CHAPTER II.

ORIGIN OF THE ANGLO-AMERICANS AND ITS IMPORTANCE, IN RELATION TO THEIR

FUTURE CONDITION.

Utility of knowing the Origin of Nations in order to understand their

social Condition and their Laws.--America the only Country in which the

Starting-Point of a great People has been clearly observable.--In what

respects all who emigrated to British America were similar.--In what

they differed.--Remark applicable to all the Europeans who established

themselves on the shores of the New World.--Colonization of

Virginia.--Colonization of New England.--Original Character of the first

inhabitants of New England.--Their Arrival.--Their first

Laws.--Their social Contract.--Penal Code borrowed from the Hebrew

Legislation.--Religious Fervor.--Republican Spirit.--Intimate Union of

the Spirit of Religion with the Spirit of Liberty.

After the birth of a human being, his early years are obscurely spent in

the toils or pleasures of childhood. As he grows up, the world receives

him, when his manhood begins, and he enters into contact with his

fellows. He is then studied for the first time, and it is imagined that

the germe of the vices and the virtues of his maturer years is then

formed.

This, if I am not mistaken, is a great error. We must begin higher up;

we must watch the infant in his mother's arms; we must see the first

images which the external world casts upon the dark mirror of his mind;

the first occurrences which he beholds; we must hear the first words

which awaken the sleeping powers of thought, and stand by his earliest

efforts, if we would understand the prejudices, the habits, and the

passions, which will rule his life. The entire man is, so to speak, to

be seen in the cradle of the child.

The growth of nations presents something analogous to this; they all

bear some marks of their origin; and the circumstances which accompanied

their birth and contributed to their rise, affect the whole term of

their being.

If we were able to go back to the elements of states, and to examine the

oldest monuments of their history, I doubt not that we should discover

the primary cause of the prejudices, the habits, the ruling passions,

and in short of all that constitutes what is called the national

character: we should then find the explanation of certain customs which

now seem at variance with prevailing manners, of such laws as conflict

with established principles, and of such incoherent opinions as are

here and there to be met with in society, like those fragments of broken

chains which we sometimes see hanging from the vault of an edifice, and

supporting nothing. This might explain the destinies of certain nations

which seem borne along by an unknown force to ends of which they

themselves are ignorant. But hitherto facts have been wanting to

researches of this kind: the spirit of inquiry has only come upon

communities in their latter days; and when they at length turned their

attention to contemplate their origin, time had already obscured it, or

ignorance and pride adorned it with truth-concealing fables.

America is the only country in which it has been possible to study

the natural and tranquil growth of society, and where the influence

exercised on the future condition of states by their origin is clearly

distinguishable.

At the period when the people of Europe landed in the New World, their

national characteristics were already completely formed; each of them

had a physiognomy of its own; and as they had already attained that

stage of civilisation at which men are led to study themselves, they

have transmitted to us a faithful picture of their opinions, their

manners, and their laws. The men of the sixteenth century are almost as

well known to us as our contemporaries. America consequently exhibits in

the broad light of day the phenomena which the ignorance or rudeness of

earlier ages conceals from our researches. Near enough to the time when

the states of America were founded to be accurately acquainted with

their elements, and sufficiently removed from that period to judge

of some of their results. The men of our own day seem destined to

see farther than their predecessors into the series of human events.

Providence has given us a torch which our forefathers did not possess,

and has allowed us to discern fundamental causes in the history of the

world which the obscurity of the past concealed from them.

If we carefully examine the social and political state of America, after

having studied its history, we shall remain perfectly convinced that

not an opinion, not a custom, not a law, I may even say not an event,

is upon record which the origin of that people will not explain. The

readers of this book will find the germe of all that is to follow in the

present chapter, and the key to almost the whole work.

The emigrants who came at different periods to occupy the territory

now covered by the American Union, differed from each other in many

respects; their aim was not the same, and they governed themselves on

different principles.

These men had, however, certain features in common, and they were all

placed in an analogous situation. The tie of language is perhaps the

strongest and most durable that can unite mankind. All the emigrants

spoke the same tongue; they were all offsets from the same people. Born

in a country which had been agitated for centuries by the struggles

of faction, and in which all parties had been obliged in their turn

to place themselves under the protection of the laws, their political

education had been perfected in this rude school, and they were more

conversant with the notions of right, and the principles of true

freedom, than the greater part of their European contemporaries. At the

period of the first emigrations, the parish system, that fruitful germe

of free institutions, was deeply rooted in the habits of the English;

and with it the doctrine of the sovereignty of the people had been

introduced even into the bosom of the monarchy of the house of Tudor.

The religious quarrels which have agitated the Christian world were then

rife. England had plunged into the new order of things with headlong

vehemence. The character of its inhabitants, which had always been

sedate and reflecting, became argumentative and austere. General

information had been increased by intellectual debate, and the mind

had received a deeper cultivation. While religion was the topic of

discussion, the morals of the people were reformed. All these national

features are more or less discoverable in the physiognomy of those

adventurers who came to seek a new home on the opposite shores of the

Atlantic.

