American Institutions and Their Influence by Alexis de Tocqueville (most popular ebook readers .txt) 📕

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.

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, vol. 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 G�n�ral des Actes de la L�gislature de la Louisiana.

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.

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