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 repugnance 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 irresistibly; 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 innovate and to destroy is accidental, or whether it belongs to some lasting purpose which they entertain. It is true that lawyers mainly contributed to the overthrow of the French monarchy in 1789; but it remains 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 spoke 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 isolated members of a body with the body itself. In all free governments, of whatsoever 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 agitated 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 opposition, that high station which naturally belongs to them, their general spirit will be eminently 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 industrious pursuits; and they feel themselves to be its equal in point of intelligence, although they enjoy less opulence and less power. But whenever an aristocracy consents to impart some of its privileges to these same individuals, the two classes coalesce very readily, and assume, as it were, the consistency of a single order of family interests.

I am, in like manner, inclined to believe that a monarch will always be able to convert legal practitioners into the most serviceable instruments of his authority. There is a far greater affinity 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 impair the judicial authority in his dominions, 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 irritation, because it does not attribute to them any sinister 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 amalgamated without violence with the natural elements of democracy, and which can be advantageously and permanently 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 subsist 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 precedents; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their forefathers. In the mind of an English or an American lawyer, a taste and a reverence for what is old are almost always united to a love of regular and lawful 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 alludes to his own; while the reverse occurs in France. There, the most trifling 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 perch of land by the decision of the court. This abnegation of his own opinion, and this implicit deference to the opinion of his forefathers, which are common to the English and American lawyer, this subjection of thought which he is obliged to profess, necessarily give him more timid habits and more sluggish inclinations 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 statutes 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 ascertained 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 predecessors or of the appellate tribunals. They respect such decisions as the opinions of distinguished 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 ascertain his rights, without a lawsuit. 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 civilized 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 modesty for any one entertaining a different view of them, to consider that the disinterested 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 attainable 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 modifications 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 endorser, 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 drawn 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 assailed 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 maxim in our system, that when the reason of the law ceases, the law itself ceases, has overthrown many an antiquated 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 contented 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 mingle 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 depict, is most distinctly to be met with in England: there laws are esteemed 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 fabric, and to maintain that nothing has been done which does not square with the intentions, and complete the labors, of former generations. The very individuals who conduct these changes disclaim all intention of innovation, and they had rather resort to absurd expedients 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 infringe the rules of common sense and of humanity, rather than to swerve 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 foliage 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 hesitation, 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 qualified by its powers, and even by its defects, to neutralize the vices which are inherent in popular government. When the American people is intoxicated 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 superstitious attachment to what is antique to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.

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 regularity and order which he has contracted in the study of legislation, derives an additional love of stability from his own inalienable functions. His legal attainments 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 magistrate perpetually interferes in political affairs. He cannot force the people to make laws, but at least he can oblige it not to disobey its own enactments, 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 affected 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 legislative 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 copious innovations in their political legislation, have introduced very sparing alterations 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 defer 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 stationary 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 controversies. 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 penetrates beyond their walls into the bosom of society, where it descends 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 flexibility to the exigencies 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.

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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 federaux tranchent presque toujours seuls les questions qui touchent de plus pres 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.

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Notes:

[189] This translation does not accurately convey the meaning of M. de Tocqueville's expression. He says: "Ils craignent moins la tyrannie que l'arbitraire, et pourvu que le legislateur se charge lui-meme d'enlever aux hommes leur independance, ils sont a peu pres content."

The more correct rendering would be: 'They fear tyranny less than arbitrary sway, and provided it is the legislator himself who undertakes to deprive men of their independence, they are almost content.'— Reviser.

[190] See chapter vi., p. 94, on the judicial power in the United States.

[191] 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 generally 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.

[192] 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, ch. xxxviii.).

[193] 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 among 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 new comers. The ambition of the magistrates is therefore continually excited, and they are naturally made dependant upon the will of the majority, or the individual who fills up vacant appointments: the officers of the courts 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 is 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 obtaining 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 skilfull judge, than to judges, a majority of whom are imperfectly acquainted with jurisprudence and with the laws.

[I venture to remind the reader, lest this note should appear somewhat redundant to an English eye, that the jury is an institution which has only been naturalized in France within the present century; that it is even now exclusively applied to those criminal causes which come before the courts of assize, or to the prosecutions of the public press; and that the judges and counsellors of the numerous local tribunals of France—forming a body of many thousand judicial functionaries—try all civil causes, appeals from criminal causes, and minor offences, without the jury.—Translator's Note.]

