American Institutions and Their Influence
by
Alexis de Tocqueville et al
Part 11 out of 11
_k_ is the sign of the second person, and signifies 'thou' or 'thy;'
_uli_ is a part of the word _wulit_, which signifies 'beautiful,'
'pretty;' _gat_ is another fragment of the word _wichgat_, which means
'paw;' and lastly, _schis_ is a diminutive giving the idea of smallness.
Thus in one word the Indian woman has expressed, 'Thy pretty little
paw.'"
Take another example of the felicity with which the savages of America
have composed their words. A young man of Delaware is called _pilape_.
This word is formed from _pilsit_, chaste, innocent; and _lenape_, man;
viz., man in his purity and innocence.
This facility of combining words is most remarkable in the strange
formation of their verbs. The most complex action is often expressed by
a single verb, which serves to convey all the shades of an idea by the
modification of its construction.
Those who may wish to examine more in detail this subject, which I have
only glanced at superficially, should read:--
1. The correspondence of Mr. Duponceau and the Rev. Mr. Hecwelder
relative to the Indian languages; which is to be found in the first
volume of the Memoirs of the Philosophical Society of America, published
at Philadelphia, 1819, by Abraham Small, vol i., pp 356-464.
2. The grammar of the Delaware or Lenape language by Geiberger, the
preface of Mr. Duponceau. All these are in the same collection, vol.
iii.
3. An excellent account of these works, which is at the end of the 6th
volume of the American Encyclopaedia.
APPENDIX D.--Page 22.
See in Charlevoix, vol i., p. 235, the history of the first war which
the French inhabitants of Canada carried on, in 1610, against the
Iroquois. The latter, armed with bows and arrows, offered a desperate
resistance to the French and their allies. Charlevoix is not a great
painter, yet he exhibits clearly enough, in this narrative, the contrast
between the European manners and those of savages, as well as the
different way in which the two races of men understood the sense of
honor.
When the French, says he, seized upon the beaver-skins which covered the
Indians who had fallen, the Hurons, their allies, were greatly offended
at this proceeding; but without hesitation they set to work in their
usual manner, inflicting horrid cruelties upon the prisoners, and
devouring one of those who had been killed, which made the Frenchmen
shudder. The barbarians prided themselves upon a scrupulousness which
they were surprised at not finding in our nation; and could not
understand that there was less to reprehend in the stripping of dead
bodies, than in the devouring of their flesh like wild beasts.
Charlevoix, in another place (vol. i., p. 230), thus describes the first
torture of which Champlain was an eyewitness, and the return of the
Hurons into their own village.
"Having proceeded about eight leagues," says he, "our allies halted: and
having singled out one of their captives, they reproached him with all
the cruelties which he had practised upon the warriors of their nation
who had fallen into his hands, and told him that he might expect to be
treated in like manner; adding, that if he had any spirit, he would
prove it by singing. He immediately chanted forth his death-song, and
then his war-song, and all the songs he knew, 'but in a very mournful
strain,' says Champlain, who was not then aware that all savage music
has a melancholy character. The tortures which succeeded, accompanied by
all the horrors which we shall mention hereafter, terrified the French,
who made every effort to put a stop to them, but in vain. The following
night one of the Hurons having dreamed that they were pursued, the
retreat was changed to a real flight, and the savages never stopped
until they were out of the reach of danger."
The moment they perceived the cabins of their own village, they cut
themselves long sticks, to which they fastened the scalps which had
fallen to their share, and carried them in triumph. At this sight, the
women swam to the canoes, where they received the bloody scalps from the
hands of their husbands, and tied them round their necks.
The warriors offered one of these horrible trophies to Champlain; they
also presented him with some bows and arrows--the only spoils of the
Iroquois which they had ventured to seize--entreating him to show them
to the king of France.
Champlain lived a whole winter quite alone among these barbarians,
without being under any alarm for his person or property.
APPENDIX E.--Page 36.
Although the puritanical strictness which presided over the
establishment of the English colonies in America is now much relaxed,
remarkable traces of it are still found in their habits and their laws.
In 1792, at the very time when the anti-Christian republic of France
began its ephemeral existence, the legislative body of Massachusetts
promulgated the following law, to compel the citizens to observe the
sabbath. We give the preamble, and the principal articles of this law,
which is worthy of the reader's attention.
"Whereas," says the legislator, "the observation of the Sunday is an
affair of public interest; inasmuch as it produces a necessary
suspension of labor, leads men to reflect upon the duties of life and
the errors to which human nature is liable, and provides for the public
and private worship of God the creator and governor of the universe, and
for the performance of such acts of charity as are the ornament and
comfort of Christian societies:--
"Whereas, irreligious or light-minded persons, forgetting the duties
which the sabbath imposes, and the benefits which these duties confer on
society, are known to profane its sanctity, by following their pleasures
or their affairs; this way of acting being contrary to their own
interest as Christians, and calculated to annoy those who do not follow
their example; being also of great injury to society at large, by
spreading a taste for dissipation and dissolute manners;--
"Be it enacted and ordained by the governor, council, and
representatives convened in general court of assembly, that all and
every person and persons shall, on that day, carefully apply themselves
to the duties of religion and piety; that no tradesman or laborer shall
exercise his ordinary calling, and that no game or recreation shall be
used on the Lord's day, upon pain of forfeiting ten shillings;--
"That no one shall travel on that day, or any part thereof, under pain
of forfeiting twenty shillings; that no vessel shall leave a harbor of
the colony; that no person shall keep outside the meetinghouse during
the time of public worship, or profane the time by playing or talking,
on penalty of five shillings.
