Influence Which The American Democracy Has Exercised
On The Laws Relating To Elections
When elections are rare, they expose the State to a violent crisis – When they are frequent, they keep up a degree of feverish excitement – The Americans have preferred the second of these two evils – Mutability of the laws -Opinions of Hamilton and Jefferson on this subject.
When elections recur at long intervals the State is exposed to violent agitation every time they take place. Parties exert themselves to the utmost in order to gain a prize which is so rarely within their reach; and as the evil is almost irremediable for the candidates who fail, the consequences of their disappointed ambition may prove most disastrous; if, on the other hand, the legal struggle can be repeated within a short space of time, the defeated parties take patience. When elections occur frequently, their recurrence keeps society in a perpetual state of feverish excitement, and imparts a continual instability to public affairs.
Thus, on the one hand the State is exposed to the perils of a revolution, on the other to perpetual mutability; the former system threatens the very existence of the Government, the latter is an obstacle to all steady and consistent policy. The Americans have preferred the second of these evils to the first; but they were led to this conclusion by their instinct much more than by their reason; for a taste for variety is one of the characteristic passions of democracy. An extraordinary mutability has, by this means, been introduced into their legislation. Many of the Americans consider the instability of their laws as a necessary consequence of a system whose general results are beneficial. But no one in the United States affects to deny the fact of this instability, or to contend that it is not a great evil.
Hamilton, after having demonstrated the utility of a power which might prevent, or which might at least impede, the promulgation of bad laws, adds: “It might perhaps be said that the power of preventing bad laws includes that of preventing good ones, and may be used to the one purpose as well as to the other. But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws which form the greatest blemish in the character and genius of our governments.” (Federalist, No. 73.) And again in No. 62 of the same work he observes: “The facility and excess of law-making seem to be the diseases to which our governments are most liable. . . . The mischievous effects of the mutability in the public councils arising from a rapid succession of new members would fill a volume: every new election in the States is found to change one-half of the representatives. From this change of men must proceed a change of opinions and of measures, which forfeits the respect and confidence of other nations, poisons the blessings of liberty itself, and diminishes the attachment and reverence of the people toward a political system which betrays so many marks of infirmity.”
Jefferson himself, the greatest Democrat whom the democracy of America has yet produced, pointed out the same evils. “The instability of our laws,” said he in a letter to Madison, “is really a very serious inconvenience. I think that we ought to have obviated it by deciding that a whole year should always be allowed to elapse between the bringing in of a bill and the final passing of it. It should afterward be discussed and put to the vote without the possibility of making any alteration in it; and if the circumstances of the case required a more speedy decision, the question should not be decided by a simple majority, but by a majority of at least two-thirds of both houses.”
Public Officers Under The Control Of The Democracy In America
Simple exterior of the American public officers – No official costume – All public officers are remunerated – Political consequences of this system – No public career exists in America – Result of this.
Public officers in the United States are commingled with the crowd of citizens; they have neither palaces, nor guards, nor ceremonial costumes. This simple exterior of the persons in authority is connected not only with the peculiarities of the American character, but with the fundamental principles of that society. In the estimation of the democracy a government is not a benefit, but a necessary evil. A certain degree of power must be granted to public officers, for they would be of no use without it. But the ostensible semblance of authority is by no means indispensable to the conduct of affairs, and it is needlessly offensive to the susceptibility of the public. The public officers themselves are well aware that they only enjoy the superiority over their fellow-citizens which they derive from their authority upon condition of putting themselves on a level with the whole community by their manners. A public officer in the United States is uniformly civil, accessible to all the world, attentive to all requests, and obliging in his replies. I was pleased by these characteristics of a democratic government; and I was struck by the manly independence of the citizens, who respect the office more than the officer, and who are less attached to the emblems of authority than to the man who bears them.
I am inclined to believe that the influence which costumes really exercise, in an age like that in which we live, has been a good deal exaggerated. I never perceived that a public officer in America was the less respected whilst he was in the discharge of his duties because his own merit was set off by no adventitious signs. On the other hand, it is very doubtful whether a peculiar dress contributes to the respect which public characters ought to have for their own position, at least when they are not otherwise inclined to respect it. When a magistrate (and in France such instances are not rare) indulges his trivial wit at the expense of the prisoner, or derides the predicament in which a culprit is placed, it would be well to deprive him of his robes of office, to see whether he would recall some portion of the natural dignity of mankind when he is reduced to the apparel of a private citizen.
A democracy may, however, allow a certain show of magisterial pomp, and clothe its officers in silks and gold, without seriously compromising its principles. Privileges of this kind are transitory; they belong to the place, and are distinct from the individual: but if public officers are not uniformly remunerated by the State, the public charges must be entrusted to men of opulence and independence, who constitute the basis of an aristocracy; and if the people still retains its right of election, that election can only be made from a certain class of citizens. When a democratic republic renders offices which had formerly been remunerated gratuitous, it may safely be believed that the State is advancing to monarchical institutions; and when a monarchy begins to remunerate such officers as had hitherto been unpaid, it is a sure sign that it is approaching toward a despotic or a republican form of government. The substitution of paid for unpaid functionaries is of itself, in my opinion, sufficient to constitute a serious revolution.
