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CHAPTER 8: Of What Tempers Tyranny of the Majority in the United States - Alexis de Tocqueville, Democracy in America: Historical-Critical Edition, vol. 2 [1835]

Edition used:

Democracy in America: Historical-Critical Edition of De la démocratie en Amérique, ed. Eduardo Nolla, translated from the French by James T. Schleifer. A Bilingual French-English editions, (Indianapolis: Liberty Fund, 2010). Vol. 2.

Part of: Democracy in America: Historical-Critical Edition, 4 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER 8

Of What Tempers Tyranny of the Majority in the United States

Absence of Administrative Centralization

The national majority does not have the idea of doing everything.—It is forced to use town and county magistrates in order to carry out its sovereign will.

Previously I distinguished two types of centralization; one, I called governmental, and the other administrative. a

Only the first exists in America; the second is almost unknown there.

If the power that directs American societies found these two means of government at its disposal, and combined, with the right to command everything, the ability and the habit of carrying out everything by itself; if, after establishing the general principles of government, it entered into the details of application, and after regulating the great interests of the country, it could reach as far as individual interests, liberty would soon be banished from the New World.b

But, in the United States, the majority, which often has the tastes and instincts of a despot, still lacks the most advanced instruments of tyranny.

In none of the American republics has the central government ever taken charge of anything other than a small number of objects whose importance attracted its attention. It has never undertaken to regulate the secondary things of society. Nothing indicates that it has ever even conceived the desire to do so. The majority, while becoming more and more absolute, has not increased the attributions of the central power; it has only made it omnipotent in its sphere. Thus despotism can be very heavy at one point, but it cannot extend to all.c

Besides, however carried away the national majority may be by its passions; however ardent it is in its projects, it cannot in all places, in the same way, and in the same moment, make all citizens yield to its desires.d When the central government that represents the national majority has given orders as a sovereign, it must rely, for the execution of its command, on agents who often do not depend on it and that it cannot direct at every moment. So the municipal bodies and county administrations form like so many hidden reefs that slow or divide the tide of popular will. Were the law oppressive, liberty would still find a refuge in the way in which the law would be executed; the majority cannot get into the details, and, if I dare say so, into the puerilities of administrative tyranny. The majority does not even imagine that it can do so, for it is not entirely aware of its power. It still knows only its natural strength and is unaware of how far art could extend its limits.

This merits reflection.e If a democratic republic like that of the United States ever came to be established in a country where the power of one man had already established administrative centralization and introduced it into habits, as well as into laws, I am not afraid to say that, in such a republic, despotism would become more intolerable than in any of the absolute monarchies of Europe. It would be necessary to look to Asia in order to find something comparable.

Of the Spirit of the Jurist in the United States, and How It Serves as Counterweight to Democracyf

Usefulness of trying to find out what the natural instincts of the spirit of the jurist are.—Jurists, called to play a great role in the society that is trying to be born.—How the kind of work that jurists devote themselves to gives an aristocratic turn to their ideas.—Accidental causes that can oppose the development of these ideas.—Facility that the aristocracy has in uniting itself with jurists.—Advantage that a despot could draw from the jurists.—How the jurists form the only aristocratic element that is by nature able to combine with the natural elements of democracy.—Particular causes that tend to give an aristocratic turn to the spirit of the English and American jurists.—The American aristocracy is at the lawyers’ bar and on the judges’ bench.—Influence exercised by jurists on American society.—How their spirit enters into the legislatures, into the administration, and ends by giving the people themselves something of the instinct of magistrates.

[≠I said elsewhere that the American magistracy was vested with a great political power; it remains for me to see how it tends to exercise its power.

American judges are named by the executive power {or by the legislature}; they are hardly ever chosen by the people.

But had you made judges chosen directly by the people, by making them irremovable, you would have given them instincts entirely different from those of the people.

From the moment when a public official is vested with an office for life, he takes a personal interest in society remaining immobile. If he is not always the enemy of progress, he is definitely the enemy of revolutions, and if this official is a man of the law, he is naturally carried by education to prize stability and he becomes attached to stability by inclination.

In fact, in what could be called the spirit of the jurist there is something singularly aristocratic.

Whoever will not allow himself to be preoccupied by a fact but by the ensemble of facts, not by a particular period but by the succession of times, will easily discover this tendency in the spirit of the jurist.≠]

When you visit the Americans and study their laws, you see that the authority that they have given to jurists and the influence that the Americans have allowed them to take in government form today the most powerful barrier to the errors of democracy. To me this effect seems due to a general cause that it is useful to try to determine, because it can recur elsewhere.

Jurists have been mixed up in all the movements of political society in Europe for five hundred years. Sometimes they have served as instruments of the political powers; sometimes they have used the political powers as instruments. In the Middle Ages, jurists cooperated wonderfully in extending the domination of kings; since then, they have worked powerfully to restrict this very power. In England, they were seen to unite intimately with the aristocracy; in France they revealed themselves as its most dangerous enemies. So do jurists yield only to sudden and momentary impulses, or, depending on circumstances, do they more or less obey instincts that are natural to them and that always recur? I would like to clarify this point; for jurists are perhaps called upon to play the first role in the political society trying to be born.

Men who have made law their specialty have drawn from this work habits of order, a certain taste for forms, a sort of instinctive love for the regular succession of ideas, that make them naturally strongly opposed to the revolutionary spirit and to the unthinking passions of democracy.

[{This effect is larger or smaller depending on how you study the law.

In countries like France, where all legislation is written [the jurist (ed.)] contracts the taste for what is regular and legal.}

≠Furthermore, in countries where the law of precedents rules, such as England and America, the taste and respect for what is old are almost always merged in the soul of the jurist with the love of what is legal.

It is not the same in countries where, as in France, the whole legislation is found written in codes.

The English jurist tries to determine what has been done; the French jurist, what the intention was. The first wants≠ evidence; the second, arguments. The one wants decisions; the other wants reasons. [Cf. infra (ed.)

