Permanent senators were abolished. Obviously they constituted a political aristocracy, founded on the pretence of services rendered, and the Senate which elected them also fell under the taint of aristocratic leanings since at that time it recruited its members by co-optation. This of course could not be tolerated.

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CHAPTER III.

THE REFUGES OF EFFICIENCY.

Will efficiency then, you may well ask, when driven out of all public employment, find refuge somewhere? Certainly it will. In private employments and in employments paid by public companies. Barristers, solicitors, doctors, business men, manufacturers and authors are not paid by the state, nor are engineers, mechanics, railway employees; and so far from their efficiency being a bar to their employment, it is their most valuable asset. When a man consults his lawyer or his medical adviser he obviously has no interest in their politics, and when a railway company chooses an engineer, it enquires into his qualifications and ability and is quite indifferent as to whether his political views coincide with the general mentality of the people.

It is for this reason, or at least partly for this reason, that democracy tries to nationalise all employment, as a step in the direction of the nationalisation of everything. For instance it can partly nationalise the medical profession by establishing appointments for doctors, at relief offices, schools, and lycées. It can also partly nationalise the legal profession by appointing state-paid professors of law.

Already the State has considerable control over this class of person, for most of them have relations in government employment, whom they do not wish to bring into bad odour by seeming hostile to the opinions of the majority. The State, however, wants to hold them in still tighter control by seizing every opportunity of nationalising and socialising them more completely.

The State wants also to destroy all large associations, and to absorb their activities. The state purchase of a railway, for instance, is, in the first place, a means of exploiting the company; for there is always a hope that the State will be able to filch something out of the transaction; but its chief recommendation lies in the fact that it suppresses a whole army of the company's officials and employees, who were under no obligation to please the Government, and who had no other interest but to do their work properly. The State will thus transform this free population into government employees, whose primary duty is to be docile and subservient.

Under the extreme form and under the complete form of this regime, that is to say under socialism, everyone will be a government official.

Consequently, say the Socialist theorists, all the alleged drawbacks above mentioned will disappear. The State, the democracy, the dominant party, whatever you choose to call it, will no longer be obliged to select its servants, as you say it does, by reason of their subservience and their incompetence, because every citizen will be an official. Thus too will disappear that dual social system, under which half the population lives on the State, while the other half is independent, and prides itself on its superiority in character, in intelligence and in efficiency. Socialism solves the problem.

I do not agree. Under socialism, the electoral system, and, therefore, the party system will still exist. The citizens will choose the legislators, the legislators will choose the Government, and the Government will choose the directors of labour and the distributors of the means of subsistence. Parties, that is, combinations of interests, will still exist, and each party will want to capture the legislature in order to secure the election, from its own number, of the directors of labour and the distributors of the means of subsistence. These directors and distributors will be the new aristocrats of socialism, and they will be expected to arrange "soft jobs" and ampler rations for the members of their own group or party.

Except that wealth and the last vestiges of liberty have been suppressed, nothing has been changed, and all the objections above mentioned still hold. There is no solution here.

If it were a solution, then the socialist government could not long remain elective. It would have to reign by divine right, like the Jesuits in Paraguay. It would have to be a despotism, not only in its policy but in its origin, in fact a monarchy. No intelligent king has any inducement to choose incompetent men as his officials. His interest would lead him to do exactly the opposite. You will say that an intelligent king is a very rare, even an abnormal thing. I readily agree. Except in a very few instances, which history records with amazement, a king has exactly the same reasons as the people for selecting as his favourites men who will not eclipse nor contradict him, and who consequently seldom turn out to be the best of citizens either in respect of intelligence or character. Elective socialism and despotic socialism have the same faults as democracy as we understand the term.

Besides, in truth, the drift of democracy towards socialism is nothing but a reversion to despotism. If socialism were established, it would begin by being elective, and as every elective system lives and breathes and has its being in the party system, the dominant party would elect the legislature, consequently it would constitute the Government and would extort from that Government, simply because it has the power to extort it, every conceivable form of privilege. Exploitation of the country by the majority would result, as in every country where elective government prevails.

A socialist government therefore is primarily an oligarchy of directors of labour and distributors of subsistence. It is a very close oligarchy, for those beneath it are quite defenceless, levelled down to an equality of poverty and misery. It is a form of government very difficult to replace, for it holds in its hands the threads of such an intricate organisation that it must be protected against crude attempts to change it, and so it tends to be a permanent oligarchy. It would therefore concentrate very quickly round a leader, or at any rate, relegate to the second rank the national representatives and the electorate.

Such a course of events would be very similar to what occurred under the First Empire in France, when the military caste eclipsed and domineered over everything. It became continuously necessary to the State, and though that necessity passed away, it was soon recalled. The caste then closed its ranks round the leader who gave it unity, and the strength of unity.

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So under socialism, more slowly and perhaps after the lapse of a generation, the directors of labour and the distributors of food, peaceful Janissaries of the new order, would form themselves into a caste, very close, very coherent, and (unlike legislators for whom an executive council can always be substituted), quite indispensable, and would close their ranks round a chief who would give them unity and the strength of unity.

