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diff --git a/old/10613-8.txt b/old/10613-8.txt new file mode 100644 index 0000000..e6a2307 --- /dev/null +++ b/old/10613-8.txt @@ -0,0 +1,4743 @@ +Project Gutenberg's The Theory of Social Revolutions, by Brooks Adams + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Theory of Social Revolutions + +Author: Brooks Adams + +Release Date: January 6, 2004 [EBook #10613] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE THEORY OF SOCIAL REVOLUTIONS *** + + + + +Produced by Afra Ullah, Virginia Paque and PG Distributed Proofreaders + + + + + THE THEORY OF SOCIAL REVOLUTIONS + + BY + + BROOKS ADAMS + + + + 1913 + + + + + +PREFATORY NOTE + +The first chapter of the following book was published, in substantially +its present form, in the _Atlantic Monthly_ for April, 1913. I have to +thank the editor for his courtesy in assenting to my wish to reprint. +The other chapters have not appeared before. I desire also to express my +obligations to my learned friend, Dr. M.M. Bigelow, who, most kindly, at +my request, read chapters two and three, which deal with the +constitutional law, and gave me the benefit of his most valuable +criticism. + +Further than this I have but one word to add. I have written in support +of no political movement, nor for any ephemeral purpose. I have written +only to express a deep conviction which is the result of more than +twenty years of study, and reflection upon this subject. + +BROOKS ADAMS. + +QUINCY, MASSACHUSETTS, May 17, 1913. + + + + + CONTENTS + + I. THE COLLAPSE OF CAPITALISTIC GOVERNMENT + + II. THE LIMITATIONS OF THE JUDICIAL FUNCTION + +III. AMERICAN COURTS AS LEGISLATIVE CHAMBERS + + IV. THE SOCIAL EQUILIBRIUM + + V. POLITICAL COURTS + + VI. INFERENCES + + INDEX [not included in this etext] + + + + + +THE THEORY OF SOCIAL REVOLUTIONS + + + + +CHAPTER I + +THE COLLAPSE OF CAPITALISTIC GOVERNMENT + + +Civilization, I apprehend, is nearly synonymous with order. However much +we may differ touching such matters as the distribution of property, the +domestic relations, the law of inheritance and the like, most of us, I +should suppose, would agree that without order civilization, as we +understand it, cannot exist. Now, although the optimist contends that, +since man cannot foresee the future, worry about the future is futile, +and that everything, in the best possible of worlds, is inevitably for +the best, I think it clear that within recent years an uneasy suspicion +has come into being that the principle of authority has been dangerously +impaired, and that the social system, if it is to cohere, must be +reorganized. So far as my observation has extended, such intuitions are +usually not without an adequate cause, and if there be reason for +anxiety anywhere, it surely should be in the United States, with its +unwieldy bulk, its heterogeneous population, and its complex government. +Therefore, I submit, that an hour may not be quite wasted which is +passed in considering some of the recent phenomena which have appeared +about us, in order to ascertain if they can be grouped together in any +comprehensible relation. + +About a century ago, after, the American and French Revolutions and the +Napoleonic wars, the present industrial era opened, and brought with it +a new governing class, as every considerable change in human environment +must bring with it a governing class to give it expression. Perhaps, for +lack of a recognized name, I may describe this class as the industrial +capitalistic class, composed in the main of administrators and bankers. +As nothing in the universe is stationary, ruling classes have their +rise, culmination, and decline, and I conjecture that this class +attained to its acme of popularity and power, at least in America, +toward the close of the third quarter of the nineteenth century. I draw +this inference from the fact that in the next quarter resistance to +capitalistic methods began to take shape in such legislation as the +Interstate Commerce Law and the Sherman Act, and almost at the opening +of the present century a progressively rigorous opposition found for its +mouthpiece the President of the Union himself. History may not be a very +practical study, but it teaches some useful lessons, one of which is +that nothing is accidental, and that if men move in a given direction, +they do so in obedience to an impulsion as automatic as is the impulsion +of gravitation. Therefore, if Mr. Roosevelt became, what his adversaries +are pleased to call, an agitator, his agitation had a cause which is as +deserving of study as is the path of a cyclone. This problem has long +interested me, and I harbor no doubt not only that the equilibrium of +society is very rapidly shifting, but that Mr. Roosevelt has, +half-automatically, been stimulated by the instability about him to seek +for a new centre of social gravity. In plain English, I infer that he +has concluded that industrialism has induced conditions which can no +longer be controlled by the old capitalistic methods, and that the +country must be brought to a level of administrative efficiency +competent to deal with the strains and stresses of the twentieth +century, just as, a hundred and twenty-five years ago, the country was +brought to an administrative level competent for that age, by the +adoption of the Constitution. Acting on these premises, as I conjecture, +whether consciously worked out or not, Mr. Roosevelt's next step was to +begin the readjustment; but, I infer, that on attempting any correlated +measures of reform, Mr. Roosevelt found progress impossible, because of +the obstruction of the courts. Hence his instinct led him to try to +overleap that obstruction, and he suggested, without, I suspect, +examining the problem very deeply, that the people should assume the +right of "recalling" judicial decisions made in causes which involved +the nullifying of legislation. What would have happened had Mr. +Roosevelt been given the opportunity to thoroughly formulate his ideas, +even in the midst of an election, can never be known, for it chanced +that he was forced to deal with subjects as vast and complex as ever +vexed a statesman or a jurist, under difficulties at least equal to the +difficulties of the task itself. If the modern mind has developed one +characteristic more markedly than another, it is an impatience with +prolonged demands on its attention, especially if the subject be +tedious. No one could imagine that the New York press of to-day would +print the disquisitions which Hamilton wrote in 1788 in support of the +Constitution, or that, if it did, any one would read them, least of all +the lawyers; and yet Mr. Roosevelt's audience was emotional and +discursive even for a modern American audience. Hence, if he attempted +to lead at all, he had little choice but to adopt, or at least discuss, +every nostrum for reaching an immediate millennium which happened to be +uppermost; although, at the same time, he had to defend himself against +an attack compared with which any criticism to which Hamilton may have +been subjected resembled a caress. The result has been that the +Progressive movement, bearing Mr. Roosevelt with it, has degenerated +into a disintegrating rather than a constructive energy, which is, I +suspect, likely to become a danger to every one interested in the +maintenance of order, not to say in the stability of property. Mr. +Roosevelt is admittedly a strong and determined man whose instinct is +arbitrary, and yet, if my analysis be sound, we see him, at the supreme +moment of his life, diverted from his chosen path toward centralization +of power, and projected into an environment of, apparently, for the most +part, philanthropists and women, who could hardly conceivably form a +party fit to aid him in establishing a vigorous, consolidated, +administrative system. He must have found the pressure toward +disintegration resistless, and if we consider this most significant +phenomenon, in connection with an abundance of similar phenomena, in +other countries, which indicate social incoherence, we can hardly resist +a growing apprehension touching the future. Nor is that apprehension +allayed if, to reassure ourselves, we turn to history, for there we find +on every side long series of precedents more ominous still. + +Were all other evidence lacking, the inference that radical changes are +at hand might be deduced from the past. In the experience of the +English-speaking race, about once in every three generations a social +convulsion has occurred; and probably such catastrophes must continue to +occur in order that laws and institutions may be adapted to physical +growth. Human society is a living organism, working mechanically, like +any other organism. It has members, a circulation, a nervous system, and +a sort of skin or envelope, consisting of its laws and institutions. +This skin, or envelope, however, does not expand automatically, as it +would had Providence intended humanity to be peaceful, but is only +fitted to new conditions by those painful and conscious efforts which we +call revolutions. Usually these revolutions are warlike, but sometimes +they are benign, as was the revolution over which General Washington, +our first great "Progressive," presided, when the rotting Confederation, +under his guidance, was converted into a relatively excellent +administrative system by the adoption of the Constitution. + +Taken for all in all, I conceive General Washington to have been the +greatest man of the eighteenth century, but to me his greatness chiefly +consists in that balance of mind which enabled him to recognize when an +old order had passed away, and to perceive how a new order could be best +introduced. Joseph Story was ten years old in 1789 when the Constitution +was adopted; his earliest impressions, therefore, were of the +Confederation, and I know no better description of the interval just +subsequent to the peace of 1783, than is contained in a few lines in his +dissenting opinion in the Charles River Bridge Case:-- + +"In order to entertain a just view of this subject, we must go back to +that period of general bankruptcy, and distress and difficulty +(1785).... The union of the States was crumbling into ruins, under the +old Confederation. Agriculture, manufactures, and commerce were at their +lowest ebb. There was infinite danger to all the States from local +interests and jealousies, and from the apparent impossibility of a much +longer adherence to that shadow of a government, the Continental +Congress. And even four years afterwards, when every evil had been +greatly aggravated, and civil war was added to other calamities, the +Constitution of the United States was all but shipwrecked in passing +through the state conventions."[1] + +This crisis, according to my computation, was the normal one of the +third generation. Between 1688 and 1765 the British Empire had +physically outgrown its legal envelope, and the consequence was a +revolution. The thirteen American colonies, which formed the western +section of the imperial mass, split from the core and drifted into +chaos, beyond the constraint of existing law. Washington was, in his +way, a large capitalist, but he was much more. He was not only a wealthy +planter, but he was an engineer, a traveller, to an extent a +manufacturer, a politician, and a soldier, and he saw that, as a +conservative, he must be "Progressive" and raise the law to a power high +enough to constrain all these thirteen refractory units. For Washington +understood that peace does not consist in talking platitudes at +conferences, but in organizing a sovereignty strong enough to coerce its +subjects. + +The problem of constructing such a sovereignty was the problem which +Washington solved, temporarily at least, without violence. He prevailed +not only because of an intelligence and elevation of character which +enabled him to comprehend, and to persuade others, that, to attain a +common end, all must make sacrifices, but also because he was supported +by a body of the most remarkable men whom America has ever produced. Men +who, though doubtless in a numerical minority, taking the country as a +whole, by sheer weight of ability and energy, achieved their purpose. + +Yet even Washington and his adherents could not alter the limitations +of the human mind. He could postpone, but he could not avert, the impact +of conflicting social forces. In 1789 he compromised, but he did not +determine the question of sovereignty. He eluded an impending conflict +by introducing courts as political arbitrators, and the expedient worked +more or less well until the tension reached a certain point. Then it +broke down, and the question of sovereignty had to be settled in +America, as elsewhere, on the field of battle. It was not decided until +Appomattox. But the function of the courts in American life is a subject +which I shall consider hereafter. + +If the invention of gunpowder and printing in the fourteenth and +fifteenth centuries presaged the Reformation of the sixteenth, and if +the Industrial Revolution of the eighteenth was the forerunner of +political revolutions throughout the Western World, we may well, after +the mechanical and economic cataclysm of the nineteenth, cease wondering +that twentieth-century society should be radical. + +Never since man first walked erect have his relations toward nature been +so changed, within the same space of time, as they have been since +Washington was elected President and the Parisian mob stormed the +Bastille. Washington found the task of a readjustment heavy enough, but +the civilization he knew was simple. When Washington lived, the fund of +energy at man's disposal had not very sensibly augmented since the fall +of Rome. In the eighteenth, as in the fourth century, engineers had at +command only animal power, and a little wind and water power, to which +had been added, at the end of the Middle Ages, a low explosive. There +was nothing in the daily life of his age which made the legal and +administrative principles which had sufficed for Justinian insufficient +for him. Twentieth-century society rests on a basis not different so +much in degree, as in kind, from all that has gone before. Through +applied science infinite forces have been domesticated, and the action +of these infinite forces upon finite minds has been to create a tension, +together with a social acceleration and concentration, not only +unparalleled, but, apparently, without limit. Meanwhile our laws and +institutions have remained, in substance, constant. I doubt if we have +developed a single important administrative principle which would be +novel to Napoleon, were he to live again, and I am quite sure that we +have no legal principle younger than Justinian. + +As a result, society has been squeezed, as it were, from its rigid +eighteenth-century legal shell, and has passed into a fourth dimension +of space, where it performs its most important functions beyond the +cognizance of the law, which remains in a space of but three dimensions. +Washington encountered a somewhat analogous problem when dealing with +the thirteen petty independent states, which had escaped from England; +but his problem was relatively rudimentary. Taking the theory of +sovereignty as it stood, he had only to apply it to communities. It was +mainly a question of concentrating a sufficient amount of energy to +enforce order in sovereign social units. The whole social detail +remained unchanged. Our conditions would seem to imply a very +considerable extension and specialization of the principle of +sovereignty, together with a commensurate increment of energy, but +unfortunately the twentieth-century American problem is still further +complicated by the character of the envelope in which this highly +volatilized society is theoretically contained. To attain his object, +Washington introduced a written organic law, which of all things is the +most inflexible. No other modern nation has to consider such an +impediment. + +Moneyed capital I take to be stored human energy, as a coal measure is +stored solar energy; and moneyed capital, under the stress of modern +life, has developed at once extreme fluidity, and an equivalent +compressibility. Thus a small number of men can control it in enormous +masses, and so it comes to pass that, in a community like the United +States, a few men, or even, in certain emergencies, a single man, may +become clothed with various of the attributes of sovereignty. Sovereign +powers are powers so important that the community, in its corporate +capacity, has, as society has centralized, usually found it necessary to +monopolize them more or less absolutely, since their possession by +private persons causes revolt. These powers, when vested in some +official, as, for example, a king or emperor, have been held by him, in +all Western countries at least, as a trust to be used for the common +welfare. A breach of that trust has commonly been punished by +deposition or death. It was upon a charge of breach of trust that +Charles I, among other sovereigns, was tried and executed. In short, the +relation of sovereign and subject has been based either upon consent and +mutual obligation, or upon submission to a divine command; but, in +either case, upon recognition of responsibility. Only the relation of +master and slave implies the status of sovereign power vested in an +unaccountable superior. Nevertheless, it is in a relation somewhat +analogous to the latter, that the modern capitalist has been placed +toward his fellow citizens, by the advances in applied science. An +example or two will explain my meaning. + +High among sovereign powers has always ranked the ownership and +administration of highways. And it is evident why this should have been +so. Movement is life, and the stoppage of movement is death, and the +movement of every people flows along its highways. An invader has only +to cut the communications of the invaded to paralyze him, as he would +paralyze an animal by cutting his arteries or tendons. Accordingly, in +all ages and in all lands, down to the nineteenth century, nations even +partially centralized have, in their corporate capacity, owned and cared +for their highways, either directly or through accountable agents. And +they have paid for them by direct taxes, like the Romans, or by tolls +levied upon traffic, as many mediaeval governments preferred to do. +Either method answers its purpose, provided the government recognizes +its responsibility; and no government ever recognized this +responsibility more fully than did the autocratic government of ancient +Rome. So the absolute régime of eighteenth-century France recognized +this responsibility when Louis XVI undertook to remedy the abuse of +unequal taxation, for the maintenance of the highways, by abolishing the +corvée. + +Toward the middle of the nineteenth century, the application, by +science, of steam to locomotion, made railways a favorite speculation. +Forthwith, private capital acquired these highways, and because of the +inelasticity of the old law, treated them as ordinary chattels, to be +administered for the profit of the owner exclusively. It is true that +railway companies posed as public agents when demanding the power to +take private property; but when it came to charging for use of their +ways, they claimed to be only private carriers, authorized to bargain as +they pleased. Indeed, it grew to be considered a mark of efficient +railroad management to extract the largest revenue possible from the +people, along the lines of least resistance; that is, by taxing most +heavily those individuals and localities which could least resist. And +the claim by the railroads that they might do this as a matter of right +was long upheld by the courts,[2] nor have the judges even yet, after a +generation of revolt and of legislation, altogether abandoned this +doctrine. + +The courts--reluctantly, it is true, and principally at the instigation +of the railways themselves, who found the practice unprofitable--have +latterly discountenanced discrimination as to persons, but they still +uphold discrimination as to localities.[3] Now, among abuses of +sovereign power, this is one of the most galling, for of all taxes the +transportation tax is perhaps that which is most searching, most +insidious, and, when misused, most destructive. The price paid for +transportation is not so essential to the public welfare as its +equality; for neither persons nor localities can prosper when the +necessaries of life cost them more than they cost their competitors. In +towns, no cup of water can be drunk, no crust of bread eaten, no garment +worn, which has not paid the transportation tax, and the farmer's crops +must rot upon his land, if other farmers pay enough less than he to +exclude him from markets toward which they all stand in a position +otherwise equal. Yet this formidable power has been usurped by private +persons who have used it purely selfishly, as no legitimate sovereign +could have used it, and by persons who have indignantly denounced all +attempts to hold them accountable, as an infringement of their +constitutional rights. Obviously, capital cannot assume the position of +an irresponsible sovereign, living in a sphere beyond the domain of law, +without inviting the fate which has awaited all sovereigns who have +denied or abused their trust. + +The operation of the New York Clearing-House is another example of the +acquisition of sovereign power by irresponsible private persons. +Primarily, of course, a clearing-house is an innocent institution +occupied with adjusting balances between banks, and has no relation to +the volume of the currency. Furthermore, among all highly centralized +nations, the regulation of the currency is one of the most jealously +guarded of the prerogatives of sovereignty, because all values hinge +upon the relation which the volume of the currency bears to the volume +of trade. Yet, as everybody knows, in moments of financial panic, the +handful of financiers who, directly or indirectly, govern the +Clearing-House, have it in their power either to expand or to contract +the currency, by issuing or by withdrawing Clearing-House certificates, +more effectually perhaps than if they controlled the Treasury of the +United States. Nor does this power, vast as it is, at all represent the +supremacy which a few bankers enjoy over values, because of their +facilities for manipulating the currency and, with the currency, credit; +facilities, which are used or abused entirely beyond the reach of the +law. + +Bankers, at their conventions and through the press, are wont to +denounce the American monetary system, and without doubt all that they +say, and much more that they do not say, is true; and yet I should +suppose that there could be little doubt that American financiers might, +after the panic of 1893, and before the administration of Mr. Taft, have +obtained from Congress, at most sessions, very reasonable legislation, +had they first agreed upon the reforms they demanded, and, secondly, +manifested their readiness, as a condition precedent to such reforms, to +submit to effective government supervision in those departments of their +business which relate to the inflation or depression of values. They +have shown little inclination to submit to restraint in these +particulars, nor, perhaps, is their reluctance surprising, for the +possession by a very small favored class of the unquestioned privilege, +whether actually used or not, at recurring intervals, of subjecting the +debtor class to such pressure as the creditor may think necessary, in +order to force the debtor to surrender his property to the creditor at +the creditor's price, is a wonder beside which Aladdin's lamp burns dim. + +As I have already remarked, I apprehend that sovereignty is a variable +quantity of administrative energy, which, in civilizations which we +call advancing, tends to accumulate with a rapidity proportionate to the +acceleration of movement. That is to say, the community, as it +consolidates, finds it essential to its safety to withdraw, more or less +completely, from individuals, and to monopolize, more or less strictly, +itself, a great variety of functions. At one stage of civilization the +head of the family administers justice, maintains an armed force for war +or police, wages war, makes treaties of peace, coins money, and, not +infrequently, wears a crown, usually of a form to indicate his +importance in a hierarchy. At a later stage of civilization, companies +of traders play a great part. Such aggregations of private and +irresponsible adventurers have invaded and conquered empires, founded +colonies, and administered justice to millions of human beings. In our +own time, we have seen the assumption of many of the functions of these +and similar private companies by the sovereign. We have seen the East +India Company absorbed by the British Parliament; we have seen the +railways, and the telephone and the telegraph companies, taken into +possession, very generally, by the most progressive governments of the +world; and now we have come to the necessity of dealing with the +domestic-trade monopoly, because trade has fallen into monopoly through +the centralization of capital in a constantly contracting circle of +ownership. + +Among innumerable kinds of monopolies none have been more troublesome +than trade monopolies, especially those which control the price of the +necessaries of life; for, so far as I know, no people, approximately +free, have long endured such monopolies patiently. Nor could they well +have done so without constraint by overpowering physical force, for the +possession of a monopoly of a necessary of life by an individual, or by +a small privileged class, is tantamount to investing a minority, +contemptible alike in numbers and in physical force, with an arbitrary +and unlimited power to tax the majority, not for public, but for private +purposes. Therefore it has not infrequently happened that persistence in +adhering to and in enforcing such monopolies has led, first, to attempts +at regulation, and, these failing, to confiscation, and sometimes to the +proscription of the owners. An example of such a phenomenon occurs to +me which, just now, seems apposite. + +In the earlier Middle Ages, before gunpowder made fortified houses +untenable when attacked by the sovereign, the highways were so dangerous +that trade and manufactures could only survive in walled towns. An +unarmed urban population had to buy its privileges, and to pay for these +a syndicate grew up in each town, which became responsible for the town +ferm, or tax, and, in return, collected what part of the municipal +expenses it could from the poorer inhabitants. These syndicates, called +guilds, as a means of raising money, regulated trade and fixed prices, +and they succeeded in fixing prices because they could prevent +competition within the walls. Presently complaints became rife of guild +oppression, and the courts had to entertain these complaints from the +outset, to keep some semblance of order; but at length the turmoil +passed beyond the reach of the courts, and Parliament intervened. +Parliament not only enacted a series of statutes regulating prices in +towns, but supervised guild membership, requiring trading companies to +receive new members upon what Parliament considered to be reasonable +terms. Nevertheless, friction continued. + +With advances in science, artillery improved, and, as artillery +improved, the police strengthened until the king could arrest whom he +pleased. Then the country grew safe and manufactures migrated from the +walled and heavily taxed towns to the cheap, open villages, and from +thence undersold the guilds. As the area of competition broadened, so +the guilds weakened, until, under Edward VI, being no longer able to +defend themselves, they were ruthlessly and savagely plundered; and +fifty years later the Court of King's Bench gravely held that a royal +grant of a monopoly had always been bad at common law.[4] + +Though the Court's law proved to be good, since it has stood, its +history was fantastic; for the trade-guild was the offspring of trade +monopoly, and a trade monopoly had for centuries been granted habitually +by the feudal landlord to his tenants, and indeed was the only means by +which an urban population could finance its military expenditure. Then, +in due course, the Crown tried to establish its exclusive right to +grant monopolies, and finally Parliament--or King, Lords, and Commons +combined, being the whole nation in its corporate capacity, +--appropriated this monopoly of monopolies as its supreme +prerogative. And with Parliament this monopoly has ever since remained. + +In fine, monopolies, or competition in trade, appear to be recurrent +social phases which depend upon the ratio which the mass and the +fluidity of capital, or, in other words, its energy, bears to the area +within which competition is possible. In the Middle Ages, when the town +walls bounded that area, or when, at most, it was restricted to a few +lines of communication between defensible points garrisoned by the +monopolists,--as were the Staple towns of England which carried on the +wool trade with the British fortified counting-houses in Flanders,--a +small quantity of sluggish capital sufficed. But as police improved, and +the area of competition broadened faster than capital accumulated and +quickened, the competitive phase dawned, whose advent is marked by Darcy +_v_. Allein, decided in the year 1600. Finally, the issue between +monopoly and free trade was fought out in the American Revolution, for +the measure which precipitated hostilities was the effort of England to +impose her monopoly of the Eastern trade upon America. The Boston Tea +Party occurred on December 16, 1773. Then came the heyday of competition +with the acceptance of the theories of Adam Smith, and the political +domination in England, towards 1840, of the Manchester school of +political economy. + +About forty years since, in America at least, the tide would appear once +more to have turned. I fix the moment of flux, as I am apt to do, by a +lawsuit. This suit was the Morris Run Coal Company _v._ Barclay Coal +Company,[5] which is the first modern anti-monopoly litigation that I +have met with in the United States. It was decided in Pennsylvania in +1871; and since 1871, while the area within which competition is +possible has been kept constant by the tariff, capital has accumulated +and has been concentrated and volatilized until, within this republic, +substantially all prices are fixed by a vast moneyed mass. This mass, +obeying what amounts to being a single volition, has its heart in Wall +Street, and pervades every corner of the Union. No matter what price is +in question, whether it be the price of meat, or coal, or cotton cloth, +or of railway transportation, or of insurance, or of discounts, the +inquirer will find the price to be, in essence, a monopoly or fixed +price; and if he will follow his investigation to the end, he will also +find that the first cause in the complex chain of cause and effect which +created the monopoly in that mysterious energy which is enthroned on the +Hudson. + +The presence of monopolistic prices in trade is not always a result of +conscious agreement; more frequently, perhaps, it is automatic, and is +an effect of the concentration of capital in a point where competition +ceases, as when all the capital engaged in a trade belongs to a single +owner. Supposing ownership to be enough restricted, combination is +easier and more profitable than competition; therefore combination, +conscious or unconscious, supplants competition. The inference from the +evidence is that, in the United States, capital has reached, or is +rapidly reaching, this point of concentration; and if this be true, +competition cannot be enforced by legislation. But, assuming that +competition could still be enforced by law, the only effect would be to +make the mass of capital more homogeneous by eliminating still further +such of the weaker capitalists as have survived. Ultimately, unless +indeed society is to dissolve and capital migrate elsewhere, all the +present phenomena would be intensified. Nor would free trade, probably, +have more than a very transitory effect. In no department of trade is +competition freer than in the Atlantic passenger service, and yet in no +trade is there a stricter monopoly price. + +The same acceleration of the social movement which has caused this +centralization of capital has caused the centralization of another form +of human energy, which is its negative: labor unions organize labor as a +monopoly. Labor protests against the irresponsible sovereignty of +capital, as men have always protested against irresponsible sovereignty, +declaring that the capitalistic social system, as it now exists, is a +form of slavery. Very logically, therefore, the abler and bolder labor +agitators proclaim that labor levies actual war against society, and +that in that war there can be no truce until irresponsible capital has +capitulated. Also, in labor's methods of warfare the same phenomena +appear as in the autocracy of capital. Labor attacks capitalistic +society by methods beyond the purview of the law, and may, at any +moment, shatter the social system; while, under our laws and +institutions, society is helpless. + +Few persons, I should imagine, who reflect on these phenomena, fail to +admit to themselves, whatever they may say publicly, that present social +conditions are unsatisfactory, and I take the cause of the stress to be +that which I have stated. We have extended the range of applied science +until we daily use infinite forces, and those forces must, apparently, +disrupt our society, unless we can raise the laws and institutions which +hold society together to an energy and efficiency commensurate to them. +How much vigor and ability would be required to accomplish such a work +may be measured by the experience of Washington, who barely prevailed in +his relatively simple task, surrounded by a generation of extraordinary +men, and with the capitalistic class of America behind him. Without the +capitalistic class he must have failed. Therefore one most momentous +problem of the future is the attitude which capital can or will assume +in this emergency. + +That some of the more sagacious of the capitalistic class have +preserved that instinct of self-preservation which was so conspicuous +among men of the type of Washington, is apparent from the position taken +by the management of the United States Steel Company, and by the +Republican minority of the Congressional Committee which recently +investigated the Steel Company; but whether such men very strongly +influence the genus to which they belong is not clear. If they do not, +much improvement in existing conditions can hardly be anticipated. + +If capital insists upon continuing to exercise sovereign powers, without +accepting responsibility as for a trust, the revolt against the existing +order must probably continue, and that revolt can only be dealt with, as +all servile revolts must be dealt with, by physical force. I doubt, +however, if even the most ardent and optimistic of capitalists would +care to speculate deeply upon the stability of any government capital +might organize, which rested on the fundamental principle that the +American people must be ruled by an army. On the other hand any +government to be effective must be strong. It is futile to talk of +keeping peace in labor disputes by compulsory arbitration, if the +government has not the power to command obedience to its arbitrators' +decree; but a government able to constrain a couple of hundred thousand +discontented railway employees to work against their will, must differ +considerably from the one we have. Nor is it possible to imagine that +labor will ever yield peaceful obedience to such constraint, unless +capital makes equivalent concessions,--unless, perhaps, among other +things, capital consents to erect tribunals which shall offer relief to +any citizen who can show himself to be oppressed by the monopolistic +price. In fine, a government, to promise stability in the future, must +apparently be so much more powerful than any private interest, that all +men will stand equally before its tribunals; and these tribunals must be +flexible enough to reach those categories of activity which now lie +beyond legal jurisdiction. If it be objected that the American people +are incapable of an effort so prodigious, I readily admit that this may +be true, but I also contend that the objection is beside the issue. What +the American people can or cannot do is a matter of opinion, but that +social changes are imminent appears to be almost certain. Though these +changes cannot be prevented, possibly they may, to a degree, be guided, +as Washington guided the changes of 1789. To resist them perversely, as +they were resisted at the Chicago Convention of 1912, can only make the +catastrophe, when it comes, as overwhelming as was the consequent defeat +of the Republican party. + +Approached thus, that Convention of 1912 has more than a passing +importance, since it would seem to indicate the ordinary phenomenon, +that a declining favored class is incapable of appreciating an +approaching change of environment which must alter its social status. I +began with the proposition that, in any society which we now understand, +civilization is equivalent to order, and the evidence of the truth of +the proposition is, that amidst disorder, capital and credit, which +constitute the pith of our civilization, perish first. For more than a +century past, capital and credit have been absolute, or nearly so; +accordingly it has not been the martial type which has enjoyed +sovereignty, but the capitalistic. The warrior has been the capitalists' +servant. But now, if it be true that money, in certain crucial +directions, is losing its purchasing power, it is evident that +capitalists must accept a position of equality before the law under the +domination of a type of man who can enforce obedience; their own +obedience, as well as the obedience of others. Indeed, it might occur, +even to some optimists, that capitalists would be fortunate if they +could certainly obtain protection for another fifty years on terms as +favorable as these. But at Chicago, capitalists declined even to +consider receding to a secondary position. Rather than permit the advent +of a power beyond their immediate control, they preferred to shatter the +instrument by which they sustained their ascendancy. For it is clear +that Roosevelt's offence in the eyes of the capitalistic class was not +what he had actually done, for he had done nothing seriously to injure +them. The crime they resented was the assertion of the principle of +equality before the law, for equality before the law signified the end +of privilege to operate beyond the range of law. If this principle which +Roosevelt, in theory at least, certainly embodied, came to be rigorously +enforced, capitalists perceived that private persons would be precluded +from using the functions of sovereignty to enrich themselves. There lay +the parting of the ways. Sooner or later almost every successive ruling +class has had this dilemma in one of its innumerable forms presented to +them, and few have had the genius to compromise while compromise was +possible. Only a generation ago the aristocracy of the South +deliberately chose a civil war rather than admit the principle that at +some future day they might have to accept compensation for their slaves. + +A thousand other instances of similar incapacity might be adduced, but I +will content myself with this alone. + +Briefly the precedents induce the inference that privileged classes +seldom have the intelligence to protect themselves by adaptation when +nature turns against them, and, up to the present moment, the old +privileged class in the United States has shown little promise of being +an exception to the rule. + +Be this, however, as it may, and even assuming that the great industrial +and capitalistic interests would be prepared to assist a movement toward +consolidation, as their ancestors assisted Washington, I deem it far +from probable that they could succeed with the large American middle +class, which naturally should aid, opposed, as it seems now to be, to +such a movement. Partially, doubtless, this opposition is born of fear, +since the lesser folk have learned by bitter experience that the +powerful have yielded to nothing save force, and therefore that their +only hope is to crush those who oppress them. Doubtless, also, there is +the inertia incident to long tradition, but I suspect that the +resistance is rather due to a subtle and, as yet, nearly unconscious +instinct, which teaches the numerical majority, who are inimical to +capital, that the shortest and easiest way for them to acquire +autocratic authority is to obtain an absolute mastery over those +political tribunals which we call courts. Also that mastery is being by +them rapidly acquired. So long as our courts retain their present +functions no comprehensive administrative reform is possible, whence I +conclude that the relation which our courts shall hold to politics is +now the fundamental problem which the American people must solve, before +any stable social equilibrium can be attained. + +Theodore Roosevelt's enemies have been many and bitter. They have +attacked his honesty, his sobriety, his intelligence, and his judgment, +but very few of them have hitherto denied that he has a keen instinct +for political strife. Only of late has this gift been doubted, but now +eminent politicians question whether he did not make a capital mistake +when he presented the reform of our courts of law, as expounders of the +Constitution, as one of his two chief issues, in his canvass for a +nomination for a third presidential term. + +After many years of study of, and reflection upon, this intricate +subject I have reached the conviction that, though Mr. Roosevelt may +have erred in the remedy which he has suggested, he is right in the +principle which he has advanced, and in my next chapter I propose to +give the evidence and explain the reasons which constrain me to believe +that American society must continue to degenerate until confusion +supervenes, if our courts shall remain semi-political chambers. + + +FOOTNOTES: + +[1] Charles River Bridge _v_. Warren Bridge, II Peters, 608, 609. + +[2] Fitchburg R.R. _v_. Gage, 12 Gray 393, and innumerable cases +following it. + +[3] See the decisions of the Commerce Court on the Long and Short-Haul +Clause. Atchison, T.&S.F. By. _v_. United States, 191 Federal Rep. 856. + +[4] Darcy _v_. Allein, 11 Rep. 84. + +[5] 68 Pa. 173. + + + + +CHAPTER II + +THE LIMITATIONS OF THE JUDICIAL FUNCTION + + +Taking the human race collectively, its ideal of a court of justice has +been the omniscient and inexorable judgment seat of God. Individually, +on the contrary, they have dearly loved favor. Hence the doctrine of the +Intercession of the Saints, which many devout persons have sincerely +believed could be bought by them for money. The whole development of +civilization may be followed in the oscillation of any given society +between these two extremes, the many always striving to so restrain the +judiciary that it shall be unable to work the will of the favored few. +On the whole, success in attaining to ideal justice has not been quite +commensurate with the time and effort devoted to solving the problem, +but, until our constitutional experiment was tried in America, I think +it had been pretty generally admitted that the first prerequisite to +success was that judges should be removed from political influences. +For the main difficulty has been that every dominant class, as it has +arisen, has done its best to use the machinery of justice for its own +benefit. + +No argument ever has convinced like a parable, and a very famous story +in the Bible will illustrate the great truth, which is the first lesson +that a primitive people learns, that unless the judge can be separated +from the sovereign, and be strictly limited in the performance of his +functions by a recognized code of procedure, the public, as against the +dominant class, has, in substance, no civil rights. The kings of Israel +were judges of last resort. Solomon earned his reputation for wisdom in +the cause in which two mothers claimed the same child. They were indeed +both judge and jury. Also they were prosecuting officers. Also they were +sheriffs. In fine they exercised unlimited judicial power, save in so +far as they were checked by the divine interference usually signified +through some prophet. + +Now David was, admittedly, one of the best sovereigns and judges who +ever held office in Jerusalem, and, in the days of David, Nathan was the +leading prophet of the dominant political party. "And it came to pass +in an eveningtide, that David arose from off his bed, and walked upon +the roof of the king's house: and from the roof he saw a woman washing +herself; and the woman was very beautiful to look upon. And David sent +and enquired after the woman. And one said, Is not this Bath-sheba, the +daughter of Eliam, the wife of Uriah the Hittite? And David sent +messengers, and took her; and she came in unto him, and he lay with her; +... and she returned unto her house." + +Uriah was serving in the army under Joab. David sent for Uriah, and told +him to go home to his wife, but Uriah refused. Then David wrote a letter +to Joab and dismissed Uriah, ordering him to give the letter to Joab. +And David "wrote in the letter, saying, Set ye Uriah in the forefront of +the hottest battle, and retire ye from him, that he may be smitten and +die.... + +"And the men of the city went out and fought with Joab; and there fell +some of the people of the servants of David; and Uriah the Hittite died +also.... But the thing that David had done displeased the Lord. + +"And the Lord sent Nathan unto David. And he came unto him, and said +unto him, There were two men in one city; the one rich and the other +poor. The rich man had exceeding many flocks and herds: + +"But the poor man had nothing, save one little ewe lamb, which he had +bought and nourished up: and it grew up together with him, and with his +children; it did eat of his own meat and drank of his own cup, and lay +in his bosom, and was unto him as a daughter. + +"And there came a traveller unto the rich man, and he spared to take of +his own flock, ... but took the poor man's lamb, and dressed it for the +man that was come to him. + +"And David's anger was greatly kindled against the man; and he said to +Nathan, As the Lord liveth, the man that hath done this thing shall +surely die: ... + +"And Nathan said to David, Thou art the man. Thus saith the Lord God of +Israel ... Now therefore the sword shall never depart from thine house; +because thou has despised me ... Behold, I will raise up evil against +thee out of thine own house, and I will take thy wives before thine +eyes, and give them unto thy neighbor." Here, as the heading to the +Twelfth Chapter of Second Book of Samuel says, "Nathan's parable of the +ewe lamb causeth David to be his own judge," but the significant part of +the story is that Nathan, with all his influence, could not force David +to surrender his prey. David begged very hard to have his sentence +remitted, but, for all that, "David sent and fetched [Bathsheba] to his +house, and she became his wife, and bare him a son." Indeed, she bore +him Solomon. As against David or David's important supporters men like +Uriah had no civil rights that could be enforced. + +Even after the judicial function is nominally severed from the executive +function, so that the sovereign himself does not, like David and +Solomon, personally administer justice, the same result is reached +through agents, as long as the judge holds his office at the will of the +chief of a political party. + +To go no farther afield, every page of English history blazons this +record. Long after the law had taken an almost modern shape, Alice +Perrers, the mistress of Edward III, sat on the bench at Westminster and +intimidated the judges into deciding for suitors who had secured her +services. The chief revenue of the rival factions during the War of the +Roses was derived from attainders, indictments for treason, and +forfeitures, avowedly partisan. Henry VII used the Star Chamber to ruin +the remnants of the feudal aristocracy. Henry VIII exterminated as +vagrants the wretched monks whom he had evicted. The prosecutions under +Charles I largely induced the Great Rebellion; and finally the limit of +endurance was reached when Charles II made Jeffreys Chief Justice of +England in order to kill those who were prominent in opposition. Charles +knew what he was doing. "That man," said he of Jeffreys, "has no +learning, no sense, no manners, and more impudence than ten carted +street-walkers." The first object was to convict Algernon Sidney of +treason. Jeffreys used simple means. Usually drunk, his court resembled +the den of a wild beast. He poured forth on "plaintiffs and defendants, +barristers and attorneys, witnesses and jurymen, torrents of frantic +abuse, intermixed with oaths and curses." The law required proof of an +_overt act_ of treason. Many years before Sidney had written a +philosophical treatise touching resistance by the subject to the +sovereign, as a constitutional principle. But, though the fragment +contained nothing more than the doctrines of Locke, Sidney had +cautiously shown it to no one, and it had only been found by searching +his study. Jeffreys told the jury that if they believed the book to be +Sidney's book, written by him, they must convict for _scribere est +agere_, to write is to commit an overt act. + +A revolution followed upon this and other like convictions, as +revolutions have usually followed such uses of the judicial power. In +that revolution the principle of the limitation of the judicial function +was recognized, and the English people seriously addressed themselves to +the task of separating their courts from political influences, of +protecting their judges by making their tenure and their pay permanent, +and of punishing them by removal if they behaved corruptly, or with +prejudice, or transcended the limits within which their duty confined +them. Jeffreys had legislated when he ruled it to be the law that, to +write words secretly in one's closet, is to commit an overt act of +treason, and he did it to kill a man whom the king who employed him +wished to destroy. This was to transcend the duty of a judge, which is +to expound and not to legislate. The judge may develop a principle, he +may admit evidence of a custom in order to explain the intentions of the +parties to a suit, as Lord Mansfield admitted evidence of the customs of +merchants, but he should not legislate. To do so, as Jeffreys did in +Sidney's case, is tantamount to murder. Jeffreys never was duly punished +for his crimes. He died the year after the Revolution, in the Tower, +maintaining to the last that he was innocent in the sight of God and man +because "all the blood he had shed fell short of the King's command." + +And Jeffreys was perfectly logical and consistent in his attitude. A +judiciary is either an end in itself or a means to an end. If it be +designed to protect the civil rights of citizens indifferently, it must +be free from pressure which will deflect it from this path, and it can +only be protected from the severest possible pressure by being removed +from politics, because politics is the struggle for ascendancy of a +class or a majority. If, on the other hand, the judiciary is to serve as +an instrument for advancing the fortunes of a majority or a dominant +class, as David used the Jewish judiciary, or as the Stuarts used the +English judiciary, then the judicial power must be embodied either in a +military or political leader, like David, who does the work himself, or +in an agent, more or less like Jeffreys, who will obey his orders. In +the colonies the subserviency of the judges to the Crown had been a +standing grievance, and the result of this long and terrible experience, +stretching through centuries both in Europe and America, had been to +inspire Americans with a fear of intrusting power to any man or body of +men. They sought to limit everything by written restrictions. Setting +aside the objection that such a system is mechanically vicious because +it involves excessive friction and therefore waste of energy, it is +obviously futile unless the written restrictions can be enforced, and +enforced in the spirit in which they are drawn. Hamilton, whose instinct +for law resembled genius, saw the difficulty and pointed out in the +_Federalist_ that it is not a writing which can give protection, but +only the intelligence and the sense of justice of the community itself. + +"The truth is, that the general genius of a Government is all that can +be substantially relied upon for permanent effects. Particular +provisions, though not altogether useless, have far less virtue and +efficiency than are commonly ascribed to them; and the want of them will +never be, with men of sound discernment, a decisive objection to any +plan which exhibits the leading characters of a good Government." After +an experience of nearly a century and a quarter we must admit, I think, +that Hamilton was right. In the United States we have carried bills of +right and constitutional limitations to an extreme, and yet, I suppose +that few would care to maintain that, during the nineteenth century, +life and property were safer in America, or crime better dealt with, +than in England, France, or Germany. The contrary, indeed, I take to be +the truth, and I think one chief cause of this imperfection in the +administration of justice will be found to have been the operation of +the written Constitution. For, under the American system, the +Constitution, or fundamental law, is expounded by judges, and this +function, which, in essence, is political, has brought precisely that +quality of pressure on the bench which it has been the labor of a +hundred generations of our ancestors to remove. On the whole the result +has been not to elevate politics, but to lower the courts toward the +political level, a result which conforms to the _a priori_ theory. + +The abstract virtue of the written Constitution was not, however, a +question in issue when Washington and his contemporaries set themselves +to reorganize the Confederation. Those men had no choice but to draft +some kind of a platform on which the states could agree to unite, if +they were to unite peacefully at all, and accordingly they met in +convention and drew the best form of agreement they could; but I more +than suspect that a good many very able Federalists were quite alive to +the defects in the plan which they adopted. + +Hamilton was outspoken in preferring the English model, and I am not +aware that Washington ever expressed a preference for the theory that, +because of a written fundamental law, the court should nullify +legislation. Nor is it unworthy of remark that all foreigners, after a +prolonged and attentive observation of our experiment, have avoided it. +Since 1789, every highly civilized Western people have readjusted their +institutions at least once, yet not one has in this respect imitated +us, though all have borrowed freely from the parliamentary system of +England.[6] + +Even our neighbor, Canada, with no adverse traditions and a population +similar to ours, has been no exception to the rule. The Canadian courts +indeed define the limits of provincial and federal jurisdiction as fixed +under an act of Parliament, but they do not pretend to limit the +exercise of power when the seat of power has been established. I take +the cause of this distrust to be obvious. Although our written +Constitution was successful in its primary purpose of facilitating the +consolidation of the Confederation, it has not otherwise inspired +confidence as a practical administrative device. Not only has constant +judicial interference dislocated scientific legislation, but casting the +judiciary into the vortex of civil faction has degraded it in the +popular esteem. In fine, from the outset, the American bench, because it +deals with the most fiercely contested of political issues, has been an +instrument necessary to political success. Consequently, political +parties have striven to control it, and therefore the bench has always +had an avowed partisan bias. This avowed political or social bias has, I +infer, bred among the American people the conviction that justice is not +administered indifferently to all men, wherefore the bench is not +respected with us as, for instance, it is in Great Britain, where law +and politics are sundered. Nor has the dissatisfaction engendered by +these causes been concealed. On the contrary, it has found expression +through a series of famous popular leaders from Thomas Jefferson to +Theodore Roosevelt. + +The Constitution could hardly have been adopted or the government +organized but for the personal influence of Washington, whose power lay +in his genius for dealing with men. He lost no time or strength in +speculation, but, taking the Constitution as the best implement at hand, +he went to the work of administration by including the representatives +of the antagonistic extremes in his Cabinet. He might as well have +expected fire and water to mingle as Jefferson and Hamilton to +harmonize. Probably he had no delusions on that head when he chose them +for his ministers, and he accomplished his object. He paralyzed +opposition until the new mechanism began to operate pretty regularly, +but he had not an hour to spare. Soon the French Revolution heated +passions so hot that long before Washington's successor was elected the +United States was rent by faction. + +The question which underlay all other questions, down to the Civil War, +was the determination of the seat of sovereignty. Hamilton and the +Federalists held it to be axiomatic that, if the federal government were +to be more than a shadow, it must interpret the meaning of the +instrument which created it, and, if so, that it must signify its +decisions through the courts. Only in this way, they argued, could +written limitations on legislative power be made effective. Only in this +way could statutes which contravened the Constitution be set aside.[7] + +Jefferson was abroad when Hamilton wrote _The Federalist_, but his views +have since been so universally accepted as embodying the opposition to +Hamilton, that they may be conveniently taken as if they had been +published while the Constitution was under discussion. Substantially +the same arguments were advanced by others during the actual debate, if +not quite so lucidly or connectedly then, as afterward by him. + +Very well, said Jefferson, in answer to Hamilton, admitting, for the +moment, that the central government shall define its own powers, and +that the courts shall be the organ through which the exposition shall be +made, both of which propositions I vehemently deny, you have this +result: The judges who will be called upon to pass upon the validity of +national and state legislation will be plunged in the most heated of +controversies, and in those controversies they cannot fail to be +influenced by the same passions and prejudices which sway other men. In +a word they must decide like legislators, though they will be exempt +from the responsibility to the public which controls other legislators. +Such conditions you can only meet by making the judicial tenure of +office ephemeral, as all legislative tenure is ephemeral. + +It is vain to pretend, continued he, in support of fixity of tenure, +that the greater the pressure on the judge is likely to be, the more +need there is to make him secure. This may be true of judges clothed +with ordinary attributes, like English judges, for, should these try to +nullify the popular will by construing away statutes, Parliament can +instantly correct them, or if Parliament fail in its duty, the +constituencies, at the next election, can intervene. But no one will be +able to correct the American judge who may decline to recognize the law +which would constrain him. Nothing can shake him save impeachment for +what is tantamount to crime, or being overruled by a constitutional +amendment which you have purposely made too hard to obtain to be a +remedy. He is to be judge in his own case without an appeal. + +Nowhere in all his long and masterly defence of the Constitution did +Hamilton show so much embarrassment as here, and because, probably, he +did not himself believe in his own brief. He really had faith in the +English principle of an absolute parliament, restrained, if needful, by +a conservative chamber, like the House of Lords, but not in the total +suspension of sovereignty subject to judicial illumination. Consequently +he fell back on platitudes about judicial high-mindedness, and how +judges could be trusted not to allow political influences to weigh with +them when deciding political questions. Pushed to its logical end, +concluded he, the Jeffersonian argument would prove that there should be +no judges distinct from legislatures.[8] + +Now, at length, exclaimed the Jeffersonian in triumph, you admit our +thesis. You propose to clothe judges with the highest legislative +functions, since you give them an absolute negative on legislation, and +yet you decline to impose on them the responsibility to a constituency, +which constrains other legislators. Clearly you thus make them +autocratic, and in the worst sense, for you permit small bodies of +irresponsible men under pretence of dispensing justice, but really in a +spirit of hypocrisy, to annul the will of the majority of the people, +even though the right of the people to exercise their will, in the +matters at issue, be clearly granted them in the Constitution. + +No, rejoined Hamilton, thus driven to the wall, judges never will so +abuse their trust. The duty of the judge requires him to suppress his +_will_, and exercise his _judgment_ only. The Constitution will be +before him, and he will have only to say whether authority to legislate +on a given subject is granted in that instrument. If it be, the +character of the legislation must remain a matter of legislative +discretion. Besides, you must repose confidence somewhere, and judges, +on the whole, are more trustworthy than legislators. How can you say +that, retorted the opposition, when you, better than most men, know the +line of despotic legal precedents from the Ship Money down to the Writs +of Assistance? + +Looking back upon this initial controversy touching judicial functions +under the Constitution, we can hardly suppose that Hamilton did not +perceive that, in substance, Jefferson was right, and that a bench +purposely constructed to pass upon political questions must be +politically partisan. He knew very well that, if the Federalists +prevailed in the elections, a Federalist President would only appoint +magistrates who could be relied on to favor consolidation. And so the +event proved. General Washington chose John Jay for the first Chief +Justice, who in some important respects was more Federalist than +Hamilton, while John Adams selected John Marshall, who, though one of +the greatest jurists who ever lived, was hated by Jefferson with a +bitter hatred, because of his political bias. As time went on matters +grew worse. Before Marshall died slavery had become a burning issue, and +the slave-owners controlled the appointing power. General Jackson +appointed Taney to sustain the expansion of slavery, and when the +anti-slavery party carried the country with Lincoln, Lincoln supplanted +Taney with Chase, in order that Chase might stand by him in his struggle +to destroy slavery. And as it has been, so must it always be. As long as +the power to enact laws shall hinge on the complexion of benches of +judges, so long will the ability to control a majority of the bench be +as crucial a political necessity as the ability to control a majority in +avowedly representative assemblies. + +Hamilton was one of the few great jurists and administrators whom +America has ever produced, and it is inconceivable that he did not +understand what he was doing. He knew perfectly well that, other things +being equal, the simplest administrative mechanism is the best, and he +knew also that he was helping to make an extremely complicated +mechanism. Not only so, but at the heart of this complexity lay the +gigantic cog of the judiciary, which was obviously devised to stop +movement. He must have had a reason, beyond the reason he gave, for not +only insisting on clothing the judiciary with these unusual political +and legislative attributes, but for giving the judiciary an +unprecedented fixity of tenure. I suspect that he was actuated by some +such considerations as these: + +The Federalists, having pretty good cause to suppose themselves in a +popular minority, purposed to consolidate the thirteen states under a +new sovereign. There were but two methods by which they could prevail; +they could use force, or, to secure assent, they could propose some +system of arbitration. To escape war the Federalists convened the +constitutional convention, and by so doing pledged themselves to +arbitration. But if their plan of consolidation were to succeed, it was +plain that the arbitrator must arbitrate in their favor, for if he +arbitrated as Mr. Jefferson would have wished, the United States under +the Constitution would have differed little from the United States under +the Confederation. The Federalists, therefore, must control the +arbitrator. If the Constitution were to be adopted, Hamilton and every +one else knew that Washington would be the first President, and +Washington could be relied on to appoint a strong Federalist bench. +Hence, whatever might happen subsequently, when the new plan first +should go into operation, and when the danger from insubordination among +the states would probably be most acute, the judiciary would be made to +throw its weight in favor of consolidation, and against disintegration, +and, if it did so, it was essential that it should be protected against +anything short of a revolutionary attack. + +In the convention, indeed, Charles Pinckney of South Carolina suggested +that Congress should be empowered to negative state legislation, but +such an alternative, for obvious reasons, would have been less palatable +to Hamilton, since Congress would be only too likely to fall under the +control of the Jeffersonian party, while a bench of judges, if once well +chosen, might prove to be for many years an "excellent barrier to the +encroachments and oppressions of the representative body."[9] + +I infer that Hamilton and many other Federalists reasoned somewhat thus, +not only from what they wrote, but from the temper of their minds, and, +if they did, events largely justified them. John Jay, Oliver Ellsworth, +and John Marshall were successively appointed to the office of Chief +Justice, nor did the complexion of the Supreme Court change until after +1830. + +What interests us, however, is not so much what the Federalists thought, +or the motives which actuated them, as the effect which the clothing of +the judiciary with political functions has had upon the development of +the American republic, more especially as that extreme measure might +have been avoided, had Pinckney's plan been adopted. Nor, looking back +upon the actual course of events, can I perceive that, so far as the +movement toward consolidation was concerned, the final result would have +varied materially whether Congress or the Supreme Court had exercised +control over state legislation. Marshall might just as well, in the one +case as the other, have formulated his theory of a semi-centralized +administration. He would only have had uniformly to sustain Congress, as +an English judge sustains Parliament. Nor could either Congress or the +Court have reached a definite result without an appeal to force. Either +chamber might expound a theory, but nothing save an army could establish +it. + +For two generations statesmen and jurists debated the relation of the +central to the local sovereignties with no result, for words alone could +decide no such issue. In America, as elsewhere, sovereignty is +determined by physical force. Marshall could not conquer Jefferson, he +could at most controvert Jefferson's theory. This he did, but, in doing +so, I doubt if he were quite true to himself. Jefferson contended that +every state might nullify national legislation, as conversely Pinckney +wished Congress to be given explicitly the power to nullify state +legislation; and Marshall, very sensibly, pointed out that, were +Jefferson's claim carried into practice, it would create "a hydra in +government,"[10] yet I am confident that Marshall did not appreciate +whither his own assertion of authority must lead. In view of the victory +of centralization in the Civil War, I will agree that the Supreme Court +might have successfully maintained a position as arbitrator touching +conflicting jurisdictions, as between the nation and the states, but +that is a different matter from assuming to examine into the wisdom of +the legislation itself. The one function might, possibly, pass by +courtesy as judicial; the other is clearly legislative. + +This distinction only developed after Marshall's death, but the +resentment which impelled Marshall to annul an act of Congress was +roused by the political conflict which preceded the election of 1800, in +which Marshall took a chief part. Apparently he could not resist the +temptation of measuring himself with his old adversary, especially as he +seems to have thought that he could discredit that adversary without +giving him an opportunity to retaliate. + +In 1798 a Federalist Congress passed the Alien and Sedition Acts, whose +constitutionality no Federalist judge ever doubted, but which Jefferson +considered as clearly a violation of the fundamental compact, since they +tended to drive certain states, as he thought, into "revolution and +blood." Under this provocation Jefferson proclaimed that it was both the +right and the duty of any state, which felt itself aggrieved, to +intervene to arrest "the progress of the evil," within her territory, +by declining to execute, or by "nullifying," the objectionable statutes. +As Jefferson wrote the Kentucky Resolutions in 1798 and was elected +President in 1800, the people at least appeared to have sustained him in +his exposition of the Constitution, before he entered into office. + +At this distance of time we find it hard to realize what the election of +1800 seemed to portend to those who participated therein. Mr. Jefferson +always described it as amounting to a revolution as profound as, if less +bloody than, the revolution of 1776, and though we maybe disposed to +imagine that Jefferson valued his own advent to power at its full worth, +it must be admitted that his enemies regarded it almost as seriously. +Nor were they without some justification, for Jefferson certainly +represented the party of disintegration. "Nullification" would have been +tantamount to a return to the condition of the Confederation. Besides, +Jefferson not so many years before had written, in defence of Shays's +rebellion, that the tree of Liberty could never flourish unless +refreshed occasionally with the blood of patriots and tyrants. To most +Federalists Jefferson seemed a bloodthirsty demagogue. In 1796 Oliver +Ellsworth had been appointed Chief Justice by General Washington in the +place of Jay, who resigned, and in 1799 John Adams sent Ellsworth as an +envoy to France to try to negotiate a treaty which should reëstablish +peace between the two countries. Ellsworth succeeded in his mission, but +the hardships of his journey injured his health, and he, in turn, +resigned in the autumn of 1800. Then Adams offered the Chief Justiceship +to Jay, but Jay would not return to office, and after this the President +selected his Secretary of State, John Marshall, one of the greatest of +the great Virginians, but one of Jefferson's most irreconcilable +enemies. Perhaps at no moment in his life did John Adams demonstrate his +legal genius more convincingly than in this remarkable nomination. Yet +it must be conceded that, in making John Marshall Chief Justice, John +Adams deliberately chose the man whom, of all his countrymen, he thought +to be the most formidable champion of those views which he himself +entertained, and which he conceived that he had been elected President +to advance. Nor was John Adams deceived. For thirty-four years John +Marshall labored ceaselessly to counteract Jefferson's constitutional +principles, while Jefferson always denounced the political partiality of +the federal courts, and above all the "rancorous hatred which Marshall +bears to the government of his country, and ... the cunning and +sophistry within which he is able to enshroud himself."[11] + +No one, at this day, would be disposed to dispute that the Constitution, +as a device to postpone war among the states, at least for a period, was +successful, and that, as I have already pointed out, during the +tentative interval which extended until Appomattox, the Supreme Court +served perhaps as well, in ordinary times, as an arbiter between the +states and the general government, as any which could have been +suggested. So much may be conceded, and yet it remains true, as the +record will show, that when it passed this point and entered into +factional strife, the Supreme Court somewhat lamentably failed, probably +injuring itself and popular respect for law, far more by its errors, +than it aided the Union by its political adjudications. + +Although John Marshall, by common consent, ranks as one of the greatest +and purest of Americans, yet even Marshall had human weaknesses, one of +which was a really unreasonable antipathy to Thomas Jefferson; an +antipathy which, I surmise, must, when Jefferson was inaugurated, have +verged upon contempt. At least Marshall did what cautious men seldom do +when they respect an adversary, he took the first opportunity to pick a +quarrel with a man who had the advantage of him in position. + +In the last days of his presidency John Adams appointed one William +Marbury a justice of the peace for the District of Columbia. The Senate +confirmed the appointment, and the President signed, and John Marshall, +as Secretary of State, sealed Marbury's commission; but in the hurry of +surrendering office the commission was not delivered, and Jefferson +found it in the State Department when he took possession. Resenting +violently these "midnight" appointments, as he called them, Jefferson +directed Mr. Madison, his Secretary of State, to withhold the +commission; and, at the next December term of the Supreme Court, Marbury +moved for a rule to Madison to show cause why he should not be commanded +to deliver to the plaintiff the property to which Marbury pretended to +be entitled. Of course Jefferson declined to appear before Marshall, +through his Secretary of State, and finally, in February, 1803, Marshall +gave judgment, in what was, without any doubt, the most anomalous +opinion he ever delivered, in that it violated all judicial conventions, +for, apparently, no object, save to humiliate a political opponent. + +Marshall had no intention of commanding Madison to surrender the +commission to Marbury. He was too adroit a politician for that. Marshall +knew that he could not compel Jefferson to obey such a writ against his +will, and that in issuing the order he would only bring himself and his +court into contempt. What he seems to have wished to do was to give +Jefferson a lesson in deportment. Accordingly, instead of dismissing +Marbury's suit upon any convenient pretext, as, according to legal +etiquette, he should have done if he had made up his mind to decide +against the plaintiff, and yet thought it inexpedient to explain his +view of the law, he began his opinion with a long and extra-judicial +homily, first on Marbury's title to ownership in the commission, and +then on civil liberty. Having affirmed that Marbury's right to his +office vested when the President had signed, and the Secretary of State +had sealed the instrument, he pointed out that withholding the property +thus vested was a violation of civil rights which could be examined in a +court of justice. Were it otherwise, the Chief Justice insisted, the +government of the United States could not be termed a government of laws +and not of men. + +All this elaborate introduction was in the nature of a solemn lecture by +the Chief Justice of the Supreme Court to the President of the United +States upon his faulty discharge of his official duties. Having eased +his mind on this head, Marshall went on, very dexterously indeed, but +also very palpably, to elude the consequences of his temerity. He +continued: The right of property being established, and the violation of +that right clear, it is plain that a wrong has been committed, and it +only remains to determine whether that wrong can be redressed under this +form of procedure. We are of opinion that it cannot, because Congress +has no constitutional power to confer upon the Supreme Court original +jurisdiction in this class of litigation. In the lower courts alone can +the relief prayed for be obtained. + +Of all the events of Marshall's life this controversy with Jefferson +seems to me the most equivocal, and it was a direct effect of a +constitutional system which has permitted the courts to become the +censor of the political departments of the government. Marshall, +probably, felt exasperated by Jefferson's virulence against these final +appointments made by John Adams, while Marshall was Secretary of State, +and for which he may have felt himself, in part, responsible. Possibly, +even, he may have taken some of Jefferson's strictures as aimed at +himself. At all events he went to extreme lengths in retaliation. He +might have dismissed the litigation in a few words by stating that, +whatever the abstract rights of the parties might have been, the Supreme +Court had no power to constrain the President in his official functions; +but he yielded to political animosity. Then, having taken a position +practically untenable, he had to find an avenue of retreat, and he found +it by asserting a supervisory jurisdiction over Congress, a step which, +even at that early period, was most hazardous.[12] + +In reality Jefferson's temper, far from being vindictive and +revolutionary, as his enemies believed, was rather gentle and timid, but +he would have been more than mortal had he endured such an insult in +silence. Nor could he, perhaps, have done so without risking the respect +of his followers. So he decided on reprisals, and a scheme was matured +among influential Virginians, like John Randolph and Senator William +Giles, to purge the Supreme Court of Federalists. Among the associate +justices of this court was Samuel Chase, a signer of the Declaration of +Independence and an able lawyer, but an arrogant and indiscreet +partisan. Chase had made himself obnoxious on various public occasions +and so was considered to be the best subject to impeach; but if they +succeeded with him the Jeffersonians proclaimed their intention of +removing all his brethren seriatim, including the chief offender of all, +John Marshall. One day in December, 1804, Senator Giles, of Virginia, +in a conversation which John Quincy Adams has reported in his diary, +discussed the issue at large, and that conversation is most apposite +now, since it shows how early the inevitable tendency was developed to +make judges who participate in political and social controversies +responsible to the popular will. The conversation is too long to extract +in full, but a few sentences will convey its purport:-- + +"He treated with the utmost contempt the idea of an _independent_ +judiciary.... And if the judges of the Supreme Court should dare, _as +they had done_, to declare an act of Congress unconstitutional, or to +send a mandamus to the Secretary of State, _as they had done_, it was +the undoubted right of the: House of Representatives to impeach them, +and of the Senate to remove them, for giving such opinions, however +honest or sincere they may have been in entertaining them. * * * And a +removal by impeachment was nothing more than a declaration by Congress +to this effect: You hold dangerous opinions, and if you are suffered to +carry them into effect you will work the destruction of the nation. _We +want your offices_, for the purpose of giving them to men who will fill +them better."[13] + +Jefferson, though he controlled a majority in the Senate, failed by a +narrow margin to obtain the two-thirds vote necessary to convict Chase. +Nevertheless, he accomplished his object. Chase never recovered his old +assurance, and Marshall never again committed a solecism in judicial +manners. On his side, after the impeachment, Jefferson showed +moderation. He might, if he had been malevolent, without doubt, have +obtained an act of Congress increasing the membership of the Supreme +Court enough to have put Marshall in a minority. Then by appointing men +like Giles he could have compelled Marshall to resign. He did nothing of +the kind. He spared the Supreme Court, which he might have overthrown, +and contented himself with waiting until time should give him the +opportunity to correct the political tendencies of a body of men whom he +sincerely regarded as a menace to, what he considered, popular +institutions. Thus the ebullition caused by Marshall's acrimony toward +Jefferson, because of Jefferson's strictures on the appointments made +by his predecessor subsided, leaving no very serious immediate mischief +behind, save the precedent of the nullification of an act of Congress by +the Supreme Court. That precedent, however, was followed by Marshall's +Democratic successor. And nothing can better illustrate the inherent +vice of the American constitutional system than that it should have been +possible, in 1853, to devise and afterward present to a tribunal, whose +primary purpose was to administer the municipal law, a set of facts for +adjudication, on purpose to force it to pass upon the validity of such a +statute as the Missouri Compromise, which had been enacted by Congress +in 1820, as a sort of treaty of peace between the North and South, and +whose object was the limitation of the spread of slavery. Whichever way +the Court decided, it must have fallen into opprobrium with one-half the +country. In fact, having been organized by the slaveholders to sustain +slavery, it decided against the North, and therefore lost repute with +the party destined to be victorious. I need not pause to criticise the +animus of the Court, nor yet the quality of the law which the Chief +Justice there laid down. It suffices that in the decade which preceded +hostilities no event, in all probability, so exasperated passions, and +so shook the faith of the people of the northern states in the +judiciary, as this decision. Faith, whether in the priest or the +magistrate, is of slow growth, and if once impaired is seldom fully +restored. I doubt whether the Supreme Court has ever recovered from the +shock it then received, and, considered from this point of view, the +careless attitude of the American people toward General Grant's +administration, when in 1871 it obtained the reversal of Hepburn _v_. +Griswold by appointments to the bench, assumes a sombre aspect. + +Of late some sensitiveness has been shown in regard to this transaction, +and a disposition has appeared to defend General Grant and his +Attorney-General against the charge of manipulating the membership of +the bench to suit their own views. At the outset, therefore, I wish to +disclaim any intention of entering into this discussion. To me it is +immaterial whether General Grant and Mr. Hoar did or did not nominate +judges with a view to obtaining a particular judgment. I am concerned +not with what men thought, but with what they did, and with the effect +of their acts at the moment, upon their fellow-citizens. + +Hepburn _v_. Griswold was decided in conference on November 27, 1869, +when eight justices were on the bench. On February 1, following, Justice +Grier resigned, and, on February 7, judgment was entered, the court then +being divided four to three, but Grier having been with the majority, +the vote in reality stood five to three. Two vacancies therefore existed +on February 7, one caused by the resignation of Grier, the other by an +act of Congress which had enlarged the court by one member, and which +had taken effect in the previous December. + +Chief Justice Chase held that the clause of the currency laws of 1862 +and 1863 which made depreciated paper a legal tender for preëxisting +debts was unconstitutional. No sooner had the judgment been recorded +than all the world perceived that, if both vacancies should be filled +with men who would uphold the acts, Hepburn _v_. Griswold might be +reversed by a majority of one. + +The Republican party had full control of the government and was united +in vehement support of the laws. On March 21, the second of the two new +judges received his commission, and precisely ten days afterward the +Attorney-General moved for a rehearing, taunting the Chief Justice with +having changed his opinion on this point, and intimating that the issue +was in reality political, and not judicial at all. + +In the December Term following Knox _v_. Lee was argued by the +Attorney-General, and, on May 1, 1871, judgment was entered reversing +Hepburn _v_. Griswold, both the new judges voting with the former +minority, thus creating the necessary majority of one. No one has ever +doubted that what General Grant did coincided with the drift of opinion, +and that the Republican party supported him without inquiring how he had +achieved success.[14] After this it is difficult to suppose that much +respect could remain among the American people for the sanctity of +judicial political decisions, or that a President, at the head of a +popular majority, would incur much odium for intervening to correct +them, as a party measure. + +The last example of judicial interference which I shall mention was the +nullification, in 1895, of a statute of Congress which imposed an income +tax. The states have since set this decision aside by constitutional +amendment, and I should suppose that few would now dispute that the +Court when it so decided made a serious political and social error. As +Mr. Justice White pointed out, the judges undertook to deprive the +people, in their corporate capacity, of a power conceded to Congress "by +universal consensus for one hundred years."[15] These words were used in +the first argument, but on the rehearing the present Chief Justice waxed +warm in remonstrating against the unfortunate position in which his +brethren placed the Court before the nation, protesting with almost +passionate earnestness against the reversal by half-a-dozen judges of +what had been the universally accepted legal, political, and economic +policy of the country solely in order that "invested wealth" might be +read "into the constitution" as a favored and protected class of +property. Mr. Justice White closed by saying that by this act the +Supreme Court had "deprived [the Government] of an inherent attribute of +its being."[16] I might go on into endless detail, but I apprehend +that these cases, which are the most important which have ever arisen on +this issue, suffice for my purpose.[17] I contend that no court can, +because of the nature of its being, effectively check a popular majority +acting through a coordinate legislative assembly, and I submit that the +precedents which I have cited prove this contention. The only result of +an attempt and failure is to bring courts of justice into odium or +contempt, and, in any event, to make them objects of attack by a +dominant social force in order to use them as an instrument, much as +Charles II used Jeffreys. + +The moment we consider the situation philosophically we perceive why +using a court to control a coordinate legislature must, nearly +inevitably, be sooner or later fatal to the court, if it asserts its +prerogative. A court to be a fit tribunal to administer the municipal +law impartially, or even relatively impartially, must be a small body of +men, holding by a permanent and secure tenure, guarded from all pressure +which may unduly influence them. Also they should be men of much +experience and learned in the precedents which should make the rules +which they apply stable and consistent. In short, a court should be +rigid and emotionless. It follows that it must be conservative, for its +members should long have passed that period of youth when the mind is +sensitive to new impressions. Were it otherwise, law would cease to be +cohesive. A legislature is nearly the antithesis of a court. It is +designed to reflect the passions of the voters, and the majority of +voters are apt to be young. Hence in periods of change, when alone +serious clashes between legislatures and courts are likely to occur, as +the social equilibrium shifts the legislature almost certainly will +reflect the rising, the court the sinking power. I take the Dred Scott +Case as an illustration. In 1857 the slaveholding interest had passed +the zenith of high fortune, and was hastening toward its decline. In the +elections of 1858 the Democratic party, which represented slavery, was +defeated. But the Supreme Court had been organized by Democrats who had +been dominant for many years, and it adhered, on the principle laid down +by Jeffreys, to the master which created it. + +Occasionally, it is true, a court has been constructed by a rising +energy, as was the Supreme Court in 1789, but then it is equally +tenacious to the instinct which created it. The history of the Supreme +Court is, in this point of view, eminently suggestive. The Federalist +instinct was constructive, not destructive, and accordingly Marshall's +fame rests on a series of constructive decisions like M'Culloch _v_. +Maryland, Cohens _v_. Virginia, and Gibbons _v_. Odgen. In these +decisions he either upheld actual national legislation, or else the +power of the nation to legislate. Conversely, whenever Marshall or his +successors have sought to obstruct social movement they have not +prospered. Marbury _v_. Madison is not an episode on which any admirer +of Marshall can linger with satisfaction. In theory it may be true, as +Hamilton contended, that, given the fact that a written constitution is +inevitable, a bench of judges is the best tribunal to interpret its +meaning, since the duty of the judge has ever been and is now to +interpret the meaning of written instruments; but it does not follow +from this premise that the judges who should exercise this office should +be the judges who administer the municipal law. In point of fact +experience has proved that, so far as Congress is concerned, the results +of judicial interference have been negative. And it would be well if in +other spheres of American constitutional development, judicial activity +had been always negative. Unfortunately, as I believe, it has extended +into the domain of legislation. I will take the Dred Scott Case once +more to illustrate my meaning. The North found it bad enough for the +Supreme Court to hold that, under the Constitution, Congress could not +exclude slavery from the national territory beyond a certain boundary +which had been fixed by compromise between the North and South. But the +North would have found it intolerable if the Court, while fully +conceding that Congress might so legislate, if the character of the +legislation commended itself to the judges, had held the Missouri +Compromise to be unconstitutional because they thought it +_unreasonable_. Yet this, in substance, is what our courts have done. +And this brings me to the consideration of American courts as +legislative chambers. + + +FOOTNOTES: + +[6] The relation of courts to legislation in European countries has been +pretty fully considered by Brinton Coxe, in _Judicial Power and +Constitutional Legislation_. + +[7] _Federalist_ No. LXXVIII. + +[8] _The Federalist_, No. LXXVIII. + +[9] _The Federalist_, No. LXXVIII. + +[10] Cohens _v_. Virginia, 6 Wheaton 415. + +[11] To Madison, Ford, 9, 275. + +[12] Marshall's constitutional doctrine was not universally accepted, +even in the courts of the northern states, until long afterward. As +eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as +1825, gave a very able dissenting opinion in opposition in Eakin _v_. +Raub, 12 S.&R., 344. + +[13] Memoirs, I, 322. + +[14] Hepburn _v._ Griswold, 8 Wallace 603. Decided in conference on Nov. +27, 1869, more than a month before Grier's resignation. Knox _v_. Lee, +12 Wallace 457. + +[15] 157 U.S. 608. + +[16] Pollock _v_. The Farmers' Loan & Trust Co., 158 U.S. 715. + +[17] In 1889 Mr. J.C. Bancroft Davis compiled a table of the acts of +Congress which up to that time had been held to be unconstitutional. It +is to be found in the Appendix to volume 131 U.S. Reports, page CCXXXV. +Mr. Davis has, however, omitted from his list the Dred Scott Case, +probably for the technical reason that, in 1857, when the cause was +decided, the Missouri Compromise had been repealed. Nevertheless, though +this is true, Tansy's decision hinged upon the invalidity of the law. + +Besides the statutes which I have mentioned in the test, the two most +important, I suppose, which have been annulled, have to me no little +interest. These are the Civil Rights Act of 1875, and the Employers' +Liability Act of 1906. The Civil Rights Act of 1875 grew rapidly +unpopular, and the decision which overturned it coincided with the +strong drift of opinion. The Civil Rights Cases were decided in October, +1883, and Mr. Cleveland was elected President in 1884. Doubtless the law +would have been repealed had the judiciary supported it. Therefore this +adjudication stood. + +On the other hand, the Employers' Liability Act of 1906 was held bad +because Congress undertook to deal with commerce conducted wholly within +the states, and therefore beyond the national jurisdiction. The Court, +consequently, in the Employers' Liability Cases, simply defined the +limits of sovereignty, as a Canadian Court might do; it did not question +the existence of sovereignty itself. In 1908 Congress passed a statute +free from this objection, and the Court, in the Second Employers' +Liability Cases, 223 U.S. 1, sustained the legislation in the most +thoroughgoing manner. I know not where to look for two better +illustrations of my theory. + + + + +CHAPTER III + +AMERICAN COURTS AS LEGISLATIVE CHAMBERS + + +In one point of view many of the greatest of the Federalists were +idealists. They seem sincerely to have believed that they could, by some +form of written words, constrain a people to be honest against their +will, and almost as soon as the new government went into operation they +tested these beliefs by experiment, with very indifferent success. I +take it that jurists like Jay and Marshall held it to be axiomatic that +rules of conduct should be laid down by them which would be applicable +to rich and poor, great and small, alike, and that courts could maintain +such rules against all pressure. Possibly such principles may be +enforced against individuals, but they cannot be enforced against +communities, and it was here that the Federalist philosophy collapsed, +as Hamilton, at least partly, foresaw that it must. + +Sovereigns have always enjoyed immunity from suit by private persons, +unless they have been pleased to assent thereto, not because it is less +wrongful for a sovereign than for an individual to cheat, but because +the sovereign cannot be arrested and the individual can. With the +Declaration of Independence the thirteen colonies became sovereigns. +Petty sovereigns it is true, and singly contemptible in physical force +as against most foreign nations, but none the less tenacious of the +attributes of sovereignty, and especially of the attribute which enabled +them to repudiate their debts. Jay, Marshall, and their like, thought +that they could impose the same moral standard upon the states as upon +private persons; they were unable to do so, but in making the attempt +they involved the American judicial system in a maze of difficulties +whose gravity, I fear, can hardly be exaggerated. Before entering upon +this history, however, I must say a word touching the nature of our law. + +Municipal law, to be satisfactory, should be a body of abstract +principles capable of being applied impartially to all relevant facts, +just as Marshall and Jay held it to be. Where exceptions begin, equality +before the law ends, as I have tried to show by the story of King David +and Uriah, and therefore the great effort of civilization has been to +remove judges from the possibility of being subjected to a temptation, +or to a pressure, which may deflect them from impartiality as between +suitors. In modern civilization, especially, nothing is so fatal to the +principle of order as inequality in the dispensation of justice, and it +would have been reasonable to suppose that Americans, beyond all others, +would have been alive to this teaching of experience, and have +studiously withdrawn their bench from politics. In fact they have +ignored it, and instead they have set their judiciary at the focus of +conflicting forces. The result has been the more unfortunate as the +English system of jurisprudence is ill calculated to bear the strain, it +being inflexible. In theory the English law moves logically from +precedent to precedent, the judge originating nothing, only elaborating +ideas which he has received from a predecessor, and which are binding on +him. If the line of precedents leads to wrongful conclusions, the +legislature must intervene with a statute rectifying the wrong. The +Romans, who were gifted with a higher legal genius than we, managed +better. The praetor, by his edict, suppressed inconvenient precedents, +and hence the Romans maintained flexibility in their municipal law +without falling into confusion. We have nothing to correspond to the +praetor. + +Thus the English system of binding precedents is troublesome enough in a +civilization in chronic and violent flux like modern civilization, even +when applied to ordinary municipal law which may be changed at will by +legislation, but it brings society almost to a stand when applied to the +most vital functions of government, with no means at hand to obtain a +corrective. For the court of last resort having once declared the +meaning of a clause of the Constitution, that meaning remains fixed +forever, unless the court either reverses itself, which is a disaster, +or the Constitution can be amended by the states, which is not only +difficult, but which, even if it be possible, entails years of delay. + +Yet pressing emergencies arise, emergencies in which a settlement of +some kind must almost necessarily be reached somewhat rapidly to avert +very serious disorders, and it has been under this tension, as I +understand American constitutional development, that our courts have +resorted to legislation. Nor is it fair for us to measure the sagacity +of our great jurists by the standard of modern experience. They lived +before the acceleration of movement by electricity and steam. They could +not foresee the rapidity and the profundity of the changes which were +imminent. Hence it was that, in the spirit of great lawyers, who were +also possibly men tinged with a certain enthusiasm for the ideal, they +began their work by ruling on the powers and limitations of sovereignty, +as if they were ruling on the necessity of honest intent in dealings +with one's neighbor. + +In 1789 General Washington is said to have offered John Jay his choice +of offices under the new government, and Jay chose the chief +justiceship, because there he thought he could make his influence felt +most widely. If so he had his wish, and very shortly met with +disappointment. In the August Term of 1792, one Chisholm, a citizen of +South Carolina, sued the State of Georgia for a debt. Georgia declined +to appear, and in February, 1793, Jay, in an elaborate opinion, gave +judgment for Chisholm. Jay was followed by his associates with the +exception of Iredell, J., of North Carolina. Forthwith a ferment began, +and in the very next session of Congress an amendment to the +Constitution was proposed to make such suits impossible. In January, +1798, five years after the case was argued, this amendment was declared +to be adopted, but meanwhile Jay had resigned to become governor of New +York. In December, 1800, he was again offered the chief justiceship by +John Adams, on the resignation of Oliver Ellsworth, but Jay resolutely +declined. I have often wondered whether Jay's mortification at having +his only important constitutional decision summarily condemned by the +people may not have given him a distaste for judicial life. + +The Federalist attempt to enforce on the states a positive rule of +economic morality, therefore, collapsed at once, but it still remained +possible to approach the same problem from its negative side, through +the clause of the Constitution which forbade any state to impair the +validity of contracts, and Marshall took up this aspect of the task +where Jay left it. In Marshall's mind his work was simple. He had only +to determine the nature of a contract, and the rest followed +automatically. All contracts were to be held sacred. Their greater or +less importance was immaterial. + +In 1810 Marshall expounded this general principle in Fletcher _v_. +Peck.[18] "When ... a law is in its nature a contract ... a repeal of +the law cannot devest" rights which have vested under it. A couple of +years later he applied his principle to the extreme case of an unlimited +remission of taxation.