ON THAT WHICH TEMPERS THE TYRANNY OF THE MAJORITY IN THE UNITED STATES
ABSENCE OF ADMINISTRATIVE CENTRALIZATION
The majority of the nation does not think of itself as governing without assistance. — It is obliged to rely on town and county officials to carry out its sovereign wishes.
I distinguished earlier between two types of centralization; one I called governmental, and the other administrative.
Only the first exists in America; the second is virtually unknown.
If the ruling power in America possessed both these means of government and enjoyed not only the right to issue orders of all kinds but also the capability and habit of carrying out those orders; if it not only laid down general principles of government but also concerned itself with the details of applying those principles; and if it dealt not only with the country’s major interests but also descended to the limit of individual interests, then liberty would soon be banished from the New World.
But if the majority in the United States often has the tastes and instincts of a despot, the most advanced instruments of tyranny are still lacking.
In none of the American republics has the central government ever been concerned with more than a small number of issues — those important enough to attract its attention. It has never sought to regulate social matters of lesser moment, nor is there any indication that it even aspired to do so. The majority, as it became more and more absolute, never expanded the prerogatives of the central power. It merely made that power omnipotent in its own sphere. Thus despotism may be very oppressive in one respect, but it cannot be oppressive in all.
The majority of the nation — no matter how caught up by its passions, no matter how ardently committed to its goals — cannot ensure that all citizens everywhere will comply with its desires in the same way at the same time. Once the central government representing the majority has issued its sovereign commands, it must rely for the execution of those commands on agents who in many cases do not report to it, and whose actions it cannot constantly oversee. Municipal bodies and county administrations are thus like hidden reefs that turn back or divide the tide of popular will. Were the law oppressive, liberty would still find safe haven in the manner of its execution. The majority cannot concern itself with the details — I daresay the childish whims — of administrative tyranny. It cannot even imagine that it might, for it lacks full consciousness of its power. It is aware only of its natural strengths and has no idea of the extent to which the art of administration can further them.
This point is worth a moment’s reflection. I say this without fear of contradiction: if a democratic republic like the one in the United States were ever to be established in a country where autocratic rule had already introduced administrative centralization, and where both custom and law had absorbed its influence, that country would come to know a despotism more intolerable than any that has ever existed in Europe’s absolute monarchies. To discover anything comparable one would have to look to Asia.
ON THE LEGAL SPIRIT IN THE UNITED STATES, AND HOW IT SERVES AS A COUNTERWEIGHT TO DEMOCRACY
Usefulness of investigating the natural instincts of the legal spirit. — Lawyers called to play an important role in a society struggling to be born. — How the nature of legal work gives an aristocratic turn to legal thinking. — Incidental factors that may check this tendency. — Ease with which the aristocracy makes common cause with lawyers. — How despots can make advantageous use of lawyers. — Lawyers are the only aristocratic element whose nature is such as to combine readily with the natural elements of democracy. — Specific factors that tend to give an aristocratic turn to the English and American legal mind. — The American aristocracy is at the bar and on the bench. — Influence of lawyers on American society. — How the legal spirit affects the legislature and the administration and in the end gives the people themselves some of the instincts of the magistrate.
Upon visiting Americans and studying their laws, one finds that the authority they have bestowed on lawyers, and the influence they have allowed lawyers to exert in government, today constitute the most powerful barriers against the excesses of democracy. This effect seems to me to have a general cause, about which it is useful to inquire, because it may recur elsewhere.
Lawyers have had a hand in all the political changes that have taken place in Europe over the past five hundred years. Sometimes they served as instruments of political power, and sometimes political power became their instrument. In the Middle Ages, lawyers worked wonders in extending the dominion of kings. Since then, they have worked prodigiously to limit royal power. In England they threw in their lot with the aristocracy; in France they became its most dangerous enemies. Do lawyers thus yield to sudden and momentary impulses, or do they respond to circumstances in ways more or less dictated by their natural instincts, which continually reassert themselves? I should like to clarify this point, for it may be that lawyers are called to play a leading role in the political society that is even now struggling to be born.
