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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


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THE   THEORY   OF   SOCIAL 
REVOLUTIONS 


THE  MACMILLAN  COMPANY 

NEW  YORK  •    BOSTON  •    CHICAGO  •   DALLAS 
ATLANTA  •    SAN   FRANCISCO 

MACMILLAN  &  CO.,  LIMITED 

LONDON   •    BOMBAY   •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  LTD. 

TORONTO 


BY 

BROOKS  ADAMS 


All  rights  rettrvtd 


COPTMGHT,  1913, 

BY  THE  ATLANTIC  MONTHLY  COMPANY. 

COPYRIGHT,   1913, 

BY  THE  MACMILLAN  COMPANY. 


Set  up  and  elcctrotypcd.     Published  September,  1913. 


XortnooS  $rtsc 

J.  8.  Cashing  Co.  —  Berwick  <k  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


College 
Library 

Tc 


PREFATORY   NOTE 

THE  first  chapter  of  the  following  book  was 
published,  in  substantially  its  present  form,  in 
the  Atlantic  Monthly  for  April,  1913.  I  have 
to  thank  the  editor  for  his  courtesy  in  assenting 
to  my  wish  to  reprint.  The  other  chapters  have 
not  appeared  before.  I  desire  also  to  express 
my  obligations  to  my  learned  friend,  Dr.  M.  M. 
Bigelow,  who,  most  kindly,  at  my  request,  read 
chapters  two  and  three,  which  deal  with  the 
constitutional  law,  and  gave  me  the  benefit  of 
his  most  valuable  criticism. 

Further  than  this  I  have  but  one  word  to 
add.  I  have  written  in  support  of  no  political 
movement,  nor  for  any  ephemeral  purpose.  I 
have  written  only  to  express  a  deep  convic- 
tion which  is  the  result  of  more  than  twenty 
years  of  study,  and  reflection  upon  this  subject. 


BROOKS   ADAMS. 


QUINCY,  MASSACHUSETTS, 
May  17,  1913. 


1319710 


CONTENTS 

CHAPTER  FAGS 

I.    THE  COLLAPSE  OF  CAPITALISTIC  GOVERNMENT     .  i 

II.    THE  LIMITATIONS  OF  THE  JUDICIAL  FUNCTION      .  36 

III.  AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS     .  80 

IV.  THE  SOCIAL  EQUILIBRIUM 132 

V.    POLITICAL  COURTS 160 

VI.    INFERENCES 203 

INDEX 231 


THE  THEORY  OF  SOCIAL 
REVOLUTIONS 

CHAPTER  I 

THE  COLLAPSE  OF  CAPITALISTIC  GOVERNMENT 

CIVILIZATION,  I  apprehend,  is  nearly  synony- 
mous with  order.  However  much  we  may  differ 
touching  such  matters  as  the  distribution  of  prop- 
erty, the  domestic  relations,  the  law  of  inheri- 
tance and  the  like,  most  of  us,  I  should  suppose, 
would  agree  that  without  order  civilization,  as 
we  understand  it,  cannot  exist.  Now,  although 
the  optimist  contends  that,  since  man  cannot 
foresee  the  future,  worry  about  the  future  is 
futile,  and  that  everything,  in  the  best  possible 
of  worlds,  is  inevitably  for  the  best,  I  think  it 
clear  that  within  recent  years  an  uneasy  suspicion 
has  come  into  being  that  the  principle  of  authority 
has  been  dangerously  impaired,  and  that  the 
social  system,  if  it  is  to  cohere,  must  be  reorganized. 
So  far  as  my  observation  has  extended,  such  in- 
tuitions are  usually  not  without  an  adequate 


2  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

cause,  and  if  there  be  reason  for  anxiety  anywhere, 
it  surely  should  be  in  the  United  States,  with  its 
unwieldy  bulk,  its  heterogeneous  population,  and 
its  complex  government.  Therefore,  I  submit, 
that  an  hour  may  not  be  quite  wasted  which  is 
passed  in  considering  some  of  the  recent  phenom- 
ena which  have  appeared  about  us,  in  order  to 
ascertain  if  they  can  be  grouped  together  in  any 
comprehensible  relation. 

About  a  century  ago,  after  the  American  and 
French  Revolutions  and  the  Napoleonic  wars, 
the  present  industrial  era  opened,  and  brought 
with  it  a  new  governing  class,  as  every  consider- 
able change  in  human  environment  must  bring 
with  it  a  governing  class  to  give  it  expression. 
Perhaps,  for  lack  of  a  recognized  name,  I  may 
describe  this  class  as  the  industrial  capitalistic 
class,  composed  in  the  main  of  administrators 
and  bankers.  As  nothing  in  the  universe  is 
stationary,  ruling  classes  have  their  rise,  culmina- 
tion, and  decline,  and  I  conjecture  that  this  class 
attained  to  its  acme  of  popularity  and  power,  at 
least  in  America,  toward  the  close  of  the  third 
quarter  of  the  nineteenth  century.  I  draw  this 
inference  from  the  fact  that  in  the  next  quarter 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT         3 

resistance  to  capitalistic  methods  began  to  take 
shape  hi  such  legislation  as  the  Interstate  Com- 
merce Law  and  the  Sherman  Act,  and  almost 
at  the  opening  of  the  present  century  a  progres- 
sively rigorous  opposition  found  for  its  mouth- 
piece the  President  of  the  Union  himself.  His- 
tory may  not  be  a  very  practical  study,  but  it 
teaches  some  useful  lessons,  one  of  which  is  that 
nothing  is  accidental,  and  that  if  men  move  in  a 
given  direction,  they  do  so  hi  obedience  to  an 
impulsion  as  automatic  as  is  the  impulsion  of 
gravitation.  Therefore,  if  Mr.  Roosevelt  be- 
came, what  his  adversaries  are  pleased  to  call, 
an  agitator,  his  agitation  had  a  cause  which  is  as 
deserving  of  study  as  is  the  path  of  a  cyclone. 
This  problem  has  long  interested  me,  and  I  harbor 
no  doubt  not  only  that  the  equilibrium  of  society 
is  very  rapidly  shifting,  but  that  Mr.  Roosevelt 
has,  half-automatically,  been  stimulated  by  the 
instability  about  him  to  seek  for  a  new  centre  of 
social  gravity.  In  plain  English,  I  infer  that  he 
has  concluded  that  industrialism  has  induced 
conditions  which  can  no  longer  be  controlled  by 
the  old  capitalistic  methods,  and  that  the  country 
must  be  brought  to  a  level  of  administrative 


4  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

efficiency  competent  to  deal  with  the  strains  and 
stresses  of  the  twentieth  century,  just  as,  a 
hundred  and  twenty-five  years  ago,  the  country 
was  brought  to  an  administrative  level  competent 
for  that  age,  by  the  adoption  of  the  Constitution. 
Acting  on  these  premises,  as  I  conjecture,  whether 
consciously  worked  out  or  not,  Mr.  Roosevelt's 
next  step  was  to  begin  the  readjustment;  but, 
I  infer,  that  on  attempting  any  correlated  measures 
of  reform,  Mr.  Roosevelt  found  progress  impossible, 
because  of  the  obstruction  of  the  courts.  Hence 
his  instinct  led  him  to  try  to  overleap  that  ob- 
struction, and  he  suggested,  without,  I  suspect, 
examining  the  problem  very  deeply,  that  the 
people  should  assume  the  right  of  "recalling" 
judicial  decisions  made  in  causes  which  involved 
the  nullifying  of  legislation.  What  would  have 
happened  had  Mr.  Roosevelt  been  given  the  op- 
portunity to  thoroughly  formulate  his  ideas,  even 
in  the  midst  of  an  election,  can  never  be  known, 
for  it  chanced  that  he  was  forced  to  deal  with 
subjects  as  vast  and  complex  as  ever  vexed  a 
statesman  or  a  jurist,  under  difficulties  at  least 
equal  to  the  difficulties  of  the  task  itself. 

If  the  modern  mind  has  developed  one  char- 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT         5 

acteristic  more  markedly  than  another,  it  is  an 
impatience  with  prolonged  demands  on  its  at- 
tention, especially  if  the  subject  be  tedious.  No 
one  could  imagine  that  the  New  York  press  of 
to-day  would  print  the  disquisitions  which  Hamil- 
ton wrote  in  1788  in  support  of  the  Constitution, 
or  that,  if  it  did,  any  one  would  read  them,  least 
of  all  the  lawyers;  and  yet  Mr.  Roosevelt's 
audience  was  emotional  and  discursive  even  for 
a  modern  American  audience.  Hence,  if  he 
attempted  to  lead  at  all,  he  had  little  choice  but 
to  adopt,  or  at  least  discuss,  every  nostrum  for 
reaching  an  immediate  millennium  which  happened 
to  be  uppermost ;  although,  at  the  same  time, 
he  had  to  defend  himself  against  an  attack  com- 
pared with  which  any  criticism  to  which  Hamilton 
may  have  been  subjected  resembled  a  caress. 
The  result  has  been  that  the  Progressive  move- 
ment, bearing  Mr.  Roosevelt  with  it,  has  de- 
generated into  a  disintegrating  rather  than  a 
constructive  energy,  which  is,  I  suspect,  likely  to 
become  a  danger  to  every  one  interested  in  the 
maintenance  of  order,  not  to  say  in  the  stability 
of  property.  Mr  Roosevelt  is  admittedly  a  strong 
and  determined  man  whose  instinct  is  arbitrary, 


6  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

and  yet,  if  my  analysis  be  sound,  we  see  him,  at 
the  supreme  moment  of  his  life,  diverted  from  his 
chosen  path  toward  centralization  of  power,  and 
projected  into  an  environment  of,  apparently,  for  the 
most  part,  philanthropists  and  women,  who  could 
hardly  conceivably  form  a  party  fit  to  aid  him 
in  establishing  a  vigorous,  consolidated,  adminis- 
trative system.  He  must  have  found  the  pressure 
toward  disintegration  resistless,  and  if  we  consider 
this  most  significant  phenomenon,  in  connection 
with  an  abundance  of  similar  phenomena,  in 
other  countries,  which  indicate  social  incoherence, 
we  can  hardly  resist  a  growing  apprehension 
touching  the  future.  Nor  is  that  apprehension 
allayed  if,  to  reassure  ourselves,  we  turn  to  history, 
for  there  we  find  on  every  side  long  series  of 
precedents  more  ominous  still. 

Were  all  other  evidence  lacking,  the  inference 
that  radical  changes  are  at  hand  might  be  deduced 
from  the  past.  In  the  experience  of  the  English- 
speaking  race,  about  once  in  every  three  genera- 
tions a  social  convulsion  has  occurred ;  and  prob- 
ably such  catastrophes  must  continue  to  occur  in 
order  that  laws  and  institutions  may  be  adapted 
to  physical  growth.  Human  society  is  a  living 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT        7 

organism,  working  mechanically,  like  any  other 
organism.  It  has  members,  a  circulation,  a 
nervous  system,  and  a  sort  of  skin  or  envelope, 
consisting  of  its  laws  and  institutions.  This  skin, 
or  envelope,  however,  does  not  expand  automati- 
cally, as  it  would  had  Providence  intended  human- 
ity to  be  peaceful,  but  is  only  fitted  to  new  con- 
ditions by  those  painful  and  conscious  efforts 
which  we  call  revolutions.  Usually  these  revolu- 
tions are  warlike,  but  sometimes  they  are  benign, 
as  was  the  revolution  over  which  General  Washing- 
ton, our  first  great "  Progressive,"  presided,  when 
the  rotting  Confederation,  under  his  guidance,  was 
converted  into  a  relatively  excellent  administrative 
system  by  the  adoption  of  the  Constitution. 

Taken  for  all  in  all,  I  conceive  General  Washing- 
ton to  have  been  the  greatest  man  of  the  eighteenth 
century,  but  to  me  his  greatness  chiefly  consists 
in  that  balance  of  mind  which  enabled  him  to 
recognize  when  an  old  order  had  passed  away,  and 
to  perceive  how  a  new  order  could  be  best  intro- 
duced. Joseph  Story  was  ten  years  old  in  1789 
when  the  Constitution  was  adopted ;  his  earliest 
impressions,  therefore,  were  of  the  Confederation, 
and  I  know  no  better  description  of  the  interval 


8  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

just  subsequent  to  the  peace  of  1783,  than  is 
contained  in  a  few  lines  in  his  dissenting  opinion 
in  the  Charles  River  Bridge  Case :  — 

"In  order  to  entertain  a  just  view  of  this  sub- 
ject, we  must  go  back  to  that  period  of  general 
bankruptcy,  and  distress  and  difficulty  (1785).  .  .  . 
The  union  of  the  States  was  crumbling  into  ruins, 
under  the  old  Confederation.  Agriculture,  manu- 
factures, and  commerce  were  at  their  lowest  ebb. 
There  was  infinite  da  iger  to  all  the  States  from 
local  interests  and  jealousies,  and  from  the  ap- 
parent impossibility  of  a  much  longer  adherence 
to  that  shadow  of  a  government,  the  Continental 
Congress.  And  even  four  years  afterwards,  when 
every  evil  had  been  greatly  aggravated,  and  civil 
war  was  added  to  other  calamities,  the  Constitu- 
tion of  the  United  States  was  all  but  shipwrecked 
in  passing  through  the  state  conventions."  1 

This  crisis,  according  to  my  computation,  was 
the  normal  one  of  the  third  generation.  Between 
1688  and  1765  the  British  Empire  had  physically 
outgrown  its  legal  envelope,  and  the  consequence 
was  a  revolution.  The  thirteen  American  colonies, 
which  formed  the  western  section  of  the  imperial 

1  Charles  River  Bridge  r.  Warren  Bridge,  1 1  Peters,  608,  609. 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT        9 

mass,  split  from  the  core  and  drifted  into  chaos, 
beyond  the  constraint  of  existing  law.  Washing- 
ton was,  in  his  way,  a  large  capitalist,  but  he  was 
much  more.  He  was  not  only  a  wealthy  planter, 
but  he  was  an  engineer,  a  traveller,  to  an  extent  a 
manufacturer,  a  politician,  and  a  soldier,  and  he 
saw  that,  as  a  conservative,  he  must  be  "  Pro- 
gressive" and  raise  the  law  to  a  power  high  enough 
to  constrain  all  these  thirteen  refractory  units. 
For  Washington  understood  that  peace  does  not 
consist  in  talking  platitudes  at  conferences,  but 
in  organizing  a  sovereignty  strong  enough  to 
coerce  its  subjects. 