[19] The State of New Jersey had granted an +exemption from taxation to lands ceded to certain Indians. Marshall held +that this contract ran with the land, and inured to the benefit of +grantees from the Indians. If the state cared to resume its power of +taxation, it must buy the grant back, and the citizens of New Jersey +must pay for their improvidence. + +Seven years later, in 1810, Marshall may, perhaps, be said to have +reached the culmination of his career, for then he carried his moral +standard to a breaking strain. But, though his theory broke down, +perhaps the most striking evidence of his wonderful intellectual +superiority is that he convinced the Democrat, Joseph Story,--a man who +had been nominated by Madison to oppose him, and of undoubted strength +of character,--of the soundness of his thesis. In 1769 King George III +incorporated certain Trustees of Dartmouth College. The charter was +accepted and both real and personal property were thereupon conveyed to +this corporate body, in trust for educational purposes. In 1816 the +legislature of New Hampshire reorganized the board of trustees against +their will. If the incorporation amounted to a contract, the Court was +clear that this statute impaired it; therefore the only really debatable +issue was whether the grant of a charter by the king amounted to a +contract by him, with his subjects to whom he granted it. After +prolonged consideration Marshall concluded that it did, and I conceive +that, in the eye of history, he was right. Throughout the Middle Ages +corporate privileges of all kinds, but especially municipal corporate +privileges, had been subjects of purchase and sale, and indeed the +mediaeval social system rested on such contracts. So much was this the +case that the right to return members of Parliament from incorporated +boroughs was, as Lord Eldon pointed out in the debates on the Reform +Bill, as much private property "as any of your lordships'" titles and +peerages. + +It was here that Marshall faltered. He felt that the public would not +support him if he held that states could not alter town and county +charters, so he arbitrarily split corporations in halves, protecting +only those which handled exclusively private funds, and abandoning +"instruments of government," as he called them, to the mercy of +legislative assemblies. + +Toward 1832 it became convenient for middle class Englishmen to +confiscate most of the property which the aristocracy had invested in +parliamentary boroughs, and this social revolution was effected without +straining the judicial system, because of the supremacy of Parliament. +In America, at about the same time, it became, in like manner, +convenient to confiscate numerous equally well-vested rights, because, +to have compensated the owners would have entailed a considerable +sacrifice which neither the public nor the promoters of new enterprises +were willing to make. The same end was reached in America as in England, +in spite of Chief Justice Marshall and the Dartmouth College Case, only +in America it was attained by a legal somerset which has disordered the +course of justice ever since. + +In 1697 King William III incorporated Trinity Church in the City of New +York, confirming to the society the possession of a parcel of land, +adjoining the church, to be used as a churchyard for the burial of the +dead. In 1823 the government of New York prohibited interments within +the city limits, thus closing the churchyard for the purposes for which +it had been granted. As compensation was refused, it appeared to be a +clear case of confiscation, and Trinity resisted. In the teeth of recent +precedents the Supreme Court of New York decided that, under the _Police +Power_, the legislature of New York might authorize this sort of +appropriation of private property for sanitary purposes, without paying +the owners for any loss they might thereby sustain.[20] + +The court thus simply dispensed the legislature from obedience to the +law, saying in effect, "although the Constitution forbids impairing +contracts, and although this is a contract which you have impaired, yet, +in our discretion, we suspend the operation of the Constitution, in this +instance, by calling your act an exercise of a power unknown to the +framers of the Constitution." I cannot doubt that Marshall would have +flouted this theory had he lived to pass upon it, but Marshall died in +1835, and the Charles River Bridge Case, in which this question was +first presented to the Supreme Court of the United States, did not come +up until 1837. Then Joseph Story, who remained as the representative of +Marshall's philosophy upon the bench, vehemently protested against the +latitudinarianism of Chief Justice Taney and his associates, but without +producing the slightest effect. + +In 1785 the Massachusetts legislature chartered the Charles River Bridge +Company to build a bridge between Boston and Charlestown, authorizing +it, by way of consideration, to collect tolls for forty years. In 1792 +the franchise was extended to seventy years, when the bridge was to +revert to the Commonwealth. In 1828 the legislature chartered the Warren +Bridge Company, expressly to build a bridge parallel to and practically +adjoining the Charles River Bridge, the Warren Bridge to become a free +bridge after six years. The purpose, of course, was to accelerate +movement by ruining the Charles River Bridge Company. The Charles River +Bridge Company sought to restrain the building of the Warren Bridge as a +breach of contract by the State, but failed to obtain relief in the +state courts, and before the cause could be argued at Washington the +Warren Bridge had become free and had destroyed the value of the Charles +River Bridge, though its franchise had still twenty years to run. As +Story pointed out, no one denied that the charter of the Charles River +Bridge Company was a contract, and, as he insisted, it is only common +sense as well as common justice and elementary law, that contracts of +this character should be reasonably interpreted so far as quiet +enjoyment of the consideration granted is concerned; but all this +availed nothing. The gist of the opposing argument is contained in a +single sentence in the opinion of the Chief Justice who spoke for the +majority of the court: "The millions of property which have been +invested in railroads and canals, upon lines of travel which had been +before occupied by turnpike corporations, will be put in jeopardy" if +this doctrine is to prevail.[21] + +The effect of the adoption by the Supreme Court of the United States of +the New York theory of the Police Power was to vest in the judiciary, by +the use of this catch-word, an almost unparalleled prerogative. They +assumed a supreme function which can only be compared to the Dispensing +Power claimed by the Stuarts, or to the authority which, according to +the Council of Constance, inheres in the Church, to "grant indulgences +for reasonable causes." I suppose nothing in modern judicial history has +ever resembled this assumption; and yet, when we examine it, we find it +to be not only the logical, but the inevitable, effect of those +mechanical causes which constrain mankind to move along the lines of +least resistance. + +Marshall, in a series of decisions, laid down a general principle which +had been proved to be sound when applied by ordinary courts, dealing +with ordinary social forces, and operating under the corrective power of +either a legislature or a praetor, but which had a different aspect +under the American constitutional system. He held that the fundamental +law, embodied in the Constitution, commanded that all contracts should +be sacred. Therefore he, as a judge, had but two questions to resolve: +First, whether, in the case before him, a contract had been proved to +exist. Second, admitting that a contract had been proved, whether it had +also been shown to have been impaired. + +Within ten years after these decisions it had been found in practice +that public opinion would not sustain so rigid an administration of the +law. No legislature could intervene, and a pressure was brought to bear +which the judges could not withstand; therefore, the Court yielded, +declaring that if impairing a contract were, on the whole, for the +public welfare, the Constitution, as Marshall interpreted it, should be +suspended in favor of the legislation which impaired it. They called +this suspension the operation of the "Police Power." It followed, as the +"Police Power" could only come into operation at the discretion of the +Court, that, therefore, within the limits of judicial discretion, +confiscation, however arbitrary and to whatever extent, might go on. In +the energetic language of the Supreme Court of Maine: "This duty and +consequent power override all statute or contract exemptions. The state +cannot free any person or corporation from subjection to this power. +All personal, as well as property rights must be held subject to the +Police Power of the state."[22] + +Once the theory of the Police Power was established it became desirable +to define the limits of judicial discretion, but that proved to be +impossible. It could not be determined in advance by abstract reasoning. +Hence, as each litigation arose, the judges could follow no rule but the +rule of common sense, and the Police Power, translated into plain +English, presently came to signify whatever, at the moment, the judges +happened to think reasonable. Consequently, they began guessing at the +drift of public opinion, as it percolated to them through the medium of +their education and prejudices. Sometimes they guessed right and +sometimes wrong, and when they guessed wrong they were cast aside, as +appeared dramatically enough in the temperance agitation. + +Up to about the middle of the last century the lawfulness of the liquor +business had been unquestioned in the United States, and money had been +invested as freely in it as in any other legitimate enterprise; but, as +the temperance agitation swept over the country, in obedience to the +impulsion given by science to the study of hygiene, dealing in liquor +came to be condemned as a crime. Presently legislatures began to pass +statutes to confiscate, more or less completely, this kind of property, +and sufferers brought their cases before the courts to have the +constitutionality of the acts tested, under the provisions which existed +in all state constitutions, forbidding the taking, by the public, of +private property without compensation, or without due process of law. +Such a provision existed hi the constitution of the State of New York, +adopted in 1846, and it was to invoke the protection of this clause that +one Wynehamer, who had been indicted in 1855, carried his case to the +Court of Appeals in the year 1856. In that cause Mr. Justice Comstock, +who was one of the ablest jurists New York ever produced, gave an +opinion which is a model of judicial' reasoning. He showed conclusively +the absurdity of constitutional restrictions, if due process of law may +be held to mean the enactment of the very statute drawn to work +confiscation.[23] This decision, which represented the profoundest +convictions of men of the calibre of Comstock and Denio, deserves to +rank with Marshall's effort in the Dartmouth College Case. In both +instances the tribunal exerted itself to carry out Hamilton's principle +of judicial duty by exercising its _judgment_ and not its _will_. In +other words, the judges propounded a general rule and then simply +determined whether the set of facts presented to them fell within that +rule. They resolutely declined to legislate by entering upon a +consideration of the soundness or reasonableness of the policy which +underlay the action of the legislature. In the one case as in the other +the effort was unavailing, as Jefferson prophesied that it would be. I +have told of Marshall's overthrow in the Charles River Bridge Case, and +in 1887, after controversies of this category had begun to come before +the Supreme Court of the United States under the Fourteenth Amendment, +Mr. Justice Harlan swept Mr. Justice Comstock aside by quietly ignoring +an argument which was unanswerable.[24] The same series of phenomena +have appeared in regard to laws confiscating property invested in +lotteries, when opinion turned against lotteries, or in occupations +supposed to be unsanitary, as in the celebrated case of the taxing out +of existence of the rendering establishment which had been erected as a +public benefit to relieve the City of Chicago of its offal.[25] In fine, +whenever pressure has reached a given intensity, on one pretext or +another, courts have enforced or dispensed with constitutional +limitations with quite as much facility as have legislatures, and for +the same reasons. The only difference has been that the pressure which +has operated most directly upon courts has not always been the pressure +which has swayed legislatures, though sometimes both influences have +combined. For example, during the Civil War, the courts sanctioned +everything the popular majority demanded under the pretext of the War +Power, as in peace they have sanctioned confiscations for certain +popular purposes, under the name of the Police Power. But then, courts +have always been sensitive to financial influences, and if they have +been flexible in permitting popular confiscation when the path of least +resistance has lain that way, they have gone quite as far in the +reverse direction when the amount of capital threatened has been large +enough to be with them a countervailing force. + +As the federal Constitution originally contained no restriction upon the +states touching the confiscation of the property of their own citizens, +provided contracts were not impaired, it was only in 1868, by the +passage of the Fourteenth Amendment, that the Supreme Court of the +United States acquired the possibility of becoming the censor of state +legislation in such matters. Nor did the Supreme Court accept this +burden very willingly or in haste. For a number of years it labored to +confine its function to defining the limits of the Police Power, +guarding itself from the responsibility of passing upon the +"reasonableness" with which that power was used. It was only by somewhat +slow degrees, as the value of the threatened property grew to be vast, +that the Court was deflected from this conservative course into +effective legislation. The first prayers for relief came from the +Southern states, who were still groaning under reconstruction +governments; but as the Southern whites were then rather poor, their +complaints were neglected. The first very famous cause of this category +is known as the Slaughter House Cases. In 1869 the Carpet Bag government +of Louisiana conceived the plan of confiscating most of the property of +the butchers who slaughtered for New Orleans, within a district about as +large as the State of Rhode Island. The Fourteenth Amendment forbade +states to deprive any person of life, liberty, or property, without due +process of law, and the butchers of New Orleans prayed for protection, +alleging that the manner in which their property had been taken was +utterly lawless. But the Supreme Court declined to interfere, explaining +that the Fourteenth Amendment had been contrived to protect the +emancipated slaves, and not to make the federal judiciary "a perpetual +censor upon all legislation of the states, on the civil rights of their +own citizens, with authority to nullify such as it did not approve."[26] + +Although, even at that relatively early day, this conservatism met with +strong opposition within the Court itself, the pressure of vested wealth +did not gather enough momentum to overcome the inertia of the bench for +nearly another generation. It was the concentration of capital in +monopoly, and the consequent effort by the public to regulate monopoly +prices, which created the stress which changed the legal equilibrium. +The modern American monopoly seems first to have generated that amount +of friction, which habitually finds vent in a great litigation, about +the year 1870; but only some years later did the states enter upon a +determined policy of regulating monopoly prices by law, with the +establishment by the Illinois legislature of a tariff for the Chicago +elevators. The elevator companies resisted, on the ground that +regulation of prices in private business was equivalent to confiscation, +and so in 1876 the Supreme Court was dragged into this fiercest of +controversies, thereby becoming subject to a stress to which no +judiciary can safely be exposed. Obviously two questions were presented +for adjudication: The first, which by courtesy might be termed legal, +was whether the fixing of prices by statute was a prerogative which a +state legislature might constitutionally exercise at all; the second, +which was purely political, was whether, admitting that, in the +abstract, such a power could be exercised by the state, Illinois had, +in this particular case, behaved _reasonably_. The Supreme Court made a +conscientious effort to adhere to the theory of Hamilton, that it +should, in emergencies like this, use its _judgment_ only, and not its +_will_; that it should lay down a rule, not vote on the wisdom of a +policy. So the judges decided that, from time immemorial, the fixing of +prices in certain trades and occupations had been a legislative +function, which they supposed might be classified as a branch of the +Police Power, but they declared that with this expression of opinion +their jurisdiction ended. When it came to asking them to criticise the +propriety of legislation, it was, in substance, proposing that they +should substitute their _will_ for the _will_ of the representatives of +the people, which was impossible. I well remember the stir made by the +case of Munn _v_. Illinois.[27] + +Both in and out of the legal profession, those in harmony with the great +vested interests complained that the Court had shirked its duty. But +these complaints soon ceased, for a movement was in progress which +swept, for the moment, all before it. The great aggregations of capital, +which had been accumulating ever since the Charles River Bridge Case, +not long after Munn _v._ Illinois attained to a point at which they +began to grasp many important prerogatives of sovereignty, and to +impose, what was tantamount to, arbitrary taxation upon a large scale. +The crucial trial of strength came on the contest for control of the +railways, and in that contest concentrated capital prevailed. The +Supreme Court reversed its attitude, and undertook to do that which it +had solemnly protested it could not do. It began to censor legislation +in the interest of the strongest force for the time being, that force +being actually financial. By the year 1800 the railway interest had +expanded prodigiously. Between 1876 and 1890 the investment in railways +had far more than doubled, and, during the last five years of this +period, the increment had been at an average of about $450,000,000 +annually. At this point the majority of the court yielded, as ordinary +political chambers always must yield, to extraordinary pressure. Mr. +Justice Bradley, however, was not an ordinary man. He was, on the +contrary, one of the ablest and strongest lawyers who sat on the federal +bench during the last half of the nineteenth century; and Bradley, like +Story before him, remonstrated against turning the bench of magistrates, +to which he belonged, from a tribunal which should propound general +rules applicable to all material facts, into a jury to find verdicts on +the reasonableness of the votes of representative assemblies. The +legislature of Minnesota, in 1887, passed a statute to regulate railway +rates, and provided that the findings of the commission which it erected +to fix those rates should be final. The Chicago, Milwaukee & St. Paul +Railway contended that this statute was unconstitutional, because it was +unreasonable, and the majority of the Court sustained their +contention.[28] Justices Bradley, Gray, and Lamar dissented, and Bradley +on this occasion delivered an opinion, from which I shall quote a +paragraph or two, since the argument appears to me conclusive, not only +from the point of view of law, but of political expediency and of common +sense:-- + +"I cannot agree to the decision of the court in this case. It +practically overrules Munn _v._ Illinois.... The governing principle of +those cases was that the regulation and settlement of the fares of +railroads and other public accommodations is a legislative prerogative, +and not a judicial one. This is a principle which I regard as of great +importance.... + +"But it is said that all charges should be reasonable, and that none but +reasonable charges can be exacted; and it is urged that what is a +reasonable charge is a judicial question. On the contrary, it is +preëminently a legislative one, involving considerations of policy as +well as of remuneration.... By the decision now made we declare, in +effect, that the judiciary, and not the legislature, is the final +arbiter in the regulation of fares and freights of railroads.... It is +an assumption of authority on the part of the judiciary which, ... it +has no right to make. The assertion of jurisdiction by this court makes +it the duty of every court of general jurisdiction, state or federal, to +entertain complaints [of this nature], for all courts are bound by the +Constitution of the United States, the same as we are." + +There is little to add to these words. When the Supreme Court thus +undertook to determine the reasonableness of legislation it assumed, +under a somewhat thin disguise, the position of an upper chamber, which, +though it could not originate, could absolutely veto most statutes +touching the use or protection of property, for the administration of +modern American society now hinges on this doctrine of judicial +dispensation under the Police Power. Whether it be a regulation of rates +and prices, of hours of labor, of height of buildings, of municipal +distribution of charity, of flooding a cranberry bog, or of prescribing +to sleeping-car porters duties regarding the lowering of upper +berths,--in questions great and small, the courts vote upon the +reasonableness of the use of the Police Power, like any old-fashioned +town meeting. There is no rule of law involved. There is only opinion or +prejudice, or pecuniary interest. The judges admit frankly that this is +so. They avow that they try to weigh public opinion, as well as they +can, and then vote. In 1911 Mr. Justice Holmes first explained that the +Police Power extended to all great public needs, and then went on to +observe that this Police Power, or extraordinary prerogative, might be +put forth by legislatures "in aid of what is sanctioned by usage, or +held by ... preponderant opinion to be ... necessary to the public +welfare."[29] + +A representative chamber reaches its conclusions touching "preponderant +opinion" by a simple process, but the influences which sway courts are +obscurer,--often, probably, beyond the sphere of the consciousness of +the judges themselves. Nor is this the worst; for, as I have already +explained, the very constitution of a court, if it be a court calculated +to do its legitimate work upon a lofty level, precludes it from keeping +pace with the movement in science and the arts. Necessarily it lags some +years behind. And this tendency, which is a benefit in the dispensation +of justice as between private litigants, becomes a menace when courts +are involved in politics. A long line of sinister precedents crowd +unbidden upon the mind. The Court of King's Bench, when it held Hampden +to be liable for the Ship Money, draped the scaffold for Charles I. The +Parliament of Paris, when it denounced Turgot's edict touching the +corvée, threw wide the gate by which the aristocracy of France passed to +the guillotine. The ruling of the Superior Court of the Province of +Massachusetts Bay, in the case of the Writs of Assistance, presaged the +American Revolution; and the Dred Scott decision was the prelude to the +Civil War. + +The capital essential of justice is that, under like conditions, all +should fare alike. The magistrate should be no respecter of persons. The +vice of our system of judicial dispensation is that it discriminates +among suitors in proportion to their power of resistance. This is so +because, under adequate pressure, our courts yield along the path of +least resistance. I should not suppose that any man could calmly turn +over the pages of the recent volumes of the reports of the Supreme Court +of the United States and not rise from the perusal convinced that the +rich and the poor, the strong and the weak, do not receive a common +measure of justice before that judgment seat. Disregarding the +discrimination which is always apparent against those who are unpopular, +or who suffer under special opprobrium, as do liquor dealers, owners of +lotteries, and the like,[30] I will take, nearly at random, a couple of +examples of rate regulation, where tenderness has been shown property in +something approaching to a mathematical ratio to the amount involved. + +In April, 1894, a record was produced before the Supreme Court which +showed that the State of North Dakota had in 1891 established rates for +elevating and storing grain, which rates the defendant, named Brass, who +owned a small elevator, alleged to be, to him in particular, _utterly_ +ruinous, and to be in general unreasonable. He averred that he used his +elevator for the storage of his own grain, that it cost about $3000, +that he had no monopoly, as there were many hundred such elevators in +the state, and, as land fit for the purpose of building elevators was +plenty and cheap, that any man could build an elevator in the town in +which he lived, as well as he; that the rates he charged were +reasonable, and that, were he compelled to receive grain generally at +the rates fixed by the statute, he could not store his own grain. All +these facts were admitted by demurrer, and Brass contended that if any +man's property were ever to be held to be appropriated by the public +without compensation, and under no form of law at all save a predatory +statute, it should be his; but the Supreme Court voted the Dakota +statute to be a reasonable exercise of the Police Power,[31] and +dismissed Brass to his fate. + +The converse case is a very famous one known as Smyth _v._ Ames,[32] +decided four years later, in 1898. In that case it appeared that the +State of Nebraska had, in 1893, reduced freight rates within the state +about twenty-nine per cent, in order to bring them into some sort of +relation to the rates charged in the adjoining State of Iowa, which were +calculated to be forty per cent lower than the Nebraska rates. Several +of the most opulent and powerful corporations of the Union were affected +by this law, among others the exceedingly prosperous and influential +Chicago, Burlington & Quincy Railway. No one pretended that, were the +law to be enforced, the total revenues of the Burlington would be +seriously impaired, nor was it even clear that, were the estimate of +reduction, revenue, and cost confined altogether to the commerce carried +on within the limits of the State of Nebraska, leaving interstate +commerce out of consideration, a loss would be suffered during the +following year. Trade might increase with cheaper rates, or economies +might be made by the company, or both causes and many others of +increased earnings might combine. Corporation counsel, however, argued +that, were the principle of the statute admitted, and should all the +states through which the line passed do the like, ultimately a point +might be reached at which the railway would be unable to maintain, even +approximately, its dividend of eight per cent, and that the creation of +such a possibility was conceding the power of confiscation, and, +therefore, an unreasonable exercise of the Police Power, by the State of +Nebraska. With this argument the Supreme Court concurred. They held the +Nebraska statute to be unreasonable. Very possibly it may have been +unsound legislation, yet it is noteworthy that within three years after +this decision Mr. Hill bought the Chicago, Burlington & Quincy, at the +rate of $200 for every share of stock of the par value of $100, thus +fixing forever, on the community tributary to the road, the burden of +paying a revenue on just double the value of all the stock which it had +been found necessary to issue to build the highway. Even at this price +Mr. Hill is supposed to have made a brilliant bargain. + +This brings me to the heart of my theorem. Ever since Hamilton's time, +it has been assumed as axiomatic, by conservative Americans, that courts +whose function is to expound a written constitution can and do act as a +"barrier to the encroachments and oppressions of the representative +body."[33] I apprehend that courts can perform no such office and that +in assuming attributes beyond the limitations of their being they, as +history has abundantly proved, not only fail in their object, but shake +the foundations of authority, and immolate themselves. Hitherto I have +confined myself to adducing historical evidence to prove that American +courts have, as a whole, been gifted with so little political sagacity +that their interference with legislation, on behalf of particular +suitors, has, in the end, been a danger rather than a protection to +those suitors, because of the animosity which it has engendered. I shall +now go further. For the sake of argument I am willing to admit that the +courts, in the exercise of the dispensing prerogative, called the +Police Power, have always acted wisely, so much so that every such +decree which they have issued may be triumphantly defended upon +economic, moral, or social grounds. Yet, assuming this to be true, +though I think I have shown it to be untrue, the assumption only +strengthens my contention, that our courts have ceased to be true +courts, and are converted into legislative chambers, thereby promising +shortly to become, if they are not already, a menace to order. I take it +to be clear that the function of a legislature is to embody the will of +the dominant social force, for the time being, in a political policy +explained by statutes, and when that policy has reached a certain stage +of development, to cause it to be digested, together with the judicial +decisions relevant to it, in a code. This process of correlation is the +highest triumph of the jurist, and it was by their easy supremacy in +this field of thought, that Roman lawyers chiefly showed their +preeminence as compared with modern lawyers. Still, while admitting this +superiority, it is probably true that the Romans owed much of their +success in codification to the greater permanence of the Roman +legislative tenure of office, and, therefore, stability of +policy,--phenomena which were both probably effects of a slower social +movement among the ancients. The Romans, therefore, had less need than +we of a permanent judiciary to counteract the disintegrating tendency of +redundant legislation; _a fortiori_, of course, they had still less to +isolate the judiciary from political onslaughts which might cause +justice to become a series of exceptions to general principles, rather +than a code of unvarying rules. + +It is precisely because they are, and are intended to be, arenas of +political combat, that legislatures cannot be trustworthy courts, and it +was because this fact was notorious that the founders of this government +tried to separate the legislative from the judicial function, and to +make this separation the foundation of the new republic. They failed, as +I conceive, not because they made their legislatures courts, but +because, under the system they devised, their courts have become +legislatures. A disease, perhaps, the more insidious of the two. +Insidious because it undermines, order, while legislative murder and +confiscation induce reaction. + +If a legislative chamber would act as a court, the first necessity is to +eliminate its legislative character. For example, the House of Lords in +England has long discharged the duties of a tribunal of last resort for +the empire, and with general approbation, but only because, when sitting +as a court, the law lords sit alone. Politicians and political +influences are excluded. Where political influences enter disaster +follows. Hence the infamous renown of political decisions in legal +controversies, such as bills of attainder and _ex post facto_ laws, or +special legislation to satisfy claims which could not be defended before +legitimate courts, or the scandals always attending the trial of +election petitions. The object of true courts is to shield the public +from these and kindred abuses. + +In primitive communities courts are erected to defend the weak against +the strong, by correlating local customs in such wise that some general +principle can be deduced which shall protect the civil rights of those +who cannot protect themselves, against the arbitrary exactions of +powerful neighbors. In no community can every person have equal civil +rights. That is impossible. Civil rights must vary according to status. +But such rights as any person may have, those the courts are bound to +guard indifferently. If the courts do not perform this, their first and +most sacred duty, I apprehend that order cannot be permanently +maintained, for this is equality before the law; and equality before the +law is the cornerstone of order in every modern state. + +I conceive that the lawyers of the age of Washington were the ablest +that America has ever produced. No men ever understood the principle of +equality before the law more thoroughly than they, and after the +establishment of this government a long series of great and upright +magistrates strove, as I have shown, to carry this principle into +effect. Jay and Marshall, Story and Bradley, and many, many more, +struggled, protested, and failed. Failed, as I believe, through no fault +of their own, but because fortune had placed them in a position +untenable for the judge. When plunged in the vortex of politics, courts +must waver as do legislatures, and nothing is to me more painful than to +watch the process of deterioration by which our judges lose the instinct +which should warn them to shun legislation as a breach of trust, and to +cleave to those general principles which permit of no exceptions. To +illustrate my meaning I shall refer to but one litigation, but that one +is so extraordinary that I must deal with it in detail. + +In 1890 the dread of the enhancement of prices by monopoly, as the +Supreme Court itself has explained, caused Congress to pass the famous +Sherman Act, which prohibited indiscriminately all monopolies or +restraints of trade. Presently the government brought a bill to dissolve +an obnoxious railway pool, called the Trans-Missouri Freight +Association, and in 1896 the case came up for adjudication. I have +nothing to say touching the policy involved. I am only concerned with a +series of phenomena, developed through several years, as effects of +pressure acting upon a judiciary, exposed as the judiciary, under our +system, is exposed. + +The Trans-Missouri Case was argued on December 8, 1896, very elaborately +and by the most eminent counsel. After long consideration, and profound +reflection, Mr. Justice Peckham, speaking for the majority of the +tribunal, laid down a general principle in conformity to the legislative +will, precisely as Marshall had laid down a general principle in the +Dartmouth College Case, or Story in the Charles River Bridge Case, or +Waite in Munn _v_. Illinois, or Bradley in the Minnesota Rate Case. Then +the process of agitation immediately began. In the words of Mr. Justice +Harlan, fifteen years later: "But those who were in combinations that +were illegal did not despair. They at once set up the baseless claim +that the decision of 1896 disturbed the 'business interests of the +country,' and let it be known that they would never be content until the +rule was established that would permit interstate commerce to be +subjected to _reasonable_ restraints."[34] + +Other great causes, involving the same issue, were tried, the question +was repeatedly reargued, but the Supreme Court tenaciously adhered to +its general principle, that, under the Sherman Act, _all_ restraints of +trade, or monopolies, were unlawful, and, therefore, the Court had but +two matters before it, first to define a restraint of trade or a +monopoly, second to determine whether the particular combination +complained of fell within that definition. No discretion was permitted. +Judicial duty ended there. + +The Court being found to be inflexible, recourse was had to Congress, +and a bill in the form of an amendment to the Sherman Act was brought +into the Senate authorizing, in substance, those who felt unsafe under +the law, to apply to certain government officials, to be permitted to +produce evidence of the reasonable methods they employed, and, if the +evidence were satisfactory, to receive, what was tantamount to, an +indulgence. The subject thus reopened, the Senate Committee on the +Judiciary went into the whole question of monopoly anew, and in 1909 +Senator Nelson presented an exhaustive report against the proposed +relaxation. Thereupon the Senate indefinitely postponed further +consideration of the amendment. The chief reasons given by Senator +Nelson were summed up in a single sentence: "The defence of reasonable +restraint would be made in every case and there would be as many +different rules of reasonableness as cases, courts, and juries.... To +amend the anti-trust act, as suggested by this bill, would be to +entirely emasculate it, and for all practical purposes render it +nugatory as a remedial statute.... The act as it exists is clear, +comprehensive, certain and highly remedial. It practically covers the +field of federal jurisdiction, and is in every respect a model law. To +destroy or undermine it at the present juncture, ... would be a +calamity. + +"In view of the foregoing, your committee recommend the indefinite +postponement of the bill."[35] + +And so the Senate did indefinitely postpone the bill. + +Matters stood thus when the government brought process to dissolve the +Standard Oil Company, as an unlawful combination. The cause was decided +on May 15, 1911, the Chief Justice speaking for the majority of the +bench, in one of the most suggestive opinions which I have ever read. To +me this opinion, like Taney's opinion in the Charles River Bridge Case, +indicates that the tension had reached the breaking point, the court +yielding in all directions at once, while the dominant preoccupation of +the presiding judge seemed to be to plant his tribunal in such a +position that it could so yield, without stultifying itself hopelessly +before the legal profession and the public. In striving to reach this +position, however, I apprehend that the Chief Justice, unreservedly, +crossed the chasm on whose brink American jurists had been shuddering +for ninety years. The task the Chief Justice assumed was difficult +almost beyond precedent. He proposed to surrender to the vested +interests the principle of _reasonableness_ which they demanded, and +which the tribunal he represented, together with Congress, had refused +to surrender for fifteen years. To pacify the public, which would +certainly resent this surrender, he was prepared to punish two hated +corporations, while he strove to preserve, so far as he could, the +respect of the legal profession and of the public, for the court over +which he presided, by maintaining a semblance of consistency. + +To accomplish these contradictory results, the Chief Justice began, +rather after the manner of Marshall in Marbury _v_. Madison, by an +extra-judicial disquisition. The object of this disquisition was to +justify his admission of the evidence of reasonableness as a defence, +although it was not needful to decide that such evidence must be +admitted in order to dispose of that particular cause. For the Chief +Justice very readily agreed that the Standard Oil Company was, in fact, +an unreasonable restraint of trade, and must be dissolved, no matter +whether it were allowed to prove its reasonable methods or not. +Accordingly, he might have contented himself with stating that, +admitting for the sake of argument but without approving, all the +defendant advanced, he should sustain the government; but to have so +disposed of the case would not have suited his purpose. What the Chief +Justice had it at heart to do was to surrender a fundamental principle, +and yet to appear to make no surrender at all. Hence, he prepared his +preliminary and extra-judicial essay on the human reason, of whose +precise meaning, I must admit, I still, after many perusals, have grave +doubts. I sometimes suspect that the Chief Justice did not wish to be +too explicit. So far as I comprehend the Chief Justice, his chain of +reasoning amounted to something like this: It was true, he observed, +that for fifteen years the Supreme Court had rejected the evidence of +reasonableness which he admitted, and had insisted upon a general +principle which he might be supposed to renounce, but this apparent +discrepancy involved no contradiction. It was only a progression in +thought. For, he continued, the judges who, on various previous +occasions, sustained that general principle, must have reached their +conclusions by the light of reason; to-day we reach a contrary +conclusion, but we also do so by the light of reason; therefore, as all +these decisions are guided by the light of reason they fundamentally +coincide, however much superficially they may seem to differ.[36] + +I have never supposed that this argument carried complete conviction +either to the legal profession, to the public, or to Congress. +Certainly, it did not convince Mr. Justice Harlan, who failed to fathom +it, and bluntly expressed his astonishment in a dissenting opinion in +another cause from which I regret to say I can only quote a couple of +paragraphs, although the whole deserves attentive perusal:-- + +"If I do not misapprehend the opinion just delivered, the Court insists +that what was said in the opinion in the Standard Oil Case, was in +accordance with our previous decisions in the Trans-Missouri and Joint +Traffic Cases, ... if we resort to _reason_. This statement surprises me +quite as much as would a statement that black was white or white was +black." + +"But now the Court, in accordance with what it denominates the 'rule of +reason,' in effect inserts in the act the word 'undue,' which means the +same as 'unreasonable,' and thereby makes Congress say what it did not +say.... And what, since the passage of the act, it has explicitly +refused to say.... In short, the Court now, by judicial legislation, in +effect, amends an Act of Congress relating to a subject over which that +department of the Government has exclusive cognizance."[37] + +The phenomenon which amazed Mr. Justice Harlan is, I conceive, perfectly +comprehensible, if we reflect a little on the conflict of forces +involved, and on the path of least resistance open to an American judge +seeking to find for this conflict, a resultant. The regulation or the +domination of monopoly was an issue going to the foundation of society, +and popular and financial energy had come into violent impact in regard +to the control of prices. Popular energy found vent through Congress, +while the financiers, as financiers always have and always will, took +shelter behind the courts. Congress, in 1890, passed a statute to +constrain monopolies, against which financiers protested as being a +species of confiscation, and which the Chief Justice himself thought +harsh. To this statute the Supreme Court gave a harsh construction, as +the Chief Justice had more than once pointed out, when he was still an +associate upon the bench. From a series of these decisions an appeal had +been made to Congress, and the Senate, in the report from which I have +quoted, had sustained the construction given to the statute by the +majority of his brethren with whom the Chief Justice differed. Since the +last of these decisions, however, the complexion of the bench had been +considerably changed by new appointments, much as it had been after +Hepburn _v_. Griswold, and an opportunity seemed to be presented to +conciliate every one. + +In any other country than the United States, a chief justice so situated +would doubtless have affirmed the old precedents, permitting himself, at +most, to point out the mischief which, he thought, they worked. Not so a +lawyer nurtured under the American constitutional system, which breeds +in the judge the conviction that he is superior to the legislator. His +instinct, under adequate pressure, is always to overrule anything +repugnant to him that a legitimate legislative assembly may have done. +In this instance, had the case been one of first impression, nothing +would have been easier than to have nullified the Sherman Act as an +unreasonable exercise of the Police Power, as judges had been nullifying +statutes of which they disapproved for a couple of generations +previously; but the case was not one of first impression. On the +contrary, the constitutionality of the Sherman Act had been so often +upheld by the judiciary that the Chief Justice himself admitted that so +long as Congress allowed him to use his reason, these "contentions +[were] plainly foreclosed." Therefore, for him the path of least +resistance was to use his _reason_, and, as a magistrate, to amend a +statute which Congress ought to have amended, but had _unreasonably_ +omitted to amend. Such was the final and logical result of the blending +of judicial and legislative functions in a court, as they are blended +under the American constitutional system. Nor is it unworthy of +remark, that the Chief Justice, in abstaining from questioning the +constitutionality of the act, expressly intimated that he did so +because, by the use of his reason, he could make that reasonable and +constitutional which otherwise might be unreasonable and +unconstitutional. The defendants pressed the argument that destroying +the freedom of contract, as the Sherman Law destroyed it, was to +infringe upon the "constitutional guaranty of due process of law." To +this the Chief Justice rejoined: "But the ultimate foundation of all +these arguments is the assumption that reason may not be resorted to in +interpreting and applying the statute.... As the premise is demonstrated +to be unsound by the construction we have given the statute," these +arguments need no further notice.[38] + +Should Congress amend the Sherman Act, as it seems somewhat disposed to +do, by explicitly enacting the rule of the Trans-Missouri Case, a grave +issue would be presented. The Chief Justice might submit, and thus +avert, temporarily at least, a clash; or, he might hold such an +amendment unconstitutional as denying to the Court the right to +administer the law according to due process. A trial of strength would +then be imminent. + +Nearly a century ago, Jefferson wrote to Spencer Roane, "The +Constitution, on this hypothesis, is a mere thing of wax in the hands of +the judiciary, which they may twist and shape into any form they +please."[39] And however much we may recoil from admitting Jefferson's +conclusion to be true, it none the less remains the fact that it has +proved itself to be true, and that the people have recognized it to be +true, and have taken measures to protect themselves by bringing the +judiciary under the same degree of control which they enforce on other +legislators. The progression has been steady and uniform, each advance +toward an assumption of the legislative function by the judiciary having +been counterbalanced by a corresponding extension of authority over the +courts by the people. First came the protest against Marbury and Madison +in the impeachment of Chase, because, as Giles explained, if judges were +to annul laws, the dominant party must have on the bench judges they +could trust. Next the Supreme Court of New York imagined the theory of +the Police Power, which was adopted by the Supreme Court of the United +States in 1837. But it stood to reason that if judges were to suspend +constitutional limitations according to their notions of reasonableness, +the people must have the means of securing judges whose views touching +reasonableness coincided with their own. And behold, within ten years, +by the constitution of 1846, New York adopted an elective judiciary. + +Then followed the Dred Scott Case, the Civil War, and the attack on +legislative authority in Hepburn _v_. Griswold. Straightway the Court +received an admonition which it remembered for a generation. Somewhat +forgetful of this, on May 15, 1911, Chief Justice White gave his opinion +in the Standard Oil Case, which followed hard upon a number of state +decisions intended to override legislation upon several burning social +issues. Forthwith, in 1912, the proposition to submit all decisions +involving a question of constitutional law to a popular vote became an +issue in a presidential election. Only one step farther could be taken, +and that we see being taken all about us. Experience has shown, in New +York and elsewhere, that an election, even for a somewhat short term, +does not bring the judge so immediately under popular control that +decisions objectionable to the majority may not be made. Hence the +recall. The degradation of the judicial function can, in theory at +least, go no farther. Thus the state courts may be said already to be +prostrate, or likely shortly to become prostrate. The United States +courts alone remain, and, should there be a struggle between them and +Congress, the result can hardly be doubted. An event has recently +occurred abroad which we may do well to ponder. + +Among European nations England has long represented intelligent +conservatism, and at the heart of her conservatism lay the House of +Lords. Through many centuries; and under many vicissitudes this ancient +chamber had performed functions of the highest moment, until of late it +had come to occupy a position not dissimilar to that which the Supreme +Court of the United States yet holds. On one side it was the highest +legal tribunal of the Empire, on the other it was a non-representative +assembly, seldom indeed originating important legislation, but enjoying +an absolute veto on legislation sent it from the Commons. One day in a +moment of heated controversy the Lords vetoed a bill on which the +Commons had determined. A dissolution followed and the House of Lords, +as a political power, faded into a shadow; yet, notwithstanding this, +its preeminence as a court has remained intact. Were a similar clash to +occur in America no such result could be anticipated. Supposing a +President, supported by a congressional majority, were to formulate some +policy no more subversive than that which has been formulated by the +present British Cabinet, and this policy were to be resisted, as it +surely would be, by potent financial interests, the conflicting forces +would converge upon the Supreme Court. The courts are always believed to +tend toward conservatism, therefore they are generally supported by the +conservative interest, both here and elsewhere. In this case a dilemma +would be presented. Either the judges would seek to give expression to +"preponderant" popular opinion, or they would legislate. In the one +event they would be worthless as a restraining influence. In the other, +I apprehend, a blow would fall similar to the blow which fell upon the +House of Lords, only it would cut deeper. Shearing the House of Lords of +political power did not dislocate the administration of English justice, +because the law lords are exclusively judges. They never legislate. +Therefore no one denounced them. Not even the wildest radical demanded +that their tenure should be made elective, much less that they should be +subjected to the recall. With us an entirely different problem would be +presented for solution. A tribunal, nominally judicial, would throw +itself across the path of the national movement. It would undertake to +correct a disturbance of the social equilibrium. But what a shifting of +the social equilibrium means, and what follows upon tampering with it, +is a subject which demands a chapter by itself. + + +FOOTNOTES: + +[18] 6 Cranch 135. + +[19] New Jersey _v_. Wilson, 7 Cranch 164; decided in 1812. + +[20] Coates _v_. Mayor of New York, 7 Cowen 585. + +[21] Charles River Bridge _v_. Warren Bridge, 11 Peters 420, 553. + +[22] Boston & Maine Railroad _v_. County Commissioners, 79 Maine 393. + +[23] Wynehamer _v_. The People, 13 N.Y. 393. + +[24] Mugler _v._ Kansas, 133 U.S. 623. + +[25] Fertilizing Co. _v_. Hyde Park, 97 U.S. 659. + +[26] Slaughter House Cases, 16 Wallace 78, decided in 1873. + +[27] 94 U.S. 113. + +[28] Chicago, Milwaukee & St. Paul Ry. _v._ Minnesota, 134 U.S. 461, +decided March 24, 1890. + +[29] Noble State Bank _v._ Haskell, 219 U.S. 104. + +[30] See the extraordinary case of Douglas _v._ Kentucky, 168 U.S. 488, +which must be read in connection with Gregory _v._ Trustees of Shelby +College, 2 Metc. (Kentucky) 589. + +[31] Brass _v._ North Dakota, 133 U.S. 391. + +[32] 169 U.S. 466. + +[33] _The Federalist_, No. LXXVIII. + +[34] 221 U.S. 91. + +[35] 60th Congress, 2d Session, Senate, Report No. 848, Adverse Report +by Mr. Nelson, Amending Anti-trust Act, January 26, 1909, page 11. + +[36] Standard Oil Company _v_. United States, 221 U.S. 1. + +[37] United States _v_. American Tobacco Company, 221 U.S. 191, 192. + +[38] 221 U.S. 69. + +[39] To Spencer Roane, Sept. 6, 1819, Ford, 10, 141. + + + + +CHAPTER IV + +THE SOCIAL EQUILIBRIUM + + +I assume it as self-evident that those who, at any given moment, are the +strongest in any civilization, will be those who are at once the ruling +class, those who own most property, and those who have most influence on +legislation. The weaker will fare hardly in proportion to their +weakness. Such is the order of nature. But, since those are the +strongest through whom nature finds it, for the time being, easiest to +vent her energy, and as the whole universe is in ceaseless change, it +follows that the composition of ruling classes is never constant, but +shifts to correspond with the shifting environment. When this movement +is so rapid that men cannot adapt themselves to it, we call the +phenomenon a revolution, and it is with revolutions that I now have to +do. + +Nothing is more certain than that the intellectual adaptability of the +individual man is very limited. A ruling class is seldom conscious of +its own decay, and most of the worst catastrophes of history have been +caused by an obstinate resistance to change when resistance was no +longer possible. Thus while an incessant alteration in social +equilibrium is inevitable, a revolution is a problem in dynamics, on the +correct solution of which the fortunes of a declining class depend. + +For example, the modern English landlords replaced the military feudal +aristocracy during the sixteenth century, because the landlords had more +economic capacity and less credulity. The men who supplanted the +mediaeval soldiers in Great Britain had no scruple about robbing the +clergy of their land, and because of this quality they prospered +greatly. Ultimately the landlords reached high fortune by controlling +the boroughs which had, in the Middle Ages, acquired the right to return +members to the House of Commons. Their domination lasted long; +nevertheless, about 1760, the rising tide of the Industrial Revolution +brought forward another type of mind. Flushed by success in the +Napoleonic wars the Tories failed to appreciate that the social +equilibrium, by the year 1830, had shifted, and that they no longer +commanded enough physical force to maintain their parliamentary +ascendancy. They thought they had only to be arrogant to prevail, and so +they put forward the Duke of Wellington as their champion. They could +hardly have made a poorer choice. As Disraeli has very truly said, "His +Grace precipitated a revolution which might have been delayed for half a +century, and need never have occurred in so aggravated a form." The +Duke, though a great general, lacked knowledge of England. He began by +dismissing William Huskisson from his Cabinet, who was not only its +ablest member, but perhaps the single man among the Tories who +thoroughly comprehended the industrial age. Huskisson's issue was that +the franchise of the intolerably corrupt East Retford should be given to +Leeds or Manchester. Having got rid of Huskisson, the Duke declared +imperiously that he would concede nothing to the disfranchised +industrial magnates, nor to the vast cities in which they lived. A +dissolution of Parliament followed and in the election the Tories were +defeated. Although Wellington may not have been a sagacious statesman, +he was a capable soldier and he knew when he could and when he could not +physically fight. On this occasion, to again quote Disraeli, "He rather +fled than retired." He induced his friends to absent themselves from the +House of Lords and permit the Reform Bill to become law. Thus the +English Tories, by their experiment with the Duke of Wellington, lost +their boroughs and with them their political preeminence, but at least +they saved themselves, their families, and the rest of their property. +As a class they have survived to this day, although shorn of much of the +influence which they might very probably have retained had they solved +more correctly the problem of 1830. In sum, they were not altogether +impervious to the exigencies of their environment. The French Revolution +is the classic example of the annihilation of a rigid organism, and it +is an example the more worthy of our attention as it throws into +terrible relief the process by which an intellectually inflexible race +may convert the courts of law which should protect their decline into +the most awful engine for their destruction. + +The essence of feudalism was a gradation of rank, in the nature of +caste, based upon fear. The clergy were privileged because the laity +believed that they could work miracles, and could dispense something +more vital even than life and death. The nobility were privileged +because they were resistless in war. Therefore, the nobility could +impose all sorts of burdens upon those who were unarmed. During the +interval in which society centralized and acquired more and more a +modern economic form, the discrepancies in status remained, while +commensurately the physical or imaginative force which had once +sustained inequality declined, until the social equilibrium grew to be +extremely unstable. Add to this that France, under the monarchy, was ill +consolidated. The provinces and towns retained the administrative +complexity of an archaic age, even to local tariffs. Thus under the +monarchy privilege and inequality pervaded every phase of life, and, as +the judiciary must be, more or less, the mouthpiece of society, the +judiciary came to be the incarnation of caste. + +Speaking broadly, the judicial office, under the monarchy, was vendible. +In legal language, it was an incorporeal hereditament. It could be +bought and sold and inherited like an advowson, or right to dispose of a +cure of souls in the English Church, or of a commission in the English +army. The system was well recognized and widespread in the eighteenth +century, and worked fairly well with the French judiciary for about +three hundred years, but it was not adapted to an industrial +environment. The judicial career came to be pretty strongly hereditary +in a few families, and though the members of these families were, on the +whole, self-respecting, honest, and learned, they held office in their +own right and not as a public trust. So in England members of the House +of Commons, who sat for nomination boroughs, did not, either in fact or +theory, represent the inhabitants of those boroughs, but patrons; and in +like manner French judges could never learn to regard themselves as the +trustees of the civil rights of a nation, but as a component part of a +class who held a status by private title. Looked at as a problem in +dynamics the inherent vice in all this kind of property and in all this +administrative system, was the decay, after 1760, of the physical force +which had engendered it and defended it. As in England the ascendancy of +the landlords passed away when England turned from an agricultural into +an industrial society, so in France priests and nobles fell into +contempt, when most peasants knew that the Church could neither harm by +its curse nor aid by its blessing, and when commissions in the army were +given to children or favorites, as a sort of pension, while the pith of +the nation was excluded from military command because it could not prove +four quarterings of nobility. Hardly an aristocrat in France had shown +military talent for a generation, while, when the revolution began, men +like Jourdan and Kleber, Ney and Augereau, and a host of other future +marshals and generals had been dismissed from the army, or were eating +out their hearts as petty officers with no hope of advancement. Local +privileges and inequalities were as intolerable as personal. There were +privileged provinces and those administered arbitrarily by the Crown, +there were a multiplicity of internal tariffs, and endless municipal +franchises and monopolies, so much so that economists estimated that, +through artificial restraints, one-quarter of the soil of France lay +waste. Turgot, in his edict on the grain trade, explained that kings in +the past by ordinance, or the police without royal authority, had +compiled a body "of legislation equivalent to a prohibition of bringing +grain into Paris," and this condition was universal. One province might +be starving and another oppressed with abundance. + +Meanwhile, under the stimulant of applied science, centralization went +on resistlessly, and the cost of administration is proportionate to +centralization. To bear the burden of a centralized government taxes +must be equal and movement free, but here was a rapidly centralizing +nation, the essence of whose organism was that taxes should be unequal +and that movement should be restricted. + +As the third quarter of the eighteenth century closed with the death of +Louis XV, all intelligent French administrators recognized the dilemma; +either relief must be given, or France must become insolvent, and +revolution supervene upon insolvency. But for the aristocracy revolution +had no terrors, for they believed that they could crush revolution as +their class had done for a thousand years. + +Robert Turgot was born in 1727, of a respectable family. His father +educated him for the Church, but lack of faith caused him to prefer the +magistracy, and on the death of his father he obtained a small place in +the Court of Parliament. Afterward he became a Master of Requests, and +served for seven years in that judicial position, before he was made +Intendant of the Province of Limousin. Even thus early in life Turgot +showed political sagacity. In an address at the Sorbonne he supported +the thesis that "well-timed reform alone averts revolution." +Distinguishing himself as Intendant, on the death of Louis XV the King +called Turgot to the Council of State, and in August, 1774, Turgot +became Minister of Finance. He came in pledged to reform, and by +January, 1776, he had formulated his plan. In that month he presented to +the King his memorable Six Edicts, the first of which was the most +celebrated state paper he ever wrote. It was the Edict for the +Suppression of the Corvée. The corvée threw the burden of maintaining +the highways on the peasantry by exacting forced labor. It was +admittedly the most hateful, the most burdensome, and the most wasteful +of all the bad taxes of the time, and Turgot, following the precedent of +the Roman Empire, advised instead a general highway impost. The proposed +impost in itself was not considerable, and would not have been +extraordinarily obnoxious to the privileged classes, but for the +principle of equality by which Turgot justified it: "The expenses of +government having for their object the interests of all, all should +contribute to them; and the more advantages a man has, the more that man +should contribute." + +Nor was this the most levelling of Turgot's arguments. He pointed out +that though originally the exemption from taxation, which the nobility +enjoyed, might have been defended on the ground that the nobles were +bound to yield military service without pay, such service had long +ceased to be performed, while on the contrary titles could be bought for +money. Hence every wealthy man became a noble when he pleased, and thus +exemption from taxation had come to present the line of cleavage between +the rich and poor. By this thrust the privileged classes felt themselves +wounded in their vitals, and the Parliament of Paris, the essence of +privilege, assumed their defence. To be binding, the edicts had to be +registered by the Parliament among the laws of France, and Parliament +declined to make registration on the ground that the edicts were +unconstitutional, as subversive of the monarchy and of the principle of +order. The opinion of the court was long, but a single paragraph gives +its purport: "The first rule of justice is to preserve to every one what +belongs to him: this rule consists, not only in preserving the rights of +property, but still more in preserving those belonging to the person, +which arise from the prerogative of birth and of position.... From this +rule of law and equity it follows that every system which, under an +appearance of humanity and beneficence, would tend to establish between +men an equality of duties, and to destroy necessary distinctions, would +soon lead to disorder (the inevitable result of equality), and would +bring about the overturn of civil society." + +This judicial opinion was an enunciation of the archaic law of caste as +opposed to the modern law of equality, and the cataclysm of the French +Revolution hinged upon the incapacity of the French aristocracy to +understand that the environment, which had once made caste a necessity, +had yielded to another which made caste an impossibility. In vain Turgot +and his contemporaries of the industrial type, represented in England +by Adam Smith or even by the younger Pitt, explained that unless taxes +were equalized and movement accelerated, insolvency must supervene, and +that a violent readjustment must follow upon insolvency. With their eyes +open to the consequences, the Nobility and Clergy elected to risk +revolt, because they did not believe that revolt could prevail against +them. Nothing is so impressive in the mighty convulsion which ensued as +the mental opacity of the privileged orders, which caused them to +increase their pressure in proportion as resistance increased, until +finally those who were destined to replace them reorganized the courts, +that they might have an instrument wherewith to slaughter a whole race +down to the women and children. No less drastic method would serve to +temper the rigidity of the aristocratic mind. The phenomenon well repays +an hour of study. + +Insolvency came within a decade after Turgot's fall, as Turgot had +demonstrated that it must come, and an insolvency immediately +precipitated by the rapacity of the court which had most need of +caution. The future Louis XVIII, for example, who was then known as the +Comte de Provence, on one occasion, when the government had made a loan, +appropriated a quarter of it, laughingly observing, "When I see others +hold out their hands, I hold out my hat." In 1787 the need for money +became imperative, and, not daring to appeal to the nation, the King +convoked an assembly of "notables," that is to say of the privileged. +Calonne, the minister, proposed pretty much the measures of Turgot, and +some of these measures the "notables" accepted, but the Parliament of +Paris again intervened and declined to register the laws. The Provincial +Parliaments followed the Parliament of Paris. After this the King had no +alternative but to try the experiment of calling the States-General. +They met on May 4, 1789, and instantly an administrative system, which +no longer rested upon a social centre of gravity, crumbled, carrying the +judiciary with it. At first the three estates sat separately. If this +usage had continued, the Clergy and the Nobles combined would have +annulled every measure voted by the Commons. For six weeks the Commons +waited. Then on June 10, the Abbé Sieyès said, "Let us cut the cable. It +is time." So the Clergy and the Nobility were summoned, and some of the +Clergy obeyed. This sufficed. On motion of Sieyès, the Commons +proclaimed themselves the National Assembly, and the orders fused. +Immediately caste admitted defeat and through its mouthpiece, the King, +commanded the Assembly to dissolve. The Commons refused to dissolve, and +the Nobles prepared for a _coup d'etat._ The foreign regiments, in the +pay of the government, were stationed about Paris, while the Bastille, +which was supposed to be impregnable, was garrisoned with Swiss. In +reply, on July 14, 1789, the citizens of Paris stormed the Bastille. An +unstable social equilibrium had been already converted by pressure into +a revolution. Nevertheless, excentric as the centre of gravity had now +become, it might have been measurably readjusted had the privileged +classes been able to reason correctly from premise to conclusion. Men +like Lafayette and Mirabeau still controlled the Assembly, and if the +King and the Nobility had made terms, probably the monarchy might have +been saved, certainly the massacres would have been averted. As a +decaying class is apt to do, the Nobility did that which was worst for +themselves. Becoming at length partly conscious of a lack of physical +force in France to crush the revolution, a portion of the nobility, led +by the Comte d'Artois, the future Charles X, fled to Germany to seek for +help abroad, while the bolder remained to plan an attack on the +rebellion. On October 1, 1789, a great military banquet was given at +Versailles. The King and Queen with the Dauphin were present. A royalist +demonstration began. The bugles sounded a charge, the officers drew +their swords, and the ladies of the court tore the tricolor from the +soldiers' coats and replaced it with the white cockade. On October 5, a +vast multitude poured out of Paris, and marched to Versailles. The next +day they broke into the palace, killed the guards, and carried the King +and Queen captive to the Tuileries. But Louis was so intellectually +limited that he could not keep faith with those who wished him well. On +July 14, 1790, the King swore, before half a million spectators, to +maintain the new constitution. In that summer he was plotting to escape +to Metz and join the army which had been collected there under the +Marquis de Bouillé, while Bouillé himself, after the rising at Nancy, +was busy in improving discipline by breaking on the wheel a selection +of the soldiers of the Swiss regiment of Châteauvieux which had refused +to march against Paris on the 14th of July, 1789. In October, 1790, +Louis wrote to the King of Spain and other sovereigns to pay no heed to +his concessions for he only yielded to duress, and all this even as +Mirabeau made his supreme effort to save those who were fixed upon +destroying themselves. Mirabeau sought the King and offered his +services. The court sneered at him as a dupe. The Queen wrote, "We make +use of Mirabeau, but we do not take him seriously." When Mirabeau awoke +to his predicament, he broke out in mixed wrath and scorn: "Of what are +these people thinking? Do they not see the abyss yawning at their feet? +Both the King and Queen will perish, and you will live to see the rabble +spurn their corpses." + +The King and Queen, the Nobility and Clergy, could not see the abyss +which Mirabeau saw, any more than the lawyers could see it, because of +the temper of their minds. In the eye of caste Europe was not primarily +divided into nations to whom allegiance was due, but into superimposed +orders. He who betrayed his order committed the unpardonable crime. +Death were better than that. But to the true aristocrat it was +inconceivable that serfs could ever vanquish nobles in battle. Battle +must be the final test, and the whole aristocracy of Europe was certain, +Frenchmen knew, to succor the French aristocracy in distress. + +So in the winter of 1790 the French fugitives congregated at Coblentz on +the German frontier, persuaded that they were performing a patriotic +duty in organizing an invasion of their country even should their onset +be fatal to their relatives and to their King. And Louis doubted not +that he also did his duty as a trustee of a divine commission when he in +one month swore, before the Assembly, to maintain the constitution +tendered him, and in the next authorized his brother, the Comte +d'Artois, to make the best combination he could among his brother +sovereigns for the gathering of an army to assert his divine +prerogative. On June 21, 1791, Louis fled, with his whole family, to +join the army of Bouillé, with intent to destroy the entire race of +traitors from Mirabeau and Lafayette down to the peasants. He managed +so ill that he was arrested at Varennes, and brought back whence he +came, but he lied and plotted still. + +Two years had elapsed between the meeting of the States-General and the +flight to Varennes, and in that interval nature had been busy in +selecting her new favored class. Economists have estimated that the +Church owned one-third of the land of Europe during the Middle Ages. +However this may have been she certainly held a very large part of +France. On April 16, 1790, the Assembly declared this territory to be +national property, and proceeded to sell it to the peasantry by means of +the paper _assignats_ which were issued for the purpose, and were +supposed to be secured upon the land. The sales were generally made in +little lots, as the sales were made of the public domain in Rome under +the Licinian Laws, and with an identical effect. The Emperor of Germany +and the King of Prussia met at Pilnitz in August, 1791, to consider the +conquest of France, and, on the eve of that meeting, the Assembly +received a report which stated that these lands to the value of a +thousand million francs had already been distributed, and that sales +were going on. It was from this breed of liberated husbandmen that +France drew the soldiers who fought her battles and won her victories +for the next five and twenty years. + +Assuming that the type of the small French landholder, both rural and +urban, had been pretty well developed by the autumn of 1791, the crisis +came rapidly, for the confiscations which created this new energy roused +to frenzy, perhaps the most formidable energy which opposed it. The +Church had not only been robbed of her property but had been wounded in +her tenderest part. By a decree of June 12, 1790, the Assembly +transferred the allegiance of the French clergy from the Pope to the +state, and the priesthood everywhere vowed revenge. In May, 1791, the +Marquis de la Rouërie, it is true, journeyed from his home in Brittany +to Germany to obtain the recognition of the royal princes for the +insurrection which he contemplated in La Vendée, but the insurrection +when it occurred was not due so much to him or his kind as to the +influence of the nonjuring priests upon the peasant women of the West. + +The mental condition of the French emigrants at Coblentz during this +summer of 1791 is nothing short of a psychological marvel. They regarded +the Revolution as a jest, and the flight to the Rhine as a picnic. These +beggared aristocrats, male and female, would throw their money away by +day among the wondering natives, and gamble among themselves at night. +If they ever thought of the future it was only as the patricians in +Pompey's camp thought; who had no time to prepare for a campaign against +Caesar, because they were absorbed in distributing offices among +themselves, or in inventing torments to inflict on the rebels. Their +chief anxiety was lest the resistance should be too feeble to permit +them to glut themselves with blood. The creatures of caste, the +emigrants could not conceive of man as a variable animal, or of the +birth of a race of warriors under their eyes. To them human nature +remained constant. Such, they believed, was the immutable will of God. + +So it came to pass that, as the Revolution took its shape, a vast +combination among the antique species came semi-automatically into +existence, pledged to envelop and strangle the rising type of man, a +combination, however, which only attained to maturity in 1793, after +the execution of the King. Leopold II, Emperor of Germany, had hitherto +been the chief restraining influence, both at Pilnitz and at Paris, +through his correspondence with his sister, Marie Antoinette; but +Leopold died on March 1, 1792, and was succeeded by Francis II, a fervid +reactionist and an obedient son of the Church. Then caste fused +throughout Germany, and Prussia and Austria prepared for war. Rouërie +had returned to Brittany and only awaited the first decisive foreign +success to stab the Revolution in the back. England also was ripening, +and the instinct of caste, incarnated in George III, found its +expression through Edmund Burke. In 1790 Burke published his +"Reflections," and on May 6, 1791, in a passionate outbreak in the House +of Commons, he renounced his friendship with Fox as a traitor to his +order and his God. Men of Burke's temperament appreciated intuitively +that there could be no peace between the rising civilization and the +old, one of the two must destroy the other, and very few of them +conceived it to be possible that the enfranchised French peasantry and +the small bourgeoisie could endure the shock of all that, in their +eyes, was intelligent, sacred, and martial in the world. + +Indeed, aristocracy had, perhaps, some justification for arrogance, +since the revolt in France fell to its lowest depth of impotence between +the meeting at Pilnitz in August, 1791, and the reorganization of the +Committee of Public Safety in July, 1793. Until August, 1792, the +executive authority remained with the King, but the court of Louis was +the focus of resistance to the Revolution, and even though a +quasi-prisoner the King was still strong. Monarchy had a firm hold on +liberal nobles like Mirabeau and Lafayette, on adventurers like +Dumouriez, and even on lawyers like Danton who shrank from excessive +cruelty. Had the pure Royalists been capable of enough intellectual +flexibility to keep faith upon any reasonable basis of compromise, even +as late as 1792, the Revolution might have been benign. In June, 1792, +Lafayette, who commanded the army of the North, came to Paris and not +only ventured to lecture the Assembly on its duty, but offered to take +Louis to his army, who would protect him against the Jacobins. The court +laughed at Lafayette as a Don Quixote, and betrayed his plans to the +enemy. "I had rather perish," said the Queen, "than be saved by M. de +Lafayette and his constitutional friends." And in this she only +expressed the conviction which the caste to which she belonged held of +their duty. Cazalés protested to the Assembly, "Though the King perish, +let us save the kingdom." The Archduchess Christina wrote to her sister, +Marie Antoinette, "What though he be slain, if we shall triumph," and +Condé, in December, 1790, swore that he would march on Lyons, "come what +might to the King." + +France was permeated with archaic thought which disorganized the +emerging society until it seemingly had no cohesion. To the French +emigrant on the Rhine that society appeared like a vile phantom which +had but to be exorcised to vanish. And the exorcism to which he had +recourse was threats of vengeance, threats which before had terrified, +because they had behind them a force which made them good. Torture had +been an integral part of the old law. The peasant expected it were he +insubordinate. Death alone was held to be too little to inspire respect +for caste. Some frightful spectacle was usually provided to magnify +authority. Thus Bouillé broke on the wheel, while the men were yet +alive, every bone in the bodies of his soldiers when they disobeyed him; +and for scratching Louis XV, with a knife, Damiens, after indescribable +agonies, was torn asunder by horses in Paris, before an immense +multitude. The French emigrants believed that they had only to threaten +with a similar fate men like Kellermann and Hoche to make them flee +without a blow. What chiefly concerned the nobles, therefore, was not to +evolve a masterly campaign, but to propound the fundamental principles +of monarchy, and to denounce an awful retribution on insurgents. + +By the middle of July, 1792, the Prussians were ready to march, and +emperors, kings, and generals were meditating manifestoes. Louis sent +the journalist Mallet du Pan to the Duke of Brunswick, the +commander-in-chief, to assist him in his task. On July 24, and on August +4, 1792, the King of Prussia laid down the law of caste as emphatically +as had the Parliament of Paris some twenty years before. On July 25, the +Duke of Brunswick pronounced the doom of the conquered. I come, said the +King of Prussia, to prevent the incurable evils which will result to +France, to Europe and to all mankind from the spread of the spirit of +insubordination, and to this end I shall establish the monarchical power +upon a stable basis. For, he continued in the later proclamation, "the +supreme authority in France being never ceasing and indivisible, the +King could neither be deprived nor voluntarily divest himself of any of +the prerogatives of royalty, because he is obliged to transmit them +entire with his own crown to his successors." + +The Duke of Brunswick's proclamation contained some clauses written +expressly for him by Mallet du Pan, and by Limon the Royalist. + +If the Palace of the Tuileries be forced, if the least violence be +offered to their Majesties, if they are not immediately set at liberty, +then will the King of Prussia and the Emperor of Germany inflict "on +those who shall deserve it the most exemplary and ever-memorable +avenging punishments." + +These proclamations reached Paris on July 28, and simultaneously the +notorious Fersen wrote the Queen of France, "You have the manifesto, and +you should be content." The court actually believed that, having +insulted and betrayed Lafayette and all that body of conservative +opinion which might have steadied the social equilibrium, they could +rely on the fidelity of regiments filled with men against whom the +emigrants and their allies, the Prussians, had just denounced an +agonizing death, such as Bouillé's soldiers had undergone, together with +the destruction of their homes. + +All the world knows what followed. The Royalists had been gathering a +garrison for the Tuileries ever since Lafayette's visit, in anticipation +of a trial of strength with the Revolutionists. They had brought thither +the Swiss guard, fifteen hundred strong; the palace was full of Royalist +gentlemen; Mandat, who commanded the National Guard, had been gained +over. The approaches were swept by artillery. The court was very +confident. On the night of August 9, Mandat was murdered, an +insurrectional committee seized the City Hall, and when Louis XVI came +forth to review the troops on the morning of the 10th of August, they +shouted, "Vive la Nation" and deserted. Then the assault came, the Swiss +guard was massacred, the Assembly thrust aside, and the royal family +were seized and conveyed to the Temple. There the monarchy ended. Thus +far had the irrational opposition of a moribund type thrown into +excentricity the social equilibrium of a naturally conservative people. +They were destined to drive it still farther. + +In this supreme moment, while the Prussians were advancing, France had +no stable government and very imperfect means of keeping order. All the +fighting men she could muster had marched to the frontier, and, even so, +only a demoralized mass of levies, under Dumouriez and Kellermann, lay +between the most redoutable regiments of the world and Paris. The +emigrants and the Germans thought the invasion but a military promenade. +At home treason to the government hardly cared to hide itself. During +much of August the streets of Paris swarmed with Royalists who cursed +the Revolution, and with priests more bitter than the Royalists. Under +the windows of Louis, as he lay in the Temple, there were cries of "Long +live the King," and in the prisons themselves the nobles drank to the +allies and corresponded with the Prussians. Finally, Roland, who was +minister, so far lost courage that he proposed to withdraw beyond the +Loire, but Danton would hear of no retreat. "De l'audace," he cried, +"encore de l'audace, et toujours de l'audace." + +The Assembly had not been responsible for the assault on the Tuileries +on August 10, 1792. Filled with conservatives, it lacked the energy. +That movement had been the work of a knot of radicals which had its +centre in Danton's Club of the Cordeliers. Under their impulsion the +sections of Paris chose commissioners who should take possession of the +City Hall and eject the loyalist Council. They did so, and thus Danton +became for a season the Minister of Justice and the foremost man in +France. Danton was a semi-conservative. His tenure of power was the last +possibility of averting the Terror. The Royalists, whom he trusted, +themselves betrayed him, and Danton fell, to be succeeded by Robespierre +and his political criminal courts. Meanwhile, on September 20, 1792, the +Prussian column recoiled before the fire of Kellermann's mob of +"vagabonds, cobblers and tailors," on the slope of Valmy, and with the +victory of Valmy, the great eighteenth-century readjustment of the +social equilibrium of Europe passed into its secondary stage. + + + + +CHAPTER V + +POLITICAL COURTS + + +In the eye of philosophy, perhaps the most alluring and yet illusive of +all the phenomena presented by civilization is that which we have been +considering. Why should a type of mind which has developed the highest +prescience when advancing along the curve which has led it to +ascendancy, be stricken with fatuity when the summit of the curve is +passed, and when a miscalculation touching the velocity of the descent +must be destruction? + +Although this phenomenon has appeared pretty regularly, at certain +intervals, in the development of every modern nation, I conceive its +most illuminating example to be that intellectual limitation of caste +which, during the French Revolution, led to the creation of those +political criminal tribunals which reached perfection with Robespierre. + +When coolly examined, at the distance of a century, the Royalist +combination for the suppression of equality before the law, as finally +evolved in 1792, did not so much lack military intelligence, as it +lacked any approximate comprehension of the modern mind. The Royalists +proposed to reëstablish privilege, and to do this they were ready to +immolate, if necessary, their King and Queen, and all of their own order +who stayed at home to defend them. Indeed, speaking generally, they +valued Louis XVI, living, cheaply enough, counting him a more +considerable asset if dead. "What a noise it would make throughout +Europe," they whispered among themselves, "if the rabble should kill the +King." + +Nor did Marie Antoinette delude herself on this score. At Pilnitz, in +1791, the German potentates issued a declaration touching France which +was too moderate to suit the emigrants, who published upon it a +commentary of their own. This commentary was so revolting that when the +Queen read her brother-in-law's signature appended to it, she +exclaimed--"Cain." + +The Royalist plan of campaign was this: They reckoned the energy of the +Revolution so low that they counted pretty confidently, in the summer +of 1792, on the ability of their party to defend the Tuileries against +any force which could be brought against it; but assuming that the +Tuileries could not be defended, and that the King and Queen should be +massacred, they believed that their own position would be improved. +Their monarchical allies would be thereby violently stimulated. It was +determined, therefore, that, regardless of consequences to their +friends, the invading army should cross the border into Lorraine and, +marching by way of Sierk and Rodemach, occupy Châlons. Their entry into +Châlons, which they were confident could not be held against them, +because of the feeling throughout the country, was to be the signal for +the rising in Vendée and Brittany which should sweep down upon Paris +from the rear and make the capital untenable. At Châlons the allies +would be but ninety miles from Paris, and then nothing would remain but +vengeance, and vengeance the more complete the greater the crime had +been. + +All went well with them up to Valmy. The German advance on August 11, +1792, reached Rodemach, and on August 19, the bulk of the Prussian army +crossed the frontier at Rédagne. On August 20, 1792, Longwy was +invested and in three days capitulated. In the camp of the Comte +d'Artois "there was not one of us," wrote Las Casas, "who did not see +himself, in a fortnight, triumphant, in his own home, surrounded by his +humbled and submissive vassals." At length from their bivouacs at +Saint-Remy and at Suippes the nobles saw in the distance the towers of +Châlons. + +The panic at Châlons was so great that orders were given to cut the +bridge across the Marne, but it was not until about September 2, that +the whole peril was understood at Paris. It is true that for several +weeks the government had been aware that the West was agitated and that +Rouërie was probably conspiring among the Royalists and nonjuring +priests, but they did not appreciate the imminence of the danger. On +September 3, at latest, Danton certainly heard the details of the plot +from a spy, and it was then, while others quailed, that he incited Paris +to audacity. This was Danton's culmination. + +As we look back, the weakness of the Germans seems to have been +psychological rather than physical. At Valmy the numbers engaged were +not unequal, and while the French were, for the most part, raw and +ill-compacted levies, with few trained officers, the German regiments +were those renowned battalions of Frederick the Great whose onset, +during the Seven Years' War, no adversary had been able to endure. Yet +these redoubtable Prussians fell back in confusion without having +seriously tried the French position, and their officers, apparently, did +not venture to call upon them to charge again. In vain the French +gentlemen implored the Prussian King to support them if they alone +should storm Kellermann's batteries. Under the advice of the Duke of +Brunswick the King decided on retreat. It is said that the Duke had as +little heart in the war as Charles Fox, or, possibly, Pitt, or as his +own troops. And yet he was so strong that Dumouriez, after his victory, +hung back and offered the invaders free passage lest the Germans, if +aroused, should turn on him and fight their way to the Marne. + +To the emigrants the retreat was terrible. It was a disaster from which, +as a compact power, they never recovered. The rising in Vendée +temporarily collapsed with the check at Châlons, and they were left +literally naked unto their enemy. Some of them returned to their homes, +preferring the guillotine to starvation, others, disguised in peasants' +blouses, tried to reach Rouërie in La Vendée, some died from hardship, +some committed suicide, while the bulk regained Liège and there waited +as suppliants for assistance from Vienna. But these unfortunate men, who +had entered so gayly upon a conflict whose significance they could not +comprehend, had by this time lost more than lands and castles. Many of +them had lost wives and children in one of the most frightful butcheries +of history, and a butchery for which they themselves were responsible, +because it was the inevitable and logical effect of their own +intellectual limitations. + +When, after the affair of August 10, Danton and his party became masters +of the incipient republic, Paris lay between two perils whose relative +magnitude no one could measure. If Châlons fell, Vendée would rise, and +the Republicans of the West would be massacred. Five months later Vendée +did rise, and at Machecoul the patriots were slaughtered amidst nameless +atrocities, largely at the instigation of the priests. In March, 1793, +one hundred thousand peasants were under arms. + +Clearly the West could not be denuded of troops, and yet, if Châlons +were to be made good, every available man had to be hurried to +Kellermann, and this gigantic effort fell to the lot of a body of young +and inexperienced adventurers who formed what could hardly be dignified +with the name of an organized administration. + +For a long time Marat, with whom Danton had been obliged to coalesce, +had been insisting that, if the enemy were to be resisted on the +frontier, Paris must first be purged, for Paris swarmed with Royalists +wild for revenge, and who were known to be arming. Danton was not yet +prepared for extermination. He instituted domiciliary visits. He made +about three thousand arrests and seized a quantity of muskets, but he +liberated most of those who were under suspicion. The crisis only came +with the news, on September 2, of the investment of Verdun, when no one +longer could doubt that the net was closing about Paris. Verdun was but +three or four days' march from Châlons. When the Duke of Brunswick +crossed the Marne and Brittany revolted, the government would have to +flee, as Roland proposed, and then the Royalists would burst the gates +of the prisons and there would be another Saint Bartholomew. + +Toward four o'clock in the afternoon of September 2, 1792, the prison of +the Abbaye was forced and the massacres began. They lasted until +September 6, and through a circular sent out by Marat they were extended +to Lyons, to Reims, and to other cities. About 1600 prisoners were +murdered in Paris alone. Hardly any one has ever defended those +slaughters. Even Marat called them "disastrous," and yet no one +interfered. Neither Danton, nor Roland, nor the Assembly, nor the +National Guard, nor the City of Paris, although the two or three hundred +ruffians who did the work could have been dispersed by a single company +of resolute men, had society so willed it. When Robespierre's time came +he fell almost automatically. Though the head of the despotic "Committee +of Public Safety," and nominally the most powerful man in France, he was +sent to execution like the vilest and most contemptible of criminals by +adversaries who would not command a regiment. The inference is that the +September massacres, which have ever since been stigmatized as the +deepest stain upon the Revolution, were, veritably, due to the +Royalists, who made with the Republicans an issue of self-preservation. +For this was no common war. In Royalist eyes it was a servile revolt, +and was to be treated as servile revolts during the Middle Ages had +always been treated. Again and again, with all solemnity, the Royalists +had declared that were they to return as conquerors no stone of Paris +should be left standing on another, and that the inhabitants should +expire in the ashes of their homes on the rack and the wheel. + +Though Danton had many and obvious weaknesses he was a good lawyer, and +Danton perceived that though he might not have been able to prevent the +September massacres, and although they might have been and probably were +inevitable under the tension which prevailed, yet that any court, even a +political court, would be better than Marat's mob. Some months later he +explained his position to the Convention when it was considering the +erection of the tribunal which finally sent Danton himself to the +scaffold. "Nothing is more difficult than to define a political crime. +But, if a simple citizen, for any ordinary crime, receives immediate +punishment, if it is so difficult to reach a political crime, is it not +necessary that extraordinary laws ... intimidate the rebels and reach +the culpable? Here public safety requires strong remedies and terrible +measures. I see no compromise between ordinary forms and a revolutionary +tribunal. History attests this truth; and since members have dared in +this assembly to refer to those bloody days which every good citizen has +lamented, I say that, if such a tribunal had then existed, the people +who have been so often and so cruelly reproached for them, would never +have stained them with blood; I say, and I shall have the assent of all +who have watched these movements, that no human power could have checked +the outburst of the national vengeance." + +In this perversion of the courts lay, as I understand it, the foulest +horror of the French Revolution. It was the effect of the rigidity of +privilege, a rigidity which found its incarnation in the judiciary. The +constitutional decisions of the parliaments under the old régime would +alone have made their continuance impossible, but the worst evil was +that, after the shell crumbled, the mind within the shell survived, and +discredited the whole regular administration of justice. When the +National Assembly came to examine grievances it found protests against +the judicial system from every corner of France, and it referred these +petitions to a committee which reported in August, 1789. Setting aside +the centralization and consolidation of the system as being, for us, +immaterial, the committee laid down four leading principles of reform. +First, purchase of place should be abolished, and judicial office should +be recognized as a public trust. Second, judges should be confined to +applying, and restrained from interpreting, the law. That is to say, the +judges should be forbidden to legislate. Third, the judges should be +brought into harmony with public opinion by permitting the people to +participate in their appointment. Fourth, the tendency toward rigor in +criminal cases, which had become a scandal under the old régime, should +be tempered by the introduction of the jury. Bergasse proposed that +judicial appointments should be made by the executive from among three +candidates selected by the provincial assemblies. After long and very +remarkable debates the plan was, in substance, adopted in May, 1790, +except that the Assembly decided, by a majority of 503 to 450, that the +judges should be elected by the people for a term of six years, without +executive interference. In the debate Cazalès represented the +conservatives, Mirabeau the liberals. The vote was a test vote and shows +how strong the conservatives were in the Assembly up to the +reorganization of the Clergy in July, 1790, and the electoral assemblies +of the districts, which selected the judges, seem, on the whole, to have +been rather more conservative than the Assembly. In the election not a +sixth of those who were enfranchised voted for the delegates who, in +turn, chose the judges, and these delegates were usually either eminent +lawyers themselves, or wealthy merchants, or men of letters. The result +was a bench not differing much from an old parliament, and equally +incapable of understanding the convulsion about them. + +Installed early in 1791, not a year elapsed before these magistrates +became as ill at ease as had been those whom they displaced, and in +March, 1792, Jean Debry formally demanded their recall, although their +terms properly were to expire in 1796. During the summer of 1792 they +sank into contempt and, after the massacres, the Legislative Assembly, +just before its dissolution, provided for a new constituency for the +judicial elections. This they degraded so far that, out of fifty-one +magistrates to be chosen in Paris, only twelve were professionally +trained. Nor did the new courts inspire respect. After the 10th of +August one or two special tribunals were organized to try the Swiss +Guard who surrendered in the Palace, and other political offenders, but +these proved to be so ineffective that Marat thrust them aside, and +substituted for them his gangs of murderers. No true and permanent +political court was evolved before Danton had to deal with the treason +of Dumouriez, nor was this tribunal perfected before Danton gave way to +the Committee of Public Safety, when French revolutionary society became +incandescent, through universal attack from without and through +insurrection within. + +Danton, though an orator and a lawyer, possibly even a statesman, was +not competent to cope with an emergency which exacted from a minister +administrative genius like that of Carnot. Danton's story may be briefly +told. At once after Valmy the Convention established the Republic; on +January 21, 1793, Louis was beheaded; and between these two events a new +movement had occurred. The Revolutionists felt intuitively that, if they +remained shut up at home, with enemies without and traitors within, they +would be lost. If the new ideas were sound they would spread, and Valmy +had proved to them that those ideas had already weakened the invading +armies. Danton declared for the natural boundaries of France,--the +Rhine, the Alps, and the ocean,--and the Convention, on January 29, +1793, threw Dumouriez on Holland. This provoked war with England, and +then north, south, and east the coalition was complete. It represented +at least half a million fighting men. Danton, having no military +knowledge or experience, fixed his hopes on Dumouriez. To Danton, +Dumouriez was the only man who could save France. On November 6, 1792, +Dumouriez defeated the Austrians at Jemmapes; on the 14th, he entered +Brussels, and Belgium lay helpless before him. On the question of the +treatment of Belgium, the schism began which ended with his desertion. +Dumouriez was a conservative who plotted for a royal restoration under, +perhaps, Louis Philippe. The Convention, on the contrary, determined to +revolutionize Belgium, as France had been revolutionized, and to this +end Cambon proposed to confiscate and sell church land and emit +assignats. Danton visited Dumouriez to attempt to pacify him, but found +him deeply exasperated. Had Danton been more sagacious he would have +been suspicious. Unfortunately for him he left Dumouriez in command. In +February, Dumouriez invaded Holland and was repulsed, and he then fell +back to Brussels, not strong enough to march to Paris without support, +it is true, but probably expecting to be strong enough as soon as the +Vendean insurrection came to a head. Doubtless he had relations with the +rebels. At all events, on March 10, the insurrection began with the +massacre of Machecoul, and on March 12, 1793, Dumouriez wrote a letter +to the Convention which was equivalent to a declaration of war. He then +tried to corrupt his army, but failed, and on April 4, 1793, fled to +the Austrians. Meanwhile, La Vendée was in flames. To appreciate the +situation one must read Carnot's account of the border during these +weeks when he alone, probably, averted some grave disaster. For my +purpose it suffices to say that the pressure was intense, and that this +intense pressure brought forth the Revolutionary Tribunal, or the +political court. + +On March 10, 1793, the Convention passed a decree constituting a court +of five judges and a jury, to be elected by the Convention. To these was +joined a public prosecutor. Fouquier-Tinville afterward attained to a +sombre fame in this position. Six members of the Convention were to sit +as a commission to supervise drawing the indictments, the preparation of +evidence, and also to advise the prosecutor. The punishments, under the +limitations of the Penal Code and other criminal laws, were to be within +the discretion of the court, whose judgments were to be final.