Part 15

The election of a magistrate, is an affair that usually occasions a considerable sensation in a little town. The most respectable citizens naturally support the candidate that has the real interests of society at heart; and the more licentious are as naturally averse to promote the man who, they believe, would punish themselves. It is, therefore, the relative numerical strength of the two parties, that frequently determines the character of a town judge. It is understood, that in new towns by the Ohio, the unruly part most commonly prevail, and that as they advance in population and wealth, the more orderly people take the sway. A case has come under my notice, where the conduct of {172} a squire was at variance with the practices of a large proportion of his constituents. He had resolved on exerting his power to suppress fighting, swearing, and breach of the Sabbath, and to exact the statutory penalties against the two last of these offences. On a Sabbath soon after his election, a man carrying a gun and a wild duck passed his door. He intimated his resolution of having the offender brought to justice; but the culprit gave him much abusive language, with profane swearing, and threatened to beat him for the interruption. The squire soon perceived that he was losing his popularity, and that his opposition to the will of the sovereign people was injuring his business, and for that reason resigned his commission. In cases where the squire is supposed to be remiss in the execution of his duty, the people sometimes interfere extrajudicially. At this place, a tailor’s shop was lately broke into by night, and a quantity of goods carried away. On the following day, a stranger and the lost property were discovered in an empty house adjoining. He was instantly carried before one of our magistrates. On being interrogated, he confessed being found in the house, but denied having any concern with the booty. The squire dismissed him. But the young men of the town who had assembled to hear the examination, were too sensible of the strength of the presumptive circumstances of the case, and of the admitted act of housebreaking, in entering the uninhabited apartment, to allow him to escape with impunity. They caught him at the door, led him out behind the town, where they tied him to a tree, and put the cowhide into the hand of a furious young man, who happened to be half intoxicated. The whipping was performed with such vigour, that the blood sprung in every direction. A gentleman of {173} Cincinnati told me, that, a few years ago, the citizens of that place had found it expedient to punish in the most summary way; and that he had several times acted as presiding judge, in what was called a court of uncommon pleas. Whipping uniformly followed conviction. Cincinnati has now outgrown that stage of population, that admits of this sort of jurisprudence, and is better regulated than certain large European cities.

Sanguinary punishments are almost universally deprecated. The best of citizens are opposed to them from philanthropic motives; and the worst view them as subversive of liberties. A considerable proportion of the humane, and perhaps most of the vicious, concur in arguing, that man has no right to take away the life of man in the punishment of any offence. A doctrine purporting, in plain terms, that the right or power in the individual to commit crime, is stronger than that in society to punish or to protect. Although this extremely lenient principle has a vast multitude of supporters, it has not been introduced into the criminal code of any state in the Union. Treason, murder, arson, and piracy committed on the high seas, remain on the list of capital crimes. The first of these offences is defined by the constitution of the United States, as consisting “only in levying war against them; or in adhering to their enemies, giving them aid and comfort.” No infliction, on this ground, has been found necessary since the epoch of the Federal Union. Other offences, as forgery, burglary, robbery, larceny, &c. being treated as inferior misdemeanours, the machinery of the executioner is seldom put into operation; and a benevolent penetentiary system is adopted in parts of the country where the population is sufficiently great to bear the expense. New {174} settlements cannot afford the large establishments combining the accommodation for solitary confinement and labour. Whipping is therefore resorted to, as a matter of necessity rather than of choice. It is chiefly to be lamented, that chastisement does not produce immediate evidence of reformation, as the sufferer usually removes to another part of the country; and may resume the character of gentleman, even while his back is raw from the recent correction.

