American Institutions and Their Influence by Alexis de Tocqueville et al

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APPENDIX M.--Page 97.

The most esteemed authors who have written upon the English constitution
agree with each other in establishing the omnipotence of the parliament.

Delolme says: "It is a fundamental principle with the English lawyers,
that parliament can do everything except making a woman a man, or a man
a woman."

Blackstone expresses himself more in detail if not more energetically
than Delolme, in the following terms:--

"The power and jurisdiction of parliament," says Sir Edward Coke (4
Inst. 36), "is so transcendant and absolute, that it cannot be confined,
either for causes or persons, within any bounds. And of this high
court," he adds, "may be truly said, 'Si antiquitatem spectes, est
vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est
capacissima.' It hath sovereign and uncontrollable authority in making,
confirming, enlarging, restraining, abrogating, repealing, reviving and
expounding of laws, concerning matters of all possible denominations;
ecclesiastical or temporal; civil, military, maritime, or criminal; this
being the place where that absolute despotic power which must, in all
governments, reside somewhere, is intrusted by the constitution of these
kingdoms. All mischiefs and grievances, operations and remedies, that
transcend the ordinary course of the laws, are within the reach of this
extraordinary tribunal. It can regulate or new model the succession to
the crown; as was done in the reigns of Henry VIII. and William III. It
can alter the established religion of the land; as was done in a variety
of instances in the reigns of King Henry VIII. and his three children.
It can change and create afresh even the constitution of the kingdom,
and of the parliaments themselves; as was done by the act of union and
the several statutes for triennial and septennial elections. It can, in
short, do everything that is not naturally impossible to be done; and,
therefore, some have not scrupled to call its power, by a figure rather
too bold, the omnipotence of parliament."

APPENDIX N.--Page 107.

There is no question upon which the American constitutions agree more
fully than upon that of political jurisdiction. All the constitutions
which take cognizance of this matter, give to the house of delegates the
exclusive right of impeachment; excepting only the constitution of North
Carolina which grants the same privilege to grand-juries. (Article 23.)

Almost all the constitutions give the exclusive right of pronouncing
sentence to the senate, or to the assembly which occupies its place.

The only punishments which the political tribunals can inflict are
removal and interdiction of public functions for the future. There is no
other constitution but that of Virginia (152), which enables them to
inflict every kind of punishment.

The crimes which are subject to political jurisdiction, are, in the
federal constitution (section 4, art. 1); in that of Indiana (art. 3,
paragraphs 23 and 24); of New York (art. 5); of Delaware (art. 5); high
treason, bribery, and other high crimes or offences.

In the constitution of Massachusetts (chap. 1, section 2); that of North
Carolina (art. 23); of Virginia (p. 252), misconduct and
mal-administration.

In the constitution of New Hampshire (p. 105) corruption, intrigue and
mal-administration.

In Vermont (chap, ii., art 24), mal-administration.

In South Carolina (art. 5); Kentucky (art. 5); Tennessee (art. 4); Ohio
(art. 1, §23, 24); Louisiana (art. 5); Mississippi (art. 5); Alabama
(art. 6); Pennsylvania (art. 4); crimes committed in the non-performance
of official duties.

In the states of Illinois, Georgia, Maine, and Connecticut, no
particular offences are specified.

APPENDIX O.--Page 171.

It is true that the powers of Europe may carry on maritime wars with the
Union; but there is always greater facility and less danger in
supporting a maritime than a continental war. Maritime warfare only
requires one species of effort. A commercial people which consents to
furnish its government with the necessary funds, is sure to possess a
fleet. And it is far easier to induce a nation to part with its money,
almost unconsciously, than to reconcile it to sacrifices of men and
personal efforts. Moreover, defeat by sea rarely compromises the
existence or independence of the people which endures it.

As for continental wars, it is evident that the nations of Europe cannot
be formidable in this way to the American Union. It would be very
difficult to transport and maintain in America more than 25,000
soldiers; an army which maybe considered to represent a nation of
2,000,000 of men. The most populous nation of Europe contending in this
way against the Union, is in the position of a nation of 2,000,000 of
inhabitants at war with one of 12,000,000. Add to this, that America has
all its resources within reach, while the European is at 4,000 miles
distance from his; and that the immensity of the American continent
would of itself present an insurmountable obstacle to its conquest.

APPENDIX P.--Page 186.

The first American journal appeared in April, 1704, and was published at
Boston. See collection of the Historical Society of Massachusetts, vol.
vi., p. 66.

