CAUSES WHICH MITIGATE THE TYRANNY OF THE MAJORITY IN THE UNITED STATES
ABSENCE OF CENTRALIZED ADMINISTRATION. The national majority does not pretend to do everything--Is obliged to employ the town and county magistrates to execute its sovereign will.
I HAVE already pointed out the distinction between a centralized government and a centralized administration. The former exists in America, but the latter is nearly unknown there. If the directing power of the American communities had both these instruments of government at is disposal and united the habit of executing its commands to the right of commanding; if, after having established the general principles of government, it descended to the details of their application; and if, having regulated the great interests of the country, it could descend to the circle of individual interests, freedom would soon be banished from the New World.
But in the United States the majority, which so frequently displays the tastes and the propensities of a despot, is still destitute of the most perfect instruments of tyranny.
In the American republics the central government has never as yet busied itself except with a small number of objects, sufficiently prominent to attract its attention. The secondary affairs of society have never been regulated by its authority; and nothing has hitherto betrayed its desire of even interfering in them. The majority has become more and more absolute, but has not increased the prerogatives of the central government; those great prerogatives have been confined to a certain sphere; and although the despotism of the majority may be galling upon one point, it cannot be said to extend to all. However the predominant party in the nation may be carried away by its passions, however ardent it may be in the pursuit of its projects, it cannot oblige all the citizens to comply with its desires in the same manner and at the same time throughout the country. When the central government which represents that majority has issued a decree, it must entrust the execution of its will to agents over whom it frequently has no control and whom it cannot perpetually direct. The townships, municipal bodies, and counties form so many concealed breakwaters, which check or part the tide of popular determination. If an oppressive law were passed, liberty would still be protected by the mode of executing that law; the majority cannot descend to the details and what may be called the puerilities of administrative tyranny. It does not even imagine that it can do so, for it has not a full consciousness of its authority. It knows only the extent of its natural powers, but is unacquainted with the art of increasing them.
This point deserves attention; for if a democratic republic, similar to that of the United States, were ever founded in a country where the power of one man had previously established a centralized administration and had sunk it deep into the habits and the laws of the people, I do not hesitate to assert that in such a republic a more insufferable despotism would prevail than in any of the absolute monarchies of Europe; or, indeed, than any that could be found on this side of Asia.
Utility of ascertaining what are the natural instincts of the legal profession--These men are to act a prominent part in future society--How the peculiar pursuits of lawyers give an aristocratic turn to their ideas--Accidental causes that may check this tendency--Ease with which the aristocracy coalesces with legal men--Use of lawyers to a despot--The profession of the law constitutes the only aristocratic element with which the natural elements of democracy will combine--Peculiar causes which tend to give an aristocratic turn of mind to English and American lawyers--The aristocracy of America is on the bench and at the bar--Influence of lawyers upon American society--Their peculiar magisterial spirit affects the legislature, the administration, and even the people.
IN visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence; that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy. This effect seems to me to result from a general cause, which it is useful to investigate, as it may be reproduced elsewhere.
The members of the legal profession have taken a part in all the movements of political society in Europe for the last five hundred years. At one time they have been the instruments of the political authorities, and at another they have succeeded in converting the political authorities into their instruments. In the Middle Ages they afforded a powerful support to the crown; and since that period they have exerted themselves effectively to limit the royal prerogative. In England they have contracted a close alliance with the aristocracy; in France they have shown themselves its most dangerous enemies. Under all these circumstances have the members of the legal profession been swayed by sudden and fleeting impulses, or have they been more or less impelled by instincts which are natural to them and which will always recur in history? I am incited to this investigation, for perhaps this particular class of men will play a prominent part in the political society that is soon to be created.
Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.
The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. Add to this that they naturally constitute a body; not by any previous understanding, or by an agreement that directs them to a common end; but the analogy of their studies and the uniformity of their methods connect their minds as a common interest might unite their endeavors.
Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other} men, are governed by their private interests, and especially by the interests of the moment.
In a state of society in which the members of the legal profession cannot hold that rank in the political world which they enjoy in private life, we may rest assured that they will be the foremost agents of revolution. But it must then be asked whether the cause that then induces them to innovate and destroy results from a permanent disposition or from an accident. It is true that lawyers mainly contributed to the overthrow of the French monarchy in 1789; but it remains to be seen whether they acted thus because they had studied the laws or because they were prohibited from making them.
Five hundred years ago the English nobles headed the people and spoke in their name; at the present time the aristocracy sup- ports the throne and defends the royal prerogative. But notwith- standing this, aristocracy has its peculiar instincts and propensities. We must be careful not to confound isolated members of a body with the body itself. In all free governments, of whatever form they may be, members of the legal profession will be found in the front ranks of all parties. The same remark is also applicable to the aristocracy; almost all the democratic movements that have agitated the world have been directed by nobles. A privileged body can never satisfy the ambition of all its members: it has always more talents and more passions than it can find places to employ, so that a considerable number of individuals are usually to be met with who are inclined to attack those very privileges which they cannot soon enough turn to their own account.
I do not, then, assert that all the members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them are usually so. In a community in which lawyers are allowed to occupy without opposition that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic. When an aristocracy excludes the leaders of that profession from its ranks, it excites enemies who are the more formidable as they are independent of the nobility by their labors and feel themselves to be their equals in intelligence though inferior in opulence and power. But whenever an aristocracy consents to impart some of its privileges to these same individuals, the two classes coalesce very readily and assume, as it were, family interests.
I am in like manner inclined to believe that a monarch will always be able to convert legal practitioners into the most serviceable instruments of his authority. There is a far greater affinity between this class of persons and the executive power than there is between them and the people, though they have often aided to overturn the former; just as there is a greater natural affinity between the nobles and the monarch than between the nobles and the people, although the higher orders of society have often, in concert with the lower classes, resisted the prerogative of the crown.
Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, also, that if they prize freedom much, they generally value legality still more: they are less afraid of tyranny than of arbitrary power; and, provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.
I am therefore convinced that the prince who, in presence of an encroaching democracy, should endeavor to impair the judicial authority in his dominions, and to diminish the political influence of lawyers, would commit a great mistake: he would let slip the substance of authority to grasp the shadow. He would act more wisely in introducing lawyers into the government; and if he entrusted despotism to them under the form of violence, perhaps he would find it again in their hands under the external features of justice and law.
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it. The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.
The profession of the law is the only aristocratic element that can be amalgamated without violence with the natural elements of democracy and be advantageously and permanently combined with them. I am not ignorant of the defects inherent in the character of this body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could hope to exist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people.
This aristocratic character, which I hold to be common to the legal profession, is much more distinctly marked in the United States and in England than in any other country. This proceeds not only from the legal studies of the English and American lawyers, but from the nature of the law and the position which these interpreters of it occupy in the two countries. The English and the Americans have retained the law of precedents; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their predecessors. In the mind of an English or American lawyer a taste and a reverence for what is old is almost always united with a love of regular and lawful proceedings.
This predisposition has another effect upon the character of the legal profession and upon the general course of society. The English and American lawyers investigate what has been done; the French advocate inquires what should have been done; the former produce precedents, the latter reasons. A French observer is surprised to hear how often an English or an American lawyer quotes the opinions of others and how little he alludes to his own, while the reverse occurs in France. There the most trifling litigation is never conducted without the introduction of an entire system of ideas peculiar to the counsel employed; and the fundamental principles of law are discussed in order to obtain a rod of land by the decision of the court. This abnegation of his own opinion and this implicit deference to the opinion of his forefathers, which are common to the English and American lawyer, this servitude of thought which he is obliged to profess, necessarily give him more timid habits and more conservative inclinations in England and America than in France.
