There can be no doubt that the modern environment is changing faster than any environment ever previously changed; therefore, the social centre of gravity constantly tends to shift more rapidly; and therefore, modern civilization has unprecedented need of the administrative or generalizing mind. But, as the ma.s.s and momentum of modern society is prodigious, it will require a correspondingly prodigious energy to carry it safely from an unstable to a stable equilibrium. The essential is to generate the energy which brings success; and the more the mind dwells upon the peculiarities of the modern capitalistic cla.s.s, the more doubts obtrude themselves touching their ability to make the effort, even at present, and still more so to make it in the future as the magnitude of the social organism grows. One source of capitalistic weakness comes from a lack of proper instruments wherewith to work, even supposing the will of capital to be good; and this lack of administrative ability is somewhat due to the capitalistic att.i.tude toward education. In the United States capital has long owned the leading universities by right of purchase, as it has owned the highways, the currency, and the press, and capital has used the universities, in a general way, to develop capitalistic ideas. This, however, is of no great moment. What is of moment is that capital has commercialized education. Apparently modern society, if it is to cohere, must have a high order of generalizing mind,--a mind which can grasp a mult.i.tude of complex relations,--but this is a mind which can, at best, only be produced in small quant.i.ty and at high cost. Capital has preferred the specialized mind and that not of the highest quality, since it has found it profitable to set quant.i.ty before quality to the limit which the market will endure.

Capitalists have never insisted upon raising an educational standard save in science and mechanics, and the relative overstimulation of the scientific mind has now become an actual menace to order because of the inferiority of the administrative intelligence.

Yet, even supposing the synthetic mind of the highest power to be increasing in proportion to the population, instead of, as I suspect, pretty rapidly decreasing, and supposing the capitalist to be fully alive to the need of administrative improvements, a phalanx of Washingtons would be impotent to raise the administrative level of the United States materially, as long as the courts remain censors of legislation; because the province of the censorial court is to dislocate any comprehensive body of legislation, whose effect would be to change the social status. That was the fundamental purpose which underlay the adoption of a written const.i.tution whose object was to keep local sovereignties intact, especially at the South. Jefferson insisted that each sovereignty should by means of nullification protect itself. It was a long step in advance when the nation conquered the prerogative of a.s.serting its own sovereign power through the Supreme Court. Now the intervention of the courts in legislation has become, by the change in environment, as fatal to administration as would have been, in 1800, the success of nullification. I find it difficult to believe that capital, with its specialized views of what const.i.tutes its advantages, its duties, and its responsibilities, and stimulated by a bar moulded to meet its prejudices and requirements, will ever voluntarily a.s.sent to the consolidation of the United States to the point at which the interference of the courts with legislation might be eliminated; because, as I have pointed out, capital finds the judicial veto useful as a means of at least temporarily evading the law, while the bar, taken as a whole, quite honestly believes that the universe will obey the judicial decree. No delusion could be profounder and none, perhaps, more dangerous. Courts, I need hardly say, cannot control nature, though by trying to do so they may, like the Parliament of Paris, create a friction which shall induce an appalling catastrophe.

True judicial courts, whether in times of peace or of revolution, seldom fail to be a substantial protection to the weak, because they enforce an established _corpus juris_ and conduct trials by recognized forms. It is startling to compare the percentage of convictions to prosecutions, for the same cla.s.s of offences, in the regular criminal courts during the French Revolution, with the percentage in the Revolutionary Tribunal.

And once a stable social equilibrium is reached, all men tend to support judicial courts, if judicial courts exist, from an instinct of self-preservation. This has been amply shown by French experience, and it is here that French history is so illuminating to the American mind.

Before the Revolution France had semi-political courts which conduced to the overthrow of Turgot, and, therefore, wrought for violence; but more than this, France, under the old regime, had evolved a legal profession of a cast of mind incompatible with an equal administration of the law.

The French courts were, therefore, when trouble came, supported only by a faction, and were cast aside. With that the old regime fell.

