American Institutions and Their Influence

179

See the fifth volume of Marshall's Life of Washington. "In a government constituted like that of the United States," he says, "it is impossible for the chief magistrate, however firm he may be, to oppose for any length of time the torrents of popular opinion; and the prevalent opinion of that day seemed to incline to war. In fact, in the session of congress held at the time, it was frequently seen that Washington had lost the majority in the house of representatives." The violence of the language used against him in public was extreme, and in a political meeting they did not scruple to compare him indirectly to the treacherous Arnold. "By the opposition," says Marshall, "the friends of the administration were declared to be an aristocratic and corrupt faction, who, from a desire to introduce monarchy, were hostile to France, and under the influence of Britain; that they were a paper nobility, whose extreme sensibility at every measure which threatened the funds, induced a tame submission to injuries and insults, which the interests and honor of the nation required them to resist."

180

At the time of my stay in the United States the temperance societies already consisted of more than 270,000 members; and their effect had been to diminish the consumption of fermented liquors by 500,000 gallons per annum in the state of Pennsylvania alone.

181

The same remark was made at Rome under the first Caesars. Montesquieu somewhere alludes to the excessive despondency of certain Roman citizens who, after the excitement of political life, were all at once flung back into the stagnation of private life.

182

We observed in examining the federal constitution that the efforts of the legislators of the Union had been diametrically opposed to the present tendency. The consequence has been that the federal government is more independent in its sphere than that of the states. But the federal government scarcely ever interferes in any but external affairs; and the governments of the states are in reality the authorities which direct society in America.

183

The legislative acts promulgated by the state of Massachusetts alone, from the year 1780 to the present time, already fill three stout volumes: and it must not be forgotten that the collection to which I allude was published in 1823, when many old laws which had fallen into disuse were omitted. The state of Massachusetts, which is not more populous than a department of France, may be considered as the most stable, the most consistent, and the most sagacious in its undertakings of the whole Union.

184

No one will assert that a people cannot forcibly wrong another people: but parties may be looked upon as lesser nations within a greater one, and they are aliens to each other: if therefore it be admitted that a nation can act tyrannically toward another nation, it cannot be denied that a party may do the same toward another party.

185

A striking instance of the excesses which may be occasioned by the despotism of the majority occurred at Baltimore in the year 1812. At that time the war was very popular in Baltimore. A journal which had taken the other side of the question excited the indignation of the inhabitants by its opposition. The populace assembled, broke the printing-presses, and attacked the houses of the newspaper editors. The militia was called out, but no one obeyed the call; and the only means of saving the poor wretches who were threatened by the phrensy of the mob, was to throw them into prison as common malefactors. But even this precaution was ineffectual; the mob collected again during the night; the magistrates again made a vain attempt to call out the militia; the prison was forced, one of the newspaper editors was killed upon the spot, and the others were left for dead: the guilty parties were acquitted by the jury when they were brought to trial.

I said one day to an inhabitant of Pennsylvania: "Be so good as to explain to me how it happens, that in a state founded by quakers, and celebrated for its toleration, freed blacks are not allowed to exercise civil rights. They pay the taxes: is it not fair that they should have a vote."

"You insult us," replied my informant, "if you imagine that our legislators could have committed so gross an act of injustice and intolerance."

"What, then, the blacks possess the right of voting in this country?"

"Without the smallest doubt."

"How comes it then, that at the polling-booth this morning I did not perceive a single negro in the whole meeting?"

"This is not the fault of the law; the negroes have the undisputed right of voting; but they voluntarily abstain from making their appearance."

"A very pretty piece of modesty on their parts," rejoined I.

"Why, the truth is, that they are not disinclined to vote, but they are afraid of being maltreated; in this country the law is sometimes unable to maintain its authority without the support of the majority. But in this case the majority entertains very strong prejudices against the blacks, and the magistrates are unable to protect them in the exercise of their legal privileges."