Another remark, to which we shall hereafter have occasion to recur, is

applicable not only to the English, but to the French, the Spaniards,

and all the Europeans who successively established themselves in the New

World. All these European colonies contained the elements, if not the

development of a complete democracy. Two causes led to this result. It

may safely be advanced, that on leaving the mother-country the emigrants

had in general no notion of superiority over one another. The happy and

the powerful do not go into exile, and there are no surer guarantees of

equality among men than poverty and misfortune. It happened, however,

on several occasions that persons of rank were driven to America

by political and religious quarrels. Laws were made to establish a

gradation of ranks; but it was soon found that the soil of America was

entirely opposed to a territorial aristocracy. To bring that refractory

land into cultivation, the constant and interested exertions of the

owner himself were necessary; and when the ground was prepared, its

produce was found to be insufficient to enrich a master and a farmer

at the same time. The land was then naturally broken up into small

portions, which the proprietor cultivated for himself. Land is the basis

of an aristocracy, which clings to the soil that supports it; for it

is not by privileges alone, nor by birth, but by landed property handed

down from generation to generation, that an aristocracy is constituted.

A nation may present immense fortunes and extreme wretchedness; but

unless those fortunes are territorial, there is no aristocracy, but

simply the class of the rich and that of the poor.

All the British colonies had then a great degree of similarity at the

epoch of their settlement. All of them, from their first beginning,

seemed destined to behold the growth, not of the aristocratic liberty of

their mother-country, but of that freedom of the middle and lower orders

of which the history of the world has as yet furnished no complete

example.

In this general uniformity several striking differences were however

discernible, which it is necessary to point out. Two branches may be

distinguished in the Anglo-American family, which have hitherto grown

up without entirely commingling; the one in the south, the other in the

north.

Virginia received the first English colony; the emigrants took

possession of it in 1607. The idea that mines of gold and silver are

the sources of national wealth, was at that time singularly prevalent in

Europe; a fatal delusion, which has done more to impoverish the nations

which adopted it, and has cost more lives in America, than the united

influence of war and bad laws. The men sent to Virginia[14] were seekers

of gold, adventurers without resources and without character, whose

turbulent and restless spirits endangered the infant colony,[15] and

rendered its progress uncertain. The artisans and agriculturists arrived

afterward; and although they were a more moral and orderly race of

men, they were in nowise above the level of the inferior classes in

England.[16] No lofty conceptions, no intellectual system directed the

foundation of these new settlements. The colony was scarcely established

when slavery was introduced,[17] and this was the main circumstance

which has exercised so prodigious an influence on the character, the

laws, and all the future prospects of the south.

Slavery, as we shall afterward show, dishonors labor; it introduces

idleness into society, and, with idleness, ignorance and pride, luxury

and distress. It enervates the powers of the mind, and benumbs the

activity of man. The influence of slavery, united to the English

character, explains the mariners and the social condition of the

southern states.

In the north, the same English foundation was modified by the most

opposite shades of character; and here I may be allowed to enter into

some details. The two or three main ideas which constitute the basis

of the social theory of the United States, were first combined in the

northern British colonies, more generally denominated the states of

New England.[18] The principles of New England spread at first to the

neighboring states; they then passed successively to the more distant

ones; and at length they embued the whole confederation. They now extend

their influence beyond its limits over the whole American world. The

civilisation of New England has been like a beacon lit upon a hill,

which, after it has diffused its warmth around, tinges the distant

horizon with its glow.

The foundation of New England was a novel spectacle, and all the

circumstances attending it were singular and original. The large

majority of colonies have been first inhabited either by men without

education and without resources, driven by their poverty and their

misconduct from the land which gave them birth, or by speculators

and adventurers greedy of gain. Some settlements cannot even boast so

honorable an origin: St. Domingo was founded by buccaneers; and, at the

present day, the criminal courts of England supply the population of

Australia.

The settlers who established themselves on the shores of New England all

belonged to the more independent classes of their native country. Their

union on the soil of America at once presented the singular phenomenon

of a society containing neither lords nor common people, neither rich

nor poor. These men possessed, in proportion to their number, a greater

mass of intelligence than is to be found in any European nation of

our own time. All, without a single exception, had received a good

education, and many of them were known in Europe for their talents and

their acquirements. The other colonies had been founded by adventurers

without family; the emigrants of New England brought with them the best

elements of order and morality, they landed in the desert accompanied

by their wives and children. But what most especially distinguished them

was the aim of their undertaking. They had not been obliged by necessity

to leave their country, the social position they abandoned was one to

be regretted, and their means of subsistence were certain. Nor did they

cross the Atlantic to improve their situation, or to increase their

wealth; the call which summoned them from the comforts of their homes

was purely intellectual; and in facing the inevitable sufferings of

exile, their object was the triumph of an idea.

The emigrants, or, as they deservedly styled themselves, the pilgrims,

belonged to that English sect, the austerity of whose principles had

acquired for them the name of puritans. Puritanism was not merely a

religious doctrine, but it corresponded in many points with the most

absolute democratic and republican theories. It was this tendency which

had aroused its most dangerous adversaries. Persecuted by the government

of the mother-country, and disgusted by the habits of a society opposed

to the rigor of their own principles, the puritans went forth to seek

some rude and unfrequented part of the world, where they could live

according to their own opinions, and worship God in freedom.

