American Institutions and Their Influence. Alexis de Tocqueville

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.

60

See Appendix G.

61

See the amendments made to the constitution of Maryland in 1801 and 1809.

62

See Appendix H.

63

It is by this periphrasis that I attempt to render the French expressions "Commune" and "Système Communal." I am not aware that any English word precisely corresponds to the general term of the original. In France every association of human dwellings forms a commune, and every commune is governed by a maire and a conseil municipal. In other words, the mancipium or municipal privilege, which belongs in England to chartered corporations alone, is alike extended to every commune into which the cantons and departments of France were divided at the revolution. Thence the different application of the expression, which is general in one country and restricted in the other. In America, the counties of the northern states are divided into townships, those of the southern into parishes; besides which, municipal bodies, bearing the name of corporations, exist in the cities. I shall apply these several expressions to render the term commune. The term "parish," now commonly used in England, belongs exclusively to the ecclesiastical division; it denotes the limits over which a parson's (personae ecclesiae or perhaps parochianus) rights extend.—Translator's Note.

64

In 1830, there were 305 townships in the state of Massachusetts and 610,014 inhabitants; which gives an average of about 2,000 inhabitants to each township.

65

The same rules are not applicable to the great towns, which generally have a mayor, and a corporation divided into two bodies; this, however, is an exception which requires a sanction of a law. See the act of 22d February, 1822, for appointing the authorities of the city of Boston. It frequently happens that small towns as well as cities are subject to a peculiar administration. In 1832, 104 townships in the state of New York were governed in this manner.—Williams's Register.

66

Three selectmen are appointed in the small townships, and nine in the large ones. See "The Town Officer," p. 186. See also the principal laws of the state of Massachusetts relative to the selectmen:—

Act of the 20th February, 1786, vol. i, p. 219; 24th February, 1796, vol. i., p. 488, 7th March, 1801, vol. ii., p. 45; 16th June, 1795, vol. i., p. 475; 12th March, 1808, vol. ii., p. 186; 28th February, 1787, vol. i., p. 302; 22d June, 1797, vol. i., p. 539.

67

See laws of Massachusetts, vol. i., p. 150 Act of the 25th March, 1786.

68

All these magistrates actually exist; their different functions are all detailed in a book called, "The Town Officer," by Isaac Goodwin, Worcester, 1827; and in the Collection of the General Laws of Massachusetts, 3 vols., Boston, 1823.

69

See the act of 14th February, 1821. Laws of Massachusetts, vol i., p. 551.

70

See the act of 20th February, 1819. Laws of Massachusetts, vol ii., p. 494.

71

The council of the governor is an elective body.

72

See the act of 2d November, 1791. Laws of Massachusetts, vol i., p. 61.

73

See "The Town Officer," especially at the words SELECTMEN, ASSESSORS, COLLECTORS, SCHOOLS, SURVEYORS OF HIGHWAYS. I take one example in a thousand:

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