Histoire Politique des Etats-Unis depuis les premiers essais de Colonization jusqu’a l’adoption de la Constitution Fédérale 1626-1789. (Edouard Laboulaye, 1855)
M. Laboulaye’s name must be well known to many of - our readers as that of one of the most eminent of French jurists. The book before us, which is a republication of a series of lectures delivered at the College de France in 1849-50, is in substance an essay upon the conditions under which democracy is possible—his object having been to convince his pupils that political liberty is not to be created by “a charte," two Chambers, an electoral law, and the abolition of the censorship. To prove this from the history of the United States, M. Laboulaye describes the foundation and the progress of each of the thirteen original members of the Union, showing that their democracy was not the result of any specific determination on the part of the colonists, but the natural consequence of their circumstances. In the New England colonies, no doubt, the original constitution was democratic, but in the other States the forms of government which prevailed were very different. Virginia was to some degree an aristocracy. Maryland, Pennsylvania, Delaware, and New Jersey were virtually constitutional monarchies, of which Lord Baltimore, Penn, an Lord Carteret were the sovereigns, subject to the restrictions they had imposed on themselves by the concession of more or less liberal constitutions. New York and some others were governed by constitutions given to them by the Crown, including generally a Governor and Council nominated by the King, and a “General Court," or Lower House, elected by the colonists. Carolina was originally an oligarchy of the narrowest kind, and Georgia was founded in 1732 from philanthropic motives, as an asylum for prisoners for debt and persecuted Protestants.
M. Laboulaye describes with great clearness and spirit the steps by which democracy gradually pervaded the whole of the white population of the United States, and how the constitutions which were inconsistent with it gradually died out. His illustrations of this proposition are curious and interesting, but we can only find room for two-one taken from the North, the other from the South. There was originally one exception to the unlimited democracy of the New England colonies. It consisted, strangely enough, in the absence of that very principle in search of which the colonists had left England—liberty of conscience. The government of Massachusetts, and still more that of Connecticut, was based on a singularly narrow interpretation of the Bible, and put in force with reckless severity a very large proportion of the Mosaic jurisprudence. This policy caused an emigration, under Roger Williams, to Rhode Island, which, at the time of its foundation, furnished the single exception to the spirit of persecution which prevailed through all the other colonies. Still the example of tolerance, when once set, was so obviously the complement of the political institutions of New England, that at no very distant time the principle was universally recognized.
Carolina, again, was not only not democratic in its origin, but was founded—as the preamble to the Constitution expressly states—under a fear of establishing such a form of government. The whole frame of its Constitution was completely feudal. The eight original proprietors were respectively called the Palatine, the Admiral, the Chamberlain, the Chancellor, the Constable, the Chief Justice, the High Steward, and the Treasurer. To support the dignity of these great officers, no less than one-fifth part of the soil of the province was allotted to them in private property. Another fifth was to be portioned out amongst an hereditary aristocracy, under the title of Barons or Caciques, and Landgraves or Counts ; and the remainder was divided amongst the colonists, of whom such as had 3000 acres were to be Lords of Manors. To the population at large were assigned lots of ten acres each; the tenants were attached to the soil, and had to pay an eighth of their produce as rent. The old manorial court leet and court baron, for civil and criminal affairs, were the machinery a pointed for the administration of justice. After existing, nominally rather than really, for twenty-five years, the Constitution was finally abolished in 1693. That liberty of conscience was logically involved in the foundation of New England, and that feudal institutions were out of place in Carolina, are propositions which a modern Englishman intuitively perceives. M. Laboulaye has, for the benefit of his French pupils, put the rationale of this (to us) self-evident proposition into express words.
Democracy in America, in his view of the subject, results from the combination of two causes, which met in the English colonies, and not in those of any other nation. Colonies which are anything more than commercial establishments must either be supported by their own labour, or by the parent State. In the first case, they become independent nations—in the second, they languish as the Canadian colonies languished under Louis XI and his successor, and, according to Laboulaye, as Algeria languishes now. The English settlements in America owed their ultimate independence to their English habits of self-government. In their progress towards that independence, they became democracies, simply because the dogma that all men are born free and equal, which in Europe is a mere theory and a very false one, in America expressed a matter of fact. It was simply impossible that great estates, high rents, and hereditary dignities, should spring up amongst people who had enormous forests to clear and to cultivate by their own personal labour. Where, from the nature of the case, every man was his own landlord, his own soldier, and his own legislator, democracy was established, not by an set of laws, but by a natural necessity. The cause of the introduction of slavery into the Southern States strikingly illustrates this doctrine. Their English traditions made self-government a matter of necessity to the planters—their English frames could not support labour in a tropical marsh. The introduction of slave labour equalized their condition by setting them all above physical exertion, just as the absence of an inferior class reduced all the New Englanders to the same level by enforcing it.
