it were, not to live. The multitude requires no laws to coerce those who think not like itself: public disapprobation is enough; a sense of their loneliness and impotence overtakes them and drives them to despair.
Whenever social conditions are equal, public opinion presses with enormous weight upon the mind of each individual; it surrounds, directs, and oppresses him; and this arises from the very constitution of society, much more than from its political laws. As men grow more alike, each man feels himself weaker in regard to all the rest; as he discerns nothing by which he is considerably raised above them, or distinguished from them, he mistrusts himself as soon as they assail him. Not only does he mistrust his strength, but he even doubts of his right; and he is very near acknowledging that he is in the wrong, when the greater number of his countrymen assert that he is so. The majority do not need to constrain him—they convince him. In whatever way then the powers of a democratic community may be organized and balanced, it will always be extremely difficult to believe what the bulk of the people reject, or to profess what they condemn.
This circumstance is extraordinarily favorable to the stability of opinions. When an opinion has taken root amongst a democratic people, and established itself in the minds of the bulk of the community, it afterwards subsists by itself and is maintained without effort, because no one attacks it. Those who at first rejected it as false, ultimately receive it as the general impression; and those who still dispute it in their hearts, conceal their dissent; they are careful not to engage in a dangerous and useless conflict. It is true, that when the majority of a democratic people change their opinions, they may suddenly and arbitrarily effect strange revolutions in men's minds; but their opinions do not change without much difficulty, and it is almost as difficult to show that they are changed.
Time, events, or the unaided individual action of the mind, will sometimes undermine or destroy an opinion, without any outward sign of the change. It has not been openly assailed, no conspiracy has been formed to make war on it, but its followers one by one noiselessly secede—day by day a few of them abandon it, until last it is only professed by a minority. In this state it will still continue to prevail. As its enemies remain mute, or only interchange their thoughts by stealth, they are themselves unaware for a long period that a great revolution has actually been effected; and in this state of uncertainly they take no steps—they observe each other and are silent. The majority have ceased to believe what they believed before; but they still affect to believe, and this empty phantom of public opinion in strong enough to chill innovators, and to keep them silent and at respectful distance. We live at a time which has witnessed the most rapid changes of opinion in the minds of men; nevertheless it may be that the leading opinions of society will ere long be more settled than they have been for several centuries in our history: that time is not yet come, but it may perhaps be approaching. As I examine more closely the natural wants and tendencies of democratic nations, I grow persuaded that if ever social equality is generally and permanently established in the world, great intellectual and political revolutions will become more difficult and less frequent than is supposed. Because the men of democracies appear always excited, uncertain, eager, changeable in their wills and in their positions, it is imagined that they are suddenly to abrogate their laws, to adopt new opinions, and to assume new manners. But if the principle of equality predisposes men to change, it also suggests to them certain interests and tastes which cannot be satisfied without a settled order of things; equality urges them on, but at the same time it holds them back; it spurs them, but fastens them to earth;—it kindles their desires, but limits their powers. This, however, is not perceived at first; the passions which tend to sever the citizens of a democracy are obvious enough; but the hidden force which restrains and unites them is not discernible at a glance.
Five short excerpts from John Stuart Mill's On Liberty and Representative Government
On Liberty (1859)
Chap. 1: Introductory
A time, however, came, in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves. It appeared to them much better that the various magistrates of the State should be their tenants or delegates, revocable at their pleasure. In that way alone, it seemed, could they have complete security that the powers of government would never be abused to their disadvantage. By degrees, this new demand for elective and temporary rulers became the prominent object of the exertions of the popular party, wherever any such party existed; and superseded, to a considerable extent, the previous efforts to limit the power of rulers. As the struggle proceeded for making the ruling power emanate from the periodical choice of the ruled, some persons began to think that too much importance had been attached to the limitation of the power itself. That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. There was no fear of its tyrannising over itself. Let the rulers be effectually responsible to it, promptly removable by it, and it could afford to trust them with power of which it could itself dictate the use to be made. Their power was but the nation's own power, concentrated, and in a form convenient for exercise. This mode of thought, or rather perhaps of feeling, was common among the last generation of European liberalism, in the Continental section of which it still apparently predominates. Those who admit any limit to what a government may do, except in the case of such governments as they think ought not to exist, stand out as brilliant exceptions among the political thinkers of the Continent. A similar tone of sentiment might by this time have been prevalent in our own country, if the circumstances which for a time encouraged it, had continued unaltered.
