American Institutions And Their Influence

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Men who have more especially devoted themselves to legal
pursuits, derive from those occupations certain habits of order,
a taste for formalities, and a kind of instinctive regard for the
regular connexion of ideas, which naturally render them very
hostile to the revolutionary spirit and the unreflecting passions
of the multitude.

The special information which lawyers derive from their studies,
ensures them a separate station in society: and they constitute a
sort of privileged body in the scale of intelligence. This
notion of their superiority perpetually recurs to them in the
practice of their profession: they are the masters of a science
which is necessary, but which is not very generally known: they
serve as arbiters between the citizens; and the habit of
directing the blind passions of parties in litigation to their
purpose, inspires them with a certain contempt for the judgment
of the multitude. To this it may be added, that they naturally
constitute _a body_; not by any previous understanding, or
by any agreement which directs them to a common end; but the
analogy of their studies and the uniformity of their proceedings
connect their minds together, as much as a common interest would
combine their endeavors.

A portion of the tastes and of the habits of the aristocracy may
consequently be discovered in the characters of men in the
profession of the law. They participate in the same instinctive
love of order and of formalities; and they entertain the same
repugnance to the actions of the multitude, and the same secret
contempt of the government of the people. I do not mean to say
that the natural propensities of lawyers are sufficiently strong
to sway them irresistibly; for they, like most other men, are
governed by their private interests and the advantages of the
moment.

In a state of society in which the members of the legal
profession are prevented from holding that rank in the political
world which they enjoy in private life, we may rest assured that
they will be the foremost agents of revolution. But it must then
be inquired whether the cause which induces them to innovate and
to destroy is accidental, or whether it belongs to some lasting
purpose which they entertain. It is true that lawyers mainly
contributed to the overthrow of the French monarchy in 1789; but
it remains to be seen whether they acted thus because they had
studied the laws, or because they were prohibited from
co-operating in the work of legislation.

Five hundred years ago the English nobles headed the people, and
spoke in its name; at the present time, the aristocracy supports
the throne, and defends the royal prerogative. But aristocracy
has, notwithstanding this, its peculiar instincts and
propensities. We must be careful not to confound isolated
members of a body with the body itself. In all free governments,
of whatsoever form they may be, members of the legal profession
may be found at the head of all parties. The same remark is also
applicable to the aristocracy; for almost all the democratic
convulsions which have agitated the world have been directed by
nobles.

A privileged body can never satisfy the ambition of all its
members; it has always more talents and more passions than it can
find places to content and to employ; so that a considerable
number of individuals are usually to be met with, who are
inclined to attack those very privileges, which they find it
impossible to turn to their own account.

I do not, then, assert that _all_ the members of the legal
profession are at _all_ times the friends of order and the
opponents of innovation, but merely that most of them usually are
so. In a community in which lawyers are allowed to occupy,
without opposition, that high station which naturally belongs to
them, their general spirit will be eminently conservative and
anti-democratic. When an aristocracy excludes the leaders of
that profession from its ranks, it excites enemies which are the
more formidable to its security as they are independent of the
nobility by their industrious pursuits; and they feel themselves
to be its equal in point of intelligence, although they enjoy
less opulence and less power. But whenever an aristocracy
consents to impart some of its privileges to these same
individuals, the two classes coalesce very readily, and assume,
as it were, the consistency of a single order of family
interests.

I am, in like manner, inclined to believe that a monarch will
always be able to convert legal practitioners into the most
serviceable instruments of his authority. There is a far greater
affinity between this class of individuals and the executive
power, than there is between them and the people; just as there
is a greater natural affinity between the nobles and monarch,
than between the nobles and the people, although the higher
orders of society have occasionally resisted the prerogative of
the crown in concert with the lower classes.

Lawyers are attached to public order beyond every other
consideration, and the best security of public order is
authority. It must not be forgotten, that if they prize the free
institutions of their country much, they nevertheless value the
legality of those institutions far more; they are less afraid of
tyranny than of arbitrary power: and provided that the
legislature takes upon itself to deprive men of their
independence, they are not dissatisfied.[Footnote:

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_.

]

I am therefore convinced that the prince who, in presence of an
encroaching democracy, should endeavor to impair the judicial
authority in his dominions, and to diminish the political
influence of lawyers, would commit a great mistake. He would let
slip the substance of authority to grasp at the shadow. He would
act more wisely in introducing men connected with the law into
the government; and if he intrusted them with the conduct of a
despotic power, bearing some marks of violence, that power would
most likely assume the external features of justice and of
legality in their hands.