Before we knew socialism, we used to say that democracy tended naturally to despotism. The situation seems somewhat changed, and we might now say that it tends to socialism: really nothing has changed. For in tending towards socialism it is towards despotism that it tends. Socialism is not conscious of this, for it imagines that it is journeying towards equality, but out of these utopias of equality it is ever despotism that emerges.

But this is a digression which refers to the future; let us return to the matter in hand.

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CHAPTER IV.

THE COMPETENT LEGISLATOR.

Democracy, in its modern form, encroaches first upon the executive and then upon the administrative authorities, and reduces them to subjection by means of its delegates, the legislators, whom it chooses in its own image, that is to say, because they are incompetent and governed by passion, just as in the words of Montesquieu, though he perhaps contradicts himself a little: "The people is moved only by its passions."

What ought then the character of the legislator to be? The very opposite, it seems to me, of the democratic legislator, for he ought to be well informed and entirely devoid of prejudice.

He ought to be well informed, but his information should not consist only of book learning, although an extensive legal knowledge is of the greatest use, as it will prevent him from doing, as so often happens, the exact opposite of what he intends to do. He should also understand intimately the temperament and character of the people for whom he legislates.

For a nation should only be given the laws and commandments that it can tolerate, as Solon said: "I have given them the best laws that they could endure," and the God of Israel said to the Jews: "I have given you precepts which are not good," that is to say, they have only the goodness which your wickedness will tolerate. "This is the sponge," says Montesquieu, "which wipes out all the difficulties that can be raised against the laws of Moses."

The legislator, then, ought to understand the temperament and genius of the people because he has to frame its laws. As the Germans say, he ought to be an expert on the psychology of races. Further, he ought to understand the temperament, peculiarities and character of the people, without sharing its temperament himself. For where the passions and inclinations are concerned, experience is not knowledge. On the contrary, experience prevents us from really knowing; and indeed one of the conditions of knowledge is absence of an experience which may be another word for bias.

The ideal legislator, or indeed any legislator worthy of the name, ought to understand the general tendencies of his people, but he ought to be able to view them from a position of detachment and to be able to control them, because it is his business partly to satisfy and partly to combat these tendencies.

He has partly to satisfy them, or at least, to consider them, because a law which outraged the national temperament would be like Roland's mare, which had every conceivable good quality with this one serious defect, that she was dead, and born dead. Suppose the Romans had been given an international law decreeing respect for conquered peoples, it would have been a dead letter, and by a sort of contagion it would have led to the neglect of other laws. Suppose the French were given a liberal law, a law prescribing respect for the individual rights of the man and the citizen. Liberty, the object of such a law, is for the French, as Baron Joannès has remarked: "The right of each man to do what he likes and to prevent other men from doing what they like." In France such a law would never obtain any but a very grudging allegiance, and it would certainly lead to the neglect of other laws.

The legislator ought therefore to understand the natural idiosyncrasies of his people in order to know how far he dare venture to oppose them.

Partly he must combat them, because law should be to a nation, or otherwise it is merely a police regulation, what the moral law is to an individual. Law should be a restraint imposed continuously in the hope of future improvements. It should be a curb on dangerous passions and injurious desires. It should aid the warfare of enlightened selfishness against the selfishness of which all are ashamed. That is what Montesquieu meant when he said that morals should correct climate, and laws should correct morals.

The law, therefore, to a certain extent should correct national tendencies, it should be loved a little because it is felt to be just, feared a little because it is severe, hated a little because it is to a certain degree out of sympathy with the prevalent temper of the day, and respected because it is felt to be necessary.

This is the law that the legislator has to frame, and therefore he ought to have expert knowledge of the genius of the people for whom he legislates. He must understand both those tendencies which will resist and those which will welcome him. He must know how far he can go unopposed and how much he can venture without forfeiting his authority.

This is the principal and essential qualification for the legislator.

The second, as we said before, is that he must be impartial. The very essence of the legislator is that he should have moderation, that virtue on which Cicero set so high a value, which is so rare, if we look to its real meaning, the perfect balance of soul and mind. "It seems to me," said Montesquieu: "and I have written this book solely to prove it, that the spirit of moderation is essential in a legislator, for political, as well as moral right, lies between two extremes."

Nothing is more difficult for a man than to control his passions, or more difficult for a legislator than to control the passions of the people of whom he forms a part, to say nothing of his own. "Aristotle," says Montesquieu, "wanted to gratify, first, his jealousy of Plato and then his love for Alexander. Plato was horrified at the tyranny of the Athenians. Machiavel was full of his idol, the Duke of Valentinois. Thomas More, who was wont to speak of what he had read rather than of what he had thought, wanted to govern every state upon the model of a Greek city. Harrington could think of nothing but an English republic, while hosts of writers thought confusion must reign wherever there was no monarchy. Laws are always in contact with the passions and prejudices of the legislator, whether these are his alone, or common to him and to his people. Sometimes they pass through and merely take colour from the prejudice of the day, sometimes they succumb to it and make it part of themselves."

This is just the opposite of what should be. The legislator should be to the people what conscience is to the heart of the individual. He should understand its besetting passions in all their bearings and not be deceived by subterfuge or hypocrisy. Sometimes he must attack them boldly, sometimes play off one against another, or favour one at the expense of another which is less influential, now yielding ground, now recovering it, but he must ever be skilful and impartial and never be intimidated, diverted from his purpose, nor deceived by his natural enemies.

