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.