[194] 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.

[195] 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 estates 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.

[196] See Appendix Q.

[197] See Appendix R.

[198] The federal judges decide upon their own authority almost all the questions most important to the country.



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.

A single fact will suffice to show the prodigious number of individuals who leave New England, in this manner, to settle themselves in the wilds. We were assured in 1830, that thirty-six of the members of congress were born in the little state of Connecticut. The population of Connecticut, which constitutes only one forty-third part of that of the United States, thus furnished one-eighth of the whole body of representatives. The state of Connecticut, however, only sends five delegates to congress; and the thirty-one others sit for the new western states. If these thirty-one individuals had remained in Connecticut, it is probable that instead of becoming rich landowners they would have remained humble laborers, that they would have lived in obscurity without being able to rise into public life, and that, far from becoming useful members of the legislature, they might have been unruly citizens.

These reflections do not escape the observation of the Americans any more than of ourselves. "It cannot be doubted," says Chancellor Kent in his Treatise on American Law, "that the division of landed estates must produce great evils when it is carried to such excess that each parcel of land is insufficient to support a family; but these disadvantages have never been felt in the United States, and many generations must elapse before they can be felt. The extent of our inhabited territory, the abundance of adjacent land, and the continual stream of emigration flowing from the shores of the Atlantic toward the interior of the country, suffice as yet, and will long suffice, to prevent the parcelling out of estates."

It is difficult to describe the rapacity with which the American rushes forward to secure the immense booty which fortune proffers to him. In the pursuit he fearlessly braves the arrow of the Indian and the distempers of the forest; he is unimpressed by the silence of the woods; the approach of beasts of prey does not disturb him; for he is goaded onward by a passion more intense than the love of life. Before him lies a boundless continent, and he urges onward as if time pressed, and he was afraid of finding no room for his exertions. I have spoken of the emigration from the older states, but how shall I describe that which takes place from the more recent ones? Fifty years have scarcely elapsed since that of Ohio was founded; the greater part of its inhabitants were not born within its confines; its capital has only been built thirty years, and its territory is still covered by an immense extent of uncultivated fields; nevertheless, the population of Ohio is already proceeding westward, and most of the settlers who descend to the fertile savannahs of Illinois are citizens of Ohio. These men left their first country to improve their condition; they quit their resting-place to meliorate it still more; fortune awaits them everywhere, but happiness they cannot attain. The desire of prosperity has become an ardent and restless passion in their minds, which grows by what it gains. They early broke the ties which bound them to their natal earth, and they have contracted no fresh ones on their way. Emigration was at first necessary to them as a means of subsistence; and it soon becomes a sort of game of chance, which they pursue for the emotions it excites, as much as for the gain it procures.

Sometimes the progress of man is so rapid that the desert reappears behind him. The woods stoop to give him a passage, and spring up again when he has passed. It is not uncommon in crossing the new states of the west to meet with deserted dwellings in the midst of the wilds; the traveller frequently discovers the vestiges of a log-house in the most solitary retreats, which bear witness to the power, and no less to the inconstancy of man. In these abandoned fields, and over those ruins of a day, the primeval forest soon scatters a fresh vegetation; the beasts resume the haunts which were once their own; and nature covers the traces of man's path with branches and with flowers, which obliterate his evanescent track.