He should be, so to speak, more conscientious than conscience itself, because he must never forget that he has to obey to-morrow the law which he makes to-day—semel jussit semper paruit. He must, therefore, be absolutely disinterested, a thing most difficult for him, but for which conscience requires no effort.

Not only must he be without passion, but he must have trained himself to be impervious to passion, which is much more. We must conceive of him as a conscience that has risen from the ashes of passion.

As Rousseau said, "to discover the perfect ruler for human society we must find a superior intelligence who has seen all the passions of man but has experienced none of them, who has had no sort of relations with our nature but who knows it to the core, whose happiness is not dependent on us, but who wishes to promote our welfare, in a word, one who aims at a distant renown, in a remote future, and who is content to labour in one age and to enjoy in another."

This is why the ingenious Greeks imagined certain legislators going into exile to some remote and unknown retreat, as soon as they had made the people adopt and swear obedience to their laws until their return. It may have been to bind the citizens by this oath, but is it not equally probable that they wished to escape from the laws which they themselves had made? Possibly they felt that they could make them all the stricter with the prospect of being able to evade obedience of them by flight.

Proudhon said: "I dream of a republic so liberal that in it I shall be guillotined as a reactionary." Lycurgus was perhaps like Proudhon, in that he founded so severe a republic that he knew he could not live under it and resolved to leave it as soon as it was established. Solon and Sylla remained in the states to which they had given laws; we must therefore place them higher than Lycurgus who has perhaps this excuse for himself that in all probability he never existed at all.

But the legend remains to show that the legislator should be so superior to his own passions and to the passions of his people, that, as legislator, he should make laws before which, as a man, he should stand in awe.

This moderation, in the sense in which we use the term, has sometimes led the legislator to suggest or insinuate laws rather than impose them. This is not always possible, but it is so occasionally. Montesquieu tells us the following of St. Louis: "Seeing the manifold abuses of justice in his time he endeavoured to make them unpopular. He made many regulations for the courts in his own domain, and in those of his barons, and he was so successful, that only a short time after his death his methods were adopted in the courts by many of his nobles. Thus this prince attained his object, although his regulations were not promulgated as a general law for the whole kingdom, but merely as an example which any one might follow in his own interest. He got rid of an evil by making patent the better way. When men saw in his courts and in those of his nobles more reasonable and natural forms of procedure, more conformable to religion and morality, more favourable to public tranquillity and to the security of persons and property, they adopted the substance and abandoned the shadow. To suggest where you cannot compel, to guide where you cannot demand, that is the supreme form of skill."

Montesquieu adds with some optimism though no doubt the idea is encouraging: "Reason has a natural empire, we resist it, but it triumphs over our resistance; we persist in error for a time but we always have to return to it."

The instance above quoted is very remote, and can hardly be applied to anything in our day. But consider, for instance, the law of Sunday observance which has been revived from the ecclesiastical law. It was a mistake to include it in the Code because it was antagonistic to many French customs, and, in many ways, to the national temperament. The result is what might have been expected, namely, that it has only been carried out in rare instances, and with an infinity of trouble. It might have been made the subject of an edict without being included in the Code. The State might have given a holiday on Sunday to all its officials, employees and workmen. It might have been made quite clear simply by a circular from the Minister of Justice that a workman would not be punished for breach of contract by refusing to work on a Sunday. The law of a weekly day of rest would then have existed, without being formally promulgated, and would have been limited precisely where it should be, by agreement between masters and men who would submit to working on Sundays when they saw that it was necessary and inevitable. Moreover this law would be strong enough to modify without destroying the ancient customs of the people.

Here is another instance which occurs within the law laid down by the Code, where the legislator makes use of a method of suggestion and recommendation. Early in the nineteenth century the legislator considered that it was seemly for a husband who surprised his wife in adultery to kill both her and her accomplice. The sentiment is perhaps questionable, but at all events, it was current. Was it given legal sanction? No, not precisely. It is inserted in the law in the form of an insinuation, a discreet recommendation and affectionate encouragement. The legislator wrote these words: "In flagrante delicto murder is excusable." I am not approving the sentiment, but only this manner of indicating rather than enforcing the law and what is thought to be a wholesome practice, and in other instances I should think it excellent.

Finally, one of the essential qualities of the legislator is to show discretion in changing existing laws, and for this purpose he should be immune from the passions of men or at all events complete master of those which beset him. For law has no real authority unless it is ancient. Where a law is merely a custom which has become law, it is invested with considerable authority from the first, because it gains strength by the antiquity of the original custom. When on the other hand a law is not an old custom but runs counter to custom, then, before it can have any authority, it must grow old and become a custom itself.

In both cases it is on its antiquity that the law must depend for its strength. The law is like a tree, at first it is a tender sapling, then it grows up, its bark hardens, and its roots go deep into the ground and cling to the rock.

