American Institutions and Their Influence by Alexis de Tocqueville et al

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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.[197]

In England and in America the judges exercise an influence upon criminal
trials which the French judges have never possessed. The reason of this
difference may easily be discovered; the English and American
magistrates establish their authority in civil causes, and only transfer
it afterward to tribunals of another kind, where that authority was not
acquired. In some cases (and they are frequently the most important
ones), the American judges have the right of deciding causes alone.[198]
Upon these occasions they are, accidentally, placed in the position
which the French judges habitually occupy: but they are still surrounded
by the reminiscence of the jury, and their judgment has almost as much
authority as the voice of the community at large, represented by that
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 fédéraux
tranchent presque toujours seuls les questions qui touchent de plus près
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.

* * * * *

Notes:

[189] This translation does not accurately convey the meaning of M. de
Tocqueville's expression. He says: "Ils craignent moins la tyrannie que
l'arbitraire, et pourvu que le législateur se charge lui-même d'enlever
aux hommes leur indépendance, ils sont à peu près content."

The more correct rendering would be: 'They fear tyranny less than
arbitrary sway, and provided it is the legislator himself who undertakes
to deprive men of their independence, they are almost content.'--
_Reviser_.

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

[191] The investigation of trial by jury as a judicial 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 "Traité sur les Regles des
Actions civiles," printed in French and English at New Orleans in 1830.

[192] All the English and American jurists are unanimous upon this head.
Mr. Story, judge of the supreme court of the United States, speaks, in
his treatise on the federal 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.).

[193] 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 judicial functionaries--try all
civil causes, appeals from criminal causes, and minor offences, without
the jury.--_Translator's Note_.]

[194] An important remark must however be made. Trial by jury does
unquestionably invest the people with a general control over the actions
of citizens, but it does not furnish means of exercising this control in
all cases, or with an absolute authority. When an absolute monarch has
the right of trying offences by his representatives, the fate of the
prisoner is, as it were, decided beforehand. But even if the people were
predisposed to convict, the composition and the non-responsibility of
the jury would still afford some chances favorable to the protection of
innocence.

[195] In France, the qualification of the jurors is the same as the
electoral qualification, namely, the payment of 200 francs per annum in
direct taxes: they are chosen by lot. In England they are returned by
the sheriff; the qualifications of jurors were raised to 10_l_ per annum
in England, and 6_l_ in Wales, of freehold land or copyhold, by the
statute W. and M., c. 24: leaseholders for a time determinable upon life
or lives, of the clear yearly value of 20_l_ per annum over and above
the rent reserved, are qualified to serve on juries; and jurors in the
courts of Westminster and city of London must be householders, and
possessed of real and personal estates of the value of 100_l_. The
qualifications, however, prescribed in different statutes, vary
according to the object for which the jury is impannelled. See
Blackstone's Commentaries, b. iii., c. 23.--_Translator's Note_.

[196] See Appendix Q.

[197] See Appendix R.

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

CHAPTER XVII.

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,[199] 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.

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 being acquainted with that system.

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 among 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 settlers
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.

The chief circumstance which has favored the establishment and the
maintenance of a democratic republic in the United States, is the
nature of the territory which the Americans inhabit. Their ancestors
gave them the love of equality and of freedom: but God himself gave them
the means of remaining equal and free, by placing them upon a boundless
continent, which is open to their exertions. General prosperity is
favorable to the stability of all governments, but more particularly of
a democratic constitution, which depends upon the disposition of the
majority, and more particularly of that portion of the community which
is most exposed to feel the pressure of want. When the people rules, it
must be rendered happy, or it will overturn the state: and misery is apt
to stimulate it to those excesses to which ambition rouses kings. The
physical causes, independent of the laws, which contribute to promote
general prosperity, are more numerous in America than they have ever
been in any other country in the world, at any other period of history.
In the United States, not only is legislation democratic, but nature
herself favors the cause of the people.

