American Institutions and Their Influence by Alexis de Tocqueville et al

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[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.

CHAPTER III.

SOCIAL CONDITION OF THE ANGLO-AMERICANS.

A Social condition is commonly the result of circumstances, sometimes of
laws, oftener still of these two causes united; but wherever it exists,
it may justly be considered as the source of almost all the laws, the
usages, and the ideas, which regulate the conduct of nations: whatever
it does not produce, it modifies.

It is, therefore, necessary, if we would become acquainted with the
legislation and the manners of a nation, to begin by the study of its
social condition.

* * * * *

THE STRIKING CHARACTERISTIC OF THE SOCIAL CONDITION OF THE
ANGLO-AMERICANS IS ITS ESSENTIAL DEMOCRACY.

The first Emigrants of New England.--Their Equality.--Aristocratic Laws
introduced in the South.--Period of the Revolution.--Change in the Law
of Descent.--Effects produced by this Change.--Democracy carried to its
utmost Limits in the new States of the West.--Equality of Education.

Many important observations suggest themselves upon the social condition
of the Anglo-Americans; but there is one which takes precedence of all
the rest. The social condition of the Americans is eminently democratic;
this was its character at the foundation of the colonies, and is still
more strongly marked at the present day.

I have stated in the preceding chapter that great equality existed among
the emigrants who settled on the shores of New England. The germe of
aristocracy was never planted in that part of the Union. The only
influence which obtained there was that of intellect; the people were
used to reverence certain names as the emblems of knowledge and virtue.
Some of their fellow-citizens acquired a power over the rest which might
truly have been called aristocratic, if it had been capable of
invariable transmission from father to son.

This was the state of things to the east of the Hudson: to the southwest
of that river, and in the direction of the Floridas, the case was
different. In most of the states situated to the southwest of the Hudson
some great English proprietors had settled, who had imported with them
aristocratic principles and the English law of descent. I have explained
the reasons why it was impossible ever to establish a powerful
aristocracy in America; these reasons existed with less force to the
southwest of the Hudson. In the south, one man, aided by slaves, could
cultivate a great extent of country: it was therefore common to see rich
landed proprietors. But their influence was not altogether aristocratic
as that term is understood in Europe, since they possessed no
privileges; and the cultivation of their estates being carried on by
slaves, they had no tenants depending on them, and consequently no
patronage. Still, the great proprietors south of the Hudson constituted
a superior class, having ideas and tastes of its own, and forming the
centre of political action. This kind of aristocracy sympathized with
the body of the people, whose passions and interests it easily embraced;
but it was too weak and too short-lived to excite either love or hatred
for itself. This was the class which headed the insurrection in the
south, and furnished the best leaders of the American revolution.

At the period of which we are now speaking, society was shaken to its
centre: the people, in whose name the struggle had taken place,
conceived the desire of exercising the authority which it had acquired;
its democratic tendencies were awakened; and having thrown off the yoke
of the mother-country, it aspired to independence of every kind. The
influence of individuals gradually ceased to be felt, and custom and law
united together to produce the same result.

But the law of descent was the last step to equality. I am surprised
that ancient and modern jurists have not attributed to this law a
greater influence on human affairs.[57] It is true that these laws
belong to civil affairs: but they ought nevertheless to be placed at the
head of all political institutions; for, while political laws are only
the symbol of a nation's condition, they exercise an incredible
influence upon its social state. They have, moreover, a sure and uniform
manner of operating upon society, affecting, as it were, generations yet
unknown.

Through their means man acquires a kind of preternatural power over the
future lot of his fellow-creatures. When the legislator has once
regulated the law of inheritance, he may rest from his labor. The
machine once put in motion will go on for ages, and advance, as if
self-guided, toward a given point. When framed in a particular manner,
this law unites, draws together, and vests property and power in a few
hands: its tendency is clearly aristocratic. On opposite principles its
action is still more rapid; it divides, distributes, and disperses both
property and power. Alarmed by the rapidity of its progress, those who
despair of arresting its motion endeavor to obstruct by difficulties and
impediments; they vainly seek to counteract its effect by contrary
efforts: but it gradually reduces or destroys every obstacle, until by
its incessant activity the bulwarks of the influence of wealth are
ground down to the fine and shifting sand which is the basis of
democracy. When the law of inheritance permits, still more when it
decrees, the equal division of a father's property among all his
children, its effects are of two kinds: it is important to distinguish
them from each other, although they tend to the same end.

In virtue of the law of partible inheritance, the death of every
proprietor brings about a kind of revolution in property: not only do
his possessions change hands, but their very nature is altered; since
they are parcelled into shares, which become smaller and smaller at each
division. This is the direct, and, as it were, the physical effect of
the law. It follows, then, that in countries where equality of
inheritance is established by law, property, and especially landed
property, must have a tendency to perpetual diminution. The effects,
however, of such legislation would only be perceptible after a lapse of
time, if the law was abandoned to its own working; for supposing a
family to consist of two children (and in a country peopled as France
is, the average number is not above three), these children, sharing
among them the fortune of both parents, would not be poorer than their
father or mother.