The French codes are often difficult to comprehend, but they can be read by everyone; nothing, on the other hand, can be more obscure and strange to the uninitiated than a legislation founded upon precedents. The absolute need of legal aid that is felt in England and the United States, and the high opinion that is entertained of the ability of the legal profession, tend to separate it more and more from the people and to erect it into a distinct class. The French lawyer is simply a man extensively acquainted with the statutes of his country; but the English or American lawyer resembles the hierophants of Egypt, for like them he is the sole interpreter of an occult science.
The position that lawyers occupy in England and America exercises no less influence upon their habits and opinions. The English aristocracy, which has taken care to attract to its sphere whatever is at all analogous to itself, has conferred a high degree of importance and authority upon the members of the legal profession. In English society, lawyers do not occupy the first rank, but they are contented with the station assigned to them: they constitute, as it were, the younger branch of the English aristocracy; and they are attached to their elder brothers, although they do not enjoy all their privileges. The English lawyers consequently mingle the aristocratic tastes and ideas of the circles in which they move with the aristocratic interests of their profession.
And, indeed, the lawyer-like character that I am endeavoring to depict is most distinctly to be met with in England: there laws are esteemed not so much because they are good as because they are old; and if it is necessary to modify them in any respect, to adapt them to the changes that time operates in society, recourse is had to the most inconceivable subtleties in order to uphold the traditionary fabric and to maintain that nothing has been done which does not square with the intentions and complete the labors of former generations. The very individuals who conduct these changes disclaim any desire for innovation and had rather resort to absurd expedients than plead guilty to so great a crime. This spirit appertains more especially to the English lawyers; they appear indifferent to the real meaning of what they treat, and they direct all their attention to the letter, seeming inclined to abandon reason and humanity rather than to swerve one tittle from the law. English legislation may be compared to the stock of an old tree upon which lawyers have engrafted the most dissimilar shoots in the hope that, although their fruits may differ, their foliage at least will be confused with the venerable trunk that supports them all.
In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.
The more we reflect upon all that occurs in the United States the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.
The courts of justice are the visible organs by which the legal profession is enabled to control the democracy. The judge is a lawyer who, independently of the taste for regularity and order that he has contracted in the study of law, derives an additional love of stability from the inalienability of his own functions. His legal attainments have already raised him to a distinguished rank among his fellows; his political power completes the distinction of his station and gives him the instincts of the privileged classes.
Armed with the power of declaring the laws to be unconstitutional,1 the American magistrate perpetually interferes in political affairs. He cannot force the people to make laws, but at least he can oblige them not to disobey their own enactments and not to be inconsistent with themselves. I am aware that a secret tendency to diminish the judicial power exists in the United States; and by most of the constitutions of the several states the government can, upon the demand of the two houses of the legislature, remove judges from their station. Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.
It must not be supposed, moreover, that the legal spirit is con fined in the United States to the courts of justice; it extends far beyond them. As the lawyers form the only enlightened class whom the people do not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative assemblies and are at the head of the administration; they consequently exercise a powerful influence upon the formation of the law and upon its execution. The lawyers are obliged, however, to yield to the current of public opinion, which is too strong for them to resist; but it is easy to find indications of what they would do if they were free to act. The Americans, who have made so many innovations in their political laws, have introduced very sparing alterations in their civil laws, and that with great difficulty, although many of these laws are repugnant to their social condition. The reason for this is that in matters of civil law the majority are obliged to defer to the authority of the legal profession, and the American lawyers are disinclined to innovate when they are left to their own choice.
It is curious for a Frenchman to hear the complaints that are made in the United States against the stationary spirit of legal men and their prejudices in favor of existing institutions.
The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.
Trial by jury, which is one of the forms of the sovereignty of the people, ought to be compared with the other which establish that sovereignty--Composition of the in the United States--Effect of trial by jury upon the national character--lt educates the people--How it tends to establish the influence of the magistrates and to extend the legal spirit among the people.