But, in political and philosophical theories, as well as in persons, success discloses faults and infirmities which failure might have concealed from observation. The notion, that the people have no need to limit their power over themselves, might seem axiomatic, when popular government was a thing only dreamed about, or read of as having existed at some distant period of the past. Neither was that notion necessarily disturbed by such temporary aberrations as those of the French Revolution, the worst of which were the work of a usurping few, and which, in any case, belonged, not to the permanent working of popular institutions, but to a sudden and convulsive outbreak against monarchical and aristocratic despotism. In time, however, a democratic republic came to occupy a large portion of the earth's surface, and made itself felt as one of the most powerful members of the community of nations; and elective and responsible government became subject to the observations and criticisms which wait upon a great existing fact. It was now perceived that such phrases as "self-government," and "the power of the people over themselves," do not express the true state of the case. The "people" who exercise the power are not always the same people with those over whom it is exercised; and the "self-government" spoken of is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means, the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority: the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power. The limitation, therefore, of the power of government over individuals, loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democracy is adverse, has had no difficulty in establishing itself; and in political speculations "the tyranny of the majority" is now generally included among the evils against which society requires to be on its guard.
Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannising are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.
But though this proposition is not likely to be contested in general terms, the practical question, where to place the limit—how to make the fitting adjustment between individual independence and social control—is a subject on which nearly everything remains to be done. All that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. What these rules should be, is the principal question in human affairs; but if we except a few of the most obvious cases, it is one of those which least progress has been made in resolving. No two ages, and scarcely any two countries, have decided it alike; and the decision of one age or country is a wonder to another. Yet the people of any given age and country no more suspect any difficulty in it, than if it were a subject on which mankind had always been agreed. The rules which obtain among themselves appear to them self-evident and self-justifying. This all but universal illusion is one of the examples of the magical influence of custom, which is not only, as the proverb says, a second nature, but is continually mistaken for the first. The effect of custom, in preventing any misgiving respecting the rules of conduct which mankind impose on one another, is all the more complete because the subject is one on which it is not generally considered necessary that reasons should be given, either by one person to others, or by each to himself. People are accustomed to believe, and have been encouraged in the belief by some who aspire to the character of philosophers, that their feelings, on subjects of this nature, are better than reasons, and render reasons unnecessary. The practical principle which guides them to their opinions on the regulation of human conduct, is the feeling in each person's mind that everybody should be required to act as he, and those with whom he sympathises, would like them to act. No one, indeed, acknowledges to himself that his standard of judgment is his own liking; but an opinion on a point of conduct, not supported by reasons, can only count as one person's preference; and if the reasons, when given, are a mere appeal to a similar preference felt by other people, it is still only many people's liking instead of one. To an ordinary man, however, his own preference, thus supported, is not only a perfectly satisfactory reason, but the only one he generally has for any of his notions of morality, taste, or propriety, which are not expressly written in his religious creed; and his chief guide in the interpretation even of that. Men's opinions, accordingly, on what is laudable or blamable, are affected by all the multifarious causes which influence their wishes in regard to the conduct of others, and which are as numerous as those which determine their wishes on any other subject. Sometimes their reason—at other times their prejudices or superstitions: often their social affections, not seldom their anti-social ones, their envy or jealousy, their arrogance or contemptuousness: but most commonly, their desires or fears for themselves—their legitimate or illegitimate self-interest. Wherever there is an ascendant class, a large portion of the morality of the country emanates from its class interests, and its feelings of class superiority. The morality between Spartans and Helots, between planters and negroes, between princes and subjects, between nobles and roturiers, between men and women, has been for the most part the creation of these class interests and feelings: and the sentiments thus generated, react in turn upon the moral feelings of the members of the ascendant class, in their relations among themselves. Where, on the other hand, a class, formerly ascendant, has lost its ascendancy, or where its ascendancy is unpopular, the prevailing moral sentiments frequently bear the impress of an impatient dislike of superiority. Another grand determining principle of the rules of conduct, both in act and forbearance, which have been enforced by law or opinion, has been the servility of mankind towards the supposed preferences or aversions of their temporal masters, or of their gods. This servility, though essentially selfish, is not hypocrisy; it gives rise to perfectly genuine sentiments of abhorrence; it made men burn magicians and heretics. Among so many baser influences, the general and obvious interests of society have of course had a share, and a large one, in the direction of the moral sentiments: less, however, as a matter of reason, and on their own account, than as a consequence of the sympathies and antipathies which grew out of them: and sympathies and antipathies which had little or nothing to do with the interests of society, have made themselves felt in the establishment of moralities with quite as great force.