We ought to consider carefully before we venture to replace the forest tree by the young sapling. "Most legislators," said Usbek to Rhédi,[A] "have been men of limited abilities, owing their position to a stroke of fortune, and consulting nothing but their own whims and prejudices. They have often abolished established laws quite unnecessarily, and plunged nations into the chaos that is inseparable from change. It is true that, owing to some odd chance arising out of the nature rather than out of the intelligence of mankind, it is sometimes necessary to alter laws, but the case is very rare and when it does arise it should be handled with a reverent touch. When it is a question of changing the law, much ceremony should be observed, and many precautions taken, in order that the people may be naturally persuaded that laws are sacred things, and that many formalities must precede any attempt to alter them."

In this passage, as so often elsewhere, Montesquieu is quite Aristotelian, for Aristotle wrote: "It is evident that at times certain laws must be changed, but this requires great circumspection for, when there is little to be gained thereby, inasmuch as it is dangerous that citizens should be accustomed to find it easy to change the law, it is better to leave a few errors in our magisterial and legislative arrangements than to accustom the people to constant change. The disadvantage of having constant changes in the law is greater than any risk that we run of contracting a habit of disobedience to the law." For the law assuredly will be disobeyed, if we regard it as ephemeral, unstable, and always on the point of being changed.

Some knowledge of the laws of the most important nations, a profound knowledge of the temperament, character, sentiments, passions, opinions, prejudices and customs of the nation to which he belongs, moderation of heart and mind, judgment, impartiality, coolness, nay even a measure of stolidity, these are the attributes of the ideal legislator. Rather they are the necessary qualifications of every man who purposes to frame a good law; they are, indeed, the elementary attributes of a legislator.

We have seen that it is the very opposite quality that democracy likes and expects of its legislators. It selects incompetent and almost invariably ignorant men, I have explained why; and its nominees are of a double distilled incompetence in that their passions would certainly neutralise their efficiency if they possessed any.

Further we have to observe this curious fact. So entirely does democracy choose its legislators, because they are dominated by passion, and not in spite of the fact, chooses them indeed precisely for the reasons for which it ought to reject them, that any moderate, clear-headed, practical man who wants to be elected and make use of his powers, has to start by dissembling his moderation, and by making a noisy display of factious violence. If he wants to be nominated to a post where it will be his business to defend and guarantee public security, he has to begin by advocating civil war: to become a peacemaker he must first pose as a rebel.

Every popular favourite passes through these two phases, and has to complete one stage before he starts on the next. Is it not better, you will ask, that a man's whole career should be spent in defence of law and order rather than the latter part of it? Not at all, because you cannot exercise any influence as a friend of law and order unless you have begun as an anarchist.

These changes of opinion occur so frequently that they merely raise a smile. They have, however, this drawback, that the friend of law and order, with a seditious past, never has an undisputed authority, and he spends half his time explaining the reasons for his defection, and this is a sore let and hindrance to his subsequent career.

The people always elects men swayed by real or simulated passion. These will either always remain in a state of frenzied excitement, and they are the great majority, or they will become moderate men, largely disqualified and handicapped, as we have above shown, for their new career. The vast majority of these sentimentalists rush into politics instead of studying them with deliberation, judgment and wisdom. The canons of good government as above set out are entirely subverted. The law does not control and restrain the passions of the populace. Legislation becomes little more than an expression of their frenzy, a series of party measures levelled by one faction against the other. The introduction of a bill is a challenge; the passing of an act is a victory; definitions which at once damn the legislator, and convict the system.

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CHAPTER V.

LAWS UNDER DEMOCRACY.

The truth of my contention is proved by the fact that nowadays all our laws are emergency laws, a thing that no law should ever be. Montesquieu advised people to be very chary and to think twice before they destroyed old laws or pulled down an old house to run up a tent, but his advice is completely ignored. New laws are made for every change in the weather, for every little daily incident in politics. We are getting used to this hand-to-mouth legislation. Like the barbarian warrior, of whom Demosthenes tells us, who always protected that portion of his person which had just received a blow, holding his shield up to his shoulder, when his shoulder had been struck, down again to his thigh when the blow fell there, the dominant faction only makes laws to protect itself against an adversary who is, or is thought to be, already in the field, or it introduces a hurried, ill-digested reform under the pressure of an alleged scandal.

If an aspirant to the tyranny, as they used to say in Athens, is nominated deputy in too many constituencies, instantly a law is passed prohibiting multiple candidatures. For the same reason, for fear of the same man, scrutin de liste is hurriedly replaced by scrutin d'arrondissement.[B]

If an accused woman is supposed to have been ill-treated at her examination, taken too abruptly before the interrogatory of the president, or if the counts are ineptly set out by the public prosecutor, instantly the whole of the criminal procedure is radically reformed.

It is the same everywhere. The legislative workshops turn out only "the latest novelties" of the season. Or perhaps a newspaper would be a still better simile. First there is the 'interpellation,'[C] once at least every day; that corresponds to the leading article. Then there are questions for ministers on this, that and the other trivial occurrence; that is the serial or short story. Then there is a bill brought in about something that happened the night before, that is the special article. Then some deputy assaults his neighbour, this is the general news column.

You could not have a more faithful representation of the country. Everything that happens in the morning is dealt with in the evening as it might be in the village pot-house. The legislative chamber is an exaggerated reflection of the gossiping public. Now it ought not to be a copy of the country, it ought to be its soul and brain. But when a national representative assembly represents only the passions of the populace it cannot be otherwise than what it is.