In what part of human tradition can be found anything at all similar to
that which is occurring under our eyes in North America? The celebrated
communities of antiquity were all founded in the midst of hostile
nations, which they were obliged to subjugate before they could flourish
in their place. Even the moderns have found, in some parts of South
America, vast regions inhabited by a people of inferior civilisation,
but which occupied and cultivated the soil. To found their new states,
it was necessary to extirpate or to subdue a numerous population, until
civilisation has been made to blush for their success. But North America
was only inhabited by wandering tribes, who took no thought of the
natural riches of the soil: and that vast country was still, properly
speaking, an empty continent, a desert land awaiting its inhabitants.

Everything is extraordinary in America, the social condition of the
inhabitants, as well as the laws; but the soil upon which these
institutions are founded is more extraordinary than all the rest. When
man was first placed upon the earth by the Creator, that earth was
inexhaustible in its youth; but man was weak and ignorant: and when he
had learned to explore the treasures which it contained, hosts of his
fellow-creatures covered its surface, and he was obliged to earn an
asylum for repose and for freedom by the sword. At that same period
North America was discovered, as if it had been kept in reserve by the
Deity, and had just risen from beneath the waters of the deluge.

That continent still presents, as it did in the primeval time, rivers
which rise from never-failing sources, green and moist solitudes, and
fields which the ploughshare of the husbandman has never turned. In this
state it is offered to man, not in the barbarous and isolated condition
of the early ages, but to a being who is already in possession of the
most potent secrets of the natural world, who is united to his
fellow-men, and instructed by the experience of fifty centuries. At this
very time thirteen millions of civilized Europeans are peaceably
spreading over those fertile plains, with whose resources and whose
extent they are not yet accurately acquainted. Three or four thousand
soldiers drive the wandering races of the aborigines before them; these
are followed by the pioneers, who pierce the woods, scare off the beasts
of prey, explore the courses of the inland streams, and make ready the
triumphal procession of civilisation across the waste.

The favorable influence of the temporal prosperity of America upon the
institutions of that country has been so often described by others, and
adverted to by myself, that I shall not enlarge upon it beyond the
addition of a few facts. An erroneous notion is generally entertained,
that the deserts of America are peopled by European emigrants, who
annually disembark upon the coasts of the New World, while the American
population increases and multiplies upon the soil which its forefathers
tilled. The European settler, however, usually arrives in the United
States without friends, and sometimes without resources; in order to
subsist he is obliged to work for hire, and he rarely proceeds beyond
that belt of industrious population which adjoins the ocean. The desert
cannot be explored without capital or credit, and the body must be
accustomed to the rigors of a new climate before it can be exposed to
the chances of forest life. It is the Americans themselves who daily
quit the spots which gave them birth, to acquire extensive domains in a
remote country. Thus the European leaves his country for the
transatlantic shores; and the American, who is born on that very coast,
plunges into the wilds of central America. This double emigration is
incessant: it begins in the remotest parts of Europe, it crosses the
Atlantic ocean, and it advances over the solitudes of the New World.
Millions of men are marching at once toward the same horizon; their
language, their religion, their manners differ, their object is the
same. The gifts of fortune are promised in the west, and to the west
they bend their course.

No event can be compared with this continuous removal of the human race,
except perhaps those irruptions which preceded the fall of the Roman
Empire. Then, as well as now, generations of men were impelled forward
in the same direction to meet and struggle on the same spot; but the
designs of Providence were not the same; then, every new comer was the
harbinger of destruction and of death; now, every adventurer brings with
him the elements of prosperity and of life. The future still conceals
from us the ulterior consequences of this emigration of the American
toward the west; but we can hardly apprehend its more immediate results.
As a portion of the inhabitants annually leave the states in which they
were born, the population of these states increases very slowly,
although they have long been established: thus in Connecticut, which
only contains 59 inhabitants to the square mile, the population has not
been increased by more than one quarter in forty years, while that of
England has been augmented by one third in the lapse of the same period.
The European emigrant always lands, therefore, in a country which is but
half full, and where hands are in request: he becomes a workman in easy
circumstances; his son goes to seek his fortune in unpeopled regions,
and he becomes a rich landowner. The former amasses the capital which
the latter invests, and the stranger as well as the native is
unacquainted with want.