]]

The special knowledge that jurists acquire while studying the law assures them a separate rank in society. They form a sort of privileged class among intelligent people. Each day they rediscover the idea of this superiority in the exercise of their profession; they are masters of a necessary science, the knowledge of which is not widespread; they serve as arbiters among citizens, and the habit of leading the blind passions of the litigants toward the goal gives them a certain contempt for the judgment of the crowd. Add that they naturally form a corps. It isn’t that they agree among themselves and head in concert toward the same point; but the community of study and unity of methods link their minds, as interest could unite their wills.

So you find hidden at the bottom of the soul of jurists a portion of the tastes and habits of the aristocracy. Like the aristocracy, they have an instinctive propensity for order, a natural love of forms; like the aristocracy, they conceive a great distaste for the actions of the multitude and secretly despise the government of the people.g

I do not want to say that these natural tendencies of jurists are strong enough to bind them in an irresistible way. What dominates jurists, as all men, is particular interest, and above all the interest of the moment.

There is a kind of society where men of the law cannot take a rank in the political world analogous to the one that they occupy in private life; you can be sure that, in a society organized in this way, the jurists [despite their natural tastes] will be very active agents of revolution. But then you must try to determine if the cause that leads them to destroy or to change arises among them from a permanent disposition or from an accident. It is true that jurists singularly contributed to overturning the French monarchy in 1789.h It remains to be known if they acted in this way because they had studied the laws, or because they could not contribute toward making them.j

Five hundred years ago, the English aristocracy put itself at the head of the people and spoke in their name; today it upholds the throne and makes itself the champion of royal authority.k The aristocracy, however, has instincts and tendencies that are its own.

You must also guard against taking isolated members of the corps for the corps itself.

In all free governments, of whatever form, you will find jurists among the first ranks of all parties. This same remark is also applicable to the aristocracy. Nearly all the democratic movements that have agitated the world have been led by nobles.

An elite body can never be sufficient for all the ambitions that it contains; there are always more talents and passions than posts, and you do not fail to find a large number of men there who, not able to grow great quickly enough by using the privileges of the corps, seek to grow great by attacking its privileges.

So I do not claim that a period will come when all jurists, or that in all times, most jurists must appear as friends of order and enemies of change.

I am saying that in a society where jurists occupy without dispute the elevated position that belongs to them naturally, [and with all the more reason in the society where they occupy the first rank] their spirit will be eminently conservative and will show itself to be antidemocratic.m

When the aristocracy closes its ranks to jurists, it finds in them enemies all the more dangerous because, below the aristocracy in wealth and power, they are independent of the aristocracy by their work and feel themselves on its level by their enlightenment.

But every time the nobles have wanted to share some of their privileges with the jurists, these two classes have found it very easy to join together and have, so to speak, discovered themselves to be of the same family.

I am equally led to believe that it will always be easy for a king to make jurists the most useful instruments of his power.n

There is infinitely more natural affinity between men of the law and the executive power than between them and the people, although jurists often have to overthrow the first; just as there is more natural affinity between the nobles and the king than between the nobles and the people, even though you have often seen the superior classes of society combine with the others to struggle against royal power. [Jurists often fear the king, but they always despise the people.]

What jurists love above all things is the sight of order, and the greatest guarantee of order is authority. It must not be forgotten, moreover, that if they prize liberty, they generally put legality much above it; they fear tyranny less than arbitrariness and, provided that the legislator himself sees to taking independence away from men, they are more or less content.

So I think that the prince who, in the presence of an invasive democracy, would seek to break down the judicial power in his States and to diminish the political influence of jurists, would commit a great error. He would let go of the substance of authority in order to seize its shadow.

I do not doubt that it would be more profitable for him to introduce jurists into the government. After entrusting despotism to them in the form of violence, perhaps he would rediscover it in their hands with the features of justice and the law.

[As for me, I would never advise any people to leave to the courts the care of guaranteeing its liberty. I would be afraid that the courts would sacrifice it to monarchs or to themselves. This care concerns great political assemblies.]

The government of democracy is favorable to the political power of jurists. When the rich man, the nobleman and the prince are excluded from government, the jurists arrive there by right, so to speak; for then they are the only enlightened and skillful men that the people can choose outside of themselves.o

If jurists are led naturally toward the aristocracy and the prince by their tastes, they are led naturally toward the people by their interest.

Thus, jurists love the government of democracy, without sharing its tendencies and without imitating its weaknesses, double cause to be powerful by democracy and over democracy.

The people, in a democracy, do not distrust jurists, because they know that the interest of jurists is to serve their cause; they listen to them without anger, because they do not assume that jurists have an ulterior motive.p In fact, jurists do not want to overturn the government that democracy has established, but they strive constantly to lead it along a path that is not its own and by means that are foreign to it. The jurist belongs to the people by his interest and by his birth and to the aristocracy by his habits and his tastes; he is like the natural liaison between these two, like the link that unites them.

The body of jurists forms the only aristocratic element that can mingle with the natural elements of democracy without effort and combine with them in a happy and enduring way. I am not unaware of the faults inherent in the spirit of jurists; without this mixture of the spirit of jurists with the democratic spirit, I doubt, however, that democracy could govern society for long, and I cannot believe that today a republic could hope to maintain its existence, if the influence of jurists in public affairs did not increase in proportion to the power of the people.

This aristocratic character that I see in the spirit of jurists is still more pronounced in the United States and in England than in any other country. This is due not only to the study of the law made by English and American jurists, but also to the very nature of legislation and to the position that these interpreters occupy among these two peoples.

The English and the Americans have kept the law of precedents, that is, they continue to draw from the opinions and legal decisions of their fathers the opinions that they must have in matters of the law and the decisions they must render.

So with an English or American jurist, the taste and respect for what is old is nearly always mingled with love of what is regular and legal.

This has still another influence on the turn of mind of jurists and consequently on the course of society.

The English or American jurist seeks what has been done; the French jurist, what you must have wanted to do; [the first, evidence; the second, arguments] the one wants judgments, the other wants reasons.

