CAUSES WHICH MITIGATE THE TYRANNY OF THE MAJORITY IN THE UNITED STATES.
* * * * *
ABSENCE OF CENTRAL ADMINISTRATION.
The national Majority does not pretend to conduct all Business.--Is
obliged to employ the town and county Magistrates to execute its supreme
Decisions.
I have already pointed out the distinction which is to be made between
a centralized government and a centralized administration. The former
exists in America, but the latter is nearly unknown there. If the
directing power of the American communities had both these instruments
of government at its disposal, and united the habit of executing its own
commands to the right of commanding; if, after having established the
general principles of government, it descended to the details of public
business; and if, having regulated the great interests of the country,
it would penetrate into the privacy of individual interest, freedom
would soon be banished from the New World.
But in the United States the majority, which so frequently displays the
tastes and the propensities of a despot, is still destitute of the more
perfect instruments of tyranny.
In the American republics the activity of the central government
has never as yet been extended beyond a limited number of objects
sufficiently prominent to call forth its attention. The secondary
affairs of society have never been regulated by its authority; and
nothing has hitherto betrayed its desire of interfering in them. The
majority is become more and more absolute, but it has not increased the
prerogatives of the central government; those great prerogatives have
been confined to a certain sphere; and although the despotism of the
majority may be galling upon one point, it cannot be said to extend to
all. However the predominant party of the nation may be carried away by
its passions; however ardent it may be in the pursuit of its projects,
it cannot oblige all the citizens to comply with its desire in the same
manner, and at the same time, throughout the country. When the central
government which represents that majority has issued a decree, it must
intrust the execution of its will to agents, over whom it frequently
has no control, and whom it cannot perpetually direct. The townships,
municipal bodies, and counties, may therefore be looked upon as
concealed breakwaters, which check or part the tide of popular
excitement. If an oppressive law were passed, the liberties of the
people would still be protected by the means by which that law would be
put in execution: the majority cannot descend to the details, and (as I
will venture to style them) the puerilities of administrative tyranny.
Nor does the people entertain that full consciousness of its authority,
which would prompt it to interfere in these matters; it knows the
extent of its natural powers, but it is unacquainted with the increased
resources which the art of government might furnish.
This point deserves attention; for if a democratic republic, similar
to that of the United States, were ever founded in a country where the
power of a single individual had previously subsisted, and the effects
of a centralized administration had sunk deep into the habits and the
laws of the people, I do not hesitate to assert, that in that country a
more insufferable despotism would prevail than any which now exists in
the absolute monarchies of Europe; or indeed than any which could be
found on this side the confines of Asia.
* * * * *
THE PROFESSION OF THE LAW IN THE UNITED STATES SERVES TO COUNTERPOISE
THE DEMOCRACY.
Utility of discriminating the natural Propensities of the Members of
the legal Profession.--These Men called upon to act a prominent Part in
future Society.--In what Manner the peculiar Pursuits of Lawyers give
an aristocratic turn to their Ideas.--Accidental Causes which may check
this Tendency.--Ease with which the Aristocracy coalesces with legal
Men.--Use of Lawyers to a Despot.--The Profession of the Law constitutes
the only aristocratic Element with which the natural Elements of
Democracy will combine.--Peculiar Causes which tend to give an
aristocratic turn of Mind to the English and American Lawyer.--The
Aristocracy of America is on the Bench and at the Bar.--Influence of
Lawyers upon American Society.--Their peculiar magisterial Habits affect
the Legislature, the Administration, and even the People.
In visiting the Americans and in studying their laws, we perceive that
the authority they have intrusted to members of the legal profession,
and the influence which these individuals exercise in the government, is
the most powerful existing security against the excesses of democracy.
This effect seems to me to result from a general cause which it is
useful to investigate, since it may produce analogous consequences
elsewhere.
The members of the legal profession have taken an important part in all
the vicissitudes of political society in Europe during the last five
hundred years. At one time they have been the instruments of those
who are invested with political authority, and at another they have
succeeded in converting political authorities into their instrument. In
the middle ages they afforded a powerful support to the crown; and since
that period they have exerted themselves to the utmost to limit the
royal prerogative. In England they have contracted a close alliance with
the aristocracy; in France they have proved to be the most dangerous
enemies of that class. It is my object to inquire whether, under all
these circumstances, the members of the legal profession have been
swayed by sudden and momentary impulses; or whether they have been
impelled by principles which are inherent in their pursuits, and which
will always recur in history. I am incited to this investigation by
reflecting that this particular class of men will most likely play a
prominent part in that order of things to which the events of our time
are giving birth.
Men who have more especially devoted themselves to legal pursuits,
derive from those occupations certain habits of order, a taste for
formalities, and a kind of instinctive regard for the regular connexion
of ideas, which naturally render them very hostile to the revolutionary
spirit and the unreflecting passions of the multitude.
