The legislature is, of all political institutions, the one which is

most easily swayed by the wishes of the majority. The Americans

determined that the members of the legislature should be elected by the

people immediately, and for a very brief term, in order to subject

them, not only to the general convictions, but even to the daily

passion, of their constituents. The members of both houses are taken

from the same class in society, and are nominated in the same manner;

so that the modifications of the legislative bodies are almost as rapid

and quite as irresistible as those of a single assembly. It is to a

legislature thus constituted that almost all the authority of the

government has been entrusted.

But whilst the law increased the strength of those authorities which of

themselves were strong, it enfeebled more and more those which were

naturally weak. It deprived the representatives of the executive of all

stability and independence, and by subjecting them completely to the

caprices of the legislature, it robbed them of the slender influence

which the nature of a democratic government might have allowed them to

retain. In several States the judicial power was also submitted to the

elective discretion of the majority, and in all of them its existence

was made to depend on the pleasure of the legislative authority, since

the representatives were empowered annually to regulate the stipend of

the judges.

Custom, however, has done even more than law. A proceeding which will

in the end set all the guarantees of representative government at

naught is becoming more and more general in the United States; it

frequently happens that the electors, who choose a delegate, point out

a certain line of conduct to him, and impose upon him a certain number

of positive obligations which he is pledged to fulfil. With the

exception of the tumult, this comes to the same thing as if the

majority of the populace held its deliberations in the market-place.

Several other circumstances concur in rendering the power of the

majority in America not only preponderant, but irresistible. The moral

authority of the majority is partly based upon the notion that there is

more intelligence and more wisdom in a great number of men collected

together than in a single individual, and that the quantity of

legislators is more important than their quality. The theory of

equality is in fact applied to the intellect of man: and human pride is

thus assailed in its last retreat by a doctrine which the minority

hesitate to admit, and in which they very slowly concur. Like all other

powers, and perhaps more than all other powers, the authority of the

many requires the sanction of time; at first it enforces obedience by

constraint, but its laws are not respected until they have long been

maintained.

The right of governing society, which the majority supposes itself to

derive from its superior intelligence, was introduced into the United

States by the first settlers, and this idea, which would be sufficient

of itself to create a free nation, has now been amalgamated with the

manners of the people and the minor incidents of social intercourse.

The French, under the old monarchy, held it for a maxim (which is still

a fundamental principle of the English Constitution) that the King

could do no wrong; and if he did do wrong, the blame was imputed to his

advisers. This notion was highly favorable to habits of obedience, and

it enabled the subject to complain of the law without ceasing to love

and honor the lawgiver. The Americans entertain the same opinion with

respect to the majority.

The moral power of the majority is founded upon yet another principle,

which is, that the interests of the many are to be preferred to those

of the few. It will readily be perceived that the respect here

professed for the rights of the majority must naturally increase or

diminish according to the state of parties. When a nation is divided

into several irreconcilable factions, the privilege of the majority is

often overlooked, because it is intolerable to comply with its demands.

If there existed in America a class of citizens whom the legislating

majority sought to deprive of exclusive privileges which they had

possessed for ages, and to bring down from an elevated station to the

level of the ranks of the multitude, it is probable that the minority

would be less ready to comply with its laws. But as the United States

were colonized by men holding equal rank amongst themselves, there is

as yet no natural or permanent source of dissension between the

interests of its different inhabitants.

There are certain communities in which the persons who constitute the

minority can never hope to draw over the majority to their side,

because they must then give up the very point which is at issue between

them. Thus, an aristocracy can never become a majority whilst it

retains its exclusive privileges, and it cannot cede its privileges

without ceasing to be an aristocracy.

In the United States political questions cannot be taken up in so

general and absolute a manner, and all parties are willing to recognize

the right of the majority, because they all hope to turn those rights

to their own advantage at some future time. The majority therefore in

that country exercises a prodigious actual authority, and a moral

influence which is scarcely less preponderant; no obstacles exist which

can impede or so much as retard its progress, or which can induce it to

heed the complaints of those whom it crushes upon its path. This state

of things is fatal in itself and dangerous for the future.