The likings and dislikings of society, or of some powerful portion of it, are thus the main thing which has practically determined the rules laid down for general observance, under the penalties of law or opinion. And in general, those who have been in advance of society in thought and feeling have left this condition of things unassailed in principle, however they may have come into conflict with it in some of its details. They have occupied themselves rather in inquiring what things society ought to like or dislike, than in questioning whether its likings or dislikings should be a law to individuals. They preferred endeavouring to alter the feelings of mankind on the particular points on which they were themselves heretical, rather than make common cause in defence of freedom, with heretics generally. The only case in which the higher ground has been taken on principle and maintained with consistency, by any but an individual here and there, is that of religious belief: a case instructive in many ways, and not least so as forming a most striking instance of the fallibility of what is called the moral sense: for the odium theologicum, in a sincere bigot, is one of the most unequivocal cases of moral feeling. Those who first broke the yoke of what called itself the Universal Church, were in general as little willing to permit difference of religious opinion as that church itself. But when the heat of the conflict was over, without giving a complete victory to any party, and each church or sect was reduced to limit its hopes to retaining possession of the ground it already occupied; minorities, seeing that they had no chance of becoming majorities, were under the necessity of pleading to those whom they could not convert, for permission to differ. It is accordingly on this battle-field, almost solely, that the rights of the individual against society have been asserted on broad grounds of principle, and the claim of society to exercise authority over dissentients, openly controverted. The great writers to whom the world owes what religious liberty it possesses, have mostly asserted freedom of conscience as an indefeasible right, and denied absolutely that a human being is accountable to others for his religious belief. Yet so natural to mankind is intolerance in whatever they really care about, that religious freedom has hardly anywhere been practically realised, except where religious indifference, which dislikes to have its peace disturbed by theological quarrels, has added its weight to the scale. In the minds of almost all religious persons, even in the most tolerant countries, the duty of toleration is admitted with tacit reserves. One person will bear with dissent in matters of church government, but not of dogma; another can tolerate everybody, short of a Papist or a Unitarian; another, every one who believes in revealed religion; a few extend their charity a little further, but stop at the belief in a God and in a future state. Wherever the sentiment of the majority is still genuine and intense, it is found to have abated little of its claim to be obeyed.
