American Institutions and Their Influence. Alexis de Tocqueville
in themselves; no man can entirely shake off the influence of the past, and the settlers, unintentionally or involuntarily, mingled habits derived from their education and from the traditions of their country, with those habits and notions which were exclusively their own. To form a judgment on the Anglo-Americans of the present day, it is therefore necessary carefully to distinguish what is of puritanical from what is of English origin.
Laws and customs are frequently to be met with in the United States which contrast strongly with all that surrounds them. These laws seem to be drawn up in a spirit contrary to the prevailing tenor of the American legislation; and these customs are no less opposed to the general tone of society. If the English colonies had been founded in an age of darkness, or if their origin was already lost in the lapse of years, the problem would be insoluble.
I shall quote a single example to illustrate what I advance.
The civil and criminal procedure of the Americans has only two means of action—committal or bail. The first measure taken by the magistrate is to exact security from the defendant, or, in case of refusal, to incarcerate him: the ground of the accusation, and the importance of the charges against him are then discussed.
It is evident that a legislation of this kind is hostile to the poor man, and favorable only to the rich. The poor man has not always a security to produce, even in a civil cause: and if he is obliged to wait for justice in prison, he is speedily reduced to distress. The wealthy individual, on the contrary, always escapes imprisonment in civil causes; nay, more, he may readily elude the punishment which awaits him for a delinquency, by breaking his bail. So that all the penalties of the law are, for him, reducible to fines.54 Nothing can be more aristocratic than this system of legislation. Yet in America it is the poor who make the law, and they usually reserve the greatest social advantages to themselves. The explanation of the phenomenon is to be found in England; the laws of which I speak are English,55 and the Americans have retained them, however repugnant they may be to the tenor of their legislation, and the mass of their ideas.
Next to its habits, the thing which a nation is least apt to change is its civil legislation. Civil laws are only familiarly known to legal men, whose direct interest it is to maintain them as they are, whether good or bad, simply because they themselves are conversant with them. The body of the nation is scarcely acquainted with them: it merely perceives their action in particular cases; but it has some difficulty in seizing their tendency, and obeys them without reflection.
I have quoted one instance where it would have been easy to adduce a great number of others.
The surface of American society is, if I may use the expression, covered with a layer of democracy, from beneath which the old aristocratic colors sometimes peep.56
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
Crimes no doubt exist for which bail is inadmissible, but they are few in number.
See Blackstone; and Delolme, book i., chap. x.
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.
I understand by the law of descent all those laws whose principal object it is to regulate the distribution of property after the death of its owner. The law of entail is of this number: it certainly prevents the owner from disposing of his possessions before his death; but this is solely with a view of preserving them entire for the heir. The principal object, therefore, of the law of entail is to regulate the descent of property after the death of its owner: its other provisions are merely means to this end.