 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 old 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 ascend 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 a 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 nonetheless 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 standards 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 began, equality before the law ends, as I have tried to show but 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 fateful to the principle of order as inequality in the dispension 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 precedence leads to wrongful conclusions, the legislator 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 eminent. 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 dealing 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 Justice ship, 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 Chris Holm, 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 Chris Holm. Jay was followed by his associates with the exception of IRL Jay of North Carolina. Fourth with 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 Justice ship 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 at 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. When a law is in its nature a contract, a repeal of the law cannot divest 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. The State of New Jersey had granted an exception from taxation to lands ceded to certain Indians. Marshall held that this contract ran with the land and enured 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 combination 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 in both real and personal property where thereupon conveyed to this corporate body in trust for educational purposes. In 1816 the Legislature of New Hampshire very organized 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 medieval 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 the social revolution was affected 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. A 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 legislator 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. The court thus simply dispensed the legislator from obedience to the law saying 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 his question was first presented to the Supreme Court of the United States did not come up until 1837. Then Joseph's 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 legislator chartered the Charles River Bridge Company to build a bridge between Boston and Charleston authorizing it by a way of consideration to collect tolls for 40 years. In 1792 the franchise was extended to 70 years when the bridge was to revert to the Commonwealth. In 1828 the legislator 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 bridge 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 20 years to run. As story pointed out no one denied the charter 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 charter 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. 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 cashword and almost unparalleled prerogative. They assumed a supreme function which can only be compared to the dispensing power claimed by the Sturz 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 constrained 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 prater 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 the 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, quote, 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, end quote. 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 its 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 in the constitution of the state of new york adopted in 1846 and it was to invoke the protection of this clause that one wind hammer 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 this decision which represented the profoundest convictions of men of the caliber of Comstock and Dignio 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 cases in the other the effort was unavailing as Jefferson prophesied that it would be I have told 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 14th amendment Mr Justice Harlan swept Mr Justice Comstock aside by quietly ignoring an argument which was unanswerable the same series of phenomena have appeared in regard to laws confiscating property invested in lotteries when opinion turned against lotteries or inoccupation 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 awful in fine whenever in fine whenever pressure has reached a given intensity on one pretext or another courts have been forced 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 14th 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 slaughterhouse 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 a state of road island the 14th 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 14th 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 although even at that relatively early day this conservatism met with a 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 at that moment a 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 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 criticize 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 will remember the stir made by the case of mon versus illinois 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 mon versus illinois attained it to a point at which they began to grasp many important prerogatives of sovereignty and to impose what was tent amount 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 million dollars 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 19th century and bradley like story before him remonstrated against turning the bench of magistrates to which he belonged from a tribunal which should propound the 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 and st paul railway contended that this statute was unconstitutional because it was unreasonable and the majority of the court sustained their contention 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 quote i cannot agree to the decision of the court in this case it practically overrules munn versus illinois the governing principle of those cases was that the regulation and settlement of the fares of railroads and other public accommodations is a legislative prerogative and not a judicial one this is a principle which i regard as of great importance but it is said that all charges should be reasonable and that none but reasonable charges can be exacted and it is urged that what is a reasonable charge is a judicial question on the contrary it is preeminently a legislative one involving considerations of policy as well as remote narration 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 frates 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 end of quote 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 states 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 births 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 quote in aid of what is sanctioned by usage or held by preponderant opinion to be necessary to the public welfare end of quote a representative chamber reaches its conclusions touching preponderant opinion by a simple process but the influences which sway courts are obscure 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 proceedings crowd unbidden upon the mind the court of king's bench when it held Hampton to be liable for the ship money draped the scaffold for charles the first the parliament of paris when it denounced tergos edict