I shall quote a single example to ill.u.s.trate 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 ma.s.s 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 St.i.th (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 cla.s.s, people more apt to pillage and destroy than to a.s.sist 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 St.i.th.
"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.
Ma.s.sachusetts; 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 ent.i.tled, "_Historical Collection of State Papers and other Authentic Doc.u.ments intended as Materials for a History of the United States of America_" by Ebenezer Hazard, Philadelphia, 1792, for a great number of doc.u.ments 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 a.n.a.lysis 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 Const.i.tution of the United States. It results from these doc.u.ments 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 Ma.s.sachusetts Bay, by Hutchinson, vol. i., p. 9.
[27] See Pitkin"s History, pp. 42, 47.
[28] The inhabitants of Ma.s.sachusetts 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 a.n.a.lysis of the penal code adopted in 1648, by the colony of Ma.s.sachusetts: this code is drawn up on the same principles as that of Connecticut.
[31] Adultery was also punished with death by the law of Ma.s.sachusetts; 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 p.r.o.nounced 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 Ma.s.sachusetts. (Historical Collection of State Papers, vol.
i., p. 538.) See also the law against the quakers, pa.s.sed 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 Ma.s.sachusetts, 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] Const.i.tution of 1638, p. 17.
[42] In 1641 the general a.s.sembly 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] Const.i.tution 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.