Chief Justice Chase held that the clause of the currency laws of 1862 and 1863 which made depreciated paper a legal tender for preexisting debts was unconstitutional. No sooner had the judgment been recorded than all the world perceived that, if both vacancies should be filled with men who would uphold the acts, Hepburn v. Griswold might be reversed by a majority of one.

The Republican party had full control of the government and was united in vehement support of the laws. On March 21, the second of the two new judges received his commission, and precisely ten days afterward the Attorney-General moved for a rehearing, taunting the Chief Justice with having changed his opinion on this point, and intimating that the issue was in reality political, and not judicial at all.

In the December Term following Knox v. Lee was argued by the Attorney-General, and, on May 1, 1871, judgment was entered reversing Hepburn v. Griswold, both the new judges voting with the former minority, thus creating the necessary majority of one. No one has ever doubted that what General Grant did coincided with the drift of opinion, and that the Republican party supported him without inquiring how he had achieved success.[14] After this it is difficult to suppose that much respect could remain among the American people for the sanctity of judicial political decisions, or that a President, at the head of a popular majority, would incur much odium for intervening to correct them, as a party measure.

The last example of judicial interference which I shall mention was the nullification, in 1895, of a statute of Congress which imposed an income tax. The states have since set this decision aside by constitutional amendment, and I should suppose that few would now dispute that the Court when it so decided made a serious political and social error. As Mr. Justice White pointed out, the judges undertook to deprive the people, in their corporate capacity, of a power conceded to Congress "by universal consensus for one hundred years."[15] These words were used in the first argument, but on the rehearing the present Chief Justice waxed warm in remonstrating against the unfortunate position in which his brethren placed the Court before the nation, protesting with almost passionate earnestness against the reversal by half-a-dozen judges of what had been the universally accepted legal, political, and economic policy of the country solely in order that "invested wealth" might be read "into the constitution" as a favored and protected class of property. Mr. Justice White closed by saying that by this act the Supreme Court had "deprived [the Government] of an inherent attribute of its being."[16] I might go on into endless detail, but I apprehend that these cases, which are the most important which have ever arisen on this issue, suffice for my purpose.[17] I contend that no court can, because of the nature of its being, effectively check a popular majority acting through a coordinate legislative assembly, and I submit that the precedents which I have cited prove this contention. The only result of an attempt and failure is to bring courts of justice into odium or contempt, and, in any event, to make them objects of attack by a dominant social force in order to use them as an instrument, much as Charles II used Jeffreys.

The moment we consider the situation philosophically we perceive why using a court to control a coordinate legislature must, nearly inevitably, be sooner or later fatal to the court, if it asserts its prerogative. A court to be a fit tribunal to administer the municipal law impartially, or even relatively impartially, must be a small body of men, holding by a permanent and secure tenure, guarded from all pressure which may unduly influence them. Also they should be men of much experience and learned in the precedents which should make the rules which they apply stable and consistent. In short, a court should be rigid and emotionless. It follows that it must be conservative, for its members should long have passed that period of youth when the mind is sensitive to new impressions. Were it otherwise, law would cease to be cohesive. A legislature is nearly the antithesis of a court. It is designed to reflect the passions of the voters, and the majority of voters are apt to be young. Hence in periods of change, when alone serious clashes between legislatures and courts are likely to occur, as the social equilibrium shifts the legislature almost certainly will reflect the rising, the court the sinking power. I take the Dred Scott Case as an illustration. In 1857 the slaveholding interest had passed the zenith of high fortune, and was hastening toward its decline. In the elections of 1858 the Democratic party, which represented slavery, was defeated. But the Supreme Court had been organized by Democrats who had been dominant for many years, and it adhered, on the principle laid down by Jeffreys, to the master which created it.

Occasionally, it is true, a court has been constructed by a rising energy, as was the Supreme Court in 1789, but then it is equally tenacious to the instinct which created it. The history of the Supreme Court is, in this point of view, eminently suggestive. The Federalist instinct was constructive, not destructive, and accordingly Marshall's fame rests on a series of constructive decisions like M'Culloch v. Maryland, Cohens v. Virginia, and Gibbons v. Odgen. In these decisions he either upheld actual national legislation, or else the power of the nation to legislate. Conversely, whenever Marshall or his successors have sought to obstruct social movement they have not prospered. Marbury v. Madison is not an episode on which any admirer of Marshall can linger with satisfaction. In theory it may be true, as Hamilton contended, that, given the fact that a written constitution is inevitable, a bench of judges is the best tribunal to interpret its meaning, since the duty of the judge has ever been and is now to interpret the meaning of written instruments; but it does not follow from this premise that the judges who should exercise this office should be the judges who administer the municipal law. In point of fact experience has proved that, so far as Congress is concerned, the results of judicial interference have been negative. And it would be well if in other spheres of American constitutional development, judicial activity had been always negative. Unfortunately, as I believe, it has extended into the domain of legislation. I will take the Dred Scott Case once more to illustrate my meaning. The North found it bad enough for the Supreme Court to hold that, under the Constitution, Congress could not exclude slavery from the national territory beyond a certain boundary which had been fixed by compromise between the North and South. But the North would have found it intolerable if the Court, while fully conceding that Congress might so legislate, if the character of the legislation commended itself to the judges, had held the Missouri Compromise to be unconstitutional because they thought it unreasonable. Yet this, in substance, is what our courts have done. And this brings me to the consideration of American courts as legislative chambers.

FOOTNOTES:

[6] The relation of courts to legislation in European countries has been pretty fully considered by Brinton Coxe, in Judicial Power and Constitutional Legislation.

[7] Federalist No. LXXVIII.

[8] The Federalist, No. LXXVIII.

[9] The Federalist, No. LXXVIII.

[10] Cohens v. Virginia, 6 Wheaton 415.

[11] To Madison, Ford, 9, 275.

[12] Marshall's constitutional doctrine was not universally accepted, even in the courts of the northern states, until long afterward. As eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as 1825, gave a very able dissenting opinion in opposition in Eakin v. Raub, 12 S.&R., 344.

[13] Memoirs, I, 322.

[14] Hepburn v. Griswold, 8 Wallace 603. Decided in conference on Nov. 27, 1869, more than a month before Grier's resignation. Knox v. Lee, 12 Wallace 457.

[15] 157 U.S. 608.

[16] Pollock v. The Farmers' Loan & Trust Co., 158 U.S. 715.

[17] In 1889 Mr. J.C. Bancroft Davis compiled a table of the acts of Congress which up to that time had been held to be unconstitutional. It is to be found in the Appendix to volume 131 U.S. Reports, page CCXXXV. Mr. Davis has, however, omitted from his list the Dred Scott Case, probably for the technical reason that, in 1857, when the cause was decided, the Missouri Compromise had been repealed. Nevertheless, though this is true, Tansy's decision hinged upon the invalidity of the law.

Besides the statutes which I have mentioned in the test, the two most important, I suppose, which have been annulled, have to me no little interest. These are the Civil Rights Act of 1875, and the Employers' Liability Act of 1906. The Civil Rights Act of 1875 grew rapidly unpopular, and the decision which overturned it coincided with the strong drift of opinion. The Civil Rights Cases were decided in October, 1883, and Mr. Cleveland was elected President in 1884. Doubtless the law would have been repealed had the judiciary supported it. Therefore this adjudication stood.