When you listen to an English or American jurist, you are surprised to see him so often cite the opinion of others, and to hear him speak so little about his own, while among us the contrary happens.

No affair that the French lawyer agrees to handle is so small that he treats it without introducing a system of his own ideas; and he will examine even the constituent principles of the law so that the court be pleased in this regard to have the boundary marker of a disputed inheritance moved back about six feet.

This sort of abnegation of his own sense made by the English and American jurist in order to rely on the sense of his fathers; this type of servitude, in which he is obliged to maintain his thought, must give the spirit of the jurist more timid habits and make him acquire more stationary tendencies in England and America than in France [for a fact is very much more immobile than an idea or an argument].

Our written laws are often difficult to understand, but everyone can read them; in contrast, there is nothing more obscure to the common people and less accessible to them than legislation founded on precedents. This need for the jurist in England and in the United States, this high idea of his knowledge, separate him more and more from the people, and end by putting him in a class apart. The French jurist is only a learned man, but the English or American man of the law in a way resembles the priests of Egypt; like them, he is the sole interpreter of an occult science.

The position that the men of the law occupy in England and in America exercises an influence no less great on their habits and their opinions. The aristocracy of England, which has taken care to draw to its bosom everything that had some natural analogy to it, has given a very great portion of consideration and power to jurists. In English society jurists are not at the first rank, but they consider themselves content with the rank that they occupy. They form something like the junior branch of the English aristocracy, and they love and respect their seniors, without sharing all their privileges. So the English jurists combine with the aristocratic interests of their profession the aristocratic ideas and tastes of the society in which they live.

Therefore in England, above all, you can see in relief the type of jurist that I am trying to paint: the English jurist esteems the laws, not so much because they are good as because they are old; and, if he sees himself reduced to modifying them on some point in order to adapt to the changes that societies are subjected to by time, he resorts to the most incredible subtleties in order to persuade himself that, by adding something to the work of his fathers, he is only developing their thought and completing their efforts. Do not hope to make him recognize that he is an innovator; he will consent to go to absurd lengths before admitting himself guilty of such a great crime. In England was born this legal spirit that seems indifferent to the heart of things in order to pay attention only to the letter, and that would rather go beyond reason and humanity than go beyond the law.

English legislation is like an ancient tree on which jurists have constantly grafted the strangest shoots, in the hope that, while producing different fruits, they will at least blend their foliage with the venerable stock that supports them.

In America, there are no nobles nor men of letters, and the people distrust the rich. So jurists form the superior political class and the most intellectual portion of society.q Thus, they could only lose by innovating: this adds a conservative interest to the natural taste that they have for order.

If you asked me where I place the American aristocracy, I would answer without hesitating that it is not among the rich who have no common bond that gathers them together. The American aristocracy is at the lawyers’ bar and on the judges’ bench.r

The more you think about what happens in the United States, the more you feel persuaded that in this country the body of jurists forms the most powerful and, so to speak, the sole counterweight of democracy.

In the United States you easily discover how appropriate the spirit of the jurist is, by its qualities, and I will say even by its faults, for neutralizing the vices inherent in popular government.

When the American people allow themselves to be intoxicated by their passions, or abandon themselves to the impetus of their ideas, jurists make them feel an almost invisible brake that moderates and stops them. To their democratic instincts, jurists secretly oppose their own aristocratic tendencies; to their love of novelty, the jurists’ superstitious respect for what is old; to the immensity of their designs, the jurists’ narrow views; to their disdain for rules, the jurists’ taste for forms; and to their hotheadedness, the jurists’ habit of proceeding slowly.

The courts are the most visible organs that the body of jurists uses to act upon democracy.

The judge is a jurist who, apart from the taste for order and rules that he acquired in the study of law, draws the love of stability also from his irremovability from office. His legal knowledge had already assured him an elevated position among his fellows; his political power really places him in a rank apart, and gives him the instincts of the privileged classes.

Armed with the right of declaring laws unconstitutional, an American magistrate enters constantly into public affairs.1 He cannot force the people to make laws, but at least he compels them not to be unfaithful to their own laws and to remain consistent.

I am not unaware that a secret tendency exists in the United States that leads the people to reduce the judicial power; in most of the particular state constitutions, the government, at the request of two legislative houses, can remove judges from the bench. Certain constitutions make the members of the courts elective and submit them to frequent reelection.t I dare to predict that sooner or later these innovations will have harmful results and that one day you will see that by diminishing the independence of the magistrates in this way you have attacked not only the judicial power but also the democratic republic itself.

It must not be believed, moreover, that in the United States the spirit of the jurist is enclosed only within the courtrooms; it extends well beyond.

Jurists, forming the only enlightened class that the people do not distrust, are naturally called to occupy most of the public offices. They fill the legislatures and are at the head of administrations, so they exercise a great influence on the formation of the law and on its execution. Jurists are obliged, however, to yield to the current of political opinion that carries them along; but it is easy to find indications of what they would do if they were free. The Americans, who have innovated so much in their political laws, have introduced only slight changes, and with great difficulty, into their civil laws, although several of these laws are strongly repugnant to their social state.u That is because in matters of civil law the majority is always obliged to rely on jurists; and the American jurists, left to their own choice, do not innovate.

It is a very strange thing for a Frenchman to hear the complaints that arise in the United States against the jurists’ stationary spirit and their prejudices in favor of what is established.

The influence of the spirit of the jurist extends still farther than the precise limits that I have just traced.v

There is hardly any political question in the United States that sooner or later does not turn into a judicial question. From that, the obligation that the parties find in their daily polemics to borrow ideas and language from the judicial system. Since most public men are or have formerly been jurists, they make the habits and the turn of ideas that belong to jurists pass into the handling of public affairs. The jury ends up by familiarizing all classes with them. Thus, judicial language becomes, in a way, the common language; so the spirit of the jurist, born inside the schools and courtrooms, spreads little by little beyond their confines; it infiltrates all of society, so to speak; it descends to the lowest ranks, and the entire people finishes by acquiring a part of the habits and tastes of the magistrate.