SINCE my subject has led me to speak of the administration of justice in the United States, I will not pass over it without referring 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 was my purpose to inquire how far trial by jury, especially in civil cases, ensures a good administration of justice I admit that its utility might be contested. As the jury was first established when society was in its infancy and when courts of justice merely decided simple questions of fact, 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 an enlightened and intellectual character.2
My present purpose is to consider the jury as a political institution; any other course would divert me from my subject. Of trial by jury considered as a judicial institution I shall here say but little. When the English adopted trial by jury, they were a semi-barbarous people; they have since become one of the most enlightened nations of the earth, and their attachment to this institution seems to have increased with their increasing cultivation. They have emigrated and colonized every part 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 everywhere they have boasted of the privilege of trial by jury.3 They have established it, or hastened to re-establish it, in all their settlements. A judicial institution which thus obtains the suffrages of a great people for so long a series of ages, which is zealously reproduced at every stage of civilization, in all the climates of the earth, and under every form of human government, cannot be contrary to the spirit of justice.4
But to leave this part of the subject. It would be a very narrow view to look upon the jury as a mere judicial institution; for however great its influence may be upon the decisions of the courts, it is still greater on the destinies of society 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 by lot and invested with a temporary right of judging. Trial by jury, as applied to the repression of crime, appears to me an eminently republican element in the government, for the following reasons.
The institution of the jury may be aristocratic or democratic, according to the class from which the jurors are taken; but it always preserves its republican character, in that it places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government. Force is never more than a transient element of success, and after force comes the notion of right. A government able to reach its enemies only upon a field of battle would soon be destroyed. The true sanction of political laws is to be found in penal legislation; and if that sanction is wanting, the law will sooner or later lose its cogency. He who punishes the criminal 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 judges. The institution ------ institution, many arguments might be brought forward, and among others the following:
In proportion as you introduce the jury into the business of the courts you are enabled to diminish the number of judges, which is a great advantage. When judges are very numerous, death is perpetually thinning the ranks of the judicial functionaries and leaving places vacant for new-comers. The ambition of the magistrates is therefore continually excited, and they are naturally made dependent upon the majority or the person who nominates to vacant offices; the officers of the courts then advance as do 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 should be protected if he be tempted to sacrifice it of his own accord? When judges are very numerous many of them must necessarily be incapable; for a great magistrate is a man of no common powers: I do not know if a half-enlightened tribunal is not the worst of all combinations for attaining those ends which underlie the establishment of courts of justice. For my own part, I had rather submit the decision of a case to ignorant jurors directed by a skillful judge than to judges a majority of whom are imperfectly acquainted with jurisprudence and with the laws. of the jury consequently invests the people, or that class of citizens, with the direction of society.5
In England the jury is selected from the aristocratic portion of the nation; the aristocracy makes the laws, applies the laws, and punishes infractions of the laws; 6 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 both an eligible and a legally qualified voter.7 The jury system 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. They 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 Tudor monarchs sent to prison jurors who refused to convict, and Napoleon caused them to be selected by his agents.
However clear most of these truths may seem to be, they do not command universal assent; and in France, at least, trial by jury is still but 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 the least important part of the subject. The jury is pre-eminently a political institution; it should 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 legislature is that part of the nation which makes the laws; and in order that society may be governed in a fixed and uniform manner, 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; all that remains is merely accessory.
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 customs of a nation: customs are the only durable and resisting power in a people. When the jury is reserved for criminal offenses, the people witness only its occasional action in particular cases; they become accustomed to do without it in the ordinary course of life, and it is considered as an instrument, but not as the only instrument, of obtaining justice.8
When, on the contrary, the jury acts also on civil causes, its application is constantly visible; it affects all the interests of the community; everyone co-operates 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 man. If it had been as easy to remove the jury from the customs as from the laws of England, it would have perished under the Tudors, and the civil jury did in reality at that period save the liberties of England. 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 becomes 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 while the number of persons who have reason to apprehend a criminal prosecution is small, everyone is liable to have a lawsuit. The jury teaches every man not to recoil before the responsibility of his own actions and impresses him with that manly confidence without which no political virtue can 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 its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society.