"Public-houses shall not entertain any other than strangers or lodgers,
under a penalty of five shillings for every person found drinking or
abiding therein.
"Any person in health who, without sufficient reason, shall omit to
worship God in public during three months, shall be condemned to a fine
of ten shillings.
"Any person guilty of misbehavior in a place of public worship shall be
fined from five to forty shillings.
"These laws are to be enforced by the tithing-men of each township, who
have authority to visit public-houses on the Sunday. The innkeeper who
shall refuse them admittance shall be fined forty shillings for such
offence.
"The tithing-men are to stop travellers, and to require of them their
reason for being on the road on Sunday: any one refusing to answer shall
be sentenced to pay a fine not exceeding five pounds sterling. If the
reason given by the traveller be not deemed by the tithing-men
sufficient, he may bring the traveller before the justice of the peace
of the district." (_Law of the 8th March, 1792: General Laws of
Massachusetts_, vol. i., p. 410.)
On the 11th March, 1797, a new law increased the amount of fines, half
of which was to be given to the informer. (_Same collection_, vol. ii.,
p. 525.)
On the 16th February, 1816, a new law confirmed these measures. (_Same
collection_, vol. ii., p. 405.)
Similar enactments exist in the laws of the state of New York, revised
in 1827 and 1828. (See _Revised Statutes_, part i., chapter 20, p. 675.)
In these it is declared that no one is allowed on the sabbath to sport,
to fish, play at games, or to frequent houses where liquor is sold. _No
one_ can travel except in case of necessity.
And this is not the only trace which the religious strictness and
austere manners of the first emigrants have left behind them in the
American laws.
In the revised statutes of the state of New York, vol. i., p. 662, is
the following clause:--
"Whoever shall win or lose in the space of twenty-four hours, by gaming
or betting, the sum of twenty-five dollars, shall be found guilty of a
misdemeanor, and, upon conviction, shall be condemned to pay a fine
equal to at least five times the value of the sum lost or won; which
will be paid to the inspector of the poor of the township. He that loses
twenty-five dollars or more, may bring an action to recover them; and if
he neglects to do so, the inspector of the poor may prosecute the
winner, and oblige him to pay into the poor box both the sum he has
gained and three times as much beside."
The laws we quote from are of recent date; but they are unintelligible
without going back to the very origin of the colonies. I have no doubt
that in our days the penal part of these laws is very rarely applied.
Laws preserve their inflexibility long after the manners of a nation
have yielded to the influence of time. It is still true, however, that
nothing strikes a foreigner on his arrival in America more forcibly than
the regard to the sabbath.
There is one, in particular, of the large American cities, in which all
social movements begin to be suspended even on Saturday evening. You
traverse its streets at the hour at which you expect men in the middle
of life to be engaged in business, and young people in pleasure; and you
meet with solitude and silence. Not only have all ceased to work, but
they appear to have ceased to exist. Neither the movements of industry
are heard, nor the accents of joy, nor even the confused murmur which
arises from the midst of a great city. Chains are hung across the
streets in the neighborhood of the churches; the half closed shutters of
the houses scarcely admit a ray of sun into the dwellings of the
citizens. Now and then you perceive a solitary individual, who glides
silently along the deserted streets and lanes.
Next day, at early dawn, the rolling of carriages, the noise of hammers,
the cries of the population, begin to make themselves heard again. The
city is awake. An eager crowd hastens toward the resort of commerce and
industry; everything around you bespeaks motion, bustle, hurry. A
feverish activity succeeds to the lethargic stupor of yesterday: you
might almost suppose that they had but one day to acquire wealth and to
enjoy it.
APPENDIX F.--Page 41.
It is unnecessary for me to say, that in the chapter which has just been
read, I have not had the intention of giving a history of America. My
only object was to enable the reader to appreciate the influence which
the opinions and manners of the first emigrants had exercised upon the
fate of the different colonies and of the Union in general. I have
therefore confined myself to the quotation of a few detached fragments.
I do not know whether I am deceived, but it appears to me that by
pursuing the path which I have merely pointed out, it would be easy to
present such pictures of the American republics as would not be unworthy
the attention of the public, and could not fail to suggest to the
statesman matter for reflection.
Not being able to devote myself to this labor, I am anxious to render it
easy to others; and for this purpose, I subjoin a short catalogue and
analysis of the works which seem to me the most important to consult.
At the head of the general documents, which it would be advantageous to
examine, I place the work entitled An Historical Collection of State
Papers, and other authentic Documents, intended as Materials for a
History of the United States of America, by Ebenezer Hasard. The first
volume of this compilation, which was printed at Philadelphia in 1792,
contains a literal copy of all the charters granted by the crown of
England to the emigrants, as well as the principal acts of the colonial
governments, during the commencement of their existence. Among other
authentic documents, we here find a great many relating to the affairs
of New England and Virginia during this period. The second volume is
almost entirely devoted to the acts of the confederation of 1643. This
federal compact, which was entered into by the colonies of New England
with the view of resisting the Indians, was the first instance of union
afforded by the Anglo-Americans. There were besides many other
confederations of the same nature, before the famous one of 1776, which
brought about the independence of the colonies.