It would be a mistake to suppose that the periodical press has always
been entirely free in the American colonies: an attempt was made to
establish something analogous to a censorship and preliminary security.
Consult the Legislative Documents of Massachusetts of the 14th of
January, 1722.

The committee appointed by the general assembly (the legislative body of
the province), for the purpose of examining into circumstances connected
with a paper entitled "The New England Courier," expresses its opinion
that "the tendency of the said journal is to turn religion into
derision, and bring it into contempt; that it mentions the sacred
writings in a profane and irreligious manner; that it puts malicious
interpretations upon the conduct of the ministers of the gospel; and
that the government of his majesty is insulted, and the peace and
tranquillity of the province disturbed by the said journal. The
committee is consequently of opinion that the printer and publisher,
James Franklin, should be forbidden to print and publish the said
journal or any other work in future, without having previously submitted
it to the secretary of the province; and that the justices of the peace
for the county of Suffolk should be commissioned to require bail of the
said James Franklin for his good conduct during the ensuing year."

The suggestion of the committee was adopted and passed into a law, but
the effect of it was null, for the journal eluded the prohibition by
putting the name of Benjamin Franklin instead of James Franklin at the
bottom of its columns, and this manoeuvre was supported by public
opinion.

APPENDIX Q.--Page 287.

The federal constitution has introduced the jury into the tribunals of
the Union in the same way as the states had introduced it into their own
several courts: but as it has not established any fixed rules for the
choice of jurors, the federal courts select them from the ordinary
jury-list which each state makes for itself. The laws of the states must
therefore be examined for the theory of the formation of juries. See
Story's Commentaries on the Constitution, B. iii., chap. 38, pp.
654-659; Sergeant's Constitutional Law, p. 165. See also the federal
laws, of the years 1789, 1800, and 1802, upon the subject.

For the purpose of thoroughly understanding the American principles with
respect to the formation of juries, I examined the laws of states at a
distance from one another, and the following observations were the
result of my inquiries.

In America all the citizens who exercise the elective franchise have the
right of serving upon a jury. The great state of New York, however, has
made a slight difference between the two privileges, but in a spirit
contrary to that of the laws of France; for in the state of New York
there are fewer persons eligible as jurymen than there are electors. It
may be said in general that the right of forming part of a jury, like
that of electing representatives, is open to all the citizens; the
exercise of this right, however, is not put indiscriminately into any
hands.

Every year a body of municipal or county magistrates--called _selectmen_
in New England, _supervisors_ in New York, _trustees_ in Ohio, and
_sheriffs of the parish_ in Louisiana--choose for each county a certain
number of citizens who have the right of serving as jurymen, and who we
supposed to be capable of exercising their functions. These magistrates,
being themselves elective, excite no distrust: their powers, like those
of most republican magistrates, are very extensive and very arbitrary,
and they frequently make use of them to remove unworthy or incompetent
jurymen.

The names of the jurymen thus chosen are transmitted to the county
court; and the jury who have to decide any affair are drawn by lot from
the whole list of names.

The Americans have contrived in every way to make the common people
eligible to the jury, and to render the service as little onerous as
possible. The sessions are held in the chief town of every county; and
the jury are indemnified for their attendance either by the state or the
parties concerned. They receive in general a dollar per day, beside
their travelling expenses. In America the being placed upon the jury is
looked upon as a burden, but it is a burden which is very supportable.
See Brevard's Digest of the Public Statute Law of South Carolina, vol.
i, pp. 446 and 454, vol. ii., pp. 218 and 333; The General Laws of
Massachusetts, revised and published by Authority of the Legislature, v.
ii., pp. 187 and 331; The Revised Statutes of the State of New York,
vol. ii., pp. 411, 643, 717, 720; The Statute Law of the State of
Tennessee, vol. i., p. 209; Acts of the State of Ohio, pp. 95 and 210;
and Digeste Genéral des Actes de la Législature de la Louisiana.

APPENDIX R.--Page 290.

If we attentively examine the constitution of the jury as introduced
into civil proceedings in England, we shall readily perceive that the
jurors are under the immediate control of the judge. It is true that the
verdict of the jury, in civil as well as in criminal cases, comprises
the question of fact and the question of right in the same reply; thus,
a house is claimed by Peter as having been purchased by him: this is the
fact to be decided. The defendant puts in a plea of incompetency on the
part of the vendor: this is the legal question to be resolved.

But the jury do not enjoy the same character of infallibility in civil
cases, according to the practice of the English courts, as they do in
criminal cases. The judge may refuse to receive the verdict; and even
after the first trial has taken place, a second or new trial may be
awarded by the court. See Blackstone's Commentaries, book iii., ch. 24.