The young Duke of Chartres, the son of egalite Orleans, and the future Louis Philippe, has related in his journal an anecdote which ill.u.s.trates that subtle poison of distrust which undermines all legal authority, the moment that suspicion of political partiality in the judiciary enters the popular mind. In June, 1791, the Duke went down from Paris to Vendome to join the regiment of dragoons of which he had been commissioned colonel. One day, soon after he joined, a messenger came to him in haste to tell him that a mob had gathered near by who were about to hang two priests. "I ran thither at once," wrote the Duke; "I spoke to those who seemed most excited and impressed upon them how horrible it was to hang men without trial; besides, to act as hangmen was to enter a trade which they all thought infamous; that they had judges, and that this was their affair. They answered that their judges were aristocrats, and that they did not punish the guilty." That is to say, although the priests were non-jurors, and, therefore, criminals in the eye of the law, the courts would not enforce the law because of political bias.[43]

"It is your fault," I said to them, "since you elected them [the judges], but that is no reason why you should do justice yourselves."

Danton explained in the Convention that it was because of the deep distrust of the judiciary in the public mind, which this anecdote shows, that the September ma.s.sacres occurred, and it was because all republicans knew that the state and the army were full of traitors like Dumouriez, whom the ordinary courts would not punish, that Danton brought forward his bill to organize a true political tribunal to deal with them summarily. When Danton carried through this statute he supposed himself to be at the apex of power and popularity, and to be safe, if any man in France were safe. Very shortly he learned the error In his calculation. Billaud was a member of the Committee of Public Safety, while Danton had allowed himself to be dropped from membership.

Danton had just been married, and to an aristocratic wife, and the turmoil of office had grown to be distasteful to him. On March 30, 1794, Billaud somewhat casually remarked, "We must kill Danton;" for in truth Danton, with conservative leanings, was becoming a grave danger to the extreme Jacobins. Had he lived a few months longer he would have been a Thermidorist. Billaud, therefore, only expressed the prevailing Jacobin opinion; so the Jacobins arrested Danton, Camille Desmoulins, and his other friends, and Danton at once antic.i.p.ated what would be his doom. As he entered his cell he said to his jailer: "I erected the Tribunal. I ask pardon of G.o.d and men." But even yet he did not grasp the full meaning of what he had done. At his trial he wished to introduce his evidence fully, protesting "that he should understand the Tribunal since he created it;" nevertheless, he did not understand the Tribunal, he still regarded it as more or less a court. Topino-Lebrun, the artist, did understand it. Topino sat on the jury which tried Danton, and observed that the heart of one of his colleagues seemed failing him.

Topino took the waverer aside, and said: "This is not a _trial_, it is a _measure_. Two men are impossible; one must perish. Will you kill Robespierre?--No.--Then by that admission you condemn Danton." Lebrun in these few words went to the root of the matter, and stated the identical principle which underlies our whole doctrine of the Police Power. A political court is not properly a court at all, but an administrative board whose function is to work the will of the dominant faction for the time being. Thus a political court becomes the most formidable of all engines for the destruction of its creators the instant the social equilibrium shifts. So Danton found, in the spring of 1794, when the equilibrium shifted; and so Robespierre, who slew Danton, found the next July, when the equilibrium shifted again.

Danton died on the 5th April, 1794; about three months later Jourdan won the Fleurus campaign. Straightway Thermidor followed, and the Tribunal worked as well for the party of Thermidor as it had for the Jacobins.

Carrier, who had wallowed in blood at Nantes, as the ideal Jacobin, walked behind the cart which carried Robespierre to the scaffold, shouting, "Down with the tyrant;" but that did not save him. In vain he protested to the Convention that, were he guilty, the whole Convention was guilty, "down to the President's bell." By a vote of 498 out of 500, Carrier was sent before the Tribunal which, even though reorganized, condemned him. Therezia Cabarrus gaily presided at the closing of the Jacobin Club, Tallien moved over to the benches on the right, and therefore the court was ruthless to Fouquier. On the 11 Thermidor, seventy members, officers, or partisans of the Commune of Paris, were sent to the guillotine in only two batches. On the next day twelve more followed, four of whom were jurymen. Fouquier's turn came later. It may also be worth while for Americans to observe that a political court is quite as effective against property as against life. The Duke of Orleans is only the most celebrated example of a host of Frenchmen who perished, not because of revenge, fear, or jealousy, but because the party in power wanted their property. The famous Law touching Suspected Persons (loi des suspects) was pa.s.sed on September 17, 1793. On October 10, 1793, that is three weeks afterward, Saint-Just moved that additional powers should be granted, by the Convention, to the Committee of Public Safety, defining, by way of justification for his motion, those who fell within the purview of this law. Among these, first of all, came "the rich," who by that fact alone were to be considered, _prima facie_, enemies to their country.

