nor philosophers, nor authors, a man might stand up in the
face of a free people, and pronounce amid general acclama
tions the following fine definition of liberty :*

" 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 re
straint ; by this liberty ' sumus ornnes drtcriores ;' '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 fede
ral 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,

* Mather's Magnalia Chnsti Americana, TO!, 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. 1G6.



40 ORIGIN OF THE ANGLO-AMERICANS

and whatsoever crosses it. is not authority, but a diirtemper
thereof. This, liberty is maintained in a way of subjection
to authority ; and the authority set over you will, in all admi
nistrations 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 cha
racter of Anglo-American civilisation in its true light. It is
the_j.esult (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 in
corporated 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
11 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, how
ever, 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 de
voted 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 with
out a horizon, were opened to the exploring and ardent curi
osity of man ; but at the limits of the political world lie
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.



AND ITS IMPORTANCE. 41

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 sup
port 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 em
pire 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 bat
tles 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.*



REASONS OF CERTAIN ANOMALIES WHICH THE LAWS AND
CUSTOMS OF THE ANGLO-AMERICANS PRESENT.

Remains of aristocratic Institutions in the midst of a complete Demo
cracy. 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 abso
lute an inference from what has been said. The social con
dition, 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 dis
tinguish 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

* See Appendix F.



42 ORIGIN OF THE ANGLO-AMERICANS

prevailing tenor of the American legislation ; and these cus
toms 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 commjttal^op^ail. 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 re
duced 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.* 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,"]* 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 perceif es
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 ex
pression, covered with a layer of democracy, from beneath
which the old aristocratic colors sometimes peep, (a)

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

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

(a) The author is not quite accurate in this statement. A person



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,

accused of crime is, in the first instance, arrested by virtue of a war
rant 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 pre
sence, other evidence adduced, and he is heard in explanation or de
fence. If the magistrate is satisfied that a crime has been committed,
and that the accused is <ruilty, the latter is then, and then only, requir
ed 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 ap
pearance at a trial.

In France, after the preliminary examination, the accused, unless
absolutely discharged, is in all cases incarcerated, to secure his pre
sence 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 anti
cipation, 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
for aristocratic tendency, our system deserves credit for having ame
liorated, as far as possible, the condition of persons accused. That
this amelioration cannot be made in all instances, flows from the ne
cessity 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 se
curity 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 con
stitutional provisions for the delivery,, by the different states, of fugi
tives from justice, and by our treaties with England and France for the
same purpose, that the instances of successful evasion are few and
rare.






44 SOCIAL CONDITION OF

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. Demo
cracy 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 condi
tion 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 clay.

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 ob
tained 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 Flori-
das, the case was different. In most of the states situated
to the southwest of the Hudson some great English proprie
tors 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 power
ful 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 coun
try : 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 privi-






THE ANGLO-AMERICANS. 45

leges ; and the cultivation of their estates being carried on
by slaves, they had no tenants depending on them, and con
sequently 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 in
surrection 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 au
thority 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 attrib
uted to this law a greater influence on human affairs.* It is
true that these laws belong to civil affairs : but they ought
nevertheless to be placed at the head of all political institu
tions ; for, while political laws are only the symbol of a na
tion'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, gene
rations 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



* 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 de
scent of property after the death of its owner : its other provisions are
merely means to this end.



46 SOCIAL CONDITION OF

its action is still more rapid ; it divides, distributes, and dis
perses 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 pro
perty : 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 of inheritance
is established by law, property, and especially landed pro
perty, must have a tendency to perpetual diminution. The
effects, however, of such legislation would only be percep
tible after a lapse of time, if the law was abandoned to its
own working; for supposing a family to consist of -two chil
dren (and in a country peopled as France is, the average
number is not above three), these children, sharing among
them the fortune of both parents, would not be poorer than
their father or mother.

But the law of equal division exercises its influence not
merely upon the property itself, but it affects the minds of
the heirs, and brings their passions into play. These indi
rect consequences tend powerfully to the destruction of large
fortunes, and. especially of large domains.