Men who make a special study of the law take from their work certain habits of order, a taste for forms, and a sort of instinctive love of regular sequence in ideas that naturally foster in them a strong opposition to the revolutionary spirit and the unthinking passions of democracy.
The special knowledge that lawyers acquire through the study of law assures them of a distinctive rank in society. They constitute a kind of privileged class among the intelligent. The practice of their profession brings daily reminders of their superiority. They are masters of a body of knowledge that, while necessary, is not widely understood. They serve as arbiters among citizens, and the habit of guiding the blind passions of litigants toward a desired goal inspires in them a certain contempt for the judgment of the multitude. What is more, they naturally constitute a corporation — not in the sense that they agree with one another and act in concert, but in the sense that common studies and like methods link their intellects, just as common interest may unify their wills.
One therefore finds, hidden in the depths of lawyers’ souls, some of the tastes and habits of aristocracy. The legal profession shares aristocracy’s instinctive preference for order and natural love of formalities, as well as its deep distaste for the actions of the multitude and secret contempt for popular government.
I do not mean to say that these natural penchants of lawyers are strong enough to be irresistible. What rules lawyers as it rules other men is private interest, and above all the interest of the moment.
Imagine a society in which men of law cannot assume a rank in the world of politics analogous to the one they occupy in private life. One can be certain that in a society organized in this way, lawyers will be very active agents of revolution. But one must inquire whether the impetus to destroy or change is the result of a permanent disposition of the legal mind or an accident. It is true that lawyers played a singularly important role in overthrowing the French monarchy in 1789. But it remains to be seen whether they acted as they did because they had studied law or because they had no share in making it.
Five hundred years ago, the English aristocracy claimed to lead the people and speak in their name; today it supports the throne and defends royal authority. Yet the aristocracy has instincts and penchants of its own.
One must be careful, too, not to take isolated members of a body for the body itself.
In any free government, no matter what its form, lawyers will always be found in the front ranks of all parties. The same remark also applies to the aristocracy. Nearly every democratic movement that has agitated the world has been directed by nobles.
No elite corps can satisfy all the ambitions that exist within it. Talent and passion are always in more abundant supply than opportunities for their employment, and many who cannot achieve greatness as quickly as they would like by availing themselves of the privileges of the corps will seek to do so by attacking those privileges instead.
Hence I do not claim that there will ever be a time when all lawyers will be friends of order and enemies of change, nor do I claim that most lawyers always are.
I do say that in a society in which no one contests the right of lawyers to occupy the high position that is naturally their due, their spirit will be eminently conservative and antidemocratic.
When aristocracy closes its ranks to lawyers, it makes enemies of them — enemies all the more dangerous in that, though inferior to the aristocracy in wealth and power, they are independent of it by virtue of their work and feel equal to it by virtue of their enlightenment.
But whenever nobles have allowed lawyers to share some of their privileges, the two classes have found it quite easy to make common cause and have discovered that they belong, as it were, to the same family.
I am also inclined to believe that kings will always find it easy to turn lawyers into most useful instruments of royal authority.
There is infinitely more natural affinity between men of law and executive power than between men of law and the people, though lawyers often have to topple executive power. By the same token, there is more natural affinity between nobles and the king than between nobles and the people, although the upper classes of society have often joined with the other classes to combat royal power.
What lawyers love above all is a life of order, and the greatest guarantee of order is authority. One must not forget, moreover, that while lawyers may prize liberty, they generally place a far higher value on legality. They are less afraid of tyranny than of arbitrariness, and so long as the legislator himself sees to it that men are deprived of their independence, the lawyer is more or less content.
I therefore believe that a prince who seeks to ward off the threat of democracy by tearing down judicial power and diminishing the political influence of lawyers in his state is making a great mistake. He lets go of the substance of authority to seize the shadow.
I have no doubt that he would do better to bring lawyers into government. Were he to entrust them with despotism in its violent form, he might well reclaim it graced with the features of justice and law.
Democratic government encourages lawyers to assume political power. When the rich man, the noble, and the prince are excluded from government, lawyers step into the breach almost as if it were their right, for they are the only enlightened, able men not counted among the people whom the people may choose.