How The Unlimited Power Of The Majority Increases In America The

Instability Of Legislation And Administration Inherent In Democracy The

Americans increase the mutability of the laws which is inherent in

democracy by changing the legislature every year, and by investing it

with unbounded authority—The same effect is produced upon the

administration—In America social amelioration is conducted more

energetically but less perseveringly than in Europe.

I have already spoken of the natural defects of democratic

institutions, and they all of them increase at the exact ratio of the

power of the majority. To begin with the most evident of them all; the

mutability of the laws is an evil inherent in democratic government,

because it is natural to democracies to raise men to power in very

rapid succession. But this evil is more or less sensible in proportion

to the authority and the means of action which the legislature

possesses.

In America the authority exercised by the legislative bodies is

supreme; nothing prevents them from accomplishing their wishes with

celerity, and with irresistible power, whilst they are supplied by new

representatives every year. That is to say, the circumstances which

contribute most powerfully to democratic instability, and which admit

of the free application of caprice to every object in the State, are

here in full operation. In conformity with this principle, America is,

at the present day, the country in the world where laws last the

shortest time. Almost all the American constitutions have been amended

within the course of thirty years: there is therefore not a single

American State which has not modified the principles of its legislation

in that lapse of time. As for the laws themselves, a single glance upon

the archives of the different States of the Union suffices to convince

one that in America the activity of the legislator never slackens. Not

that the American democracy is naturally less stable than any other,

but that it is allowed to follow its capricious propensities in the

formation of the laws. *b

b

[ The legislative acts promulgated by the State of Massachusetts alone,

from the year 1780 to the present time, already fill three stout

volumes; and it must not be forgotten that the collection to which I

allude was published in 1823, when many old laws which had fallen into

disuse were omitted. The State of Massachusetts, which is not more

populous than a department of France, may be considered as the most

stable, the most consistent, and the most sagacious in its undertakings

of the whole Union.]

The omnipotence of the majority, and the rapid as well as absolute

manner in which its decisions are executed in the United States, has

not only the effect of rendering the law unstable, but it exercises the

same influence upon the execution of the law and the conduct of the

public administration. As the majority is the only power which it is

important to court, all its projects are taken up with the greatest

ardor, but no sooner is its attention distracted than all this ardor

ceases; whilst in the free States of Europe the administration is at

once independent and secure, so that the projects of the legislature

are put into execution, although its immediate attention may be

directed to other objects.

In America certain ameliorations are undertaken with much more zeal and

activity than elsewhere; in Europe the same ends are promoted by much

less social effort, more continuously applied.

Some years ago several pious individuals undertook to ameliorate the

condition of the prisons. The public was excited by the statements

which they put forward, and the regeneration of criminals became a very

popular undertaking. New prisons were built, and for the first time the

idea of reforming as well as of punishing the delinquent formed a part

of prison discipline. But this happy alteration, in which the public

had taken so hearty an interest, and which the exertions of the

citizens had irresistibly accelerated, could not be completed in a

moment. Whilst the new penitentiaries were being erected (and it was

the pleasure of the majority that they should be terminated with all

possible celerity), the old prisons existed, which still contained a

great number of offenders. These jails became more unwholesome and more

corrupt in proportion as the new establishments were beautified and

improved, forming a contrast which may readily be understood. The

majority was so eagerly employed in founding the new prisons that those

which already existed were forgotten; and as the general attention was

diverted to a novel object, the care which had hitherto been bestowed

upon the others ceased. The salutary regulations of discipline were

first relaxed, and afterwards broken; so that in the immediate

neighborhood of a prison which bore witness to the mild and enlightened

spirit of our time, dungeons might be met with which reminded the

visitor of the barbarity of the Middle Ages.

Chapter XV: Unlimited Power Of Majority, And Its Consequences—Part II

Tyranny Of The Majority

How the principle of the sovereignty of the people is to be

understood—Impossibility of conceiving a mixed government—The sovereign

power must centre somewhere—Precautions to be taken to control its

action—These precautions have not been taken in the United

States—Consequences.

I hold it to be an impious and an execrable maxim that, politically

speaking, a people has a right to do whatsoever it pleases, and yet I

have asserted that all authority originates in the will of the

majority. Am I then, in contradiction with myself?