But the law of equal division exercises its influence not merely upon
the property itself, but it affects the minds of the heirs, and brings
their passions into play. These indirect consequences tend powerfully to
the destruction of large fortunes, and especially of large domains.

Among the nations whose law of descent is founded upon the right of
primogeniture, landed estates often pass from generation to generation
without undergoing division. The consequence of which is, that family
feeling is to a certain degree incorporated with the estate. The family
represents the estate, the estate the family; whose name, together with
its origin, its glory, its power, and its virtues, is thus perpetuated
in an imperishable memorial of the past, and a sure pledge of the
future.

When the equal partition of property is established by law, the intimate
connection is destroyed between family feeling and the preservation of
the paternal estate; the property ceases to represent the family; for,
as it must inevitably be divided after one or two generations, it has
evidently a constant tendency to diminish, and must in the end be
completely dispersed. The sons of the great landed proprietor, if they
are few in number, or if fortune befriend them, may indeed entertain the
hope of being as wealthy as their father, but not that of possessing the
same property as he did; their riches must necessarily be composed of
elements different from his.

Now, from the moment when you divest the land-owner of that interest in
the preservation of his estate which he derives from association, from
tradition, and from family pride, you may be certain that sooner or
later he will dispose of it; for there is a strong pecuniary interest in
favor of selling, as floating capital produces higher interest than real
property, and is more readily available to gratify the passions of the
moment.

Great landed estates which have once been divided, never come together
again; for the small proprietor draws from his land a better revenue in
proportion, than the large owner does from his; and of course he sells
it at a higher rate.[58] The calculations of gain, therefore, which
decided the rich man to sell his domain, will still more powerfully
influence him against buying small estates to unite them into a large
one.

What is called family pride is often founded upon an illusion of
self-love. A man wishes to perpetuate and immortalize himself, as it
were, in his great-grandchildren. Where the _esprit de famille_ ceases
to act, individual selfishness comes into play. When the idea of family
becomes vague, indeterminate, and uncertain, a man thinks of his present
convenience; he provides for the establishment of the succeeding
generation, and no more.

Either a man gives up the idea of perpetuating his family, or at any
rate he seeks to accomplish it by other means than that of a landed
estate.

Thus not only does the law of partible inheritance render it difficult
for families to preserve their ancestral domains entire, but it deprives
them of the inclination to attempt it, and compels them in some measure
to co-operate with the law in their own extinction.

The law of equal distribution proceeds by two methods: by acting upon
things, it acts upon persons; by influencing persons, it affects things.
By these means the law succeeds in striking at the root of landed
property, and dispersing rapidly both families and fortunes.[59]

Most certainly is it not for us, Frenchmen of the nineteenth century,
who daily behold the political and social changes which the law of
partition is bringing to pass, to question its influence. It is
perpetually conspicuous in our country, overthrowing the walls of our
dwellings and removing the landmarks of our fields. But although it has
produced great effects in France, much still remains for it to do. Our
recollections, opinions, and habits, present powerful obstacles to its
progress.

In the United States it has nearly completed its work of destruction,
and there we can best study its results. The English laws concerning the
transmission of property were abolished in almost all the states at the
time of the revolution. The law of entail was so modified as not to
interrupt the free circulation of property.[60] The first having passed
away, estates began to be parcelled out; and the change became more and
more rapid with the progress of time. At this moment, after a lapse of
little more than sixty years, the aspect of society is totally altered;
the families of the great landed proprietors are almost all commingled
with the general mass. In the state of New York, which formerly
contained many of these, there are but two who still keep their heads
above the stream; and they must shortly disappear. The sons of these
opulent citizens have become merchants, lawyers, or physicians. Most of
them have lapsed into obscurity. The last trace of hereditary ranks and
distinctions is destroyed--the law of partition has reduced all to one
level.

I do not mean that there is any deficiency of wealthy individuals in the
United States; I know of no country, indeed, where the love of money has
taken stronger hold on the affections of men, and where a profounder
contempt is expressed for the theory of the permanent equality of
property. But wealth circulates with inconceivable rapidity, and
experience shows that it is rare to find two succeeding generations in
the full enjoyment of it.

This picture, which may perhaps be thought overcharged, still gives a
very imperfect idea of what is taking place in the new states of the
west and southwest. At the end of the last century a few bold
adventurers began to penetrate into the valleys of the Mississippi, and
the mass of the population very soon began to move in that direction:
communities unheard of till then were seen to emerge from their wilds:
states, whose names were not in existence a few years before, claimed
their place in the American Union; and in the western settlements we may
behold democracy arrived at its utmost extreme. In these states, founded
off hand, and as it were by chance, the inhabitants are but of
yesterday. Scarcely known to one another, the nearest neighbors are
ignorant of each other's history. In this part of the American
continent, therefore, the population has not experienced the influence
of great names and great wealth, nor even that of the natural
aristocracy of knowledge and virtue. None are there to wield that
respectable power which men willingly grant to the remembrance of a life
spent in doing good before their eyes. The new states of the west are
already inhabited; but society has no existence among them.

