ABSENCE OF CENTRAL ADMINISTRATION.
The national Majority does not pretend to conduct all Business.—Is obliged to employ the town and county Magistrates3 to execute its supreme4 Decisions.
I have already pointed5 out the distinction which is to be made between a centralized government and a centralized administration. The former exists in America, but the latter is nearly unknown there. If the directing power of the American communities had both these instruments of government at its disposal, and united the habit of executing its own commands to the right of commanding; if, after having established the general principles of government, it descended6 to the details of public business; and if, having regulated the great interests of the country, it would penetrate8 into the privacy of individual interest, freedom would soon be banished9 from the New World.
But in the United States the majority, which so frequently displays the tastes and the propensities10 of a despot, is still destitute11 of the more perfect instruments of tyranny.
In the American republics the activity of the central government has never as yet been extended beyond a limited number of objects sufficiently12 prominent to call forth13 its attention. The secondary affairs of society have never been regulated by its authority; and nothing has hitherto betrayed its desire of interfering14 in them. The majority is become more and more absolute, but it has not increased the prerogatives15 of the central government; those great prerogatives have been confined to a certain sphere; and although the despotism of the majority may be galling17 upon one point, it cannot be said to extend to all. However the predominant party of the nation may be carried away by its passions; however ardent18 it may be in the pursuit of its projects, it cannot oblige all the citizens to comply with its desire in the same manner, and at the same time, throughout the country. When the central government which represents that majority has issued a decree, it must intrust the execution of its will to agents, over whom it frequently has no control, and whom it cannot perpetually direct. The townships, municipal bodies, and counties, may therefore be looked upon as concealed20 breakwaters, which check or part the tide of popular excitement. If an oppressive law were passed, the liberties of the people would still be protected by the means by which that law would be put in execution: the majority cannot descend7 to the details, and (as I will venture to style them) the puerilities of administrative21 tyranny. Nor does the people entertain that full consciousness of its authority, which would prompt it to interfere22 in these matters; it knows the extent of its natural powers, but it is unacquainted with the increased resources which the art of government might furnish.
This point deserves attention; for if a democratic republic, similar to that of the United States, were ever founded in a country where the power of a single individual had previously23 subsisted24, and the effects of a centralized administration had sunk deep into the habits and the laws of the people, I do not hesitate to assert, that in that country a more insufferable despotism would prevail than any which now exists in the absolute monarchies27 of Europe; or indeed than any which could be found on this side the confines of Asia.
THE PROFESSION OF THE LAW IN THE UNITED STATES SERVES TO COUNTERPOISE THE DEMOCRACY.
Utility of discriminating29 the natural Propensities of the Members of the legal Profession.—These Men called upon to act a prominent Part in future Society.—In what Manner the peculiar30 Pursuits of Lawyers give an aristocratic turn to their Ideas.—Accidental Causes which may check this Tendency.—Ease with which the Aristocracy coalesces31 with legal Men.—Use of Lawyers to a Despot.—The Profession of the Law constitutes the only aristocratic Element with which the natural Elements of Democracy will combine.—Peculiar Causes which tend to give an aristocratic turn of Mind to the English and American Lawyer.—The Aristocracy of America is on the Bench and at the Bar.—Influence of Lawyers upon American Society.—Their peculiar magisterial33 Habits affect the Legislature, the Administration, and even the People.
In visiting the Americans and in studying their laws, we perceive that the authority they have intrusted to members of the legal profession, and the influence which these individuals exercise in the government, is the most powerful existing security against the excesses of democracy.
This effect seems to me to result from a general cause which it is useful to investigate, since it may produce analogous34 consequences elsewhere.
The members of the legal profession have taken an important part in all the vicissitudes35 of political society in Europe during the last five hundred years. At one time they have been the instruments of those who are invested with political authority, and at another they have succeeded in converting political authorities into their instrument. In the middle ages they afforded a powerful support to the crown; and since that period they have exerted themselves to the utmost to limit the royal prerogative16. In England they have contracted a close alliance with the aristocracy; in France they have proved to be the most dangerous enemies of that class. It is my object to inquire whether, under all these circumstances, the members of the legal profession have been swayed by sudden and momentary36 impulses; or whether they have been impelled37 by principles which are inherent in their pursuits, and which will always recur38 in history. I am incited39 to this investigation40 by reflecting that this particular class of men will most likely play a prominent part in that order of things to which the events of our time are giving birth.
Men who have more especially devoted41 themselves to legal pursuits, derive42 from those occupations certain habits of order, a taste for formalities, and a kind of instinctive43 regard for the regular connexion of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.
The special information which lawyers derive from their studies, ensures them a separate station in society: and they constitute a sort of privileged body in the scale of intelligence. This notion of their superiority perpetually recurs44 to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known: they serve as arbiters45 between the citizens; and the habit of directing the blind passions of parties in litigation to their purpose, inspires them with a certain contempt for the judgment47 of the multitude. To this it may be added, that they naturally constitute a body; not by any previous understanding, or by any agreement which directs them to a common end; but the analogy of their studies and the uniformity of their proceedings48 connect their minds together, as much as a common interest would combine their endeavors.
A portion of the tastes and of the habits of the aristocracy may consequently be discovered in the characters of men in the profession of the law. They participate in the same instinctive love of order and of formalities; and they entertain the same repugnance49 to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly50; for they, like most other men, are governed by their private interests and the advantages of the moment.
In a state of society in which the members of the legal profession are prevented from holding that rank in the political world which they enjoy in private life, we may rest assured that they will be the foremost agents of revolution. But it must then be inquired whether the cause which induces them to innovate51 and to destroy is accidental, or whether it belongs to some lasting52 purpose which they entertain. It is true that lawyers mainly contributed to the overthrow53 of the French monarchy54 in 1789; but it remains55 to be seen whether they acted thus because they had studied the laws, or because they were prohibited from co-operating in the work of legislation.