The special information which lawyers derive from their studies, ensures
them a separate station in society: and they constitute a sort of
privileged body in the scale of intelligence. This notion of their
superiority perpetually recurs to them in the practice of their
profession: they are the masters of a science which is necessary, but
which is not very generally known: they serve as arbiters between the
citizens; and the habit of directing the blind passions of parties in
litigation to their purpose, inspires them with a certain contempt
for the judgment of the multitude. To this it may be added, that they
naturally constitute _a body_; not by any previous understanding, or
by any agreement which directs them to a common end; but the analogy
of their studies and the uniformity of their proceedings connect
their minds together, as much as a common interest would combine their
endeavors.
A portion of the tastes and of the habits of the aristocracy may
consequently be discovered in the characters of men in the profession of
the law. They participate in the same instinctive love of order and of
formalities; and they entertain the same repugnance to the actions of
the multitude, and the same secret contempt of the government of the
people. I do not mean to say that the natural propensities of lawyers
are sufficiently strong to sway them irresistibly; for they, like most
other men, are governed by their private interests and the advantages of
the moment.
In a state of society in which the members of the legal profession are
prevented from holding that rank in the political world which they enjoy
in private life, we may rest assured that they will be the foremost
agents of revolution. But it must then be inquired whether the cause
which induces them to innovate and to destroy is accidental, or whether
it belongs to some lasting purpose which they entertain. It is true that
lawyers mainly contributed to the overthrow of the French monarchy in
1789; but it remains to be seen whether they acted thus because they had
studied the laws, or because they were prohibited from co-operating in
the work of legislation.
Five hundred years ago the English nobles headed the people, and spoke
in its name; at the present time, the aristocracy supports the throne,
and defends the royal prerogative. But aristocracy has, notwithstanding
this, its peculiar instincts and propensities. We must be careful not
to confound isolated members of a body with the body itself. In all
free governments, of whatsoever form they may be, members of the legal
profession may be found at the head of all parties. The same remark
is also applicable to the aristocracy; for almost all the democratic
convulsions which have agitated the world have been directed by nobles.
A privileged body can never satisfy the ambition of all its members;
it has always more talents and more passions than it can find places to
content and to employ; so that a considerable number of individuals
are usually to be met with, who are inclined to attack those very
privileges, which they find it impossible to turn to their own account.
I do not, then, assert that _all_ the members of the legal profession
are at _all_ times the friends of order and the opponents of innovation,
but merely that most of them usually are so. In a community in which
lawyers are allowed to occupy, without opposition, that high station
which naturally belongs to them, their general spirit will be eminently
conservative and anti-democratic. When an aristocracy excludes the
leaders of that profession from its ranks, it excites enemies which
are the more formidable to its security as they are independent of the
nobility by their industrious pursuits; and they feel themselves to be
its equal in point of intelligence, although they enjoy less opulence
and less power. But whenever an aristocracy consents to impart some of
its privileges to these same individuals, the two classes coalesce very
readily, and assume, as it were, the consistency of a single order of
family interests.
I am, in like manner, inclined to believe that a monarch will always
be able to convert legal practitioners into the most serviceable
instruments of his authority. There is a far greater affinity between
this class of individuals and the executive power, than there is between
them and the people; just as there is a greater natural affinity between
the nobles and monarch, than between the nobles and the people, although
the higher orders of society have occasionally resisted the prerogative
of the crown in concert with the lower classes.
Lawyers are attached to public order beyond every other consideration,
and the best security of public order is authority. It must not be
forgotten, that if they prize the free institutions of their country
much, they nevertheless value the legality of those institutions far
more; they are less afraid of tyranny than of arbitrary power: and
provided that the legislature takes upon itself to deprive men of their
independence, they are not dissatisfied.[189]
I am therefore convinced that the prince who, in presence of an
encroaching democracy, should endeavor to impair the judicial authority
in his dominions, and to diminish the political influence of lawyers,
would commit a great mistake. He would let slip the substance
of authority to grasp at the shadow. He would act more wisely in
introducing men connected with the law into the government; and if he
intrusted them with the conduct of a despotic power, bearing some marks
of violence, that power would most likely assume the external features
of justice and of legality in their hands.
The government of democracy is favorable to the political power of
lawyers; for when the wealthy, the noble, and the prince, are excluded
from the government, they are sure to occupy the highest stations in
their own right, as it were, since they are the only men of information
and sagacity, beyond the sphere of the people, who can be the object of
the popular choice. If, then, they are led by their tastes to combine
with the aristocracy, and to support the crown, they are naturally
brought into contact with the people by their interests. They like the
government of democracy, without participating in its propensities, and
without imitating its weaknesses; whence they derive a twofold authority
from it and over it. The people in democratic states does not mistrust
the members of the legal profession, because it is well known that they
are interested in serving the popular cause; and it listens to them
without irritation, because it does not attribute to them any sinister
designs. The object of lawyers is not, indeed, to overthrow the
institutions of democracy, but they constantly endeavor to give it an
impulse which diverts it from its real tendency, by means which are
foreign to its nature. Lawyers belong to the people by birth and
interest, to the aristocracy by habit and by taste, and they may be
looked upon as the natural bond and connecting link of the two great
classes of society.
