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 const.i.tutionality of the Sherman Act had been so often upheld by the judiciary that the Chief Justice himself admitted that so long as Congress allowed him to use his reason, these "contentions [were] plainly foreclosed." Therefore, for him the path of least resistance was to use his _reason_, and, as a magistrate, to amend a statute which Congress ought to have amended, but had _unreasonably_ omitted to amend. Such was the final and logical result of the blending of judicial and legislative functions in a court, as they are blended under the American const.i.tutional system. Nor is it unworthy of remark, that the Chief Justice, in abstaining from questioning the const.i.tutionality of the act, expressly intimated that he did so because, by the use of his reason, he could make that reasonable and const.i.tutional which otherwise might be unreasonable and unconst.i.tutional. The defendants pressed the argument that destroying the freedom of contract, as the Sherman Law destroyed it, was to infringe upon the "const.i.tutional guaranty of due process of law." To this the Chief Justice rejoined: "But the ultimate foundation of all these arguments is the a.s.sumption that reason may not be resorted to in interpreting and applying the statute.... As the premise is demonstrated to be unsound by the construction we have given the statute," these arguments need no further notice.[38]

Should Congress amend the Sherman Act, as it seems somewhat disposed to do, by explicitly enacting the rule of the Trans-Missouri Case, a grave issue would be presented. The Chief Justice might submit, and thus avert, temporarily at least, a clash; or, he might hold such an amendment unconst.i.tutional as denying to the Court the right to administer the law according to due process. A trial of strength would then be imminent.

Nearly a century ago, Jefferson wrote to Spencer Roane, "The Const.i.tution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."[39] And however much we may recoil from admitting Jefferson's conclusion to be true, it none the less remains the fact that it has proved itself to be true, and that the people have recognized it to be true, and have taken measures to protect themselves by bringing the judiciary under the same degree of control which they enforce on other legislators. The progression has been steady and uniform, each advance toward an a.s.sumption 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 const.i.tutional limitations according to their notions of reasonableness, the people must have the means of securing judges whose views touching reasonableness coincided with their own. And behold, within ten years, by the const.i.tution of 1846, New York adopted an elective judiciary.

Then followed the Dred Scott Case, the Civil War, and the attack on legislative authority in Hepburn _v_. Griswold. Straightway the Court received an admonition which it remembered for a generation. Somewhat forgetful of this, on May 15, 1911, Chief Justice White gave his opinion in the Standard Oil Case, which followed hard upon a number of state decisions intended to override legislation upon several burning social issues. Forthwith, in 1912, the proposition to submit all decisions involving a question of const.i.tutional law to a popular vote became an issue in a presidential election. Only one step farther could be taken, and that we see being taken all about us. Experience has shown, in New York and elsewhere, that an election, even for a somewhat short term, does not bring the judge so immediately under popular control that decisions objectionable to the majority may not be made. Hence the recall. The degradation of the judicial function can, in theory at least, go no farther. Thus the state courts may be said already to be prostrate, or likely shortly to become prostrate. The United States courts alone remain, and, should there be a struggle between them and Congress, the result can hardly be doubted. An event has recently occurred abroad which we may do well to ponder.

Among European nations England has long represented intelligent conservatism, and at the heart of her conservatism lay the House of Lords. Through many centuries; and under many vicissitudes this ancient chamber had performed functions of the highest moment, until of late it had come to occupy a position not dissimilar to that which the Supreme Court of the United States yet holds. On one side it was the highest legal tribunal of the Empire, on the other it was a non-representative a.s.sembly, seldom indeed originating important legislation, but enjoying an absolute veto on legislation sent it from the Commons. One day in a moment of heated controversy the Lords vetoed a bill on which the Commons had determined. A dissolution followed and the House of Lords, as a political power, faded into a shadow; yet, notwithstanding this, its preeminence as a court has remained intact. Were a similar clash to occur in America no such result could be antic.i.p.ated. Supposing a President, supported by a congressional majority, were to formulate some policy no more subversive than that which has been formulated by the present British Cabinet, and this policy were to be resisted, as it surely would be, by potent financial interests, the conflicting forces would converge upon the Supreme Court. The courts are always believed to tend toward conservatism, therefore they are generally supported by the conservative interest, both here and elsewhere. In this case a dilemma would be presented. Either the judges would seek to give expression to "preponderant" popular opinion, or they would legislate. In the one event they would be worthless as a restraining influence. In the other, I apprehend, a blow would fall similar to the blow which fell upon the House of Lords, only it would cut deeper. Shearing the House of Lords of political power did not dislocate the administration of English justice, because the law lords are exclusively judges. They never legislate.

