THE

SOUTHERN

LAW REVIEW.

VOL. I, N. S.] SAINT LOUIS, APRIL, 1875.

Original Articles.

[No. 1.

I. MODERN THEORIES OF GOVERNMENT.

NUMBER FOUR.

Two or three years after the publication of his original work on Democracy in America, De Tocqueville added two new volumes. In these he treats, first, of the influence of democracy upon the intellectual movement of the United States; secondly, of its influence on the feelings and sentiments of the Americans; thirdly, its influence on the morals properly so called; and, lastly, of the influence which democratic ideas and sentiments exercise upon political society. In these volumes the deductions are less intimately connected with recognized facts, and are more abstract and profound than in the previous volumes. In these, too, the narrowness of his premises detracts largely from the certainty of his conclusions. He does not take sufficiently into his calculations the circumstances of race, climate, locality, and other elements of his problems.

De Toqueville is of opinion that the general tendency of the laws and institutions of the American democracy is beneficial, and favorable to the prosperity and happiness of the majority; that those institutions tend to make the permanent

interests of the public functionaries identical with those of the people, conduce to a judicious and reflective patriotism, cherish a respect for law, and produce incessant political and industrial activity. These advantages in his view, go very far to compensate for any defects. "What do you ask," he says, "of society and its government? Let us understand. Do you wish to give human nature a certain loftiness, a generous fashion of looking at the things of this world? Do you wish to inspire men with a contempt for material wealth? Do you desire to create or cultivate profound convictions, and prepare the way for great sacrifices? Is it intended to polish the manners, to elevate the morals, and to develop the arts? Do you wish for poesy, noise, and glory? Do you intend to organize a people in a manner to act strongly upon all others? Do you design, then, to attempt great enterprises, and, whatever may be the result, to leave a broad trace in history? If such, in your view, are the principal objects men should propose to themselves in society, do not select the government of democracy; it will not conduct you certainly to those ends. But if it seem useful to you to direct the intellectual and moral activity of man to the requirements of material life and the production of material wealth; if reason appears to you more profitable to man than genius; if your object is not to create heroic virtues, but peaceable habitudes; if you would rather see vices than crimes, and prefer to find fewer great actions on condition of meeting with fewer offenses; if, in place of acting in the bosom of a brilliant society it would content you to live in the midst of a prosperous people; if, in fine, the principal object of government, is not, in your opinion, to give to the entire body of the nation the greatest possible force and glory, but to procure for each individual of that nation the greatest amount of well being with the least amount of misery; then, equalize conditions, and establish the government of democracy." "But if," he adds, "there is no longer time to make the choice, and you are constrained by a force superior to that of man, without reference to your volition, towards one form of government, seek at least to derive all the good it can give; and, knowing its good instincts as

well as its evil tendencies, strive to restrain the latter, and to develop the effects of the other."

"Three things," he observes, seem to concur more than all others, to the maintenance of the democratic republic of the New World. The first is, the federal form which the Americans have adopted, and which permits to the Union the enjoyment of the power of a great nation with the security of a small one. I find the second in the local or communal institutions, which, moderating the despotism of the majority, give to the people, at the same time, a taste for liberty and the art of being free. The third is found in the constitution of the judiciary powers. I have shown how the tribunals serve to correct the errors of the democracy, and how, without ever arresting the movement of the majority, it succeeds in directing and abating those movements."

But, while he admits the advantages, he is clear sighted enough to see the defects of democratic institutions. The principal of these defects, as developed in America, may be brought together, from various parts of his volumes, thus:

1. The complete subjection of the legislative powers to the will of the electors, by the frequency of elections, and the direct action of the electors by designating in advance, through the instrumentality of political platforms, the action of the representative on the most important subjects of legislation.

2. The concentration in the legislature of all the other powers of government, by the curtailment of executive prerogatives, and the subjection of the judiciary by the mode of election, term of office, and fixation of salaries.

3. The omnipotence of the majority degenerating into the tyranny of the minority, leaving to the latter no other resort than an appeal to force. See, in this connection, Madison in the Federalist, No. 51, and Jefferson's letter to Madison of the 15th of March, 1789.

4. Instability of legislation, the inevitable result of the first evil above mentioned.

5. Administrative instability, proceeding from the frequent and rapid changes of incumbents.

6. Selection of inferior men to office, partly from want of

the requisite information, notwithstanding good intentions; partly, from want of inclination to elevate superior merit; democratic institutions, alas, developing "in a high degree the feeling of envy in the human heart." And, partly, also, from an unwillingness in those possessing superior qualifications to descend to those arts of flattery and cunning essential

to success.

7. Insufficiency of pay to higher officials.

8. Corruption of public functionaries growing out of the smallness of salaries and the uncertainty of the tenure of office.

9. Want of economy. On which important point the summing up of our author is: “I conclude, then, without having recourse to incomplete statistics, and without indulging in conjectural comparisons, that the democratic government of the Americans is not, as is sometimes alleged, a cheap government. I fear not to predict that, if great embarrassments should one day assail the people of the United States, the imposts among them would become as high as in the greater number of aristocracies and monarchies of Europe." A prophesy, how soon realized!

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The inherent vice of democratic government is, our author frequently repeats, its tendency to do away with all restraints to direct popular action, and, therefore, to substitute the whim and caprice of the majority, for the deliberate judgment of the intelligence of the people. "Each government," he says, carries in itself a vice which seems inherent in the very principle of its existence. The genius of the legislator consists in the capacity to discover this vice. A state may triumph over many bad laws, and the evil which such laws produce is often exaggerated. But every law, the effect of which is to develop the germ of death, cannot fail in the end to become fatal, although its evil effects may not be immediately perceived. The principle of ruin in an absolute monarchy is the unlimited and unreasonable extention of the royal power. A measure which should take away any of the counterpoises to this power left by the constitution would be radically bad, even if its effects should be for a long time inappre

ciable. So, in countries where the democracy governs and where the people draw everything to themselves, those laws which render the action of the people more and more prompt and irresistible, attack in a direct manner the existence of the government. The greatest merit of the founders of the American constitution lies in the fact that they saw clearly this truth, and had the courage to put it in practice. They conceived that there must be, outside of the people, a certain number of powers, which, without being completely independent of them, should, however, enjoy in their sphere a sufficiently large degree of liberty; in such way that, although forced to obey the permanent direction of the majority, they might nevertheless contend against their caprices, and refuse their dangerous exigencies. With this view they concentrated all the executive power of the nation in a single hand; they gave to the president extended prerogatives, and armed him with the veto to resist the encroachments of the legislature." In the same way, he shows elsewhere, the federal constitution, by the longer terms of the senators and their mode of election, sought to provide against the subjection of the legislature to the whim and caprice of the people, leaving them at the same time subject to their mature wishes and intelligent determinations. The principle of presidential re-election he considers, however, as essentially nullifying the object had in view in giving to the executive large independent powers. The effect is to deprive the executive of the will to execute his prerogatives. "Reeligible, the president becomes a docile instrument in the hands of the majority. He loves what they love, hates what they hate; he hastens to forestall their wishes, acts in advance of their complaints, and bows to their smallest caprices. The constitution intended he should guide the people; instead, he follows them."

While the founders of the constitution labored to provide against so palpable a danger, the state constitutions have, on the contrary, swept away all checks by shortening the terms of official service, by doing away with all substantial difference between the senate and lower house, by abolishing the veto power and otherwise limiting the functions of the executive.