In other words modern democracy is not governed by laws but by decrees, for emergency laws are no better than decrees. A law is an ancient heritage, consecrated by long usage, which men obey without stopping to think whether it be law or custom. It forms part of a coherent, harmonious and logical whole. A law improvised for an emergency is merely a decree. This is one of the things that Aristotle saw better than any one. He comments frequently upon the essential and fundamental distinction between the two, and explains how it is as dangerous to misunderstand as to ignore it. I quote the passage in which he brings this out most forcibly: "A fifth form of democracy is that in which not the law but the multitude has the supreme power, and supersedes the law by its decrees. This is a state of affairs brought about by the demagogues. For in democracies which are subject to the law, the best citizens hold the first place and there are no demagogues; but where the laws are not supreme, there demagogues spring up. For the people becomes a monarch and is many in one; and the many have the power in their hands, not as individuals but collectively.... And the people, who is now a monarch, and no longer under the control of law, seeks to exercise monarchical sway, and grows into a despot; the flatterer is held in honour; this sort of democracy being relatively to other democracies what tyranny is to other forms of monarchy.

"The spirit of both is the same, and they alike exercise a despotic rule over the better citizens. The decrees of the Demos correspond to the edicts of the tyrant, and the demagogue is to the one what the flatterer is to the other. Both have great power—the flatterer with the tyrant, the demagogue with democracies of the kind which we are describing. The demagogues make the decrees of the people override the laws, and refer all things to the popular assembly. And therefore they grow great, because the people has all things in its hands and they hold in their hands the votes of the people, who is too ready to listen to them. Such a democracy is fairly open to the objection that it is not a constitution at all; for where the laws have no authority there is no constitution. The law ought to be supreme over all. So that if democracy be a real form of government, the sort of constitution in which all things are regulated by decrees is clearly not a democracy in the true sense of the word, for decrees relate only to particulars."

This distinction between true law, that is to say, venerable law, framed to endure, part of a co-ordinate scheme of legislation, and an emergency law which is merely a decree like the wishes of a tyrant, constitutes the whole difference, if we could realise it, between the sociologists of antiquity and those of to-day. By the term Law, the ancient and the modern sociologists mean two different things and this is the reason for so many misunderstandings. When he speaks of law, the modern sociologist means the expression of the general will at such and such a date, 1910 for instance. The ancient sociologist would consider that the expression of the general will in the second year of the 73rd Olympiad was not law at all, but a decree. A law to him would be a paragraph of the legislation of Solon, Lycurgus or Charondas. Whenever in a Greek or Roman political treatise we meet the expression—"a State governed by laws," the only way to translate it is—"a State governed by a very ancient and immutable legislation." This gives the true meaning to the famous personification of laws in the Phædo, which would be quite meaningless if the Greeks had understood what we do by the term. Are laws the expression of the general will of the people? If so why should Socrates have respected them, he who despised the people to the day he was condemned? It would be absurd. These laws which Socrates respected were not the decrees of the people contemporary with Socrates; they were the ancient gods of the city, which had protected it from the earliest days.

These laws may err in that they seemed to sanction the verdict that condemned Socrates to death, but they were honourable, venerable and inviolate, because they had been the guardians of the city for centuries, and guardians of Socrates himself until the day when they were misapplied against him.

A "constitution," therefore, to adopt Aristotle's terminology, is a State which obeys laws, that is to say, laws framed by its ancestors.

It is, then, an aristocracy, for it is even more aristocratic to obey our ancestors themselves by obeying the thoughts which they embedded in legislation, five centuries ago, than to obey the inheritors of their tradition, the aristocrats of to-day. For aristocrats of to-day belong only partly to tradition, in that they live in the present. Whereas a fifteenth century law belongs to the fifteenth century and to no other period. To obey law as understood by the ancient sociologists, did not mean obeying Scipio who has just passed us on the Via Sacra. It meant to obey his grandfather's great grandfather! All this is ultra-aristocratic.

Precisely! Law is an aristocratic thing; only the emergency law, the decree, is democratic. For this reason Montesquieu always speaks of a monarchy as being limited, and, at the same time, maintained by its law. What did this mean in his day, when there was no "expression of the general will" to limit monarchy, and when royalty possessed legislative power, and could at will make and remake laws? It could only mean one thing, namely, that Montesquieu's conception of law was the same as that of the ancient sociologists,—law far older than his time, "fundamental laws" as he calls them, of the ancient monarchy, which still bind and ought so to bind the monarch, whose rule without them would be despotism or anarchy. Law is essentially aristocratic. It ordains that rulers should govern the people, and that the dead should govern the rulers. The very essence of aristocracy is the rule of those who have lived over those who live, for the benefit of those who shall live hereafter. Aristocracy, properly so called, is an aristocracy in the flesh. Law is a spiritual aristocracy. Aristocracy, as represented by the aristocrats of to-day, only represents the dead by tradition, inheritance, education, physiological heredity of temperament and characteristics. Law does not represent the dead, it is the dead themselves, it is their very thought perpetuated in immutable script.

A nation is aristocratic both in form and spirit which preserves its old aristocracy and maintains its vitality by careful infusions of new blood. Still more is that nation aristocratic which maintains its old legislation inviolate, adding to it, reverently and discreetly, new laws which combine something of the modern spirit with the spirit of the old. Homines novi, novæ res. Homo novus means the man without ancestors who is worthy to be added to the ranks of the nobly born. Novæ res are things without antecedents, nay revolution itself. Novæ res should only be introduced partially gradually, insensibly and progressively into ancient things, as "new men" into the community of the old nobility. Law is more aristocratic than aristocracy itself, hence democracy is the natural enemy of laws and can only tolerate decrees.

Our examination of modern democracy has brought us to the following conclusions. The representation of the country is reserved for the incompetent and also for those biassed by passion, who are doubly incompetent. The representatives of the people want to do everything themselves. They do everything badly and infect the government and the administration with their passion and incompetence.

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CHAPTER VI.

THE INCOMPETENCE OF GOVERNMENT.

This is not all. The law of incompetence spreads still further, either by some process of logical necessity or by a sort of contagion. It has often been made the subject of merriment, for, like all tragedy, when we regard it with good humour the matter has its comic side, that it is very rare for any high office to be given to a man who is competent for the post. Generally the Minister of Education is a lawyer; the Minister of Commerce, an author; the War Minister, a doctor; the Minister for the Navy, a journalist. Beaumarchais' epigram "The post required a mathematician—it was given to a dancing master!" strikes the keynote much more of a democracy than of an absolute monarchy.

The matter is so generally recognised that it has a sort of retroactive effect upon the historical ideas of the masses. Three Frenchmen out of every four are convinced that Carnot was a civilian, and the statement has often appeared in print. Why? because it is inconceivable that under a democracy the War Minister could possibly be a soldier, or, that the members of the Convention could possibly have given the War Office to a soldier. This appeared too paradoxical to be true.

At first sight this extraordinary method of making incompetent men into ministers seems merely a joke, merely the subtle and entertaining vagaries of the goddess Incompetence. Partly it is so but not entirely. The man whose business it is to appoint ministers has to divide the choicest plums of office among the various groups of the majority which supports him. As all of these groups do not contain specialists, the highest offices are disposed of on political grounds, and not on grounds of professional aptitude. I have shown what the result is; the only ministerial appointment which is made in a rational manner is that which the President of the Council reserves for himself, and even in this case in order to conciliate some important political personage he very often gives it up and takes some post for which he is not so well suited.

See what follows: each department is directed by an incompetent man, who, if he be conscientious, sets himself to learn the work in which he ought to be a fully trained expert, or, if he be not conscientious, and be pressed for time, as he always is, he directs his department according to his general political theories and not according to practical common sense—a double distillation of incompetence.

We know the kind of speech a new Minister of Agriculture makes to his staff. He harangues them on the principles of the revolution of 1789.

Moreover, in a highly centralised country, the minister does everything in his own department. He has to do everything under the pressure, it is true, of the national representatives; but still his is the supreme authority. It is easy to see what sort of decisions he will make. They are often very little supported by law, and sometimes are even contrary to law, and then they remain a dead letter from the first. Ministerial circulars often have a remarkable character for illegality. In that case they fall and are forgotten, but not always before they have introduced a vast amount of trouble throughout the entire administration.

As to appointments, they are made, as I have said, by political influence, and even when they are flagrantly improper and corrupt, there is no chance of their being corrected by the competence of a minister, who, holding enlightened views on the business and subordinates of his office, is able to put his foot down and say "No! this will not do, we must draw the line somewhere."

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CHAPTER VII.

JUDICIAL INCOMPETENCE.

Here we find incompetence spreading its influence by the logical necessity of the case. There are other quarters in which it grows by a sort of contagion. Have you ever noticed that the ancien régime, in spite of grievous shortcomings, by a sort of historical tradition, maintained a certain respect for efficiency in its different forms? For instance in matters of jurisdiction, there were seignorial, ecclesiastical and military courts. These were not founded as the result of argument and profound consideration, but by the natural course of events, by history itself, and they were maintained and approved by a monarchy which was verging on despotism.

Seignorial jurisdiction, without much rational justification, was none the less of considerable utility; it bound, or was capable of binding, the noble to his land, it prevented him from losing sight of his vassals, and his vassals from losing sight of him, and was in fact a conservative force in the aristocratic constitution of the kingdom. I submit that if this jurisdiction had been properly defined, limited and modified, which was never done, it would have been consonant with the law of competence. There are various local matters which come quite properly within the province of the noble, who in those days took the place of the magistrate. All that was wanted was that such matters should have been defined with precision and that in every case appeal should have been allowed.

Ecclesiastical jurisdiction was perfectly reasonable, as offences committed by ecclesiastics have a special character of which ecclesiastics alone can judge. This seems strange to modern ideas, although nowadays there are commercial courts and conciliation boards, because litigation between men of business, between workmen and women workers, and between employers and employed, can only be decided by men who have technical knowledge of the subject in dispute. Appeal, moreover, to a higher court is always allowed.

Finally, in the old days there used to be military jurisdiction for precisely the same reason.

All these exceptional jurisdictions are objects of the liveliest apprehension to democracy, because they infringe the rule of uniformity, which is the image and often the caricature of equality, and also because they are a stronghold of efficiency.