Therefore no one denounced them. Not even the wildest radical demanded that their tenure should be made elective, much less that they should be subjected to the recall. With us an entirely different problem would be presented for solution. A tribunal, nominally judicial, would throw itself across the path of the national movement. It would undertake to correct a disturbance of the social equilibrium. But what a shifting of the social equilibrium means, and what follows upon tampering with it, is a subject which demands a chapter by itself.

FOOTNOTES:

[18] 6 Cranch 135.

[19] New Jersey _v_. Wilson, 7 Cranch 164; decided in 1812.

[20] Coates _v_. Mayor of New York, 7 Cowen 585.

[21] Charles River Bridge _v_. Warren Bridge, 11 Peters 420, 553.

[22] Boston & Maine Railroad _v_. County Commissioners, 79 Maine 393.

[23] Wynehamer _v_. The People, 13 N.Y. 393.

[24] Mugler _v._ Kansas, 133 U.S. 623.

[25] Fertilizing Co. _v_. Hyde Park, 97 U.S. 659.

[26] Slaughter House Cases, 16 Wallace 78, decided in 1873.

[27] 94 U.S. 113.

[28] Chicago, Milwaukee & St. Paul Ry. _v._ Minnesota, 134 U.S. 461, decided March 24, 1890.

[29] n.o.ble State Bank _v._ Haskell, 219 U.S. 104.

[30] See the extraordinary case of Douglas _v._ Kentucky, 168 U.S. 488, which must be read in connection with Gregory _v._ Trustees of Shelby College, 2 Metc. (Kentucky) 589.

[31] Bra.s.s _v._ North Dakota, 133 U.S. 391.

[32] 169 U.S. 466.

[33] _The Federalist_, No. LXXVIII.

[34] 221 U.S. 91.

[35] 60th Congress, 2d Session, Senate, Report No. 848, Adverse Report by Mr. Nelson, Amending Anti-trust Act, January 26, 1909, page 11.

[36] Standard Oil Company _v_. United States, 221 U.S. 1.

[37] United States _v_. American Tobacco Company, 221 U.S. 191, 192.

[38] 221 U.S. 69.

[39] To Spencer Roane, Sept. 6, 1819, Ford, 10, 141.

CHAPTER IV

THE SOCIAL EQUILIBRIUM

I a.s.sume 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 cla.s.s, 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 cla.s.ses 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 cla.s.s 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 cla.s.s depend.

For example, the modern English landlords replaced the military feudal aristocracy during the sixteenth century, because the landlords had more economic capacity and less credulity. The men who supplanted the mediaeval soldiers in Great Britain had no scruple about robbing the clergy of their land, and because of this quality they prospered greatly. Ultimately the landlords reached high fortune by controlling the boroughs which had, in the Middle Ages, acquired the right to return members to the House of Commons. Their domination lasted long; nevertheless, about 1760, the rising tide of the Industrial Revolution brought forward another type of mind. Flushed by success in the Napoleonic wars the Tories failed to appreciate that the social equilibrium, by the year 1830, had shifted, and that they no longer commanded enough physical force to maintain their parliamentary ascendancy. They thought they had only to be arrogant to prevail, and so they put forward the Duke of Wellington as their champion. They could hardly have made a poorer choice. As Disraeli has very truly said, "His Grace precipitated a revolution which might have been delayed for half a century, and need never have occurred in so aggravated a form." The Duke, though a great general, lacked knowledge of England. He began by dismissing William Huskisson from his Cabinet, who was not only its ablest member, but perhaps the single man among the Tories who thoroughly comprehended the industrial age. Huskisson's issue was that the franchise of the intolerably corrupt East Retford should be given to Leeds or Manchester. Having got rid of Huskisson, the Duke declared imperiously that he would concede nothing to the disfranchised industrial magnates, nor to the vast cities in which they lived. A dissolution of Parliament followed and in the election the Tories were defeated. Although Wellington may not have been a sagacious statesman, he was a capable soldier and he knew when he could and when he could not physically fight. On this occasion, to again quote Disraeli, "He rather fled than retired." He induced his friends to absent themselves from the House of Lords and permit the Reform Bill to become law. Thus the English Tories, by their experiment with the Duke of Wellington, lost their boroughs and with them their political preeminence, but at least they saved themselves, their families, and the rest of their property.

