American Institutions And Their Influence

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All the English and American jurists are unanimous upon this
head. Mr. Story, judge of the supreme court of the United
States, speaks, in his treatise on the federal constitution, of
the advantages of trial by jury in civil cases: "The inestimable
privilege of a trial by jury in civil cases--a privilege scarcely
inferior to that in criminal cases, which is counted by all
persons to be essential to political and civil liberty"
... (Story, book iii, ch. xxxviii.)

] They have established it, or hastened to re-establish it, in
all their settlements. A judicial institution which obtains the
suffrages of a great people for so long a series of ages, which
is zealously renewed at every epoch of civilisation, in all the
climates of the earth, and under every form of human government,
cannot be contrary to the spirit of justice.[Footnote:

If it were our province to point out the utility of the jury as a
judicial institution in this place, much might be said, and the
following arguments might be brought forward among others:--

By introducing the jury into the business of the courts, you are
enabled to diminish the number of judges; which is a very great
advantage. When judges are very numerous, death is perpetually
thinning the ranks of the judicial functionaries, and laying
places vacant for new comers. The ambition of the magistrates is
therefore continually excited, and they are naturally made
dependant upon the will of the majority, or the individual who
fills up vacant appointments: the officers of the courts then
rise like the officers of an army. This state of things is
entirely contrary to the sound administration of justice, and to
the intentions of the legislator. The office of a judge is made
inalienable in order that he may remain independent; but of what
advantage is it that his independence is protected, if he be
tempted to sacrifice it of his own accord? When judges are very
numerous, many of them must necessarily be incapable of
performing their important duties; for a great magistrate is a
man of no common powers; and I am inclined to believe that a half
enlightened tribunal is the worst of all instruments for
obtaining those objects which it is the purpose of courts of
justice to accomplish. For my own part, I had rather submit the
decision of a case to ignorant jurors directed by a skilfull
judge, than to judges, a majority of whom are imperfectly
acquainted with jurisprudence and with the laws.

[I venture to remind the reader, lest this note should appear
somewhat redundant to an English eye, that the jury is an
institution which has only been naturalized in France within the
present century; that it is even now exclusively applied to those
criminal causes which come before the courts of assize, or to the
prosecutions of the public press; and that the judges and
counsellors of the numerous local tribunals of France--forming a
body of many thousand judical functionaries--try all civil
causes, appeals from criminal causes, and minor offences, without
the jury.--_Translator's Note._]

]

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.[Footnote:

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,[Footnote:

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_.]

] 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.[Footnote:

See Appendix Q.

] The system of the jury, as it is understood in America,
appears to me to be as direct and as extreme a consequence of the
sovereignty of the people, as universal suffrage. These
institutions are two instruments of equal power, which contribute
to the supremacy of the majority. All the sovereigns who have
chosen to govern by their own authority, and to direct society
instead of obeying its direction, have destroyed or enfeebled the
institution of the jury. The monarchs of the house of Tudor sent
to prison jurors who refused to convict, and Napoleon caused them
to be returned by his agents.

However clear most of these truths may seem to be, they do not
command universal assent, and in France, at least, the
institution of trial by jury is still very imperfectly
understood. If the question arise as to the proper qualification
of jurors, it is confined to a discussion of the intelligence and
knowledge of the citizens who may be returned, as if the jury was
merely a judicial institution. This appears to me to be the
least part of the subject. The jury is pre-eminently a political
institution; it must be regarded as one form of the sovereignty
of the people; when that sovereignty is repudiated, it must be
rejected; or it must be adapted to the laws by which that
sovereignty is established. The jury is that portion of the
nation to which the execution of the laws is intrusted, as the
houses of parliament constitute that part of the nation which
makes the laws; and in order that society may be governed with
consistency and uniformity, the list of citizens qualified to
serve on juries must increase and diminish with the list of
electors. This I hold to be the point of view must worthy of the
attention of the legislator; and all that remains is merely
accessary.

I am so entirely convinced that the jury is pre-eminently a
political institution, that I still consider it in this light
when it is applied in civil causes. Laws are always unstable
unless they are founded upon the manners of a nation: manners are
the only durable and resisting power in a people. When the jury
is reserved for criminal offences, the people only sees its
occasional action in certain particular cases; the ordinary
course of life goes on without its interference, and it is
considered as an instrument, but not as the only instrument, of
obtaining justice. This is true _a fortiori_ when the
jury is only applied to certain criminal causes.

When, on the contrary, the influence of the jury is extended to
civil causes, its application is constantly palpable; it affects
all the interests of the community; every one co-operates in its
work: it thus penetrates into all the usages of life, it fashions
the human mind to its peculiar forms, and is gradually associated
with the idea of justice itself.