I look upon the entire absence of gratuitous functionaries in America as one of the most prominent signs of the absolute dominion which democracy exercises in that country. All public services, of whatsoever nature they may be, are paid; so that every one has not merely the right, but also the means of performing them. Although, in democratic States, all the citizens are qualified to occupy stations in the Government, all are not tempted to try for them. The number and the capacities of the candidates are more apt to restrict the choice of electors than the conditions of the candidateship.
In nations in which the principle of election extends to every place in the State no political career can, properly speaking, be said to exist. Men are promoted as if by chance to the rank which they enjoy, and they are by no means sure of retaining it. The consequence is that in tranquil times public functions offer but few lures to ambition. In the United States the persons who engage in the perplexities of political life are individuals of very moderate pretensions. The pursuit of wealth generally diverts men of great talents and of great passions from the pursuit of power, and it very frequently happens that a man does not undertake to direct the fortune of the State until he has discovered his incompetence to conduct his own affairs. The vast number of very ordinary men who occupy public stations is quite as attributable to these causes as to the bad choice of the democracy. In the United States, I am not sure that the people would return the men of superior abilities who might solicit its support, but it is certain that men of this description do not come forward.
Arbitrary Power Of Magistrates Under The Rule Of The American Democracy
For what reason the arbitrary power of Magistrates is greater in absolute monarchies and in democratic republics than it is in limited monarchies -Arbitrary power of the Magistrates in New England.
In two different kinds of government the magistratesa exercise a considerable degree of arbitrary power; namely, under the absolute government of a single individual, and under that of a democracy. This identical result proceeds from causes which are nearly analogous.
In despotic States the fortune of no citizen is secure; and public officers are not more safe than private individuals. The sovereign, who has under his control the lives, the property, and sometimes the honor of the men whom he employs, does not scruple to allow them a great latitude of action, because he is convinced that they will not use it to his prejudice. In despotic States the sovereign is so attached to the exercise of his power, that he dislikes the constraint even of his own regulations; and he is well pleased that his agents should follow a somewhat fortuitous line of conduct, provided he be certain that their actions will never counteract his desires.
In democracies, as the majority has every year the right of depriving the officers whom it has appointed of their power, it has no reason to fear any abuse of their authority. As the people is always able to signify its wishes to those who conduct the Government, it prefers leaving them to make their own exertions to prescribing an invariable rule of conduct which would at once fetter their activity and the popular authority.
It may even be observed, on attentive consideration, that under the rule of a democracy the arbitrary power of the magistrate must be still greater than in despotic States. In the latter the sovereign has the power of punishing all the faults with which he becomes acquainted, but it would be vain for him to hope to become acquainted with all those which are committed. In the former the sovereign power is not only supreme, but it is universally present. The American functionaries are, in point of fact, much more independent in the sphere of action which the law traces out for them than any public officer in Europe. Very frequently the object which they are to accomplish is simply pointed out to them, and the choice of the means is left to their own discretion.
In New England, for instance, the selectmen of each township are bound to draw up the list of persons who are to serve on the jury; the only rule which is laid down to guide them in their choice is that they are to select citizens possessing the elective franchise and enjoying a fair reputation.b In France the lives and liberties of the subjects would be thought to be in danger if a public officer of any kind was entrusted with so formidable a right. In New England the same magistrates are empowered to post the names of habitual drunkards in public-houses, and to prohibit the inhabitants of a town from supplying them with liquor.c A censorial power of this excessive kind would be revolting to the population of the most absolute monarchies; here, however, it is submitted to without difficulty.
Nowhere has so much been left by the law to the arbitrary determination of the magistrate as in democratic republics, because this arbitrary power is unattended by any alarming consequences. It may even be asserted that the freedom of the magistrate increases as the elective franchise is extended, and as the duration of the time of office is shortened. Hence arises the great difficulty which attends the conversion of a democratic republic into a monarchy. The magistrate ceases to be elective, but he retains the rights and the habits of an elected officer, which lead directly to despotism.
It is only in limited monarchies that the law, which prescribes the sphere in which public officers are to act, superintends all their measures. The cause of this may be easily detected. In limited monarchies the power is divided between the King and the people, both of whom are interested in the stability of the magistrate. The King does not venture to place the public officers under the control of the people, lest they should be tempted to betray his interests; on the other hand, the people fears lest the magistrates should serve to oppress the liberties of the country, if they were entirely dependent upon the Crown; they cannot therefore be said to depend on either one or the other. The same cause which induces the king and the people to render public officers independent suggests the necessity of such securities as may prevent their independence from encroaching upon the authority of the former and the liberties of the latter. They consequently agree as to the necessity of restricting the functionary to a line of conduct laid down beforehand, and they are interested in confining him by certain regulations which he cannot evade.
a I here use the word magistrates in the widest sense in which it can be taken; I apply it to all the officers to whom the execution of the laws is intrusted.
b See the Act of February 27, 1813. “General Collection of the Laws of Massachusetts,” vol. ii. p. 331. It should be added that the jurors are afterwards drawn from these lists by lot.
c See Act of February 28, 1787. “General Collection of the Laws of Massachusetts,” vol. i. p. 302
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