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This is why democracy clings to its official magistracy, which contains
some good elements though its members cannot always be impartial. They
were condemned by the mouth of one of their highest dignitaries who
answered when questioned about some illegal proceeding: "There are
reasons of high State policy," thus throwing both the law and the judges
at the feet of the Government. On another occasion, with the very best
intentions, in order to put an end to an interminable affair, they
turned and twisted the law and set a bad example; for by not applying
the law correctly, they laid themselves open to endless and justifiable
attacks upon their decision; they did not procure the longed-for
settlement, and, instead, left the matter open to interminable dispute.
They have knowledge, good sense and intelligence, but as their want of
independence, in other words their moral inefficiency, neutralises
their technical efficiency, they do not and cannot possess authority.

Democracy will inevitably go further along the road towards its ideal,
which is direct government. It will want to elect the judges.

Already it chooses them remotely in the third degree; for it chooses the
deputies who choose the Government, which chooses the judges; and to
some extent, in the second degree, for it chooses the deputies who bring
pressure to bear upon the nomination of the judges and interfere with
their promotion and their decisions. This also is remote.

And, as by this constitution, or, rather by this practice, recognition
is given to the principle that it is the people who really appoints the
judges through its intermediaries, democracy, always logical and matter
of fact, would like to see the principle applied without concealment,
and the people making the appointments directly.

Then endless questions will arise about the best way of voting and
electing. If unipersonal ballot is adopted, the canton will nominate its
_juge de paix_, the district its tribunal, the region its Court, and the
whole country the Court of Appeal. In this arrangement there will be
the double drawback mentioned above; that is, varying interpretations of
justice according to districts, and no impartiality.

If, on the other hand, _scrutin de liste_ is adopted, the whole country
will choose all the magistrates and they will belong to the majority. In
this case there would be uniformity of justice but no impartiality. Any
intermediate system would combine the disadvantage of both plans. For
instance, if nominations are made in each division, all the magistrates
in Brittany will be white partisans, while in Provence they will be blue
partisans. In both cases they will be biassed, and such diversity as
there is will be merely a diversity of partiality and bias.

We are talking of the future, though not perhaps of a very distant one.
Let us deal with the present. The jury is still with us. Now the jury
combines absolute moral competence with absolute technical incompetence.
Democracy must always have incompetence in one form or another. A jury
is independent of everybody, both of the Government and of the people,
and in the best possible way, because it is the agent of the people
without being elected. It does not seek re-election and is rather vexed
than otherwise at being summoned to perform a disagreeable duty. On the
other hand it always vacillates between two emotions, between pity and
self-preservation, between feelings of humanity and the necessity for
social protection; it is equally sensitive to the eloquence of the
defending advocate, and the summing up of the prosecutor, and as these
two influences balance each other it is in a perfect moral condition for
delivering an equitable verdict.

For this reason the jury is of ancient origin, and has always been an
institution in the land. At Athens the tribunal of the Heliasts formed a
kind of jury, too numerous indeed and more like a public meeting, but
still a sort of jury.

At Rome, a better regulated republic, there were certain citizens chosen
by the prætor who settled questions of fact, that is to say, decided
whether an act had or had not been committed, whether a sum of money had
or had not been paid; and the question of law was reserved for the
centumvirs.

In England the jury still exists and has existed for centuries.

These various peoples have considered very properly that juries are
excellently adapted for forming equitable decisions, since they possess
a greater moral competence for this particular function, than is to be
found elsewhere.

This is true; but on the other hand a jury has no intelligence. In
November 1909, a jury in the Côte d'Or before whom a murderer was being
tried, declared (1) that this man did not strike the blows, (2) that the
blows which he struck resulted in death. Thereupon the man was
acquitted, although his violence, which never took place, had a
murderous result.

In the Steinheil case in the same month and year, the jury's verdict
involved (1) that no one had been assassinated in the Steinheils' house,
and (2) that Mme Steinheil was not the daughter of Mme Japy. If a
verdict were a judgment this would have put an end to all attempts to
discover the assassins of M. Steinheil and Mme Japy, and on the other
hand there would have been terrible social complications.

But the verdict of a jury is not a judgment. Why? Because the legislator
foresaw the alarming absurdity of verdicts. It is presumed in law that
all juries' verdicts are absurd, and experience proves that this is
often the case. Juries' verdicts always seem to have been decided by lot
like those of the famous judge in Rabelais, and it is proverbial at the
law courts that it is impossible to foresee the issue of any case that
comes before a jury. It looks as if the jury reasoned thus: "I am a
chance judge, and it is only right that my judgment should be dictated
by chance."

