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 pa.s.sions 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 pa.s.sion, 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 pa.s.ses 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 pa.s.sion. 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 pa.s.sions 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 pa.s.sing of an act is a victory; definitions which at once d.a.m.n the legislator, and convict the system.

[A] Characters in Montesquieu's _Lettres Persanes_. Letter cxxix.

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 const.i.tuencies, instantly a law is pa.s.sed prohibiting multiple candidatures. For the same reason, for fear of the same man, _scrutin de liste_ is hurriedly replaced by _scrutin d'arrondiss.e.m.e.nt_.[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 a.s.saults 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 a.s.sembly represents only the pa.s.sions 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 pa.s.sage in which he brings this out most forcibly: "A fifth form of democracy is that in which not the law but the mult.i.tude 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 a.s.sembly. 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 const.i.tution at all; for _where the laws have no authority there is no const.i.tution_. The law ought to be supreme over all. So that if democracy be a real form of government, _the sort of const.i.tution 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, const.i.tutes 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 Phaedo, 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 G.o.ds 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 "const.i.tution," 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 pa.s.sed 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, novae res. h.o.m.o novus_ means the man without ancestors who is worthy to be added to the ranks of the n.o.bly born. _Novae res_ are things without antecedents, nay revolution itself. _Novae res_ should only be introduced partially gradually, insensibly and progressively into ancient things, as "new men" into the community of the old n.o.bility. 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 bia.s.sed by pa.s.sion, 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 pa.s.sion and incompetence.

[B] See _France_, by J. E. C. Bodley, 1899, pp. 334, 335. Under _Scrutin de liste_ "the department is the electoral unit, each having its complement of deputies allotted to it in proportion to its population, and each elector having as many votes as there are seats ascribed to his department, without, however, the power to c.u.mulate."

_Scrutin d'arrondiss.e.m.e.nt_ is election by single-member const.i.tuencies.

The _arrondiss.e.m.e.nt_ is the electoral unit.

[C] This is a question put to a minister by a deputy. "The effect ... is somewhat similar to a motion to adjourn the house in the English Parliament." Bodley, p. 445.

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 ma.s.ses. 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 G.o.ddess 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 apt.i.tude. 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."

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 regime_, 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 n.o.ble to his land, it prevented him from losing sight of his va.s.sals, and his va.s.sals from losing sight of him, and was in fact a conservative force in the aristocratic const.i.tution 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 n.o.ble, 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.