Each colony has, besides, its own historic monuments, some of which are
extremely curious; beginning with Virginia, the state which was first
peopled. The earliest historian of Virginia was its founder, Capt. John
Smith. Capt. Smith has left us an octavo volume, entitled, The generall
Historic of Virginia and New England, by Captain John Smith, sometymes
Governour in those Countryes, and Admirall of New England; printed at
London in 1627. The work is adorned with curious maps and engravings of
the time when it appeared; the narrative extends from the year 1584 to
1626. Smith's work is highly and deservedly esteemed. The author was one
of the most celebrated adventurers of a period of remarkable adventure;
his book breathes that ardor for discovery, that spirit of enterprise
which characterized the men of his time, when the manners of chivalry
were united to zeal for commerce, and made subservient to the
acquisition of wealth.
But Capt. Smith is remarkable for uniting, to the virtues which
characterized his contemporaries, several qualities to which they were
generally strangers: his style is simple and concise, his narratives
bear the stamp of truth, and his descriptions are free from false
ornament.
This author throws most valuable light upon the state and condition of
the Indians at the time when North America was first discovered.
The second historian to consult is Beverley, who commences his narrative
with the year 1595, and ends it with 1700. The first part of his book
contains historical documents, properly so called, relative to the
infancy of the colonies. The second affords a most curious picture of
the Indians at this remote period. The third conveys very clear ideas
concerning the manners, social condition, laws, and political customs of
the Virginians in the author's lifetime.
Beverley was a native of Virginia, which occasions him to say at the
beginning of his book that he entreats his readers not to exercise their
critical severity upon it, since, having been born in the Indies, he
does not aspire to purity of language. Notwithstanding this colonial
modesty, the author shows throughout his book the impatience with which
he endures the supremacy of the mother-country. In this work of Beverley
are also found numerous traces of that spirit of civil liberty which
animated the English colonies of America at the time when he wrote. He
also shows the dissensions which existed among them and retarded their
independence. Beverley detests his catholic neighbors of Maryland, even
more than he hates the English government; his style is simple, his
narrative interesting and apparently trustworthy.
I saw in America another work which ought to be consulted, entitled, The
_History of Virginia_, by William Stith. This book affords some curious
details, but _I_ thought it long and diffuse.
The most ancient as well as the best document to be consulted on the
history of Carolina is a work in a small quarto, entitled, The History
of Carolina, by John Lawson, printed at London in 1718. This work
contains, in the first part, a journey of discovery in the west of
Carolina; the account of which, given in the form of a journal, is in
general confused and superficial; but it contains a very striking
description of the mortality caused among the savages of that time, both
by the small-pox and the immoderate use of brandy; and with a curious
picture of the corruption of manners prevalent among them, which was
increased by the presence of Europeans. The second part of Lawson's book
is taken up with a description of the physical condition of Carolina,
and its productions. In the third part, the author gives an interesting
account of the manners, customs, and government of the Indians at that
period. There is a good deal of talent and originality in this part of
the work.
Lawson concludes his history with a copy of the charter granted to the
Carolinas in the reign of Charles II. The general tone of this work is
light, and often licentious, forming a perfect contrast to the solemn
style of the works published at the same period in New England. Lawson's
history is extremely scarce in America, and cannot be procured in
Europe. There is, however, a copy of it in the royal library at Paris.
From the southern extremity of the United States I pass at once to the
northern limit; as the intermediate space was not peopled till a later
period.
I must first point out a very curious compilation, entitled, Collection
of the Massachusetts Historical Society, printed for the first time at
Boston in 1792, and reprinted in 1806. The collection of which I speak,
and which is continued to the present day, contains a great number of
very valuable documents relating to the history of the different states
of New England. Among them are letters which have never been published,
and authentic pieces which have been buried in provincial archives. The
whole work of Gookin concerning the Indians is inserted there.
I have mentioned several times, in the chapter to which this note
relates, the work of Nathaniel Norton, entitled New England's Memorial;
sufficiently perhaps to prove that it deserves the attention of those
who would be conversant with the history of New England. This book is in
8vo. and was reprinted at Boston in 1826.
The most valuable and important authority which exists upon the history
of New England is the work of the Rev. Cotton Mather, entitled Magnalia
Christi Americana, or the Ecclesiastical History of New England,
1620-1698, 2 vols. 8vo, reprinted at Hartford, United States, in 1820.
