The Jury System Promotes Democracy
The Jury System Promotes Democracy
In 1831 a French aristocrat named Alexis de Tocqueville toured the young United States, ostensibly to study the U.S. prison system, but mainly to see "what a great republic is," as he told a friend in a letter. His nine months were well spent, with trips throughout all the states and the frontier provinces and meetings with such figures as Andrew Jackson, Daniel Webster, Sam Houston, and Charles Carroll, the last surviving signatory of the Declaration of Independence. The result was Democracy in America, published in two volumes in 1835 and 1840, a classic still cited by virtually every historian of American government, as well as presidents and political philosophers and anyone seeking a deeper understanding of the actual practice of democracy. While the work goes far beyond the original idea of studying prison reforms, de Tocqueville's insights into the American judicial system remain a vital part of his overall theme. In the excerpt below, he discusses the political impact of juries, which he sees as little schools of democracy. By familiarizing average people with the law and their rights, juries instill habits of mind that make Americans better voters and more self-confident citizens.
Source
Alexis de Tocqueville, Democracy in America, Volume 1, translated by Henry Reeve and edited by Francis Bowen. Cambridge, MA: Sever and Francis, 1863.
Primary Source Text
Since my subject has led me to speak of the administration of justice in the United States, I will not pass over it 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 was my purpose to inquire how far trial by jury, especially in civil cases, insures a good administration of justice, I admit that its utility might be contested. As the jury was first established when society was in its infancy, and when courts of justice merely decided simple questions of fact, 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 an enlightened and intellectual character.
My present purpose is to consider the jury as a political institution; any other course would divert me from my subject. Of trial by jury, considered as a judicial institution, I shall here say but little. When the English adopted trial by jury, they were a semi-barbarous people; they have since become one of the most enlightened nations of the earth; and their attachment to this institution seems to have increased with their increasing cultivation. They have emigrated and colonized every part 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 everywhere they have boasted of the privilege of trial by jury. They have established it, or hastened to re-establish it, in all their settlements. A judicial institution which thus obtains the suffrages of a great people for so long a series of ages, which is zealously reproduced at every stage of civilization, in all the climates of the earth, and under every form of human government, cannot be contrary to the spirit of justice.
Juries as a Political Institution
But to leave this part of the subject. It would be a very narrow view to look upon the jury as a mere judicial institution; for, however great its influence may be upon the decisions of the courts, it is still greater on the destinies of society 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 by lot, and invested with a temporary right of judging. Trial by jury, as applied to the repression of crime, appears to me an eminently republican element in the government, for the following reasons.
The institution of the jury may be aristocratic or democratic, according to the class from which the jurors are taken; but it always preserves its republican character, in that it places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that 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 be able to reach its enemies only upon a field of battle would 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 the criminal 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 judges. The institution of the jury consequently invests the people, or that class of citizens, with the direction of society.
Different Governments Have Different Juries
In England, the jury is returned from the aristocratic portion of the nation; the aristocracy makes the laws, applies the laws, and punishes 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. 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. They 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 Tudor monarchs sent to prison jurors who refused to convict, and Napoleon caused them to be selected 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 trial by jury is still but 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 the least important part of the subject. The jury is pre-eminently a political institution; it should 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 legislature is that part of the nation which makes the laws; and in order that society may be governed in a fixed and uniform manner 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; all that remains is merely accessory.
Civil Juries Equally Important
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 witness its occasional action in particular cases: they become accustomed to do without it in the ordinary course of life; 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 applied only to certain criminal causes.
When, on the contrary, the jury acts also on civil causes, its application is constantly visible; 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 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 the Tudors; and the civil jury did in reality, at that period, save the liberties of England. 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 becomes a mere 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, whilst the number of persons who have reason to apprehend a criminal prosecution is small, every one is liable to have a lawsuit. The jury teaches every man not to recoil before the responsibility of his own actions, and impresses him with that manly confidence without which no political virtue can 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 its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society.
Juries as a Public School
The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, 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 have lawsuits; but I am certain it is highly beneficial to those who judge them; and I look upon it as one of the most efficacious means for the education of the people which society can employ.
Juries Enhance the Power of Judges
What I have said applies to all nations; but the remark I am about to make is peculiar to the Americans and to democratic communities. I have already observed that, in democracies, the members of the legal profession, and the judicial magistrates, constitute the only aristocratic body which can moderate the movement of the people. This aristocracy is invested with no physical power; 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 contending against a single man, the jury is apt to look upon the judge as the passive instrument of social power, and to mistrust his advice. Moreover, criminal causes turn entirely upon simple 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, his intellect entirely governs theirs. It is the judge who sums up the various arguments which have wearied their memory, 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 decide, and tells them how to answer the question of law. His influence over them 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 only sanctions the decision of the judge; they sanction this decision by the authority of society which they represent, and he, by that of reason and of law.
Influence of Judges Beyond Courtroom
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 have established their authority in civil causes, and only transfer it afterwards to tribunals of another kind, where it was not first acquired. In some cases, and they are frequently the most important ones, the American judges have the right of deciding causes alone. Upon these occasions, they are accidentally placed in the position which the French judges habitually occupy: but their moral power is much greater; they are still surrounded by the recollection of the jury, and their judgment has almost as much authority as the voice of the community represented by that institution. Their influence extends far beyond the limits of the courts; in the recreations of private life, as well as in the turmoil of public business, in public 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 even the characters, of those who acted with him in his official capacity. The jury, then, which seems to restrict the rights of the judiciary, does in reality consolidate its power; and in no country are the judges so powerful as where the people share their privileges. It is especially by means of the jury in civil causes, that the American magistrates imbue even the lower 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 how to rule well.