I remember that in crossing one of the woodland districts which still cover the state of New York, I reached the shore of a lake, which was embosomed with forests coeval with the world. A small island, covered with woods, whose thick foliage concealed its banks, rose from the centre of the waters. Upon the shores of the lake no object attested the presence of man, except a column of smoke which might be seen on the horizon rising from the tops of the trees to the clouds, and seeming to hang from heaven rather than to be mounting to the sky. An Indian shallop was hauled up on the sand, which tempted me to visit the islet that had at first attracted my attention, and in a few minutes I set foot upon its banks. The whole island formed one of those delicious solitudes of the New World, which almost lead civilized man to regret the haunts of the savage. A luxuriant vegetation bore witness to the incomparable fruitfulness of the soil. The deep silence, which is common to the wilds of North America, was only broken by the hoarse cooing of the wood-pigeon and the tapping of the woodpecker upon the bark of trees. I was far from supposing that this spot had ever been inhabited, so completely did nature seem to be left to her own caprices; but when I reached the centre of the isle I thought that I discovered some traces of man. I then proceeded to examine the surrounding objects with care, and I soon perceived that an European had undoubtedly been led to seek a refuge in this retreat. Yet what changes had taken place in the scene of his labors! The logs which he had hastily hewn to build himself a shed had sprouted afresh; the very props were intertwined with living verdure, and his cabin was transformed into a bower. In the midst of these shrubs a few stones were to be seen, blackened with fire and sprinkled with thin ashes; here the hearth had no doubt been, and the chimney in falling had covered it with rubbish. I stood for some time in silent admiration of the exuberance of nature and the littleness of man; and when I was obliged to leave that enchanting solitude, I exclaimed with melancholy, "Are ruins, then, already here?"

In Europe we are wont to look upon a restless disposition, an unbounded desire of riches, and an excessive love of independence, as propensities very formidable to society. Yet these are the very elements which ensure a long and peaceful duration to the republics of America. Without these unquiet passions the population would collect in certain spots, and would soon be subject to wants like those of the Old World, which it is difficult to satisfy; for such is the present good fortune of the New World, that the vices of its inhabitants are scarcely less favorable to society than their virtues. These circumstances exercise a great influence on the estimation in which human actions are held in the two hemispheres. The Americans frequently term what we should call cupidity a laudable industry; and they blame as faint-heartedness what we consider to be the virtue of moderate desires.

In France simple tastes, orderly manners, domestic affections, and the attachment which men feel to the place of their birth, are looked upon as great guarantees of the tranquillity and happiness of the state. But in America nothing seems to be more prejudicial to society than these virtues. The French Canadians, who have faithfully preserved the traditions of their pristine manners, are already embarrassed for room upon their small territory; and this little community, which has so recently begun to exist, will shortly be a prey to the calamities incident to old nations. In Canada the most enlightened, patriotic, and humane inhabitants, make extraordinary efforts to render the people dissatisfied with those simple enjoyments which still content it. There the seductions of wealth are vaunted with as much zeal, as the charms of an honest but limited income in the Old World: and more exertions are made to excite the passions of the citizens there than to calm them elsewhere. If we listen to the eulogies, we shall hear that nothing is more praiseworthy than to exchange the pure and homely pleasures which even the poor man tastes in his own country, for the dull delights of prosperity under a foreign sky; to leave the patrimonial hearth, and the turf beneath which his forefathers sleep; in short, to abandon the living and the dead in quest of fortune.

At the present time America presents a field for human effort, far more extensive than any sum of labor which can be applied to work it. In America, too much knowledge cannot be diffused; for all knowledge, while it may serve him who possesses it, turns also to the advantage of those who are without it. New wants are not to be feared, since they can be satisfied without difficulty; the growth of human passions need not be dreaded, since all passions may find an easy and a legitimate object: nor can men be put in possession of too much freedom, since they are scarcely ever tempted to misuse their liberties.

The American republics of the present day are like companies of adventurers, formed to explore in common the waste lands of the New World, and busied in a flourishing trade. The passions which agitate the Americans most deeply, are not their political, but their commercial passions; or, to speak more correctly, they introduce the habits they contract in business into their political life. They love order, without which affairs do not prosper; and they set an especial value upon a regular conduct, which is the foundation of a solid business; they prefer the good sense which amasses large fortunes, to that enterprising spirit which frequently dissipates them; general ideas alarm their minds, which are accustomed to positive calculations; and they hold practice in more honor than theory.