Voltaire was in favour of the jury system, principally because he had
such a very low opinion of the magistrates of his day, whom he used to
compare to Busiris. But, with his usual inconsequence, he takes no pains
to conceal the fact that the populations of Abbeville and its
neighbourhood were unanimously exasperated against La Barre and
D'Etalonde, and the people of Toulouse against Calas, and all of them
would have been condemned by juries summoned from those districts as
surely as they were by the magisterial Busiris.

The jury system is nothing but a refined example of the cult of
incompetence. Society, having to defend itself against thieves and
murderers, lays the duty of defending it on some of its citizens, and
arms them with the weapon of the law. Unfortunately it chooses for the
purpose citizens who do not know how to use the weapon. It then fondly
imagines that it is adequately protected. The jury is like an unskilled
gladiator entangled in the meshes of his own net.

I need hardly say that democracy with its usual pertinacity is now
trying to reduce the jury a step lower, and draw it from the lower
instead of the lower middle classes. I see no harm in this myself, for
in the matter of law the ignorance and inexperience of the lower middle
class and the ignorance of the working class are much the same. I have
only mentioned it to show the tendency of democracy towards what is
presumably greater incompetence.

Now comes the turn of the _juges de paix_. At present we still have
_juges de paix_. Here we have a most interesting example of the way
democracy strives after incompetence in matters judicial.

Owing to the expense entailed by an appeal the jurisdiction of a _juge
de paix_ is very often final. He ought to be an instructed person with
some knowledge of law and jurisprudence. He is therefore usually chosen
from men who have a degree in law or from lawyers' clerks who have a
certificate of ability. To be quite honest this is but a feeble
guarantee.

By the law of July 12th, 1905, the French Senate, anxious to find men of
still grosser incompetence, decided that _juges de paix_ might be
nominated from those, who, not having the required degree or
certificate, had occupied the posts of mayor, deputy-mayor or councillor
for ten years.

The object of this decision was the very honest and legitimate one of
giving senators and deputies the opportunity of rewarding the electoral
services of the village mayors and their assistants. And remember
senators especially are nominated by these officials. Further it was an
opportunity not to be missed for applying our principle - and our
principle is this: we ask, where is absolute incompetence to be found,
for to him who can lay indisputable claim to it we must confide
authority.

Now mayors and their assistants answer this description exactly. They
must be able to sign their names, but they are not obliged to know how
to read, and eighty per cent. of them are totally illiterate. Their work
is done for them very usually by the local schoolmaster. The Senate,
therefore, was quite sure of finding among them men absolutely
incompetent for the post of _juge de paix_, and it has found what it
wanted. Incompetence so colossal deserved an appointment, and an
appointment has been given to it.

The magistrature and the powers that be, seem to have been somewhat
disturbed by certain consequences of this highly democratic institution.
M. Barthou, the Minister of Justice, complained bitterly of the work
which this new institution caused him. He made the following speech in
the Chamber of Deputies: "We are here to tell each other the truth, and,
with all the due moderation and prudence that is fitting, I feel it my
duty to warn the chamber against the results of the law of 1905. At the
present moment I am besieged with applications for the post of _juge de
paix_. I need hardly mention that there are some 9,000 of them in my
office, because a certain number are not eligible for consideration, but
there are in round numbers 5,500 applications which are recommended and
examined." (What he means to say is, that these are examined because
they have been recommended, for, as is only right, those that are not
backed by some political personage are not looked at.) "As the average
annual number of vacancies is a hundred and eighty, you will readily see
what a quandary I am in. Some of these applications are made with the
most extraordinary persistency, I might even call it ferocity, and these
invariably come from men who have held the office of mayor or
deputy-mayor for ten years, often in the most insignificant places."

The Minister of Justice then read a report made on the subject by a
_procureur-général_.

"In this department there are forty-seven _juges de paix_, twenty of
whom, as I learn from an enquiry, were mayors at the time of their
appointment. It is not to be wondered at that the number of provincial
magnates who aspire to the post is on the increase, for it seems to be
generally recognised in this department that elective office
irrespective of all professional aptitude is the normal means of access
to a paid appointment, more especially to that of _juge de paix_. Once
they are appointed, the mayors combine both their municipal and judicial
duties, and their interests lie far more in the commune which they
administer than in the district in which they dispense justice and
which, without permission, they should never leave. Sometimes these
district magistrates will go to any length to obtain moral support from
the politicians of the neighbourhood. They extort this as a sort of
blackmail given in exchange for the electoral influence which they can
bring to bear in their municipal capacity. They attach far less
importance to being quashed by the bench, than to the eventual support
of the deputy. Those who come into their courts are the unfortunate
victims of these compromising arrangements which are giving the
Republican system a bad name."

I think the Minister of Justice and his _procureur-général_ have very
little ground for these lamentations. After all the minister only
complains of having 9,000 applications for office. It would surely be
quite easy for him, in compliance with the generally recognised
principle, to choose those whose incompetence seems to be most thorough,
or those who are most influentially supported, according to the
prevailing custom.