In the United States, the jurists form a power that is little feared, that is scarcely noticed, that has no banner of its own, that yields with flexibility to the exigencies of time and gives way without resistance to all the movements of the social body. But this power envelops the entire society, penetrates into each of the classes that compose society, works on society in secret, acts constantly on society without society’s knowledge and ends by shaping society according to its desires.

Of the Jury in the United States Considered as a Political Institutionw

The jury, which is one of the modes of sovereignty of the people, must be put in harmony with the other laws that establish this sovereignty.—Composition of the jury in the United States.—Effects produced by the jury on the national character.—Education that it gives to the people.—How it tends to establish the influence of magistrates and to spread the spirit of the jurist.

Since my subject has led me naturally to talk about the judicial system in the United States, I will not abandon this matter without dealing with the jury.

Two things must be distinguished: the jury as a judicial institution and as a political institution.

If it was a matter of knowing to what extent the jury, and above all the jury in civil matters, serves the good administration of justice, I would admit that its usefulness could be contested.

The institution of the jury was born in a society that was little advanced, where hardly anything was submitted to the courts except simple questions of fact; and it is not a simple task to adapt the jury to the needs of a very civilized people, when the relationships among men are singularly multiplied and have taken on a complicated and intellectual character.2

My principal goal, at this moment, is to envisage the political side of the jury; another path would take me away from my subject. As for the jury considered as a judicial means, I will say only two words. When the English adopted the institution of the jury, they were a half-barbaric people; they have since become one of the most enlightened nations of the globe, and their attachment to the jury has seemed to increase with their enlightenment. They emerged from their territory, and we have seen them spread across the universe. Some formed colonies; others, independent States. The body of the nation kept the king; several of the emigrants founded powerful republics. But everywhere the English equally advocated the institution of the jury.3 They established it everywhere or hastened to reestablish it. A judicial institution that thus obtains the votes of a great people over a long succession of centuries, that is zealously reproduced at all periods of civilization, in all climates and under all forms of government cannot be contrary to the spirit of justice.4

[<Justice is one of the first needs of men, and there is no prejudice that can stifle it for long.>]

But let us leave this subject. It would singularly narrow your thought to limit yourself to envisioning the jury as a judicial institution; for, if it exercises a great influence on the outcome of trials, it exercises a very much greater one on the very destinies of society. So the jury is before all else a political institution. You must always judge it from this point of view.

I understand by jury a certain number of citizens taken at random and vested temporarily with the right to judge.

To apply the jury to the suppression of crime appears to me to introduce into the government an eminently republican institution. Let me explain.

The institution of the jury can be aristocratic or democratic, depending on the class from which you take the jurors; but it always retains a [an eminently] republican character, in that it places the real direction of society in the hands of the governed or of a portion of them, and not in the hands of those governing.

Force is never more than a fleeting element of success; soon after force comes the idea of right. A government reduced to being able to reach its enemies only on the field of battle would soon be destroyed. The true sanction of political laws is therefore found in the penal laws and if the sanction is lacking, the law sooner or later loses its force. So the man who judges in a criminal court is really the master of society. Now, the institution of the jury puts the people themselves, or at least a class of citizens, on the judge’s bench. So the institution of the jury really puts the leadership of society into the hands of the people or of this class.5

In England, the jury is recruited from among the aristocratic portion of the nation. The aristocracy makes the laws, applies the laws and judges the infractions of the laws.B Everything is in accord: consequently England truly speaking forms an aristocratic republic. In the United States, the same system is applied to the whole people. Each American citizen is a voter and eligible for office and jury.C The system of the jury, such as it is understood in America, seems to me as direct and as extreme a consequence of the dogma of sovereignty of the people as universal suffrage. These are two equally powerful means to make the majority rule.

All the sovereigns who have wanted to draw the sources of their power from within themselves and lead society instead of letting themselves be led by society have destroyed the institution of the jury or have enervated it. The Tudors imprisoned jurors who would not condemn, and Napoleon had jurors chosen by his agents.

[It was the Bourbons who, in the year 1828, really reestablished among us the institution of the jury by making chance the principal arbiter of the choice of jurors. I cannot in this matter prevent myself from admiring the singular connection of events in this world. Bonaparte, who pretended to hold his right from the national will, made a law directly contrary to the sovereignty of the people, and the Bourbons, who said they held their right from themselves, returned the sanction to the hands of the people.x

The law of 1828 was, without the knowledge of those who passed it, an immense advancey made toward republican institutions in France. You would have noticed it clearly if the Restoration had not rushed headlong into an abyss. The jury thus emancipated would have been sufficient to bind the government little by little to the desires of the middle classes without having had the need to resort to force, because the majority of jurors was always found among the middle classes.]

However evident most of the preceding truths may be, they do not strike all minds, and often, among us, there still seems to be only a confused idea of the institution of the jury. If someone wants to know what elements should make up the list of jurors, the discussion is limited to considering the enlightenment and capacity of those called to be a part of the list, as if it was only a matter of a judicial institution. In truth, that seems to me to be preoccupied with the least portion of the subject. The jury is before all else a political institution; it should be considered as a mode of sovereignty of the people; it must be entirely rejected when you rule out the sovereignty of the people, or must be put in harmony with the other laws that establish this sovereignty. The jury forms the part of the nation charged with ensuring the execution of the laws, as the legislative houses are the part of the nation charged with making the laws; and for society to be governed in a fixed and uniform manner, it is necessary that the list of jurors be expanded or restricted with the list of voters. This is the point of view that, in my opinion, must always attract the principal attention of the legislator. The rest is so to speak secondary.

I am so persuaded that the jury is before all else a political institution that I still consider it in this way when it is applied to civil matters. [This can seem extraordinary at first glance. Here are my reasons for doing so.]

Laws are always shaky as long as they do not rely on mores; mores form the only resistant and enduring power among a people.

When the jury is reserved for criminal affairs, the people see it act only from time to time and in particular cases; they get used to doing without the jury in the ordinary course of life, and they consider it as a means and not as the only means for obtaining justice.6

When, on the contrary, the jury is extended to civil affairs, its application comes into view at every moment; then it touches all interests; each person comes to contribute to its action; in this way it enters into the customs of life; it bends the human spirit to its forms and merges so to speak with the very idea of justice.