It is in America that one learns to understand the influence which physical prosperity exercises over political actions, and even over opinions which ought to acknowledge no sway but that of reason; and it is more especially among strangers that this truth is perceptible. Most of the European emigrants to the New World carry with them that wild love of independence and of change, which our calamities are apt to engender. I sometimes met with Europeans, in the United States, who had been obliged to leave their own country on account of their political opinions. They all astonished me by the language they held; but one of them surprised me more than all the rest. As I was crossing one of the most remote districts of Pennsylvania, I was benighted, and obliged to beg for hospitality at the gate of a wealthy planter, who was a Frenchman by birth. He bade me sit down beside his fire, and we began to talk with that freedom which befits persons who meet in the backwoods, two thousand leagues from their native country. I was aware that my host had been a great leveller and an ardent demagogue, forty years ago, and that his name was not unknown to fame. I was therefore not a little surprised to hear him discuss the rights of property as an economist or a landowner might have done: he spoke of the necessary gradations which fortune established among men, of obedience to established laws, of the influence of good morals in commonwealths, and of the support which religious opinions give to order and to freedom; he even went so far as to quote an evangelical authority in corroboration of one of his political tenets.

I listened, and marvelled at the feebleness of human reason. A proposition is true or false, but no art can prove it to be one or the other, in the midst of the uncertainties of science and the conflicting lessons of experience, until a new incident disperses the clouds of doubt; I was poor, I become rich; and I am not to expect that prosperity will act upon my conduct, and leave my judgment free: my opinions change with my fortune, and the happy circumstances which I turn to my advantage, furnish me with that decisive argument which was before wanting.

[The sentence beginning "I was poor, I become rich," &c, struck the editor, on perusal, as obscure, if not contradictory. The original seems more explicit, and justice to the author seems to require that it should be presented to the reader. "J'etais pauvre, me voici riche; du moins, si le bien-etre, en agissant sur ma conduite, laissait mon jugement en liberte! Mais non, mes opinions sont en effet changees avec ma fortune, et, dans l'evenement heureux dont je profite, j'ai reellement decouvert la raison determinante qui jusque-la m'avait manque."—American Editor.]

The influence of prosperity acts still more freely upon the American than upon strangers. The American has always seen the connexion of public order and public prosperity, intimately united as they are, go on before his eyes; he does not conceive that one can subsist without the other; he has therefore nothing to forget: nor has he, like so many Europeans, to unlearn the lessons of his early education.

* * * * *

INFLUENCE OF THE LAWS UPON THE MAINTENANCE OF THE DEMOCRATIC REPUBLIC IN THE UNITED STATES.

Three principal Causes of the Maintenance of the democratic Republic.— Federal Constitutions.—Municipal Institutions.—Judicial Power.

The principal aim of this book has been to make known the laws of the United States; if this purpose has been accomplished, the reader is already enabled to judge for himself which are the laws that really tend to maintain the democratic republic, and which endanger its existence. If I have not succeeded in explaining this in the whole course of my work, I cannot hope to do so within the limits of a single chapter. It is not my intention to retrace the path I have already pursued; and a very few lines will suffice to recapitulate what I have previously explained.

Three circumstances seem to me to contribute most powerfully to the maintenance of the democratic republic in the United States.

The first is that federal form of government which the Americans have adopted, and which enables the Union to combine the power of a great empire with the security of a small state;—

The second consists in those municipal institutions which limit the despotism of the majority, and at the same time impart a taste for freedom, and a knowledge of the art of being free, to the people;—

The third is to be met with in the constitution of the judicial power. I have shown in what manner the courts of justice serve to repress the excesses of democracy; and how they check and direct the impulses of the majority, without stopping its activity.

* * * * *

INFLUENCE OF MANNERS UPON THE MAINTENANCE OF THE DEMOCRATIC REPUBLIC IN THE UNITED STATES.

I have previously remarked that the manners of the people may be considered as one of the general causes to which the maintenance of a democratic republic in the United States is attributable. I here use the word manners, with the meaning which the ancients attached to the word mores; for I apply it not only to manners, in their proper sense of what constitutes the character of social intercourse, but I extend it to the various notions and opinions current among men, and to the mass of those ideas which constitute their character of mind. I comprise, therefore, under this term the whole moral and intellectual condition of a people. My intention is not to draw a picture of American manners, but simply to point out such features of them as are favorable to the maintenance of political institutions.

* * * * *

RELIGION CONSIDERED AS A POLITICAL INSTITUTION, WHICH POWERFULLY CONTRIBUTES TO THE MAINTENANCE OF THE DEMOCRATIC REPUBLIC AMONG THE AMERICANS.