As I stated at the beginning of this chapter, history never can repeat itself; therefore, whatever else may happen in the United States, we certainly shall have no Revolutionary Tribunal like the French Tribunal of 1793, but the mechanical principle of the political court always remains the same; it is an administrative board the control of which is useful, or may be even essential, to the success of a dominant faction, and the instinctive comprehension which the American people have of this truth is demonstrated by the determination with which they have, for many years, sought to impose the will of the majority upon the judiciary. Other means failing to meet their expectations, they have now hit on the recall, which is as revolutionary in essence as were the methods used during the Terror. Courts, from the Supreme Court downward, if purged by recall, or a process tantamount to recall, would, under proper stress, work as surely for a required purpose as did the tribunal supervised by Fouquier-Tinville.

These considerations rather lead me to infer that the extreme complexity of the administrative problems presented by modern industrial civilization is beyond the compa.s.s of the capitalistic mind. If this be so, American society, as at present organized, with capitalists for the dominant cla.s.s, can concentrate no further, and, as nothing in the universe is at rest, if it does not concentrate, it must, probably, begin to disintegrate. Indeed we may perceive incipient signs of disintegration all about us. We see, for example, an universal contempt for law, incarnated in the capitalistic cla.s.s itself, which is responsible for order, and in spite of the awful danger which impends over every rich and physically helpless type should the coercive power collapse. We see it even more distinctly in the chronic war between capital and labor, which government is admittedly unable to control; we see it in the slough of urban politics, inseparable from capitalistic methods of maintaining its ascendancy; and, perhaps, most disquieting of all, we see it in the dissolution of the family which has, for untold ages, been the seat of discipline and the foundation of authority. For the dissolution of the family is peculiarly a phenomenon of our industrial age, and it is caused by the demand of industry for the cheap labor of women and children. Napoleon told the lawyers who drafted the Code that he insisted on one thing alone. They must fortify the family, for, said he, if the family is responsible to the father and the father to me, I can keep order in France. One of the difficulties, therefore, which capital has to meet, by the aid of such administrative ability as it can command, is how to keep order when society no longer rests on the cohesive family, but on highly volatilized individuals as incohesive as grains of sand.

Meditating upon these matters, it is hard to resist the persuasion that unless capital can, in the immediate future, generate an intellectual energy, beyond the sphere of its specialized calling, very much in excess of any intellectual energy of which it has. .h.i.therto given promise, and unless it can besides rise to an appreciation of diverse social conditions, as well as to a level of political sagacity, far higher than it has attained within recent years, its relative power in the community must decline. If this be so the symptoms which indicate social disintegration will intensify. As they intensify, the ability of industrial capital to withstand the attacks made upon it will lessen, and this process must go on until capital abandons the contest to defend itself as too costly. Then nothing remains but flight. Under what conditions industrial capital would find migration from America possible, must remain for us beyond the bounds even of speculation. It might escape with little or no loss. On the other hand, it might fare as hardly as did the southern slaveholders. No man can foresee his fate. In the event of adverse fortune, however, the position of capitalists would hardly be improved by the existence of political courts serving a malevolent majority. Whatever may be in store for us, here at least, we reach an intelligible conclusion. Should Nature follow such a course as I have suggested, she will settle all our present perplexities as simply and as drastically as she is apt to settle human perturbations, and she will follow logically in the infinitely extended line of her own most impressive precedents.

FOOTNOTES:

[42] In these observations on the intellectual tendencies of capital I speak generally. Not only individual capitalists, but great corporations, exist, who are n.o.ble examples of law-abiding and intelligent citizenship. Their rarity, however, and their conspicuousness, seem to prove the general rule.

[43] By the Law of November 27, 1790, priests refusing to swear allegiance to the "civil const.i.tution" of the clergy were punished by loss of pay and of rights of citizenship if they continued their functions. By Law of August 26, 1792, by transportation to Cayenne.