Democracy In America, Alexis de Tocqueville, 1831
The Federal Constitution has introduced the jury into the tribunals of the Union, just 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, Book III, Chap. xxxviii, pp. 654-9; Sergeant’s Constitutional Law, p. 165. See also the Federal laws of 1789, 1800, and 1802 on this subject.
In order thoroughly to understand American principles with respect to the formation of juries, I examined the laws of widely separated states, 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 on 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 town or county magistrates ( called selectmen in New England, supervisors in New York, trustees in Ohio, and sheriffs of the parish in Louisiana) chooses for each county a certain number of citizens who have the right of serving as jurymen, and who are supposed to be capable of doing so. 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, especially in New England, 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 case are drawn by lot from the whole list of names. The Americans have endeavored in every way to make the common people eligible for the jury and to render the service as little onerous as possible. The jurors being very numerous, each one’s turn does not come round oftener than once in three years. The sessions are held in the chief town of every county. The county is roughly equivalent to our arrondissement. Thus the court comes to the jury, instead of bringing the jury to it, as in France. Finally, the jury are indemnified for their attendance either by the state or by the parties concerned. They receive in general a dollar per day (5.42 francs), besides their traveling-expenses. In America being placed upon the jury is looked upon as a burden, but it is a burden that is easily borne, and to which everyone readily submits.
See Brevard’s Digest of the Public Statute Law of South Carolina, Vol. II, p. 338; idem., Vol. I, pp. 454, 456; idem., Vol. II, p. 218.
See The General Laws of Massachusetts Revised and Published by Authority of the Legislature, Vol. II, pp. 331, 187.
See The Revised Statutes of the State of New York, Vol. II, pp. 720, 411, 717, 643.
See The Statute Law of the State of Tennessee, Vol. I, p. 209.
See Acts of the State of Ohio, pp. 95, 210.
See Digeste g‚n‚rale des actes de la l‚gislature de la Louisiane, Vol.II,p.55.
The original copyright for Alexis de Tocqueville’s, “Democracy In America,” Translated by Henry Reeve, 1899, is held in the Public Domain because its copyright has expired. Formatting of this digital copy of Democracy In America Copyright © 2011 Steve Farrell and The Moral Liberal. Non-commercial, educational use of individual chapters is encouraged with a live link back to the original copy at The Moral Liberal and a courtesy note to the editors.