The  problem  of  constructing  such  a  sovereignty 
was  the  problem  which  Washington  solved,  tem- 
porarily at  least,  without  violence.  He  prevailed 
not  only  because  of  an  intelligence  and  elevation 
of  character  which  enabled  him  to  comprehend, 
and  to  persuade  others,  that,  to  attain  a  common 
end,  all  must  make  sacrifices,  but  also  because 
he  was  supported  by  a  body  of  the  most  remarkable 
men  whom  America  has  ever  produced.  Men  who, 
though  doubtless  in  a  numerical  minority,  taking 
the  country  as  a  whole,  by  sheer  weight  of  ability 
and  energy,  achieved  their  purpose. 


10          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

Yet  even  Washington  and  his  adherents  could 
not  alter  the  limitations  of  the  human  mind.  He 
could  postpone,  but  he  could  not  avert,  the  impact 
of  conflicting  social  forces.  In  1789  he  com- 
promised, but  he  did  not  determine  the  question 
of  sovereignty.  He  eluded  an  impending  conflict 
by  introducing  courts  as  political  arbitrators, 
and  the  expedient  worked  more  or  less  well  until 
the  tension  reached  a  certain  point.  Then  it 
broke  down,  and  the  question  of  sovereignty  had 
to  be  settled  in  America,  as  elsewhere,  on  the  field 
of  battle.  It  was  not  decided  until  Appomattox. 
But  the  function  of  the  courts  in  American  life 
is  a  subject  which  I  shall  consider  hereafter. 

If  the  invention  of  gunpowder  and  printing  in 
the  fourteenth  and  fifteenth  centuries  presaged 
the  Reformation  of  the  sixteenth,  and  if  the  In- 
dustrial Revolution  of  the  eighteenth  was  the 
forerunner  of  political  revolutions  throughout  the 
Western  World,  we  may  well,  after  the  mechanical 
and  economic  cataclysm  of  the  nineteenth,  cease 
wondering  that  twentieth-century  society  should 
be  radical. 

Never  since  man  first  walked  erect  have  his 
relations  toward  nature  been  so  changed,  within 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT       n 

the  same  space  of  time,  as  they  have  been  since 
Washington  was  elected  President  and  the  Parisian 
mob  stormed  the  Bastille.  Washington  found 
the  task  of  a  readjustment  heavy  enough,  but  the 
civilization  he  knew  was  simple.  When  Washing- 
ton lived,  the  fund  of  energy  at  man's  disposal 
had  not  very  sensibly  augmented  since  the  fall 
of  Rome.  In  the  eighteenth,  as  in  the  fourth 
century,  engineers  had  at  command  only  animal 
power,  and  a  little  wind  and  water  power,  to  which 
had  been  added,  at  the  end  of  the  Middle  Ages, 
a  low  explosive.  There  was  nothing  in  the  daily 
life  of  his  age  which  made  the  legal  and  adminis- 
trative principles  which  had  sufficed  for  Justinian 
insufficient  for  him.  Twentieth-century  society 
rests  on  a  basis  not  different  so  much  in  degree,  as 
in  kind,  from  all  that  has  gone  before.  Through 
applied  science  infinite  forces  have  been  domes- 
ticated, and  the  action  of  these  infinite  forces 
upon  finite  minds  has  been  to  create  a  tension, 
together  with  a  social  acceleration  and  concen- 
tration, not  only  unparalleled,  but,  apparently, 
without  limit.  Meanwhile  our  laws  and  in- 
stitutions have  remained,  in  substance,  constant. 
I  doubt  if  we  have  developed  a  single  important 


12          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

administrative  principle  which  would  be  novel 
to  Napoleon,  were  he  to  live  again,  and  I  am 
quite  sure  that  we  have  no  legal  principle  younger 
than  Justinian. 

As  a  result,  society  has  been  squeezed,  as  it 
were,  from  its  rigid  eighteenth-century  legal  shell, 
and  has  passed  into  a  fourth  dimension  of  space, 
where  it  performs  its  most  important  functions 
beyond  the  cognizance  of  the  law,  which  remains 
in  a  space  of  but  three  dimensions.  Washington 
encountered  a  somewhat  analogous  problem  when 
dealing  with  the  thirteen  petty  independent  states, 
which  had  escaped  from  England;  but  his  prob- 
lem was  relatively  rudimentary.  Taking  the 
theory  of  sovereignty  as  it  stood,  he  had  only  to 
apply  it  to  communities.  It  was  mainly  a  ques- 
tion of  concentrating  a  sufficient  amount  of  energy 
to  enforce  order  in  sovereign  social  units.  The 
whole  social  detail  remained  unchanged.  Our 
conditions  would  seem  to  imply  a  very  consider- 
able extension  and  specialization  of  the  principle 
of  sovereignty,  together  with  a  commensurate 
increment  of  energy,  but  unfortunately  the  twen- 
tieth-century American  problem  is  still  further 
complicated  by  the  character  of  the  envelope  in 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT       13 

which  this  highly  volatilized  society  is  theoreti- 
cally contained.  To  attain  his  object,  Washing- 
ton introduced  a  written  organic  law,  which  of  all 
things  is  the  most  inflexible.  No  other  modern 
nation  has  to  consider  such  an  impediment. 

Moneyed  capital  I  take  to  be  stored  human 
energy,  as  a  coal  measure  is  stored  solar  energy; 
and  moneyed  capital,  under  the  stress  of  modern 
life,  has  developed  at  once  extreme  fluidity,  and 
an  equivalent  compressibility.  Thus  a  small 
number  of  men  can  control  it  in  enormous  masses, 
and  so  it  comes  to  pass  that,  in  a  community 
like  the  United  States,  a  few  men,  or  even,  in 
certain  emergencies,  a  single  man,  may  become 
clothed  with  various  of  the  attributes  of  sover- 
eignty. Sovereign  powers  are  powers  so  important 
that  the  community,  in  its  corporate  capacity, 
has,  as  society  has  centralized,  usually  found  it 
necessary  to  monopolize  them  more  or  less  ab- 
solutely, since  their  possession  by  private  persons 
causes  revolt.  These  powers,  when  vested  in 
some  official,'  as,  for  example,  a  king  or  emperor, 
have  been  held  by  him,  in  all  Western  countries 
at  least,  as  a  trust  to  be  used  for  the  common 
welfare.  A  breach  of  that  trust  has  commonly 


14          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

been  punished  by  deposition  or  death.  It  was 
upon  a  charge  of  breach  of  trust  that  Charles  I, 
among  other  sovereigns,  was  tried  and  executed. 
In  short,  the  relation  of  sovereign  and  subject 
has  been  based  either  upon  consent  and  mutual 
obligation,  or  upon  submission  to  a  divine  com- 
mand; but,  in  either  case,  upon  recognition  of 
responsibility.  Only  the  relation  of  master  and 
slave  implies  the  status  of  sovereign  power  vested 
in  an  unaccountable  superior.  Nevertheless,  it  is 
in  a  relation  somewhat  analogous  to  the  latter, 
that  the  modern  capitalist  has  been  placed  toward 
his  fellow  citizens,  by  the  advances  in  applied 
science.  An  example  or  two  will  explain  my 
meaning. 

High  among  sovereign  powers  has  always 
ranked  the  ownership  and  administration  of  high- 
ways. And  it  is  evident  why  this  should  have 
been  so.  Movement  is  life,  and  the  stoppage  of 
movement  is  death,  and  the  movement  of  every 
people  flows  along  its  highways.  An  invader  has 
only  to  cut  the  communications  of  the  invaded  to 
paralyze  him,  as  he  would  paralyze  an  animal  by 
cutting  his  arteries  or  tendons.  Accordingly, 
in  all  ages  and  in  all  lands,  down  to  the  nineteenth 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT      15 

century,  nations  even  partially  centralized  have, 
in  their  corporate  capacity,  owned  and  cared  for 
their  highways,  either  directly  or  through  ac- 
countable agents.  And  they  have  paid  for  them 
by  direct  taxes,  like  the  Romans,  or  by  tolls  levied 
upon  traffic,  as  many  mediaeval  governments 
preferred  to  do.  Either  method  answers  its 
purpose,  provided  the  government  recognizes  its 
responsibility ;  and  no  government  ever  recognized 
this  responsibility  more  fully  than  did  the  auto- 
cratic government  of  ancient  Rome.  So  the 
absolute  regime  of  eighteenth-century  France 
recognized  this  responsibility  when  Louis  XVI 
undertook  to  remedy  the  abuse  of  unequal  taxa- 
tion, for  the  maintenance  of  the  highways,  by 
abolishing  the  corvee. 

Toward  the  middle  of  the  nineteenth  century, 
the  application,  by  science,  of  steam  to  locomotion, 
made  railways  a  favorite  speculation.  Forth- 
with, private  capital  acquired  these  highways, 
and  because  of  the  inelasticity  of  the  old  law, 
treated  them  as  ordinary  chattels,  to  be  admin- 
istered for  the  profit  of  the  owner  exclusively. 
It  is  true  that  railway  companies  posed  as  public 
agents  when  demanding  the  power  to  take  pri- 


16         THE  THEORY  OF  SOCIAL  REVOLUTIONS 

vate  property ;  but  when  it  came  to  charging  for 
use  of  their  ways,  they  claimed  to  be  only  private 
carriers,  authorized  to  bargain  as  they  pleased. 
Indeed,  it  grew  to  be  considered  a  mark  of  efficient 
railroad  management  to  extract  the  largest  rev- 
enue possible  from  the  people,  along  the  lines 
of  least  resistance ;  that  is,  by  taxing  most  heavily 
those  individuals  and  localities  which  could  least 
resist.  And  the  claim  by  the  railroads  that  they 
might  do  this  as  a  matter  of  right  was  long  up- 
held by  the  courts,1  nor  have  the  judges  even 
yet,  after  a  generation  of  revolt  and  of  legislation, 
altogether  abandoned  this  doctrine. 

The  courts  —  reluctantly,  it  is  true,  and  prin- 
cipally at  the  instigation  of  the  railways  them- 
selves, who  found  the  practice  unprofitable  — 
have  latterly  discountenanced  discrimination  as 
to  persons,  but  they  still  uphold  discrimination 
as  to  localities.2  Now,  among  abuses  of  sover- 
eign power,  this  is  one  of  the  most  galling,  for  of 
all  taxes  the  transportation  tax  is  perhaps  that 

1  Fitchburg  R.  R.  ».  Gage,  12  Gray  393,  and  innumerable  cases 
following  it. 

1  See  the  decisions  of  the  Commerce  Court  on  the  Long  and  Short- 
Haul  Clause.  Atchison,  T.  &  S.  F.  Ry.  t>.  United  States,  191  Federal 
Rep.  856. 


COLLAPSE   OF  CAPITALISTIC  GOVERNMENT       17 

which  is  most  searching,  most  insidious,  and, 
when  misused,  most  destructive.  The  price  paid 
for  transportation  is  not  so  essential  to  the  public 
welfare  as  its  equality;  for  neither  persons  nor 
localities  can  prosper  when  the  necessaries  of  life 
cost  them  more  than  they  cost  their  competitors. 
In  towns,  no  cup  of  water  can  be  drunk,  no  crust 
of  bread  eaten,  no  garment  worn,  which  has  not 
paid  the  transportation  tax,  and  the  farmer's 
crops  must  rot  upon  his  land,  if  other  farmers 
pay  enough  less  than  he  to  exclude  him  from 
markets  toward  which  they  all  stand  in  a  position 
otherwise  equal.  Yet  this  formidable  power  has 
been  usurped  by  private  persons  who  have  used 
it  purely  selfishly,  as  no  legitimate  sovereign 
could  have  used  it,  and  by  persons  who  have 
indignantly  denounced  all  attempts  to  hold  them 
accountable,  as  an  infringement  of  their  con- 
stitutional rights.  Obviously,  capital  cannot  as- 
sume the  position  of  an  irresponsible  sovereign, 
living  in  a  sphere  beyond  the  domain  of  law,  with- 
out inviting  the  fate  which  has  awaited  all  sover- 
eigns who  have  denied  or  abused  their  trust. 