"What, then, the majority claims the right not only of making the laws, but of breaking the laws it has made?"

186

This power may be centred in an assembly, in which case it will be strong without being stable; or it may be centred in an individual, in which case it will be less strong, but more stable.

187

I presume that it is scarcely necessary to remind the reader here, as well as throughout the remainder of this chapter, that I am speaking not of the federal government, but of the several governments of each state which the majority controls at its pleasure.

188

15th March, 1789.

189

This translation does not accurately convey the meaning of M. de Tocqueville's expression. He says: "Ils craignent moins la tyrannie que l'arbitraire, et pourvu que le législateur se charge lui-même d'enlever aux hommes leur indépendance, ils sont à peu près content."

The more correct rendering would be: 'They fear tyranny less than arbitrary sway, and provided it is the legislator himself who undertakes to deprive men of their independence, they are almost content.'—Reviser.

190

See chapter vi., p. 94, on the judicial power in the United States.

191

The investigation of trial by jury as a judicial institution, and the appreciation of its effects in the United States, together with the advantages the Americans have derived from it, would suffice to form a book, and a book upon a very useful and curious subject. The state of Louisiana would in particular afford the curious phenomenon of a French and English legislation, as well as a French and English population, which are generally combining with each other. See the "Digeste des Lois de la Louisiane," in two volumes; and the "Traité sur les Regles des Actions civiles," printed in French and English at New Orleans in 1830.

192

All the English and American jurists are unanimous upon this head. Mr. Story, judge of the supreme court of the United States, speaks, in his treatise on the federal constitution, of the advantages of trial by jury in civil cases: "The inestimable privilege of a trial by jury in civil cases—a privilege scarcely inferior to that in criminal cases, which is counted by all persons to be essential to political and civil liberty" … (Story, book iii, ch. xxxviii.).

193

If it were our province to point out the utility of the jury as a judicial institution in this place, much might be said, and the following arguments might be brought forward among others:—

By introducing the jury into the business of the courts, you are enabled to diminish the number of judges; which is a very great advantage. When judges are very numerous, death is perpetually thinning the ranks of the judicial functionaries, and laying places vacant for new comers. The ambition of the magistrates is therefore continually excited, and they are naturally made dependant upon the will of the majority, or the individual who fills up vacant appointments: the officers of the courts then rise like the officers of an army. This state of things is entirely contrary to the sound administration of justice, and to the intentions of the legislator. The office of a judge is made inalienable in order that he may remain independent; but of what advantage is it that his independence is protected, if he be tempted to sacrifice it of his own accord? When judges are very numerous, many of them must necessarily be incapable of performing their important duties; for a great magistrate is a man of no common powers; and I am inclined to believe that a half enlightened tribunal is the worst of all instruments for obtaining those objects which it is the purpose of courts of justice to accomplish. For my own part, I had rather submit the decision of a case to ignorant jurors directed by a skilfull judge, than to judges, a majority of whom are imperfectly acquainted with jurisprudence and with the laws.

{I venture to remind the reader, lest this note should appear somewhat redundant to an English eye, that the jury is an institution which has only been naturalized in France within the present century; that it is even now exclusively applied to those criminal causes which come before the courts of assize, or to the prosecutions of the public press; and that the judges and counsellors of the numerous local tribunals of France—forming a body of many thousand judicial functionaries—try all civil causes, appeals from criminal causes, and minor offences, without the jury.—Translator's Note.}

194

An important remark must however be made. Trial by jury does unquestionably invest the people with a general control over the actions of citizens, but it does not furnish means of exercising this control in all cases, or with an absolute authority. When an absolute monarch has the right of trying offences by his representatives, the fate of the prisoner is, as it were, decided beforehand. But even if the people were predisposed to convict, the composition and the non-responsibility of the jury would still afford some chances favorable to the protection of innocence.