It is with painful sensations that I recollect of the illiberal and ungenerous reflections, uttered by the minions of a faction in your country, against supposed barbarism in this. Their favourite topics, as to officers in the Militia becoming tavern-keepers, and tavern-keepers acting as Justices of the Peace; the derided punishment of whipping, and the equality of a sovereign people, might at least be mixed with some allowances for local circumstances; or, if they please, in making a contrast with the boasted condition of Great Britain, it is obviously uncandid to draw the subjects of their animadversions from the fag end of the United States, in the very act of being peopled by a heterogeneous mixture, uniting in it a considerable proportion of the most uncultivated of Americans and Europeans; not excluding fugitives, who have fled before their creditors, and the public prosecutors of England. Waving this consideration altogether, a very striking comparison may be made out in detail. The officers of the United States’ Militia are not professional soldiers, but citizens. They are not disposable tools, to be employed in foreign aggressions, or removed in time of peace from Maine to Georgia, and _vice versa_, to intimidate into submission fellow citizens who are not their personal acquaintances or immediate {175} kindred; but remain at home, where they attend trainings, voluntarily and gratuitously. They are at liberty to follow tavern-keeping, or any other kind of honest industry, and do not burden their country with a half pay list. Justices of the Peace, however unqualified they may be, and whatever disgrace the conduct of individuals brings upon themselves, are not appointed by the influence of a faction. They are not the “thorough paced” ministerialists who “have been recruiting officers for the war, instead of Justices of the Peace;”[105] nor are they the hirelings who promote the revenue from which their own pensions are drawn, by levying ruinous fines _upon an unrepresented people_, for the slightest infractions on excise laws, or game laws. The punishment of whipping has been already mentioned, with the causes of its being adopted in the back-woods. Perhaps it might be difficult to assign reasons equally satisfactory for resorting to it in the populous city of Dublin. The practice is comparatively humane in America, as it is applied in cases that would be punished with death in Great Britain. The States of Kentucky and Ohio have erected penetentiaries, not for the purpose of punishment alone, but also for the reformation of offenders. The horrible prison scenes witnessed by Howard, Neild, Bennet, Buxton, Fry, and other philanthropists in Britain, have no counterpart in America.[106] We know of no examples here of imprisonment for a debt of a shilling,[107] or for a supposed fraud of one penny.[108] Nor have I ever heard of the verdict of an American {176} coroner’s inquest, announcing in their verdict the death of a prisoner for want of food.[109] Debtors are not obliged here, to sleep edgeways, for want of the breadth of their backs on a prison floor.[110] Nor has any poor boy been imprisoned for a month in Bridewell for selling religious tracts without a hawker’s license.[111] The equality that consists in universal suffrage; the absence of privileged orders, and unrestrained industry, is the enviable felicity of the American nation. The people are, themselves, the lords of the soil, and acknowledge no superiors who can dictate to them in the election of other representatives than those of the community. There are no boroughs where the members monopolize the business of the place, or who chase away the stranger as if he were an enemy; or who can exact town taxes contrary to the will of their fellow citizens. Public accounts are not kept from public inspection. There is no separate borough representation to be hired over, or owned by the partisans of a ministry. The clergy are here exalted to the dignity of citizens, whose interests are identified with those of the people. Their condition, relatively to that of their adherents, is in every respect similar to the situation of dissenting clergymen in Britain. America elevates {177} no spiritual Lords, on wool-sacks, in her senate, to oppose the introduction of parochial schools. Nor is there any political body, which courts an alliance with the clergy. I have never heard of any parson who acts as a Justice of the Peace, or who intermixes his addresses to _the Great Object of religious worship_, with the eulogy of the Holy Alliance. The free scope given to industry is highly conducive to national prosperity. Every man is allowed to exert his talents, in the pursuit of any honest scheme, and in any part of the country, without being prevented by intolerant restrictions or internal taxes. His profits are his own; and he has no dread of their being wrested from him by the idle drones that infest other countries. Hence it is, that the United States abound in enterprizing people, who remove, without hesitation, to any part where they can suppose any advantage may arise, and adopt projects that would neither be tolerated nor thought of by people fettered by the trammels of impolicy. The first failure of a scheme is not here contemplated as finally ruinous, as a backward step is much more easily retrieved than in countries more thickly peopled, and where the avenues of commerce are narrowed by artificial obstructions. There are no branches of manufactures or professions of any kind, restricted to those who pay licenses to the government. The farming interest has no monopoly against the manufacturing: nor has the manufacturing any positive prohibition against the farmer. Local attachments are much weakened by the open prospects of an extensive country, by the abolition of primogenitureship, and by the introduction of laws that promote family justice. The citizen is not bound to a particular spot for the preservation of his privileges; for he can enjoy {178} the same rights all over the Union. The mechanic and the labourer do not remain unemployed in their native township, to establish their right to the poor’s rates; for industry is not taxed in paying bounties to idleness. The landholders of England may quietly enjoy the obeisances of their pauper dependents, and pay in return their poor’s rates. They may be assured, that the more equalized citizens of America are not ambitious of this interchange of benefits; and that the excess of public burdens has not yet rendered it customary for Americans to desert their own country, and to resort to France, on account of the cheapness of provisions.

The present state of North America affords the most conclusive testimony of the sound policy of a free and unrestricted trade. The United States allow commerce to regulate itself, according to its own interests, except in cases where the conduct of other nations imposes the necessity of following another course. Under legislative forbearance on this subject, the country has made unexampled progress in improvements and population. Under the jealous and illiberal government of Spain, Florida remains a contemptible province, that has scarcely a name amongst colonies. Under the fostering care and restrictions of England, Canada continues to be but a mere remnant of this great continent.