The government of democracy is favorable to the political power
of lawyers; for when the wealthy, the noble, and the prince, are
excluded from the government, they are sure to occupy the highest
stations in their own right, as it were, since they are the only
men of information and sagacity, beyond the sphere of the people,
who can be the object of the popular choice. If, then, they are
led by their tastes to combine with the aristocracy, and to
support the crown, they are naturally brought into contact with
the people by their interests. They like the government of
democracy, without participating in its propensities, and without
imitating its weaknesses; whence they derive a twofold authority
from it and over it. The people in democratic states does not
mistrust the members of the legal profession, because it is well
known that they are interested in serving the popular cause; and
it listens to them without irritation, because it does not
attribute to them any sinister designs. The object of lawyers is
not, indeed, to overthrow the institutions of democracy, but they
constantly endeavor to give it an impulse which diverts it from
its real tendency, by means which are foreign to its nature.
Lawyers belong to the people by birth and interest, to the
aristocracy by habit and by taste, and they may be looked upon as
the natural bond and connecting link of the two great classes of
society.

The profession of the law is the only aristocratic element which
can be amalgamated without violence with the natural elements of
democracy, and which can be advantageously and permanently
combined with them. I am not unacquainted with the defects which
are inherent in the character of that body of men; but without
this admixture of lawyer-like sobriety with the democratic
principle, I question whether democratic institutions could long
be maintained; and I cannot believe that a republic could subsist
at the present time, if the influence of lawyers in public
business did not increase in proportion to the power of the
people.

This aristocratic character, which I hold to be common to the
legal profession, is much more distinctly marked in the United
States and in England than in any other country. This proceeds
not only from the legal studies of the English and American
lawyers, but from the nature of the legislation, and the position
which those persons occupy, in the two countries. The English
and the Americans have retained the law of precedents; that is to
say, they continue to found their legal opinions and the
decisions of their courts upon the opinions and decisions of
their forefathers. In the mind of an English or an American
lawyer, a taste and a reverence for what is old are almost always
united to a love of regular and lawful proceedings.

This predisposition has another effect upon the character of the
legal profession and upon the general course of society. The
English and American lawyers investigate what has been done; the
French advocate inquires what should have been done: the former
produces precedents; the latter reasons. A French observer is
surprised to hear how often an English or American lawyer quotes
the opinions of others, and how little he alludes to his own;
while the reverse occurs in France. There, the most trifling
litigation is never conducted without the introduction of an
entire system of ideas peculiar to the counsel employed; and the
fundamental principles of law are discussed in order to obtain a
perch of land by the decision of the court. This abnegation of
his own opinion, and this implicit deference to the opinion of
his forefathers, which are common to the English and American
lawyer, this subjection of thought which he is obliged to
profess, necessarily give him more timid habits and more sluggish
inclinations in England and America than in France.

The French codes are often difficult of comprehension, but they
can be read by every one; nothing, on the other hand, can be more
impenetrable to the uninitiated than a legislation founded upon
precedents. The indispensable want of legal assistance which is
felt in England and in the United States, and the high opinion
which is generally entertained of the ability of the legal
profession, tend to separate it more and more from the people,
and to place it in a distinct class. The French lawyer is simply
a man extensively acquainted with the statutes of his country;
but the English or American lawyer resembles the hierophants of
Egypt, for, like them, he is the sole interpreter of an occult
science.

[The remark that English and American lawyers found their
opinions and their decisions upon those of their forefathers, is
calculated to excite surprise in an American reader, who supposes
that law, as a prescribed rule of action, can only be ascertained
in cases where the statutes are silent, by reference to the
decisions of courts. On the continent, and particularly in
France, as the writer of this note learned from the conversation
of M. de Tocqueville, the judicial tribunals do not deem
themselves bound by any precedents, or by any decisions of their
predecessors or of the appellate tribunals. They respect such
decisions as the opinions of distinguished men, and they pay no
higher regard to their own previous adjudications of any case.
It is not easy to perceive how the law can acquire any stability
under such a system, or how any individual can ascertain his
rights, without a lawsuit. This note should not be concluded
without a single remark upon what the author calls an implicit
deference to the opinions of our forefathers, and abnegation of
our own opinions. The common law consists of principles founded
on the common sense of mankind, and adapted to the circumstances
of man in civilized society. When these principles are once
settled by competent authority, or rather _declared_ by such
authority, they are supposed to express the common sense and the
common justice of the community; and it requires but a moderate
share of modesty for any one entertaining a different view of
them, to consider that the disinterested and intelligent judges
who have declared them, are more likely to be right than he is.
Perfection, even in the law, he does not consider attainable by
human beings, and the greatest approximation to it is all he
expects or desires. Besides, there are very few cases of
positive and abstract rule, where it is of any consequence which,
of any two or more modifications of it, should be adopted. The
great point is, that there should be _a rule_ by which
conduct may be regulated. Thus, whether in mercantile
transactions notice of a default by a principal shall be given to
an endorser, or a guarantor, and when and how such notice shall
be given, are not so important in themselves, as it is that there
should be some rule to which merchants may adapt themselves and
their transactions. Statutes cannot or at least do not,
prescribe the rules in a large majority of cases. If then they
are not drawn from the decision of courts, they will not exist,
and men will be wholly at a loss for a guide in the most
important transactions of business. Hence the deference paid to
legal decisions. But this is not implicit, as the author
supposes. The course of reasoning by which the courts have come
to their conclusions, is often assailed by the advocate and shown
to be fallacious, and the instances are not unfrequent of courts
disregarding prior decisions and overruling them when not fairly
deducible from sound reason.