On the other hand, the Employers' Liability Act of 1906 was held bad because Congress undertook to deal with commerce conducted wholly within the states, and therefore beyond the national jurisdiction. The Court, consequently, in the Employers' Liability Cases, simply defined the limits of sovereignty, as a Canadian Court might do; it did not question the existence of sovereignty itself. In 1908 Congress passed a statute free from this objection, and the Court, in the Second Employers' Liability Cases, 223 U.S. 1, sustained the legislation in the most thoroughgoing manner. I know not where to look for two better illustrations of my theory.



CHAPTER III

AMERICAN COURTS AS LEGISLATIVE CHAMBERS

In one point of view many of the greatest of the Federalists were idealists. They seem sincerely to have believed that they could, by some form of written words, constrain a people to be honest against their will, and almost as soon as the new government went into operation they tested these beliefs by experiment, with very indifferent success. I take it that jurists like Jay and Marshall held it to be axiomatic that rules of conduct should be laid down by them which would be applicable to rich and poor, great and small, alike, and that courts could maintain such rules against all pressure. Possibly such principles may be enforced against individuals, but they cannot be enforced against communities, and it was here that the Federalist philosophy collapsed, as Hamilton, at least partly, foresaw that it must.

Sovereigns have always enjoyed immunity from suit by private persons, unless they have been pleased to assent thereto, not because it is less wrongful for a sovereign than for an individual to cheat, but because the sovereign cannot be arrested and the individual can. With the Declaration of Independence the thirteen colonies became sovereigns. Petty sovereigns it is true, and singly contemptible in physical force as against most foreign nations, but none the less tenacious of the attributes of sovereignty, and especially of the attribute which enabled them to repudiate their debts. Jay, Marshall, and their like, thought that they could impose the same moral standard upon the states as upon private persons; they were unable to do so, but in making the attempt they involved the American judicial system in a maze of difficulties whose gravity, I fear, can hardly be exaggerated. Before entering upon this history, however, I must say a word touching the nature of our law.

Municipal law, to be satisfactory, should be a body of abstract principles capable of being applied impartially to all relevant facts, just as Marshall and Jay held it to be. Where exceptions begin, equality before the law ends, as I have tried to show by the story of King David and Uriah, and therefore the great effort of civilization has been to remove judges from the possibility of being subjected to a temptation, or to a pressure, which may deflect them from impartiality as between suitors. In modern civilization, especially, nothing is so fatal to the principle of order as inequality in the dispensation of justice, and it would have been reasonable to suppose that Americans, beyond all others, would have been alive to this teaching of experience, and have studiously withdrawn their bench from politics. In fact they have ignored it, and instead they have set their judiciary at the focus of conflicting forces. The result has been the more unfortunate as the English system of jurisprudence is ill calculated to bear the strain, it being inflexible. In theory the English law moves logically from precedent to precedent, the judge originating nothing, only elaborating ideas which he has received from a predecessor, and which are binding on him. If the line of precedents leads to wrongful conclusions, the legislature must intervene with a statute rectifying the wrong. The Romans, who were gifted with a higher legal genius than we, managed better. The praetor, by his edict, suppressed inconvenient precedents, and hence the Romans maintained flexibility in their municipal law without falling into confusion. We have nothing to correspond to the praetor.

Thus the English system of binding precedents is troublesome enough in a civilization in chronic and violent flux like modern civilization, even when applied to ordinary municipal law which may be changed at will by legislation, but it brings society almost to a stand when applied to the most vital functions of government, with no means at hand to obtain a corrective. For the court of last resort having once declared the meaning of a clause of the Constitution, that meaning remains fixed forever, unless the court either reverses itself, which is a disaster, or the Constitution can be amended by the states, which is not only difficult, but which, even if it be possible, entails years of delay.

Yet pressing emergencies arise, emergencies in which a settlement of some kind must almost necessarily be reached somewhat rapidly to avert very serious disorders, and it has been under this tension, as I understand American constitutional development, that our courts have resorted to legislation. Nor is it fair for us to measure the sagacity of our great jurists by the standard of modern experience. They lived before the acceleration of movement by electricity and steam. They could not foresee the rapidity and the profundity of the changes which were imminent. Hence it was that, in the spirit of great lawyers, who were also possibly men tinged with a certain enthusiasm for the ideal, they began their work by ruling on the powers and limitations of sovereignty, as if they were ruling on the necessity of honest intent in dealings with one's neighbor.

In 1789 General Washington is said to have offered John Jay his choice of offices under the new government, and Jay chose the chief justiceship, because there he thought he could make his influence felt most widely. If so he had his wish, and very shortly met with disappointment. In the August Term of 1792, one Chisholm, a citizen of South Carolina, sued the State of Georgia for a debt. Georgia declined to appear, and in February, 1793, Jay, in an elaborate opinion, gave judgment for Chisholm. Jay was followed by his associates with the exception of Iredell, J., of North Carolina. Forthwith a ferment began, and in the very next session of Congress an amendment to the Constitution was proposed to make such suits impossible. In January, 1798, five years after the case was argued, this amendment was declared to be adopted, but meanwhile Jay had resigned to become governor of New York. In December, 1800, he was again offered the chief justiceship by John Adams, on the resignation of Oliver Ellsworth, but Jay resolutely declined. I have often wondered whether Jay's mortification at having his only important constitutional decision summarily condemned by the people may not have given him a distaste for judicial life.

The Federalist attempt to enforce on the states a positive rule of economic morality, therefore, collapsed at once, but it still remained possible to approach the same problem from its negative side, through the clause of the Constitution which forbade any state to impair the validity of contracts, and Marshall took up this aspect of the task where Jay left it. In Marshall's mind his work was simple. He had only to determine the nature of a contract, and the rest followed automatically. All contracts were to be held sacred. Their greater or less importance was immaterial.

In 1810 Marshall expounded this general principle in Fletcher v. Peck.[18] "When ... a law is in its nature a contract ... a repeal of the law cannot devest" rights which have vested under it. A couple of years later he applied his principle to the extreme case of an unlimited remission of taxation.[19] The State of New Jersey had granted an exemption from taxation to lands ceded to certain Indians. Marshall held that this contract ran with the land, and inured to the benefit of grantees from the Indians. If the state cared to resume its power of taxation, it must buy the grant back, and the citizens of New Jersey must pay for their improvidence.

Seven years later, in 1810, Marshall may, perhaps, be said to have reached the culmination of his career, for then he carried his moral standard to a breaking strain. But, though his theory broke down, perhaps the most striking evidence of his wonderful intellectual superiority is that he convinced the Democrat, Joseph Story,—a man who had been nominated by Madison to oppose him, and of undoubted strength of character,—of the soundness of his thesis. In 1769 King George III incorporated certain Trustees of Dartmouth College. The charter was accepted and both real and personal property were thereupon conveyed to this corporate body, in trust for educational purposes. In 1816 the legislature of New Hampshire reorganized the board of trustees against their will. If the incorporation amounted to a contract, the Court was clear that this statute impaired it; therefore the only really debatable issue was whether the grant of a charter by the king amounted to a contract by him, with his subjects to whom he granted it. After prolonged consideration Marshall concluded that it did, and I conceive that, in the eye of history, he was right. Throughout the Middle Ages corporate privileges of all kinds, but especially municipal corporate privileges, had been subjects of purchase and sale, and indeed the mediaeval social system rested on such contracts. So much was this the case that the right to return members of Parliament from incorporated boroughs was, as Lord Eldon pointed out in the debates on the Reform Bill, as much private property "as any of your lordships'" titles and peerages.