A general law—which bears the name of Justice—has been made and

sanctioned, not only by a majority of this or that people, but by a

majority of mankind. The rights of every people are consequently

confined within the limits of what is just. A nation may be considered

in the light of a jury which is empowered to represent society at

large, and to apply the great and general law of justice. Ought such a

jury, which represents society, to have more power than the society in

which the laws it applies originate?

When I refuse to obey an unjust law, I do not contest the right which

the majority has of commanding, but I simply appeal from the

sovereignty of the people to the sovereignty of mankind. It has been

asserted that a people can never entirely outstep the boundaries of

justice and of reason in those affairs which are more peculiarly its

own, and that consequently, full power may fearlessly be given to the

majority by which it is represented. But this language is that of a

slave.

A majority taken collectively may be regarded as a being whose

opinions, and most frequently whose interests, are opposed to those of

another being, which is styled a minority. If it be admitted that a

man, possessing absolute power, may misuse that power by wronging his

adversaries, why should a majority not be liable to the same reproach?

Men are not apt to change their characters by agglomeration; nor does

their patience in the presence of obstacles increase with the

consciousness of their strength. *c And for these reasons I can never

willingly invest any number of my fellow-creatures with that unlimited

authority which I should refuse to any one of them.

c

[ No one will assert that a people cannot forcibly wrong another

people; but parties may be looked upon as lesser nations within a

greater one, and they are aliens to each other: if, therefore, it be

admitted that a nation can act tyrannically towards another nation, it

cannot be denied that a party may do the same towards another party.]

I do not think that it is possible to combine several principles in the

same government, so as at the same time to maintain freedom, and really

to oppose them to one another. The form of government which is usually

termed mixed has always appeared to me to be a mere chimera. Accurately

speaking there is no such thing as a mixed government (with the meaning

usually given to that word), because in all communities some one

principle of action may be discovered which preponderates over the

others. England in the last century, which has been more especially

cited as an example of this form of Government, was in point of fact an

essentially aristocratic State, although it comprised very powerful

elements of democracy; for the laws and customs of the country were

such that the aristocracy could not but preponderate in the end, and

subject the direction of public affairs to its own will. The error

arose from too much attention being paid to the actual struggle which

was going on between the nobles and the people, without considering the

probable issue of the contest, which was in reality the important

point. When a community really has a mixed government, that is to say,

when it is equally divided between two adverse principles, it must

either pass through a revolution or fall into complete dissolution.

I am therefore of opinion that some one social power must always be

made to predominate over the others; but I think that liberty is

endangered when this power is checked by no obstacles which may retard

its course, and force it to moderate its own vehemence.

Unlimited power is in itself a bad and dangerous thing; human beings

are not competent to exercise it with discretion, and God alone can be

omnipotent, because His wisdom and His justice are always equal to His

power. But no power upon earth is so worthy of honor for itself, or of

reverential obedience to the rights which it represents, that I would

consent to admit its uncontrolled and all-predominant authority. When I

see that the right and the means of absolute command are conferred on a

people or upon a king, upon an aristocracy or a democracy, a monarchy

or a republic, I recognize the germ of tyranny, and I journey onward to

a land of more hopeful institutions.

In my opinion the main evil of the present democratic institutions of

the United States does not arise, as is often asserted in Europe, from

their weakness, but from their overpowering strength; and I am not so

much alarmed at the excessive liberty which reigns in that country as

at the very inadequate securities which exist against tyranny.

When an individual or a party is wronged in the United States, to whom

can he apply for redress? If to public opinion, public opinion

constitutes the majority; if to the legislature, it represents the

majority, and implicitly obeys its injunctions; if to the executive

power, it is appointed by the majority, and remains a passive tool in

its hands; the public troops consist of the majority under arms; the

jury is the majority invested with the right of hearing judicial cases;

and in certain States even the judges are elected by the majority.