Five hundred years ago the English nobles headed the people, and spoke56 in its name; at the present time, the aristocracy supports the throne, and defends the royal prerogative. But aristocracy has, notwithstanding this, its peculiar instincts and propensities. We must be careful not to confound isolated57 members of a body with the body itself. In all free governments, of whatsoever58 form they may be, members of the legal profession may be found at the head of all parties. The same remark is also applicable to the aristocracy; for almost all the democratic convulsions which have agitated59 the world have been directed by nobles.
A privileged body can never satisfy the ambition of all its members; it has always more talents and more passions than it can find places to content and to employ; so that a considerable number of individuals are usually to be met with, who are inclined to attack those very privileges, which they find it impossible to turn to their own account.
I do not, then, assert that all the members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them usually are so. In a community in which lawyers are allowed to occupy, without opposition61, that high station which naturally belongs to them, their general spirit will be eminently62 conservative and anti-democratic. When an aristocracy excludes the leaders of that profession from its ranks, it excites enemies which are the more formidable to its security as they are independent of the nobility by their industrious63 pursuits; and they feel themselves to be its equal in point of intelligence, although they enjoy less opulence64 and less power. But whenever an aristocracy consents to impart some of its privileges to these same individuals, the two classes coalesce32 very readily, and assume, as it were, the consistency65 of a single order of family interests.
I am, in like manner, inclined to believe that a monarch26 will always be able to convert legal practitioners66 into the most serviceable instruments of his authority. There is a far greater affinity67 between this class of individuals and the executive power, than there is between them and the people; just as there is a greater natural affinity between the nobles and monarch, than between the nobles and the people, although the higher orders of society have occasionally resisted the prerogative of the crown in concert with the lower classes.
Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, that if they prize the free institutions of their country much, they nevertheless value the legality of those institutions far more; they are less afraid of tyranny than of arbitrary power: and provided that the legislature takes upon itself to deprive men of their independence, they are not dissatisfied.{189}
I am therefore convinced that the prince who, in presence of an encroaching democracy, should endeavor to impair68 the judicial69 authority in his dominions70, and to diminish the political influence of lawyers, would commit a great mistake. He would let slip the substance of authority to grasp at the shadow. He would act more wisely in introducing men connected with the law into the government; and if he intrusted them with the conduct of a despotic power, bearing some marks of violence, that power would most likely assume the external features of justice and of legality in their hands.
The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince, are excluded from the government, they are sure to occupy the highest stations in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes to combine with the aristocracy, and to support the crown, they are naturally brought into contact with the people by their interests. They like the government of democracy, without participating in its propensities, and without imitating its weaknesses; whence they derive a twofold authority from it and over it. The people in democratic states does not mistrust the members of the legal profession, because it is well known that they are interested in serving the popular cause; and it listens to them without irritation71, because it does not attribute to them any sinister72 designs. The object of lawyers is not, indeed, to overthrow the institutions of democracy, but they constantly endeavor to give it an impulse which diverts it from its real tendency, by means which are foreign to its nature. Lawyers belong to the people by birth and interest, to the aristocracy by habit and by taste, and they may be looked upon as the natural bond and connecting link of the two great classes of society.
The profession of the law is the only aristocratic element which can be amalgamated73 without violence with the natural elements of democracy, and which can be advantageously and permanently74 combined with them. I am not unacquainted with the defects which are inherent in the character of that body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could subsist25 at the present time, if the influence of lawyers in public business did not increase in proportion to the power of the people.
This aristocratic character, which I hold to be common to the legal profession, is much more distinctly marked in the United States and in England than in any other country. This proceeds not only from the legal studies of the English and American lawyers, but from the nature of the legislation, and the position which those persons occupy, in the two countries. The English and the Americans have retained the law of precedents75; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their forefathers76. In the mind of an English or an American lawyer, a taste and a reverence77 for what is old are almost always united to a love of regular and lawful78 proceedings.
This predisposition has another effect upon the character of the legal profession and upon the general course of society. The English and American lawyers investigate what has been done; the French advocate inquires what should have been done: the former produces precedents; the latter reasons. A French observer is surprised to hear how often an English or American lawyer quotes the opinions of others, and how little he alludes79 to his own; while the reverse occurs in France. There, the most trifling80 litigation is never conducted without the introduction of an entire system of ideas peculiar to the counsel employed; and the fundamental principles of law are discussed in order to obtain a perch81 of land by the decision of the court. This abnegation of his own opinion, and this implicit82 deference83 to the opinion of his forefathers, which are common to the English and American lawyer, this subjection of thought which he is obliged to profess28, necessarily give him more timid habits and more sluggish85 inclinations86 in England and America than in France.
The French codes are often difficult of comprehension, but they can be read by every one; nothing, on the other hand, can be more impenetrable to the uninitiated than a legislation founded upon precedents. The indispensable want of legal assistance which is felt in England and in the United States, and the high opinion which is generally entertained of the ability of the legal profession, tend to separate it more and more from the people, and to place it in a distinct class. The French lawyer is simply a man extensively acquainted with the statutes87 of his country; but the English or American lawyer resembles the hierophants of Egypt, for, like them, he is the sole interpreter of an occult science.