If lawyers are naturally drawn by their tastes to the aristocracy and the prince, they are naturally drawn to the people by their interests.
Thus lawyers favor democratic government without sharing its inclinations or imitating its weaknesses — two reasons why they enjoy power through it and over it.
The people in a democracy do not distrust the legal profession, because they know that it is in the interest of lawyers to serve their cause. They can listen to legal counsel without becoming angry, because they do not suspect lawyers of ulterior motives. In fact, lawyers do not seek to overthrow the government that democracy has chosen for itself, but they do endeavor constantly to divert it from its intrinsic course by means that are alien to its nature. The lawyer belongs to the people by interest and birth and to the aristocracy by habit and taste. He is in a sense the natural liaison between the two, the link that joins one to the other.
The legal profession is the only aristocratic element that can mix readily with the natural elements of democracy to form useful and durable compounds. I am not unaware of the defects inherent in the legal spirit. Unless it is added to the democratic spirit, however, I doubt that democracy can govern society for long, and I do not believe that any republic can survive today unless the influence of lawyers on its affairs increases as the power of the people grows.
The aristocratic character that I detect in the legal spirit is far more pronounced in the United States and England than in other countries. This has to do not only with the way in which English and American lawyers study the law but also with the nature of legislation itself and the position of the interpreter of law in the two countries.
The English and Americans have retained the law of precedents. In other words, they continue to base their legal opinions and judicial decisions on the opinions and decisions of their forebears.
Therefore, an English or American lawyer almost always combines a taste and respect for what is old with a liking for what is regular and legal.
This influences the legal spirit in yet another way, and consequently the course of society as well.
The English or American lawyer investigates what was done, the French lawyer what was most likely intended. One wants decisions; the other, reasons.
When one listens to an English or American lawyer, it is surprising to note how often he cites the opinions of others and how little he speaks of his own, whereas the contrary is true in France.
No case is too small for a French lawyer to plead without introducing a whole system of ideas of his own, and he will delve deep into constitutional principles just so that it may please the court to move the boundary of a contested inheritance by a few yards in a certain direction.
The willingness of the English or American lawyer to forswear his own interpretation in favor of that of his forebears — indeed, the need to subject his thinking to a kind of servitude — must make the legal mind more timid in its habits and more static in its inclinations in England and America than in France.
Our written laws are often difficult to understand, but anyone can read them. By contrast, there is nothing more obscure to the uninitiated, nothing less within their grasp, than a body of law based on precedent. The need for lawyers in England and the United States, together with the exalted idea that attaches to their enlightened way of thinking, increasingly sets them apart from the people and in the end places them in a class all their own. The French lawyer is merely a man of learning, but the English or American man of law in some ways resembles an Egyptian priest. Like the priest, he is the sole interpreter of an occult body of knowledge.
The position that men of law occupy in England and America has no less great an influence on their habits and opinions. The English aristocracy, always keen to attract to its side elements of society bearing some natural resemblance to itself, has shown lawyers great consideration and offered them a substantial share of power. Within English society, lawyers do not occupy the first rank, but they are content with the rank they hold. They form something like a cadet branch of the English aristocracy and love and respect the senior branch even if they do not share all its privileges. English lawyers therefore combine the aristocratic interests of their profession with the aristocratic ideas and tastes of the circles in which they move.
Thus it is in England especially that one sees in most vivid relief the type of lawyer I am attempting to portray: the English lawyer esteems the law not so much because it is good as because it is old. And if he finds himself obliged to amend some provision of the law in order to adapt it to the changes that time wreaks on society, he will resort to the most incredible subtleties in order to persuade himself that in adding something to the work of his forebears, he is merely developing their ideas and completing their labors. There is no hope of wringing from him an admission of innovation: he would rather court absurdity than confess to so great a crime. This type of legal mind, which seems indifferent to the spirit and attentive only to the letter of the law and which would sooner relinquish reason and humanity than venture beyond its limits, was born in England.
English law is like an ancient tree onto which lawyers have repeatedly grafted the most exotic shoots, hoping that, though their fruits might differ, at least their foliage would blend with that of the venerable trunk.