The profession of the law is the only aristocratic element which can be
amalgamated without violence with the natural elements of democracy, and
which can be advantageously and permanently combined with them. I am
not unacquainted with the defects which are inherent in the character
of that body of men; but without this admixture of lawyer-like
sobriety with the democratic principle, I question whether democratic
institutions could long be maintained; and I cannot believe that a
republic could subsist at the present time, if the influence of lawyers
in public business did not increase in proportion to the power of the
people.
This aristocratic character, which I hold to be common to the legal
profession, is much more distinctly marked in the United States and in
England than in any other country. This proceeds not only from the legal
studies of the English and American lawyers, but from the nature of the
legislation, and the position which those persons occupy, in the two
countries. The English and the Americans have retained the law of
precedents; that is to say, they continue to found their legal opinions
and the decisions of their courts upon the opinions and decisions of
their forefathers. In the mind of an English or an American lawyer, a
taste and a reverence for what is old are almost always united to a love
of regular and lawful proceedings.
This predisposition has another effect upon the character of the legal
profession and upon the general course of society. The English and
American lawyers investigate what has been done; the French advocate
inquires what should have been done: the former produces precedents;
the latter reasons. A French observer is surprised to hear how often an
English or American lawyer quotes the opinions of others, and how little
he alludes to his own; while the reverse occurs in France. There, the
most trifling litigation is never conducted without the introduction
of an entire system of ideas peculiar to the counsel employed; and the
fundamental principles of law are discussed in order to obtain a
perch of land by the decision of the court. This abnegation of his own
opinion, and this implicit deference to the opinion of his forefathers,
which are common to the English and American lawyer, this subjection of
thought which he is obliged to profess, necessarily give him more timid
habits and more sluggish inclinations in England and America than in
France.
The French codes are often difficult of comprehension, but they can be
read by every one; nothing, on the other hand, can be more impenetrable
to the uninitiated than a legislation founded upon precedents. The
indispensable want of legal assistance which is felt in England and in
the United States, and the high opinion which is generally entertained
of the ability of the legal profession, tend to separate it more and
more from the people, and to place it in a distinct class. The French
lawyer is simply a man extensively acquainted with the statutes of his
country; but the English or American lawyer resembles the hierophants of
Egypt, for, like them, he is the sole interpreter of an occult science.
[The remark that English and American lawyers found their opinions and
their decisions upon those of their forefathers, is calculated to excite
surprise in an American reader, who supposes that law, as a prescribed
rule of action, can only be ascertained in cases where the statutes are
silent, by reference to the decisions of courts. On the continent, and
particularly in France, as the writer of this note learned from the
conversation of M. De Tocqueville, the judicial tribunals do not
deem themselves bound by any precedents, or by any decisions of their
predecessors or of the appellate tribunals. They respect such decisions
as the opinions of distinguished men, and they pay no higher regard to
their own previous adjudications of any case. It is not easy to perceive
how the law can acquire any stability under such a system, or how any
individual can ascertain his rights, without a lawsuit. This note should
not be concluded without a single remark upon what the author calls an
implicit deference to the opinions of our forefathers, and abnegation of
our own opinions. The common law consists of principles founded on the
common sense of mankind, and adapted to the circumstances of man in
civilized society. When these principles are once settled by competent
authority, or rather _declared_ by such authority, they are supposed to
express the common sense and the common justice of the community; and
it requires but a moderate share of modesty for any one entertaining
a different view of them, to consider that the disinterested and
intelligent judges who have declared them, are more likely to be right
than he is. Perfection, even in the law, he does not consider attainable
by human beings, and the greatest approximation to it is all he expects
or desires. Besides, there are very few cases of positive and abstract
rule, where it is of any consequence which, of any two or more
modifications of it, should be adopted. The great point is, that there
should be _a rule_ by which conduct may be regulated. Thus, whether
in mercantile transactions notice of a default by a principal shall be
given to an endorser, or a guarantor, and when and how such notice shall
be given, are not so important in themselves, as it is that there
should be some rule to which merchants may adapt themselves and their
transactions. Statutes cannot or at least do not, prescribe the rules in
a large majority of cases. If then they are not drawn from the decision
of courts, they will not exist, and men will be wholly at a loss for
a guide in the most important transactions of business. Hence the
deference paid to legal decisions. But this is not implicit, as the
author supposes. The course of reasoning by which the courts have come
to their conclusions, is often assailed by the advocate and shown to be
fallacious, and the instances are not unfrequent of courts disregarding
prior decisions and overruling them when not fairly deducible from sound
reason.
