civil and criminal procedure of the Americans has only two means of
action--committal and bail. 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 reduced 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. *n 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, *o 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 perceives their action in particular cases; but it
has some difficulty in seizing their tendency, and obeys them without
premeditation. 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 expression, covered with a layer of democracy, from
beneath which the old aristocratic colors sometimes peep.