of success ; and after force comes the notion of right. A Govern. ment 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 want. ing, 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.*

In England the jury is returned from the aristocratic portion of the nation; 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. 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.

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 inno

cence.

† [In France, the qualification of the jurors is the same as the electoral qualification, namely, the payment of 200 francs per annum in direct taxes: they are chosen by lot. In England, they are returned by the sheriff; the qualifications of jurors were raised to 10l. per annum in England, and 6l. in Wales, of freehold land or copyhold, by the statute W. and M., c. 24: leaseholders for a time determinable upon life or lives, of the clear yearly value of 20l. per annum over and above the rent reserved, are qualified to serve on juries; and jurors in the courts of Westminster and City of London must be householders, and possessed of real and personal estate of the value of 100l. The qualifications, however, prescribed in different statutes, vary according to the object for which the jury is impannelled. See Blackstone's Commentaries, b. iii. c. 23.—Translator's Note.]

‡ See Appendix, Q.

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 politi cal 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 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 alt the usages of life, it fashions the human mind to its peculiar forms, and is gradually associated with the idea of jus

tice itself.

The institution of the jury, if confined to criminal causes, is al. ways 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 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, while the number of persons who have rea son 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 reco! before the responsibility of his own actions, and im. presses 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 to. wards 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 so. ciety.

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 tho 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 liti. gation; 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 aristo. cratic 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 criininal 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 ar. guments 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.✻

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. 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, repre.

See Appendix, R.

The Federal Judges decide upon their own authority almost all the questions most important to the country.

sented 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.

[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 he 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.]