A few quotations will throw more light upon the spirit of these pious

adventurers than all we can say of them. Nathaniel Morton,[19]

the historian of the first years of the settlement, thus opens his

subject:--

"GENTLE READER: I have for some length of time looked upon it as a duty

incumbent, especially on the immediate successors of those that have had

so large experience of those many memorable and signal demonstrations

of God's goodness, viz., the first beginning of this plantation in New

England, to commit to writing his gracious dispensations on that

behalf; having so many inducements thereunto, not only otherwise, but

so plentifully in the Sacred Scriptures: that so, what we have seen, and

what our fathers have told us (Psalm lxxviii., 3, 4), we may not hide

from our children, showing to the generations to come the praises of the

Lord; that especially the seed of Abraham his servant, and the children

of Jacob his chosen (Psalm cv., 5, 6), may remember his marvellous

works in the beginning and progress of the planting of New England, his

wonders and the judgments of his mouth; how that God brought a vine into

this wilderness; that he cast out the heathen and planted it; that he

made room for it, and caused it to take deep root; and it filled the

land (Psalm lxxx., 8, 9). And not onely so, but also that he hath guided

his people by his strength to his holy habitation, and planted them

in the mountain of his inheritance in respect of precious gospel

enjoyments: and that as especially God may have the glory of all unto

whom it is most due; so also some rays of glory may reach the names of

those blessed saints, that were the main instruments and the beginning

of this happy enterprise."

It is impossible to read this opening paragraph without an involuntary

feeling of religious awe; it breathes the very savor of gospel

antiquity. The sincerity of the author heightens his power of language.

The band, which to his eyes was a mere party of adventurers, gone forth

to seek their fortune beyond the seas, appears to the reader as the

germe of a great nation wafted by Providence to a predestined shore.

The author thus continues his narrative of the departure of the first

pilgrims:--

"So they left that goodly and pleasant city of Leyden, which had been

their resting-place for above eleven years; but they knew that they were

pilgrims and strangers here below, and looked not much on these things,

but lifted up their eyes to Heaven, their dearest country, where God

hath prepared for them a city (Heb. xi., 16), and therein quieted their

spirits. When they came to Delfs-Haven they found the ship and all

things ready; and such of their friends as could come with them,

followed after them, and sundry came from Amsterdam to see them shipt,

and to take their leaves of them. One night was spent with little sleep

with the most, but with friendly entertainment and Christian discourse,

and other real expressions of true Christian love. The next day they

went on board, and their friends with them, where truly doleful was the

sight of that sad and mournful parting, to hear what sighs and sobs and

prayers did sound among them; what tears did gush from every eye, and

pithy speeches pierced each other's heart, that sundry of the Dutch

strangers that stood on the key as spectators could not refrain from

tears. But the tide (which stays for no man) calling them away that were

thus loath to depart, their reverend pastor falling down on his knees,

and they all with him, with watery cheeks commended them with most

fervent prayers unto the Lord and his blessing; and then, with mutual

embraces and many tears, they took their leaves one of another, which

proved to be the last leave to many of them."

The emigrants were about 150 in number, including the women and the

children. Their object was to plant a colony on the shores of the

Hudson; but after having been driven about for some time in the Atlantic

ocean, they were forced to land on that arid coast of New England which

is now the site of the town of Plymouth. The rock is still shown on

which the pilgrims disembarked.[20]

"But before we pass on," continues our historian, "let the reader with

me make a pause, and seriously consider this poor people's present

condition, the more to be raised up to admiration of God's goodness

toward them in their preservation: for being now passed the vast ocean,

and a sea of troubles before them in expectation, they had now no

friends to welcome them, no inns to entertain or refresh them, no

houses, or much less towns to repair unto to seek for succor; and for

the season it was winter, and they that know the winters of the country

know them to be sharp and violent, subject to cruel and fierce storms,

dangerous to travel to known places, much more to search unknown coasts.

Besides, what could they see but a hideous and desolate wilderness, full

of wilde beasts, and wilde men? and what multitudes of them there were,

they then knew not: for which way soever they turned their eyes (save

upward to Heaven) they could have but little solace or content in

respect of any outward object; for summer being ended, all things stand

in appearance with a weather-beaten face, and the whole country full

of woods and thickets represented a wild and savage hue; if they looked

behind them, there was the mighty ocean which they had passed, and was

now as a main bar or gulph to separate them from all the civil parts of

the world."

It must not be imagined that the piety of the puritans was of a merely

speculative kind, or that it took no cognizance of the course of worldly

affairs. Puritanism, as I have already remarked, was scarcely less a

political than a religious doctrine. No sooner had the emigrants landed

on the barren coast, described by Nathaniel Morton, than their first

care was to constitute a society, by passing the following act:[21]--

"IN THE NAME OF GOD, AMEN! We, whose names are underwritten, the loyal

subjects of our dread sovereign lord King James, &c., &c., having

undertaken for the glory of God and advancement of the Christian faith,

and the honor of our king and country, a voyage to plant the first

colony in the northern parts of Virginia: do by these presents solemnly

and mutually, in the presence of God and one another, covenant and

combine ourselves together into a civil body politic, for our better

ordering and preservation, and furtherance of the ends aforesaid: and by

virtue hereof do enact, constitute, and frame, such just and equal laws,

ordinances, acts, constitutions, and officers, from time to time, as

shall be thought most meet and convenient for the general good of the

colony: unto which we promise all due submission and obedience," &c.[22]

