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This article reconstructs the influence of American lawyers on Tocqueville's thought. By placing Tocqueville's well-known reflections on the role of lawyers in American democracy in the context of the 1820s-30s debates about the trial by jury and the issue of codification, and shedding light over the underexplored thought of one of Tocqueville's mains sources, Edward Livingston of Louisiana, the article advances a new interpretation of Democracy in America's considerations about the legal spirit and the dialectics between judicial institutions and democratic society.
In 1851, Thomas Hart Benton wrote to Martin Van Buren in shock. He had just read Democracy in America, was outraged at Tocqueville's picture of American democracy, and intended to correct the Frenchman's "errors." The British journalist Henry Reeve had translated the two volumes of Democracy in America immediately after their publication in French (1835 and 1840), and by the time Benton read it, the book had been widely acclaimed on both continents. Providing an alternative account of the Jacksonian years, Benton believed, was an urgent task for the Democratic party, for Tocqueville was already "the authority on American democracy in Europe, and with the federalists here, and will be with our posterity if they know nothing but what the federalists write." Tocqueville had portrayed Andrew Jackson as "a man of violent character and middling capacity," and a slave of the majority who behaved toward Congress as "a favorite that sometimes bullies his master." Furthermore, he had condemned Jackson's politics for undermining the institution of the presidency and weakening the Union. In order to counter such analysis, Benton dedicated a chapter of Thirty Years' View, his memoirs of his career in Congress, to a detailed refutation of Democracy in America.1
Not that Benton accused Tocqueville of bad faith; he rather regarded the traveler as a "victim of the company which he kept while among us; and his book must pay the penalty of the impositions practiced upon him." What company? Benton answers: "Bankers, brokers, jobbers, contractors . . . speculators." At the opposite side of the political spectrum, the critics of Jacksonian Democracy were not happier with Tocqueville's book. Disappointment was their main reaction: Democracy in America contained nothing new to the American reader. It borrowed, as Joseph Story put it, from the Federalist and Story's Commentaries on the Constitution, and only repeated known truths about the working of American institutions.2
However, contrary to Benton's suspicion, Tocqueville's American friends were not speculators, but rather politicians and lawyers. Nor were they all fervent "Federalists": Tocqueville's appreciation of American democracy is more complex than Story believed. This article reconstructs the influence of Edward Livingston, an atypical Democrat, on Tocqueville's understanding of Jacksonian America. Through such reconstruction, I hope to shed light on Tocqueville's relation to American lawyers, as both sources and objects of Democracy in America.3
A former representative and senator, Edward Livingston served as secretary of state in Jackson's cabinet from 1831 through 1833. During Tocqueville's stay in Washington, Livingston was a generous host and a constant, friendly interlocutor. In Democracy in America, where no mention of any other American contact is made, Tocqueville praises him as "one of those rare men whom one likes from having read their writings." Indeed, even before traveling to America, Tocqueville and Beaumont had admired the political philosophy of Livingston's writings on criminal law.4
Tocqueville's reflections of the role of lawyers in American democracy, I suggest, are best understood in the context of two debates that characterized the transition from colonial to republican law: the controversy about the role of the jury in criminal trials, and the debate about codification. On both these issues, Edward Livingston had expressed strong views, which Tocqueville adopted as a starting point for his own observations.