195

In France, the qualification of the jurors is the same as the electoral qualification, namely, the payment of 200 francs per annum in direct taxes: they are chosen by lot. In England they are returned by the sheriff; the qualifications of jurors were raised to 10l per annum in England, and 6l in Wales, of freehold land or copyhold, by the statute W. and M., c. 24: leaseholders for a time determinable upon life or lives, of the clear yearly value of 20l per annum over and above the rent reserved, are qualified to serve on juries; and jurors in the courts of Westminster and city of London must be householders, and possessed of real and personal estates of the value of 100l. The qualifications, however, prescribed in different statutes, vary according to the object for which the jury is impannelled. See Blackstone's Commentaries, b. iii., c. 23.—Translator's Note.

196

See Appendix Q.

197

See Appendix R.

198

The federal judges decide upon their own authority almost all the questions most important to the country.

199

The United States have no metropolis; but they already contain several very large cities. Philadelphia reckoned 161,000 inhabitants, and New York 202,000, in the year 1830. The lower orders which inhabit these cities constitute a rabble even more formidable than the populace of European towns. They consist of freed blacks in the first place, who are condemned by the laws and by public opinion, to an hereditary state of misery and degradation. They also contain a multitude of Europeans who have been driven to the shores of the New World by their misfortunes or their misconduct; and these men inoculate the United States with all our vices, without bringing with them any of those interests which counteract their baneful influence. As inhabitants of a country where they have no civil rights, they are ready to turn all the passions which agitate the community to their own advantage; thus, within the last few months serious riots have broken out in Philadelphia and in New York. Disturbances of this kind are unknown in the rest of the country, which is nowise alarmed by them, because the population of the cities has hitherto exercised neither power nor influence over the rural districts.

Nevertheless, I look upon the size of certain American cities, and especially on the nature of their population, as a real danger which threatens the future security of the democratic republics of the New World: and I venture to predict that they will perish from this circumstance, unless the government succeed in creating an armed force, which, while it remains under the control of the majority of the nation, will be independent of the town population, and able to repress its excesses.

200

In New England the estates are exceedingly small, but they are rarely subjected to farther division.

201

The New York Spectator of August 23, 1831, relates the fact in the following terms: "The court of common pleas of Chester county (New York), a few days since rejected a witness who declared his disbelief in the existence of God. The presiding judge remarked, that he had not before been aware that there was a man living who did not believe in the existence of God; that this belief constituted the sanction of all testimony in a court of justice; and that he knew of no cause in a Christian country, where a witness had been permitted to testify without such belief."

{The instance given by the author, of a person offered as a witness having been rejected on the ground that he did not believe in the existence of a God, seems to be adduced to prove either his assertion that the Americans hold religion to be indispensable to the maintenance of republican institutions—or his assertion, that if a man attacks all the sects together, every one abandons him and he remains alone. But it is questionable how far the fact quoted proves either of these positions. The rule which prescribes as a qualification for a witness the belief in a Supreme Being who will punish falsehood, without which he is deemed wholly incompetent to testify, is established for the protection of personal rights, and not to compel the adoption of any system of religious belief. It came with all our fundamental principles from England as a part of the common law which the colonists brought with them. It is supposed to prevail in every country in Christendom, whatever may be the form of its government; and the only doubt that arises respecting its existence in France, is created by our author's apparent surprise at finding such a rule in America.—American Editor.}

202

Unless this term be applied to the functions which many of them fill in the schools. Almost all education is intrusted to the clergy.

203

See the constitution of New York, art. 7, § 4:—"And whereas, the ministers of the gospel are, by their profession, dedicated to the service of God and the care of souls, and ought not to be diverted from the great duties of their functions; therefore no minister of the gospel, or priest of any denomination whatsoever, shall, at any time hereafter, under any pretence or description whatever, be eligible to, or capable of holding any civil or military office or place within this state."