North America peopled by Men who professed a democratic and republican Christianity.—Arrival of the Catholics.—For what Reason the Catholics form the most democratic and the most republican Class at the present Time.

Every religion is to be found in juxtaposition to a political opinion, which is connected with it by affinity. If the human mind be left to follow its own bent, it will regulate the temporal and spiritual institutions of society upon one uniform principle; and man will endeavor, if I may use the expression, to harmonize the state in which he lives upon earth, with the state he believes to await him in heaven.

The greatest part of British America was peopled by men who, after having shaken off the authority of the pope, acknowledged no other religious supremacy: they brought with them into the New World a form of Christianity, which I cannot better describe, than by styling it a democratic and republican religion. This sect contributed powerfully to the establishment of a democracy and a republic; and from the earliest settlement of the emigrants, politics and religion contracted an alliance which has never been dissolved.

About fifty years ago Ireland began to pour a catholic population into the United States; on the other hand, the catholics of America made proselytes, and at the present moment more than a million of Christians, professing the truths of the church of Rome, are to be met with in the Union. These catholics are faithful to the observances of their religion; they are fervent and zealous in the support and belief of their doctrines. Nevertheless they constitute the most republican and the most democratic class of citizens which exists in the United States; and although this fact may surprise the observer at first, the cause by which it is occasioned may easily be discovered upon reflection.

I think that the catholic religion has erroneously been looked upon as the natural enemy of democracy. Among the various sects of Christians, catholicism seems to me, on the contrary, to be one of those which are most favorable to the equality of conditions. In the catholic church, the religious community is composed of only two elements; the priest and the people. The priest alone rises above the rank of his flock, and all below him are equal.

On doctrinal points the catholic faith places all human capacities upon the same level; it subjects the wise and the ignorant, the man of genius and the vulgar crowd, to the details of the same creed; it imposes the same observances upon the rich and needy, it inflicts the same austerities upon the strong and the weak, it listens to no compromises with mortal man, but reducing all the human race to the same standard, it confounds all the distinctions of society at the foot of the same altar, even as they are confounded in the sight of God. If catholicism predisposes the faithful to obedience, it certainly does not prepare them for inequality; but the contrary may be said of protestantism, which generally tends to make men independent, more than to render them equal.

Catholicism is like an absolute monarchy; if the sovereign be removed, all the other classes of society are more equal than they are in republics. It has not unfrequently occurred that the catholic priest has left the service of the altar to mix with the governing powers of society, and to make his place among the civil gradations of men. This religious influence has sometimes been used to secure the interests of that political state of things to which he belonged. At other times catholics have taken the side of aristocracy from a spirit of religion.

But no sooner is the priesthood entirely separated from the government, as is the case in the United States, than it is found that no class of men are more naturally disposed than the catholics to transfuse the doctrine of the equality of conditions into the political world. If, then, the catholic citizens of the United States are not forcibly led by the nature of their tenets to adopt democratic and republican principles, at least they are not necessarily opposed to them; and their social position, as well as their limited number, obliges them to adopt these opinions. Most of the catholics are poor, and they have no chance of taking a part in the government unless it be open to all the citizens. They constitute a minority, and all rights must be respected in order to ensure to them the free exercise of their own privileges. These two causes induce them, unconsciously, to adopt political doctrines which they would perhaps support with less zeal if they were rich and preponderant.

The catholic clergy of the United States has never attempted to oppose this political tendency; but it seeks rather to justify its results. The priests in America have divided the intellectual world into two parts: in the one they place the doctrines of revealed religion, which command their assent; in the other they leave those truths, which they believe to have been freely left open to the researches of political inquiry. Thus the catholics of the United States are at the same time the most faithful believers and the most zealous citizens.

It may be asserted that in the United States no religious doctrine displays the slightest hostility to democratic and republican institutions. The clergy of all the different sects holds the same language; their opinions are consonant to the laws, and the human intellect flows onward in one sole current.