However iniquitous or absurd the evil of which you complain may be, you

must submit to it as well as you can. *d

d

[ A striking instance of the excesses which may be occasioned by the

despotism of the majority occurred at Baltimore in the year 1812. At

that time the war was very popular in Baltimore. A journal which had

taken the other side of the question excited the indignation of the

inhabitants by its opposition. The populace assembled, broke the

printing-presses, and attacked the houses of the newspaper editors. The

militia was called out, but no one obeyed the call; and the only means

of saving the poor wretches who were threatened by the frenzy of the

mob was to throw them into prison as common malefactors. But even this

precaution was ineffectual; the mob collected again during the night,

the magistrates again made a vain attempt to call out the militia, the

prison was forced, one of the newspaper editors was killed upon the

spot, and the others were left for dead; the guilty parties were

acquitted by the jury when they were brought to trial.

I said one day to an inhabitant of Pennsylvania, “Be so good as to

explain to me how it happens that in a State founded by Quakers, and

celebrated for its toleration, freed blacks are not allowed to exercise

civil rights. They pay the taxes; is it not fair that they should have

a vote?”

“You insult us,” replied my informant, “if you imagine that our

legislators could have committed so gross an act of injustice and

intolerance.”

“What! then the blacks possess the right of voting in this county?”

“Without the smallest doubt.”

“How comes it, then, that at the polling-booth this morning I did not

perceive a single negro in the whole meeting?”

“This is not the fault of the law: the negroes have an undisputed right

of voting, but they voluntarily abstain from making their appearance.”

“A very pretty piece of modesty on their parts!” rejoined I.

“Why, the truth is, that they are not disinclined to vote, but they are

afraid of being maltreated; in this country the law is sometimes unable

to maintain its authority without the support of the majority. But in

this case the majority entertains very strong prejudices against the

blacks, and the magistrates are unable to protect them in the exercise

of their legal privileges.”

“What! then the majority claims the right not only of making the laws,

but of breaking the laws it has made?”]

If, on the other hand, a legislative power could be so constituted as

to represent the majority without necessarily being the slave of its

passions; an executive, so as to retain a certain degree of

uncontrolled authority; and a judiciary, so as to remain independent of

the two other powers; a government would be formed which would still be

democratic without incurring any risk of tyrannical abuse.

I do not say that tyrannical abuses frequently occur in America at the

present day, but I maintain that no sure barrier is established against

them, and that the causes which mitigate the government are to be found

in the circumstances and the manners of the country more than in its

laws.

Effects Of The Unlimited Power Of The Majority Upon The Arbitrary

Authority Of The American Public Officers

Liberty left by the American laws to public officers within a certain

sphere—Their power.

A distinction must be drawn between tyranny and arbitrary power.

Tyranny may be exercised by means of the law, and in that case it is

not arbitrary; arbitrary power may be exercised for the good of the

community at large, in which case it is not tyrannical. Tyranny usually

employs arbitrary means, but, if necessary, it can rule without them.

In the United States the unbounded power of the majority, which is

favorable to the legal despotism of the legislature, is likewise

favorable to the arbitrary authority of the magistrate. The majority

has an entire control over the law when it is made and when it is

executed; and as it possesses an equal authority over those who are in

power and the community at large, it considers public officers as its

passive agents, and readily confides the task of serving its designs to

their vigilance. The details of their office and the privileges which

they are to enjoy are rarely defined beforehand; but the majority

treats them as a master does his servants when they are always at work

in his sight, and he has the power of directing or reprimanding them at

every instant.

In general the American functionaries are far more independent than the

French civil officers within the sphere which is prescribed to them.

Sometimes, even, they are allowed by the popular authority to exceed

those bounds; and as they are protected by the opinion, and backed by

the co-operation, of the majority, they venture upon such

manifestations of their power as astonish a European. By this means

habits are formed in the heart of a free country which may some day

prove fatal to its liberties.

Power Exercised By The Majority In America Upon Opinion

In America, when the majority has once irrevocably decided a question,

all discussion ceases—Reason of this—Moral power exercised by the

majority upon opinion—Democratic republics have deprived despotism of

its physical instruments—Their despotism sways the minds of men.

It is in the examination of the display of public opinion in the United

States that we clearly perceive how far the power of the majority

surpasses all the powers with which we are acquainted in Europe.

Intellectual principles exercise an influence which is so invisible,

and often so inappreciable, that they baffle the toils of oppression.