So the institution of the jury, limited to criminal affairs, is always at risk; once introduced into civil matters, it stands up against time and the efforts of men. If you had been able to remove the jury from the mores of the English as easily as from their laws, the jury would have completely succumbed under the Tudors. So it is the civil jury that really saved the liberties of England.

In whatever manner you apply the jury, it cannot fail to exercise a great influence on the national character, but this influence increases infinitely the more you introduce it into civil matters.

The jury, and above all the civil jury, serves to give the mind of all citizens a part of the habits of mind of the judge; and these habits are precisely those that best prepare the people to be free.

It spreads in all classes respect for the thing judged and for the idea of right. Remove these two things, and the love of independence will be nothing but a destructive passion.

It teaches men the practice of equity. Each person, by judging his neighbor, thinks that he can be judged in his turn. That is above all true of the jury in civil matters: there is hardly anyone who fears one day being the object of a criminal proceeding; but everyone can have a civil trial.

The jury teaches each man not to retreat from responsibility for his own actions; a manly disposition, without which there is no political virtue.

It vests each citizen with a sort of magistracy; it makes all feel that they have duties to fulfill toward society and that they enter into its government. By forcing men to get involved in something other than their own affairs, it combats individual egoism, which is like the rust of societies [{that ruins nations more than armies do}].

The jury serves unbelievably to form the judgment and to augment the natural enlightenment of the people. That, in my opinion, is its greatest advantage. You must consider it as a free school, always open, where each juror comes to be instructed about his rights, where he enters into daily communication with the most learned and most enlightened members of the upper classes, where the laws are taught to him in a practical way, and are put within the reach of his intelligence by the efforts of the lawyers, the advice of the judge and the very passions of the parties. I think that the practical intelligence and good political sense of the Americans must be attributed principally to the long use that they have made of the jury in civil matters.

I do not know if the jury is useful to those who have legal proceedings, but I am sure that it is very useful to those who judge them. I regard it as one of the most effective means that a society can use for the education of the people.

What precedes applies to all nations; but here is what is special to the Americans, and in general to democratic peoples.

I said above that in democracies the jurists, and among them the magistrates, form the only aristocratic body that can moderate the movements of the people. This aristocracy is vested with no physical power; it exercises its conservative influence only over minds. Now, it is in the institution of the civil jury that it finds the principal sources of its power.

In criminal trials, where society struggles against a man, the jury is led to see in the judge the passive instrument of the social power, and it distrusts his advice. Moreover, criminal trials rest entirely on simple facts that good sense easily comes to appreciate. On this ground, judge and juror are equal.

It is not the same in civil trials; then the judge appears as a disinterested arbiter between the passions of the parties. The jurors view him with confidence, and they listen to him with respect; for here his intelligence entirely dominates theirs. He is the one who lays out before them the diverse arguments that have fatigued their memory and who takes them by the hand to lead them through the twists and turns of procedure; he is the one who confines them to the point of fact and teaches them the answer that they must give to the question of law. His influence over them is almost without limits.

Is it necessary to say finally why I am so little moved by arguments drawn from the incapacity of jurors in civil matters?

In civil trials, at least whenever it is not a matter of questions of fact, the jury has only the appearance of a judicial body.

The jurors deliver the decision that the judge has rendered. They lend to this decision the authority of the society that they represent and he, the authority of reason and the law.D

In England and in America, judges exercise an influence over the fate of criminal trials that the French judge has never known. It is easy to understand the reason for this difference: the English or American magistrate has established his power in civil matters; afterward he is only exercising it in another theater; he is not gaining it there.

There are cases, and they are often the most important ones, where the American judge has the right to deliver a verdict alone.7 He then finds himself, by happenstance, in the position where the French judge usually finds himself; but his moral power is very much greater: the memories of the jury still follow him, and his voice has almost as much power as that of the society of which the jurors were the organ.

His influence extends even well beyond the courtroom: in the diversions of private life as in the labors of political life, in the public square as within the legislatures, the American judge constantly finds around him men who are used to seeing in his intelligence something superior to their own; and, after being exercised in trials, his power makes itself felt in all the habits of mind and even on the very souls of those who have participated with him in judging.

So the jury, which seems to diminish the rights of the magistracy, really establishes its dominion, and there is no country where judges are as powerful as those where the people share their privileges.

With the aid of the jury in civil matters, above all, the American magistracy makes what I have called the spirit of the jurist enter into the lowest ranks of society.

Thus the jury, which is the most energetic means to make the people rule, is also the most effective means to teach them to rule.z

[a. ] In America, there are a thousand natural causes that so to speak work by themselves toward moderating the omnipotence of the majority. The extreme similarity that reigns in the United States among all the interests, the material prosperity of the country, the diffusion of enlightenment and the mildness of mores, which is the necessary consequence of the progress of civilization, greatly favor the leniency of government.

I have already pointed out the different causes; the time has come to examine what barriers the institutions themselves have carefully raised against the power from which they derive.

Previously I distinguished . . . (YTC, CVh, 4, p. 15).

[b. ] In the manuscript, the paragraph is written as follows: “The Americans must consider themselves fortunate that this is so: if the majority in the United States found the one, like the other, in its hands in order to compel obedience to its will, and if it combined, with the right to do everything, the ability and the habit of carrying everything out by its agents, its power would be, so to speak, without limits.”

[c. ] In notes taken by Beaumont for the writing of Marie, this is found in Tocqueville’s hand:

In the American republics the central government has never taken charge except of a small number of objects whose importance attracted its attention. It has never undertaken to direct the administration of the towns and counties [v: secondary things]. It does not seem ever to have conceived the desire to do so. Becoming more and more absolute has allowed the rule of the majority to regulate these objects with more sovereign authority, but has not increased the number of objects in its sphere. So despotism can be great, but it cannot extend to everything (YTC, Beaumont, CIX).