I happened to be staying in one of the largest towns in the Union, when I was invited to attend a public meeting which had been called for the purpose of assisting the Poles, and of sending them supplies of arms and money. I found two or three thousand persons collected in a vast hall which had been prepared to receive them. In a short time a priest in his ecclesiastical robes advanced to the front of the hustings: the spectators rose, and stood uncovered, while he spoke in the following terms:—

"Almighty God! the God of armies! Thou who didst strengthen the hearts and guide the arms of our fathers when they were fighting for the sacred rights of national independence; thou who didst make them triumph over a hateful oppression, and hast granted to our people the benefits of liberty and peace; turn, O Lord, a favorable eye upon the other hemisphere; pitifully look down upon that heroic nation which is even now struggling as we did in the former time, and for the same rights which we defended with our blood. Thou, who didst create man in the likeness of the same image, let no tyranny mar thy work, and establish inequality upon the earth. Almighty God! do thou watch over the destiny of the Poles, and render them worthy to be free. May thy wisdom direct their councils, and may thy strength sustain their arms! Shed forth thy terror over their enemies; scatter the powers which take counsel against them; and vouchsafe that the injustice which the world has beheld for fifty years, be not consummated in our time. O Lord, who holdest alike the hearts of nations and of men in thy powerful hand, raise up allies to the sacred cause of right; arouse the French nation from the apathy in which its rulers retain it, that it go forth again to fight for the liberties of the world.

"Lord, turn not thou thy face from us, and grant that we may always be the most religious as well as the freest people of the earth. Almighty God, hear our supplications this day. Save the Poles, we beseech thee, in the name of thy well beloved Son, our Lord Jesus Christ, who died upon the cross for the salvation of men. Amen."

The whole meeting responded "Amen!" with devotion.

* * * * *

INDIRECT INFLUENCE OF RELIGIOUS OPINIONS UPON POLITICAL SOCIETY IN THE UNITED STATES.

Christian Morality common to all Sects.—Influence of Religion upon the Manners of the Americans.—Respect for the marriage Tie.—In what manner Religion confines the Imagination of the Americans within certain Limits, and checks the Passion of Innovation.—Opinion of the Americans on the political Utility of Religion.—Their Exertions to extend and secure its Predominance.

I have just shown what the direct influence of religion upon politics is in the United States; but its indirect influence appears to me to be still more considerable, and it never instructs the Americans more fully in the art of being free than when it says nothing of freedom.

The sects which exist in the United States are innumerable. They all differ in respect to the worship which is due from man to his Creator; but they all agree in respect to the duties which are due from man to man. Each sect adores the Deity in its own peculiar manner; but all the sects preach the same moral law in the name of God. If it be of the slightest importance to man, as an individual, that his religion should be true, the case of society is not the same. Society has no future life to hope for or to fear; and provided the citizens profess a religion, the peculiar tenets of that religion are of very little importance to its interests. Moreover, almost all the sects of the United States are comprised within the great unity of christianity, and Christian morality is everywhere the same.

It may be believed without unfairness, that a certain number of Americans pursue a peculiar form of worship, from habit more than from conviction. In the United States the sovereign authority is religious, and consequently hypocrisy must be common; but there is no country in the whole world in which the Christian religion retains a greater influence over the souls of men than in America; and there can be no greater proof of its utility, and of its conformity to human nature, than that its influence is most powerfully felt over the most enlightened and free nation of the earth.

I have remarked that the members of the American clergy in general, without even excepting those who do not admit religious liberty, are all in favor of civil freedom; but they do not support any particular political system. They keep aloof from parties, and from public affairs. In the United States religion exercises but little influence upon the laws, and upon the details of public opinion; but it directs the manners of the community, and by regulating domestic life, it regulates the state.

I do not question that the great austerity of manners which is observable in the United States, arises, in the first instance, from religious faith. Religion is often unable to restrain man from the numberless temptations of fortune; nor can it check that passion for gain which every incident of his life contributes to arouse; but its influence over the mind of women is supreme, and women are the protectors of morals. There is certainly no country in the world where the tie of marriage is so much respected as in America, or where conjugal happiness is more highly or worthily appreciated. In Europe almost all the disturbances of society arise from the irregularities of domestic life. To despise the natural bonds and legitimate pleasures of home, is to contract a taste for excesses, a restlessness of heart, and the evil of fluctuating desires. Agitated by the tumultuous passions which frequently disturb his dwelling, the European is galled by the obedience which the legislative powers of the state exact. But when the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace. There his pleasures are simple and natural, his joys are innocent and calm; and as he finds that an orderly life is the surest path to happiness, he accustoms himself without difficulty to moderate his opinions as well as his tastes. While the European endeavors to forget his domestic troubles by agitating society, the American derives from his own home that love of order, which he afterward carries with him into public affairs.