Again, the principles of the common law are flexible, and adapt
themselves to changes in society, and a well-known maxim in our system,
that when the reason of the law ceases, the law itself ceases, has
overthrown many an antiquated rule. Within these limits, it is conceived
that there is range enough for the exercise of all the reason of the
advocate and the judge, without unsettling everything and depriving the
conduct of human affairs of all guidance from human authority;--and the
talent of our lawyers and courts finds sufficient exercise in applying
the principles of one case to facts of another.--_American Editor_.]
The station which lawyers occupy in England and America exercises no
less an influence upon their habits and their opinions. The English
aristocracy, which has taken care to attract to its sphere whatever is
at all analogous to itself, has conferred a high degree of importance
and of authority upon the members of the legal profession. In English
society lawyers do not occupy the first rank, but they are contented
with the station assigned to them; they constitute, as it were, the
younger branch of the English aristocracy, and they are attached to
their elder brothers, although they do not enjoy all their privileges.
The English lawyers consequently mingle the tastes and the ideas of the
aristocratic circles in which they move, with the aristocratic interest
of their profession.
And indeed the lawyer-like character which I am endeavoring to depict,
is most distinctly to be met with in England: there laws are esteemed
not so much because they are good, as because they are old; and if it be
necessary to modify them in any respect, or to adapt them to the
changes which time operates in society, recourse is had to the most
inconceivable contrivances in order to uphold the traditionary fabric,
and to maintain that nothing has been done which does not square with
the intentions, and complete the labors, of former generations. The
very individuals who conduct these changes disclaim all intention of
innovation, and they had rather resort to absurd expedients than plead
guilty of so great a crime. This spirit more especially appertains to
the English lawyers; they seem indifferent to the real meaning of what
they treat, and they direct all their attention to the letter, seeming
inclined to infringe the rules of common sense and of humanity, rather
than to swerve one tittle from the law. The English legislation may be
compared to the stock of an old tree, upon which lawyers have engrafted
the most various shoots, with the hope, that, although their fruits may
differ, their foliage at least will be confounded with the venerable
trunk which supports them all.
In America there are no nobles or literary men, and the people is apt
to mistrust the wealthy; lawyers consequently form the highest political
class, and the most cultivated circle of society. They have therefore
nothing to gain by innovation, which adds a conservative interest to
their natural taste for public order. If I were asked where I place the
American aristocracy, I should reply without hesitation, that it is not
composed of the rich, who are united together by no common tie, but that
it occupies the judicial bench and the bar.
The more we reflect upon all that occurs in the United States, the
more shall we be persuaded that the lawyers, as a body, form the most
powerful, if not the only counterpoise to the democratic element. In
that country we perceive how eminently the legal profession is qualified
by its powers, and even by its defects, to neutralize the vices
which are inherent in popular government. When the American people is
intoxicated by passion, or carried away by the impetuosity of its ideas,
it is checked and stopped by the almost invisible influence of its legal
counsellors, who secretly oppose their aristocratic propensities to its
democratic instincts, their superstitious attachment to what is antique
to its love of novelty, their narrow views to its immense designs, and
their habitual procrastination to its ardent impatience.
The courts of justice are the most visible organs by which the legal
profession is enabled to control the democracy. The judge is a lawyer,
who, independently of the taste for regularity and order which he has
contracted in the study of legislation, derives an additional love of
stability from his own inalienable functions. His legal attainments have
already raised him to a distinguished rank among his fellow-citizens;
his political power completes the distinction of his station, and gives
him the inclinations natural to privileged classes.
Armed with the power of declaring the laws to be unconstitutional,[190]
the American magistrate perpetually interferes in political affairs. He
cannot force the people to make laws, but at least he can oblige it not
to disobey its own enactments, or to act inconsistently with its own
principles. I am aware that a secret tendency to diminish the judicial
power exists in the United States; and by most of the constitutions
of the several states, the government can, upon the demand of the two
houses of the legislature, remove the judges from their station. By some
other constitutions the members of the tribunals are elected, and they
are even subjected to frequent re-elections. I venture to predict
that these innovations will sooner or later be attended with fatal
consequences; and that it will be found out at some future period,
that the attack which is made upon the judicial power has affected the
democratic republic itself.