The  operation  of  the  New  York  Clearing-House 
is  another  example  of  the  acquisition  of  sovereign 


l8          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

power  by  irresponsible  private  persons.  Pri- 
marily, of  course,  a  clearing-house  is  an  innocent 
institution  occupied  with  adjusting  balances  be- 
tween banks,  and  has  no  relation  to  the  volume 
of  the  currency.  Furthermore,  among  all  highly 
centralized  nations,  the  regulation  of  the  cur- 
rency is  one  of  the  most  jealously  guarded  of  the 
prerogatives  of  sovereignty,  because  all  values 
hinge  upon  the  relation  which  the  volume  of  the 
currency  bears  to  the  volume  of  trade.  Yet,  as 
everybody  knows,  in  moments  of  financial  panic, 
the  handful  of  financiers  who,  directly  or  in- 
directly, govern  the  Clearing-House,  have  it  in 
their  power  either  to  expand  or  to  contract  the 
currency,  by  issuing  or  by  withdrawing  Clearing- 
House  certificates,  more  effectually  perhaps  than 
if  they  controlled  the  Treasury  of  the  United 
States.  Nor  does  this  power,  vast  as  it  is,  at  all 
represent  the  supremacy  which  a  few  bankers 
enjoy  over  values,  because  of  their  facilities  for 
manipulating  the  currency  and,  with  the  cur- 
rency, credit ;  facilities,  which  are  used  or  abused 
entirely  beyond  the  reach  of  the  law. 

Bankers,  at  their  conventions  and  through  the 
press,  are  wont  to  denounce  the  American  mone- 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT      19 

tary  system,  and  without  doubt  all  that  they  say, 
and  much  more  that  they  do  not  say,  is  true; 
and  yet  I  should  suppose  that  there  could  be 
little  doubt  that  American  financiers  might,  after 
the  panic  of  1893,  and  before  the  administration 
of  Mr.  Taft,  have  obtained  from  Congress,  at 
most  sessions,  very  reasonable  legislation,  had 
they  first  agreed  upon  the  reforms  they  demanded, 
and,  secondly,  manifested  their  readiness,  as  a 
condition  precedent  to  such  reforms,  to  submit  to 
effective  government  supervision  in  those  depart- 
ments of  their  business  which  relate  to  the  in- 
flation or  depression  of  values.  They  have  shown 
little  inclination  to  submit  to  restraint  in  these 
particulars,  nor,  perhaps,  is  their  reluctance  sur- 
prising, for  the  possession  by  a  very  small  favored 
class  of  the  unquestioned  privilege,  whether 
actually  used  or  not,  at  recurring  intervals,  of 
subjecting  the  debtor  class  to  such  pressure  as  the 
creditor  may  think  necessary,  in  order  to  force 
the  debtor  to  surrender  his  property  to  the 
creditor  at  the  creditor's  price,  is  a  wonder 
beside  which  Aladdin's  lamp  burns  dim. 

As  I  have  already  remarked,  I  apprehend  that 
sovereignty  is  a  variable  quantity  of  administra- 


20         THE  THEORY  OF   SOCIAL  REVOLUTIONS 

tive  energy,  which,  in  civilizations  which  we  call 
advancing,  tends  to  accumulate  with  a  rapidity 
proportionate  to  the  acceleration  of  movement. 
That  is  to  say,  the  community,  as  it  consolidates, 
finds  it  essential  to  its  safety  to  withdraw,  more 
or  less  completely,  from  individuals,  and  to 
monopolize,  more  or  less  strictly,  itself,  a  great 
variety  of  functions.  At  one  stage  of  civilization 
the  head  of  the  family  administers  justice,  main- 
tains an  armed  force  for  war  or  police,  wages  war, 
makes  treaties  of  peace,  coins  money,  and,  not 
infrequently,  wears  a  crown,  usually  of  a  form  to 
indicate  his  importance  hi  a  hierarchy.  At  a 
later  stage  of  civilization,  companies  of  traders 
play  a  great  part.  Such  aggregations  of  private 
and  irresponsible  adventurers  have  invaded  and 
conquered  empires,  founded  colonies,  and  ad- 
ministered justice  to  millions  of  human  beings. 
In  our  own  tune,  we  have  seen  the  assumption  of 
many  of  the  functions  of  these  and  similar  private 
companies  by  the  sovereign.  We  have  seen  the 
East  India  Company  absorbed  by  the  British 
Parliament;  we  have  seen  the  railways,  and  the 
telephone  and  the  telegraph  companies,  taken 
into  possession,  very  generally,  by  the  most  pro- 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT       21 

gressive  governments  of  the  world ;  and  now  we 
have  come  to  the  necessity  of  dealing  with  the 
domestic-trade  monopoly,  because  trade  has  fallen 
into  monopoly  through  the  centralization  of  capi- 
tal in  a  constantly  contracting  circle  of  owner- 
ship. 

Among  innumerable  kinds  of  monopolies  none 
have  been  more  troublesome  than  trade  monop- 
olies, especially  those  which  control  the  price  of 
the  necessaries  of  life;  for,  so  far  as  I  know,  no 
people,  approximately  free,  have  long  endured 
such  monopolies  patiently.  Nor  could  they  well 
have  done  so  without  constraint  by  overpowering 
physical  force,  for  the  possession  of  a  monopoly 
of  a  necessary  of  life  by  an  individual,  or  by  a 
small  privileged  class,  is  tantamount  to  investing 
a  minority,  contemptible  alike  hi  numbers  and 
in  physical  force,  with  an  arbitrary  and  un- 
limited power  to  tax  the  majority,  not  for  public, 
but  for  private  purposes.  Therefore  it  has  not 
infrequently  happened  that  persistence  in  ad- 
hering to  and  in  enforcing  such  monopolies  has 
led,  first,  to  attempts  at  regulation,  and,  these 
failing,  to  confiscation,  and  sometimes  to  the 
proscription  of  the  owners.  An  example  of  such 


22  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

a  phenomenon  occurs  to  me  which,  just  now, 
seems  apposite. 

In  the  earlier  Middle  Ages,  before  gunpowder 
made  fortified  houses  untenable  when  attacked 
by  the  sovereign,  the  highways  were  so  dangerous 
that  trade  and  manufactures  could  only  survive 
in  walled  towns.  An  unarmed  urban  population 
had  to  buy  its  privileges,  and  to  pay  for  these  a 
syndicate  grew  up  in  each  town,  which  became 
responsible  for  the  town  ferm,  or  tax,  and,  in 
return,  collected  what  part  of  the  municipal  ex- 
penses it  could  from  the  poorer  inhabitants. 
These  syndicates,  called  guilds,  as  a  means  of 
raising  money,  regulated  trade  and  fixed  prices, 
and  they  succeeded  in  fixing  prices  because  they 
could  prevent  competition  within  the  walls.  Pres- 
ently complaints  became  rife  of  guild  oppression, 
and  the  courts  had  to  entertain  these  complaints 
from  the  outset,  to  keep  some  semblance  of  order ; 
but  at  length  the  turmoil  passed  beyond  the 
reach  of  the  courts,  and  Parliament  intervened. 
Parliament  not  only  enacted  a  series  of  statutes 
regulating  prices  in  towns,  but  supervised  guild 
membership,  requiring  trading  companies  to  re- 
ceive new  members  upon  what  Parliament  con- 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT      23 

sidered  to  be  reasonable  terms.  Nevertheless, 
friction  continued. 

With  advances  in  science,  artillery  improved, 
and,  as  artillery  improved,  the  police  strength- 
ened until  the  king  could  arrest  whom  he  pleased. 
Then  the  country  grew  safe  and  manufactures 
migrated  from  the  walled  and  heavily  taxed  towns 
to  the  cheap,  open  villages,  and  from  thence 
undersold  the  guilds.  As  the  area  of  competition 
broadened,  so  the  guilds  weakened,  until,  under 
Edward  VI,  being  no  longer  able  to  defend  them- 
selves, they  were  ruthlessly  and  savagely  plun- 
dered; and  fifty  years  later  the  Court  of  King's 
Bench  gravely  held  that  a  royal  grant  of  a  mo- 
nopoly had  always  been  bad  at  common  law.1 

Though  the  Court's  law  proved  to  be  good, 
since  it  has  stood,  its  history  was  fantastic;  for 
the  trade-guild  was  the  offspring  of  trade  mo- 
nopoly, and  a  trade  monopoly  had  for  centuries 
been  granted  habitually  by  the  feudal  landlord 
to  his  tenants,  and  indeed  was  the  only  means 
by  which  an  Urban  population  could  finance  its 
military  expenditure.  Then,  hi  due  course,  the 
Crown  tried  to  establish  its  exclusive  right  to 

1  Darcy  v.  Allein,  1 1  Rep.  84. 


24          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

grant  monopolies,  and  finally  Parliament  —  or 
King,  Lords,  and  Commons  combined,  being  the 
whole  nation  in  its  corporate  capacity,  —  ap- 
propriated this  monopoly  of  monopolies  as  its 
supreme  prerogative.  And  with  Parliament  this 
monopoly  has  ever  since  remained. 

In  fine,  monopolies,  or  competition  in  trade, 
appear  to  be  recurrent  social  phases  which  depend 
upon  the  ratio  which  the  mass  and  the  fluidity  of 
capital,  or,  in  other  words,  its  energy,  bears  to 
the  area  within  which  competition  is  possible. 
In  the  Middle  Ages,  when  the  town  walls  bounded 
that  area,  or  when,  at  most,  it  was  restricted  to  a 
few  lines  of  communication  between  defensible 
points  garrisoned  by  the  monopolists,  —  as  were 
the  Staple  towns  of  England  which  carried  on  the 
wool  trade  with  the  British  fortified  counting- 
houses  in  Flanders,  —  a  small  quantity  of  slug- 
gish capital  sufficed.  But  as  police  improved,  and 
the  area  of  competition  broadened  faster  than 
capital  accumulated  and  quickened,  the  com- 
petitive phase  dawned,  whose  advent  is  marked 
by  Darcy  v.  Allein,  decided  in  the  year  1600. 
Finally,  the  issue  between  monopoly  and  free 
trade  was  fought  out  in  the  American  Revolution, 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT       25 

for  the  measure  which  precipitated  hostilities 
was  the  effort  of  England  to  impose  her  monopoly 
of  the  Eastern  trade  upon  America.  The  Boston 
Tea  Party  occurred  on  December  16,  1773.  Then 
came  the  heyday  of  competition  with  the  accept- 
ance of  the  theories  of  Adam  Smith,  and  the 
political  domination  in  England,  towards  1840, 
of  the  Manchester  school  of  political  economy. 

About  forty  years  since,  in  America  at  least, 
the  tide  would  appear  once  more  to  have  turned. 
I  fix  the  moment  of  flux,  as  I  am  apt  to  do,  by  a 
lawsuit.  This  suit  was  the  Morris  Run  Coal 
Company  v.  Barclay  Coal  Company,1  which  is 
the  first  modern  anti-monopoly  litigation  that  I 
have  met  with  in  the  United  States.  It  was 
decided  hi  Pennsylvania  in  1871 ;  and  since  1871, 
while  the  area  within  which  competition  is  possible 
has  been  kept  constant  by  the  tariff,  capital  has 
accumulated  and  has  been  concentrated  and 
volatilized  until,  within  this  republic,  substantially 
all  prices  are  fixed  by  a  vast  moneyed  mass.  This 
mass,  obeying  what  amounts  to  being  a  single 
volition,  has  its  heart  in  Wall  Street,  and  per- 
vades every  corner  of  the  Union.  No  matter 

168  Pa.  173. 


26          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

what  price  is  in  question,  whether  it  be  the  price 
of  meat,  or  coal,  or  cotton  cloth,  or  of  railway 
transportation,  or  of  insurance,  or  of  discounts, 
the  inquirer  will  find  the  price  to  be,  hi  essence, 
a  monopoly  or  fixed  price ;  and  if  he  will  follow 
his  investigation  to  the  end,  he  will  also  find  that 
the  first  cause  in  the  complex  chain  of  cause  and 
effect  which  created  the  monopoly  is  that  mys- 
terious energy  which  is  enthroned  on  the  Hudson. 
The  presence  of  monopolistic  prices  in  trade  is 
not  always  a  result  of  conscious  agreement; 
more  frequently,  perhaps,  it  is  automatic,  and  is 
an  effect  of  the  concentration  of  capital  to  a  point 
where  competition  ceases,  as  when  all  the  capital 
engaged  in  a  trade  belongs  to  a  single  owner. 
Supposing  ownership  to  be  enough  restricted,  com- 
bination is  easier  and  more  profitable  than  com- 
petition; therefore  combination,  conscious  or 
unconscious,  supplants  competition.  The  infer- 
ence from  the  evidence  is  that,  in  the  United 
States,  capital  has  reached,  or  is  rapidly  reaching, 
this  point  of  concentration;  and  if  this  be  true, 
competition  cannot  be  enforced  by  legislation. 
But,  assuming  that  competition  could  still  be 
enforced  by  law,  the  only  effect  would  be  to  make 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT      27 

the  mass  of  capital  more  homogeneous  by  elimi- 
nating still  further  such  of  the  weaker  capitalists 
as  have  survived.  Ultimately,  unless  indeed 
society  is  to  dissolve  and  capital  migrate  else- 
where, all  the  present  phenomena  would  be  in- 
tensified. Nor  would  free  trade,  probably,  have 
more  than  a  very  transitory  effect.  In  no  depart- 
ment of  trade  is  competition  freer  than  in  the 
Atlantic  passenger  service,  and  yet  in  no  trade  is 
there  a  stricter  monopoly  price. 

