American Institutions and Their Influence

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, §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 Genéral des Actes de la Législature 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.

1

This work is entitled, Marie, ou l'Esclavage aux Etats-Unis.

2

Legislative and administrative documents have been furnished me with a degree of politeness which I shall always remember with gratitude. Among the American functionaries who thus favored my inquiries I am proud to name Mr. Edward Livingston, then Secretary of State and late American minister at Paris. During my stay at the session of Congress, Mr. Livingston was kind enough to furnish me with the greater part of the documents I possess relative to the federal government. Mr. Livingston is one of those rare individuals whom one loves, respects, and admires, from their writings, and to whom one is happy to incur the debt of gratitude on further acquaintance.

3

Darby's "View of the United States."

4

Mackenzie's river.

5

Warden's "Description of the United States."

6

See Appendix A.

7

Malte Brun tells us (vol. v., p. 726) that the water of the Caribbean sea is so transparent, that corals and fish are discernible at a depth of sixty fathoms. The ship seemed to float in the air, the navigator became giddy as his eye penetrated through the crystal flood, and beheld submarine gardens, or beds of shells, or gilded fishes gliding among tufts and thickets of seaweed.

8

See Appendix B.

9

With the progress of discovery, some resemblance has been found to exist between the physical conformation, the language, and the habits of the Indians of North America, and those of the Tongous, Mantchous, Moguls, Tartars, and other wandering tribes of Asia. The land occupied by these tribes is not very distant from Behring's strait; which allows of the supposition, that at a remote period they gave inhabitants to the desert continent of America. But this is a point which has not yet been clearly elucidated by science. See Malte Brun, vol. v.; the works of Humboldt; Fischer, "Conjecture sur l'Origine des Américains;" Adair, "History of the American Indians."

10

See Appendix C.

11

We learn from President Jefferson's "Notes upon Virginia," p. 148, that among the Iroquois, when attacked by a superior force, aged men refused to fly, or to survive the destruction of their country; and they braved death like the ancient Romans when their capital was sacked by the Gauls. Further on, p. 150, he tells us, that there is no example of an Indian, who, having fallen into the hands of his enemies, begged for his life; on the contrary, the captive sought to obtain death at the hands of his conquerors by the use of insult and provocation.

12

See "Histoire de la Louisiane," by Lepage Dupratz; Charlevoix, "Histoire de la Nouvelle France;" "Lettres du Rev. G. Hecwelder;" "Transactions of the American Philosophical Society," v. i.; Jefferson's "Notes on Virginia," pp. 135-190. What is said by Jefferson is of especial weight, on account of the personal merit of the writer, and of the matter-of-fact age in which he lived.

13

See Appendix D.

14

The charter granted by the crown of England, in 1609, stipulated, among other conditions, that the adventurers should pay to the crown a fifth of the produce of all gold and silver mines. See Marshall's "Life of Washington," vol i., pp. 18-66.

15

A large portion of the adventurers, says Stith (History of Virginia), were unprincipled young men of family, whom their parents were glad to ship off, discharged servants, fraudulent bankrupts, or debauchees: and others of the same class, people more apt to pillage and destroy than to assist the settlement, were the seditious chiefs who easily led this band into every kind of extravagance and excess. See for the history of Virginia the following works:—

"History of Virginia, from the first Settlements in the year 1624," by Smith.

"History of Virginia," by William Stith.

"History of Virginia, from the earliest Period," by Beverley.

16

It was not till some time later that a certain number of rich English capitalists came to fix themselves in the colony.

17

Slavery was introduced about the year 1620, by a Dutch vessel, which landed twenty negroes on the banks of the river James. See Chalmer.

18

The states of New England are those situated to the east of the Hudson; they are now six in number: 1. Connecticut; 2. Rhode Island; 3. Massachusetts; 4. Vermont; 5. New Hampshire; 6. Maine.

19

"New England's Memorial," p. 13. Boston, 1826. See also "Hutchinson's History," vol. ii., p. 440

20

This rock is become an object of veneration in the United States. I have seen bits of it carefully preserved in several towns of the Union. Does not this sufficiently show that all human power and greatness is in the soul of man? Here is a stone which the feet of a few outcasts pressed for an instant, and this stone becomes famous; it is treasured by a great nation, its very dust is shared as a relic; and what is become of the gateways of a thousand palaces?

21

"New England Memorial," p. 37.

22

The emigrants who founded the state of Rhode Island in 1638, those who landed at New Haven in 1637, the first settlers in Connecticut in 1639, and the founders of Providence in 1640, began in like manner by drawing up a social contract, which was submitted to the approval of all the interested parties. See "Pitkin's History," pp 42, 47.

23

This was the case in the state of New York.

24

Maryland, the Carolinas, Pennsylvania, and New Jersey, were in this situation. See Pitkin's History, vol. i., pp. 11-31.

25

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 Hazard, Philadelphia, 1792, for a great number of documents relating to the commencement of the colonies, which are valuable from their contents and their authenticity; among 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.

26

See Pitkin's History, p. 35. See the History of the Colony of Massachusetts Bay, by Hutchinson, vol. i., p. 9.

27

See Pitkin's History, pp. 42, 47.

28

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.

29

Code of 1650, p. 28. Hartford, 1830.

30

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.

31

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.

32

Code of 1650, p. 48. It seems sometimes to have happened that the judge superadded these punishments to each other, as is seen in a sentence pronounced in 1643 (New Haven Antiquities, p. 114), by which Margaret Bedford, convicted of loose conduct, was condemned to be whipped, and afterward to marry Nicolas Jemmings her accomplice.

33

New Haven Antiquities, p. 104. See also Hutchinson's History for several causes equally extraordinary.

34

Code of 1650, pp. 50, 57.

35

Ibid, p. 64.

36

Ibid, p. 44.

37

This was not peculiar to Connecticut. See for instance the law which, on the 13th of September, 1644, banished the ana-baptists from the state of Massachusetts. (Historical Collection of State Papers, vol. i., p. 538.) See also the law against the quakers, passed on the 14th of October, 1656. "Whereas," says the preamble, "an accursed race of heretics called quakers has sprung up," &c. 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.)

38

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.

39

Code of 1650, p. 96.

40

New England's Memorial, p. 316. See Appendix E.

41

Constitution of 1638, p. 17.

42

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.

43

Pitkin's History, p. 47.

44

Constitution of 1638, p. 12.

45

Code of 1650, p 80.

46

Code of 1650, p. 78.

47

Code of 1750, p. 94.

48

Ibid, p. 86.

49

See Hutchinson's History, vol. i. p. 455.

50

Ibid, p. 40.

51

Code of 1650, p. 90.

52

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.

53

See Appendix F.

54

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

55

See Blackstone; and Delolme, book i., chap. x.

56

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.

57

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.

58

I do not mean to say that the small proprietor cultivates his land better, but he cultivates it with more ardor and care; so that he makes up by his labor for his want of skill.

59

Land being the most stable kind of property, we find, from time to time, rich individuals who are disposed to make great sacrifices in order to obtain it, and who willingly forfeit a considerable part of their income to make sure of the rest. But these are accidental cases. The preference for landed property is no longer found habitually in any class but among the poor. The small land-owner, who has less information, less imagination, and fewer passions, than the great one, is generally occupied with the desire of increasing his estate; and it often happens that by inheritance, by marriage, or by the chances of trade, he is gradually furnished with the means. Thus, to balance the tendency which leads men to divide their estates, there exists another, which incites them to add to them. This tendency, which is sufficient to prevent estates from being divided ad infinitum, is not strong enough to create great territorial possessions, certainly not to keep them up in the same family.