This happened in 1620, and from that time forward the emigration went

on. The religious and political passions which ravished the British

empire during the whole reign of Charles I., drove fresh crowds

of sectarians every year to the shores of America. In England the

stronghold of puritanism was in the middle classes, and it was from the

middle classes that the majority of the emigrants came. The population

of New England increased rapidly; and while the hierarchy of rank

despotically classed the inhabitants of the mother-country, the colony

continued to present the novel spectacle of a community homogeneous in

all its parts. A democracy, more perfect than any which antiquity

had dreamed of, started in full size and panoply from the midst of an

ancient feudal society.

The English government was not dissatisfied with an emigration which

removed the elements of fresh discord and of future revolutions. On the

contrary, everything was done to encourage it, and little attention

was paid to the destiny of those who sought a shelter from the rigor of

their country's laws on the soil of America. It seemed as if New England

was a region given up to the dreams of fancy, and the unrestrained

experiments of innovators.

The English colonies (and this is one of the main causes of their

prosperity) have always enjoyed more internal freedom and more political

independence than the colonies of other nations; but this principle of

liberty was nowhere more extensively applied than in the states of New

England.

It was generally allowed at that period that the territories of the

New World belonged to that European nation which had been the first to

discover them. Nearly the whole coast of North America thus became a

British possession toward the end of the sixteenth century. The means

used by the English government to people these new domains were of

several kinds: the king sometimes appointed a governor of his own

choice, who ruled a portion of the New World in the name and under the

immediate orders of the crown;[23] this is the colonial system adopted

by the other countries of Europe. Sometimes grants of certain tracts

were made by the crown to an individual or to a company,[24] in which

case all the civil and political power fell into the hands of one or

more persons, who, under the inspection and control of the crown, sold

the lands and governed the inhabitants. Lastly, a third system consisted

in allowing a certain number of emigrants to constitute a political

society under the protection of the mother-country, and to govern

themselves in whatever was not contrary to her laws. This mode of

colonization, so remarkably favorable to liberty, was adopted only in

New England.[25]

In 1628,[26] a charter of this kind was granted by Charles I. to the

emigrants who went to form the colony of Massachusetts. But, in general,

charters were not given to the colonies of New England till they had

acquired a certain existence. Plymouth, Providence, New Haven, the state

of Connecticut, and that of Rhode Island,[27] were founded without the

co-operation, and almost without the knowledge of the mother-country.

The new settlers did not derive their incorporation from the head of

the empire, although they did not deny its supremacy; they constituted

a society of their own accord, and it was not till thirty or forty

years afterward, under Charles II., that their existence was legally

recognised by a royal charter.

This frequently renders it difficult to detect the link which connected

the emigrants with the land of their forefathers, in studying the

earliest historical and legislative records of New England. They

perpetually exercised the rights of sovereignty; they named their

magistrates, concluded peace or declared war, made police regulations,

and enacted laws, as if their allegiance was due only to God.[28]

Nothing can be more curious, and at the same time more instructive than

the legislation of that period; it is there that the solution of the

great social problem which the United States now present to the world is

to be found.

Among these documents we shall notice as especially characteristic, the

code of laws promulgated by the little state of Connecticut in 1650.[29]

The legislators of Connecticut[30] begin with the penal laws, and,

strange to say, they borrow their provisions from the text of holy writ.

"Whoever shall worship any other God than the Lord," says the preamble

of the code, "shall surely be put to death." This is followed by ten or

twelve enactments of the same kind, copied verbatim from the books of

Exodus, Leviticus, and Deuteronomy. Blasphemy, sorcery, adultery,[31]

and rape were punished with death; an outrage offered by a son to his

parents, was to be expiated by the same penalty. The legislation of a

rude and half-civilized people was thus transferred to an enlightened

and moral community. The consequence was, that the punishment of death

was never more frequently prescribed by the statute, and never more

rarely enforced toward the guilty.

The chief care of the legislators, in this body of penal laws, was the

maintenance of orderly conduct and good morals in the community: they

constantly invaded the domain of conscience, and there was scarcely a

sin which they did not subject to magisterial censure. The reader is

aware of the rigor with which these laws punished rape and adultery;

intercourse between unmarried persons was likewise severely repressed.