In America, there are no noblemen or men of letters, and the people distrust the wealthy. Lawyers therefore constitute the superior political class and the most intellectual segment of society. Thus they can only lose by innovating: this adds a conservative interest to their natural preference for order.
If I were asked where I see the aristocracy in America, I would answer without hesitation that I do not find it among the rich, who share no common bond. The American aristocracy congregates in the courtroom: at the bar or on the bench.
The more one reflects on what goes on in the United States, the more convinced one becomes that the legal profession is the most powerful, if not the only, counterweight to democracy.
In the United States it is easy to see the degree to which not only the qualities but also even the flaws of the legal mind suit it to the task of neutralizing the vices inherent in popular government.
When the American people allow themselves to become intoxicated by passion or to be carried away by their own ideas, lawyers apply an almost imperceptible brake that slows them down and brings them to a halt. The democratic instincts of the people are secretly opposed by the aristocratic inclinations of the lawyers; the people’s love of novelty, by the lawyers’ superstitious respect for what is old; the immensity of the people’s designs, by the narrowness of the lawyers’ views; the people’s contempt for rules, by the lawyers’ love of formalities; and the people’s ardor, by the lawyers’ habitually dilatory ways.
The courts are the most visible of the organs that lawyers use to influence democracy.
The judge is a lawyer who, quite apart from the predilection for order and rules that he takes from his legal studies, finds further reason to love stability in the fact that he cannot be removed from office. His legal knowledge had already assured him of a high place among his fellow men. His political power completes the task of assigning him a rank apart and gives him the instincts of the privileged classes.
Armed with the right to declare laws unconstitutional, the American magistrate continually intervenes in political affairs.1 He cannot compel the people to make laws, but he can at least insist that they not break faith with the laws they have made and remain consistent with themselves.
I am not unaware of the hidden tendency in the United States that leads the people to curtail the power of the judiciary. Under the provisions of most state constitutions, the government may, at the request of both chambers of the legislature, remove judges from the bench. Some constitutions provide for election of members of the courts and require them to submit to frequent reelection. I venture to predict that these innovations will sooner or later lead to disastrous results, and that some day it will become clear that to reduce the independence of magistrates in this way is to attack not only the judicial power but the democratic republic itself.
Do not suppose, moreover, that in the United States the legal spirit is confined to the courthouse. Its influence is far more extensive.
Lawyers, who constitute the only enlightened class not distrusted by the people, are naturally called upon to fill most public offices. The legislatures are full of them, and they head many administrative departments. They therefore exercise considerable influence on both the making and execution of the law. Yet they are obliged to yield to the current of public opinion that sweeps them along. Nevertheless, it is easy to find indications of what they would do if they were free. For all the innovations that Americans have brought to their political laws, they have made only minor changes in their civil laws, and even then only with great difficulty, though any number of those laws are strongly out of keeping with their social state. The reason for this is that when it comes to civil law, the majority has no choice but to rely on lawyers, and American lawyers, when free to choose, will not innovate.
It is an odd experience for a Frenchman to hear Americans complain about the static thinking of lawyers and their prejudice in favor of what is established.
The influence of the legal spirit extends well beyond the specific limits set forth above.
There is virtually no political question in the United States that does not sooner or later resolve itself into a judicial question. Hence the parties in their daily polemics find themselves obliged to borrow the ideas and language of the courts. Since most public men either were or are lawyers, it is only natural for them to bring their professional habits and ways of thinking to their dealing with the public’s business. Jury duty makes people of all classes familiar with legal ways. In a sense, the language of the judiciary becomes the vulgar tongue. Thus the legal spirit, born in law schools and courtrooms, gradually spreads beyond their walls. It infiltrates all of society, as it were, filtering down to the lowest ranks, with the result that in the end all the people acquire some of the habits and tastes of the magistrate.
Lawyers in the United States constitute a power that arouses little fear, that is barely perceived, that flies no banner of its own, that supplely bends to the exigencies of the times and surrenders without resistance to every movement of the social body. Yet it envelops the whole of society, worms its way into each of the constituent classes, works on the society in secret, influences it constantly without its knowledge, and in the end shapes it to its own desires.