The institution of the jury, if confined to criminal causes, is
always in danger; but when once it is introduced into civil
proceedings, it defies the aggressions of time and of man. If it
had been as easy to remove the jury from the manners as from the
laws of England, it would have perished under Henry VIII. and
Elizabeth: and the civil jury did in reality, at that period,
save the liberties of the country. In whatever manner the jury
be applied, it cannot fail to exercise a powerful influence upon
the national character; but this influence is prodigiously
increased when it is introduced into civil causes. The jury, and
more especially the civil jury, serves to communicate the spirit
of the judges to the minds of all the citizens; and this spirit,
with the habits which attend it, is the soundest preparation for
free institutions. It imbues all classes with a respect for the
thing judged, and with the notion of right. If these two
elements be removed, the love of independence is reduced to a
more destructive passion. It teaches men to practise equity;
every man learns to judge his neighbor as he would himself be
judged: and this is especially true of the jury in civil causes;
for, while the number of persons who have reason to apprehend a
criminal prosecution is small, every one is liable to have a
civil action brought against him. The jury teaches every man not
to recoil before the responsibility of his own actions, and
impresses him with that manly confidence without which political
virtue cannot exist. It invests each citizen with a kind of
magistracy; it makes them all feel the duties which they are
bound to discharge toward society; and the part which they take
in the government. By obliging men to turn their attention to
affairs which are not exclusively their own, it rubs off that
individual egotism which is the rust of society.

The jury contributes most powerfully to form the judgment, and to
increase the natural intelligence of a people; and this is, in my
opinion, its greatest advantage. It may be regarded as a
gratuitous public school ever open, in which every juror learns
to exercise his rights, enters into daily communication with the
most learned and enlightened members of the upper classes, and
becomes practically acquainted with the laws of his country,
which are brought within the reach of his capacity by the efforts
of the bar, the advice of the judge, and even by the passions of
the parties. I think that the practical intelligence and
political good sense of the Americans are mainly attributable to
the long use which they have made of the jury in civil causes.

I do not know whether the jury is useful to those who are in
litigation; but I am certain it is highly beneficial to those who
decide the litigation: and I look upon it as one of the most
efficacious means for the education of the people, which society
can employ.

What I have hitherto said, applies to all nations; but the remark
I am now about to make, is peculiar to the Americans and to
democratic peoples. I have already observed that in democracies
the members of the legal profession, and the magistrates,
constitute the only aristocratic body which can check the
irregularities of the people. This aristocracy is invested with
no physical power; but it exercises its conservative influence
upon the minds of men: and the most abundant source of its
authority is the institution of the civil jury. In criminal
causes, when society is armed against a single individual, the
jury is apt to look upon the judge as the passive instrument of
social power, and to mistrust his advice. Moreover, criminal
causes are entirely founded upon the evidence of facts which
common sense can readily appreciate; upon this ground the judge
and the jury are equal. Such, however, is not the case in civil
causes; then the judge appears as a disinterested arbiter between
the conflicting passions of the parties. The jurors look up to
him with confidence, and listen to him with respect, for in this
instance their intelligence is completely under the control of
his learning. It is the judge who sums up the various arguments
with which their memory has been wearied out, and who guides them
through the devious course of the proceedings; he points their
attention to the exact question of fact, which they are called
upon to solve, and he puts the answer to the question of law into
their mouths. His influence upon their verdict is almost
unlimited.

If I am called upon to explain why I am but little moved by the
arguments derived from the ignorance of jurors in civil causes, I
reply, that in these proceedings, whenever the question to be
solved is not a mere question of fact, the jury has only the
semblance of a judicial body. The jury sanctions the decisions
of the judge; they, by the authority of society which they
represent, and he, by that of reason and of law.[Footnote:

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 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.[Footnote:

The federal judges decide upon their own authority almost all the
questions most important to the country.

] Upon these occasions they are, accidentally, placed in the
position which the French judges habitually occupy: but they are
still surrounded by the reminiscence of the jury, and their
judgment has almost as much authority as the voice of the
community at large, represented by that institution. Their
influence extends beyond the limits of the courts; in the
recreations of private life, as well as in the turmoil of public
business, abroad and in the legislative assemblies, the American
judge is constantly surrounded by men who are accustomed to
regard his intelligence as superior to their own; and after
having exercised his power in the decision of causes, he
continues to influence the habits of thought, and the character
of the individuals who took a part in his judgment.

[The remark in the text, that "in some cases, and they are
frequently the most important ones, the American judges have the
right of deciding causes alone," and the author's note, that "the
federal judges decide, upon their own authority, almost all the
questions most important to the country," seem to require
explanation in consequence of their connexion with the context in
which the author is speaking of the trial by jury. They seem to
imply that there are some cases which ought to be tried by jury,
that are decided by the judges. It is believed that the learned
author, although a distinguished advocate in France, never
thoroughly comprehended the grand divisions of our complicated
system of law, in civil cases. _First_, is the distinction
between cases in equity and those in which the rules of the
common law govern.--Those in equity are always decided by the
judge or judges, who _may_, however, send questions of fact
to be tried in the common law courts by a jury. But as a general
rule this is entirely in the discretion of the equity judge.
_Second_, in cases at common law, there are questions of
fact and questions of law:--the former are invariably tried by a
jury, the latter, whether presented in the course of a jury
trial, or by pleading, in which the facts are admitted, are
always decided by the judges.