(A folio edition of this work was published in London in 1702.) The
author divided his work into seven books. The first presents the history
of the events which prepared and brought about the establishment of New
England. The second contains the lives of the first governors and chief
magistrates who presided over the country. The third is devoted to the
lives and labors of the evangelical ministers who during the same period
had the care of souls. In the fourth the author relates the institution
and progress of the University of Cambridge (Massachusetts). In the
fifth he describes the principles and the discipline of the Church of
New England. The sixth is taken up in retracing certain facts, which, in
the opinion of Mather, prove the merciful interposition of Providence in
behalf of the inhabitants of New England. Lastly, in the seventh, the
author gives an account of the heresies and the troubles to which the
Church of New England was exposed. Cotton Mather was an evangelical
minister who was born at Boston, and passed his life there. His
narratives are distinguished by the same ardor and religious zeal which
led to the foundation of the colonies of New England. Traces of bad
taste sometimes occur in his manner of writing; but he interests,
because he is full of enthusiasm. He is often intolerant, still oftener
credulous, but he never betrays an intention to deceive. Sometimes his
book contains fine passages, and true and profound reflections, such as
the following:--
"Before the arrival of the Puritans," says he (vol. i., chap, iv.),
"there were more than a few attempts of the English to people and
improve the parts of New England which were to the northward of New
Plymouth; but the design of those attempts being aimed no higher than
the advancement of some worldly interests, a constant series of
disasters has confounded them, until there was a plantation erected upon
the nobler designs of Christianity: and that plantation, though it has
had more adversaries than perhaps any one upon earth, yet, having
obtained help from God, it continues to this day."
Mather occasionally relieves the austerity of his descriptions with
images full of tender feeling: after having spoken of an English lady
whose religious ardor had brought her to America with her husband, and
who soon after sank under the fatigues and privations of exile, he adds,
"As for her virtuous husband, Isaac Johnson,
"He tried
To live without her, liked it not, and died."--(Vol. i.)
Mather's work gives an admirable picture of the time and country which
he describes. In his account of the motives which led the puritans to
seek an asylum beyond seas, he says:--
"The God of heaven served, as it were, a summons upon the spirits of his
people in the English nation, stirring up the spirits of thousands which
never saw the faces of each other, with a most unanimous inclination to
leave the pleasant accommodations of their native country, and go over a
terrible ocean, into a more terrible desert, for the pure enjoyment of
all his ordinances. It is now reasonable that, before we pass any
farther, the reasons of this undertaking should be more exactly made
known unto posterity, especially unto the posterity of those that were
the undertakers, lest they come at length to forget and neglect the true
interest of New England. Wherefore I shall now transcribe some of them
from a manuscript wherein they were then tendered unto consideration.
"_General Considerations for the Plantation of New England_.
"First, it will be a service unto the church of great consequence, to
carry the gospel unto those parts of the world, and raise a bulwark
against the kingdom of antichrist, which the Jesuits labor to rear up in
all parts of the world.
"Secondly, all other churches of Europe have been brought under
desolations; and it may be feared that the like judgments are coming
upon us; and who knows but God hath provided this place to be a refuge
for many whom he means to save out of the general destruction!
"Thirdly, the land grows weary of her inhabitants, inasmuch that man,
which is the most precious of all creatures, is here more vile and base
than the earth he treads upon; children, neighbors, and friends,
especially the poor, are counted the greatest burdens, which, if things
were right, would be the chiefest of earthly blessings.
"Fourthly, we are grown to that intemperance in all excess of riot, as
no mean estate almost will suffice a man to keep sail with his equals,
and he that fails in it must live in scorn and contempt; hence it comes
to pass, that all arts and trades are carried in that deceitful manner
and unrighteous course, as it is almost impossible for a good upright
man to maintain his constant charge and live comfortably in them.
"Fifthly, the schools of learning and religion are so corrupted, as
(beside the unsupportable charge of education) most children, even the
best, wittiest, and of the fairest hopes, are prevented, corrupted, and
utterly overthrown by the multitude of evil examples and licentious
behaviors in these seminaries.
"Sixthly, the whole earth is the Lord's garden, and he hath given it to
the sons of Adam, to be tilled and improved by them: why then should we
stand starving here for places of habitation, and in the mean time
suffer whole countries, as profitable for the use of man, to lie waste
without any improvement?
"Seventhly, what can be a better or a nobler work, and more worthy of a
Christian, than to erect and support a reformed particular church in its
infancy, and unite our forces with such a company of faithful people, as
by timely assistance may grow stronger and prosper; but for want of it,
may be put to great hazards, if not be wholly ruined.
"Eighthly, if any such as are known to be godly, and live in wealth and
prosperity here, shall forsake all this to join with this reformed
church, and with it run the hazard of a hard and mean condition, it will
be an example of great use, both for the removing of scandal, and to
give more life unto the faith of God's people in their prayers for the
plantation, and also to encourage others to join the more willingly in
it."
Farther on, when he declares the principles of the church of New England
with respect to morals, Mather inveighs with violence against the custom
of drinking healths at table, which he denounces as a pagan and
abominable practice. He proscribes with the same rigor all ornaments for
the hair used by the female sex, as well as their custom of having the
arms and neck uncovered.
In another part of his work he relates several instances of witchcraft
which had alarmed New England. It is plain that the visible action of
the devil in the affairs of this world appeared to him an incontestible
and evident fact.
This work of Cotton Mather displays in many places, the spirit of civil
liberty and political independence which characterized the times in
which he lived. Their principles respecting government are discoverable
at every page. Thus, for instance, the inhabitants of Massachusetts, in
the year 1630, ten years after the foundation of Plymouth, are found to
have devoted 400_l_. sterling to the establishment of the University of
Cambridge. In passing from the general documents relative to the history
of New England, to those which describe the several states comprised
within its limits, I ought first to notice The History of the Colony of
Massachusetts, by Hutchinson, Lieutenant-Governor of the Massachusetts
Province, 2 vols., 8vo.