touching the corvée through down 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 ritz of assistance presaged the american revolution and the dread scott decision was the prelude to the civil war the capital essential of justice is that under like conditions all should fair like the magistrate should be no respect 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 in 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 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 three thousand dollars that he had no monopoly as there were many hundreds 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 where 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 demure 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 and dismissed brass to his fate the converse case is a very famous one known as smith versus aims 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 29 percent 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 40 percent 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 and 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 the cheaper rates or economies might be made by the company or both causes and many others of increased earnings might combine corporation council 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 8 percent 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 on sound legislation yet it is noteworthy that within three years after this decision mr hill bought 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 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 emulate 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 exercises 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 politics blamed 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 a tanger and exposed 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 strong by correlating local customs in such wise that some general principle can be deduced to which shall protect the civil rights of those who cannot protect them from the people of england 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 bounded to garden differently 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's ever produced no man 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 drove as I've shown to carry this principle into effect Jay and marshal 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 waiver as due 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 a 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 transmissory freight association and in 1896 the case came up for a judication I have nothing to say touching the policy involved I'm 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 transmissory case was argued on December 8 1896 very elaborately and by the most eminent council 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 marshal had laid down a general principle in the dartmouth college case or story in the charles river bridge case or wait in mun versus illinois or bradley in the minnesota raid case then the process of agitation immediately began in the words of mr. justice harlan 15 years later quote but those who were in combinations that were illegal did not despair they had 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 end quote other great causes involving the same issue were tried the question was repeatedly re argued 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 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 their reasonable methods they employed and if the evidence were satisfactory to receive what was tent amount 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 quote the defense 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 antitrust act as suggested by this bill would be to entirely emasculated and for all practical purposes render it nukatory 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 end quote and so the senate did indefinitely postpone the bill matters to thus when the government brought process to dissolve the standard oil company as an unlawful combination the cosmos 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 beat 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 comprehend the chief justice unreservedly crossed the chasm on whose brink american jurists had been shuttering for ninety years the task the chief justice assumed was difficult almost beyond precedent he proposed a 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 15 years to pacify the public which would certainly resent the 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 this contradictory results the chief justice began rather after the manner of marshal in marbury versus medicine by an extra judicial disquisition the object of this disquisition was to justify his admission of the evidence of reasonableness as a defense 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 contended himself with stating that admitting for the sake of argument but without approving all the defendant advanced he should sustain the government but have so disposed of the case would not have suited his purpose what the chief justice had it at hard to do was to surrender a fundamental principle and yet to appear to make no surrender at all hence he prepared his preliminary and extrajudicial essay on the human reason of whose precise meaning i must admit i still after many perusals have graved out 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 15 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 today 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 i have never supposed that this argument carried complete conviction either to the legal profession to the public or to congress certainly did not convince mr. justice harland who failed to fathom it and bluntly expressed his astonishment in a dissenting opinion in another case from which i regret to say i can only quote a couple of paragraphs although the whole deserves attentive perusal quote 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 transmissory and joint traffic cases if we resort to reason this statement surprises me quite as much as with 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 undo 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 end quote the phenomenon which amazed mr. justice harland is i can see 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 have burned versus chriswald and an opportunity seemed to be presented to conciliate everyone 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 appalled by the judiciary that the chief justice himself admitted that so long as congress allowed him to use his reason these quote contentions were plainly foreclosed and quote 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 a sherman law destroyed it was to infringe upon the constitutional guarantee of due process of law to this the chief justice rejoined quote 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 and to quote should congress amend the sherman act as it seems somewhat disposed to by explicitly enacting the rule of the transmissory case a grave issue would be presented a trial of strength would then be eminent nearly a century ago jefferson wrote to spencer roan quote 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 end quote and however much may recoil from admitting jefferson's conclusion to be true it nonetheless 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 advanced 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 the 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 10 years by the constitution of 1846 new york adopted an elective judiciary then followed the