As a cla.s.s they have survived to this day, although shorn of much of the influence which they might very probably have retained had they solved more correctly the problem of 1830. In sum, they were not altogether impervious to the exigencies of their environment. The French Revolution is the cla.s.sic example of the annihilation of a rigid organism, and it is an example the more worthy of our attention as it throws into terrible relief the process by which an intellectually inflexible race may convert the courts of law which should protect their decline into the most awful engine for their destruction.

The essence of feudalism was a gradation of rank, in the nature of caste, based upon fear. The clergy were privileged because the laity believed that they could work miracles, and could dispense something more vital even than life and death. The n.o.bility were privileged because they were resistless in war. Therefore, the n.o.bility could impose all sorts of burdens upon those who were unarmed. During the interval in which society centralized and acquired more and more a modern economic form, the discrepancies in status remained, while commensurately the physical or imaginative force which had once sustained inequality declined, until the social equilibrium grew to be extremely unstable. Add to this that France, under the monarchy, was ill consolidated. The provinces and towns retained the administrative complexity of an archaic age, even to local tariffs. Thus under the monarchy privilege and inequality pervaded every phase of life, and, as the judiciary must be, more or less, the mouthpiece of society, the judiciary came to be the incarnation of caste.

Speaking broadly, the judicial office, under the monarchy, was vendible.

In legal language, it was an incorporeal hereditament. It could be bought and sold and inherited like an advowson, or right to dispose of a cure of souls in the English Church, or of a commission in the English army. The system was well recognized and widespread in the eighteenth century, and worked fairly well with the French judiciary for about three hundred years, but it was not adapted to an industrial environment. The judicial career came to be pretty strongly hereditary in a few families, and though the members of these families were, on the whole, self-respecting, honest, and learned, they held office in their own right and not as a public trust. So in England members of the House of Commons, who sat for nomination boroughs, did not, either in fact or theory, represent the inhabitants of those boroughs, but patrons; and in like manner French judges could never learn to regard themselves as the trustees of the civil rights of a nation, but as a component part of a cla.s.s who held a status by private t.i.tle. 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 pa.s.sed away when England turned from an agricultural into an industrial society, so in France priests and n.o.bles fell into contempt, when most peasants knew that the Church could neither harm by its curse nor aid by its blessing, and when commissions in the army were given to children or favorites, as a sort of pension, while the pith of the nation was excluded from military command because it could not prove four quarterings of n.o.bility. Hardly an aristocrat in France had shown military talent for a generation, while, when the revolution began, men like Jourdan and Kleber, Ney and Augereau, and a host of other future marshals and generals had been dismissed from the army, or were eating out their hearts as petty officers with no hope of advancement. Local privileges and inequalities were as intolerable as personal. There were privileged provinces and those administered arbitrarily by the Crown, there were a multiplicity of internal tariffs, and endless munic.i.p.al franchises and monopolies, so much so that economists estimated that, through artificial restraints, one-quarter of the soil of France lay waste. Turgot, in his edict on the grain trade, explained that kings in the past by ordinance, or the police without royal authority, had compiled a body "of legislation equivalent to a prohibition of bringing grain into Paris," and this condition was universal. One province might be starving and another oppressed with abundance.

Meanwhile, under the stimulant of applied science, centralization went on resistlessly, and the cost of administration is proportionate to centralization. To bear the burden of a centralized government taxes must be equal and movement free, but here was a rapidly centralizing nation, the essence of whose organism was that taxes should be unequal and that movement should be restricted.

As the third quarter of the eighteenth century closed with the death of Louis XV, all intelligent French administrators recognized the dilemma; either relief must be given, or France must become insolvent, and revolution supervene upon insolvency. But for the aristocracy revolution had no terrors, for they believed that they could crush revolution as their cla.s.s had done for a thousand years.