The judge was empowered to inflict a pecuniary penalty, a whipping, or

marriage,[32] on the misdemeanants; and if the records of the old

courts of New Haven may be believed, prosecutions of this kind were

not infrequent. We find a sentence bearing date the first of May, 1660,

inflicting a fine and a reprimand on a young woman who was accused of

using improper language, and of allowing herself to be kissed.[33] The

code of 1650 abounds in preventive measures. It punishes idleness and

drunkenness with severity.[34] Innkeepers are forbidden to furnish more

than a certain quantity of liquor to each customer; and simple lying,

whenever it may be injurious,[35] is checked by a fine or a flogging. In

other places, the legislator, entirely forgetting the great principles

of religious toleration which he had himself upheld in Europe, renders

attendance on divine service compulsory,[36] and goes so far as to visit

with severe punishment,[37] and even with death, the Christians who

chose to worship God according to a ritual differing from his own.[38]

Sometimes indeed, the zeal of his enactments induces him to descend to

the most frivolous particulars: thus a law is to be found in the same

code which prohibits the use of tobacco.[39] It must not be forgotten

that these fantastical and vexatious laws were not imposed by authority,

but that they were freely voted by all the persons interested, and that

the manners of the community were even more austere and more puritanical

than the laws. In 1649 a solemn association was formed in Boston to

check the worldly luxury of long hair.[40]

These errors are no doubt discreditable to the human reason; they attest

the inferiority of our nature, which is incapable of laying firm hold

upon what is true and just, and is often reduced to the alternative of

two excesses. In strict connection with this penal legislation, which

bears such striking marks of a narrow sectarian spirit, and of those

religious passions which had been warmed by persecution, and were still

fermenting among the people, a body of political laws is to be found,

which, though written two hundred years ago, is still ahead of the

liberties of our age.

The general principles which are the groundwork of modern

constitutions--principles which were imperfectly known in Europe, and

not completely triumphant even in Great Britain, in the seventeenth

century--were all recognised and determined by the laws of New England:

the intervention of the people in public affairs, the free voting of

taxes, the responsibility of authorities, personal liberty, and trial by

jury, were all positively established without discussion.

From these fruitful principles, consequences have been derived and

applications have been made such as no nation in Europe has yet ventured

to attempt.

In Connecticut the electoral body consisted, from its origin, of the

whole number of citizens; and this is readily to be understood,[41]

when we recollect that this people enjoyed an almost perfect equality of

fortune, and a still greater uniformity of capacity.[42] In Connecticut,

at this period, all the executive functionaries were elected, including

the governor of the state.[43] The citizens above the age of sixteen

were obliged to bear arms; they formed a national militia, which

appointed its own officers, and was to hold itself at all times in

readiness to march for the defence of the country.[44]

In the laws of Connecticut, as well as in those of New England, we find

the germe and gradual development of that township independence, which

is the life and mainspring of American liberty at the present day. The

political existence of the majority of the nations of Europe commenced

in the superior ranks of society, and was gradually and always

imperfectly communicated to the different members of the social body.

In America, on the other hand, it may be said that the township was

organized before the county, the county before the state, the state

before the Union.

In New England, townships were completely and definitively constituted

as early as 1650. The independence of the township was the nucleus

around which the local interests, passions, rights, and duties,

collected and clung. It gave scope to the activity of a real political

life, most thoroughly democratic and republican. The colonies still

recognised the supremacy of the mother-country; monarchy was still the

law of the state; but the republic was already established in every

township.

The towns named their own magistrates of every kind, rated themselves,

and levied their own taxes.[45] In the townships of New England the law

of representation was not adopted, but the affairs of the community were

discussed, as at Athens, in the market-place, by a general assembly of

the citizens.

In studying the laws which were promulgated at this first era of the

American republics, it is impossible not to be struck by the remarkable

acquaintance with the science of government, and the advanced theory of

legislation, which they display. The ideas there formed of the duties

of society toward its members, are evidently much loftier and more

comprehensive than those of the European legislators at that time:

obligations were there imposed which were elsewhere slighted. In the

states of New England, from the first, the condition of the poor was

provided for;[46] strict measures were taken for the maintenance of

roads, and surveyors were appointed to attend to them;[47] registers

were established in every parish, in which the results of public

deliberations, and the births, deaths, and marriages of the citizens

were entered;[48] clerks were directed to keep these registers;[49]

officers were charged with the administration of vacant inheritances,

and with the arbitration of litigated landmarks; and many others were

created whose chief functions were the maintenance of public order in

the community.[50] The law enters into a thousand useful provisions for

a number of social wants which are at present very inadequately felt in

France.

But it is by the attention it pays to public education that the original

character of American civilisation is at once placed in the clearest

light. "It being," says the law, "one chief project of Satan to keep

men from the knowledge of the Scripture by persuading from the use of

tongues, to the end that learning may not be buried in the graves of

our forefathers, in church and commonwealth, the Lord assisting our

endeavors."[51] Here follow clauses establishing schools in every

township, and obliging the inhabitants, under pain of heavy fines, to

support them. Schools of a superior kind were founded in the same manner

in the more populous districts. The municipal authorities were bound to

enforce the sending of children to school by their parents; they were

empowered to inflict fines upon all who refused compliance; and in cases

of continued resistance, society assumed the place of the parent, took

possession of the child, and deprived the father of those natural rights

which he used to so bad a purpose. The reader will undoubtedly have

remarked the preamble of these enactments: in America, religion is the

road to knowledge, and the observance of the divine laws leads men to

civil freedom.