The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even 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 that they have made of the jury in civil causes.
I do not know whether the jury is useful to those who have lawsuits, but I am certain it is highly beneficial to those who judge them; 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 said applies to all nations, but the remark I am about to make is peculiar to the Americans and to democratic com- munities. I have already observed that in democracies the members of the legal profession and the judicial magistrates constitute the only aristocratic body which can moderate the movements of the people. This aristocracy is invested with no physical power; 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 contending against a single man, the jury is apt to look upon the judge as the passive instrument of social power and to mistrust his advice. Moreover, criminal causes turn entirely upon simple facts, which common sense can readily appreciate; upon this ground the judge and the jury are equal. Such is not the case, however, 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, his intellect entirely governs theirs. It is the judge who sums up the various arguments which have wearied their memory, and who guides them through the devious course of the proceedings; he points their attention to the exact question of fact that they are called upon to decide and tells them how to answer the question of law. His influence over them 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 only sanctions the decision of the judge; they sanction this decision by the authority of society which they represent, and he by that of reason and of law.9
In England and in America the judges exercise an influence upon criminal trials that the French judges have never possessed. The reason for this difference may easily be discovered; the English and American magistrates have established their authority in civil causes and only transfer it afterwards to tribunals of another kind, where it was not first acquired. In some cases, and they are frequently the most important ones, the American judges have the right of deciding causes alone.10 On these occasions they are accidentally placed in the position that the French judges habitually occupy, but their moral power is much greater; they are still surrounded by the recollection of the jury, and their judgment has almost as much authority as the voice of the community represented by that institution. Their influence extends far beyond the limits of the courts; in the recreations of private life, as well as in the turmoil of public business, in public, 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 even the characters, of those who acted with him in his official capacity.
The jury, then, which seems to restrict the rights of the judiciary, does in reality consolidate its power; and in no country are the judges so powerful as where the people share their privileges.
1 See Chapter VI, on "The Judicial Power in the United States." 2 The consideration of trial by jury as a judicial institution, and the appraisal of its effects in the United States, together with an inquiry into the manner in which the Americans have used it, would suffice to form a book, and a book very interesting to France. One might trace therein, for example, what parts of the American system pertaining to the jury might be introduced among us, and by what steps. The state of Louisiana would throw the most light upon the subject, as it has a mingled population of French and English. The two systems of law, as well as the two nations, are there found side by side and are gradually combining with each other. The most useful books to consult would be the Digeste des Lois de la LouisĦane; and the Trait sur les Rgles des Actions civiles, printed in French and English at New Orleans, in 1830, by Buisson. This book has a special advantage, it presents, for Frenchmen, an exact and an authentic glossary of English legal terms. The language of law is everywhere different from that of the people, a fact particularly true of the English. 3 All the English and American jurists are unanimous on this point. Mr. Story, Justice of the Supreme Court of the United States, speaks, in his Commentaries on the Constitution, of the advantages of trial by jury in civil cases: "The inestimable privilege of a trial by jury in civil cases," says he, "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. 38. ) 4 If it were our object to establish the utility of the jury as a judicial 5 An important remark must, however, be made. Trial by jury does unquestionably invest the people with a general control over the actions of the 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 offenses 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 6 See Appendix Q. 7 See Appendix R. 8 This is unequivocally true since the jury is employed only in certain criminal cases. 9 See Appendix S. 10 The Federal judges decide almost always only such questions as touch directly the government of the country. It is especially by means of the jury in civil causes that the American magistrates imbue even the lower 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 how to rule well.