It is not only the fortunes of men which are equal in America; even
their acquirements partake in some degree of the same uniformity. I do
not believe there is a country in the world where, in proportion to the
population, there are so few uninstructed, and at the same time so few
learned individuals. Primary instruction is within the reach of
everybody; superior instruction is scarcely to be obtained by any. This
is not surprising; it is in fact the necessary consequence of what we
have advanced above. Almost all the Americans are in easy circumstances,
and can therefore obtain the elements of human knowledge.

In America there are comparatively few who are rich enough to live
without a profession. Every profession requires an apprenticeship, which
limits the time of instruction to the early years of life. At fifteen
they enter upon their calling, and thus their education ends at the age
when ours begins. Whatever is done afterward, is with a view to some
special and lucrative object; a science is taken up as a matter of
business, and the only branch of it which is attended to is such as
admits of an immediate practical application.

[This paragraph does not fairly render the meaning of the author. The
original French is as follows:--

"En Amérique il y a peu de riches; presque tous les Américains ont donc
besoin d'exercer une profession. Or, toute profession exige an
apprentissage. Les Américains ne peuvent donc donner a la culture
générale de l'intelligence que les premières années de la vie: à quinze
ans ils entrent dans une carrière: ainsi leur education finit le plus
souvent à l'époque où la nôtre commence."

What is meant by the remark; that "at fifteen they enter upon a career,
and thus their education is very often finished at the epoch when ours
commences," is not clearly perceived. Our professional men enter upon
their course of preparation for their respective professions, wholly
between eighteen and twenty-one years of age. Apprentices to trades are
bound out, ordinarily, at fourteen, but what general education they
receive is after that period. Previously, they have acquired the mere
elements of reading, writing, and arithmetic. But it is supposed there
is nothing peculiar to America, in the age at which apprenticeship
commences. In England, they commence at the same age, and it is believed
that the same thing occurs throughout Europe. It is feared that the
author has not here expressed himself with his usual clearness and
precision.--_American Editor_.]

In America most of the rich men were formerly poor; most of those who
now enjoy leisure were absorbed in business during their youth; the
consequence of which is, that when they might have had a taste for study
they had no time for it, and when the time is at their disposal they
have no longer the inclination.

There is no class, then, in America in which the taste for intellectual
pleasures is transmitted with hereditary fortune and leisure, and by
which the labors of the intellect are held in honor. Accordingly there
is an equal want of the desire and the power of application to these
objects.

A middling standard is fixed in America for human knowledge. All
approach as near to it as they can; some as they rise, others as they
descend. Of course, an immense multitude of persons are to be found who
entertain the same number of ideas on religion, history, science,
political economy, legislation, and government. The gifts of intellect
proceed directly from God, and man cannot prevent their unequal
distribution. But in consequence of the state of things which we have
here represented, it happens, that although the capacities of men are
widely different, as the Creator has doubtless intended they should be,
they are submitted to the same method of treatment.

In America the aristocratic element has always been feeble from its
birth; and if at the present day it is not actually destroyed, it is at
any rate so completely disabled that we can scarcely assign to it any
degree of influence in the course of affairs.

The democratic principle, on the contrary, has gained so much strength
by time, by events, and by legislation, as to have become not only
predominant but all-powerful. There is no family or corporate authority,
and it is rare to find even the influence of individual character enjoy
any durability.

America, then, exhibits in her social state a most extraordinary
phenomenon. Men are there seen on a greater equality in point of fortune
and intellect, or in other words, more equal in their strength, than in
any other country of the world, or, in any age of which history has
preserved the remembrance.

* * * * *

POLITICAL CONSEQUENCES OF THE SOCIAL CONDITION OF THE ANGLO-AMERICANS.

The political consequences of such a social condition as this are easily
deducible.

It is impossible to believe that equality will not eventually find its
way into the political world as it does everywhere else. To conceive of
men remaining for ever unequal upon one single point, yet equal on all
others, is impossible; they must come in the end to be equal upon all.

Now I know of only two methods of establishing equality in the political
world: every citizen must be put in possession of his rights, or rights
must be granted to no one. For nations which have arrived at the same
stage of social existence as the Anglo-Americans, it is therefore very
difficult to discover a medium between the sovereignty of all and the
absolute power of one man: and it would be vain to deny that the social
condition which I have been describing is equally liable to each of
these consequences.

There is, in fact, a manly and lawful passion for equality, which
excites men to wish all to be powerful and honored. This passion tends
to elevate the humble to the rank of the great; but there exists also in
the human heart a depraved taste for equality, which impels the weak to
attempt to lower the powerful to their own level, and reduces men to
prefer equality in slavery to inequality with freedom. Not that those
nations whose social condition is democratic naturally despise liberty;
on the contrary, they have an instinctive love of it. But liberty is not
the chief and constant object of their desires; equality is their idol:
they make rapid and sudden efforts to obtain liberty, and if they miss
their aim, resign themselves to their disappointment; but nothing can
satisfy them except equality, and rather than lose it they resolve to
perish.