If, after having cast a rapid glance over the state of American society

in 1650, we turn to the condition of Europe, and more especially to that

of the continent, at the same period, we cannot fail to be struck

with astonishment. On the continent of Europe, at the beginning of the

seventeenth century, absolute monarchy had everywhere triumphed over the

ruins of the oligarchical and feudal liberties of the middle ages. Never

were the notions of right more completely confounded than in the midst

of the splendor and literature of Europe; never was there less political

activity among the people; never were the principles of true freedom

less widely circulated, and at that very time, those principles, which

were scorned or unknown by the nations of Europe, were proclaimed in

the deserts of the New World, and were accepted as the future creed of

a great people. The boldest theories of the human reason were put into

practice by a community so humble, that not a statesman condescended to

attend to it; and a legislation without precedent was produced off-hand

by the imagination of the citizens. In the bosom of this obscure

democracy, which had as yet brought forth neither generals, nor

philosophers, nor authors, a man might stand up in the face of a free

people, and pronounce amid general acclamations the following fine

definition of liberty:[52]--

"Nor would I have you to mistake in the point of your own liberty. There

is a liberty of corrupt nature, which is affected both by men and beasts

to do what they list; and this liberty is inconsistent with authority,

impatient of all restraint; by this liberty '_sumus omnes deteriores_;'

it is the grand enemy of truth and peace, and all the ordinances of God

are bent against it. But there is a civil, a moral, a federal liberty,

which is the proper end and object of authority; it is a liberty for

that only which is just and good: for this liberty you are to stand

with the hazard of your very lives, and whatsoever crosses it is not

authority, but a distemper thereof. This liberty is maintained in a way

of subjection to authority; and the authority set over you will, in all

administrations for your good, be quietly submitted unto by all but such

as have a disposition to shake off the yoke and lose their true liberty,

by their murmuring at the honor and power of authority."

The remarks I have made will suffice to display the character of

Anglo-American civilisation in its true light. It is the result (and

this should be constantly present to the mind) of two distinct elements,

which in other places have been in frequent hostility, but which in

America have admirably incorporated and combined with one another. I

allude to the spirit of religion and the spirit of liberty.

The settlers of New England were at the same time ardent sectarians

and daring innovators. Narrow as the limits of some of their religious

opinions were, they were entirely free from political prejudices.

Hence arose two tendencies, distinct but not opposite, which are

constantly discernible in the manners as well as in the laws of the

country.

It might be imagined that men who sacrificed their friends, their

family, and their native land, to a religious conviction, were absorbed

in the pursuit of the intellectual advantages which they purchased at

so dear a rate. The energy, however, with which they strove for the

acquirements of wealth, moral enjoyment, and the comforts as well as the

liberties of the world, was scarcely inferior to that with which they

devoted themselves to Heaven.

Political principles, and all human laws and institutions were moulded

and altered at their pleasure; the barriers of the society in which they

were born were broken down before them; the old principles which had

governed the world for ages were no more; a path without a turn, and

a field without a horizon, were opened to the exploring and ardent

curiosity of man; but at the limits of the political world he checks

his researches, he discreetly lays aside the use of his most formidable

faculties, he no longer consents to doubt or to innovate, but carefully

abstaining from raising the curtain of the sanctuary, he yields with

submissive respect to truths which he will not discuss.

Thus in the moral world, everything is classed, adapted, decided, and

foreseen; in the political world everything is agitated, uncertain, and

disputed: in the one is a passive, though a voluntary obedience; in the

other an independence, scornful of experience and jealous of authority.

These two tendencies, apparently so discrepant, are far from

conflicting; they advance together, and mutually support each other.

Religion perceives that civil liberty affords a noble exercise to the

faculties of man, and that the political world is a field prepared by

the Creator for the efforts of the intelligence. Contented with the

freedom and the power which it enjoys in its own sphere, and with the

place which it occupies, the empire of religion is never more surely

established than when it reigns in the hearts of men unsupported by

aught besides its native strength.

Religion is no less the companion of liberty in all its battles and

its triumphs; the cradle of its infancy, and the divine source of its

claims. The safeguard of morality is religion, and morality is the best

security of law as well as the surest pledge of freedom.[53]

* * * * *

REASONS OF CERTAIN ANOMALIES WHICH THE LAWS AND CUSTOMS OF THE

ANGLO-AMERICANS PRESENT.

Remains of aristocratic Institutions in the midst of a complete

Democracy.--Why?--Distinction carefully to be drawn between what is of

Puritanical and what is of English Origin.

The reader is cautioned not to draw too general or too absolute an

inference from what has been said. The social condition, the religion,

and the manners of the first emigrants undoubtedly exercised an immense

influence on the destiny of their new country. Nevertheless it was

not in their power to found a state of things originating solely in

themselves; no man can entirely shake off the influence of the past, and

the settlers, unintentionally or involuntarily, mingled habits derived

from their education and from the traditions of their country, with

those habits and notions which were exclusively their own. To form a

judgment on the Anglo-Americans of the present day, it is therefore

necessary carefully to distinguish what is of puritanical from what is

of English origin.

Laws and customs are frequently to be met with in the United States

which contrast strongly with all that surrounds them. These laws seem to

be drawn up in a spirit contrary to the prevailing tenor of the American

legislation; and these customs are no less opposed to the general

tone of society. If the English colonies had been founded in an age of

darkness, or if their origin was already lost in the lapse of years, the

problem would be insoluble.

I shall quote a single example to illustrate what I advance.

The civil and criminal procedure of the Americans has only two means of

action--committal or bail. The first measure taken by the magistrate

is to exact security from the defendant, or, in case of refusal, to

incarcerate him: the ground of the accusation, and the importance of the

charges against him are then discussed.