It was here that Marshall faltered. He felt that the public would not support him if he held that states could not alter town and county charters, so he arbitrarily split corporations in halves, protecting only those which handled exclusively private funds, and abandoning "instruments of government," as he called them, to the mercy of legislative assemblies.

Toward 1832 it became convenient for middle class Englishmen to confiscate most of the property which the aristocracy had invested in parliamentary boroughs, and this social revolution was effected without straining the judicial system, because of the supremacy of Parliament. In America, at about the same time, it became, in like manner, convenient to confiscate numerous equally well-vested rights, because, to have compensated the owners would have entailed a considerable sacrifice which neither the public nor the promoters of new enterprises were willing to make. The same end was reached in America as in England, in spite of Chief Justice Marshall and the Dartmouth College Case, only in America it was attained by a legal somerset which has disordered the course of justice ever since.

In 1697 King William III incorporated Trinity Church in the City of New York, confirming to the society the possession of a parcel of land, adjoining the church, to be used as a churchyard for the burial of the dead. In 1823 the government of New York prohibited interments within the city limits, thus closing the churchyard for the purposes for which it had been granted. As compensation was refused, it appeared to be a clear case of confiscation, and Trinity resisted. In the teeth of recent precedents the Supreme Court of New York decided that, under the Police Power, the legislature of New York might authorize this sort of appropriation of private property for sanitary purposes, without paying the owners for any loss they might thereby sustain.[20]

The court thus simply dispensed the legislature from obedience to the law, saying in effect, "although the Constitution forbids impairing contracts, and although this is a contract which you have impaired, yet, in our discretion, we suspend the operation of the Constitution, in this instance, by calling your act an exercise of a power unknown to the framers of the Constitution." I cannot doubt that Marshall would have flouted this theory had he lived to pass upon it, but Marshall died in 1835, and the Charles River Bridge Case, in which this question was first presented to the Supreme Court of the United States, did not come up until 1837. Then Joseph Story, who remained as the representative of Marshall's philosophy upon the bench, vehemently protested against the latitudinarianism of Chief Justice Taney and his associates, but without producing the slightest effect.

In 1785 the Massachusetts legislature chartered the Charles River Bridge Company to build a bridge between Boston and Charlestown, authorizing it, by way of consideration, to collect tolls for forty years. In 1792 the franchise was extended to seventy years, when the bridge was to revert to the Commonwealth. In 1828 the legislature chartered the Warren Bridge Company, expressly to build a bridge parallel to and practically adjoining the Charles River Bridge, the Warren Bridge to become a free bridge after six years. The purpose, of course, was to accelerate movement by ruining the Charles River Bridge Company. The Charles River Bridge Company sought to restrain the building of the Warren Bridge as a breach of contract by the State, but failed to obtain relief in the state courts, and before the cause could be argued at Washington the Warren Bridge had become free and had destroyed the value of the Charles River Bridge, though its franchise had still twenty years to run. As Story pointed out, no one denied that the charter of the Charles River Bridge Company was a contract, and, as he insisted, it is only common sense as well as common justice and elementary law, that contracts of this character should be reasonably interpreted so far as quiet enjoyment of the consideration granted is concerned; but all this availed nothing. The gist of the opposing argument is contained in a single sentence in the opinion of the Chief Justice who spoke for the majority of the court: "The millions of property which have been invested in railroads and canals, upon lines of travel which had been before occupied by turnpike corporations, will be put in jeopardy" if this doctrine is to prevail.[21]

The effect of the adoption by the Supreme Court of the United States of the New York theory of the Police Power was to vest in the judiciary, by the use of this catch-word, an almost unparalleled prerogative. They assumed a supreme function which can only be compared to the Dispensing Power claimed by the Stuarts, or to the authority which, according to the Council of Constance, inheres in the Church, to "grant indulgences for reasonable causes." I suppose nothing in modern judicial history has ever resembled this assumption; and yet, when we examine it, we find it to be not only the logical, but the inevitable, effect of those mechanical causes which constrain mankind to move along the lines of least resistance.

Marshall, in a series of decisions, laid down a general principle which had been proved to be sound when applied by ordinary courts, dealing with ordinary social forces, and operating under the corrective power of either a legislature or a praetor, but which had a different aspect under the American constitutional system. He held that the fundamental law, embodied in the Constitution, commanded that all contracts should be sacred. Therefore he, as a judge, had but two questions to resolve: First, whether, in the case before him, a contract had been proved to exist. Second, admitting that a contract had been proved, whether it had also been shown to have been impaired.

Within ten years after these decisions it had been found in practice that public opinion would not sustain so rigid an administration of the law. No legislature could intervene, and a pressure was brought to bear which the judges could not withstand; therefore, the Court yielded, declaring that if impairing a contract were, on the whole, for the public welfare, the Constitution, as Marshall interpreted it, should be suspended in favor of the legislation which impaired it. They called this suspension the operation of the "Police Power." It followed, as the "Police Power" could only come into operation at the discretion of the Court, that, therefore, within the limits of judicial discretion, confiscation, however arbitrary and to whatever extent, might go on. In the energetic language of the Supreme Court of Maine: "This duty and consequent power override all statute or contract exemptions. The state cannot free any person or corporation from subjection to this power. All personal, as well as property rights must be held subject to the Police Power of the state."[22]

Once the theory of the Police Power was established it became desirable to define the limits of judicial discretion, but that proved to be impossible. It could not be determined in advance by abstract reasoning. Hence, as each litigation arose, the judges could follow no rule but the rule of common sense, and the Police Power, translated into plain English, presently came to signify whatever, at the moment, the judges happened to think reasonable. Consequently, they began guessing at the drift of public opinion, as it percolated to them through the medium of their education and prejudices. Sometimes they guessed right and sometimes wrong, and when they guessed wrong they were cast aside, as appeared dramatically enough in the temperance agitation.