[40] Death +was accompanied by confiscation of property. + +Considering that this was an extraordinary tribunal, working under +extreme tension, which tried persons against whom usually the evidence +was pretty conclusive, its record for the first six months was not +discreditable. Between April 6 and September 21, 1793, it rendered +sixty-three sentences of death, thirteen of transportation, and +thirty-eight acquittals. The trials were held patiently, testimony was +heard, and the juries duly deliberated. Nevertheless the Terror deepened +as the stress upon the new-born republic increased. Nothing more awful +can be imagined than the ordeal which France endured between the meeting +of the Convention in September, 1792, and the completion of the +Committee of Public Safety in August, 1793. Hemmed in by enemies, the +revolution glowed in Paris like molten lava, while yet it was torn by +faction. Conservative opinion was represented by the Girondists, radical +opinion by the Mountain, and between the two lay the Plain, or the +majority of the Convention, who embodied the social centre of gravity. +As this central mass swayed, so did supremacy incline. The movement was +as accurate as that of any scientific instrument for registering any +strain. Dumouriez's treason in April left the northern frontier open, +save for a few fortresses which still held out. When those should fall +the enemy could make a junction with the rebels in Vendée. Still the +Girondists kept control, and even elected Isnard, the most violent among +them, President of the Convention. Then they had the temerity to arrest +a member of the Commune of Paris, which was the focus of radicalism. +That act precipitated the struggle for survival and with it came the +change in equilibrium. On June 2, Paris heard of the revolt of Lyons and +of the massacre of the patriots. The same day the Sections invaded the +Convention and expelled from their seats in the Tuileries twenty-seven +Girondists. The Plain or Centre now leant toward the Mountain, and, on +July 10, the Committee of Public Safety, which had been first organized +on April 6, 1793, directly after Dumouriez's treason, was reorganized by +the addition of men like Saint-Just and Couthon, with Prieur, a lawyer +of ability and energy, for President. On July 12, 1793, the Austrians +took Condé, and on July 28, Valenciennes; while on July 25, Kleber, +starving, surrendered Mayence. Nothing now but their own inertia stood +between the allies and La Vendée. Thither indeed Kellermann's men were +sent, since they had promised not to serve against the coalition for a +year, but even of these a division was surrounded and cut to pieces in +the disaster of Torfou. A most ferocious civil war soon raged throughout +France. Caen, Bordeaux, Lyons, Marseilles, declared against the +Convention. The whole of the northwest was drenched in blood by the +Chouans. Sixty departments were in arms. On August 28 the Royalists +surrendered Toulon to the English, who blockaded the coasts and supplied +the needs of the rebels. About Paris the people were actually starving. +On July 27 Robespierre entered the Committee of Safety; Carnot, on +August 14. This famous committee was a council of ten forming a pure +dictatorship. On August 16, the Convention decreed the _Levée en Masse_. + +When Carnot became Minister of War to this dictatorship the Republic had +479,000 demoralized soldiers with the colors, under beaten and +discredited commanders. Bouillé had conspired against the +States-General, Lafayette against the Legislative Assembly, and +Dumouriez against the Convention. One year from that time it had a +superb force, 732,000 strong, commanded by Jourdan and Pichegru, Hoche, +Moreau, and Bonaparte. Above all Carnot loved Hoche. Up to Valmy the old +regular army, however shaken, had remained as a core. Then it became +merged in a mass of volunteers, and these volunteers had to be armed and +disciplined and fed and led against the greatest and strongest coalition +which the modern world had ever seen. France, under Camot, became a vast +workshop. Its most eminent scientific men taught the people how to +gather saltpetre and the government how to manufacture powder and +artillery. Horses had to be obtained. Carnot was as reckless of himself +as of others. He knew no rest. There was that to be done which had to be +done quickly and at any cost; there was that or annihilation. + +On October 21, 1794, when the people had gathered in the Champ de Mars +to celebrate the Festival of Victories, after the President of the +Convention had proclaimed that the Republic had been delivered, Carnot +announced what had been accomplished. + +France had won twenty-seven victories, of which eight had been pitched +battles. + +One hundred and twenty lesser combats. France had killed eighty +thousand enemies. + +Had taken ninety-one thousand prisoners. + +Also one hundred and sixteen places or towns, six after siege. + +Two hundred and thirty forts or redoubts. + +Three thousand eight hundred cannon. + +Seventy thousand muskets. + +Ninety flags. + +As Benjamin Constant has observed, nothing can change the stupendous +fact "that the Convention found the enemy at thirty leagues from Paris, +... and made peace at thirty leagues from Vienna." + +Under the stimulus of a change in environment of mind is apt to expand +with something of this resistless energy. It did so in the Reformation. +It may be said almost invariably to do so, when decay does not +supervene, and it now concerns us to consider, in some rough way, what +the cost to the sinking class of attempting repression may be, when it +miscalculates its power in such an emergency. + +I take it to be tolerably clear that, if the French privileged classes +had accepted the reforms of Turgot in good faith, and thus had spread +the movement of the revolution over a generation, there would have been +no civil war and no confiscations, save confiscations of ecclesiastical +property. I take it also that there would have been no massacres and no +revolutionary tribunals, if France in 1793 had fought foreign enemies +alone, as England did in 1688. Even as it was the courts did not grow +thoroughly political until the preservation of the new type of mind came +to hinge largely on the extermination of the old. Danton's first and +relatively benign revolutionary tribunal, established in March, 1793, +was reorganized by the Committee of Public Safety in the following +autumn, by a series of decrees of which the most celebrated is that of +September 17, touching suspected persons. By these decrees the tribunal +was enlarged so that, in the words of Danton, every day an aristocratic +head might fall. The committee presented a list of judges, and the +object of the law was to make the possession of a reactionary mind a +capital offence. It is only in extreme exigencies that pure thinking by +a single person becomes a crime. Ordinarily, a crime consists of a +malicious thought coupled with an overt act, but in periods of high +tension, the harboring of any given thought becomes criminal. Usually +during civil wars test oaths are tendered to suspected persons to +discover their loyalty. For several centuries the Church habitually +burnt alive all those who denied the test dogma of transubstantiation, +and during the worst spasm of the French Revolution to believe in the +principle of monarchy and privilege was made capital with confiscation +of property. + +The question which the Convention had to meet was how to establish the +existence of a criminal mind, when nothing tangible indicated it. The +old régime had tortured. To prove heresy the Church also had always used +torture. The Revolution proceeded more mildly. It acted on suspicion. +The process was simple. The Committee, of whom in this department +Robespierre was the chief, made lists of those who were to be condemned. +There came to be finally almost a complete absence of forms. No evidence +was necessarily heard. The accused, if inconvenient, was not allowed to +speak. If there were doubt touching the probability of conviction, +pressure was put upon the court. I give one or two examples: Scellier, +the senior associate judge of the tribunal, appears to have been a good +lawyer and a fairly worthy man. One day in February, 1794, Scellier was +at dinner with Robespierre, when Robespierre complained of the delays of +the court. Scellier replied that without the observance of forms there +could be no safety for the innocent. "Bah!" replied Robespierre,--"you +and your forms: wait; soon the Committee will obtain a law which will +suppress forms, and then we shall see." Scellier ventured no answer. +Such a law was drafted by Couthon and actually passed on 22 Prairial +(June 10, 1794), and yet it altered little the methods of +Fouquier-Tinville as prosecuting officer. Scellier having complained of +this law of Prairial to Saint-Just, Saint-Just replied that if he were +to report his words, or that he was flinching, to the Committee, +Scellier would be arrested. As arrest was tantamount to sentence of +death, Scellier continued his work. + +Without reasoning the subject out logically from premise to conclusion, +or being, of course, capable of doing so in the mass, Frenchmen had +collectively received the intuition that everything must be endured for +a strong government, and that whatever obstructed that government must +be eliminated. For the process of elimination they used the courts. +Under the conditions in which they were placed by the domestic enemy, +they had little alternative. If a political party opposed the +Dictatorship in the Convention, that party must be broken down; if a man +seemed likely to become a rival for the Dictatorship, that man must be +removed; all who conspired against the Republic must be destroyed as +ruthlessly at home as on the battle-field. The Republic was insolvent, +and must have money, as it must have men. If the government needed men, +it took them,--all. If it needed money, and a man were rich, it did not +hesitate to execute him and confiscate his property. There are very +famous examples of all these phenomena strewn through the history of the +Terror. + +The Girondists were liberals. They always had been liberals; they had +never conspired against the Republic; but they were impracticable. The +ablest of them, Vergniaud, complained before the Tribunal, that he was +being tried for what he thought, not for what he had done. This the +government denied, but it was true. Nay, more; he was tried not for +positive but for negative opinions, and he was convicted and executed, +and his friends were convicted and executed with him, because, had they +remained in the Convention, the Dictatorship, through their opposition, +would have lost its energy. Also the form of the conviction was shocking +in the extreme. The defence of these twenty-one men was, practically, +suppressed, and the jury were directed to bring in a verdict of guilty. +Still the prosecutions of the Girondists stopped here. When they +refrained from obstruction, they were spared. + +Danton and his friends may have been, and probably were, whether +intentionally or by force of circumstances, a menace to the +Dictatorship. Either Robespierre or Danton had to be eliminated. There +was not room for both. On April 1, 1793, Danton, Camille Desmoulins, and +others were arrested on a warrant signed by such men as Cambacérès, +Carnot, and Prieur. Carnot in particular was a soldier of the highest +character and genius. He would have signed no such warrant had he not +thought the emergency pressing. Nor was the risk small. Danton was so +popular and so strong before a jury that the government appears to have +distrusted even Fouquier-Tinville, for an order was given, and held in +suspense, apparently to Henriot, to arrest the President and the Public +Prosecutor of the Revolutionary Tribunal, on the day of Danton's trial. + +Under such a stimulant Fouquier did his best, but he felt himself to be +beaten. Examining Cambon, Danton broke out: "Do you believe us to be +conspirators? Look, he laughs, he don't believe it. Record that he has +laughed." Fouquier was at his wits' end. If the next day the jury were +asked if they had heard enough, and they answered, "No," there would be +an acquittal, and then Fouquier's own head would roll into the basket. +Probably there might even be insurrection. Fouquier wrote to the +Committee that they must obtain from the Convention a decree silencing +the defence. So grave was the crisis felt to be that the decree was +unanimously voted. When Fouquier heard that the decree was on its way, +he said, with a sigh of relief,--"Faith, we need it." But when it was +read, Danton sprung to his feet, raging, declaring that the public cried +out treason upon it. The President adjourned the court while the hall +resounded with the protests of the defendants and the shouts of the +police as they tore the condemned from the benches which they clutched +and dragged them through the corridors toward the prison. They emerged +no more until they mounted the carts which took them to the scaffold. + +Nor was it safe to hesitate if one were attached to this court. Fouquier +had a clerk named Paris-Fabricius. Now Paris had been a friend of Danton +and took his condemnation to heart. He even declined to sign the +judgment, which it was his duty to do. The next day, when he presented +himself to Fouquier, Fouquier looked at him sourly, and observed, "We +don't want men who reason here; we want business done." The following +morning Paris did not appear. His friends were disturbed, but he was not +to be found. He had been cast into a secret dungeon in the prison of the +Luxembourg. + +So, if a man were too rich it might go hard with him. +Louis-Philippe-Joseph, Duc d'Orleans, afterward known as Égalité, was +one of the most interesting figures among the old nobility. The +great-great-great-grandson of Louis XIII, he was a distant cousin of +Louis XVI, and ranked as the first noble of France beyond the royal +family. His education had been unfortunate. His father lived with a +ballet-dancer, while his mother, the Princess Henriette de +Bourbon-Conti, scandalized a society which was not easily shocked. +During the Terror the sans culottes everywhere averred that the Duke was +the son of a coachman in the service of the banker Duruet. Doubtless +this was false, but the princess had abundant liaisons not much more +reputable. Left to himself at sixteen years old, Égalité led a life of +extreme profligacy, but he married one of the most beautiful and +charming women of the age, whom he succeeded in inspiring with a devoted +affection. Born in 1747, his father died in 1785, leaving him, just at +the outbreak of the Revolution, the master of enormous wealth, and the +father of three sons who adored him. The eldest of these was the future +king, Louis-Philippe. The man must have had good in him to have been +loved as he was throughout life. He was besides more intelligent +touching the Revolution and its meaning than any man approaching him in +rank in France. The Duke, when a young man, served with credit in the +navy, but after the battle of Ushant, in 1778, where he commanded the +blue squadron, he was received with such enthusiasm in Paris, that +Marie-Antoinette obtained his dismissal from the service. From this +period he withdrew from court and his opposition to the government +began. He adopted republican ideas, which he drew from America, and he +educated his children as democrats. In 1789 he was elected to the +States-General, where he supported the fusion of the orders, and +attained to a popularity which, on one occasion, according to Madame de +Campan, nearly made the Queen faint from rage and grief. It was from the +garden of his palace of the Palais Royal that the column marched on July +14, wearing his colors, the red, white and blue, to storm the Bastille. +It seemed that he had only to go on resolutely to thrust the King aside +and become the ruler of France. He made no effort to do so. Mirabeau is +said to have been disgusted with his lack of ambition. He was charitable +also, and spent very large sums of money among the poor of Paris during +the years of distress which followed upon the social disorders. The +breach with the court, however, became steadily wider, and finally he +adhered to the party of Danton and voted for the condemnation of the +King. He sent two of his sons to serve in the army. The elder was still +with Dumouriez at the time of his treason. On April 6, 1793, when +Dumouriez's treachery had become known, the Assembly ordered the arrest +of the whole Bourbon family, and among them the Duke was apprehended and +sent to Marseilles. + +Thus it appears that whatever complaint his own order may have had +against Égalité, the Republic certainly had none. No man could have done +more for modern France than he. He abandoned his class, renounced his +name, gave his money, sent his sons to the war, and voted for his own +relative's death. No one feared him, and yet Robespierre had him brought +to Paris and guillotined. His trial was a form. Fouquier admitted that +he had been condemned before he left Marseilles. The Duke was, however, +very rich and the government needed his money. Every one understood the +situation. He was told of the order for his arrest one night when at +supper in his palace in Paris with his friend Monsieur de Monville. The +Duke, much moved, asked Monville if it were not horrible, after all the +sacrifices he had made and all that he had done. "Yes, horrible," said +Monville, coolly, "but what would you have? They have taken from your +Highness all they could get, you can be of no further use to them. +Therefore, they will do to you, what I do with this lemon" (he was +squeezing a lemon on a sole); "now I have all the juice." And he threw +the lemon into the fireplace. But yet even then Robespierre was not +satisfied. He harbored malice against this fallen man. On the way to the +scaffold he ordered the cart, in which the Duke sat, to stop before the +Palais Royal, which had been confiscated, in order that the Duke might +contemplate his last sacrifice for his country. The Duke showed neither +fear nor emotion. + +All the world knows the story of the Terror. The long processions of +carts carrying victims to the guillotine, these increasing in number +until after the Law of Prairial they averaged sixty or seventy a day in +Paris alone, while in the provinces there was no end. At Nantes, Carrier +could not work fast enough by a court, so he sank boat loads of +prisoners in the Loire. The hecatombs sacrificed at Lyons, and the "Red +Masses" of Orange, have all been described. The population of Toulon +sank from 29,000 to 7,000. All those, in fine, were seized and slain +who were suspected of having a mind tinged with caste, or of being +traitors to the Republic. And it was the Centre, or the majority of the +Convention, who did this, by tacitly permitting it to be done. That is +to say, France permitted it because the onslaught of the decaying class +made atrocities such as these appear to be a condition of +self-preservation. I doubt if, in human history, there be such another +and so awful an illustration of the possible effects of conservative +errors of judgment. + +For France never loved the Terror or the loathsome instruments, such as +Fouquier-Tinville, or Carrier, or Billaud-Varennes, or Collot-d'Herbois, +or Henriot, or Robespierre, or Couthon, who conducted it. On this point +there can, I think, be neither doubt nor question. I have tried to show +how the Terror began. It is easy to show how and why it ended. As it +began automatically by the stress of foreign and domestic war, so it +ended automatically when that stress was relieved. And the most curious +aspect of the phenomenon is that it did not end through the application +of force, but by common consent, and when it had ended, those who had +been used for the bloody work could not be endured, and they too were +put to death. The procession of dates is convincing. + +When, on July 27, 1793, Robespierre entered the Committee of Public +Safety, the fortunes of the Republic were near their nadir, but almost +immediately, after Carnot took the War Department on August 14, they +began to mend. On October 8, 1793, Lyons surrendered; on December 19, +1793, the English evacuated Toulon; and, on December 23, the +insurrection in La Vendée received its death blow at Savenai. There had +also been success on the frontiers. Carnot put Hoche in command in the +Vosges. On December 23, 1793, Hoche defeated Wurmser at Freschweiller, +when the Austrians, abandoning the lines of Wissembourg, fell back +across the Rhine. Thus by the end of 1793, save for the great border +fortresses of Valenciennes and Condé to the north, which commanded the +road from Brussels to Paris, the soil of France had been cleared of the +enemy, and something resembling domestic tranquillity had been restored +at home. Simultaneously, as the pressure lessened, rifts began to appear +in the knot of men who held the Dictatorship in the Republic. +Robespierre, Couthon, and Saint-Just coalesced, and gained control of +the police, while Billaud-Varennes, Collot-d'Herbois, and, secretly and +as far as he dared, Barère, formed an opposition. Not that the latter +were more moderate or merciful than Robespierre, but because, in the +nature of things, there could be but one Dictator, and it became a +question of the survival of the fittest. Carnot took little or no part +in active politics. He devoted himself to the war, but he disapproved of +the Terror and came to a breach with Saint-Just. Robespierre's power +culminated on June 10, 1794, with the passage of the Law of 22 Prairial, +which put the life of every Frenchman in his hand, and after which, save +for some dozen or two of his most intimate and devoted adherents like +Saint-Just, Couthon, Le Bas, Fouquier, Fleuriot the Mayor of Paris, and +Henriot, the commander of the national guard, no one felt his head safe +on his shoulders. It needed but security on the northern frontier to +cause the social centre of gravity to shift and Robespierre to fall, and +security came with the campaign of Fleurus. + +Jourdan and Pichegru were in command on the Belgian border, and on June +26, 1794, just sixteen days after the passage of the Law of Prairial, +Jourdan won the battle of Fleurus. This battle, though not decisive in +itself, led to decisive results. It uncovered Valenciennes and Condé, +which were invested, closing the entrance to France. On July 11, Jourdan +entered Brussels; on July 16, he won a crushing victory before Louvain +and the same day Namur opened its gates. On July 23, Pichegru, driving +the English before him, seized Antwerp. No Frenchman could longer doubt +that France was delivered, and with that certainty the Terror ended +without a blow. Eventually the end must have come, but it came +instantly, and, according to the old legend, it came through a man's +love for a woman. + +John Lambert Tallien, the son of the butler of the Marquis of Bercy, was +born in 1769, and received an education through the generosity of the +marquis, who noticed his intelligence. He became a journeyman printer, +and one day in the studio of Madame Lebrun, dressed in his workman's +blouse, he met Thérézia Cabarrus, Marquise de Fontenay, the most +seductive woman of her time, and fell in love with her on the instant. +Nothing, apparently, could have been more hopeless or absurd. But the +Revolution came. Tallien became prominent, was elected to the +Convention, grew to be influential, and in September, 1793, was sent to +Bordeaux, as representative of the Chamber, or as proconsul, as they +called it. There he, the all-powerful despot, found Thérézia, trying to +escape to Spain, in prison, humble, poor, shuddering in the shadow of +the guillotine. He saved her; he carried her through Bordeaux in triumph +in a car by his side. He took her with him to Paris, and there +Robespierre threw her into prison, and accused Tallien of corruption. On +June 12 Robespierre denounced him to the Convention, and on June 14, +1794, the Jacobins struck his name from the list of the club. When +Fleurus was fought Thérézia lay in La Force, daily expecting death, +while Tallien had become the soul of the reactionary party. On the 8 +Thermidor (July 26,1794) Tallien received a dagger wrapped in a note +signed by Thérézia,--"To-morrow they kill me. Are you then only a +coward?"[41] + +On the morrow the great day had come. Saint-Just rose in the Convention +to read a report to denounce Billaud, Collot, and Camot. Tallien would +not let him be heard. Billaud followed him. Collot was in the chair. +Robespierre mounted the tribune and tried to speak. It was not without +reason that Thérézia afterwards said, "This little hand had somewhat to +do with overthrowing the guillotine," for Tallien sprang on him, dagger +in hand, and, grasping him by the throat, cast him from the tribune, +exclaiming, "I have armed myself with a dagger to pierce his heart if +the Convention dare not order his accusation." Then rose a great shout +from the Centre, "Down with the tyrant, arrest him, accuse him!" From +the Centre, which until that day had always silently supported the +Robespierrian Dictatorship. Robespierre for the last time tried to +speak, but his voice failed him. "It's Danton's blood that chokes him; +arrest him, arrest him!" they shouted from the Right. Robespierre +dropped exhausted on a bench, then they seized him, and his brother, and +Couthon, and Saint-Just, and ordered that the police should take them to +prison. + +But it was one thing for the Convention to seize Robespierre singly, and +within its own hall; it was quite another for it to hold him and send +him to the guillotine. The whole physical force of Paris was nominally +with Robespierre. The Mayor, Fleuriot, closed the barriers, sounded the +tocsin, and forbade any jailer to receive the prisoners; while Henriot, +who had already been drinking, mounted a horse and galloped forth to +rouse the city. Fleuriot caused Robespierre, Couthon, and Le Bas to be +brought to the City Hall. A provisional government was completed. It +only remained to disperse the Assembly. Henriot undertook a duty which +looked easy. He seems to have collected about twenty guns, which he +brought to the Tuileries and trained on the hall of the Convention. The +deputies thought all was over. Collot-d'Herbois took the chair, which +was directly in range, put on his hat, and calmly said, as Henriot gave +the order to fire, "We can at least die at our post." No volley +came--the men had mutinied. Then the Convention declared Henriot beyond +the protection of the law, and Henriot fled to the City Hall. The +Convention chose Barras to command their armed force, but save a few +police they had no force. The night was wearing away and Fleuriot had +not been able to persuade Robespierre to take any decisive step. +Robespierre was, indeed, only a pettifogging attorney. At length he +consented to sign an appeal to arms. He had written two letters of his +name--"Ro"--when a section of police under Barras reached the City Hall. +They were but a handful, but the door was unguarded. They mounted the +stairs and as Robespierre finished the "o", one of these men, named +Merda, fired on him, breaking his jaw. The stain of blood is still on +the paper where Robespierre's head fell. They shot Couthon in the leg, +they threw Henriot out of the window into a cesspool below where he +wallowed all night, while Le Bas blew out his brains. The next day they +brought Robespierre to the Convention, but the Convention refused to +receive him. They threw him on a table, where he lay, horrible to be +seen, his coat torn down the back, his stockings falling over his heels, +his shirt open and soaking with blood, speechless, for his mouth was +filled with splinters of his broken jaw. Such was the man who the +morning before had been Dictator, and master of all the armies of +France. Couthon was in little better plight. Twenty-one in all were +condemned on the 10 Thermidor and taken in carts to the guillotine. An +awful spectacle. There was Robespierre with his disfigured face, half +dead, and Fleuriot, and Saint-Just, and Henriot next to Robespierre, his +forehead gashed, his right eye hanging down his cheek, dripping with +blood, and drenched with the filth of the sewer in which he had passed +the night. Under their feet lay the cripple Couthon, who had been thrown +in like a sack. Couthon was paralyzed, and he howled in agony as they +wrenched him straight to fasten him to the guillotine. It took a quarter +of an hour to finish with him, while the crowd exulted. A hundred +thousand people saw the procession and not a voice or a hand was raised +in protest. The whole world agreed that the Terror should end. But the +oldest of those who suffered on the 10 Thermidor was Couthon, who was +thirty-eight, Robespierre was thirty-five, and Saint-Just but +twenty-seven. + +So closed the Terror with the strain which produced it. It will remain a +by-word for all time, and yet, appalling as it may have been, it was the +legitimate and the logical result of the opposition made by caste to the +advent of equality before the law. Also, the political courts served +their purpose. They killed out the archaic mind in France, a mind too +rigid to adapt itself to a changing environment. Thereafter no organized +opposition could ever be maintained against the new social equilibrium. +Modern France went on steadily to a readjustment, on the basis of +unification, simplification of administration, and equality before the +law, first under the Directory, then under the Consulate, and finally +under the Empire. With the Empire the Civil Code was completed, which I +take to be the greatest effort at codification of modern times. +Certainly it has endured until now. Governments have changed. The Empire +has yielded to the Monarchy, the Monarchy to the Republic, the Republic +to the Empire again, and that once more to the Republic, but the Code +which embodies the principle of equality before the law has remained. +Fundamentally the social equilibrium has been stable. And a chief reason +of this stability has been the organization of the courts upon rational +and conservative principles. During the Terror France had her fill of +political tribunals. Since the Terror French judges, under every +government, have shunned politics and have devoted themselves to +construing impartially the Code. Therefore all parties, and all ranks, +and all conditions of men have sustained the courts. In France, as in +England, there is no class jealousy touching the control of the +judiciary. + + +FOOTNOTES: + +[40] _Histoire du Tribunal Revolutionaire de Paris_, H. Wallon, I, 57. + +[41] "C'est demain qu'on me tue; n'êtes-vous donc qu'un lache?" + + + + +CHAPTER VI + +INFERENCES + + +As the universe, which at once creates and destroys life, is a complex +of infinitely varying forces, history can never repeat itself. It is +vain, therefore, to look in the future for some paraphrase of the past. +Yet if society be, as I assume it to be, an organism operating on +mechanical principles, we may perhaps, by pondering upon history, learn +enough of those principles to enable us to view, more intelligently than +we otherwise should, the social phenomena about us. What we call +civilization is, I suspect, only, in proportion to its perfection, a +more or less thorough social centralization, while centralization, very +clearly, is an effect of applied science. Civilization is accordingly +nearly synonymous with centralization, and is caused by mechanical +discoveries, which are applications of scientific knowledge, like the +discovery of how to kindle fire, how to build and sail ships, how to +smelt metals, how to prepare explosives, how to make paper and print +books, and the like. And we perceive on a little consideration that from +the first great and fundamental discovery of how to kindle fire, every +advance in applied science has accelerated social movement, until the +discovery of steam and electricity in the eighteenth and nineteenth +centuries quickened movement as movement had never been quickened +before. And this quickening has caused the rise of those vast cities, +which are at once our pride and our terror. + +Social consolidation is, however, not a simple problem, for social +consolidation implies an equivalent capacity for administration. I take +it to be an axiom, that perfection in administration must be +commensurate to the bulk and momentum of the mass to be administered, +otherwise the centrifugal will overcome the centripetal force, and the +mass will disintegrate. In other words, civilization would dissolve. It +is in dealing with administration, as I apprehend, that civilizations +have usually, though not always, broken down, for it has been on +administrative difficulties that revolutions have for the most part +supervened. Advances in administration seem to presuppose the evolution +of new governing classes, since, apparently, no established type of mind +can adapt itself to changes in environment, even in slow-moving +civilizations, as fast as environments change. Thus a moment arrives +when the minds of any given dominant type fail to meet the demands made +upon them, and are superseded by a younger type, which in turn is set +aside by another still younger, until the limit of the administrative +genius of that particular race has been reached. Then disintegration +sets in, the social momentum is gradually relaxed, and society sinks +back to a level at which it can cohere. To us, however, the most +distressing aspect of the situation is, that the social acceleration is +progressive in proportion to the activity of the scientific mind which +makes mechanical discoveries, and it is, therefore, a triumphant science +which produces those ever more rapidly recurring changes in environment +to which men must adapt themselves at their peril. As, under the +stimulant of modern science, the old types fail to sustain themselves, +new types have to be equally rapidly evolved, and the rise of a new +governing class is always synonymous with a social revolution and a +redistribution of property. The Industrial Revolution began almost +precisely a century and a half ago, since when the scientific mind has +continually gained in power, and, during that period, on an average of +once in two generations, the environment has so far shifted that a +social revolution has occurred, accompanied by the advent of a new +favored class, and a readjustment of wealth. I think that a glance at +American history will show this estimate to be within the truth. At the +same time such rapidity of intellectual mutation is without precedent, +and I should suppose that the mental exhaustion incident thereto must be +very considerable. + +In America, in 1770, a well-defined aristocracy held control. As an +effect of the Industrial Revolution upon industry and commerce, the +Revolutionary War occurred, the colonial aristocracy misjudged the +environment, adhered to Great Britain, were exiled, lost their property, +and perished. Immediately after the American Revolution and also as a +part of the Industrial Revolution, the cotton gin was invented, and the +cotton gin created in the South another aristocracy, the cotton +planters, who flourished until 1860. At this point the changing of the +environment, caused largely by the railway, brought a pressure upon the +slave-owners against which they, also failing to comprehend their +situation, rebelled. They were conquered, suffered confiscation of their +property, and perished. Furthermore, the rebellion of the aristocracy at +the South was caused, or at all events was accompanied by, the rise of a +new dominant class at the North, whose power rested upon the development +of steam in transportation and industry. This is the class which has won +high fortune by the acceleration of the social movement, and the +consequent urban growth of the nineteenth century, and which has now for +about two generations dominated in the land. If this class, like its +predecessors, has in its turn mistaken its environment, a redistribution +of property must occur, distressing, as previous redistributions have +been, in proportion to the inflexibility of the sufferers. The last two +redistributions have been painful, and, if we examine passing phenomena +from this standpoint, they hardly appear to promise much that is +reassuring for the future. + +Administration is the capacity of coördinating many, and often +conflicting, social energies in a single organism, so adroitly that they +shall operate as a unity. This presupposes the power of recognizing a +series of relations between numerous special social interests, with all +of which no single man can be intimately acquainted. Probably no very +highly specialized class can be strong in this intellectual quality +because of the intellectual isolation incident to specialization; and +yet administration or generalization is not only the faculty upon which +social stability rests, but is, possibly, the highest faculty of the +human mind. It is precisely in this preëminent requisite for success in +government that I suspect the modern capitalistic class to be weak. The +scope of the human intellect is necessarily limited, and modern +capitalists appear to have been evolved under the stress of an +environment which demanded excessive specialization in the direction of +a genius adapted to money-making under highly complex industrial +conditions. To this money-making attribute all else has been sacrificed, +and the modern capitalist not only thinks in terms of money, but he +thinks in terms of money more exclusively than the French aristocrat or +lawyer ever thought in terms of caste. The modern capitalist looks upon +life as a financial combat of a very specialized kind, regulated by a +code which he understands and has indeed himself concocted, but which is +recognized by no one else in the world. He conceives sovereign powers to +be for sale. He may, he thinks, buy them; and if he buys them; he may +use them as he pleases. He believes, for instance, that it is the +lawful, nay more! in America, that it is the constitutional right of the +citizen to buy the national highways, and, having bought them, to use +them as a common carrier might use a horse and cart upon a public road. +He may sell his service to whom he pleases at what price may suit him, +and if by doing so he ruins men and cities, it is nothing to him. He is +not responsible, for he is not a trustee for the public. If he be +restrained by legislation, that legislation is in his eye an oppression +and an outrage, to be annulled or eluded by any means which will not +lead to the penitentiary. He knows nothing and cares less, for the +relation which highways always have held, and always must hold, to every +civilized population, and if he be asked to inform himself on such +subjects he resents the suggestion as an insult. He is too specialized +to comprehend a social relation, even a fundamental one like this, +beyond the narrow circle of his private interests. He might, had he so +chosen, have evolved a system of governmental railway regulation, and +have administered the system personally, or by his own agents, but he +could never be brought to see the advantage to himself of rational +concession to obtain a resultant of forces. He resisted all restraint, +especially national restraint, believing that his one weapon +--money--would be more effective in obtaining what he wanted in +state legislatures than in Congress. Thus, of necessity, he precipitates +a conflict, instead of establishing an adjustment. He is, therefore, in +essence, a revolutionist without being aware of it. The same specialized +thinking appears in his reasoning touching actual government. New York +City will serve as an illustration. + +New York has for two generations been noted for a civic corruption which +has been, theoretically, abominable to all good citizens, and which the +capitalistic class has denounced as abominable to itself. I suspect this +to be an imaginative conception of the situation. Tammany Hall is, I +take it, the administrative bureau through which capital purchases its +privileges. An incorruptible government would offend capital, because, +under such a government, capital would have to obey the law, and +privilege would cease. Occasionally, Tammany grows rapacious and exacts +too much for its services. Then a reform movement is undertaken, and +finally a new management is imposed on Tammany; but when Tammany has +consented to a satisfactory scale of prices, the reform ends. To change +the system would imply a shift in the seat of power. In fine, money is +the weapon of the capitalist as the sword was the weapon of the +mediaeval soldier; only, as the capitalist is more highly specialized +than the soldier ever was, he is more helpless when his single weapon +fails him. From the days of William the Conqueror to our own, the great +soldier has been, very commonly, a famous statesman also, but I do not +now remember, in English or American history, a single capitalist who +has earned eminence for comprehensive statesmanship. On the contrary, +although many have participated in public affairs, have held high +office, and have shown ability therein, capitalists have not unusually, +however unjustly, been suspected of having ulterior objects in view, +unconnected with the public welfare, such as tariffs or land grants. +Certainly, so far as I am aware, no capitalist has ever acquired such +influence over his contemporaries as has been attained with apparent +ease by men like Cromwell, Washington, or even Jackson. + +And this leads, advancing in an orderly manner step by step, to what is, +perhaps, to me, the most curious and interesting of all modern +intellectual phenomena connected with the specialized mind,--the +attitude of the capitalist toward the law. Naturally the capitalist, of +all men, might be supposed to be he who would respect and uphold the law +most, considering that he is at once the wealthiest and most vulnerable +of human beings, when called upon to defend himself by physical force. +How defenceless and how incompetent he is in such exigencies, he proved +to the world some years ago when he plunged himself and the country into +the great Pennsylvania coal strike, with absolutely no preparation. +Nevertheless, in spite of his vulnerability, he is of all citizens the +most lawless.[42] He appears to assume that the law will always be +enforced, when he has need of it, by some special personnel whose duty +lies that way, while he may, evade the law, when convenient, or bring it +into contempt, with impunity. The capitalist seems incapable of feeling +his responsibility, as a member of the governing class, in this respect, +and that he is bound to uphold the law, no matter what the law may be, +in order that others may do the like. If the capitalist has bought some +sovereign function, and wishes to abuse it for his own behoof, he +regards the law which restrains him as a despotic invasion of his +constitutional rights, because, with his specialized mind, he cannot +grasp the relation of a sovereign function to the nation as a whole. He, +therefore, looks upon the evasion of a law devised for public +protection, but inimical to him, as innocent or even meritorious. + +If an election be lost, and the legislature, which has been chosen by +the majority, cannot be pacified by money, but passes some act which +promises to be annoying, the first instinct of the capitalist is to +retain counsel, not to advise him touching his duty under the law, but +to devise a method by which he may elude it, or, if he cannot elude it, +by which he may have it annulled as unconstitutional by the courts. The +lawyer who succeeds in this branch of practice is certain to win the +highest prizes at the bar. And as capital has had now, for more than one +or even two generations, all the prizes of the law within its gift, this +attitude of capital has had a profound effect upon shaping the American +legal mind. The capitalist, as I infer, regards the constitutional form +of government which exists in the United States, as a convenient method +of obtaining his own way against a majority, but the lawyer has learned +to worship it as a fetich. Nor is this astonishing, for, were written +constitutions suppressed, he would lose most of his importance and much +of his income. Quite honestly, therefore, the American lawyer has come +to believe that a sheet of paper soiled with printers' ink and +interpreted by half-a-dozen elderly gentlemen snugly dozing in +armchairs, has some inherent and marvellous virtue by which it can +arrest the march of omnipotent Nature. And capital gladly accepts this +view of American civilization, since hitherto capitalists have usually +been able to select the magistrates who decide their causes, perhaps +directly through the intervention of some president or governor whom +they have had nominated by a convention controlled by their money, or +else, if the judiciary has been elective, they have caused sympathetic +judges to be chosen by means of a mechanism like Tammany, which they +have frankly bought. + +I wish to make myself clearly understood. Neither capitalists nor +lawyers are necessarily, or even probably, other than conscientious men. +What they do is to think with specialized minds. All dominant types have +been more or less specialized, if none so much as this, and this +specialization has caused, as I understand it, that obtuseness of +perception which has been their ruin when the environment which favored +them has changed. All that is remarkable about the modern capitalist is +the excess of his excentricity, or his deviation from that resultant of +forces to which he must conform. To us, however, at present, neither +the morality nor the present mental excentricity of the capitalist is +so material as the possibility of his acquiring flexibility under +pressure, for it would seem to be almost mathematically demonstrable +that he will, in the near future, be subjected to a pressure under which +he must develop flexibility or be eliminated. + +There can be no doubt that the modern environment is changing faster +than any environment ever previously changed; therefore, the social +centre of gravity constantly tends to shift more rapidly; and therefore, +modern civilization has unprecedented need of the administrative or +generalizing mind. But, as the mass and momentum of modern society is +prodigious, it will require a correspondingly prodigious energy to carry +it safely from an unstable to a stable equilibrium. The essential is to +generate the energy which brings success; and the more the mind dwells +upon the peculiarities of the modern capitalistic class, the more doubts +obtrude themselves touching their ability to make the effort, even at +present, and still more so to make it in the future as the magnitude of +the social organism grows. One source of capitalistic weakness comes +from a lack of proper instruments wherewith to work, even supposing the +will of capital to be good; and this lack of administrative ability is +somewhat due to the capitalistic attitude toward education. In the +United States capital has long owned the leading universities by right +of purchase, as it has owned the highways, the currency, and the press, +and capital has used the universities, in a general way, to develop +capitalistic ideas. This, however, is of no great moment. What is of +moment is that capital has commercialized education. Apparently modern +society, if it is to cohere, must have a high order of generalizing +mind,--a mind which can grasp a multitude of complex relations,--but +this is a mind which can, at best, only be produced in small quantity +and at high cost. Capital has preferred the specialized mind and that +not of the highest quality, since it has found it profitable to set +quantity before quality to the limit which the market will endure. +Capitalists have never insisted upon raising an educational standard +save in science and mechanics, and the relative overstimulation of the +scientific mind has now become an actual menace to order because of the +inferiority of the administrative intelligence. + +Yet, even supposing the synthetic mind of the highest power to be +increasing in proportion to the population, instead of, as I suspect, +pretty rapidly decreasing, and supposing the capitalist to be fully +alive to the need of administrative improvements, a phalanx of +Washingtons would be impotent to raise the administrative level of the +United States materially, as long as the courts remain censors of +legislation; because the province of the censorial court is to dislocate +any comprehensive body of legislation, whose effect would be to change +the social status. That was the fundamental purpose which underlay the +adoption of a written constitution whose object was to keep local +sovereignties intact, especially at the South. Jefferson insisted that +each sovereignty should by means of nullification protect itself. It was +a long step in advance when the nation conquered the prerogative of +asserting its own sovereign power through the Supreme Court. Now the +intervention of the courts in legislation has become, by the change in +environment, as fatal to administration as would have been, in 1800, +the success of nullification. I find it difficult to believe that +capital, with its specialized views of what constitutes its advantages, +its duties, and its responsibilities, and stimulated by a bar moulded to +meet its prejudices and requirements, will ever voluntarily assent to +the consolidation of the United States to the point at which the +interference of the courts with legislation might be eliminated; +because, as I have pointed out, capital finds the judicial veto useful +as a means of at least temporarily evading the law, while the bar, taken +as a whole, quite honestly believes that the universe will obey the +judicial decree. No delusion could be profounder and none, perhaps, more +dangerous. Courts, I need hardly say, cannot control nature, though by +trying to do so they may, like the Parliament of Paris, create a +friction which shall induce an appalling catastrophe. + +True judicial courts, whether in times of peace or of revolution, seldom +fail to be a substantial protection to the weak, because they enforce an +established _corpus juris_ and conduct trials by recognized forms. It is +startling to compare the percentage of convictions to prosecutions, for +the same class of offences, in the regular criminal courts during the +French Revolution, with the percentage in the Revolutionary Tribunal. +And once a stable social equilibrium is reached, all men tend to support +judicial courts, if judicial courts exist, from an instinct of +self-preservation. This has been amply shown by French experience, and +it is here that French history is so illuminating to the American mind. +Before the Revolution France had semi-political courts which conduced to +the overthrow of Turgot, and, therefore, wrought for violence; but more +than this, France, under the old régime, had evolved a legal profession +of a cast of mind incompatible with an equal administration of the law. +The French courts were, therefore, when trouble came, supported only by +a faction, and were cast aside. With that the old régime fell. + +The young Duke of Chartres, the son of Égalité Orleans, and the future +Louis Philippe, has related in his journal an anecdote which illustrates +that subtle poison of distrust which undermines all legal authority, the +moment that suspicion of political partiality in the judiciary enters +the popular mind. In June, 1791, the Duke went down from Paris to +Vendôme to join the regiment of dragoons of which he had been +commissioned colonel. One day, soon after he joined, a messenger came to +him in haste to tell him that a mob had gathered near by who were about +to hang two priests. "I ran thither at once," wrote the Duke; "I spoke +to those who seemed most excited and impressed upon them how horrible it +was to hang men without trial; besides, to act as hangmen was to enter a +trade which they all thought infamous; that they had judges, and that +this was their affair. They answered that their judges were aristocrats, +and that they did not punish the guilty." That is to say, although the +priests were non-jurors, and, therefore, criminals in the eye of the +law, the courts would not enforce the law because of political bias.[43] +"It is your fault," I said to them, "since you elected them [the +judges], but that is no reason why you should do justice yourselves." + +Danton explained in the Convention that it was because of the deep +distrust of the judiciary in the public mind, which this anecdote +shows, that the September massacres occurred, and it was because all +republicans knew that the state and the army were full of traitors like +Dumouriez, whom the ordinary courts would not punish, that Danton +brought forward his bill to organize a true political tribunal to deal +with them summarily. When Danton carried through this statute he +supposed himself to be at the apex of power and popularity, and to be +safe, if any man in France were safe. Very shortly he learned the error +In his calculation. Billaud was a member of the Committee of Public +Safety, while Danton had allowed himself to be dropped from membership. +Danton had just been married, and to an aristocratic wife, and the +turmoil of office had grown to be distasteful to him. On March 30, 1794, +Billaud somewhat casually remarked, "We must kill Danton;" for in truth +Danton, with conservative leanings, was becoming a grave danger to the +extreme Jacobins. Had he lived a few months longer he would have been a +Thermidorist. Billaud, therefore, only expressed the prevailing Jacobin +opinion; so the Jacobins arrested Danton, Camille Desmoulins, and his +other friends, and Danton at once anticipated what would be his doom. As +he entered his cell he said to his jailer: "I erected the Tribunal. I +ask pardon of God and men." But even yet he did not grasp the full +meaning of what he had done. At his trial he wished to introduce his +evidence fully, protesting "that he should understand the Tribunal since +he created it;" nevertheless, he did not understand the Tribunal, he +still regarded it as more or less a court. Topino-Lebrun, the artist, +did understand it. Topino sat on the jury which tried Danton, and +observed that the heart of one of his colleagues seemed failing him. +Topino took the waverer aside, and said: "This is not a _trial_, it is a +_measure_. Two men are impossible; one must perish. Will you kill +Robespierre?--No.--Then by that admission you condemn Danton." Lebrun in +these few words went to the root of the matter, and stated the identical +principle which underlies our whole doctrine of the Police Power. A +political court is not properly a court at all, but an administrative +board whose function is to work the will of the dominant faction for the +time being. Thus a political court becomes the most formidable of all +engines for the destruction of its creators the instant the social +equilibrium shifts. So Danton found, in the spring of 1794, when the +equilibrium shifted; and so Robespierre, who slew Danton, found the next +July, when the equilibrium shifted again. + +Danton died on the 5th April, 1794; about three months later Jourdan won +the Fleurus campaign. Straightway Thermidor followed, and the Tribunal +worked as well for the party of Thermidor as it had for the Jacobins. +Carrier, who had wallowed in blood at Nantes, as the ideal Jacobin, +walked behind the cart which carried Robespierre to the scaffold, +shouting, "Down with the tyrant;" but that did not save him. In vain he +protested to the Convention that, were he guilty, the whole Convention +was guilty, "down to the President's bell." By a vote of 498 out of 500, +Carrier was sent before the Tribunal which, even though reorganized, +condemned him. Thérézia Cabarrus gaily presided at the closing of the +Jacobin Club, Tallien moved over to the benches on the right, and +therefore the court was ruthless to Fouquier. On the 11 Thermidor, +seventy members, officers, or partisans of the Commune of Paris, were +sent to the guillotine in only two batches. On the next day twelve more +followed, four of whom were jurymen. Fouquier's turn came later. It may +also be worth while for Americans to observe that a political court is +quite as effective against property as against life. The Duke of Orleans +is only the most celebrated example of a host of Frenchmen who perished, +not because of revenge, fear, or jealousy, but because the party in +power wanted their property. The famous Law touching Suspected Persons +(loi des suspects) was passed on September 17, 1793. On October 10, +1793, that is three weeks afterward, Saint-Just moved that additional +powers should be granted, by the Convention, to the Committee of Public +Safety, defining, by way of justification for his motion, those who fell +within the purview of this law. Among these, first of all, came "the +rich," who by that fact alone were to be considered, _prima facie_, +enemies to their country. + +As I stated at the beginning of this chapter, history never can repeat +itself; therefore, whatever else may happen in the United States, we +certainly shall have no Revolutionary Tribunal like the French Tribunal +of 1793, but the mechanical principle of the political court always +remains the same; it is an administrative board the control of which is +useful, or may be even essential, to the success of a dominant faction, +and the instinctive comprehension which the American people have of this +truth is demonstrated by the determination with which they have, for +many years, sought to impose the will of the majority upon the +judiciary. Other means failing to meet their expectations, they have now +hit on the recall, which is as revolutionary in essence as were the +methods used during the Terror. Courts, from the Supreme Court downward, +if purged by recall, or a process tantamount to recall, would, under +proper stress, work as surely for a required purpose as did the tribunal +supervised by Fouquier-Tinville. + +These considerations rather lead me to infer that the extreme complexity +of the administrative problems presented by modern industrial +civilization is beyond the compass of the capitalistic mind. If this be +so, American society, as at present organized, with capitalists for the +dominant class, can concentrate no further, and, as nothing in the +universe is at rest, if it does not concentrate, it must, probably, +begin to disintegrate. Indeed we may perceive incipient signs of +disintegration all about us. We see, for example, an universal contempt +for law, incarnated in the capitalistic class itself, which is +responsible for order, and in spite of the awful danger which impends +over every rich and physically helpless type should the coercive power +collapse. We see it even more distinctly in the chronic war between +capital and labor, which government is admittedly unable to control; we +see it in the slough of urban politics, inseparable from capitalistic +methods of maintaining its ascendancy; and, perhaps, most disquieting of +all, we see it in the dissolution of the family which has, for untold +ages, been the seat of discipline and the foundation of authority. For +the dissolution of the family is peculiarly a phenomenon of our +industrial age, and it is caused by the demand of industry for the cheap +labor of women and children. Napoleon told the lawyers who drafted the +Code that he insisted on one thing alone. They must fortify the family, +for, said he, if the family is responsible to the father and the father +to me, I can keep order in France. One of the difficulties, therefore, +which capital has to meet, by the aid of such administrative ability as +it can command, is how to keep order when society no longer rests on the +cohesive family, but on highly volatilized individuals as incohesive as +grains of sand. + +Meditating upon these matters, it is hard to resist the persuasion that +unless capital can, in the immediate future, generate an intellectual +energy, beyond the sphere of its specialized calling, very much in +excess of any intellectual energy of which it has hitherto given +promise, and unless it can besides rise to an appreciation of diverse +social conditions, as well as to a level of political sagacity, far +higher than it has attained within recent years, its relative power in +the community must decline. If this be so the symptoms which indicate +social disintegration will intensify. As they intensify, the ability of +industrial capital to withstand the attacks made upon it will lessen, +and this process must go on until capital abandons the contest to defend +itself as too costly. Then nothing remains but flight. Under what +conditions industrial capital would find migration from America +possible, must remain for us beyond the bounds even of speculation. It +might escape with little or no loss. On the other hand, it might fare as +hardly as did the southern slaveholders. No man can foresee his fate. In +the event of adverse fortune, however, the position of capitalists would +hardly be improved by the existence of political courts serving a +malevolent majority. Whatever may be in store for us, here at least, we +reach an intelligible conclusion. Should Nature follow such a course as +I have suggested, she will settle all our present perplexities as simply +and as drastically as she is apt to settle human perturbations, and she +will follow logically in the infinitely extended line of her own most +impressive precedents. + + +FOOTNOTES: + +[42] In these observations on the intellectual tendencies of capital I +speak generally. Not only individual capitalists, but great +corporations, exist, who are noble examples of law-abiding and +intelligent citizenship. Their rarity, however, and their +conspicuousness, seem to prove the general rule. + +[43] By the Law of November 27, 1790, priests refusing to swear +allegiance to the "civil constitution" of the clergy were punished by +loss of pay and of rights of citizenship if they continued their +functions. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Theory of Social Revolutions + +Author: Brooks Adams + +Release Date: January 6, 2004 [EBook #10613] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE THEORY OF SOCIAL REVOLUTIONS *** + + + + +Produced by Afra Ullah, Virginia Paque and PG Distributed Proofreaders + + + + + +</pre> + + +<p> </p> + +<p> </p> + +<p> </p> +<h1 align="center"> +<span style="layout-flow: horizontal; margin-left: 1.25em;">THE THEORY OF SOCIAL +REVOLUTIONS</span><br> +<span style="layout-flow: horizontal; margin-left: 1.25em;">BY</span><br> +<span style="layout-flow: horizontal; margin-left: 1.25em;">BROOKS ADAMS</span><br> +<br> +</h1> +<hr style="width: 45%;"> +<p align="center"> +<br> +<b> +<span style="layout-flow: horizontal; margin-left: 1.25em;">COPYRIGHT, 1923,</span><br> +<span style="layout-flow: horizontal; margin-left: 1.25em;">By THE ATLANTIC +MONTHLY COMPANY.</span><br> +<span style="layout-flow: horizontal; margin-left: 1.25em;">COPYRIGHT, 1913,</span><br> +<span style="layout-flow: horizontal; margin-left: 1.25em;">By THE MACMILLAN +COMPANY.</span></b><br> +<br> +<hr style="width: 45%;"> +<br> +<br> +<br> +<a name="PREFATORY_NOTE"></a> +<h2 align="center">PREFATORY NOTE</h2> +<p>The first chapter of the following book was published, in substantially its +present form, in the <i>Atlantic Monthly</i> for April, 1913. I have to thank +the editor for his courtesy in assenting to my wish to reprint. The other +chapters have not appeared before. I desire also to express my obligations to my +learned friend, Dr. M.M. Bigelow, who, most kindly, at my request, read chapters +two and three, which deal with the constitutional law, and gave me the benefit +of his most valuable criticism.</p> +<p>Further than this I have but one word to add. I have written in support of no +political movement, nor for any ephemeral purpose. I have written only to +express a deep conviction which is the result of more than twenty years of +study, and reflection upon this subject.</p> +<p>BROOKS ADAMS.</p> +<p>QUINCY, MASSACHUSETTS, May 17, 1913.</p> +<p> </p> +<p> </p> +<span style="layout-flow: horizontal; margin-left: 1.25em;"><b>CONTENTS</b></span><br> +<br> +<span style="layout-flow: horizontal; margin-left: 0.5em;">I. THE COLLAPSE OF +CAPITALISTIC GOVERNMENT</span><br> +<br> +<span style="layout-flow: horizontal; margin-left: 0.25em;">II. THE LIMITATIONS +OF THE JUDICIAL FUNCTION</span><br> +<br> +III. AMERICAN COURTS AS LEGISLATIVE CHAMBERS<br> +<br> +<span style="layout-flow: horizontal; margin-left: 0.25em;">IV. THE SOCIAL +EQUILIBRIUM</span><br> +<br> +<span style="layout-flow: horizontal; margin-left: 0.5em;">V. POLITICAL COURTS</span><br> +<br> +<span style="layout-flow: horizontal; margin-left: 0.25em;">VI. INFERENCES</span><br> +<br> +<span style="layout-flow: horizontal; margin-left: 1.25em;">INDEX [not included in this etext]</span><br> +<br> +<br> +<hr style="width: 65%;"> +<br> +<br> +<a name="THE_THEORY_OF_SOCIAL_REVOLUTIONS"></a> +<h1 align="center">THE THEORY OF SOCIAL REVOLUTIONS</h1> +<br> +<br> +<hr style="width: 65%;"> +<br> +<br> +<a name="CHAPTER_I"></a> +<h2 align="center">CHAPTER I</h2> +<p align="center">THE COLLAPSE OF CAPITALISTIC GOVERNMENT</p> +<br> +<p>Civilization, I apprehend, is nearly synonymous with order. However much we +may differ touching such matters as the distribution of property, the domestic +relations, the law of inheritance and the like, most of us, I should suppose, +would agree that without order civilization, as we understand it, cannot exist. +Now, although the optimist contends that, since man cannot foresee the future, +worry about the future is futile, and that everything, in the best possible of +worlds, is inevitably for the best, I think it clear that within recent years an +uneasy suspicion has come into being that the principle of authority has been +dangerously impaired, and that the social system, if it is to cohere, must be +reorganized. So far as my observation has extended, such intuitions are usually +not without an adequate cause, and if there be reason for anxiety anywhere, it +surely should be in the United States, with its unwieldy bulk, its heterogeneous +population, and its complex government. Therefore, I submit, that an hour may +not be quite wasted which is passed in considering some of the recent phenomena +which have appeared about us, in order to ascertain if they can be grouped +together in any comprehensible relation.</p> +<p>About a century ago, after, the American and French Revolutions and the +Napoleonic wars, the present industrial era opened, and brought with it a new +governing class, as every considerable change in human environment must bring +with it a governing class to give it expression. Perhaps, for lack of a +recognized name, I may describe this class as the industrial capitalistic class, +composed in the main of administrators and bankers. As nothing in the universe +is stationary, ruling classes have their rise, culmination, and decline, and I +conjecture that this class attained to its acme of popularity and power, at +least in America, toward the close of the third quarter of the nineteenth +century. I draw this inference from the fact that in the next quarter resistance +to capitalistic methods began to take shape in such legislation as the +Interstate Commerce Law and the Sherman Act, and almost at the opening of the +present century a progressively rigorous opposition found for its mouthpiece the +President of the Union himself. History may not be a very practical study, but +it teaches some useful lessons, one of which is that nothing is accidental, and +that if men move in a given direction, they do so in obedience to an impulsion +as automatic as is the impulsion of gravitation. Therefore, if Mr. Roosevelt +became, what his adversaries are pleased to call, an agitator, his agitation had +a cause which is as deserving of study as is the path of a cyclone. This problem +has long interested me, and I harbor no doubt not only that the equilibrium of +society is very rapidly shifting, but that Mr. Roosevelt has, +half-automatically, been stimulated by the instability about him to seek for a +new centre of social gravity. In plain English, I infer that he has concluded +that industrialism has induced conditions which can no longer be controlled by +the old capitalistic methods, and that the country must be brought to a level of +administrative efficiency competent to deal with the strains and stresses of the +twentieth century, just as, a hundred and twenty-five years ago, the country was +brought to an administrative level competent for that age, by the adoption of +the Constitution. Acting on these premises, as I conjecture, whether consciously +worked out or not, Mr. Roosevelt's next step was to begin the readjustment; but, +I infer, that on attempting any correlated measures of reform, Mr. Roosevelt +found progress impossible, because of the obstruction of the courts. Hence his +instinct led him to try to overleap that obstruction, and he suggested, without, +I suspect, examining the problem very deeply, that the people should assume the +right of "recalling" judicial decisions made in causes which involved +the nullifying of legislation. What would have happened had Mr. Roosevelt been +given the opportunity to thoroughly formulate his ideas, even in the midst of an +election, can never be known, for it chanced that he was forced to deal with +subjects as vast and complex as ever vexed a statesman or a jurist, under +difficulties at least equal to the difficulties of the task itself. If the +modern mind has developed one characteristic more markedly than another, it is +an impatience with prolonged demands on its attention, especially if the subject +be tedious. No one could imagine that the New York press of to-day would print +the disquisitions which Hamilton wrote in 1788 in support of the Constitution, +or that, if it did, any one would read them, least of all the lawyers; and yet +Mr. Roosevelt's audience was emotional and discursive even for a modern American +audience. Hence, if he attempted to lead at all, he had little choice but to +adopt, or at least discuss, every nostrum for reaching an immediate millennium +which happened to be uppermost; although, at the same time, he had to defend +himself against an attack compared with which any criticism to which Hamilton +may have been subjected resembled a caress. The result has been that the +Progressive movement, bearing Mr. Roosevelt with it, has degenerated into a +disintegrating rather than a constructive energy, which is, I suspect, likely to +become a danger to every one interested in the maintenance of order, not to say +in the stability of property. Mr. Roosevelt is admittedly a strong and +determined man whose instinct is arbitrary, and yet, if my analysis be sound, we +see him, at the supreme moment of his life, diverted from his chosen path toward +centralization of power, and projected into an environment of, apparently, for +the most part, philanthropists and women, who could hardly conceivably form a +party fit to aid him in establishing a vigorous, consolidated, administrative +system. He must have found the pressure toward disintegration resistless, and if +we consider this most significant phenomenon, in connection with an abundance of +similar phenomena, in other countries, which indicate social incoherence, we can +hardly resist a growing apprehension touching the future. Nor is that +apprehension allayed if, to reassure ourselves, we turn to history, for there we +find on every side long series of precedents more ominous still.</p> +<p>Were all other evidence lacking, the inference that radical changes are at +hand might be deduced from the past. In the experience of the English-speaking +race, about once in every three generations a social convulsion has occurred; +and probably such catastrophes must continue to occur in order that laws and +institutions may be adapted to physical growth. Human society is a living +organism, working mechanically, like any other organism. It has members, a +circulation, a nervous system, and a sort of skin or envelope, consisting of its +laws and institutions. This skin, or envelope, however, does not expand +automatically, as it would had Providence intended humanity to be peaceful, but +is only fitted to new conditions by those painful and conscious efforts which we +call revolutions. Usually these revolutions are warlike, but sometimes they are +benign, as was the revolution over which General Washington, our first great +"Progressive," presided, when the rotting Confederation, under his +guidance, was converted into a relatively excellent administrative system by the +adoption of the Constitution.</p> +<p>Taken for all in all, I conceive General Washington to have been the greatest +man of the eighteenth century, but to me his greatness chiefly consists in that +balance of mind which enabled him to recognize when an old order had passed +away, and to perceive how a new order could be best introduced. Joseph Story was +ten years old in 1789 when the Constitution was adopted; his earliest +impressions, therefore, were of the Confederation, and I know no better +description of the interval just subsequent to the peace of 1783, than is +contained in a few lines in his dissenting opinion in the Charles River Bridge +Case--</p> +<p>"In order to entertain a just view of this subject, we must go back to +that period of general bankruptcy, and distress and difficulty (1785).... The +union of the States was crumbling into ruins, under the old Confederation. +Agriculture, manufactures, and commerce were at their lowest ebb. There was +infinite danger to all the States from local interests and jealousies, and from +the apparent impossibility of a much longer adherence to that shadow of a +government, the Continental Congress. And even four years afterwards, when every +evil had been greatly aggravated, and civil war was added to other calamities, +the Constitution of the United States was all but shipwrecked in passing through +the state conventions."<a name="FNanchor1"></a><a href="#Footnote_1"><sup>[1]</sup></a></p> +<p>This crisis, according to my computation, was the normal one of the third +generation. Between 1688 and 1765 the British Empire had physically outgrown its +legal envelope, and the consequence was a revolution. The thirteen American +colonies, which formed the western section of the imperial mass, split from the +core and drifted into chaos, beyond the constraint of existing law. Washington +was, in his way, a large capitalist, but he was much more. He was not only a +wealthy planter, but he was an engineer, a traveller, to an extent a +manufacturer, a politician, and a soldier, and he saw that, as a conservative, +he must be "Progressive" and raise the law to a power high enough to +constrain all these thirteen refractory units. For Washington understood that +peace does not consist in talking platitudes at conferences, but in organizing a +sovereignty strong enough to coerce its subjects.</p> +<p>The problem of constructing such a sovereignty was the problem which +Washington solved, temporarily at least, without violence. He prevailed not only +because of an intelligence and elevation of character which enabled him to +comprehend, and to persuade others, that, to attain a common end, all must make +sacrifices, but also because he was supported by a body of the most remarkable +men whom America has ever produced. Men who, though doubtless in a numerical +minority, taking the country as a whole, by sheer weight of ability and energy, +achieved their purpose.</p> +<p>Yet even Washington and his adherents could not alter the limitations of the +human mind. He could postpone, but he could not avert, the impact of conflicting +social forces. In 1789 he compromised, but he did not determine the question of +sovereignty. He eluded an impending conflict by introducing courts as political +arbitrators, and the expedient worked more or less well until the tension +reached a certain point. Then it broke down, and the question of sovereignty had +to be settled in America, as elsewhere, on the field of battle. It was not +decided until Appomattox. But the function of the courts in American life is a +subject which I shall consider hereafter.</p> +<p>If the invention of gunpowder and printing in the fourteenth and fifteenth +centuries presaged the Reformation of the sixteenth, and if the Industrial +Revolution of the eighteenth was the forerunner of political revolutions +throughout the Western World, we may well, after the mechanical and economic +cataclysm of the nineteenth, cease wondering that twentieth-century society +should be radical.</p> +<p>Never since man first walked erect have his relations toward nature been so +changed, within the same space of time, as they have been since Washington was +elected President and the Parisian mob stormed the Bastille. Washington found +the task of a readjustment heavy enough, but the civilization he knew was +simple. When Washington lived, the fund of energy at man's disposal had not very +sensibly augmented since the fall of Rome. In the eighteenth, as in the fourth +century, engineers had at command only animal power, and a little wind and water +power, to which had been added, at the end of the Middle Ages, a low explosive. +There was nothing in the daily life of his age which made the legal and +administrative principles which had sufficed for Justinian insufficient for him. +Twentieth-century society rests on a basis not different so much in degree, as +in kind, from all that has gone before. Through applied science infinite forces +have been domesticated, and the action of these infinite forces upon finite +minds has been to create a tension, together with a social acceleration and +concentration, not only unparalleled, but, apparently, without limit. Meanwhile +our laws and institutions have remained, in substance, constant. I doubt if we +have developed a single important administrative principle which would be novel +to Napoleon, were he to live again, and I am quite sure that we have no legal +principle younger than Justinian.</p> +<p>As a result, society has been squeezed, as it were, from its rigid +eighteenth-century legal shell, and has passed into a fourth dimension of space, +where it performs its most important functions beyond the cognizance of the law, +which remains in a space of but three dimensions. Washington encountered a +somewhat analogous problem when dealing with the thirteen petty independent +states, which had escaped from England; but his problem was relatively +rudimentary. Taking the theory of sovereignty as it stood, he had only to apply +it to communities. It was mainly a question of concentrating a sufficient amount +of energy to enforce order in sovereign social units. The whole social detail +remained unchanged. Our conditions would seem to imply a very considerable +extension and specialization of the principle of sovereignty, together with a +commensurate increment of energy, but unfortunately the twentieth-century +American problem is still further complicated by the character of the envelope +in which this highly volatilized society is theoretically contained. To attain +his object, Washington introduced a written organic law, which of all things is +the most inflexible. No other modern nation has to consider such an impediment.</p> +<p>Moneyed capital I take to be stored human energy, as a coal measure is stored +solar energy; and moneyed capital, under the stress of modern life, has +developed at once extreme fluidity, and an equivalent compressibility. Thus a +small number of men can control it in enormous masses, and so it comes to pass +that, in a community like the United States, a few men, or even, in certain +emergencies, a single man, may become clothed with various of the attributes of +sovereignty. Sovereign powers are powers so important that the community, in its +corporate capacity, has, as society has centralized, usually found it necessary +to monopolize them more or less absolutely, since their possession by private +persons causes revolt. These powers, when vested in some official, as, for +example, a king or emperor, have been held by him, in all Western countries at +least, as a trust to be used for the common welfare. A breach of that trust has +commonly been punished by deposition or death. It was upon a charge of breach of +trust that Charles I, among other sovereigns, was tried and executed. In short, +the relation of sovereign and subject has been based either upon consent and +mutual obligation, or upon submission to a divine command; but, in either case, +upon recognition of responsibility. Only the relation of master and slave +implies the status of sovereign power vested in an unaccountable superior. +Nevertheless, it is in a relation somewhat analogous to the latter, that the +modern capitalist has been placed toward his fellow citizens, by the advances in +applied science. An example or two will explain my meaning.</p> +<p>High among sovereign powers has always ranked the ownership and +administration of highways. And it is evident why this should have been so. +Movement is life, and the stoppage of movement is death, and the movement of +every people flows along its highways. An invader has only to cut the +communications of the invaded to paralyze him, as he would paralyze an animal by +cutting his arteries or tendons. Accordingly, in all ages and in all lands, down +to the nineteenth century, nations even partially centralized have, in their +corporate capacity, owned and cared for their highways, either directly or +through accountable agents. And they have paid for them by direct taxes, like +the Romans, or by tolls levied upon traffic, as many mediaeval governments +preferred to do. Either method answers its purpose, provided the government +recognizes its responsibility; and no government ever recognized this +responsibility more fully than did the autocratic government of ancient Rome. So +the absolute régime of eighteenth-century France recognized this responsibility +when Louis XVI undertook to remedy the abuse of unequal taxation, for the +maintenance of the highways, by abolishing the corvée.</p> +<p>Toward the middle of the nineteenth century, the application, by science, of +steam to locomotion, made railways a favorite speculation. Forthwith, private +capital acquired these highways, and because of the inelasticity of the old law, +treated them as ordinary chattels, to be administered for the profit of the +owner exclusively. It is true that railway companies posed as public agents when +demanding the power to take private property; but when it came to charging for +use of their ways, they claimed to be only private carriers, authorized to +bargain as they pleased. Indeed, it grew to be considered a mark of efficient +railroad management to extract the largest revenue possible from the people, +along the lines of least resistance; that is, by taxing most heavily those +individuals and localities which could least resist. And the claim by the +railroads that they might do this as a matter of right was long upheld by the +courts,<a name="FNanchor2"></a><a href="#Footnote_2"><sup>[2]</sup></a> nor have +the judges even yet, after a generation of revolt and of legislation, altogether +abandoned this doctrine.</p> +<p>The courts--reluctantly, it is true, and principally at the instigation of +the railways themselves, who found the practice unprofitable-have latterly +discountenanced discrimination as to persons, but they still uphold +discrimination as to localities.<a name="FNanchor3"></a><a href="#Footnote_3"><sup>[3]</sup></a> +Now, among abuses of sovereign power, this is one of the most galling, for of +all taxes the transportation tax is perhaps that which is most searching, most +insidious, and, when misused, most destructive. The price paid for +transportation is not so essential to the public welfare as its equality; for +neither persons nor localities can prosper when the necessaries of life cost +them more than they cost their competitors. In towns, no cup of water can be +drunk, no crust of bread eaten, no garment worn, which has not paid the +transportation tax, and the farmer's crops must rot upon his land, if other +farmers pay enough less than he to exclude him from markets toward which they +all stand in a position otherwise equal. Yet this formidable power has been +usurped by private persons who have used it purely selfishly, as no legitimate +sovereign could have used it, and by persons who have indignantly denounced all +attempts to hold them accountable, as an infringement of their constitutional +rights. Obviously, capital cannot assume the position of an irresponsible +sovereign, living in a sphere beyond the domain of law, without inviting the +fate which has awaited all sovereigns who have denied or abused their trust.</p> +<p>The operation of the New York Clearing-House is another example of the +acquisition of sovereign power by irresponsible private persons. Primarily, of +course, a clearing-house is an innocent institution occupied with adjusting +balances between banks, and has no relation to the volume of the currency. +Furthermore, among all highly centralized nations, the regulation of the +currency is one of the most jealously guarded of the prerogatives of +sovereignty, because all values hinge upon the relation which the volume of the +currency bears to the volume of trade. Yet, as everybody knows, in moments of +financial panic, the handful of financiers who, directly or indirectly, govern +the Clearing-House, have it in their power either to expand or to contract the +currency, by issuing or by withdrawing Clearing-House certificates, more +effectually perhaps than if they controlled the Treasury of the United States. +Nor does this power, vast as it is, at all represent the supremacy which a few +bankers enjoy over values, because of their facilities for manipulating the +currency and, with the currency, credit; facilities, which are used or abused +entirely beyond the reach of the law.</p> +<p>Bankers, at their conventions and through the press, are wont to denounce the +American monetary system, and without doubt all that they say, and much more +that they do not say, is true; and yet I should suppose that there could be +little doubt that American financiers might, after the panic of 1893, and before +the administration of Mr. Taft, have obtained from Congress, at most sessions, +very reasonable legislation, had they first agreed upon the reforms they +demanded, and, secondly, manifested their readiness, as a condition precedent to +such reforms, to submit to effective government supervision in those departments +of their business which relate to the inflation or depression of values. They +have shown little inclination to submit to restraint in these particulars, nor, +perhaps, is their reluctance surprising, for the possession by a very small +favored class of the unquestioned privilege, whether actually used or not, at +recurring intervals, of subjecting the debtor class to such pressure as the +creditor may think necessary, in order to force the debtor to surrender his +property to the creditor at the creditor's price, is a wonder beside which +Aladdin's lamp burns dim.</p> +<p>As I have already remarked, I apprehend that sovereignty is a variable +quantity of administrative energy, which, in civilizations which we call +advancing, tends to accumulate with a rapidity proportionate to the acceleration +of movement. That is to say, the community, as it consolidates, finds it +essential to its safety to withdraw, more or less completely, from individuals, +and to monopolize, more or less strictly, itself, a great variety of functions. +At one stage of civilization the head of the family administers justice, +maintains an armed force for war or police, wages war, makes treaties of peace, +coins money, and, not infrequently, wears a crown, usually of a form to indicate +his importance in a hierarchy. At a later stage of civilization, companies of +traders play a great part. Such aggregations of private and irresponsible +adventurers have invaded and conquered empires, founded colonies, and +administered justice to millions of human beings. In our own time, we have seen +the assumption of many of the functions of these and similar private companies +by the sovereign. We have seen the East India Company absorbed by the British +Parliament; we have seen the railways, and the telephone and the telegraph +companies, taken into possession, very generally, by the most progressive +governments of the world; and now we have come to the necessity of dealing with +the domestic-trade monopoly, because trade has fallen into monopoly through the +centralization of capital in a constantly contracting circle of ownership.</p> +<p>Among innumerable kinds of monopolies none have been more troublesome than +trade monopolies, especially those which control the price of the necessaries of +life; for, so far as I know, no people, approximately free, have long endured +such monopolies patiently. Nor could they well have done so without constraint +by overpowering physical force, for the possession of a monopoly of a necessary +of life by an individual, or by a small privileged class, is tantamount to +investing a minority, contemptible alike in numbers and in physical force, with +an arbitrary and unlimited power to tax the majority, not for public, but for +private purposes. Therefore it has not infrequently happened that persistence in +adhering to and in enforcing such monopolies has led, first, to attempts at +regulation, and, these failing, to confiscation, and sometimes to the +proscription of the owners. An example of such a phenomenon occurs to me which, +just now, seems apposite.</p> +<p>In the earlier Middle Ages, before gunpowder made fortified houses untenable +when attacked by the sovereign, the highways were so dangerous that trade and +manufactures could only survive in walled towns. An unarmed urban population had +to buy its privileges, and to pay for these a syndicate grew up in each town, +which became responsible for the town ferm, or tax, and, in return, collected +what part of the municipal expenses it could from the poorer inhabitants. These +syndicates, called guilds, as a means of raising money, regulated trade and +fixed prices, and they succeeded in fixing prices because they could prevent +competition within the walls. Presently complaints became rife of guild +oppression, and the courts had to entertain these complaints from the outset, to +keep some semblance of order; but at length the turmoil passed beyond the reach +of the courts, and Parliament intervened. Parliament not only enacted a series +of statutes regulating prices in towns, but supervised guild membership, +requiring trading companies to receive new members upon what Parliament +considered to be reasonable terms. Nevertheless, friction continued.</p> +<p>With advances in science, artillery improved, and, as artillery improved, the +police strengthened until the king could arrest whom he pleased. Then the +country grew safe and manufactures migrated from the walled and heavily taxed +towns to the cheap, open villages, and from thence undersold the guilds. As the +area of competition broadened, so the guilds weakened, until, under Edward VI, +being no longer able to defend themselves, they were ruthlessly and savagely +plundered; and fifty years later the Court of King's Bench gravely held that a +royal grant of a monopoly had always been bad at common law.<a name="FNanchor4"></a><a href="#Footnote_4"><sup>[4]</sup></a></p> +<p>Though the Court's law proved to be good, since it has stood, its history was +fantastic; for the trade-guild was the offspring of trade monopoly, and a trade +monopoly had for centuries been granted habitually by the feudal landlord to his +tenants, and indeed was the only means by which an urban population could +finance its military expenditure. Then, in due course, the Crown tried to +establish its exclusive right to grant monopolies, and finally Parliament--or +King, Lords, and Commons combined, being the whole nation in its corporate +capacity,--appropriated this monopoly of monopolies as its supreme prerogative. +And with Parliament this monopoly has ever since remained.</p> +<p>In fine, monopolies, or competition in trade, appear to be recurrent social +phases which depend upon the ratio which the mass and the fluidity of capital, +or, in other words, its energy, bears to the area within which competition is +possible. In the Middle Ages, when the town walls bounded that area, or when, at +most, it was restricted to a few lines of communication between defensible +points garrisoned by the monopolists,--as were the Staple towns of England +which carried on the wool trade with the British fortified counting-houses in +Flanders,--a small quantity of sluggish capital sufficed. But as police +improved, and the area of competition broadened faster than capital accumulated +and quickened, the competitive phase dawned, whose advent is marked by Darcy <i>v</i>. +Allein, decided in the year 1600. Finally, the issue between monopoly and free +trade was fought out in the American Revolution, for the measure which +precipitated hostilities was the effort of England to impose her monopoly of the +Eastern trade upon America. The Boston Tea Party occurred on December 16, 1773. +Then came the heyday of competition with the acceptance of the theories of Adam +Smith, and the political domination in England, towards 1840, of the Manchester +school of political economy.</p> +<p>About forty years since, in America at least, the tide would appear once more +to have turned. I fix the moment of flux, as I am apt to do, by a lawsuit. This +suit was the Morris Run Coal Company <i>v.</i> Barclay Coal Company,<a name="FNanchor5"></a><a href="#Footnote_5"><sup>[5]</sup></a> +which is the first modern anti-monopoly litigation that I have met with in the +United States. It was decided in Pennsylvania in 1871; and since 1871, while the +area within which competition is possible has been kept constant by the tariff, +capital has accumulated and has been concentrated and volatilized until, within +this republic, substantially all prices are fixed by a vast moneyed mass. This +mass, obeying what amounts to being a single volition, has its heart in Wall +Street, and pervades every corner of the Union. No matter what price is in +question, whether it be the price of meat, or coal, or cotton cloth, or of +railway transportation, or of insurance, or of discounts, the inquirer will find +the price to be, in essence, a monopoly or fixed price; and if he will follow +his investigation to the end, he will also find that the first cause in the +complex chain of cause and effect which created the monopoly in that mysterious +energy which is enthroned on the Hudson.</p> +<p>The presence of monopolistic prices in trade is not always a result of +conscious agreement; more frequently, perhaps, it is automatic, and is an effect +of the concentration of capital in a point where competition ceases, as when all +the capital engaged in a trade belongs to a single owner. Supposing ownership to +be enough restricted, combination is easier and more profitable than +competition; therefore combination, conscious or unconscious, supplants +competition. The inference from the evidence is that, in the United States, +capital has reached, or is rapidly reaching, this point of concentration; and if +this be true, competition cannot be enforced by legislation. But, assuming that +competition could still be enforced by law, the only effect would be to make the +mass of capital more homogeneous by eliminating still further such of the weaker +capitalists as have survived. Ultimately, unless indeed society is to dissolve +and capital migrate elsewhere, all the present phenomena would be intensified. +Nor would free trade, probably, have more than a very transitory effect. In no +department of trade is competition freer than in the Atlantic passenger service, +and yet in no trade is there a stricter monopoly price.</p> +<p>The same acceleration of the social movement which has caused this +centralization of capital has caused the centralization of another form of human +energy, which is its negative: labor unions organize labor as a monopoly. Labor +protests against the irresponsible sovereignty of capital, as men have always +protested against irresponsible sovereignty, declaring that the capitalistic +social system, as it now exists, is a form of slavery. Very logically, +therefore, the abler and bolder labor agitators proclaim that labor levies +actual war against society, and that in that war there can be no truce until +irresponsible capital has capitulated. Also, in labor's methods of warfare the +same phenomena appear as in the autocracy of capital. Labor attacks capitalistic +society by methods beyond the purview of the law, and may, at any moment, +shatter the social system; while, under our laws and institutions, society is +helpless.</p> +<p>Few persons, I should imagine, who reflect on these phenomena, fail to admit +to themselves, whatever they may say publicly, that present social conditions +are unsatisfactory, and I take the cause of the stress to be that which I have +stated. We have extended the range of applied science until we daily use +infinite forces, and those forces must, apparently, disrupt our society, unless +we can raise the laws and institutions which hold society together to an energy +and efficiency commensurate to them. How much vigor and ability would be +required to accomplish such a work may be measured by the experience of +Washington, who barely prevailed in his relatively simple task, surrounded by a +generation of extraordinary men, and with the capitalistic class of America +behind him. Without the capitalistic class he must have failed. Therefore one +most momentous problem of the future is the attitude which capital can or will +assume in this emergency.</p> +<p>That some of the more sagacious of the capitalistic class have preserved that +instinct of self-preservation which was so conspicuous among men of the type of +Washington, is apparent from the position taken by the management of the United +States Steel Company, and by the Republican minority of the Congressional +Committee which recently investigated the Steel Company; but whether such men +very strongly influence the genus to which they belong is not clear. If they do +not, much improvement in existing conditions can hardly be anticipated.