At the present time the most absolute monarchs in Europe are unable to

prevent certain notions, which are opposed to their authority, from

circulating in secret throughout their dominions, and even in their

courts. Such is not the case in America; as long as the majority is

still undecided, discussion is carried on; but as soon as its decision

is irrevocably pronounced, a submissive silence is observed, and the

friends, as well as the opponents, of the measure unite in assenting to

its propriety. The reason of this is perfectly clear: no monarch is so

absolute as to combine all the powers of society in his own hands, and

to conquer all opposition with the energy of a majority which is

invested with the right of making and of executing the laws.

The authority of a king is purely physical, and it controls the actions

of the subject without subduing his private will; but the majority

possesses a power which is physical and moral at the same time; it acts

upon the will as well as upon the actions of men, and it represses not

only all contest, but all controversy. I know no country in which there

is so little true independence of mind and freedom of discussion as in

America. In any constitutional state in Europe every sort of religious

and political theory may be advocated and propagated abroad; for there

is no country in Europe so subdued by any single authority as not to

contain citizens who are ready to protect the man who raises his voice

in the cause of truth from the consequences of his hardihood. If he is

unfortunate enough to live under an absolute government, the people is

upon his side; if he inhabits a free country, he may find a shelter

behind the authority of the throne, if he require one. The aristocratic

part of society supports him in some countries, and the democracy in

others. But in a nation where democratic institutions exist, organized

like those of the United States, there is but one sole authority, one

single element of strength and of success, with nothing beyond it.

In America the majority raises very formidable barriers to the liberty

of opinion: within these barriers an author may write whatever he

pleases, but he will repent it if he ever step beyond them. Not that he

is exposed to the terrors of an auto-da-fe, but he is tormented by the

slights and persecutions of daily obloquy. His political career is

closed forever, since he has offended the only authority which is able

to promote his success. Every sort of compensation, even that of

celebrity, is refused to him. Before he published his opinions he

imagined that he held them in common with many others; but no sooner

has he declared them openly than he is loudly censured by his

overbearing opponents, whilst those who think without having the

courage to speak, like him, abandon him in silence. He yields at

length, oppressed by the daily efforts he has been making, and he

subsides into silence, as if he was tormented by remorse for having

spoken the truth.

Fetters and headsmen were the coarse instruments which tyranny formerly

employed; but the civilization of our age has refined the arts of

despotism which seemed, however, to have been sufficiently perfected

before. The excesses of monarchical power had devised a variety of

physical means of oppression: the democratic republics of the present

day have rendered it as entirely an affair of the mind as that will

which it is intended to coerce. Under the absolute sway of an

individual despot the body was attacked in order to subdue the soul,

and the soul escaped the blows which were directed against it and rose

superior to the attempt; but such is not the course adopted by tyranny

in democratic republics; there the body is left free, and the soul is

enslaved. The sovereign can no longer say, “You shall think as I do on

pain of death;” but he says, “You are free to think differently from

me, and to retain your life, your property, and all that you possess;

but if such be your determination, you are henceforth an alien among

your people. You may retain your civil rights, but they will be useless

to you, for you will never be chosen by your fellow-citizens if you

solicit their suffrages, and they will affect to scorn you if you

solicit their esteem. You will remain among men, but you will be

deprived of the rights of mankind. Your fellow-creatures will shun you

like an impure being, and those who are most persuaded of your

innocence will abandon you too, lest they should be shunned in their

turn. Go in peace! I have given you your life, but it is an existence

in comparably worse than death.”

Monarchical institutions have thrown an odium upon despotism; let us

beware lest democratic republics should restore oppression, and should

render it less odious and less degrading in the eyes of the many, by

making it still more onerous to the few.

Works have been published in the proudest nations of the Old World

expressly intended to censure the vices and deride the follies of the

times; Labruyere inhabited the palace of Louis XIV when he composed his

chapter upon the Great, and Moliere criticised the courtiers in the

very pieces which were acted before the Court. But the ruling power in

the United States is not to be made game of; the smallest reproach

irritates its sensibility, and the slightest joke which has any

foundation in truth renders it indignant; from the style of its

language to the more solid virtues of its character, everything must be

made the subject of encomium. No writer, whatever be his eminence, can

escape from this tribute of adulation to his fellow-citizens. The

majority lives in the perpetual practice of self-applause, and there

are certain truths which the Americans can only learn from strangers or

from experience.