In the 1820s, a dispute arose over the role of American judges and the structure of criminal trials. Radical Democrats distrusted judges appointed for life tenure and pressured to curb the role of trial judges by allowing the jury to decide not only matters of fact but also matters of law. Moderates believed that in order to effectively secure the independence of the judiciary, the republic needed to preserve the role of the judges as sole interpreters of the law, and therefore opposed proposals to extend the jury's powers. The democratic demand for popular control over the trial sprang from two convictions: first, that the judiciary should not be left unchecked, second, that the people were competent to interpret the laws they had made.5
While this line of defense of the jury echoed old tropes from the English tradition, Edward Livingston enriched it with a new argument. He advocated for extending the powers of the jury and making the trial by jury obligatory in all criminal prosecutions, and regarded it as "a privilege which cannot be renounced." But, interestingly, Livingston focused not so much on the advantages for defendant as on the jurors. Juries function, he observed, like schools "where the dictates of the laws and the consequences of disobedience to them are practically taught." Even more importantly, by acting as the "guardian of the life, liberty, and reputations of his fellow citizens," the juror acquires a sense of dignity and responsibility that nourishes civic virtues. Livingston regards the institution of the jury as a bastion of democratic freedom: "While the people enjoy the trial by jury, taken by lot from among themselves, they cannot cease to be free. The information it spreads; the sense of dignity and independence it inspires; the courage it creates, will always give them an energy of resistance, that can grapple with encroachment; and a renovating spirit that will make arbitrary power despair." In sum, Livingston passionately argued that trial by jury ennobled (rather than threatened) the independence of the judiciary. For him, the role of juries was not only to balance the judges' authority in the trial but also to provide the jurors with an opportunity to learn and exercise democratic freedom.6
Similarly, Tocqueville argued that the jury "serves incredibly to form the judgment and to augment the natural enlightenment of the people" and that "one ought to consider it as a school, free of charge and always open." Very much like Livingston, Tocqueville observed that the jury teaches the practice of equity, for in judging his neighbor each juror thinks that he could be judged in his turn. But Tocqueville added that jurors learn also by their exposure to the lawyers, who, in Tocqueville's terms, form the most intellectual portion of American society. In Tocqueville's reading of America, the jury has the advantage of partly bridging the gap between lawyers and laymen: It gives to "the minds of all citizens a part of the habits of mind of the judge" and thus spreads the "legal spirit." Characteristic of the legal spirit are a number of psychological inclinations-"instinct for preservation," a "reverence for the past," and "taste for procedure." Because it is eminently conservative, the legal spirit can effectively neutralize the risks inherent in popular government.7
However, pace a long interpretive tradition, Tocqueville does not want lawyers to become a sort of aristocracy within American democracy. He praises the mindset, not the class, of the lawyers, and believes that democratic freedom can be secured if ordinary citizens could adopt the "legal spirit." "The spirit of the lawyer," Tocqueville writes, "born inside the schools and courtrooms, therefore spreads little by little beyond their precincts; it so to speak infiltrates all of society, it descends to the lowest ranks, and the people as a whole in the end contract a part of the habits and tastes of the magistrate." This way the competence of the jurists is socialized.8
Thus, for Tocqueville, while the lawyers acquire a sort of cultural hegemony, they lose the privilege of exclusive access to the law. The democratization of the trial has far-reaching consequences on political democracy: It familiarizes the people with legal reasoning and develops their capacity of judgment. Through this process, the jury becomes truly "a mode of sovereignty of the people"; the risk of the lawyers forming an aristocracy separated from the rest of society is reduced.9
The socialization of the legal spirit, however, was not sufficient to bridge the gap between professional lawyers and laymen: A major obstacle persisted in English case-law system. Between 1820 and 1850 radical democrats engaged in a campaign for reform of the common law, which they regarded as a burdened colonial legacy: The law was uncertain, overly technical, and of foreign origins. Jacksonians initiated a movement for codification, aiming both to attack the corporate privileges of the lawyers and deeply reform the legal system. The intellectual roots of such movement lie in a transatlantic dialogue.10
In 1811, Jeremy Bentham wrote to President James Madison offering to write a code of American law to replace the existing "shapeless mass of merely conjectural, and essentially uncognizable matter . . . a species of mock law." Madison's reply, delayed by the War of 1812, arrived only in 1816 and was rather cold. Almost everywhere in the country the conservative bar opposed codification and hindered reform. Louisiana was a remarkable exception: Its eclectic body of laws including French, Spanish, and Anglo American customs caused obvious practical difficulties. In 1820 the General Assembly of Louisiana decided that a code of criminal law should be drafted, and Edward Livingston was appointed to the task.11
Completed after two years of work, destroyed by a fire, and immediately rewritten, Livingston's penal code contained tremendous innovations, including the abolition of the death penalty. The advanced content of the code reflected the influence of European philosophers such as Cesare Beccaria, Jeremy Bentham, and the French philosophes on Livingston's thought. But the structure of the code was as radical as its content. Two key Enlightenment principles informed it-scientific rigor in the organization of society, and publicity.12
Expressing his intellectual debt in a letter to Jeremy Bentham, Livingston explained, "the perusal of your works first gave method to my ideas, and taught me to consider legislation as a science governed by certain principles applicable to all its different branches, instead of an occasional exercise of powers called forth only on particular occasions." The penal code for Louisiana, indeed, was a comprehensive document: It included prohibitions, procedure, and corrections. It was also self-standing and remarkably coherent, because it was free from any reference to foreign law.13
