Democracy in America — Volume 2

Appendix Q

The Federal Constitution has introduced the jury into the tribunals of the Union in the same way as the States had introduced it into their own several courts; but as it has not established any fixed rules for the choice of jurors, the federal courts select them from the ordinary jury list which each State makes for itself. The laws of the States must therefore be examined for the theory of the formation of juries. See Story's "Commentaries on the Constitution," B. iii. chap. 38, p. 654-659; Sergeant's "Constitutional Law," p. 165. See also the Federal Laws of the years 1789, 1800, and 1802, upon the subject. For the purpose of thoroughly understanding the American principles with respect to the formation of juries, I examined the laws of States at a distance from one another, and the following observations were the result of my inquiries. In America, all the citizens who exercise the elective franchise have the right of serving upon a jury. The great State of New York, however, has made a slight difference between the two privileges, but in a spirit quite contrary to that of the laws of France; for in the State of New York there are fewer persons eligible as jurymen than there are electors. It may be said in general that the right of forming part of a jury, like the right of electing representatives, is open to all the citizens: the exercise of this right, however, is not put indiscriminately into any hands. Every year a body of municipal or county magistrates—called "selectmen" in New England, "supervisors" in New York, "trustees" in Ohio, and "sheriffs of the parish" in Louisiana—choose for each county a certain number of citizens who have the right of serving as jurymen, and who are supposed to be capable of exercising their functions. These magistrates, being themselves elective, excite no distrust; their powers, like those of most republican magistrates, are very extensive and very arbitrary, and they frequently make use of them to remove unworthy or incompetent jurymen. The names of the jurymen thus chosen are transmitted to the County Court; and the jury who have to decide any affair are drawn by lot from the whole list of names. The Americans have contrived in every way to make the common people eligible to the jury, and to render the service as little onerous as possible. The sessions are held in the chief town of every county, and the jury are indemnified for their attendance either by the State or the parties concerned. They receive in general a dollar per day, besides their travelling expenses. In America, the being placed upon the jury is looked upon as a burden, but it is a burden which is very supportable. See Brevard's "Digest of the Public Statute Law of South Carolina," vol. i. pp. 446 and 454, vol. ii. pp. 218 and 338; "The General Laws of Massachusetts, revised and published by authority of the Legislature," vol. ii. pp. 187 and 331; "The Revised Statutes of the State of New York," vol. ii. pp. 411, 643, 717, 720; "The Statute Law of the State of Tennessee," vol. i. p. 209; "Acts of the State of Ohio," pp. 95 and 210; and "Digeste general des Actes de la Legislature de la Louisiane."

Appendix R

If we attentively examine the constitution of the jury as introduced into civil proceedings in England, we shall readily perceive that the jurors are under the immediate control of the judge. It is true that the verdict of the jury, in civil as well as in criminal cases, comprises the question of fact and the question of right in the same reply; thus—a house is claimed by Peter as having been purchased by him: this is the fact to be decided. The defendant puts in a plea of incompetency on the part of the vendor: this is the legal question to be resolved. But the jury do not enjoy the same character of infallibility in civil cases, according to the practice of the English courts, as they do in criminal cases. The judge may refuse to receive the verdict; and even after the first trial has taken place, a second or new trial may be awarded by the Court. See Blackstone's "Commentaries," book iii. ch. 24.

Appendix S

I find in my travelling journal a passage which may serve to convey a more complete notion of the trials to which the women of America, who consent to follow their husbands into the wilds, are often subjected. This description has nothing to recommend it to the reader but its strict accuracy:

". . . From time to time we come to fresh clearings; all these places are alike; I shall describe the one at which we have halted to-night, for it will serve to remind me of all the others.

"The bell which the pioneers hang round the necks of their cattle, in order to find them again in the woods, announced our approach to a clearing, when we were yet a long way off; and we soon afterwards heard the stroke of the hatchet, hewing down the trees of the forest. As we came nearer, traces of destruction marked the presence of civilized man; the road was strewn with shattered boughs; trunks of trees, half consumed by fire, or cleft by the wedge, were still standing in the track we were following. We continued to proceed till we reached a wood in which all the trees seemed to have been suddenly struck dead; in the height of summer their boughs were as leafless as in winter; and upon closer examination we found that a deep circle had been cut round the bark, which, by stopping the circulation of the sap, soon kills the tree. We were informed that this is commonly the first thing a pioneer does; as he cannot in the first year cut down all the trees which cover his new parcel of land, he sows Indian corn under their branches, and puts the trees to death in order to prevent them from injuring his crop. Beyond this field, at present imperfectly traced out, we suddenly came upon the cabin of its owner, situated in the centre of a plot of ground more carefully cultivated than the rest, but where man was still waging unequal warfare with the forest; there the trees were cut down, but their roots were not removed, and the trunks still encumbered the ground which they so recently shaded. Around these dry blocks, wheat, suckers of trees, and plants of every kind, grow and intertwine in all the luxuriance of wild, untutored nature. Amidst this vigorous and various vegetation stands the house of the pioneer, or, as they call it, the log house. Like the ground about it, this rustic dwelling bore marks of recent and hasty labor; its length seemed not to exceed thirty feet, its height fifteen; the walls as well as the roof were formed of rough trunks of trees, between which a little moss and clay had been inserted to keep out the cold and rain.

