American Institutions and Their Influence by Alexis de Tocqueville et al

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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,[190]
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.[191]

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.[192] 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.[193]

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.[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 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.[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 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.