It is evident that a legislation of this kind is hostile to the poor

man, and favorable only to the rich. The poor man has not always a

security to produce, even in a civil cause: and if he is obliged to wait

for justice in prison, he is speedily reduced to distress. The wealthy

individual, on the contrary, always escapes imprisonment in civil

causes; nay, more, he may readily elude the punishment which awaits him

for a delinquency, by breaking his bail. So that all the penalties

of the law are, for him, reducible to fines.[54] Nothing can be more

aristocratic than this system of legislation. Yet in America it is the

poor who make the law, and they usually reserve the greatest social

advantages to themselves. The explanation of the phenomenon is to be

found in England; the laws of which I speak are English,[55] and the

Americans have retained them, however repugnant they may be to the tenor

of their legislation, and the mass of their ideas.

Next to its habits, the thing which a nation is least apt to change is

its civil legislation. Civil laws are only familiarly known to legal

men, whose direct interest it is to maintain them as they are, whether

good or bad, simply because they themselves are conversant with them.

The body of the nation is scarcely acquainted with them: it merely

perceives their action in particular cases; but it has some difficulty

in seizing their tendency, and obeys them without reflection.

I have quoted one instance where it would have been easy to adduce a

great number of others.

The surface of American society is, if I may use the expression, covered

with a layer of democracy, from beneath which the old aristocratic

colors sometimes peep.[56]

* * * * *

Notes:

[14] The charter granted by the crown of England, in 1609, stipulated,

among other conditions, that the adventurers should pay to the crown a

fifth of the produce of all gold and silver mines. See Marshall's "Life

of Washington," vol i., pp. 18-66.

[15] A large portion of the adventurers, says Stith (History of

Virginia), were unprincipled young men of family, whom their parents

were glad to ship off, discharged servants, fraudulent bankrupts, or

debauchees: and others of the same class, people more apt to pillage

and destroy than to assist the settlement, were the seditious chiefs who

easily led this band into every kind of extravagance and excess. See for

the history of Virginia the following works:--

"History of Virginia, from the first Settlements in the year 1624," by

Smith.

"History of Virginia," by William Stith.

"History of Virginia, from the earliest Period," by Beverley.

[16] It was not till some time later that a certain number of rich

English capitalists came to fix themselves in the colony.

[17] Slavery was introduced about the year 1620, by a Dutch vessel,

which landed twenty negroes on the banks of the river James. See

Chalmer.

[18] The states of New England are those situated to the east of the

Hudson; they are now six in number: 1. Connecticut; 2. Rhode Island; 3.

Massachusetts; 4. Vermont; 5. New Hampshire; 6. Maine.

[19] "New England's Memorial," p. 13. Boston, 1826. See also

"Hutchinson's History," vol. ii., p. 440

[20] This rock is become an object of veneration in the United States. I

have seen bits of it carefully preserved in several towns of the Union.

Does not this sufficiently show that all human power and greatness is

in the soul of man? Here is a stone which the feet of a few outcasts

pressed for an instant, and this stone becomes famous; it is treasured

by a great nation, its very dust is shared as a relic; and what is

become of the gateways of a thousand palaces?

[21] "New England Memorial," p. 37.

[22] The emigrants who founded the state of Rhode Island in 1638, those

who landed at New Haven in 1637, the first settlers in Connecticut in

1639, and the founders of Providence in 1640, began in like manner by

drawing up a social contract, which was submitted to the approval of all

the interested parties. See "Pitkin's History," pp 42, 47.

[23] This was the case in the state of New York.

[24] Maryland, the Carolinas, Pennsylvania, and New Jersey, were in this

situation. See Pitkin's History, vol. i., pp. 11-31.

[25] See the work entitled, "_Historical Collection of State Papers and

other Authentic Documents intended as Materials for a History of the

United States of America_" by Ebenezer Hazard, Philadelphia, 1792, for a

great number of documents relating to the commencement of the colonies,

which are valuable from their contents and their authenticity; among

them are the various charters granted by the king of England, and the

first acts of the local governments.

See also the analysis of all these charters given by Mr. Story, judge

of the supreme court of the United States, in the introduction to his

Commentary on the Constitution of the United States. It results from

these documents that the principles of representative government and

the external forms of political liberty were introduced into all the

colonies at their origin. These principles were more fully acted upon in

the North than in the South, but they existed everywhere.

[26] See Pitkin's History, p. 35. See the History of the Colony of

Massachusetts Bay, by Hutchinson, vol. i., p. 9.

[27] See Pitkin's History, pp. 42, 47.

[28] The inhabitants of Massachusetts had deviated from the forms which

are preserved in the criminal and civil procedure of England: in 1650

the decrees of justice were not yet headed by the royal style. See

Hutchinson, vol. i., p. 452.

[29] Code of 1650, p. 28. Hartford, 1830.

[30] See also in Hutchinson's History, vol. i., pp. 435, 456,

the analysis of the penal code adopted in 1648, by the colony of

Massachusetts: this code is drawn up on the same principles as that of

Connecticut.