</p> +<p>If capital insists upon continuing to exercise sovereign powers, without +accepting responsibility as for a trust, the revolt against the existing order +must probably continue, and that revolt can only be dealt with, as all servile +revolts must be dealt with, by physical force. I doubt, however, if even the +most ardent and optimistic of capitalists would care to speculate deeply upon +the stability of any government capital might organize, which rested on the +fundamental principle that the American people must be ruled by an army. On the +other hand any government to be effective must be strong. It is futile to talk +of keeping peace in labor disputes by compulsory arbitration, if the government +has not the power to command obedience to its arbitrators' decree; but a +government able to constrain a couple of hundred thousand discontented railway +employees to work against their will, must differ considerably from the one we +have. Nor is it possible to imagine that labor will ever yield peaceful +obedience to such constraint, unless capital makes equivalent concessions,--unless, +perhaps, among other things, capital consents to erect tribunals which shall +offer relief to any citizen who can show himself to be oppressed by the +monopolistic price. In fine, a government, to promise stability in the future, +must apparently be so much more powerful than any private interest, that all men +will stand equally before its tribunals; and these tribunals must be flexible +enough to reach those categories of activity which now lie beyond legal +jurisdiction. If it be objected that the American people are incapable of an +effort so prodigious, I readily admit that this may be true, but I also contend +that the objection is beside the issue. What the American people can or cannot +do is a matter of opinion, but that social changes are imminent appears to be +almost certain. Though these changes cannot be prevented, possibly they may, to +a degree, be guided, as Washington guided the changes of 1789. To resist them +perversely, as they were resisted at the Chicago Convention of 1912, can only +make the catastrophe, when it comes, as overwhelming as was the consequent +defeat of the Republican party.</p> +<p>Approached thus, that Convention of 1912 has more than a passing importance, +since it would seem to indicate the ordinary phenomenon, that a declining +favored class is incapable of appreciating an approaching change of environment +which must alter its social status. I began with the proposition that, in any +society which we now understand, civilization is equivalent to order, and the +evidence of the truth of the proposition is, that amidst disorder, capital and +credit, which constitute the pith of our civilization, perish first. For more +than a century past, capital and credit have been absolute, or nearly so; +accordingly it has not been the martial type which has enjoyed sovereignty, but +the capitalistic. The warrior has been the capitalists' servant. But now, if it +be true that money, in certain crucial directions, is losing its purchasing +power, it is evident that capitalists must accept a position of equality before +the law under the domination of a type of man who can enforce obedience; their +own obedience, as well as the obedience of others. Indeed, it might occur, even +to some optimists, that capitalists would be fortunate if they could certainly +obtain protection for another fifty years on terms as favorable as these. But at +Chicago, capitalists declined even to consider receding to a secondary position. +Rather than permit the advent of a power beyond their immediate control, they +preferred to shatter the instrument by which they sustained their ascendancy. +For it is clear that Roosevelt's offence in the eyes of the capitalistic class +was not what he had actually done, for he had done nothing seriously to injure +them. The crime they resented was the assertion of the principle of equality +before the law, for equality before the law signified the end of privilege to +operate beyond the range of law. If this principle which Roosevelt, in theory at +least, certainly embodied, came to be rigorously enforced, capitalists perceived +that private persons would be precluded from using the functions of sovereignty +to enrich themselves. There lay the parting of the ways. Sooner or later almost +every successive ruling class has had this dilemma in one of its innumerable +forms presented to them, and few have had the genius to compromise while +compromise was possible. Only a generation ago the aristocracy of the South +deliberately chose a civil war rather than admit the principle that at some +future day they might have to accept compensation for their slaves.</p> +<p>A thousand other instances of similar incapacity might be adduced, but I will +content myself with this alone.</p> +<p>Briefly the precedents induce the inference that privileged classes seldom +have the intelligence to protect themselves by adaptation when nature turns +against them, and, up to the present moment, the old privileged class in the +United States has shown little promise of being an exception to the rule.</p> +<p>Be this, however, as it may, and even assuming that the great industrial and +capitalistic interests would be prepared to assist a movement toward +consolidation, as their ancestors assisted Washington, I deem it far from +probable that they could succeed with the large American middle class, which +naturally should aid, opposed, as it seems now to be, to such a movement. +Partially, doubtless, this opposition is born of fear, since the lesser folk +have learned by bitter experience that the powerful have yielded to nothing save +force, and therefore that their only hope is to crush those who oppress them. +Doubtless, also, there is the inertia incident to long tradition, but I suspect +that the resistance is rather due to a subtle and, as yet, nearly unconscious +instinct, which teaches the numerical majority, who are inimical to capital, +that the shortest and easiest way for them to acquire autocratic authority is to +obtain an absolute mastery over those political tribunals which we call courts. +Also that mastery is being by them rapidly acquired. So long as our courts +retain their present functions no comprehensive administrative reform is +possible, whence I conclude that the relation which our courts shall hold to +politics is now the fundamental problem which the American people must solve, +before any stable social equilibrium can be attained.</p> +<p>Theodore Roosevelt's enemies have been many and bitter. They have attacked +his honesty, his sobriety, his intelligence, and his judgment, but very few of +them have hitherto denied that he has a keen instinct for political strife. Only +of late has this gift been doubted, but now eminent politicians question whether +he did not make a capital mistake when he presented the reform of our courts of +law, as expounders of the Constitution, as one of his two chief issues, in his +canvass for a nomination for a third presidential term.</p> +<p>After many years of study of, and reflection upon, this intricate subject I +have reached the conviction that, though Mr. Roosevelt may have erred in the +remedy which he has suggested, he is right in the principle which he has +advanced, and in my next chapter I propose to give the evidence and explain the +reasons which constrain me to believe that American society must continue to +degenerate until confusion supervenes, if our courts shall remain semi-political +chambers. +<br> +</p> +<hr style="width: 65%;"> +<br> +<br> +<a name="CHAPTER_II"></a> +<h2 align="center">CHAPTER II</h2> +<p align="center">THE LIMITATIONS OF THE JUDICIAL FUNCTION</p> +<br> +<p>Taking the human race collectively, its ideal of a court of justice has been +the omniscient and inexorable judgment seat of God. Individually, on the +contrary, they have dearly loved favor. Hence the doctrine of the Intercession +of the Saints, which many devout persons have sincerely believed could be bought +by them for money. The whole development of civilization may be followed in the +oscillation of any given society between these two extremes, the many always +striving to so restrain the judiciary that it shall be unable to work the will +of the favored few. On the whole, success in attaining to ideal justice has not +been quite commensurate with the time and effort devoted to solving the problem, +but, until our constitutional experiment was tried in America, I think it had +been pretty generally admitted that the first prerequisite to success was that +judges should be removed from political influences. For the main difficulty has +been that every dominant class, as it has arisen, has done its best to use the +machinery of justice for its own benefit.</p> +<p>No argument ever has convinced like a parable, and a very famous story in the +Bible will illustrate the great truth, which is the first lesson that a +primitive people learns, that unless the judge can be separated from the +sovereign, and be strictly limited in the performance of his functions by a +recognized code of procedure, the public, as against the dominant class, has, in +substance, no civil rights. The kings of Israel were judges of last resort. +Solomon earned his reputation for wisdom in the cause in which two mothers +claimed the same child. They were indeed both judge and jury. Also they were +prosecuting officers. Also they were sheriffs. In fine they exercised unlimited +judicial power, save in so far as they were checked by the divine interference +usually signified through some prophet.</p> +<p>Now David was, admittedly, one of the best sovereigns and judges who ever +held office in Jerusalem, and, in the days of David, Nathan was the leading +prophet of the dominant political party. "And it came to pass in an +eveningtide, that David arose from off his bed, and walked upon the roof of the +king's house: and from the roof he saw a woman washing herself; and the woman +was very beautiful to look upon. And David sent and enquired after the woman. +And one said, Is not this Bath-sheba, the daughter of Eliam, the wife of Uriah +the Hittite? And David sent messengers, and took her; and she came in unto him, +and he lay with her; ... and she returned unto her house."</p> +<p>Uriah was serving in the army under Joab. David sent for Uriah, and told him +to go home to his wife, but Uriah refused. Then David wrote a letter to Joab and +dismissed Uriah, ordering him to give the letter to Joab. And David "wrote +in the letter, saying, Set ye Uriah in the forefront of the hottest battle, and +retire ye from him, that he may be smitten and die....</p> +<p>"And the men of the city went out and fought with Joab; and there fell +some of the people of the servants of David; and Uriah the Hittite died also.... +But the thing that David had done displeased the Lord.</p> +<p>"And the Lord sent Nathan unto David. And he came unto him, and said +unto him, There were two men in one city; the one rich and the other poor. The +rich man had exceeding many flocks and herds:</p> +<p>"But the poor man had nothing, save one little ewe lamb, which he had +bought and nourished up: and it grew up together with him, and with his +children; it did eat of his own meat and drank of his own cup, and lay in his +bosom, and was unto him as a daughter.</p> +<p>"And there came a traveller unto the rich man, and he spared to take of +his own flock, ... but took the poor man's lamb, and dressed it for the man that +was come to him.</p> +<p>"And David's anger was greatly kindled against the man; and he said to +Nathan, As the Lord liveth, the man that hath done this thing shall surely die: +...</p> +<p>"And Nathan said to David, Thou art the man. Thus saith the Lord God of +Israel ... Now therefore the sword shall never depart from thine house; because +thou has despised me ... Behold, I will raise up evil against thee out of thine +own house, and I will take thy wives before thine eyes, and give them unto thy +neighbor." Here, as the heading to the Twelfth Chapter of Second Book of +Samuel says, "Nathan's parable of the ewe lamb causeth David to be his own +judge," but the significant part of the story is that Nathan, with all his +influence, could not force David to surrender his prey. David begged very hard +to have his sentence remitted, but, for all that, "David sent and fetched [Bathsheba] +to his house, and she became his wife, and bare him a son." Indeed, she +bore him Solomon. As against David or David's important supporters men like +Uriah had no civil rights that could be enforced.</p> +<p>Even after the judicial function is nominally severed from the executive +function, so that the sovereign himself does not, like David and Solomon, +personally administer justice, the same result is reached through agents, as +long as the judge holds his office at the will of the chief of a political +party.</p> +<p>To go no farther afield, every page of English history blazons this record. +Long after the law had taken an almost modern shape, Alice Perrers, the mistress +of Edward III, sat on the bench at Westminster and intimidated the judges into +deciding for suitors who had secured her services. The chief revenue of the +rival factions during the War of the Roses was derived from attainders, +indictments for treason, and forfeitures, avowedly partisan. Henry VII used the +Star Chamber to ruin the remnants of the feudal aristocracy. Henry VIII +exterminated as vagrants the wretched monks whom he had evicted. The +prosecutions under Charles I largely induced the Great Rebellion; and finally +the limit of endurance was reached when Charles II made Jeffreys Chief Justice +of England in order to kill those who were prominent in opposition. Charles knew +what he was doing. "That man," said he of Jeffreys, "has no +learning, no sense, no manners, and more impudence than ten carted +street-walkers." The first object was to convict Algernon Sidney of +treason. Jeffreys used simple means. Usually drunk, his court resembled the den +of a wild beast. He poured forth on "plaintiffs and defendants, barristers +and attorneys, witnesses and jurymen, torrents of frantic abuse, intermixed with +oaths and curses." The law required proof of an <i>overt act</i> of +treason. Many years before Sidney had written a philosophical treatise touching +resistance by the subject to the sovereign, as a constitutional principle. But, +though the fragment contained nothing more than the doctrines of Locke, Sidney +had cautiously shown it to no one, and it had only been found by searching his +study. Jeffreys told the jury that if they believed the book to be Sidney's +book, written by him, they must convict for <i>scribere est agere</i>, to write +is to commit an overt act.</p> +<p>A revolution followed upon this and other like convictions, as revolutions +have usually followed such uses of the judicial power. In that revolution the +principle of the limitation of the judicial function was recognized, and the +English people seriously addressed themselves to the task of separating their +courts from political influences, of protecting their judges by making their +tenure and their pay permanent, and of punishing them by removal if they behaved +corruptly, or with prejudice, or transcended the limits within which their duty +confined them. Jeffreys had legislated when he ruled it to be the law that, to +write words secretly in one's closet, is to commit an overt act of treason, and +he did it to kill a man whom the king who employed him wished to destroy. This +was to transcend the duty of a judge, which is to expound and not to legislate. +The judge may develop a principle, he may admit evidence of a custom in order to +explain the intentions of the parties to a suit, as Lord Mansfield admitted +evidence of the customs of merchants, but he should not legislate. To do so, as +Jeffreys did in Sidney's case, is tantamount to murder. Jeffreys never was duly +punished for his crimes. He died the year after the Revolution, in the Tower, +maintaining to the last that he was innocent in the sight of God and man because +"all the blood he had shed fell short of the King's command."</p> +<p>And Jeffreys was perfectly logical and consistent in his attitude. A +judiciary is either an end in itself or a means to an end. If it be designed to +protect the civil rights of citizens indifferently, it must be free from +pressure which will deflect it from this path, and it can only be protected from +the severest possible pressure by being removed from politics, because politics +is the struggle for ascendancy of a class or a majority. If, on the other hand, +the judiciary is to serve as an instrument for advancing the fortunes of a +majority or a dominant class, as David used the Jewish judiciary, or as the +Stuarts used the English judiciary, then the judicial power must be embodied +either in a military or political leader, like David, who does the work himself, +or in an agent, more or less like Jeffreys, who will obey his orders. In the +colonies the subserviency of the judges to the Crown had been a standing +grievance, and the result of this long and terrible experience, stretching +through centuries both in Europe and America, had been to inspire Americans with +a fear of intrusting power to any man or body of men. They sought to limit +everything by written restrictions. Setting aside the objection that such a +system is mechanically vicious because it involves excessive friction and +therefore waste of energy, it is obviously futile unless the written +restrictions can be enforced, and enforced in the spirit in which they are +drawn. Hamilton, whose instinct for law resembled genius, saw the difficulty and +pointed out in the <i>Federalist</i> that it is not a writing which can give +protection, but only the intelligence and the sense of justice of the community +itself.</p> +<p>"The truth is, that the general genius of a Government is all that can +be substantially relied upon for permanent effects. Particular provisions, +though not altogether useless, have far less virtue and efficiency than are +commonly ascribed to them; and the want of them will never be, with men of sound +discernment, a decisive objection to any plan which exhibits the leading +characters of a good Government." After an experience of nearly a century +and a quarter we must admit, I think, that Hamilton was right. In the United +States we have carried bills of right and constitutional limitations to an +extreme, and yet, I suppose that few would care to maintain that, during the +nineteenth century, life and property were safer in America, or crime better +dealt with, than in England, France, or Germany. The contrary, indeed, I take to +be the truth, and I think one chief cause of this imperfection in the +administration of justice will be found to have been the operation of the +written Constitution. For, under the American system, the Constitution, or +fundamental law, is expounded by judges, and this function, which, in essence, +is political, has brought precisely that quality of pressure on the bench which +it has been the labor of a hundred generations of our ancestors to remove. On +the whole the result has been not to elevate politics, but to lower the courts +toward the political level, a result which conforms to the <i>a priori</i> +theory.</p> +<p>The abstract virtue of the written Constitution was not, however, a question +in issue when Washington and his contemporaries set themselves to reorganize the +Confederation. Those men had no choice but to draft some kind of a platform on +which the states could agree to unite, if they were to unite peacefully at all, +and accordingly they met in convention and drew the best form of agreement they +could; but I more than suspect that a good many very able Federalists were quite +alive to the defects in the plan which they adopted.</p> +<p>Hamilton was outspoken in preferring the English model, and I am not aware +that Washington ever expressed a preference for the theory that, because of a +written fundamental law, the court should nullify legislation. Nor is it +unworthy of remark that all foreigners, after a prolonged and attentive +observation of our experiment, have avoided it. Since 1789, every highly +civilized Western people have readjusted their institutions at least once, yet +not one has in this respect imitated us, though all have borrowed freely from +the parliamentary system of England.<a name="FNanchor6"></a><a href="#Footnote_6"><sup>[6]</sup></a></p> +<p>Even our neighbor, Canada, with no adverse traditions and a population +similar to ours, has been no exception to the rule. The Canadian courts indeed +define the limits of provincial and federal jurisdiction as fixed under an act +of Parliament, but they do not pretend to limit the exercise of power when the +seat of power has been established. I take the cause of this distrust to be +obvious. Although our written Constitution was successful in its primary purpose +of facilitating the consolidation of the Confederation, it has not otherwise +inspired confidence as a practical administrative device. Not only has constant +judicial interference dislocated scientific legislation, but casting the +judiciary into the vortex of civil faction has degraded it in the popular +esteem. In fine, from the outset, the American bench, because it deals with the +most fiercely contested of political issues, has been an instrument necessary to +political success. Consequently, political parties have striven to control it, +and therefore the bench has always had an avowed partisan bias. This avowed +political or social bias has, I infer, bred among the American people the +conviction that justice is not administered indifferently to all men, wherefore +the bench is not respected with us as, for instance, it is in Great Britain, +where law and politics are sundered. Nor has the dissatisfaction engendered by +these causes been concealed. On the contrary, it has found expression through a +series of famous popular leaders from Thomas Jefferson to Theodore Roosevelt.</p> +<p>The Constitution could hardly have been adopted or the government organized +but for the personal influence of Washington, whose power lay in his genius for +dealing with men. He lost no time or strength in speculation, but, taking the +Constitution as the best implement at hand, he went to the work of +administration by including the representatives of the antagonistic extremes in +his Cabinet. He might as well have expected fire and water to mingle as +Jefferson and Hamilton to harmonize. Probably he had no delusions on that head +when he chose them for his ministers, and he accomplished his object. He +paralyzed opposition until the new mechanism began to operate pretty regularly, +but he had not an hour to spare. Soon the French Revolution heated passions so +hot that long before Washington's successor was elected the United States was +rent by faction.</p> +<p>The question which underlay all other questions, down to the Civil War, was +the determination of the seat of sovereignty. Hamilton and the Federalists held +it to be axiomatic that, if the federal government were to be more than a +shadow, it must interpret the meaning of the instrument which created it, and, +if so, that it must signify its decisions through the courts. Only in this way, +they argued, could written limitations on legislative power be made effective. +Only in this way could statutes which contravened the Constitution be set aside.<a name="FNanchor7"></a><a href="#Footnote_7"><sup>[7]</sup></a></p> +<p>Jefferson was abroad when Hamilton wrote <i>The Federalist</i>, but his views +have since been so universally accepted as embodying the opposition to Hamilton, +that they may be conveniently taken as if they had been published while the +Constitution was under discussion. Substantially the same arguments were +advanced by others during the actual debate, if not quite so lucidly or +connectedly then, as afterward by him.</p> +<p>Very well, said Jefferson, in answer to Hamilton, admitting, for the moment, +that the central government shall define its own powers, and that the courts +shall be the organ through which the exposition shall be made, both of which +propositions I vehemently deny, you have this result: The judges who will be +called upon to pass upon the validity of national and state legislation will be +plunged in the most heated of controversies, and in those controversies they +cannot fail to be influenced by the same passions and prejudices which sway +other men. In a word they must decide like legislators, though they will be +exempt from the responsibility to the public which controls other legislators. +Such conditions you can only meet by making the judicial tenure of office +ephemeral, as all legislative tenure is ephemeral.</p> +<p>It is vain to pretend, continued he, in support of fixity of tenure, that the +greater the pressure on the judge is likely to be, the more need there is to +make him secure. This may be true of judges clothed with ordinary attributes, +like English judges, for, should these try to nullify the popular will by +construing away statutes, Parliament can instantly correct them, or if +Parliament fail in its duty, the constituencies, at the next election, can +intervene. But no one will be able to correct the American judge who may decline +to recognize the law which would constrain him. Nothing can shake him save +impeachment for what is tantamount to crime, or being overruled by a +constitutional amendment which you have purposely made too hard to obtain to be +a remedy. He is to be judge in his own case without an appeal.</p> +<p>Nowhere in all his long and masterly defence of the Constitution did Hamilton +show so much embarrassment as here, and because, probably, he did not himself +believe in his own brief. He really had faith in the English principle of an +absolute parliament, restrained, if needful, by a conservative chamber, like the +House of Lords, but not in the total suspension of sovereignty subject to +judicial illumination. Consequently he fell back on platitudes about judicial +high-mindedness, and how judges could be trusted not to allow political +influences to weigh with them when deciding political questions. Pushed to its +logical end, concluded he, the Jeffersonian argument would prove that there +should be no judges distinct from legislatures.<a name="FNanchor8"></a><a href="#Footnote_8"><sup>[8]</sup></a></p> +<p>Now, at length, exclaimed the Jeffersonian in triumph, you admit our thesis. +You propose to clothe judges with the highest legislative functions, since you +give them an absolute negative on legislation, and yet you decline to impose on +them the responsibility to a constituency, which constrains other legislators. +Clearly you thus make them autocratic, and in the worst sense, for you permit +small bodies of irresponsible men under pretence of dispensing justice, but +really in a spirit of hypocrisy, to annul the will of the majority of the +people, even though the right of the people to exercise their will, in the +matters at issue, be clearly granted them in the Constitution.</p> +<p>No, rejoined Hamilton, thus driven to the wall, judges never will so abuse +their trust. The duty of the judge requires him to suppress his <i>will</i>, and +exercise his <i>judgment</i> only. The Constitution will be before him, and he +will have only to say whether authority to legislate on a given subject is +granted in that instrument. If it be, the character of the legislation must +remain a matter of legislative discretion. Besides, you must repose confidence +somewhere, and judges, on the whole, are more trustworthy than legislators. How +can you say that, retorted the opposition, when you, better than most men, know +the line of despotic legal precedents from the Ship Money down to the Writs of +Assistance?</p> +<p>Looking back upon this initial controversy touching judicial functions under +the Constitution, we can hardly suppose that Hamilton did not perceive that, in +substance, Jefferson was right, and that a bench purposely constructed to pass +upon political questions must be politically partisan. He knew very well that, +if the Federalists prevailed in the elections, a Federalist President would only +appoint magistrates who could be relied on to favor consolidation. And so the +event proved. General Washington chose John Jay for the first Chief Justice, who +in some important respects was more Federalist than Hamilton, while John Adams +selected John Marshall, who, though one of the greatest jurists who ever lived, +was hated by Jefferson with a bitter hatred, because of his political bias. As +time went on matters grew worse. Before Marshall died slavery had become a +burning issue, and the slave-owners controlled the appointing power. General +Jackson appointed Taney to sustain the expansion of slavery, and when the +anti-slavery party carried the country with Lincoln, Lincoln supplanted Taney +with Chase, in order that Chase might stand by him in his struggle to destroy +slavery. And as it has been, so must it always be. As long as the power to enact +laws shall hinge on the complexion of benches of judges, so long will the +ability to control a majority of the bench be as crucial a political necessity +as the ability to control a majority in avowedly representative assemblies.</p> +<p>Hamilton was one of the few great jurists and administrators whom America has +ever produced, and it is inconceivable that he did not understand what he was +doing. He knew perfectly well that, other things being equal, the simplest +administrative mechanism is the best, and he knew also that he was helping to +make an extremely complicated mechanism. Not only so, but at the heart of this +complexity lay the gigantic cog of the judiciary, which was obviously devised to +stop movement. He must have had a reason, beyond the reason he gave, for not +only insisting on clothing the judiciary with these unusual political and +legislative attributes, but for giving the judiciary an unprecedented fixity of +tenure. I suspect that he was actuated by some such considerations as these:</p> +<p>The Federalists, having pretty good cause to suppose themselves in a popular +minority, purposed to consolidate the thirteen states under a new sovereign. +There were but two methods by which they could prevail; they could use force, +or, to secure assent, they could propose some system of arbitration. To escape +war the Federalists convened the constitutional convention, and by so doing +pledged themselves to arbitration. But if their plan of consolidation were to +succeed, it was plain that the arbitrator must arbitrate in their favor, for if +he arbitrated as Mr. Jefferson would have wished, the United States under the +Constitution would have differed little from the United States under the +Confederation. The Federalists, therefore, must control the arbitrator. If the +Constitution were to be adopted, Hamilton and every one else knew that +Washington would be the first President, and Washington could be relied on to +appoint a strong Federalist bench. Hence, whatever might happen subsequently, +when the new plan first should go into operation, and when the danger from +insubordination among the states would probably be most acute, the judiciary +would be made to throw its weight in favor of consolidation, and against +disintegration, and, if it did so, it was essential that it should be protected +against anything short of a revolutionary attack.</p> +<p>In the convention, indeed, Charles Pinckney of South Carolina suggested that +Congress should be empowered to negative state legislation, but such an +alternative, for obvious reasons, would have been less palatable to Hamilton, +since Congress would be only too likely to fall under the control of the +Jeffersonian party, while a bench of judges, if once well chosen, might prove to +be for many years an "excellent barrier to the encroachments and +oppressions of the representative body."<a name="FNanchor9"></a><a href="#Footnote_9"><sup>[9]</sup></a></p> +<p>I infer that Hamilton and many other Federalists reasoned somewhat thus, not +only from what they wrote, but from the temper of their minds, and, if they did, +events largely justified them. John Jay, Oliver Ellsworth, and John Marshall +were successively appointed to the office of Chief Justice, nor did the +complexion of the Supreme Court change until after 1830.</p> +<p>What interests us, however, is not so much what the Federalists thought, or +the motives which actuated them, as the effect which the clothing of the +judiciary with political functions has had upon the development of the American +republic, more especially as that extreme measure might have been avoided, had +Pinckney's plan been adopted. Nor, looking back upon the actual course of +events, can I perceive that, so far as the movement toward consolidation was +concerned, the final result would have varied materially whether Congress or the +Supreme Court had exercised control over state legislation. Marshall might just +as well, in the one case as the other, have formulated his theory of a +semi-centralized administration. He would only have had uniformly to sustain +Congress, as an English judge sustains Parliament. Nor could either Congress or +the Court have reached a definite result without an appeal to force. Either +chamber might expound a theory, but nothing save an army could establish it.</p> +<p>For two generations statesmen and jurists debated the relation of the central +to the local sovereignties with no result, for words alone could decide no such +issue. In America, as elsewhere, sovereignty is determined by physical force. +Marshall could not conquer Jefferson, he could at most controvert Jefferson's +theory. This he did, but, in doing so, I doubt if he were quite true to himself. +Jefferson contended that every state might nullify national legislation, as +conversely Pinckney wished Congress to be given explicitly the power to nullify +state legislation; and Marshall, very sensibly, pointed out that, were +Jefferson's claim carried into practice, it would create "a hydra in +government,"<a name="FNanchor10"></a><a href="#Footnote_10"><sup>[10]</sup></a> +yet I am confident that Marshall did not appreciate whither his own assertion of +authority must lead. In view of the victory of centralization in the Civil War, +I will agree that the Supreme Court might have successfully maintained a +position as arbitrator touching conflicting jurisdictions, as between the nation +and the states, but that is a different matter from assuming to examine into the +wisdom of the legislation itself. The one function might, possibly, pass by +courtesy as judicial; the other is clearly legislative.</p> +<p>This distinction only developed after Marshall's death, but the resentment +which impelled Marshall to annul an act of Congress was roused by the political +conflict which preceded the election of 1800, in which Marshall took a chief +part. Apparently he could not resist the temptation of measuring himself with +his old adversary, especially as he seems to have thought that he could +discredit that adversary without giving him an opportunity to retaliate.</p> +<p>In 1798 a Federalist Congress passed the Alien and Sedition Acts, whose +constitutionality no Federalist judge ever doubted, but which Jefferson +considered as clearly a violation of the fundamental compact, since they tended +to drive certain states, as he thought, into "revolution and blood." +Under this provocation Jefferson proclaimed that it was both the right and the +duty of any state, which felt itself aggrieved, to intervene to arrest "the +progress of the evil," within her territory, by declining to execute, or by +"nullifying," the objectionable statutes. As Jefferson wrote the +Kentucky Resolutions in 1798 and was elected President in 1800, the people at +least appeared to have sustained him in his exposition of the Constitution, +before he entered into office.</p> +<p>At this distance of time we find it hard to realize what the election of 1800 +seemed to portend to those who participated therein. Mr. Jefferson always +described it as amounting to a revolution as profound as, if less bloody than, +the revolution of 1776, and though we maybe disposed to imagine that Jefferson +valued his own advent to power at its full worth, it must be admitted that his +enemies regarded it almost as seriously. Nor were they without some +justification, for Jefferson certainly represented the party of disintegration. +"Nullification" would have been tantamount to a return to the +condition of the Confederation. Besides, Jefferson not so many years before had +written, in defence of Shays's rebellion, that the tree of Liberty could never +flourish unless refreshed occasionally with the blood of patriots and tyrants. +To most Federalists Jefferson seemed a bloodthirsty demagogue. In 1796 Oliver +Ellsworth had been appointed Chief Justice by General Washington in the place of +Jay, who resigned, and in 1799 John Adams sent Ellsworth as an envoy to France +to try to negotiate a treaty which should reëstablish peace between the two +countries. Ellsworth succeeded in his mission, but the hardships of his journey +injured his health, and he, in turn, resigned in the autumn of 1800. Then Adams +offered the Chief Justiceship to Jay, but Jay would not return to office, and +after this the President selected his Secretary of State, John Marshall, one of +the greatest of the great Virginians, but one of Jefferson's most irreconcilable +enemies. Perhaps at no moment in his life did John Adams demonstrate his legal +genius more convincingly than in this remarkable nomination. Yet it must be +conceded that, in making John Marshall Chief Justice, John Adams deliberately +chose the man whom, of all his countrymen, he thought to be the most formidable +champion of those views which he himself entertained, and which he conceived +that he had been elected President to advance. Nor was John Adams deceived. For +thirty-four years John Marshall labored ceaselessly to counteract Jefferson's +constitutional principles, while Jefferson always denounced the political +partiality of the federal courts, and above all the "rancorous hatred which +Marshall bears to the government of his country, and ... the cunning and +sophistry within which he is able to enshroud himself."<a name="FNanchor11"></a><a href="#Footnote_11"><sup>[11]</sup></a></p> +<p>No one, at this day, would be disposed to dispute that the Constitution, as a +device to postpone war among the states, at least for a period, was successful, +and that, as I have already pointed out, during the tentative interval which +extended until Appomattox, the Supreme Court served perhaps as well, in ordinary +times, as an arbiter between the states and the general government, as any which +could have been suggested. So much may be conceded, and yet it remains true, as +the record will show, that when it passed this point and entered into factional +strife, the Supreme Court somewhat lamentably failed, probably injuring itself +and popular respect for law, far more by its errors, than it aided the Union by +its political adjudications.</p> +<p>Although John Marshall, by common consent, ranks as one of the greatest and +purest of Americans, yet even Marshall had human weaknesses, one of which was a +really unreasonable antipathy to Thomas Jefferson; an antipathy which, I +surmise, must, when Jefferson was inaugurated, have verged upon contempt. At +least Marshall did what cautious men seldom do when they respect an adversary, +he took the first opportunity to pick a quarrel with a man who had the advantage +of him in position.</p> +<p>In the last days of his presidency John Adams appointed one William Marbury a +justice of the peace for the District of Columbia. The Senate confirmed the +appointment, and the President signed, and John Marshall, as Secretary of State, +sealed Marbury's commission; but in the hurry of surrendering office the +commission was not delivered, and Jefferson found it in the State Department +when he took possession. Resenting violently these "midnight" +appointments, as he called them, Jefferson directed Mr. Madison, his Secretary +of State, to withhold the commission; and, at the next December term of the +Supreme Court, Marbury moved for a rule to Madison to show cause why he should +not be commanded to deliver to the plaintiff the property to which Marbury +pretended to be entitled. Of course Jefferson declined to appear before +Marshall, through his Secretary of State, and finally, in February, 1803, +Marshall gave judgment, in what was, without any doubt, the most anomalous +opinion he ever delivered, in that it violated all judicial conventions, for, +apparently, no object, save to humiliate a political opponent.</p> +<p>Marshall had no intention of commanding Madison to surrender the commission +to Marbury. He was too adroit a politician for that. Marshall knew that he could +not compel Jefferson to obey such a writ against his will, and that in issuing +the order he would only bring himself and his court into contempt. What he seems +to have wished to do was to give Jefferson a lesson in deportment. Accordingly, +instead of dismissing Marbury's suit upon any convenient pretext, as, according +to legal etiquette, he should have done if he had made up his mind to decide +against the plaintiff, and yet thought it inexpedient to explain his view of the +law, he began his opinion with a long and extra-judicial homily, first on +Marbury's title to ownership in the commission, and then on civil liberty. +Having affirmed that Marbury's right to his office vested when the President had +signed, and the Secretary of State had sealed the instrument, he pointed out +that withholding the property thus vested was a violation of civil rights which +could be examined in a court of justice. Were it otherwise, the Chief Justice +insisted, the government of the United States could not be termed a government +of laws and not of men.</p> +<p>All this elaborate introduction was in the nature of a solemn lecture by the +Chief Justice of the Supreme Court to the President of the United States upon +his faulty discharge of his official duties. Having eased his mind on this head, +Marshall went on, very dexterously indeed, but also very palpably, to elude the +consequences of his temerity. He continued: The right of property being +established, and the violation of that right clear, it is plain that a wrong has +been committed, and it only remains to determine whether that wrong can be +redressed under this form of procedure. We are of opinion that it cannot, +because Congress has no constitutional power to confer upon the Supreme Court +original jurisdiction in this class of litigation. In the lower courts alone can +the relief prayed for be obtained.</p> +<p>Of all the events of Marshall's life this controversy with Jefferson seems to +me the most equivocal, and it was a direct effect of a constitutional system +which has permitted the courts to become the censor of the political departments +of the government. Marshall, probably, felt exasperated by Jefferson's virulence +against these final appointments made by John Adams, while Marshall was +Secretary of State, and for which he may have felt himself, in part, +responsible. Possibly, even, he may have taken some of Jefferson's strictures as +aimed at himself. At all events he went to extreme lengths in retaliation. He +might have dismissed the litigation in a few words by stating that, whatever the +abstract rights of the parties might have been, the Supreme Court had no power +to constrain the President in his official functions; but he yielded to +political animosity. Then, having taken a position practically untenable, he had +to find an avenue of retreat, and he found it by asserting a supervisory +jurisdiction over Congress, a step which, even at that early period, was most +hazardous.<a name="FNanchor12"></a><a href="#Footnote_12"><sup>[12]</sup></a></p> +<p>In reality Jefferson's temper, far from being vindictive and revolutionary, +as his enemies believed, was rather gentle and timid, but he would have been +more than mortal had he endured such an insult in silence. Nor could he, +perhaps, have done so without risking the respect of his followers. So he +decided on reprisals, and a scheme was matured among influential Virginians, +like John Randolph and Senator William Giles, to purge the Supreme Court of +Federalists. Among the associate justices of this court was Samuel Chase, a +signer of the Declaration of Independence and an able lawyer, but an arrogant +and indiscreet partisan. Chase had made himself obnoxious on various public +occasions and so was considered to be the best subject to impeach; but if they +succeeded with him the Jeffersonians proclaimed their intention of removing all +his brethren seriatim, including the chief offender of all, John Marshall. One +day in December, 1804, Senator Giles, of Virginia, in a conversation which John +Quincy Adams has reported in his diary, discussed the issue at large, and that +conversation is most apposite now, since it shows how early the inevitable +tendency was developed to make judges who participate in political and social +controversies responsible to the popular will. The conversation is too long to +extract in full, but a few sentences will convey its purport:--</p> +<p>"He treated with the utmost contempt the idea of an <i>independent</i> +judiciary.... And if the judges of the Supreme Court should dare, <i>as they had +done</i>, to declare an act of Congress unconstitutional, or to send a mandamus +to the Secretary of State, <i>as they had done</i>, it was the undoubted right +of the: House of Representatives to impeach them, and of the Senate to remove +them, for giving such opinions, however honest or sincere they may have been in +entertaining them. * * * And a removal by impeachment was nothing more than a +declaration by Congress to this effect: You hold dangerous opinions, and if you +are suffered to carry them into effect you will work the destruction of the +nation. <i>We want your offices</i>, for the purpose of giving them to men who +will fill them better."<a name="FNanchor13"></a><a href="#Footnote_13"><sup>[13]</sup></a></p> +<p>Jefferson, though he controlled a majority in the Senate, failed by a narrow +margin to obtain the two-thirds vote necessary to convict Chase. Nevertheless, +he accomplished his object. Chase never recovered his old assurance, and +Marshall never again committed a solecism in judicial manners. On his side, +after the impeachment, Jefferson showed moderation. He might, if he had been +malevolent, without doubt, have obtained an act of Congress increasing the +membership of the Supreme Court enough to have put Marshall in a minority. Then +by appointing men like Giles he could have compelled Marshall to resign. He did +nothing of the kind. He spared the Supreme Court, which he might have +overthrown, and contented himself with waiting until time should give him the +opportunity to correct the political tendencies of a body of men whom he +sincerely regarded as a menace to, what he considered, popular institutions. +Thus the ebullition caused by Marshall's acrimony toward Jefferson, because of +Jefferson's strictures on the appointments made by his predecessor subsided, +leaving no very serious immediate mischief behind, save the precedent of the +nullification of an act of Congress by the Supreme Court. That precedent, +however, was followed by Marshall's Democratic successor. And nothing can better +illustrate the inherent vice of the American constitutional system than that it +should have been possible, in 1853, to devise and afterward present to a +tribunal, whose primary purpose was to administer the municipal law, a set of +facts for adjudication, on purpose to force it to pass upon the validity of such +a statute as the Missouri Compromise, which had been enacted by Congress in +1820, as a sort of treaty of peace between the North and South, and whose object +was the limitation of the spread of slavery. Whichever way the Court decided, it +must have fallen into opprobrium with one-half the country. In fact, having been +organized by the slaveholders to sustain slavery, it decided against the North, +and therefore lost repute with the party destined to be victorious. I need not +pause to criticise the animus of the Court, nor yet the quality of the law which +the Chief Justice there laid down. It suffices that in the decade which preceded +hostilities no event, in all probability, so exasperated passions, and so shook +the faith of the people of the northern states in the judiciary, as this +decision. Faith, whether in the priest or the magistrate, is of slow growth, and +if once impaired is seldom fully restored. I doubt whether the Supreme Court has +ever recovered from the shock it then received, and, considered from this point +of view, the careless attitude of the American people toward General Grant's +administration, when in 1871 it obtained the reversal of Hepburn <i>v</i>. +Griswold by appointments to the bench, assumes a sombre aspect.</p> +<p>Of late some sensitiveness has been shown in regard to this transaction, and +a disposition has appeared to defend General Grant and his Attorney-General +against the charge of manipulating the membership of the bench to suit their own +views. At the outset, therefore, I wish to disclaim any intention of entering +into this discussion. To me it is immaterial whether General Grant and Mr. Hoar +did or did not nominate judges with a view to obtaining a particular judgment. I +am concerned not with what men thought, but with what they did, and with the +effect of their acts at the moment, upon their fellow-citizens.</p> +<p>Hepburn <i>v</i>. Griswold was decided in conference on November 27, 1869, +when eight justices were on the bench. On February 1, following, Justice Grier +resigned, and, on February 7, judgment was entered, the court then being divided +four to three, but Grier having been with the majority, the vote in reality +stood five to three. Two vacancies therefore existed on February 7, one caused +by the resignation of Grier, the other by an act of Congress which had enlarged +the court by one member, and which had taken effect in the previous December.</p> +<p>Chief Justice Chase held that the clause of the currency laws of 1862 and +1863 which made depreciated paper a legal tender for preëxisting debts was +unconstitutional. No sooner had the judgment been recorded than all the world +perceived that, if both vacancies should be filled with men who would uphold the +acts, Hepburn <i>v</i>. Griswold might be reversed by a majority of one.</p> +<p>The Republican party had full control of the government and was united in +vehement support of the laws. On March 21, the second of the two new judges +received his commission, and precisely ten days afterward the Attorney-General +moved for a rehearing, taunting the Chief Justice with having changed his +opinion on this point, and intimating that the issue was in reality political, +and not judicial at all.</p> +<p>In the December Term following Knox <i>v</i>. Lee was argued by the +Attorney-General, and, on May 1, 1871, judgment was entered reversing Hepburn <i>v</i>. +Griswold, both the new judges voting with the former minority, thus creating the +necessary majority of one. No one has ever doubted that what General Grant did +coincided with the drift of opinion, and that the Republican party supported him +without inquiring how he had achieved success.<a name="FNanchor14"></a><a href="#Footnote_14"><sup>[14]</sup></a> +After this it is difficult to suppose that much respect could remain among the +American people for the sanctity of judicial political decisions, or that a +President, at the head of a popular majority, would incur much odium for +intervening to correct them, as a party measure.</p> +<p>The last example of judicial interference which I shall mention was the +nullification, in 1895, of a statute of Congress which imposed an income tax. +The states have since set this decision aside by constitutional amendment, and I +should suppose that few would now dispute that the Court when it so decided made +a serious political and social error. As Mr. Justice White pointed out, the +judges undertook to deprive the people, in their corporate capacity, of a power +conceded to Congress "by universal consensus for one hundred years."<a name="FNanchor15"></a><a href="#Footnote_15"><sup>[15]</sup></a> +These words were used in the first argument, but on the rehearing the present +Chief Justice waxed warm in remonstrating against the unfortunate position in +which his brethren placed the Court before the nation, protesting with almost +passionate earnestness against the reversal by half-a-dozen judges of what had +been the universally accepted legal, political, and economic policy of the +country solely in order that "invested wealth" might be read +"into the constitution" as a favored and protected class of property. +Mr. Justice White closed by saying that by this act the Supreme Court had +"deprived [the Government] of an inherent attribute of its being."<a name="FNanchor16"></a><a href="#Footnote_16"><sup>[16]</sup></a> +I might go on into endless detail, but I apprehend that these cases, which are +the most important which have ever arisen on this issue, suffice for my purpose.<a name="FNanchor17"></a><a href="#Footnote_17"><sup>[17]</sup></a> +I contend that no court can, because of the nature of its being, effectively +check a popular majority acting through a coordinate legislative assembly, and I +submit that the precedents which I have cited prove this contention. The only +result of an attempt and failure is to bring courts of justice into odium or +contempt, and, in any event, to make them objects of attack by a dominant social +force in order to use them as an instrument, much as Charles II used Jeffreys.</p> +<p>The moment we consider the situation philosophically we perceive why using a +court to control a coordinate legislature must, nearly inevitably, be sooner or +later fatal to the court, if it asserts its prerogative. A court to be a fit +tribunal to administer the municipal law impartially, or even relatively +impartially, must be a small body of men, holding by a permanent and secure +tenure, guarded from all pressure which may unduly influence them. Also they +should be men of much experience and learned in the precedents which should make +the rules which they apply stable and consistent. In short, a court should be +rigid and emotionless. It follows that it must be conservative, for its members +should long have passed that period of youth when the mind is sensitive to new +impressions. Were it otherwise, law would cease to be cohesive. A legislature is +nearly the antithesis of a court. It is designed to reflect the passions of the +voters, and the majority of voters are apt to be young. Hence in periods of +change, when alone serious clashes between legislatures and courts are likely to +occur, as the social equilibrium shifts the legislature almost certainly will +reflect the rising, the court the sinking power. I take the Dred Scott Case as +an illustration. In 1857 the slaveholding interest had passed the zenith of high +fortune, and was hastening toward its decline. In the elections of 1858 the +Democratic party, which represented slavery, was defeated. But the Supreme Court +had been organized by Democrats who had been dominant for many years, and it +adhered, on the principle laid down by Jeffreys, to the master which created it.</p> +<p>Occasionally, it is true, a court has been constructed by a rising energy, as +was the Supreme Court in 1789, but then it is equally tenacious to the instinct +which created it. The history of the Supreme Court is, in this point of view, +eminently suggestive. The Federalist instinct was constructive, not destructive, +and accordingly Marshall's fame rests on a series of constructive decisions like +M'Culloch <i>v</i>. Maryland, Cohens <i>v</i>. Virginia, and Gibbons <i>v</i>. +Odgen. In these decisions he either upheld actual national legislation, or else +the power of the nation to legislate. Conversely, whenever Marshall or his +successors have sought to obstruct social movement they have not prospered. +Marbury <i>v</i>. Madison is not an episode on which any admirer of Marshall can +linger with satisfaction. In theory it may be true, as Hamilton contended, that, +given the fact that a written constitution is inevitable, a bench of judges is +the best tribunal to interpret its meaning, since the duty of the judge has ever +been and is now to interpret the meaning of written instruments; but it does not +follow from this premise that the judges who should exercise this office should +be the judges who administer the municipal law. In point of fact experience has +proved that, so far as Congress is concerned, the results of judicial +interference have been negative. And it would be well if in other spheres of +American constitutional development, judicial activity had been always negative. +Unfortunately, as I believe, it has extended into the domain of legislation. I +will take the Dred Scott Case once more to illustrate my meaning. The North +found it bad enough for the Supreme Court to hold that, under the Constitution, +Congress could not exclude slavery from the national territory beyond a certain +boundary which had been fixed by compromise between the North and South. But the +North would have found it intolerable if the Court, while fully conceding that +Congress might so legislate, if the character of the legislation commended +itself to the judges, had held the Missouri Compromise to be unconstitutional +because they thought it <i>unreasonable</i>. Yet this, in substance, is what our +courts have done. And this brings me to the consideration of American courts as +legislative chambers. +<br> +</p> +<hr style="width: 65%;"> +<br> +<br> +<a name="CHAPTER_III"></a> +<h2 align="center">CHAPTER III</h2> +<p align="center">AMERICAN COURTS AS LEGISLATIVE CHAMBERS</p> +<br> +<p>In one point of view many of the greatest of the Federalists were idealists. +They seem sincerely to have believed that they could, by some form of written +words, constrain a people to be honest against their will, and almost as soon as +the new government went into operation they tested these beliefs by experiment, +with very indifferent success. I take it that jurists like Jay and Marshall held +it to be axiomatic that rules of conduct should be laid down by them which would +be applicable to rich and poor, great and small, alike, and that courts could +maintain such rules against all pressure. Possibly such principles may be +enforced against individuals, but they cannot be enforced against communities, +and it was here that the Federalist philosophy collapsed, as Hamilton, at least +partly, foresaw that it must.</p> +<p>Sovereigns have always enjoyed immunity from suit by private persons, unless +they have been pleased to assent thereto, not because it is less wrongful for a +sovereign than for an individual to cheat, but because the sovereign cannot be +arrested and the individual can. With the Declaration of Independence the +thirteen colonies became sovereigns. Petty sovereigns it is true, and singly +contemptible in physical force as against most foreign nations, but none the +less tenacious of the attributes of sovereignty, and especially of the attribute +which enabled them to repudiate their debts. Jay, Marshall, and their like, +thought that they could impose the same moral standard upon the states as upon +private persons; they were unable to do so, but in making the attempt they +involved the American judicial system in a maze of difficulties whose gravity, I +fear, can hardly be exaggerated. Before entering upon this history, however, I +must say a word touching the nature of our law.</p> +<p>Municipal law, to be satisfactory, should be a body of abstract principles +capable of being applied impartially to all relevant facts, just as Marshall and +Jay held it to be. Where exceptions begin, equality before the law ends, as I +have tried to show by the story of King David and Uriah, and therefore the great +effort of civilization has been to remove judges from the possibility of being +subjected to a temptation, or to a pressure, which may deflect them from +impartiality as between suitors. In modern civilization, especially, nothing is +so fatal to the principle of order as inequality in the dispensation of justice, +and it would have been reasonable to suppose that Americans, beyond all others, +would have been alive to this teaching of experience, and have studiously +withdrawn their bench from politics. In fact they have ignored it, and instead +they have set their judiciary at the focus of conflicting forces. The result has +been the more unfortunate as the English system of jurisprudence is ill +calculated to bear the strain, it being inflexible. In theory the English law +moves logically from precedent to precedent, the judge originating nothing, only +elaborating ideas which he has received from a predecessor, and which are +binding on him. If the line of precedents leads to wrongful conclusions, the +legislature must intervene with a statute rectifying the wrong. The Romans, who +were gifted with a higher legal genius than we, managed better. The praetor, by +his edict, suppressed inconvenient precedents, and hence the Romans maintained +flexibility in their municipal law without falling into confusion. We have +nothing to correspond to the praetor.</p> +<p>Thus the English system of binding precedents is troublesome enough in a +civilization in chronic and violent flux like modern civilization, even when +applied to ordinary municipal law which may be changed at will by legislation, +but it brings society almost to a stand when applied to the most vital functions +of government, with no means at hand to obtain a corrective. For the court of +last resort having once declared the meaning of a clause of the Constitution, +that meaning remains fixed forever, unless the court either reverses itself, +which is a disaster, or the Constitution can be amended by the states, which is +not only difficult, but which, even if it be possible, entails years of delay.</p> +<p>Yet pressing emergencies arise, emergencies in which a settlement of some +kind must almost necessarily be reached somewhat rapidly to avert very serious +disorders, and it has been under this tension, as I understand American +constitutional development, that our courts have resorted to legislation. Nor is +it fair for us to measure the sagacity of our great jurists by the standard of +modern experience. They lived before the acceleration of movement by electricity +and steam. They could not foresee the rapidity and the profundity of the changes +which were imminent. Hence it was that, in the spirit of great lawyers, who were +also possibly men tinged with a certain enthusiasm for the ideal, they began +their work by ruling on the powers and limitations of sovereignty, as if they +were ruling on the necessity of honest intent in dealings with one's neighbor.</p> +<p>In 1789 General Washington is said to have offered John Jay his choice of +offices under the new government, and Jay chose the chief justiceship, because +there he thought he could make his influence felt most widely. If so he had his +wish, and very shortly met with disappointment. In the August Term of 1792, one +Chisholm, a citizen of South Carolina, sued the State of Georgia for a debt. +Georgia declined to appear, and in February, 1793, Jay, in an elaborate opinion, +gave judgment for Chisholm. Jay was followed by his associates with the +exception of Iredell, J., of North Carolina. Forthwith a ferment began, and in +the very next session of Congress an amendment to the Constitution was proposed +to make such suits impossible. In January, 1798, five years after the case was +argued, this amendment was declared to be adopted, but meanwhile Jay had +resigned to become governor of New York. In December, 1800, he was again offered +the chief justiceship by John Adams, on the resignation of Oliver Ellsworth, but +Jay resolutely declined. I have often wondered whether Jay's mortification at +having his only important constitutional decision summarily condemned by the +people may not have given him a distaste for judicial life.</p> +<p>The Federalist attempt to enforce on the states a positive rule of economic +morality, therefore, collapsed at once, but it still remained possible to +approach the same problem from its negative side, through the clause of the +Constitution which forbade any state to impair the validity of contracts, and +Marshall took up this aspect of the task where Jay left it. In Marshall's mind +his work was simple. He had only to determine the nature of a contract, and the +rest followed automatically. All contracts were to be held sacred. Their greater +or less importance was immaterial.</p> +<p>In 1810 Marshall expounded this general principle in Fletcher <i>v</i>. Peck.<a name="FNanchor18"></a><a href="#Footnote_18"><sup>[18]</sup></a> +"When ... a law is in its nature a contract ... a repeal of the law cannot +devest" rights which have vested under it. A couple of years later he +applied his principle to the extreme case of an unlimited remission of taxation.<a name="FNanchor19"></a><a href="#Footnote_19"><sup>[19]</sup></a> +The State of New Jersey had granted an exemption from taxation to lands ceded to +certain Indians. Marshall held that this contract ran with the land, and inured +to the benefit of grantees from the Indians. If the state cared to resume its +power of taxation, it must buy the grant back, and the citizens of New Jersey +must pay for their improvidence.</p> +<p>Seven years later, in 1810, Marshall may, perhaps, be said to have reached +the culmination of his career, for then he carried his moral standard to a +breaking strain. But, though his theory broke down, perhaps the most striking +evidence of his wonderful intellectual superiority is that he convinced the +Democrat, Joseph Story,--a man who had been nominated by Madison to oppose him, +and of undoubted strength of character,--of the soundness of his thesis. In +1769 King George III incorporated certain Trustees of Dartmouth College. The +charter was accepted and both real and personal property were thereupon conveyed +to this corporate body, in trust for educational purposes. In 1816 the +legislature of New Hampshire reorganized the board of trustees against their +will. If the incorporation amounted to a contract, the Court was clear that this +statute impaired it; therefore the only really debatable issue was whether the +grant of a charter by the king amounted to a contract by him, with his subjects +to whom he granted it. After prolonged consideration Marshall concluded that it +did, and I conceive that, in the eye of history, he was right. Throughout the +Middle Ages corporate privileges of all kinds, but especially municipal +corporate privileges, had been subjects of purchase and sale, and indeed the +mediaeval social system rested on such contracts. So much was this the case that +the right to return members of Parliament from incorporated boroughs was, as +Lord Eldon pointed out in the debates on the Reform Bill, as much private +property "as any of your lordships'" titles and peerages.</p> +<p>It was here that Marshall faltered. He felt that the public would not support +him if he held that states could not alter town and county charters, so he +arbitrarily split corporations in halves, protecting only those which handled +exclusively private funds, and abandoning "instruments of government," +as he called them, to the mercy of legislative assemblies.</p> +<p>Toward 1832 it became convenient for middle class Englishmen to confiscate +most of the property which the aristocracy had invested in parliamentary +boroughs, and this social revolution was effected without straining the judicial +system, because of the supremacy of Parliament. In America, at about the same +time, it became, in like manner, convenient to confiscate numerous equally +well-vested rights, because, to have compensated the owners would have entailed +a considerable sacrifice which neither the public nor the promoters of new +enterprises were willing to make. The same end was reached in America as in +England, in spite of Chief Justice Marshall and the Dartmouth College Case, only +in America it was attained by a legal somerset which has disordered the course +of justice ever since.</p> +<p>In 1697 King William III incorporated Trinity Church in the City of New York, +confirming to the society the possession of a parcel of land, adjoining the +church, to be used as a churchyard for the burial of the dead. In 1823 the +government of New York prohibited interments within the city limits, thus +closing the churchyard for the purposes for which it had been granted. As +compensation was refused, it appeared to be a clear case of confiscation, and +Trinity resisted. In the teeth of recent precedents the Supreme Court of New +York decided that, under the <i>Police Power</i>, the legislature of New York +might authorize this sort of appropriation of private property for sanitary +purposes, without paying the owners for any loss they might thereby sustain.<a name="FNanchor20"></a><a href="#Footnote_20"><sup>[20]</sup></a></p> +<p>The court thus simply dispensed the legislature from obedience to the law, +saying in effect, "although the Constitution forbids impairing contracts, +and although this is a contract which you have impaired, yet, in our discretion, +we suspend the operation of the Constitution, in this instance, by calling your +act an exercise of a power unknown to the framers of the Constitution." I +cannot doubt that Marshall would have flouted this theory had he lived to pass +upon it, but Marshall died in 1835, and the Charles River Bridge Case, in which +this question was first presented to the Supreme Court of the United States, did +not come up until 1837. Then Joseph Story, who remained as the representative of +Marshall's philosophy upon the bench, vehemently protested against the +latitudinarianism of Chief Justice Taney and his associates, but without +producing the slightest effect.</p> +<p>In 1785 the Massachusetts legislature chartered the Charles River Bridge +Company to build a bridge between Boston and Charlestown, authorizing it, by way +of consideration, to collect tolls for forty years. In 1792 the franchise was +extended to seventy years, when the bridge was to revert to the Commonwealth. In +1828 the legislature chartered the Warren Bridge Company, expressly to build a +bridge parallel to and practically adjoining the Charles River Bridge, the +Warren Bridge to become a free bridge after six years. The purpose, of course, +was to accelerate movement by ruining the Charles River Bridge Company. The +Charles River Bridge Company sought to restrain the building of the Warren +Bridge as a breach of contract by the State, but failed to obtain relief in the +state courts, and before the cause could be argued at Washington the Warren +Bridge had become free and had destroyed the value of the Charles River Bridge, +though its franchise had still twenty years to run. As Story pointed out, no one +denied that the charter of the Charles River Bridge Company was a contract, and, +as he insisted, it is only common sense as well as common justice and elementary +law, that contracts of this character should be reasonably interpreted so far as +quiet enjoyment of the consideration granted is concerned; but all this availed +nothing. The gist of the opposing argument is contained in a single sentence in +the opinion of the Chief Justice who spoke for the majority of the court: +"The millions of property which have been invested in railroads and canals, +upon lines of travel which had been before occupied by turnpike corporations, +will be put in jeopardy" if this doctrine is to prevail.<a name="FNanchor21"></a><a href="#Footnote_21"><sup>[21]</sup></a></p> +<p>The effect of the adoption by the Supreme Court of the United States of the +New York theory of the Police Power was to vest in the judiciary, by the use of +this catch-word, an almost unparalleled prerogative. They assumed a supreme +function which can only be compared to the Dispensing Power claimed by the +Stuarts, or to the authority which, according to the Council of Constance, +inheres in the Church, to "grant indulgences for reasonable causes." I +suppose nothing in modern judicial history has ever resembled this assumption; +and yet, when we examine it, we find it to be not only the logical, but the +inevitable, effect of those mechanical causes which constrain mankind to move +along the lines of least resistance.</p> +<p>Marshall, in a series of decisions, laid down a general principle which had +been proved to be sound when applied by ordinary courts, dealing with ordinary +social forces, and operating under the corrective power of either a legislature +or a praetor, but which had a different aspect under the American constitutional +system. He held that the fundamental law, embodied in the Constitution, +commanded that all contracts should be sacred. Therefore he, as a judge, had but +two questions to resolve: First, whether, in the case before him, a contract had +been proved to exist. Second, admitting that a contract had been proved, whether +it had also been shown to have been impaired.</p> +<p>Within ten years after these decisions it had been found in practice that +public opinion would not sustain so rigid an administration of the law. No +legislature could intervene, and a pressure was brought to bear which the judges +could not withstand; therefore, the Court yielded, declaring that if impairing a +contract were, on the whole, for the public welfare, the Constitution, as +Marshall interpreted it, should be suspended in favor of the legislation which +impaired it. They called this suspension the operation of the "Police +Power." It followed, as the "Police Power" could only come into +operation at the discretion of the Court, that, therefore, within the limits of +judicial discretion, confiscation, however arbitrary and to whatever extent, +might go on. In the energetic language of the Supreme Court of Maine: "This +duty and consequent power override all statute or contract exemptions. The state +cannot free any person or corporation from subjection to this power. All +personal, as well as property rights must be held subject to the Police Power of +the state."<a name="FNanchor22"></a><a href="#Footnote_22"><sup>[22]</sup></a></p> +<p>Once the theory of the Police Power was established it became desirable to +define the limits of judicial discretion, but that proved to be impossible. It +could not be determined in advance by abstract reasoning. Hence, as each +litigation arose, the judges could follow no rule but the rule of common sense, +and the Police Power, translated into plain English, presently came to signify +whatever, at the moment, the judges happened to think reasonable. Consequently, +they began guessing at the drift of public opinion, as it percolated to them +through the medium of their education and prejudices. Sometimes they guessed +right and sometimes wrong, and when they guessed wrong they were cast aside, as +appeared dramatically enough in the temperance agitation.</p> +<p>Up to about the middle of the last century the lawfulness of the liquor +business had been unquestioned in the United States, and money had been invested +as freely in it as in any other legitimate enterprise; but, as the temperance +agitation swept over the country, in obedience to the impulsion given by science +to the study of hygiene, dealing in liquor came to be condemned as a crime. +Presently legislatures began to pass statutes to confiscate, more or less +completely, this kind of property, and sufferers brought their cases before the +courts to have the constitutionality of the acts tested, under the provisions +which existed in all state constitutions, forbidding the taking, by the public, +of private property without compensation, or without due process of law. Such a +provision existed hi the constitution of the State of New York, adopted in 1846, +and it was to invoke the protection of this clause that one Wynehamer, who had +been indicted in 1855, carried his case to the Court of Appeals in the year +1856. In that cause Mr. Justice Comstock, who was one of the ablest jurists New +York ever produced, gave an opinion which is a model of judicial' reasoning. He +showed conclusively the absurdity of constitutional restrictions, if due process +of law may be held to mean the enactment of the very statute drawn to work +confiscation.<a name="FNanchor23"></a><a href="#Footnote_23"><sup>[23]</sup></a> +This decision, which represented the profoundest convictions of men of the +calibre of Comstock and Denio, deserves to rank with Marshall's effort in the +Dartmouth College Case. In both instances the tribunal exerted itself to carry +out Hamilton's principle of judicial duty by exercising its <i>judgment</i> and +not its <i>will</i>. In other words, the judges propounded a general rule and +then simply determined whether the set of facts presented to them fell within +that rule. They resolutely declined to legislate by entering upon a +consideration of the soundness or reasonableness of the policy which underlay +the action of the legislature. In the one case as in the other the effort was +unavailing, as Jefferson prophesied that it would be. I have told of Marshall's +overthrow in the Charles River Bridge Case, and in 1887, after controversies of +this category had begun to come before the Supreme Court of the United States +under the Fourteenth Amendment, Mr. Justice Harlan swept Mr. Justice Comstock +aside by quietly ignoring an argument which was unanswerable.<a name="FNanchor24"></a><a href="#Footnote_24"><sup>[24]</sup></a> +The same series of phenomena have appeared in regard to laws confiscating +property invested in lotteries, when opinion turned against lotteries, or in +occupations supposed to be unsanitary, as in the celebrated case of the taxing +out of existence of the rendering establishment which had been erected as a +public benefit to relieve the City of Chicago of its offal.<a name="FNanchor25"></a><a href="#Footnote_25"><sup>[25]</sup></a> +In fine, whenever pressure has reached a given intensity, on one pretext or +another, courts have enforced or dispensed with constitutional limitations with +quite as much facility as have legislatures, and for the same reasons. The only +difference has been that the pressure which has operated most directly upon +courts has not always been the pressure which has swayed legislatures, though +sometimes both influences have combined. For example, during the Civil War, the +courts sanctioned everything the popular majority demanded under the pretext of +the War Power, as in peace they have sanctioned confiscations for certain +popular purposes, under the name of the Police Power. But then, courts have +always been sensitive to financial influences, and if they have been flexible in +permitting popular confiscation when the path of least resistance has lain that +way, they have gone quite as far in the reverse direction when the amount of +capital threatened has been large enough to be with them a countervailing force.</p> +<p>As the federal Constitution originally contained no restriction upon the +states touching the confiscation of the property of their own citizens, provided +contracts were not impaired, it was only in 1868, by the passage of the +Fourteenth Amendment, that the Supreme Court of the United States acquired the +possibility of becoming the censor of state legislation in such matters. Nor did +the Supreme Court accept this burden very willingly or in haste. For a number of +years it labored to confine its function to defining the limits of the Police +Power, guarding itself from the responsibility of passing upon the +"reasonableness" with which that power was used. It was only by +somewhat slow degrees, as the value of the threatened property grew to be vast, +that the Court was deflected from this conservative course into effective +legislation. The first prayers for relief came from the Southern states, who +were still groaning under reconstruction governments; but as the Southern whites +were then rather poor, their complaints were neglected. The first very famous +cause of this category is known as the Slaughter House Cases. In 1869 the Carpet +Bag government of Louisiana conceived the plan of confiscating most of the +property of the butchers who slaughtered for New Orleans, within a district +about as large as the State of Rhode Island. The Fourteenth Amendment forbade +states to deprive any person of life, liberty, or property, without due process +of law, and the butchers of New Orleans prayed for protection, alleging that the +manner in which their property had been taken was utterly lawless. But the +Supreme Court declined to interfere, explaining that the Fourteenth Amendment +had been contrived to protect the emancipated slaves, and not to make the +federal judiciary "a perpetual censor upon all legislation of the states, +on the civil rights of their own citizens, with authority to nullify such as it +did not approve."<a name="FNanchor26"></a><a href="#Footnote_26"><sup>[26]</sup></a></p> +<p>Although, even at that relatively early day, this conservatism met with +strong opposition within the Court itself, the pressure of vested wealth did not +gather enough momentum to overcome the inertia of the bench for nearly another +generation. It was the concentration of capital in monopoly, and the consequent +effort by the public to regulate monopoly prices, which created the stress which +changed the legal equilibrium. The modern American monopoly seems first to have +generated that amount of friction, which habitually finds vent in a great +litigation, about the year 1870; but only some years later did the states enter +upon a determined policy of regulating monopoly prices by law, with the +establishment by the Illinois legislature of a tariff for the Chicago elevators. +The elevator companies resisted, on the ground that regulation of prices in +private business was equivalent to confiscation, and so in 1876 the Supreme +Court was dragged into this fiercest of controversies, thereby becoming subject +to a stress to which no judiciary can safely be exposed. Obviously two questions +were presented for adjudication: The first, which by courtesy might be termed +legal, was whether the fixing of prices by statute was a prerogative which a +state legislature might constitutionally exercise at all; the second, which was +purely political, was whether, admitting that, in the abstract, such a power +could be exercised by the state, Illinois had, in this particular case, behaved <i>reasonably</i>. +The Supreme Court made a conscientious effort to adhere to the theory of +Hamilton, that it should, in emergencies like this, use its <i>judgment</i> +only, and not its <i>will</i>; that it should lay down a rule, not vote on the +wisdom of a policy. So the judges decided that, from time immemorial, the fixing +of prices in certain trades and occupations had been a legislative function, +which they supposed might be classified as a branch of the Police Power, but +they declared that with this expression of opinion their jurisdiction ended. +When it came to asking them to criticise the propriety of legislation, it was, +in substance, proposing that they should substitute their <i>will</i> for the <i>will</i> +of the representatives of the people, which was impossible. I well remember the +stir made by the case of Munn <i>v</i>. Illinois.<a name="FNanchor27"></a><a href="#Footnote_27"><sup>[27]</sup></a></p> +<p>Both in and out of the legal profession, those in harmony with the great +vested interests complained that the Court had shirked its duty. But these +complaints soon ceased, for a movement was in progress which swept, for the +moment, all before it. The great aggregations of capital, which had been +accumulating ever since the Charles River Bridge Case, not long after Munn <i>v.</i> +Illinois attained to a point at which they began to grasp many important +prerogatives of sovereignty, and to impose, what was tantamount to, arbitrary +taxation upon a large scale. The crucial trial of strength came on the contest +for control of the railways, and in that contest concentrated capital prevailed. +The Supreme Court reversed its attitude, and undertook to do that which it had +solemnly protested it could not do. It began to censor legislation in the +interest of the strongest force for the time being, that force being actually +financial. By the year 1800 the railway interest had expanded prodigiously. +Between 1876 and 1890 the investment in railways had far more than doubled, and, +during the last five years of this period, the increment had been at an average +of about $450,000,000 annually. At this point the majority of the court yielded, +as ordinary political chambers always must yield, to extraordinary pressure. Mr. +Justice Bradley, however, was not an ordinary man. He was, on the contrary, one +of the ablest and strongest lawyers who sat on the federal bench during the last +half of the nineteenth century; and Bradley, like Story before him, remonstrated +against turning the bench of magistrates, to which he belonged, from a tribunal +which should propound general rules applicable to all material facts, into a +jury to find verdicts on the reasonableness of the votes of representative +assemblies. The legislature of Minnesota, in 1887, passed a statute to regulate +railway rates, and provided that the findings of the commission which it erected +to fix those rates should be final. The Chicago, Milwaukee & St. Paul +Railway contended that this statute was unconstitutional, because it was +unreasonable, and the majority of the Court sustained their contention.<a name="FNanchor28"></a><a href="#Footnote_28"><sup>[28]</sup></a> +Justices Bradley, Gray, and Lamar dissented, and Bradley on this occasion +delivered an opinion, from which I shall quote a paragraph or two, since the +argument appears to me conclusive, not only from the point of view of law, but +of political expediency and of common sense:--</p> +<p>"I cannot agree to the decision of the court in this case. It +practically overrules Munn <i>v.</i> Illinois.... The governing principle of +those cases was that the regulation and settlement of the fares of railroads and +other public accommodations is a legislative prerogative, and not a judicial +one. This is a principle which I regard as of great importance....</p> +<p>"But it is said that all charges should be reasonable, and that none but +reasonable charges can be exacted; and it is urged that what is a reasonable +charge is a judicial question. On the contrary, it is preëminently a +legislative one, involving considerations of policy as well as of +remuneration.... By the decision now made we declare, in effect, that the +judiciary, and not the legislature, is the final arbiter in the regulation of +fares and freights of railroads.... It is an assumption of authority on the part +of the judiciary which, ... it has no right to make. The assertion of +jurisdiction by this court makes it the duty of every court of general +jurisdiction, state or federal, to entertain complaints [of this nature], for +all courts are bound by the Constitution of the United States, the same as we +are."</p> +<p>There is little to add to these words. When the Supreme Court thus undertook +to determine the reasonableness of legislation it assumed, under a somewhat thin +disguise, the position of an upper chamber, which, though it could not +originate, could absolutely veto most statutes touching the use or protection of +property, for the administration of modern American society now hinges on this +doctrine of judicial dispensation under the Police Power. Whether it be a +regulation of rates and prices, of hours of labor, of height of buildings, of +municipal distribution of charity, of flooding a cranberry bog, or of +prescribing to sleeping-car porters duties regarding the lowering of upper +berths,--in questions great and small, the courts vote upon the reasonableness +of the use of the Police Power, like any old-fashioned town meeting. There is no +rule of law involved. There is only opinion or prejudice, or pecuniary interest. +The judges admit frankly that this is so. They avow that they try to weigh +public opinion, as well as they can, and then vote. In 1911 Mr. Justice Holmes +first explained that the Police Power extended to all great public needs, and +then went on to observe that this Police Power, or extraordinary prerogative, +might be put forth by legislatures "in aid of what is sanctioned by usage, +or held by ... preponderant opinion to be ... necessary to the public +welfare."<a name="FNanchor29"></a><a href="#Footnote_29"><sup>[29]</sup></a></p> +<p>A representative chamber reaches its conclusions touching "preponderant +opinion" by a simple process, but the influences which sway courts are +obscurer,--often, probably, beyond the sphere of the consciousness of the +judges themselves. Nor is this the worst; for, as I have already explained, the +very constitution of a court, if it be a court calculated to do its legitimate +work upon a lofty level, precludes it from keeping pace with the movement in +science and the arts. Necessarily it lags some years behind. And this tendency, +which is a benefit in the dispensation of justice as between private litigants, +becomes a menace when courts are involved in politics. A long line of sinister +precedents crowd unbidden upon the mind. The Court of King's Bench, when it held +Hampden to be liable for the Ship Money, draped the scaffold for Charles I. The +Parliament of Paris, when it denounced Turgot's edict touching the corvée, +threw wide the gate by which the aristocracy of France passed to the guillotine. +The ruling of the Superior Court of the Province of Massachusetts Bay, in the +case of the Writs of Assistance, presaged the American Revolution; and the Dred +Scott decision was the prelude to the Civil War.</p> +<p>The capital essential of justice is that, under like conditions, all should +fare alike. The magistrate should be no respecter of persons. The vice of our +system of judicial dispensation is that it discriminates among suitors in +proportion to their power of resistance. This is so because, under adequate +pressure, our courts yield along the path of least resistance. I should not +suppose that any man could calmly turn over the pages of the recent volumes of +the reports of the Supreme Court of the United States and not rise from the +perusal convinced that the rich and the poor, the strong and the weak, do not +receive a common measure of justice before that judgment seat. Disregarding the +discrimination which is always apparent against those who are unpopular, or who +suffer under special opprobrium, as do liquor dealers, owners of lotteries, and +the like,<a name="FNanchor30"></a><a href="#Footnote_30"><sup>[30]</sup></a> I +will take, nearly at random, a couple of examples of rate regulation, where +tenderness has been shown property in something approaching to a mathematical +ratio to the amount involved.</p> +<p>In April, 1894, a record was produced before the Supreme Court which showed +that the State of North Dakota had in 1891 established rates for elevating and +storing grain, which rates the defendant, named Brass, who owned a small +elevator, alleged to be, to him in particular, <i>utterly</i> ruinous, and to be +in general unreasonable. He averred that he used his elevator for the storage of +his own grain, that it cost about $3000, that he had no monopoly, as there were +many hundred such elevators in the state, and, as land fit for the purpose of +building elevators was plenty and cheap, that any man could build an elevator in +the town in which he lived, as well as he; that the rates he charged were +reasonable, and that, were he compelled to receive grain generally at the rates +fixed by the statute, he could not store his own grain. All these facts were +admitted by demurrer, and Brass contended that if any man's property were ever +to be held to be appropriated by the public without compensation, and under no +form of law at all save a predatory statute, it should be his; but the Supreme +Court voted the Dakota statute to be a reasonable exercise of the Police Power,<a name="FNanchor31"></a><a href="#Footnote_31"><sup>[31]</sup></a> +and dismissed Brass to his fate.</p> +<p>The converse case is a very famous one known as Smyth <i>v.</i> Ames,<a name="FNanchor32"></a><a href="#Footnote_32"><sup>[32]</sup></a> +decided four years later, in 1898. In that case it appeared that the State of +Nebraska had, in 1893, reduced freight rates within the state about twenty-nine +per cent, in order to bring them into some sort of relation to the rates charged +in the adjoining State of Iowa, which were calculated to be forty per cent lower +than the Nebraska rates. Several of the most opulent and powerful corporations +of the Union were affected by this law, among others the exceedingly prosperous +and influential Chicago, Burlington & Quincy Railway. No one pretended that, +were the law to be enforced, the total revenues of the Burlington would be +seriously impaired, nor was it even clear that, were the estimate of reduction, +revenue, and cost confined altogether to the commerce carried on within the +limits of the State of Nebraska, leaving interstate commerce out of +consideration, a loss would be suffered during the following year. Trade might +increase with cheaper rates, or economies might be made by the company, or both +causes and many others of increased earnings might combine. Corporation counsel, +however, argued that, were the principle of the statute admitted, and should all +the states through which the line passed do the like, ultimately a point might +be reached at which the railway would be unable to maintain, even approximately, +its dividend of eight per cent, and that the creation of such a possibility was +conceding the power of confiscation, and, therefore, an unreasonable exercise of +the Police Power, by the State of Nebraska. With this argument the Supreme Court +concurred. They held the Nebraska statute to be unreasonable. Very possibly it +may have been unsound legislation, yet it is noteworthy that within three years +after this decision Mr. Hill bought the Chicago, Burlington & Quincy, at the +rate of $200 for every share of stock of the par value of $100, thus fixing +forever, on the community tributary to the road, the burden of paying a revenue +on just double the value of all the stock which it had been found necessary to +issue to build the highway. Even at this price Mr. Hill is supposed to have made +a brilliant bargain.</p> +<p>This brings me to the heart of my theorem. Ever since Hamilton's time, it has +been assumed as axiomatic, by conservative Americans, that courts whose function +is to expound a written constitution can and do act as a "barrier to the +encroachments and oppressions of the representative body."<a name="FNanchor33"></a><a href="#Footnote_33"><sup>[33]</sup></a> +I apprehend that courts can perform no such office and that in assuming +attributes beyond the limitations of their being they, as history has abundantly +proved, not only fail in their object, but shake the foundations of authority, +and immolate themselves. Hitherto I have confined myself to adducing historical +evidence to prove that American courts have, as a whole, been gifted with so +little political sagacity that their interference with legislation, on behalf of +particular suitors, has, in the end, been a danger rather than a protection to +those suitors, because of the animosity which it has engendered. I shall now go +further. For the sake of argument I am willing to admit that the courts, in the +exercise of the dispensing prerogative, called the Police Power, have always +acted wisely, so much so that every such decree which they have issued may be +triumphantly defended upon economic, moral, or social grounds. Yet, assuming +this to be true, though I think I have shown it to be untrue, the assumption +only strengthens my contention, that our courts have ceased to be true courts, +and are converted into legislative chambers, thereby promising shortly to +become, if they are not already, a menace to order. I take it to be clear that +the function of a legislature is to embody the will of the dominant social +force, for the time being, in a political policy explained by statutes, and when +that policy has reached a certain stage of development, to cause it to be +digested, together with the judicial decisions relevant to it, in a code. This +process of correlation is the highest triumph of the jurist, and it was by their +easy supremacy in this field of thought, that Roman lawyers chiefly showed their +preeminence as compared with modern lawyers. Still, while admitting this +superiority, it is probably true that the Romans owed much of their success in +codification to the greater permanence of the Roman legislative tenure of +office, and, therefore, stability of policy,--phenomena which were both +probably effects of a slower social movement among the ancients. The Romans, +therefore, had less need than we of a permanent judiciary to counteract the +disintegrating tendency of redundant legislation; <i>a fortiori</i>, of course, +they had still less to isolate the judiciary from political onslaughts which +might cause justice to become a series of exceptions to general principles, +rather than a code of unvarying rules.</p> +<p>It is precisely because they are, and are intended to be, arenas of political +combat, that legislatures cannot be trustworthy courts, and it was because this +fact was notorious that the founders of this government tried to separate the +legislative from the judicial function, and to make this separation the +foundation of the new republic. They failed, as I conceive, not because they +made their legislatures courts, but because, under the system they devised, +their courts have become legislatures. A disease, perhaps, the more insidious of +the two. Insidious because it undermines, order, while legislative murder and +confiscation induce reaction.</p> +<p>If a legislative chamber would act as a court, the first necessity is to +eliminate its legislative character. For example, the House of Lords in England +has long discharged the duties of a tribunal of last resort for the empire, and +with general approbation, but only because, when sitting as a court, the law +lords sit alone. Politicians and political influences are excluded. Where +political influences enter disaster follows. Hence the infamous renown of +political decisions in legal controversies, such as bills of attainder and <i>ex +post facto</i> laws, or special legislation to satisfy claims which could not be +defended before legitimate courts, or the scandals always attending the trial of +election petitions. The object of true courts is to shield the public from these +and kindred abuses.</p> +<p>In primitive communities courts are erected to defend the weak against the +strong, by correlating local customs in such wise that some general principle +can be deduced which shall protect the civil rights of those who cannot protect +themselves, against the arbitrary exactions of powerful neighbors. In no +community can every person have equal civil rights. That is impossible. Civil +rights must vary according to status. But such rights as any person may have, +those the courts are bound to guard indifferently. If the courts do not perform +this, their first and most sacred duty, I apprehend that order cannot be +permanently maintained, for this is equality before the law; and equality before +the law is the cornerstone of order in every modern state.</p> +<p>I conceive that the lawyers of the age of Washington were the ablest that +America has ever produced. No men ever understood the principle of equality +before the law more thoroughly than they, and after the establishment of this +government a long series of great and upright magistrates strove, as I have +shown, to carry this principle into effect. Jay and Marshall, Story and Bradley, +and many, many more, struggled, protested, and failed. Failed, as I believe, +through no fault of their own, but because fortune had placed them in a position +untenable for the judge. When plunged in the vortex of politics, courts must +waver as do legislatures, and nothing is to me more painful than to watch the +process of deterioration by which our judges lose the instinct which should warn +them to shun legislation as a breach of trust, and to cleave to those general +principles which permit of no exceptions. To illustrate my meaning I shall refer +to but one litigation, but that one is so extraordinary that I must deal with it +in detail.</p> +<p>In 1890 the dread of the enhancement of prices by monopoly, as the Supreme +Court itself has explained, caused Congress to pass the famous Sherman Act, +which prohibited indiscriminately all monopolies or restraints of trade. +Presently the government brought a bill to dissolve an obnoxious railway pool, +called the Trans-Missouri Freight Association, and in 1896 the case came up for +adjudication. I have nothing to say touching the policy involved. I am only +concerned with a series of phenomena, developed through several years, as +effects of pressure acting upon a judiciary, exposed as the judiciary, under our +system, is exposed.</p> +<p>The Trans-Missouri Case was argued on December 8, 1896, very elaborately and +by the most eminent counsel. After long consideration, and profound reflection, +Mr. Justice Peckham, speaking for the majority of the tribunal, laid down a +general principle in conformity to the legislative will, precisely as Marshall +had laid down a general principle in the Dartmouth College Case, or Story in the +Charles River Bridge Case, or Waite in Munn <i>v</i>. Illinois, or Bradley in +the Minnesota Rate Case. Then the process of agitation immediately began. In the +words of Mr. Justice Harlan, fifteen years later: "But those who were in +combinations that were illegal did not despair. They at once set up the baseless +claim that the decision of 1896 disturbed the 'business interests of the +country,' and let it be known that they would never be content until the rule +was established that would permit interstate commerce to be subjected to <i>reasonable</i> +restraints."