Up to about the middle of the last century the lawfulness of the liquor business had been unquestioned in the United States, and money had been invested as freely in it as in any other legitimate enterprise; but, as the temperance agitation swept over the country, in obedience to the impulsion given by science to the study of hygiene, dealing in liquor came to be condemned as a crime. Presently legislatures began to pass statutes to confiscate, more or less completely, this kind of property, and sufferers brought their cases before the courts to have the constitutionality of the acts tested, under the provisions which existed in all state constitutions, forbidding the taking, by the public, of private property without compensation, or without due process of law. Such a provision existed hi the constitution of the State of New York, adopted in 1846, and it was to invoke the protection of this clause that one Wynehamer, who had been indicted in 1855, carried his case to the Court of Appeals in the year 1856. In that cause Mr. Justice Comstock, who was one of the ablest jurists New York ever produced, gave an opinion which is a model of judicial' reasoning. He showed conclusively the absurdity of constitutional restrictions, if due process of law may be held to mean the enactment of the very statute drawn to work confiscation.[23] This decision, which represented the profoundest convictions of men of the calibre of Comstock and Denio, deserves to rank with Marshall's effort in the Dartmouth College Case. In both instances the tribunal exerted itself to carry out Hamilton's principle of judicial duty by exercising its judgment and not its will. In other words, the judges propounded a general rule and then simply determined whether the set of facts presented to them fell within that rule. They resolutely declined to legislate by entering upon a consideration of the soundness or reasonableness of the policy which underlay the action of the legislature. In the one case as in the other the effort was unavailing, as Jefferson prophesied that it would be. I have told of Marshall's overthrow in the Charles River Bridge Case, and in 1887, after controversies of this category had begun to come before the Supreme Court of the United States under the Fourteenth Amendment, Mr. Justice Harlan swept Mr. Justice Comstock aside by quietly ignoring an argument which was unanswerable.[24] The same series of phenomena have appeared in regard to laws confiscating property invested in lotteries, when opinion turned against lotteries, or in occupations supposed to be unsanitary, as in the celebrated case of the taxing out of existence of the rendering establishment which had been erected as a public benefit to relieve the City of Chicago of its offal.[25] In fine, whenever pressure has reached a given intensity, on one pretext or another, courts have enforced or dispensed with constitutional limitations with quite as much facility as have legislatures, and for the same reasons. The only difference has been that the pressure which has operated most directly upon courts has not always been the pressure which has swayed legislatures, though sometimes both influences have combined. For example, during the Civil War, the courts sanctioned everything the popular majority demanded under the pretext of the War Power, as in peace they have sanctioned confiscations for certain popular purposes, under the name of the Police Power. But then, courts have always been sensitive to financial influences, and if they have been flexible in permitting popular confiscation when the path of least resistance has lain that way, they have gone quite as far in the reverse direction when the amount of capital threatened has been large enough to be with them a countervailing force.

As the federal Constitution originally contained no restriction upon the states touching the confiscation of the property of their own citizens, provided contracts were not impaired, it was only in 1868, by the passage of the Fourteenth Amendment, that the Supreme Court of the United States acquired the possibility of becoming the censor of state legislation in such matters. Nor did the Supreme Court accept this burden very willingly or in haste. For a number of years it labored to confine its function to defining the limits of the Police Power, guarding itself from the responsibility of passing upon the "reasonableness" with which that power was used. It was only by somewhat slow degrees, as the value of the threatened property grew to be vast, that the Court was deflected from this conservative course into effective legislation. The first prayers for relief came from the Southern states, who were still groaning under reconstruction governments; but as the Southern whites were then rather poor, their complaints were neglected. The first very famous cause of this category is known as the Slaughter House Cases. In 1869 the Carpet Bag government of Louisiana conceived the plan of confiscating most of the property of the butchers who slaughtered for New Orleans, within a district about as large as the State of Rhode Island. The Fourteenth Amendment forbade states to deprive any person of life, liberty, or property, without due process of law, and the butchers of New Orleans prayed for protection, alleging that the manner in which their property had been taken was utterly lawless. But the Supreme Court declined to interfere, explaining that the Fourteenth Amendment had been contrived to protect the emancipated slaves, and not to make the federal judiciary "a perpetual censor upon all legislation of the states, on the civil rights of their own citizens, with authority to nullify such as it did not approve."[26]

Although, even at that relatively early day, this conservatism met with strong opposition within the Court itself, the pressure of vested wealth did not gather enough momentum to overcome the inertia of the bench for nearly another generation. It was the concentration of capital in monopoly, and the consequent effort by the public to regulate monopoly prices, which created the stress which changed the legal equilibrium. The modern American monopoly seems first to have generated that amount of friction, which habitually finds vent in a great litigation, about the year 1870; but only some years later did the states enter upon a determined policy of regulating monopoly prices by law, with the establishment by the Illinois legislature of a tariff for the Chicago elevators. The elevator companies resisted, on the ground that regulation of prices in private business was equivalent to confiscation, and so in 1876 the Supreme Court was dragged into this fiercest of controversies, thereby becoming subject to a stress to which no judiciary can safely be exposed. Obviously two questions were presented for adjudication: The first, which by courtesy might be termed legal, was whether the fixing of prices by statute was a prerogative which a state legislature might constitutionally exercise at all; the second, which was purely political, was whether, admitting that, in the abstract, such a power could be exercised by the state, Illinois had, in this particular case, behaved reasonably. The Supreme Court made a conscientious effort to adhere to the theory of Hamilton, that it should, in emergencies like this, use its judgment only, and not its will; that it should lay down a rule, not vote on the wisdom of a policy. So the judges decided that, from time immemorial, the fixing of prices in certain trades and occupations had been a legislative function, which they supposed might be classified as a branch of the Police Power, but they declared that with this expression of opinion their jurisdiction ended. When it came to asking them to criticise the propriety of legislation, it was, in substance, proposing that they should substitute their will for the will of the representatives of the people, which was impossible. I well remember the stir made by the case of Munn v. Illinois.[27]

Both in and out of the legal profession, those in harmony with the great vested interests complained that the Court had shirked its duty. But these complaints soon ceased, for a movement was in progress which swept, for the moment, all before it. The great aggregations of capital, which had been accumulating ever since the Charles River Bridge Case, not long after Munn v. Illinois attained to a point at which they began to grasp many important prerogatives of sovereignty, and to impose, what was tantamount to, arbitrary taxation upon a large scale. The crucial trial of strength came on the contest for control of the railways, and in that contest concentrated capital prevailed. The Supreme Court reversed its attitude, and undertook to do that which it had solemnly protested it could not do. It began to censor legislation in the interest of the strongest force for the time being, that force being actually financial. By the year 1800 the railway interest had expanded prodigiously. Between 1876 and 1890 the investment in railways had far more than doubled, and, during the last five years of this period, the increment had been at an average of about $450,000,000 annually. At this point the majority of the court yielded, as ordinary political chambers always must yield, to extraordinary pressure. Mr. Justice Bradley, however, was not an ordinary man. He was, on the contrary, one of the ablest and strongest lawyers who sat on the federal bench during the last half of the nineteenth century; and Bradley, like Story before him, remonstrated against turning the bench of magistrates, to which he belonged, from a tribunal which should propound general rules applicable to all material facts, into a jury to find verdicts on the reasonableness of the votes of representative assemblies. The legislature of Minnesota, in 1887, passed a statute to regulate railway rates, and provided that the findings of the commission which it erected to fix those rates should be final. The Chicago, Milwaukee & St. Paul Railway contended that this statute was unconstitutional, because it was unreasonable, and the majority of the Court sustained their contention.[28] Justices Bradley, Gray, and Lamar dissented, and Bradley on this occasion delivered an opinion, from which I shall quote a paragraph or two, since the argument appears to me conclusive, not only from the point of view of law, but of political expediency and of common sense:—

"I cannot agree to the decision of the court in this case. It practically overrules Munn v. Illinois.... The governing principle of those cases was that the regulation and settlement of the fares of railroads and other public accommodations is a legislative prerogative, and not a judicial one. This is a principle which I regard as of great importance....

"But it is said that all charges should be reasonable, and that none but reasonable charges can be exacted; and it is urged that what is a reasonable charge is a judicial question. On the contrary, it is preeminently a legislative one, involving considerations of policy as well as of remuneration.... By the decision now made we declare, in effect, that the judiciary, and not the legislature, is the final arbiter in the regulation of fares and freights of railroads.... It is an assumption of authority on the part of the judiciary which, ... it has no right to make. The assertion of jurisdiction by this court makes it the duty of every court of general jurisdiction, state or federal, to entertain complaints [of this nature], for all courts are bound by the Constitution of the United States, the same as we are."