Again, the principles of the common law are flexible, and adapt
themselves to changes in society, and a well-known maxim in our
system, that when the reason of the law ceases, the law itself
ceases, has overthrown many an antiquated rule. Within these
limits, it is conceived that there is range enough for the
exercise of all the reason of the advocate and the judge, without
unsettling everything and depriving the conduct of human affairs
of all guidance from human authority;--and the talent of our
lawyers and courts finds sufficient exercise in applying the
principles of one case to facts of another.--_American
Editor_.]

The station which lawyers occupy in England and America exercises
no less an influence upon their habits and their opinions. The
English aristocracy, which has taken care to attract to its
sphere whatever is at all analogous to itself, has conferred a
high degree of importance and of authority upon the members of
the legal profession. In English society lawyers do not occupy
the first rank, but they are contented with the station assigned
to them; they constitute, as it were, the younger branch of the
English aristocracy, and they are attached to their elder
brothers, although they do not enjoy all their privileges. The
English lawyers consequently mingle the tastes and the ideas of
the aristocratic circles in which they move, with the
aristocratic interest of their profession.

And indeed the lawyer-like character which I am endeavoring to
depict, is most distinctly to be met with in England: there laws
are esteemed not so much because they are good, as because they
are old; and if it be necessary to modify them in any respect, or
to adapt them to the changes which time operates in society,
recourse is had to the most inconceivable contrivances in order
to uphold the traditionary fabric, and to maintain that nothing
has been done which does not square with the intentions, and
complete the labors, of former generations. The very individuals
who conduct these changes disclaim all intention of innovation,
and they had rather resort to absurd expedients than plead guilty
of so great a crime. This spirit more especially appertains to
the English lawyers; they seem indifferent to the real meaning of
what they treat, and they direct all their attention to the
letter, seeming inclined to infringe the rules of common sense
and of humanity, rather than to swerve one tittle from the law.
The English legislation may be compared to the stock of an old
tree, upon which lawyers have engrafted the most various shoots,
with the hope, that, although their fruits may differ, their
foliage at least will be confounded with the venerable trunk
which supports them all.

In America there are no nobles or literary men, and the people is
apt to mistrust the wealthy; lawyers consequently form the
highest political class, and the most cultivated circle of
society. They have therefore nothing to gain by innovation,
which adds a conservative interest to their natural taste for
public order. If I were asked where I place the American
aristocracy, I should reply without hesitation, that it is not
composed of the rich, who are united together by no common tie,
but that it occupies the judicial bench and the bar.

The more we reflect upon all that occurs in the United States,
the more shall we be persuaded that the lawyers, as a body, form
the most powerful, if not the only counterpoise to the democratic
element. In that country we perceive how eminently the legal
profession is qualified by its powers, and even by its defects,
to neutralize the vices which are inherent in popular government.
When the American people is intoxicated by passion, or carried
away by the impetuosity of its ideas, it is checked and stopped
by the almost invisible influence of its legal counsellors, who
secretly oppose their aristocratic propensities to its democratic
instincts, their superstitious attachment to what is antique to
its love of novelty, their narrow views to its immense designs,
and their habitual procrastination to its ardent impatience.

The courts of justice are the most visible organs by which the
legal profession is enabled to control the democracy. The judge
is a lawyer, who, independently of the taste for regularity and
order which he has contracted in the study of legislation,
derives an additional love of stability from his own inalienable
functions. His legal attainments have already raised him to a
distinguished rank among his fellow-citizens; his political power
completes the distinction of his station, and gives him the
inclinations natural to privileged classes.