It must not, however, be supposed that the legal spirit of which I have
been speaking has been confined in the United States to the courts of
justice; it extends far beyond them. As the lawyers constitute the only
enlightened class which the people does not mistrust, they are naturally
called upon to occupy most of the public stations. They fill the
legislative assemblies, and they conduct the administration; they
consequently exercise a powerful influence upon the formation of the
law, and upon its execution. The lawyers are, however, obliged to yield
to the current of public opinion, which is too strong for them to resist
it; but it is easy to find indications of what their conduct would be,
if they were free to act as they chose. The Americans who have made such
copious innovations in their political legislation, have introduced very
sparing alterations in their civil laws, and that with great difficulty,
although those laws are frequently repugnant to their social condition.
The reason of this is, that in matters of civil law the majority is
obliged to defer to the authority of the legal profession, and that the
American lawyers are disinclined to innovate when they are left to their
own choice.
It is curious for a Frenchman, accustomed to a very different state of
things, to hear the perpetual complaints which are made in the United
States, against the stationary propensities of legal men, and their
prejudices in favor of existing institutions.
The influence of the legal habits which are common in America extends
beyond the limits I have just pointed out. Scarcely any question arises
in the United States which does not become, sooner or later, a subject
of judicial debate; hence all parties are obliged to borrow the ideas,
and even the language, usual in judicial proceedings, in their
daily controversies. As most public men are, or have been, legal
practitioners, they introduce the customs and technicalities of their
profession into the affairs of the country. The jury extends this
habitude to all classes. The language of the law thus becomes, in some
measure, a vulgar tongue; the spirit of the law, which is produced in
the schools and courts of justice, gradually penetrates beyond their
walls into the bosom of society, where it descends to the lowest
classes, so that the whole people contracts the habits and the tastes of
the magistrate. The lawyers of the United States form a party which is
but little feared and scarcely perceived, which has no badge peculiar to
itself, which adapts itself with great flexibility to the exigencies
of the time, and accommodates itself to all the movements of the social
body: but this party extends over the whole community, and it penetrates
into all classes of society; it acts upon the country imperceptibly, but
it finally fashions it to suit its purposes.
* * * * *
TRIAL BY JURY IN THE UNITED STATES CONSIDERED AS A POLITICAL
INSTITUTION.
Trial by Jury, which is one of the Instruments of the Sovereignty of the
People, deserves to be compared with the other Laws which establish that
sovereignty.--Composition of the Jury in the United States.--Effect of
Trial by Jury upon the national Character.--It educates the People.--It
tends to establish the Authority of the Magistrates, and to extend a
knowledge of Law among the People.
Since I have been led by my subject to recur to the administration of
justice in the United States, I will not pass over this point without
adverting to the institution of the jury. Trial by jury may be
considered in two separate points of view: as a judicial, and as a
political institution. If it entered into my present purpose to inquire
how far trial by jury (more especially in civil cases) contributes to
ensure the best administration of justice, I admit that its utility
might be contested. As the jury was first introduced at a time when
society was in an uncivilized state, and when courts of justice were
merely called upon to decide on the evidence of facts, it is not an easy
task to adapt it to the wants of a highly civilized community, when the
mutual relations of men are multiplied to a surprising extent, and have
assumed the enlightened and intellectual character of the age.[191]
My present object is to consider the jury as a political institution;
and any other course would divert me from my subject. Of trial by jury,
considered as a judicial institution, I shall here say but very few
words. When the English adopted trial by jury they were a semi-barbarous
people; they are become, in course of time, one of the most enlightened
nations of the earth; and their attachment to this institution seems
to have increased with their increasing cultivation. They soon spread
beyond their insular boundaries to every corner of the habitable globe;
some have formed colonies, others independent states; the mother-country
has maintained its monarchical constitution; many of its offspring have
founded powerful republics; but wherever the English have been,
they have boasted of the privilege of trial by jury.[192] They
have established it, or hastened to re-establish it, in all their
settlements. A judicial institution which obtains the suffrages of a
great people for so long a series of ages, which is zealously renewed at
every epoch of civilisation, in all the climates of the earth, and under
every form of human government, cannot be contrary to the spirit of
justice.[193]
I turn, however, from this part of the subject. To look upon the jury
as a mere judicial institution, is to confine our attention to a very
narrow view of it; for, however great its influence may be upon the
decisions of the law-courts, that influence is very subordinate to the
powerful effects which it produces on the destinies of the community
at large. The jury is above all a political institution, and it must be
regarded in this light in order to be duly appreciated.
By the jury, I mean a certain number of citizens chosen
indiscriminately, and invested with a temporary right of judging.