There is little to add to these words. When the Supreme Court thus undertook to determine the reasonableness of legislation it assumed, under a somewhat thin disguise, the position of an upper chamber, which, though it could not originate, could absolutely veto most statutes touching the use or protection of property, for the administration of modern American society now hinges on this doctrine of judicial dispensation under the Police Power. Whether it be a regulation of rates and prices, of hours of labor, of height of buildings, of municipal distribution of charity, of flooding a cranberry bog, or of prescribing to sleeping-car porters duties regarding the lowering of upper berths,—in questions great and small, the courts vote upon the reasonableness of the use of the Police Power, like any old-fashioned town meeting. There is no rule of law involved. There is only opinion or prejudice, or pecuniary interest. The judges admit frankly that this is so. They avow that they try to weigh public opinion, as well as they can, and then vote. In 1911 Mr. Justice Holmes first explained that the Police Power extended to all great public needs, and then went on to observe that this Police Power, or extraordinary prerogative, might be put forth by legislatures "in aid of what is sanctioned by usage, or held by ... preponderant opinion to be ... necessary to the public welfare."[29]

A representative chamber reaches its conclusions touching "preponderant opinion" by a simple process, but the influences which sway courts are obscurer,—often, probably, beyond the sphere of the consciousness of the judges themselves. Nor is this the worst; for, as I have already explained, the very constitution of a court, if it be a court calculated to do its legitimate work upon a lofty level, precludes it from keeping pace with the movement in science and the arts. Necessarily it lags some years behind. And this tendency, which is a benefit in the dispensation of justice as between private litigants, becomes a menace when courts are involved in politics. A long line of sinister precedents crowd unbidden upon the mind. The Court of King's Bench, when it held Hampden to be liable for the Ship Money, draped the scaffold for Charles I. The Parliament of Paris, when it denounced Turgot's edict touching the corvee, threw wide the gate by which the aristocracy of France passed to the guillotine. The ruling of the Superior Court of the Province of Massachusetts Bay, in the case of the Writs of Assistance, presaged the American Revolution; and the Dred Scott decision was the prelude to the Civil War.

The capital essential of justice is that, under like conditions, all should fare alike. The magistrate should be no respecter of persons. The vice of our system of judicial dispensation is that it discriminates among suitors in proportion to their power of resistance. This is so because, under adequate pressure, our courts yield along the path of least resistance. I should not suppose that any man could calmly turn over the pages of the recent volumes of the reports of the Supreme Court of the United States and not rise from the perusal convinced that the rich and the poor, the strong and the weak, do not receive a common measure of justice before that judgment seat. Disregarding the discrimination which is always apparent against those who are unpopular, or who suffer under special opprobrium, as do liquor dealers, owners of lotteries, and the like,[30] I will take, nearly at random, a couple of examples of rate regulation, where tenderness has been shown property in something approaching to a mathematical ratio to the amount involved.

In April, 1894, a record was produced before the Supreme Court which showed that the State of North Dakota had in 1891 established rates for elevating and storing grain, which rates the defendant, named Brass, who owned a small elevator, alleged to be, to him in particular, utterly ruinous, and to be in general unreasonable. He averred that he used his elevator for the storage of his own grain, that it cost about $3000, that he had no monopoly, as there were many hundred such elevators in the state, and, as land fit for the purpose of building elevators was plenty and cheap, that any man could build an elevator in the town in which he lived, as well as he; that the rates he charged were reasonable, and that, were he compelled to receive grain generally at the rates fixed by the statute, he could not store his own grain. All these facts were admitted by demurrer, and Brass contended that if any man's property were ever to be held to be appropriated by the public without compensation, and under no form of law at all save a predatory statute, it should be his; but the Supreme Court voted the Dakota statute to be a reasonable exercise of the Police Power,[31] and dismissed Brass to his fate.

The converse case is a very famous one known as Smyth v. Ames,[32] decided four years later, in 1898. In that case it appeared that the State of Nebraska had, in 1893, reduced freight rates within the state about twenty-nine per cent, in order to bring them into some sort of relation to the rates charged in the adjoining State of Iowa, which were calculated to be forty per cent lower than the Nebraska rates. Several of the most opulent and powerful corporations of the Union were affected by this law, among others the exceedingly prosperous and influential Chicago, Burlington & Quincy Railway. No one pretended that, were the law to be enforced, the total revenues of the Burlington would be seriously impaired, nor was it even clear that, were the estimate of reduction, revenue, and cost confined altogether to the commerce carried on within the limits of the State of Nebraska, leaving interstate commerce out of consideration, a loss would be suffered during the following year. Trade might increase with cheaper rates, or economies might be made by the company, or both causes and many others of increased earnings might combine. Corporation counsel, however, argued that, were the principle of the statute admitted, and should all the states through which the line passed do the like, ultimately a point might be reached at which the railway would be unable to maintain, even approximately, its dividend of eight per cent, and that the creation of such a possibility was conceding the power of confiscation, and, therefore, an unreasonable exercise of the Police Power, by the State of Nebraska. With this argument the Supreme Court concurred. They held the Nebraska statute to be unreasonable. Very possibly it may have been unsound legislation, yet it is noteworthy that within three years after this decision Mr. Hill bought the Chicago, Burlington & Quincy, at the rate of $200 for every share of stock of the par value of $100, thus fixing forever, on the community tributary to the road, the burden of paying a revenue on just double the value of all the stock which it had been found necessary to issue to build the highway. Even at this price Mr. Hill is supposed to have made a brilliant bargain.

This brings me to the heart of my theorem. Ever since Hamilton's time, it has been assumed as axiomatic, by conservative Americans, that courts whose function is to expound a written constitution can and do act as a "barrier to the encroachments and oppressions of the representative body."[33] I apprehend that courts can perform no such office and that in assuming attributes beyond the limitations of their being they, as history has abundantly proved, not only fail in their object, but shake the foundations of authority, and immolate themselves. Hitherto I have confined myself to adducing historical evidence to prove that American courts have, as a whole, been gifted with so little political sagacity that their interference with legislation, on behalf of particular suitors, has, in the end, been a danger rather than a protection to those suitors, because of the animosity which it has engendered. I shall now go further. For the sake of argument I am willing to admit that the courts, in the exercise of the dispensing prerogative, called the Police Power, have always acted wisely, so much so that every such decree which they have issued may be triumphantly defended upon economic, moral, or social grounds. Yet, assuming this to be true, though I think I have shown it to be untrue, the assumption only strengthens my contention, that our courts have ceased to be true courts, and are converted into legislative chambers, thereby promising shortly to become, if they are not already, a menace to order. I take it to be clear that the function of a legislature is to embody the will of the dominant social force, for the time being, in a political policy explained by statutes, and when that policy has reached a certain stage of development, to cause it to be digested, together with the judicial decisions relevant to it, in a code. This process of correlation is the highest triumph of the jurist, and it was by their easy supremacy in this field of thought, that Roman lawyers chiefly showed their preeminence as compared with modern lawyers. Still, while admitting this superiority, it is probably true that the Romans owed much of their success in codification to the greater permanence of the Roman legislative tenure of office, and, therefore, stability of policy,—phenomena which were both probably effects of a slower social movement among the ancients. The Romans, therefore, had less need than we of a permanent judiciary to counteract the disintegrating tendency of redundant legislation; a fortiori, of course, they had still less to isolate the judiciary from political onslaughts which might cause justice to become a series of exceptions to general principles, rather than a code of unvarying rules.