[d. ] Two causes.

1. Splitting up of sovereignty.

2. Splitting up of administration.

Tyranny can be very great but it cannot be popular.

The Union cannot present a tyrannical majority. Each state could do it, but town administrations (illegible word).

The national majority finding itself opposed in its designs in this way by the majority of the inhabitants of a city or of a district, and tyranny [v: despotism] which can be very great at some points cannot become general.

If the majority rules the state, it also rules the town and the county; and since these two majorities can be opposed in their designs, liberty always finds some refuge, and despotism which can be irresistibly exercised at several points of the territory cannot become general, however (YTC, CVh, 3, pp. 53-54).

Tocqueville here is quite close to the idea that Madison expresses in Number 10 of the Federalist, that the best barrier against tyranny is the great extent of the republic. Nonetheless there is no reference to this Number of the Federalist in the drafts.

[e. ] Hervé de Tocqueville: “I observe generally that in the whole work the author makes extremely frequent use of this way of expressing himself.

“This chapter needs to be reviewed. I would in addition like the author to put there what he said about associations as barriers to omnipotence. That would be better placed here than in the chapter on associations where you speak about the remedy before indicating the malady” (YTC, CIIIb, 1, p. 71).

[f. ] Influence exercised by the judicial power on the power of the majority./

When you examine political society in the United States, you notice at first glance only a single principle that seems to bind all the parts strongly together: the people appear as the sole power. Nothing seems able to oppose their will or to thwart their designs.

But here is a man who appears in a way above the people; he does not get his mandate from them; he has, so to speak, nothing to fear from their anger, nor anything to hope from their favor. He is vested, however, with more power than any one of the representatives of the people; for, with a single blow, he can strike with sterility the work emanating from the common will (YTC, CVh, 1, pp. 14-15).

Rousseau (Du contrat social, book II, chapter VII), not wanting to limit the sovereignty of the people in any way, had to put the legislator outside of the political process. Tocqueville, who acknowledged absolute sovereignty in no power, makes the legislator a decisive element of political life.

Several conversations with American lawyers and jurists persuaded the author of the foremost role that lawyers and jurists play in political life. Cf. the conversation with Edward Everett of 24 January 1832 (non-alphabetic notebooks 2 and 3, YTC, BIIa, and Voyage, OC, V, 1, p. 151); the conversation with Mr. Latrobe of 30 October 1831 (ibid., p. 110) and more especially the conversation with Mr. Gallatin of 10 June 1831 (non-alphabetic notebook 1, YTC, BIIa, and Voyage, OC, V, 1, p. 61), where the idea that lawyers constitute a body that serves as a counterweight to democracy is mentioned; the conversations with John C. Spencer of 17 and 18 July 1831 (ibid., pp. 68-69), on the conservative effects of the American legal mentality. When Tocqueville takes up the argument again, he is also thinking of Blackstone (Cf. Correspondence and Conversations of Alexis de Tocqueville with Nassau William Senior, II, p. 44). Also see Gino Gorla, Commento a Tocqueville. L’idea dei diritti (Milan: Dott. A Guiffrè Editore, 1948, pp. 259-68).

[g. ] The manuscript says: “. . . always scorn the people.”

Hervé de Tocqueville:

I do not know if jurists inwardly scorn the government of the people, but definitely they never express this scorn; because they are sure that the ease with which they handle words will always open a role for them in the government of the people. In general, of all classes, jurists are the one in which vanity is the most developed by popular successes. This vanity directs their outwardly expressed opinions and is the foundation of their actions.

This vanity has much less effect when they have an established position as in America, but it will always be formidable when they have a position to establish, or when superiorities are found that offend them, which will always happen in a monarchy where absolute equality cannot be found and where they are too numerous for the places and for the influence that reasonably can be given to them (YTC, CIIIb, 1, p. 76).

[h. ] Hervé de Tocqueville: “They contributed even more to overturning the Restoration, although a part of their desires was fulfilled” (YTC, CIIIb, 1, p. 77).

[j. ] Hervé de Tocqueville: “There is a gap here. Alexis throws himself toward another order of ideas before going deeply enough into those that precede. One or two more paragraphs are necessary here in order to explain more clearly the motives for the conduct of the jurists in 1789 and 1830” (YTC, CIIIb, 1, p. 77).

[k. ] Hervé de Tocqueville: “That is not exact; the English aristocracy only makes itself the champion of its privileges and of those of the clergy” (YTC, CIIIb, 1, pp. 77-78).

[m. ] Édouard de Tocqueville:

The sense of this paragraph must necessarily be changed, for this reflection could apply to all those of ambition, to all agitators, to all the anarchists of the world, as well as to jurists. There is no revolutionary who, reaching the first rank, does not reveal a conservative spirit, that is to say, who does not want to conserve this rank, that speaks for itself. So you must not, after saying that jurists do not have anarchic tendencies, give as proof their conduct and their passions that from this paragraph are precisely those of the anarchists of all times and in all places. Couldn’t you say: I am saying that in a society where jurists will occupy without dispute the rank that legitimately belongs to them, their spirit, etc? (YTC, CIIIb, 1, pp. 68-69).

[n. ] Hervé de Tocqueville:

As for me, I believe that this will always be a nearly insoluble problem for a king. It would be necessary that near the sovereign there were neither court, nor in the State any great superiority that offended the vanity of the jurists. One objects that they love Louis-Philippe. That comes from the contempt that he inspires in them and that precisely makes each one of them believe he has the right to consider himself above Louis-Philippe, though he is the king. Alexis must take care not to be caught in a paradox, as much here as in what follows (YTC, CIIIb, 1, p. 78).

[o. ] “≠In America the second guarantee of liberty is found in the constitution of the judicial power. The absence of administrative centralization is a happy circumstance more than a result of the wisdom of the law-maker. But the judicial power in the United States is a barrier raised by design against the omnipotence of the majority. You can consider it as the only powerful or real obstacle that the American laws have placed in the path of the people≠” (YTC, CVh, 4, pp. 16-17).