Democracy of course demolished aristocratic courts together with the aristocracy itself, and ecclesiastical courts together with the Church when it ceased to be an estate of the realm. Any special jurisdictions which still remain are looked upon as instruments of aristocracy; courts-martial are held in abhorrence because they have ideas of their own in respect of military honour and duty, and military offences. Therein lies their efficiency, a thing absolutely necessary, if we are to maintain military spirit and discipline in a strong army. The private soldier or officer, who is only judged and punished as a civilian, will not be well judged nor adequately punished, considering the special duties and services which are required of the army. This is a question of moral as well as technical efficiency and to this the democracy pays no heed, because it is convinced that no special efficiency is necessary and that common sense is all that is required. Common sense, however, is like wit; it is useful in every walk of life, but is not sufficient in any one of them. This is just what democracy cannot or will not understand.

It makes just as great a mistake in its civil and criminal jurisdiction, though it has, up to now, so far departed from its principles as to appoint qualified jurists to civil judgeships. No one denies that this body of men is efficient. Those who act as judges know their law. There is, however, as I have often had occasion to point out, a moral as well as a technical efficiency, and in limiting the independence that is essential to moral efficiency, democracy neutralises the technical efficiency of its servants. Let me explain my meaning further.

Formerly the magistracy was a recognised and autonomous branch of the public service, and as a result, save as it was affected by revolution and in normal times by the fear of revolution, enjoyed an absolute independence. This gave, or rather preserved intact, its moral efficiency. For moral efficiency consists in an ability to act according to the dictates of conscience, and is equivalent to a sort of moral independence.

Now, the magistrates form a department of the administration and are a body of officials. The State appoints, promotes or refuses to promote and pays them. In short the State has them at its mercy, just as military officers are controlled by the War Office, or tax-collectors by the Treasury. Hence they are deprived of their independence and moral efficiency, for they are always tempted to give judgment as the Government would wish.

There is, it is true, a guarantee for their independence in the permanence of their appointments, but this only applies to those who have reached the summit of their profession, or are on the point of retiring, or have no further interest in promotion. The young magistrate who wants to get on, a perfectly legitimate ambition, is by no means independent, for if he does not give satisfaction, he may enjoy a peculiar kind of permanence, the permanence of standing still at the starting point. The only independent judges, to whom justice is the sole interest, are either those who have served for forty years or the President of the Cour de Cassation. I may add also the man of independent means who is indifferent to promotion and content to spend all his time at the place of his first appointment. He is exactly like the magistrates in old days, but he and his kind get rarer every year.

At best, moreover, this permanence, of which so much is thought, is an illusory guarantee, for it is often suspended by one Government or another, and the magistrates are constantly at the mercy of political crises. Their moral efficiency is indeed sorely tried.

I affirm, therefore, that this diminution of moral efficiency affects technical efficiency, because magistrates dare not insist on technical exactitude when cases arise between the State and individuals, or between those who are protected by Government and those who are not. Though cases in which the State is a party do not occur very often, those in which friends of the Government are involved are of daily occurrence in a country where Government is a faction waging incessant warfare against all other factions.

It has been said with much reason that parliamentary government on a basis of universal suffrage is legalised and continuous civil war. It is usually a bloodless civil war, but its weapons are insults, provocations, calumnies, personalities, libel actions. These go on from one year's end to the other. In a country where such a state of affairs is prevalent, the magistracy ought to be absolutely independent in order to be impartial. Yet it is precisely in a country like this that the magistracy, not being independent and autonomous, is obliged to avoid offending the party in office which, moreover, is extremely exacting, for it lives in constant fear that it may be turned out of power.

—Is there nothing to be done? Would you advocate a return to the practice of purchasing judicial appointments?—

In the first place, this would not be anything so very terrible, and secondly, it might be quite possible to secure all the advantages of purchase without its actual practice.

I can show you that it is not so very terrible, for the case is parallel with that of the exceptional jurisdictions, the mention of which filled you with horror till you remembered the commercial courts and the councils of experts, all excellent institutions. We are appalled at the idea of a magistrate purchasing his office, and yet we employ advocates and solicitors and other legal officials and trust them with our most precious interests, yet they have, many of them, either bought or inherited their practice. Under a system of purchase, we should be judged by lawyers of whom we required more extensive legal knowledge than is at present required of the profession. We should be judged in fact by solicitors and advocates of a superior order. There is nothing very alarming about that.

Montesquieu was in favour of a system of purchase. Voltaire opposed it strongly. They were both right and were indeed agreed on general principles. Montesquieu says: "Venality,—the purchase system,—is a good thing under a monarchical form of government, because work which would not be done from mere civic virtue is then undertaken as a family business. Each man's duty is laid down for him, and the orders of the State are given greater permanence. Suidas says very aptly of Anastasius that he turned the Empire into an aristocracy by selling magisterial offices."