It is precisely because they are, and are intended to be, arenas of political combat, that legislatures cannot be trustworthy courts, and it was because this fact was notorious that the founders of this government tried to separate the legislative from the judicial function, and to make this separation the foundation of the new republic. They failed, as I conceive, not because they made their legislatures courts, but because, under the system they devised, their courts have become legislatures. A disease, perhaps, the more insidious of the two. Insidious because it undermines, order, while legislative murder and confiscation induce reaction.

If a legislative chamber would act as a court, the first necessity is to eliminate its legislative character. For example, the House of Lords in England has long discharged the duties of a tribunal of last resort for the empire, and with general approbation, but only because, when sitting as a court, the law lords sit alone. Politicians and political influences are excluded. Where political influences enter disaster follows. Hence the infamous renown of political decisions in legal controversies, such as bills of attainder and ex post facto laws, or special legislation to satisfy claims which could not be defended before legitimate courts, or the scandals always attending the trial of election petitions. The object of true courts is to shield the public from these and kindred abuses.

In primitive communities courts are erected to defend the weak against the strong, by correlating local customs in such wise that some general principle can be deduced which shall protect the civil rights of those who cannot protect themselves, against the arbitrary exactions of powerful neighbors. In no community can every person have equal civil rights. That is impossible. Civil rights must vary according to status. But such rights as any person may have, those the courts are bound to guard indifferently. If the courts do not perform this, their first and most sacred duty, I apprehend that order cannot be permanently maintained, for this is equality before the law; and equality before the law is the cornerstone of order in every modern state.

I conceive that the lawyers of the age of Washington were the ablest that America has ever produced. No men ever understood the principle of equality before the law more thoroughly than they, and after the establishment of this government a long series of great and upright magistrates strove, as I have shown, to carry this principle into effect. Jay and Marshall, Story and Bradley, and many, many more, struggled, protested, and failed. Failed, as I believe, through no fault of their own, but because fortune had placed them in a position untenable for the judge. When plunged in the vortex of politics, courts must waver as do legislatures, and nothing is to me more painful than to watch the process of deterioration by which our judges lose the instinct which should warn them to shun legislation as a breach of trust, and to cleave to those general principles which permit of no exceptions. To illustrate my meaning I shall refer to but one litigation, but that one is so extraordinary that I must deal with it in detail.

In 1890 the dread of the enhancement of prices by monopoly, as the Supreme Court itself has explained, caused Congress to pass the famous Sherman Act, which prohibited indiscriminately all monopolies or restraints of trade. Presently the government brought a bill to dissolve an obnoxious railway pool, called the Trans-Missouri Freight Association, and in 1896 the case came up for adjudication. I have nothing to say touching the policy involved. I am only concerned with a series of phenomena, developed through several years, as effects of pressure acting upon a judiciary, exposed as the judiciary, under our system, is exposed.

The Trans-Missouri Case was argued on December 8, 1896, very elaborately and by the most eminent counsel. After long consideration, and profound reflection, Mr. Justice Peckham, speaking for the majority of the tribunal, laid down a general principle in conformity to the legislative will, precisely as Marshall had laid down a general principle in the Dartmouth College Case, or Story in the Charles River Bridge Case, or Waite in Munn v. Illinois, or Bradley in the Minnesota Rate Case. Then the process of agitation immediately began. In the words of Mr. Justice Harlan, fifteen years later: "But those who were in combinations that were illegal did not despair. They at once set up the baseless claim that the decision of 1896 disturbed the 'business interests of the country,' and let it be known that they would never be content until the rule was established that would permit interstate commerce to be subjected to reasonable restraints."[34]

Other great causes, involving the same issue, were tried, the question was repeatedly reargued, but the Supreme Court tenaciously adhered to its general principle, that, under the Sherman Act, all restraints of trade, or monopolies, were unlawful, and, therefore, the Court had but two matters before it, first to define a restraint of trade or a monopoly, second to determine whether the particular combination complained of fell within that definition. No discretion was permitted. Judicial duty ended there.

The Court being found to be inflexible, recourse was had to Congress, and a bill in the form of an amendment to the Sherman Act was brought into the Senate authorizing, in substance, those who felt unsafe under the law, to apply to certain government officials, to be permitted to produce evidence of the reasonable methods they employed, and, if the evidence were satisfactory, to receive, what was tantamount to, an indulgence. The subject thus reopened, the Senate Committee on the Judiciary went into the whole question of monopoly anew, and in 1909 Senator Nelson presented an exhaustive report against the proposed relaxation. Thereupon the Senate indefinitely postponed further consideration of the amendment. The chief reasons given by Senator Nelson were summed up in a single sentence: "The defence of reasonable restraint would be made in every case and there would be as many different rules of reasonableness as cases, courts, and juries.... To amend the anti-trust act, as suggested by this bill, would be to entirely emasculate it, and for all practical purposes render it nugatory as a remedial statute.... The act as it exists is clear, comprehensive, certain and highly remedial. It practically covers the field of federal jurisdiction, and is in every respect a model law. To destroy or undermine it at the present juncture, ... would be a calamity.

"In view of the foregoing, your committee recommend the indefinite postponement of the bill."[35]

And so the Senate did indefinitely postpone the bill.

Matters stood thus when the government brought process to dissolve the Standard Oil Company, as an unlawful combination. The cause was decided on May 15, 1911, the Chief Justice speaking for the majority of the bench, in one of the most suggestive opinions which I have ever read. To me this opinion, like Taney's opinion in the Charles River Bridge Case, indicates that the tension had reached the breaking point, the court yielding in all directions at once, while the dominant preoccupation of the presiding judge seemed to be to plant his tribunal in such a position that it could so yield, without stultifying itself hopelessly before the legal profession and the public. In striving to reach this position, however, I apprehend that the Chief Justice, unreservedly, crossed the chasm on whose brink American jurists had been shuddering for ninety years. The task the Chief Justice assumed was difficult almost beyond precedent. He proposed to surrender to the vested interests the principle of reasonableness which they demanded, and which the tribunal he represented, together with Congress, had refused to surrender for fifteen years. To pacify the public, which would certainly resent this surrender, he was prepared to punish two hated corporations, while he strove to preserve, so far as he could, the respect of the legal profession and of the public, for the court over which he presided, by maintaining a semblance of consistency.