[p. ] In the margin: “≠It is to jurists that democracy owes the ability to govern.≠”

[q. ] In the margin: “≠Perhaps put here the large piece added at Baugy.≠”

[r. ] I am not saying that the aristocratic spirit in the United States is found only among jurists; the rich in America, as everywhere else, certainly have great instincts for order and preservation. But they do not form a corps; they are not united together by shared habits, ideas, tastes. There is no intellectual bond that gathers their collective strength; they do not make a corps. The people distrust them and do not mix them into public affairs, while the jurists, who have more or less the same instincts as the rich, do not cause the people any fear (YTC, CVj, 2, pp. 17-18).

[t. ] A lawyer from Montgomery, in Alabama, had, on 6 January 1832, drawn the attention of the author to this fact (nonalphabetic notebooks 1 and 2, YTC, BIIa, and Voyage, OC, V, 1, pp. 140-41).

[u. ] Tocqueville considers this question in the last pages of chapter II of the first part of the first volume.

[w. ] Jury./

The jury is at the very same time an energetic means to make the people rule and the most effective means to teach them to rule./

Since I am on the judicial system, I want to talk about the jury./

Democratic or aristocratic, but never monarchical, always republican./

[In the margin: As for me, I find that when you deal with the jury the political point of view absorbs all others so to speak; the jury is above all a political institution; it is from this point of view that you must always judge it.] There would be a book to do on the ways in which the Americans make the responsibility of the jury apply in criminal and civil matters, but here I only want to consider it from the political point of view (YTC, CVh, 5, p. 31).

These and other ideas had been sketched by Tocqueville in two notes dated respectively 11 October 1831 and 12 January 1832 (pocket notebooks 3, 4 and 5, YTC, BIIa, and Voyage, OC, V, 1, pp. 181-82, 201-2). The travel notebooks contain numerous references to the jury, especially notebook F, which is dedicated exclusively to civil and criminal law in America. On the role of the jury in civil matters, see the conversation of 21 September 1831 with Senator Francis Gray and the conversation with a lawyer from Montgomery (nonalphabetic notebooks 2 and 3, YTC, BIIa, and Voyage, OC, V, 1, pp. 91 and 142). During his journey, Tocqueville attended a hearing in a circuit court (George W. Pierson, Tocqueville and Beaumont in America, chapter XXVIII).

Tocqueville considers that mores and circumstances act as well against tyranny of the majority. These two other obstacles to the power of the majority are set forth in chapter IX, which initially concluded the work. See note a on p. 277 and note e on p. 452.

[2. ] It would be something quite useful and curious to consider the jury as a judicial institution, to appreciate the effects that it produces in the United States and to try to find out in what way the Americans have made use of it. You could find in the examination of this question alone the subject of an entire book and a book interesting for France. You would try to find out there, for example, what portion of American institutions relative to the jury could be introduced among us and with the help of what gradual process. The American state that would provide the most light on this subject would be the state of Louisiana. Louisiana contains a mixed population of French and English. The two sets of law are found there face to face like the two peoples and combine little by little with each other. The most useful books to consult would be the collection of the laws of Louisiana in two volumes, entitled Digeste des lois de la Louisiane; and perhaps even more a course-book on civil procedure written in the two languages and entitled: Traité sur les règles des actions civiles, printed in 1830 in New Orleans, published by Buisson. This work presents a special advantage; it provides to the French an accurate and authentic explanation of English legal terms. The language of the law forms something like a separate language among all peoples, and among the English more than among any other.

[3. ] All the English and American jurists are unanimous on this point. Mr. Story, Justice of the Supreme Court of the United States, in his [very fine] treatise on the federal Constitution returns again to the excellence of the institution of the jury in civil matters: “The inestimable privilege of a trial by Jury in civil cases [is (ed.)],” he says, “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 III, ch. XXXVIII [p. 654 (ed.)]).

[4. ] If you wanted to establish the utility of the jury as judicial institution, you would have many other arguments to offer, and among others the following:

As you introduce jurors into affairs, you can without inconvenience diminish the number of judges; this is a great advantage. When judges are very numerous, each day death creates a gap in the judicial hierarchy and opens new places for those who survive. So the ambition of the magistrates is continually in suspense and makes them naturally depend on the majority or on the man who appoints to empty posts: then you advance in the courts like you gain rank in the army. It is a state of things entirely contrary to the good administration of justice and to the intentions of the legislator. You want the judges to be irremovable so that they remain free; but what good is it that no one can take their independence away from them if they willingly sacrifice it themselves?

When judges are very numerous, it is impossible not to find many incompetent men among them: for a great magistrate is not an ordinary man. Now, I do not know if a half-enlightened court is not the worst of all combinations in order to attain the ends that are set when establishing the courts of justice.

As for me, I would prefer to abandon the decision in a trial to ignorant jurors led by a skillful magistrate, than to leave it to judges, the majority of whom would have only an incomplete knowledge of jurisprudence and of the laws.

[5. ] An important remark must be made however:

The institution of the jury, it is true, gives to the people a general right of control over the actions of the citizens, but it does not provide them with the means to exercise this control in all cases or in an always tyrannical manner.

When an absolute prince has the right to have crimes judged by his appointees, the fate of the accused is so to speak fixed in advance. But were the people resolved to condemn, the composition of the jury and its lack of accountability would still offer some favorable chances to the innocent.

[x. ] To the side: “<In note if included.

“≠The cause for it is that the first attached more value to absolute power than to the right to exercise it [v: the appearance] while the second still preferred the aspect of the thing to the thing itself≠ {have the right to do everything rather than to use it.}>”

[y. ] Édouard de Tocqueville:

“I would like an immense step instead of an immense advance, because a step may not be an advance and it is still very doubtful that it is one in this case. In any case I do not think that you wish to express yourself in this regard or that you should.

“This expression of advance, moreover, implies blame for the Bourbons who granted it without knowing, that is to say against their will. While the word step cannot include this sense” (YTC, CIIIb, 1, p. 66).

[6. ] This is true for all the more reason when the jury is applied only to certain criminal affairs.