{The remark that English and American lawyers found their opinions and their decisions upon those of their forefathers, is calculated to excite surprise in an American reader, who supposes that law, as a prescribed rule of action, can only be ascertained89 in cases where the statutes are silent, by reference to the decisions of courts. On the continent, and particularly in France, as the writer of this note learned from the conversation of M. De Tocqueville, the judicial tribunals do not deem themselves bound by any precedents, or by any decisions of their predecessors90 or of the appellate tribunals. They respect such decisions as the opinions of distinguished91 men, and they pay no higher regard to their own previous adjudications of any case. It is not easy to perceive how the law can acquire any stability under such a system, or how any individual can ascertain88 his rights, without a lawsuit92. This note should not be concluded without a single remark upon what the author calls an implicit deference to the opinions of our forefathers, and abnegation of our own opinions. The common law consists of principles founded on the common sense of mankind, and adapted to the circumstances of man in civilized93 society. When these principles are once settled by competent authority, or rather declared by such authority, they are supposed to express the common sense and the common justice of the community; and it requires but a moderate share of modesty94 for any one entertaining a different view of them, to consider that the disinterested95 and intelligent judges who have declared them, are more likely to be right than he is. Perfection, even in the law, he does not consider attainable96 by human beings, and the greatest approximation to it is all he expects or desires. Besides, there are very few cases of positive and abstract rule, where it is of any consequence which, of any two or more modifications97 of it, should be adopted. The great point is, that there should be a rule by which conduct may be regulated. Thus, whether in mercantile transactions notice of a default by a principal shall be given to an endorser98, or a guarantor, and when and how such notice shall be given, are not so important in themselves, as it is that there should be some rule to which merchants may adapt themselves and their transactions. Statutes cannot or at least do not, prescribe the rules in a large majority of cases. If then they are not drawn99 from the decision of courts, they will not exist, and men will be wholly at a loss for a guide in the most important transactions of business. Hence the deference paid to legal decisions. But this is not implicit, as the author supposes. The course of reasoning by which the courts have come to their conclusions, is often assailed100 by the advocate and shown to be fallacious, and the instances are not unfrequent of courts disregarding prior decisions and overruling them when not fairly deducible from sound reason.
Again, the principles of the common law are flexible, and adapt themselves to changes in society, and a well-known maxim101 in our system, that when the reason of the law ceases, the law itself ceases, has overthrown102 many an antiquated103 rule. Within these limits, it is conceived that there is range enough for the exercise of all the reason of the advocate and the judge, without unsettling everything and depriving the conduct of human affairs of all guidance from human authority;—and the talent of our lawyers and courts finds sufficient exercise in applying the principles of one case to facts of another.—American Editor.}
The station which lawyers occupy in England and America exercises no less an influence upon their habits and their opinions. The English aristocracy, which has taken care to attract to its sphere whatever is at all analogous to itself, has conferred a high degree of importance and of authority upon the members of the legal profession. In English society lawyers do not occupy the first rank, but they are contented104 with the station assigned to them; they constitute, as it were, the younger branch of the English aristocracy, and they are attached to their elder brothers, although they do not enjoy all their privileges. The English lawyers consequently mingle105 the tastes and the ideas of the aristocratic circles in which they move, with the aristocratic interest of their profession.
And indeed the lawyer-like character which I am endeavoring to depict106, is most distinctly to be met with in England: there laws are esteemed107 not so much because they are good, as because they are old; and if it be necessary to modify them in any respect, or to adapt them to the changes which time operates in society, recourse is had to the most inconceivable contrivances in order to uphold the traditionary fabric108, and to maintain that nothing has been done which does not square with the intentions, and complete the labors109, of former generations. The very individuals who conduct these changes disclaim110 all intention of innovation, and they had rather resort to absurd expedients111 than plead guilty of so great a crime. This spirit more especially appertains to the English lawyers; they seem indifferent to the real meaning of what they treat, and they direct all their attention to the letter, seeming inclined to infringe112 the rules of common sense and of humanity, rather than to swerve113 one tittle from the law. The English legislation may be compared to the stock of an old tree, upon which lawyers have engrafted the most various shoots, with the hope, that, although their fruits may differ, their foliage114 at least will be confounded with the venerable trunk which supports them all.
In America there are no nobles or literary men, and the people is apt to mistrust the wealthy; lawyers consequently form the highest political class, and the most cultivated circle of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation115, that it is not composed of the rich, who are united together by no common tie, but that it occupies the judicial bench and the bar.
The more we reflect upon all that occurs in the United States, the more shall we be persuaded that the lawyers, as a body, form the most powerful, if not the only counterpoise to the democratic element. In that country we perceive how eminently the legal profession is qualified116 by its powers, and even by its defects, to neutralize117 the vices118 which are inherent in popular government. When the American people is intoxicated119 by passion, or carried away by the impetuosity of its ideas, it is checked and stopped by the almost invisible influence of its legal counsellors, who secretly oppose their aristocratic propensities to its democratic instincts, their superstitious120 attachment121 to what is antique to its love of novelty, their narrow views to its immense designs, and their habitual122 procrastination123 to its ardent impatience124.
The courts of justice are the most visible organs by which the legal profession is enabled to control the democracy. The judge is a lawyer, who, independently of the taste for regularity125 and order which he has contracted in the study of legislation, derives126 an additional love of stability from his own inalienable functions. His legal attainments127 have already raised him to a distinguished rank among his fellow-citizens; his political power completes the distinction of his station, and gives him the inclinations natural to privileged classes.
Armed with the power of declaring the laws to be unconstitutional,{190} the American magistrate2 perpetually interferes128 in political affairs. He cannot force the people to make laws, but at least he can oblige it not to disobey its own enactments129, or to act inconsistently with its own principles. I am aware that a secret tendency to diminish the judicial power exists in the United States; and by most of the constitutions of the several states, the government can, upon the demand of the two houses of the legislature, remove the judges from their station. By some other constitutions the members of the tribunals are elected, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period, that the attack which is made upon the judicial power has affected130 the democratic republic itself.
It must not, however, be supposed that the legal spirit of which I have been speaking has been confined in the United States to the courts of justice; it extends far beyond them. As the lawyers constitute the only enlightened class which the people does not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative131 assemblies, and they conduct the administration; they consequently exercise a powerful influence upon the formation of the law, and upon its execution. The lawyers are, however, obliged to yield to the current of public opinion, which is too strong for them to resist it; but it is easy to find indications of what their conduct would be, if they were free to act as they chose. The Americans who have made such copious132 innovations in their political legislation, have introduced very sparing alterations133 in their civil laws, and that with great difficulty, although those laws are frequently repugnant to their social condition. The reason of this is, that in matters of civil law the majority is obliged to defer84 to the authority of the legal profession, and that the American lawyers are disinclined to innovate when they are left to their own choice.
It is curious for a Frenchman, accustomed to a very different state of things, to hear the perpetual complaints which are made in the United States, against the stationary134 propensities of legal men, and their prejudices in favor of existing institutions.
The influence of the legal habits which are common in America extends beyond the limits I have just pointed out. Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate; hence all parties are obliged to borrow the ideas, and even the language, usual in judicial proceedings, in their daily controversies135. As most public men are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the affairs of the country. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates136 beyond their walls into the bosom137 of society, where it descends138 to the lowest classes, so that the whole people contracts the habits and the tastes of the magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility139 to the exigencies140 of the time, and accommodates itself to all the movements of the social body: but this party extends over the whole community, and it penetrates into all classes of society; it acts upon the country imperceptibly, but it finally fashions it to suit its purposes.
TRIAL BY JURY IN THE UNITED STATES CONSIDERED AS A POLITICAL INSTITUTION.
Trial by Jury, which is one of the Instruments of the Sovereignty of the People, deserves to be compared with the other Laws which establish that sovereignty.—Composition of the Jury in the United States.—Effect of Trial by Jury upon the national Character.—It educates the People.—It tends to establish the Authority of the Magistrates, and to extend a knowledge of Law among the People.
Since I have been led by my subject to recur to the administration of justice in the United States, I will not pass over this point without adverting141 to the institution of the jury. Trial by jury may be considered in two separate points of view: as a judicial, and as a political institution. If it entered into my present purpose to inquire how far trial by jury (more especially in civil cases) contributes to ensure the best administration of justice, I admit that its utility might be contested. As the jury was first introduced at a time when society was in an uncivilized state, and when courts of justice were merely called upon to decide on the evidence of facts, it is not an easy task to adapt it to the wants of a highly civilized community, when the mutual142 relations of men are multiplied to a surprising extent, and have assumed the enlightened and intellectual character of the age.{191}
My present object is to consider the jury as a political institution; and any other course would divert me from my subject. Of trial by jury, considered as a judicial institution, I shall here say but very few words. When the English adopted trial by jury they were a semi-barbarous people; they are become, in course of time, one of the most enlightened nations of the earth; and their attachment to this institution seems to have increased with their increasing cultivation143. They soon spread beyond their insular144 boundaries to every corner of the habitable globe; some have formed colonies, others independent states; the mother-country has maintained its monarchical145 constitution; many of its offspring have founded powerful republics; but wherever the English have been, they have boasted of the privilege of trial by jury.{192} They have established it, or hastened to re-establish it, in all their settlements. A judicial institution which obtains the suffrages147 of a great people for so long a series of ages, which is zealously148 renewed at every epoch149 of civilisation150, in all the climates of the earth, and under every form of human government, cannot be contrary to the spirit of justice.{193}
I turn, however, from this part of the subject. To look upon the jury as a mere60 judicial institution, is to confine our attention to a very narrow view of it; for, however great its influence may be upon the decisions of the law-courts, that influence is very subordinate to the powerful effects which it produces on the destinies of the community at large. The jury is above all a political institution, and it must be regarded in this light in order to be duly appreciated.
By the jury, I mean a certain number of citizens chosen indiscriminately, and invested with a temporary right of judging. Trial by jury, as applied151 to the repression152 of crime, appears to me to introduce an eminently republican element into the government, upon the following grounds:—
The institution of the jury may be aristocratic or democratic, according to the class of society from which the jurors are selected; but it always preserves its republican character, inasmuch as it places the real direction of society in the hands of the governed, or of a portion of the governed, instead of leaving it under the authority of the government. Force is never more than a transient element of success; and after force comes the notion of right. A government which should only be able to crush its enemies upon a field of battle, would very soon be destroyed. The true sanction of political laws is to be found in penal153 legislation, and if that sanction be wanting, the law will sooner or later lose its cogency154. He who punishes infractions of the law is therefore the real master of society. Now, the institution of the jury raises the people itself, or at least a class of citizens, to the bench of judicial authority. The institution of the jury consequently invests the people, or that class of citizens, with the direction of society.{194}
In England the jury is returned from the aristocratic portion of the nation,{195} the aristocracy makes the laws, applies the laws, and punishes all infractions of the laws; everything is established upon a consistent footing, and England may with truth be said to constitute an aristocratic republic. In the United States the same system is applied to the whole people. Every American citizen is qualified to be an elector, a juror, and is eligible155 to office.{196} The system of the jury, as it is understood in America, appears to me to be as direct and as extreme a consequence of the sovereignty of the people, as universal suffrage146. These institutions are two instruments of equal power, which contribute to the supremacy156 of the majority. All the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its direction, have destroyed or enfeebled the institution of the jury. The monarchs157 of the house of Tudor sent to prison jurors who refused to convict, and Napoleon caused them to be returned by his agents.
However clear most of these truths may seem to be, they do not command universal assent158, and in France, at least, the institution of trial by jury is still very imperfectly understood. If the question arise as to the proper qualification of jurors, it is confined to a discussion of the intelligence and knowledge of the citizens who may be returned, as if the jury was merely a judicial institution. This appears to me to be the least part of the subject. The jury is pre-eminently a political institution; it must be regarded as one form of the sovereignty of the people; when that sovereignty is repudiated159, it must be rejected; or it must be adapted to the laws by which that sovereignty is established. The jury is that portion of the nation to which the execution of the laws is intrusted, as the houses of parliament constitute that part of the nation which makes the laws; and in order that society may be governed with consistency and uniformity, the list of citizens qualified to serve on juries must increase and diminish with the list of electors. This I hold to be the point of view must worthy160 of the attention of the legislator; and all that remains is merely accessary.
I am so entirely161 convinced that the jury is pre-eminently a political institution, that I still consider it in this light when it is applied in civil causes. Laws are always unstable162 unless they are founded upon the manners of a nation: manners are the only durable163 and resisting power in a people. When the jury is reserved for criminal offences, the people only sees its occasional action in certain particular cases; the ordinary course of life goes on without its interference, and it is considered as an instrument, but not as the only instrument, of obtaining justice. This is true a fortiori when the jury is only applied to certain criminal causes.
When, on the contrary, the influence of the jury is extended to civil causes, its application is constantly palpable; it affects all the interests of the community; every one co-operates in its work: it thus penetrates into all the usages of life, it fashions the human mind to its peculiar forms, and is gradually associated with the idea of justice itself.
The institution of the jury, if confined to criminal causes, is always in danger; but when once it is introduced into civil proceedings, it defies the aggressions of time and of man. If it had been as easy to remove the jury from the manners as from the laws of England, it would have perished under Henry VIII. and Elizabeth: and the civil jury did in reality, at that period, save the liberties of the country. In whatever manner the jury be applied, it cannot fail to exercise a powerful influence upon the national character; but this influence is prodigiously164 increased when it is introduced into civil causes. The jury, and more especially the civil jury, serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues165 all classes with a respect for the thing judged, and with the notion of right. If these two elements be removed, the love of independence is reduced to a more destructive passion. It teaches men to practise equity167; every man learns to judge his neighbor as he would himself be judged: and this is especially true of the jury in civil causes; for, while the number of persons who have reason to apprehend168 a criminal prosecution169 is small, every one is liable to have a civil action brought against him. The jury teaches every man not to recoil170 before the responsibility of his own actions, and impresses him with that manly171 confidence without which political virtue172 cannot exist. It invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge toward society; and the part which they take in the government. By obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust19 of society.
The jury contributes most powerfully to form the judgment, and to increase the natural intelligence of a people; and this is, in my opinion, its greatest advantage. It may be regarded as a gratuitous173 public school ever open, in which every juror learns to exercise his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws of his country, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even by the passions of the parties. I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use which they have made of the jury in civil causes.
I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide the litigation: and I look upon it as one of the most efficacious means for the education of the people, which society can employ.
What I have hitherto said, applies to all nations; but the remark I am now about to make, is peculiar to the Americans and to democratic peoples. I have already observed that in democracies the members of the legal profession, and the magistrates, constitute the only aristocratic body which can check the irregularities of the people. This aristocracy is invested with no physical power; but it exercises its conservative influence upon the minds of men: and the most abundant source of its authority is the institution of the civil jury. In criminal causes, when society is armed against a single individual, the jury is apt to look upon the judge as the passive instrument of social power, and to mistrust his advice. Moreover, criminal causes are entirely founded upon the evidence of facts which common sense can readily appreciate; upon this ground the judge and the jury are equal. Such, however, is not the case in civil causes; then the judge appears as a disinterested arbiter46 between the conflicting passions of the parties. The jurors look up to him with confidence, and listen to him with respect, for in this instance their intelligence is completely under the control of his learning. It is the judge who sums up the various arguments with which their memory has been wearied out, and who guides them through the devious174 course of the proceedings; he points their attention to the exact question of fact, which they are called upon to solve, and he puts the answer to the question of law into their mouths. His influence upon their verdict is almost unlimited175.
If I am called upon to explain why I am but little moved by the arguments derived176 from the ignorance of jurors in civil causes, I reply, that in these proceedings, whenever the question to be solved is not a mere question of fact, the jury has only the semblance177 of a judicial body. The jury sanctions the decisions of the judge; they, by the authority of society which they represent, and he, by that of reason and of law.{197}
In England and in America the judges exercise an influence upon criminal trials which the French judges have never possessed178. The reason of this difference may easily be discovered; the English and American magistrates establish their authority in civil causes, and only transfer it afterward179 to tribunals of another kind, where that authority was not acquired. In some cases (and they are frequently the most important ones), the American judges have the right of deciding causes alone.{198} Upon these occasions they are, accidentally, placed in the position which the French judges habitually180 occupy: but they are still surrounded by the reminiscence of the jury, and their judgment has almost as much authority as the voice of the community at large, represented by that institution. Their influence extends beyond the limits of the courts; in the recreations of private life, as well as in the turmoil181 of public business, abroad and in the legislative assemblies, the American judge is constantly surrounded by men who are accustomed to regard his intelligence as superior to their own; and after having exercised his power in the decision of causes, he continues to influence the habits of thought, and the character of the individuals who took a part in his judgment.
{The remark in the text, that "in some cases, and they are frequently the most important ones, the American judges have the right of deciding causes alone," and the author's note, that "the federal judges decide, upon their own authority, almost all the questions most important to the country," seem to require explanation in consequence of their connexion with the context in which the author is speaking of the trial by jury. They seem to imply that there are some cases which ought to be tried by jury, that are decided182 by the judges. It is believed that the learned author, although a distinguished advocate in France, never thoroughly183 comprehended the grand divisions of our complicated system of law, in civil cases. First, is the distinction between cases in equity and those in which the rules of the common law govern.—Those in equity are always decided by the judge or judges, who may, however, send questions of fact to be tried in the common law courts by a jury. But as a general rule this is entirely in the discretion184 of the equity judge. Second, in cases at common law, there are questions of fact and questions of law:—the former are invariably tried by a jury, the latter, whether presented in the course of a jury trial, or by pleading, in which the facts are admitted, are always decided by the judges.
Third, cases of admiralty jurisdiction185, and proceedings in rem of an analogous nature, are decided by the judges without the intervention186 of a jury. The cases in this last class fall within the peculiar jurisdiction of the federal courts, and, with this exception, the federal judges do not decide upon their own authority any questions, which, if presented in the state courts, would not also be decided by the judges of those courts. The supreme court of the United States, from the nature of its institution as almost wholly an appellant court, is called on to decide merely questions of law, and in no case can that court decide a question of fact, unless it arises in suits peculiar to equity or admiralty jurisdiction. Indeed the author's original note is more correct than the translation. It is as follows: "Les juges fédéraux tranchent presque toujours seuls les questions qui touchent de plus près au gouvernement du pays." And it is very true that the supreme court of the United States, in particular, decides those questions which most nearly affect the government of the country, because those are the very questions which arise upon the constitutionality of the laws of congress and of the several states, the final and conclusive187 determination of which is vested in that tribunal.—American Editor.}
The jury, then, which seems to restrict the rights of magistracy, does in reality consolidate188 its power; and in no country are the judges so powerful as there where the people partakes their privileges. It is more especially by means of the jury in civil causes that the American magistrates imbue166 all classes of society with the spirit of their profession. Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.
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1
mitigate
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| vt.（使）减轻，（使）缓和 | |
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magistrate
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| n.地方行政官，地方法官，治安官 | |
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magistrates
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| 地方法官，治安官( magistrate的名词复数 ) | |
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supreme
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| adj.极度的，最重要的；至高的，最高的 | |
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pointed
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| adj.尖的，直截了当的 | |
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descended
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| a.为...后裔的，出身于...的 | |
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descend
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| vt./vi.传下来，下来，下降 | |
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penetrate
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| v.透(渗)入；刺入，刺穿；洞察，了解 | |
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banished
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| v.放逐，驱逐( banish的过去式和过去分词 ) | |
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propensities
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| n.倾向，习性( propensity的名词复数 ) | |
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destitute
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| adj.缺乏的；穷困的 | |
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sufficiently
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| adv.足够地，充分地 | |
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forth
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| adv.向前；向外，往外 | |
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interfering
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| adj. 妨碍的 动词interfere的现在分词 | |
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prerogatives
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| n.权利( prerogative的名词复数 )；特权；大主教法庭；总督委任组成的法庭 | |
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prerogative
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| n.特权 | |
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galling
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| adj.难堪的,使烦恼的,使焦躁的 | |
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ardent
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| adj.热情的，热烈的，强烈的，烈性的 | |
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19
rust
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| n.锈；v.生锈；(脑子)衰退 | |
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concealed
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| a.隐藏的，隐蔽的 | |
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administrative
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| adj.行政的，管理的 | |
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interfere
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| v.(in)干涉，干预；(with)妨碍，打扰 | |
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previously
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| adv.以前，先前（地） | |
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subsisted
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| v.（靠很少的钱或食物）维持生活，生存下去( subsist的过去式和过去分词 ) | |
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subsist
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| vi.生存，存在，供养 | |
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monarch
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| n.帝王，君主，最高统治者 | |
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monarchies
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| n. 君主政体, 君主国, 君主政治 | |
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profess
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| v.声称，冒称，以...为业，正式接受入教，表明信仰 | |
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discriminating
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| a.有辨别能力的 | |
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peculiar
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| adj.古怪的，异常的；特殊的，特有的 | |
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coalesces
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| v.联合，合并( coalesce的第三人称单数 ) | |
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coalesce
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| v.联合，结合，合并 | |
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33
magisterial
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| adj.威风的，有权威的；adv.威严地 | |
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analogous
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| adj.相似的；类似的 | |
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vicissitudes
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| n.变迁，世事变化；变迁兴衰( vicissitude的名词复数 )；盛衰兴废 | |
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momentary
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| adj.片刻的，瞬息的；短暂的 | |
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impelled
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| v.推动、推进或敦促某人做某事( impel的过去式和过去分词 ) | |
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recur
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| vi.复发，重现，再发生 | |
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incited
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| 刺激，激励，煽动( incite的过去式和过去分词 ) | |
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investigation
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| n.调查，调查研究 | |
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devoted
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| adj.忠诚的，忠实的，热心的，献身于...的 | |
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42
derive
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| v.取得；导出；引申；来自；源自；出自 | |
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instinctive
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| adj.(出于)本能的；直觉的；(出于)天性的 | |
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recurs
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| 再发生，复发( recur的第三人称单数 ) | |
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arbiters
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| 仲裁人，裁决者( arbiter的名词复数 ) | |
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arbiter
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| n.仲裁人，公断人 | |
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judgment
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| n.审判；判断力，识别力，看法，意见 | |
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proceedings
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| n.进程，过程，议程；诉讼(程序)；公报 | |
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repugnance
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| n.嫌恶 | |
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irresistibly