Trial by jury, as applied to the repression of crime, appears to me to
introduce an eminently republican element into the government, upon the
following grounds:--
The institution of the jury may be aristocratic or democratic, according
to the class of society from which the jurors are selected; but it
always preserves its republican character, inasmuch as it places the
real direction of society in the hands of the governed, or of a portion
of the governed, instead of leaving it under the authority of the
government. Force is never more than a transient element of success; and
after force comes the notion of right. A government which should only
be able to crush its enemies upon a field of battle, would very soon be
destroyed. The true sanction of political laws is to be found in penal
legislation, and if that sanction be wanting, the law will sooner
or later lose its cogency. He who punishes infractions of the law is
therefore the real master of society. Now, the institution of the jury
raises the people itself, or at least a class of citizens, to the bench
of judicial authority. The institution of the jury consequently
invests the people, or that class of citizens, with the direction of
society.[194]
In England the jury is returned from the aristocratic portion of the
nation,[195] the aristocracy makes the laws, applies the laws, and
punishes all infractions of the laws; everything is established upon a
consistent footing, and England may with truth be said to constitute an
aristocratic republic. In the United States the same system is applied
to the whole people. Every American citizen is qualified to be an
elector, a juror, and is eligible to office.[196] The system of the
jury, as it is understood in America, appears to me to be as direct and
as extreme a consequence of the sovereignty of the people, as universal
suffrage. These institutions are two instruments of equal power, which
contribute to the supremacy of the majority. All the sovereigns who have
chosen to govern by their own authority, and to direct society instead
of obeying its direction, have destroyed or enfeebled the institution of
the jury. The monarchs of the house of Tudor sent to prison jurors
who refused to convict, and Napoleon caused them to be returned by his
agents.
However clear most of these truths may seem to be, they do not command
universal assent, and in France, at least, the institution of trial by
jury is still very imperfectly understood. If the question arise as to
the proper qualification of jurors, it is confined to a discussion of
the intelligence and knowledge of the citizens who may be returned, as
if the jury was merely a judicial institution. This appears to me to
be the least part of the subject. The jury is pre-eminently a political
institution; it must be regarded as one form of the sovereignty of the
people; when that sovereignty is repudiated, it must be rejected; or it
must be adapted to the laws by which that sovereignty is established.
The jury is that portion of the nation to which the execution of the
laws is intrusted, as the houses of parliament constitute that part
of the nation which makes the laws; and in order that society may be
governed with consistency and uniformity, the list of citizens qualified
to serve on juries must increase and diminish with the list of electors.
This I hold to be the point of view must worthy of the attention of the
legislator; and all that remains is merely accessary.
I am so entirely convinced that the jury is pre-eminently a political
institution, that I still consider it in this light when it is applied
in civil causes. Laws are always unstable unless they are founded upon
the manners of a nation: manners are the only durable and resisting
power in a people. When the jury is reserved for criminal offences, the
people only sees its occasional action in certain particular cases;
the ordinary course of life goes on without its interference, and it
is considered as an instrument, but not as the only instrument, of
obtaining justice. This is true _a fortiori_ when the jury is only
applied to certain criminal causes.
When, on the contrary, the influence of the jury is extended to civil
causes, its application is constantly palpable; it affects all the
interests of the community; every one co-operates in its work: it thus
penetrates into all the usages of life, it fashions the human mind to
its peculiar forms, and is gradually associated with the idea of justice
itself.
The institution of the jury, if confined to criminal causes, is always
in danger; but when once it is introduced into civil proceedings, it
defies the aggressions of time and of man. If it had been as easy to
remove the jury from the manners as from the laws of England, it would
have perished under Henry VIII. and Elizabeth: and the civil jury did in
reality, at that period, save the liberties of the country. In whatever
manner the jury be applied, it cannot fail to exercise a powerful
influence upon the national character; but this influence is
prodigiously increased when it is introduced into civil causes. The
jury, and more especially the civil jury, serves to communicate the
spirit of the judges to the minds of all the citizens; and this spirit,
with the habits which attend it, is the soundest preparation for free
institutions. It imbues all classes with a respect for the thing judged,
and with the notion of right. If these two elements be removed, the love
of independence is reduced to a more destructive passion. It teaches men
to practise equity; every man learns to judge his neighbor as he would
himself be judged: and this is especially true of the jury in civil
causes; for, while the number of persons who have reason to apprehend
a criminal prosecution is small, every one is liable to have a civil
action brought against him. The jury teaches every man not to recoil
before the responsibility of his own actions, and impresses him with
that manly confidence without which political virtue cannot exist. It
invests each citizen with a kind of magistracy; it makes them all feel
the duties which they are bound to discharge toward society; and the
part which they take in the government. By obliging men to turn their
attention to affairs which are not exclusively their own, it rubs off
that individual egotism which is the rust of society.
The jury contributes most powerfully to form the judgment, and to
increase the natural intelligence of a people; and this is, in my
opinion, its greatest advantage. It may be regarded as a gratuitous
public school ever open, in which every juror learns to exercise his
rights, enters into daily communication with the most learned and
enlightened members of the upper classes, and becomes practically
acquainted with the laws of his country, which are brought within the
reach of his capacity by the efforts of the bar, the advice of the
judge, and even by the passions of the parties. I think that the
practical intelligence and political good sense of the Americans are
mainly attributable to the long use which they have made of the jury in
civil causes.