The history of Hutchinson, which I have several times quoted in the
chapter to which this note relates, commences in the year 1628 and ends
in 1750. Throughout the work there is a striking air of truth and the
greatest simplicity of style; it is full of minute details.
The best history to consult concerning Connecticut is that of Benjamin
Trumbull, entitled, A Complete History of Connecticut, Civil and
Ecclesiastical, 1630-1764; 2 vols., 8vo., printed in 1818, at New Haven.
This history contains a clear and calm account of all the events which
happened in Connecticut during the period given in the title. The author
drew from the best sources; and his narrative bears the stamp of truth.
All that he says of the early days of Connecticut is extremely curious.
See especially the constitution of 1639, vol. i., ch. vi., p. 100; and
also the penal laws of Connecticut, vol. i., ch. vii., p. 123.
The History of New Hampshire, by Jeremy Belknap, is a work held in
merited estimation. It was printed at Boston in 1792, in 2 vols., 8vo.
The third chapter of the first volume is particularly worthy of
attention for the valuable details it affords on the political and
religious principles of the puritans, on the causes of their emigration,
and on their laws. The following curious quotation is given from a
sermon delivered in 1663: "It concerneth New England always to remember
that they are a plantation religious, not a plantation of trade. The
profession of the purity of doctrine, worship, and discipline, is
written on her forehead. Let merchants, and such as are increasing cent
per cent, remember this, that worldly gain was not the end and design of
the people of New England, but religion. And if any man among us make
religion as twelve, and the world as thirteen, such an one hath not the
true spirit of a true New Englishman." The reader of Belknap will find
in his work more general ideas, and more strength of thought, than are
to be met with in the American historians even to the present day.
Among the central states which deserve our attention for their remote
origin, New York and Pennsylvania are the foremost. The best history we
have of the former is entitled A History of New York, by William Smith,
printed in London in 1757. Smith gives us important details of the wars
between the French and English in America. His is the best account of
the famous confederation of the Iroquois.
With respect to Pennsylvania, I cannot do better than point out the work
of Proud, entitled the History of Pennsylvania, from the original
Institution and Settlement of that Province, under the first Proprietor
and Governor, William Penn, in 1681, till after the year 1742; by Robert
Proud; 2 vols., 8vo., printed at Philadelphia in 1797. This work is
deserving of the especial attention of the reader; it contains a mass of
curious documents concerning Penn, the doctrine of the Quakers, and the
character, manners, and customs of the first inhabitants of
Pennsylvania.
APPENDIX G.--Page 48.
We read in Jefferson's Memoirs as follows:--
"At the time of the first settlement of the English in Virginia, when
land was had for little or nothing, some provident persons having
obtained large grants of it, and being desirous of maintaining the
splendor of their families, entailed their property upon their
descendants. The transmission of these estates from generation to
generation, to men who bore the same name, had the effect of raising up
a distinct class of families, who, possessing by law the privilege of
perpetuating their wealth, formed by these means a sort of patrician
order, distinguished by the grandeur and luxury of their establishments.
From this order it was that the king usually chose his counsellor of
state." (This passage is extracted and translated from M. Conseil's work
upon the Life of Jefferson, entitled, "_Melanges Politiques et
Philosophiques de Jefferson_.")
In the United States, the principal clauses of the English law
respecting descent have been universally rejected. The first rule that
we follow, says Mr. Kent, touching inheritance, is the following: If a
man dies intestate, his property goes to his heirs in a direct line. If
he has but one heir or heiress, he or she succeeds to the whole. If
there are several heirs of the same degree, they divide the inheritance
equally among them, without distinction of sex.
This rule was prescribed for the first time in the state of New York by
a statute of the 23d of February, 1786. (See Revised Statutes, vol.
iii., Appendix, p. 48.) It has since then been adopted in the revised
statutes of the same state. At the present day this law holds good
throughout the whole of the United States, with the exception of the
state of Vermont, where the male heir inherits a double portion: Kent's
Commentaries, vol. iv., p. 370. Mr. Kent, in the same work, vol. iv., p.
1-22, gives an historical account of American legislation on the subject
of entail; by this we learn that previous to the revolution the colonies
followed the English law of entail. Estates tail were abolished in
Virginia in 1776, on a motion of Mr. Jefferson. They were suppressed in
New York in 1786; and have since been abolished in North Carolina,
Kentucky, Tennessee, Georgia, and Missouri. In Vermont, Indiana,
Illinois, South Carolina, and Louisiana, entail was never introduced.
Those States which thought proper to preserve the English law of entail,
modified it in such a way as to deprive it of its most aristocratic
tendencies. "Our general principles on the subject of government," says
Mr. Kent, "tend to favor the free circulation of property."
It cannot fail to strike the French reader who studies the law of
inheritance, that on these questions the French legislation is
infinitely more democratic even than the American.
The American law makes an equal division of the father's property, but
only in the case of his will not being known; "for every man," says the
law, "in the state of New York (Revised Statutes, vol. iii., Appendix,
p. 51), has entire liberty, power, and authority, to dispose of his
property by will, to leave it entire, or divided in favor of any persons
he chooses as his heirs, provided he do not leave it to a political body
or any corporation." The French law obliges the testator to divide his
property equally, or nearly so, among his heirs.