Trite as this theory is in England, it required great sagacity and moderation to adopt and expound it in Paris in the year 1849 ; and we can understand and sympathize with the Cassandra-like feelings with which M. Laboulaye must publish what he then wrote. Much, however, as we admire the main object of his book, it contains some traces of that French tendency to make theories more perfect than the facts warrant, against which its author so strongly protests. M. Laboulaye, for example, in speaking of the rules of international law relating to the title to unoccupied territories, praises the “ French principle," that nothing short of actual physical possession, with the intention of retaining it, will confer such a title, as more just than the “ English principle," that the title arises upon simple discovery. We are quite unable, however, to understand how the fact that the French government had establishments on the St. Lawrence should give France a better right to the whole province of Canada than that which we obtained to the province of New York from the fact that an English discoverer first explored the Hudson. To rebut a pretension of the one class by a pretension of the other would be the old fallacy of setting up a forged release against a forged bond. The French principle has, in fact, been always received with the interpretation that the occupation of the mouth, or any part of the course of a river, is an occupation of the whole basin which it drains—a rule as purely arbitrary as the English one. The truth is, in the phrase “international law," the word "law" is used metaphorically, and in strictness of speech there are no laws between sovereign states. It would be difficult to contest the proposition that the good old rule, the simple plan, has been, and will continue to be, the only valid principle of international law about unoccupied territories.
Another of our differences with M. Laboulaye is with reference to his most interesting and able concluding chapter, in which the respective liberties of England, France, an America are compared. He writes with a modesty which is as praiseworthy as it is, we regret to say, uncommon. Speaking, for example, of the English laws of real property, of which he disapproves, he adds, “ Mais, je le repète, je n'entends point juger, en ce moment, un système consacré par le respect et l'autorité d’une grande nation.” The parallel between the Constitutions of the three countries is drawn with a precision which is quite revoking, because it is impossible not to feel that it cannot be true. France, he says, exemplifies the love of equality—England the love of liberty—and America the solution of the problems which agitate England and France by the combination of the two. How far it is true that America has combined liberty with equality, and how far it is proved that the English are wrong in thinking, as M. Laboulaye says we do, that equality is radically opposed to and destructive of liberty, are questions too large for our limits. Perhaps M. Laboulaye will, in his succeeding volumes, help us to a solution. Our present objection to the parallel in question is of a. much narrower kind.
Notwithstanding the modesty of the sentiment which we have quoted, we are sorry to see that M. Laboulaye has adopted, as a matter of fact, the declamations of a few ignorant amateurs against our real property law. To say that “L'Eglise, la noblesse et la gentry, c’est a dire un nombre limité de gentilshommes, possedent le sol d'Angleterre," is a singular exaggeration. In old countries, interests become so complicated that many persons have to be supported out of the same piece of land, an these limited interests ought to be taken into account in estimating the number of proprietors. Suppose, for example, a tenant for life, with remainder to his eldest son in fee, and a power of leasing, has granted a long lease, has mortgaged his estate to two mortgagees, with the concurrence of his son, has become bankrupt, and has had his land extended under an elegit. Here are no less than seven interests in one piece of land—some of which may be conflicting; and we apprehend that in almost any old country the same thing might happen in a more or less complicated form.
It is quite a misapprehension to suppose, as M. Laboulaye evidently does, that the commercial availableness of land in England is seriously diminished by the intricacy of titles. An estate is no doubt worth a great deal less to its owner on that account, but a landowner has no difficulty in borrowing money on the security of his land at a lower rate than that which the Bank of England charges for discounting the very best commercial bills. In fact, the system which M. Laboulaye describes as having been invented for the purpose of propping up the aristocracy, is the mere result of negligence and accident, and is the greatest enemy of the aristocracy. Everyone who has at all studied the subject knows that, if titles could be cleared and deeds efficiently registered, the value of landed property -—as an investment, though notes a pledge—would rise materially. The opposition to such measures does not proceed, as M. Laboulaye seems to think, from any childish wish to conceal the notorious fact that the estates of most landowners are more or less mortgaged, but from the general indifference of the public to law reform, and from the ignorant and short-sighted views which attorneys take of their own interests. The working of the Irish Encumbered Estates Act is a complete and final answer to all persons who suppose that an intricate system of conveyancing is beneficial to landlords.
With these slight blemishes, M. Laboulaye‘s work appears to us to be most valuable. Nothing can be more clear an logical than its style and arrangement, and nothing can be more satisfactory to Englishmen than to see doctrines which have passed into commonplaces on this side of the Channel preached with so much power—we wish we could say with equal success— on the other.
Saturday Review, December 8, 1855.