Armed with the power of declaring the laws to be
unconstitutional,[Footnote:

See chapter vi., p. 94, on the judicial power in the United
States.

] the American magistrate perpetually interferes in political
affairs. He cannot force the people to make laws, but at least
he can oblige it not to disobey its own enactments, or to act
inconsistently with its own principles. I am aware that a secret
tendency to diminish the judicial power exists in the United
States; and by most of the constitutions of the several states,
the government can, upon the demand of the two houses of the
legislature, remove the judges from their station. By some other
constitutions the members of the tribunals are elected, and they
are even subjected to frequent re-elections. I venture to
predict that these innovations will sooner or later be attended
with fatal consequences; and that it will be found out at some
future period, that the attack which is made upon the judicial
power has affected the democratic republic itself.

It must not, however, be supposed that the legal spirit of which
I have been speaking has been confined in the United States to
the courts of justice; it extends far beyond them. As the
lawyers constitute the only enlightened class which the people
does not mistrust, they are naturally called upon to occupy most
of the public stations. They fill the legislative assemblies,
and they conduct the administration; they consequently exercise a
powerful influence upon the formation of the law, and upon its
execution. The lawyers are, however, obliged to yield to the
current of public opinion, which is too strong for them to resist
it; but it is easy to find indications of what their conduct
would be, if they were free to act as they chose. The Americans
who have made such copious innovations in their political
legislation, have introduced very sparing alterations in their
civil laws, and that with great difficulty, although those laws
are frequently repugnant to their social condition. The reason
of this is, that in matters of civil law the majority is obliged
to defer to the authority of the legal profession, and that the
American lawyers are disinclined to innovate when they are left
to their own choice.

It is curious for a Frenchman, accustomed to a very different
state of things, to hear the perpetual complaints which are made
in the United States, against the stationary propensities of
legal men, and their prejudices in favor of existing
institutions.

The influence of the legal habits which are common in America
extends beyond the limits I have just pointed out. Scarcely any
question arises in the United States which does not become,
sooner or later, a subject of judicial debate; hence all parties
are obliged to borrow the ideas, and even the language, usual in
judicial proceedings, in their daily controversies. As most
public men are, or have been, legal practitioners, they introduce
the customs and technicalities of their profession into the
affairs of the country. The jury extends this habitude to all
classes. The language of the law thus becomes, in some measure,
a vulgar tongue; the spirit of the law, which is produced in the
schools and courts of justice, gradually penetrates beyond their
walls into the bosom of society, where it descends to the lowest
classes, so that the whole people contracts the habits and the
tastes of the magistrate. The lawyers of the United States form
a party which is but little feared and scarcely perceived, which
has no badge peculiar to itself, which adapts itself with great
flexibility to the exigencies of the time, and accommodates
itself to all the movements of the social body: but this party
extends over the whole community, and it penetrates into all
classes of society; it acts upon the country imperceptibly, but
it finally fashions it to suit its purposes.

* * * * *

TRIAL BY JURY IN THE UNITED STATES CONSIDERED AS A
POLITICAL INSTITUTION.

Trial by Jury, which is one of the Instruments of the Sovereignty
of the People, deserves to be compared with the other Laws
which establish that sovereignty.--Composition of the Jury in
the United States.--Effect of Trial by Jury upon the national
Character.--It educates the People.--It tends to establish the
Authority of the Magistrates, and to extend a knowledge of Law
among the People.

Since I have been led by my subject to recur to the
administration of justice in the United States, I will not pass
over this point without adverting to the institution of the jury.
Trial by jury may be considered in two separate points of view:
as a judicial, and as a political institution. If it entered
into my present purpose to inquire how far trial by jury (more
especially in civil cases) contributes to ensure the best
administration of justice, I admit that its utility might be
contested. As the jury was first introduced at a time when
society was in an uncivilized state, and when courts of justice
were merely called upon to decide on the evidence of facts, it is
not an easy task to adapt it to the wants of a highly civilized
community, when the mutual relations of men are multiplied to a
surprising extent, and have assumed the enlightened and
intellectual character of the age.[Footnote:

The investigation of trial by jury as a judicial institution, and
the appreciation of its effects in the United States, together
with the advantages the Americans have derived from it, would
suffice to form a book, and a book upon a very useful and
curious, subject. The state of Louisiana would in particular
afford the curious phenomenon of a French and English
legislation, as well as a French and English population, which
are generally combining with each other. See the "Digeste des
Lois de la Louisiane," in two volumes; and the "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.[Footnote: