Kitabı oku: «American Institutions and Their Influence», sayfa 29

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 adverting 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 mutual 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 cultivation. They soon spread beyond their insular boundaries to every corner of the habitable globe; some have formed colonies, others independent states; the mother-country has maintained its monarchical constitution; many of its offspring have founded powerful republics; but 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 suffrages of a great people for so long a series of ages, which is zealously renewed at every epoch of civilisation, 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 mere 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 applied to the repression 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 penal legislation, and if that sanction be wanting, the law will sooner or later lose its cogency. 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 eligible 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 suffrage. These institutions are two instruments of equal power, which contribute to the supremacy of the majority. All the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its direction, have destroyed or enfeebled the institution of the jury. The monarchs 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 assent, 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 repudiated, it must be rejected; or it must be adapted to the laws by which that sovereignty is established. The jury is that portion of the nation to which the execution of the laws is 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 worthy of the attention of the legislator; and all that remains is merely accessary.

I am so entirely convinced that the jury is pre-eminently a political institution, that I still consider it in this light when it is applied in civil causes. Laws are always unstable unless they are founded upon the manners of a nation: manners are the only durable 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 prodigiously increased when it is introduced into civil causes. The jury, and more especially the civil jury, serves to communicate the spirit of the judges to the minds of all the citizens; and this spirit, with the habits which attend it, is the soundest preparation for free institutions. It imbues all classes with a respect for the thing judged, and with the notion of right. If these two elements be removed, the love of independence is reduced to a more destructive passion. It teaches men to practise equity; every man learns to judge his neighbor as he would himself be judged: and this is especially true of the jury in civil causes; for, while the number of persons who have reason to apprehend a criminal prosecution is small, every one is liable to have a civil action brought against him. The jury teaches every man not to recoil before the responsibility of his own actions, and impresses him with that manly confidence without which political virtue 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 rust 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 gratuitous 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 arbiter between the conflicting passions of the parties. The jurors look up to him with confidence, and listen to him with respect, for in this instance 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 devious 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 unlimited.

If I am called upon to explain why I am but little moved by the arguments derived from the ignorance of jurors in civil causes, I reply, that in these proceedings, whenever the question to be solved is not a mere question of fact, the jury has only the semblance of a judicial body. The jury 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 possessed. The reason of this difference may easily be discovered; the English and American magistrates establish their authority in civil causes, and only transfer it afterward 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 habitually 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 turmoil 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 decided by the judges. It is believed that the learned author, although a distinguished advocate in France, never thoroughly 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 discretion 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 jurisdiction, and proceedings in rem of an analogous nature, are decided by the judges without the intervention 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 conclusive determination of which is vested in that tribunal.—American Editor.}

The jury, then, which seems to restrict the rights of magistracy, does in reality consolidate 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 imbue 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.

CHAPTER XVII

PRINCIPAL CAUSES WHICH TEND TO MAINTAIN THE DEMOCRATIC REPUBLIC IN THE UNITED STATES

A democratic republic subsists in the United States; and the principal object of this book has been to account for the fact of its existence. Several of the causes which contribute to maintain the institutions of America have been voluntarily passed by, or only hinted at, as I was borne along by my subject. Others I have been unable to discuss and those on which I have dwelt most, are, as it were, buried in the details of the former part of this work.

I think, therefore, that before I proceed to speak of the future, I cannot do better than collect within a small compass the reasons which best explain the present. In this retrospective chapter I shall be succinct; for I shall take care to remind the reader very summarily of what he already knows; and I shall only select the most prominent of those facts which I have not yet pointed out.

All the causes which contribute to the maintenance of the democratic republic in the United States are reducible to three heads:

I. The peculiar and accidental situation in which Providence has placed the Americans.

II. The laws.

III. The manners and customs of the people.

ACCIDENTAL OR PROVIDENTIAL CAUSES WHICH CONTRIBUTE TO THE MAINTENANCE OF THE DEMOCRATIC REPUBLIC IN THE UNITED STATES

The Union has no Neighbors.—No Metropolis.—The Americans have had the Chances of Birth in their favor.—America an empty country.—How this circumstance contributes powerfully to the Maintenance of the democratic Republic in America.—How the American Wilds are Peopled.—Avidity of the Anglo-Americans in taking Possession of the Solitudes of the New World.—Influence of physical Prosperity upon the political Opinions of the Americans.

A thousand circumstances, independent of the will of man, concur to facilitate the maintenance of a democratic republic in the United States. Some of these peculiarities are known, the others may easily be pointed out; but I shall confine myself to the most prominent among them.

The Americans have no neighbors, and consequently they have no great wars, or financial crises, or inroads, or conquests to dread; they require neither great taxes, nor great armies, nor great generals; and they have nothing to fear from a scourge which is more formidable to republics than all these evils combined, namely, military glory. It is impossible to deny the inconceivable influence which military glory exercises upon the spirit of a nation. General Jackson, whom the Americans have twice elected to be the head of their government, is a man of violent temper and mediocre talents; no one circumstance in the whole course of his career ever proved that he is qualified to govern a free people; and indeed the majority of the enlightened classes of the Union has always been opposed to him. But he was raised to the presidency, and has been maintained in that lofty station, solely by the recollection of a victory which he gained, twenty years ago, under the walls of New Orleans; a victory which was, however, a very ordinary achievement, and which could only be remembered in a country where battles are rare. Now the people who are thus carried away by the illusions of glory, are unquestionably the most cold and calculating, the most unmilitary (if I may use the expression), and the most prosaic of all the peoples of the earth.

America has no great capital city,¹⁹⁹ whose influence is directly or indirectly felt over the whole extent of the country, which I hold to be one of the first causes of the maintenance of republican institutions in the United States. In cities, men cannot be prevented from concerting together, and from awakening a mutual excitement which prompts sudden and passionate resolutions. Cities may be looked upon as large assemblies, of which all the inhabitants are members; their populace exercises a prodigious influence upon the magistrates, and frequently executes its own wishes without their intervention.

To subject the provinces to the metropolis, is therefore not only to place the destiny of the empire in the hands of a portion of the community, which may be reprobated as unjust, but to place it in the hands of a populace acting under its own impulses, which must be avoided as dangerous. The preponderance of capital cities is therefore a serious blow upon the representative system; and it exposes modern republics to the same defect as the republics of antiquity, which all perished from not being acquainted with that system.

It would be easy for me to adduce a great number of secondary causes which have contributed to establish, and which concur to maintain, the democratic republic of the United States. But I discern two principal circumstances among these favorable elements, which I hasten to point out. I have already observed that the origin of the American settlements may be looked upon as the first and most efficacious cause to which the present prosperity of the United States may be attributed. The Americans had the chances of birth in their favor; and their forefathers imported that equality of conditions into the country, whence the democratic republic has very naturally taken its rise. Nor was this all they did; for besides this republican condition of society, the early settlers bequeathed to their descendants those customs, manners, and opinions, which contribute most to the success of a republican form of government. When I reflect upon the consequences of this primary circumstance, methinks I see the destiny of America embodied in the first puritan who landed on those shores, just as the human race was represented by the first man.

The chief circumstance which has favored the establishment and the maintenance of a democratic republic in the United States, is the nature of the territory which the Americans inhabit. Their ancestors gave them the love of equality and of freedom: but God himself gave them the means of remaining equal and free, by placing them upon a boundless continent, which is open to their exertions. General prosperity is favorable to the stability of all governments, but more particularly of a democratic constitution, which depends upon the disposition of the majority, and more particularly of that portion of the community which is most exposed to feel the pressure of want. When the people rules, it must be rendered happy, or it will overturn the state: and misery is apt to stimulate it to those excesses to which ambition rouses kings. The physical causes, independent of the laws, which contribute to promote general prosperity, are more numerous in America than they have ever been in any other country in the world, at any other period of history. In the United States, not only is legislation democratic, but nature herself favors the cause of the people.

In what part of human tradition can be found anything at all similar to that which is occurring under our eyes in North America? The celebrated communities of antiquity were all founded in the midst of hostile nations, which they were obliged to subjugate before they could flourish in their place. Even the moderns have found, in some parts of South America, vast regions inhabited by a people of inferior civilisation, but which occupied and cultivated the soil. To found their new states, it was necessary to extirpate or to subdue a numerous population, until civilisation has been made to blush for their success. But North America was only inhabited by wandering tribes, who took no thought of the natural riches of the soil: and that vast country was still, properly speaking, an empty continent, a desert land awaiting its inhabitants.

Everything is extraordinary in America, the social condition of the inhabitants, as well as the laws; but the soil upon which these institutions are founded is more extraordinary than all the rest. When man was first placed upon the earth by the Creator, that earth was inexhaustible in its youth; but man was weak and ignorant: and when he had learned to explore the treasures which it contained, hosts of his fellow-creatures covered its surface, and he was obliged to earn an asylum for repose and for freedom by the sword. At that same period North America was discovered, as if it had been kept in reserve by the Deity, and had just risen from beneath the waters of the deluge.

That continent still presents, as it did in the primeval time, rivers which rise from never-failing sources, green and moist solitudes, and fields which the ploughshare of the husbandman has never turned. In this state it is offered to man, not in the barbarous and isolated condition of the early ages, but to a being who is already in possession of the most potent secrets of the natural world, who is united to his fellow-men, and instructed by the experience of fifty centuries. At this very time thirteen millions of civilized Europeans are peaceably spreading over those fertile plains, with whose resources and whose extent they are not yet accurately acquainted. Three or four thousand soldiers drive the wandering races of the aborigines before them; these are followed by the pioneers, who pierce the woods, scare off the beasts of prey, explore the courses of the inland streams, and make ready the triumphal procession of civilisation across the waste.

The favorable influence of the temporal prosperity of America upon the institutions of that country has been so often described by others, and adverted to by myself, that I shall not enlarge upon it beyond the addition of a few facts. An erroneous notion is generally entertained, that the deserts of America are peopled by European emigrants, who annually disembark upon the coasts of the New World, while the American population increases and multiplies upon the soil which its forefathers tilled. The European settler, however, usually arrives in the United States without friends, and sometimes without resources; in order to subsist he is obliged to work for hire, and he rarely proceeds beyond that belt of industrious population which adjoins the ocean. The desert cannot be explored without capital or credit, and the body must be accustomed to the rigors of a new climate before it can be exposed to the chances of forest life. It is the Americans themselves who daily quit the spots which gave them birth, to acquire extensive domains in a remote country. Thus the European leaves his country for the transatlantic shores; and the American, who is born on that very coast, plunges into the wilds of central America. This double emigration is incessant: it begins in the remotest parts of Europe, it crosses the Atlantic ocean, and it advances over the solitudes of the New World. Millions of men are marching at once toward the same horizon; their language, their religion, their manners differ, their object is the same. The gifts of fortune are promised in the west, and to the west they bend their course.

No event can be compared with this continuous removal of the human race, except perhaps those irruptions which preceded the fall of the Roman Empire. Then, as well as now, generations of men were impelled forward in the same direction to meet and struggle on the same spot; but the designs of Providence were not the same; then, every new comer was the harbinger of destruction and of death; now, every adventurer brings with him the elements of prosperity and of life. The future still conceals from us the ulterior consequences of this emigration of the American toward the west; but we can hardly apprehend its more immediate results. As a portion of the inhabitants annually leave the states in which they were born, the population of these states increases very slowly, although they have long been established: thus in Connecticut, which only contains 59 inhabitants to the square mile, the population has not been increased by more than one quarter in forty years, while that of England has been augmented by one third in the lapse of the same period. The European emigrant always lands, therefore, in a country which is but half full, and where hands are in request: he becomes a workman in easy circumstances; his son goes to seek his fortune in unpeopled regions, and he becomes a rich landowner. The former amasses the capital which the latter invests, and the stranger as well as the native is unacquainted with want.

The laws of the United States are extremely favorable to the division of property; but a cause which is more powerful than the laws prevents property from being divided to excess.²⁰⁰ This is very perceptible in the states which are beginning to be thickly peopled; Massachusetts is the most populous part of the Union, but it contains only 80 inhabitants to the square mile, which is much less than in France, where 162 are reckoned to the same extent of country. But in Massachusetts estates are very rarely divided; the eldest son takes the land, and the others go to seek their fortune in the desert. The law has abolished the right of primogeniture, but circumstances have concurred to re-establish it under a form of which none can complain, and by which no just rights are impaired.