I do not know whether the jury is useful to those who are in litigation;
but I am certain it is highly beneficial to those who decide the
litigation: and I look upon it as one of the most efficacious means for
the education of the people, which society can employ.
What I have hitherto said, applies to all nations; but the remark I
am now about to make, is peculiar to the Americans and to democratic
peoples. I have already observed that in democracies the members of the
legal profession, and the magistrates, constitute the only aristocratic
body which can check the irregularities of the people. This aristocracy
is invested with no physical power; but it exercises its conservative
influence upon the minds of men: and the most abundant source of its
authority is the institution of the civil jury. In criminal causes, when
society is armed against a single individual, the jury is apt to
look upon the judge as the passive instrument of social power, and to
mistrust his advice. Moreover, criminal causes are entirely founded upon
the evidence of facts which common sense can readily appreciate; upon
this ground the judge and the jury are equal. Such, however, is not the
case in civil causes; then the judge appears as a disinterested arbiter
between the conflicting passions of the parties. The jurors look up
to him with confidence, and listen to him with respect, for in this
instance their intelligence is completely under the control of his
learning. It is the judge who sums up the various arguments with which
their memory has been wearied out, and who guides them through the
devious course of the proceedings; he points their attention to the
exact question of fact, which they are called upon to solve, and he puts
the answer to the question of law into their mouths. His influence upon
their verdict is almost unlimited.
If I am called upon to explain why I am but little moved by the
arguments derived from the ignorance of jurors in civil causes, I reply,
that in these proceedings, whenever the question to be solved is not
a mere question of fact, the jury has only the semblance of a judicial
body. The jury sanctions the decisions of the judge; they, by the
authority of society which they represent, and he, by that of reason and
of law.[197]
In England and in America the judges exercise an influence upon criminal
trials which the French judges have never possessed. The reason of
this difference may easily be discovered; the English and American
magistrates establish their authority in civil causes, and only transfer
it afterward to tribunals of another kind, where that authority was
not acquired. In some cases (and they are frequently the most important
ones), the American judges have the right of deciding causes alone.[198]
Upon these occasions they are, accidentally, placed in the position
which the French judges habitually occupy: but they are still surrounded
by the reminiscence of the jury, and their judgment has almost as much
authority as the voice of the community at large, represented by that
institution. Their influence extends beyond the limits of the courts;
in the recreations of private life, as well as in the turmoil of public
business, abroad and in the legislative assemblies, the American
judge is constantly surrounded by men who are accustomed to regard his
intelligence as superior to their own; and after having exercised his
power in the decision of causes, he continues to influence the habits
of thought, and the character of the individuals who took a part in his
judgment.
[The remark in the text, that "in some cases, and they are frequently
the most important ones, the American judges have the right of deciding
causes alone," and the author's note, that "the federal judges decide,
upon their own authority, almost all the questions most important to the
country," seem to require explanation in consequence of their connexion
with the context in which the author is speaking of the trial by jury.
They seem to imply that there are some cases which ought to be tried by
jury, that are decided by the judges. It is believed that the learned
author, although a distinguished advocate in France, never thoroughly
comprehended the grand divisions of our complicated system of law, in
civil cases. _First_, is the distinction between cases in equity and
those in which the rules of the common law govern.--Those in equity
are always decided by the judge or judges, who _may_, however, send
questions of fact to be tried in the common law courts by a jury. But as
a general rule this is entirely in the discretion of the equity judge.
_Second_, in cases at common law, there are questions of fact and
questions of law:--the former are invariably tried by a jury, the
latter, whether presented in the course of a jury trial, or by pleading,
in which the facts are admitted, are always decided by the judges.
_Third_, cases of admiralty jurisdiction, and proceedings _in rem_ of an
analogous nature, are decided by the judges without the intervention
of a jury. The cases in this last class fall within the peculiar
jurisdiction of the federal courts, and, with this exception, the
federal judges do not decide upon their own authority any questions,
which, if presented in the state courts, would not also be decided by
the judges of those courts. The supreme court of the United States, from
the nature of its institution as almost wholly an appellant court, is
called on to decide merely questions of law, and in no case can that
court decide a question of fact, unless it arises in suits peculiar to
equity or admiralty jurisdiction. Indeed the author's original note is
more correct than the translation. It is as follows: "Les juges fédéraux
tranchent presque toujours seuls les questions qui touchent de plus près
au _gouvernement_ du pays." And it is very true that the supreme court
of the United States, in particular, decides those questions which most
nearly affect the _government_ of the country, because those are the
very questions which arise upon the constitutionality of the laws
of congress and of the several states, the final and conclusive
determination of which is vested in that tribunal.--_American Editor_.]
