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Anglican Church. Visit to the Alms-house of the county. Walk.
Very agreeable evening.
(Tocqueville, p. 129)
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Conversation with Mr. [John Canfield] Spencer
Mr. Spencer is a distinguished man of law. He has been
successively a lawyer, district
attorney and
a
member of Congress and is at the moment a member of the New York
legislature. He has been
one of
the
editors of the Revised Statutes [a periodic official publication of
all the laws of the U.S.]
Clearness
and
perspicacity seem to be the guiding lights of his spirit.
Q. Are the members of the two chambers of the various
legislatures chosen in the same way
and
according to the same rules of eligibility?
A. Yes. In the State of New York in particular there is just
the same type of man filling both
chambers.
Q. But what then is the point of having two chambers?
A. It is immensely useful and so well appreciated that now
everyone in America accepts it as
an axiom that a single legislative body is a detestable
institution. Pennsylvania, which began by
making
the
mistake of having only one assembly, has had to give it up.
Here are the chief advantages of a legislative body with two
houses: the first and most
important
is
to make a resolution pass two tests; between the two discussions
time passes to the advantage of
good
sense and moderation. It is continually happening that the Senate,
although composed of similar
elements
and moved by the same spirit as the legislature, sees the matter in
a different light and corrects
mistakes
which the former, prejudiced as it is by a first vote, would not be
able to correct.
The second advantage which I see in the institution of our
Senate is that the senators hold
office
for
longer than the Representatives and since they are replaced in
batches, always form a body of
men
within the legislature who are knowledgeable about precedents and
have already been through
their
political education.
They give our legislative assemblies a practical skill and a
sense of continuity which without
them
would often be lacking.
Q. What generally speaking is the corporate attitude of the
lawyers?
A. People complain that it is conservative. I know that the
opposite complaint is made in
France.
I see these reasons for the difference: first, the body of lawyers
in America have no interest in
change.
Our social organization, as it is now, is the best possible one for
them. Besides I think our civil
laws have
a different general principle from yours and that should give our
lawyers an opposite turn of
mind. Our
civil law is entirely founded on precedents.
A judge is completely bound by what another has decided
before. As a result one can almost
say
that there are no arguments about law with us; everything reduces
itself in some sort to a
question of fact.
One has to know what was decided in a similar case and argue for or
against the application of
that
example.
You can see that work of that sort is not apt to develop a taste
for theories. Often it even narrows
the
mind. Your lawyers on the other hand, if I can judge by the reports
of proceedings, feel they
must delve
down to the basis of society even in respect of a hole in a
dunghill.
Q. Have the judges any disciplinary powers over them?
A. Yes. They can reprimand them, fine them, strike them off
the roll, and even in extreme
cases
send
them to prison. Otherwise the judges have no superior standing. Out
of court they are on a
footing of
complete equality.
Q. What criticism is made of your judges?
A. The only criticism which I should feel able to make is
that they are a little too fond of
flattering
the people, and they will not fight courageously against a view
that they believe is shared by the
masses.
We have seen some examples of that in cases with a political side
to them. Usually and in
ordinary cases
they are inclined to leniency for this reason and not from their
own convictions.
Q. What influence has the press on public opinion?
A. It has great influence, but it is not exercised in the
same way as in France. For instance we
attach
very little importance to the opinions of journalists. They only
gain influence by the facts they
make
known and the turn they give to them. Thus they sometimes manage to
mislead public opinion
about a
man or a measure. To sum up, in all countries and under all
governments the press will always be
a
formidable weapon.
Q. What limits do you impose on its freedom?
A. We have a very simple principle in this matter. Everything
which is a question of opinion
is
perfectly free. One could go to print daily in America saying that
monarchy is the best of all
forms
of government. But when a paper publishes libelous facts, when it
gratuitously suggests culpable
motives,
then it is prosecuted and generally punished with a heavy fine. I
recently had experience of an
example.