_Third_, cases of admiralty jurisdiction, and proceedings
_in rem_ of an analogous nature, are decided by the judges
without the intervention of a jury. The cases in this last class
fall within the peculiar jurisdiction of the federal courts, and,
with this exception, the federal judges do not decide upon their
own authority any questions, which, if presented in the state
courts, would not also be decided by the judges of those courts.
The supreme court of the United States, from the nature of its
institution as almost wholly an appellant court, is called on to
decide merely questions of law, and in no case can that court
decide a question of fact, unless it arises in suits peculiar to
equity or admiralty jurisdiction. Indeed the author's original
note is more correct than the translation. It is as follows:
"Les juges 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 constitutionality of the
laws of congress and of the several states, the final and
conclusive determination of which is vested in that
tribunal.--_American Editor_.]

The jury, then, which seems to restrict the rights of magistracy,
does in reality consolidate its power; and in no country are the
judges so powerful as there where the people partakes their
privileges. It is more especially by means of the jury in civil
causes that the American magistrates imbue all classes of society
with the spirit of their profession. Thus the jury, which is the
most energetic means of making the people rule, is also the most
efficacious means of teaching it to rule well.

* * * * *

CHAPTER XVII.

PRINCIPAL CAUSES WHICH TEND TO MAINTAIN THE DEMOCRATIC
REPUBLIC IN THE UNITED STATES.

A democratic republic subsists in the United States; and the
principal object of this book has been to account for the fact of
its existence. Several of the causes which contribute to
maintain the institutions of America have been voluntarily passed
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 compass 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.

II. The laws.

III. The manners and customs of the people.

* * * * *

ACCIDENTAL OR PROVIDENTIAL CAUSES WHICH CONTRIBUTE TO
THE MAINTENANCE OF THE DEMOCRATIC REPUBLIC IN THE
UNITED STATES.

The Union has no Neighbors.--No Metropolis.--The Americans have
had the Chances of Birth in their favor.--America an empty
country.--How this circumstance contributes powerfully to the
Maintenance of the democratic Republic in America.--How the
American Wilds are Peopled.--Avidity of the Anglo-Americans in
taking Possession of the Solitudes of the New World.--Influence
of physical Prosperity upon the political Opinions of the
Americans.

A thousand circumstances, independent of the will of man, concur
to facilitate the maintenance of a democratic republic in the
United States. Some of these peculiarities are known, the others
may easily be pointed out; but I shall confine myself to the most
prominent among them.

The Americans have no neighbors, and consequently they have no
great wars, or financial crises, or inroads, or conquests to
dread; they require neither great taxes, nor great armies, nor
great generals; and they have nothing to fear from a scourge
which is more formidable to republics than all these evils
combined, namely, military glory. It is impossible to deny the
inconceivable influence which military glory exercises upon the
spirit of a nation. General Jackson, whom the Americans have
twice elected to be the head of their government, is a man of
violent temper and mediocre talents; no one circumstance in the
whole course of his career ever proved that he is qualified to
govern a free people; and indeed the majority of the enlightened
classes of the Union has always been opposed to him. But he was
raised to the presidency, and has been maintained in that lofty
station, solely by the recollection of a victory which he gained,
twenty years ago, under the walls of New Orleans; a victory which
was, however, a very ordinary achievement, and which could only
be remembered in a country where battles are rare. Now the
people who are thus carried away by the illusions of glory, are
unquestionably the most cold and calculating, the most unmilitary
(if I may use the expression), and the most prosaic of all the
peoples of the earth.

America has no great capital city,[Footnote:

The United States have no metropolis; but they already contain
several very large cities. Philadelphia reckoned 161,000
inhabitants, and New York 202,000, in the year 1830. The lower
orders which inhabit these cities constitute a rabble even more
formidable than the populace of European towns. They consist of
freed blacks in the first place, who are condemned by the laws
and by public opinion, to an hereditary state of misery and
degradation. They also contain a multitude of Europeans who have
been driven to the shores of the New World by their misfortunes
or their misconduct; and these men inoculate the United States
with all our vices, without bringing with them any of those
interests which counteract their baneful influence. As
inhabitants of a country where they have no civil rights, they
are ready to turn all the passions which agitate the community to
their own advantage; thus, within the last few months serious
riots have broken out in Philadelphia and in New York.
Disturbances of this kind are unknown in the rest of the country,
which is nowise alarmed by them, because the population of the
cities has hitherto exercised neither power nor influence over
the rural districts.

Nevertheless, I look upon the size of certain American cities,
and especially on the nature of their population, as a real
danger which threatens the future security of the democratic
republics of the New World: and I venture to predict that they
will perish from this circumstance, unless the government succeed
in creating an armed force, which, while it remains under the
control of the majority of the nation, will be independent of the
town population, and able to repress its excesses.

] whose influence is directly or indirectly felt over the whole
extent of the country, which I hold to be one of the first causes
of the maintenance of republican institutions in the United
States. In cities, men cannot be prevented from concerting
together, and from awakening a mutual excitement which prompts
sudden and passionate resolutions. Cities may be looked upon as
large assemblies, of which all the inhabitants are members; their
populace exercises a prodigious influence upon the magistrates,
and frequently executes its own wishes without their
intervention.