FOOTNOTES:

[103] In Great Britain attorneys are not permitted to plead in court on behalf of their clients; that is the work of the barrister, who must previously have belonged to one of the inns of court. Attorneys (or solicitors) institute actions, advise clients, draw up legal papers, and act as assistants to barristers.--ED.

[104] Equivocations of this sort have been so often noticed in the United States, that they must be looked on as notorious. The practice of naturalizing foreign seamen by the solemn farce of an old woman’s first cradling bearded men, and then swearing that she rocked them; and that of procuring pre-emption rights to land in new territories, by sowing only a few grains of corn, and subsequently swearing that a crop has been cultivated on the tract claimed, have been so frequent, that it would be invidious to particularize. In England, affidavits are often managed in a simpler way. _Swallowing_ a custom-house oath is there a well known expression. Mercantile houses of London have kept persons, called swearing clerks, to vouch for transactions, on being paid at the rate of sixpence for each oath. If it is not true that men stand at Westminster Hall with straws in their shoes, indicating their willingness to undertake any dirty job, it is time that the foul imputation were washed from that _pure_ fountain of justice. Before prosecutions for conspiracies had become so fashionable in England as they are now, a witness on behalf of the crown was convicted of ten separate perjuries. It would appear that a false oath is a morsel so hard, that it requires cooking before it can be masticated by the immoral in America, and that a less delicate class in England can gulp it down in the raw state. Without making any comment on regulations that protect revenue at the expense of morality; those laws that set the interests, and the very personal liberties of men at variance with their consciences, and without inquiring how far evasive subterfuges may palliate the conduct of the _ignorant_ in their own eyes, or in the sight of the _great being_ invoked; it is suggested, in explanation, that popular institutions have the innate property of impressing an external reverence for the law, on the worst of men.--FLINT.

[105] Walker’s Review of Political Events, p. 125. London, 1794.--FLINT.

[106] This succession of philanthropists, whose labors extended over the century from 1750-1850, worked tirelessly to stir up English public sentiment against their criminal code, which contained over two hundred and nineteen offenses punishable by death, and their deplorable system of prison management. Consequently early English travellers were particularly interested in the American system. In 1831 a Parliamentary Commission was sent to investigate the prisons of Pennsylvania and New York, and upon its return certain American methods were adopted.--ED.

[107] Evidence of Mr. Law, keeper of the Borough Compter, before the Police Committee, 1814.--FLINT.

[108] Inquiry into Prison Discipline, by Thomas Fowell Buxton, Esq., M. P.--FLINT.

[109] The case of J. Burdon in Tothilfields prison in 1817.--FLINT.

[110] In February, 1818, twenty persons confined in the Borough Compter, slept in a space twenty feet long and six wide. The fact was confirmed by the governor.--FLINT.

[111] G. M. a boy of about fourteen years of age; he was confined along with twenty men and four boys. He was employed by one of them to pick pockets, and steal from the other prisoners. Caught a fever in jail, which was communicated to his father, mother, and three brothers, one of whom died. From being a sober, orderly boy, he was changed into a confirmed thief, and stole his mother’s Bible and his brother’s clothes.--_Buxton’s Inquiry._--FLINT.

{179} LETTER XV

Outline of the American Constitution--From the frequency of Revolutions in Europe, the instability of the American Republic is not to be inferred.

