Title: The Theory of Social Revolutions
Author: Adams, Brooks, 1848-1927
Language: English
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     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. By Law of August 26, 1792, by transportation to Cayenne.





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