<a name="FNanchor34"></a><a href="#Footnote_34"><sup>[34]</sup></a></p> +<p>Other great causes, involving the same issue, were tried, the question was +repeatedly reargued, but the Supreme Court tenaciously adhered to its general +principle, that, under the Sherman Act, <i>all</i> restraints of trade, or +monopolies, were unlawful, and, therefore, the Court had but two matters before +it, first to define a restraint of trade or a monopoly, second to determine +whether the particular combination complained of fell within that definition. No +discretion was permitted. Judicial duty ended there.</p> +<p>The Court being found to be inflexible, recourse was had to Congress, and a +bill in the form of an amendment to the Sherman Act was brought into the Senate +authorizing, in substance, those who felt unsafe under the law, to apply to +certain government officials, to be permitted to produce evidence of the +reasonable methods they employed, and, if the evidence were satisfactory, to +receive, what was tantamount to, an indulgence. The subject thus reopened, the +Senate Committee on the Judiciary went into the whole question of monopoly anew, +and in 1909 Senator Nelson presented an exhaustive report against the proposed +relaxation. Thereupon the Senate indefinitely postponed further consideration of +the amendment. The chief reasons given by Senator Nelson were summed up in a +single sentence: "The defence of reasonable restraint would be made in +every case and there would be as many different rules of reasonableness as +cases, courts, and juries.... To amend the anti-trust act, as suggested by this +bill, would be to entirely emasculate it, and for all practical purposes render +it nugatory as a remedial statute.... The act as it exists is clear, +comprehensive, certain and highly remedial. It practically covers the field of +federal jurisdiction, and is in every respect a model law. To destroy or +undermine it at the present juncture, ... would be a calamity.</p> +<p>"In view of the foregoing, your committee recommend the indefinite +postponement of the bill."<a name="FNanchor35"></a><a href="#Footnote_35"><sup>[35]</sup></a></p> +<p>And so the Senate did indefinitely postpone the bill.</p> +<p>Matters stood thus when the government brought process to dissolve the +Standard Oil Company, as an unlawful combination. The cause was decided on May +15, 1911, the Chief Justice speaking for the majority of the bench, in one of +the most suggestive opinions which I have ever read. To me this opinion, like +Taney's opinion in the Charles River Bridge Case, indicates that the tension had +reached the breaking point, the court yielding in all directions at once, while +the dominant preoccupation of the presiding judge seemed to be to plant his +tribunal in such a position that it could so yield, without stultifying itself +hopelessly before the legal profession and the public. In striving to reach this +position, however, I apprehend that the Chief Justice, unreservedly, crossed the +chasm on whose brink American jurists had been shuddering for ninety years. The +task the Chief Justice assumed was difficult almost beyond precedent. He +proposed to surrender to the vested interests the principle of <i>reasonableness</i> +which they demanded, and which the tribunal he represented, together with +Congress, had refused to surrender for fifteen years. To pacify the public, +which would certainly resent this surrender, he was prepared to punish two hated +corporations, while he strove to preserve, so far as he could, the respect of +the legal profession and of the public, for the court over which he presided, by +maintaining a semblance of consistency.</p> +<p>To accomplish these contradictory results, the Chief Justice began, rather +after the manner of Marshall in Marbury <i>v</i>. Madison, by an extra-judicial +disquisition. The object of this disquisition was to justify his admission of +the evidence of reasonableness as a defence, although it was not needful to +decide that such evidence must be admitted in order to dispose of that +particular cause. For the Chief Justice very readily agreed that the Standard +Oil Company was, in fact, an unreasonable restraint of trade, and must be +dissolved, no matter whether it were allowed to prove its reasonable methods or +not. Accordingly, he might have contented himself with stating that, admitting +for the sake of argument but without approving, all the defendant advanced, he +should sustain the government; but to have so disposed of the case would not +have suited his purpose. What the Chief Justice had it at heart to do was to +surrender a fundamental principle, and yet to appear to make no surrender at +all. Hence, he prepared his preliminary and extra-judicial essay on the human +reason, of whose precise meaning, I must admit, I still, after many perusals, +have grave doubts. I sometimes suspect that the Chief Justice did not wish to be +too explicit. So far as I comprehend the Chief Justice, his chain of reasoning +amounted to something like this: It was true, he observed, that for fifteen +years the Supreme Court had rejected the evidence of reasonableness which he +admitted, and had insisted upon a general principle which he might be supposed +to renounce, but this apparent discrepancy involved no contradiction. It was +only a progression in thought. For, he continued, the judges who, on various +previous occasions, sustained that general principle, must have reached their +conclusions by the light of reason; to-day we reach a contrary conclusion, but +we also do so by the light of reason; therefore, as all these decisions are +guided by the light of reason they fundamentally coincide, however much +superficially they may seem to differ.<a name="FNanchor36"></a><a href="#Footnote_36"><sup>[36]</sup></a></p> +<p>I have never supposed that this argument carried complete conviction either +to the legal profession, to the public, or to Congress. Certainly, it did not +convince Mr. Justice Harlan, who failed to fathom it, and bluntly expressed his +astonishment in a dissenting opinion in another cause from which I regret to say +I can only quote a couple of paragraphs, although the whole deserves attentive +perusal:--</p> +<p>"If I do not misapprehend the opinion just delivered, the Court insists +that what was said in the opinion in the Standard Oil Case, was in accordance +with our previous decisions in the Trans-Missouri and Joint Traffic Cases, ... +if we resort to <i>reason</i>. This statement surprises me quite as much as +would a statement that black was white or white was black."</p> +<p>"But now the Court, in accordance with what it denominates the 'rule of +reason,' in effect inserts in the act the word 'undue,' which means the same as +'unreasonable,' and thereby makes Congress say what it did not say.... And what, +since the passage of the act, it has explicitly refused to say.... In short, the +Court now, by judicial legislation, in effect, amends an Act of Congress +relating to a subject over which that department of the Government has exclusive +cognizance."<a name="FNanchor37"></a><a href="#Footnote_37"><sup>[37]</sup></a></p> +<p>The phenomenon which amazed Mr. Justice Harlan is, I conceive, perfectly +comprehensible, if we reflect a little on the conflict of forces involved, and +on the path of least resistance open to an American judge seeking to find for +this conflict, a resultant. The regulation or the domination of monopoly was an +issue going to the foundation of society, and popular and financial energy had +come into violent impact in regard to the control of prices. Popular energy +found vent through Congress, while the financiers, as financiers always have and +always will, took shelter behind the courts. Congress, in 1890, passed a statute +to constrain monopolies, against which financiers protested as being a species +of confiscation, and which the Chief Justice himself thought harsh. To this +statute the Supreme Court gave a harsh construction, as the Chief Justice had +more than once pointed out, when he was still an associate upon the bench. From +a series of these decisions an appeal had been made to Congress, and the Senate, +in the report from which I have quoted, had sustained the construction given to +the statute by the majority of his brethren with whom the Chief Justice +differed. Since the last of these decisions, however, the complexion of the +bench had been considerably changed by new appointments, much as it had been +after Hepburn <i>v</i>. Griswold, and an opportunity seemed to be presented to +conciliate every one.</p> +<p>In any other country than the United States, a chief justice so situated +would doubtless have affirmed the old precedents, permitting himself, at most, +to point out the mischief which, he thought, they worked. Not so a lawyer +nurtured under the American constitutional system, which breeds in the judge the +conviction that he is superior to the legislator. His instinct, under adequate +pressure, is always to overrule anything repugnant to him that a legitimate +legislative assembly may have done. In this instance, had the case been one of +first impression, nothing would have been easier than to have nullified the +Sherman Act as an unreasonable exercise of the Police Power, as judges had been +nullifying statutes of which they disapproved for a couple of generations +previously; but the case was not one of first impression. On the contrary, the +constitutionality of the Sherman Act had been so often upheld by the judiciary +that the Chief Justice himself admitted that so long as Congress allowed him to +use his reason, these "contentions [were] plainly foreclosed." +Therefore, for him the path of least resistance was to use his <i>reason</i>, +and, as a magistrate, to amend a statute which Congress ought to have amended, +but had <i>unreasonably</i> omitted to amend. Such was the final and logical +result of the blending of judicial and legislative functions in a court, as they +are blended under the American constitutional system. Nor is it unworthy of +remark, that the Chief Justice, in abstaining from questioning the +constitutionality of the act, expressly intimated that he did so because, by the +use of his reason, he could make that reasonable and constitutional which +otherwise might be unreasonable and unconstitutional. The defendants pressed the +argument that destroying the freedom of contract, as the Sherman Law destroyed +it, was to infringe upon the "constitutional guaranty of due process of +law." To this the Chief Justice rejoined: "But the ultimate foundation +of all these arguments is the assumption that reason may not be resorted to in +interpreting and applying the statute.... As the premise is demonstrated to be +unsound by the construction we have given the statute," these arguments +need no further notice.<a name="FNanchor38"></a><a href="#Footnote_38"><sup>[38]</sup></a></p> +<p>Should Congress amend the Sherman Act, as it seems somewhat disposed to do, +by explicitly enacting the rule of the Trans-Missouri Case, a grave issue would +be presented. The Chief Justice might submit, and thus avert, temporarily at +least, a clash; or, he might hold such an amendment unconstitutional as denying +to the Court the right to administer the law according to due process. A trial +of strength would then be imminent.</p> +<p>Nearly a century ago, Jefferson wrote to Spencer Roane, "The +Constitution, on this hypothesis, is a mere thing of wax in the hands of the +judiciary, which they may twist and shape into any form they please."<a name="FNanchor39"></a><a href="#Footnote_39"><sup>[39]</sup></a> +And however much we may recoil from admitting Jefferson's conclusion to be true, +it none the less remains the fact that it has proved itself to be true, and that +the people have recognized it to be true, and have taken measures to protect +themselves by bringing the judiciary under the same degree of control which they +enforce on other legislators. The progression has been steady and uniform, each +advance toward an assumption of the legislative function by the judiciary having +been counterbalanced by a corresponding extension of authority over the courts +by the people. First came the protest against Marbury and Madison in the +impeachment of Chase, because, as Giles explained, if judges were to annul laws, +the dominant party must have on the bench judges they could trust. Next the +Supreme Court of New York imagined the theory of the Police Power, which was +adopted by the Supreme Court of the United States in 1837. But it stood to +reason that if judges were to suspend constitutional limitations according to +their notions of reasonableness, the people must have the means of securing +judges whose views touching reasonableness coincided with their own. And behold, +within ten years, by the constitution of 1846, New York adopted an elective +judiciary.</p> +<p>Then followed the Dred Scott Case, the Civil War, and the attack on +legislative authority in Hepburn <i>v</i>. Griswold. Straightway the Court +received an admonition which it remembered for a generation. Somewhat forgetful +of this, on May 15, 1911, Chief Justice White gave his opinion in the Standard +Oil Case, which followed hard upon a number of state decisions intended to +override legislation upon several burning social issues. Forthwith, in 1912, the +proposition to submit all decisions involving a question of constitutional law +to a popular vote became an issue in a presidential election. Only one step +farther could be taken, and that we see being taken all about us. Experience has +shown, in New York and elsewhere, that an election, even for a somewhat short +term, does not bring the judge so immediately under popular control that +decisions objectionable to the majority may not be made. Hence the recall. The +degradation of the judicial function can, in theory at least, go no farther. +Thus the state courts may be said already to be prostrate, or likely shortly to +become prostrate. The United States courts alone remain, and, should there be a +struggle between them and Congress, the result can hardly be doubted. An event +has recently occurred abroad which we may do well to ponder.</p> +<p>Among European nations England has long represented intelligent conservatism, +and at the heart of her conservatism lay the House of Lords. Through many +centuries; and under many vicissitudes this ancient chamber had performed +functions of the highest moment, until of late it had come to occupy a position +not dissimilar to that which the Supreme Court of the United States yet holds. +On one side it was the highest legal tribunal of the Empire, on the other it was +a non-representative assembly, seldom indeed originating important legislation, +but enjoying an absolute veto on legislation sent it from the Commons. One day +in a moment of heated controversy the Lords vetoed a bill on which the Commons +had determined. A dissolution followed and the House of Lords, as a political +power, faded into a shadow; yet, notwithstanding this, its preeminence as a +court has remained intact. Were a similar clash to occur in America no such +result could be anticipated. Supposing a President, supported by a congressional +majority, were to formulate some policy no more subversive than that which has +been formulated by the present British Cabinet, and this policy were to be +resisted, as it surely would be, by potent financial interests, the conflicting +forces would converge upon the Supreme Court. The courts are always believed to +tend toward conservatism, therefore they are generally supported by the +conservative interest, both here and elsewhere. In this case a dilemma would be +presented. Either the judges would seek to give expression to +"preponderant" popular opinion, or they would legislate. In the one +event they would be worthless as a restraining influence. In the other, I +apprehend, a blow would fall similar to the blow which fell upon the House of +Lords, only it would cut deeper. Shearing the House of Lords of political power +did not dislocate the administration of English justice, because the law lords +are exclusively judges. They never legislate. Therefore no one denounced them. +Not even the wildest radical demanded that their tenure should be made elective, +much less that they should be subjected to the recall. With us an entirely +different problem would be presented for solution. A tribunal, nominally +judicial, would throw itself across the path of the national movement. It would +undertake to correct a disturbance of the social equilibrium. But what a +shifting of the social equilibrium means, and what follows upon tampering with +it, is a subject which demands a chapter by itself.<br> +</p> +<hr style="width: 65%;"> +<br> +<br> +<a name="CHAPTER_IV"></a> +<h2 align="center">CHAPTER IV</h2> +<p align="center">THE SOCIAL EQUILIBRIUM</p> +<br> +<p>I assume it as self-evident that those who, at any given moment, are the +strongest in any civilization, will be those who are at once the ruling class, +those who own most property, and those who have most influence on legislation. +The weaker will fare hardly in proportion to their weakness. Such is the order +of nature. But, since those are the strongest through whom nature finds it, for +the time being, easiest to vent her energy, and as the whole universe is in +ceaseless change, it follows that the composition of ruling classes is never +constant, but shifts to correspond with the shifting environment. When this +movement is so rapid that men cannot adapt themselves to it, we call the +phenomenon a revolution, and it is with revolutions that I now have to do.</p> +<p>Nothing is more certain than that the intellectual adaptability of the +individual man is very limited. A ruling class is seldom conscious of its own +decay, and most of the worst catastrophes of history have been caused by an +obstinate resistance to change when resistance was no longer possible. Thus +while an incessant alteration in social equilibrium is inevitable, a revolution +is a problem in dynamics, on the correct solution of which the fortunes of a +declining class depend.</p> +<p>For example, the modern English landlords replaced the military feudal +aristocracy during the sixteenth century, because the landlords had more +economic capacity and less credulity. The men who supplanted the mediaeval +soldiers in Great Britain had no scruple about robbing the clergy of their land, +and because of this quality they prospered greatly. Ultimately the landlords +reached high fortune by controlling the boroughs which had, in the Middle Ages, +acquired the right to return members to the House of Commons. Their domination +lasted long; nevertheless, about 1760, the rising tide of the Industrial +Revolution brought forward another type of mind. Flushed by success in the +Napoleonic wars the Tories failed to appreciate that the social equilibrium, by +the year 1830, had shifted, and that they no longer commanded enough physical +force to maintain their parliamentary ascendancy. They thought they had only to +be arrogant to prevail, and so they put forward the Duke of Wellington as their +champion. They could hardly have made a poorer choice. As Disraeli has very +truly said, "His Grace precipitated a revolution which might have been +delayed for half a century, and need never have occurred in so aggravated a +form." The Duke, though a great general, lacked knowledge of England. He +began by dismissing William Huskisson from his Cabinet, who was not only its +ablest member, but perhaps the single man among the Tories who thoroughly +comprehended the industrial age. Huskisson's issue was that the franchise of the +intolerably corrupt East Retford should be given to Leeds or Manchester. Having +got rid of Huskisson, the Duke declared imperiously that he would concede +nothing to the disfranchised industrial magnates, nor to the vast cities in +which they lived. A dissolution of Parliament followed and in the election the +Tories were defeated. Although Wellington may not have been a sagacious +statesman, he was a capable soldier and he knew when he could and when he could +not physically fight. On this occasion, to again quote Disraeli, "He rather +fled than retired." He induced his friends to absent themselves from the +House of Lords and permit the Reform Bill to become law. Thus the English +Tories, by their experiment with the Duke of Wellington, lost their boroughs and +with them their political preeminence, but at least they saved themselves, their +families, and the rest of their property. As a class they have survived to this +day, although shorn of much of the influence which they might very probably have +retained had they solved more correctly the problem of 1830. In sum, they were +not altogether impervious to the exigencies of their environment. The French +Revolution is the classic example of the annihilation of a rigid organism, and +it is an example the more worthy of our attention as it throws into terrible +relief the process by which an intellectually inflexible race may convert the +courts of law which should protect their decline into the most awful engine for +their destruction.</p> +<p>The essence of feudalism was a gradation of rank, in the nature of caste, +based upon fear. The clergy were privileged because the laity believed that they +could work miracles, and could dispense something more vital even than life and +death. The nobility were privileged because they were resistless in war. +Therefore, the nobility could impose all sorts of burdens upon those who were +unarmed. During the interval in which society centralized and acquired more and +more a modern economic form, the discrepancies in status remained, while +commensurately the physical or imaginative force which had once sustained +inequality declined, until the social equilibrium grew to be extremely unstable. +Add to this that France, under the monarchy, was ill consolidated. The provinces +and towns retained the administrative complexity of an archaic age, even to +local tariffs. Thus under the monarchy privilege and inequality pervaded every +phase of life, and, as the judiciary must be, more or less, the mouthpiece of +society, the judiciary came to be the incarnation of caste.</p> +<p>Speaking broadly, the judicial office, under the monarchy, was vendible. In +legal language, it was an incorporeal hereditament. It could be bought and sold +and inherited like an advowson, or right to dispose of a cure of souls in the +English Church, or of a commission in the English army. The system was well +recognized and widespread in the eighteenth century, and worked fairly well with +the French judiciary for about three hundred years, but it was not adapted to an +industrial environment. The judicial career came to be pretty strongly +hereditary in a few families, and though the members of these families were, on +the whole, self-respecting, honest, and learned, they held office in their own +right and not as a public trust. So in England members of the House of Commons, +who sat for nomination boroughs, did not, either in fact or theory, represent +the inhabitants of those boroughs, but patrons; and in like manner French judges +could never learn to regard themselves as the trustees of the civil rights of a +nation, but as a component part of a class who held a status by private title. +Looked at as a problem in dynamics the inherent vice in all this kind of +property and in all this administrative system, was the decay, after 1760, of +the physical force which had engendered it and defended it. As in England the +ascendancy of the landlords passed away when England turned from an agricultural +into an industrial society, so in France priests and nobles fell into contempt, +when most peasants knew that the Church could neither harm by its curse nor aid +by its blessing, and when commissions in the army were given to children or +favorites, as a sort of pension, while the pith of the nation was excluded from +military command because it could not prove four quarterings of nobility. Hardly +an aristocrat in France had shown military talent for a generation, while, when +the revolution began, men like Jourdan and Kleber, Ney and Augereau, and a host +of other future marshals and generals had been dismissed from the army, or were +eating out their hearts as petty officers with no hope of advancement. Local +privileges and inequalities were as intolerable as personal. There were +privileged provinces and those administered arbitrarily by the Crown, there were +a multiplicity of internal tariffs, and endless municipal franchises and +monopolies, so much so that economists estimated that, through artificial +restraints, one-quarter of the soil of France lay waste. Turgot, in his edict on +the grain trade, explained that kings in the past by ordinance, or the police +without royal authority, had compiled a body "of legislation equivalent to +a prohibition of bringing grain into Paris," and this condition was +universal. One province might be starving and another oppressed with abundance.</p> +<p>Meanwhile, under the stimulant of applied science, centralization went on +resistlessly, and the cost of administration is proportionate to centralization. +To bear the burden of a centralized government taxes must be equal and movement +free, but here was a rapidly centralizing nation, the essence of whose organism +was that taxes should be unequal and that movement should be restricted.</p> +<p>As the third quarter of the eighteenth century closed with the death of Louis +XV, all intelligent French administrators recognized the dilemma; either relief +must be given, or France must become insolvent, and revolution supervene upon +insolvency. But for the aristocracy revolution had no terrors, for they believed +that they could crush revolution as their class had done for a thousand years.</p> +<p>Robert Turgot was born in 1727, of a respectable family. His father educated +him for the Church, but lack of faith caused him to prefer the magistracy, and +on the death of his father he obtained a small place in the Court of Parliament. +Afterward he became a Master of Requests, and served for seven years in that +judicial position, before he was made Intendant of the Province of Limousin. +Even thus early in life Turgot showed political sagacity. In an address at the +Sorbonne he supported the thesis that "well-timed reform alone averts +revolution." Distinguishing himself as Intendant, on the death of Louis XV +the King called Turgot to the Council of State, and in August, 1774, Turgot +became Minister of Finance. He came in pledged to reform, and by January, 1776, +he had formulated his plan. In that month he presented to the King his memorable +Six Edicts, the first of which was the most celebrated state paper he ever +wrote. It was the Edict for the Suppression of the Corvée. The corvée threw +the burden of maintaining the highways on the peasantry by exacting forced +labor. It was admittedly the most hateful, the most burdensome, and the most +wasteful of all the bad taxes of the time, and Turgot, following the precedent +of the Roman Empire, advised instead a general highway impost. The proposed +impost in itself was not considerable, and would not have been extraordinarily +obnoxious to the privileged classes, but for the principle of equality by which +Turgot justified it: "The expenses of government having for their object +the interests of all, all should contribute to them; and the more advantages a +man has, the more that man should contribute."</p> +<p>Nor was this the most levelling of Turgot's arguments. He pointed out that +though originally the exemption from taxation, which the nobility enjoyed, might +have been defended on the ground that the nobles were bound to yield military +service without pay, such service had long ceased to be performed, while on the +contrary titles could be bought for money. Hence every wealthy man became a +noble when he pleased, and thus exemption from taxation had come to present the +line of cleavage between the rich and poor. By this thrust the privileged +classes felt themselves wounded in their vitals, and the Parliament of Paris, +the essence of privilege, assumed their defence. To be binding, the edicts had +to be registered by the Parliament among the laws of France, and Parliament +declined to make registration on the ground that the edicts were +unconstitutional, as subversive of the monarchy and of the principle of order. +The opinion of the court was long, but a single paragraph gives its purport: +"The first rule of justice is to preserve to every one what belongs to him: +this rule consists, not only in preserving the rights of property, but still +more in preserving those belonging to the person, which arise from the +prerogative of birth and of position.... From this rule of law and equity it +follows that every system which, under an appearance of humanity and +beneficence, would tend to establish between men an equality of duties, and to +destroy necessary distinctions, would soon lead to disorder (the inevitable +result of equality), and would bring about the overturn of civil society."</p> +<p>This judicial opinion was an enunciation of the archaic law of caste as +opposed to the modern law of equality, and the cataclysm of the French +Revolution hinged upon the incapacity of the French aristocracy to understand +that the environment, which had once made caste a necessity, had yielded to +another which made caste an impossibility. In vain Turgot and his contemporaries +of the industrial type, represented in England by Adam Smith or even by the +younger Pitt, explained that unless taxes were equalized and movement +accelerated, insolvency must supervene, and that a violent readjustment must +follow upon insolvency. With their eyes open to the consequences, the Nobility +and Clergy elected to risk revolt, because they did not believe that revolt +could prevail against them. Nothing is so impressive in the mighty convulsion +which ensued as the mental opacity of the privileged orders, which caused them +to increase their pressure in proportion as resistance increased, until finally +those who were destined to replace them reorganized the courts, that they might +have an instrument wherewith to slaughter a whole race down to the women and +children. No less drastic method would serve to temper the rigidity of the +aristocratic mind. The phenomenon well repays an hour of study.</p> +<p>Insolvency came within a decade after Turgot's fall, as Turgot had +demonstrated that it must come, and an insolvency immediately precipitated by +the rapacity of the court which had most need of caution. The future Louis +XVIII, for example, who was then known as the Comte de Provence, on one +occasion, when the government had made a loan, appropriated a quarter of it, +laughingly observing, "When I see others hold out their hands, I hold out +my hat." In 1787 the need for money became imperative, and, not daring to +appeal to the nation, the King convoked an assembly of "notables," +that is to say of the privileged. Calonne, the minister, proposed pretty much +the measures of Turgot, and some of these measures the "notables" +accepted, but the Parliament of Paris again intervened and declined to register +the laws. The Provincial Parliaments followed the Parliament of Paris. After +this the King had no alternative but to try the experiment of calling the +States-General. They met on May 4, 1789, and instantly an administrative system, +which no longer rested upon a social centre of gravity, crumbled, carrying the +judiciary with it. At first the three estates sat separately. If this usage had +continued, the Clergy and the Nobles combined would have annulled every measure +voted by the Commons. For six weeks the Commons waited. Then on June 10, the +Abbé Sieyès said, "Let us cut the cable. It is time." So the Clergy +and the Nobility were summoned, and some of the Clergy obeyed. This sufficed. On +motion of Sieyès, the Commons proclaimed themselves the National Assembly, and +the orders fused. Immediately caste admitted defeat and through its mouthpiece, +the King, commanded the Assembly to dissolve. The Commons refused to dissolve, +and the Nobles prepared for a <i>coup d'etat.</i> The foreign regiments, in the +pay of the government, were stationed about Paris, while the Bastille, which was +supposed to be impregnable, was garrisoned with Swiss. In reply, on July 14, +1789, the citizens of Paris stormed the Bastille. An unstable social equilibrium +had been already converted by pressure into a revolution. Nevertheless, +excentric as the centre of gravity had now become, it might have been measurably +readjusted had the privileged classes been able to reason correctly from premise +to conclusion. Men like Lafayette and Mirabeau still controlled the Assembly, +and if the King and the Nobility had made terms, probably the monarchy might +have been saved, certainly the massacres would have been averted. As a decaying +class is apt to do, the Nobility did that which was worst for themselves. +Becoming at length partly conscious of a lack of physical force in France to +crush the revolution, a portion of the nobility, led by the Comte d'Artois, the +future Charles X, fled to Germany to seek for help abroad, while the bolder +remained to plan an attack on the rebellion. On October 1, 1789, a great +military banquet was given at Versailles. The King and Queen with the Dauphin +were present. A royalist demonstration began. The bugles sounded a charge, the +officers drew their swords, and the ladies of the court tore the tricolor from +the soldiers' coats and replaced it with the white cockade. On October 5, a vast +multitude poured out of Paris, and marched to Versailles. The next day they +broke into the palace, killed the guards, and carried the King and Queen captive +to the Tuileries. But Louis was so intellectually limited that he could not keep +faith with those who wished him well. On July 14, 1790, the King swore, before +half a million spectators, to maintain the new constitution. In that summer he +was plotting to escape to Metz and join the army which had been collected there +under the Marquis de Bouillé, while Bouillé himself, after the rising at +Nancy, was busy in improving discipline by breaking on the wheel a selection of +the soldiers of the Swiss regiment of Châteauvieux which had refused to march +against Paris on the 14th of July, 1789. In October, 1790, Louis wrote to the +King of Spain and other sovereigns to pay no heed to his concessions for he only +yielded to duress, and all this even as Mirabeau made his supreme effort to save +those who were fixed upon destroying themselves. Mirabeau sought the King and +offered his services. The court sneered at him as a dupe. The Queen wrote, +"We make use of Mirabeau, but we do not take him seriously." When +Mirabeau awoke to his predicament, he broke out in mixed wrath and scorn: +"Of what are these people thinking? Do they not see the abyss yawning at +their feet? Both the King and Queen will perish, and you will live to see the +rabble spurn their corpses."</p> +<p>The King and Queen, the Nobility and Clergy, could not see the abyss which +Mirabeau saw, any more than the lawyers could see it, because of the temper of +their minds. In the eye of caste Europe was not primarily divided into nations +to whom allegiance was due, but into superimposed orders. He who betrayed his +order committed the unpardonable crime. Death were better than that. But to the +true aristocrat it was inconceivable that serfs could ever vanquish nobles in +battle. Battle must be the final test, and the whole aristocracy of Europe was +certain, Frenchmen knew, to succor the French aristocracy in distress.</p> +<p>So in the winter of 1790 the French fugitives congregated at Coblentz on the +German frontier, persuaded that they were performing a patriotic duty in +organizing an invasion of their country even should their onset be fatal to +their relatives and to their King. And Louis doubted not that he also did his +duty as a trustee of a divine commission when he in one month swore, before the +Assembly, to maintain the constitution tendered him, and in the next authorized +his brother, the Comte d'Artois, to make the best combination he could among his +brother sovereigns for the gathering of an army to assert his divine +prerogative. On June 21, 1791, Louis fled, with his whole family, to join the +army of Bouillé, with intent to destroy the entire race of traitors from +Mirabeau and Lafayette down to the peasants. He managed so ill that he was +arrested at Varennes, and brought back whence he came, but he lied and plotted +still.</p> +<p>Two years had elapsed between the meeting of the States-General and the +flight to Varennes, and in that interval nature had been busy in selecting her +new favored class. Economists have estimated that the Church owned one-third of +the land of Europe during the Middle Ages. However this may have been she +certainly held a very large part of France. On April 16, 1790, the Assembly +declared this territory to be national property, and proceeded to sell it to the +peasantry by means of the paper <i>assignats</i> which were issued for the +purpose, and were supposed to be secured upon the land. The sales were generally +made in little lots, as the sales were made of the public domain in Rome under +the Licinian Laws, and with an identical effect. The Emperor of Germany and the +King of Prussia met at Pilnitz in August, 1791, to consider the conquest of +France, and, on the eve of that meeting, the Assembly received a report which +stated that these lands to the value of a thousand million francs had already +been distributed, and that sales were going on. It was from this breed of +liberated husbandmen that France drew the soldiers who fought her battles and +won her victories for the next five and twenty years.</p> +<p>Assuming that the type of the small French landholder, both rural and urban, +had been pretty well developed by the autumn of 1791, the crisis came rapidly, +for the confiscations which created this new energy roused to frenzy, perhaps +the most formidable energy which opposed it. The Church had not only been robbed +of her property but had been wounded in her tenderest part. By a decree of June +12, 1790, the Assembly transferred the allegiance of the French clergy from the +Pope to the state, and the priesthood everywhere vowed revenge. In May, 1791, +the Marquis de la Rouërie, it is true, journeyed from his home in Brittany to +Germany to obtain the recognition of the royal princes for the insurrection +which he contemplated in La Vendée, but the insurrection when it occurred was +not due so much to him or his kind as to the influence of the nonjuring priests +upon the peasant women of the West.</p> +<p>The mental condition of the French emigrants at Coblentz during this summer +of 1791 is nothing short of a psychological marvel. They regarded the Revolution +as a jest, and the flight to the Rhine as a picnic. These beggared aristocrats, +male and female, would throw their money away by day among the wondering +natives, and gamble among themselves at night. If they ever thought of the +future it was only as the patricians in Pompey's camp thought; who had no time +to prepare for a campaign against Caesar, because they were absorbed in +distributing offices among themselves, or in inventing torments to inflict on +the rebels. Their chief anxiety was lest the resistance should be too feeble to +permit them to glut themselves with blood. The creatures of caste, the emigrants +could not conceive of man as a variable animal, or of the birth of a race of +warriors under their eyes. To them human nature remained constant. Such, they +believed, was the immutable will of God.</p> +<p>So it came to pass that, as the Revolution took its shape, a vast combination +among the antique species came semi-automatically into existence, pledged to +envelop and strangle the rising type of man, a combination, however, which only +attained to maturity in 1793, after the execution of the King. Leopold II, +Emperor of Germany, had hitherto been the chief restraining influence, both at +Pilnitz and at Paris, through his correspondence with his sister, Marie +Antoinette; but Leopold died on March 1, 1792, and was succeeded by Francis II, +a fervid reactionist and an obedient son of the Church. Then caste fused +throughout Germany, and Prussia and Austria prepared for war. Rouërie had +returned to Brittany and only awaited the first decisive foreign success to stab +the Revolution in the back. England also was ripening, and the instinct of +caste, incarnated in George III, found its expression through Edmund Burke. In +1790 Burke published his "Reflections," and on May 6, 1791, in a +passionate outbreak in the House of Commons, he renounced his friendship with +Fox as a traitor to his order and his God. Men of Burke's temperament +appreciated intuitively that there could be no peace between the rising +civilization and the old, one of the two must destroy the other, and very few of +them conceived it to be possible that the enfranchised French peasantry and the +small bourgeoisie could endure the shock of all that, in their eyes, was +intelligent, sacred, and martial in the world.</p> +<p>Indeed, aristocracy had, perhaps, some justification for arrogance, since the +revolt in France fell to its lowest depth of impotence between the meeting at +Pilnitz in August, 1791, and the reorganization of the Committee of Public +Safety in July, 1793. Until August, 1792, the executive authority remained with +the King, but the court of Louis was the focus of resistance to the Revolution, +and even though a quasi-prisoner the King was still strong. Monarchy had a firm +hold on liberal nobles like Mirabeau and Lafayette, on adventurers like +Dumouriez, and even on lawyers like Danton who shrank from excessive cruelty. +Had the pure Royalists been capable of enough intellectual flexibility to keep +faith upon any reasonable basis of compromise, even as late as 1792, the +Revolution might have been benign. In June, 1792, Lafayette, who commanded the +army of the North, came to Paris and not only ventured to lecture the Assembly +on its duty, but offered to take Louis to his army, who would protect him +against the Jacobins. The court laughed at Lafayette as a Don Quixote, and +betrayed his plans to the enemy. "I had rather perish," said the +Queen, "than be saved by M. de Lafayette and his constitutional +friends." And in this she only expressed the conviction which the caste to +which she belonged held of their duty. Cazalés protested to the Assembly, +"Though the King perish, let us save the kingdom." The Archduchess +Christina wrote to her sister, Marie Antoinette, "What though he be slain, +if we shall triumph," and Condé, in December, 1790, swore that he would +march on Lyons, "come what might to the King."</p> +<p>France was permeated with archaic thought which disorganized the emerging +society until it seemingly had no cohesion. To the French emigrant on the Rhine +that society appeared like a vile phantom which had but to be exorcised to +vanish. And the exorcism to which he had recourse was threats of vengeance, +threats which before had terrified, because they had behind them a force which +made them good. Torture had been an integral part of the old law. The peasant +expected it were he insubordinate. Death alone was held to be too little to +inspire respect for caste. Some frightful spectacle was usually provided to +magnify authority. Thus Bouillé broke on the wheel, while the men were yet +alive, every bone in the bodies of his soldiers when they disobeyed him; and for +scratching Louis XV, with a knife, Damiens, after indescribable agonies, was +torn asunder by horses in Paris, before an immense multitude. The French +emigrants believed that they had only to threaten with a similar fate men like +Kellermann and Hoche to make them flee without a blow. What chiefly concerned +the nobles, therefore, was not to evolve a masterly campaign, but to propound +the fundamental principles of monarchy, and to denounce an awful retribution on +insurgents.</p> +<p>By the middle of July, 1792, the Prussians were ready to march, and emperors, +kings, and generals were meditating manifestoes. Louis sent the journalist +Mallet du Pan to the Duke of Brunswick, the commander-in-chief, to assist him in +his task. On July 24, and on August 4, 1792, the King of Prussia laid down the +law of caste as emphatically as had the Parliament of Paris some twenty years +before. On July 25, the Duke of Brunswick pronounced the doom of the conquered. +I come, said the King of Prussia, to prevent the incurable evils which will +result to France, to Europe and to all mankind from the spread of the spirit of +insubordination, and to this end I shall establish the monarchical power upon a +stable basis. For, he continued in the later proclamation, "the supreme +authority in France being never ceasing and indivisible, the King could neither +be deprived nor voluntarily divest himself of any of the prerogatives of +royalty, because he is obliged to transmit them entire with his own crown to his +successors."</p> +<p>The Duke of Brunswick's proclamation contained some clauses written expressly +for him by Mallet du Pan, and by Limon the Royalist.</p> +<p>If the Palace of the Tuileries be forced, if the least violence be offered to +their Majesties, if they are not immediately set at liberty, then will the King +of Prussia and the Emperor of Germany inflict "on those who shall deserve +it the most exemplary and ever-memorable avenging punishments."</p> +<p>These proclamations reached Paris on July 28, and simultaneously the +notorious Fersen wrote the Queen of France, "You have the manifesto, and +you should be content." The court actually believed that, having insulted +and betrayed Lafayette and all that body of conservative opinion which might +have steadied the social equilibrium, they could rely on the fidelity of +regiments filled with men against whom the emigrants and their allies, the +Prussians, had just denounced an agonizing death, such as Bouillé's soldiers +had undergone, together with the destruction of their homes.</p> +<p>All the world knows what followed. The Royalists had been gathering a +garrison for the Tuileries ever since Lafayette's visit, in anticipation of a +trial of strength with the Revolutionists. They had brought thither the Swiss +guard, fifteen hundred strong; the palace was full of Royalist gentlemen; +Mandat, who commanded the National Guard, had been gained over. The approaches +were swept by artillery. The court was very confident. On the night of August 9, +Mandat was murdered, an insurrectional committee seized the City Hall, and when +Louis XVI came forth to review the troops on the morning of the 10th of August, +they shouted, "Vive la Nation" and deserted. Then the assault came, +the Swiss guard was massacred, the Assembly thrust aside, and the royal family +were seized and conveyed to the Temple. There the monarchy ended. Thus far had +the irrational opposition of a moribund type thrown into excentricity the social +equilibrium of a naturally conservative people. They were destined to drive it +still farther.</p> +<p>In this supreme moment, while the Prussians were advancing, France had no +stable government and very imperfect means of keeping order. All the fighting +men she could muster had marched to the frontier, and, even so, only a +demoralized mass of levies, under Dumouriez and Kellermann, lay between the most +redoutable regiments of the world and Paris. The emigrants and the Germans +thought the invasion but a military promenade. At home treason to the government +hardly cared to hide itself. During much of August the streets of Paris swarmed +with Royalists who cursed the Revolution, and with priests more bitter than the +Royalists. Under the windows of Louis, as he lay in the Temple, there were cries +of "Long live the King," and in the prisons themselves the nobles +drank to the allies and corresponded with the Prussians. Finally, Roland, who +was minister, so far lost courage that he proposed to withdraw beyond the Loire, +but Danton would hear of no retreat. "De l'audace," he cried, +"encore de l'audace, et toujours de l'audace."</p> +<p>The Assembly had not been responsible for the assault on the Tuileries on +August 10, 1792. Filled with conservatives, it lacked the energy. That movement +had been the work of a knot of radicals which had its centre in Danton's Club of +the Cordeliers. Under their impulsion the sections of Paris chose commissioners +who should take possession of the City Hall and eject the loyalist Council. They +did so, and thus Danton became for a season the Minister of Justice and the +foremost man in France. Danton was a semi-conservative. His tenure of power was +the last possibility of averting the Terror. The Royalists, whom he trusted, +themselves betrayed him, and Danton fell, to be succeeded by Robespierre and his +political criminal courts. Meanwhile, on September 20, 1792, the Prussian column +recoiled before the fire of Kellermann's mob of "vagabonds, cobblers and +tailors," on the slope of Valmy, and with the victory of Valmy, the great +eighteenth-century readjustment of the social equilibrium of Europe passed into +its secondary stage. +<br> +</p> +<hr style="width: 65%;"> +<br> +<br> +<a name="CHAPTER_V"></a> +<h2 align="center">CHAPTER V</h2> +<p align="center">POLITICAL COURTS</p> +<br> +<p>In the eye of philosophy, perhaps the most alluring and yet illusive of all +the phenomena presented by civilization is that which we have been considering. +Why should a type of mind which has developed the highest prescience when +advancing along the curve which has led it to ascendancy, be stricken with +fatuity when the summit of the curve is passed, and when a miscalculation +touching the velocity of the descent must be destruction?</p> +<p>Although this phenomenon has appeared pretty regularly, at certain intervals, +in the development of every modern nation, I conceive its most illuminating +example to be that intellectual limitation of caste which, during the French +Revolution, led to the creation of those political criminal tribunals which +reached perfection with Robespierre.</p> +<p>When coolly examined, at the distance of a century, the Royalist combination +for the suppression of equality before the law, as finally evolved in 1792, did +not so much lack military intelligence, as it lacked any approximate +comprehension of the modern mind. The Royalists proposed to reëstablish +privilege, and to do this they were ready to immolate, if necessary, their King +and Queen, and all of their own order who stayed at home to defend them. Indeed, +speaking generally, they valued Louis XVI, living, cheaply enough, counting him +a more considerable asset if dead. "What a noise it would make throughout +Europe," they whispered among themselves, "if the rabble should kill +the King."</p> +<p>Nor did Marie Antoinette delude herself on this score. At Pilnitz, in 1791, +the German potentates issued a declaration touching France which was too +moderate to suit the emigrants, who published upon it a commentary of their own. +This commentary was so revolting that when the Queen read her brother-in-law's +signature appended to it, she exclaimed--"Cain."</p> +<p>The Royalist plan of campaign was this: They reckoned the energy of the +Revolution so low that they counted pretty confidently, in the summer of 1792, +on the ability of their party to defend the Tuileries against any force which +could be brought against it; but assuming that the Tuileries could not be +defended, and that the King and Queen should be massacred, they believed that +their own position would be improved. Their monarchical allies would be thereby +violently stimulated. It was determined, therefore, that, regardless of +consequences to their friends, the invading army should cross the border into +Lorraine and, marching by way of Sierk and Rodemach, occupy Châlons. Their +entry into Châlons, which they were confident could not be held against them, +because of the feeling throughout the country, was to be the signal for the +rising in Vendée and Brittany which should sweep down upon Paris from the rear +and make the capital untenable. At Châlons the allies would be but ninety miles +from Paris, and then nothing would remain but vengeance, and vengeance the more +complete the greater the crime had been.</p> +<p>All went well with them up to Valmy. The German advance on August 11, 1792, +reached Rodemach, and on August 19, the bulk of the Prussian army crossed the +frontier at Rédagne. On August 20, 1792, Longwy was invested and in three days +capitulated. In the camp of the Comte d'Artois "there was not one of +us," wrote Las Casas, "who did not see himself, in a fortnight, +triumphant, in his own home, surrounded by his humbled and submissive +vassals." At length from their bivouacs at Saint-Remy and at Suippes the +nobles saw in the distance the towers of Châlons.</p> +<p>The panic at Châlons was so great that orders were given to cut the bridge +across the Marne, but it was not until about September 2, that the whole peril +was understood at Paris. It is true that for several weeks the government had +been aware that the West was agitated and that Rouërie was probably conspiring +among the Royalists and nonjuring priests, but they did not appreciate the +imminence of the danger. On September 3, at latest, Danton certainly heard the +details of the plot from a spy, and it was then, while others quailed, that he +incited Paris to audacity. This was Danton's culmination.</p> +<p>As we look back, the weakness of the Germans seems to have been psychological +rather than physical. At Valmy the numbers engaged were not unequal, and while +the French were, for the most part, raw and ill-compacted levies, with few +trained officers, the German regiments were those renowned battalions of +Frederick the Great whose onset, during the Seven Years' War, no adversary had +been able to endure. Yet these redoubtable Prussians fell back in confusion +without having seriously tried the French position, and their officers, +apparently, did not venture to call upon them to charge again. In vain the +French gentlemen implored the Prussian King to support them if they alone should +storm Kellermann's batteries. Under the advice of the Duke of Brunswick the King +decided on retreat. It is said that the Duke had as little heart in the war as +Charles Fox, or, possibly, Pitt, or as his own troops. And yet he was so strong +that Dumouriez, after his victory, hung back and offered the invaders free +passage lest the Germans, if aroused, should turn on him and fight their way to +the Marne.</p> +<p>To the emigrants the retreat was terrible. It was a disaster from which, as a +compact power, they never recovered. The rising in Vendée temporarily collapsed +with the check at Châlons, and they were left literally naked unto their enemy. +Some of them returned to their homes, preferring the guillotine to starvation, +others, disguised in peasants' blouses, tried to reach Rouërie in La Vendée, +some died from hardship, some committed suicide, while the bulk regained Liège +and there waited as suppliants for assistance from Vienna. But these unfortunate +men, who had entered so gayly upon a conflict whose significance they could not +comprehend, had by this time lost more than lands and castles. Many of them had +lost wives and children in one of the most frightful butcheries of history, and +a butchery for which they themselves were responsible, because it was the +inevitable and logical effect of their own intellectual limitations.</p> +<p>When, after the affair of August 10, Danton and his party became masters of +the incipient republic, Paris lay between two perils whose relative magnitude no +one could measure. If Châlons fell, Vendée would rise, and the Republicans of +the West would be massacred. Five months later Vendée did rise, and at +Machecoul the patriots were slaughtered amidst nameless atrocities, largely at +the instigation of the priests. In March, 1793, one hundred thousand peasants +were under arms.</p> +<p>Clearly the West could not be denuded of troops, and yet, if Châlons were to +be made good, every available man had to be hurried to Kellermann, and this +gigantic effort fell to the lot of a body of young and inexperienced adventurers +who formed what could hardly be dignified with the name of an organized +administration.</p> +<p>For a long time Marat, with whom Danton had been obliged to coalesce, had +been insisting that, if the enemy were to be resisted on the frontier, Paris +must first be purged, for Paris swarmed with Royalists wild for revenge, and who +were known to be arming. Danton was not yet prepared for extermination. He +instituted domiciliary visits. He made about three thousand arrests and seized a +quantity of muskets, but he liberated most of those who were under suspicion. +The crisis only came with the news, on September 2, of the investment of Verdun, +when no one longer could doubt that the net was closing about Paris. Verdun was +but three or four days' march from Châlons. When the Duke of Brunswick crossed +the Marne and Brittany revolted, the government would have to flee, as Roland +proposed, and then the Royalists would burst the gates of the prisons and there +would be another Saint Bartholomew.</p> +<p>Toward four o'clock in the afternoon of September 2, 1792, the prison of the +Abbaye was forced and the massacres began. They lasted until September 6, and +through a circular sent out by Marat they were extended to Lyons, to Reims, and +to other cities. About 1600 prisoners were murdered in Paris alone. Hardly any +one has ever defended those slaughters. Even Marat called them +"disastrous," and yet no one interfered. Neither Danton, nor Roland, +nor the Assembly, nor the National Guard, nor the City of Paris, although the +two or three hundred ruffians who did the work could have been dispersed by a +single company of resolute men, had society so willed it. When Robespierre's +time came he fell almost automatically. Though the head of the despotic +"Committee of Public Safety," and nominally the most powerful man in +France, he was sent to execution like the vilest and most contemptible of +criminals by adversaries who would not command a regiment. The inference is that +the September massacres, which have ever since been stigmatized as the deepest +stain upon the Revolution, were, veritably, due to the Royalists, who made with +the Republicans an issue of self-preservation. For this was no common war. In +Royalist eyes it was a servile revolt, and was to be treated as servile revolts +during the Middle Ages had always been treated. Again and again, with all +solemnity, the Royalists had declared that were they to return as conquerors no +stone of Paris should be left standing on another, and that the inhabitants +should expire in the ashes of their homes on the rack and the wheel.</p> +<p>Though Danton had many and obvious weaknesses he was a good lawyer, and +Danton perceived that though he might not have been able to prevent the +September massacres, and although they might have been and probably were +inevitable under the tension which prevailed, yet that any court, even a +political court, would be better than Marat's mob. Some months later he +explained his position to the Convention when it was considering the erection of +the tribunal which finally sent Danton himself to the scaffold. "Nothing is +more difficult than to define a political crime. But, if a simple citizen, for +any ordinary crime, receives immediate punishment, if it is so difficult to +reach a political crime, is it not necessary that extraordinary laws ... +intimidate the rebels and reach the culpable? Here public safety requires strong +remedies and terrible measures. I see no compromise between ordinary forms and a +revolutionary tribunal. History attests this truth; and since members have dared +in this assembly to refer to those bloody days which every good citizen has +lamented, I say that, if such a tribunal had then existed, the people who have +been so often and so cruelly reproached for them, would never have stained them +with blood; I say, and I shall have the assent of all who have watched these +movements, that no human power could have checked the outburst of the national +vengeance."</p> +<p>In this perversion of the courts lay, as I understand it, the foulest horror +of the French Revolution. It was the effect of the rigidity of privilege, a +rigidity which found its incarnation in the judiciary. The constitutional +decisions of the parliaments under the old régime would alone have made their +continuance impossible, but the worst evil was that, after the shell crumbled, +the mind within the shell survived, and discredited the whole regular +administration of justice. When the National Assembly came to examine grievances +it found protests against the judicial system from every corner of France, and +it referred these petitions to a committee which reported in August, 1789. +Setting aside the centralization and consolidation of the system as being, for +us, immaterial, the committee laid down four leading principles of reform. +First, purchase of place should be abolished, and judicial office should be +recognized as a public trust. Second, judges should be confined to applying, and +restrained from interpreting, the law. That is to say, the judges should be +forbidden to legislate. Third, the judges should be brought into harmony with +public opinion by permitting the people to participate in their appointment. +Fourth, the tendency toward rigor in criminal cases, which had become a scandal +under the old régime, should be tempered by the introduction of the jury. +Bergasse proposed that judicial appointments should be made by the executive +from among three candidates selected by the provincial assemblies. After long +and very remarkable debates the plan was, in substance, adopted in May, 1790, +except that the Assembly decided, by a majority of 503 to 450, that the judges +should be elected by the people for a term of six years, without executive +interference. In the debate Cazalès represented the conservatives, Mirabeau the +liberals. The vote was a test vote and shows how strong the conservatives were +in the Assembly up to the reorganization of the Clergy in July, 1790, and the +electoral assemblies of the districts, which selected the judges, seem, on the +whole, to have been rather more conservative than the Assembly. In the election +not a sixth of those who were enfranchised voted for the delegates who, in turn, +chose the judges, and these delegates were usually either eminent lawyers +themselves, or wealthy merchants, or men of letters. The result was a bench not +differing much from an old parliament, and equally incapable of understanding +the convulsion about them.</p> +<p>Installed early in 1791, not a year elapsed before these magistrates became +as ill at ease as had been those whom they displaced, and in March, 1792, Jean +Debry formally demanded their recall, although their terms properly were to +expire in 1796. During the summer of 1792 they sank into contempt and, after the +massacres, the Legislative Assembly, just before its dissolution, provided for a +new constituency for the judicial elections. This they degraded so far that, out +of fifty-one magistrates to be chosen in Paris, only twelve were professionally +trained. Nor did the new courts inspire respect. After the 10th of August one or +two special tribunals were organized to try the Swiss Guard who surrendered in +the Palace, and other political offenders, but these proved to be so ineffective +that Marat thrust them aside, and substituted for them his gangs of murderers. +No true and permanent political court was evolved before Danton had to deal with +the treason of Dumouriez, nor was this tribunal perfected before Danton gave way +to the Committee of Public Safety, when French revolutionary society became +incandescent, through universal attack from without and through insurrection +within.</p> +<p>Danton, though an orator and a lawyer, possibly even a statesman, was not +competent to cope with an emergency which exacted from a minister administrative +genius like that of Carnot. Danton's story may be briefly told. At once after +Valmy the Convention established the Republic; on January 21, 1793, Louis was +beheaded; and between these two events a new movement had occurred. The +Revolutionists felt intuitively that, if they remained shut up at home, with +enemies without and traitors within, they would be lost. If the new ideas were +sound they would spread, and Valmy had proved to them that those ideas had +already weakened the invading armies. Danton declared for the natural boundaries +of France,--the Rhine, the Alps, and the ocean,--and the Convention, on +January 29, 1793, threw Dumouriez on Holland. This provoked war with England, +and then north, south, and east the coalition was complete. It represented at +least half a million fighting men. Danton, having no military knowledge or +experience, fixed his hopes on Dumouriez. To Danton, Dumouriez was the only man +who could save France. On November 6, 1792, Dumouriez defeated the Austrians at +Jemmapes; on the 14th, he entered Brussels, and Belgium lay helpless before him. +On the question of the treatment of Belgium, the schism began which ended with +his desertion. Dumouriez was a conservative who plotted for a royal restoration +under, perhaps, Louis Philippe. The Convention, on the contrary, determined to +revolutionize Belgium, as France had been revolutionized, and to this end Cambon +proposed to confiscate and sell church land and emit assignats. Danton visited +Dumouriez to attempt to pacify him, but found him deeply exasperated. Had Danton +been more sagacious he would have been suspicious. Unfortunately for him he left +Dumouriez in command. In February, Dumouriez invaded Holland and was repulsed, +and he then fell back to Brussels, not strong enough to march to Paris without +support, it is true, but probably expecting to be strong enough as soon as the +Vendean insurrection came to a head. Doubtless he had relations with the rebels. +At all events, on March 10, the insurrection began with the massacre of +Machecoul, and on March 12, 1793, Dumouriez wrote a letter to the Convention +which was equivalent to a declaration of war. He then tried to corrupt his army, +but failed, and on April 4, 1793, fled to the Austrians. Meanwhile, La Vendée +was in flames. To appreciate the situation one must read Carnot's account of the +border during these weeks when he alone, probably, averted some grave disaster. +For my purpose it suffices to say that the pressure was intense, and that this +intense pressure brought forth the Revolutionary Tribunal, or the political +court.</p> +<p>On March 10, 1793, the Convention passed a decree constituting a court of +five judges and a jury, to be elected by the Convention. To these was joined a +public prosecutor. Fouquier-Tinville afterward attained to a sombre fame in this +position. Six members of the Convention were to sit as a commission to supervise +drawing the indictments, the preparation of evidence, and also to advise the +prosecutor. The punishments, under the limitations of the Penal Code and other +criminal laws, were to be within the discretion of the court, whose judgments +were to be final.<a name="FNanchor40"></a><a href="#Footnote_40"><sup>[40]</sup></a> +Death was accompanied by confiscation of property.</p> +<p>Considering that this was an extraordinary tribunal, working under extreme +tension, which tried persons against whom usually the evidence was pretty +conclusive, its record for the first six months was not discreditable. Between +April 6 and September 21, 1793, it rendered sixty-three sentences of death, +thirteen of transportation, and thirty-eight acquittals. The trials were held +patiently, testimony was heard, and the juries duly deliberated. Nevertheless +the Terror deepened as the stress upon the new-born republic increased. Nothing +more awful can be imagined than the ordeal which France endured between the +meeting of the Convention in September, 1792, and the completion of the +Committee of Public Safety in August, 1793. Hemmed in by enemies, the revolution +glowed in Paris like molten lava, while yet it was torn by faction. Conservative +opinion was represented by the Girondists, radical opinion by the Mountain, and +between the two lay the Plain, or the majority of the Convention, who embodied +the social centre of gravity. As this central mass swayed, so did supremacy +incline. The movement was as accurate as that of any scientific instrument for +registering any strain. Dumouriez's treason in April left the northern frontier +open, save for a few fortresses which still held out. When those should fall the +enemy could make a junction with the rebels in Vendée. Still the Girondists +kept control, and even elected Isnard, the most violent among them, President of +the Convention. Then they had the temerity to arrest a member of the Commune of +Paris, which was the focus of radicalism. That act precipitated the struggle for +survival and with it came the change in equilibrium. On June 2, Paris heard of +the revolt of Lyons and of the massacre of the patriots. The same day the +Sections invaded the Convention and expelled from their seats in the Tuileries +twenty-seven Girondists. The Plain or Centre now leant toward the Mountain, and, +on July 10, the Committee of Public Safety, which had been first organized on +April 6, 1793, directly after Dumouriez's treason, was reorganized by the +addition of men like Saint-Just and Couthon, with Prieur, a lawyer of ability +and energy, for President. On July 12, 1793, the Austrians took Condé, and on +July 28, Valenciennes; while on July 25, Kleber, starving, surrendered Mayence. +Nothing now but their own inertia stood between the allies and La Vendée. +Thither indeed Kellermann's men were sent, since they had promised not to serve +against the coalition for a year, but even of these a division was surrounded +and cut to pieces in the disaster of Torfou. A most ferocious civil war soon +raged throughout France. Caen, Bordeaux, Lyons, Marseilles, declared against the +Convention. The whole of the northwest was drenched in blood by the Chouans. +Sixty departments were in arms. On August 28 the Royalists surrendered Toulon to +the English, who blockaded the coasts and supplied the needs of the rebels. +About Paris the people were actually starving. On July 27 Robespierre entered +the Committee of Safety; Carnot, on August 14. This famous committee was a +council of ten forming a pure dictatorship. On August 16, the Convention decreed +the <i>Levée en Masse</i>.</p> +<p>When Carnot became Minister of War to this dictatorship the Republic had +479,000 demoralized soldiers with the colors, under beaten and discredited +commanders. Bouillé had conspired against the States-General, Lafayette against +the Legislative Assembly, and Dumouriez against the Convention. One year from +that time it had a superb force, 732,000 strong, commanded by Jourdan and +Pichegru, Hoche, Moreau, and Bonaparte. Above all Carnot loved Hoche. Up to +Valmy the old regular army, however shaken, had remained as a core. Then it +became merged in a mass of volunteers, and these volunteers had to be armed and +disciplined and fed and led against the greatest and strongest coalition which +the modern world had ever seen. France, under Camot, became a vast workshop. Its +most eminent scientific men taught the people how to gather saltpetre and the +government how to manufacture powder and artillery. Horses had to be obtained. +Carnot was as reckless of himself as of others. He knew no rest. There was that +to be done which had to be done quickly and at any cost; there was that or +annihilation.</p> +<p>On October 21, 1794, when the people had gathered in the Champ de Mars to +celebrate the Festival of Victories, after the President of the Convention had +proclaimed that the Republic had been delivered, Carnot announced what had been +accomplished.</p> +<p>France had won twenty-seven victories, of which eight had been pitched +battles.</p> +<p>One hundred and twenty lesser combats. France had killed eighty thousand +enemies.</p> +<p>Had taken ninety-one thousand prisoners.</p> +<p>Also one hundred and sixteen places or towns, six after siege.</p> +<p>Two hundred and thirty forts or redoubts.</p> +<p>Three thousand eight hundred cannon.</p> +<p>Seventy thousand muskets.</p> +<p>Ninety flags.</p> +<p>As Benjamin Constant has observed, nothing can change the stupendous fact +"that the Convention found the enemy at thirty leagues from Paris, ... and +made peace at thirty leagues from Vienna."</p> +<p>Under the stimulus of a change in environment of mind is apt to expand with +something of this resistless energy. It did so in the Reformation. It may be +said almost invariably to do so, when decay does not supervene, and it now +concerns us to consider, in some rough way, what the cost to the sinking class +of attempting repression may be, when it miscalculates its power in such an +emergency.</p> +<p>I take it to be tolerably clear that, if the French privileged classes had +accepted the reforms of Turgot in good faith, and thus had spread the movement +of the revolution over a generation, there would have been no civil war and no +confiscations, save confiscations of ecclesiastical property. I take it also +that there would have been no massacres and no revolutionary tribunals, if +France in 1793 had fought foreign enemies alone, as England did in 1688. Even as +it was the courts did not grow thoroughly political until the preservation of +the new type of mind came to hinge largely on the extermination of the old. +Danton's first and relatively benign revolutionary tribunal, established in +March, 1793, was reorganized by the Committee of Public Safety in the following +autumn, by a series of decrees of which the most celebrated is that of September +17, touching suspected persons. By these decrees the tribunal was enlarged so +that, in the words of Danton, every day an aristocratic head might fall. The +committee presented a list of judges, and the object of the law was to make the +possession of a reactionary mind a capital offence. It is only in extreme +exigencies that pure thinking by a single person becomes a crime. Ordinarily, a +crime consists of a malicious thought coupled with an overt act, but in periods +of high tension, the harboring of any given thought becomes criminal. Usually +during civil wars test oaths are tendered to suspected persons to discover their +loyalty. For several centuries the Church habitually burnt alive all those who +denied the test dogma of transubstantiation, and during the worst spasm of the +French Revolution to believe in the principle of monarchy and privilege was made +capital with confiscation of property.</p> +<p>The question which the Convention had to meet was how to establish the +existence of a criminal mind, when nothing tangible indicated it. The old +régime had tortured. To prove heresy the Church also had always used torture. +The Revolution proceeded more mildly. It acted on suspicion. The process was +simple. The Committee, of whom in this department Robespierre was the chief, +made lists of those who were to be condemned. There came to be finally almost a +complete absence of forms. No evidence was necessarily heard. The accused, if +inconvenient, was not allowed to speak. If there were doubt touching the +probability of conviction, pressure was put upon the court. I give one or two +examples: Scellier, the senior associate judge of the tribunal, appears to have +been a good lawyer and a fairly worthy man. One day in February, 1794, Scellier +was at dinner with Robespierre, when Robespierre complained of the delays of the +court. Scellier replied that without the observance of forms there could be no +safety for the innocent. "Bah!" replied Robespierre,--"you and +your forms: wait; soon the Committee will obtain a law which will suppress +forms, and then we shall see." Scellier ventured no answer. Such a law was +drafted by Couthon and actually passed on 22 Prairial (June 10, 1794), and yet +it altered little the methods of Fouquier-Tinville as prosecuting officer. +Scellier having complained of this law of Prairial to Saint-Just, Saint-Just +replied that if he were to report his words, or that he was flinching, to the +Committee, Scellier would be arrested. As arrest was tantamount to sentence of +death, Scellier continued his work.</p> +<p>Without reasoning the subject out logically from premise to conclusion, or +being, of course, capable of doing so in the mass, Frenchmen had collectively +received the intuition that everything must be endured for a strong government, +and that whatever obstructed that government must be eliminated. For the process +of elimination they used the courts. Under the conditions in which they were +placed by the domestic enemy, they had little alternative. If a political party +opposed the Dictatorship in the Convention, that party must be broken down; if a +man seemed likely to become a rival for the Dictatorship, that man must be +removed; all who conspired against the Republic must be destroyed as ruthlessly +at home as on the battle-field. The Republic was insolvent, and must have money, +as it must have men. If the government needed men, it took them,--all. If it +needed money, and a man were rich, it did not hesitate to execute him and +confiscate his property. There are very famous examples of all these phenomena +strewn through the history of the Terror.</p> +<p>The Girondists were liberals. They always had been liberals; they had never +conspired against the Republic; but they were impracticable. The ablest of them, +Vergniaud, complained before the Tribunal, that he was being tried for what he +thought, not for what he had done. This the government denied, but it was true. +Nay, more; he was tried not for positive but for negative opinions, and he was +convicted and executed, and his friends were convicted and executed with him, +because, had they remained in the Convention, the Dictatorship, through their +opposition, would have lost its energy. Also the form of the conviction was +shocking in the extreme. The defence of these twenty-one men was, practically, +suppressed, and the jury were directed to bring in a verdict of guilty. Still +the prosecutions of the Girondists stopped here. When they refrained from +obstruction, they were spared.</p> +<p>Danton and his friends may have been, and probably were, whether +intentionally or by force of circumstances, a menace to the Dictatorship. Either +Robespierre or Danton had to be eliminated. There was not room for both. On +April 1, 1793, Danton, Camille Desmoulins, and others were arrested on a warrant +signed by such men as Cambacérès, Carnot, and Prieur. Carnot in particular was +a soldier of the highest character and genius. He would have signed no such +warrant had he not thought the emergency pressing. Nor was the risk small. +Danton was so popular and so strong before a jury that the government appears to +have distrusted even Fouquier-Tinville, for an order was given, and held in +suspense, apparently to Henriot, to arrest the President and the Public +Prosecutor of the Revolutionary Tribunal, on the day of Danton's trial.</p> +<p>Under such a stimulant Fouquier did his best, but he felt himself to be +beaten. Examining Cambon, Danton broke out: "Do you believe us to be +conspirators? Look, he laughs, he don't believe it. Record that he has +laughed." Fouquier was at his wits' end. If the next day the jury were +asked if they had heard enough, and they answered, "No," there would +be an acquittal, and then Fouquier's own head would roll into the basket. +Probably there might even be insurrection. Fouquier wrote to the Committee that +they must obtain from the Convention a decree silencing the defence. So grave +was the crisis felt to be that the decree was unanimously voted. When Fouquier +heard that the decree was on its way, he said, with a sigh of relief,--"Faith, +we need it." But when it was read, Danton sprung to his feet, raging, +declaring that the public cried out treason upon it. The President adjourned the +court while the hall resounded with the protests of the defendants and the +shouts of the police as they tore the condemned from the benches which they +clutched and dragged them through the corridors toward the prison. They emerged +no more until they mounted the carts which took them to the scaffold.</p> +<p>Nor was it safe to hesitate if one were attached to this court. Fouquier had +a clerk named Paris-Fabricius. Now Paris had been a friend of Danton and took +his condemnation to heart. He even declined to sign the judgment, which it was +his duty to do. The next day, when he presented himself to Fouquier, Fouquier +looked at him sourly, and observed, "We don't want men who reason here; we +want business done." The following morning Paris did not appear. His +friends were disturbed, but he was not to be found. He had been cast into a +secret dungeon in the prison of the Luxembourg.</p> +<p>So, if a man were too rich it might go hard with him. Louis-Philippe-Joseph, +Duc d'Orleans, afterward known as Égalité, was one of the most interesting +figures among the old nobility. The great-great-great-grandson of Louis XIII, he +was a distant cousin of Louis XVI, and ranked as the first noble of France +beyond the royal family. His education had been unfortunate. His father lived +with a ballet-dancer, while his mother, the Princess Henriette de Bourbon-Conti, +scandalized a society which was not easily shocked. During the Terror the sans +culottes everywhere averred that the Duke was the son of a coachman in the +service of the banker Duruet. Doubtless this was false, but the princess had +abundant liaisons not much more reputable. Left to himself at sixteen years old, +Égalité led a life of extreme profligacy, but he married one of the most +beautiful and charming women of the age, whom he succeeded in inspiring with a +devoted affection. Born in 1747, his father died in 1785, leaving him, just at +the outbreak of the Revolution, the master of enormous wealth, and the father of +three sons who adored him. The eldest of these was the future king, +Louis-Philippe. The man must have had good in him to have been loved as he was +throughout life. He was besides more intelligent touching the Revolution and its +meaning than any man approaching him in rank in France. The Duke, when a young +man, served with credit in the navy, but after the battle of Ushant, in 1778, +where he commanded the blue squadron, he was received with such enthusiasm in +Paris, that Marie-Antoinette obtained his dismissal from the service. From this +period he withdrew from court and his opposition to the government began. He +adopted republican ideas, which he drew from America, and he educated his +children as democrats. In 1789 he was elected to the States-General, where he +supported the fusion of the orders, and attained to a popularity which, on one +occasion, according to Madame de Campan, nearly made the Queen faint from rage +and grief. It was from the garden of his palace of the Palais Royal that the +column marched on July 14, wearing his colors, the red, white and blue, to storm +the Bastille. It seemed that he had only to go on resolutely to thrust the King +aside and become the ruler of France. He made no effort to do so. Mirabeau is +said to have been disgusted with his lack of ambition. He was charitable also, +and spent very large sums of money among the poor of Paris during the years of +distress which followed upon the social disorders. The breach with the court, +however, became steadily wider, and finally he adhered to the party of Danton +and voted for the condemnation of the King. He sent two of his sons to serve in +the army. The elder was still with Dumouriez at the time of his treason. On +April 6, 1793, when Dumouriez's treachery had become known, the Assembly ordered +the arrest of the whole Bourbon family, and among them the Duke was apprehended +and sent to Marseilles.</p> +<p>Thus it appears that whatever complaint his own order may have had against +Égalité, the Republic certainly had none. No man could have done more for +modern France than he. He abandoned his class, renounced his name, gave his +money, sent his sons to the war, and voted for his own relative's death. No one +feared him, and yet Robespierre had him brought to Paris and guillotined. His +trial was a form. Fouquier admitted that he had been condemned before he left +Marseilles. The Duke was, however, very rich and the government needed his +money. Every one understood the situation. He was told of the order for his +arrest one night when at supper in his palace in Paris with his friend Monsieur +de Monville. The Duke, much moved, asked Monville if it were not horrible, after +all the sacrifices he had made and all that he had done. "Yes, +horrible," said Monville, coolly, "but what would you have? They have +taken from your Highness all they could get, you can be of no further use to +them. Therefore, they will do to you, what I do with this lemon" (he was +squeezing a lemon on a sole); "now I have all the juice." And he threw +the lemon into the fireplace. But yet even then Robespierre was not satisfied. +He harbored malice against this fallen man. On the way to the scaffold he +ordered the cart, in which the Duke sat, to stop before the Palais Royal, which +had been confiscated, in order that the Duke might contemplate his last +sacrifice for his country. The Duke showed neither fear nor emotion.</p> +<p>All the world knows the story of the Terror. The long processions of carts +carrying victims to the guillotine, these increasing in number until after the +Law of Prairial they averaged sixty or seventy a day in Paris alone, while in +the provinces there was no end. At Nantes, Carrier could not work fast enough by +a court, so he sank boat loads of prisoners in the Loire. The hecatombs +sacrificed at Lyons, and the "Red Masses" of Orange, have all been +described. The population of Toulon sank from 29,000 to 7,000. All those, in +fine, were seized and slain who were suspected of having a mind tinged with +caste, or of being traitors to the Republic. And it was the Centre, or the +majority of the Convention, who did this, by tacitly permitting it to be done. +That is to say, France permitted it because the onslaught of the decaying class +made atrocities such as these appear to be a condition of self-preservation. I +doubt if, in human history, there be such another and so awful an illustration +of the possible effects of conservative errors of judgment.</p> +<p>For France never loved the Terror or the loathsome instruments, such as +Fouquier-Tinville, or Carrier, or Billaud-Varennes, or Collot-d'Herbois, or +Henriot, or Robespierre, or Couthon, who conducted it. On this point there can, +I think, be neither doubt nor question. I have tried to show how the Terror +began. It is easy to show how and why it ended. As it began automatically by the +stress of foreign and domestic war, so it ended automatically when that stress +was relieved. And the most curious aspect of the phenomenon is that it did not +end through the application of force, but by common consent, and when it had +ended, those who had been used for the bloody work could not be endured, and +they too were put to death. The procession of dates is convincing.</p> +<p>When, on July 27, 1793, Robespierre entered the Committee of Public Safety, +the fortunes of the Republic were near their nadir, but almost immediately, +after Carnot took the War Department on August 14, they began to mend. On +October 8, 1793, Lyons surrendered; on December 19, 1793, the English evacuated +Toulon; and, on December 23, the insurrection in La Vendée received its death +blow at Savenai. There had also been success on the frontiers. Carnot put Hoche +in command in the Vosges. On December 23, 1793, Hoche defeated Wurmser at +Freschweiller, when the Austrians, abandoning the lines of Wissembourg, fell +back across the Rhine. Thus by the end of 1793, save for the great border +fortresses of Valenciennes and Condé to the north, which commanded the road +from Brussels to Paris, the soil of France had been cleared of the enemy, and +something resembling domestic tranquillity had been restored at home. +Simultaneously, as the pressure lessened, rifts began to appear in the knot of +men who held the Dictatorship in the Republic. Robespierre, Couthon, and +Saint-Just coalesced, and gained control of the police, while Billaud-Varennes, +Collot-d'Herbois, and, secretly and as far as he dared, Barère, formed an +opposition. Not that the latter were more moderate or merciful than Robespierre, +but because, in the nature of things, there could be but one Dictator, and it +became a question of the survival of the fittest. Carnot took little or no part +in active politics. He devoted himself to the war, but he disapproved of the +Terror and came to a breach with Saint-Just. Robespierre's power culminated on +June 10, 1794, with the passage of the Law of 22 Prairial, which put the life of +every Frenchman in his hand, and after which, save for some dozen or two of his +most intimate and devoted adherents like Saint-Just, Couthon, Le Bas, Fouquier, +Fleuriot the Mayor of Paris, and Henriot, the commander of the national guard, +no one felt his head safe on his shoulders. It needed but security on the +northern frontier to cause the social centre of gravity to shift and Robespierre +to fall, and security came with the campaign of Fleurus.</p> +<p>Jourdan and Pichegru were in command on the Belgian border, and on June 26, +1794, just sixteen days after the passage of the Law of Prairial, Jourdan won +the battle of Fleurus. This battle, though not decisive in itself, led to +decisive results. It uncovered Valenciennes and Condé, which were invested, +closing the entrance to France. On July 11, Jourdan entered Brussels; on July +16, he won a crushing victory before Louvain and the same day Namur opened its +gates. On July 23, Pichegru, driving the English before him, seized Antwerp. No +Frenchman could longer doubt that France was delivered, and with that certainty +the Terror ended without a blow. Eventually the end must have come, but it came +instantly, and, according to the old legend, it came through a man's love for a +woman.</p> +<p>John Lambert Tallien, the son of the butler of the Marquis of Bercy, was born +in 1769, and received an education through the generosity of the marquis, who +noticed his intelligence. He became a journeyman printer, and one day in the +studio of Madame Lebrun, dressed in his workman's blouse, he met Thérézia +Cabarrus, Marquise de Fontenay, the most seductive woman of her time, and fell +in love with her on the instant. Nothing, apparently, could have been more +hopeless or absurd. But the Revolution came. Tallien became prominent, was +elected to the Convention, grew to be influential, and in September, 1793, was +sent to Bordeaux, as representative of the Chamber, or as proconsul, as they +called it. There he, the all-powerful despot, found Thérézia, trying to escape +to Spain, in prison, humble, poor, shuddering in the shadow of the guillotine. +He saved her; he carried her through Bordeaux in triumph in a car by his side. +He took her with him to Paris, and there Robespierre threw her into prison, and +accused Tallien of corruption. On June 12 Robespierre denounced him to the +Convention, and on June 14, 1794, the Jacobins struck his name from the list of +the club. When Fleurus was fought Thérézia lay in La Force, daily expecting +death, while Tallien had become the soul of the reactionary party. On the 8 +Thermidor (July 26,1794) Tallien received a dagger wrapped in a note signed by +Thérézia,--"To-morrow they kill me. Are you then only a coward?"<a name="FNanchor41"></a><a href="#Footnote_41"><sup>[41]</sup></a></p> +<p>On the morrow the great day had come. Saint-Just rose in the Convention to +read a report to denounce Billaud, Collot, and Camot. Tallien would not let him +be heard. Billaud followed him. Collot was in the chair. Robespierre mounted the +tribune and tried to speak. It was not without reason that Thérézia afterwards +said, "This little hand had somewhat to do with overthrowing the +guillotine," for Tallien sprang on him, dagger in hand, and, grasping him +by the throat, cast him from the tribune, exclaiming, "I have armed myself +with a dagger to pierce his heart if the Convention dare not order his +accusation." Then rose a great shout from the Centre, "Down with the +tyrant, arrest him, accuse him!" From the Centre, which until that day had +always silently supported the Robespierrian Dictatorship. Robespierre for the +last time tried to speak, but his voice failed him. "It's Danton's blood +that chokes him; arrest him, arrest him!" they shouted from the Right. +Robespierre dropped exhausted on a bench, then they seized him, and his brother, +and Couthon, and Saint-Just, and ordered that the police should take them to +prison.</p> +<p>But it was one thing for the Convention to seize Robespierre singly, and +within its own hall; it was quite another for it to hold him and send him to the +guillotine. The whole physical force of Paris was nominally with Robespierre. +The Mayor, Fleuriot, closed the barriers, sounded the tocsin, and forbade any +jailer to receive the prisoners; while Henriot, who had already been drinking, +mounted a horse and galloped forth to rouse the city. Fleuriot caused +Robespierre, Couthon, and Le Bas to be brought to the City Hall. A provisional +government was completed. It only remained to disperse the Assembly. Henriot +undertook a duty which looked easy. He seems to have collected about twenty +guns, which he brought to the Tuileries and trained on the hall of the +Convention. The deputies thought all was over. Collot-d'Herbois took the chair, +which was directly in range, put on his hat, and calmly said, as Henriot gave +the order to fire, "We can at least die at our post." No volley came--the +men had mutinied. Then the Convention declared Henriot beyond the protection of +the law, and Henriot fled to the City Hall. The Convention chose Barras to +command their armed force, but save a few police they had no force. The night +was wearing away and Fleuriot had not been able to persuade Robespierre to take +any decisive step. Robespierre was, indeed, only a pettifogging attorney. At +length he consented to sign an appeal to arms. He had written two letters of his +name--"Ro"--when a section of police under Barras reached the City +Hall. They were but a handful, but the door was unguarded. They mounted the +stairs and as Robespierre finished the "o", one of these men, named +Merda, fired on him, breaking his jaw. The stain of blood is still on the paper +where Robespierre's head fell. They shot Couthon in the leg, they threw Henriot +out of the window into a cesspool below where he wallowed all night, while Le +Bas blew out his brains. The next day they brought Robespierre to the +Convention, but the Convention refused to receive him. They threw him on a +table, where he lay, horrible to be seen, his coat torn down the back, his +stockings falling over his heels, his shirt open and soaking with blood, +speechless, for his mouth was filled with splinters of his broken jaw. Such was +the man who the morning before had been Dictator, and master of all the armies +of France. Couthon was in little better plight. Twenty-one in all were condemned +on the 10 Thermidor and taken in carts to the guillotine. An awful spectacle. +There was Robespierre with his disfigured face, half dead, and Fleuriot, and +Saint-Just, and Henriot next to Robespierre, his forehead gashed, his right eye +hanging down his cheek, dripping with blood, and drenched with the filth of the +sewer in which he had passed the night. Under their feet lay the cripple +Couthon, who had been thrown in like a sack. Couthon was paralyzed, and he +howled in agony as they wrenched him straight to fasten him to the guillotine. +It took a quarter of an hour to finish with him, while the crowd exulted. A +hundred thousand people saw the procession and not a voice or a hand was raised +in protest. The whole world agreed that the Terror should end. But the oldest of +those who suffered on the 10 Thermidor was Couthon, who was thirty-eight, +Robespierre was thirty-five, and Saint-Just but twenty-seven.</p> +<p>So closed the Terror with the strain which produced it. It will remain a +by-word for all time, and yet, appalling as it may have been, it was the +legitimate and the logical result of the opposition made by caste to the advent +of equality before the law. Also, the political courts served their purpose. +They killed out the archaic mind in France, a mind too rigid to adapt itself to +a changing environment. Thereafter no organized opposition could ever be +maintained against the new social equilibrium. Modern France went on steadily to +a readjustment, on the basis of unification, simplification of administration, +and equality before the law, first under the Directory, then under the +Consulate, and finally under the Empire. With the Empire the Civil Code was +completed, which I take to be the greatest effort at codification of modern +times. Certainly it has endured until now. Governments have changed. The Empire +has yielded to the Monarchy, the Monarchy to the Republic, the Republic to the +Empire again, and that once more to the Republic, but the Code which embodies +the principle of equality before the law has remained. Fundamentally the social +equilibrium has been stable. And a chief reason of this stability has been the +organization of the courts upon rational and conservative principles. During the +Terror France had her fill of political tribunals. Since the Terror French +judges, under every government, have shunned politics and have devoted +themselves to construing impartially the Code. Therefore all parties, and all +ranks, and all conditions of men have sustained the courts. In France, as in +England, there is no class jealousy touching the control of the judiciary. +<br> +</p> +<hr style="width: 65%;"> +<br> +<br> +<a name="CHAPTER_VI"></a> +<h2 align="center">CHAPTER VI</h2> +<p align="center">INFERENCES</p> +<br> +<p>As the universe, which at once creates and destroys life, is a complex of +infinitely varying forces, history can never repeat itself. It is vain, +therefore, to look in the future for some paraphrase of the past. Yet if society +be, as I assume it to be, an organism operating on mechanical principles, we may +perhaps, by pondering upon history, learn enough of those principles to enable +us to view, more intelligently than we otherwise should, the social phenomena +about us. What we call civilization is, I suspect, only, in proportion to its +perfection, a more or less thorough social centralization, while centralization, +very clearly, is an effect of applied science. Civilization is accordingly +nearly synonymous with centralization, and is caused by mechanical discoveries, +which are applications of scientific knowledge, like the discovery of how to +kindle fire, how to build and sail ships, how to smelt metals, how to prepare +explosives, how to make paper and print books, and the like. And we perceive on +a little consideration that from the first great and fundamental discovery of +how to kindle fire, every advance in applied science has accelerated social +movement, until the discovery of steam and electricity in the eighteenth and +nineteenth centuries quickened movement as movement had never been quickened +before. And this quickening has caused the rise of those vast cities, which are +at once our pride and our terror.</p> +<p>Social consolidation is, however, not a simple problem, for social +consolidation implies an equivalent capacity for administration. I take it to be +an axiom, that perfection in administration must be commensurate to the bulk and +momentum of the mass to be administered, otherwise the centrifugal will overcome +the centripetal force, and the mass will disintegrate. In other words, +civilization would dissolve. It is in dealing with administration, as I +apprehend, that civilizations have usually, though not always, broken down, for +it has been on administrative difficulties that revolutions have for the most +part supervened. Advances in administration seem to presuppose the evolution of +new governing classes, since, apparently, no established type of mind can adapt +itself to changes in environment, even in slow-moving civilizations, as fast as +environments change. Thus a moment arrives when the minds of any given dominant +type fail to meet the demands made upon them, and are superseded by a younger +type, which in turn is set aside by another still younger, until the limit of +the administrative genius of that particular race has been reached. Then +disintegration sets in, the social momentum is gradually relaxed, and society +sinks back to a level at which it can cohere. To us, however, the most +distressing aspect of the situation is, that the social acceleration is +progressive in proportion to the activity of the scientific mind which makes +mechanical discoveries, and it is, therefore, a triumphant science which +produces those ever more rapidly recurring changes in environment to which men +must adapt themselves at their peril. As, under the stimulant of modern science, +the old types fail to sustain themselves, new types have to be equally rapidly +evolved, and the rise of a new governing class is always synonymous with a +social revolution and a redistribution of property. The Industrial Revolution +began almost precisely a century and a half ago, since when the scientific mind +has continually gained in power, and, during that period, on an average of once +in two generations, the environment has so far shifted that a social revolution +has occurred, accompanied by the advent of a new favored class, and a +readjustment of wealth. I think that a glance at American history will show this +estimate to be within the truth. At the same time such rapidity of intellectual +mutation is without precedent, and I should suppose that the mental exhaustion +incident thereto must be very considerable.