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 insure 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. *b
b
[ the investigation of trial by jury as a judicial institution, and the appreciation of its effects in the united states, together with the advantages the americans have derived from it, would suffice to form a book, and a book upon a very useful and curious subject. the state of louisiana would in particular afford the curious phenomenon of a french and english legislation, as well as a french and english population, which are gradually combining with each other. see the "digeste des lois de la louisiane," in two volumes; and the "traite sur les regles des actions civiles," printed in french and english at new orleans in 1830.]
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. *c 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 civilization, in all the climates of the earth and under every form of human government, cannot be contrary to the spirit of justice. *d
c
[ all the english and american jurists are unanimous upon this head. mr. story, judge of the supreme court of the united states, speaks, in his "treatise on the federal constitution," of the advantages of trial by jury in civil cases:—"the inestimable privilege of a trial by jury in civil cases—a privilege scarcely inferior to that in criminal cases, which is counted by all persons to be essential to political and civil liberty. . . ." (story, book iii., chap. xxxviii.)]
d
[ if it were our province to point out the utility of the jury as a judicial institution in this place, much might be said, and the following arguments might be brought forward amongst others:—
by introducing the jury into the business of the courts you are enabled to diminish the number of judges, which is a very great advantage. when judges are very numerous, death is perpetually thinning the ranks of the judicial functionaries, and laying places vacant for newcomers. the ambition of the magistrates is therefore continually excited, and they are naturally made dependent upon the will of the majority, or the individual who fills up the vacant appointments; the officers of the court then rise like the officers of an army. this state of things is entirely contrary to the sound administration of justice, and to the intentions of the legislator. the office of a judge is made inalienable in order that he may remain independent: but of what advantage is it that his independence should be protected if he be tempted to sacrifice it of his own accord? when judges are very numerous many of them must necessarily be incapable of performing their important duties, for a great magistrate is a man of no common powers; and i am inclined to believe that a half-enlightened tribunal is the worst of all instruments for attaining those objects which it is the purpose of courts of justice to accomplish. for my own part, i had rather submit the decision of a case to ignorant jurors directed by a skilful judge than to judges a majority of whom are imperfectly acquainted with jurisprudence and with the laws.]
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. *e
e
[ an important remark must, however, be made. trial by jury does unquestionably invest the people with a general control over the actions of citizens, but it does not furnish means of exercising this control in all cases, or with an absolute authority. when an absolute monarch has the right of trying offences by his representatives, the fate of the prisoner is, as it were, decided beforehand. but even if the people were predisposed to convict, the composition and the non-responsibility of the jury would still afford some chances favorable to the protection of innocence.]
in england the jury is returned from the aristocratic portion of the nation; *f 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. *g 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 directions, 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.
f
[ [this may be true to some extent of special juries, but not of common juries. the author seems not to have been aware that the qualifications of jurors in england vary exceedingly.]]
g
[ see appendix, q.]
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 arises 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 entrusted, 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 most worthy of the attention of the legislator, and all that remains is merely accessory.
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 witnesses 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; everyone 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 jury in civil cases, 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 mere destructive passion. it teaches men to practice 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, whilst 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 towards 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 judgement 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 decision of the judge, they by the authority of society which they represent, and he by that of reason and of law. *h
h
[ see appendix, r.]
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 afterwards 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. *i upon these occasions they are accidentally placed in the position which the french judges habitually occupy, but they are invested with far more power than the latter; 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 characters of the individuals who took a part in his judgment.
i
[ the federal judges decide upon their own authority almost all the questions most important to the country.]
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.