ON THE JURY IN THE UNITED STATES CONSIDERED AS A POLITICAL INSTITUTION
The jury, as one mode of popular sovereignty, must be seen in relation to the laws establishing that sovereignty. — Composition of juries in the United States. — Effects of trial by jury on the national character. — Education of the people through jury service. — How trial by jury tends to establish the influence of magistrates and spread the legal spirit.
My subject having led naturally to the matter of justice in the United States, I must turn now to the question of the jury before moving on.
The jury is both a judicial institution and a political institution, and it is important to distinguish between the two.
If the question were one of determining how much juries, particularly juries in civil cases, contribute to the fair administration of justice, I concede that their utility might be contested.
The jury system developed in a society that was not very advanced, in which the courts had little to deal with beyond simple questions of fact, and it is no easy matter to adapt it to the needs of a highly civilized people whose social relations have become strikingly complex and taken on a scholarly, intellectual character.2
For now my primary focus is the political aspect of the jury: to proceed in any other way would take me away from my subject, so I will say just a few words about the jury as a judicial instrument. When the English adopted the jury system, they were still a semi-barbarous people. Since that time, they have become one of the most enlightened nations on the planet, and their devotion to the jury system seems to have kept pace with their enlightenment. They have ventured forth from their native soil and spread throughout the world: some established colonies; others, independent states. The main body of the nation kept its king. Some of the emigrants founded powerful republics. But praise for the jury system has been uniform wherever Englishmen are found.3 Wherever they went, they established that system or hastened to restore it. A judicial institution that wins the approbation of a great people over so many centuries, that has been ardently embraced by societies in all phases of civilization, in all climates, and under all forms of government, cannot be contrary to the spirit of justice.4
But let us leave this subject. To regard the jury simply as a judicial institution would be to take a notably narrow view, for if the jury has a great influence on the outcome of a trial, it has an even greater influence on the fate of society itself. Hence the jury is first and foremost a political institution and must always be judged as such.
By “jury” I mean a certain number of citizens chosen at random and temporarily invested with the right to judge.
To use juries in the repression of crime is in my view to introduce a distinctly republican institution into government, for the following reasons:
The jury system can be aristocratic or democratic, depending on the class from which jurors are selected, but it always retains a republican character in that it places actual control of society in the hands of the governed — or some of the governed — rather than of the government.
Force is never more than a fleeting element of success. The idea of right follows hard on its heels. A government unable to inflict damage on its enemies except on the battlefield would soon be destroyed. The true sanction of political laws is therefore found in the penal code, and if that sanction is lacking, the law sooner or later loses its force. The man who judges in criminal cases is therefore the true master of society. Now, the jury system places the people, or at any rate one class of citizens, on the judge’s bench. Thus the jury system really places control of society in the hands of the people, or of that class.5
In England, jurors are recruited from the aristocratic portion of the nation. The aristocracy makes the laws, enforces the laws, and judges infractions of the laws.* Everything is of a piece: thus England is in fact an aristocratic republic. In the United States, the same system is applied to the entire people. Every American citizen can vote, hold office, and serve on a jury.† The jury system as it is understood in America seems to me a consequence of the dogma of popular sovereignty just as direct and just as extreme as universal suffrage. Both are equally powerful means of ensuring that the majority reigns.
Sovereigns determined to draw their power from sources within themselves and to guide society rather than allow themselves to be guided by it have always destroyed or weakened the jury system. The Tudors imprisoned jurors unwilling to convict, and Napoleon had them selected by his agents.
However obvious most of the foregoing truths may be, some minds have yet to be struck by them: it seems that many of us still have only a confused idea of the jury system. When the question of the composition of jury lists arises, discussion is limited to the enlightenment and capabilities of the people summoned to serve, as if the jury were merely a judicial institution. But this, in my view, is the least important aspect of the subject. The jury is above all a political institution. It should be regarded as a form of popular sovereignty. If popular sovereignty is repudiated, the jury should be discarded entirely; otherwise it should be seen in relation to other laws establishing popular sovereignty. The jury constitutes the part of the nation charged with ensuring the execution of the laws, just as the houses of the legislature are the part of the nation charged with making the laws. And if society is to be governed in a stable and uniform way, jury lists must expand and contract with voter lists. In my opinion, this should always be the lawmaker’s primary focus. The rest is nothing, so to speak, but frills.