"As night was coming on, we determined to ask the master of the log house for a lodging. At the sound of our footsteps, the children who were playing amongst the scattered branches sprang up and ran towards the house, as if they were frightened at the sight of man; whilst two large dogs, almost wild, with ears erect and outstretched nose, came growling out of their hut, to cover the retreat of their young masters. The pioneer himself made his appearance at the door of his dwelling; he looked at us with a rapid and inquisitive glance, made a sign to the dogs to go into the house, and set them the example, without betraying either curiosity or apprehension at our arrival.

"We entered the log house: the inside is quite unlike that of the cottages of the peasantry of Europe: it contains more than is superfluous, less than is necessary. A single window with a muslin blind; on a hearth of trodden clay an immense fire, which lights the whole structure; above the hearth a good rifle, a deer's skin, and plumes of eagles' feathers; on the right hand of the chimney a map of the United States, raised and shaken by the wind through the crannies in the wall; near the map, upon a shelf formed of a roughly hewn plank, a few volumes of books—a Bible, the six first books of Milton, and two of Shakespeare's plays; along the wall, trunks instead of closets; in the centre of the room a rude table, with legs of green wood, and with the bark still upon them, looking as if they grew out of the ground on which they stood; but on this table a tea-pot of British ware, silver spoons, cracked tea-cups, and some newspapers.

"The master of this dwelling has the strong angular features and lank limbs peculiar to the native of New England. It is evident that this man was not born in the solitude in which we have met with him: his physical constitution suffices to show that his earlier years were spent in the midst of civilized society, and that he belongs to that restless, calculating, and adventurous race of men, who do with the utmost coolness things only to be accounted for by the ardor of the passions, and who endure the life of savages for a time, in order to conquer and civilize the backwoods.

"When the pioneer perceived that we were crossing his threshold, he came to meet us and shake hands, as is their custom; but his face was quite unmoved; he opened the conversation by inquiring what was going on in the world; and when his curiosity was satisfied, he held his peace, as if he were tired by the noise and importunity of mankind. When we questioned him in our turn, he gave us all the information we required; he then attended sedulously, but without eagerness, to our personal wants. Whilst he was engaged in providing thus kindly for us, how came it that in spit of ourselves we felt our gratitude die upon our lips? It is that our host whilst he performs the duties of hospitality, seems to be obeying an irksome necessity of his condition: he treats it as a duty imposed upon him by his situation, not as a pleasure. By the side of the hearth sits a woman with a baby on her lap: she nods to us without disturbing herself. Like the pioneer, this woman is in the prime of life; her appearance would seem superior to her condition, and her apparel even betrays a lingering taste for dress; but her delicate limbs appear shrunken, her features are drawn in, her eye is mild and melancholy; her whole physiognomy bears marks of a degree of religious resignation, a deep quiet of all passions, and some sort of natural and tranquil firmness, ready to meet all the ills of life, without fearing and without braving them. Her children cluster about her, full of health, turbulence, and energy: they are true children of the wilderness; their mother watches them from time to time with mingled melancholy and joy: to look at their strength and her languor, one might imagine that the life she has given them has exhausted her own, and still she regrets not what they have cost her. The house inhabited by these emigrants has no internal partition or loft. In the one chamber of which it consists, the whole family is gathered for the night. The dwelling is itself a little world—an ark of civilization amidst an ocean of foliage: a hundred steps beyond it the primeval forest spreads its shades, and solitude resumes its sway."

Appendix T

It is not the equality of conditions which makes men immoral and irreligious; but when men, being equal, are at the same time immoral and irreligious, the effects of immorality and irreligion easily manifest themselves outwardly, because men have but little influence upon each other, and no class exists which can undertake to keep society in order. Equality of conditions never engenders profligacy of morals, but it sometimes allows that profligacy to show itself.

Appendix U

Setting aside all those who do not think at all, and those who dare not say what they think, the immense majority of the Americans will still be found to appear satisfied with the political institutions by which they are governed; and, I believe, really to be so. I look upon this state of public opinion as an indication, but not as a demonstration, of the absolute excellence of American laws. The pride of a nation, the gratification of certain ruling passions by the law, a concourse of circumstances, defects which escape notice, and more than all the rest, the influence of a majority which shuts the mouth of all cavillers, may long perpetuate the delusions of a people as well as those of a man. Look at England throughout the eighteenth century. No nation was ever more prodigal of self-applause, no people was ever more self-satisfied; then every part of its constitution was right—everything, even to its most obvious defects, was irreproachable: at the present day a vast number of Englishmen seem to have nothing better to do than to prove that this constitution was faulty in many respects. Which was right?—the English people of the last century, or the English people of the present day?