</p> +<p>In America, in 1770, a well-defined aristocracy held control. As an effect of +the Industrial Revolution upon industry and commerce, the Revolutionary War +occurred, the colonial aristocracy misjudged the environment, adhered to Great +Britain, were exiled, lost their property, and perished. Immediately after the +American Revolution and also as a part of the Industrial Revolution, the cotton +gin was invented, and the cotton gin created in the South another aristocracy, +the cotton planters, who flourished until 1860. At this point the changing of +the environment, caused largely by the railway, brought a pressure upon the +slave-owners against which they, also failing to comprehend their situation, +rebelled. They were conquered, suffered confiscation of their property, and +perished. Furthermore, the rebellion of the aristocracy at the South was caused, +or at all events was accompanied by, the rise of a new dominant class at the +North, whose power rested upon the development of steam in transportation and +industry. This is the class which has won high fortune by the acceleration of +the social movement, and the consequent urban growth of the nineteenth century, +and which has now for about two generations dominated in the land. If this +class, like its predecessors, has in its turn mistaken its environment, a +redistribution of property must occur, distressing, as previous redistributions +have been, in proportion to the inflexibility of the sufferers. The last two +redistributions have been painful, and, if we examine passing phenomena from +this standpoint, they hardly appear to promise much that is reassuring for the +future.</p> +<p>Administration is the capacity of coördinating many, and often conflicting, +social energies in a single organism, so adroitly that they shall operate as a +unity. This presupposes the power of recognizing a series of relations between +numerous special social interests, with all of which no single man can be +intimately acquainted. Probably no very highly specialized class can be strong +in this intellectual quality because of the intellectual isolation incident to +specialization; and yet administration or generalization is not only the faculty +upon which social stability rests, but is, possibly, the highest faculty of the +human mind. It is precisely in this preëminent requisite for success in +government that I suspect the modern capitalistic class to be weak. The scope of +the human intellect is necessarily limited, and modern capitalists appear to +have been evolved under the stress of an environment which demanded excessive +specialization in the direction of a genius adapted to money-making under highly +complex industrial conditions. To this money-making attribute all else has been +sacrificed, and the modern capitalist not only thinks in terms of money, but he +thinks in terms of money more exclusively than the French aristocrat or lawyer +ever thought in terms of caste. The modern capitalist looks upon life as a +financial combat of a very specialized kind, regulated by a code which he +understands and has indeed himself concocted, but which is recognized by no one +else in the world. He conceives sovereign powers to be for sale. He may, he +thinks, buy them; and if he buys them; he may use them as he pleases. He +believes, for instance, that it is the lawful, nay more! in America, that it is +the constitutional right of the citizen to buy the national highways, and, +having bought them, to use them as a common carrier might use a horse and cart +upon a public road. He may sell his service to whom he pleases at what price may +suit him, and if by doing so he ruins men and cities, it is nothing to him. He +is not responsible, for he is not a trustee for the public. If he be restrained +by legislation, that legislation is in his eye an oppression and an outrage, to +be annulled or eluded by any means which will not lead to the penitentiary. He +knows nothing and cares less, for the relation which highways always have held, +and always must hold, to every civilized population, and if he be asked to +inform himself on such subjects he resents the suggestion as an insult. He is +too specialized to comprehend a social relation, even a fundamental one like +this, beyond the narrow circle of his private interests. He might, had he so +chosen, have evolved a system of governmental railway regulation, and have +administered the system personally, or by his own agents, but he could never be +brought to see the advantage to himself of rational concession to obtain a +resultant of forces. He resisted all restraint, especially national restraint, +believing that his one weapon--money--would be more effective in obtaining +what he wanted in state legislatures than in Congress. Thus, of necessity, he +precipitates a conflict, instead of establishing an adjustment. He is, +therefore, in essence, a revolutionist without being aware of it. The same +specialized thinking appears in his reasoning touching actual government. New +York City will serve as an illustration.</p> +<p>New York has for two generations been noted for a civic corruption which has +been, theoretically, abominable to all good citizens, and which the capitalistic +class has denounced as abominable to itself. I suspect this to be an imaginative +conception of the situation. Tammany Hall is, I take it, the administrative +bureau through which capital purchases its privileges. An incorruptible +government would offend capital, because, under such a government, capital would +have to obey the law, and privilege would cease. Occasionally, Tammany grows +rapacious and exacts too much for its services. Then a reform movement is +undertaken, and finally a new management is imposed on Tammany; but when Tammany +has consented to a satisfactory scale of prices, the reform ends. To change the +system would imply a shift in the seat of power. In fine, money is the weapon of +the capitalist as the sword was the weapon of the mediaeval soldier; only, as +the capitalist is more highly specialized than the soldier ever was, he is more +helpless when his single weapon fails him. From the days of William the +Conqueror to our own, the great soldier has been, very commonly, a famous +statesman also, but I do not now remember, in English or American history, a +single capitalist who has earned eminence for comprehensive statesmanship. On +the contrary, although many have participated in public affairs, have held high +office, and have shown ability therein, capitalists have not unusually, however +unjustly, been suspected of having ulterior objects in view, unconnected with +the public welfare, such as tariffs or land grants. Certainly, so far as I am +aware, no capitalist has ever acquired such influence over his contemporaries as +has been attained with apparent ease by men like Cromwell, Washington, or even +Jackson.</p> +<p>And this leads, advancing in an orderly manner step by step, to what is, +perhaps, to me, the most curious and interesting of all modern intellectual +phenomena connected with the specialized mind,--the attitude of the capitalist +toward the law. Naturally the capitalist, of all men, might be supposed to be he +who would respect and uphold the law most, considering that he is at once the +wealthiest and most vulnerable of human beings, when called upon to defend +himself by physical force. How defenceless and how incompetent he is in such +exigencies, he proved to the world some years ago when he plunged himself and +the country into the great Pennsylvania coal strike, with absolutely no +preparation. Nevertheless, in spite of his vulnerability, he is of all citizens +the most lawless.<a name="FNanchor42"></a><a href="#Footnote_42"><sup>[42]</sup></a> +He appears to assume that the law will always be enforced, when he has need of +it, by some special personnel whose duty lies that way, while he may, evade the +law, when convenient, or bring it into contempt, with impunity. The capitalist +seems incapable of feeling his responsibility, as a member of the governing +class, in this respect, and that he is bound to uphold the law, no matter what +the law may be, in order that others may do the like. If the capitalist has +bought some sovereign function, and wishes to abuse it for his own behoof, he +regards the law which restrains him as a despotic invasion of his constitutional +rights, because, with his specialized mind, he cannot grasp the relation of a +sovereign function to the nation as a whole. He, therefore, looks upon the +evasion of a law devised for public protection, but inimical to him, as innocent +or even meritorious.</p> +<p>If an election be lost, and the legislature, which has been chosen by the +majority, cannot be pacified by money, but passes some act which promises to be +annoying, the first instinct of the capitalist is to retain counsel, not to +advise him touching his duty under the law, but to devise a method by which he +may elude it, or, if he cannot elude it, by which he may have it annulled as +unconstitutional by the courts. The lawyer who succeeds in this branch of +practice is certain to win the highest prizes at the bar. And as capital has had +now, for more than one or even two generations, all the prizes of the law within +its gift, this attitude of capital has had a profound effect upon shaping the +American legal mind. The capitalist, as I infer, regards the constitutional form +of government which exists in the United States, as a convenient method of +obtaining his own way against a majority, but the lawyer has learned to worship +it as a fetich. Nor is this astonishing, for, were written constitutions +suppressed, he would lose most of his importance and much of his income. Quite +honestly, therefore, the American lawyer has come to believe that a sheet of +paper soiled with printers' ink and interpreted by half-a-dozen elderly +gentlemen snugly dozing in armchairs, has some inherent and marvellous virtue by +which it can arrest the march of omnipotent Nature. And capital gladly accepts +this view of American civilization, since hitherto capitalists have usually been +able to select the magistrates who decide their causes, perhaps directly through +the intervention of some president or governor whom they have had nominated by a +convention controlled by their money, or else, if the judiciary has been +elective, they have caused sympathetic judges to be chosen by means of a +mechanism like Tammany, which they have frankly bought.</p> +<p>I wish to make myself clearly understood. Neither capitalists nor lawyers are +necessarily, or even probably, other than conscientious men. What they do is to +think with specialized minds. All dominant types have been more or less +specialized, if none so much as this, and this specialization has caused, as I +understand it, that obtuseness of perception which has been their ruin when the +environment which favored them has changed. All that is remarkable about the +modern capitalist is the excess of his excentricity, or his deviation from that +resultant of forces to which he must conform. To us, however, at present, +neither the morality nor the present mental excentricity of the capitalist is so +material as the possibility of his acquiring flexibility under pressure, for it +would seem to be almost mathematically demonstrable that he will, in the near +future, be subjected to a pressure under which he must develop flexibility or be +eliminated.</p> +<p>There can be no doubt that the modern environment is changing faster than any +environment ever previously changed; therefore, the social centre of gravity +constantly tends to shift more rapidly; and therefore, modern civilization has +unprecedented need of the administrative or generalizing mind. But, as the mass +and momentum of modern society is prodigious, it will require a correspondingly +prodigious energy to carry it safely from an unstable to a stable equilibrium. +The essential is to generate the energy which brings success; and the more the +mind dwells upon the peculiarities of the modern capitalistic class, the more +doubts obtrude themselves touching their ability to make the effort, even at +present, and still more so to make it in the future as the magnitude of the +social organism grows. One source of capitalistic weakness comes from a lack of +proper instruments wherewith to work, even supposing the will of capital to be +good; and this lack of administrative ability is somewhat due to the +capitalistic attitude toward education. In the United States capital has long +owned the leading universities by right of purchase, as it has owned the +highways, the currency, and the press, and capital has used the universities, in +a general way, to develop capitalistic ideas. This, however, is of no great +moment. What is of moment is that capital has commercialized education. +Apparently modern society, if it is to cohere, must have a high order of +generalizing mind,--a mind which can grasp a multitude of complex relations,--but +this is a mind which can, at best, only be produced in small quantity and at +high cost. Capital has preferred the specialized mind and that not of the +highest quality, since it has found it profitable to set quantity before quality +to the limit which the market will endure. Capitalists have never insisted upon +raising an educational standard save in science and mechanics, and the relative +overstimulation of the scientific mind has now become an actual menace to order +because of the inferiority of the administrative intelligence.</p> +<p>Yet, even supposing the synthetic mind of the highest power to be increasing +in proportion to the population, instead of, as I suspect, pretty rapidly +decreasing, and supposing the capitalist to be fully alive to the need of +administrative improvements, a phalanx of Washingtons would be impotent to raise +the administrative level of the United States materially, as long as the courts +remain censors of legislation; because the province of the censorial court is to +dislocate any comprehensive body of legislation, whose effect would be to change +the social status. That was the fundamental purpose which underlay the adoption +of a written constitution whose object was to keep local sovereignties intact, +especially at the South. Jefferson insisted that each sovereignty should by +means of nullification protect itself. It was a long step in advance when the +nation conquered the prerogative of asserting its own sovereign power through +the Supreme Court. Now the intervention of the courts in legislation has become, +by the change in environment, as fatal to administration as would have been, in +1800, the success of nullification. I find it difficult to believe that capital, +with its specialized views of what constitutes its advantages, its duties, and +its responsibilities, and stimulated by a bar moulded to meet its prejudices and +requirements, will ever voluntarily assent to the consolidation of the United +States to the point at which the interference of the courts with legislation +might be eliminated; because, as I have pointed out, capital finds the judicial +veto useful as a means of at least temporarily evading the law, while the bar, +taken as a whole, quite honestly believes that the universe will obey the +judicial decree. No delusion could be profounder and none, perhaps, more +dangerous. Courts, I need hardly say, cannot control nature, though by trying to +do so they may, like the Parliament of Paris, create a friction which shall +induce an appalling catastrophe.</p> +<p>True judicial courts, whether in times of peace or of revolution, seldom fail +to be a substantial protection to the weak, because they enforce an established <i>corpus +juris</i> and conduct trials by recognized forms. It is startling to compare the +percentage of convictions to prosecutions, for the same class of offences, in +the regular criminal courts during the French Revolution, with the percentage in +the Revolutionary Tribunal. And once a stable social equilibrium is reached, all +men tend to support judicial courts, if judicial courts exist, from an instinct +of self-preservation. This has been amply shown by French experience, and it is +here that French history is so illuminating to the American mind. Before the +Revolution France had semi-political courts which conduced to the overthrow of +Turgot, and, therefore, wrought for violence; but more than this, France, under +the old régime, had evolved a legal profession of a cast of mind incompatible +with an equal administration of the law. The French courts were, therefore, when +trouble came, supported only by a faction, and were cast aside. With that the +old régime fell.</p> +<p>The young Duke of Chartres, the son of Égalité Orleans, and the future +Louis Philippe, has related in his journal an anecdote which illustrates that +subtle poison of distrust which undermines all legal authority, the moment that +suspicion of political partiality in the judiciary enters the popular mind. In +June, 1791, the Duke went down from Paris to Vendôme to join the regiment of +dragoons of which he had been commissioned colonel. One day, soon after he +joined, a messenger came to him in haste to tell him that a mob had gathered +near by who were about to hang two priests. "I ran thither at once," +wrote the Duke; "I spoke to those who seemed most excited and impressed +upon them how horrible it was to hang men without trial; besides, to act as +hangmen was to enter a trade which they all thought infamous; that they had +judges, and that this was their affair. They answered that their judges were +aristocrats, and that they did not punish the guilty." That is to say, +although the priests were non-jurors, and, therefore, criminals in the eye of +the law, the courts would not enforce the law because of political bias.<a name="FNanchor43"></a><a href="#Footnote_43"><sup>[43]</sup></a> +"It is your fault," I said to them, "since you elected them [the +judges], but that is no reason why you should do justice yourselves."</p> +<p>Danton explained in the Convention that it was because of the deep distrust +of the judiciary in the public mind, which this anecdote shows, that the +September massacres occurred, and it was because all republicans knew that the +state and the army were full of traitors like Dumouriez, whom the ordinary +courts would not punish, that Danton brought forward his bill to organize a true +political tribunal to deal with them summarily. When Danton carried through this +statute he supposed himself to be at the apex of power and popularity, and to be +safe, if any man in France were safe. Very shortly he learned the error In his +calculation. Billaud was a member of the Committee of Public Safety, while +Danton had allowed himself to be dropped from membership. Danton had just been +married, and to an aristocratic wife, and the turmoil of office had grown to be +distasteful to him. On March 30, 1794, Billaud somewhat casually remarked, +"We must kill Danton;" for in truth Danton, with conservative +leanings, was becoming a grave danger to the extreme Jacobins. Had he lived a +few months longer he would have been a Thermidorist. Billaud, therefore, only +expressed the prevailing Jacobin opinion; so the Jacobins arrested Danton, +Camille Desmoulins, and his other friends, and Danton at once anticipated what +would be his doom. As he entered his cell he said to his jailer: "I erected +the Tribunal. I ask pardon of God and men." But even yet he did not grasp +the full meaning of what he had done. At his trial he wished to introduce his +evidence fully, protesting "that he should understand the Tribunal since he +created it;" nevertheless, he did not understand the Tribunal, he still +regarded it as more or less a court. Topino-Lebrun, the artist, did understand +it. Topino sat on the jury which tried Danton, and observed that the heart of +one of his colleagues seemed failing him. Topino took the waverer aside, and +said: "This is not a <i>trial</i>, it is a <i>measure</i>. Two men are +impossible; one must perish. Will you kill Robespierre?--No.--Then by that +admission you condemn Danton." Lebrun in these few words went to the root +of the matter, and stated the identical principle which underlies our whole +doctrine of the Police Power. A political court is not properly a court at all, +but an administrative board whose function is to work the will of the dominant +faction for the time being. Thus a political court becomes the most formidable +of all engines for the destruction of its creators the instant the social +equilibrium shifts. So Danton found, in the spring of 1794, when the equilibrium +shifted; and so Robespierre, who slew Danton, found the next July, when the +equilibrium shifted again.</p> +<p>Danton died on the 5th April, 1794; about three months later Jourdan won the +Fleurus campaign. Straightway Thermidor followed, and the Tribunal worked as +well for the party of Thermidor as it had for the Jacobins. Carrier, who had +wallowed in blood at Nantes, as the ideal Jacobin, walked behind the cart which +carried Robespierre to the scaffold, shouting, "Down with the tyrant;" +but that did not save him. In vain he protested to the Convention that, were he +guilty, the whole Convention was guilty, "down to the President's +bell." By a vote of 498 out of 500, Carrier was sent before the Tribunal +which, even though reorganized, condemned him. Thérézia Cabarrus gaily +presided at the closing of the Jacobin Club, Tallien moved over to the benches +on the right, and therefore the court was ruthless to Fouquier. On the 11 +Thermidor, seventy members, officers, or partisans of the Commune of Paris, were +sent to the guillotine in only two batches. On the next day twelve more +followed, four of whom were jurymen. Fouquier's turn came later. It may also be +worth while for Americans to observe that a political court is quite as +effective against property as against life. The Duke of Orleans is only the most +celebrated example of a host of Frenchmen who perished, not because of revenge, +fear, or jealousy, but because the party in power wanted their property. The +famous Law touching Suspected Persons (loi des suspects) was passed on September +17, 1793. On October 10, 1793, that is three weeks afterward, Saint-Just moved +that additional powers should be granted, by the Convention, to the Committee of +Public Safety, defining, by way of justification for his motion, those who fell +within the purview of this law. Among these, first of all, came "the +rich," who by that fact alone were to be considered, <i>prima facie</i>, +enemies to their country.</p> +<p>As I stated at the beginning of this chapter, history never can repeat +itself; therefore, whatever else may happen in the United States, we certainly +shall have no Revolutionary Tribunal like the French Tribunal of 1793, but the +mechanical principle of the political court always remains the same; it is an +administrative board the control of which is useful, or may be even essential, +to the success of a dominant faction, and the instinctive comprehension which +the American people have of this truth is demonstrated by the determination with +which they have, for many years, sought to impose the will of the majority upon +the judiciary. Other means failing to meet their expectations, they have now hit +on the recall, which is as revolutionary in essence as were the methods used +during the Terror. Courts, from the Supreme Court downward, if purged by recall, +or a process tantamount to recall, would, under proper stress, work as surely +for a required purpose as did the tribunal supervised by Fouquier-Tinville.</p> +<p>These considerations rather lead me to infer that the extreme complexity of +the administrative problems presented by modern industrial civilization is +beyond the compass of the capitalistic mind. If this be so, American society, as +at present organized, with capitalists for the dominant class, can concentrate +no further, and, as nothing in the universe is at rest, if it does not +concentrate, it must, probably, begin to disintegrate. Indeed we may perceive +incipient signs of disintegration all about us. We see, for example, an +universal contempt for law, incarnated in the capitalistic class itself, which +is responsible for order, and in spite of the awful danger which impends over +every rich and physically helpless type should the coercive power collapse. We +see it even more distinctly in the chronic war between capital and labor, which +government is admittedly unable to control; we see it in the slough of urban +politics, inseparable from capitalistic methods of maintaining its ascendancy; +and, perhaps, most disquieting of all, we see it in the dissolution of the +family which has, for untold ages, been the seat of discipline and the +foundation of authority. For the dissolution of the family is peculiarly a +phenomenon of our industrial age, and it is caused by the demand of industry for +the cheap labor of women and children. Napoleon told the lawyers who drafted the +Code that he insisted on one thing alone. They must fortify the family, for, +said he, if the family is responsible to the father and the father to me, I can +keep order in France. One of the difficulties, therefore, which capital has to +meet, by the aid of such administrative ability as it can command, is how to +keep order when society no longer rests on the cohesive family, but on highly +volatilized individuals as incohesive as grains of sand.</p> +<p>Meditating upon these matters, it is hard to resist the persuasion that +unless capital can, in the immediate future, generate an intellectual energy, +beyond the sphere of its specialized calling, very much in excess of any +intellectual energy of which it has hitherto given promise, and unless it can +besides rise to an appreciation of diverse social conditions, as well as to a +level of political sagacity, far higher than it has attained within recent +years, its relative power in the community must decline. If this be so the +symptoms which indicate social disintegration will intensify. As they intensify, +the ability of industrial capital to withstand the attacks made upon it will +lessen, and this process must go on until capital abandons the contest to defend +itself as too costly. Then nothing remains but flight. Under what conditions +industrial capital would find migration from America possible, must remain for +us beyond the bounds even of speculation. It might escape with little or no +loss. On the other hand, it might fare as hardly as did the southern +slaveholders. No man can foresee his fate. In the event of adverse fortune, +however, the position of capitalists would hardly be improved by the existence +of political courts serving a malevolent majority. Whatever may be in store for +us, here at least, we reach an intelligible conclusion. Should Nature follow +such a course as I have suggested, she will settle all our present perplexities +as simply and as drastically as she is apt to settle human perturbations, and +she will follow logically in the infinitely extended line of her own most +impressive precedents. +<br> +</p> +<p>FOOTNOTES:</p> +<p><a name="Footnote_1"></a><a href="#FNanchor1">[1]</a> +<blockquote> + Charles River Bridge <i>v</i>. Warren Bridge, II Peters, 608, 609. +</blockquote> +<p><a name="Footnote_2"></a><a href="#FNanchor2">[2]</a> +<blockquote> + Fitchburg R.R. <i>v</i>. Gage, 12 Gray 393, and innumerable cases following + it. +</blockquote> +<p><a name="Footnote_3"></a><a href="#FNanchor3">[3]</a> +<blockquote> + See the decisions of the Commerce Court on the Long and Short-Haul Clause. + Atchison, T.&S.F. By. <i>v</i>. United States, 191 Federal Rep. 856. +</blockquote> +<p><a name="Footnote_4"></a><a href="#FNanchor4">[4]</a> +<blockquote> + Darcy <i>v</i>. Allein, 11 Rep. 84. +</blockquote> +<p><a name="Footnote_5"></a><a href="#FNanchor5">[5]</a> +<blockquote> + 68 Pa. 173. +</blockquote> +<p><a name="Footnote_6"></a><a href="#FNanchor6">[6]</a> +<blockquote> + The relation of courts to legislation in European countries has been pretty + fully considered by Brinton Coxe, in <i>Judicial Power and Constitutional + Legislation</i>. +</blockquote> +<p><a name="Footnote_7"></a><a href="#FNanchor7">[7]</a> +<blockquote> + <i>Federalist</i> No. LXXVIII. +</blockquote> +<p><a name="Footnote_8"></a><a href="#FNanchor8">[8]</a> +<blockquote> + <i>The Federalist</i>, No. LXXVIII. +</blockquote> +<p><a name="Footnote_9"></a><a href="#FNanchor9">[9]</a> +<blockquote> + <i>The Federalist</i>, No. LXXVIII. +</blockquote> +<p><a name="Footnote_10"></a><a href="#FNanchor10">[10]</a> +<blockquote> + Cohens <i>v</i>. Virginia, 6 Wheaton 415. +</blockquote> +<p><a name="Footnote_11"></a><a href="#FNanchor11">[11]</a> +<blockquote> + To Madison, Ford, 9, 275. +</blockquote> +<p><a name="Footnote_12"></a><a href="#FNanchor12">[12]</a> +<blockquote> + Marshall's constitutional doctrine was not universally accepted, even in the + courts of the northern states, until long afterward. As eminent a jurist as + Chief Justice Gibson of Pennsylvania, as late as 1825, gave a very able + dissenting opinion in opposition in Eakin <i>v</i>. Raub, 12 S.&R., 344. +</blockquote> +<p><a name="Footnote_13"></a><a href="#FNanchor13">[13]</a> +<blockquote> + Memoirs, I, 322. +</blockquote> +<p><a name="Footnote_14"></a><a href="#FNanchor14">[14]</a> +<blockquote> + Hepburn <i>v.</i> Griswold, 8 Wallace 603. Decided in conference on Nov. 27, + 1869, more than a month before Grier's resignation. Knox <i>v</i>. Lee, 12 + Wallace 457. +</blockquote> +<p><a name="Footnote_15"></a><a href="#FNanchor15">[15]</a> +<blockquote> + 157 U.S. 608. +</blockquote> +<p><a name="Footnote_16"></a><a href="#FNanchor16">[16]</a> +<blockquote> + Pollock <i>v</i>. The Farmers' Loan & Trust Co., 158 U.S. 715. +</blockquote> +<p><a name="Footnote_17"></a><a href="#FNanchor17">[17]</a> +<blockquote> + In 1889 Mr. J.C. Bancroft Davis compiled a table of the acts of Congress which + up to that time had been held to be unconstitutional. It is to be found in the + Appendix to volume 131 U.S. Reports, page CCXXXV. Mr. Davis has, however, + omitted from his list the Dred Scott Case, probably for the technical reason + that, in 1857, when the cause was decided, the Missouri Compromise had been + repealed. Nevertheless, though this is true, Tansy's decision hinged upon the + invalidity of the law.<br> + <br> + Besides the statutes which I have mentioned in the test, the two most + important, I suppose, which have been annulled, have to me no little interest. + These are the Civil Rights Act of 1875, and the Employers' Liability Act of + 1906. The Civil Rights Act of 1875 grew rapidly unpopular, and the decision + which overturned it coincided with the strong drift of opinion. The Civil + Rights Cases were decided in October, 1883, and Mr. Cleveland was elected + President in 1884. Doubtless the law would have been repealed had the + judiciary supported it. Therefore this adjudication stood.<br> + <br> + On the other hand, the Employers' Liability Act of 1906 was held bad because + Congress undertook to deal with commerce conducted wholly within the states, + and therefore beyond the national jurisdiction. The Court, consequently, in + the Employers' Liability Cases, simply defined the limits of sovereignty, as a + Canadian Court might do; it did not question the existence of sovereignty + itself. In 1908 Congress passed a statute free from this objection, and the + Court, in the Second Employers' Liability Cases, 223 U.S. 1, sustained the + legislation in the most thoroughgoing manner. I know not where to look for two + better illustrations of my theory. +</blockquote> +<p><a name="Footnote_18"></a><a href="#FNanchor18">[18]</a> +<blockquote> + 6 Cranch 135. +</blockquote> +<p><a name="Footnote_19"></a><a href="#FNanchor19">[19]</a> +<blockquote> + New Jersey <i>v</i>. Wilson, 7 Cranch 164; decided in 1812. +</blockquote> +<p><a name="Footnote_20"></a><a href="#FNanchor20">[20]</a> +<blockquote> + Coates <i>v</i>. Mayor of New York, 7 Cowen 585. +</blockquote> +<p><a name="Footnote_21"></a><a href="#FNanchor21">[21]</a> +<blockquote> + Charles River Bridge <i>v</i>. Warren Bridge, 11 Peters 420, 553. +</blockquote> +<p><a name="Footnote_22"></a><a href="#FNanchor22">[22]</a> +<blockquote> + Boston & Maine Railroad <i>v</i>. County Commissioners, 79 Maine 393. +</blockquote> +<p><a name="Footnote_23"></a><a href="#FNanchor23">[23]</a> +<blockquote> + Wynehamer <i>v</i>. The People, 13 N.Y. 393. +</blockquote> +<p><a name="Footnote_24"></a><a href="#FNanchor24">[24]</a> +<blockquote> + Mugler <i>v.</i> Kansas, 133 U.S. 623. +</blockquote> +<p><a name="Footnote_25"></a><a href="#FNanchor25">[25]</a> +<blockquote> + Fertilizing Co. <i>v</i>. Hyde Park, 97 U.S. 659. +</blockquote> +<p><a name="Footnote_26"></a><a href="#FNanchor26">[26]</a> +<blockquote> + Slaughter House Cases, 16 Wallace 78, decided in 1873. +</blockquote> +<p><a name="Footnote_27"></a><a href="#FNanchor27">[27]</a> +<blockquote> + 94 U.S. 113. +</blockquote> +<p><a name="Footnote_28"></a><a href="#FNanchor28">[28]</a> +<blockquote> + Chicago, Milwaukee & St. Paul Ry. <i>v.</i> Minnesota, 134 U.S. 461, + decided March 24, 1890. +</blockquote> +<p><a name="Footnote_29"></a><a href="#FNanchor29">[29]</a> +<blockquote> + Noble State Bank <i>v.</i> Haskell, 219 U.S. 104. +</blockquote> +<p><a name="Footnote_30"></a><a href="#FNanchor30">[30]</a> +<blockquote> + See the extraordinary case of Douglas <i>v.</i> Kentucky, 168 U.S. 488, which + must be read in connection with Gregory <i>v.</i> Trustees of Shelby College, + 2 Metc. (Kentucky) 589. +</blockquote> +<p><a name="Footnote_31"></a><a href="#FNanchor31">[31]</a> +<blockquote> + Brass <i>v.</i> North Dakota, 133 U.S. 391. +</blockquote> +<p><a name="Footnote_32"></a><a href="#FNanchor32">[32]</a> +<blockquote> + 169 U.S. 466. +</blockquote> +<p><a name="Footnote_33"></a><a href="#FNanchor33">[33]</a> +<blockquote> + <i>The Federalist</i>, No. LXXVIII. +</blockquote> +<p><a name="Footnote_34"></a><a href="#FNanchor34">[34]</a> +<blockquote> + 221 U.S. 91. +</blockquote> +<p><a name="Footnote_35"></a><a href="#FNanchor35">[35]</a> +<blockquote> + 60th Congress, 2d Session, Senate, Report No. 848, Adverse Report by Mr. + Nelson, Amending Anti-trust Act, January 26, 1909, page 11. +</blockquote> +<p><a name="Footnote_36"></a><a href="#FNanchor36">[36]</a> +<blockquote> + Standard Oil Company <i>v</i>. United States, 221 U.S. 1. +</blockquote> +<p><a name="Footnote_37"></a><a href="#FNanchor37">[37]</a> +<blockquote> + United States <i>v</i>. American Tobacco Company, 221 U.S. 191, 192. +</blockquote> +<p><a name="Footnote_38"></a><a href="#FNanchor38">[38]</a> +<blockquote> + 221 U.S. 69. +</blockquote> +<p><a name="Footnote_39"></a><a href="#FNanchor39">[39]</a> +<blockquote> + To Spencer Roane, Sept. 6, 1819, Ford, 10, 141. +</blockquote> +<p><a name="Footnote_40"></a><a href="#FNanchor40">[40]</a> +<blockquote> + <i>Histoire du Tribunal Revolutionaire de Paris</i>, H. Wallon, I, 57. +</blockquote> +<p><a name="Footnote_41"></a><a href="#FNanchor41">[41]</a> +<blockquote> + "C'est demain qu'on me tue; n'êtes-vous donc qu'un lache?" +</blockquote> +<p><a name="Footnote_42"></a><a href="#FNanchor42">[42]</a> +<blockquote> + In these observations on the intellectual tendencies of capital I speak + generally. Not only individual capitalists, but great corporations, exist, who + are noble examples of law-abiding and intelligent citizenship. Their rarity, + however, and their conspicuousness, seem to prove the general rule. +</blockquote> +<p><a name="Footnote_43"></a><a href="#FNanchor43">[43]</a> +<blockquote> + By the Law of November 27, 1790, priests refusing to swear allegiance to the + "civil constitution" of the clergy were punished by loss of pay and + of rights of citizenship if they continued their functions. By Law of August + 26, 1792, by transportation to Cayenne. +</blockquote> +<br> +<br> +<hr style="width: 65%;"> +<br> +<br> + + + + + + + + +<pre> + + + + + +End of Project Gutenberg's The Theory of Social Revolutions, by Brooks Adams + +*** END OF THIS PROJECT GUTENBERG EBOOK THE THEORY OF SOCIAL REVOLUTIONS *** + +***** This file should be named 10613-h.htm or 10613-h.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/1/0/6/1/10613/ + +Produced by Afra Ullah, Virginia Paque and PG Distributed Proofreaders + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Theory of Social Revolutions + +Author: Brooks Adams + +Release Date: January 6, 2004 [EBook #10613] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE THEORY OF SOCIAL REVOLUTIONS *** + + + + +Produced by Afra Ullah, Virginia Paque and PG Distributed Proofreaders + + + + + THE THEORY OF SOCIAL REVOLUTIONS + + BY + + BROOKS ADAMS + + + + 1913 + + + + + +PREFATORY NOTE + +The first chapter of the following book was published, in substantially +its present form, in the _Atlantic Monthly_ for April, 1913. I have to +thank the editor for his courtesy in assenting to my wish to reprint. +The other chapters have not appeared before. I desire also to express my +obligations to my learned friend, Dr. M.M. Bigelow, who, most kindly, at +my request, read chapters two and three, which deal with the +constitutional law, and gave me the benefit of his most valuable +criticism. + +Further than this I have but one word to add. I have written in support +of no political movement, nor for any ephemeral purpose. I have written +only to express a deep conviction which is the result of more than +twenty years of study, and reflection upon this subject. + +BROOKS ADAMS. + +QUINCY, MASSACHUSETTS, May 17, 1913. + + + + + CONTENTS + + I. THE COLLAPSE OF CAPITALISTIC GOVERNMENT + + II. THE LIMITATIONS OF THE JUDICIAL FUNCTION + +III. AMERICAN COURTS AS LEGISLATIVE CHAMBERS + + IV. THE SOCIAL EQUILIBRIUM + + V. POLITICAL COURTS + + VI. INFERENCES + + INDEX [not included in this etext] + + + + + +THE THEORY OF SOCIAL REVOLUTIONS + + + + +CHAPTER I + +THE COLLAPSE OF CAPITALISTIC GOVERNMENT + + +Civilization, I apprehend, is nearly synonymous with order. However much +we may differ touching such matters as the distribution of property, the +domestic relations, the law of inheritance and the like, most of us, I +should suppose, would agree that without order civilization, as we +understand it, cannot exist. Now, although the optimist contends that, +since man cannot foresee the future, worry about the future is futile, +and that everything, in the best possible of worlds, is inevitably for +the best, I think it clear that within recent years an uneasy suspicion +has come into being that the principle of authority has been dangerously +impaired, and that the social system, if it is to cohere, must be +reorganized. So far as my observation has extended, such intuitions are +usually not without an adequate cause, and if there be reason for +anxiety anywhere, it surely should be in the United States, with its +unwieldy bulk, its heterogeneous population, and its complex government. +Therefore, I submit, that an hour may not be quite wasted which is +passed in considering some of the recent phenomena which have appeared +about us, in order to ascertain if they can be grouped together in any +comprehensible relation. + +About a century ago, after, the American and French Revolutions and the +Napoleonic wars, the present industrial era opened, and brought with it +a new governing class, as every considerable change in human environment +must bring with it a governing class to give it expression. Perhaps, for +lack of a recognized name, I may describe this class as the industrial +capitalistic class, composed in the main of administrators and bankers. +As nothing in the universe is stationary, ruling classes have their +rise, culmination, and decline, and I conjecture that this class +attained to its acme of popularity and power, at least in America, +toward the close of the third quarter of the nineteenth century. I draw +this inference from the fact that in the next quarter resistance to +capitalistic methods began to take shape in such legislation as the +Interstate Commerce Law and the Sherman Act, and almost at the opening +of the present century a progressively rigorous opposition found for its +mouthpiece the President of the Union himself. History may not be a very +practical study, but it teaches some useful lessons, one of which is +that nothing is accidental, and that if men move in a given direction, +they do so in obedience to an impulsion as automatic as is the impulsion +of gravitation. Therefore, if Mr. Roosevelt became, what his adversaries +are pleased to call, an agitator, his agitation had a cause which is as +deserving of study as is the path of a cyclone. This problem has long +interested me, and I harbor no doubt not only that the equilibrium of +society is very rapidly shifting, but that Mr. Roosevelt has, +half-automatically, been stimulated by the instability about him to seek +for a new centre of social gravity. In plain English, I infer that he +has concluded that industrialism has induced conditions which can no +longer be controlled by the old capitalistic methods, and that the +country must be brought to a level of administrative efficiency +competent to deal with the strains and stresses of the twentieth +century, just as, a hundred and twenty-five years ago, the country was +brought to an administrative level competent for that age, by the +adoption of the Constitution. Acting on these premises, as I conjecture, +whether consciously worked out or not, Mr. Roosevelt's next step was to +begin the readjustment; but, I infer, that on attempting any correlated +measures of reform, Mr. Roosevelt found progress impossible, because of +the obstruction of the courts. Hence his instinct led him to try to +overleap that obstruction, and he suggested, without, I suspect, +examining the problem very deeply, that the people should assume the +right of "recalling" judicial decisions made in causes which involved +the nullifying of legislation. What would have happened had Mr. +Roosevelt been given the opportunity to thoroughly formulate his ideas, +even in the midst of an election, can never be known, for it chanced +that he was forced to deal with subjects as vast and complex as ever +vexed a statesman or a jurist, under difficulties at least equal to the +difficulties of the task itself. If the modern mind has developed one +characteristic more markedly than another, it is an impatience with +prolonged demands on its attention, especially if the subject be +tedious. No one could imagine that the New York press of to-day would +print the disquisitions which Hamilton wrote in 1788 in support of the +Constitution, or that, if it did, any one would read them, least of all +the lawyers; and yet Mr. Roosevelt's audience was emotional and +discursive even for a modern American audience. Hence, if he attempted +to lead at all, he had little choice but to adopt, or at least discuss, +every nostrum for reaching an immediate millennium which happened to be +uppermost; although, at the same time, he had to defend himself against +an attack compared with which any criticism to which Hamilton may have +been subjected resembled a caress. The result has been that the +Progressive movement, bearing Mr. Roosevelt with it, has degenerated +into a disintegrating rather than a constructive energy, which is, I +suspect, likely to become a danger to every one interested in the +maintenance of order, not to say in the stability of property. Mr. +Roosevelt is admittedly a strong and determined man whose instinct is +arbitrary, and yet, if my analysis be sound, we see him, at the supreme +moment of his life, diverted from his chosen path toward centralization +of power, and projected into an environment of, apparently, for the most +part, philanthropists and women, who could hardly conceivably form a +party fit to aid him in establishing a vigorous, consolidated, +administrative system. He must have found the pressure toward +disintegration resistless, and if we consider this most significant +phenomenon, in connection with an abundance of similar phenomena, in +other countries, which indicate social incoherence, we can hardly resist +a growing apprehension touching the future. Nor is that apprehension +allayed if, to reassure ourselves, we turn to history, for there we find +on every side long series of precedents more ominous still. + +Were all other evidence lacking, the inference that radical changes are +at hand might be deduced from the past. In the experience of the +English-speaking race, about once in every three generations a social +convulsion has occurred; and probably such catastrophes must continue to +occur in order that laws and institutions may be adapted to physical +growth. Human society is a living organism, working mechanically, like +any other organism. It has members, a circulation, a nervous system, and +a sort of skin or envelope, consisting of its laws and institutions. +This skin, or envelope, however, does not expand automatically, as it +would had Providence intended humanity to be peaceful, but is only +fitted to new conditions by those painful and conscious efforts which we +call revolutions. Usually these revolutions are warlike, but sometimes +they are benign, as was the revolution over which General Washington, +our first great "Progressive," presided, when the rotting Confederation, +under his guidance, was converted into a relatively excellent +administrative system by the adoption of the Constitution. + +Taken for all in all, I conceive General Washington to have been the +greatest man of the eighteenth century, but to me his greatness chiefly +consists in that balance of mind which enabled him to recognize when an +old order had passed away, and to perceive how a new order could be best +introduced. Joseph Story was ten years old in 1789 when the Constitution +was adopted; his earliest impressions, therefore, were of the +Confederation, and I know no better description of the interval just +subsequent to the peace of 1783, than is contained in a few lines in his +dissenting opinion in the Charles River Bridge Case:-- + +"In order to entertain a just view of this subject, we must go back to +that period of general bankruptcy, and distress and difficulty +(1785).... The union of the States was crumbling into ruins, under the +old Confederation. Agriculture, manufactures, and commerce were at their +lowest ebb. There was infinite danger to all the States from local +interests and jealousies, and from the apparent impossibility of a much +longer adherence to that shadow of a government, the Continental +Congress. And even four years afterwards, when every evil had been +greatly aggravated, and civil war was added to other calamities, the +Constitution of the United States was all but shipwrecked in passing +through the state conventions."[1] + +This crisis, according to my computation, was the normal one of the +third generation. Between 1688 and 1765 the British Empire had +physically outgrown its legal envelope, and the consequence was a +revolution. The thirteen American colonies, which formed the western +section of the imperial mass, split from the core and drifted into +chaos, beyond the constraint of existing law. Washington was, in his +way, a large capitalist, but he was much more. He was not only a wealthy +planter, but he was an engineer, a traveller, to an extent a +manufacturer, a politician, and a soldier, and he saw that, as a +conservative, he must be "Progressive" and raise the law to a power high +enough to constrain all these thirteen refractory units. For Washington +understood that peace does not consist in talking platitudes at +conferences, but in organizing a sovereignty strong enough to coerce its +subjects. + +The problem of constructing such a sovereignty was the problem which +Washington solved, temporarily at least, without violence. He prevailed +not only because of an intelligence and elevation of character which +enabled him to comprehend, and to persuade others, that, to attain a +common end, all must make sacrifices, but also because he was supported +by a body of the most remarkable men whom America has ever produced. Men +who, though doubtless in a numerical minority, taking the country as a +whole, by sheer weight of ability and energy, achieved their purpose. + +Yet even Washington and his adherents could not alter the limitations +of the human mind. He could postpone, but he could not avert, the impact +of conflicting social forces. In 1789 he compromised, but he did not +determine the question of sovereignty. He eluded an impending conflict +by introducing courts as political arbitrators, and the expedient worked +more or less well until the tension reached a certain point. Then it +broke down, and the question of sovereignty had to be settled in +America, as elsewhere, on the field of battle. It was not decided until +Appomattox. But the function of the courts in American life is a subject +which I shall consider hereafter. + +If the invention of gunpowder and printing in the fourteenth and +fifteenth centuries presaged the Reformation of the sixteenth, and if +the Industrial Revolution of the eighteenth was the forerunner of +political revolutions throughout the Western World, we may well, after +the mechanical and economic cataclysm of the nineteenth, cease wondering +that twentieth-century society should be radical. + +Never since man first walked erect have his relations toward nature been +so changed, within the same space of time, as they have been since +Washington was elected President and the Parisian mob stormed the +Bastille. Washington found the task of a readjustment heavy enough, but +the civilization he knew was simple. When Washington lived, the fund of +energy at man's disposal had not very sensibly augmented since the fall +of Rome. In the eighteenth, as in the fourth century, engineers had at +command only animal power, and a little wind and water power, to which +had been added, at the end of the Middle Ages, a low explosive. There +was nothing in the daily life of his age which made the legal and +administrative principles which had sufficed for Justinian insufficient +for him. Twentieth-century society rests on a basis not different so +much in degree, as in kind, from all that has gone before. Through +applied science infinite forces have been domesticated, and the action +of these infinite forces upon finite minds has been to create a tension, +together with a social acceleration and concentration, not only +unparalleled, but, apparently, without limit. Meanwhile our laws and +institutions have remained, in substance, constant. I doubt if we have +developed a single important administrative principle which would be +novel to Napoleon, were he to live again, and I am quite sure that we +have no legal principle younger than Justinian. + +As a result, society has been squeezed, as it were, from its rigid +eighteenth-century legal shell, and has passed into a fourth dimension +of space, where it performs its most important functions beyond the +cognizance of the law, which remains in a space of but three dimensions. +Washington encountered a somewhat analogous problem when dealing with +the thirteen petty independent states, which had escaped from England; +but his problem was relatively rudimentary. Taking the theory of +sovereignty as it stood, he had only to apply it to communities. It was +mainly a question of concentrating a sufficient amount of energy to +enforce order in sovereign social units. The whole social detail +remained unchanged. Our conditions would seem to imply a very +considerable extension and specialization of the principle of +sovereignty, together with a commensurate increment of energy, but +unfortunately the twentieth-century American problem is still further +complicated by the character of the envelope in which this highly +volatilized society is theoretically contained. To attain his object, +Washington introduced a written organic law, which of all things is the +most inflexible. No other modern nation has to consider such an +impediment. + +Moneyed capital I take to be stored human energy, as a coal measure is +stored solar energy; and moneyed capital, under the stress of modern +life, has developed at once extreme fluidity, and an equivalent +compressibility. Thus a small number of men can control it in enormous +masses, and so it comes to pass that, in a community like the United +States, a few men, or even, in certain emergencies, a single man, may +become clothed with various of the attributes of sovereignty. Sovereign +powers are powers so important that the community, in its corporate +capacity, has, as society has centralized, usually found it necessary to +monopolize them more or less absolutely, since their possession by +private persons causes revolt. These powers, when vested in some +official, as, for example, a king or emperor, have been held by him, in +all Western countries at least, as a trust to be used for the common +welfare. A breach of that trust has commonly been punished by +deposition or death. It was upon a charge of breach of trust that +Charles I, among other sovereigns, was tried and executed. In short, the +relation of sovereign and subject has been based either upon consent and +mutual obligation, or upon submission to a divine command; but, in +either case, upon recognition of responsibility. Only the relation of +master and slave implies the status of sovereign power vested in an +unaccountable superior. Nevertheless, it is in a relation somewhat +analogous to the latter, that the modern capitalist has been placed +toward his fellow citizens, by the advances in applied science. An +example or two will explain my meaning. + +High among sovereign powers has always ranked the ownership and +administration of highways. And it is evident why this should have been +so. Movement is life, and the stoppage of movement is death, and the +movement of every people flows along its highways. An invader has only +to cut the communications of the invaded to paralyze him, as he would +paralyze an animal by cutting his arteries or tendons. Accordingly, in +all ages and in all lands, down to the nineteenth century, nations even +partially centralized have, in their corporate capacity, owned and cared +for their highways, either directly or through accountable agents. And +they have paid for them by direct taxes, like the Romans, or by tolls +levied upon traffic, as many mediaeval governments preferred to do. +Either method answers its purpose, provided the government recognizes +its responsibility; and no government ever recognized this +responsibility more fully than did the autocratic government of ancient +Rome. So the absolute regime of eighteenth-century France recognized +this responsibility when Louis XVI undertook to remedy the abuse of +unequal taxation, for the maintenance of the highways, by abolishing the +corvee. + +Toward the middle of the nineteenth century, the application, by +science, of steam to locomotion, made railways a favorite speculation. +Forthwith, private capital acquired these highways, and because of the +inelasticity of the old law, treated them as ordinary chattels, to be +administered for the profit of the owner exclusively. It is true that +railway companies posed as public agents when demanding the power to +take private property; but when it came to charging for use of their +ways, they claimed to be only private carriers, authorized to bargain as +they pleased. Indeed, it grew to be considered a mark of efficient +railroad management to extract the largest revenue possible from the +people, along the lines of least resistance; that is, by taxing most +heavily those individuals and localities which could least resist. And +the claim by the railroads that they might do this as a matter of right +was long upheld by the courts,[2] nor have the judges even yet, after a +generation of revolt and of legislation, altogether abandoned this +doctrine. + +The courts--reluctantly, it is true, and principally at the instigation +of the railways themselves, who found the practice unprofitable--have +latterly discountenanced discrimination as to persons, but they still +uphold discrimination as to localities.[3] Now, among abuses of +sovereign power, this is one of the most galling, for of all taxes the +transportation tax is perhaps that which is most searching, most +insidious, and, when misused, most destructive. The price paid for +transportation is not so essential to the public welfare as its +equality; for neither persons nor localities can prosper when the +necessaries of life cost them more than they cost their competitors. In +towns, no cup of water can be drunk, no crust of bread eaten, no garment +worn, which has not paid the transportation tax, and the farmer's crops +must rot upon his land, if other farmers pay enough less than he to +exclude him from markets toward which they all stand in a position +otherwise equal. Yet this formidable power has been usurped by private +persons who have used it purely selfishly, as no legitimate sovereign +could have used it, and by persons who have indignantly denounced all +attempts to hold them accountable, as an infringement of their +constitutional rights. Obviously, capital cannot assume the position of +an irresponsible sovereign, living in a sphere beyond the domain of law, +without inviting the fate which has awaited all sovereigns who have +denied or abused their trust. + +The operation of the New York Clearing-House is another example of the +acquisition of sovereign power by irresponsible private persons. +Primarily, of course, a clearing-house is an innocent institution +occupied with adjusting balances between banks, and has no relation to +the volume of the currency. Furthermore, among all highly centralized +nations, the regulation of the currency is one of the most jealously +guarded of the prerogatives of sovereignty, because all values hinge +upon the relation which the volume of the currency bears to the volume +of trade. Yet, as everybody knows, in moments of financial panic, the +handful of financiers who, directly or indirectly, govern the +Clearing-House, have it in their power either to expand or to contract +the currency, by issuing or by withdrawing Clearing-House certificates, +more effectually perhaps than if they controlled the Treasury of the +United States. Nor does this power, vast as it is, at all represent the +supremacy which a few bankers enjoy over values, because of their +facilities for manipulating the currency and, with the currency, credit; +facilities, which are used or abused entirely beyond the reach of the +law. + +Bankers, at their conventions and through the press, are wont to +denounce the American monetary system, and without doubt all that they +say, and much more that they do not say, is true; and yet I should +suppose that there could be little doubt that American financiers might, +after the panic of 1893, and before the administration of Mr. Taft, have +obtained from Congress, at most sessions, very reasonable legislation, +had they first agreed upon the reforms they demanded, and, secondly, +manifested their readiness, as a condition precedent to such reforms, to +submit to effective government supervision in those departments of their +business which relate to the inflation or depression of values. They +have shown little inclination to submit to restraint in these +particulars, nor, perhaps, is their reluctance surprising, for the +possession by a very small favored class of the unquestioned privilege, +whether actually used or not, at recurring intervals, of subjecting the +debtor class to such pressure as the creditor may think necessary, in +order to force the debtor to surrender his property to the creditor at +the creditor's price, is a wonder beside which Aladdin's lamp burns dim. + +As I have already remarked, I apprehend that sovereignty is a variable +quantity of administrative energy, which, in civilizations which we +call advancing, tends to accumulate with a rapidity proportionate to the +acceleration of movement. That is to say, the community, as it +consolidates, finds it essential to its safety to withdraw, more or less +completely, from individuals, and to monopolize, more or less strictly, +itself, a great variety of functions. At one stage of civilization the +head of the family administers justice, maintains an armed force for war +or police, wages war, makes treaties of peace, coins money, and, not +infrequently, wears a crown, usually of a form to indicate his +importance in a hierarchy. At a later stage of civilization, companies +of traders play a great part. Such aggregations of private and +irresponsible adventurers have invaded and conquered empires, founded +colonies, and administered justice to millions of human beings. In our +own time, we have seen the assumption of many of the functions of these +and similar private companies by the sovereign. We have seen the East +India Company absorbed by the British Parliament; we have seen the +railways, and the telephone and the telegraph companies, taken into +possession, very generally, by the most progressive governments of the +world; and now we have come to the necessity of dealing with the +domestic-trade monopoly, because trade has fallen into monopoly through +the centralization of capital in a constantly contracting circle of +ownership. + +Among innumerable kinds of monopolies none have been more troublesome +than trade monopolies, especially those which control the price of the +necessaries of life; for, so far as I know, no people, approximately +free, have long endured such monopolies patiently. Nor could they well +have done so without constraint by overpowering physical force, for the +possession of a monopoly of a necessary of life by an individual, or by +a small privileged class, is tantamount to investing a minority, +contemptible alike in numbers and in physical force, with an arbitrary +and unlimited power to tax the majority, not for public, but for private +purposes. Therefore it has not infrequently happened that persistence in +adhering to and in enforcing such monopolies has led, first, to attempts +at regulation, and, these failing, to confiscation, and sometimes to the +proscription of the owners. An example of such a phenomenon occurs to +me which, just now, seems apposite. + +In the earlier Middle Ages, before gunpowder made fortified houses +untenable when attacked by the sovereign, the highways were so dangerous +that trade and manufactures could only survive in walled towns. An +unarmed urban population had to buy its privileges, and to pay for these +a syndicate grew up in each town, which became responsible for the town +ferm, or tax, and, in return, collected what part of the municipal +expenses it could from the poorer inhabitants. These syndicates, called +guilds, as a means of raising money, regulated trade and fixed prices, +and they succeeded in fixing prices because they could prevent +competition within the walls. Presently complaints became rife of guild +oppression, and the courts had to entertain these complaints from the +outset, to keep some semblance of order; but at length the turmoil +passed beyond the reach of the courts, and Parliament intervened. +Parliament not only enacted a series of statutes regulating prices in +towns, but supervised guild membership, requiring trading companies to +receive new members upon what Parliament considered to be reasonable +terms. Nevertheless, friction continued. + +With advances in science, artillery improved, and, as artillery +improved, the police strengthened until the king could arrest whom he +pleased. Then the country grew safe and manufactures migrated from the +walled and heavily taxed towns to the cheap, open villages, and from +thence undersold the guilds. As the area of competition broadened, so +the guilds weakened, until, under Edward VI, being no longer able to +defend themselves, they were ruthlessly and savagely plundered; and +fifty years later the Court of King's Bench gravely held that a royal +grant of a monopoly had always been bad at common law.[4] + +Though the Court's law proved to be good, since it has stood, its +history was fantastic; for the trade-guild was the offspring of trade +monopoly, and a trade monopoly had for centuries been granted habitually +by the feudal landlord to his tenants, and indeed was the only means by +which an urban population could finance its military expenditure. Then, +in due course, the Crown tried to establish its exclusive right to +grant monopolies, and finally Parliament--or King, Lords, and Commons +combined, being the whole nation in its corporate capacity, +--appropriated this monopoly of monopolies as its supreme +prerogative. And with Parliament this monopoly has ever since remained. + +In fine, monopolies, or competition in trade, appear to be recurrent +social phases which depend upon the ratio which the mass and the +fluidity of capital, or, in other words, its energy, bears to the area +within which competition is possible. In the Middle Ages, when the town +walls bounded that area, or when, at most, it was restricted to a few +lines of communication between defensible points garrisoned by the +monopolists,--as were the Staple towns of England which carried on the +wool trade with the British fortified counting-houses in Flanders,--a +small quantity of sluggish capital sufficed. But as police improved, and +the area of competition broadened faster than capital accumulated and +quickened, the competitive phase dawned, whose advent is marked by Darcy +_v_. Allein, decided in the year 1600. Finally, the issue between +monopoly and free trade was fought out in the American Revolution, for +the measure which precipitated hostilities was the effort of England to +impose her monopoly of the Eastern trade upon America. The Boston Tea +Party occurred on December 16, 1773. Then came the heyday of competition +with the acceptance of the theories of Adam Smith, and the political +domination in England, towards 1840, of the Manchester school of +political economy. + +About forty years since, in America at least, the tide would appear once +more to have turned. I fix the moment of flux, as I am apt to do, by a +lawsuit. This suit was the Morris Run Coal Company _v._ Barclay Coal +Company,[5] which is the first modern anti-monopoly litigation that I +have met with in the United States. It was decided in Pennsylvania in +1871; and since 1871, while the area within which competition is +possible has been kept constant by the tariff, capital has accumulated +and has been concentrated and volatilized until, within this republic, +substantially all prices are fixed by a vast moneyed mass. This mass, +obeying what amounts to being a single volition, has its heart in Wall +Street, and pervades every corner of the Union. No matter what price is +in question, whether it be the price of meat, or coal, or cotton cloth, +or of railway transportation, or of insurance, or of discounts, the +inquirer will find the price to be, in essence, a monopoly or fixed +price; and if he will follow his investigation to the end, he will also +find that the first cause in the complex chain of cause and effect which +created the monopoly in that mysterious energy which is enthroned on the +Hudson. + +The presence of monopolistic prices in trade is not always a result of +conscious agreement; more frequently, perhaps, it is automatic, and is +an effect of the concentration of capital in a point where competition +ceases, as when all the capital engaged in a trade belongs to a single +owner. Supposing ownership to be enough restricted, combination is +easier and more profitable than competition; therefore combination, +conscious or unconscious, supplants competition. The inference from the +evidence is that, in the United States, capital has reached, or is +rapidly reaching, this point of concentration; and if this be true, +competition cannot be enforced by legislation. But, assuming that +competition could still be enforced by law, the only effect would be to +make the mass of capital more homogeneous by eliminating still further +such of the weaker capitalists as have survived. Ultimately, unless +indeed society is to dissolve and capital migrate elsewhere, all the +present phenomena would be intensified. Nor would free trade, probably, +have more than a very transitory effect. In no department of trade is +competition freer than in the Atlantic passenger service, and yet in no +trade is there a stricter monopoly price. + +The same acceleration of the social movement which has caused this +centralization of capital has caused the centralization of another form +of human energy, which is its negative: labor unions organize labor as a +monopoly. Labor protests against the irresponsible sovereignty of +capital, as men have always protested against irresponsible sovereignty, +declaring that the capitalistic social system, as it now exists, is a +form of slavery. Very logically, therefore, the abler and bolder labor +agitators proclaim that labor levies actual war against society, and +that in that war there can be no truce until irresponsible capital has +capitulated. Also, in labor's methods of warfare the same phenomena +appear as in the autocracy of capital. Labor attacks capitalistic +society by methods beyond the purview of the law, and may, at any +moment, shatter the social system; while, under our laws and +institutions, society is helpless. + +Few persons, I should imagine, who reflect on these phenomena, fail to +admit to themselves, whatever they may say publicly, that present social +conditions are unsatisfactory, and I take the cause of the stress to be +that which I have stated. We have extended the range of applied science +until we daily use infinite forces, and those forces must, apparently, +disrupt our society, unless we can raise the laws and institutions which +hold society together to an energy and efficiency commensurate to them. +How much vigor and ability would be required to accomplish such a work +may be measured by the experience of Washington, who barely prevailed in +his relatively simple task, surrounded by a generation of extraordinary +men, and with the capitalistic class of America behind him. Without the +capitalistic class he must have failed. Therefore one most momentous +problem of the future is the attitude which capital can or will assume +in this emergency. + +That some of the more sagacious of the capitalistic class have +preserved that instinct of self-preservation which was so conspicuous +among men of the type of Washington, is apparent from the position taken +by the management of the United States Steel Company, and by the +Republican minority of the Congressional Committee which recently +investigated the Steel Company; but whether such men very strongly +influence the genus to which they belong is not clear. If they do not, +much improvement in existing conditions can hardly be anticipated. + +If capital insists upon continuing to exercise sovereign powers, without +accepting responsibility as for a trust, the revolt against the existing +order must probably continue, and that revolt can only be dealt with, as +all servile revolts must be dealt with, by physical force. I doubt, +however, if even the most ardent and optimistic of capitalists would +care to speculate deeply upon the stability of any government capital +might organize, which rested on the fundamental principle that the +American people must be ruled by an army. On the other hand any +government to be effective must be strong. It is futile to talk of +keeping peace in labor disputes by compulsory arbitration, if the +government has not the power to command obedience to its arbitrators' +decree; but a government able to constrain a couple of hundred thousand +discontented railway employees to work against their will, must differ +considerably from the one we have. Nor is it possible to imagine that +labor will ever yield peaceful obedience to such constraint, unless +capital makes equivalent concessions,--unless, perhaps, among other +things, capital consents to erect tribunals which shall offer relief to +any citizen who can show himself to be oppressed by the monopolistic +price. In fine, a government, to promise stability in the future, must +apparently be so much more powerful than any private interest, that all +men will stand equally before its tribunals; and these tribunals must be +flexible enough to reach those categories of activity which now lie +beyond legal jurisdiction. If it be objected that the American people +are incapable of an effort so prodigious, I readily admit that this may +be true, but I also contend that the objection is beside the issue. What +the American people can or cannot do is a matter of opinion, but that +social changes are imminent appears to be almost certain. Though these +changes cannot be prevented, possibly they may, to a degree, be guided, +as Washington guided the changes of 1789. To resist them perversely, as +they were resisted at the Chicago Convention of 1912, can only make the +catastrophe, when it comes, as overwhelming as was the consequent defeat +of the Republican party. + +Approached thus, that Convention of 1912 has more than a passing +importance, since it would seem to indicate the ordinary phenomenon, +that a declining favored class is incapable of appreciating an +approaching change of environment which must alter its social status. I +began with the proposition that, in any society which we now understand, +civilization is equivalent to order, and the evidence of the truth of +the proposition is, that amidst disorder, capital and credit, which +constitute the pith of our civilization, perish first. For more than a +century past, capital and credit have been absolute, or nearly so; +accordingly it has not been the martial type which has enjoyed +sovereignty, but the capitalistic. The warrior has been the capitalists' +servant. But now, if it be true that money, in certain crucial +directions, is losing its purchasing power, it is evident that +capitalists must accept a position of equality before the law under the +domination of a type of man who can enforce obedience; their own +obedience, as well as the obedience of others. Indeed, it might occur, +even to some optimists, that capitalists would be fortunate if they +could certainly obtain protection for another fifty years on terms as +favorable as these. But at Chicago, capitalists declined even to +consider receding to a secondary position. Rather than permit the advent +of a power beyond their immediate control, they preferred to shatter the +instrument by which they sustained their ascendancy. For it is clear +that Roosevelt's offence in the eyes of the capitalistic class was not +what he had actually done, for he had done nothing seriously to injure +them. The crime they resented was the assertion of the principle of +equality before the law, for equality before the law signified the end +of privilege to operate beyond the range of law. If this principle which +Roosevelt, in theory at least, certainly embodied, came to be rigorously +enforced, capitalists perceived that private persons would be precluded +from using the functions of sovereignty to enrich themselves. There lay +the parting of the ways. Sooner or later almost every successive ruling +class has had this dilemma in one of its innumerable forms presented to +them, and few have had the genius to compromise while compromise was +possible. Only a generation ago the aristocracy of the South +deliberately chose a civil war rather than admit the principle that at +some future day they might have to accept compensation for their slaves. + +A thousand other instances of similar incapacity might be adduced, but I +will content myself with this alone. + +Briefly the precedents induce the inference that privileged classes +seldom have the intelligence to protect themselves by adaptation when +nature turns against them, and, up to the present moment, the old +privileged class in the United States has shown little promise of being +an exception to the rule. + +Be this, however, as it may, and even assuming that the great industrial +and capitalistic interests would be prepared to assist a movement toward +consolidation, as their ancestors assisted Washington, I deem it far +from probable that they could succeed with the large American middle +class, which naturally should aid, opposed, as it seems now to be, to +such a movement. Partially, doubtless, this opposition is born of fear, +since the lesser folk have learned by bitter experience that the +powerful have yielded to nothing save force, and therefore that their +only hope is to crush those who oppress them. Doubtless, also, there is +the inertia incident to long tradition, but I suspect that the +resistance is rather due to a subtle and, as yet, nearly unconscious +instinct, which teaches the numerical majority, who are inimical to +capital, that the shortest and easiest way for them to acquire +autocratic authority is to obtain an absolute mastery over those +political tribunals which we call courts. Also that mastery is being by +them rapidly acquired. So long as our courts retain their present +functions no comprehensive administrative reform is possible, whence I +conclude that the relation which our courts shall hold to politics is +now the fundamental problem which the American people must solve, before +any stable social equilibrium can be attained. + +Theodore Roosevelt's enemies have been many and bitter. They have +attacked his honesty, his sobriety, his intelligence, and his judgment, +but very few of them have hitherto denied that he has a keen instinct +for political strife. Only of late has this gift been doubted, but now +eminent politicians question whether he did not make a capital mistake +when he presented the reform of our courts of law, as expounders of the +Constitution, as one of his two chief issues, in his canvass for a +nomination for a third presidential term. + +After many years of study of, and reflection upon, this intricate +subject I have reached the conviction that, though Mr. Roosevelt may +have erred in the remedy which he has suggested, he is right in the +principle which he has advanced, and in my next chapter I propose to +give the evidence and explain the reasons which constrain me to believe +that American society must continue to degenerate until confusion +supervenes, if our courts shall remain semi-political chambers. + + +FOOTNOTES: + +[1] Charles River Bridge _v_. Warren Bridge, II Peters, 608, 609. + +[2] Fitchburg R.R. _v_. Gage, 12 Gray 393, and innumerable cases +following it. + +[3] See the decisions of the Commerce Court on the Long and Short-Haul +Clause. Atchison, T.&S.F. By. _v_. United States, 191 Federal Rep. 856. + +[4] Darcy _v_. Allein, 11 Rep. 84. + +[5] 68 Pa. 173. + + + + +CHAPTER II + +THE LIMITATIONS OF THE JUDICIAL FUNCTION + + +Taking the human race collectively, its ideal of a court of justice has +been the omniscient and inexorable judgment seat of God. Individually, +on the contrary, they have dearly loved favor. Hence the doctrine of the +Intercession of the Saints, which many devout persons have sincerely +believed could be bought by them for money. The whole development of +civilization may be followed in the oscillation of any given society +between these two extremes, the many always striving to so restrain the +judiciary that it shall be unable to work the will of the favored few. +On the whole, success in attaining to ideal justice has not been quite +commensurate with the time and effort devoted to solving the problem, +but, until our constitutional experiment was tried in America, I think +it had been pretty generally admitted that the first prerequisite to +success was that judges should be removed from political influences. +For the main difficulty has been that every dominant class, as it has +arisen, has done its best to use the machinery of justice for its own +benefit. + +No argument ever has convinced like a parable, and a very famous story +in the Bible will illustrate the great truth, which is the first lesson +that a primitive people learns, that unless the judge can be separated +from the sovereign, and be strictly limited in the performance of his +functions by a recognized code of procedure, the public, as against the +dominant class, has, in substance, no civil rights. The kings of Israel +were judges of last resort. Solomon earned his reputation for wisdom in +the cause in which two mothers claimed the same child. They were indeed +both judge and jury. Also they were prosecuting officers. Also they were +sheriffs. In fine they exercised unlimited judicial power, save in so +far as they were checked by the divine interference usually signified +through some prophet. + +Now David was, admittedly, one of the best sovereigns and judges who +ever held office in Jerusalem, and, in the days of David, Nathan was the +leading prophet of the dominant political party. "And it came to pass +in an eveningtide, that David arose from off his bed, and walked upon +the roof of the king's house: and from the roof he saw a woman washing +herself; and the woman was very beautiful to look upon. And David sent +and enquired after the woman. And one said, Is not this Bath-sheba, the +daughter of Eliam, the wife of Uriah the Hittite? And David sent +messengers, and took her; and she came in unto him, and he lay with her; +... and she returned unto her house." + +Uriah was serving in the army under Joab. David sent for Uriah, and told +him to go home to his wife, but Uriah refused. Then David wrote a letter +to Joab and dismissed Uriah, ordering him to give the letter to Joab. +And David "wrote in the letter, saying, Set ye Uriah in the forefront of +the hottest battle, and retire ye from him, that he may be smitten and +die.... + +"And the men of the city went out and fought with Joab; and there fell +some of the people of the servants of David; and Uriah the Hittite died +also.... But the thing that David had done displeased the Lord. + +"And the Lord sent Nathan unto David. And he came unto him, and said +unto him, There were two men in one city; the one rich and the other +poor. The rich man had exceeding many flocks and herds: + +"But the poor man had nothing, save one little ewe lamb, which he had +bought and nourished up: and it grew up together with him, and with his +children; it did eat of his own meat and drank of his own cup, and lay +in his bosom, and was unto him as a daughter. + +"And there came a traveller unto the rich man, and he spared to take of +his own flock, ... but took the poor man's lamb, and dressed it for the +man that was come to him. + +"And David's anger was greatly kindled against the man; and he said to +Nathan, As the Lord liveth, the man that hath done this thing shall +surely die: ... + +"And Nathan said to David, Thou art the man. Thus saith the Lord God of +Israel ... Now therefore the sword shall never depart from thine house; +because thou has despised me ... Behold, I will raise up evil against +thee out of thine own house, and I will take thy wives before thine +eyes, and give them unto thy neighbor." Here, as the heading to the +Twelfth Chapter of Second Book of Samuel says, "Nathan's parable of the +ewe lamb causeth David to be his own judge," but the significant part of +the story is that Nathan, with all his influence, could not force David +to surrender his prey. David begged very hard to have his sentence +remitted, but, for all that, "David sent and fetched [Bathsheba] to his +house, and she became his wife, and bare him a son." Indeed, she bore +him Solomon. As against David or David's important supporters men like +Uriah had no civil rights that could be enforced. + +Even after the judicial function is nominally severed from the executive +function, so that the sovereign himself does not, like David and +Solomon, personally administer justice, the same result is reached +through agents, as long as the judge holds his office at the will of the +chief of a political party. + +To go no farther afield, every page of English history blazons this +record. Long after the law had taken an almost modern shape, Alice +Perrers, the mistress of Edward III, sat on the bench at Westminster and +intimidated the judges into deciding for suitors who had secured her +services. The chief revenue of the rival factions during the War of the +Roses was derived from attainders, indictments for treason, and +forfeitures, avowedly partisan. Henry VII used the Star Chamber to ruin +the remnants of the feudal aristocracy. Henry VIII exterminated as +vagrants the wretched monks whom he had evicted. The prosecutions under +Charles I largely induced the Great Rebellion; and finally the limit of +endurance was reached when Charles II made Jeffreys Chief Justice of +England in order to kill those who were prominent in opposition. Charles +knew what he was doing. "That man," said he of Jeffreys, "has no +learning, no sense, no manners, and more impudence than ten carted +street-walkers." The first object was to convict Algernon Sidney of +treason. Jeffreys used simple means. Usually drunk, his court resembled +the den of a wild beast. He poured forth on "plaintiffs and defendants, +barristers and attorneys, witnesses and jurymen, torrents of frantic +abuse, intermixed with oaths and curses." The law required proof of an +_overt act_ of treason. Many years before Sidney had written a +philosophical treatise touching resistance by the subject to the +sovereign, as a constitutional principle. But, though the fragment +contained nothing more than the doctrines of Locke, Sidney had +cautiously shown it to no one, and it had only been found by searching +his study. Jeffreys told the jury that if they believed the book to be +Sidney's book, written by him, they must convict for _scribere est +agere_, to write is to commit an overt act. + +A revolution followed upon this and other like convictions, as +revolutions have usually followed such uses of the judicial power. In +that revolution the principle of the limitation of the judicial function +was recognized, and the English people seriously addressed themselves to +the task of separating their courts from political influences, of +protecting their judges by making their tenure and their pay permanent, +and of punishing them by removal if they behaved corruptly, or with +prejudice, or transcended the limits within which their duty confined +them. Jeffreys had legislated when he ruled it to be the law that, to +write words secretly in one's closet, is to commit an overt act of +treason, and he did it to kill a man whom the king who employed him +wished to destroy. This was to transcend the duty of a judge, which is +to expound and not to legislate. The judge may develop a principle, he +may admit evidence of a custom in order to explain the intentions of the +parties to a suit, as Lord Mansfield admitted evidence of the customs of +merchants, but he should not legislate. To do so, as Jeffreys did in +Sidney's case, is tantamount to murder. Jeffreys never was duly punished +for his crimes. He died the year after the Revolution, in the Tower, +maintaining to the last that he was innocent in the sight of God and man +because "all the blood he had shed fell short of the King's command." + +And Jeffreys was perfectly logical and consistent in his attitude. A +judiciary is either an end in itself or a means to an end. If it be +designed to protect the civil rights of citizens indifferently, it must +be free from pressure which will deflect it from this path, and it can +only be protected from the severest possible pressure by being removed +from politics, because politics is the struggle for ascendancy of a +class or a majority. If, on the other hand, the judiciary is to serve as +an instrument for advancing the fortunes of a majority or a dominant +class, as David used the Jewish judiciary, or as the Stuarts used the +English judiciary, then the judicial power must be embodied either in a +military or political leader, like David, who does the work himself, or +in an agent, more or less like Jeffreys, who will obey his orders. In +the colonies the subserviency of the judges to the Crown had been a +standing grievance, and the result of this long and terrible experience, +stretching through centuries both in Europe and America, had been to +inspire Americans with a fear of intrusting power to any man or body of +men. They sought to limit everything by written restrictions. Setting +aside the objection that such a system is mechanically vicious because +it involves excessive friction and therefore waste of energy, it is +obviously futile unless the written restrictions can be enforced, and +enforced in the spirit in which they are drawn. Hamilton, whose instinct +for law resembled genius, saw the difficulty and pointed out in the +_Federalist_ that it is not a writing which can give protection, but +only the intelligence and the sense of justice of the community itself. + +"The truth is, that the general genius of a Government is all that can +be substantially relied upon for permanent effects. Particular +provisions, though not altogether useless, have far less virtue and +efficiency than are commonly ascribed to them; and the want of them will +never be, with men of sound discernment, a decisive objection to any +plan which exhibits the leading characters of a good Government." After +an experience of nearly a century and a quarter we must admit, I think, +that Hamilton was right. In the United States we have carried bills of +right and constitutional limitations to an extreme, and yet, I suppose +that few would care to maintain that, during the nineteenth century, +life and property were safer in America, or crime better dealt with, +than in England, France, or Germany. The contrary, indeed, I take to be +the truth, and I think one chief cause of this imperfection in the +administration of justice will be found to have been the operation of +the written Constitution. For, under the American system, the +Constitution, or fundamental law, is expounded by judges, and this +function, which, in essence, is political, has brought precisely that +quality of pressure on the bench which it has been the labor of a +hundred generations of our ancestors to remove. On the whole the result +has been not to elevate politics, but to lower the courts toward the +political level, a result which conforms to the _a priori_ theory. + +The abstract virtue of the written Constitution was not, however, a +question in issue when Washington and his contemporaries set themselves +to reorganize the Confederation. Those men had no choice but to draft +some kind of a platform on which the states could agree to unite, if +they were to unite peacefully at all, and accordingly they met in +convention and drew the best form of agreement they could; but I more +than suspect that a good many very able Federalists were quite alive to +the defects in the plan which they adopted. + +Hamilton was outspoken in preferring the English model, and I am not +aware that Washington ever expressed a preference for the theory that, +because of a written fundamental law, the court should nullify +legislation. Nor is it unworthy of remark that all foreigners, after a +prolonged and attentive observation of our experiment, have avoided it. +Since 1789, every highly civilized Western people have readjusted their +institutions at least once, yet not one has in this respect imitated +us, though all have borrowed freely from the parliamentary system of +England.[6] + +Even our neighbor, Canada, with no adverse traditions and a population +similar to ours, has been no exception to the rule. The Canadian courts +indeed define the limits of provincial and federal jurisdiction as fixed +under an act of Parliament, but they do not pretend to limit the +exercise of power when the seat of power has been established. I take +the cause of this distrust to be obvious. Although our written +Constitution was successful in its primary purpose of facilitating the +consolidation of the Confederation, it has not otherwise inspired +confidence as a practical administrative device. Not only has constant +judicial interference dislocated scientific legislation, but casting the +judiciary into the vortex of civil faction has degraded it in the +popular esteem. In fine, from the outset, the American bench, because it +deals with the most fiercely contested of political issues, has been an +instrument necessary to political success. Consequently, political +parties have striven to control it, and therefore the bench has always +had an avowed partisan bias. This avowed political or social bias has, I +infer, bred among the American people the conviction that justice is not +administered indifferently to all men, wherefore the bench is not +respected with us as, for instance, it is in Great Britain, where law +and politics are sundered. Nor has the dissatisfaction engendered by +these causes been concealed. On the contrary, it has found expression +through a series of famous popular leaders from Thomas Jefferson to +Theodore Roosevelt. + +The Constitution could hardly have been adopted or the government +organized but for the personal influence of Washington, whose power lay +in his genius for dealing with men. He lost no time or strength in +speculation, but, taking the Constitution as the best implement at hand, +he went to the work of administration by including the representatives +of the antagonistic extremes in his Cabinet. He might as well have +expected fire and water to mingle as Jefferson and Hamilton to +harmonize. Probably he had no delusions on that head when he chose them +for his ministers, and he accomplished his object. He paralyzed +opposition until the new mechanism began to operate pretty regularly, +but he had not an hour to spare. Soon the French Revolution heated +passions so hot that long before Washington's successor was elected the +United States was rent by faction. + +The question which underlay all other questions, down to the Civil War, +was the determination of the seat of sovereignty. Hamilton and the +Federalists held it to be axiomatic that, if the federal government were +to be more than a shadow, it must interpret the meaning of the +instrument which created it, and, if so, that it must signify its +decisions through the courts. Only in this way, they argued, could +written limitations on legislative power be made effective. Only in this +way could statutes which contravened the Constitution be set aside.[7] + +Jefferson was abroad when Hamilton wrote _The Federalist_, but his views +have since been so universally accepted as embodying the opposition to +Hamilton, that they may be conveniently taken as if they had been +published while the Constitution was under discussion. Substantially +the same arguments were advanced by others during the actual debate, if +not quite so lucidly or connectedly then, as afterward by him. + +Very well, said Jefferson, in answer to Hamilton, admitting, for the +moment, that the central government shall define its own powers, and +that the courts shall be the organ through which the exposition shall be +made, both of which propositions I vehemently deny, you have this +result: The judges who will be called upon to pass upon the validity of +national and state legislation will be plunged in the most heated of +controversies, and in those controversies they cannot fail to be +influenced by the same passions and prejudices which sway other men. In +a word they must decide like legislators, though they will be exempt +from the responsibility to the public which controls other legislators. +Such conditions you can only meet by making the judicial tenure of +office ephemeral, as all legislative tenure is ephemeral. + +It is vain to pretend, continued he, in support of fixity of tenure, +that the greater the pressure on the judge is likely to be, the more +need there is to make him secure. This may be true of judges clothed +with ordinary attributes, like English judges, for, should these try to +nullify the popular will by construing away statutes, Parliament can +instantly correct them, or if Parliament fail in its duty, the +constituencies, at the next election, can intervene. But no one will be +able to correct the American judge who may decline to recognize the law +which would constrain him. Nothing can shake him save impeachment for +what is tantamount to crime, or being overruled by a constitutional +amendment which you have purposely made too hard to obtain to be a +remedy. He is to be judge in his own case without an appeal. + +Nowhere in all his long and masterly defence of the Constitution did +Hamilton show so much embarrassment as here, and because, probably, he +did not himself believe in his own brief. He really had faith in the +English principle of an absolute parliament, restrained, if needful, by +a conservative chamber, like the House of Lords, but not in the total +suspension of sovereignty subject to judicial illumination. Consequently +he fell back on platitudes about judicial high-mindedness, and how +judges could be trusted not to allow political influences to weigh with +them when deciding political questions. Pushed to its logical end, +concluded he, the Jeffersonian argument would prove that there should be +no judges distinct from legislatures.[8] + +Now, at length, exclaimed the Jeffersonian in triumph, you admit our +thesis. You propose to clothe judges with the highest legislative +functions, since you give them an absolute negative on legislation, and +yet you decline to impose on them the responsibility to a constituency, +which constrains other legislators. Clearly you thus make them +autocratic, and in the worst sense, for you permit small bodies of +irresponsible men under pretence of dispensing justice, but really in a +spirit of hypocrisy, to annul the will of the majority of the people, +even though the right of the people to exercise their will, in the +matters at issue, be clearly granted them in the Constitution. + +No, rejoined Hamilton, thus driven to the wall, judges never will so +abuse their trust. The duty of the judge requires him to suppress his +_will_, and exercise his _judgment_ only. The Constitution will be +before him, and he will have only to say whether authority to legislate +on a given subject is granted in that instrument. If it be, the +character of the legislation must remain a matter of legislative +discretion. Besides, you must repose confidence somewhere, and judges, +on the whole, are more trustworthy than legislators. How can you say +that, retorted the opposition, when you, better than most men, know the +line of despotic legal precedents from the Ship Money down to the Writs +of Assistance? + +Looking back upon this initial controversy touching judicial functions +under the Constitution, we can hardly suppose that Hamilton did not +perceive that, in substance, Jefferson was right, and that a bench +purposely constructed to pass upon political questions must be +politically partisan. He knew very well that, if the Federalists +prevailed in the elections, a Federalist President would only appoint +magistrates who could be relied on to favor consolidation. And so the +event proved. General Washington chose John Jay for the first Chief +Justice, who in some important respects was more Federalist than +Hamilton, while John Adams selected John Marshall, who, though one of +the greatest jurists who ever lived, was hated by Jefferson with a +bitter hatred, because of his political bias. As time went on matters +grew worse. Before Marshall died slavery had become a burning issue, and +the slave-owners controlled the appointing power. General Jackson +appointed Taney to sustain the expansion of slavery, and when the +anti-slavery party carried the country with Lincoln, Lincoln supplanted +Taney with Chase, in order that Chase might stand by him in his struggle +to destroy slavery. And as it has been, so must it always be. As long as +the power to enact laws shall hinge on the complexion of benches of +judges, so long will the ability to control a majority of the bench be +as crucial a political necessity as the ability to control a majority in +avowedly representative assemblies. + +Hamilton was one of the few great jurists and administrators whom +America has ever produced, and it is inconceivable that he did not +understand what he was doing. He knew perfectly well that, other things +being equal, the simplest administrative mechanism is the best, and he +knew also that he was helping to make an extremely complicated +mechanism. Not only so, but at the heart of this complexity lay the +gigantic cog of the judiciary, which was obviously devised to stop +movement. He must have had a reason, beyond the reason he gave, for not +only insisting on clothing the judiciary with these unusual political +and legislative attributes, but for giving the judiciary an +unprecedented fixity of tenure. I suspect that he was actuated by some +such considerations as these: + +The Federalists, having pretty good cause to suppose themselves in a +popular minority, purposed to consolidate the thirteen states under a +new sovereign. There were but two methods by which they could prevail; +they could use force, or, to secure assent, they could propose some +system of arbitration. To escape war the Federalists convened the +constitutional convention, and by so doing pledged themselves to +arbitration. But if their plan of consolidation were to succeed, it was +plain that the arbitrator must arbitrate in their favor, for if he +arbitrated as Mr. Jefferson would have wished, the United States under +the Constitution would have differed little from the United States under +the Confederation. The Federalists, therefore, must control the +arbitrator. If the Constitution were to be adopted, Hamilton and every +one else knew that Washington would be the first President, and +Washington could be relied on to appoint a strong Federalist bench. +Hence, whatever might happen subsequently, when the new plan first +should go into operation, and when the danger from insubordination among +the states would probably be most acute, the judiciary would be made to +throw its weight in favor of consolidation, and against disintegration, +and, if it did so, it was essential that it should be protected against +anything short of a revolutionary attack. + +In the convention, indeed, Charles Pinckney of South Carolina suggested +that Congress should be empowered to negative state legislation, but +such an alternative, for obvious reasons, would have been less palatable +to Hamilton, since Congress would be only too likely to fall under the +control of the Jeffersonian party, while a bench of judges, if once well +chosen, might prove to be for many years an "excellent barrier to the +encroachments and oppressions of the representative body."