While the code's internal coherence reduced legal uncertainty, its wording, deprived of legal obscurity, was designed to reach a wide public. Livingston framed his argument for publicity in terms of popular sovereignty: "The people must be forced to know what their servants are doing." In the same spirit, he insisted that the language of the law should be comprehensible to all citizens. To test the accessibility of his code, he submitted drafts to people with no legal training and asked them to mark the words they could not understand. He then included the words marked in an adjoined glossary called "Book of Definitions." By opening "the arcana of penal legislation" and explaining the reasons of the laws, Livingston intended to enable the people to "obey [the laws] with cheerfulness, if just, and know how to change them, if oppressive."14
Livingston wanted to limit the arbitrariness of judicial interpretation in order to prevent judges from "illegally" making the law. From his perspective, the necessity of codification stemmed directly from the constitutional separation of powers, interpreted as a division of functions, which assigned lawmaking exclusively to the legislature and legal interpretation to the courts. Consequently, the Louisiana code included a radical provision: The judges must bring before the legislature, at stated periods, all the cases that could not be easily decided, so that the representatives could specify or improve the law. With such measure, Livingston observed, "the harmony of our constitutional distribution of powers will be undisturbed; and the ends of public justice attained with greater regularity and better effect." The state of Louisiana never enacted the penal code, which was perhaps perceived as too radical, and Livingston soon dropped his project of reform and become involved in national politics. However, Livingston's code, published in London in 1824, obtained high praise in Europe, and particularly France.15
Tocqueville compared the American common law to the French codified law, and in his travel notes assessed the respective merits of each system. These notes are best understood in the context of the European debate over codification, which originated soon after the publication of the Napoleonic Code in 1804. Opponents to the code emphasized that common law offers unparalleled guarantees against state oppression. Codified law, the argument went, might be technically advanced but gives little protection against the legislative's will, which judges have no means to mitigate. Though well aware of the risks ingrained in the rigidity of codified law, Tocqueville deliberately pushed back against this view. He observed that, because common-law systems lack legal certainty, their power to protect liberty hangs on the moral integrity of judges. Codified law, Tocqueville observed, demands less from the judges' morality, and has functional advantages, for it makes the law accessible to a wider public than to the small "sect" of lawyers, makes it fixed (rather than "ambulatory"), and easy to consult.
It is important to notice that, while Tocqueville concluded his comparison by observing that "the two systems, in the hands of equally enlightened people, more or less end up balancing each other out," the merits that he found in codified law were not merely technical but especially political. In agreement with Livingston, Tocqueville regarded the quasi-religious power of American lawyers as a threat to democracy and explained American lawyers' hostility to codification as a symptom of their corporatist spirit:
Generally, American men of law emphatically sing the praises of the common law. They oppose codification with all their powers which is to be explained in this way. First, if a code of law was made, they would have to begin their studies again. Second, the law becoming accessible to the common herd, they would lose part of their importance. They would no longer be like the Egyptian Priests, the sole interpreters of an occult science. . . . Mr. Edward Livingston on the contrary is very much in favour of codification. He told me straight out today that the lawyers who were of an opposite opinion had an interest in the matter.16
A traditional interpretation of Democracy in America goes as follows: In order to prevent the tyranny of the majority, Tocqueville deems it necessary to combine democratic elements (institutions and social forces) with aristocratic ones; so, for Tocqueville, American lawyers are an external yet indispensable corrective to democratic society. However, through a careful reading of Democracy in America as well as Tocqueville's travel notes comparing common law and codified law systems it is possible to challenge this view and advance a very different line of interpretation of the social function of American lawyers.
Tocqueville insists that, while lawyers form a sort of aristocracy of the spirit, no fixed class interests separate them from the rest of the people: "The lawyer belongs to the people by his interest and by his birth and to the aristocracy by his habits and his tastes; he is like the natural liaison between these two, like the link that unites them." Lawyers' dual character enables them to love democracy and secure the trust of the people, and in this way, they also come to occupy the most important political offices in the United States. Lawyers' social position ought to facilitate the process whereby their class spirit becomes the general spirit of a democratic society educated in a love for procedure-a process that Tocqueville deems indispensable to the existence of free institutions. Thus, the socialization of legal spirit enables a permanent political education; this education, in turn, produces a more mature people and leads to the opening-up of the legal class, which gradually loses the cultural privileges on which its aristocratic character depended. It is therefore clear that in discussing lawyers, Tocqueville uses the concept of "aristocracy" by analogy alone.17
Contrary to those like Francois Guizot, who claimed that any society has an inevitable aristocratic tendency, Tocqueville imagines a device (the jury) for progressively reducing the distance between cultural aristocracy (the class of the lawyers) and the remainder of citizens. It should be added that he approaches the problem of aristocracy-and more generally of elites-from the temporal perspective of the medium term. Whereas the schema of counterweights is static-it is, in every age, necessary to balance out the different social classes-Tocqueville's model is evolutionary. Its positive assessment of the particularity of the "legal spirit" is based entirely on the latter's effect on education and its ability to form democratic citizens.