If great writers have not at present existed in America, the reason is

very simply given in these facts; there can be no literary genius

without freedom of opinion, and freedom of opinion does not exist in

America. The Inquisition has never been able to prevent a vast number

of anti-religious books from circulating in Spain. The empire of the

majority succeeds much better in the United States, since it actually

removes the wish of publishing them. Unbelievers are to be met with in

America, but, to say the truth, there is no public organ of infidelity.

Attempts have been made by some governments to protect the morality of

nations by prohibiting licentious books. In the United States no one is

punished for this sort of works, but no one is induced to write them;

not because all the citizens are immaculate in their manners, but

because the majority of the community is decent and orderly.

In these cases the advantages derived from the exercise of this power

are unquestionable, and I am simply discussing the nature of the power

itself. This irresistible authority is a constant fact, and its

judicious exercise is an accidental occurrence.

Effects Of The Tyranny Of The Majority Upon The National Character Of

The Americans

Effects of the tyranny of the majority more sensibly felt hitherto in

the manners than in the conduct of society—They check the development

of leading characters—Democratic republics organized like the United

States bring the practice of courting favor within the reach of the

many—Proofs of this spirit in the United States—Why there is more

patriotism in the people than in those who govern in its name.

The tendencies which I have just alluded to are as yet very slightly

perceptible in political society, but they already begin to exercise an

unfavorable influence upon the national character of the Americans. I

am inclined to attribute the singular paucity of distinguished

political characters to the ever-increasing activity of the despotism

of the majority in the United States. When the American Revolution

broke out they arose in great numbers, for public opinion then served,

not to tyrannize over, but to direct the exertions of individuals.

Those celebrated men took a full part in the general agitation of mind

common at that period, and they attained a high degree of personal

fame, which was reflected back upon the nation, but which was by no

means borrowed from it.

In absolute governments the great nobles who are nearest to the throne

flatter the passions of the sovereign, and voluntarily truckle to his

caprices. But the mass of the nation does not degrade itself by

servitude: it often submits from weakness, from habit, or from

ignorance, and sometimes from loyalty. Some nations have been known to

sacrifice their own desires to those of the sovereign with pleasure and

with pride, thus exhibiting a sort of independence in the very act of

submission. These peoples are miserable, but they are not degraded.

There is a great difference between doing what one does not approve and

feigning to approve what one does; the one is the necessary case of a

weak person, the other befits the temper of a lackey.

In free countries, where everyone is more or less called upon to give

his opinion in the affairs of state; in democratic republics, where

public life is incessantly commingled with domestic affairs, where the

sovereign authority is accessible on every side, and where its

attention can almost always be attracted by vociferation, more persons

are to be met with who speculate upon its foibles and live at the cost

of its passions than in absolute monarchies. Not because men are

naturally worse in these States than elsewhere, but the temptation is

stronger, and of easier access at the same time. The result is a far

more extensive debasement of the characters of citizens.

Democratic republics extend the practice of currying favor with the

many, and they introduce it into a greater number of classes at once:

this is one of the most serious reproaches that can be addressed to

them. In democratic States organized on the principles of the American

republics, this is more especially the case, where the authority of the

majority is so absolute and so irresistible that a man must give up his

rights as a citizen, and almost abjure his quality as a human being, if

te intends to stray from the track which it lays down.

In that immense crowd which throngs the avenues to power in the United

States I found very few men who displayed any of that manly candor and

that masculine independence of opinion which frequently distinguished

the Americans in former times, and which constitutes the leading

feature in distinguished characters, wheresoever they may be found. It

seems, at first sight, as if all the minds of the Americans were formed

upon one model, so accurately do they correspond in their manner of

judging. A stranger does, indeed, sometimes meet with Americans who

dissent from these rigorous formularies; with men who deplore the

defects of the laws, the mutability and the ignorance of democracy; who

even go so far as to observe the evil tendencies which impair the

national character, and to point out such remedies as it might be

possible to apply; but no one is there to hear these things besides

yourself, and you, to whom these secret reflections are confided, are a

stranger and a bird of passage. They are very ready to communicate

truths which are useless to you, but they continue to hold a different

language in public.