dread scott case the civil war and the attack on legislative authority in hepburn versus 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 fourth with 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 in 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 intelligence 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 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 in 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 these 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 interests 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 sharing 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 the disturbance of a 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 end of chapter three american courts as legislative chambers chapter four of the theory of social revolutions this is a liberivox recording all liberivox recordings are in the public domain for more information or to volunteer please visit liberivox.org the theory of social revolutions by brooks adams chapter four 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 16th century because the landlords had more economic capacity and less credulity the men who supplanted the medieval 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 quote his grace precipitated a revolution which might have been delayed for half a century and need never have occurred in so aggravated a form and quote the Duke though a great general lacked knowledge of england he began by dismissing William huskison from his cabinet who was not only its ablest member but perhaps the single man among the tories who thoroughly comprehended the industrial age huskison's issue was that the franchise of the intolerably corrupt east redford should be given to leads or Manchester having got rid of huskison the Duke declared imperiously that he would concede nothing to the disenfranchised industrial magnates nor to the vast cities in which they lived a dissolution of parliament followed and in the election of 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 quote he rather fled than retired and quote 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 some they were not altogether impervious to the exigencies of their environment the french revolution is a 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 cased based upon fear the clergy were privileged because the lady believed that they could work miracles and could have spent something more vital even than life and death the nobility were privileged because they were resist less 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 the local tariffs thus under the monarchy privilege and inequality pervaded every phase of life and as a judiciary must be more or less the mouthpiece of society the judiciary came to be the incarnation of cased speaking broadly the judicial office under the monarchy was vendible in legal language it was an incorporeal hereditment it could be bought and sold and inherited like an advousen or a 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 18th century and worked fairly well with the french judiciary for about 300 years but it was not adapted to an industrial environment the judicial career came to be pretty strong 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 set 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 path 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 shordon and encleberne and auguro 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 to go and his edict and the grain trade explained that the 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 pressed 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 18th century closed with the death of louis the 15th 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 to go was born in 1727 of a respectable family his father educated him for the church but lack of faith caused him to prefer the majesty 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 limousine even this early in life to go showed political sagacity in an address at the serbonne he supported the theses that well-timed reform alone avert revolution distinguishing himself as intendant on the death of louis the 15th the king called to go to the council of state and in august 1774 to go 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 through the burden of maintaining the highways and 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 to go following the precedent of the roman empire advised instead a general highway imposed the proposed impose in itself was not considerable and would have been extraordinarily obnoxious to the privileged classes but for the principle of equality by which to go justified it quote the expenses of government having for their object the interests of all should contribute to them and the more advantages a man has the more that man should contribute end quote nor was this the most leveling of togo'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 the poor by this thrust the privileged classes felt themselves wounded in their vitals and the parliament of paris the essence of privilege assumed their defense to be binding the edicts had to be registered by the parliament among the laws of france and the parliament declined to make registration on the ground the edicts were unconstitutional as subversive of the monarchy and of the principles of order the opinion of the court was long but a single paragraph gives its purport quote the first rule of justice is to preserve to everyone 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 and 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 end quote the 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 cased necessity had yielded to another which made cased an impossibility in vanter go and his contemporaries of the industrial type represented in england by adam smith or even by the younger pit 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 to wear with the 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 togo's fall as togo had demonstrated that it must come and an insolvency immediately precipitated by the repacity of the court which had most need of caution the future louis the 18th for example who was then known as the comte de province 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 cologne the minister proposed pretty much the measures of togo 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 state's general they met on may 4th 1789 then instantly an administrative system which no longer rested upon a social center of gravity crumbled carrying the judiciary with it at first the three states 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 10th the abe let us cut the cable it is time so the clergy and the nobility were summoned and some of the clergy obeyed this suffice on motion of say ace the commons proclaimed themselves the national assembly and the orders fused immediately cased 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 eccentric as a center of gravity had now become it might have been measurably readjusted had the privileged classes been able to reason correctly from the 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 classes 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 the 10th fled to germany to seek for help abroad while the boulder remained to plan and attack on the rebellion on october 1 1789 a great military banquet was given at for sale the king and queen with a dolphin were present a royalist demonstration began the bugle sounded a charge the officers drew their swords and the ladies of the court tore their