Voltaire replies: "Is it as a matter of civic virtue that in England a judge of the King's Bench accepts his appointment?" (It is either a matter of civic virtue or of profit and interest, and if it is not profit, it certainly must require considerable civic virtue.) "What! can we not find men in France willing to judge if we bestow their appointments upon them gratuitously?" (We certainly can: but they might be too grateful!) "Can the work of administering justice, disposing of the lives and fortunes of men, become a family business?" (Well, the business of bearing arms and disposing of men's lives and fortunes in civil war was in 1760 a family business. So too the business of being king, and you do not protest against that!) "It is a pity that Montesquieu should dishonour his work by such paradoxes, but we must forgive him; his uncle purchased a provincial magistrate's office and left it to him. Human nature comes in everywhere. None of us is without weaknesses."

Montesquieu thinks aristocratic bodies are good things. Voltaire is in favour of absolute power. Montesquieu would like the judicature to be a family office, that is to say hereditary like the profession of a soldier; this would make the judicial profession permanent like other professions. He demonstrates, as does Suidas, that the purchase system creates an aristocracy. Voltaire, like Napoleon I., would make his soldiers, his priests, and his judges, king's men. They should all belong to the king, body and soul.

Montesquieu had a greater antagonist than Voltaire in Plato. Plato wrote in his Republic, referring to all judicial offices: "It is as if on board ship a man were made a pilot for his wealth. Can it be that such a rule is bad in every other calling, and good only in respect of the governing of a republic?"

Montesquieu answers Plato (and in anticipation Voltaire) very wittily: "Plato is speaking of a virtuous republic and I of a mere monarchy. Under a monarchy if offices were not sold by rule, the poverty and greed of courtiers would sell them all the same, and chance after all will give a better result than the choice of a prince."

To sum up, Montesquieu wants the magistracy to be partly hereditary, and partly recruited from the wealthy classes, an independent, aristocratic body analogous to the army or the clergy, administering justice with that technical efficiency which university standards can guarantee, and with the moral efficiency which is founded on independence, dignity, public spirit and impartiality.

I said above that venality, or the system of purchase, was not necessary to obtain these results. The principle is this, that the magistracy must be independent, and to be independent it must have a proprietary right in its duties. This can only be obtained if it hold its office by inheritance or purchase as was done under the ancien régime; or, if it were somehow contrived that magistrates should not be chosen by the Government. The purchase or inheritance plan is not popular, then the only alternative is that the magistrates should be chosen by some body other than the Government. By whom then? The people? Then the judges would be dependent upon the people and the electors.

—That would be better, or less bad.—

Not at all. If the judges were chosen by the electors, they would be even less impartial than if they were elected by the Government. The judge then would think of nothing but of being re-elected. He would always give judgment in favour of the party which had elected him. Would you care to be judged before a court composed of the deputies of your department? Certainly not, if you belong to the weaker party. Yes, if you belong to the majority, but then only if you are certain that your adversary belongs to the minority, or, if he belong to your own party, that he is a less influential elector than yourself. To sum up, there is no guarantee of impartiality if the judges are elected.

Further, if the system of electing judges by those liable to their jurisdiction were adopted, there would be an extensive and, I might add, a most entertaining variety of justice. Judges, who were elected by a "blue" or republican majority, and who were anxious for re-election, would always deliver judgment in favour of the blues. The same thing would happen in the "white" or royalists districts. "Justice has her epochs," Pascal said ironically, and in this case justice would have her districts. It would not be the same in the Alpes-Maritimes as in the Côtes-du-Nord. The Court of Appeal, if it attempted to be impartial, would spend its time sending cases back from a blue district to be revised in a white, and the decisions delivered in a white country to be revised in a blue. There would be judicial and legal anarchy.

—If the bench is not to be inherited, nor bought, nor chosen by the Government, nor elected by the people, by whom is it to be nominated?—

By itself; I see no other solution.

For instance I can suggest one good method, though there may be several. All the doctors of law in France could choose the judges of appeal and the judges of appeal could choose and promote all the judges. This is an aristocratic-democratic scheme on a very broad basis.

Or else the judges alone might choose the judges of appeal, and the judges of appeal might appoint and promote the judges. That is an oligarchical method.

Or again, here is a plan for passing from the system that is, to that which ought to be. For the first time the doctors of law might choose the Cour de Cassation, and it could choose the judges. Afterwards the judges could fill the vacancies in the Cour de Cassation, which would nominate and promote the judges.

The Government would still go on, and continue to nominate the persons eligible to serve as magistrates.

Under all these systems the judges would form an autonomous, self-creative body, dependent upon and responsible to themselves alone, and by reason of their absolute independence, strictly impartial.

—But they would form a caste!—

They would form a caste. I am sorry for it, but it is the case. You will never be well judged until you have a judicial caste, which is neither the Government, nor the world at large. For the Government cannot judge properly when it is both judge and party to the suit. Further, if it be litigious; it will never be out of court. Again, the world at large cannot judge properly, because, in practice, the world at large means the majority, and the majority is a party, and by definition a party can hardly be impartial.

But democracy does not want to be judged by a caste. In the first place because it abhors castes, and secondly because it does not care about impartial justice. Do not exclaim at the paradox. Democracy does want to be judged impartially in little every-day cases, but in all important cases in which a political question is involved and in which one of the majority is opposed to one of the minority, the verdict then has to be for the stronger side.

It says to the judicial bench what a simple-minded deputy said to the President of the Chamber: "It is your duty to protect the majority."

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."