American Institutions and Their Influence - Alexis de Tocqueville (i am reading a book .TXT) 📗

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.[Footnote: 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 “Trait� sur les Regles des Actions civiles,” printed in French and English at New Orleans in 1830.

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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.[Footnote:

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.)

] 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.[Footnote: 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 judical functionaries—try all civil causes, appeals from criminal causes, and minor offences, without the jury.—_Translator’s Note._]

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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.[Footnote: 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.

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In England the jury is returned from the aristocratic portion of the nation,[Footnote:

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_.]

] 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.[Footnote:

See Appendix Q.

] 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 � 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