Most of the American republics still admit of entails, under certain
restrictions; but the French law prohibits entail in all cases.
If the social condition of the Americans is more democratic than that of
the French, the laws of the latter are the most democratic of the two.
This may be explained more easily than at first appears to be the case.
In France, democracy is still occupied in the work of destruction; in
America it reigns quietly over the ruins it has made.
APPENDIX H.--Page 55.
SUMMARY OF THE QUALIFICATIONS OF VOTERS IN THE UNITED STATES.
All the states agree in granting the right of voting at the age of
twenty-one. In all of them it is necessary to have resided for a certain
time in the district where the vote is given. This period varies from
three months to two years.
As to the qualification; in the state of Massachusetts it is necessary
to have an income of three pounds sterling or a capital of sixty pounds.
In Rhode Island a man must possess landed property to the amount of 133
dollars.
In Connecticut he must have a property which gives an income of
seventeen dollars. A year of service in the militia also gives the
elective privilege.
In New Jersey, an elector must have a property of fifty pounds a year.
In South Carolina and Maryland, the elector must possess fifty acres of
land.
In Tennessee, he must possess some property.
In the states of Mississippi, Ohio, Georgia, Virginia, Pennsylvania,
Delaware, New York, the only necessary qualification for voting is that
of paying the taxes; and in most of the states, to serve in the militia
is equivalent to the payment of taxes.
In Maine and New Hampshire any man can vote who is not on the pauper
list.
Lastly, in the states of Missouri, Alabama, Illinois, Louisiana,
Indiana, Kentucky, and Vermont, the conditions of voting have no
reference to the property of the elector.
I believe there is no other state beside that of North Carolina in which
different conditions are applied to the voting for the senate and the
electing the house of representatives. The electors of the former, in
this case, should possess in property fifty acres of land; to vote for
the latter, nothing more is required than to pay taxes.
APPENDIX I.--Page 92.
The small number of custom-house officers employed in the United States
compared with the extent of the coast renders smuggling very easy;
notwithstanding which it is less practised than elsewhere, because
everybody endeavors to suppress it. In America there is no police for
the prevention of fires, and such accidents are more frequent than in
Europe, but in general they are more speedily extinguished, because the
surrounding population is prompt in lending assistance.
APPENDIX K--Page 94.
It is incorrect to assert that centralization was produced by the French
revolution: the revolution brought it to perfection, but did not create
it. The mania for centralization and government regulations dates from
the time when jurists began to take a share in the government, in the
time of Philippe-le-Bel; ever since which period they have been on the
increase. In the year 1775, M. de Malesherbes, speaking in the name of
the Cour des Aides, said to Louis XIV. (see "Memoires pour servir a
l'Histoire du Droit Public de la France eft matiere d'lmpots," p. 654,
printed at Brussels in 1779):
"Every corporation and every community of citizens retained the right of
administering its own affairs; a right which not only forms part of the
primitive constitution of the kingdom, but has a still higher origin;
for it is the right of nature and of reason. Nevertheless, your
subjects, sire, have been deprived of it; and we cannot refrain from
saying that in this respect your government has fallen into puerile
extremes. From the time when powerful ministers made it a political
principle to prevent the convocation of a national assembly, one
consequence has succeeded another, until the deliberations of the
inhabitants of a village are declared null when they have not been
authorized by the intendant. Of course, if the community have an
expensive undertaking to carry through, it must remain under the control
of the sub-delegate of the intendant, and consequently follow the plan
he proposes, employ his favorite workmen, pay them according to his
pleasure; and if an action at law is deemed necessary, the intendant's
permission must be obtained. The cause must be pleaded before this first
tribunal, previous to its being carried into a public court; and if the
opinion of the intendant is opposed to that of the inhabitants, or if
their adversary enjoys his favor, the community is deprived of the power
of defending its rights. Such are the means, sire, which have been
exerted to extinguish the municipal spirit in France; and to stifle, if
possible, the opinions of the citizens. The nation may be said to lie
under an interdict, and to be in wardship under guardians."
What could be said more to the purpose at the present day, when the
revolution has achieved what are called its victories in centralization?
In 1789, Jefferson wrote from Paris to one of his friends: "There is no
country where the mania for over-governing has taken deeper root than in
France, or been the source of greater mischief." Letter to Madison, 28th
August, 1789.
The fact is that for several centuries past the central power of France
has done everything it could to extend central administration; it has
acknowledged no other limits than its own strength. The central power to
which the revolution gave birth made more rapid advances than any of its
predecessors, because it was stronger and wiser than they had been;
Louis XIV. committed the welfare of such communities to the caprice of
an intendant; Napoleon left them to that of the minister. The same
principle governed both, though its consequences were more or less
remote.
APPENDIX L.--Page 97.
This immutability of the constitution of France is a necessary
consequence of the laws of that country.
To begin with the most important of all the laws, that which decides the
order of succession to the throne; what can be more immutable in its
principle than a political order founded upon the natural succession of
father to son? In 1814 Louis XVIII. had established the perpetual law of
hereditary succession in favor of his own family. The individuals who
regulated the consequences of the revolution of 1830 followed his
example; they merely established the perpetuity of the law in favor of
another family. In this respect they imitated the Chancellor Maurepas,
who, when he erected the new parliament upon the ruins of the old, took
care to declare in the same ordinance that the rights of the new
magistrates should be as inalienable as those of their predecessors had
been.