Among the nations whose law of descent is founded upon
the right of primogeniture, landed estates often pass from
generation to generation without undergoing division. The
consequence of which is, that family feeling is to a certain
degree incorporated with the estate. The family represents
the estate, the estate the family ; whose name, together with
its origin, its glory, its power, and its virtues, is thus perpetu
ated in an imperishable memorial of the past, and a sure
pledge of the future.

When the equal partition of property is established by law,
the intimate connection is destroyed between family feeling



THE ANGLO-AMERICANS. 47

and the preservation of the paternal estate ; the property
ceases to represent the family ; for, as it must inevitably be
divided after one or two generations, it has evidently a con
stant tendency to diminish, and must in the end be com
pletely dispersed. The sons of the great landed proprietor,
if they are few in number, or if fortune befriend them, may
indeed entertain the hope of being as wealthy as their father,
Hut not that of possessing the same property as he did ; their
riches must necessarily be composed of elements different
from his.

Now, from the moment when you divest the land-owner of
that interest in the preservation of his estate which he de
rives from association, from tradition, and from family pride,
you may be certain that sooner or later he will dispose of it ;
for there is a strong pecuniary interest in favor of selling, as
floating capital produces higher interest than real property,
and is more readily available to gratify the passions of the
moment.

Great landed estates which have once been divided, nevei
come together again ; for the small proprietor draws from
his land a better revenue in proportion, than the large owner
does from his; and of course he sells it at a higher rate.*
The calculations of gain, therefore, which decided the rich
man to sell his domain, will still more powerfully influence
him against buying small estates to unite them into a large
one.

What is called family pride is often founded upon an illu
sion of self-love. A man wishes to perpetuate and immortal
ize himself, as it were, in his great-grandchildren. Where
the esprit defamille ceases to act, individual selfishness comes
into play. When the idea of family becomes vague, indeter
minate, and uncertain, a man thinks of his present conveni
ence ; he provides for the establishment of the succeeding
generation, and no more.

Either a man gives up the idea of perpetuating his family,
or at any rate he seeks to accomplish it by other means than
that of a landed estate.

Thus not only does the law of partible inheritance render
it difficult for families to preserve their ancestral domains en
tire, but it deprives them of the inclination to attempt it, and
compels them in some measure to ccCoperate with the law irf
their own extinction.

* 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.



48 SOCIAL CONDITION OF

The law of equal distribution proceeds by two methods :
(D by acting upon things, it acts upon persons ;lJ>y influencing
persons, it affects things. By these means the law succeeds
in striking at the root of landed property, and dispersing
rapidly both families and fortunes.*

Most certainly is it not for us, Frenchmen of the nineteenth
century, who daily behold the political and social changes
which the law of partition is bringing to pass, to question its
influence. It is perpetually conspicuous in our country, over
throwing the walls of our dwellings and removing the land
marks of our fields. But although it has produced great
effects in France, much still remains for it to do. Our recol
lections, opinions, and habits, present powerful obstacles to its
progress.

In the United States it has nearly completed its work of de
struction, and there we can best study its results. The Eng
lish laws concerning the transmission of property were abo
lished in almost all the states at the time of the revolution.
The law of entail was so modified as not to interrupt the free
circulation of property. f The first having passed away,
estates began to be parcelled out ; and the change became
more and more rapid with the progress of time. At this mo
ment, after a lapse of little more than sixty years, the aspect
of society is totally altered ; the families of the great landed
proprietors are almost all commingled with the general mass.
In the state of New York, which formerly contained many
of these, there are but two who still keep their heads above
the stream ; and they must shortly disappear. The sons of
these opulent citizens have become merchants, lawyers, or
physicians. Most of them have lapsed into obscurity. The

* 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 infor
mation, 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,
flhich 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 territorrial possessions, certainly not to keep
them up in the same family.

f See Appendix G.



THE ANGLO-AMERICANS. 49

|j

last trace of hereditary ranks and distinctions is destroyed