In England, from the peculiar circumstances of our political history, though the yoke of opinion is perhaps heavier, that of law is lighter, than in most other countries of Europe; and there is considerable jealousy of direct interference, by the legislative or the executive power, with private conduct; not so much from any just regard for the independence of the individual, as from the still subsisting habit of looking on the government as representing an opposite interest to the public. The majority have not yet learnt to feel the power of the government their power, or its opinions their opinions. When they do so, individual liberty will probably be as much exposed to invasion from the government, as it already is from public opinion. But, as yet, there is a considerable amount of feeling ready to be called forth against any attempt of the law to control individuals in things in which they have not hitherto been accustomed to be controlled by it; and this with very little discrimination as to whether the matter is, or is not, within the legitimate sphere of legal control; insomuch that the feeling, highly salutary on the whole, is perhaps quite as often misplaced as well grounded in the particular instances of its application. There is, in fact, no recognised principle by which the propriety or impropriety of government interference is customarily tested. People decide according to their personal preferences. Some, whenever they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business; while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interests amenable to governmental control. And men range themselves on one or the other side in any particular case, according to this general direction of their sentiments; or according to the degree of interest which they feel in the particular thing which it is proposed that the government should do, or according to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they consistently adhere, as to what things are fit to be done by a government. And it seems to me that in consequence of this absence of rule or principle, one side is at present as often wrong as the other; the interference of government is, with about equal frequency, improperly invoked and improperly condemned.
Chap. 3: Of individuality, as one of the elements of well-being
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If there were nothing new to be done, would human intellect cease to be necessary? Would it be a reason why those who do the old things should forget why they are done, and do them like cattle, not like human beings? There is only too great a tendency in the best beliefs and practices to degenerate into the mechanical; and unless there were a succession of persons whose ever-recurring originality prevents the grounds of those beliefs and practices from becoming merely traditional, such dead matter would not resist the smallest shock from anything really alive, and there would be no reason why civilisation should not die out, as in the Byzantine Empire. Persons of genius, it is true, are, and are always likely to be, a small minority; but in order to have them, it is necessary to preserve the soil in which they grow. Genius can only breathe freely in an atmosphere of freedom. Persons of genius are, ex vi termini, more individual than any other people—less capable, consequently, of fitting themselves, without hurtful compression, into any of the small number of moulds which society provides in order to save its members the trouble of forming their own character. If from timidity they consent to be forced into one of these moulds, and to let all that part of themselves which cannot expand under the pressure remain unexpanded, society will be little the better for their genius. If they are of a strong character, and break their fetters, they become a mark for the society which has not succeeded in reducing them to commonplace, to point at with solemn warning as "wild," "erratic," and the like; much as if one should complain of the Niagara river for not flowing smoothly between its banks like a Dutch canal.
I insist thus emphatically on the importance of genius, and the necessity of allowing it to unfold itself freely both in thought and in practice, being well aware that no one will deny the position in theory, but knowing also that almost every one, in reality, is totally indifferent to it. People think genius a fine thing if it enables a man to write an exciting poem, or paint a picture. But in its true sense, that of originality in thought and action, though no one says that it is not a thing to be admired, nearly all, at heart, think that they can do very well without it. Unhappily this is too natural to be wondered at. Originality is the one thing which unoriginal minds cannot feel the use of. They cannot see what it is to do for them: how should they? If they could see what it would do for them, it would not be originality. The first service which originality has to render them, is that of opening their eyes: which being once fully done, they would have a chance of being themselves original. Meanwhile, recollecting that nothing was ever yet done which some one was not the first to do, and that all good things which exist are the fruits of originality, let them be modest enough to believe that there is something still left for it to accomplish, and assure themselves that they are more in need of originality, the less they are conscious of the want.
In sober truth, whatever homage may be professed, or even paid, to real or supposed mental superiority, the general tendency of things throughout the world is to render mediocrity the ascendant power among mankind. In ancient history, in the middle ages, and in a diminishing degree through the long transition from feudality to the present time, the individual was a power in himself; and if he had either great talents or a high social position, he was a considerable power. At present individuals are lost in the crowd. In politics it is almost a triviality to say that public opinion now rules the world. The only power deserving the name is that of masses, and of governments while they make themselves the organ of the tendencies and instincts of masses. This is as true in the moral and social relations of private life as in public transactions. Those whose opinions go by the name of public opinion, are not always the same sort of public: in America they are the whole white population; in England, chiefly the middle class. But they are always a mass, that is to say, collective mediocrity. And what is a still greater novelty, the mass do not now take their opinions from dignitaries in Church or State, from ostensible leaders, or from books. Their thinking is done for them by men much like themselves, addressing them or speaking in their name, on the spur of the moment, through the newspapers.