See also the constitutions of North Carolina, art. 31. Virginia. South Carolina, art. 1, § 23. Kentucky, art. 2, § 26. Tennessee, art S, § 1. Louisiana, art. 2, § 22.

204

I travelled along a portion of the frontier of the United States in a sort of cart which was termed the mail. We passed, day and night, with great rapidity along roads which were scarcely marked out, through immense forests: when the gloom of the woods became impenetrable, the coachman lighted branches of fir and we journied along by the light they cast. From time to time we came to a hut in the midst of the forest, which was a postoffice. The mail dropped an enormous bundle of letters at the door of this isolated dwelling, and we pursued our way at full gallop, leaving the inhabitants of the neighboring log-houses to send for their share of the treasure.

205

In 1832, each inhabitant of Michigan paid a sum equivalent to 1 franc, 22 centimes (French money) to the postoffice revenue; and each inhabitant of the Floridas paid 1 fr. 5 cent (See National Calendar, 1833, p. 244.) In the same year each inhabitant of the department du Nord, paid 1 fr. 4 cent, to the revenue of the French postoffice. (See the Compte rendu de l'Administration des Finances, 1833, p. 623.) Now the state of Michigan only contained at that time 7 inhabitants per square league; and Florida only 5; the instruction and the commercial activity of these districts are inferior to those of most of the states in the Union; while the department du Nord, which contains 3,400 inhabitants per square league, is one of the most enlightened and manufacturing parts of France.

206

I remind the reader of the general signification which I give to the word manners, namely, the moral and intellectual characteristics of social man taken collectively.

207

See the map. {Transcriber's Note: Map of North America.}

208

The native of North America retains his opinions and the most insignificant of his habits with a degree of tenacity which has no parallel in history. For more than two hundred years the wandering tribes of North America have had daily intercourse with the whites, and they have never derived from them either a custom or an idea. Yet the European have exercised a powerful influence over the savages: they have made them more licentious, but not more European. In the summer of 1831, I happened to be beyond Lake Michigan, at a place called Green Bay, which serves as the extreme frontier between the United States and the Indians on the northwestern side. Here I became acquainted with an American officer, Major H., who, after talking to me at length on the inflexibility of the Indian character, related the following fact: "I formerly knew a young Indian," said he, "who had been educated at a college in New England, where he had greatly distinguished himself, and had acquired the external appearance of a member of civilized society. When the war broke out between ourselves and the English, in 1810, I saw this young man again; he was serving in our army at the head of the warriors of his tribe; for the Indians were admitted among the ranks of the Americans, upon condition that they would abstain from their horrible custom of scalping their victims. On the evening of the battle of –, C. came and sat himself down by the fire of our bivouac. I asked him what had been his fortune that day: he related his exploits; and growing warm and animated by the recollection of them, he concluded by suddenly opening the breast of his coat, saying, 'You must not betray me—see here!' And I actually beheld," said the major, "between his body and his shirt, the skin and hair of an English head still dripping with gore."

209

In the thirteen original states, there are only 6,273 Indians remaining. (See Legislative Documents, 20th congress, No. 117, p. 90.)

210

Messrs. Clarke and Cass, in their report to congress, the 4th February, 1829, p. 23, expressed themselves thus: "The time when the Indians generally could supply themselves with food and clothing, without any of the articles of civilized life, has long since passed away. The more remote tribes, beyond the Mississippi, who live where immense herds of buffalo are yet to be found, and who follow those animals in their periodical migrations, could more easily than any others recur to the habits of their ancestors, and live without the white man or any of his manufactures. But the buffalo is constantly receding. The smaller animals—the bear, the deer, the beaver, the otter, the muskrat, &c., principally minister to the comfort and support of the Indians; and these cannot be taken without guns, ammunition, and traps.

"Among the northwestern Indians particularly, the labor of supplying a family with food is excessive. Day after day is spent by the hunter without success, and during this interval his family must subsist upon bark or roots, or perish. Want and misery are around them and among them. Many die every winter from actual starvation."