The  same  acceleration  of  the  social  movement 
which  has  caused  this  centralization  of  capital 
has  caused  the  centralization  of  another  form  of 
human  energy,  which  is  its  negative  :  labor  unions 
organize  labor  as  a  monopoly.  Labor  protests 
against  the  irresponsible  sovereignty  of  capital, 
as  men  have  always  protested  against  irresponsible 
sovereignty,  declaring  that  the  capitalistic  social 
system,  as  it  now  exists,  is  a  form  of  slavery.  Very 
logically,  therefore,  the  abler  and  bolder  labor 
agitators  proclaim  that  labor  levies  actual  war 
against  society,  and  that  in  that  war  there  can 
be  no  truce  until  irresponsible  capital  has  capitu- 
lated. Also,  in  labor's  methods  of  warfare  the 
same  phenomena  appear  as  in  the  autocracy  of 


28          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

capital.  Labor  attacks  capitalistic  society  by 
methods  beyond  the  purview  of  the  law,  and  may, 
at  any  moment,  shatter  the  social  system ;  while, 
under  our  laws  and  institutions,  society  is  helpless. 

Few  persons,  I  should  imagine,  who  reflect  on 
these  phenomena,  fail  to  admit  to  themselves, 
whatever  they  may  say  publicly,  that  present  so- 
cial conditions  are  unsatisfactory,  and  I  take  the 
cause  of  the  stress  to  be  that  which  I  have  stated. 
We  have  extended  the  range  of  applied  science 
until  we  daily  use  infinite  forces,  and  those  forces 
must,  apparently,  disrupt  our  society,  unless  we 
can  raise  the  laws  and  institutions  which  hold 
society  together  to  an  energy  and  efficiency  com- 
mensurate to  them.  How  much  vigor  and  ability 
would  be  required  to  accomplish  such  a  work  may 
be  measured  by  the  experience  of  Washington, 
who  barely  prevailed  in  his  relatively  simple  task, 
surrounded  by  a  generation  of  extraordinary  men, 
and  with  the  capitalistic  class  of  America  behind 
him.  Without  the  capitalistic  class  he  must  have 
failed.  Therefore  one  most  momentous  problem 
of  the  future  is  the  attitude  which  capital  can  or 
will  assume  in  this  emergency. 

That  some  of  the  more  sagacious  of  the  capital- 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT      29 

istic  class  have  preserved  that  instinct  of  self- 
preservation  which  was  so  conspicuous  among 
men  of  the  type  of  Washington,  is  apparent  from 
the  position  taken  by  the  management  of  the 
United  States  Steel  Company,  and  by  the  Repub- 
lican minority  of  the  Congressional  Committee 
which  recently  investigated  the  Steel  Company; 
but  whether  such  men  very  strongly  influence 
the  genus  to  which  they  belong  is  not  clear.  If 
they  do  not,  much  improvement  in  existing  con- 
ditions can  hardly  be  anticipated. 

If  capital  insists  upon  continuing  to  exercise 
sovereign  powers,  without  accepting  responsibility 
as  for  a  trust,  the  revolt  against  the  existing  order 
must  probably  continue,  and  that  revolt  can  only 
be  dealt  with,  as  all  servile  revolts  must  be  dealt 
with,  by  physical  force.  I  doubt,  however,  if 
even  the  most  ardent  and  optimistic  of  capitalists 
would  care  to  speculate  deeply  upon  the  stability 
of  any  government  capital  might  organize,  which 
rested  on  the  fundamental  principle  that  the 
American  people  must  be  ruled  by  an  army.  On 
the  other  hand  any  government  to  be  effective 
must  be  strong.  It  is  futile  to  talk  of  keeping 
peace  in  labor  disputes  by  compulsory  arbitration, 


30          THE   THEORY  OF  SOCIAL  REVOLUTIONS 

if  the  government  has  not  the  power  to  command 
obedience  to  its  arbitrators'  decree ;  but  a  govern- 
ment able  to  constrain  a  couple  of  hundred  thou- 
sand discontented  railway  employees  to  work 
against  their  will,  must  differ  considerably  from 
the  one  we  have.  Nor  is  it  possible  to  imagine 
that  labor  will  ever  yield  peaceful  obedience  to 
such  constraint,  unless  capital  makes  equivalent 
concessions,  —  unless,  perhaps,  among  other 
things,  capital  consents  to  erect  tribunals  which 
shall  offer  relief  to  any  citizen  who  can  show  him- 
self to  be  oppressed  by  the  monopolistic  price. 
In  fine,  a  government,  to  promise  stability  in  the 
future,  must  apparently  be  so  much  more  powerful 
than  any  private  interest,  that  all  men  will  stand 
equally  before  its  tribunals;  and  these  tribunals 
must  be  flexible  enough  to  reach  those  categories 
of  activity  which  now  lie  beyond  legal  jurisdiction. 
If  it  be  objected  that  the  American  people  are 
incapable  of  an  effort  so  prodigious,  I  readily  ad- 
mit that  this  may  be  true,  but  I  also  contend  that 
the  objection  is  beside  the  issue.  What  the 
American  people  can  or  cannot  do  is  a  matter  of 
opinion,  but  that  social  changes  are  imminent 
appears  to  be  almost  certain.  Though  these 


COLLAPSE  OF  CAPITALISTIC   GOVERNMENT      31 

changes  cannot  be  prevented,  possibly  they  may, 
to  a  degree,  be  guided,  as  Washington  guided  the 
changes  of  1789.  To  resist  them  perversely,  as 
they  were  resisted  at  the  Chicago  Convention  of 
1912,  can  only  make  the  catastrophe,  when  it 
comes,  as  overwhelming  as  was  the  consequent 
defeat  of  the  Republican  party. 

Approached  thus,  that  Convention  of  1912  has 
more  than  a  passing  importance,  since  it  would 
seem  to  indicate  the  ordinary  phenomenon,  that 
a  declining  favored  class  is  incapable  of  appre- 
ciating an  approaching  change  of  environment 
which  must  alter  its  social  status.  I  began  with 
the  proposition  that,  in  any  society  which  we 
now  understand,  civilization  is  equivalent  to 
order,  and  the  evidence  of  the  truth  of  the  prop- 
osition is,  that  amidst  disorder,  capital  and 
credit,  which  constitute  the  pith  of  our  civiliza- 
tion, perish  first.  For  more  than  a  century  past, 
capital  and  credit  have  been  absolute,  or  nearly 
so ;  accordingly  it  has  not  been  the  martial  type 
which  has  enjoyed  sovereignty,  but  the  capitalistic. 
The  warrior  has  been  the  capitalists'  servant. 
But  now,  if  it  be  true  that  money,  in  certain 
crucial  directions,  is  losing  its  purchasing  power, 


32          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

it  is  evident  that  capitalists  must  accept  a  posi- 
tion of  equality  before  the  law  under  the  domina- 
tion of  a  type  of  man  who  can  enforce  obedience ; 
their  own  obedience,  as  well  as  the  obedience  of 
others.  Indeed,  it  might  occur,  even  to  some 
optimists,  that  capitalists  would  be  fortunate  if 
they  could  certainly  obtain  protection  for  another 
fifty  years  on  terms  as  favorable  as  these.  But  at 
Chicago,  capitalists  declined  even  to  consider 
receding  to  a  secondary  position.  Rather  than 
permit  the  advent  of  a  power  beyond  their  im- 
mediate control,  they  preferred  to  shatter  the 
instrument  by  which  they  sustained  their  ascend- 
ancy. For  it  is  clear  that  Roosevelt's  offence  in 
the  eyes  of  the  capitalistic  class  was  not  what  he 
had  actually  done,  for  he  had  done  nothing  se- 
riously to  injure  them.  The  crime  they  resented 
was  the  assertion  of  the  principle  of  equality  before 
the  law,  for  equality  before  the  law  signified  the 
end  of  privilege  to  operate  beyond  the  range  of 
law.  If  this  principle  which  Roosevelt,  in  theory 
at  least,  certainly  embodied,  came  to  be  rigorously 
enforced,  capitalists  perceived  that  private  persons 
would  be  precluded  from  using  the  functions  of 
sovereignty  to  enrich  themselves.  There  lay  the 


COLLAPSE  OF   CAPITALISTIC  GOVERNMENT     33 

parting  of  the  ways.  Sooner  or  later  almost 
every  successive  ruling  class  has  had  this  dilemma 
in  one  of  its  innumerable  forms  presented  to  them, 
and  few  have  had  the  genius  to  compromise  while 
compromise  was  possible.  Only  a  generation  ago 
the  aristocracy  of  the  South  deliberately  chose  a 
civil  war  rather  than  admit  the  principle  that  at 
some  future  day  they  might  have  to  accept  com- 
pensation for  their  slaves. 

A  thousand  other  instances  of  similar  incapacity 
might  be  adduced,  but  I  will  content  myself 
with  this  alone. 

Briefly  the  precedents  induce  the  inference 
that  privileged  classes  seldom  have  the  intelligence 
to  protect  themselves  by  adaptation  when  nature 
turns  against  them,  and,  up  to  the  present  moment, 
the  old  privileged  class  in  the  United  States  has 
shown  little  promise  of  being  an  exception  to  the 
rule. 

Be  this,  however,  as  it  may,  and  even  assum- 
ing that  the  great  industrial  and  capitalistic 
interests  would  be  prepared  to  assist  a  move- 
ment toward  consolidation,  as  their  ances- 
tors assisted  Washington,  I  deem  it  far  from 
probable  that  they  could  succeed  with  the  large 


34          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

American  middle  class,  which  naturally  should 
aid,  opposed,  as  it  seems  now  to  be,  to  such  a 
movement.  Partially,  doubtless,  this  opposition 
is  born  of  fear,  since  the  lesser  folk  have  learned 
by  bitter  experience  that  the  powerful  have 
yielded  to  nothing  save  force,  and  therefore  that 
their  only  hope  is  to  crush  those  who  oppress 
them.  Doubtless,  also,  there  is  the  inertia  incident 
to  long  tradition,  but  I  suspect  that  the  resistance 
is  rather  due  to  a  subtle  and,  as  yet,  nearly  un- 
conscious instinct,  which  teaches  the  numerical 
majority,  who  are  inimical  to  capital,  that  the 
shortest  and  easiest  way  for  them  to  acquire 
autocratic  authority  is  to  obtain  an  absolute 
mastery  over  those  political  tribunals  which  we 
call  courts.  Also  that  mastery  is  being  by  them 
rapidly  acquired.  So  long  as  our  courts  retain 
their  present  functions  no  comprehensive  admin- 
istrative reform  is  possible,  whence  I  conclude 
that  the  relation  which  our  courts  shall  hold  to 
politics  is  now  the  fundamental  problem  which 
the  American  people  must  solve,  before  any  stable 
social  equilibrium  can  be  attained. 

Theodore  Roosevelt's  enemies  have  been  many 
and  bitter.     They  have  attacked  his  honesty,  his 


COLLAPSE  OF  CAPITALISTIC  GOVERNMENT      35 

sobriety,  his  intelligence,  and  his  judgment,  but 
very  few  of  them  have  hitherto  denied  that  he  has 
a  keen  instinct  for  political  strife.  Only  of  late 
has  this  gift  been  doubted,  but  now  eminent 
politicians  question  whether  he  did  not  make  a 
capital  mistake  when  he  presented  the  reform  of 
our  courts  of  law,  as  expounders  of  the  Constitu- 
tion, as  one  of  his  two  chief  issues,  in  his  canvass 
for  a  nomination  for  a  third  presidential  term. 

After  many  years  of  study  of,  and  reflection  upon, 
this  intricate  subject  I  have  reached  the  conviction 
that,  though  Mr.  Roosevelt  may  have  erred  in  the 
remedy  which  he  has  suggested,  he  is  right  in  the 
principle  which  he  has  advanced,  and  in  my  next 
chapter  I  propose  to  give  the  evidence  and  explain 
the  reasons  which  constrain  me  to  believe  that 
American  society  must  continue  to  degenerate 
until  confusion  supervenes,  if  our  courts  shall  re- 
main semipolitical  chambers. 


CHAPTER  II 

THE   LIMITATIONS   OF   THE  JUDICIAL   FUNCTION 

TAKING  the  human  race  collectively,  its  ideal  of 
a  court  of  justice  has  been  the  omniscient  and  in- 
exorable judgment  seat  of  God.  Individually, 
on  the  contrary,  they  have  dearly  loved  favor. 
Hence  the  doctrine  of  the  Intercession  of  the 
Saints,  which  many  devout  persons  have  sincerely 
believed  could  be  bought  by  them  for  money. 
The  whole  development  of  civilization  may  be 
followed  in  the  oscillation  of  any  given  society 
between  these  two  extremes,  the  many  always 
striving  to  so  restrain  the  judiciary  that  it  shall 
be  unable  to  work  the  will  of  the  favored  few. 
On  the  whole,  success  in  attaining  to  ideal  justice 
has  not  been  quite  commensurate  with  the  time 
and  effort  devoted  to  solving  the  problem,  but, 
until  our  constitutional  experiment  was  tried  in 
America,  I  think  it  had  been  pretty  generally 
admitted  that  the  first  prerequisite  to  success 
was  that  judges  should  be  removed  from  political 

36 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION      37 

influences.  For  the  main  difficulty  has  been  that 
every  dominant  class,  as  it  has  arisen,  has  done  its 
best  to  use  the  machinery  of  justice  for  its  own 
benefit. 

