American Institutions And Their Influence

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This rule was prescribed for the first time in the state of New
York by a statute of the 23d of February, 1786. (See Revised
Statutes, vol. iii., Appendix, p. 48.) It has since then been
adopted in the revised statutes of the same state. At the
present day this law holds good throughout the whole of the
United States, with the exception of the state of Vermont, where
the male heir inherits a double portion: Kent's Commentaries,
vol. iv., p. 370. Mr. Kent, in the same work, vol. iv.,
pp. 1-22, gives an historical account of American legislation on
the subject of entail; by this we learn that previous to the
revolution the colonies followed the English law of entail.
Estates tail were abolished in Virginia in 1776, on a motion of
Mr. Jefferson. They were suppressed in New York in 1786; and
have since been abolished in North Carolina, Kentucky, Tennessee,
Georgia, and Missouri. In Vermont, Indiana, Illinois, South
Carolina, and Louisiana, entail was never introduced. Those
States which thought proper to preserve the English law of
entail, modified it in such a way as to deprive it of its most
aristocratic tendencies. "Our general principles on the subject
of government," says Mr. Kent, "tend to favor the free
circulation of property."

It cannot fail to strike the French reader who studies the law of
inheritance, that on these questions the French legislation is
infinitely more democratic even than the American.

The American law makes an equal division of the father's
property, but only in the case of his will not being known; "for
every man," says the law, "in the state of New York (Revised
Statutes, vol. iii., Appendix, p. 51), has entire liberty, power,
and authority, to dispose of his property by will, to leave it
entire, or divided in favor of any persons he chooses as his
heirs, provided he do not leave it to a political body or any
corporation." The French law obliges the testator to divide his
property equally, or nearly so, among his heirs.

Most of the American republics still admit of entails, under
certain restrictions; but the French law prohibits entail in all
cases.

If the social condition of the Americans is more democratic than
that of the French, the laws of the latter are the most
democratic of the two. This may be explained more easily than at
first appears to be the case. In France, democracy is still
occupied in the work of destruction; in America it reigns quietly
over the ruins it has made.

* * * * *

APPENDIX H.

SUMMARY OF THE QUALIFICATIONS OF VOTERS IN THE UNITED STATES.

All the states agree in granting the right of voting at the age
of twenty-one. In all of them it is necessary to have resided
for a certain time in the district where the vote is given. This
period varies from three months to two years.

As to the qualification; in the state of Massachusetts it is
necessary to have an income of three pounds sterling or a capital
of sixty pounds.

In Rhode Island a man must possess landed property to the amount
of 133 dollars.

In Connecticut he must have a property which gives an income of
seventeen dollars. A year of service in the militia also gives
the elective privilege.

In New Jersey, an elector must have a property of fifty pounds a
year.

In South Carolina and Maryland, the elector must possess fifty
acres of land.

In Tennessee, he must possess some property.

In the states of Mississippi, Ohio, Georgia, Virginia,
Pennsylvania, Delaware, New York, the only necessary
qualification for voting is that of paying the taxes; and in most
of the states, to serve in the militia is equivalent to the
payment of taxes.

In Maine and New Hampshire any man can vote who is not on the
pauper list.

Lastly, in the states of Missouri, Alabama, Illinois, Louisiana,
Indiana, Kentucky, and Vermont, the conditions of voting have no
reference to the property of the elector.

I believe there is no other state beside that of North Carolina
in which different conditions are applied to the voting for the
senate and the electing the house of representatives. The
electors of the former, in this case, should possess in property
fifty acres of land; to vote for the latter, nothing more is
required than to pay taxes.

* * * * *

APPENDIX I.

The small number of custom-house officers employed in the United
States compared with the extent of the coast renders smuggling
very easy; notwithstanding which it is less practised than
elsewhere, because everybody endeavors to suppress it. In
America there is no police for the prevention of fires, and such
accidents are more frequent than in Europe, but in general they
are more speedily extinguished, because the surrounding
population is prompt in lending assistance.

* * * * *

APPENDIX K.

It is incorrect to assert that centralization was produced by the
French revolution: the revolution brought it to perfection, but
did not create it. The mania for centralization and government
regulations dates from the time when jurists began to take a
share in the government, in the time of Philippe-le-Bel; ever
since which period they have been on the increase. In the year
1775, M. de Malesherbes, speaking in the name of the Cour des
Aides, said to Louis XIV.[Footnote:

See "Memoires pour servir a l'Histoire du Droit Public de
la France en matiere d'lmpots," p. 654, printed at Brussels in
1779.

