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 oppression 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 expressed himself in a letter to Madison:*"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.

CHAPTER XVI.

CAUSES WHICH MITIGATE THE TYRANNY OF THE MAJORITY IN THE UNITED STATES.

ABSENCE OF CENTRAL ADMINISTRATION.

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 would penetrate into the privacy of indi

* 15th March, 1789.

vidual interest, 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 of 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 desire 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 intrust 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 breakwaters, 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 absolute monarchies of Europe; or indeed than any which could be found on this side 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 Lawyer.-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 intrusted 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 are 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 connexion of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.

.. The special information which lawyers derive from their studies, ensures them a separate station in society: and they constitute a sort of privileged body in the scale of intelligence. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known: they serve as arbiters between the citizens; and the habit of directing the blind passions of parties in litigation to their purpose, inspires them with a certain contempt for the judgment of the multitude. To this it may be added, that they naturally constitute a body; not by any previous understanding, or by any agreement which directs them to a common end; but the analogy of their studies and the uniformity of their proceedings connect their minds together, as much as a common interest would combine their endeavors.

A portion of the tastes and of the habits of the aristocracy may consequently be discovered in the characters of men in the profession of the law. They participate in the same instinctive love of order and of formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other men, are governed by their private interests and the advantages of the moment.

In a state of society in which the members of the legal profession are prevented from holding that rank in the political world which they enjoy in private life, we may rest assured that they will be the foremost agents of revolution. But it must then be inquired whether the cause which induces them to innovate and to destroy is accidental, or whether it belongs to some lasting purpose which they entertain. It is true that lawyers mainly contributed to the overthrow of the French monarchy in 1789; but it remains to be seen whether they acted thus because they had studied the laws, or because they were prohibited from co-operating in the work of legis. lation.

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 prerogaBut aristocracy has, notwithstanding this, its peculiar

instincts and propensities. We must be careful not to con found isolated members of a body with the body itself. la all free governments, of whatsoever form they may be, members of the legal profession may be found at the head of all parties. The same remark is also applicable to the aristo cracy; for almost all the democratic convulsions which have agitated the world have been directed by nobles.

A privileged body can never satisfy the ambition of all its members; it has always more talents and more passions than it can find places to content and to employ; so that a considerable number of individuals are usually to be met with, who are inclined to attack those very privileges, which they find it impossible to turn to their own account.

I do not, then, assert that all the members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them usually are so. In a community in which lawyers are allowed to occupy, without opposition, that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic. When an aristocracy excludes the leaders of that profession from its ranks, it excites enemies which are the more formidable to its security as they are independent of the nobility by their industrious pursuits; and they feel themselves to be its equal in point of intelligence, although they enjoy less opulence and less power. 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.

far

But

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 greater affinity between this class of individuals and the executive power, than there is between them and the people; just as there is a greater natural affinity between the nobles and monarch, than between the nobles and the people, although the higher orders of society have occasionally resisted the prerogative of the crown in concert with the lower classes.

Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority: It must not be forgotten, that if they prize the free institutions of their country much, they nevertheless value the legality of those institutions far more; they are less afraid of tyranny than of arbitrary power; and provided that the legis