In the United States the influence of religion is not confined to the manners, but it extends to the intelligence of the people. Among the Anglo-Americans, there are some who profess the doctrines of Christianity from a sincere belief in them, and others who do the same because they are afraid to be suspected of unbelief. Christianity, therefore, reigns without any obstacle, by universal consent; the consequence is, as I have before observed, that every principle of the moral world is fixed and determinate, although the political world is abandoned to the debates and the experiments of men. Thus the human mind is never left to wander across a boundless field; and, whatever may be its pretensions, it is checked from time to time by barriers which it cannot surmount. Before it can perpetrate innovation, certain primal and immutable principles are laid down, and the boldest conceptions of human device are subjected to certain forms which retard and stop their completion.

The imagination of the Americans, even in its greatest flights, is circumspect and undecided; its impulses are checked, and its works unfinished. These habits of restraint recur in political society, and are singularly favorable both to the tranquillity of the people and the durability of the institutions it has established. Nature and circumstances concurred to make the inhabitants of the United States bold men, as is sufficiently attested by the enterprising spirit with which they seek for fortune. If the minds of the Americans were free from all trammels, they would very shortly become the most daring innovators and the most implacable disputants in the world. But the revolutionists of America are obliged to profess an ostensible respect for Christian morality and equity, which does not easily permit them to violate the laws that oppose their designs; nor would they find it easy to surmount the scruples of their partisans, even if they were able to get over their own. Hitherto no one, in the United States, has dared to advance the maxim, that everything is permissible with a view to the interests of society; an impious adage, which seems to have been invented in an age of freedom, to shelter all the tyrants of future ages. Thus while the law permits the Americans to do what they please, religion prevents them from conceiving, and forbids them to commit, what is rash and unjust.

Religion in America takes no direct part in the government of society, but it must nevertheless be regarded as the foremost of the political institutions of that country; for if it does not impart a taste for freedom, it facilitates the use of free institutions. Indeed, it is in this same point of view that the inhabitants of the United States themselves look upon religious belief. I do not know whether all the Americans have a sincere faith in their religion; for who can search the human heart? but I am certain that they hold it to be indispensable to the maintenance of republican institutions. This opinion is not peculiar to a class of citizens or to a party, but it belongs to the whole nation, and to every rank of society.

In the United States, if a political character attacks a sect, this may not prevent even the partisans of that very sect, from supporting him; but if he attacks all the sects together, every one abandons him, and he remains alone.

While I was in America, a witness, who happened to be called at the assizes of the county of Chester (state of New York), declared that he did not believe in the existence of God or in the immortality of the soul. The judge refused to admit his evidence, on the ground that the witness had destroyed beforehand all the confidence of the court in what he was about to say.[201] The newspapers related the fact without any farther comment.

The Americans combine the notions of Christianity and of liberty so intimately in their minds, that it is impossible to make them conceive the one without the other; and with them this conviction does not spring from that barren traditionary faith which seems to vegetate in the soul rather than to live.

I have known of societies formed by the Americans to send out ministers of the gospel into the new western states, to found schools and churches there, lest religion should be suffered to die away in those remote settlements, and the rising states be less fitted to enjoy free institutions than the people from which they emanated. I met with wealthy New Englanders who abandoned the country in which they were born, in order to lay the foundations of Christianity and of freedom on the banks of the Missouri or in the prairies of Illinois. Thus religious zeal is perpetually stimulated in the United States by the duties of patriotism. These men do not act from an exclusive consideration of the promises of a future life; eternity is only one motive of their devotion to the cause; and if you converse with these missionaries of Christian civilisation, you will be surprised to find how much value they set upon the goods of this world, and that you meet with a politician where you expected to find a priest. They will tell you that "all the American republics are collectively involved with each other; if the republics of the west were to fall into anarchy, or to be mastered by a despot, the republican institutions which now flourish upon the shores of the Atlantic ocean would be in great peril. It is therefore our interest that the new states should be religious, in order to maintain our liberties."

