American Institutions and Their Influence by Alexis de Tocqueville et al

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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.