So convinced am I that the jury is above all a political institution that I see its use in criminal cases in the same light.
Laws are always shaky unless they are supported by mores. Mores are the only robust and durable power in any nation.
When juries are reserved for criminal cases, people see them in action only at long intervals, and then only in particular cases. They become accustomed to doing without juries in the ordinary course of life and consider them to be one means of obtaining justice rather than the only means.6
By contrast, when juries are used in civil cases, their work is constantly in the public eye. It affects interests of every kind. Everyone serves on them. Thus they become a part of daily usage. The human mind becomes habituated to the jury’s forms, and the jury itself comes to be identified, as it were, with the very idea of justice.
Thus, if the jury system is limited to criminal cases, it is always in danger, but once introduced into civil cases it defies time and human effort. If the jury could have been plucked from the mores of the English as easily as from their laws, it would have succumbed entirely under the Tudors. What really saved English liberties was therefore the civil jury.
No matter how juries are used, they cannot fail to exert an important influence on national character. But that influence increases immeasurably as their use in civil cases is extended.
The jury, especially the civil jury, imparts to the minds of all citizens some of the habits of mind of the judge. And those habits are precisely the ones that best prepare a people to be free.
The jury instills in all classes a respect for judicial decisions and the idea of law. Remove those two things and love of independence becomes a destructive passion.
The jury teaches men the practice of equity. Each man, in judging his neighbor, thinks that he may in turn be judged. This is especially true of juries in civil cases. Almost no one is afraid of one day being prosecuted as a criminal, but anyone can be sued.
From the jury every man learns not to shirk responsibility for his own actions — a virile disposition without which political virtue does not exist.
The jury vests each citizen with a kind of magistracy. It teaches everyone that they have duties toward society and a role in its government. By forcing men to be concerned with affairs other than their own, it combats individual egoism, which is to societies what rust is to metal.
The jury is incredibly useful in shaping the people’s judgment and augmenting their natural enlightenment. This, in my view, is its greatest advantage. It should be seen as a free school, and one that is always open, to which each juror comes to learn about his rights, and where he enters into daily contact with the best educated, most enlightened members of the upper classes and receives practical instruction in the law in a form accessible to his intelligence, thanks to the efforts of the lawyers, the counsel of the judge, and the very passions of the litigants. I think that the primary reason for the practical intelligence and political good sense of Americans is their long experience with juries in civil matters.
I do not know if juries are useful to civil litigants, but I do know that they are very useful to the people who judge them. I see the jury as one of the most effective means available to society for educating the people.
The foregoing applies to all nations, but what I shall say next is specific to Americans and, more generally, to all democratic peoples.
I said earlier that, in a democracy, lawyers, and in particular magistrates, constitute the only aristocratic body capable of moderating the people’s impulses. This aristocracy is not invested with any physical power; its conservative influence acts only on minds. And the principal source of its power lies in one institution: the civil jury.
In criminal trials, in which society is pitted against an individual, the jury is inclined to see the judge as the passive instrument of social power and is wary of his advice. Furthermore, criminal trials turn entirely on simple questions of fact easily resolved by common sense. On this terrain, judge and juror are equals.
Things are different in civil trials. There, the judge is seen as a disinterested arbiter between impassioned litigants. The jurors have confidence in him and listen with respect to what he says, for in this realm his intelligence entirely dominates theirs. It is he who unfolds for them the various arguments that have been set forth at such length as to try their memories, and he who takes them by the hand to guide them through the ins and outs of legal procedure. It is he who limits them to findings of fact and teaches them how they must answer questions of law. His influence on them is virtually unlimited.
Do I still need to explain why arguments based on the notion that jurors are ill-equipped to try civil cases carry little weight with me?
In civil trials — at least in all matters other than findings of fact — the jury is a judicial body in appearance only.
