American Institutions and Their Influence - Alexis de Tocqueville (i am reading a book .TXT) 📗

inflict fines upon all who refused compliance; and in cases of continued resistance, society assumed the place of the parent, took possession of the child, and deprived the father of those natural rights which he used to so bad a purpose. The reader will undoubtedly have remarked the preamble of these enactments: in America, religion is the road to knowledge, and the observance of the divine laws leads men to civil freedom.

If, after having cast a rapid glance over the state of American society in 1650, we turn to the condition of Europe, and more especially to that of the continent, at the same period, we cannot fail to be struck with astonishment. On the continent of Europe, at the beginning of the seventeenth century, absolute monarchy had everywhere triumphed over the ruins of the oligarchical and feudal liberties of the middle ages. Never were the notions of right more completely confounded than in the midst of the splendor and literature of Europe; never was there less political activity among the people; never were the principles of true freedom less widely circulated, and at that very time, those principles, which were scorned or unknown by the nations of Europe, were proclaimed in the deserts of the New World, and were accepted as the future creed of a great people. The boldest theories of the human reason were put into practice by a community so humble, that not a statesman condescended to attend to it; and a legislation without precedent was produced off-hand by the imagination of the citizens. In the bosom of this obscure democracy, which had as yet brought forth neither generals, nor philosophers, nor authors, a man might stand up in the face of a free people, and pronounce amid general acclamations the following fine definition of liberty:[Footnote: 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.

]—

“Nor would I have you to mistake in the point of your own liberty. There is a liberty of corrupt nature, which is affected both by men and beasts to do what they list; and this liberty is inconsistent with authority, impatient of all restraint; by this liberty ‘sumus omnes deteriores;‘ ‘t is the grand enemy of truth and peace, and all the ordinances of God are bent against it. But there is a civil, a moral, a federal liberty, which is the proper end and object of authority; is a liberty for that only which is just and good: for this liberty you are to stand with the hazard of your very lives, and whatsoever crosses it is not authority, but a distemper thereof. This liberty is maintained in a way of subjection to authority; and the authority set over you will, in all administrations for your good, be quietly submitted unto by all but such as have a disposition to shake off the yoke and lose their true liberty, by their murmuring at the honor and power of authority.”

The remarks I have made will suffice to display the character of Anglo-American civilisation in its true light. It is the result (and this should be constantly present to the mind) of two distinct elements, which in other places have been in frequent hostility, but which in America have admirably incorporated and combined with one another. I allude to the spirit of religion and the spirit of liberty.

The settlers of New England were at the same time ardent sectarians and daring innovators. Narrow as the limits of some of their religious opinions were, they were entirely free from political prejudices.

Hence arose two tendencies, distinct but not opposite, which are constantly discernible in the manners as well as in the laws of the country.

It might be imagined that men who sacrificed their friends.

their family, and their native land, to a religious conviction, were absorbed in the pursuit of the intellectual advantages which they purchased at so dear a rate. The energy, however, with which they strove for the acquirements of wealth, moral enjoyment, and the comforts as well as the liberties of the world, was scarcely inferior to that with which they devoted themselves to Heaven.

Political principles, and all human laws and institutions were moulded and altered at their pleasure; the barriers of the society in which they were born were broken down before them; the old principles which had governed the world for ages were no more; a path without a turn, and a field without a horizon, were opened to the exploring and ardent curiosity of man; but at the limits of the political world he checks his researches, he discreetly lays aside the use of his most formidable faculties, he no longer consents to doubt or to innovate, but carefully abstaining from raising the curtain of the sanctuary, he yields with submissive respect to truths which he will not discuss.

Thus in the moral world, everything is classed, adapted, decided, and foreseen; in the political world everything is agitated, uncertain, and disputed: in the one is a passive, though a voluntary obedience; in the other an independence, scornful of experience and jealous of authority.

These two tendencies, apparently so discrepant, are far from conflicting; they advance together, and mutually support each other.

Religion perceives that civil liberty affords a noble exercise to the faculties of man, and that the political world is a field prepared by the Creator for the efforts of the intelligence.

Contented with the freedom and the power which it enjoys in its own sphere, and with the place which it occupies, the empire of religion is never more surely established than when it reigns in the hearts of men unsupported by aught besides its native strength.

Religion is no less the companion of liberty in all its battles and its triumphs; the cradle of its infancy, and the divine source of its claims. The safeguard of morality is religion, and morality is the best security of law as well as the surest pledge of freedom.[Footnote:

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 it was not in their power to found a state of things originating solely in themselves; no man can entirely shake off the influence of the past, and the settlers, unintentionally or involuntarily, mingled habits derived from their education and from the traditions of their country, with those habits and notions which were exclusively their own. To form a judgment on the Anglo-Americans of the present day, it is therefore necessary carefully to distinguish what is of puritanical from what is of English origin.

Laws and customs are frequently to be met with in the United States which contrast strongly with all that surrounds them.

These laws seem to be drawn up in a spirit contrary to the prevailing tenor of the American legislation; and these customs are no less opposed to the general tone of society. If the English colonies had been founded in an age of darkness, or if their origin was already lost in the lapse of years, the problem would be insoluble.

I shall quote a single example to illustrate what I advance.

The civil and criminal procedure of the Americans has only two means of action—committal or bail. The first measure taken by the magistrate is to exact security from the defendant, or, in case of refusal, to incarcerate him: the ground of the accusation, and the importance of the charges against him are then discussed.

It is evident that a legislation of this kind is hostile to the poor man, and favorable only to the rich. The poor man has not always a security to produce, even in a civil cause: and if he is obliged to wait for justice in prison, he is speedily reduced to distress. The wealthy individual, on the contrary, always escapes imprisonment in civil causes; nay, more, he may readily elude the punishment which awaits him for a delinquency, by breaking his bail. So that all the penalties of the law are, for him, reducible to fines.[Footnote:

Crimes no doubt exist for which bail is inadmissible, but they are few in number.

] 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,[Footnote: See Blackstone; and Delolme, book i., chap. x.

] and the Americans have retained them, however repugnant they may be to the tenor of their legislation, and the mass of their ideas.

Next to its habits, the thing which a nation is least apt to change is its civil legislation. Civil laws are only familiarly known to legal men, whose direct interest it is to maintain them as they are, whether good or bad, simply because they themselves are conversant with them. The body of the nation is scarcely acquainted with them: it merely perceives their action in particular cases; but it has some difficulty in seizing their tendency, and obeys them without reflection.

I have quoted one instance where it would have been easy to adduce a great number of others.

The surface of American society is, if I may use the expression, covered with a layer of democracy, from beneath which the old aristocratic colors sometimes peep.[Footnote: 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