No  argument  ever  has  convinced  like  a  parable, 
and  a  very  famous  story  in  the  Bible  will  illustrate 
the  great  truth,  which  is  the  first  lesson  that  a 
primitive  people  learns,  that  unless  the  judge  can 
be  separated  from  the  sovereign,  and  be  strictly 
limited  in  the  performance  of  his  functions  by  a 
recognized  code  of  procedure,  the  public,  as  against 
the  dominant  class,  has,  in  substance,  no  civil 
rights.  The  kings  of  Israel  were  judges  of  last 
resort.  Solomon  earned  his  reputation  for  wis- 
dom in  the  cause  in  which  two  mothers  claimed 
the  same  child.  They  were  indeed  both  judge  and 
jury.  Also  they  were  prosecuting  officers.  Also 
they  were  sheriffs.  In  fine  they  exercised  un- 
limited judicial  power,  save  in  so  far  as  they  were 
checked  by  the  divine  interference  usually  signi- 
fied through  some  prophet. 

Now  David  was,  admittedly,  one  of  the  best 
sovereigns  and  judges  who  ever  held  office  in 
Jerusalem,  and,  hi  the  days  of  David,  Nathan  was 
the  leading  prophet  of  the  dominant  political  party. 


38  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

"And  it  came  to  pass  in  an  eveningtide,  that 
David  arose  from  off  his  bed,  and  walked  upon  the 
roof  of  the  king's  house :  and  from  the  roof  he  saw 
a  woman  washing  herself;  and  the  woman  was 
very  beautiful  to  look  upon.  And  David  sent 
and  enquired  after  the  woman.  And  one  said, 
Is  not  this  Bath-sheba,  the  daughter  of  Eliam, 
the  wife  of  Uriah  the  Hittite?  And  David  sent 
messengers,  and  took  her ;  and  she  came  in  unto 
him,  and  he  lay  with  her ;  .  .  .  and  she  returned 
unto  her  house." 

Uriah  was  serving  in  the  army  under  Joab. 
David  sent  for  Uriah,  and  told  him  to  go  home  to 
his  wife,  but  Uriah  refused.  Then  David  wrote 
a  letter  to  Joab  and  dismissed  Uriah,  ordering  him 
to  give  the  letter  to  Joab.  And  David  "wrote 
in  the  letter,  saying,  Set  ye  Uriah  in  the  forefront 
of  the  hottest  battle,  and  retire  ye  from  him,  that 
he  may  be  smitten  and  die.  .  .  . 

"And  the  men  of  the  city  went  out  and  fought 
with  Joab ;  and  there  fell  some  of  the  people  of 
the  servants  of  David ;  and  Uriah  the  Hittite 
died  also.  .  .  .  But  the  thing  that  David  had 
done  displeased  the  Lord. 

"And  the  Lord  sent  Nathan  unto  David.     And 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION      39 

he  came  unto  him,  and  said  unto  him,  There 
were  two  men  hi  one  city;  the  one  rich  and  the 
other  poor.  The  rich  man  had  exceeding  many 
flocks  and  herds : 

"But  the  poor  man  had  nothing,  save  one  little 
ewe  lamb,  which  he  had  bought  and  nourished  up : 
and  it  grew  up  together  with  him,  and  with  his 
children;  it  did  eat  of  his  own  meat  and  drank 
of  his  own  cup,  and  lay  in  his  bosom,  and  was 
unto  him  as  a  daughter. 

"And  there  came  a  traveller  unto  the  rich  man, 
and  he  spared  to  take  of  his  own  flock,  .  .  .  but 
took  the  poor  man's  lamb,  and  dressed  it  for  the 
man  that  was  come  to  him. 

"And  David's  anger  was  greatly  kindled  against 
the  man ;  and  he  said  to  Nathan,  As  the  Lord 
liveth,  the  man  that  hath  done  this  thing  shall 
surely  die :  .  .  . 

"And  Nathan  said  to  David,  Thou  art  the  man. 
Thus  saith  the  Lord  God  of  Israel.  .  .  .  Now 
therefore  the  sword  shall  never  depart  from 
thine  house ;  because  thou  has  despised  me.  .  .  . 
Behold,  I  will  raise  up  evil  against  thee  out  of 
thine  own  house,  and  I  will  take  thy  wives  before 
thine  eyes,  and  give  them  unto  thy  neighbor." 


40          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

Here,  as  the  heading  to  the  Twelfth  Chapter  of 
Second  Book  of  Samuel  says,  "Nathan's  parable 
of  the  ewe  lamb  causeth  David  to  be  his  own 
judge,"  but  the  significant  part  of  the  story  is  - 
that  Nathan,  with  all  his  influence,  could  not  force 
David  to  surrender  his  prey.  David  begged  very 
hard  to  have  his  sentence  remitted,  but,  for  all 
that,  "David  sent  and  fetched  [Bathsheba]  to  his 
house,  and  she  became  his  wife,  and  bare  him  a 
son."  Indeed,  she  bore  him  Solomon.  As  against 
David  or  David's  important  supporters  men  like 
Uriah  had  no  civil  rights  that  could  be  enforced. 

Even  after  the  judicial  function  is  nominally 
severed  from  the  executive  function,  so  that  the 
sovereign  himself  does  not,  like  David  and  Solo- 
mon, personally  administer  justice,  the  same 
result  is  reached  through  agents,  as  long  as  the 
judge  holds  his  office  at  the  will  of  the  chief  of  a 
political  party. 

To  go  no  farther  afield,  every  page  of  English 
history  blazons  this  record.  Long  after  the  law 
had  taken  an  almost  modern  shape,  Alice  Ferrers, 
the  mistress  of  Edward  III,  sat  on  the  bench  at 
Westminster  and  intimidated  the  judges  into 
deciding  for  suitors  who  had  secured  her  services. 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION      41 

The  chief  revenue  of  the  rival  factions  during  the 
War  of  the  Roses  was  derived  from  attainders, 
indictments  for  treason,  and  forfeitures,  avowedly 
partisan.  Henry  VII  used  the  Star  Chamber  to 
ruin  the  remnants  of  the  feudal  aristocracy. 
Henry  VIII  exterminated  as  vagrants  the  wretched 
monks  whom  he  had  evicted.  The  prosecu- 
tions under  Charles  I  largely  induced  the  Great 
Rebellion;  and  finally  the  limit  of  endurance  was 
reached  when  Charles  II  made  Jeffreys  Chief 
Justice  of  England  in  order  to  kill  those  who 
were  prominent  in  opposition.  Charles  knew 
what  he  was  doing.  "That  man,"  said  he  of 
Jeffreys,  "has  no  learning,  no  sense,  no  manners, 
and  more  impudence  than  ten  carted  street- 
walkers." The  first  object  was  to  convict  Al- 
gernon Sidney  of  treason.  Jeffreys  used  simple 
means.  Usually  drunk,  his  court  resembled  the 
den  of  a  wild  beast.  He  poured  forth  on  "plaintiffs 
and  defendants,  barristers  and  attorneys,  wit- 
nesses and  jurymen,  torrents  of  frantic  abuse, 
intermixed  with  oaths  and  curses."  The  law 
required  proof  of  an  overt  act  of  treason.  Many 
years  before  Sidney  had  written  a  philosophical 
treatise  touching  resistance  by  the  subject 


42          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

to  the  sovereign,  as  a  constitutional  principle. 
But,  though  the  fragment  contained  nothing 
more  than  the  doctrines  of  Locke,  Sidney  had 
cautiously  shown  it  to  no  one,  and  it  had  only 
been  found  by  searching  his  study.  Jeffreys  told 
the  jury  that  if  they  believed  the  book  to  be 
Sidney's  book,  written  by  him,  they  must  convict 
for  scribere  est  agere,  to  write  is  to  commit  an  overt 
act. 

A  revolution  followed  upon  this  and  other 
like  convictions,  as  revolutions  have  usually  fol- 
lowed such  uses  of  the  judicial  power.  In  that 
revolution  the  principle  of  the  limitation  of  the 
judicial  function  was  recognized,  and  the  English 
people  seriously  addressed  themselves  to  the 
task  of  separating  their  courts  from  political 
influences,  of  protecting  their  judges  by  making 
their  tenure  and  their  pay  permanent,  and  of 
punishing  them  by  removal  if  they  behaved 
corruptly,  or  with  prejudice,  or  transcended  the 
limits  within  which  their  duty  confined  them. 
Jeffreys  had  legislated  when  he  ruled  it  to  be  the 
law  that,  to  write  words  secretly  in  one's  closet, 
is  to  commit  an  overt  act  of  treason,  and  he  did 
it  to  kill  a  man  whom  the  king  who  employed 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION     43 

him  wished  to  destroy.  This  was  to  transcend 
the  duty  of  a  judge,  which  is  to  expound  and  not 
to  legislate.  The  judge  may  develop  a  principle, 
he  may  admit  evidence  of  a  custom  in  order  to 
explain  the  intentions  of  the  parties  to  a  suit,  as 
Lord  Mansfield  admitted  evidence  of  the  customs 
of  merchants,  but  he  should  not  legislate.  To  do 
so,  as  Jeffreys  did  in  Sidney's  case,  is  tantamount 
to  murder.  Jeffreys  never  was  duly  punished 
for  his  crimes.  He  died  the  year  after  the  Revolu- 
tion, in  the  Tower,  maintaining  to  the  last  that  he 
was  innocent  in  the  sight  of  God  and  man  because 
"all  the  blood  he  had  shed  fell  short  of  the  King's 
command." 

And  Jeffreys  was  perfectly  logical  and  con- 
sistent in  his  attitude.  A  judiciary  is  either  an 
end  hi  itself  or  a  means  to  an  end.  If  it  be  designed 
to  protect  the  civil  rights  of  citizens  indifferently, 
it  must  be  free  from  pressure  which  will  deflect 
it  from  this  path,  and  it  can  only  be  protected 
from  the  severest  possible  pressure  by  being  re- 
moved from  politics,  because  politics  is  the  struggle 
for  ascendancy  of  a  class  or  a  majority.  If,  on  the 
other  hand,  the  judiciary  is  to  serve  as  an  instru- 
ment for  advancing  the  fortunes  of  a  majority  or  a 


44          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

dominant  class,  as  David  used  the  Jewish  judi- 
ciary, or  as  the  Stuarts  used  the  English  judiciary, 
then  the  judicial  power  must  be  embodied  either 
in  a  military  or  political  leader,  like  David,  who 
does  the  work  himself,  or  in  an  agent,  more  or 
less  like  Jeffreys,  who  will  obey  his  orders.  In 
the  colonies  the  subserviency  of  the  judges  to 
the  Crown  had  been  a  standing  grievance,  and 
the  result  of  this  long  and  terrible  experience, 
stretching  through  centuries  both  in  Europe  and 
America,  had  been  to  inspire  Americans  with  a  fear 
of  intrusting  power  to  any  man  or  body  of  men. 
They  sought  to  limit  everything  by  written  restric- 
tions. Setting  aside  the  objection  that  such  a 
system  is  mechanically  vicious  because  it  involves 
excessive  friction  and  therefore  waste  of  energy, 
it  is  obviously  futile  unless  the  written  restrictions 
can  be  enforced,  and  enforced  in  the  spirit  in  which 
they  are  drawn.  Hamilton,  whose  instinct  for 
law  resembled  genius,  saw  the  difficulty  and 
pointed  out  in  the  Federalist  that  it  is  not  a  writing 
which  can  give  protection,  but  only  the  intelligence 
and  the  sense  of  justice  of  the  community  itself. 

"The  truth  is,  that  the  general  genius  of  a 
Government  is  all  that  can  be  substantially  relied 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION     45 

upon  for  permanent  effects.  Particular  pro- 
visions, though  not  altogether  useless,  have  far 
less  virtue  and  efficiency  than  are  commonly 
ascribed  to  them;  and  the  want  of  them  will 
never  be,  with  men  of  sound  discernment,  a  decisive 
objection  to  any  plan  which  exhibits  the  leading 
characters  of  a  good  Government."  After  an 
experience  of  nearly  a  century  and  a  quarter  we 
must  admit,  I  think,  that  Hamilton  was  right. 
In  the  United  States  we  have  carried  bills  of 
right  and  constitutional  limitations  to  an  extreme, 
and  yet,  I  suppose  that  few  would  care  to  main- 
tain that,  during  the  nineteenth  century,  life  and 
property  were  safer  in  America,  or  crime  better 
dealt  with,  than  in  England,  France,  or  Germany. 
The  contrary,  indeed,  I  take  to  be  the  truth,  and 
I  think  one  chief  cause  of  this  imperfection  in 
the  administration  of  justice  will  be  found  to 
have  been  the  operation  of  the  written  Constitu- 
tion. For,  under  the  American  system,  the  Con- 
stitution, or  fundamental  law,  is  expounded  by 
judges,  and  this  function,  which,  in  essence,  is 
political,  has  brought  precisely  that  quality  of 
pressure  on  the  bench  which  it  has  been  the  labor 
of  a  hundred  generations  of  our  ancestors  to  re- 


46          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

move.  On  the  whole  the  result  has  been  not  to 
elevate  politics,  but  to  lower  the  courts  toward 
the  political  level,  a  result  which  conforms  to 
the  a  priori  theory. 

The  abstract  virtue  of  the  written  Constitution 
was  not,  however,  a  question  hi  issue  when 
Washington  and  his  contemporaries  set  themselves 
to  reorganize  the  Confederation.  Those  men  had 
no  choice  but  to  draft  some  kind  of  a  platform 
on  which  the  states  could  agree  to  unite,  if  they 
were  to  unite  peacefully  at  all,  and  accordingly 
they  met  in  convention  and  drew  the  best  form  of 
agreement  they  could ;  but  I  more  than  suspect 
that  a  good  many  very  able  Federalists  were  quite 
alive  to  the  defects  in  the  plan  which  they  adopted. 