The laws of 1830, like those of 1814, point out no way of changing the
constitution; and it is evident that the ordinary means of legislation
are insufficient for this purpose. As the king, peers, and deputies, all
derive their authority from the constitution, these three powers united
cannot alter a law by virtue of which alone they govern. Out of the pale
of the constitution, they are nothing; where, then, could they take
their stand to effect a change in its provisions? The alternative is
clear; either their efforts are powerless against the charter, which
continues to exist in spite of them, in which case they only reign in
the name of the charter; or, they succeed in changing the charter, and
then the law by which they existed being annulled, they themselves cease
to exist. By destroying the charter, they destroy themselves.
This is much more evident in the laws of 1830 than in those of 1814. In
1814, the royal prerogative took its stand above and beyond the
constitution; but in 1830, it was avowedly created by, and dependant on,
the constitution.
A part therefore of the French constitution is immutable, because it is
united to the destiny of a family; and the body of the constitution is
equally immutable, because there appear to be no legal means of changing
it.
These remarks are not applicable to England. That country having no
written constitution, who can assert when its constitution is changed.
APPENDIX M.--Page 97.
The most esteemed authors who have written upon the English constitution
agree with each other in establishing the omnipotence of the parliament.
Delolme says: "It is a fundamental principle with the English lawyers,
that parliament can do everything except making a woman a man, or a man
a woman."
Blackstone expresses himself more in detail if not more energetically
than Delolme, in the following terms:--
"The power and jurisdiction of parliament," says Sir Edward Coke (4
Inst. 36), "is so transcendant and absolute, that it cannot be confined,
either for causes or persons, within any bounds. And of this high
court," he adds, "may be truly said, 'Si antiquitatem spectes, est
vetustissima; si dignitatem, est honoratissima; si jurisdictionem, est
capacissima.' It hath sovereign and uncontrollable authority in making,
confirming, enlarging, restraining, abrogating, repealing, reviving and
expounding of laws, concerning matters of all possible denominations;
ecclesiastical or temporal; civil, military, maritime, or criminal; this
being the place where that absolute despotic power which must, in all
governments, reside somewhere, is intrusted by the constitution of these
kingdoms. All mischiefs and grievances, operations and remedies, that
transcend the ordinary course of the laws, are within the reach of this
extraordinary tribunal. It can regulate or new model the succession to
the crown; as was done in the reigns of Henry VIII. and William III. It
can alter the established religion of the land; as was done in a variety
of instances in the reigns of King Henry VIII. and his three children.
It can change and create afresh even the constitution of the kingdom,
and of the parliaments themselves; as was done by the act of union and
the several statutes for triennial and septennial elections. It can, in
short, do everything that is not naturally impossible to be done; and,
therefore, some have not scrupled to call its power, by a figure rather
too bold, the omnipotence of parliament."
APPENDIX N.--Page 107.
There is no question upon which the American constitutions agree more
fully than upon that of political jurisdiction. All the constitutions
which take cognizance of this matter, give to the house of delegates the
exclusive right of impeachment; excepting only the constitution of North
Carolina which grants the same privilege to grand-juries. (Article 23.)
Almost all the constitutions give the exclusive right of pronouncing
sentence to the senate, or to the assembly which occupies its place.
The only punishments which the political tribunals can inflict are
removal and interdiction of public functions for the future. There is no
other constitution but that of Virginia (152), which enables them to
inflict every kind of punishment.
The crimes which are subject to political jurisdiction, are, in the
federal constitution (section 4, art. 1); in that of Indiana (art. 3,
paragraphs 23 and 24); of New York (art. 5); of Delaware (art. 5); high
treason, bribery, and other high crimes or offences.
In the constitution of Massachusetts (chap. 1, section 2); that of North
Carolina (art. 23); of Virginia (p. 252), misconduct and
mal-administration.
In the constitution of New Hampshire (p. 105) corruption, intrigue and
mal-administration.
In Vermont (chap, ii., art 24), mal-administration.
In South Carolina (art. 5); Kentucky (art. 5); Tennessee (art. 4); Ohio
(art. 1, sec.23, 24); Louisiana (art. 5); Mississippi (art. 5); Alabama
(art. 6); Pennsylvania (art. 4); crimes committed in the non-performance
of official duties.
In the states of Illinois, Georgia, Maine, and Connecticut, no
particular offences are specified.
APPENDIX O.--Page 171.
It is true that the powers of Europe may carry on maritime wars with the
Union; but there is always greater facility and less danger in
supporting a maritime than a continental war. Maritime warfare only
requires one species of effort. A commercial people which consents to
furnish its government with the necessary funds, is sure to possess a
fleet. And it is far easier to induce a nation to part with its money,
almost unconsciously, than to reconcile it to sacrifices of men and
personal efforts. Moreover, defeat by sea rarely compromises the
existence or independence of the people which endures it.