[7. ] Federal judges almost always decide alone questions that touch most closely on the government of the country.

[z. ] Among Beaumont’s documents relative to the discussion of the constitutional committee of 1848, the following note is found, which gives an account of an intervention by Tocqueville concerning the jury: “Tocqueville sees a disadvantage in an immediate, absolute and general application of the jury in civil matters. Singular mixture sometimes of fact and law. Necessity of very enlightened public mores. Greater necessity of a more capable jury because of the difficulty of functions. Who says jury says suppression in nearly all cases of the double degree of jurisdiction. Great difficulty in leading the jury” (YTC, Beaumont, DIVk).

[(B) Page 445] In order to be county voters (those who represent landed property) before the reform bill passed in 1832, it was necessary to have by sole ownership or by lifetime lease capital in land bringing in 40 shillings in net income. This law was made under Henry VI, about 1450. It has been calculated that 40 shillings at the time of Henry VI would be equivalent to 30 pounds sterling today. This amount adopted in the XVth century was allowed to remain, however, until 1832, which proves how much the English constitution became democratic over time, even while appearing immobile. See Delolme, book I, ch. IV; also see Blackstone, book I, ch. IV.

English jurors are chosen by the county sheriff (Delolme, vol. I, ch XII [XIII (ed.)]. The sheriff is in general a prominent man of the county; he fulfills judicial and administrative functions; he represents the King, and is named by him every year (Blackstone, book I, ch. IX). His position puts him above suspicion of corruption on the part of the parties; if, moreover, his impartiality is put in doubt, the jury that he has named can be recused en masse, and then another officer is charged with choosing new jurors. See Blackstone, book III, ch. XXIII.

To have the right to be a juror, it is necessary to own capital in land, with a value of at least 10 shillings in income. (Blackstone, book III, ch. XXIII). You will note that this condition was imposed during the reign of William and Mary, that is toward 1700, a period when the value of money was infinitely higher than today. You see that the English based their jury system, not on capacity but on landed property, like all their other political institutions.

In the end farmers were admitted to the jury, but it was required that their leases be very long, and that they have a net income of 20 shillings, apart from the rent. (Blackstone, idem.)

[(C) Page 445] The federal constitution introduced the jury into the courts of the Union in the same way that the states had introduced it into their particular courts; in addition, the federal constitution did not establish its own rules about the choice of jurors. Federal courts draw from the ordinary list of jurors that each state has drawn up for its use. So it is the laws of the states that must be examined to know the theory of the composition of the jury in America. See Story’s Commentaries on the Constitution, book III, ch. XXXVIII, pp. 654-59; Sergeant’s Constitutional Law, p. 165. Also see the federal laws of 1789, 1800 and 1820 on the subject.

To show clearly the principles of the Americans regarding the composition of the jury, I have drawn upon the laws of states far from each other. Here are the general ideas that can be derived from this examination.

In America, all citizens who are voters have the right to be jurors. The large state of New York has, however, established a slight difference between those two capacities; but it is in the direction opposite to our laws, that is to say, there are fewer jurors than voters in the state of New York. In general, you can say that in the United States the right to be part of a jury, like the right to elect representatives, extends to everyone; but the exercise of this right is not put indiscriminately into all hands.

Each year a body of municipal or district magistrates, called selectmen in New England, supervisors in the state of New York, trustees in Ohio, parish sheriffs in Louisiana, choose for each district a certain number of citizens having the right to be jurors, and among whom they assume the capacity to be so. These magistrates, being elected themselves, do not excite distrust; their powers are very extensive and very arbitrary, like those of republican magistrates in general, and it is said that they often use those powers, above all in New England, in order to remove unworthy or incompetent jurors.

The names of the jurors thus chosen are sent on to the county court, and from the totality of these names, the jury that must deliver the verdict in each affair is drawn by lot.

The Americans have, moreover, tried by all possible means to put the jury within reach of the people, and to make it as little burdensome as possible. Since the jurors are very numerous, each person’s turn comes scarcely every three years. The sessions are held in the chief seat of each county; the county corresponds more or less to our arrondissement. Thus, the court comes to be located near the jury, instead of drawing the jury close to it, as in France; finally the jurors are paid, either by the state, or by the parties. They receive, in general, one dollar (5.42 fr.) per day, apart from travel expenses. In America the jury is still regarded as a burden, but it is a burden easy to bear, and one you submit to without difficulty.

See Brevard’s Digest of the Public Statute Law of South Carolina, 2nd vol., p. 338; id., vol. I, pp. 454 and 456; id., vol. II, p. 218.

See The General Laws of Massachusetts revised and published by authority of the legislature, vol. II, pp. 331, 187 [141].

See The Revised Statutes of the State of New York, vol. II, pp. 720, 411, 717, 643.

See The Statute Law of the State of Tennessee, vol. I, p. 209.

See Acts of the State of Ohio, pp. 95 and 210.

See Digeste général des actes de la législature de la Louisiane, vol. II, p. 55.

[(D) Page 449] When you closely examine the constitution of the civil jury among the English, you easily discover that the jurors never escape the control of the judge.

It is true that the verdict of the jury, civil as well as criminal, generally includes fact and law in a simple statement. Example: A house is claimed by Peter as one he bought, here is the fact. His adversary raises the objection of the incompetence of the seller, here is the law. The jury limits itself to saying that the house will be put back in Peter’s hands; thus it decides fact and law. When introducing the jury in civil matters, the English did not keep the infallibility of the opinion of the jurors that they granted in criminal matters, when the verdict is favorable.

If the judge thinks that the verdict has made a false application of the law, he can refuse to receive it, and send the jurors back to deliberate.

If the judge allows the verdict without comment, the proceedings are still not entirely settled: there are several paths of recourse open against the decision. The principal one consists of asking the courts to void the verdict and to assemble a new jury. It is true to say that such a demand is rarely granted and never more than two times. Nonetheless, I saw the case happen before my eyes. See Blackstone, book III, ch. XXIV; id., book III, ch. XXV.