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| adv.无法抵抗地，不能自持地；极为诱惑人地 | |
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51
innovate
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| v.革新，变革，创始 | |
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52
lasting
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| adj.永久的，永恒的；vbl.持续，维持 | |
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53
overthrow
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| v.推翻，打倒，颠覆；n.推翻，瓦解，颠覆 | |
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54
monarchy
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| n.君主，最高统治者；君主政体，君主国 | |
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55
remains
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| n.剩余物，残留物；遗体，遗迹 | |
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56
spoke
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| n.（车轮的）辐条；轮辐；破坏某人的计划；阻挠某人的行动 v.讲，谈（speak的过去式）；说；演说；从某种观点来说 | |
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57
isolated
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| adj.与世隔绝的 | |
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58
whatsoever
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| adv.（用于否定句中以加强语气）任何；pron.无论什么 | |
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agitated
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| adj.被鼓动的，不安的 | |
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60
mere
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| adj.纯粹的；仅仅，只不过 | |
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61
opposition
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| n.反对，敌对 | |
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eminently
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| adv.突出地；显著地；不寻常地 | |
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industrious
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| adj.勤劳的，刻苦的，奋发的 | |
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opulence
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| n.财富，富裕 | |
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consistency
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| n.一贯性，前后一致，稳定性；(液体的)浓度 | |
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practitioners
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| n.习艺者，实习者( practitioner的名词复数 )；从业者（尤指医师） | |
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affinity
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| n.亲和力，密切关系 | |
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68
impair
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| v.损害，损伤；削弱，减少 | |
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judicial
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| adj.司法的，法庭的，审判的，明断的，公正的 | |
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dominions
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| 统治权( dominion的名词复数 )； 领土； 疆土； 版图 | |
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71
irritation
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| n.激怒，恼怒，生气 | |
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sinister
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| adj.不吉利的，凶恶的，左边的 | |
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amalgamated
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| v.（使）（金属）汞齐化( amalgamate的过去式和过去分词 )；（使）合并；联合；结合 | |
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74
permanently
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| adv.永恒地，永久地，固定不变地 | |
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precedents
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| 引用单元； 范例( precedent的名词复数 )； 先前出现的事例； 前例； 先例 | |
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forefathers
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| n.祖先，先人；祖先，祖宗( forefather的名词复数 )；列祖列宗；前人 | |
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reverence
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| n.敬畏，尊敬，尊严；Reverence:对某些基督教神职人员的尊称；v.尊敬，敬畏，崇敬 | |
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lawful
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| adj.法律许可的，守法的，合法的 | |
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alludes
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| 提及，暗指( allude的第三人称单数 ) | |
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trifling
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| adj.微不足道的；没什么价值的 | |
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perch
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| n.栖木，高位，杆；v.栖息，就位，位于 | |
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82
implicit
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| a.暗示的，含蓄的，不明晰的，绝对的 | |
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deference
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| n.尊重，顺从；敬意 | |
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84
defer
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| vt.推迟，拖延；vi.(to)遵从，听从，服从 | |
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sluggish
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| adj.懒惰的，迟钝的，无精打采的 | |
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inclinations
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| 倾向( inclination的名词复数 )； 倾斜； 爱好； 斜坡 | |
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statutes
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| 成文法( statute的名词复数 )； 法令； 法规； 章程 | |
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ascertain
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| vt.发现，确定，查明，弄清 | |
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ascertained
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| v.弄清，确定，查明( ascertain的过去式和过去分词 ) | |
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predecessors
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| n.前任( predecessor的名词复数 )；前辈；（被取代的）原有事物；前身 | |
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distinguished
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| adj.卓越的，杰出的，著名的 | |
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lawsuit
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| n.诉讼，控诉 | |
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civilized
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| a.有教养的，文雅的 | |
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modesty
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| n.谦逊，虚心，端庄，稳重，羞怯，朴素 | |
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disinterested
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| adj.不关心的，不感兴趣的 | |
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attainable
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| a.可达到的，可获得的 | |
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modifications
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| n.缓和( modification的名词复数 )；限制；更改；改变 | |
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endorser
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| n.背书人，代言人 | |
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drawn
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| v.拖，拉，拔出；adj.憔悴的，紧张的 | |
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assailed
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| v.攻击( assail的过去式和过去分词 )；困扰；质问；毅然应对 | |
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maxim
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| n.格言，箴言 | |
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102
overthrown
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| adj. 打翻的，推倒的，倾覆的 动词overthrow的过去分词 | |
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antiquated
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| adj.陈旧的，过时的 | |
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contented
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| adj.满意的，安心的，知足的 | |
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mingle
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| vt.使混合，使相混；vi.混合起来；相交往 | |
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depict
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| vt.描画，描绘；描写，描述 | |
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esteemed
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| adj.受人尊敬的v.尊敬( esteem的过去式和过去分词 )；敬重；认为；以为 | |
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108
fabric
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| n.织物，织品，布；构造，结构，组织 | |
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109
labors
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| v.努力争取(for)( labor的第三人称单数 )；苦干；详细分析；（指引擎）缓慢而困难地运转 | |
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110
disclaim
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| v.放弃权利，拒绝承认 | |
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111
expedients
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| n.应急有效的，权宜之计的( expedient的名词复数 ) | |
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112
infringe
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| v.违反，触犯，侵害 | |
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113
swerve
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| v.突然转向，背离；n．转向，弯曲，背离 | |
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114
foliage
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| n.叶子，树叶，簇叶 | |
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115
hesitation
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| n.犹豫，踌躇 | |
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116
qualified
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| adj.合格的，有资格的，胜任的，有限制的 | |
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117
neutralize
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| v.使失效、抵消，使中和 | |
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118
vices
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| 缺陷( vice的名词复数 )； 恶习； 不道德行为； 台钳 | |
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119
intoxicated
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| 喝醉的，极其兴奋的 | |