Hamilton  was  outspoken  in  preferring  the  Eng- 
lish model,  and  I  am  not  aware  that  Washington 
ever  expressed  a  preference  for  the  theory  that, 
because  of  a  written  fundamental  law,  the  court 
should  nullify  legislation.  Nor  is  it  unworthy  of 
remark  that  all  foreigners,  after  a  prolonged  and 
attentive  observation  of  our  experiment,  have 
avoided  it.  Since  1789,  every  highly  civilized 
Western  people  have  readjusted  their  institutions 
at  least  once,  yet  not  one  has  in  this  respect 


LIMITATIONS  OF  THE   JUDICIAL  FUNCTION      47 

imitated   us,    though   all   have  borrowed   freely 
from  the  parliamentary  system  of  England.1 

Even  our  neighbor,  Canada,  with  no  adverse 
traditions  and  a  population  similar  to  ours,  has 
been  no  exception  to  the  rule.  The  Canadian 
courts  indeed  define  the  limits  of  provincial  and 
federal  jurisdiction  as  fixed  under  an  act  of  Parlia- 
ment, but  they  do  not  pretend  to  limit  the  exercise 
of  power  when  the  seat  of  power  has  been  estab- 
lished. I  take  the  cause  of  this  distrust  to  be 
obvious.  Although  our  written  Constitution  was 
successful  in  its  primary  purpose  of  facilitating 
the  consolidation  of  the  Confederation,  it  has  not 
otherwise  inspired  confidence  as  a  practical  ad- 
ministrative device.  Not  only  has  constant  judi- 
cial interference  dislocated  scientific  legislation, 
but  casting  the  judiciary  into  the  vortex  of  civil 
faction  has  degraded  it  in  the  popular  esteem. 
In  fine,  from  the  outset,  the  American  bench, 
because  it  deals  with  the  most  fiercely  contested 
of  political  issues,  has  been  an  instrument  neces- 
sary to  political  success.  Consequently,  political 

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


48          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

parties  have  striven  to  control  it,  and  therefore 
the  bench  has  always  had  an  avowed  partisan 
bias.  This  avowed  political  or  social  bias 
has,  I  infer,  bred  among  the  American  people 
the  conviction  that  justice  is  not  administered 
indifferently  to  all  men,  wherefore  the  bench  is 
not  respected  with  us  as,  for  instance,  it  is  in  Great 
Britain,  where  law  and  politics  are  sundered. 
Nor  has  the  dissatisfaction  engendered  by  these 
causes  been  concealed.  On  the  contrary,  it  has 
found  expression  through  a  series  of  famous 
popular  leaders  from  Thomas  Jefferson  to  Theo- 
dore Roosevelt. 

The  Constitution  could  hardly  have  been 
adopted  or  the  government  organized  but  for 
the  personal  influence  of  Washington,  whose  power 
lay  in  his  genius  for  dealing  with  men.  He 
lost  no  tune  or  strength  in  speculation,  but, 
taking  the  Constitution  as  the  best  implement  at 
hand,  he  went  to  the  work  of  administration  by 
including  the  representatives  of  the  antagonistic 
extremes  in  his  Cabinet.  He  might  as  well  have 
expected  fire  and  water  to  mingle  as  Jefferson  and 
Hamilton  to  harmonize.  Probably  he  had  no 
delusions  on  that  head  when  he  chose  them 


LIMITATIONS  OF  THE   JUDICIAL  FUNCTION      49 

for  his  ministers,  and  he  accomplished  his  object. 
He  paralyzed  opposition  until  the  new  mechanism 
began  to  operate  pretty  regularly,  but  he  had  not 
an  hour  to  spare.  Soon  the  French  Revolution 
heated  passions  so  hot  that  long  before  Washing- 
ton's successor  was  elected  the  United  States  was 
rent  by  faction. 

The  question  which  underlay  all  other  questions, 
down  to  the  Civil  War,  was  the  determination 
of  the  seat  of  sovereignty.  Hamilton  and  the 
Federalists  held  it  to  be  axiomatic  that,  if  the 
federal  government  were  to  be  more  than  a 
shadow,  it  must  interpret  the  meaning  of  the 
instrument  which  created  it,  and,  if  so,  that  it 
must  signify  its  decisions  through  the  courts. 
Only  in  this  way,  they  argued,  could  written 
limitations  on  legislative  power  be  made  effective. 
Only  in  this  way  could  statutes  which  contravened 
the  Constitution  be  set  aside.1 

Jefferson  was  abroad  when  Hamilton  wrote 
The  Federalist,  but  his  views  have  since  been  so 
universally  accepted  as  embodying  the  opposition 
to  Hamilton,  that  they  may  be  conveniently  taken 
as  if  they  had  been  published  while  the  Constitu- 

1  Federalist,  No.  LXXVIII. 


50          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

tion  was  under  discussion.  Substantially  the 
same  arguments  were  advanced  by  others  during 
the  actual  debate,  if  not  quite  so  lucidly  or  con- 
nectedly then,  as  afterward  by  him. 

Very  well,  said  Jefferson,  in  answer  to  Hamilton, 
admitting,  for  the  moment,  that  the  central  gov- 
ernment shall  define  its  own  powers,  and  that 
the  courts .  shall  be  the  organ  through  which  the 
exposition  shall  be  made,  both  of  which  proposi- 
tions I  vehemently  deny,  you  have  this  result : 
The  judges  who  will  be  called  upon  to  pass  upon 
the  validity  of  national  and  state  legislation  will  be 
plunged  in  the  most  heated  of  controversies,  and 
hi  those  controversies  they  cannot  fail  to  be  in- 
fluenced by  the  same  passions  and  prejudices 
which  sway  other  men.  In  a  word  they  must 
decide  like  legislators,  though  they  will  be  exempt 
from  the  responsibility  to  the  public  which  con- 
trols other  legislators.  Such  conditions  you  can 
only  meet  by  making  the  judicial  tenure  of  office 
ephemeral,  as  all  legislative  tenure  is  ephemeral. 

It  is  vain  to  pretend,  continued  he,  in  support 
of  fixity  of  tenure,  that  the  greater  the  pressure  on 
the  judge  is  likely  to  be,  the  more  need  there 
is  to  make  him  secure.  This  may  .be  true  of 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION      51 

judges  clothed  with  ordinary  attributes,  like 
English  judges,  for,  should  these  try  to  nullify 
the  popular  will  by  construing  away  statutes, 
Parliament  can  instantly  correct  them,  or  if 
Parliament  fail  in  its  duty,  the  constituencies, 
at  the  next  election,  can  intervene.  But  no  one 
will  be  able  to  correct  the  American  judge  who 
may  decline  to  recognize  the  law  which  would 
constrain  him.  Nothing  can  shake  him  save 
impeachment  for  what  is  tantamount  to  crime, 
or  being  overruled  by  a  constitutional  amend- 
ment which  you  have  purposely  made  too  hard 
to  obtain  to  be  a  remedy.  He  is  to  be  judge 
in  his  own  case  without  an  appeal. 

Nowhere  in  all  his  long  and  masterly  defence 
of  the  Constitution  did  Hamilton  show  so  much 
embarrassment  as  here,  and  because,  probably, 
he  did  not  himself  believe  in  his  own  brief.  He 
really  had  faith  in  the  English  principle  of  an 
absolute  parliament,  restrained,  if  needful,  by 
a  conservative  chamber,  like  the  House  of  Lords, 
but  not  in  the  total  suspension  of  sovereignty 
subject  to  judicial  illumination.  Consequently 
he  fell  back  on  platitudes  about  judicial  high- 
mindedness,  and  how  judges  could  be  trusted 


52  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

not  to  allow  political  influences  to  weigh  with  them 
when  deciding  political  questions.  Pushed  to  its 
logical  end,  concluded  he,  the  Jeffersonian  argu- 
ment would  prove  that  there  should  be  no  judges 
distinct  from  legislatures.1 

Now,  at  length,  exclaimed  the  Jeffersonian  in 
triumph,  you  admit  our  thesis.  You  propose  to 
clothe  judges  with  the  highest  legislative  functions, 
since  you  give  them  an  absolute  negative  on  legis- 
lation, and  yet  you  decline  to  impose  on  them  the 
responsibility  to  a  constituency,  which  constrains 
other  legislators.  Clearly  you  thus  make  them 
autocratic,  and  in  the  worst  sense,  for  you  permit 
small  bodies  of  irresponsibile  men  under  pretence 
of  dispensing  justice,  but  really  in  a  spirit  of  hy- 
pocrisy, to  annul  the  will  of  the  majority  of  the 
people,  even  though  the  right  of  the  people  to 
exercise  their  will,  in  the  matters  at  issue,  be 
clearly  granted  them  in  the  Constitution. 

No,  rejoined  Hamilton,  thus  driven  to  the  wall, 
judges  never  will  so  abuse  their  trust.  The  duty 
of  the  judge  requires  him  to  suppress  his  will, 
and  exercise  his  judgment  only.  The  Constitution 
will  be  before  him,  and  he  will  have  only  to  say 

1  The  Federalist,  No.  LXXVIII. 


LIMITATIONS   OF  THE  JUDICIAL  FUNCTION      53 

whether  authority  to  legislate  on  a  given  subject 
is  granted  in  that  instrument.  If  it  be,  the 
character  of  the  legislation  must  remain  a  matter 
of  legislative  discretion.  Besides,  you  must  re- 
pose confidence  somewhere,  and  judges,  on  the 
whole,  are  more  trustworthy  than  legislators. 
How  can  you  say  that,  retorted  the  opposition, 
when  you,  better  than  most  men,  know  the  line 
of  despotic  legal  precedents  from  the  Ship  Money 
down  to  the  Writs  of  Assistance  ? 

Looking  back  upon  this  initial  controversy 
touching  judicial  functions  under  the  Constitution, 
we  can  hardly  suppose  that  Hamilton  did  not  per- 
ceive that,  in  substance,  Jefferson  was  right,  and 
that  a  bench  purposely  constructed  to  pass  upon 
political  questions  must  be  politically  partisan. 
He  knew  very  well  that,  if  the  Federalists  prevailed 
in  the  elections,  a  Federalist  President  would 
only  appoint  magistrates  who  could  be  relied  on 
to  favor  consolidation.  And  so  the  event  proved. 
General  Washington  chose  John  Jay  for  the  first 
Chief  Justice,  who  in  some  important  respects  was 
more  Federalist  than  Hamilton,  while  John 
Adams  selected  John  Marshall,  who,  though  one 
of  the  greatest  jurists  who  ever  lived,  was  hated 


54          THE  THEORY  OF   SOCIAL  REVOLUTIONS 

by  Jefferson  with  a  bitter  hatred,  because  of  his 
political  bias.  As  time  went  on  matters  grew 
worse.  Before  Marshall  died  slavery  had  become 
a  burning  issue,  and  the  slave-owners  controlled 
the  appointing  power.  General  Jackson  appointed 
Taney  to  sustain  the  expansion  of  slavery,  and 
when  the  anti-slavery  party  carried  the  country 
with  Lincoln,  Lincoln  supplanted  Taney  with 
Chase,  in  order  that  Chase  might  stand  by  him 
in  his  struggle  to  destroy  slavery.  And  as  it  has 
been,  so  must  it  always  be.  As  long  as  the 
power  to  enact  laws  shall  hinge  on  the  complexion 
of  benches  of  judges,  so  long  will  the  ability  to 
control  a  majority  of  the  bench  be  as  crucial 
a  political  necessity  as  the  ability  to  control  a 
majority  in  avowedly  representative  assemblies. 

Hamilton  was  one  of  the  few  great  jurists  and 
administrators  whom  America  has  ever  produced, 
and  it  is  inconceivable  that  he  did  not  understand 
what  he  was  doing.  He  knew  perfectly  well  that, 
other  things  being  equal,  the  simplest  adminis- 
trative mechanism  is  the  best,  and  he  knew  also 
that  he  was  helping  to  make  an  extremely  compli- 
cated mechanism.  Not  only  so,  but  at  the  heart 
of  this  complexity  lay  the  gigantic  cog  of  the 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION       55 

judiciary,  which  was  obviously  devised  to  stop 
movement.  He  must  have  had  a  reason,  beyond 
the  reason  he  gave,  for  not  only  insisting  on  cloth- 
ing the  judiciary  with  these  unusual  political 
and  legislative  attributes,  but  for  giving  the 
judiciary  an  unprecedented  fixity  of  tenure.  I 
suspect  that  he  was  actuated  by  some  such  con- 
siderations as  these : 

The  Federalists,  having  pretty  good  cause  to 
suppose  themselves  in  a  popular  minority,  pur- 
posed to  consolidate  the  thirteen  states  under  a 
new  sovereign.  There  were  but  two  methods  by 
which  they  could  prevail ;  they  could  use  force, 
or,  to  secure  assent,  they  could  propose  some 
system  of  arbitration.  To  escape  war  the  Fed- 
eralists convened  the  constitutional  convention, 
and  by  so  doing  pledged  themselves  to  arbitra- 
tion. But  if  their  plan  of  consolidation  were  to 
succeed,  it  was  plain  that  the  arbitrator  must 
arbitrate  in  their  favor,  for  if  he  arbitrated  as 
Mr.  Jefferson  would  have  wished,  the  United 
States  under  the  Constitution  would  have  differed 
little  from  the  United  States  under  the  Confedera- 
tion. The  Federalists,  therefore,  must  control 
the  arbitrator.  If  the  Constitution  were  to  be 


56  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

adopted,  Hamilton  and  every  one  else  knew  that 
Washington  would  be  the  first  President,  and 
Washington  could  be  relied  on  to  appoint  a 
strong  Federalist  bench.  Hence,  whatever  might 
happen  subsequently,  when  the  new  plan  first 
should  go  into  operation,  and  when  the  danger 
from  insubordination  among  the  states  would 
probably  be  most  acute,  the  judiciary  would  be 
made  to  throw  its  weight  in  favor  of  consolidation, 
and  against  disintegration,  and,  if  it  did  so,  it 
was  essential  that  it  should  be  protected  against 
anything  short  of  a  revolutionary  attack. 

