 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. Bigelot, 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 the deep conviction which is the result of more than twenty years of study and reflection upon this subject. 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 eye 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 harbour 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 center 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 20th century. Just as 125 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. That 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 a chance 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 a subject be tedious. No one could imagine that the New York press of today would print the disquisitions which Hamilton wrote in 1788 in support of the constitution or that if it did anyone would read them least of all the lawyers and he had 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 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 everyone 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 towards 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 indicates social incoherence we can hardly resist a growing apprehension touching the future nor is that apprehension allied if to reassure our self we return 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 war like 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 18th 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's story was ten years old in 1789 when the constitution was adopted his earliest impression therefore were of the confederation and I know no better description of the interval just subsequent to the piece of 1783 then is contained in a few lines in his dissenting opinion in the Charles River Bridge case quote 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 manufacturers 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 end of quote 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 traveler 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 almost 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 seventeen eighty nine he compromised but he did not determine the question of sovereignty he alluded and 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 apometox 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 sees wandering 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 to gather 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 a 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 one 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 a 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 stoppage of movement is death and the movement of every people flows along its highways and 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 19th 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 medieval governments preferred to do either method answers its purpose provided the government recognizes its responsibility and no government ever recognized this responsibility more fully than did the autocratic government of ancient Rome so the absolute regime of 18th century France recognized this responsibility when Lewis the 16th undertook to remedy the abuse of unequal taxation for the maintenance of the highways by abolishing the Corvée toward the middle of the 19th century the application by signs of steam to locomotion made railways a favorite speculation forthwith private capital acquired these highways and because of the elasticity 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 nor had 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 laterally discontinenced discrimination as to persons but they still uphold discrimination as to localities 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 necessary 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 farmers crops must rot upon his land if other farmers pay enough less than he to exclude him from the 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 clearinghouse is another example of the acquisition of sovereign power by irresponsible private persons primarily of course a clearinghouse 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 clearinghouse have it in their power either to expend or to contract the currency by issuing or by withdrawing clearinghouse certificates more effectively perhaps than if they control 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 want 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 this particulars nor perhaps is the reluctant surprising for the possession by a very small favorite 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 wander 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 administer 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 prescription of the owners an example of such a phenomenon occurs to me which just now seems opposite in the earlier middle ages before gunpowder made fortified houses untenable when attacked by the sovereign the highways were so dangerous that trade and manufacturers 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 firm 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 to 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 manufacturers 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 the sixth being no longer able to defend themselves they were ruthlessly and savagely plundered and fifty years later the court of kings bench gravely held that a royal grant of a monopoly had always been bad at common law though the courts 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 appeared 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 versus Allyn 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 40 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 versus Barclay coal company 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 prices in question whether it be the price of meat or coal or cotton cloth or a 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 passengers service and yet in no trade is there a stricter monopoly price the same acceleration of the social movement which has caused the 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 holds 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 a 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 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 survival 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 arbitrator's 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 eminent 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 favorite class is incapable of appreciating an approaching change of environment which must alter its social status I began with a 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 capitalist 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 50 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 offense 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 had presented 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 induced 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 a 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 authorities to obtain an absolute mastery over those political tribunals which we call courts also that master is being by them rapidly acquired so long as our courts retain their present functions no comprehensive administrative reform is possible once 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 theodorus welts 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 canvas 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 heard 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 end of prefatory note and chapter one of the theory of social revolutions chapter two of the theory of social revolutions this is a lubrivox recording all lubrivox recordings are in the public domain for more information or to volunteer please visit lubrivox.org the theory of social revolutions by brooks adams chapter two 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 had 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 salomon 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 profit 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 at the dominant political party and it came to pass in an eventide 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 an inquired after the woman and once said he's not this bathsheba the daughter of ilayam the wife of uraya the hittite and david sent messengers and took her and she came in unto him and he lay with her and she returned under her house uraya was serving in the army under joe ab david sent for uraya and told him to go home to his wife but uraya refused then david wrote a letter to joe ab and dismissed uraya ordering him to give the letter to joe ab and david wrote in the letter saying set ye uraya in the forefront of the hottest battle and retire ye from him that he may be smitten and die and the man of the city went out and fought with joe ab and there fell some of the people of the servants of david and uraya 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 you 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 lain his bosom and was unto him as a daughter and there came a traveler unto the rich man and he spared a 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 hast 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 you lamb causes 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 bear him a son indeed she bore him solomon as against david or david's important supporters men like iraia 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 ali's parrots the mistress of edward the third sat on the bench at west minster 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 attenders indictments for treason and forfeitures avowedly partisan henry the seventh used the star chamber to ruin the remnants of the feudal aristocracy henry the eighth exterminated as vagrants the wretched monks whom he had evicted the prosecutions under charles the first largely induced the great rebellion and finally the limit of endurance was reached when charles the second made jeffrey's 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 jeffrey's has no learning no sense no manners and more impudence than ten cart at street walkers the first object was to convict algernon sydney of treason jeffrey's 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 juriment torrents of frantic abuse intermixed with oaths and curses the law required proof of an overact of treason many years before sydney had written a philosophical treaties touching resistance by the subject to the sovereign as a constitutional principle but though the fragment contained nothing more than the doctrines of lock sydney had cautiously shown it to no one and it had only been found by searching his study jeffrey's told the jury that if they believed the book to be sydney's book written by him they must convict for screber 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 jeffrey's had legislated when he ruled it to be the law that to write a word 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 mansfeld admitted evidence of the customs of merchants but he should not legislate to do so as jeffrey's did in sydney's case is tantamount to murder jeffrey's 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 jeffrey's 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 