Democracy In America, Volume 1 (of 2)

A >> Alexis de Toqueville >> Democracy In America, Volume 1 (of 2)


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

[Footnote 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

[Footnote 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.)]

[Footnote 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

[Footnote 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.

[Footnote 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.]]

[Footnote 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

[Footnote 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.


[Footnote 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.




Chapter XVII: Principal Causes Maintaining The Democratic Republic--Part I

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 involuntarily 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 parts 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 amongst
them.

The Americans have no neighbors, and consequently they have no great
wars, or financial crises, or inroads, or conquest 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 the head of their Government, is a man
of a 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 which is thus carried away by the
illusions of glory is 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 *a city, 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.

[Footnote a: 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
a 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 succeeds in creating an armed
force, which, whilst it remains under the control of the majority of the
nation, will be independent of the town population, and able to repress
its excesses.

[The population of the city of New York had risen, in 1870, to 942,292,
and that of Philadelphia to 674,022. Brooklyn, which may be said to form
part of New York city, has a population of 396,099, in addition to that
of New York. The frequent disturbances in the great cities of America,
and the excessive corruption of their local governments--over which
there is no effectual control--are amongst the greatest evils and
dangers of the country.]]

To subject the provinces to the metropolis is therefore not only
to place the destiny of the empire in the hands of a portion of the
community, which may be reprobated as unjust, but to place it in the
hands of a populace acting under its own impulses, which must be avoided
as dangerous. The preponderance of capital cities is therefore a serious
blow upon the representative system, and it exposes modern republics to
the same defect as the republics of antiquity, which all perished from
not having been acquainted with that form of government.

It would be easy for me to adduce a great number of secondary causes
which have contributed to establish, and which concur to maintain, the
democratic republic of the United States. But I discern two principal
circumstances amongst these favorable elements, which I hasten to point
out. I have already observed that the origin of the American settlements
may be looked upon as the first and most efficacious cause to which the
present prosperity of the United States may be attributed. The Americans
had the chances of birth in their favor, and their forefathers imported
that equality of conditions into the country whence the democratic
republic has very naturally taken its rise. Nor was this all they did;
for besides this republican condition of society, the early settler
bequeathed to their descendants those customs, manners, and opinions
which contribute most to the success of a republican form of government.
When I reflect upon the consequences of this primary circumstance,
methinks I see the destiny of America embodied in the first Puritan who
landed on those shores, just as the human race was represented by the
first man.