As for the _procureur-général's_ sarcasms, which he thinks so witty,
they are quite delightfully diverting and ingenuous. "It seems to be
generally recognised that elective office, irrespective of all
professional aptitude, is the normal means of access to a paid
appointment." What else does he expect? It is eminently democratic that
the marked absence of professional capacity should single a man out for
employment. That is the very spirit of democracy. He surely does not
think that a man is an elector by reason of his legislative and
administrative capacity?

It is likewise essentially democratic that elective office should lead
to paid appointments, for the democratic theory is that all office, paid
and unpaid, should be elective. Why, this _procureur-général_ must be an
aristocrat!

As for the mutual services rendered by the justice, as mayor, to the
deputy, and by the deputy to the justice, this is democracy pure and
simple. The deputies distribute favours that they may be returned to
power; the influential electors put all their interest, both personal
and official, at the service of the deputies in order to obtain those
favours. They are hand in glove with each other, and form a solid
union of interests.

What more does the _procureur-général_ want? Does he want a different
system? If he wants another system, whatever else it may be, it will not
be democracy, or at least it will not be a democratic democracy. Nor
have I any idea what he means when he says the Republican system will
get a bad name. The good name of the Republic depends upon its putting
into practice every democratic principle; and democratic principles have
certainly never been more precisely realised than in the preceding
example, which I have had great pleasure in rescuing from oblivion and
presenting to the notice of sociologists.




CHAPTER VIII.

EXAMPLES OF INCOMPETENCE.


I have already compared this, our desire to worship incompetence, to an
infectious disease. It has attacked the State at the very core, in its
constitution, and it is not surprising that it is spreading rapidly to
the customs and to the morals of the country.

The stage, we know, is an imitation of life. Life also, to perhaps an
even greater extent, is an imitation of the stage. Similarly laws spring
from morals, and morals spring from law. "Men are governed by many
things," said Montesquieu, "by climate, religion, laws, precept,
example, morals and manners, which act and react upon each other and all
combine to form a general temperament."

Morals, more often than not, determine the nature of our laws,
particularly in a democracy, which is deplorable, but Montesquieu was
right in saying: "Morals take their colour from laws, and manners from
morals," for laws certainly "help to form morals, manners" and even
"national character." For instance in Rome under the Empire the code of
morals was to some extent the result of arbitrary power, as to-day the
moral character of the English is to some extent due to the laws and
constitution of their country.

We know that by his laws Peter the Great changed if not the character at
least the manners and customs of his people.

Custom is the offspring of law, and morals are the offspring of custom.
National character is not really changed, for character, I believe, is a
thing incapable of change, but it appears to be changed, and it
certainly undergoes some modifications; one set of tendencies is
checked, while others are encouraged.

The law abolishing the right of primogeniture has obviously affected
national morals, though it has not otherwise altered national character.
For a peculiar mental attitude is evolved by the constant domination of
an elder brother, whose birthright gives him precedence and authority
second only to that of the father. In countries where the right of
unrestricted testamentary bequests is still maintained, family morals
are very different from those which obtain where the child is
considered a joint proprietor of the patrimony.

Since the passing of the law permitting divorce, a sad but necessary
evil, there have been far more applications for divorce than there ever
were for separation. Can this be accounted for solely by the fact that
formerly it seemed hardly worth while to take steps to obtain the
qualified freedom of separation? I think not. For when a yoke is
unbearable, efforts to relax it would naturally be quite as strenuous
and as unremitting as efforts to get rid of it altogether.

The truth is, I think, that when both civil and ecclesiastical law
agreed in prohibiting divorce, people held a different view of marriage;
it was looked upon as something sacred, as a tie that it was shameful to
break, and that could not be broken except as a last resource and then
almost under pain of death. The law permitting divorce was what our
forefathers would have called a "legal indiscretion." It has abolished
the feeling of shame. Except where there is strong religious feeling,
there is now no scruple nor shame in seeking divorce. The old order has
passed away; modesty has been superseded by a desire for liberty, or for
another union. This change has been brought about by a law which was the
result of a new moral code; but the law itself has helped to enlarge and
expand the code.

Thus democracy extends that love of incompetence which is its most
imperious characteristic. Greek philosophers used to delight in
imagining what morals, especially domestic morals, would be like under a
democracy. They all vied with Aristophanes. One of Xenophon's characters
says: "I am pleased with myself, because I am poor. When I was rich I
had to pay court to my calumniators, who knew full well that they could
harm me more than I could them. Then the Republic was always imposing
fresh taxes and I could not escape. Now that I am poor, I am invested
with authority; no one threatens me. I threaten others. I am free to
come and go as I choose. The rich rise at my approach and give me place.
I was a slave, now I am a king; I used to pay tribute, now the State
feeds me. I no longer fear misfortunes, and I hope to acquire wealth."