If ever these lines are read in America, I am well assured of two

things: in the first place, that all who peruse them will raise their

voices to condemn me; and in the second place, that very many of them

will acquit me at the bottom of their conscience.

I have heard of patriotism in the United States, and it is a virtue

which may be found among the people, but never among the leaders of the

people. This may be explained by analogy; despotism debases the

oppressed much more than the oppressor: in absolute monarchies the king

has often great virtues, but the courtiers are invariably servile. It

is true that the American courtiers do not say “Sire,” or “Your

Majesty”—a distinction without a difference. They are forever talking

of the natural intelligence of the populace they serve; they do not

debate the question as to which of the virtues of their master is

pre-eminently worthy of admiration, for they assure him that he

possesses all the virtues under heaven without having acquired them, or

without caring to acquire them; they do not give him their daughters

and their wives to be raised at his pleasure to the rank of his

concubines, but, by sacrificing their opinions, they prostitute

themselves. Moralists and philosophers in America are not obliged to

conceal their opinions under the veil of allegory; but, before they

venture upon a harsh truth, they say, “We are aware that the people

which we are addressing is too superior to all the weaknesses of human

nature to lose the command of its temper for an instant; and we should

not hold this language if we were not speaking to men whom their

virtues and their intelligence render more worthy of freedom than all

the rest of the world.” It would have been impossible for the

sycophants of Louis XIV to flatter more dexterously. For my part, I am

persuaded that in all governments, whatever their nature may be,

servility will cower to force, and adulation will cling to power. The

only means of preventing men from degrading themselves is to invest no

one with that unlimited authority which is the surest method of

debasing them.

The Greatest Dangers Of The American Republics Proceed From The

Unlimited Power Of The Majority

Democratic republics liable to perish from a misuse of their power, and

not by impotence—The Governments of the American republics are more

centralized and more energetic than those of the monarchies of

Europe—Dangers resulting from this—Opinions of Hamilton and Jefferson

upon this point.

Governments usually fall a sacrifice to impotence or to tyranny. In the

former case their power escapes from them; it is wrested from their

grasp in the latter. Many observers, who have witnessed the anarchy of

democratic States, have imagined that the government of those States

was naturally weak and impotent. The truth is, that when once

hostilities are begun between parties, the government loses its control

over society. But I do not think that a democratic power is naturally

without force or without resources: say, rather, that it is almost

always by the abuse of its force and the misemployment of its resources

that a democratic government fails. Anarchy is almost always produced

by its tyranny or its mistakes, but not by its want of strength.

It is important not to confound stability with force, or the greatness

of a thing with its duration. In democratic republics, the power which

directs *e society is not stable; for it often changes hands and

assumes a new direction. But whichever way it turns, its force is

almost irresistible. The Governments of the American republics appear

to me to be as much centralized as those of the absolute monarchies of

Europe, and more energetic than they are. I do not, therefore, imagine

that they will perish from weakness. *f

e

[ This power may be centred in an assembly, in which case it will be

strong without being stable; or it may be centred in an individual, in

which case it will be less strong, but more stable.]

f

[ I presume that it is scarcely necessary to remind the reader here, as

well as throughout the remainder of this chapter, that I am speaking,

not of the Federal Government, but of the several governments of each

State, which the majority controls at its pleasure.]

If ever the free institutions of America are destroyed, that event may

be attributed to the unlimited authority of the majority, which may at

some future time urge the minorities to desperation, and oblige them to

have recourse to physical force. Anarchy will then be the result, but

it will have been brought about by despotism.

Mr. Hamilton expresses the same opinion in the “Federalist,” No. 51.