I am not complaining of all this. I do not assert that anything better is compatible, as a general rule, with the present low state of the human mind. But that does not hinder the government of mediocrity from being mediocre government. No government by a democracy or a numerous aristocracy, either in its political acts or in the opinions, qualities, and tone of mind which it fosters, ever did or could rise above mediocrity, except in so far as the sovereign Many have let themselves be guided (which in their best times they always have done) by the counsels and influence of a more highly gifted and instructed One or Few. The initiation of all wise or noble things, comes and must come from individuals; generally at first from some one individual. The honour and glory of the average man is that he is capable of following that initiative; that he can respond internally to wise and noble things, and be led to them with his eyes open. I am not countenancing the sort of "hero-worship" which applauds the strong man of genius for forcibly seizing on the government of the world and making it do his bidding in spite of itself. All he can claim is, freedom to point out the way. The power of compelling others into it, is not only inconsistent with the freedom and development of all the rest, but corrupting to the strong man himself. It does seem, however, that when the opinions of masses of merely average men are everywhere become or becoming the dominant power, the counterpoise and corrective to that tendency would be, the more and more pronounced individuality of those who stand on the higher eminences of thought. It is in these circumstances most especially, that exceptional individuals, instead of being deterred, should be encouraged in acting differently from the mass. In other times there was no advantage in their doing so, unless they acted not only differently, but better. In this age the mere example of nonconformity, the mere refusal to bend the knee to custom, is itself a service. Precisely because the tyranny of opinion is such as to make eccentricity a reproach, it is desirable, in order to break through that tyranny, that people should be eccentric. Eccentricity has always abounded when and where strength of character has abounded; and the amount of eccentricity in a society has generally been proportional to the amount of genius, mental vigour, and moral courage which it contained. That so few now dare to be eccentric, marks the chief danger of the time.
I have said that it is important to give the freest scope possible to uncustomary things, in order that it may in time appear which of these are fit to be converted into customs. But independence of action, and disregard of custom are not solely deserving of encouragement for the chance they afford that better modes of action, and customs more worthy of general adoption, may be struck out; nor is it only persons of decided mental superiority who have a just claim to carry on their lives in their own way. There is no reason that all human existences should be constructed on some one, or some small number of patterns. If a person possesses any tolerable amount of common-sense and experience, his own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode. Human beings are not like sheep; and even sheep are not undistinguishably alike. A man cannot get a coat or a pair of boots to fit him, unless they are either made to his measure, or he has a whole warehouseful to choose from: and is it easier to fit him with a life than with a coat, or are human beings more like one another in their whole physical and spiritual conformation than in the shape of their feet?
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What is it that has hitherto preserved Europe from this lot? What has made the European family of nations an improving, instead of a stationary portion of mankind? Not any superior excellence in them, which, when it exists, exists as the effect, not as the cause; but their remarkable diversity of character and culture. Individuals, classes, nations, have been extremely unlike one another: they have struck out a great variety of paths, each leading to something valuable; and although at every period those who travelled in different paths have been intolerant of one another, and each would have thought it an excellent thing if all the rest could have been compelled to travel his road, their attempts to thwart each other's development have rarely had any permanent success, and each has in time endured to receive the good which the others have offered. Europe is, in my judgment, wholly indebted to this plurality of paths for its progressive and many-sided development. But it already begins to possess this benefit in a considerably less degree. It is decidedly advancing towards the Chinese ideal of making all people alike. M. de Tocqueville, in his last important work, remarks how much more the Frenchmen of the present day resemble one another, than did those even of the last generation. The same remark might be made of Englishmen in a far greater degree.
