Chapter II - Part II
The English Government was not dissatisfied with an emigration which removed the elements of fresh discord and of further revolutions. On the contrary, everything was done to encourage it, and great exertions were made to mitigate the hardships of those who sought a shelter from the rigor of their country's laws on the soil of America. It seemed as if New England was a region given up to the dreams of fancy and the unrestrained experiments of innovators.
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
[ This was the case in the State of New York.]
[ Maryland, the Carolinas, Pennsylvania, and New Jersey were in this situation. See "Pitkin's History," vol. i. pp. 11-31.]
[ 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.
[ See "Pitkin's History," p, 35. See the "History of the Colony of Massachusetts Bay," by Hutchinson, vol. i. p. 9.]
[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.
[ 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.
[ Code of 1650, p. 28; Hartford, 1830.]
[ 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.]
[ 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
[ 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.]
[ "New Haven Antiquities," p. 104. See also "Hutchinson's History," for several causes equally extraordinary.]
[ Code of 1650, pp. 50, 57.]
[ Ibid., p. 64.]
[ 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.]
[ 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.]
[ Code of 1650, p. 96.]
[ "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
[ Constitution of 1638, p. 17.]
[ 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.]
[ "Pitkin's History," p. 47.]
[ 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.
[ 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.]
[ Ibid., p. 49.]
[ See "Hutchinson's History," vol. i. p. 455.]
[ Code of 1650, p. 86.]
[ 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.
[ 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
[ 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
[ 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.
[ Crimes no doubt exist for which bail is inadmissible, but they are few in number.]
[ See Blackstone; and Delolme, book I chap. x.]