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 pract.i.tioners, they introduce the customs and technicalities of their profession into the affairs of the country. The jury extends this habitude to all cla.s.ses. 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 cla.s.ses, 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 cla.s.ses 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 INSt.i.tUTION.

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 pa.s.s over this point without adverting to the inst.i.tution of the jury. Trial by jury may be considered in two separate points of view: as a judicial, and as a political inst.i.tution. 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 a.s.sumed the enlightened and intellectual character of the age.[191]

My present object is to consider the jury as a political inst.i.tution; and any other course would divert me from my subject. Of trial by jury, considered as a judicial inst.i.tution, 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 inst.i.tution 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 const.i.tution; 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 inst.i.tution 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 inst.i.tution, 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 inst.i.tution, 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 inst.i.tution of the jury may be aristocratic or democratic, according to the cla.s.s 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 inst.i.tution of the jury raises the people itself, or at least a cla.s.s of citizens, to the bench of judicial authority. The inst.i.tution of the jury consequently invests the people, or that cla.s.s 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 const.i.tute 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 inst.i.tutions 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 inst.i.tution 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 a.s.sent, and in France, at least, the inst.i.tution 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 inst.i.tution. This appears to me to be the least part of the subject. The jury is pre-eminently a political inst.i.tution; 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 const.i.tute 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 inst.i.tution, 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 a.s.sociated with the idea of justice itself.

The inst.i.tution 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 inst.i.tutions. It imbues all cla.s.ses 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 pa.s.sion. 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 cla.s.ses, 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 pa.s.sions 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, const.i.tute 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 inst.i.tution 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 pa.s.sive 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 pa.s.sions 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 inst.i.tution. 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 a.s.semblies, 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 a.n.a.logous nature, are decided by the judges without the intervention of a jury. The cases in this last cla.s.s 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 inst.i.tution 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 federaux tranchent presque toujours seuls les questions qui touchent de plus pres 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 const.i.tutionality 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 cla.s.ses 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 legislateur se charge lui-meme d'enlever aux hommes leur independance, ils sont a peu pres 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 inst.i.tution, 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 "Traite 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 const.i.tution, 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. x.x.xviii.).

[193] If it were our province to point out the utility of the jury as a judicial inst.i.tution 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 inst.i.tution 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 a.s.size, 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.

CHAPTER XVII.

PRINc.i.p.aL CAUSES WHICH TEND TO MAINTAIN THE DEMOCRATIC REPUBLIC IN THE UNITED STATES.

A democratic republic subsists in the United States; and the princ.i.p.al object of this book has been to account for the fact of its existence.

Several of the causes which contribute to maintain the inst.i.tutions of America have been voluntarily pa.s.sed by, or only hinted at, as I was borne along by my subject. Others I have been unable to discuss and those on which I have dwelt most, are, as it were, buried in the details of the former part of this work.

I think, therefore, that before I proceed to speak of the future, I cannot do better than collect within a small compa.s.s the reasons which best explain the present. In this retrospective chapter I shall be succinct; for I shall take care to remind the reader very summarily of what he already knows; and I shall only select the most prominent of those facts which I have not yet pointed out.

All the causes which contribute to the maintenance of the democratic republic in the United States are reducible to three heads:

I. The peculiar and accidental situation in which Providence has placed the Americans.