Democracy In America, vol 1 - Alexis de Tocqueville (snow like ashes series txt) 📗

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 preeminently 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 preeminently 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 cooperates 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