Such are the opinions of the Americans; and if any hold that the religious spirit which I admire is the very thing most amiss in America, and that the only element wanting to the freedom and happiness of the human race is to believe in some blind cosmogony, or to assert with Cabanis the secretion of thought by the brain, I can only reply, that those who hold this language have never been in America, and that they have never seen a religious or a free nation. When they return from their expedition, we shall hear what they have to say.

There are persons in France who look upon republican institutions as a temporary means of power, of wealth and distinction; men who are the condottieri of liberty, and who fight for their own advantage, whatever be the colors they wear: it is not to these that I address myself. But there are others who look forward to the republican form of government as a tranquil and lasting state, toward which modern society is daily impelled by the ideas and manners of the time, and who sincerely desire to prepare men to be free. When these men attack religious opinions, they obey the dictates of their passions to the prejudice of their interests. Despotism may govern without faith, but liberty cannot. Religion is much more necessary in the republic which they set forth in glowing colors, than in the monarchy which they attack; and it is more needed in democratic republics than in any others. How is it possible that society should escape destruction if the moral tie be not strengthened in proportion as the political tie is relaxed? and what can be done with a people which is its own master, if it be not submissive to the Divinity?

* * * * *

PRINCIPAL CAUSES WHICH RENDER RELIGION POWERFUL IN AMERICA.

Care taken by the Americans to separate the Church from the State.—The Laws, public Opinion, and even the Exertions of the Clergy concur to promote this end.—Influence of Religion upon the Mind, in the United States, attributable to this Cause.—Reason of this.—What is the natural State of Men with regard to Religion at the present time.—What are the peculiar and incidental Causes which prevent Men, in certain Countries, from arriving at this State.

The philosophers of the eighteenth century explained the gradual decay of religious faith in a very simple manner. Religious zeal, said they, must necessarily fail, the more generally liberty is established and knowledge diffused. Unfortunately, facts are by no means in accordance with their theory. There are certain populations in Europe whose unbelief is only equalled by their ignorance and their debasement, while in America one of the freest and most enlightened nations in the world fulfils all the outward duties of religion with fervor.

Upon my arrival in the United States, the religious aspect of the country was the first thing that struck my attention; and the longer I stayed there, the more did I perceive the great political consequences resulting from this state of things, to which I was unaccustomed. In France I had almost always seen the spirit of religion and the spirit of freedom pursuing courses diametrically opposed to each other; but in America I found that they were intimately united, and that they reigned in common over the same country. My desire to discover the causes of this phenomenon increased from day to day. In order to satisfy it, I questioned the members of all the different sects; and I more especially sought the society of the clergy, who are the depositaries of the different persuasions, and who are more especially interested in their duration. As a member of the Roman catholic church I was more particularly brought into contact with several of its priests, with whom I became intimately acquainted. To each of these men I expressed my astonishment and I explained my doubts: I found that they differed upon matters of detail alone; and that they mainly attributed the peaceable dominion of religion in their country, to the separation of church and state. I do not hesitate to affirm that during my stay in America, I did not meet with a single individual, of the clergy or of the laity, who was not of the same opinion upon this point.

This led me to examine more attentively than I had hitherto done, the station which the American clergy occupy in political society. I learned with surprise that they fill no public appointments;[202] not one of them is to be met with in the administration, and they are not even represented in the legislative assemblies. In several states[203] the law excludes them from political life; public opinion in all. And when I came to inquire into the prevailing spirit of the clergy, I found that most of its members seemed to retire of their own accord from the exercise of power, and that they made it the pride of their profession to abstain from politics.

I heard them inveigh against ambition and deceit, under whatever political opinions these vices might chance to lurk; but I learned from their discourses that men are not guilty in the eye of God for any opinions concerning political government, which they may profess with sincerity, any more than they are for their mistakes in building a house or in driving a furrow. I perceived that these ministers of the gospel eschewed all parties, with the anxiety attendant upon personal interest. These facts convinced me that what I had been told was true; and it then became my object to investigate their causes, and to inquire how it happened that the real authority of religion was increased by a state of things which diminished its apparent force: these causes did not long escape my researches.