“It is of great importance in a republic not only to guard the society

against the oppression of its rulers, but to guard one part of the

society against the injustice of the other part. Justice is the end of

government. It is the end of civil society. It ever has been, and ever

will be, pursued until it be obtained, or until liberty be lost in the

pursuit. In a society, under the forms of which the stronger faction

can readily unite and oppress the weaker, anarchy may as truly be said

to reign as in a state of nature, where the weaker individual is not

secured against the violence of the stronger: and as in the latter

state even the stronger individuals are prompted by the uncertainty of

their condition to submit to a government which may protect the weak as

well as themselves, so in the former state will the more powerful

factions be gradually induced by a like motive to wish for a government

which will protect all parties, the weaker as well as the more

powerful. It can be little doubted that, if the State of Rhode Island

was separated from the Confederacy and left to itself, the insecurity

of right under the popular form of government within such narrow limits

would be displayed by such reiterated oppressions of the factious

majorities, that some power altogether independent of the people would

soon be called for by the voice of the very factions whose misrule had

proved the necessity of it.”

Jefferson has also thus expressed himself in a letter to Madison: *g

“The executive power in our Government is not the only, perhaps not

even the principal, object of my solicitude. The tyranny of the

Legislature is really the danger most to be feared, and will continue

to be so for many years to come. The tyranny of the executive power

will come in its turn, but at a more distant period.” I am glad to cite

the opinion of Jefferson upon this subject rather than that of another,

because I consider him to be the most powerful advocate democracy has

ever sent forth.

g

[ March 15, 1789.]

Chapter XVI: Causes Mitigating Tyranny In The United States—Part I

Chapter Summary

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 could penetrate into the privacy of individual interests,

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 in 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 desires 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 entrust 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 break-waters, 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 monarchical States of Europe, or indeed than any which could be

found on this side of 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 lawyers—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 entrusted 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

were 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

connection 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

an 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 could 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 will 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 to content and to employ than

it can find places; 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 the 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 take upon itself to deprive men of their

independence, they are not dissatisfied.

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

entrusted 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 the decisions

of their forefathers. In the mind of an English or American lawyer a

taste and a reverence for what is old is 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 produce precedents, the

latter reasons. A French observer is surprised to hear how often an

English or an American lawyer quotes the opinions of others, and how

little he alludes to his own; whilst 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 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 taste and the ideas of the

aristocratic circles in which they move with the aristocratic interests

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 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 to so great a crime. This spirit appertains more especially 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 title 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 men of letters, 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 amongst 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, *a

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.

a

[ See chapter VI. on the “Judicial Power in the United States.”]

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.

Chapter XVI: Causes Mitigating Tyranny In The United States—Part II

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

insure 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. *b

b

[ 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 gradually combining with each other. See the “Digeste des

Lois de la Louisiane,” in two volumes; and the “Traite sur les Regles

des Actions civiles,” printed in French and English at New Orleans in

1830.]

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. *c 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 civilization, in all the climates of the earth and

under every form of human government, cannot be contrary to the spirit

of justice. *d

c

[ 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., chap. xxxviii.)]

d

[ 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 amongst 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 newcomers. The

ambition of the magistrates is therefore continually excited, and they

are naturally made dependent upon the will of the majority, or the

individual who fills up the vacant appointments; the officers of the

court 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 should be 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 attaining 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 skilful judge

than to judges a majority of whom are imperfectly acquainted with

jurisprudence and with the laws.]

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. *e

e

[ 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.]

In England the jury is returned from the aristocratic portion of the

nation; *f 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. *g 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 directions, 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.

f

[ [This may be true to some extent of special juries, but not of common

juries. The author seems not to have been aware that the qualifications

of jurors in England vary exceedingly.]]

g

[ See Appendix, Q.]

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 arises 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 entrusted, 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 most worthy of the

attention of the legislator, and all that remains is merely accessory.

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 witnesses 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; everyone 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 jury in civil cases, 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 mere

destructive passion. It teaches men to practice 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, whilst 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 towards 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 judgement 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 decision of the judge, they by

the authority of society which they represent, and he by that of reason

and of law. *h

h

[ See Appendix, R.]

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 afterwards 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. *i Upon these occasions they are accidentally placed in

the position which the French judges habitually occupy, but they are

invested with far more power than the latter; 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 characters of the individuals who took a part in his

judgment.

i

[ The Federal judges decide upon their own authority almost all the

questions most important to the country.]

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.