The jury, then, which seems to restrict the rights of magistracy, does
in reality consolidate its power; and in no country are the judges so
powerful as there where the people partakes their privileges. It is
more especially by means of the jury in civil causes that the American
magistrates imbue all classes of society with the spirit of their
profession. Thus the jury, which is the most energetic means of making
the people rule, is also the most efficacious means of teaching it to
rule well.
* * * * *
Notes:
[189] This translation does not accurately convey the meaning of M. de
Tocqueville's expression. He says: "Ils craignent moins la tyrannie que
l'arbitraire, et pourvu que le législateur se charge lui-même d'enlever
aux hommes leur indépendance, ils sont à peu près content."
The more correct rendering would be: 'They fear tyranny less than
arbitrary sway, and provided it is the legislator himself who
undertakes to deprive men of their independence, they are almost
content.'--_Reviser_.
[190] See chapter vi., p. 94, on the judicial power in the United
States.
[191] The investigation of trial by jury as a judicial institution, and
the appreciation of its effects in the United States, together with the
advantages the Americans have derived from it, would suffice to form a
book, and a book upon a very useful and curious subject. The state of
Louisiana would in particular afford the curious phenomenon of a French
and English legislation, as well as a French and English population,
which are generally combining with each other. See the "Digeste des Lois
de la Louisiane," in two volumes; and the "Traité sur les Regles des
Actions civiles," printed in French and English at New Orleans in 1830.
[192] All the English and American jurists are unanimous upon this head.
Mr. Story, judge of the supreme court of the United States, speaks, in
his treatise on the federal constitution, of the advantages of trial by
jury in civil cases: "The inestimable privilege of a trial by jury in
civil cases--a privilege scarcely inferior to that in criminal cases,
which is counted by all persons to be essential to political and civil
liberty" ... (Story, book iii, ch. xxxviii.).
[193] If it were our province to point out the utility of the jury as
a judicial institution in this place, much might be said, and the
following arguments might be brought forward among others:--
By introducing the jury into the business of the courts, you are enabled
to diminish the number of judges; which is a very great advantage. When
judges are very numerous, death is perpetually thinning the ranks of
the judicial functionaries, and laying places vacant for new comers. The
ambition of the magistrates is therefore continually excited, and they
are naturally made dependant upon the will of the majority, or the
individual who fills up vacant appointments: the officers of the courts
then rise like the officers of an army. This state of things is entirely
contrary to the sound administration of justice, and to the intentions
of the legislator. The office of a judge is made inalienable in order
that he may remain independent; but of what advantage is it that his
independence is protected, if he be tempted to sacrifice it of his own
accord? When judges are very numerous, many of them must necessarily be
incapable of performing their important duties; for a great magistrate
is a man of no common powers; and I am inclined to believe that a half
enlightened tribunal is the worst of all instruments for obtaining those
objects which it is the purpose of courts of justice to accomplish.
For my own part, I had rather submit the decision of a case to ignorant
jurors directed by a skilfull judge, than to judges, a majority of whom
are imperfectly acquainted with jurisprudence and with the laws.
[I venture to remind the reader, lest this note should appear somewhat
redundant to an English eye, that the jury is an institution which has
only been naturalized in France within the present century; that it is
even now exclusively applied to those criminal causes which come before
the courts of assize, or to the prosecutions of the public press; and
that the judges and counsellors of the numerous local tribunals of
France--forming a body of many thousand judicial functionaries--try all
civil causes, appeals from criminal causes, and minor offences, without
the jury.--_Translator's Note_.]
[194] An important remark must however be made. Trial by jury does
unquestionably invest the people with a general control over the actions
of citizens, but it does not furnish means of exercising this control in
all cases, or with an absolute authority. When an absolute monarch has
the right of trying offences by his representatives, the fate of the
prisoner is, as it were, decided beforehand. But even if the people were
predisposed to convict, the composition and the non-responsibility of
the jury would still afford some chances favorable to the protection of
innocence.
[195] In France, the qualification of the jurors is the same as the
electoral qualification, namely, the payment of 200 francs per annum in
direct taxes: they are chosen by lot. In England they are returned by
the sheriff; the qualifications of jurors were raised to 10_l_ per annum
in England, and 6_l_ in Wales, of freehold land or copyhold, by the
statute W. and M., c. 24: leaseholders for a time determinable upon life
or lives, of the clear yearly value of 20_l_ per annum over and above
the rent reserved, are qualified to serve on juries; and jurors in
the courts of Westminster and city of London must be householders,
and possessed of real and personal estates of the value of 100_l_.
The qualifications, however, prescribed in different statutes,
vary according to the object for which the jury is impannelled. See
Blackstone's Commentaries, b. iii., c. 23.--_Translator's Note_.
[196] See Appendix Q.
[197] See Appendix R.
[198] The federal judges decide upon their own authority almost all the
questions most important to the country.