_Jeffersonville, (Indiana,) Feb. 27, 1820._

The constitution of the United States is not that ephemeral erection, which the enemies of free government would represent it to be. Its fundamental principles may be partially traced through the modern theoretical maxims, and the ancient usages of England. This consideration, however, does not derogate from the wisdom of the founders of the Republic, who have so successfully availed themselves of the experience of other countries and other ages, in organizing the system; and maturing it by the most unremitting diligence through peace and war. A review of the progress of American politics, and of the reasonings which guided the patriotic legislators, would be a work of much interest. It would lay before us a large portion of the best abilities, and the most tried virtue of the country, engaged in inquiries conducive to the general interests of the nation. It would disclose at every important crisis a venerable assembly, which neither announced their proceedings as the greatest efforts of human ingenuity, nor assumed the lofty tone of an “omnipotent” legislature, but recurred to the will of their constituents for ratification, and, keeping a view to the future as well as to the present circumstances, provided the {180} means of revising and amending their decisions. It was in consequence of this philosophical mode of proceeding, that the present admirable fabric was gradually erected. It was thus that the declaration of independence of 1776, a temperate, but energetic manifesto, intimating the determination of the colonies to throw off the foreign yoke, was succeeded by the articles of confederation in 1778. This compact, although efficient in time of public danger, was, during the succeeding peace, found to be defective in not admitting the dignity and promptitude necessary to the general government, and not furnishing a sufficient guarantee for the permanence of the Union. Under the articles of confederation, each State retained the right of voting its own supplies for the common benefit, and to lay taxes on such articles as were found most convenient; also, to impose such imposts and duties on foreign trade as they thought proper. The amount of supplies furnished by each State was apportioned to the value of the lands,--a criterion that could never be applied with accuracy. In this state of things, the acts of Congress could in various cases be only complied with, through the intervention of thirteen separate State Assemblies. The power given to Congress to adjust the affairs of foreign relations, was rendered almost nugatory by the diversity of commercial regulations of separate States. It became possible, that a separate State might be at variance with a foreign nation, on affairs not at all interesting to the other members of the Union, and that internal discord might arise from opposite interests, rivalship in commerce, the distribution of territory, and a variety of other latent causes.[112] To avoid {181} these inconveniences and dangers, the constitution was framed by a convention of delegates from the States, whose session ended on the 17th of September, 1787. A Congress was elected on the new establishment, and General Washington was unanimously appointed President in the succeeding year.[113]

The constitution vests the legislative power in a Congress, consisting of a House of Representatives, and a Senate, and the executive power in the President. The members of the House of Representatives are elected biennially by the people. Each State has at least one representative, and not more than one for every thirty thousand persons in it, and two Senators, who are elected by the State legislature, at intervals of six years, and are distributed into three classes, so that the seats of a third part of them are vacated biennially. The President, and Vice-President are elected for four years by the ballot of electors appointed by the legislatures of the States; the number of electors in each State being equal to that of the representatives and senators, whom the same state has a right to send to Congress.

Bills for raising revenue originate in the House of Representatives; and every bill that passes both {182} houses, must be presented to the President for his approbation. In the event of his disapproving of a bill, it must be returned to the house where it was originated, and if two-thirds of the members of both houses agree, on re-consideration, to pass it, then the bill becomes a law. The President is commander-in-chief of the army, navy, and militia, and may in certain cases, grant reprieves and pardons for offences against the United States. With the concurrence of two-thirds of the Senate, he appoints ambassadors, and other public ministers, consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not provided for by the constitution; but the Congress has the power of making future laws for vesting appointments in the President alone, in the courts of law, or in the heads of departments. The President may fill up vacancies in the Senate during recess, by granting commissions terminating at the end of next session. Whenever two-thirds of both houses deem it necessary, they shall propose amendments of the constitution; or shall call a convention for that, on the application of two-thirds of the state legislatures.

The duties and powers of the general government are concisely defined by the constitution, and may be expressed summarily, as embracing the subjects of commerce, finance, negociation, and war. All other objects are reserved, as falling under the jurisdiction of the separate state assemblies. These include local legislation, administration of justice between persons in the same states, and the supervision of agriculture.

Although it appears, that much care has been bestowed in drawing the line that separates the prerogatives of the general government, from those {183} of its individual members, still duties or powers derived from implication, are occasionally assumed by both departments. We have two recent examples in view. In 1819, the legislatures of several states imposed a heavy tax on the branches of the United States Bank, situated in the respective states. The United States Bank, it must be noticed, is chartered by Congress, and is the organ through which the national government transacts its pecuniary affairs. The bank refused payment, and obtained a judgment in its favour by the supreme or federal court.[114] Again, the admission of the territory of Missouri as a State in the Union, has lately been discussed in Congress. One of the principal points of the debate was the question, Whether the pre-existing States have a right to dictate to States about to be admitted into the Union, any restriction against slave-keeping? And it is understood that scruples on this question of right have induced several members to vote against the restriction, whose sentiments are opposed to slavery.

The distribution of business, of which a brief outline has just been given, is admirably adapted to an extensive sphere of action. The national councils are thus devoted to national concerns, and not to such petty affairs as framing public acts for demolishing the fences of private property to make room for highways, nor in borough politics, nor in deciding in the disputes of private individuals. Local affairs are regulated by local authorities, who are best able to judge of them; and this prevents any ground of complaint to arise against the national government on account of these. The State legislatures are, besides, filled annually by a free vote of the people, who have frequent opportunities of allaying their own discontents by a change of men, and a change of measures.