tricolor from the soldier's coast and replaced it with a white cockade on october 5 a vast multitude poured out of paris and marched to versail the next day they broke into the palace killed the guards and carried the king and queen captive to the tuleres but louis was so intellectually limited that he could not keep faith with those who wished him well on july 14th in 1790 the king swore before half a million spectators to maintain the new constitution in that summer he was plotting to escape to meds and join the army which had been collected there under the marquis de bullie while bullé 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 chateau which had refused to march against paris on the 14th of july 1789 in october 1790 louis rode 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 his predicament he broke out in mixed wrath and scorn quote 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 rebels burn their corpses end quote 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 case 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 coblants 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'ertoire to make the best combination he could among his brother sovereigns for the gathering of an army to assert his divine prerogative on june 21st 1791 louis fled with his whole family to join the army of bolie 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 fariness and brought back once he came but he lied and plotted still two years had elapsed between the meeting of the state's general and the flight to fariness and in that interval nature had been busy in selecting her new favorite class the 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 asignats 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 lisinian laws and with an identical effect the emperor of germany and the king of prussia met at pilins 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 these 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 ruere it is true journeyed from his home in britney to germany to obtain the recognition of the royal princess for the insurrection which he contemplated in lavender but the insurrection when it occurred was not due so much to him or his kind as to the influence of the non-juring priests upon the peasant women of the west the mental condition of the french emigrants at cobblance during the summer of 1791 is nothing short of a psychological marvel they regarded the revolution as a jest and the flight to the rine as a picnic these beggar aristocrats male and female would throw their money away by day among the wandering natives and gamble among themselves at night if they ever thought of the future it was only as the patricians in pompe'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 cased the emigrants could not conceive of men 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 king leopold the second emperor of germany had hitherto been the chief restraining influence both at pylons and at paris through his correspondence with his sister maria and annette but leopold died on march 1st 1792 and was succeeded by francis the second a fervid reactionist and an obedient son of the church when cased fused throughout germany and prosciente austria prepared for war ruetti had returned to britney and only awaited the first decisive foreign success to stab the revolution in the back england also was ripening and the instinct of cased incarnated in george the third found its expression through enderman berke in 1790 berke 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 berks 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 marshal in the world indeed aristocracy had perhaps some justification for arrogance since the revolt in france felt 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 de marise and even on lawyers like dentin 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 kihote and betrayed his plans to the enemy i had rather perished said the queen than be saved by md lafayette and his constitutional friends and in this she only expressed the conviction which the case to which she belonged held of their duty casales protested the assembly though the king perished let us say the kingdom the arch duchess christina wrote her sister mary antonette what though he be slain if we shall triumph and kondi in december 1790 swore that he would march on leon's 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 rine 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 case some frightful spectacle was usually provided to magnify authority thus bulay broke on the wheel while the men were yet alive every one in the bodies of his soldiers when they disobeyed him and for scratching louisa 15 through the knife damions 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 skeller men and hoach 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 manifestos louis sent the journalist malay dupain to the duke of brunswick the commander-in-chief to system in his task on july 24 and on august 4 1792 the king of prussia laid down the law of case as emphatically as had the parliament of paris some 20 years before on july 25 the duke of brunswick pronounced the doom of the conquered i come said the king of prussia to prevent 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 monarchial power upon a stable basis for he continued in the later proclamation the supreme authority in france being never seizing 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 can contain some clauses written expressly for him by malay dupain and by limon the royalists if the palace of the tularies 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 parries on july 28 and simultaneously the notorious person 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 steady the social equilibrium they could rely on the fidelity of regiments filled with men against whom the emigrants and their allies the prusians had just denounced and organizing death such as bowls 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 tularies every since lafayette's visit in anticipation of a trial of strength with the revolutionists they had brought thither the swiss guard 1500 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 the 15th came forth to review the troops on the morning of the 10th of august they shouted viva 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 moribond type thrown into eccentricity the social equilibrium of a naturally conservative people they were destined to drive it still farther in this supreme moment while the prusians 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 du morez and keller man lay between the most redoubtable regiments of the world and paris the emigrants and the germans thought the invasion but a military promenade at home treasoned 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 prusians finally roland who was minister so far lost courage that he proposed to withdraw behind the lure but danton would hear of no retreat de la das he cried and core de la das et toujours de la das the assembly had not been responsible for the assault of the tolleries 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 center in danton's club of the court allures under the 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 20th 1792 the prussian column recoiled before the fire of kellerman's mob of vagabonds cobblers and tailors on the slope of almi and with a victory of almi the great 18th century readjustment of the social equilibrium of europe passed into its secondary stage end of chapter four the social equilibrium