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 aris. tocratic interests 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 tradition. ary 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 appertains more especially 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,✻ 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 mat

*See Chapter VI., p. 92, on the Judicial Power in the United States.

ters 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.

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 ad

verting to the institution of the jury.

tution.

Trial by jury may be considered in two separate points of view: as a judicial, and as a political instiIf it entered into my present purpose to inquire how far trial by jury (more especially in civil cases) contributes to insure the best administration of justice, I admit that its utility might be contested. As the jury was first introduced at a time when society was in an uncivilized state, and when courts of justice were merely called upon to decide on the evidence of facts, it is not an easy task to adapt it to the wants of a highly civilized community, when tho mutual relations of men are multiplied to a surprising extent, and have assumed the enlightened and intellectual character of the age.✻

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 en, lightened 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.† They have established it, or hastened to re-establish it, in all their settlements. A judicial institution which obtains the suffrages of a great people for so long a series of ages, which is zealously renewed at every epoch of civilization, in all the climates of the earth, and under every form of human government, cannot be contrary to the spirit of justice.‡

✻ The investigation of trial by jury as a judicial institution, and the appreciation of its effects in the United States, together with the advantages the Americans have derived from it, would suffice to form a book, and a book upon a very useful and curious subject. The State of Louisiana would in particular afford the curious phenomenon of a French and English legislation, as well as a French and English population, which are gradually combining with each other. See the 'Digeste des Lois de la Louisiane,' in two volumes; and the 'Traité sur les Regles des Actions civiles,' printed in French and English at New Orleans in 1830.

† 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.)

If it were our province to point out the utility of the jury as a judicial institution

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, in as much 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

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 dependent 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 attaining those objects which it is the purpose of courts of justice to accomplish. For my own part, I had rather submit the decision of a case to ignorant jurors directed by a skilful judge, than to judges, a majority of whom are imperfectly acquainted with jurisprudence and with the laws.

[I venture to remind the reader, lest this note should appear somewhat redundantto 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.]