The jurors pronounce the judgment that the judge has rendered. To that judgment they impart the authority of the society they represent, and the judge imparts the authority of reason and law.∗
In England and America, judges have an influence on the outcome of criminal trials that French judges have never known. It is easy to understand the reason for this difference: having established his power in civil matters, the English or American magistrate is merely exercising that power in another theater; he does not acquire it there.
There are cases — often the most important cases — in which American judges have the right to render judgment by themselves.7 They then find themselves for once in the usual position of the French judge. But their moral power is much greater: memories of the jury accompany them, and the voice of the judge is almost as powerful as that of society, of which jurors were the organ.
The judge’s influence extends well beyond the walls of the courtroom. In the relaxations of private life as well as in the labors of political life, in public places and legislative chambers, the American judge is constantly surrounded by men accustomed to placing his intelligence above their own. His power, having been exercised in the courtroom, continues to shape the habits of mind and even the souls of those who helped him judge.
Thus the jury, though it seems to diminish the rights of the magistracy, actually establishes its empire, and nowhere are judges more powerful than in countries where the people share their privileges.
The civil jury has served the American magistracy as the primary means of imbuing even the lowermost ranks of society with what I have called the legal spirit.
Thus the jury, which is the most energetic form of popular rule, is also the most effective means of teaching the people how to rule.
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1 See what I say about judicial power in Part I.
2 It would be both profitable and interesting to consider the jury as a judicial institution, to measure its effects in the United States, and to investigate how Americans have benefited from it. This question alone provides matter enough for an entire book, and a book that would be of great interest in France. It would be interesting to inquire, for instance, how much of the American jury system could be transplanted to France, and by what stages it could be introduced. The American state that could shed the most light on this subject is probably Louisiana. The population of Louisiana is a mixture of French and English. Both French law and English law are present as well, and the two bodies of law are gradually merging. The most useful books to consult are probably the two-volume Digest of the Laws of Louisiana, and perhaps more useful still, a manual of civil procedure in both French and English entitled Traité sur les règles des actions civiles, published in 1830 in New Orleans by Buisson. This work has a special advantage in that it offers the French reader a reliable and authentic explanation of English legal terms. In all countries the language of the law is something like a separate dialect, and nowhere more so than among the English.
3 English and American lawyers are unanimous on this point. Mr. Story, a justice of the Supreme Court of the United States, comments on the excellence of juries in civil cases in his Treatise on the Federal Constitution: “The inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all persons to be essential to political and civil liberty.” (Story, book 3, chap. 38.)
4 If one wished to establish the usefulness of the jury as a judicial institution, many other arguments could be advanced, including the following:
The greater the use made of jurors, the more you can reduce the number of judges without ill effect, which is a great advantage. When judges are numerous, death creates voids in the judicial hierarchy and opens up new places for the survivors every day. Ambition therefore causes judges to pant constantly after higher office and of course makes them dependent on the majority or person who fills vacant judgeships. Judges advance in the courts as soldiers advance through the ranks in the military. Such a state of affairs is utterly at odds with the fair administration of justice as well as with the intent of the legislature. One makes it impossible to remove judges from office in order to keep them free, but what good is it that no one can take their independence from them if they sacrifice it voluntarily?
When the number of judges is large, many will turn out to be incompetent, for a great magistrate is not an ordinary human being. But I am not sure that a semi-enlightened tribunal is not the worst of all the possible ways of achieving the ends for which courts of justice were established to begin with.
As for myself, I would sooner leave the decision in a trial to ignorant jurors led by a skillful magistrate than surrender it to judges of whom a majority have only an incomplete knowledge of jurisprudence and law.
5 An important remark has to be made, however:
The jury system, to be sure, gives the people a general right of control over the actions of citizens, but it does not give them the means to exercise that control in all cases, nor always in a tyrannical manner.
When an absolute prince can delegate the authority to judge crimes, the fate of the accused is fixed, as it were, in advance. But even if the people as a whole are determined to convict, an innocent person still stands a chance owing to the composition of the jury and that fact that it is accountable to no one.
* See Note XVI, page 859.
† See Note XVII, page 859.
6 This is true a fortiori when juries are used only in certain criminal cases.
∗ See Note XVIII, page 861.
7 Federal judges almost always decide alone on questions that affect the government of the country most directly.