In  the  convention,  indeed,  Charles  Pinckney  of 
South  Carolina  suggested  that  Congress  should 
be  empowered  to  negative  state  legislation,  but 
such  an  alternative,  for  obvious  reasons,  would 
have  been  less  palatable  to  Hamilton,  since 
Congress  would  be  only  too  likely  to  fall  under  the 
control  of  the  Jeffersonian  party,  while  a  bench  of 
judges,  if  once  well  chosen,  might  prove  to  be  for 
many  years  an  "excellent  barrier  to  the  encroach- 
ments and  oppressions  of  the  representative  body." l 

I  infer  that  Hamilton  and  many  other  Federalists 
reasoned  somewhat  thus,  not  only  from  what 

1  The  Federalist,  No.  LXXVIII. 


LIMITATIONS   OF  THE  JUDICIAL  FUNCTION       57 

they  wrote,  but  from  the  temper  of  their  minds, 
and,  if  they  did,  events  largely  justified  them. 
John  Jay,  Oliver  Ellsworth,  and  John  Marshall 
were  successively  appointed  to  the  office  of  Chief 
Justice,  nor  did  the  complexion  of  the  Supreme 
Court  change  until  after  1830. 

What  interests  us,  however,  is  not  so  much  what 
the  Federalists  thought,  or  the  motives  which 
actuated  them,  as  the  effect  which  the  clothing  of 
the  judiciary  with  political  functions  has  had 
upon  the  development  of  the  American  republic, 
more  especially  as  that  extreme  measure  might 
have  been  avoided,  had  Pinckney's  plan  been 
adopted.  Nor,  looking  back  upon  the  actual 
course  of  events,  can  I  perceive  that,  so  far  as  the 
movement  toward  consolidation  was  concerned, 
the  final  result  would  have  varied  materially 
whether  Congress  or  the  Supreme  Court  had 
exercised  control  over  state  legislation.  Marshall 
might  just  as  well,  in  the  one  case  as  the  other, 
have  formulated  his  theory  of  a  semi-centralized 
administration.'  He  would  only  have  had  uni- 
formly to  sustain  Congress,  as  an  English  judge 
sustains  Parliament.  Nor  could  either  Congress 
or  the  Court  have  reached  a  definite  result  with- 


58          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

out  an  appeal  to  force.  Either  chamber  might 
expound  a  theory,  but  nothing  save  an  army 
could  establish  it. 

For  two  generations  statesmen  and  jurists 
debated  the  relation  of  the  central  to  the  local 
sovereignties  with  no  result,  for  words  alone 
could  decide  no  such  issue.  In  America,  as  else- 
where, sovereignty  is  determined  by  physical 
force.  Marshall  could  not  conquer  Jefferson, 
he  could  at  most  controvert  Jefferson's  theory. 
This  he  did,  but,  in  doing  so,  I  doubt  if  he  were 
quite  true  to  himself.  Jefferson  contended  that 
every  state  might  nullify  national  legislation,  as 
conversely  Pinckney  wished  Congress  to  be  given 
explicitly  the  power  to  nullify  state  legislation; 
and  Marshall,  very  sensibly,  pointed  out  that, 
were  Jefferson's  claim  carried  into  practice,  it 
would  create  "  a  hydra  in  government,"  l  yet  I 
am  confident  that  Marshall  did  not  appreciate 
whither  his  own  assertion  of  authority  must 
lead.  In  view  of  the  victory  of  centralization  in 
the  Civil  War,  I  will  agree  that  the  Supreme 
Court  might  have  successfully  maintained  a 
position  as  arbitrator  touching  conflicting  juris- 

1  Cohens  v,  Virginia,  6  Wheaton  415. 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION       59 

dictions,  as  between  the  nation  and  the  states, 
but  that  is  a  different  matter  from  assuming  to 
examine  into  the  wisdom  of  the  legislation  itself. 
The  one  function  might,  possibly,  pass  by  courtesy 
as  judicial;  the  other  is  clearly  legislative. 

This  distinction  only  developed  after  Marshall's 
death,  but  the  resentment  which  impelled  Mar- 
shall to  annul  an  act  of  Congress  was  roused  by 
the  political  conflict  which  preceded  the  election 
of  1800,  in  which  Marshall  took  a  chief  part. 
Apparently  he  could  not  resist  the  temptation 
of  measuring  himself  with  his  old  adversary, 
especially  as  he  seems  to  have  thought  that  he 
could  discredit  that  adversary  without  giving 
him  an  opportunity  to  retaliate. 

In  1798  a  Federalist  Congress  passed  the  Alien 
and  Sedition  Acts,  whose  constitutionality  no 
Federalist  judge  ever  doubted,  but  which  Jefferson 
considered  as  clearly  a  violation  of  the  fundamental 
compact,  since  they  tended  to  drive  certain 
states,  as  he  thought,  into  "revolution  and  blood." 
Under  this  provocation  Jefferson  proclaimed  that 
it  was  both  the  right  and  the  duty  of  any  state, 
which  felt  itself  aggrieved,  to  intervene  to  arrest 
"the  progress  of  the  evil,"  within  her  territory, 


60          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

by  declining  to  execute,  or  by  "nullifying,"  the 
objectionable  statutes.  As  Jefferson  wrote  the 
Kentucky  Resolutions  in  1798  and  was  elected 
President  in  1800,  the  people  at  least  appeared 
to  have  sustained  him  in  his  exposition  of  the 
Constitution,  before  he  entered  into  office. 

At  this  distance  of  time  we  find  it  hard  to  realize 
what  the  election  of  1800  seemed  to  portend  to 
those  who  participated  therein.  Mr.  Jefferson 
always  described  it  as  amounting  to  a  revolution 
as  profound  as,  if  less  bloody  than,  the  revolution 
of  1776,  and  though  we  may  be  disposed  to  imagine 
that  Jefferson  valued  his  own  advent  to  power  at 
its  full  worth,  it  must  be  admitted  that  his  enemies 
regarded  it  almost  as  seriously.  Nor  were  they 
without  some  justification,  for  Jefferson  certainly 
represented  the  party  of  disintegration.  "Nulli- 
fication" would  have  been  tantamount  to  a  re- 
turn to  the  condition  of  the  Confederation. 
Besides,  Jefferson  not  so  many  years  before  had 
written,  in  defence  of  Shays's  rebellion,  that  the 
tree  of  Liberty  could  never  flourish  unless  re- 
freshed occasionally  with  the  blood  of  patriots 
and  tyrants.  To  most  Federalists  Jefferson 
seemed  a  bloodthirsty  demagogue. 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION       61 

In  1796  Oliver  Ellsworth  had  been  appointed 
Chief  Justice  by  General  Washington  in  the  place 
of  Jay,  who  resigned,  and  in  1799  John  Adams 
sent  Ellsworth  as  an  envoy  to  France  to  try  to 
negotiate  a  treaty  which  should  reestablish  peace 
between  the  two  countries.  Ellsworth  succeeded 
in  his  mission,  but  the  hardships  of  his  journey 
injured  his  health,  and  he,  hi  turn,  resigned  in 
the  autumn  of  1800.  Then  Adams  offered  the 
Chief  Justiceship  to  Jay,  but  Jay  would  not  return 
to  office,  and  after  this  the  President  selected  his 
Secretary  of  State,  John  Marshall,  one  of  the 
greatest  of  the  great  Virginians,  but  one  of  Jef- 
ferson's most  irreconcilable  enemies.  Perhaps  at 
no  moment  in  his  life  did  John  Adams  demon- 
strate his  legal  genius  more  convincingly  than 
hi  this  remarkable  nomination.  Yet  it  must  be 
conceded  that,  in  making  John  Marshall  Chief 
Justice,  John  Adams  deliberately  chose  the  man 
whom,  of  all  his  countrymen,  he  thought  to  be 
the  most  formidable  champion  of  those  views 
which  he  himself  entertained,  and  which  he  con- 
ceived that  he  had  been  elected  President  to  ad- 
vance. Nor  was  John  Adams  deceived.  For 
thirty-four  years  John  Marshall  labored  ceaselessly 


62  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

to  counteract  Jefferson's  constitutional  prin- 
ciples, while  Jefferson  always  denounced  the 
political  partiality  of  the  federal  courts,  and  above 
all  the  "rancorous  hatred  which  Marshall  bears 
to  the  government  of  his  country,  and  .  .  .  the 
cunning  and  sophistry  within  which  he  is  able  to 
enshroud  himself. "  1 

No  one,  at  this  day,  would  be  disposed  to  dispute 
that  the  Constitution,  as  a  device  to  postpone 
war  among  the  states,  at  least  for  a  period,  was 
successful,  and  that,  as  I  have  already  pointed  out, 
during  the  tentative  interval  which  extended 
until  Appomattox,  the  Supreme  Court  served 
perhaps  as  well,  in  ordinary  times,  as  an  arbiter 
between  the  states  and  the  general  government, 
as  any  which  could  have  been  suggested.  So 
much  may  be  conceded,  and  yet  it  remains  true,  as 
the  record  will  show,  that  when  it  passed  this 
point  and  entered  into  factional  strife,  the  Supreme 
Court  somewhat  lamentably  failed,  probably  in- 
juring itself  and  popular  respect  for  law,  far  more 
by  its  errors,  than  it  aided  the  Union  by  its  political 
adjudications. 

Although  John  Marshall,  by  common  consent, 

1  To  Madison,  Ford,  9,  275. 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION      63 

ranks  as  one  of  the  greatest  and  purest  of  Ameri- 
cans, yet  even  Marshall  had  human  weaknesses, 
one  of  which  was  a  really  unreasonable  antipathy 
to  Thomas  Jefferson;  an  antipathy  which,  I 
surmise,  must,  when  Jefferson  was  inaugurated, 
have  verged  upon  contempt.  At  least  Marshall 
did  what  cautious  men  seldom  do  when  they 
respect  an  adversary,  he  took  the  first  oppor- 
tunity to  pick  a  quarrel  with  a  man  who  had  the 
advantage  of  him  in  position. 

In  the  last  days  of  his  presidency  John  Adams 
appointed  one  William  Marbury  a  justice  of  the 
peace  for  the  District  of  Columbia.  The  Senate 
confirmed  the  appointment,  and  the  President 
signed,  and  John  Marshall,  as  Secretary  of  State, 
sealed  Marbury's  commission ;  but  in  the  hurry  of 
surrendering  office  the  commission  was  not  de- 
livered, and  Jefferson  found  it  in  the  State  Depart- 
ment when  he  took  possession.  Resenting  violently 
these  "midnight"  appointments,  as  he  called  them, 
Jefferson  directed  Mr.  Madison,  his  Secretary 
of  State,  to  withhold  the  commission  ;  and,  at  the 
next  December  term  of  the  Supreme  Court, 
Marbury  moved  for  a  rule  to  Madison  to  show 
cause  why  he  should  not  be  commanded  to  deliver 


64          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

to  the  plaintiff  the  property  to  which  Marbury 
pretended  to  be  entitled.  Of  course  Jefferson 
declined  to  appear  before  Marshall,  through  his 
Secretary  of  State,  and  finally,  in  February,  1803, 
Marshall  gave  judgment,  in  what  was,  without  any 
doubt,  the  most  anomalous  opinion  he  ever  de- 
livered, in  that  it  violated  all  judicial  conventions, 
for,  apparently,  no  object,  save  to  humiliate  a 
political  opponent. 

Marshall  had  no  intention  of  commanding 
Madison  to  surrender  the  commission  to  Marbury. 
He  was  too  adroit  a  politician  for  that.  Marshall 
knew  that  he  could  not  compel  Jefferson  to  obey 
such  a  writ  against  his  will,  and  that  in  issuing 
the  order  he  would  only  bring  himself  and  his 
court  into  contempt.  What  he  seems  to  have 
wished  to  do  was  to  give  Jefferson  a  lesson  in  de- 
portment. Accordingly,  instead  of  dismissing  Mar- 
bury 's  suit  upon  any  convenient  pretext,  as,  accord- 
ing to  legal  etiquette,  he  should  have  done  if  he 
had  made  up  his  mind  to  decide  against  the  plain- 
tiff, and  yet  thought  it  inexpedient  to  explain  his 
view  of  the  law,  he  began  his  opinion  with  a  long 
and  extra-judicial  homily,  first  on  Marbury's 
title  to  ownership  in  the  commission,  and  then  on 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION      65 

civil  liberty.  Having  affirmed  that  Marbury's 
right  to  his  office  vested  when  the  President  had 
signed,  and  the  Secretary  of  State  had  sealed  the 
instrument,  he  pointed  out  that  withholding  the 
property  thus  vested  was  a  violation  of  civil  rights 
which  could  be  examined  in  a  court  of  justice. 
Were  it  otherwise,  the  Chief  Justice  insisted, 
the  government  of  the  United  States  could 
not  be  termed  a  government  of  laws  and  not  of 
men. 