To accomplish these contradictory results, the Chief Justice began, rather after the manner of Marshall in Marbury v. Madison, by an extra-judicial disquisition. The object of this disquisition was to justify his admission of the evidence of reasonableness as a defence, although it was not needful to decide that such evidence must be admitted in order to dispose of that particular cause. For the Chief Justice very readily agreed that the Standard Oil Company was, in fact, an unreasonable restraint of trade, and must be dissolved, no matter whether it were allowed to prove its reasonable methods or not. Accordingly, he might have contented himself with stating that, admitting for the sake of argument but without approving, all the defendant advanced, he should sustain the government; but to have so disposed of the case would not have suited his purpose. What the Chief Justice had it at heart to do was to surrender a fundamental principle, and yet to appear to make no surrender at all. Hence, he prepared his preliminary and extra-judicial essay on the human reason, of whose precise meaning, I must admit, I still, after many perusals, have grave doubts. I sometimes suspect that the Chief Justice did not wish to be too explicit. So far as I comprehend the Chief Justice, his chain of reasoning amounted to something like this: It was true, he observed, that for fifteen years the Supreme Court had rejected the evidence of reasonableness which he admitted, and had insisted upon a general principle which he might be supposed to renounce, but this apparent discrepancy involved no contradiction. It was only a progression in thought. For, he continued, the judges who, on various previous occasions, sustained that general principle, must have reached their conclusions by the light of reason; to-day we reach a contrary conclusion, but we also do so by the light of reason; therefore, as all these decisions are guided by the light of reason they fundamentally coincide, however much superficially they may seem to differ.[36]

I have never supposed that this argument carried complete conviction either to the legal profession, to the public, or to Congress. Certainly, it did not convince Mr. Justice Harlan, who failed to fathom it, and bluntly expressed his astonishment in a dissenting opinion in another cause from which I regret to say I can only quote a couple of paragraphs, although the whole deserves attentive perusal:—

"If I do not misapprehend the opinion just delivered, the Court insists that what was said in the opinion in the Standard Oil Case, was in accordance with our previous decisions in the Trans-Missouri and Joint Traffic Cases, ... if we resort to reason. This statement surprises me quite as much as would a statement that black was white or white was black."

"But now the Court, in accordance with what it denominates the 'rule of reason,' in effect inserts in the act the word 'undue,' which means the same as 'unreasonable,' and thereby makes Congress say what it did not say.... And what, since the passage of the act, it has explicitly refused to say.... In short, the Court now, by judicial legislation, in effect, amends an Act of Congress relating to a subject over which that department of the Government has exclusive cognizance."[37]

The phenomenon which amazed Mr. Justice Harlan is, I conceive, perfectly comprehensible, if we reflect a little on the conflict of forces involved, and on the path of least resistance open to an American judge seeking to find for this conflict, a resultant. The regulation or the domination of monopoly was an issue going to the foundation of society, and popular and financial energy had come into violent impact in regard to the control of prices. Popular energy found vent through Congress, while the financiers, as financiers always have and always will, took shelter behind the courts. Congress, in 1890, passed a statute to constrain monopolies, against which financiers protested as being a species of confiscation, and which the Chief Justice himself thought harsh. To this statute the Supreme Court gave a harsh construction, as the Chief Justice had more than once pointed out, when he was still an associate upon the bench. From a series of these decisions an appeal had been made to Congress, and the Senate, in the report from which I have quoted, had sustained the construction given to the statute by the majority of his brethren with whom the Chief Justice differed. Since the last of these decisions, however, the complexion of the bench had been considerably changed by new appointments, much as it had been after Hepburn v. Griswold, and an opportunity seemed to be presented to conciliate every one.

In any other country than the United States, a chief justice so situated would doubtless have affirmed the old precedents, permitting himself, at most, to point out the mischief which, he thought, they worked. Not so a lawyer nurtured under the American constitutional system, which breeds in the judge the conviction that he is superior to the legislator. His instinct, under adequate pressure, is always to overrule anything repugnant to him that a legitimate legislative assembly may have done. In this instance, had the case been one of first impression, nothing would have been easier than to have nullified the Sherman Act as an unreasonable exercise of the Police Power, as judges had been nullifying statutes of which they disapproved for a couple of generations previously; but the case was not one of first impression. On the contrary, the constitutionality of the Sherman Act had been so often upheld by the judiciary that the Chief Justice himself admitted that so long as Congress allowed him to use his reason, these "contentions [were] plainly foreclosed." Therefore, for him the path of least resistance was to use his reason, and, as a magistrate, to amend a statute which Congress ought to have amended, but had unreasonably omitted to amend. Such was the final and logical result of the blending of judicial and legislative functions in a court, as they are blended under the American constitutional system. Nor is it unworthy of remark, that the Chief Justice, in abstaining from questioning the constitutionality of the act, expressly intimated that he did so because, by the use of his reason, he could make that reasonable and constitutional which otherwise might be unreasonable and unconstitutional. The defendants pressed the argument that destroying the freedom of contract, as the Sherman Law destroyed it, was to infringe upon the "constitutional guaranty of due process of law." To this the Chief Justice rejoined: "But the ultimate foundation of all these arguments is the assumption that reason may not be resorted to in interpreting and applying the statute.... As the premise is demonstrated to be unsound by the construction we have given the statute," these arguments need no further notice.[38]

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

Nearly a century ago, Jefferson wrote to Spencer Roane, "The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."[39] And however much we may recoil from admitting Jefferson's conclusion to be true, it none the less remains the fact that it has proved itself to be true, and that the people have recognized it to be true, and have taken measures to protect themselves by bringing the judiciary under the same degree of control which they enforce on other legislators. The progression has been steady and uniform, each advance toward an assumption of the legislative function by the judiciary having been counterbalanced by a corresponding extension of authority over the courts by the people. First came the protest against Marbury and Madison in the impeachment of Chase, because, as Giles explained, if judges were to annul laws, the dominant party must have on the bench judges they could trust. Next the Supreme Court of New York imagined the theory of the Police Power, which was adopted by the Supreme Court of the United States in 1837. But it stood to reason that if judges were to suspend constitutional limitations according to their notions of reasonableness, the people must have the means of securing judges whose views touching reasonableness coincided with their own. And behold, within ten years, by the constitution of 1846, New York adopted an elective judiciary.

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

Among European nations England has long represented intelligent conservatism, and at the heart of her conservatism lay the House of Lords. Through many centuries; and under many vicissitudes this ancient chamber had performed functions of the highest moment, until of late it had come to occupy a position not dissimilar to that which the Supreme Court of the United States yet holds. On one side it was the highest legal tribunal of the Empire, on the other it was a non-representative assembly, seldom indeed originating important legislation, but enjoying an absolute veto on legislation sent it from the Commons. One day in a moment of heated controversy the Lords vetoed a bill on which the Commons had determined. A dissolution followed and the House of Lords, as a political power, faded into a shadow; yet, notwithstanding this, its preeminence as a court has remained intact. Were a similar clash to occur in America no such result could be anticipated. Supposing a President, supported by a congressional majority, were to formulate some policy no more subversive than that which has been formulated by the present British Cabinet, and this policy were to be resisted, as it surely would be, by potent financial interests, the conflicting forces would converge upon the Supreme Court. The courts are always believed to tend toward conservatism, therefore they are generally supported by the conservative interest, both here and elsewhere. In this case a dilemma would be presented. Either the judges would seek to give expression to "preponderant" popular opinion, or they would legislate. In the one event they would be worthless as a restraining influence. In the other, I apprehend, a blow would fall similar to the blow which fell upon the House of Lords, only it would cut deeper. Shearing the House of Lords of political power did not dislocate the administration of English justice, because the law lords are exclusively judges. They never legislate. Therefore no one denounced them. Not even the wildest radical demanded that their tenure should be made elective, much less that they should be subjected to the recall. With us an entirely different problem would be presented for solution. A tribunal, nominally judicial, would throw itself across the path of the national movement. It would undertake to correct a disturbance of the social equilibrium. But what a shifting of the social equilibrium means, and what follows upon tampering with it, is a subject which demands a chapter by itself.

FOOTNOTES:

[18] 6 Cranch 135.

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

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

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

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

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

[24] Mugler v. Kansas, 133 U.S. 623.

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

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

[27] 94 U.S. 113.