[31] Adultery was also punished with death by the law of Massachusetts;

and Hutchinson, vol. i., p. 441, says that several persons actually

suffered for this crime. He quotes a curious anecdote on this subject,

which occurred in the year 1663. A married woman had had criminal

intercourse with a young man; her husband died, and she married the

lover. Several years had elapsed, when the public began to suspect the

previous intercourse of this couple; they were thrown into prison, put

upon trial, and very narrowly escaped capital punishment.

[32] Code of 1650, p. 48. It seems sometimes to have happened that

the judge superadded these punishments to each other, as is seen in a

sentence pronounced in 1643 (New Haven Antiquities, p. 114), by which

Margaret Bedford, convicted of loose conduct, was condemned to be

whipped, and afterward to marry Nicolas Jemmings her accomplice.

[33] New Haven Antiquities, p. 104. See also Hutchinson's History for

several causes equally extraordinary.

[34] Code of 1650, pp. 50, 57.

[35] Ibid, p. 64.

[36] Ibid, p. 44.

[37] This was not peculiar to Connecticut. See for instance the law

which, on the 13th of September, 1644, banished the ana-baptists from

the state of Massachusetts. (Historical Collection of State Papers, vol.

i., p. 538.) See also the law against the quakers, passed on the 14th

of October, 1656. "Whereas," says the preamble, "an accursed race of

heretics called quakers has sprung up," &c. The clauses of the statute

inflict a heavy fine on all captains of ships who should import quakers

into the country. The quakers who may be found there shall be whipped

and imprisoned with hard labor. Those members of the sect who should

defend their opinions shall be first fined, then imprisoned, and finally

driven out of the province. (Historical Collection of State Papers, vol.

i., p. 630.)

[38] By the penal law of Massachusetts, any catholic priest who should

set foot in the colony after having been once driven out of it, was

liable to capital punishment.

[39] Code of 1650, p. 96.

[40] New England's Memorial, p. 316. See Appendix E.

[41] Constitution of 1638, p. 17.

[42] In 1641 the general assembly of Rhode Island unanimously declared

that the government of the state was a democracy, and that the power was

vested in the body of free citizens, who alone had the right to make the

laws and to watch their execution. Code of 1650, p. 70.

[43] Pitkin's History, p. 47.

[44] Constitution of 1638, p. 12.

[45] Code of 1650, p 80.

[46] Code of 1650, p. 78.

[47] Code of 1750, p. 94.

[48] Ibid, p. 86.

[49] See Hutchinson's History, vol. i. p. 455.

[50] Ibid, p. 40.

[51] Code of 1650, p. 90.

[52] Mather's Magnalia Christi Americana, vol. ii., p. 13. This speech

was made by Winthrop; he was accused of having committed arbitrary

actions during his magistracy, but after having made the speech of which

the above is a fragment, he was acquitted by acclamation, and from

that time forward he was always re-elected governor of the state. See

Marshall, vol. i., p. 166.

[53] See Appendix F.

[54] Crimes no doubt exist for which bail is inadmissible, but they are

few in number.

[55] See Blackstone; and Delolme, book i., chap. x.

[56] The author is not quite accurate in this statement. A person

accused of crime is, in the first instance, arrested by virtue of a

warrant issued by the magistrate, upon a complaint granted upon proof of

a crime having been committed by the person charged. He is then brought

before the magistrate, the complainant examined in his presence, other

evidence adduced, and he is heard in explanation or defence. If the

magistrate is satisfied that a crime has been committed, and that the

accused is guilty, the latter is, then, and then only, required to give

security for his appearance at the proper court to take his trial, if an

indictment shall be found against him by a Grand Jury of twenty-three

of his fellow-citizens. In the event of his inability or refusal to give

the security he is incarcerated, so as to secure his appearance at a

trial.

In France, after the preliminary examination, the accused, unless

absolutely discharged, is in all cases incarcerated, to secure his

presence at the trial. It is the relaxation of this practice in England

and the United States, in order to attain the ends of justice at the

least possible inconvenience to the accused, by accepting what is

deemed an adequate pledge for his appearance, which our author considers

hostile to the poor man and favorable to the rich. And yet it is very

obvious, that such is not its design or tendency. Good character, and

probable innocence, ordinarily obtain for the accused man the required

security. And if they do not, how can complaint be justly made that

others are not treated with unnecessary severity, and punished in

anticipation, because some are prevented by circumstances from availing

themselves of a benign provision so favorable to humanity, and to that

innocence which our law presumes, until guilt is proved? To secure the

persons of suspected criminals, that they may abide the sentence of the

law, is indispensable to all jurisprudence. And instead of reproof

or aristocratic tendency, our system deserves credit for having

ameliorated, as far as possible, the condition of persons accused.

That this amelioration cannot be made in all instances, flows from the

necessity of the case.

It would be a mistake to suppose, as the author seems to have done,

that the forfeiture of the security given, exonerates the accused from

punishment. He may be again arrested and detained in prison, as security

would not ordinarily be received from a person who had given such

evidence of his guilt as would be derived from his attempt to escape.

And the difficulty of escape is rendered so great by our constitutional

provisions for the delivery, by the different states, of fugitives

from justice, and by our treaties with England and France for the same

purpose, that the instances of successful evasion are few and rare.

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