As for continental wars, it is evident that the nations of Europe cannot
be formidable in this way to the American Union. It would be very
difficult to transport and maintain in America more than 25,000
soldiers; an army which maybe considered to represent a nation of
2,000,000 of men. The most populous nation of Europe contending in this
way against the Union, is in the position of a nation of 2,000,000 of
inhabitants at war with one of 12,000,000. Add to this, that America has
all its resources within reach, while the European is at 4,000 miles
distance from his; and that the immensity of the American continent
would of itself present an insurmountable obstacle to its conquest.
APPENDIX P.--Page 186.
The first American journal appeared in April, 1704, and was published at
Boston. See collection of the Historical Society of Massachusetts, vol.
vi., p. 66.
It would be a mistake to suppose that the periodical press has always
been entirely free in the American colonies: an attempt was made to
establish something analogous to a censorship and preliminary security.
Consult the Legislative Documents of Massachusetts of the 14th of
January, 1722.
The committee appointed by the general assembly (the legislative body of
the province), for the purpose of examining into circumstances connected
with a paper entitled "The New England Courier," expresses its opinion
that "the tendency of the said journal is to turn religion into
derision, and bring it into contempt; that it mentions the sacred
writings in a profane and irreligious manner; that it puts malicious
interpretations upon the conduct of the ministers of the gospel; and
that the government of his majesty is insulted, and the peace and
tranquillity of the province disturbed by the said journal. The
committee is consequently of opinion that the printer and publisher,
James Franklin, should be forbidden to print and publish the said
journal or any other work in future, without having previously submitted
it to the secretary of the province; and that the justices of the peace
for the county of Suffolk should be commissioned to require bail of the
said James Franklin for his good conduct during the ensuing year."
The suggestion of the committee was adopted and passed into a law, but
the effect of it was null, for the journal eluded the prohibition by
putting the name of Benjamin Franklin instead of James Franklin at the
bottom of its columns, and this manoeuvre was supported by public
opinion.
APPENDIX Q.--Page 287.
The federal constitution has introduced the jury into the tribunals of
the Union in the same way as the states had introduced it into their own
several courts: but as it has not established any fixed rules for the
choice of jurors, the federal courts select them from the ordinary
jury-list which each state makes for itself. The laws of the states must
therefore be examined for the theory of the formation of juries. See
Story's Commentaries on the Constitution, B. iii., chap. 38, pp.
654-659; Sergeant's Constitutional Law, p. 165. See also the federal
laws, of the years 1789, 1800, and 1802, upon the subject.
For the purpose of thoroughly understanding the American principles with
respect to the formation of juries, I examined the laws of states at a
distance from one another, and the following observations were the
result of my inquiries.
In America all the citizens who exercise the elective franchise have the
right of serving upon a jury. The great state of New York, however, has
made a slight difference between the two privileges, but in a spirit
contrary to that of the laws of France; for in the state of New York
there are fewer persons eligible as jurymen than there are electors. It
may be said in general that the right of forming part of a jury, like
that of electing representatives, is open to all the citizens; the
exercise of this right, however, is not put indiscriminately into any
hands.
Every year a body of municipal or county magistrates--called _selectmen_
in New England, _supervisors_ in New York, _trustees_ in Ohio, and
_sheriffs of the parish_ in Louisiana--choose for each county a certain
number of citizens who have the right of serving as jurymen, and who we
supposed to be capable of exercising their functions. These magistrates,
being themselves elective, excite no distrust: their powers, like those
of most republican magistrates, are very extensive and very arbitrary,
and they frequently make use of them to remove unworthy or incompetent
jurymen.
The names of the jurymen thus chosen are transmitted to the county
court; and the jury who have to decide any affair are drawn by lot from
the whole list of names.
The Americans have contrived in every way to make the common people
eligible to the jury, and to render the service as little onerous as
possible. The sessions are held in the chief town of every county; and
the jury are indemnified for their attendance either by the state or the
parties concerned. They receive in general a dollar per day, beside
their travelling expenses. In America the being placed upon the jury is
looked upon as a burden, but it is a burden which is very supportable.
See Brevard's Digest of the Public Statute Law of South Carolina, vol.
i, pp. 446 and 454, vol. ii., pp. 218 and 333; The General Laws of
Massachusetts, revised and published by Authority of the Legislature, v.
ii., pp. 187 and 331; The Revised Statutes of the State of New York,
vol. ii., pp. 411, 643, 717, 720; The Statute Law of the State of
Tennessee, vol. i., p. 209; Acts of the State of Ohio, pp. 95 and 210;
and Digeste General des Actes de la Legislature de la Louisiana.
APPENDIX R.--Page 290.
If we attentively examine the constitution of the jury as introduced
into civil proceedings in England, we shall readily perceive that the
jurors are under the immediate control of the judge. It is true that the
verdict of the jury, in civil as well as in criminal cases, comprises
the question of fact and the question of right in the same reply; thus,
a house is claimed by Peter as having been purchased by him: this is the
fact to be decided. The defendant puts in a plea of incompetency on the
part of the vendor: this is the legal question to be resolved.
But the jury do not enjoy the same character of infallibility in civil
cases, according to the practice of the English courts, as they do in
criminal cases. The judge may refuse to receive the verdict; and even
after the first trial has taken place, a second or new trial may be
awarded by the court. See Blackstone's Commentaries, book iii., ch. 24.
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