Robert Turgot was born in 1727, of a respectable family. His father educated him for the Church, but lack of faith caused him to prefer the magistracy, and on the death of his father he obtained a small place in the Court of Parliament. Afterward he became a Master of Requests, and served for seven years in that judicial position, before he was made Intendant of the Province of Limousin. Even thus early in life Turgot showed political sagacity. In an address at the Sorbonne he supported the thesis that "well-timed reform alone averts revolution."

Distinguishing himself as Intendant, on the death of Louis XV the King called Turgot to the Council of State, and in August, 1774, Turgot became Minister of Finance. He came in pledged to reform, and by January, 1776, he had formulated his plan. In that month he presented to the King his memorable Six Edicts, the first of which was the most celebrated state paper he ever wrote. It was the Edict for the Suppression of the Corvee. The corvee threw the burden of maintaining the highways on the peasantry by exacting forced labor. It was admittedly the most hateful, the most burdensome, and the most wasteful of all the bad taxes of the time, and Turgot, following the precedent of the Roman Empire, advised instead a general highway impost. The proposed impost in itself was not considerable, and would not have been extraordinarily obnoxious to the privileged cla.s.ses, but for the principle of equality by which Turgot justified it: "The expenses of government having for their object the interests of all, all should contribute to them; and the more advantages a man has, the more that man should contribute."

Nor was this the most levelling of Turgot's arguments. He pointed out that though originally the exemption from taxation, which the n.o.bility enjoyed, might have been defended on the ground that the n.o.bles were bound to yield military service without pay, such service had long ceased to be performed, while on the contrary t.i.tles could be bought for money. Hence every wealthy man became a n.o.ble when he pleased, and thus exemption from taxation had come to present the line of cleavage between the rich and poor. By this thrust the privileged cla.s.ses felt themselves wounded in their vitals, and the Parliament of Paris, the essence of privilege, a.s.sumed their defence. To be binding, the edicts had to be registered by the Parliament among the laws of France, and Parliament declined to make registration on the ground that the edicts were unconst.i.tutional, as subversive of the monarchy and of the principle of order. The opinion of the court was long, but a single paragraph gives its purport: "The first rule of justice is to preserve to every one what belongs to him: this rule consists, not only in preserving the rights of property, but still more in preserving those belonging to the person, which arise from the prerogative of birth and of position.... From this rule of law and equity it follows that every system which, under an appearance of humanity and beneficence, would tend to establish between men an equality of duties, and to destroy necessary distinctions, would soon lead to disorder (the inevitable result of equality), and would bring about the overturn of civil society."

This judicial opinion was an enunciation of the archaic law of caste as opposed to the modern law of equality, and the cataclysm of the French Revolution hinged upon the incapacity of the French aristocracy to understand that the environment, which had once made caste a necessity, had yielded to another which made caste an impossibility. In vain Turgot and his contemporaries of the industrial type, represented in England by Adam Smith or even by the younger Pitt, explained that unless taxes were equalized and movement accelerated, insolvency must supervene, and that a violent readjustment must follow upon insolvency. With their eyes open to the consequences, the n.o.bility and Clergy elected to risk revolt, because they did not believe that revolt could prevail against them. Nothing is so impressive in the mighty convulsion which ensued as the mental opacity of the privileged orders, which caused them to increase their pressure in proportion as resistance increased, until finally those who were destined to replace them reorganized the courts, that they might have an instrument wherewith to slaughter a whole race down to the women and children. No less drastic method would serve to temper the rigidity of the aristocratic mind. The phenomenon well repays an hour of study.

Insolvency came within a decade after Turgot's fall, as Turgot had demonstrated that it must come, and an insolvency immediately precipitated by the rapacity of the court which had most need of caution. The future Louis XVIII, for example, who was then known as the Comte de Provence, on one occasion, when the government had made a loan, appropriated a quarter of it, laughingly observing, "When I see others hold out their hands, I hold out my hat." In 1787 the need for money became imperative, and, not daring to appeal to the nation, the King convoked an a.s.sembly of "notables," that is to say of the privileged.

Calonne, the minister, proposed pretty much the measures of Turgot, and some of these measures the "notables" accepted, but the Parliament of Paris again intervened and declined to register the laws. The Provincial Parliaments followed the Parliament of Paris. After this the King had no alternative but to try the experiment of calling the States-General.