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

[29] Noble State Bank v. Haskell, 219 U.S. 104.

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

[31] Brass v. North Dakota, 133 U.S. 391.

[32] 169 U.S. 466.

[33] The Federalist, No. LXXVIII.

[34] 221 U.S. 91.

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

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

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

[38] 221 U.S. 69.

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



CHAPTER IV

THE SOCIAL EQUILIBRIUM

I assume it as self-evident that those who, at any given moment, are the strongest in any civilization, will be those who are at once the ruling class, those who own most property, and those who have most influence on legislation. The weaker will fare hardly in proportion to their weakness. Such is the order of nature. But, since those are the strongest through whom nature finds it, for the time being, easiest to vent her energy, and as the whole universe is in ceaseless change, it follows that the composition of ruling classes is never constant, but shifts to correspond with the shifting environment. When this movement is so rapid that men cannot adapt themselves to it, we call the phenomenon a revolution, and it is with revolutions that I now have to do.

Nothing is more certain than that the intellectual adaptability of the individual man is very limited. A ruling class is seldom conscious of its own decay, and most of the worst catastrophes of history have been caused by an obstinate resistance to change when resistance was no longer possible. Thus while an incessant alteration in social equilibrium is inevitable, a revolution is a problem in dynamics, on the correct solution of which the fortunes of a declining class depend.

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

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

Speaking broadly, the judicial office, under the monarchy, was vendible. In legal language, it was an incorporeal hereditament. It could be bought and sold and inherited like an advowson, or right to dispose of a cure of souls in the English Church, or of a commission in the English army. The system was well recognized and widespread in the eighteenth century, and worked fairly well with the French judiciary for about three hundred years, but it was not adapted to an industrial environment. The judicial career came to be pretty strongly hereditary in a few families, and though the members of these families were, on the whole, self-respecting, honest, and learned, they held office in their own right and not as a public trust. So in England members of the House of Commons, who sat for nomination boroughs, did not, either in fact or theory, represent the inhabitants of those boroughs, but patrons; and in like manner French judges could never learn to regard themselves as the trustees of the civil rights of a nation, but as a component part of a class who held a status by private title. Looked at as a problem in dynamics the inherent vice in all this kind of property and in all this administrative system, was the decay, after 1760, of the physical force which had engendered it and defended it. As in England the ascendancy of the landlords passed away when England turned from an agricultural into an industrial society, so in France priests and nobles fell into contempt, when most peasants knew that the Church could neither harm by its curse nor aid by its blessing, and when commissions in the army were given to children or favorites, as a sort of pension, while the pith of the nation was excluded from military command because it could not prove four quarterings of nobility. Hardly an aristocrat in France had shown military talent for a generation, while, when the revolution began, men like Jourdan and Kleber, Ney and Augereau, and a host of other future marshals and generals had been dismissed from the army, or were eating out their hearts as petty officers with no hope of advancement. Local privileges and inequalities were as intolerable as personal. There were privileged provinces and those administered arbitrarily by the Crown, there were a multiplicity of internal tariffs, and endless municipal franchises and monopolies, so much so that economists estimated that, through artificial restraints, one-quarter of the soil of France lay waste. Turgot, in his edict on the grain trade, explained that kings in the past by ordinance, or the police without royal authority, had compiled a body "of legislation equivalent to a prohibition of bringing grain into Paris," and this condition was universal. One province might be starving and another oppressed with abundance.

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

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

Robert Turgot was born in 1727, of a respectable family. His father educated him for the Church, but lack of faith caused him to prefer the magistracy, and on the death of his father he obtained a small place in the Court of Parliament. Afterward he became a Master of Requests, and served for seven years in that judicial position, before he was made Intendant of the Province of Limousin. Even thus early in life Turgot showed political sagacity. In an address at the Sorbonne he supported the thesis that "well-timed reform alone averts revolution." Distinguishing himself as Intendant, on the death of Louis XV the King called Turgot to the Council of State, and in August, 1774, Turgot became Minister of Finance. He came in pledged to reform, and by January, 1776, he had formulated his plan. In that month he presented to the King his memorable Six Edicts, the first of which was the most celebrated state paper he ever wrote. It was the Edict for the Suppression of the 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 classes, but for the principle of equality by which Turgot justified it: "The expenses of government having for their object the interests of all, all should contribute to them; and the more advantages a man has, the more that man should contribute."

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

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

Insolvency came within a decade after Turgot's fall, as Turgot had demonstrated that it must come, and an insolvency immediately precipitated by the rapacity of the court which had most need of caution. The future Louis XVIII, for example, who was then known as the Comte de Provence, on one occasion, when the government had made a loan, appropriated a quarter of it, laughingly observing, "When I see others hold out their hands, I hold out my hat." In 1787 the need for money became imperative, and, not daring to appeal to the nation, the King convoked an assembly of "notables," that is to say of the privileged. Calonne, the minister, proposed pretty much the measures of Turgot, and some of these measures the "notables" accepted, but the Parliament of Paris again intervened and declined to register the laws. The Provincial Parliaments followed the Parliament of Paris. After this the King had no alternative but to try the experiment of calling the States-General. They met on May 4, 1789, and instantly an administrative system, which no longer rested upon a social centre of gravity, crumbled, carrying the judiciary with it. At first the three estates sat separately. If this usage had continued, the Clergy and the Nobles combined would have annulled every measure voted by the Commons. For six weeks the Commons waited. Then on June 10, the Abbe Sieyes said, "Let us cut the cable. It is time." So the Clergy and the Nobility were summoned, and some of the Clergy obeyed. This sufficed. On motion of Sieyes, the Commons proclaimed themselves the National Assembly, and the orders fused. Immediately caste admitted defeat and through its mouthpiece, the King, commanded the Assembly to dissolve. The Commons refused to dissolve, and the Nobles prepared for a coup d'etat. The foreign regiments, in the pay of the government, were stationed about Paris, while the Bastille, which was supposed to be impregnable, was garrisoned with Swiss. In reply, on July 14, 1789, the citizens of Paris stormed the Bastille. An unstable social equilibrium had been already converted by pressure into a revolution. Nevertheless, excentric as the centre of gravity had now become, it might have been measurably readjusted had the privileged classes been able to reason correctly from premise to conclusion. Men like Lafayette and Mirabeau still controlled the Assembly, and if the King and the Nobility had made terms, probably the monarchy might have been saved, certainly the massacres would have been averted. As a decaying class is apt to do, the Nobility did that which was worst for themselves. Becoming at length partly conscious of a lack of physical force in France to crush the revolution, a portion of the nobility, led by the Comte d'Artois, the future Charles X, fled to Germany to seek for help abroad, while the bolder remained to plan an attack on the rebellion. On October 1, 1789, a great military banquet was given at Versailles. The King and Queen with the Dauphin were present. A royalist demonstration began. The bugles sounded a charge, the officers drew their swords, and the ladies of the court tore the tricolor from the soldiers' coats and replaced it with the white cockade. On October 5, a vast multitude poured out of Paris, and marched to Versailles. The next day they broke into the palace, killed the guards, and carried the King and Queen captive to the Tuileries. But Louis was so intellectually limited that he could not keep faith with those who wished him well. On July 14, 1790, the King swore, before half a million spectators, to maintain the new constitution. In that summer he was plotting to escape to Metz and join the army which had been collected there under the Marquis de 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."