[9] + +I infer that Hamilton and many other Federalists reasoned somewhat thus, +not only from what they wrote, but from the temper of their minds, and, +if they did, events largely justified them. John Jay, Oliver Ellsworth, +and John Marshall were successively appointed to the office of Chief +Justice, nor did the complexion of the Supreme Court change until after +1830. + +What interests us, however, is not so much what the Federalists thought, +or the motives which actuated them, as the effect which the clothing of +the judiciary with political functions has had upon the development of +the American republic, more especially as that extreme measure might +have been avoided, had Pinckney's plan been adopted. Nor, looking back +upon the actual course of events, can I perceive that, so far as the +movement toward consolidation was concerned, the final result would have +varied materially whether Congress or the Supreme Court had exercised +control over state legislation. Marshall might just as well, in the one +case as the other, have formulated his theory of a semi-centralized +administration. He would only have had uniformly to sustain Congress, as +an English judge sustains Parliament. Nor could either Congress or the +Court have reached a definite result without an appeal to force. Either +chamber might expound a theory, but nothing save an army could establish +it. + +For two generations statesmen and jurists debated the relation of the +central to the local sovereignties with no result, for words alone could +decide no such issue. In America, as elsewhere, sovereignty is +determined by physical force. Marshall could not conquer Jefferson, he +could at most controvert Jefferson's theory. This he did, but, in doing +so, I doubt if he were quite true to himself. Jefferson contended that +every state might nullify national legislation, as conversely Pinckney +wished Congress to be given explicitly the power to nullify state +legislation; and Marshall, very sensibly, pointed out that, were +Jefferson's claim carried into practice, it would create "a hydra in +government,"[10] yet I am confident that Marshall did not appreciate +whither his own assertion of authority must lead. In view of the victory +of centralization in the Civil War, I will agree that the Supreme Court +might have successfully maintained a position as arbitrator touching +conflicting jurisdictions, as between the nation and the states, but +that is a different matter from assuming to examine into the wisdom of +the legislation itself. The one function might, possibly, pass by +courtesy as judicial; the other is clearly legislative. + +This distinction only developed after Marshall's death, but the +resentment which impelled Marshall to annul an act of Congress was +roused by the political conflict which preceded the election of 1800, in +which Marshall took a chief part. Apparently he could not resist the +temptation of measuring himself with his old adversary, especially as he +seems to have thought that he could discredit that adversary without +giving him an opportunity to retaliate. + +In 1798 a Federalist Congress passed the Alien and Sedition Acts, whose +constitutionality no Federalist judge ever doubted, but which Jefferson +considered as clearly a violation of the fundamental compact, since they +tended to drive certain states, as he thought, into "revolution and +blood." Under this provocation Jefferson proclaimed that it was both the +right and the duty of any state, which felt itself aggrieved, to +intervene to arrest "the progress of the evil," within her territory, +by declining to execute, or by "nullifying," the objectionable statutes. +As Jefferson wrote the Kentucky Resolutions in 1798 and was elected +President in 1800, the people at least appeared to have sustained him in +his exposition of the Constitution, before he entered into office. + +At this distance of time we find it hard to realize what the election of +1800 seemed to portend to those who participated therein. Mr. Jefferson +always described it as amounting to a revolution as profound as, if less +bloody than, the revolution of 1776, and though we maybe disposed to +imagine that Jefferson valued his own advent to power at its full worth, +it must be admitted that his enemies regarded it almost as seriously. +Nor were they without some justification, for Jefferson certainly +represented the party of disintegration. "Nullification" would have been +tantamount to a return to the condition of the Confederation. Besides, +Jefferson not so many years before had written, in defence of Shays's +rebellion, that the tree of Liberty could never flourish unless +refreshed occasionally with the blood of patriots and tyrants. To most +Federalists Jefferson seemed a bloodthirsty demagogue. In 1796 Oliver +Ellsworth had been appointed Chief Justice by General Washington in the +place of Jay, who resigned, and in 1799 John Adams sent Ellsworth as an +envoy to France to try to negotiate a treaty which should reestablish +peace between the two countries. Ellsworth succeeded in his mission, but +the hardships of his journey injured his health, and he, in turn, +resigned in the autumn of 1800. Then Adams offered the Chief Justiceship +to Jay, but Jay would not return to office, and after this the President +selected his Secretary of State, John Marshall, one of the greatest of +the great Virginians, but one of Jefferson's most irreconcilable +enemies. Perhaps at no moment in his life did John Adams demonstrate his +legal genius more convincingly than in this remarkable nomination. Yet +it must be conceded that, in making John Marshall Chief Justice, John +Adams deliberately chose the man whom, of all his countrymen, he thought +to be the most formidable champion of those views which he himself +entertained, and which he conceived that he had been elected President +to advance. Nor was John Adams deceived. For thirty-four years John +Marshall labored ceaselessly to counteract Jefferson's constitutional +principles, while Jefferson always denounced the political partiality of +the federal courts, and above all the "rancorous hatred which Marshall +bears to the government of his country, and ... the cunning and +sophistry within which he is able to enshroud himself."[11] + +No one, at this day, would be disposed to dispute that the Constitution, +as a device to postpone war among the states, at least for a period, was +successful, and that, as I have already pointed out, during the +tentative interval which extended until Appomattox, the Supreme Court +served perhaps as well, in ordinary times, as an arbiter between the +states and the general government, as any which could have been +suggested. So much may be conceded, and yet it remains true, as the +record will show, that when it passed this point and entered into +factional strife, the Supreme Court somewhat lamentably failed, probably +injuring itself and popular respect for law, far more by its errors, +than it aided the Union by its political adjudications. + +Although John Marshall, by common consent, ranks as one of the greatest +and purest of Americans, yet even Marshall had human weaknesses, one of +which was a really unreasonable antipathy to Thomas Jefferson; an +antipathy which, I surmise, must, when Jefferson was inaugurated, have +verged upon contempt. At least Marshall did what cautious men seldom do +when they respect an adversary, he took the first opportunity to pick a +quarrel with a man who had the advantage of him in position. + +In the last days of his presidency John Adams appointed one William +Marbury a justice of the peace for the District of Columbia. The Senate +confirmed the appointment, and the President signed, and John Marshall, +as Secretary of State, sealed Marbury's commission; but in the hurry of +surrendering office the commission was not delivered, and Jefferson +found it in the State Department when he took possession. Resenting +violently these "midnight" appointments, as he called them, Jefferson +directed Mr. Madison, his Secretary of State, to withhold the +commission; and, at the next December term of the Supreme Court, Marbury +moved for a rule to Madison to show cause why he should not be commanded +to deliver to the plaintiff the property to which Marbury pretended to +be entitled. Of course Jefferson declined to appear before Marshall, +through his Secretary of State, and finally, in February, 1803, Marshall +gave judgment, in what was, without any doubt, the most anomalous +opinion he ever delivered, in that it violated all judicial conventions, +for, apparently, no object, save to humiliate a political opponent. + +Marshall had no intention of commanding Madison to surrender the +commission to Marbury. He was too adroit a politician for that. Marshall +knew that he could not compel Jefferson to obey such a writ against his +will, and that in issuing the order he would only bring himself and his +court into contempt. What he seems to have wished to do was to give +Jefferson a lesson in deportment. Accordingly, instead of dismissing +Marbury's suit upon any convenient pretext, as, according to legal +etiquette, he should have done if he had made up his mind to decide +against the plaintiff, and yet thought it inexpedient to explain his +view of the law, he began his opinion with a long and extra-judicial +homily, first on Marbury's title to ownership in the commission, and +then on civil liberty. Having affirmed that Marbury's right to his +office vested when the President had signed, and the Secretary of State +had sealed the instrument, he pointed out that withholding the property +thus vested was a violation of civil rights which could be examined in a +court of justice. Were it otherwise, the Chief Justice insisted, the +government of the United States could not be termed a government of laws +and not of men. + +All this elaborate introduction was in the nature of a solemn lecture by +the Chief Justice of the Supreme Court to the President of the United +States upon his faulty discharge of his official duties. Having eased +his mind on this head, Marshall went on, very dexterously indeed, but +also very palpably, to elude the consequences of his temerity. He +continued: The right of property being established, and the violation of +that right clear, it is plain that a wrong has been committed, and it +only remains to determine whether that wrong can be redressed under this +form of procedure. We are of opinion that it cannot, because Congress +has no constitutional power to confer upon the Supreme Court original +jurisdiction in this class of litigation. In the lower courts alone can +the relief prayed for be obtained. + +Of all the events of Marshall's life this controversy with Jefferson +seems to me the most equivocal, and it was a direct effect of a +constitutional system which has permitted the courts to become the +censor of the political departments of the government. Marshall, +probably, felt exasperated by Jefferson's virulence against these final +appointments made by John Adams, while Marshall was Secretary of State, +and for which he may have felt himself, in part, responsible. Possibly, +even, he may have taken some of Jefferson's strictures as aimed at +himself. At all events he went to extreme lengths in retaliation. He +might have dismissed the litigation in a few words by stating that, +whatever the abstract rights of the parties might have been, the Supreme +Court had no power to constrain the President in his official functions; +but he yielded to political animosity. Then, having taken a position +practically untenable, he had to find an avenue of retreat, and he found +it by asserting a supervisory jurisdiction over Congress, a step which, +even at that early period, was most hazardous.[12] + +In reality Jefferson's temper, far from being vindictive and +revolutionary, as his enemies believed, was rather gentle and timid, but +he would have been more than mortal had he endured such an insult in +silence. Nor could he, perhaps, have done so without risking the respect +of his followers. So he decided on reprisals, and a scheme was matured +among influential Virginians, like John Randolph and Senator William +Giles, to purge the Supreme Court of Federalists. Among the associate +justices of this court was Samuel Chase, a signer of the Declaration of +Independence and an able lawyer, but an arrogant and indiscreet +partisan. Chase had made himself obnoxious on various public occasions +and so was considered to be the best subject to impeach; but if they +succeeded with him the Jeffersonians proclaimed their intention of +removing all his brethren seriatim, including the chief offender of all, +John Marshall. One day in December, 1804, Senator Giles, of Virginia, +in a conversation which John Quincy Adams has reported in his diary, +discussed the issue at large, and that conversation is most apposite +now, since it shows how early the inevitable tendency was developed to +make judges who participate in political and social controversies +responsible to the popular will. The conversation is too long to extract +in full, but a few sentences will convey its purport:-- + +"He treated with the utmost contempt the idea of an _independent_ +judiciary.... And if the judges of the Supreme Court should dare, _as +they had done_, to declare an act of Congress unconstitutional, or to +send a mandamus to the Secretary of State, _as they had done_, it was +the undoubted right of the: House of Representatives to impeach them, +and of the Senate to remove them, for giving such opinions, however +honest or sincere they may have been in entertaining them. * * * And a +removal by impeachment was nothing more than a declaration by Congress +to this effect: You hold dangerous opinions, and if you are suffered to +carry them into effect you will work the destruction of the nation. _We +want your offices_, for the purpose of giving them to men who will fill +them better."[13] + +Jefferson, though he controlled a majority in the Senate, failed by a +narrow margin to obtain the two-thirds vote necessary to convict Chase. +Nevertheless, he accomplished his object. Chase never recovered his old +assurance, and Marshall never again committed a solecism in judicial +manners. On his side, after the impeachment, Jefferson showed +moderation. He might, if he had been malevolent, without doubt, have +obtained an act of Congress increasing the membership of the Supreme +Court enough to have put Marshall in a minority. Then by appointing men +like Giles he could have compelled Marshall to resign. He did nothing of +the kind. He spared the Supreme Court, which he might have overthrown, +and contented himself with waiting until time should give him the +opportunity to correct the political tendencies of a body of men whom he +sincerely regarded as a menace to, what he considered, popular +institutions. Thus the ebullition caused by Marshall's acrimony toward +Jefferson, because of Jefferson's strictures on the appointments made +by his predecessor subsided, leaving no very serious immediate mischief +behind, save the precedent of the nullification of an act of Congress by +the Supreme Court. That precedent, however, was followed by Marshall's +Democratic successor. And nothing can better illustrate the inherent +vice of the American constitutional system than that it should have been +possible, in 1853, to devise and afterward present to a tribunal, whose +primary purpose was to administer the municipal law, a set of facts for +adjudication, on purpose to force it to pass upon the validity of such a +statute as the Missouri Compromise, which had been enacted by Congress +in 1820, as a sort of treaty of peace between the North and South, and +whose object was the limitation of the spread of slavery. Whichever way +the Court decided, it must have fallen into opprobrium with one-half the +country. In fact, having been organized by the slaveholders to sustain +slavery, it decided against the North, and therefore lost repute with +the party destined to be victorious. I need not pause to criticise the +animus of the Court, nor yet the quality of the law which the Chief +Justice there laid down. It suffices that in the decade which preceded +hostilities no event, in all probability, so exasperated passions, and +so shook the faith of the people of the northern states in the +judiciary, as this decision. Faith, whether in the priest or the +magistrate, is of slow growth, and if once impaired is seldom fully +restored. I doubt whether the Supreme Court has ever recovered from the +shock it then received, and, considered from this point of view, the +careless attitude of the American people toward General Grant's +administration, when in 1871 it obtained the reversal of Hepburn _v_. +Griswold by appointments to the bench, assumes a sombre aspect. + +Of late some sensitiveness has been shown in regard to this transaction, +and a disposition has appeared to defend General Grant and his +Attorney-General against the charge of manipulating the membership of +the bench to suit their own views. At the outset, therefore, I wish to +disclaim any intention of entering into this discussion. To me it is +immaterial whether General Grant and Mr. Hoar did or did not nominate +judges with a view to obtaining a particular judgment. I am concerned +not with what men thought, but with what they did, and with the effect +of their acts at the moment, upon their fellow-citizens. + +Hepburn _v_. Griswold was decided in conference on November 27, 1869, +when eight justices were on the bench. On February 1, following, Justice +Grier resigned, and, on February 7, judgment was entered, the court then +being divided four to three, but Grier having been with the majority, +the vote in reality stood five to three. Two vacancies therefore existed +on February 7, one caused by the resignation of Grier, the other by an +act of Congress which had enlarged the court by one member, and which +had taken effect in the previous December. + +Chief Justice Chase held that the clause of the currency laws of 1862 +and 1863 which made depreciated paper a legal tender for preexisting +debts was unconstitutional. No sooner had the judgment been recorded +than all the world perceived that, if both vacancies should be filled +with men who would uphold the acts, Hepburn _v_. Griswold might be +reversed by a majority of one. + +The Republican party had full control of the government and was united +in vehement support of the laws. On March 21, the second of the two new +judges received his commission, and precisely ten days afterward the +Attorney-General moved for a rehearing, taunting the Chief Justice with +having changed his opinion on this point, and intimating that the issue +was in reality political, and not judicial at all. + +In the December Term following Knox _v_. Lee was argued by the +Attorney-General, and, on May 1, 1871, judgment was entered reversing +Hepburn _v_. Griswold, both the new judges voting with the former +minority, thus creating the necessary majority of one. No one has ever +doubted that what General Grant did coincided with the drift of opinion, +and that the Republican party supported him without inquiring how he had +achieved success.[14] After this it is difficult to suppose that much +respect could remain among the American people for the sanctity of +judicial political decisions, or that a President, at the head of a +popular majority, would incur much odium for intervening to correct +them, as a party measure. + +The last example of judicial interference which I shall mention was the +nullification, in 1895, of a statute of Congress which imposed an income +tax. The states have since set this decision aside by constitutional +amendment, and I should suppose that few would now dispute that the +Court when it so decided made a serious political and social error. As +Mr. Justice White pointed out, the judges undertook to deprive the +people, in their corporate capacity, of a power conceded to Congress "by +universal consensus for one hundred years."[15] These words were used in +the first argument, but on the rehearing the present Chief Justice waxed +warm in remonstrating against the unfortunate position in which his +brethren placed the Court before the nation, protesting with almost +passionate earnestness against the reversal by half-a-dozen judges of +what had been the universally accepted legal, political, and economic +policy of the country solely in order that "invested wealth" might be +read "into the constitution" as a favored and protected class of +property. Mr. Justice White closed by saying that by this act the +Supreme Court had "deprived [the Government] of an inherent attribute of +its being."[16] I might go on into endless detail, but I apprehend +that these cases, which are the most important which have ever arisen on +this issue, suffice for my purpose.[17] I contend that no court can, +because of the nature of its being, effectively check a popular majority +acting through a coordinate legislative assembly, and I submit that the +precedents which I have cited prove this contention. The only result of +an attempt and failure is to bring courts of justice into odium or +contempt, and, in any event, to make them objects of attack by a +dominant social force in order to use them as an instrument, much as +Charles II used Jeffreys. + +The moment we consider the situation philosophically we perceive why +using a court to control a coordinate legislature must, nearly +inevitably, be sooner or later fatal to the court, if it asserts its +prerogative. A court to be a fit tribunal to administer the municipal +law impartially, or even relatively impartially, must be a small body of +men, holding by a permanent and secure tenure, guarded from all pressure +which may unduly influence them. Also they should be men of much +experience and learned in the precedents which should make the rules +which they apply stable and consistent. In short, a court should be +rigid and emotionless. It follows that it must be conservative, for its +members should long have passed that period of youth when the mind is +sensitive to new impressions. Were it otherwise, law would cease to be +cohesive. A legislature is nearly the antithesis of a court. It is +designed to reflect the passions of the voters, and the majority of +voters are apt to be young. Hence in periods of change, when alone +serious clashes between legislatures and courts are likely to occur, as +the social equilibrium shifts the legislature almost certainly will +reflect the rising, the court the sinking power. I take the Dred Scott +Case as an illustration. In 1857 the slaveholding interest had passed +the zenith of high fortune, and was hastening toward its decline. In the +elections of 1858 the Democratic party, which represented slavery, was +defeated. But the Supreme Court had been organized by Democrats who had +been dominant for many years, and it adhered, on the principle laid down +by Jeffreys, to the master which created it. + +Occasionally, it is true, a court has been constructed by a rising +energy, as was the Supreme Court in 1789, but then it is equally +tenacious to the instinct which created it. The history of the Supreme +Court is, in this point of view, eminently suggestive. The Federalist +instinct was constructive, not destructive, and accordingly Marshall's +fame rests on a series of constructive decisions like M'Culloch _v_. +Maryland, Cohens _v_. Virginia, and Gibbons _v_. Odgen. In these +decisions he either upheld actual national legislation, or else the +power of the nation to legislate. Conversely, whenever Marshall or his +successors have sought to obstruct social movement they have not +prospered. Marbury _v_. Madison is not an episode on which any admirer +of Marshall can linger with satisfaction. In theory it may be true, as +Hamilton contended, that, given the fact that a written constitution is +inevitable, a bench of judges is the best tribunal to interpret its +meaning, since the duty of the judge has ever been and is now to +interpret the meaning of written instruments; but it does not follow +from this premise that the judges who should exercise this office should +be the judges who administer the municipal law. In point of fact +experience has proved that, so far as Congress is concerned, the results +of judicial interference have been negative. And it would be well if in +other spheres of American constitutional development, judicial activity +had been always negative. Unfortunately, as I believe, it has extended +into the domain of legislation. I will take the Dred Scott Case once +more to illustrate my meaning. The North found it bad enough for the +Supreme Court to hold that, under the Constitution, Congress could not +exclude slavery from the national territory beyond a certain boundary +which had been fixed by compromise between the North and South. But the +North would have found it intolerable if the Court, while fully +conceding that Congress might so legislate, if the character of the +legislation commended itself to the judges, had held the Missouri +Compromise to be unconstitutional because they thought it +_unreasonable_. Yet this, in substance, is what our courts have done. +And this brings me to the consideration of American courts as +legislative chambers. + + +FOOTNOTES: + +[6] The relation of courts to legislation in European countries has been +pretty fully considered by Brinton Coxe, in _Judicial Power and +Constitutional Legislation_. + +[7] _Federalist_ No. LXXVIII. + +[8] _The Federalist_, No. LXXVIII. + +[9] _The Federalist_, No. LXXVIII. + +[10] Cohens _v_. Virginia, 6 Wheaton 415. + +[11] To Madison, Ford, 9, 275. + +[12] Marshall's constitutional doctrine was not universally accepted, +even in the courts of the northern states, until long afterward. As +eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as +1825, gave a very able dissenting opinion in opposition in Eakin _v_. +Raub, 12 S.&R., 344. + +[13] Memoirs, I, 322. + +[14] Hepburn _v._ Griswold, 8 Wallace 603. Decided in conference on Nov. +27, 1869, more than a month before Grier's resignation. Knox _v_. Lee, +12 Wallace 457. + +[15] 157 U.S. 608. + +[16] Pollock _v_. The Farmers' Loan & Trust Co., 158 U.S. 715. + +[17] In 1889 Mr. J.C. Bancroft Davis compiled a table of the acts of +Congress which up to that time had been held to be unconstitutional. It +is to be found in the Appendix to volume 131 U.S. Reports, page CCXXXV. +Mr. Davis has, however, omitted from his list the Dred Scott Case, +probably for the technical reason that, in 1857, when the cause was +decided, the Missouri Compromise had been repealed. Nevertheless, though +this is true, Tansy's decision hinged upon the invalidity of the law. + +Besides the statutes which I have mentioned in the test, the two most +important, I suppose, which have been annulled, have to me no little +interest. These are the Civil Rights Act of 1875, and the Employers' +Liability Act of 1906. The Civil Rights Act of 1875 grew rapidly +unpopular, and the decision which overturned it coincided with the +strong drift of opinion. The Civil Rights Cases were decided in October, +1883, and Mr. Cleveland was elected President in 1884. Doubtless the law +would have been repealed had the judiciary supported it. Therefore this +adjudication stood. + +On the other hand, the Employers' Liability Act of 1906 was held bad +because Congress undertook to deal with commerce conducted wholly within +the states, and therefore beyond the national jurisdiction. The Court, +consequently, in the Employers' Liability Cases, simply defined the +limits of sovereignty, as a Canadian Court might do; it did not question +the existence of sovereignty itself. In 1908 Congress passed a statute +free from this objection, and the Court, in the Second Employers' +Liability Cases, 223 U.S. 1, sustained the legislation in the most +thoroughgoing manner. I know not where to look for two better +illustrations of my theory. + + + + +CHAPTER III + +AMERICAN COURTS AS LEGISLATIVE CHAMBERS + + +In one point of view many of the greatest of the Federalists were +idealists. They seem sincerely to have believed that they could, by some +form of written words, constrain a people to be honest against their +will, and almost as soon as the new government went into operation they +tested these beliefs by experiment, with very indifferent success. I +take it that jurists like Jay and Marshall held it to be axiomatic that +rules of conduct should be laid down by them which would be applicable +to rich and poor, great and small, alike, and that courts could maintain +such rules against all pressure. Possibly such principles may be +enforced against individuals, but they cannot be enforced against +communities, and it was here that the Federalist philosophy collapsed, +as Hamilton, at least partly, foresaw that it must. + +Sovereigns have always enjoyed immunity from suit by private persons, +unless they have been pleased to assent thereto, not because it is less +wrongful for a sovereign than for an individual to cheat, but because +the sovereign cannot be arrested and the individual can. With the +Declaration of Independence the thirteen colonies became sovereigns. +Petty sovereigns it is true, and singly contemptible in physical force +as against most foreign nations, but none the less tenacious of the +attributes of sovereignty, and especially of the attribute which enabled +them to repudiate their debts. Jay, Marshall, and their like, thought +that they could impose the same moral standard upon the states as upon +private persons; they were unable to do so, but in making the attempt +they involved the American judicial system in a maze of difficulties +whose gravity, I fear, can hardly be exaggerated. Before entering upon +this history, however, I must say a word touching the nature of our law. + +Municipal law, to be satisfactory, should be a body of abstract +principles capable of being applied impartially to all relevant facts, +just as Marshall and Jay held it to be. Where exceptions begin, equality +before the law ends, as I have tried to show by the story of King David +and Uriah, and therefore the great effort of civilization has been to +remove judges from the possibility of being subjected to a temptation, +or to a pressure, which may deflect them from impartiality as between +suitors. In modern civilization, especially, nothing is so fatal to the +principle of order as inequality in the dispensation of justice, and it +would have been reasonable to suppose that Americans, beyond all others, +would have been alive to this teaching of experience, and have +studiously withdrawn their bench from politics. In fact they have +ignored it, and instead they have set their judiciary at the focus of +conflicting forces. The result has been the more unfortunate as the +English system of jurisprudence is ill calculated to bear the strain, it +being inflexible. In theory the English law moves logically from +precedent to precedent, the judge originating nothing, only elaborating +ideas which he has received from a predecessor, and which are binding on +him. If the line of precedents leads to wrongful conclusions, the +legislature must intervene with a statute rectifying the wrong. The +Romans, who were gifted with a higher legal genius than we, managed +better. The praetor, by his edict, suppressed inconvenient precedents, +and hence the Romans maintained flexibility in their municipal law +without falling into confusion. We have nothing to correspond to the +praetor. + +Thus the English system of binding precedents is troublesome enough in a +civilization in chronic and violent flux like modern civilization, even +when applied to ordinary municipal law which may be changed at will by +legislation, but it brings society almost to a stand when applied to the +most vital functions of government, with no means at hand to obtain a +corrective. For the court of last resort having once declared the +meaning of a clause of the Constitution, that meaning remains fixed +forever, unless the court either reverses itself, which is a disaster, +or the Constitution can be amended by the states, which is not only +difficult, but which, even if it be possible, entails years of delay. + +Yet pressing emergencies arise, emergencies in which a settlement of +some kind must almost necessarily be reached somewhat rapidly to avert +very serious disorders, and it has been under this tension, as I +understand American constitutional development, that our courts have +resorted to legislation. Nor is it fair for us to measure the sagacity +of our great jurists by the standard of modern experience. They lived +before the acceleration of movement by electricity and steam. They could +not foresee the rapidity and the profundity of the changes which were +imminent. Hence it was that, in the spirit of great lawyers, who were +also possibly men tinged with a certain enthusiasm for the ideal, they +began their work by ruling on the powers and limitations of sovereignty, +as if they were ruling on the necessity of honest intent in dealings +with one's neighbor. + +In 1789 General Washington is said to have offered John Jay his choice +of offices under the new government, and Jay chose the chief +justiceship, because there he thought he could make his influence felt +most widely. If so he had his wish, and very shortly met with +disappointment. In the August Term of 1792, one Chisholm, a citizen of +South Carolina, sued the State of Georgia for a debt. Georgia declined +to appear, and in February, 1793, Jay, in an elaborate opinion, gave +judgment for Chisholm. Jay was followed by his associates with the +exception of Iredell, J., of North Carolina. Forthwith a ferment began, +and in the very next session of Congress an amendment to the +Constitution was proposed to make such suits impossible. In January, +1798, five years after the case was argued, this amendment was declared +to be adopted, but meanwhile Jay had resigned to become governor of New +York. In December, 1800, he was again offered the chief justiceship by +John Adams, on the resignation of Oliver Ellsworth, but Jay resolutely +declined. I have often wondered whether Jay's mortification at having +his only important constitutional decision summarily condemned by the +people may not have given him a distaste for judicial life. + +The Federalist attempt to enforce on the states a positive rule of +economic morality, therefore, collapsed at once, but it still remained +possible to approach the same problem from its negative side, through +the clause of the Constitution which forbade any state to impair the +validity of contracts, and Marshall took up this aspect of the task +where Jay left it. In Marshall's mind his work was simple. He had only +to determine the nature of a contract, and the rest followed +automatically. All contracts were to be held sacred. Their greater or +less importance was immaterial. + +In 1810 Marshall expounded this general principle in Fletcher _v_. +Peck.[18] "When ... a law is in its nature a contract ... a repeal of +the law cannot devest" rights which have vested under it. A couple of +years later he applied his principle to the extreme case of an unlimited +remission of taxation.[19] The State of New Jersey had granted an +exemption from taxation to lands ceded to certain Indians. Marshall held +that this contract ran with the land, and inured to the benefit of +grantees from the Indians. If the state cared to resume its power of +taxation, it must buy the grant back, and the citizens of New Jersey +must pay for their improvidence. + +Seven years later, in 1810, Marshall may, perhaps, be said to have +reached the culmination of his career, for then he carried his moral +standard to a breaking strain. But, though his theory broke down, +perhaps the most striking evidence of his wonderful intellectual +superiority is that he convinced the Democrat, Joseph Story,--a man who +had been nominated by Madison to oppose him, and of undoubted strength +of character,--of the soundness of his thesis. In 1769 King George III +incorporated certain Trustees of Dartmouth College. The charter was +accepted and both real and personal property were thereupon conveyed to +this corporate body, in trust for educational purposes. In 1816 the +legislature of New Hampshire reorganized the board of trustees against +their will. If the incorporation amounted to a contract, the Court was +clear that this statute impaired it; therefore the only really debatable +issue was whether the grant of a charter by the king amounted to a +contract by him, with his subjects to whom he granted it. After +prolonged consideration Marshall concluded that it did, and I conceive +that, in the eye of history, he was right. Throughout the Middle Ages +corporate privileges of all kinds, but especially municipal corporate +privileges, had been subjects of purchase and sale, and indeed the +mediaeval social system rested on such contracts. So much was this the +case that the right to return members of Parliament from incorporated +boroughs was, as Lord Eldon pointed out in the debates on the Reform +Bill, as much private property "as any of your lordships'" titles and +peerages. + +It was here that Marshall faltered. He felt that the public would not +support him if he held that states could not alter town and county +charters, so he arbitrarily split corporations in halves, protecting +only those which handled exclusively private funds, and abandoning +"instruments of government," as he called them, to the mercy of +legislative assemblies. + +Toward 1832 it became convenient for middle class Englishmen to +confiscate most of the property which the aristocracy had invested in +parliamentary boroughs, and this social revolution was effected without +straining the judicial system, because of the supremacy of Parliament. +In America, at about the same time, it became, in like manner, +convenient to confiscate numerous equally well-vested rights, because, +to have compensated the owners would have entailed a considerable +sacrifice which neither the public nor the promoters of new enterprises +were willing to make. The same end was reached in America as in England, +in spite of Chief Justice Marshall and the Dartmouth College Case, only +in America it was attained by a legal somerset which has disordered the +course of justice ever since. + +In 1697 King William III incorporated Trinity Church in the City of New +York, confirming to the society the possession of a parcel of land, +adjoining the church, to be used as a churchyard for the burial of the +dead. In 1823 the government of New York prohibited interments within +the city limits, thus closing the churchyard for the purposes for which +it had been granted. As compensation was refused, it appeared to be a +clear case of confiscation, and Trinity resisted. In the teeth of recent +precedents the Supreme Court of New York decided that, under the _Police +Power_, the legislature of New York might authorize this sort of +appropriation of private property for sanitary purposes, without paying +the owners for any loss they might thereby sustain.[20] + +The court thus simply dispensed the legislature from obedience to the +law, saying in effect, "although the Constitution forbids impairing +contracts, and although this is a contract which you have impaired, yet, +in our discretion, we suspend the operation of the Constitution, in this +instance, by calling your act an exercise of a power unknown to the +framers of the Constitution." I cannot doubt that Marshall would have +flouted this theory had he lived to pass upon it, but Marshall died in +1835, and the Charles River Bridge Case, in which this question was +first presented to the Supreme Court of the United States, did not come +up until 1837. Then Joseph Story, who remained as the representative of +Marshall's philosophy upon the bench, vehemently protested against the +latitudinarianism of Chief Justice Taney and his associates, but without +producing the slightest effect. + +In 1785 the Massachusetts legislature chartered the Charles River Bridge +Company to build a bridge between Boston and Charlestown, authorizing +it, by way of consideration, to collect tolls for forty years. In 1792 +the franchise was extended to seventy years, when the bridge was to +revert to the Commonwealth. In 1828 the legislature chartered the Warren +Bridge Company, expressly to build a bridge parallel to and practically +adjoining the Charles River Bridge, the Warren Bridge to become a free +bridge after six years. The purpose, of course, was to accelerate +movement by ruining the Charles River Bridge Company. The Charles River +Bridge Company sought to restrain the building of the Warren Bridge as a +breach of contract by the State, but failed to obtain relief in the +state courts, and before the cause could be argued at Washington the +Warren Bridge had become free and had destroyed the value of the Charles +River Bridge, though its franchise had still twenty years to run. As +Story pointed out, no one denied that the charter of the Charles River +Bridge Company was a contract, and, as he insisted, it is only common +sense as well as common justice and elementary law, that contracts of +this character should be reasonably interpreted so far as quiet +enjoyment of the consideration granted is concerned; but all this +availed nothing. The gist of the opposing argument is contained in a +single sentence in the opinion of the Chief Justice who spoke for the +majority of the court: "The millions of property which have been +invested in railroads and canals, upon lines of travel which had been +before occupied by turnpike corporations, will be put in jeopardy" if +this doctrine is to prevail.[21] + +The effect of the adoption by the Supreme Court of the United States of +the New York theory of the Police Power was to vest in the judiciary, by +the use of this catch-word, an almost unparalleled prerogative. They +assumed a supreme function which can only be compared to the Dispensing +Power claimed by the Stuarts, or to the authority which, according to +the Council of Constance, inheres in the Church, to "grant indulgences +for reasonable causes." I suppose nothing in modern judicial history has +ever resembled this assumption; and yet, when we examine it, we find it +to be not only the logical, but the inevitable, effect of those +mechanical causes which constrain mankind to move along the lines of +least resistance. + +Marshall, in a series of decisions, laid down a general principle which +had been proved to be sound when applied by ordinary courts, dealing +with ordinary social forces, and operating under the corrective power of +either a legislature or a praetor, but which had a different aspect +under the American constitutional system. He held that the fundamental +law, embodied in the Constitution, commanded that all contracts should +be sacred. Therefore he, as a judge, had but two questions to resolve: +First, whether, in the case before him, a contract had been proved to +exist. Second, admitting that a contract had been proved, whether it had +also been shown to have been impaired. + +Within ten years after these decisions it had been found in practice +that public opinion would not sustain so rigid an administration of the +law. No legislature could intervene, and a pressure was brought to bear +which the judges could not withstand; therefore, the Court yielded, +declaring that if impairing a contract were, on the whole, for the +public welfare, the Constitution, as Marshall interpreted it, should be +suspended in favor of the legislation which impaired it. They called +this suspension the operation of the "Police Power." It followed, as the +"Police Power" could only come into operation at the discretion of the +Court, that, therefore, within the limits of judicial discretion, +confiscation, however arbitrary and to whatever extent, might go on. In +the energetic language of the Supreme Court of Maine: "This duty and +consequent power override all statute or contract exemptions. The state +cannot free any person or corporation from subjection to this power. +All personal, as well as property rights must be held subject to the +Police Power of the state."[22] + +Once the theory of the Police Power was established it became desirable +to define the limits of judicial discretion, but that proved to be +impossible. It could not be determined in advance by abstract reasoning. +Hence, as each litigation arose, the judges could follow no rule but the +rule of common sense, and the Police Power, translated into plain +English, presently came to signify whatever, at the moment, the judges +happened to think reasonable. Consequently, they began guessing at the +drift of public opinion, as it percolated to them through the medium of +their education and prejudices. Sometimes they guessed right and +sometimes wrong, and when they guessed wrong they were cast aside, as +appeared dramatically enough in the temperance agitation. + +Up to about the middle of the last century the lawfulness of the liquor +business had been unquestioned in the United States, and money had been +invested as freely in it as in any other legitimate enterprise; but, as +the temperance agitation swept over the country, in obedience to the +impulsion given by science to the study of hygiene, dealing in liquor +came to be condemned as a crime. Presently legislatures began to pass +statutes to confiscate, more or less completely, this kind of property, +and sufferers brought their cases before the courts to have the +constitutionality of the acts tested, under the provisions which existed +in all state constitutions, forbidding the taking, by the public, of +private property without compensation, or without due process of law. +Such a provision existed hi the constitution of the State of New York, +adopted in 1846, and it was to invoke the protection of this clause that +one Wynehamer, who had been indicted in 1855, carried his case to the +Court of Appeals in the year 1856. In that cause Mr. Justice Comstock, +who was one of the ablest jurists New York ever produced, gave an +opinion which is a model of judicial' reasoning. He showed conclusively +the absurdity of constitutional restrictions, if due process of law may +be held to mean the enactment of the very statute drawn to work +confiscation.[23] This decision, which represented the profoundest +convictions of men of the calibre of Comstock and Denio, deserves to +rank with Marshall's effort in the Dartmouth College Case. In both +instances the tribunal exerted itself to carry out Hamilton's principle +of judicial duty by exercising its _judgment_ and not its _will_. In +other words, the judges propounded a general rule and then simply +determined whether the set of facts presented to them fell within that +rule. They resolutely declined to legislate by entering upon a +consideration of the soundness or reasonableness of the policy which +underlay the action of the legislature. In the one case as in the other +the effort was unavailing, as Jefferson prophesied that it would be. I +have told of Marshall's overthrow in the Charles River Bridge Case, and +in 1887, after controversies of this category had begun to come before +the Supreme Court of the United States under the Fourteenth Amendment, +Mr. Justice Harlan swept Mr. Justice Comstock aside by quietly ignoring +an argument which was unanswerable.[24] The same series of phenomena +have appeared in regard to laws confiscating property invested in +lotteries, when opinion turned against lotteries, or in occupations +supposed to be unsanitary, as in the celebrated case of the taxing out +of existence of the rendering establishment which had been erected as a +public benefit to relieve the City of Chicago of its offal.[25] In fine, +whenever pressure has reached a given intensity, on one pretext or +another, courts have enforced or dispensed with constitutional +limitations with quite as much facility as have legislatures, and for +the same reasons. The only difference has been that the pressure which +has operated most directly upon courts has not always been the pressure +which has swayed legislatures, though sometimes both influences have +combined. For example, during the Civil War, the courts sanctioned +everything the popular majority demanded under the pretext of the War +Power, as in peace they have sanctioned confiscations for certain +popular purposes, under the name of the Police Power. But then, courts +have always been sensitive to financial influences, and if they have +been flexible in permitting popular confiscation when the path of least +resistance has lain that way, they have gone quite as far in the +reverse direction when the amount of capital threatened has been large +enough to be with them a countervailing force. + +As the federal Constitution originally contained no restriction upon the +states touching the confiscation of the property of their own citizens, +provided contracts were not impaired, it was only in 1868, by the +passage of the Fourteenth Amendment, that the Supreme Court of the +United States acquired the possibility of becoming the censor of state +legislation in such matters. Nor did the Supreme Court accept this +burden very willingly or in haste. For a number of years it labored to +confine its function to defining the limits of the Police Power, +guarding itself from the responsibility of passing upon the +"reasonableness" with which that power was used. It was only by somewhat +slow degrees, as the value of the threatened property grew to be vast, +that the Court was deflected from this conservative course into +effective legislation. The first prayers for relief came from the +Southern states, who were still groaning under reconstruction +governments; but as the Southern whites were then rather poor, their +complaints were neglected. The first very famous cause of this category +is known as the Slaughter House Cases. In 1869 the Carpet Bag government +of Louisiana conceived the plan of confiscating most of the property of +the butchers who slaughtered for New Orleans, within a district about as +large as the State of Rhode Island. The Fourteenth Amendment forbade +states to deprive any person of life, liberty, or property, without due +process of law, and the butchers of New Orleans prayed for protection, +alleging that the manner in which their property had been taken was +utterly lawless. But the Supreme Court declined to interfere, explaining +that the Fourteenth Amendment had been contrived to protect the +emancipated slaves, and not to make the federal judiciary "a perpetual +censor upon all legislation of the states, on the civil rights of their +own citizens, with authority to nullify such as it did not approve."[26] + +Although, even at that relatively early day, this conservatism met with +strong opposition within the Court itself, the pressure of vested wealth +did not gather enough momentum to overcome the inertia of the bench for +nearly another generation. It was the concentration of capital in +monopoly, and the consequent effort by the public to regulate monopoly +prices, which created the stress which changed the legal equilibrium. +The modern American monopoly seems first to have generated that amount +of friction, which habitually finds vent in a great litigation, about +the year 1870; but only some years later did the states enter upon a +determined policy of regulating monopoly prices by law, with the +establishment by the Illinois legislature of a tariff for the Chicago +elevators. The elevator companies resisted, on the ground that +regulation of prices in private business was equivalent to confiscation, +and so in 1876 the Supreme Court was dragged into this fiercest of +controversies, thereby becoming subject to a stress to which no +judiciary can safely be exposed. Obviously two questions were presented +for adjudication: The first, which by courtesy might be termed legal, +was whether the fixing of prices by statute was a prerogative which a +state legislature might constitutionally exercise at all; the second, +which was purely political, was whether, admitting that, in the +abstract, such a power could be exercised by the state, Illinois had, +in this particular case, behaved _reasonably_. The Supreme Court made a +conscientious effort to adhere to the theory of Hamilton, that it +should, in emergencies like this, use its _judgment_ only, and not its +_will_; that it should lay down a rule, not vote on the wisdom of a +policy. So the judges decided that, from time immemorial, the fixing of +prices in certain trades and occupations had been a legislative +function, which they supposed might be classified as a branch of the +Police Power, but they declared that with this expression of opinion +their jurisdiction ended. When it came to asking them to criticise the +propriety of legislation, it was, in substance, proposing that they +should substitute their _will_ for the _will_ of the representatives of +the people, which was impossible. I well remember the stir made by the +case of Munn _v_. Illinois.[27] + +Both in and out of the legal profession, those in harmony with the great +vested interests complained that the Court had shirked its duty. But +these complaints soon ceased, for a movement was in progress which +swept, for the moment, all before it. The great aggregations of capital, +which had been accumulating ever since the Charles River Bridge Case, +not long after Munn _v._ Illinois attained to a point at which they +began to grasp many important prerogatives of sovereignty, and to +impose, what was tantamount to, arbitrary taxation upon a large scale. +The crucial trial of strength came on the contest for control of the +railways, and in that contest concentrated capital prevailed. The +Supreme Court reversed its attitude, and undertook to do that which it +had solemnly protested it could not do. It began to censor legislation +in the interest of the strongest force for the time being, that force +being actually financial. By the year 1800 the railway interest had +expanded prodigiously. Between 1876 and 1890 the investment in railways +had far more than doubled, and, during the last five years of this +period, the increment had been at an average of about $450,000,000 +annually. At this point the majority of the court yielded, as ordinary +political chambers always must yield, to extraordinary pressure. Mr. +Justice Bradley, however, was not an ordinary man. He was, on the +contrary, one of the ablest and strongest lawyers who sat on the federal +bench during the last half of the nineteenth century; and Bradley, like +Story before him, remonstrated against turning the bench of magistrates, +to which he belonged, from a tribunal which should propound general +rules applicable to all material facts, into a jury to find verdicts on +the reasonableness of the votes of representative assemblies. The +legislature of Minnesota, in 1887, passed a statute to regulate railway +rates, and provided that the findings of the commission which it erected +to fix those rates should be final. The Chicago, Milwaukee & St. Paul +Railway contended that this statute was unconstitutional, because it was +unreasonable, and the majority of the Court sustained their +contention.[28] Justices Bradley, Gray, and Lamar dissented, and Bradley +on this occasion delivered an opinion, from which I shall quote a +paragraph or two, since the argument appears to me conclusive, not only +from the point of view of law, but of political expediency and of common +sense:-- + +"I cannot agree to the decision of the court in this case. It +practically overrules Munn _v._ Illinois.... The governing principle of +those cases was that the regulation and settlement of the fares of +railroads and other public accommodations is a legislative prerogative, +and not a judicial one. This is a principle which I regard as of great +importance.... + +"But it is said that all charges should be reasonable, and that none but +reasonable charges can be exacted; and it is urged that what is a +reasonable charge is a judicial question. On the contrary, it is +preeminently a legislative one, involving considerations of policy as +well as of remuneration.... By the decision now made we declare, in +effect, that the judiciary, and not the legislature, is the final +arbiter in the regulation of fares and freights of railroads.... It is +an assumption of authority on the part of the judiciary which, ... it +has no right to make. The assertion of jurisdiction by this court makes +it the duty of every court of general jurisdiction, state or federal, to +entertain complaints [of this nature], for all courts are bound by the +Constitution of the United States, the same as we are." + +There is little to add to these words. When the Supreme Court thus +undertook to determine the reasonableness of legislation it assumed, +under a somewhat thin disguise, the position of an upper chamber, which, +though it could not originate, could absolutely veto most statutes +touching the use or protection of property, for the administration of +modern American society now hinges on this doctrine of judicial +dispensation under the Police Power. Whether it be a regulation of rates +and prices, of hours of labor, of height of buildings, of municipal +distribution of charity, of flooding a cranberry bog, or of prescribing +to sleeping-car porters duties regarding the lowering of upper +berths,--in questions great and small, the courts vote upon the +reasonableness of the use of the Police Power, like any old-fashioned +town meeting. There is no rule of law involved. There is only opinion or +prejudice, or pecuniary interest. The judges admit frankly that this is +so. They avow that they try to weigh public opinion, as well as they +can, and then vote. In 1911 Mr. Justice Holmes first explained that the +Police Power extended to all great public needs, and then went on to +observe that this Police Power, or extraordinary prerogative, might be +put forth by legislatures "in aid of what is sanctioned by usage, or +held by ... preponderant opinion to be ... necessary to the public +welfare."[29] + +A representative chamber reaches its conclusions touching "preponderant +opinion" by a simple process, but the influences which sway courts are +obscurer,--often, probably, beyond the sphere of the consciousness of +the judges themselves. Nor is this the worst; for, as I have already +explained, the very constitution of a court, if it be a court calculated +to do its legitimate work upon a lofty level, precludes it from keeping +pace with the movement in science and the arts. Necessarily it lags some +years behind. And this tendency, which is a benefit in the dispensation +of justice as between private litigants, becomes a menace when courts +are involved in politics. A long line of sinister precedents crowd +unbidden upon the mind. The Court of King's Bench, when it held Hampden +to be liable for the Ship Money, draped the scaffold for Charles I. The +Parliament of Paris, when it denounced Turgot's edict touching the +corvee, threw wide the gate by which the aristocracy of France passed to +the guillotine. The ruling of the Superior Court of the Province of +Massachusetts Bay, in the case of the Writs of Assistance, presaged the +American Revolution; and the Dred Scott decision was the prelude to the +Civil War. + +The capital essential of justice is that, under like conditions, all +should fare alike. The magistrate should be no respecter of persons. The +vice of our system of judicial dispensation is that it discriminates +among suitors in proportion to their power of resistance. This is so +because, under adequate pressure, our courts yield along the path of +least resistance. I should not suppose that any man could calmly turn +over the pages of the recent volumes of the reports of the Supreme Court +of the United States and not rise from the perusal convinced that the +rich and the poor, the strong and the weak, do not receive a common +measure of justice before that judgment seat. Disregarding the +discrimination which is always apparent against those who are unpopular, +or who suffer under special opprobrium, as do liquor dealers, owners of +lotteries, and the like,[30] I will take, nearly at random, a couple of +examples of rate regulation, where tenderness has been shown property in +something approaching to a mathematical ratio to the amount involved. + +In April, 1894, a record was produced before the Supreme Court which +showed that the State of North Dakota had in 1891 established rates for +elevating and storing grain, which rates the defendant, named Brass, who +owned a small elevator, alleged to be, to him in particular, _utterly_ +ruinous, and to be in general unreasonable. He averred that he used his +elevator for the storage of his own grain, that it cost about $3000, +that he had no monopoly, as there were many hundred such elevators in +the state, and, as land fit for the purpose of building elevators was +plenty and cheap, that any man could build an elevator in the town in +which he lived, as well as he; that the rates he charged were +reasonable, and that, were he compelled to receive grain generally at +the rates fixed by the statute, he could not store his own grain. All +these facts were admitted by demurrer, and Brass contended that if any +man's property were ever to be held to be appropriated by the public +without compensation, and under no form of law at all save a predatory +statute, it should be his; but the Supreme Court voted the Dakota +statute to be a reasonable exercise of the Police Power,[31] and +dismissed Brass to his fate. + +The converse case is a very famous one known as Smyth _v._ Ames,[32] +decided four years later, in 1898. In that case it appeared that the +State of Nebraska had, in 1893, reduced freight rates within the state +about twenty-nine per cent, in order to bring them into some sort of +relation to the rates charged in the adjoining State of Iowa, which were +calculated to be forty per cent lower than the Nebraska rates. Several +of the most opulent and powerful corporations of the Union were affected +by this law, among others the exceedingly prosperous and influential +Chicago, Burlington & Quincy Railway. No one pretended that, were the +law to be enforced, the total revenues of the Burlington would be +seriously impaired, nor was it even clear that, were the estimate of +reduction, revenue, and cost confined altogether to the commerce carried +on within the limits of the State of Nebraska, leaving interstate +commerce out of consideration, a loss would be suffered during the +following year. Trade might increase with cheaper rates, or economies +might be made by the company, or both causes and many others of +increased earnings might combine. Corporation counsel, however, argued +that, were the principle of the statute admitted, and should all the +states through which the line passed do the like, ultimately a point +might be reached at which the railway would be unable to maintain, even +approximately, its dividend of eight per cent, and that the creation of +such a possibility was conceding the power of confiscation, and, +therefore, an unreasonable exercise of the Police Power, by the State of +Nebraska. With this argument the Supreme Court concurred. They held the +Nebraska statute to be unreasonable. Very possibly it may have been +unsound legislation, yet it is noteworthy that within three years after +this decision Mr. Hill bought the Chicago, Burlington & Quincy, at the +rate of $200 for every share of stock of the par value of $100, thus +fixing forever, on the community tributary to the road, the burden of +paying a revenue on just double the value of all the stock which it had +been found necessary to issue to build the highway. Even at this price +Mr. Hill is supposed to have made a brilliant bargain. + +This brings me to the heart of my theorem. Ever since Hamilton's time, +it has been assumed as axiomatic, by conservative Americans, that courts +whose function is to expound a written constitution can and do act as a +"barrier to the encroachments and oppressions of the representative +body."[33] I apprehend that courts can perform no such office and that +in assuming attributes beyond the limitations of their being they, as +history has abundantly proved, not only fail in their object, but shake +the foundations of authority, and immolate themselves. Hitherto I have +confined myself to adducing historical evidence to prove that American +courts have, as a whole, been gifted with so little political sagacity +that their interference with legislation, on behalf of particular +suitors, has, in the end, been a danger rather than a protection to +those suitors, because of the animosity which it has engendered. I shall +now go further. For the sake of argument I am willing to admit that the +courts, in the exercise of the dispensing prerogative, called the +Police Power, have always acted wisely, so much so that every such +decree which they have issued may be triumphantly defended upon +economic, moral, or social grounds. Yet, assuming this to be true, +though I think I have shown it to be untrue, the assumption only +strengthens my contention, that our courts have ceased to be true +courts, and are converted into legislative chambers, thereby promising +shortly to become, if they are not already, a menace to order. I take it +to be clear that the function of a legislature is to embody the will of +the dominant social force, for the time being, in a political policy +explained by statutes, and when that policy has reached a certain stage +of development, to cause it to be digested, together with the judicial +decisions relevant to it, in a code. This process of correlation is the +highest triumph of the jurist, and it was by their easy supremacy in +this field of thought, that Roman lawyers chiefly showed their +preeminence as compared with modern lawyers. Still, while admitting this +superiority, it is probably true that the Romans owed much of their +success in codification to the greater permanence of the Roman +legislative tenure of office, and, therefore, stability of +policy,--phenomena which were both probably effects of a slower social +movement among the ancients. The Romans, therefore, had less need than +we of a permanent judiciary to counteract the disintegrating tendency of +redundant legislation; _a fortiori_, of course, they had still less to +isolate the judiciary from political onslaughts which might cause +justice to become a series of exceptions to general principles, rather +than a code of unvarying rules. + +It is precisely because they are, and are intended to be, arenas of +political combat, that legislatures cannot be trustworthy courts, and it +was because this fact was notorious that the founders of this government +tried to separate the legislative from the judicial function, and to +make this separation the foundation of the new republic. They failed, as +I conceive, not because they made their legislatures courts, but +because, under the system they devised, their courts have become +legislatures. A disease, perhaps, the more insidious of the two. +Insidious because it undermines, order, while legislative murder and +confiscation induce reaction. + +If a legislative chamber would act as a court, the first necessity is to +eliminate its legislative character. For example, the House of Lords in +England has long discharged the duties of a tribunal of last resort for +the empire, and with general approbation, but only because, when sitting +as a court, the law lords sit alone. Politicians and political +influences are excluded. Where political influences enter disaster +follows. Hence the infamous renown of political decisions in legal +controversies, such as bills of attainder and _ex post facto_ laws, or +special legislation to satisfy claims which could not be defended before +legitimate courts, or the scandals always attending the trial of +election petitions. The object of true courts is to shield the public +from these and kindred abuses. + +In primitive communities courts are erected to defend the weak against +the strong, by correlating local customs in such wise that some general +principle can be deduced which shall protect the civil rights of those +who cannot protect themselves, against the arbitrary exactions of +powerful neighbors. In no community can every person have equal civil +rights. That is impossible. Civil rights must vary according to status. +But such rights as any person may have, those the courts are bound to +guard indifferently. If the courts do not perform this, their first and +most sacred duty, I apprehend that order cannot be permanently +maintained, for this is equality before the law; and equality before the +law is the cornerstone of order in every modern state. + +I conceive that the lawyers of the age of Washington were the ablest +that America has ever produced. No men ever understood the principle of +equality before the law more thoroughly than they, and after the +establishment of this government a long series of great and upright +magistrates strove, as I have shown, to carry this principle into +effect. Jay and Marshall, Story and Bradley, and many, many more, +struggled, protested, and failed. Failed, as I believe, through no fault +of their own, but because fortune had placed them in a position +untenable for the judge. When plunged in the vortex of politics, courts +must waver as do legislatures, and nothing is to me more painful than to +watch the process of deterioration by which our judges lose the instinct +which should warn them to shun legislation as a breach of trust, and to +cleave to those general principles which permit of no exceptions. To +illustrate my meaning I shall refer to but one litigation, but that one +is so extraordinary that I must deal with it in detail. + +In 1890 the dread of the enhancement of prices by monopoly, as the +Supreme Court itself has explained, caused Congress to pass the famous +Sherman Act, which prohibited indiscriminately all monopolies or +restraints of trade. Presently the government brought a bill to dissolve +an obnoxious railway pool, called the Trans-Missouri Freight +Association, and in 1896 the case came up for adjudication. I have +nothing to say touching the policy involved. I am only concerned with a +series of phenomena, developed through several years, as effects of +pressure acting upon a judiciary, exposed as the judiciary, under our +system, is exposed. + +The Trans-Missouri Case was argued on December 8, 1896, very elaborately +and by the most eminent counsel. After long consideration, and profound +reflection, Mr. Justice Peckham, speaking for the majority of the +tribunal, laid down a general principle in conformity to the legislative +will, precisely as Marshall had laid down a general principle in the +Dartmouth College Case, or Story in the Charles River Bridge Case, or +Waite in Munn _v_. Illinois, or Bradley in the Minnesota Rate Case. Then +the process of agitation immediately began. In the words of Mr. Justice +Harlan, fifteen years later: "But those who were in combinations that +were illegal did not despair. They at once set up the baseless claim +that the decision of 1896 disturbed the 'business interests of the +country,' and let it be known that they would never be content until the +rule was established that would permit interstate commerce to be +subjected to _reasonable_ restraints."[34] + +Other great causes, involving the same issue, were tried, the question +was repeatedly reargued, but the Supreme Court tenaciously adhered to +its general principle, that, under the Sherman Act, _all_ restraints of +trade, or monopolies, were unlawful, and, therefore, the Court had but +two matters before it, first to define a restraint of trade or a +monopoly, second to determine whether the particular combination +complained of fell within that definition. No discretion was permitted. +Judicial duty ended there. + +The Court being found to be inflexible, recourse was had to Congress, +and a bill in the form of an amendment to the Sherman Act was brought +into the Senate authorizing, in substance, those who felt unsafe under +the law, to apply to certain government officials, to be permitted to +produce evidence of the reasonable methods they employed, and, if the +evidence were satisfactory, to receive, what was tantamount to, an +indulgence. The subject thus reopened, the Senate Committee on the +Judiciary went into the whole question of monopoly anew, and in 1909 +Senator Nelson presented an exhaustive report against the proposed +relaxation. Thereupon the Senate indefinitely postponed further +consideration of the amendment. The chief reasons given by Senator +Nelson were summed up in a single sentence: "The defence of reasonable +restraint would be made in every case and there would be as many +different rules of reasonableness as cases, courts, and juries.... To +amend the anti-trust act, as suggested by this bill, would be to +entirely emasculate it, and for all practical purposes render it +nugatory as a remedial statute.... The act as it exists is clear, +comprehensive, certain and highly remedial. It practically covers the +field of federal jurisdiction, and is in every respect a model law. To +destroy or undermine it at the present juncture, ... would be a +calamity. + +"In view of the foregoing, your committee recommend the indefinite +postponement of the bill."[35] + +And so the Senate did indefinitely postpone the bill. + +Matters stood thus when the government brought process to dissolve the +Standard Oil Company, as an unlawful combination. The cause was decided +on May 15, 1911, the Chief Justice speaking for the majority of the +bench, in one of the most suggestive opinions which I have ever read. To +me this opinion, like Taney's opinion in the Charles River Bridge Case, +indicates that the tension had reached the breaking point, the court +yielding in all directions at once, while the dominant preoccupation of +the presiding judge seemed to be to plant his tribunal in such a +position that it could so yield, without stultifying itself hopelessly +before the legal profession and the public. In striving to reach this +position, however, I apprehend that the Chief Justice, unreservedly, +crossed the chasm on whose brink American jurists had been shuddering +for ninety years. The task the Chief Justice assumed was difficult +almost beyond precedent. He proposed to surrender to the vested +interests the principle of _reasonableness_ which they demanded, and +which the tribunal he represented, together with Congress, had refused +to surrender for fifteen years. To pacify the public, which would +certainly resent this surrender, he was prepared to punish two hated +corporations, while he strove to preserve, so far as he could, the +respect of the legal profession and of the public, for the court over +which he presided, by maintaining a semblance of consistency. + +To accomplish these contradictory results, the Chief Justice began, +rather after the manner of Marshall in Marbury _v_. Madison, by an +extra-judicial disquisition. The object of this disquisition was to +justify his admission of the evidence of reasonableness as a defence, +although it was not needful to decide that such evidence must be +admitted in order to dispose of that particular cause. For the Chief +Justice very readily agreed that the Standard Oil Company was, in fact, +an unreasonable restraint of trade, and must be dissolved, no matter +whether it were allowed to prove its reasonable methods or not. +Accordingly, he might have contented himself with stating that, +admitting for the sake of argument but without approving, all the +defendant advanced, he should sustain the government; but to have so +disposed of the case would not have suited his purpose. What the Chief +Justice had it at heart to do was to surrender a fundamental principle, +and yet to appear to make no surrender at all. Hence, he prepared his +preliminary and extra-judicial essay on the human reason, of whose +precise meaning, I must admit, I still, after many perusals, have grave +doubts. I sometimes suspect that the Chief Justice did not wish to be +too explicit. So far as I comprehend the Chief Justice, his chain of +reasoning amounted to something like this: It was true, he observed, +that for fifteen years the Supreme Court had rejected the evidence of +reasonableness which he admitted, and had insisted upon a general +principle which he might be supposed to renounce, but this apparent +discrepancy involved no contradiction. It was only a progression in +thought. For, he continued, the judges who, on various previous +occasions, sustained that general principle, must have reached their +conclusions by the light of reason; to-day we reach a contrary +conclusion, but we also do so by the light of reason; therefore, as all +these decisions are guided by the light of reason they fundamentally +coincide, however much superficially they may seem to differ.[36] + +I have never supposed that this argument carried complete conviction +either to the legal profession, to the public, or to Congress. +Certainly, it did not convince Mr. Justice Harlan, who failed to fathom +it, and bluntly expressed his astonishment in a dissenting opinion in +another cause from which I regret to say I can only quote a couple of +paragraphs, although the whole deserves attentive perusal:-- + +"If I do not misapprehend the opinion just delivered, the Court insists +that what was said in the opinion in the Standard Oil Case, was in +accordance with our previous decisions in the Trans-Missouri and Joint +Traffic Cases, ... if we resort to _reason_. This statement surprises me +quite as much as would a statement that black was white or white was +black." + +"But now the Court, in accordance with what it denominates the 'rule of +reason,' in effect inserts in the act the word 'undue,' which means the +same as 'unreasonable,' and thereby makes Congress say what it did not +say.... And what, since the passage of the act, it has explicitly +refused to say.... In short, the Court now, by judicial legislation, in +effect, amends an Act of Congress relating to a subject over which that +department of the Government has exclusive cognizance."[37] + +The phenomenon which amazed Mr. Justice Harlan is, I conceive, perfectly +comprehensible, if we reflect a little on the conflict of forces +involved, and on the path of least resistance open to an American judge +seeking to find for this conflict, a resultant. The regulation or the +domination of monopoly was an issue going to the foundation of society, +and popular and financial energy had come into violent impact in regard +to the control of prices. Popular energy found vent through Congress, +while the financiers, as financiers always have and always will, took +shelter behind the courts. Congress, in 1890, passed a statute to +constrain monopolies, against which financiers protested as being a +species of confiscation, and which the Chief Justice himself thought +harsh. To this statute the Supreme Court gave a harsh construction, as +the Chief Justice had more than once pointed out, when he was still an +associate upon the bench. From a series of these decisions an appeal had +been made to Congress, and the Senate, in the report from which I have +quoted, had sustained the construction given to the statute by the +majority of his brethren with whom the Chief Justice differed. Since the +last of these decisions, however, the complexion of the bench had been +considerably changed by new appointments, much as it had been after +Hepburn _v_. Griswold, and an opportunity seemed to be presented to +conciliate every one. + +In any other country than the United States, a chief justice so situated +would doubtless have affirmed the old precedents, permitting himself, at +most, to point out the mischief which, he thought, they worked. Not so a +lawyer nurtured under the American constitutional system, which breeds +in the judge the conviction that he is superior to the legislator. His +instinct, under adequate pressure, is always to overrule anything +repugnant to him that a legitimate legislative assembly may have done. +In this instance, had the case been one of first impression, nothing +would have been easier than to have nullified the Sherman Act as an +unreasonable exercise of the Police Power, as judges had been nullifying +statutes of which they disapproved for a couple of generations +previously; but the case was not one of first impression. On the +contrary, the constitutionality of the Sherman Act had been so often +upheld by the judiciary that the Chief Justice himself admitted that so +long as Congress allowed him to use his reason, these "contentions +[were] plainly foreclosed." Therefore, for him the path of least +resistance was to use his _reason_, and, as a magistrate, to amend a +statute which Congress ought to have amended, but had _unreasonably_ +omitted to amend. Such was the final and logical result of the blending +of judicial and legislative functions in a court, as they are blended +under the American constitutional system. Nor is it unworthy of +remark, that the Chief Justice, in abstaining from questioning the +constitutionality of the act, expressly intimated that he did so +because, by the use of his reason, he could make that reasonable and +constitutional which otherwise might be unreasonable and +unconstitutional. The defendants pressed the argument that destroying +the freedom of contract, as the Sherman Law destroyed it, was to +infringe upon the "constitutional guaranty of due process of law." To +this the Chief Justice rejoined: "But the ultimate foundation of all +these arguments is the assumption that reason may not be resorted to in +interpreting and applying the statute.... As the premise is demonstrated +to be unsound by the construction we have given the statute," these +arguments need no further notice.[38] + +Should Congress amend the Sherman Act, as it seems somewhat disposed to +do, by explicitly enacting the rule of the Trans-Missouri Case, a grave +issue would be presented. The Chief Justice might submit, and thus +avert, temporarily at least, a clash; or, he might hold such an +amendment unconstitutional as denying to the Court the right to +administer the law according to due process. A trial of strength would +then be imminent. + +Nearly a century ago, Jefferson wrote to Spencer Roane, "The +Constitution, on this hypothesis, is a mere thing of wax in the hands of +the judiciary, which they may twist and shape into any form they +please."[39] And however much we may recoil from admitting Jefferson's +conclusion to be true, it none the less remains the fact that it has +proved itself to be true, and that the people have recognized it to be +true, and have taken measures to protect themselves by bringing the +judiciary under the same degree of control which they enforce on other +legislators. The progression has been steady and uniform, each advance +toward an assumption of the legislative function by the judiciary having +been counterbalanced by a corresponding extension of authority over the +courts by the people. First came the protest against Marbury and Madison +in the impeachment of Chase, because, as Giles explained, if judges were +to annul laws, the dominant party must have on the bench judges they +could trust. Next the Supreme Court of New York imagined the theory of +the Police Power, which was adopted by the Supreme Court of the United +States in 1837. But it stood to reason that if judges were to suspend +constitutional limitations according to their notions of reasonableness, +the people must have the means of securing judges whose views touching +reasonableness coincided with their own. And behold, within ten years, +by the constitution of 1846, New York adopted an elective judiciary. + +Then followed the Dred Scott Case, the Civil War, and the attack on +legislative authority in Hepburn _v_. Griswold. Straightway the Court +received an admonition which it remembered for a generation. Somewhat +forgetful of this, on May 15, 1911, Chief Justice White gave his opinion +in the Standard Oil Case, which followed hard upon a number of state +decisions intended to override legislation upon several burning social +issues. Forthwith, in 1912, the proposition to submit all decisions +involving a question of constitutional law to a popular vote became an +issue in a presidential election. Only one step farther could be taken, +and that we see being taken all about us. Experience has shown, in New +York and elsewhere, that an election, even for a somewhat short term, +does not bring the judge so immediately under popular control that +decisions objectionable to the majority may not be made. Hence the +recall. The degradation of the judicial function can, in theory at +least, go no farther. Thus the state courts may be said already to be +prostrate, or likely shortly to become prostrate. The United States +courts alone remain, and, should there be a struggle between them and +Congress, the result can hardly be doubted. An event has recently +occurred abroad which we may do well to ponder. + +Among European nations England has long represented intelligent +conservatism, and at the heart of her conservatism lay the House of +Lords. Through many centuries; and under many vicissitudes this ancient +chamber had performed functions of the highest moment, until of late it +had come to occupy a position not dissimilar to that which the Supreme +Court of the United States yet holds. On one side it was the highest +legal tribunal of the Empire, on the other it was a non-representative +assembly, seldom indeed originating important legislation, but enjoying +an absolute veto on legislation sent it from the Commons. One day in a +moment of heated controversy the Lords vetoed a bill on which the +Commons had determined. A dissolution followed and the House of Lords, +as a political power, faded into a shadow; yet, notwithstanding this, +its preeminence as a court has remained intact. Were a similar clash to +occur in America no such result could be anticipated. Supposing a +President, supported by a congressional majority, were to formulate some +policy no more subversive than that which has been formulated by the +present British Cabinet, and this policy were to be resisted, as it +surely would be, by potent financial interests, the conflicting forces +would converge upon the Supreme Court. The courts are always believed to +tend toward conservatism, therefore they are generally supported by the +conservative interest, both here and elsewhere. In this case a dilemma +would be presented. Either the judges would seek to give expression to +"preponderant" popular opinion, or they would legislate. In the one +event they would be worthless as a restraining influence. In the other, +I apprehend, a blow would fall similar to the blow which fell upon the +House of Lords, only it would cut deeper. Shearing the House of Lords of +political power did not dislocate the administration of English justice, +because the law lords are exclusively judges. They never legislate. +Therefore no one denounced them. Not even the wildest radical demanded +that their tenure should be made elective, much less that they should be +subjected to the recall. With us an entirely different problem would be +presented for solution. A tribunal, nominally judicial, would throw +itself across the path of the national movement. It would undertake to +correct a disturbance of the social equilibrium. But what a shifting of +the social equilibrium means, and what follows upon tampering with it, +is a subject which demands a chapter by itself. + + +FOOTNOTES: + +[18] 6 Cranch 135. + +[19] New Jersey _v_. Wilson, 7 Cranch 164; decided in 1812. + +[20] Coates _v_. Mayor of New York, 7 Cowen 585. + +[21] Charles River Bridge _v_. Warren Bridge, 11 Peters 420, 553. + +[22] Boston & Maine Railroad _v_. County Commissioners, 79 Maine 393. + +[23] Wynehamer _v_. The People, 13 N.Y. 393. + +[24] Mugler _v._ Kansas, 133 U.S. 623. + +[25] Fertilizing Co. _v_. Hyde Park, 97 U.S. 659. + +[26] Slaughter House Cases, 16 Wallace 78, decided in 1873. + +[27] 94 U.S. 113. + +[28] Chicago, Milwaukee & St. Paul Ry. _v._ Minnesota, 134 U.S. 461, +decided March 24, 1890. + +[29] Noble State Bank _v._ Haskell, 219 U.S. 104. + +[30] See the extraordinary case of Douglas _v._ Kentucky, 168 U.S. 488, +which must be read in connection with Gregory _v._ Trustees of Shelby +College, 2 Metc. (Kentucky) 589. + +[31] Brass _v._ North Dakota, 133 U.S. 391. + +[32] 169 U.S. 466. + +[33] _The Federalist_, No. LXXVIII. + +[34] 221 U.S. 91. + +[35] 60th Congress, 2d Session, Senate, Report No. 848, Adverse Report +by Mr. Nelson, Amending Anti-trust Act, January 26, 1909, page 11. + +[36] Standard Oil Company _v_. United States, 221 U.S. 1. + +[37] United States _v_. American Tobacco Company, 221 U.S. 191, 192. + +[38] 221 U.S. 69. + +[39] To Spencer Roane, Sept. 6, 1819, Ford, 10, 141. + + + + +CHAPTER IV + +THE SOCIAL EQUILIBRIUM + + +I assume it as self-evident that those who, at any given moment, are the +strongest in any civilization, will be those who are at once the ruling +class, those who own most property, and those who have most influence on +legislation. The weaker will fare hardly in proportion to their +weakness. Such is the order of nature. But, since those are the +strongest through whom nature finds it, for the time being, easiest to +vent her energy, and as the whole universe is in ceaseless change, it +follows that the composition of ruling classes is never constant, but +shifts to correspond with the shifting environment. When this movement +is so rapid that men cannot adapt themselves to it, we call the +phenomenon a revolution, and it is with revolutions that I now have to +do. + +Nothing is more certain than that the intellectual adaptability of the +individual man is very limited. A ruling class is seldom conscious of +its own decay, and most of the worst catastrophes of history have been +caused by an obstinate resistance to change when resistance was no +longer possible. Thus while an incessant alteration in social +equilibrium is inevitable, a revolution is a problem in dynamics, on the +correct solution of which the fortunes of a declining class depend. + +For example, the modern English landlords replaced the military feudal +aristocracy during the sixteenth century, because the landlords had more +economic capacity and less credulity. The men who supplanted the +mediaeval soldiers in Great Britain had no scruple about robbing the +clergy of their land, and because of this quality they prospered +greatly. Ultimately the landlords reached high fortune by controlling +the boroughs which had, in the Middle Ages, acquired the right to return +members to the House of Commons. Their domination lasted long; +nevertheless, about 1760, the rising tide of the Industrial Revolution +brought forward another type of mind. Flushed by success in the +Napoleonic wars the Tories failed to appreciate that the social +equilibrium, by the year 1830, had shifted, and that they no longer +commanded enough physical force to maintain their parliamentary +ascendancy. They thought they had only to be arrogant to prevail, and so +they put forward the Duke of Wellington as their champion. They could +hardly have made a poorer choice. As Disraeli has very truly said, "His +Grace precipitated a revolution which might have been delayed for half a +century, and need never have occurred in so aggravated a form." The +Duke, though a great general, lacked knowledge of England. He began by +dismissing William Huskisson from his Cabinet, who was not only its +ablest member, but perhaps the single man among the Tories who +thoroughly comprehended the industrial age. Huskisson's issue was that +the franchise of the intolerably corrupt East Retford should be given to +Leeds or Manchester. Having got rid of Huskisson, the Duke declared +imperiously that he would concede nothing to the disfranchised +industrial magnates, nor to the vast cities in which they lived. A +dissolution of Parliament followed and in the election the Tories were +defeated. Although Wellington may not have been a sagacious statesman, +he was a capable soldier and he knew when he could and when he could not +physically fight. On this occasion, to again quote Disraeli, "He rather +fled than retired." He induced his friends to absent themselves from the +House of Lords and permit the Reform Bill to become law. Thus the +English Tories, by their experiment with the Duke of Wellington, lost +their boroughs and with them their political preeminence, but at least +they saved themselves, their families, and the rest of their property. +As a class they have survived to this day, although shorn of much of the +influence which they might very probably have retained had they solved +more correctly the problem of 1830. In sum, they were not altogether +impervious to the exigencies of their environment. The French Revolution +is the classic example of the annihilation of a rigid organism, and it +is an example the more worthy of our attention as it throws into +terrible relief the process by which an intellectually inflexible race +may convert the courts of law which should protect their decline into +the most awful engine for their destruction. + +The essence of feudalism was a gradation of rank, in the nature of +caste, based upon fear. The clergy were privileged because the laity +believed that they could work miracles, and could dispense something +more vital even than life and death. The nobility were privileged +because they were resistless in war. Therefore, the nobility could +impose all sorts of burdens upon those who were unarmed. During the +interval in which society centralized and acquired more and more a +modern economic form, the discrepancies in status remained, while +commensurately the physical or imaginative force which had once +sustained inequality declined, until the social equilibrium grew to be +extremely unstable. Add to this that France, under the monarchy, was ill +consolidated. The provinces and towns retained the administrative +complexity of an archaic age, even to local tariffs. Thus under the +monarchy privilege and inequality pervaded every phase of life, and, as +the judiciary must be, more or less, the mouthpiece of society, the +judiciary came to be the incarnation of caste. + +Speaking broadly, the judicial office, under the monarchy, was vendible. +In legal language, it was an incorporeal hereditament. It could be +bought and sold and inherited like an advowson, or right to dispose of a +cure of souls in the English Church, or of a commission in the English +army. The system was well recognized and widespread in the eighteenth +century, and worked fairly well with the French judiciary for about +three hundred years, but it was not adapted to an industrial +environment. The judicial career came to be pretty strongly hereditary +in a few families, and though the members of these families were, on the +whole, self-respecting, honest, and learned, they held office in their +own right and not as a public trust. So in England members of the House +of Commons, who sat for nomination boroughs, did not, either in fact or +theory, represent the inhabitants of those boroughs, but patrons; and in +like manner French judges could never learn to regard themselves as the +trustees of the civil rights of a nation, but as a component part of a +class who held a status by private title. Looked at as a problem in +dynamics the inherent vice in all this kind of property and in all this +administrative system, was the decay, after 1760, of the physical force +which had engendered it and defended it. As in England the ascendancy of +the landlords passed away when England turned from an agricultural into +an industrial society, so in France priests and nobles fell into +contempt, when most peasants knew that the Church could neither harm by +its curse nor aid by its blessing, and when commissions in the army were +given to children or favorites, as a sort of pension, while the pith of +the nation was excluded from military command because it could not prove +four quarterings of nobility. Hardly an aristocrat in France had shown +military talent for a generation, while, when the revolution began, men +like Jourdan and Kleber, Ney and Augereau, and a host of other future +marshals and generals had been dismissed from the army, or were eating +out their hearts as petty officers with no hope of advancement. Local +privileges and inequalities were as intolerable as personal. There were +privileged provinces and those administered arbitrarily by the Crown, +there were a multiplicity of internal tariffs, and endless municipal +franchises and monopolies, so much so that economists estimated that, +through artificial restraints, one-quarter of the soil of France lay +waste. Turgot, in his edict on the grain trade, explained that kings in +the past by ordinance, or the police without royal authority, had +compiled a body "of legislation equivalent to a prohibition of bringing +grain into Paris," and this condition was universal. One province might +be starving and another oppressed with abundance. + +Meanwhile, under the stimulant of applied science, centralization went +on resistlessly, and the cost of administration is proportionate to +centralization. To bear the burden of a centralized government taxes +must be equal and movement free, but here was a rapidly centralizing +nation, the essence of whose organism was that taxes should be unequal +and that movement should be restricted. + +As the third quarter of the eighteenth century closed with the death of +Louis XV, all intelligent French administrators recognized the dilemma; +either relief must be given, or France must become insolvent, and +revolution supervene upon insolvency. But for the aristocracy revolution +had no terrors, for they believed that they could crush revolution as +their class had done for a thousand years. + +Robert Turgot was born in 1727, of a respectable family. His father +educated him for the Church, but lack of faith caused him to prefer the +magistracy, and on the death of his father he obtained a small place in +the Court of Parliament. Afterward he became a Master of Requests, and +served for seven years in that judicial position, before he was made +Intendant of the Province of Limousin. Even thus early in life Turgot +showed political sagacity. In an address at the Sorbonne he supported +the thesis that "well-timed reform alone averts revolution." +Distinguishing himself as Intendant, on the death of Louis XV the King +called Turgot to the Council of State, and in August, 1774, Turgot +became Minister of Finance. He came in pledged to reform, and by +January, 1776, he had formulated his plan. In that month he presented to +the King his memorable Six Edicts, the first of which was the most +celebrated state paper he ever wrote. It was the Edict for the +Suppression of the Corvee. The corvee threw the burden of maintaining +the highways on the peasantry by exacting forced labor. It was +admittedly the most hateful, the most burdensome, and the most wasteful +of all the bad taxes of the time, and Turgot, following the precedent of +the Roman Empire, advised instead a general highway impost. The proposed +impost in itself was not considerable, and would not have been +extraordinarily obnoxious to the privileged classes, but for the +principle of equality by which Turgot justified it: "The expenses of +government having for their object the interests of all, all should +contribute to them; and the more advantages a man has, the more that man +should contribute." + +Nor was this the most levelling of Turgot's arguments. He pointed out +that though originally the exemption from taxation, which the nobility +enjoyed, might have been defended