They met on May 4, 1789, and instantly an administrative system, which no longer rested upon a social centre of gravity, crumbled, carrying the judiciary with it. At first the three estates sat separately. If this usage had continued, the Clergy and the n.o.bles combined would have annulled every measure voted by the Commons. For six weeks the Commons waited. Then on June 10, the Abbe Sieyes said, "Let us cut the cable. It is time." So the Clergy and the n.o.bility were summoned, and some of the Clergy obeyed. This sufficed. On motion of Sieyes, the Commons proclaimed themselves the National a.s.sembly, and the orders fused.

Immediately caste admitted defeat and through its mouthpiece, the King, commanded the a.s.sembly to dissolve. The Commons refused to dissolve, and the n.o.bles prepared for a _coup d'etat._ The foreign regiments, in the pay of the government, were stationed about Paris, while the Bastille, which was supposed to be impregnable, was garrisoned with Swiss. In reply, on July 14, 1789, the citizens of Paris stormed the Bastille. An unstable social equilibrium had been already converted by pressure into a revolution. Nevertheless, excentric as the centre of gravity had now become, it might have been measurably readjusted had the privileged cla.s.ses been able to reason correctly from premise to conclusion. Men like Lafayette and Mirabeau still controlled the a.s.sembly, and if the King and the n.o.bility had made terms, probably the monarchy might have been saved, certainly the ma.s.sacres would have been averted. As a decaying cla.s.s is apt to do, the n.o.bility 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 n.o.bility, led by the Comte d'Artois, the future Charles X, fled to Germany to seek for help abroad, while the bolder remained to plan an attack on the rebellion. On October 1, 1789, a great military banquet was given at Versailles. The King and Queen with the Dauphin were present. A royalist demonstration began. The bugles sounded a charge, the officers drew their swords, and the ladies of the court tore the tricolor from the soldiers' coats and replaced it with the white c.o.c.kade. On October 5, a vast mult.i.tude poured out of Paris, and marched to Versailles. The next day they broke into the palace, killed the guards, and carried the King and Queen captive to the Tuileries. But Louis was so intellectually limited that he could not keep faith with those who wished him well. On July 14, 1790, the King swore, before half a million spectators, to maintain the new const.i.tution. In that summer he was plotting to escape to Metz and join the army which had been collected there under the Marquis de Bouille, while Bouille himself, after the rising at Nancy, was busy in improving discipline by breaking on the wheel a selection of the soldiers of the Swiss regiment of Chateauvieux which had refused to march against Paris on the 14th of July, 1789. In October, 1790, Louis wrote to the King of Spain and other sovereigns to pay no heed to his concessions for he only yielded to duress, and all this even as Mirabeau made his supreme effort to save those who were fixed upon destroying themselves. Mirabeau sought the King and offered his services. The court sneered at him as a dupe. The Queen wrote, "We make use of Mirabeau, but we do not take him seriously." When Mirabeau awoke to his predicament, he broke out in mixed wrath and scorn: "Of what are these people thinking? Do they not see the abyss yawning at their feet?

Both the King and Queen will perish, and you will live to see the rabble spurn their corpses."

The King and Queen, the n.o.bility and Clergy, could not see the abyss which Mirabeau saw, any more than the lawyers could see it, because of the temper of their minds. In the eye of caste Europe was not primarily divided into nations to whom allegiance was due, but into superimposed orders. He who betrayed his order committed the unpardonable crime.

Death were better than that. But to the true aristocrat it was inconceivable that serfs could ever vanquish n.o.bles in battle. Battle must be the final test, and the whole aristocracy of Europe was certain, Frenchmen knew, to succor the French aristocracy in distress.

So in the winter of 1790 the French fugitives congregated at Coblentz on the German frontier, persuaded that they were performing a patriotic duty in organizing an invasion of their country even should their onset be fatal to their relatives and to their King. And Louis doubted not that he also did his duty as a trustee of a divine commission when he in one month swore, before the a.s.sembly, to maintain the const.i.tution tendered him, and in the next authorized his brother, the Comte d'Artois, to make the best combination he could among his brother sovereigns for the gathering of an army to a.s.sert his divine prerogative. On June 21, 1791, Louis fled, with his whole family, to join the army of Bouille, with intent to destroy the entire race of traitors from Mirabeau and Lafayette down to the peasants. He managed so ill that he was arrested at Varennes, and brought back whence he came, but he lied and plotted still.