In a passage already quoted from Wilhelm von Humboldt, he points out two things as necessary conditions of human development, because necessary to render people unlike one another; namely, freedom, and variety of situations. The second of these two conditions is in this country every day diminishing. The circumstances which surround different classes and individuals, and shape their characters, are daily becoming more assimilated. Formerly, different ranks, different neighbourhoods, different trades and professions, lived in what might be called different worlds; at present, to a great degree in the same. Comparatively speaking, they now read the same things, listen to the same things, see the same things, go to the same places, have their hopes and fears directed to the same objects, have the same rights and liberties, and the same means of asserting them. Great as are the differences of position which remain, they are nothing to those which have ceased. And the assimilation is still proceeding. All the political changes of the age promote it, since they all tend to raise the low and to lower the high. Every extension of education promotes it, because education brings people under common influences, and gives them access to the general stock of facts and sentiments. Improvements in the means of communication promote it, by bringing the inhabitants of distant places into personal contact, and keeping up a rapid flow of changes of residence between one place and another. The increase of commerce and manufactures promotes it, by diffusing more widely the advantages of easy circumstances, and opening all objects of ambition, even the highest, to general competition, whereby the desire of rising becomes no longer the character of a particular class, but of all classes. A more powerful agency than even all these, in bringing about a general similarity among mankind, is the complete establishment, in this and other free countries, of the ascendency of public opinion in the State. As the various social eminences which enabled persons entrenched on them to disregard the opinion of the multitude, gradually become levelled; as the very idea of resisting the will of the public, when it is positively known that they have a will, disappears more and more from the minds of practical politicians; there ceases to be any social support for non-conformity—any substantive power in society, which, itself opposed to the ascendency of numbers, is interested in taking under its protection opinions and tendencies at variance with those of the public.
The combination of all these causes forms so great a mass of influences hostile to Individuality, that it is not easy to see how it can stand its ground. It will do so with increasing difficulty, unless the intelligent part of the public can be made to feel its value—to see that it is good there should be differences, even though not for the better, even though, as it may appear to them, some should be for the worse. If the claims of Individuality are ever to be asserted, the time is now, while much is still wanting to complete the enforced assimilation. It is only in the earlier stages that any stand can be successfully made against the encroachment. The demand that all other people shall resemble ourselves, grows by what it feeds on. If resistance waits till life is reduced nearly to one uniform type, all deviations from that type will come to be considered impious, immoral, even monstrous and contrary to nature. Mankind speedily become unable to conceive diversity, when they have been for some time unaccustomed to see it.
Representative Government (1861)
Chap. VII: Of true and false democracy; representation of all, and representation of the majority only.
But if the presence in the representative assembly can be insured of even a few of the first minds in the country, though the remainder consist only of average minds, the influence of these leading spirits is sure to make itself insensibly felt in the general deliberations, even though they be known to be, in many respects, opposed to the tone of popular opinion and feeling. I am unable to conceive any mode by which the presence of such minds can be so positively insured as by that proposed by Mr. Hare.
This portion of the assembly would also be the appropriate organ of a great social function, for which there is no provision in any existing democracy, but which in no government can remain permanently unfulfilled without condemning that government to infallible degeneracy and decay. This may be called the function of Antagonism. In every government there is some power stronger than all the rest; and the power which is strongest tends perpetually to become the sole power. Partly by intention and partly unconsciously, it is ever striving to make all other things bend to itself, and is not content while there is any thing which makes permanent head against it, any influence not in agreement with its spirit. Yet, if it succeeds in suppressing all rival influences, and moulding every thing after its own model, improvement, in that country, is at an end, and decline commences. Human improvement is a product of many factors, and no power ever yet constituted among mankind includes them all: even the most beneficent power only contains in itself some of the requisites of good, and the remainder, if progress is to continue, must be derived from some other source. No community has ever long continued progressive but while a conflict was going on between the strongest power in the community and some rival power; between the spiritual and temporal authorities; the military or territorial and the industrious classes; the king and the people; the orthodox and religious reformers. When the victory on either side was so complete as to put an end to the strife, and no other conflict took its place, first stagnation followed, and then decay. The ascendancy of the numerical majority is less unjust, and, on the whole, less mischievous than many others, but it is attended with the very same kind of dangers, and even more certainly; for when the government is in the hands of One or a Few, the Many are always existent as a rival power, which may not be strong enough ever to control the other, but whose opinion and sentiment are a moral, and even a social support to all who, either from conviction or contrariety of interest, are opposed to any of the tendencies of the ruling authority. But when the democracy is supreme, there is no One or Few strong enough for dissentient opinions and injured or menaced interests to lean upon. The great difficulty of democratic government has hitherto seemed to be, how to provide in a democratic society—what circumstances have provided hitherto in all the societies which have maintained themselves ahead of others—a social support, a point d'appui, for individual resistance to the tendencies of the ruling power; a protection, a rallying-point, for opinions and interests which the ascendant public opinion views with disfavor. For want of such a point d'appui, the older societies, and all but a few modern ones, either fell into dissolution or became stationary (which means slow deterioration) through the exclusive predominance of a part only of the conditions of social and mental well-being.