]

"* * * * Every corporation and every community of citizens
retained the right of administering its own affairs; a right
which not only forms part of the primitive constitution of the
kingdom, but has a still higher origin; for it is the right of
nature and of reason. Nevertheless, your subjects, sire, have
been deprived of it; and we cannot refrain from saying that in
this respect your government has fallen into puerile extremes.
From the time when powerful ministers made it a political
principle to prevent the convocation of a national assembly, one
consequence has succeeded another, until the deliberations of the
inhabitants of a village are declared null when they have not
been authorized by the intendant. Of course, if the community
have an expensive undertaking to carry through, it must remain
under the control of the sub-delegate of the intendant, and
consequently follow the plan he proposes, employ his favorite
workmen, pay them according to his pleasure; and if an action at
law is deemed necessary, the intendant's permission must be
obtained. The cause must be pleaded before this first tribunal,
previous to its being carried into a public court; and if the
opinion of the intendant is opposed to that of the inhabitants,
or if their adversary enjoys his favor, the community is deprived
of the power of defending its rights. Such are the means, sire,
which have been exerted to extinguish the municipal spirit in
France; and to stifle, if possible, the opinions of the citizens.
The nation may be said to lie under an interdict, and to be in
wardship under guardians."

What could be said more to the purpose at the present day, when
the revolution has achieved what are called its victories in
centralization?

In 1789, Jefferson wrote from Paris to one of his friends: "There
is no country where the mania for over-governing has taken deeper
root than in France, or been the source of greater mischief."
Letter to Madison, 28th August, 1789.

The fact is that for several centuries past the central power of
France has done everything it could to extend central
administration; it has acknowledged no other limits than its own
strength. The central power to which the revolution gave birth
made more rapid advances than any of its predecessors, because it
was stronger and wiser than they had been; Louis XIV. committed
the welfare of such communities to the caprice of an intendant;
Napoleon left them to that of the minister. The same principle
governed both, though its consequences were more or less remote.

* * * * *

APPENDIX L.

This immutability of the constitution of France is a necessary
consequence of the laws of that country.

To begin with the most important of all the laws, that which
decides the order of succession to the throne; what can be more
immutable in its principle than a political order founded upon
the natural succession of father to son? In 1814 Louis
XVIII. had established the perpetual law of hereditary succession
in favor of his own family. The individuals who regulated the
consequences of the revolution of 1830 followed his example; they
merely established the perpetuity of the law in favor of another
family. In this respect they imitated the Chancellor Maurepas,
who, when he erected the new parliament upon the ruins of the
old, took care to declare in the same ordinance that the rights
of the new magistrates should be as inalienable as those of their
predecessors had been.

The laws of 1830, like those of 1814, point out no way of
changing the constitution; and it is evident that the ordinary
means of legislation are insufficient for this purpose. As the
king, peers, and deputies, all derive their authority from the
constitution, these three powers united cannot alter a law by
virtue of which alone they govern. Out of the pale of the
constitution, they are nothing; where, then, could they take
their stand to effect a change in its provisions? The
alternative is clear; either their efforts are powerless against
the charter, which continues to exist in spite of them, in which
case they only reign in the name of the charter; or, they succeed
in changing the charter, and then the law by which they existed
being annulled, they themselves cease to exist. By destroying
the charter, they destroy themselves.

This is much more evident in the laws of 1830 than in those of
1814. In 1814, the royal prerogative took its stand above and
beyond the constitution; but in 1830, it was avowedly created by,
and dependant on, the constitution.

A part therefore of the French constitution is immutable, because
it is united to the destiny of a family; and the body of the
constitution is equally immutable, because there appear to be no
legal means of changing it.

These remarks are not applicable to England. That country having
no written constitution, who can assert when its constitution is
changed.

* * * * *

APPENDIX M.

The most esteemed authors who have written upon the English
constitution agree with each other in establishing the
omnipotence of the parliament.

Delolme says: "It is a fundamental principle with the English
lawyers, that parliament can do everything except making a woman
a man, or a man a woman."

Blackstone expresses himself more in detail if not more
energetically than Delolme, in the following terms:--

"The power and jurisdiction of parliament," says Sir Edward Coke
(4 Inst. 36), "is so transcendant and absolute, that it cannot be
confined, either for causes or persons, within any bounds. And
of this high court," he adds, "may be truly said, 'Si
antiquitatem spectes, est vetustissima; si dignitatem, est
honoratissima; si jurisdictionem, est capacissima.' It hath
sovereign and uncontrollable authority in making, confirming,
enlarging, restraining, abrogating, repealing, reviving and
expounding of laws, concerning matters of all possible
denominations; ecclesiastical or temporal; civil, military,
maritime, or criminal; this being the place where that absolute
despotic power which must, in all governments, reside somewhere,
is intrusted by the constitution of these kingdoms. All
mischiefs and grievances, operations and remedies, that transcend
the ordinary course of the laws, are within the reach of this
extraordinary tribunal. It can regulate or new model the
succession to the crown; as was done in the reigns of Henry
VIII. and William III. It can alter the established religion of
the land; as was done in a variety of instances in the reigns of
King Henry VIII. and his three children. It can change and
create afresh even the constitution of the kingdom, and of the
parliaments themselves; as was done by the act of union and the
several statutes for triennial and septennial elections. It can,
in short, do everything that is not naturally impossible to be
done; and, therefore, some have not scrupled to call its power,
by a figure rather too bold, the omnipotence of parliament."

* * * * *

APPENDIX N.

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, Sec.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.

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.

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.

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, vol. 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 General des
Actes de la Legislature de la Louisiana.

* * * * *

APPENDIX R.

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.