on the ground that the nobles were +bound to yield military service without pay, such service had long +ceased to be performed, while on the contrary titles could be bought for +money. Hence every wealthy man became a noble when he pleased, and thus +exemption from taxation had come to present the line of cleavage between +the rich and poor. By this thrust the privileged classes felt themselves +wounded in their vitals, and the Parliament of Paris, the essence of +privilege, assumed their defence. To be binding, the edicts had to be +registered by the Parliament among the laws of France, and Parliament +declined to make registration on the ground that the edicts were +unconstitutional, as subversive of the monarchy and of the principle of +order. The opinion of the court was long, but a single paragraph gives +its purport: "The first rule of justice is to preserve to every one what +belongs to him: this rule consists, not only in preserving the rights of +property, but still more in preserving those belonging to the person, +which arise from the prerogative of birth and of position.... From this +rule of law and equity it follows that every system which, under an +appearance of humanity and beneficence, would tend to establish between +men an equality of duties, and to destroy necessary distinctions, would +soon lead to disorder (the inevitable result of equality), and would +bring about the overturn of civil society." + +This judicial opinion was an enunciation of the archaic law of caste as +opposed to the modern law of equality, and the cataclysm of the French +Revolution hinged upon the incapacity of the French aristocracy to +understand that the environment, which had once made caste a necessity, +had yielded to another which made caste an impossibility. In vain Turgot +and his contemporaries of the industrial type, represented in England +by Adam Smith or even by the younger Pitt, explained that unless taxes +were equalized and movement accelerated, insolvency must supervene, and +that a violent readjustment must follow upon insolvency. With their eyes +open to the consequences, the Nobility and Clergy elected to risk +revolt, because they did not believe that revolt could prevail against +them. Nothing is so impressive in the mighty convulsion which ensued as +the mental opacity of the privileged orders, which caused them to +increase their pressure in proportion as resistance increased, until +finally those who were destined to replace them reorganized the courts, +that they might have an instrument wherewith to slaughter a whole race +down to the women and children. No less drastic method would serve to +temper the rigidity of the aristocratic mind. The phenomenon well repays +an hour of study. + +Insolvency came within a decade after Turgot's fall, as Turgot had +demonstrated that it must come, and an insolvency immediately +precipitated by the rapacity of the court which had most need of +caution. The future Louis XVIII, for example, who was then known as the +Comte de Provence, on one occasion, when the government had made a loan, +appropriated a quarter of it, laughingly observing, "When I see others +hold out their hands, I hold out my hat." In 1787 the need for money +became imperative, and, not daring to appeal to the nation, the King +convoked an assembly of "notables," that is to say of the privileged. +Calonne, the minister, proposed pretty much the measures of Turgot, and +some of these measures the "notables" accepted, but the Parliament of +Paris again intervened and declined to register the laws. The Provincial +Parliaments followed the Parliament of Paris. After this the King had no +alternative but to try the experiment of calling the States-General. +They met on May 4, 1789, and instantly an administrative system, which +no longer rested upon a social centre of gravity, crumbled, carrying the +judiciary with it. At first the three estates sat separately. If this +usage had continued, the Clergy and the Nobles combined would have +annulled every measure voted by the Commons. For six weeks the Commons +waited. Then on June 10, the Abbe Sieyes said, "Let us cut the cable. It +is time." So the Clergy and the Nobility were summoned, and some of the +Clergy obeyed. This sufficed. On motion of Sieyes, the Commons +proclaimed themselves the National Assembly, and the orders fused. +Immediately caste admitted defeat and through its mouthpiece, the King, +commanded the Assembly to dissolve. The Commons refused to dissolve, and +the Nobles prepared for a _coup d'etat._ The foreign regiments, in the +pay of the government, were stationed about Paris, while the Bastille, +which was supposed to be impregnable, was garrisoned with Swiss. In +reply, on July 14, 1789, the citizens of Paris stormed the Bastille. An +unstable social equilibrium had been already converted by pressure into +a revolution. Nevertheless, excentric as the centre of gravity had now +become, it might have been measurably readjusted had the privileged +classes been able to reason correctly from premise to conclusion. Men +like Lafayette and Mirabeau still controlled the Assembly, and if the +King and the Nobility had made terms, probably the monarchy might have +been saved, certainly the massacres would have been averted. As a +decaying class is apt to do, the Nobility did that which was worst for +themselves. Becoming at length partly conscious of a lack of physical +force in France to crush the revolution, a portion of the nobility, led +by the Comte d'Artois, the future Charles X, fled to Germany to seek for +help abroad, while the bolder remained to plan an attack on the +rebellion. On October 1, 1789, a great military banquet was given at +Versailles. The King and Queen with the Dauphin were present. A royalist +demonstration began. The bugles sounded a charge, the officers drew +their swords, and the ladies of the court tore the tricolor from the +soldiers' coats and replaced it with the white cockade. On October 5, a +vast multitude poured out of Paris, and marched to Versailles. The next +day they broke into the palace, killed the guards, and carried the King +and Queen captive to the Tuileries. But Louis was so intellectually +limited that he could not keep faith with those who wished him well. On +July 14, 1790, the King swore, before half a million spectators, to +maintain the new constitution. In that summer he was plotting to escape +to Metz and join the army which had been collected there under the +Marquis de Bouille, while Bouille himself, after the rising at Nancy, +was busy in improving discipline by breaking on the wheel a selection +of the soldiers of the Swiss regiment of Chateauvieux which had refused +to march against Paris on the 14th of July, 1789. In October, 1790, +Louis wrote to the King of Spain and other sovereigns to pay no heed to +his concessions for he only yielded to duress, and all this even as +Mirabeau made his supreme effort to save those who were fixed upon +destroying themselves. Mirabeau sought the King and offered his +services. The court sneered at him as a dupe. The Queen wrote, "We make +use of Mirabeau, but we do not take him seriously." When Mirabeau awoke +to his predicament, he broke out in mixed wrath and scorn: "Of what are +these people thinking? Do they not see the abyss yawning at their feet? +Both the King and Queen will perish, and you will live to see the rabble +spurn their corpses." + +The King and Queen, the Nobility and Clergy, could not see the abyss +which Mirabeau saw, any more than the lawyers could see it, because of +the temper of their minds. In the eye of caste Europe was not primarily +divided into nations to whom allegiance was due, but into superimposed +orders. He who betrayed his order committed the unpardonable crime. +Death were better than that. But to the true aristocrat it was +inconceivable that serfs could ever vanquish nobles in battle. Battle +must be the final test, and the whole aristocracy of Europe was certain, +Frenchmen knew, to succor the French aristocracy in distress. + +So in the winter of 1790 the French fugitives congregated at Coblentz on +the German frontier, persuaded that they were performing a patriotic +duty in organizing an invasion of their country even should their onset +be fatal to their relatives and to their King. And Louis doubted not +that he also did his duty as a trustee of a divine commission when he in +one month swore, before the Assembly, to maintain the constitution +tendered him, and in the next authorized his brother, the Comte +d'Artois, to make the best combination he could among his brother +sovereigns for the gathering of an army to assert his divine +prerogative. On June 21, 1791, Louis fled, with his whole family, to +join the army of Bouille, with intent to destroy the entire race of +traitors from Mirabeau and Lafayette down to the peasants. He managed +so ill that he was arrested at Varennes, and brought back whence he +came, but he lied and plotted still. + +Two years had elapsed between the meeting of the States-General and the +flight to Varennes, and in that interval nature had been busy in +selecting her new favored class. Economists have estimated that the +Church owned one-third of the land of Europe during the Middle Ages. +However this may have been she certainly held a very large part of +France. On April 16, 1790, the Assembly declared this territory to be +national property, and proceeded to sell it to the peasantry by means of +the paper _assignats_ which were issued for the purpose, and were +supposed to be secured upon the land. The sales were generally made in +little lots, as the sales were made of the public domain in Rome under +the Licinian Laws, and with an identical effect. The Emperor of Germany +and the King of Prussia met at Pilnitz in August, 1791, to consider the +conquest of France, and, on the eve of that meeting, the Assembly +received a report which stated that these lands to the value of a +thousand million francs had already been distributed, and that sales +were going on. It was from this breed of liberated husbandmen that +France drew the soldiers who fought her battles and won her victories +for the next five and twenty years. + +Assuming that the type of the small French landholder, both rural and +urban, had been pretty well developed by the autumn of 1791, the crisis +came rapidly, for the confiscations which created this new energy roused +to frenzy, perhaps the most formidable energy which opposed it. The +Church had not only been robbed of her property but had been wounded in +her tenderest part. By a decree of June 12, 1790, the Assembly +transferred the allegiance of the French clergy from the Pope to the +state, and the priesthood everywhere vowed revenge. In May, 1791, the +Marquis de la Rouerie, it is true, journeyed from his home in Brittany +to Germany to obtain the recognition of the royal princes for the +insurrection which he contemplated in La Vendee, but the insurrection +when it occurred was not due so much to him or his kind as to the +influence of the nonjuring priests upon the peasant women of the West. + +The mental condition of the French emigrants at Coblentz during this +summer of 1791 is nothing short of a psychological marvel. They regarded +the Revolution as a jest, and the flight to the Rhine as a picnic. These +beggared aristocrats, male and female, would throw their money away by +day among the wondering natives, and gamble among themselves at night. +If they ever thought of the future it was only as the patricians in +Pompey's camp thought; who had no time to prepare for a campaign against +Caesar, because they were absorbed in distributing offices among +themselves, or in inventing torments to inflict on the rebels. Their +chief anxiety was lest the resistance should be too feeble to permit +them to glut themselves with blood. The creatures of caste, the +emigrants could not conceive of man as a variable animal, or of the +birth of a race of warriors under their eyes. To them human nature +remained constant. Such, they believed, was the immutable will of God. + +So it came to pass that, as the Revolution took its shape, a vast +combination among the antique species came semi-automatically into +existence, pledged to envelop and strangle the rising type of man, a +combination, however, which only attained to maturity in 1793, after +the execution of the King. Leopold II, Emperor of Germany, had hitherto +been the chief restraining influence, both at Pilnitz and at Paris, +through his correspondence with his sister, Marie Antoinette; but +Leopold died on March 1, 1792, and was succeeded by Francis II, a fervid +reactionist and an obedient son of the Church. Then caste fused +throughout Germany, and Prussia and Austria prepared for war. Rouerie +had returned to Brittany and only awaited the first decisive foreign +success to stab the Revolution in the back. England also was ripening, +and the instinct of caste, incarnated in George III, found its +expression through Edmund Burke. In 1790 Burke published his +"Reflections," and on May 6, 1791, in a passionate outbreak in the House +of Commons, he renounced his friendship with Fox as a traitor to his +order and his God. Men of Burke's temperament appreciated intuitively +that there could be no peace between the rising civilization and the +old, one of the two must destroy the other, and very few of them +conceived it to be possible that the enfranchised French peasantry and +the small bourgeoisie could endure the shock of all that, in their +eyes, was intelligent, sacred, and martial in the world. + +Indeed, aristocracy had, perhaps, some justification for arrogance, +since the revolt in France fell to its lowest depth of impotence between +the meeting at Pilnitz in August, 1791, and the reorganization of the +Committee of Public Safety in July, 1793. Until August, 1792, the +executive authority remained with the King, but the court of Louis was +the focus of resistance to the Revolution, and even though a +quasi-prisoner the King was still strong. Monarchy had a firm hold on +liberal nobles like Mirabeau and Lafayette, on adventurers like +Dumouriez, and even on lawyers like Danton who shrank from excessive +cruelty. Had the pure Royalists been capable of enough intellectual +flexibility to keep faith upon any reasonable basis of compromise, even +as late as 1792, the Revolution might have been benign. In June, 1792, +Lafayette, who commanded the army of the North, came to Paris and not +only ventured to lecture the Assembly on its duty, but offered to take +Louis to his army, who would protect him against the Jacobins. The court +laughed at Lafayette as a Don Quixote, and betrayed his plans to the +enemy. "I had rather perish," said the Queen, "than be saved by M. de +Lafayette and his constitutional friends." And in this she only +expressed the conviction which the caste to which she belonged held of +their duty. Cazales protested to the Assembly, "Though the King perish, +let us save the kingdom." The Archduchess Christina wrote to her sister, +Marie Antoinette, "What though he be slain, if we shall triumph," and +Conde, in December, 1790, swore that he would march on Lyons, "come what +might to the King." + +France was permeated with archaic thought which disorganized the +emerging society until it seemingly had no cohesion. To the French +emigrant on the Rhine that society appeared like a vile phantom which +had but to be exorcised to vanish. And the exorcism to which he had +recourse was threats of vengeance, threats which before had terrified, +because they had behind them a force which made them good. Torture had +been an integral part of the old law. The peasant expected it were he +insubordinate. Death alone was held to be too little to inspire respect +for caste. Some frightful spectacle was usually provided to magnify +authority. Thus Bouille broke on the wheel, while the men were yet +alive, every bone in the bodies of his soldiers when they disobeyed him; +and for scratching Louis XV, with a knife, Damiens, after indescribable +agonies, was torn asunder by horses in Paris, before an immense +multitude. The French emigrants believed that they had only to threaten +with a similar fate men like Kellermann and Hoche to make them flee +without a blow. What chiefly concerned the nobles, therefore, was not to +evolve a masterly campaign, but to propound the fundamental principles +of monarchy, and to denounce an awful retribution on insurgents. + +By the middle of July, 1792, the Prussians were ready to march, and +emperors, kings, and generals were meditating manifestoes. Louis sent +the journalist Mallet du Pan to the Duke of Brunswick, the +commander-in-chief, to assist him in his task. On July 24, and on August +4, 1792, the King of Prussia laid down the law of caste as emphatically +as had the Parliament of Paris some twenty years before. On July 25, the +Duke of Brunswick pronounced the doom of the conquered. I come, said the +King of Prussia, to prevent the incurable evils which will result to +France, to Europe and to all mankind from the spread of the spirit of +insubordination, and to this end I shall establish the monarchical power +upon a stable basis. For, he continued in the later proclamation, "the +supreme authority in France being never ceasing and indivisible, the +King could neither be deprived nor voluntarily divest himself of any of +the prerogatives of royalty, because he is obliged to transmit them +entire with his own crown to his successors." + +The Duke of Brunswick's proclamation contained some clauses written +expressly for him by Mallet du Pan, and by Limon the Royalist. + +If the Palace of the Tuileries be forced, if the least violence be +offered to their Majesties, if they are not immediately set at liberty, +then will the King of Prussia and the Emperor of Germany inflict "on +those who shall deserve it the most exemplary and ever-memorable +avenging punishments." + +These proclamations reached Paris on July 28, and simultaneously the +notorious Fersen wrote the Queen of France, "You have the manifesto, and +you should be content." The court actually believed that, having +insulted and betrayed Lafayette and all that body of conservative +opinion which might have steadied the social equilibrium, they could +rely on the fidelity of regiments filled with men against whom the +emigrants and their allies, the Prussians, had just denounced an +agonizing death, such as Bouille's soldiers had undergone, together with +the destruction of their homes. + +All the world knows what followed. The Royalists had been gathering a +garrison for the Tuileries ever since Lafayette's visit, in anticipation +of a trial of strength with the Revolutionists. They had brought thither +the Swiss guard, fifteen hundred strong; the palace was full of Royalist +gentlemen; Mandat, who commanded the National Guard, had been gained +over. The approaches were swept by artillery. The court was very +confident. On the night of August 9, Mandat was murdered, an +insurrectional committee seized the City Hall, and when Louis XVI came +forth to review the troops on the morning of the 10th of August, they +shouted, "Vive la Nation" and deserted. Then the assault came, the Swiss +guard was massacred, the Assembly thrust aside, and the royal family +were seized and conveyed to the Temple. There the monarchy ended. Thus +far had the irrational opposition of a moribund type thrown into +excentricity the social equilibrium of a naturally conservative people. +They were destined to drive it still farther. + +In this supreme moment, while the Prussians were advancing, France had +no stable government and very imperfect means of keeping order. All the +fighting men she could muster had marched to the frontier, and, even so, +only a demoralized mass of levies, under Dumouriez and Kellermann, lay +between the most redoutable regiments of the world and Paris. The +emigrants and the Germans thought the invasion but a military promenade. +At home treason to the government hardly cared to hide itself. During +much of August the streets of Paris swarmed with Royalists who cursed +the Revolution, and with priests more bitter than the Royalists. Under +the windows of Louis, as he lay in the Temple, there were cries of "Long +live the King," and in the prisons themselves the nobles drank to the +allies and corresponded with the Prussians. Finally, Roland, who was +minister, so far lost courage that he proposed to withdraw beyond the +Loire, but Danton would hear of no retreat. "De l'audace," he cried, +"encore de l'audace, et toujours de l'audace." + +The Assembly had not been responsible for the assault on the Tuileries +on August 10, 1792. Filled with conservatives, it lacked the energy. +That movement had been the work of a knot of radicals which had its +centre in Danton's Club of the Cordeliers. Under their impulsion the +sections of Paris chose commissioners who should take possession of the +City Hall and eject the loyalist Council. They did so, and thus Danton +became for a season the Minister of Justice and the foremost man in +France. Danton was a semi-conservative. His tenure of power was the last +possibility of averting the Terror. The Royalists, whom he trusted, +themselves betrayed him, and Danton fell, to be succeeded by Robespierre +and his political criminal courts. Meanwhile, on September 20, 1792, the +Prussian column recoiled before the fire of Kellermann's mob of +"vagabonds, cobblers and tailors," on the slope of Valmy, and with the +victory of Valmy, the great eighteenth-century readjustment of the +social equilibrium of Europe passed into its secondary stage. + + + + +CHAPTER V + +POLITICAL COURTS + + +In the eye of philosophy, perhaps the most alluring and yet illusive of +all the phenomena presented by civilization is that which we have been +considering. Why should a type of mind which has developed the highest +prescience when advancing along the curve which has led it to +ascendancy, be stricken with fatuity when the summit of the curve is +passed, and when a miscalculation touching the velocity of the descent +must be destruction? + +Although this phenomenon has appeared pretty regularly, at certain +intervals, in the development of every modern nation, I conceive its +most illuminating example to be that intellectual limitation of caste +which, during the French Revolution, led to the creation of those +political criminal tribunals which reached perfection with Robespierre. + +When coolly examined, at the distance of a century, the Royalist +combination for the suppression of equality before the law, as finally +evolved in 1792, did not so much lack military intelligence, as it +lacked any approximate comprehension of the modern mind. The Royalists +proposed to reestablish privilege, and to do this they were ready to +immolate, if necessary, their King and Queen, and all of their own order +who stayed at home to defend them. Indeed, speaking generally, they +valued Louis XVI, living, cheaply enough, counting him a more +considerable asset if dead. "What a noise it would make throughout +Europe," they whispered among themselves, "if the rabble should kill the +King." + +Nor did Marie Antoinette delude herself on this score. At Pilnitz, in +1791, the German potentates issued a declaration touching France which +was too moderate to suit the emigrants, who published upon it a +commentary of their own. This commentary was so revolting that when the +Queen read her brother-in-law's signature appended to it, she +exclaimed--"Cain." + +The Royalist plan of campaign was this: They reckoned the energy of the +Revolution so low that they counted pretty confidently, in the summer +of 1792, on the ability of their party to defend the Tuileries against +any force which could be brought against it; but assuming that the +Tuileries could not be defended, and that the King and Queen should be +massacred, they believed that their own position would be improved. +Their monarchical allies would be thereby violently stimulated. It was +determined, therefore, that, regardless of consequences to their +friends, the invading army should cross the border into Lorraine and, +marching by way of Sierk and Rodemach, occupy Chalons. Their entry into +Chalons, which they were confident could not be held against them, +because of the feeling throughout the country, was to be the signal for +the rising in Vendee and Brittany which should sweep down upon Paris +from the rear and make the capital untenable. At Chalons the allies +would be but ninety miles from Paris, and then nothing would remain but +vengeance, and vengeance the more complete the greater the crime had +been. + +All went well with them up to Valmy. The German advance on August 11, +1792, reached Rodemach, and on August 19, the bulk of the Prussian army +crossed the frontier at Redagne. On August 20, 1792, Longwy was +invested and in three days capitulated. In the camp of the Comte +d'Artois "there was not one of us," wrote Las Casas, "who did not see +himself, in a fortnight, triumphant, in his own home, surrounded by his +humbled and submissive vassals." At length from their bivouacs at +Saint-Remy and at Suippes the nobles saw in the distance the towers of +Chalons. + +The panic at Chalons was so great that orders were given to cut the +bridge across the Marne, but it was not until about September 2, that +the whole peril was understood at Paris. It is true that for several +weeks the government had been aware that the West was agitated and that +Rouerie was probably conspiring among the Royalists and nonjuring +priests, but they did not appreciate the imminence of the danger. On +September 3, at latest, Danton certainly heard the details of the plot +from a spy, and it was then, while others quailed, that he incited Paris +to audacity. This was Danton's culmination. + +As we look back, the weakness of the Germans seems to have been +psychological rather than physical. At Valmy the numbers engaged were +not unequal, and while the French were, for the most part, raw and +ill-compacted levies, with few trained officers, the German regiments +were those renowned battalions of Frederick the Great whose onset, +during the Seven Years' War, no adversary had been able to endure. Yet +these redoubtable Prussians fell back in confusion without having +seriously tried the French position, and their officers, apparently, did +not venture to call upon them to charge again. In vain the French +gentlemen implored the Prussian King to support them if they alone +should storm Kellermann's batteries. Under the advice of the Duke of +Brunswick the King decided on retreat. It is said that the Duke had as +little heart in the war as Charles Fox, or, possibly, Pitt, or as his +own troops. And yet he was so strong that Dumouriez, after his victory, +hung back and offered the invaders free passage lest the Germans, if +aroused, should turn on him and fight their way to the Marne. + +To the emigrants the retreat was terrible. It was a disaster from which, +as a compact power, they never recovered. The rising in Vendee +temporarily collapsed with the check at Chalons, and they were left +literally naked unto their enemy. Some of them returned to their homes, +preferring the guillotine to starvation, others, disguised in peasants' +blouses, tried to reach Rouerie in La Vendee, some died from hardship, +some committed suicide, while the bulk regained Liege and there waited +as suppliants for assistance from Vienna. But these unfortunate men, who +had entered so gayly upon a conflict whose significance they could not +comprehend, had by this time lost more than lands and castles. Many of +them had lost wives and children in one of the most frightful butcheries +of history, and a butchery for which they themselves were responsible, +because it was the inevitable and logical effect of their own +intellectual limitations. + +When, after the affair of August 10, Danton and his party became masters +of the incipient republic, Paris lay between two perils whose relative +magnitude no one could measure. If Chalons fell, Vendee would rise, and +the Republicans of the West would be massacred. Five months later Vendee +did rise, and at Machecoul the patriots were slaughtered amidst nameless +atrocities, largely at the instigation of the priests. In March, 1793, +one hundred thousand peasants were under arms. + +Clearly the West could not be denuded of troops, and yet, if Chalons +were to be made good, every available man had to be hurried to +Kellermann, and this gigantic effort fell to the lot of a body of young +and inexperienced adventurers who formed what could hardly be dignified +with the name of an organized administration. + +For a long time Marat, with whom Danton had been obliged to coalesce, +had been insisting that, if the enemy were to be resisted on the +frontier, Paris must first be purged, for Paris swarmed with Royalists +wild for revenge, and who were known to be arming. Danton was not yet +prepared for extermination. He instituted domiciliary visits. He made +about three thousand arrests and seized a quantity of muskets, but he +liberated most of those who were under suspicion. The crisis only came +with the news, on September 2, of the investment of Verdun, when no one +longer could doubt that the net was closing about Paris. Verdun was but +three or four days' march from Chalons. When the Duke of Brunswick +crossed the Marne and Brittany revolted, the government would have to +flee, as Roland proposed, and then the Royalists would burst the gates +of the prisons and there would be another Saint Bartholomew. + +Toward four o'clock in the afternoon of September 2, 1792, the prison of +the Abbaye was forced and the massacres began. They lasted until +September 6, and through a circular sent out by Marat they were extended +to Lyons, to Reims, and to other cities. About 1600 prisoners were +murdered in Paris alone. Hardly any one has ever defended those +slaughters. Even Marat called them "disastrous," and yet no one +interfered. Neither Danton, nor Roland, nor the Assembly, nor the +National Guard, nor the City of Paris, although the two or three hundred +ruffians who did the work could have been dispersed by a single company +of resolute men, had society so willed it. When Robespierre's time came +he fell almost automatically. Though the head of the despotic "Committee +of Public Safety," and nominally the most powerful man in France, he was +sent to execution like the vilest and most contemptible of criminals by +adversaries who would not command a regiment. The inference is that the +September massacres, which have ever since been stigmatized as the +deepest stain upon the Revolution, were, veritably, due to the +Royalists, who made with the Republicans an issue of self-preservation. +For this was no common war. In Royalist eyes it was a servile revolt, +and was to be treated as servile revolts during the Middle Ages had +always been treated. Again and again, with all solemnity, the Royalists +had declared that were they to return as conquerors no stone of Paris +should be left standing on another, and that the inhabitants should +expire in the ashes of their homes on the rack and the wheel. + +Though Danton had many and obvious weaknesses he was a good lawyer, and +Danton perceived that though he might not have been able to prevent the +September massacres, and although they might have been and probably were +inevitable under the tension which prevailed, yet that any court, even a +political court, would be better than Marat's mob. Some months later he +explained his position to the Convention when it was considering the +erection of the tribunal which finally sent Danton himself to the +scaffold. "Nothing is more difficult than to define a political crime. +But, if a simple citizen, for any ordinary crime, receives immediate +punishment, if it is so difficult to reach a political crime, is it not +necessary that extraordinary laws ... intimidate the rebels and reach +the culpable? Here public safety requires strong remedies and terrible +measures. I see no compromise between ordinary forms and a revolutionary +tribunal. History attests this truth; and since members have dared in +this assembly to refer to those bloody days which every good citizen has +lamented, I say that, if such a tribunal had then existed, the people +who have been so often and so cruelly reproached for them, would never +have stained them with blood; I say, and I shall have the assent of all +who have watched these movements, that no human power could have checked +the outburst of the national vengeance." + +In this perversion of the courts lay, as I understand it, the foulest +horror of the French Revolution. It was the effect of the rigidity of +privilege, a rigidity which found its incarnation in the judiciary. The +constitutional decisions of the parliaments under the old regime would +alone have made their continuance impossible, but the worst evil was +that, after the shell crumbled, the mind within the shell survived, and +discredited the whole regular administration of justice. When the +National Assembly came to examine grievances it found protests against +the judicial system from every corner of France, and it referred these +petitions to a committee which reported in August, 1789. Setting aside +the centralization and consolidation of the system as being, for us, +immaterial, the committee laid down four leading principles of reform. +First, purchase of place should be abolished, and judicial office should +be recognized as a public trust. Second, judges should be confined to +applying, and restrained from interpreting, the law. That is to say, the +judges should be forbidden to legislate. Third, the judges should be +brought into harmony with public opinion by permitting the people to +participate in their appointment. Fourth, the tendency toward rigor in +criminal cases, which had become a scandal under the old regime, should +be tempered by the introduction of the jury. Bergasse proposed that +judicial appointments should be made by the executive from among three +candidates selected by the provincial assemblies. After long and very +remarkable debates the plan was, in substance, adopted in May, 1790, +except that the Assembly decided, by a majority of 503 to 450, that the +judges should be elected by the people for a term of six years, without +executive interference. In the debate Cazales represented the +conservatives, Mirabeau the liberals. The vote was a test vote and shows +how strong the conservatives were in the Assembly up to the +reorganization of the Clergy in July, 1790, and the electoral assemblies +of the districts, which selected the judges, seem, on the whole, to have +been rather more conservative than the Assembly. In the election not a +sixth of those who were enfranchised voted for the delegates who, in +turn, chose the judges, and these delegates were usually either eminent +lawyers themselves, or wealthy merchants, or men of letters. The result +was a bench not differing much from an old parliament, and equally +incapable of understanding the convulsion about them. + +Installed early in 1791, not a year elapsed before these magistrates +became as ill at ease as had been those whom they displaced, and in +March, 1792, Jean Debry formally demanded their recall, although their +terms properly were to expire in 1796. During the summer of 1792 they +sank into contempt and, after the massacres, the Legislative Assembly, +just before its dissolution, provided for a new constituency for the +judicial elections. This they degraded so far that, out of fifty-one +magistrates to be chosen in Paris, only twelve were professionally +trained. Nor did the new courts inspire respect. After the 10th of +August one or two special tribunals were organized to try the Swiss +Guard who surrendered in the Palace, and other political offenders, but +these proved to be so ineffective that Marat thrust them aside, and +substituted for them his gangs of murderers. No true and permanent +political court was evolved before Danton had to deal with the treason +of Dumouriez, nor was this tribunal perfected before Danton gave way to +the Committee of Public Safety, when French revolutionary society became +incandescent, through universal attack from without and through +insurrection within. + +Danton, though an orator and a lawyer, possibly even a statesman, was +not competent to cope with an emergency which exacted from a minister +administrative genius like that of Carnot. Danton's story may be briefly +told. At once after Valmy the Convention established the Republic; on +January 21, 1793, Louis was beheaded; and between these two events a new +movement had occurred. The Revolutionists felt intuitively that, if they +remained shut up at home, with enemies without and traitors within, they +would be lost. If the new ideas were sound they would spread, and Valmy +had proved to them that those ideas had already weakened the invading +armies. Danton declared for the natural boundaries of France,--the +Rhine, the Alps, and the ocean,--and the Convention, on January 29, +1793, threw Dumouriez on Holland. This provoked war with England, and +then north, south, and east the coalition was complete. It represented +at least half a million fighting men. Danton, having no military +knowledge or experience, fixed his hopes on Dumouriez. To Danton, +Dumouriez was the only man who could save France. On November 6, 1792, +Dumouriez defeated the Austrians at Jemmapes; on the 14th, he entered +Brussels, and Belgium lay helpless before him. On the question of the +treatment of Belgium, the schism began which ended with his desertion. +Dumouriez was a conservative who plotted for a royal restoration under, +perhaps, Louis Philippe. The Convention, on the contrary, determined to +revolutionize Belgium, as France had been revolutionized, and to this +end Cambon proposed to confiscate and sell church land and emit +assignats. Danton visited Dumouriez to attempt to pacify him, but found +him deeply exasperated. Had Danton been more sagacious he would have +been suspicious. Unfortunately for him he left Dumouriez in command. In +February, Dumouriez invaded Holland and was repulsed, and he then fell +back to Brussels, not strong enough to march to Paris without support, +it is true, but probably expecting to be strong enough as soon as the +Vendean insurrection came to a head. Doubtless he had relations with the +rebels. At all events, on March 10, the insurrection began with the +massacre of Machecoul, and on March 12, 1793, Dumouriez wrote a letter +to the Convention which was equivalent to a declaration of war. He then +tried to corrupt his army, but failed, and on April 4, 1793, fled to +the Austrians. Meanwhile, La Vendee was in flames. To appreciate the +situation one must read Carnot's account of the border during these +weeks when he alone, probably, averted some grave disaster. For my +purpose it suffices to say that the pressure was intense, and that this +intense pressure brought forth the Revolutionary Tribunal, or the +political court. + +On March 10, 1793, the Convention passed a decree constituting a court +of five judges and a jury, to be elected by the Convention. To these was +joined a public prosecutor. Fouquier-Tinville afterward attained to a +sombre fame in this position. Six members of the Convention were to sit +as a commission to supervise drawing the indictments, the preparation of +evidence, and also to advise the prosecutor. The punishments, under the +limitations of the Penal Code and other criminal laws, were to be within +the discretion of the court, whose judgments were to be final.[40] Death +was accompanied by confiscation of property. + +Considering that this was an extraordinary tribunal, working under +extreme tension, which tried persons against whom usually the evidence +was pretty conclusive, its record for the first six months was not +discreditable. Between April 6 and September 21, 1793, it rendered +sixty-three sentences of death, thirteen of transportation, and +thirty-eight acquittals. The trials were held patiently, testimony was +heard, and the juries duly deliberated. Nevertheless the Terror deepened +as the stress upon the new-born republic increased. Nothing more awful +can be imagined than the ordeal which France endured between the meeting +of the Convention in September, 1792, and the completion of the +Committee of Public Safety in August, 1793. Hemmed in by enemies, the +revolution glowed in Paris like molten lava, while yet it was torn by +faction. Conservative opinion was represented by the Girondists, radical +opinion by the Mountain, and between the two lay the Plain, or the +majority of the Convention, who embodied the social centre of gravity. +As this central mass swayed, so did supremacy incline. The movement was +as accurate as that of any scientific instrument for registering any +strain. Dumouriez's treason in April left the northern frontier open, +save for a few fortresses which still held out. When those should fall +the enemy could make a junction with the rebels in Vendee. Still the +Girondists kept control, and even elected Isnard, the most violent among +them, President of the Convention. Then they had the temerity to arrest +a member of the Commune of Paris, which was the focus of radicalism. +That act precipitated the struggle for survival and with it came the +change in equilibrium. On June 2, Paris heard of the revolt of Lyons and +of the massacre of the patriots. The same day the Sections invaded the +Convention and expelled from their seats in the Tuileries twenty-seven +Girondists. The Plain or Centre now leant toward the Mountain, and, on +July 10, the Committee of Public Safety, which had been first organized +on April 6, 1793, directly after Dumouriez's treason, was reorganized by +the addition of men like Saint-Just and Couthon, with Prieur, a lawyer +of ability and energy, for President. On July 12, 1793, the Austrians +took Conde, and on July 28, Valenciennes; while on July 25, Kleber, +starving, surrendered Mayence. Nothing now but their own inertia stood +between the allies and La Vendee. Thither indeed Kellermann's men were +sent, since they had promised not to serve against the coalition for a +year, but even of these a division was surrounded and cut to pieces in +the disaster of Torfou. A most ferocious civil war soon raged throughout +France. Caen, Bordeaux, Lyons, Marseilles, declared against the +Convention. The whole of the northwest was drenched in blood by the +Chouans. Sixty departments were in arms. On August 28 the Royalists +surrendered Toulon to the English, who blockaded the coasts and supplied +the needs of the rebels. About Paris the people were actually starving. +On July 27 Robespierre entered the Committee of Safety; Carnot, on +August 14. This famous committee was a council of ten forming a pure +dictatorship. On August 16, the Convention decreed the _Levee en Masse_. + +When Carnot became Minister of War to this dictatorship the Republic had +479,000 demoralized soldiers with the colors, under beaten and +discredited commanders. Bouille had conspired against the +States-General, Lafayette against the Legislative Assembly, and +Dumouriez against the Convention. One year from that time it had a +superb force, 732,000 strong, commanded by Jourdan and Pichegru, Hoche, +Moreau, and Bonaparte. Above all Carnot loved Hoche. Up to Valmy the old +regular army, however shaken, had remained as a core. Then it became +merged in a mass of volunteers, and these volunteers had to be armed and +disciplined and fed and led against the greatest and strongest coalition +which the modern world had ever seen. France, under Camot, became a vast +workshop. Its most eminent scientific men taught the people how to +gather saltpetre and the government how to manufacture powder and +artillery. Horses had to be obtained. Carnot was as reckless of himself +as of others. He knew no rest. There was that to be done which had to be +done quickly and at any cost; there was that or annihilation. + +On October 21, 1794, when the people had gathered in the Champ de Mars +to celebrate the Festival of Victories, after the President of the +Convention had proclaimed that the Republic had been delivered, Carnot +announced what had been accomplished. + +France had won twenty-seven victories, of which eight had been pitched +battles. + +One hundred and twenty lesser combats. France had killed eighty +thousand enemies. + +Had taken ninety-one thousand prisoners. + +Also one hundred and sixteen places or towns, six after siege. + +Two hundred and thirty forts or redoubts. + +Three thousand eight hundred cannon. + +Seventy thousand muskets. + +Ninety flags. + +As Benjamin Constant has observed, nothing can change the stupendous +fact "that the Convention found the enemy at thirty leagues from Paris, +... and made peace at thirty leagues from Vienna." + +Under the stimulus of a change in environment of mind is apt to expand +with something of this resistless energy. It did so in the Reformation. +It may be said almost invariably to do so, when decay does not +supervene, and it now concerns us to consider, in some rough way, what +the cost to the sinking class of attempting repression may be, when it +miscalculates its power in such an emergency. + +I take it to be tolerably clear that, if the French privileged classes +had accepted the reforms of Turgot in good faith, and thus had spread +the movement of the revolution over a generation, there would have been +no civil war and no confiscations, save confiscations of ecclesiastical +property. I take it also that there would have been no massacres and no +revolutionary tribunals, if France in 1793 had fought foreign enemies +alone, as England did in 1688. Even as it was the courts did not grow +thoroughly political until the preservation of the new type of mind came +to hinge largely on the extermination of the old. Danton's first and +relatively benign revolutionary tribunal, established in March, 1793, +was reorganized by the Committee of Public Safety in the following +autumn, by a series of decrees of which the most celebrated is that of +September 17, touching suspected persons. By these decrees the tribunal +was enlarged so that, in the words of Danton, every day an aristocratic +head might fall. The committee presented a list of judges, and the +object of the law was to make the possession of a reactionary mind a +capital offence. It is only in extreme exigencies that pure thinking by +a single person becomes a crime. Ordinarily, a crime consists of a +malicious thought coupled with an overt act, but in periods of high +tension, the harboring of any given thought becomes criminal. Usually +during civil wars test oaths are tendered to suspected persons to +discover their loyalty. For several centuries the Church habitually +burnt alive all those who denied the test dogma of transubstantiation, +and during the worst spasm of the French Revolution to believe in the +principle of monarchy and privilege was made capital with confiscation +of property. + +The question which the Convention had to meet was how to establish the +existence of a criminal mind, when nothing tangible indicated it. The +old regime had tortured. To prove heresy the Church also had always used +torture. The Revolution proceeded more mildly. It acted on suspicion. +The process was simple. The Committee, of whom in this department +Robespierre was the chief, made lists of those who were to be condemned. +There came to be finally almost a complete absence of forms. No evidence +was necessarily heard. The accused, if inconvenient, was not allowed to +speak. If there were doubt touching the probability of conviction, +pressure was put upon the court. I give one or two examples: Scellier, +the senior associate judge of the tribunal, appears to have been a good +lawyer and a fairly worthy man. One day in February, 1794, Scellier was +at dinner with Robespierre, when Robespierre complained of the delays of +the court. Scellier replied that without the observance of forms there +could be no safety for the innocent. "Bah!" replied Robespierre,--"you +and your forms: wait; soon the Committee will obtain a law which will +suppress forms, and then we shall see." Scellier ventured no answer. +Such a law was drafted by Couthon and actually passed on 22 Prairial +(June 10, 1794), and yet it altered little the methods of +Fouquier-Tinville as prosecuting officer. Scellier having complained of +this law of Prairial to Saint-Just, Saint-Just replied that if he were +to report his words, or that he was flinching, to the Committee, +Scellier would be arrested. As arrest was tantamount to sentence of +death, Scellier continued his work. + +Without reasoning the subject out logically from premise to conclusion, +or being, of course, capable of doing so in the mass, Frenchmen had +collectively received the intuition that everything must be endured for +a strong government, and that whatever obstructed that government must +be eliminated. For the process of elimination they used the courts. +Under the conditions in which they were placed by the domestic enemy, +they had little alternative. If a political party opposed the +Dictatorship in the Convention, that party must be broken down; if a man +seemed likely to become a rival for the Dictatorship, that man must be +removed; all who conspired against the Republic must be destroyed as +ruthlessly at home as on the battle-field. The Republic was insolvent, +and must have money, as it must have men. If the government needed men, +it took them,--all. If it needed money, and a man were rich, it did not +hesitate to execute him and confiscate his property. There are very +famous examples of all these phenomena strewn through the history of the +Terror. + +The Girondists were liberals. They always had been liberals; they had +never conspired against the Republic; but they were impracticable. The +ablest of them, Vergniaud, complained before the Tribunal, that he was +being tried for what he thought, not for what he had done. This the +government denied, but it was true. Nay, more; he was tried not for +positive but for negative opinions, and he was convicted and executed, +and his friends were convicted and executed with him, because, had they +remained in the Convention, the Dictatorship, through their opposition, +would have lost its energy. Also the form of the conviction was shocking +in the extreme. The defence of these twenty-one men was, practically, +suppressed, and the jury were directed to bring in a verdict of guilty. +Still the prosecutions of the Girondists stopped here. When they +refrained from obstruction, they were spared. + +Danton and his friends may have been, and probably were, whether +intentionally or by force of circumstances, a menace to the +Dictatorship. Either Robespierre or Danton had to be eliminated. There +was not room for both. On April 1, 1793, Danton, Camille Desmoulins, and +others were arrested on a warrant signed by such men as Cambaceres, +Carnot, and Prieur. Carnot in particular was a soldier of the highest +character and genius. He would have signed no such warrant had he not +thought the emergency pressing. Nor was the risk small. Danton was so +popular and so strong before a jury that the government appears to have +distrusted even Fouquier-Tinville, for an order was given, and held in +suspense, apparently to Henriot, to arrest the President and the Public +Prosecutor of the Revolutionary Tribunal, on the day of Danton's trial. + +Under such a stimulant Fouquier did his best, but he felt himself to be +beaten. Examining Cambon, Danton broke out: "Do you believe us to be +conspirators? Look, he laughs, he don't believe it. Record that he has +laughed." Fouquier was at his wits' end. If the next day the jury were +asked if they had heard enough, and they answered, "No," there would be +an acquittal, and then Fouquier's own head would roll into the basket. +Probably there might even be insurrection. Fouquier wrote to the +Committee that they must obtain from the Convention a decree silencing +the defence. So grave was the crisis felt to be that the decree was +unanimously voted. When Fouquier heard that the decree was on its way, +he said, with a sigh of relief,--"Faith, we need it." But when it was +read, Danton sprung to his feet, raging, declaring that the public cried +out treason upon it. The President adjourned the court while the hall +resounded with the protests of the defendants and the shouts of the +police as they tore the condemned from the benches which they clutched +and dragged them through the corridors toward the prison. They emerged +no more until they mounted the carts which took them to the scaffold. + +Nor was it safe to hesitate if one were attached to this court. Fouquier +had a clerk named Paris-Fabricius. Now Paris had been a friend of Danton +and took his condemnation to heart. He even declined to sign the +judgment, which it was his duty to do. The next day, when he presented +himself to Fouquier, Fouquier looked at him sourly, and observed, "We +don't want men who reason here; we want business done." The following +morning Paris did not appear. His friends were disturbed, but he was not +to be found. He had been cast into a secret dungeon in the prison of the +Luxembourg. + +So, if a man were too rich it might go hard with him. +Louis-Philippe-Joseph, Duc d'Orleans, afterward known as Egalite, was +one of the most interesting figures among the old nobility. The +great-great-great-grandson of Louis XIII, he was a distant cousin of +Louis XVI, and ranked as the first noble of France beyond the royal +family. His education had been unfortunate. His father lived with a +ballet-dancer, while his mother, the Princess Henriette de +Bourbon-Conti, scandalized a society which was not easily shocked. +During the Terror the sans culottes everywhere averred that the Duke was +the son of a coachman in the service of the banker Duruet. Doubtless +this was false, but the princess had abundant liaisons not much more +reputable. Left to himself at sixteen years old, Egalite led a life of +extreme profligacy, but he married one of the most beautiful and +charming women of the age, whom he succeeded in inspiring with a devoted +affection. Born in 1747, his father died in 1785, leaving him, just at +the outbreak of the Revolution, the master of enormous wealth, and the +father of three sons who adored him. The eldest of these was the future +king, Louis-Philippe. The man must have had good in him to have been +loved as he was throughout life. He was besides more intelligent +touching the Revolution and its meaning than any man approaching him in +rank in France. The Duke, when a young man, served with credit in the +navy, but after the battle of Ushant, in 1778, where he commanded the +blue squadron, he was received with such enthusiasm in Paris, that +Marie-Antoinette obtained his dismissal from the service. From this +period he withdrew from court and his opposition to the government +began. He adopted republican ideas, which he drew from America, and he +educated his children as democrats. In 1789 he was elected to the +States-General, where he supported the fusion of the orders, and +attained to a popularity which, on one occasion, according to Madame de +Campan, nearly made the Queen faint from rage and grief. It was from the +garden of his palace of the Palais Royal that the column marched on July +14, wearing his colors, the red, white and blue, to storm the Bastille. +It seemed that he had only to go on resolutely to thrust the King aside +and become the ruler of France. He made no effort to do so. Mirabeau is +said to have been disgusted with his lack of ambition. He was charitable +also, and spent very large sums of money among the poor of Paris during +the years of distress which followed upon the social disorders. The +breach with the court, however, became steadily wider, and finally he +adhered to the party of Danton and voted for the condemnation of the +King. He sent two of his sons to serve in the army. The elder was still +with Dumouriez at the time of his treason. On April 6, 1793, when +Dumouriez's treachery had become known, the Assembly ordered the arrest +of the whole Bourbon family, and among them the Duke was apprehended and +sent to Marseilles. + +Thus it appears that whatever complaint his own order may have had +against Egalite, the Republic certainly had none. No man could have done +more for modern France than he. He abandoned his class, renounced his +name, gave his money, sent his sons to the war, and voted for his own +relative's death. No one feared him, and yet Robespierre had him brought +to Paris and guillotined. His trial was a form. Fouquier admitted that +he had been condemned before he left Marseilles. The Duke was, however, +very rich and the government needed his money. Every one understood the +situation. He was told of the order for his arrest one night when at +supper in his palace in Paris with his friend Monsieur de Monville. The +Duke, much moved, asked Monville if it were not horrible, after all the +sacrifices he had made and all that he had done. "Yes, horrible," said +Monville, coolly, "but what would you have? They have taken from your +Highness all they could get, you can be of no further use to them. +Therefore, they will do to you, what I do with this lemon" (he was +squeezing a lemon on a sole); "now I have all the juice." And he threw +the lemon into the fireplace. But yet even then Robespierre was not +satisfied. He harbored malice against this fallen man. On the way to the +scaffold he ordered the cart, in which the Duke sat, to stop before the +Palais Royal, which had been confiscated, in order that the Duke might +contemplate his last sacrifice for his country. The Duke showed neither +fear nor emotion. + +All the world knows the story of the Terror. The long processions of +carts carrying victims to the guillotine, these increasing in number +until after the Law of Prairial they averaged sixty or seventy a day in +Paris alone, while in the provinces there was no end. At Nantes, Carrier +could not work fast enough by a court, so he sank boat loads of +prisoners in the Loire. The hecatombs sacrificed at Lyons, and the "Red +Masses" of Orange, have all been described. The population of Toulon +sank from 29,000 to 7,000. All those, in fine, were seized and slain +who were suspected of having a mind tinged with caste, or of being +traitors to the Republic. And it was the Centre, or the majority of the +Convention, who did this, by tacitly permitting it to be done. That is +to say, France permitted it because the onslaught of the decaying class +made atrocities such as these appear to be a condition of +self-preservation. I doubt if, in human history, there be such another +and so awful an illustration of the possible effects of conservative +errors of judgment. + +For France never loved the Terror or the loathsome instruments, such as +Fouquier-Tinville, or Carrier, or Billaud-Varennes, or Collot-d'Herbois, +or Henriot, or Robespierre, or Couthon, who conducted it. On this point +there can, I think, be neither doubt nor question. I have tried to show +how the Terror began. It is easy to show how and why it ended. As it +began automatically by the stress of foreign and domestic war, so it +ended automatically when that stress was relieved. And the most curious +aspect of the phenomenon is that it did not end through the application +of force, but by common consent, and when it had ended, those who had +been used for the bloody work could not be endured, and they too were +put to death. The procession of dates is convincing. + +When, on July 27, 1793, Robespierre entered the Committee of Public +Safety, the fortunes of the Republic were near their nadir, but almost +immediately, after Carnot took the War Department on August 14, they +began to mend. On October 8, 1793, Lyons surrendered; on December 19, +1793, the English evacuated Toulon; and, on December 23, the +insurrection in La Vendee received its death blow at Savenai. There had +also been success on the frontiers. Carnot put Hoche in command in the +Vosges. On December 23, 1793, Hoche defeated Wurmser at Freschweiller, +when the Austrians, abandoning the lines of Wissembourg, fell back +across the Rhine. Thus by the end of 1793, save for the great border +fortresses of Valenciennes and Conde to the north, which commanded the +road from Brussels to Paris, the soil of France had been cleared of the +enemy, and something resembling domestic tranquillity had been restored +at home. Simultaneously, as the pressure lessened, rifts began to appear +in the knot of men who held the Dictatorship in the Republic. +Robespierre, Couthon, and Saint-Just coalesced, and gained control of +the police, while Billaud-Varennes, Collot-d'Herbois, and, secretly and +as far as he dared, Barere, formed an opposition. Not that the latter +were more moderate or merciful than Robespierre, but because, in the +nature of things, there could be but one Dictator, and it became a +question of the survival of the fittest. Carnot took little or no part +in active politics. He devoted himself to the war, but he disapproved of +the Terror and came to a breach with Saint-Just. Robespierre's power +culminated on June 10, 1794, with the passage of the Law of 22 Prairial, +which put the life of every Frenchman in his hand, and after which, save +for some dozen or two of his most intimate and devoted adherents like +Saint-Just, Couthon, Le Bas, Fouquier, Fleuriot the Mayor of Paris, and +Henriot, the commander of the national guard, no one felt his head safe +on his shoulders. It needed but security on the northern frontier to +cause the social centre of gravity to shift and Robespierre to fall, and +security came with the campaign of Fleurus. + +Jourdan and Pichegru were in command on the Belgian border, and on June +26, 1794, just sixteen days after the passage of the Law of Prairial, +Jourdan won the battle of Fleurus. This battle, though not decisive in +itself, led to decisive results. It uncovered Valenciennes and Conde, +which were invested, closing the entrance to France. On July 11, Jourdan +entered Brussels; on July 16, he won a crushing victory before Louvain +and the same day Namur opened its gates. On July 23, Pichegru, driving +the English before him, seized Antwerp. No Frenchman could longer doubt +that France was delivered, and with that certainty the Terror ended +without a blow. Eventually the end must have come, but it came +instantly, and, according to the old legend, it came through a man's +love for a woman. + +John Lambert Tallien, the son of the butler of the Marquis of Bercy, was +born in 1769, and received an education through the generosity of the +marquis, who noticed his intelligence. He became a journeyman printer, +and one day in the studio of Madame Lebrun, dressed in his workman's +blouse, he met Therezia Cabarrus, Marquise de Fontenay, the most +seductive woman of her time, and fell in love with her on the instant. +Nothing, apparently, could have been more hopeless or absurd. But the +Revolution came. Tallien became prominent, was elected to the +Convention, grew to be influential, and in September, 1793, was sent to +Bordeaux, as representative of the Chamber, or as proconsul, as they +called it. There he, the all-powerful despot, found Therezia, trying to +escape to Spain, in prison, humble, poor, shuddering in the shadow of +the guillotine. He saved her; he carried her through Bordeaux in triumph +in a car by his side. He took her with him to Paris, and there +Robespierre threw her into prison, and accused Tallien of corruption. On +June 12 Robespierre denounced him to the Convention, and on June 14, +1794, the Jacobins struck his name from the list of the club. When +Fleurus was fought Therezia lay in La Force, daily expecting death, +while Tallien had become the soul of the reactionary party. On the 8 +Thermidor (July 26,1794) Tallien received a dagger wrapped in a note +signed by Therezia,--"To-morrow they kill me. Are you then only a +coward?"[41] + +On the morrow the great day had come. Saint-Just rose in the Convention +to read a report to denounce Billaud, Collot, and Camot. Tallien would +not let him be heard. Billaud followed him. Collot was in the chair. +Robespierre mounted the tribune and tried to speak. It was not without +reason that Therezia afterwards said, "This little hand had somewhat to +do with overthrowing the guillotine," for Tallien sprang on him, dagger +in hand, and, grasping him by the throat, cast him from the tribune, +exclaiming, "I have armed myself with a dagger to pierce his heart if +the Convention dare not order his accusation." Then rose a great shout +from the Centre, "Down with the tyrant, arrest him, accuse him!" From +the Centre, which until that day had always silently supported the +Robespierrian Dictatorship. Robespierre for the last time tried to +speak, but his voice failed him. "It's Danton's blood that chokes him; +arrest him, arrest him!" they shouted from the Right. Robespierre +dropped exhausted on a bench, then they seized him, and his brother, and +Couthon, and Saint-Just, and ordered that the police should take them to +prison. + +But it was one thing for the Convention to seize Robespierre singly, and +within its own hall; it was quite another for it to hold him and send +him to the guillotine. The whole physical force of Paris was nominally +with Robespierre. The Mayor, Fleuriot, closed the barriers, sounded the +tocsin, and forbade any jailer to receive the prisoners; while Henriot, +who had already been drinking, mounted a horse and galloped forth to +rouse the city. Fleuriot caused Robespierre, Couthon, and Le Bas to be +brought to the City Hall. A provisional government was completed. It +only remained to disperse the Assembly. Henriot undertook a duty which +looked easy. He seems to have collected about twenty guns, which he +brought to the Tuileries and trained on the hall of the Convention. The +deputies thought all was over. Collot-d'Herbois took the chair, which +was directly in range, put on his hat, and calmly said, as Henriot gave +the order to fire, "We can at least die at our post." No volley +came--the men had mutinied. Then the Convention declared Henriot beyond +the protection of the law, and Henriot fled to the City Hall. The +Convention chose Barras to command their armed force, but save a few +police they had no force. The night was wearing away and Fleuriot had +not been able to persuade Robespierre to take any decisive step. +Robespierre was, indeed, only a pettifogging attorney. At length he +consented to sign an appeal to arms. He had written two letters of his +name--"Ro"--when a section of police under Barras reached the City Hall. +They were but a handful, but the door was unguarded. They mounted the +stairs and as Robespierre finished the "o", one of these men, named +Merda, fired on him, breaking his jaw. The stain of blood is still on +the paper where Robespierre's head fell. They shot Couthon in the leg, +they threw Henriot out of the window into a cesspool below where he +wallowed all night, while Le Bas blew out his brains. The next day they +brought Robespierre to the Convention, but the Convention refused to +receive him. They threw him on a table, where he lay, horrible to be +seen, his coat torn down the back, his stockings falling over his heels, +his shirt open and soaking with blood, speechless, for his mouth was +filled with splinters of his broken jaw. Such was the man who the +morning before had been Dictator, and master of all the armies of +France. Couthon was in little better plight. Twenty-one in all were +condemned on the 10 Thermidor and taken in carts to the guillotine. An +awful spectacle. There was Robespierre with his disfigured face, half +dead, and Fleuriot, and Saint-Just, and Henriot next to Robespierre, his +forehead gashed, his right eye hanging down his cheek, dripping with +blood, and drenched with the filth of the sewer in which he had passed +the night. Under their feet lay the cripple Couthon, who had been thrown +in like a sack. Couthon was paralyzed, and he howled in agony as they +wrenched him straight to fasten him to the guillotine. It took a quarter +of an hour to finish with him, while the crowd exulted. A hundred +thousand people saw the procession and not a voice or a hand was raised +in protest. The whole world agreed that the Terror should end. But the +oldest of those who suffered on the 10 Thermidor was Couthon, who was +thirty-eight, Robespierre was thirty-five, and Saint-Just but +twenty-seven. + +So closed the Terror with the strain which produced it. It will remain a +by-word for all time, and yet, appalling as it may have been, it was the +legitimate and the logical result of the opposition made by caste to the +advent of equality before the law. Also, the political courts served +their purpose. They killed out the archaic mind in France, a mind too +rigid to adapt itself to a changing environment. Thereafter no organized +opposition could ever be maintained against the new social equilibrium. +Modern France went on steadily to a readjustment, on the basis of +unification, simplification of administration, and equality before the +law, first under the Directory, then under the Consulate, and finally +under the Empire. With the Empire the Civil Code was completed, which I +take to be the greatest effort at codification of modern times. +Certainly it has endured until now. Governments have changed. The Empire +has yielded to the Monarchy, the Monarchy to the Republic, the Republic +to the Empire again, and that once more to the Republic, but the Code +which embodies the principle of equality before the law has remained. +Fundamentally the social equilibrium has been stable. And a chief reason +of this stability has been the organization of the courts upon rational +and conservative principles. During the Terror France had her fill of +political tribunals. Since the Terror French judges, under every +government, have shunned politics and have devoted themselves to +construing impartially the Code. Therefore all parties, and all ranks, +and all conditions of men have sustained the courts. In France, as in +England, there is no class jealousy touching the control of the +judiciary. + + +FOOTNOTES: + +[40] _Histoire du Tribunal Revolutionaire de Paris_, H. Wallon, I, 57. + +[41] "C'est demain qu'on me tue; n'etes-vous donc qu'un lache?" + + + + +CHAPTER VI + +INFERENCES + + +As the universe, which at once creates and destroys life, is a complex +of infinitely varying forces, history can never repeat itself. It is +vain, therefore, to look in the future for some paraphrase of the past. +Yet if society be, as I assume it to be, an organism operating on +mechanical principles, we may perhaps, by pondering upon history, learn +enough of those principles to enable us to view, more intelligently than +we otherwise should, the social phenomena about us. What we call +civilization is, I suspect, only, in proportion to its perfection, a +more or less thorough social centralization, while centralization, very +clearly, is an effect of applied science. Civilization is accordingly +nearly synonymous with centralization, and is caused by mechanical +discoveries, which are applications of scientific knowledge, like the +discovery of how to kindle fire, how to build and sail ships, how to +smelt metals, how to prepare explosives, how to make paper and print +books, and the like. And we perceive on a little consideration that from +the first great and fundamental discovery of how to kindle fire, every +advance in applied science has accelerated social movement, until the +discovery of steam and electricity in the eighteenth and nineteenth +centuries quickened movement as movement had never been quickened +before. And this quickening has caused the rise of those vast cities, +which are at once our pride and our terror. + +Social consolidation is, however, not a simple problem, for social +consolidation implies an equivalent capacity for administration. I take +it to be an axiom, that perfection in administration must be +commensurate to the bulk and momentum of the mass to be administered, +otherwise the centrifugal will overcome the centripetal force, and the +mass will disintegrate. In other words, civilization would dissolve. It +is in dealing with administration, as I apprehend, that civilizations +have usually, though not always, broken down, for it has been on +administrative difficulties that revolutions have for the most part +supervened. Advances in administration seem to presuppose the evolution +of new governing classes, since, apparently, no established type of mind +can adapt itself to changes in environment, even in slow-moving +civilizations, as fast as environments change. Thus a moment arrives +when the minds of any given dominant type fail to meet the demands made +upon them, and are superseded by a younger type, which in turn is set +aside by another still younger, until the limit of the administrative +genius of that particular race has been reached. Then disintegration +sets in, the social momentum is gradually relaxed, and society sinks +back to a level at which it can cohere. To us, however, the most +distressing aspect of the situation is, that the social acceleration is +progressive in proportion to the activity of the scientific mind which +makes mechanical discoveries, and it is, therefore, a triumphant science +which produces those ever more rapidly recurring changes in environment +to which men must adapt themselves at their peril. As, under the +stimulant of modern science, the old types fail to sustain themselves, +new types have to be equally rapidly evolved, and the rise of a new +governing class is always synonymous with a social revolution and a +redistribution of property. The Industrial Revolution began almost +precisely a century and a half ago, since when the scientific mind has +continually gained in power, and, during that period, on an average of +once in two generations, the environment has so far shifted that a +social revolution has occurred, accompanied by the advent of a new +favored class, and a readjustment of wealth. I think that a glance at +American history will show this estimate to be within the truth. At the +same time such rapidity of intellectual mutation is without precedent, +and I should suppose that the mental exhaustion incident thereto must be +very considerable. + +In America, in 1770, a well-defined aristocracy held control. As an +effect of the Industrial Revolution upon industry and commerce, the +Revolutionary War occurred, the colonial aristocracy misjudged the +environment, adhered to Great Britain, were exiled, lost their property, +and perished. Immediately after the American Revolution and also as a +part of the Industrial Revolution, the cotton gin was invented, and the +cotton gin created in the South another aristocracy, the cotton +planters, who flourished until 1860. At this point the changing of the +environment, caused largely by the railway, brought a pressure upon the +slave-owners against which they, also failing to comprehend their +situation, rebelled. They were conquered, suffered confiscation of their +property, and perished. Furthermore, the rebellion of the aristocracy at +the South was caused, or at all events was accompanied by, the rise of a +new dominant class at the North, whose power rested upon the development +of steam in transportation and industry. This is the class which has won +high fortune by the acceleration of the social movement, and the +consequent urban growth of the nineteenth century, and which has now for +about two generations dominated in the land. If this class, like its +predecessors, has in its turn mistaken its environment, a redistribution +of property must occur, distressing, as previous redistributions have +been, in proportion to the inflexibility of the sufferers. The last two +redistributions have been painful, and, if we examine passing phenomena +from this standpoint, they hardly appear to promise much that is +reassuring for the future. + +Administration is the capacity of cooerdinating many, and often +conflicting, social energies in a single organism, so adroitly that they +shall operate as a unity. This presupposes the power of recognizing a +series of relations between numerous special social interests, with all +of which no single man can be intimately acquainted. Probably no very +highly specialized class can be strong in this intellectual quality +because of the intellectual isolation incident to specialization; and +yet administration or generalization is not only the faculty upon which +social stability rests, but is, possibly, the highest faculty of the +human mind. It is precisely in this preeminent requisite for success in +government that I suspect the modern capitalistic class to be weak. The +scope of the human intellect is necessarily limited, and modern +capitalists appear to have been evolved under the stress of an +environment which demanded excessive specialization in the direction of +a genius adapted to money-making under highly complex industrial +conditions. To this money-making attribute all else has been sacrificed, +and the modern capitalist not only thinks in terms of money, but he +thinks in terms of money more exclusively than the French aristocrat or +lawyer ever thought in terms of caste. The modern capitalist looks upon +life as a financial combat of a very specialized kind, regulated by a +code which he understands and has indeed himself concocted, but which is +recognized by no one else in the world. He conceives sovereign powers to +be for sale. He may, he thinks, buy them; and if he buys them; he may +use them as he pleases. He believes, for instance, that it is the +lawful, nay more! in America, that it is the constitutional right of the +citizen to buy the national highways, and, having bought them, to use +them as a common carrier might use a horse and cart upon a public road. +He may sell his service to whom he pleases at what price may suit him, +and if by doing so he ruins men and cities, it is nothing to him. He is +not responsible, for he is not a trustee for the public. If he be +restrained by legislation, that legislation is in his eye an oppression +and an outrage, to be annulled or eluded by any means which will not +lead to the penitentiary. He knows nothing and cares less, for the +relation which highways always have held, and always must hold, to every +civilized population, and if he be asked to inform himself on such +subjects he resents the suggestion as an insult. He is too specialized +to comprehend a social relation, even a fundamental one like this, +beyond the narrow circle of his private interests. He might, had he so +chosen, have evolved a system of governmental railway regulation, and +have administered the system personally, or by his own agents, but he +could never be brought to see the advantage to himself of rational +concession to obtain a resultant of forces. He resisted all restraint, +especially national restraint, believing that his one weapon +--money--would be more effective in obtaining what he wanted in +state legislatures than in Congress. Thus, of necessity, he precipitates +a conflict, instead of establishing an adjustment. He is, therefore, in +essence, a revolutionist without being aware of it. The same specialized +thinking appears in his reasoning touching actual government. New York +City will serve as an illustration. + +New York has for two generations been noted for a civic corruption which +has been, theoretically, abominable to all good citizens, and which the +capitalistic class has denounced as abominable to itself. I suspect this +to be an imaginative conception of the situation. Tammany Hall is, I +take it, the administrative bureau through which capital purchases its +privileges. An incorruptible government would offend capital, because, +under such a government, capital would have to obey the law, and +privilege would cease. Occasionally, Tammany grows rapacious and exacts +too much for its services. Then a reform movement is undertaken, and +finally a new management is imposed on Tammany; but when Tammany has +consented to a satisfactory scale of prices, the reform ends. To change +the system would imply a shift in the seat of power. In fine, money is +the weapon of the capitalist as the sword was the weapon of the +mediaeval soldier; only, as the capitalist is more highly specialized +than the soldier ever was, he is more helpless when his single weapon +fails him. From the days of William the Conqueror to our own, the great +soldier has been, very commonly, a famous statesman also, but I do not +now remember, in English or American history, a single capitalist who +has earned eminence for comprehensive statesmanship. On the contrary, +although many have participated in public affairs, have held high +office, and have shown ability therein, capitalists have not unusually, +however unjustly, been suspected of having ulterior objects in view, +unconnected with the public welfare, such as tariffs or land grants. +Certainly, so far as I am aware, no capitalist has ever acquired such +influence over his contemporaries as has been attained with apparent +ease by men like Cromwell, Washington, or even Jackson. + +And this leads, advancing in an orderly manner step by step, to what is, +perhaps, to me, the most curious and interesting of all modern +intellectual phenomena connected with the specialized mind,--the +attitude of the capitalist toward the law. Naturally the capitalist, of +all men, might be supposed to be he who would respect and uphold the law +most, considering that he is at once the wealthiest and most vulnerable +of human beings, when called upon to defend himself by physical force. +How defenceless and how incompetent he is in such exigencies, he proved +to the world some years ago when he plunged himself and the country into +the great Pennsylvania coal strike, with absolutely no preparation. +Nevertheless, in spite of his vulnerability, he is of all citizens the +most lawless.[42] He appears to assume that the law will always be +enforced, when he has need of it, by some special personnel whose duty +lies that way, while he may, evade the law, when convenient, or bring it +into contempt, with impunity. The capitalist seems incapable of feeling +his responsibility, as a member of the governing class, in this respect, +and that he is bound to uphold the law, no matter what the law may be, +in order that others may do the like. If the capitalist has bought some +sovereign function, and wishes to abuse it for his own behoof, he +regards the law which restrains him as a despotic invasion of his +constitutional rights, because, with his specialized mind, he cannot +grasp the relation of a sovereign function to the nation as a whole. He, +therefore, looks upon the evasion of a law devised for public +protection, but inimical to him, as innocent or even meritorious. + +If an election be lost, and the legislature, which has been chosen by +the majority, cannot be pacified by money, but passes some act which +promises to be annoying, the first instinct of the capitalist is to +retain counsel, not to advise him touching his duty under the law, but +to devise a method by which he may elude it, or, if he cannot elude it, +by which he may have it annulled as unconstitutional by the courts. The +lawyer who succeeds in this branch of practice is certain to win the +highest prizes at the bar. And as capital has had now, for more than one +or even two generations, all the prizes of the law within its gift, this +attitude of capital has had a profound effect upon shaping the American +legal mind. The capitalist, as I infer, regards the constitutional form +of government which exists in the United States, as a convenient method +of obtaining his own way against a majority, but the lawyer has learned +to worship it as a fetich. Nor is this astonishing, for, were written +constitutions suppressed, he would lose most of his importance and much +of his income. Quite honestly, therefore, the American lawyer has come +to believe that a sheet of paper soiled with printers' ink and +interpreted by half-a-dozen elderly gentlemen snugly dozing in +armchairs, has some inherent and marvellous virtue by which it can +arrest the march of omnipotent Nature. And capital gladly accepts this +view of American civilization, since hitherto capitalists have usually +been able to select the magistrates who decide their causes, perhaps +directly through the intervention of some president or governor whom +they have had nominated by a convention controlled by their money, or +else, if the judiciary has been elective, they have caused sympathetic +judges to be chosen by means of a mechanism like Tammany, which they +have frankly bought. + +I wish to make myself clearly understood. Neither capitalists nor +lawyers are necessarily, or even probably, other than conscientious men. +What they do is to think with specialized minds. All dominant types have +been more or less specialized, if none so much as this, and this +specialization has caused, as I understand it, that obtuseness of +perception which has been their ruin when the environment which favored +them has changed. All that is remarkable about the modern capitalist is +the excess of his excentricity, or his deviation from that resultant of +forces to which he must conform. To us, however, at present, neither +the morality nor the present mental excentricity of the capitalist is +so material as the possibility of his acquiring flexibility under +pressure, for it would seem to be almost mathematically demonstrable +that he will, in the near future, be subjected to a pressure under which +he must develop flexibility or be eliminated. + +There can be no doubt that the modern environment is changing faster +than any environment ever previously changed; therefore, the social +centre of gravity constantly tends to shift more rapidly; and therefore, +modern civilization has unprecedented need of the administrative or +generalizing mind. But, as the mass and momentum of modern society is +prodigious, it will require a correspondingly prodigious energy to carry +it safely from an unstable to a stable equilibrium. The essential is to +generate the energy which brings success; and the more the mind dwells +upon the peculiarities of the modern capitalistic class, the more doubts +obtrude themselves touching their ability to make the effort, even at +present, and still more so to make it in the future as the magnitude of +the social organism grows. One source of capitalistic weakness comes +from a lack of proper instruments wherewith to work, even supposing the +will of capital to be good; and this lack of administrative ability is +somewhat due to the capitalistic attitude toward education. In the +United States capital has long owned the leading universities by right +of purchase, as it has owned the highways, the currency, and the press, +and capital has used the universities, in a general way, to develop +capitalistic ideas. This, however, is of no great moment. What is of +moment is that capital has commercialized education. Apparently modern +society, if it is to cohere, must have a high order of generalizing +mind,--a mind which can grasp a multitude of complex relations,--but +this is a mind which can, at best, only be produced in small quantity +and at high cost. Capital has preferred the specialized mind and that +not of the highest quality, since it has found it profitable to set +quantity before quality to the limit which the market will endure. +Capitalists have never insisted upon raising an educational standard +save in science and mechanics, and the relative overstimulation of the +scientific mind has now become an actual menace to order because of the +inferiority of the administrative intelligence. + +Yet, even supposing the synthetic mind of the highest power to be +increasing in proportion to the population, instead of, as I suspect, +pretty rapidly decreasing, and supposing the capitalist to be fully +alive to the need of administrative improvements, a phalanx of +Washingtons would be impotent to raise the administrative level of the +United States materially, as long as the courts remain censors of +legislation; because the province of the censorial court is to dislocate +any comprehensive body of legislation, whose effect would be to change +the social status. That was the fundamental purpose which underlay the +adoption of a written constitution whose object was to keep local +sovereignties intact, especially at the South. Jefferson insisted that +each sovereignty should by means of nullification protect itself. It was +a long step in advance when the nation conquered the prerogative of +asserting its own sovereign power through the Supreme Court. Now the +intervention of the courts in legislation has become, by the change in +environment, as fatal to administration as would have been, in 1800, +the success of nullification. I find it difficult to believe that +capital, with its specialized views of what constitutes its advantages, +its duties, and its responsibilities, and stimulated by a bar moulded to +meet its prejudices and requirements, will ever voluntarily assent to +the consolidation of the United States to the point at which the +interference of the courts with legislation might be eliminated; +because, as I have pointed out, capital finds the judicial veto useful +as a means of at least temporarily evading the law, while the bar, taken +as a whole, quite honestly believes that the universe will obey the +judicial decree. No delusion could be profounder and none, perhaps, more +dangerous. Courts, I need hardly say, cannot control nature, though by +trying to do so they may, like the Parliament of Paris, create a +friction which shall induce an appalling catastrophe. + +True judicial courts, whether in times of peace or of revolution, seldom +fail to be a substantial protection to the weak, because they enforce an +established _corpus juris_ and conduct trials by recognized forms. It is +startling to compare the percentage of convictions to prosecutions, for +the same class of offences, in the regular criminal courts during the +French Revolution, with the percentage in the Revolutionary Tribunal. +And once a stable social equilibrium is reached, all men tend to support +judicial courts, if judicial courts exist, from an instinct of +self-preservation. This has been amply shown by French experience, and +it is here that French history is so illuminating to the American mind. +Before the Revolution France had semi-political courts which conduced to +the overthrow of Turgot, and, therefore, wrought for violence; but more +than this, France, under the old regime, had evolved a legal profession +of a cast of mind incompatible with an equal administration of the law. +The French courts were, therefore, when trouble came, supported only by +a faction, and were cast aside. With that the old regime fell. + +The young Duke of Chartres, the son of Egalite Orleans, and the future +Louis Philippe, has related in his journal an anecdote which illustrates +that subtle poison of distrust which undermines all legal authority, the +moment that suspicion of political partiality in the judiciary enters +the popular mind. In June, 1791, the Duke went down from Paris to +Vendome to join the regiment of dragoons of which he had been +commissioned colonel. One day, soon after he joined, a messenger came to +him in haste to tell him that a mob had gathered near by who were about +to hang two priests. "I ran thither at once," wrote the Duke; "I spoke +to those who seemed most excited and impressed upon them how horrible it +was to hang men without trial; besides, to act as hangmen was to enter a +trade which they all thought infamous; that they had judges, and that +this was their affair. They answered that their judges were aristocrats, +and that they did not punish the guilty." That is to say, although the +priests were non-jurors, and, therefore, criminals in the eye of the +law, the courts would not enforce the law because of political bias.[43] +"It is your fault," I said to them, "since you elected them [the +judges], but that is no reason why you should do justice yourselves." + +Danton explained in the Convention that it was because of the deep +distrust of the judiciary in the public mind, which this anecdote +shows, that the September massacres occurred, and it was because all +republicans knew that the state and the army were full of traitors like +Dumouriez, whom the ordinary courts would not punish, that Danton +brought forward his bill to organize a true political tribunal to deal +with them summarily. When Danton carried through this statute he +supposed himself to be at the apex of power and popularity, and to be +safe, if any man in France were safe. Very shortly he learned the error +In his calculation. Billaud was a member of the Committee of Public +Safety, while Danton had allowed himself to be dropped from membership. +Danton had just been married, and to an aristocratic wife, and the +turmoil of office had grown to be distasteful to him. On March 30, 1794, +Billaud somewhat casually remarked, "We must kill Danton;" for in truth +Danton, with conservative leanings, was becoming a grave danger to the +extreme Jacobins. Had he lived a few months longer he would have been a +Thermidorist. Billaud, therefore, only expressed the prevailing Jacobin +opinion; so the Jacobins arrested Danton, Camille Desmoulins, and his +other friends, and Danton at once anticipated what would be his doom. As +he entered his cell he said to his jailer: "I erected the Tribunal. I +ask pardon of God and men." But even yet he did not grasp the full +meaning of what he had done. At his trial he wished to introduce his +evidence fully, protesting "that he should understand the Tribunal since +he created it;" nevertheless, he did not understand the Tribunal, he +still regarded it as more or less a court. Topino-Lebrun, the artist, +did understand it. Topino sat on the jury which tried Danton, and +observed that the heart of one of his colleagues seemed failing him. +Topino took the waverer aside, and said: "This is not a _trial_, it is a +_measure_. Two men are impossible; one must perish. Will you kill +Robespierre?--No.--Then by that admission you condemn Danton." Lebrun in +these few words went to the root of the matter, and stated the identical +principle which underlies our whole doctrine of the Police Power. A +political court is not properly a court at all, but an administrative +board whose function is to work the will of the dominant faction for the +time being. Thus a political court becomes the most formidable of all +engines for the destruction of its creators the instant the social +equilibrium shifts. So Danton found, in the spring of 1794, when the +equilibrium shifted; and so Robespierre, who slew Danton, found the next +July, when the equilibrium shifted again. + +Danton died on the 5th April, 1794; about three months later Jourdan won +the Fleurus campaign. Straightway Thermidor followed, and the Tribunal +worked as well for the party of Thermidor as it had for the Jacobins. +Carrier, who had wallowed in blood at Nantes, as the ideal Jacobin, +walked behind the cart which carried Robespierre to the scaffold, +shouting, "Down with the tyrant;" but that did not save him. In vain he +protested to the Convention that, were he guilty, the whole Convention +was guilty, "down to the President's bell." By a vote of 498 out of 500, +Carrier was sent before the Tribunal which, even though reorganized, +condemned him. Therezia Cabarrus gaily presided at the closing of the +Jacobin Club, Tallien moved over to the benches on the right, and +therefore the court was ruthless to Fouquier. On the 11 Thermidor, +seventy members, officers, or partisans of the Commune of Paris, were +sent to the guillotine in only two batches. On the next day twelve more +followed, four of whom were jurymen. Fouquier's turn came later. It may +also be worth while for Americans to observe that a political court is +quite as effective against property as against life. The Duke of Orleans +is only the most celebrated example of a host of Frenchmen who perished, +not because of revenge, fear, or jealousy, but because the party in +power wanted their property. The famous Law touching Suspected Persons +(loi des suspects) was passed on September 17, 1793. On October 10, +1793, that is three weeks afterward, Saint-Just moved that additional +powers should be granted, by the Convention, to the Committee of Public +Safety, defining, by way of justification for his motion, those who fell +within the purview of this law. Among these, first of all, came "the +rich," who by that fact alone were to be considered, _prima facie_, +enemies to their country. + +As I stated at the beginning of this chapter, history never can repeat +itself; therefore, whatever else may happen in the United States, we +certainly shall have no Revolutionary Tribunal like the French Tribunal +of 1793, but the mechanical principle of the political court always +remains the same; it is an administrative board the control of which is +useful, or may be even essential, to the success of a dominant faction, +and the instinctive comprehension which the American people have of this +truth is demonstrated by the determination with which they have, for +many years, sought to impose the will of the majority upon the +judiciary. Other means failing to meet their expectations, they have now +hit on the recall, which is as revolutionary in essence as were the +methods used during the Terror. Courts, from the Supreme Court downward, +if purged by recall, or a process tantamount to recall, would, under +proper stress, work as surely for a required purpose as did the tribunal +supervised by Fouquier-Tinville. + +These considerations rather lead me to infer that the extreme complexity +of the administrative problems presented by modern industrial +civilization is beyond the compass of the capitalistic mind. If this be +so, American society, as at present organized, with capitalists for the +dominant class, can concentrate no further, and, as nothing in the +universe is at rest, if it does not concentrate, it must, probably, +begin to disintegrate. Indeed we may perceive incipient signs of +disintegration all about us. We see, for example, an universal contempt +for law, incarnated in the capitalistic class itself, which is +responsible for order, and in spite of the awful danger which impends +over every rich and physically helpless type should the coercive power +collapse. We see it even more distinctly in the chronic war between +capital and labor, which government is admittedly unable to control; we +see it in the slough of urban politics, inseparable from capitalistic +methods of maintaining its ascendancy; and, perhaps, most disquieting of +all, we see it in the dissolution of the family which has, for untold +ages, been the seat of discipline and the foundation of authority. For +the dissolution of the family is peculiarly a phenomenon of our +industrial age, and it is caused by the demand of industry for the cheap +labor of women and children. Napoleon told the lawyers who drafted the +Code that he insisted on one thing alone. They must fortify the family, +for, said he, if the family is responsible to the father and the father +to me, I can keep order in France. One of the difficulties, therefore, +which capital has to meet, by the aid of such administrative ability as +it can command, is how to keep order when society no longer rests on the +cohesive family, but on highly volatilized individuals as incohesive as +grains of sand. + +Meditating upon these matters, it is hard to resist the persuasion that +unless capital can, in the immediate future, generate an intellectual +energy, beyond the sphere of its specialized calling, very much in +excess of any intellectual energy of which it has hitherto given +promise, and unless it can besides rise to an appreciation of diverse +social conditions, as well as to a level of political sagacity, far +higher than it has attained within recent years, its relative power in +the community must decline. If this be so the symptoms which indicate +social disintegration will intensify. As they intensify, the ability of +industrial capital to withstand the attacks made upon it will lessen, +and this process must go on until capital abandons the contest to defend +itself as too costly. Then nothing remains but flight. Under what +conditions industrial capital would find migration from America +possible, must remain for us beyond the bounds even of speculation. It +might escape with little or no loss. On the other hand, it might fare as +hardly as did the southern slaveholders. No man can foresee his fate. In +the event of adverse fortune, however, the position of capitalists would +hardly be improved by the existence of political courts serving a +malevolent majority. Whatever may be in store for us, here at least, we +reach an intelligible conclusion. Should Nature follow such a course as +I have suggested, she will settle all our present perplexities as simply +and as drastically as she is apt to settle human perturbations, and she +will follow logically in the infinitely extended line of her own most +impressive precedents. + + +FOOTNOTES: + +[42] In these observations on the intellectual tendencies of capital I +speak generally. Not only individual capitalists, but great +corporations, exist, who are noble examples of law-abiding and +intelligent citizenship. Their rarity, however, and their +conspicuousness, seem to prove the general rule. + +[43] By the Law of November 27, 1790, priests refusing to swear +allegiance to the "civil constitution" of the clergy were punished by +loss of pay and of rights of citizenship if they continued their +functions. 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