Front Page Titles (by Subject) Of the Arbitrariness of Magistrates 2 under the Dominion of American Democracy x - Democracy in America: Historical-Critical Edition, vol. 2
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Of the Arbitrariness of Magistrates 2 under the Dominion of American Democracy x - Alexis de Tocqueville, Democracy in America: Historical-Critical Edition, vol. 2 
Democracy in America: Historical-Critical Edition of De la démocratie en Amérique, ed. Eduardo Nolla, translated from the French by James T. Schleifer. A Bilingual French-English editions, (Indianapolis: Liberty Fund, 2010). Vol. 2.
About Liberty Fund:
This bilingual edition of Tocqueville’s work contains a new English translation of the French critical edition published in 1990. The copyright to the French version is held by J. Vrin and it is not available online. The copyright to the English translation, the translator’s note, and index is held by Liberty Fund.
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Why the arbitrariness of magistrates is greater under absolute monarchies and in democratic republics than in limited monarchies.—Arbitrariness of magistrates in New England.
There are two types of government in which a great deal of arbitrariness is joined with the action of magistrates; it is so under the absolute government of one man and under the government of democracy.y
This same result comes from almost analogous causes.
In despotic States, no one’s fate is assured, not that of public officials any more than that of simple individuals. The sovereign, always holding in his hand the life, fortune and sometimes the honor of the men he employs, thinks that he has nothing to fear from them; and he leaves them great freedom of action, because he thinks he is assured that they will never use that freedom against him.
In despotic States, the sovereign is so in love with his power that he fears the constraint of his own rules; and he loves to see his agents go more or less haphazardly in order to be sure never to find among them a tendency contrary to his desires.
Nor in democracies does the majority fear that power will be used against it, because every year it can remove power from the hands of those to whom power has been confided. Able at every moment to make its will known to those who govern, the majority prefers to abandon them to their own efforts rather than to bend them to an invariable rule that, by limiting those who govern, would in a sense limit the majority itself.
You even discover, looking closely, that under the dominion of democracy, the arbitrariness of the magistrate must be still greater than in despotic States.
In these States, the sovereign can punish in a moment all the misdeeds that he notices, but he cannot flatter himself that he notices all the misdeeds that he should punish. In democracies, on the contrary, the sovereign is simultaneously omnipotent and omnipresent. You see, therefore, that American officials are much freer within the circle of action that the law traces for them than any official in Europe. Often the Americans limit themselves to showing officials the end toward which they must aim, leaving them with the authority to choose the means.
In New England, for example, the duty to draw up the jury list is referred to the selectmen of each town. The only rule that is stipulated is this: they must choose the jurors from among those citizens who enjoy the right to vote and who are of good reputation.3
In France, we would believe the lives and liberty of men at risk if we confided the exercise of so fearsome a right to an official, whoever he was.
In New England, these same magistrates can have the names of drunkards posted in taverns and, by penalty of a fine, prevent the occupants from providing them with wine.4
Such a censorial power would outrage people in the most absolute monarchy; here, however, people submit without difficulty.
Nowhere has the law left a larger portion of arbitrariness than in democratic republics, because there does not seem to be any reason to fear arbitrariness. You can even say that, as the right to vote expands and as the term in office becomes more limited, the magistrate becomes freer.
That is why it is so difficult to have a democratic republic become a monarchy. The magistrate, while ceasing to be elective, usually keeps the rights and preserves the customs of the elected magistrates. Then you arrive at despotism.z
Only in limited monarchies does the law, while drawing a circle of action around public officials, still take care at the same time to guide them at each step. The reason for this fact is easy to state.
In limited monarchies, power is divided between the people and the prince. Both are interested in having the position of the magistrate stable.
The prince does not want to put the fate of officials back into the hands of the people, for fear that the officials will betray his authority; on their side, the people are afraid that the magistrates, placed in absolute dependence on the prince, will help to crush liberty; so, in a way, the magistrates are made to depend on no one.
The same reason that leads the prince and the people to make the official independent, leads them to seek guarantees against the abuse of his independence, so that he does not turn against the authority of the one or the liberty of the other. Both agree, therefore, on the need to trace in advance a line of conduct for the public official, and find it in their interest to impose rules on him that are impossible for him to evade.
[2. ] Here, I understand the word magistrate in its broadest sense; I apply it to all those who are charged with executing the laws.
[x. ] “Put this chapter next to the one that deals with the despotism of the majority. Despotism and arbitrariness are two. For this chapter, see pocket notebook number 3, p. 15. All the main ideas are there. To find examples” (YTC, CVh, 4, p. 74). See the note for 14 October 1831, pocket notebook 3, YTC, BIIa, and Voyage, OC, V, 1, p. 183.
[y. ] Hervé de Tocqueville: “Yes, there can be a great deal of arbitrariness under the absolute government of one man. Under the regular government of democracy there is free will and not arbitrariness, which is very different. I observe that despotism as the author depicts it exists only in Turkey, but is found to this extent in no other European State” (YTC, CIIIb, 2, p. 27). Hervé repeats this same observation about arbitrariness in other places (YTC, CIIIb, 2, pp. 27 and 34).
Hervé de Tocqueville:
This entire chapter is very obscure and the mind must work to follow the connection of ideas. That comes about partly because the author sometimes used certain words that do not exactly have the meaning that he wants to give them. Starting with the title, the word arbitrariness loses meaning, because arbitrariness is commonly understood as the action of a power that is placed or puts itself above the law, and acts without concern for legal prescriptions. Such is not the type of action of magistrates in America. The law leaves infinitely more to their judgment than anywhere else. But there is no arbitrariness there. I propose to put, in place of arbitrariness, the free will of magistrates, etc. Next, I do not know why the author struggles so much to tell us about despotic government, which is not in his subject, and throws himself into abstract though ingenious definitions in order to tell us a truth that could be expressed with less difficulty, to know that the Americans leave great latitude and great freedom of action to their magistrates, because frequent elections banish all fear of the abuse that they could make of it (YTC, CIIIb, 2, pp. 26-27).
[3. ] See the law of 27 February 1813. General Collection of the Laws of Massachusetts, vol. II, p. 331. It must be said that afterward the jurors are drawn by lot from the lists.
[4. ] Law of February 28, 1787. See General Collection of the Laws of Massachusetts, vol. I, p. 302. Here is the text:
That the selectmen in each town shall cause to be posted up in the houses and shops of all taverners, innholders and retailers [. . . (ed.) . . .] a list of the names of all persons reputed common drunkards, [. . . (ed.) . . .] or common gamesters, misspending their time and estate in such houses. And every keeper of such house or shop, after notice given him, as aforesaid, that shall be convicted, [. . . (ed.) . . .] of entertaining or suffering any of the persons, in such a list, to drink or tipple, or game, in his or her house, [. . . (ed.) . . .] or of selling them spirituous liquor, as aforesaid, shall forfeit and pay [the sum of thirty shillings (ed.)].
[z. ] This idea is found in Montesquieu, who asserts: “There is no authority more absolute than that of a prince who succeeds the republic: for he finds himself with all the power of the people who were not able to limit themselves” (Considérations sur les causes de la grandeur des Romains et de leur décadence, chapter XV, in Oeuvres complètes, Paris: Pléiade, 1951, II, p. 150). In the Republic (Book VIII, 564), Plato had already noted that extreme liberty would necessarily be followed by extreme subjection.