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
towards 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; *j this is
the colonial system adopted by other countries of Europe. Sometimes grants of
certain tracts were made by the Crown to an individual or to a company, *k 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 only adopted in New England. *l
j [ This was the case in the State
of New York.]
k [ Maryland, the Carolinas,
Pennsylvania, and New Jersey were in this situation. See "Pitkin's
History," vol. i. pp. 11-31.]
l [ 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 Hasard. Philadelphia, 1792," for a great number of documents
relating to the commencement of the colonies, which are valuable from their
contents and their authenticity: amongst 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.]
In
1628 *m 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 *n 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 seat 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 afterwards, under Charles II. that their existence was
legally recognized by a royal charter.
m [ See "Pitkin's
History," p, 35. See the "History of the Colony of Massachusetts
Bay," by Hutchinson, vol. i. p. 9.] [Footnote n: See "Pitkin's
History," pp. 42, 47.]
This
frequently renders its 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 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. *o 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.
o [ 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.]
Amongst
these documents we shall notice, as especially characteristic, the code of laws
promulgated by the little State of Connecticut in 1650. *p The legislators of
Connecticut *q begin with the penal laws, and, strange to say, they borrow
their provisions from the text of Holy Writ. "Whosoever 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, *r 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
applied 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 towards the guilty.
p [ Code of 1650, p. 28; Hartford,
1830.]
q [ 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.]
r [ 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.]
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 was 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 *s on the misdemeanants; and if the records of the old
courts of New Haven may be believed, prosecutions of this kind were not
unfrequent. We find a sentence bearing date the first of May, 1660, inflicting
a fine and reprimand on a young woman who was accused of using improper
language, and of allowing herself to be kissed. *t The Code of 1650 abounds in
preventive measures. It punishes idleness and drunkenness with severity. *u
Innkeepers are forbidden to furnish more than a certain quantity of liquor to
each consumer; and simple lying, whenever it may be injurious, *v 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, *w and goes so far as to visit
with severe punishment, ** and even with death, the Christians who chose to
worship God according to a ritual differing from his own. *x 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. *y 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. *z
s [ Code of 1650, p. 48. It seems
sometimes to have happened that the judges superadded these punishments to each
other, as is seen in a sentence pronounced in 1643 (p. 114, "New Haven
Antiquities"), by which Margaret Bedford, convicted of loose conduct, was
condemned to be whipped, and afterwards to marry Nicholas Jemmings, her
accomplice.]
t [ "New Haven
Antiquities," p. 104. See also "Hutchinson's History," for
several causes equally extraordinary.]
u [ Code of 1650, pp. 50, 57.]
v [ Ibid., p. 64.]
w [ Ibid., p. 44.]
* [ This was not peculiar to
Connecticut. See, for instance, the law which, on September 13, 1644, banished
the Anabaptists from the State of Massachusetts. ("Historical Collection
of State Papers," vol. i. p. 538.) See also the law against the Quakers,
passed on October 14, 1656: "Whereas," says the preamble, "an
accursed race of heretics called Quakers has sprung up," etc. 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.]
x [ 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.]
y [ Code of 1650, p. 96.]
z [ "New England's
Memorial," p. 316. See Appendix, E.]
These
errors are no doubt discreditable to 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 recognized 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, *a when we recollect that
this people enjoyed an almost perfect equality of fortune, and a still greater
uniformity of opinions. *b In Connecticut, at this period, all the executive
functionaries were elected, including the Governor of the State. *c 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. *d
a [ Constitution of 1638, p. 17.]
b [ 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.]
c [ "Pitkin's History," p.
47.]
d [ Constitution of 1638, p. 12.]
In
the laws of Connecticut, as well as in all those of New England, we find the
germ 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 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 round 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 recognized 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. *e
In the parish 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.
e [ Code of 1650, p. 80.]
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 towards 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; *f strict measures were taken for the maintenance
of roads, and surveyors were appointed to attend to them; *g registers were
established in every parish, in which the results of public deliberations, and
the births, deaths, and marriages of the citizens were entered; *h clerks were
directed to keep these registers; *i 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.
*j The law enters into a thousand
useful provisions for a number of social wants which are at present very
inadequately felt in France. [Footnote f: Ibid., p. 78.]
g [ Ibid., p. 49.]
h [ See "Hutchinson's
History," vol. i. p. 455.]
i [ Code of 1650, p. 86.]
j [ Ibid., p. 40.]
But
it is by the attention it pays to Public Education that the original character
of American civilization 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. . . ." *k 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 case 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 man to civil freedom.
k [ Ibid., p. 90.]
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 a precedent was produced offhand 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 the following fine definition of
liberty. *l
l [ 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 forwards he was always re-elected governor of
the State. See Marshal, vol. i. p. 166.]
"Nor
would I have you to mistake in the point of your own liberty. There is a
liberty of a corrupt nature which is effected 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': 'tis 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
civilization 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 been 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 acquirement of wealth, moral enjoyment,
and the comforts as well as liberties of the world, is 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 an 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 beside 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 and the surest pledge of
freedom. *m
m [ See Appendix, F.]
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 they were not in a situation to found a state
of things solely dependent on themselves: no man can entirely shake off the
influence of the past, and the settlers, intentionally or involuntarily,
mingled habits and notions 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 to distinguish what is of Puritanical and 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 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 and
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. *n 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, *o 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 premeditation. 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.
n [ Crimes no doubt exist for which
bail is inadmissible, but they are few in number.]
o [ See Blackstone; and Delolme,
book I chap. x.]
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