Plato too is quietly humorous at democracy's expense. "This form of
government certainly seems the most beautiful of all, and the great
variety of types has an excellent effect. At first sight does it not
appear a privilege most delightful and convenient that we cannot be
forced to accept any public office however eligible we may be, that we
need not submit to authority and that every one of us can become a judge
or magistrate as our fancy dictates? Is there not something delightful
in the benevolence shown to criminals? Have you ever noticed how, in
such a State as this, men condemned to death or exile remain in the
country and walk abroad with the demeanour of heroes? See with what
condescension and tolerance democrats despise the maxims which we have
been brought up from childhood to revere and associate with the welfare
of the Republic. We believe that unless a man is born virtuous, he will
never acquire virtue, unless he has always lived in an environment of
honesty and probity and given it his earnest attention. See with what
contempt democrats trample these doctrines under foot and never stop to
ask what training a man has had for public office. On the contrary,
anyone who merely professes zeal in the public interests is welcomed
with open arms. It is instantly assumed that he is quite disinterested.

"These are only a few of the many advantages of democracy. It is a
pleasant form of government _in which equality reigns among unequal as
well as among equal things_. Moreover, when a democratic State, athirst
for liberty, is controlled by unprincipled cupbearers, who give it to
drink of the pure wine of liberty and allow it to drink till it is
drunken, then if its rulers do not show themselves complaisant and allow
it to drink its fill, they are accused and overthrown under the pretext
that they are traitors aspiring to an oligarchy; for the people prides
itself on and loves the equality that confuses and will not distinguish
between those who should rule and those who should obey. Is it any
wonder that the spirit of licence, insubordination, and anarchy should
invade everything, even the institution of the family? Fathers learn to
treat their children as equals and are half afraid of them, while
children neither fear nor respect their parents. All the citizens and
residents and even strangers aspire to equal rights of citizenship.

"Masters stand in awe of their disciples and treat them with the
greatest consideration and are jeered at for their pains. Young men want
to be on the same terms as their elders and betters, and old men ape the
manners of the young, for fear of being thought morose and dictatorial.
Observe too to what lengths of liberty and equality the relations
between the sexes are carried. You would hardly believe how much freer
domestic animals are there than elsewhere. It is proverbial that little
lap-dogs are on the same footing as their mistresses, or as horses and
asses; they walk about with their noses in the air and get out of
nobody's way."

Aristotle, faithless at this point to his favourite method of always
contradicting Plato, has no particular liking, as we have said, for
democracy. He does not spare it though he does not imitate Plato's
scathing sarcasm.

In the first place, Aristotle is frankly in favour of slavery, as was
every ancient philosopher except perhaps Seneca; but he is more
insistent on this point than anyone else, for he looks upon slavery, not
as one of many foundations, but as the very foundation of society.

He considers artisans as belonging to a higher estate but still as a
class of "half-slaves." He asserts as an historical fact that only
extreme and decadent democracies gave them rights of citizenship, and
theoretically he maintains that no sound government would give them the
franchise of the city. "Hence in ancient times, and among some nations,
the working classes had no share in the government - a privilege which
they only acquired under the extreme democracy.... Doubtless in ancient
times and among some nations the artisan class were slaves or
foreigners, and therefore the majority of them are so now. The best form
of State will not admit them to citizenship...."

He admits that democracy may be considered as a form of government ("...
if democracy be a real form of government...."), and he admits too
that "... multitudes, of which each individual is but an ordinary
person, when they meet together, may very likely be better than the few
good, if regarded not individually but collectively.... Hence the many
are better judges than a single man of music and poetry; for some
understand one part, and some another, and among them they understand
the whole. [Observe that he is still speaking of a democracy in which
slaves and artisans are not citizens.] Doubtless too democracy is the
most tolerable of perverted governments, and Plato has already made
these distinctions, but his point of view is not the same as mine. For
he lays down the principle that of all good constitutions democracy is
the worst, but the best of bad ones." But still Aristotle cannot help
thinking that democracy is a sociological mistake "... It must be
admitted that we cannot raise to the rank of citizens all those, even
the most useful, who are necessary to the existence of the State."

Democracy has this drawback that it cannot constitutionally retain
within itself and encourage eminent men. In a democracy "if there be
some one person or more than one, although not enough to make up the
whole complement of a State, whose virtue is so pre-eminent that the
virtues or the capacity of all the rest admit of no comparison with his
or theirs, he or they can be no longer regarded as part of a State; for
justice will not be done to the superior, if he is reckoned only as the
equal of those who are so far inferior to him in virtue and in political
capacity. Such an one may truly be deemed a God among men. Hence we see
that legislation is necessarily concerned only with those who are equal
in birth and in power; and that for men of pre-eminent virtue there is
no law - they are themselves a law. Anyone would be ridiculous who


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