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

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 civil jury, 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 more destructive passion. It teaches men to practise 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, while 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 toward 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 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.[Footnote: See Appendix R.

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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.[Footnote:

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

] 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 f�d�raux tranchent presque toujours seuls les questions qui touchent de plus pr�s 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.

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.