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Of the Jury in the United States Considered as a Political Institution w - 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.


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

CHAPTER 9

Of the Principal Causes That Tend to Maintain the Democratic Republic in the United Statesa

The democratic republicb survives in the United States. The principal goal of this book has been to make the causes of this phenomenon understood.

The flow of my subject carried me, despite myself, close to several of these causes that I pointed out only from afar in passing. I could not deal with others. And those that I was allowed to expand upon have been left behind as if buried under details.

So I thought that before going further and speaking about the future, I had to gather together in a narrow scope all the reasons that explain the present.

In this type of summary I will be brief, for I will take care to recall only very summarily to the reader what he already knows, and among the facts that I have not yet had the occasion to put forth, I will choose only the principal ones.

I thought that all the causes that tend to maintain the democratic republicc in the United States could be reduced to three:d

The particular and accidental situation in which Providence placed the Americans forms the first;

The second results from laws;

The third follows from habits and mores.

[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).

[a. ] At first this chapter was the last in the book; the tenth was added later.

Melvin Richter (“The Uses of Theory: Tocqueville’s Adaptation of Montesquieu,” in Essays in Theory and History, Cambridge: Harvard University Press, 1970, pp. 74-102) compares the method of Tocqueville in this chapter with that followed by Montesquieu in Esprit des lois.

[b. ] In the manuscript: “A large democratic republic . . .”

[c. ] The manuscript says: “. . . the large democratic republic . . .”

[d. ] ≠Of the three causes the least influential is that of laws and it is, so to speak, the only one that depends on man. Peoples cannot change their position and the first conditions of their existence. A nation can in the long run modify its habits and its mores, but a generation cannot succeed in doing so. It can only change the laws. [In the margin: But what can the best laws do without circumstances and mores?] Now, of the three causes that we are speaking about, the least influential is precisely that which results from laws. So not only does man not exercise power around himself, but he possesses so to speak none over himself and remains almost completely a stranger to his own fate≠ (YTC, CVh, 4, p. 19).

[(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.