Now, this great want the system of Personal Representation is fitted to supply in the most perfect manner which the circumstances of modern society admit of. The only quarter in which to look for a supplement, or completing corrective to the instincts of a democratic majority, is the instructed minority; but, in the ordinary mode of constituting democracy, this minority has no organ: Mr. Hare's system provides one. The representatives who would be returned to Parliament by the aggregate of minorities would afford that organ in its greatest perfection. A separate organization of the instructed classes, even if practicable, would be invidious, and could only escape from being offensive by being totally without influence. But if the élite of these classes formed part of the Parliament, by the same title as any other of its members—by representing the same number of citizens, the same numerical fraction of the national will—their presence could give umbrage to nobody, while they would be in the position of highest vantage, both for making their opinions and councils heard on all important subjects, and for taking an active part in public business. Their abilities would probably draw to them more than their numerical share of the actual administration of government; as the Athenians did not confide responsible public functions to Cleon or Hyperbolus (the employment of Cleon at Pylos and Amphipolis was purely exceptional), but Nicias, and Theramenes, and Alcibiades were in constant employment both at home and abroad, though known to sympathize more with oligarchy than with democracy. The instructed minority would, in the actual voting, count only for their numbers, but as a moral power they would count for much more, in virtue of their knowledge, and of the influence it would give them over the rest. An arrangement better adapted to keep popular opinion within reason and justice, and to guard it from the various deteriorating influences which assail the weak side of democracy, could scarcely by human ingenuity be devised. A democratic people would in this way be provided with what in any other way it would almost certainly miss—leaders of a higher grade of intellect and character than itself.
Chap. XIII: Of a second chamber
I attach little weight to the argument oftenest urged for having two Chambers—to prevent precipitancy, and compel a second deliberation; for it must be a very ill-constituted representative assembly in which the established forms of business do not require many more than two deliberations. The consideration which tells most, in my judgment, in favor of two Chambers (and this I do regard as of some moment), is the evil effect produced upon the mind of any holder of power, whether an individual or an assembly, by the consciousness of having only themselves to consult. It is important that no set of persons should be able, even temporarily, to make their sic volo prevail without asking any one else for his consent. A majority in a single assembly, when it has assumed a permanent character—when composed of the same persons habitually acting together, and always assured of victory in their own House—easily becomes despotic and overweening if released from the necessity of considering whether its acts will be concurred in by another constituted authority. The same reason which induced the Romans to have two consuls makes it desirable there should be two Chambers—that neither of them may be exposed to the corrupting influence of undivided power even for the space of a single year. One of the most indispensable requisites in the practical conduct of politics, especially in the management of free institutions, is conciliation; a readiness to compromise; a willingness to concede something to opponents, and to shape good measures so as to be as little offensive as possible to persons of opposite views; and of this salutary habit, the mutual give and take (as it has been called) between two houses is a perpetual school—useful as such even now, and its utility would probably be even more felt in a more democratic constitution of the Legislature.