The same thing has occurred in France. It is certain that during the reign of Louis XIV the great bulk of the nation was devotedly attached to the form of government which, at that time, governed the community. But it is a vast error to suppose that there was anything degraded in the character of the French of that age. There might be some sort of servitude in France at that time, but assuredly there was no servile spirit among the people. The writers of that age felt a species of genuine enthusiasm in extolling the power of their king; and there was no peasant so obscure in his hovel as not to take a pride in the glory of his sovereign, and to die cheerfully with the cry "Vive le Roi!" upon his lips. These very same forms of loyalty are now odious to the French people. Which are wrong?—the French of the age of Louis XIV, or their descendants of the present day?

Our judgment of the laws of a people must not then be founded Future Condition Of Three Races In The United States exclusively upon its inclinations, since those inclinations change from age to age; but upon more elevated principles and a more general experience. The love which a people may show for its law proves only this:—that we should not be in too great a hurry to change them.

Appendix V

In the chapter to which this note relates I have pointed out one source of danger: I am now about to point out another kind of peril, more rare indeed, but far more formidable if it were ever to make its appearance. If the love of physical gratification and the taste for well-being, which are naturally suggested to men by a state of equality, were to get entire possession of the mind of a democratic people, and to fill it completely, the manners of the nation would become so totally opposed to military tastes, that perhaps even the army would eventually acquire a love of peace, in spite of the peculiar interest which leads it to desire war. Living in the midst of a state of general relaxation, the troops would ultimately think it better to rise without efforts, by the slow but commodious advancement of a peace establishment, than to purchase more rapid promotion at the cost of all the toils and privations of the field. With these feelings, they would take up arms without enthusiasm, and use them without energy; they would allow themselves to be led to meet the foe, instead of marching to attack him. It must not be supposed that this pacific state of the army would render it adverse to revolutions; for revolutions, and especially military revolutions, which are generally very rapid, are attended indeed with great dangers, but not with protracted toil; they gratify ambition at less cost than war; life only is at stake, and the men of democracies care less for their lives than for their comforts. Nothing is more dangerous for the freedom and the tranquillity of a people than an army afraid of war, because, as such an army no longer seeks to maintain its importance and its influence on the field of battle, it seeks to assert them elsewhere. Thus it might happen that the men of whom a democratic army consists should lose the interests of citizens without acquiring the virtues of soldiers; and that the army should cease to be fit for war without ceasing to be turbulent. I shall here repeat what I have said in the text: the remedy for these dangers is not to be found in the army, but in the country: a democratic people which has preserved the manliness of its character will never be at a loss for military prowess in its soldiers.

Appendix W

Men connect the greatness of their idea of unity with means, God with ends: hence this idea of greatness, as men conceive it, leads us into infinite littleness. To compel all men to follow the same course towards the same object is a human notion;—to introduce infinite variety of action, but so combined that all these acts lead by a multitude of different courses to the accomplishment of one great design, is a conception of the Deity. The human idea of unity is almost always barren; the divine idea pregnant with abundant results. Men think they manifest their greatness by simplifying the means they use; but it is the purpose of God which is simple—his means are infinitely varied.

Appendix X

A democratic people is not only led by its own tastes to centralize its government, but the passions of all the men by whom it is governed constantly urge it in the same direction. It may easily be foreseen that almost all the able and ambitious members of a democratic community will labor without 2 ceasing to extend the powers of government, because they all hope at some time or other to wield those powers. It is a waste of time to attempt to prove to them that extreme centralization may be injurious to the State, since they are centralizing for their own benefit. Amongst the public men of democracies there are hardly any but men of great disinterestedness or extreme mediocrity who seek to oppose the centralization of government: the former are scarce, the latter powerless.

Appendix Y

I have often asked myself what would happen if, amidst the relaxation of democratic manners, and as a consequence of the restless spirit of the army, a military government were ever to be founded amongst any of the nations of the present age. I think that even such a government would not differ very much from the outline I have drawn in the chapter to which this note belongs, and that it would retain none of the fierce characteristics of a military oligarchy. I am persuaded that, in such a case, a sort of fusion would take place between the habits of official men and those of the military service. The administration would assume something of a military character, and the army some of the usages of the civil administration. The result would be a regular, clear, exact, and absolute system of government; the people would become the reflection of the army, and the community be drilled like a garrison.

Appendix Z

It cannot be absolutely or generally affirmed that the greatest danger of the present age is license or tyranny, anarchy or despotism. Both are equally to be feared; and the one may as easily proceed as the other from the selfsame cause, namely, that "general apathy," which is the consequence of what I have termed "individualism": it is because this apathy exists, that the executive government, having mustered a few troops, is able to commit acts of oppression one day, and the next day a party, which has mustered some thirty men in its ranks, can also commit acts of oppression. Neither one nor the other can found anything to last; and the causes which enable them to succeed easily, prevent them from succeeding long: they rise because nothing opposes them, and they sink because nothing supports them. The proper object therefore of our most strenuous resistance, is far less either anarchy or despotism than the apathy which may almost indifferently beget either the one or the other.

Constitution Of The United States Of America