At the time of the case in connection with the disappearance
of Morgan [a Mason who
disappeared
in
August, 1826 - fellow masons were accused of drowning him in Lake
Ontario to prevent him
from
revealing Masonic secrets. The affair gave rise to the formation of
the anti-masonic party], a
newspaper
printed that the jurors had pronounced their verdict of guilty from
motives of "party spirit." I
prosecuted
the writer of the article and had him punished.
Q. What in your view is the way to diminish the power of the
press?
A. I am completely convinced that the most effective way is
to increase the number of
newspapers
as much as possible and not to prosecute them except in extreme
cases. Their power gets less as
their
number gets more, a fact which experience has incontrovertibly
proved to us. I have heard it said
that in
France there were only two or three newspapers that carried weight.
I should suppose that in such
a
situation the press in an agent of destruction. Besides I think
your social situation will always
make the
action of the press more to be feared with you than with us. Paris
will always exercise immense
influence
over the rest of the kingdom.With us there an immense influence
over the rest of the kingdom.
With us
there are an immense number of factors dividing our interests.
There is no great center of activity; it is almost impossible
to get public opinion excited over
a
large
area. New York papers have no more influence over us than those of
the nearest village. Another
reason why the personal opinions of journalists carry very little
weight is the bad use they made
of them in the
first years of Independence. It was then proved that most of them
had been bought by England.
Since
then they have lost public confidence.
Q. Are there influential men who write in your
newspapers?
A. Party leaders often do, but they do not sign their
articles.
Q. What causes the religious tolerance prevailing in the
United States?
A. Principally the extreme diversity of sects (there is
almost no end to it). If two religions
faced
each
other, we should be cutting each others' throats. But as none has
as much as a majority, all need
toleration.
Besides there is a general belief among us, a belief which I
share, that some religion or other
is
needed by man as a social being. And all the more freer he is. I
have heard it said that in France
there
has been an attempt to dispense with all definite religion. If that
is so, in spite of all your feeling
for liberty,
you will not quickly see free institutions firmly established, and
you must rest your hopes on the
next
generation.
Q. What do you think can be done so that religion should
regain its natural sway?
A. I think the Catholic religion less suited than the
Protestant to come to terms with ideas of
liberty:
but if the clergy were completely cut off from all worldly concern,
I think that in time they would
win
back the power over the mind which naturally belongs to them. I
think that they seem to forget
about the
church without being hostile to it, is the best and perhaps the
only way of serving it. If you act so,
little
by little you will see public education falling into its hands, and
in time young people will have a
different turn of mind.
Q. Do the clergy control public education with you?
A. Completely. I know of only two exceptions in the State of
New York. That seems to me
nature's
way.
Q. What is your poor law?
A. In that as in many matter we long followed the English
example. We have ended by
giving
up
their system which we thought too costly. This is the new system
introduced in the last few years
in
the
State of New York: every county has an almshouse to which vagabonds
are forced by court
orders to
go,
and which are also bound to receive those whom an official called
the overseer of the poor sends
as
having no means of subs istence. A piece of land is attached to the
almshouse, which the
vagabonds and
the local people shut up there to cultivate. The object of the law
is that this farmland should in
time cover
the expenses of this institution. We have great hopes of succeeding
in this. It is not the place of
birth but
the place of residence which is taken to decide where the pauper
should be sent.
Q. How do you manage about public education?
A. The State has special funds of _____ [gap in manuscript]
set aside for this purpose. It
makes
grants from this fund to the local authorities who need them, in
proportion to the efforts they
promise
to make on their own behalf. For it is generally accepted among us
that the State should always
help and
never do everything. It is felt that people who give their money
and who are on the spot, can and
will
give more careful attention to the way money is spent than is
possible for a central
administration.
Moreover one wants to create as many local interests as possible.
This combination of money
from the
State with money from the locality serves both these aims
admirably. Here education rouses
universal
concern. The populace being really king, everyone feels the need to
enlighten it.
Q. Have you noticed ill effects from the recent law
abolishing all property qualification for
electors?
A. No, just the opposite. The people being completely
satisfied disregards the schemes of
agitators.
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