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120
superstitious
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| adj.迷信的 | |
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121
attachment
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| n.附属物，附件；依恋；依附 | |
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122
habitual
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| adj.习惯性的；通常的，惯常的 | |
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123
procrastination
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| n.拖延，耽搁 | |
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124
impatience
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| n.不耐烦，急躁 | |
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125
regularity
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| n.规律性，规则性；匀称，整齐 | |
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126
derives
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| v.得到( derive的第三人称单数 )；（从…中）得到获得；源于；（从…中）提取 | |
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127
attainments
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| 成就，造诣； 获得( attainment的名词复数 )； 达到； 造诣； 成就 | |
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128
interferes
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| vi. 妨碍，冲突，干涉 | |
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129
enactments
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| n.演出( enactment的名词复数 )；展现；规定；通过 | |
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affected
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| adj.不自然的，假装的 | |
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131
legislative
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| n.立法机构，立法权；adj.立法的，有立法权的 | |
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copious
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| adj.丰富的，大量的 | |
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133
alterations
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| n.改动( alteration的名词复数 )；更改；变化；改变 | |
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stationary
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| adj.固定的，静止不动的 | |
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controversies
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| 争论 | |
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136
penetrates
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| v.穿过( penetrate的第三人称单数 )；刺入；了解；渗透 | |
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137
bosom
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| n.胸，胸部；胸怀；内心；adj.亲密的 | |
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descends
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| v.下来( descend的第三人称单数 )；下去；下降；下斜 | |
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flexibility
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| n.柔韧性，弹性，（光的）折射性，灵活性 | |
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140
exigencies
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| n.急切需要 | |
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141
adverting
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| 引起注意（advert的现在分词形式） | |
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142
mutual
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| adj.相互的，彼此的；共同的，共有的 | |
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143
cultivation
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| n.耕作，培养，栽培（法），养成 | |
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insular
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| adj.岛屿的，心胸狭窄的 | |
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monarchical
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| adj. 国王的，帝王的，君主的，拥护君主制的 =monarchic | |
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suffrage
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| n.投票，选举权，参政权 | |
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suffrages
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| （政治性选举的）选举权，投票权( suffrage的名词复数 ) | |
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zealously
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| adv.热心地；热情地；积极地；狂热地 | |
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epoch
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| n.(新)时代；历元 | |
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150
civilisation
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| n.文明，文化，开化，教化 | |
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151
applied
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| adj.应用的；v.应用，适用 | |
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repression
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| n.镇压，抑制，抑压 | |
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153
penal
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| adj.刑罚的；刑法上的 | |
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154
cogency
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| n.说服力；adj.有说服力的 | |
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155
eligible
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| adj.有条件被选中的；(尤指婚姻等)合适(意)的 | |
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156
supremacy
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| n.至上；至高权力 | |
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157
monarchs
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| 君主，帝王( monarch的名词复数 ) | |
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158
assent
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| v.批准，认可；n.批准，认可 | |
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159
repudiated
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| v.（正式地）否认( repudiate的过去式和过去分词 )；拒绝接受；拒绝与…往来；拒不履行（法律义务） | |
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worthy
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| adj.(of)值得的，配得上的；有价值的 | |
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161
entirely
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| ad.全部地，完整地；完全地，彻底地 | |
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unstable
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| adj.不稳定的，易变的 | |
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163
durable
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| adj.持久的，耐久的 | |
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164
prodigiously
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| adv.异常地，惊人地，巨大地 | |
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165
imbues
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| v.使（某人/某事）充满或激起（感情等）( imbue的第三人称单数 )；使充满；灌输；激发（强烈感情或品质等） | |
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166
imbue
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| v.灌输(某种强烈的情感或意见)，感染 | |
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167
equity
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| n.公正，公平，（无固定利息的）股票 | |
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168
apprehend
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| vt.理解，领悟，逮捕，拘捕，忧虑 | |
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169
prosecution
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| n.起诉，告发，检举，执行，经营 | |
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170
recoil
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| vi.退却，退缩，畏缩 | |
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171
manly
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| adj.有男子气概的；adv.男子般地，果断地 | |
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172
virtue
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| n.德行，美德；贞操；优点；功效，效力 | |
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173
gratuitous
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| adj.无偿的，免费的；无缘无故的，不必要的 | |
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174
devious
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| adj.不坦率的，狡猾的；迂回的，曲折的 | |
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175
unlimited
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| adj.无限的，不受控制的，无条件的 | |
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176
derived
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| vi.起源；由来；衍生；导出v.得到( derive的过去式和过去分词 )；（从…中）得到获得；源于；（从…中）提取 | |
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177
semblance
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| n.外貌，外表 | |
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178
possessed
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| adj.疯狂的；拥有的，占有的 | |
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179
afterward
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| adv.后来；以后 | |
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180
habitually
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| ad.习惯地，通常地 | |
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181
turmoil
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| n.骚乱，混乱，动乱 | |
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182
decided
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| adj.决定了的，坚决的；明显的，明确的 | |
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183
thoroughly
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| adv.完全地，彻底地，十足地 | |
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184
discretion
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| n.谨慎；随意处理 | |
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185
jurisdiction
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| n.司法权，审判权，管辖权，控制权 | |
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186
intervention
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| n.介入，干涉，干预 | |
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187
conclusive
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| adj.最后的，结论的；确凿的，消除怀疑的 | |
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188
consolidate
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| v.使加固，使加强；(把...)联为一体，合并 | |
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