II.

DEMOCRACY AND THE CONSTITUTION.

As private Liberty cannot be deem'd secure under a Government, wherein Law, the proper and sole Security of it, is dependent on Will, so publick Liberty must be in Danger, whenever a free Constitution, the proper and sole Security of it, is dependent on Will; and a free Constitution, like ours, is dependent ou Will, whenever the Will of one Estate can direct the conduct of all Three.

BOLINGBROKE, Dissertation on Parties, Letter XVIII.

THE founders of the American government derived their political ideas largely from the writings of Frenchmen, but they owed their political experience and their legal views to English sources, and it is partly for this reason that the public law of the United States is based upon two independent if not inconsistent principles. They are, democracy, and the sacredness of private rights. Of these, the former has until recently occupied almost exclusively the attention of foreign observers, for it is aggressive and demonstrative, making itself known by exciting elections and noisy debates in public assemblies; while the latter works silently by means of the courts of law,

although none the less powerful because less noticed. A thorough grasp of the relations which these two principles bear to each other, and of the manner in which they are combined by our various constitutions, is necessary in order that the real working of American institutions may be understood.

Ever since the Renaissance stirred men to speculate upon government, two theories concerning the nature of political power have made themselves prominent: the first dwelling upon the absolute authority of the sovereign, and declaring that no rights can exist in opposition to his will; the other insisting upon certain natural rights of individuals which the sovereign can never legally infringe. To these theories there correspond two opposite views of the proper functions of the state. According to one of them, — commonly called the paternal theory of government, it is the duty of the sovereign to provide directly for the well-being of his subjects; while according to the other view the ruler ought to confine himself mainly to the restraint of violence, the administration of justice, and defense against foreign enemies, leaving to the citizen the task of seeking his own prosperity and happiness in his own way. But it is very important to observe that neither the paternal system, nor the system of

individual liberty, has any necessary connection with a particular form of government, and it is to the failure to recognize this fact that a great deal of confusion in political thought is to be attributed. So universal has been the conviction that an increase in popular power implied an increase in personal freedom, that the same term is still used to designate both, the word "liberty" being applied indifferently to the possession of political power, or political liberty, and to personal freedom, or civil liberty. The hold which this error has obtained even over men of independent thought is strikingly illustrated in Buckle's "History of Civilization;" for, recent as that work is, the author assumes throughout that the progress of democracy is inseparably connected with that diminution of restraint upon personal freedom in which he believes civilization to consist.

The cause of such a confusion of ideas is to be found chiefly in a reaction against the paternal despotisms that long ruled continental Europe, and in the fact that the earliest efforts of democracy were devoted to the destruction of privilege, which was at that time the great barrier to individual freedom. But there is another reason for the association of democracy with personal liberty which is extremely suggestive. Freedom from restraint and op

pression, the right of every man to do what he pleases, is always claimed by those who are out of power, and who feel that they are in the hand of their enemies. Toleration is always an article of faith with a persecuted sect, but unfortunately it is only too rarely that this tenet is remembered when the sect succeeds in getting control of the state. Now democracy, like all other principles in the world, was an outlaw in its infancy, and many of its most ardent advocates, looking upon themselves as oppressed by the rulers of the Old World, were naturally of opinion that the activity of government ought to be reduced to the smallest possible limit. But the fact that this doctrine has no necessary connection with democracy is clearly seen in the history of France, in which the habits of centralization and state tutelage formed under the monarchy were rather increased than diminished by the revolution, and have survived every subsequent change in the form of the government.

It was formerly believed that all violations of private rights, and all interference with personal liberty, proceeded from rapacity or lust for power on the part of the monarch or ruling aristocracy, but experience has shown that this is a mistake. Even if selfish motives could be quite eliminated, and if the persons who govern,

whether king, aristocracy, or popular party, were free from any temptation to use their power for private advantage, the danger of excessive meddling with individual freedom would not be put aside; for it is a matter of everyday experience that no one is more intolerant, or more eager to force the whole world to walk in his own path, than the genuine, whole-souled philanthropist. It must never be forgotten that liberty means liberty to do wrong as well as to do right; and any ruler must be well-nigh superhuman who can look on calmly while a part of his subjects pursue a course of conduct which he considers injurious to the community, and, possessing the power to prevent such conduct, refrains from making use of it. A ruler of this kind would be regarded by most people as grossly derelict in his duty; and if in a democracy the majority of the voters considered the acts in question harmful or wicked, the government would speedily be replaced by another which would put a stop to them. Every government, in such cases, is certain to make use sooner or later of the power at its command, because the number of people who are really convinced that it is better to permit wrong than to interfere with personal liberty is extremely small.

I have said that this would be true even if