The Indians will not live as Europeans live; and yet they can neither subsist without them, nor exactly after the fashion of their fathers. This is demonstrated by a fact which I likewise give upon official authority. Some Indians of a tribe on the banks of Lake Superior had killed a European; the American government interdicted all traffic with the tribe to which the guilty parties belonged, until they were delivered up to justice. This measure had the desired effect.

211

"Five years ago," says Volney in his Tableaux des Etats Unis, p. 370, "in going from Vincennes to Kaskaskia, a territory which now forms part of the State of Illinois, but which at the time I mention was completely wild (1797), you could not cross a prairie without seeing herds of from four to five hundred buffaloes. There are now none remaining; they swam across the Mississippi to escape from the hunters, and more particularly from the bells of the American cows."

212

The truth of what I here advance may be easily proved by consulting the tabular statement of Indian tribes inhabiting the United States, and their territories. (Legislative Documents, 20th congress, No. 117, pp. 90-105.) It is there shown that the tribes of America are rapidly decreasing, although the Europeans are at a considerable distance from them.

213

"The Indians," says Messrs. Clarke and Cass in their report to congress, p. 15, "are attached to their country by the same feelings which bind us to ours; and, besides, there are certain superstitious notions connected with the alienation of what the Great Spirit gave to their ancestors, which operate strongly upon the tribes who have made few or no cessions, but which are gradually weakened as our intercourse with them is extended. 'We will not sell the spot which contains the bones of our fathers,' is almost always the first answer to a proposition for a sale."

214

See in the legislative documents of congress (Doc. 117), the narrative of what takes place on these occasions. This curious passage is from the abovementioned report, made to congress by Messrs. Clarke and Cass, in February, 1829. Mr. Cass is now secretary of war.

"The Indians," says the report, "reach the treaty-ground poor, and almost naked. Large quantities of goods are taken there by the traders, and are seen and examined by the Indians. The women and children become importunate to have their wants supplied, and their influence is soon exerted to induce a sale. Their improvidence is habitual and unconquerable. The gratification of his immediate wants and desires is the ruling passion of an Indian: the expectation of future advantages seldom produces much effect. The experience of the past is lost, and the prospects of the future disregarded. It would be utterly hopeless to demand a cession of land unless the means were at hand of gratifying their immediate wants; and when their condition and circumstances are fairly considered, it ought not to surprise us that they are so anxious to relieve themselves."

215

On the 19th of May, 1830, Mr. Edward Everett affirmed before the house of representatives, that the Americans had already acquired by treaty, to the east and west of the Mississippi, 230,000,000 of acres. In 1808, the Osages gave up 48,000,000 acres for an annual payment of 1,000 dollars. In 1818, the Quapaws yielded up 29,000,000 acres for 4,000 dollars. They reserved for themselves a territory of 1,000,000 acres for a hunting-ground. A solemn oath was taken that it should be respected: but before long it was invaded like the rest. Mr. Bell, in his "Report of the Committee on Indian Affairs," February 24th, 1830, has these words: "To pay an Indian tribe what their ancient hunting-grounds are worth to them, after the game is fled or destroyed, as a mode of appropriating wild lands claimed by Indians, has been found more convenient, and certainly it is more agreeable to the forms of justice, as well as more merciful, than to assert the possession of them by the sword. Thus the practice of buying Indian titles is but the substitute which humanity and expediency have imposed, in place of the sword, in arriving at the actual enjoyment of property claimed by the right of discovery, and sanctioned by the natural superiority allowed to the claims of civilized communities over those of savage tribes. Up to the present time, so invariable has been the operation of certain causes, first in diminishing the value of forest lands to the Indians, and secondly in disposing them to sell readily, that the plan of buying their right of occupancy has never threatened to retard, in any perceptible degree, the prosperity of any of the states." (Legislative documents, 21st congress, No. 227, p. 6.)