storts 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 jeffrey's who will obey his orders in the colonies the subservience see 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 interesting power to any men 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 quote 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 ones 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 end quote 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 you would care to maintain that during the 19th century life and property were safer in america or crime better dealt with than in england friends 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 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 defined 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 implemented 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 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 and 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 save him save impeachment for what is tent amount to crime or being overruled by constitutional amendments which you have purposely made too hard to obtain to be a remedy he is to be judged in his own case without an appeal nowhere in all his long and masterly defense 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 felt 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 legislators now at length exclaimed the jeffersonian in triumph you admit your thesis you propose to close 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 pretense 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 precedence from the ship money down to the ritz 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 j for the first chief justice who in some important respects was more federalist than hamilton while john adam selected john marshal 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 marshal died slavery had become a burning issue and the slave owners controlled the appointing power general jackson appointed tainy to sustain the expansion of slavery and when the anti-slavery party carried the country with lincoln supplanted tainy with chase in order that chase might stand by him and he struggled 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 forgiving 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 proposed to consolidate the 13 states under a new sovereign there were but two methods by which they could prevail they could use force or to secure a scent 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 everyone 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 pinkney of south carolina suggested that congress should be empowered to negative state legislation but such an alternative for obvious reasons would have been less platyple 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 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 j 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 pink knees 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 sovereignty 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 pinkie wished congress to be given explicitly the power to nullify state legislation and marshall very sensibly pointed out that where jefferson's claim carried into practice it would create quote a hydra in government and a quote yet i am confident that marshall did not appreciate whether 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 though 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 which constitutionality no federalist judge ever doubted but which but which jefferson considered as clearly a violation of the fundamental compact since they tended to drive certain states as he thought into quote revolution and blood end quote 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 quote the progress of the evil end quote within her territory by declining to execute or buy quote nullifying end quote 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 there in mr. jefferson always described it as amounting to a revolution as profound as if less bloody than the revolution of 1776 and though we may be 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 parties 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 defense of shea'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 adam sent ellsworth as an envoy to france to try to negotiate a treaty which should reestablish peace between the two countries ellsworth succeeded in his mission but the hardships of his journey injured his health and he in turn resigned in the autumn of 1800 then adam's offer the chief justice ship to jay but jay would not return to office and after this the president selected his secretary of state john marshal 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 adam's demonstrate his legal genius more convincingly than in this remarkable nomination yet it must be conceded that in making john marshal chief justice john adam's 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 adam's deceived for 34 years john marshal labored ceaselessly to counteract jefferson's constitutional principles while jefferson always denounced the political partiality of the federal courts and above all the quote rancorous hatred which marshal bears to the government of his country and the cunning and sophistry within which he is able to enshroud himself end quote 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've already pointed out during the tentative interval which extended until apometox the supreme courts 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 marshal by common consent ranks as one of the greatest and purest of americans yet even marshal 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 marshal 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 marshal its secretary of state sealed marbury's commissions 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 quote midnight and quote appointments as he called them jefferson directed mr madison his secretary of state to withhold the commission and at the next december term of their 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 appear before marshal through his secretary of state and finally in february 1803 marshal 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 saved to humiliate a political opponent marshal had no intention of commanding madison to surrender the commission to marbury he was too adroit a politician for that marshal 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 marshal 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 marshal'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 marshal probably felt exasperated by jefferson's virulence against these final appointments made by john adams while marshal 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 footnote marshal'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 eken versus rob 12 s and r 344 and a footnote 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 marshal one day in december 1804 senator giles of virginia in a conversation with john quincey adams has reported in his diary discussed the issue at large and that conversation is most opposite 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 quote 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 feel them better end quote 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 marshal never again committed a solicism 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 marshal in a minority then by appointing men like giles he could have compelled marshal 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 abolition caused by marshal's acrimony toward jefferson because of jefferson's strictures on the appointments made by his predecessor subsided leaving no very seriously muted mischief behind save the precedent of the nullification of an act of congress by the supreme court that preceded however was followed by marshal'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 misery 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 a probrium 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 criticize 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 one's 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 heppern versus griswold by appointments to the bench assumes a somber 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 whore 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 act at the moment upon their fellow citizens heppern versus griswold was decided in conference on november 27th 1869 when eight justices were on the bench on february one following justice grier resigned and on february seven 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 seven 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 pre-existing 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 heppern versus 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 10 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 nox versus lee was argued by the attorney general and on may one 1871 judgment was entered reversing heppern versus griswold both the new judges voting with the former minority thus creating the necessity 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 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's 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 100 years 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 i might go on into endless detail but i prehend that these cases which are the most important which have ever arisen on this issue suffice for my purpose footnote in 1889 mr jc bandcroft 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 us reports page cc xx xv mr davis has however omitted from his list the dread scott case probably for the technical reason that in 1857 when the cause was decided the misery compromise had been repealed nevertheless though this is true tansis decision hinged upon the invalidity of the law besides the statutes which i have mentioned in the text the two most important i suppose which have been annulled have to me no little interest these are civil rights acts of 1875 and the employer's liability act of 1906 the civil rights act of 1875 grew rapidly unpopular and the decision which overturned it coincided with a 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 employer's 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 employer's liability cases 223 us one sustained the legislation in the most thoroughgoing manner i know not where to look for two better illustrations of my theory and a footnote i contend that no court can because of the nature of its being effectively check a popular majority acting through a court in 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 a second 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 learning 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 worried 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 dread scott case as an illustration in 1857 the slave holding 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 a 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 macaulik versus maryland cohens versus virginia and gibbons versus ogden 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 versus madison is not an episode of 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 dread 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 end of chapter two the limitations of the judicial function