Reconstructing Livingston's influence on Tocqueville helps understand Tocqueville's endorsement of democratic arguments for limiting the lawyers' power and preventing them from becoming a caste set apart from democracy. Democracy, Tocqueville famously argued, can flourish only if it "penetrates" all levels of society, including criminal law and procedure. But Tocqueville was also careful not to introduce a tension between democracy and legality: What he opposed was the lawyers' privilege and excessive power, not their distinctive spirit. Alongside Democrats like Edward Livingston, Tocqueville advocated at once for the democratization of the law and for the socialization of the legal spirit.
1.Thomas Hart Benton to Martin Van Buren, Sept. 25, 1851, Van Buren Papers, Library of Congress, Washington, DC, Series 2; Ibid., Sept. 28, 1851; Alexis de Tocqueville, Democracy in America, trans. Harvey Mansfield and Delba Winthrop (Chicago, 2000), 377-78.
2. Thomas Hart Benton, Thirty Years' View; or A History of the Working of the American Government for Thirty Years, From 1820 to 1850 (2 vols., New York, 1854), 1: 113-14; Joseph Story to Francis Lieber, May 9, 1840, quoted in William W. Story, Life and Letters of Joseph Story (2 vols., Boston, 1851), 2: 330.
3. As George Pierson notes, the list of important American politicians that Tocqueville and Gustave de Beaumont had not met or seen in action is very short. It includes only James Madison, who was an old man, Van Buren, and John Tyler. While having not personally met Benton and John C. Calhoun, Tocqueville had seen them at work in the Senate. See Pierson, Tocqueville in America (1938; repr. Baltimore, 1996), 736-37.
4. Tocqueville, Democracy in America, 17. See also Gustave de Beaumont and Alexis de Tocqueville, On the Penitentiary System in the United States and Its Application in France, trans. Francis Lieber (Philadelphia, 1833), 17. For details on Livingston's life, see Jerome Hall, "Edward Livingston and His Louisiana Penal Code," American Bar Association Journal 22 (Mar. 1936), 191-96.
5.See Renee B. Lettow, "New Trial for Verdict against Law: Judge-Jury Relations in Early Nineteenth-Century America," Notre Dame Law Review 71 (Jan. 1996), 505-53.
6. Edward Livingston, Project of a New Penal Code for the State of Louisiana (London, 1824), 13, 15-16.
7. Tocqueville, Democracy in America, 262.
8. Ibid., 258. On this topic, see Albert W. Dzur, "Democracy's 'Free School': Tocqueville and Lieber on the Value of the Jury," Political Theory 38 (Oct. 2010), 603-30.
9. Tocqueville, Democracy in America, 261.
10. On the codification movement, see Morris L. Cohen, "The Common Law in the American Legal System: The Challenge of Conceptual Research," Law Library Journal 81 (Winter 1989), 13-32; Charles M. Cook, The American Codification Movement: A Study of Antebellum Legal Reform (Westport, CT, 1981); Shael Herman, "The Fate and the Future of Codification in America," American Journal of Legal History 40 (Oct. 1996), 407, 417; Roscoe Pound, The Formative Age ofAmerican Law (Boston, 1938).
11. Jeremy Bentham to James Madison, Oct. 30, 1811, Founders Online, National Archives, Washington, DC, https://founders.archives.gov/documents/ Madison/03-03-02-0595. On Livingston's appointment, see Vernon Valentine Palmer, The Louisiana Civilian Experience: Critiques of Codification in a Mixed Jurisdiction (Durham, NC, 2005).
12. Livingston was especially oriented toward France, the French Enlightenment, and French Revolution, which he defended with enthusiasm. See William B. Hatcher, Edward Livingston, Jeffersonian Republican and Jacksonian Democrat (Baton Rouge, LA, 1940), 35-36; Grant M. Lyons, "The European Response to Edward Livingston's System of Criminal Law," Loyola Law Review 24 (1978), 623.
13. Edward Livingston to Bentham, July 1, 1830, in The Works of Jeremy Bentham, ed. John Bowring (11 vols., Edinburgh, 1843), 11: 51.
14. Livingston, Project of a New Code, 11-12, 5, 11.
15. Ibid., 10.
16. Alexis de Tocqueville, Œuvres Completes, Tome V, ed. J. P. Mayer (2 vols., Paris, 1957-58), 1: 315-16; Alexis de Tocqueville, Journey to America, ed. J. P. Mayer, trans. George Lawrence (1957; repr. Garden City, NY, 1971), 321.
17. Tocqueville, Democracy in America, 254.
Copyright University of Pennsylvania Press Spring 2019