All  this  elaborate  introduction  was  in  the  nature 
of  a  solemn  lecture  by  the  Chief  Justice  of  the 
Supreme  Court  to  the  President  of  the  United 
States  upon  his  faulty  discharge  of  his  official 
duties.  Having  eased  his  mind  on  this  head, 
Marshall  went  on,  very  dexterously  indeed,  but 
also  very  palpably,  to  elude  the  consequences 
of  his  temerity.  He  continued :  The  right  of 
property  being  established,  and  the  violation 
of  that  right  clear,  it  is  plain  that  a  wrong  has 
been  committed,  and  it  only  remains  to  determine 
whether  that  wrong  can  be  redressed  under  this 
form  of  procedure.  We  are  of  opinion  that  it 
cannot,  because  Congress  has  no  constitutional 
power  to  confer  upon  the  Supreme  Court  original 


66          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

jurisdiction  in  this  class  of  litigation.  In  the 
lower  courts  alone  can  the  relief  prayed  for  be 
obtained. 

Of  all  the  events  of  Marshall's  life  this  contro- 
versy with  Jefferson  seems  to  me  the  most  equivo- 
cal, and  it  was  a  direct  effect  of  a  constitutional 
system  which  has  permitted  the  courts  to  become 
the  censor  of  the  political  departments  of  the 
government.  Marshall,  probably,  felt  exasperated 
by  Jefferson's  virulence  against  these  final  appoint- 
ments made  by  John  Adams,  while  Marshall 
was  Secretary  of  State,  and  for  which  he  may 
have  felt  himself,  in  part,  responsible.  Possi- 
bly, even,  he  may  have  taken  some  of  Jeffer- 
son's strictures  as  aimed  at  himself.  At  all 
events  he  went  to  extreme  lengths  in  retalia- 
tion. He  might  have  dismissed  the  litigation 
in  a  few  words  by  stating  that,  whatever 
the  abstract  rights  of  the  parties  might  have 
been,  the  Supreme  Court  had  no  power  to 
constrain  the  President  in  his  official  functions ; 
but  he  yielded  to  political  animosity.  Then, 
having  taken  a  position  practically  untenable,  he 
had  to  find  an  avenue  of  retreat,  and  he  found 
it  by  asserting  a  supervisory  jurisdiction  over 


LIMITATIONS  OF  THE   JUDICIAL  FUNCTION      67 

Congress,  a  step  which,  even  at  that  early  period, 
was  moet  hazardous.1 

In  reality  Jefferson's  temper,  far  from  being 
vindictive  and  revolutionary,  as  his  enemies 
believed,  was  rather  gentle  and  timid,  but  he 
would  have  been  more  than  mortal  had  he  endured 
such  an  insult  in  silence.  Nor  could  he,  perhaps, 
have  done  so  without  risking  the  respect  of  his 
followers.  So  he  decided  on  reprisals,  and  a 
scheme  was  matured  among  influential  Virginians, 
like  John  Randolph  and  Senator  William  Giles,  to 
purge  the  Supreme  Court  of  Federalists.  Among 
the  associate  justices  of  this  court  was  Samuel 
Chase,  a  signer  of  the  Declaration  of  Independence 
and  an  able  lawyer,  but  an  arrogant  and  indiscreet 
partisan.  Chase  had  made  himself  obnoxious  on 
various  public  occasions  and  so  was  considered  to 
be  the  best  subject  to  impeach;  but  if  they  suc- 
ceeded with  him  the  Jeffersonians  proclaimed  their 
intention  of  removing  all  his  brethren  seriatim, 
including  the  chief  offender  of  all,  John  Marshall. 

1  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  ». 
Raub,  12  S.  &  R.,  344. 


68  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

One  day  in  December,  1804,  Senator  Giles,  of 
Virginia,  in  a  conversation  which  John  Quincy 
Adams  has  reported  in  his  diary,  discussed  the 
issue  at  large,  and  that  conversation  is  most 
apposite  now,  since  it  shows'  how  early  the  in- 
evitable tendency  was  developed  to  make  judges 
who  participate  in  political  and  social  contro- 
versies responsible  to  the  popular  will.  The 
conversation  is  too  long  to  extract  in  full,  but  a 
few  sentences  will  convey  its  purport :  - 

"He  treated  with  the  utmost  contempt  the  idea 
of  an  independent  judiciary.  .  .  .  And  if  the 
judges  of  the  Supreme  Court  should  dare,  as  they 
had  done,  to  declare  an  act  of  Congress  unconstitu- 
tional, or  to  send  a  mandamus  to  the  Secretary 
of  State,  as  they  had  done,  it  was  the  undoubted 
right  of  the  House  of  Representatives  to  impeach 
them,  and  of  the  Senate  to  remove  them,  for  giving 
such  opinions,  however  honest  or  sincere  they 
may  have  been  in  entertaining  them.  *  *  *  And 
a  removal  by  impeachment  was  nothing  more  than 
a  declaration  by  Congress  to  this  effect :  You  hold 
dangerous  opinions,  and  if  you  are  suffered  to  carry 
them  into  effect  you  will  work  the  destruction  of 
the  nation.  We  want  your  offices,  for  the  pur- 


LIMITATIONS  OF  THE   JUDICIAL  FUNCTION      69 

pose  of  giving  them  to  men  who  will  nil  them 
better."  1 

Jefferson,  though  he  controlled  a  majority  in 
the  Senate,  failed  by  a  narrow  margin  to  obtain 
the  two- thirds  vote  necessary  to  convict  Chase. 
Nevertheless,  he  accomplished  his  object.  Chase 
never  recovered  his  old  assurance,  and  Marshall 
never  again  committed  a  solecism  in  judicial 
manners.  On  his  side,  after  the  impeachment, 
Jefferson  showed  moderation.  He  might,  if  he 
had  been  malevolent,  without  doubt,  have  ob- 
tained an  act  of  Congress  increasing  the  member- 
ship of  the  Supreme  Court  enough  to  have  put 
Marshall  in  a  minority.  Then  by  appointing  men 
like  Giles  he  could  have  compelled  Marshall  to 
resign.  He  did  nothing  of  the  kind.  He  spared 
the  Supreme  Court,  which  he  might  have  over- 
thrown, and  contented  himself  with  waiting  until 
time  should  give  him  the  opportunity  to  correct 
the  political  tendencies  of  a  body  of  men  whom 
he  sincerely  regarded  as  a  menace  to,  what  he  con- 
sidered, popular  institutions.  Thus  the  ebullition 
caused  by  Marshall's  acrimony  toward  Jefferson, 
because  of  Jefferson's  strictures  on  the  appoint- 

1  Memoirs,  I,  322. 


yo          THE  THEORY  OF  SOCIAL   REVOLUTIONS 

ments  made  by  his  predecessor  subsided,  leaving 
no  very  serious  immediate  mischief  behind,  save 
the  precedent  of  the  nullification  of  an  act  of  Con- 
gress by  the  Supreme  Court.  That  precedent, 
however,  was  followed  by  Marshall's  Democratic 
successor.  And  nothing  can  better  illustrate  the 
inherent  vice  of  the  American  constitutional  sys- 
tem than  that  it  should  have  been  possible,  in 
1853,  to  devise  and  afterward  present  to  a  tribunal, 
whose  primary  purpose  was  to  administer  the 
municipal  law,  a  set  of  facts  for  adjudication,  on 
purpose  to  force  it  to  pass  upon  the  validity  of 
such  a  statute  as  the  Missouri  Compromise,  which 
had  been  enacted  by  Congress  in  1820,  as  a  sort 
of  treaty  of  peace  between  the  North  and  South, 
and  whose  object  was  the  limitation  of  the  spread 
of  slavery.  Whichever  way  the  Court  decided, 
it  must  have  fallen  into  opprobrium  with  one-half 
the  country.  In  fact,  having  been  organized  by 
the  slaveholders  to  sustain  slavery,  it  decided 
against  the  North,  and  therefore  lost  repute  with 
the  party  destined  to  be  victorious.  I  need  not 
pause  to  criticise  the  animus  of  the  Court,  nor  yet 
the  quality  of  the  law  which  the  Chief  Justice 
there  laid  down.  It  suffices  that  in  the  decade 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION      71 

which  preceded  hostilities  no  event,  in  all  proba- 
bility, so  exasperated  passions,  and  so  shook  the 
faith  of  the  people  of  the  northern  states  in  the 
judiciary,  as  this  decision.  Faith,  whether  in  the 
priest  or  the  magistrate,  is  of  slow  growth,  and 
if  once  impaired  is  seldom  fully  restored.  I  doubt 
whether  the  Supreme  Court  has  ever  recovered 
from  the  shock  it  then  received,  and,  considered 
from  this  point  of  view,  the  careless  attitude  of 
the  American  people  toward  General  Grant's 
administration,  when  in  1871  it  obtained  the 
reversal  of  Hepburn  v.  Griswold  by  appointments 
to  the  bench,  assumes  a  sombre  aspect. 

Of  late  some  sensitiveness  has  been  shown  in 
regard  to  this  transaction,  and  a  disposition  has 
appeared  to  defend  General  Grant  and  his  At- 
torney-General against  the  charge  of  manipulating 
the  membership  of  the  bench  to  suit  their  own 
views.  At  the  outset,  therefore,  I  wish  to  dis- 
claim any  intention  of  entering  into  this  discussion. 
To  me  it  is  immaterial  whether  General  Grant 
and  Mr.  Hoar'  did  or  did  not  nominate  judges 
with  a  view  to  obtaining  a  particular  judgment. 
I  am  concerned  not  with  what  men  thought, 
but  with  what  they  did,  and  with  the  effect  of 


72          THE  THEORY  OF   SOCIAL  REVOLUTIONS 

their  acts  at  the  moment,  upon  their  fellow- 
citizens. 

Hepburn  v.  Griswold  was  decided  in  conference 
on  November  27,  1869,  when  eight  justices  were 
on  the  bench.  On  February  i,  following,  Justice 
Grier  resigned,  and,  on  February  7,  judgment  was 
entered,  the  court  then  being  divided  four  to 
three,  but  Grier  having  been  with  the  majority, 
the  vote  in  reality  stood  five  to  three.  Two 
vacancies  therefore  existed  on  February  7,  one 
caused  by  the  resignation  of  Grier,  the  other  by 
an  act  of  Congress  which  had  enlarged  the  court 
by  one  member,  and  which  had  taken  effect  in 
the  previous  December. 

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


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION      73 

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 
i,  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  sup- 
ported him  without  inquiring  how  he  had  achieved 
success.1  After  this  it  is  difficult  to  suppose  that 
much  respect  could  remain  among  the  American 
people  for  the  sanctity  of  judicial  political  de- 
cisions, or  that  a  President,  at  the  head  of  a  popu- 
lar majority,  would  incur  much  odium  for  in- 
tervening to  correct  them,  as  a  party  measure. 

The  last  example  of  judicial  interference  which 

1  Hepburn  r.  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. 


74          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  Con- 
gress "by  universal  consensus  for  one  hundred 
years." 1  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  uni- 
versally accepted  legal,  political,  and  economic 
policy  of  the  country  solely  in  order  that  "in- 
vested wealth  "  might  be  read  "  into  the  consti- 
tution "  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." 2 

1  157  U.  S.  608. 

*  Pollock  t.  The  Farmers'  Loan  &  Trust  Co.,  158  U.  S.  715. 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION       75 

I  might  go  on  into  endless  detail,  but  I  ap- 
prehend that  these  cases,  which  are  the  most 
important  which  have  ever  arisen  on  this  issue, 
suffice  for  my  purpose.1  I  contend  that  no  court 
can,  because  of  the  nature  of  its  being,  effectively 
check  a  popular  majority  acting  through  a  co- 

1In  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,  Taney's  decision  hinged  upon  the 
invalidity  of  the  law. 

Besides  the  statutes  which  I  have  mentioned  in  the  text,  the  two 
most  important,  I  suppose,  which  have  been  annulled,  have  to  me  no 
little  interest.  These  are  the  Civil  Rights  Act  of  1875,  and  the  Em- 
ployers' Liability  Act  of  1006.  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  de- 
cided 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  jurisdic- 
tion. The  Court,  consequently,  in  the  Employers'  Liability  Cases, 
simply  denned  the  limits  of  sovereignty,  as  a  Canadian  Court  might 
do;  it  did  not  question  the  existence  of  sovereignty  itself.  In  1008 
Congress  passed  a  statute  free  from  this  objection,  and  the  Court,  in 
the  Second  Employers'  Liability  Cases,  223  U.  S.  i,  sustained  the 
legislation  in  the  most  thoroughgoing  manner.  I  know  not  where  to 
look  for  two  better  illustrations  of  my  theory. 


76          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

ordinate  legislative  assembly,  and  I  submit  that 
the  precedents  which  I  have  cited  prove  this  con- 
tention. 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  philo- 
sophically 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  in- 
fluence 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  con- 
servative, 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. 


LIMITATIONS  OF  THE  JUDICIAL  FUNCTION       77 

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  slave- 
holding  interest  had  passed  the  zenith  of  high 
fortune,  and  was  hastening  toward  its  decline. 
In  the  elections  of  1858  the  Democratic  party, 
which  represented  slavery,  was  defeated.  But 
the  Supreme  Court  had  been  organized  by  Demo- 
crats 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  con- 
structed 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,  emi- 
nently suggestive.  The  Federalist  instinct  was 
constructive,  not  destructive,  and  accordingly 
Marshall's  fame  rests  on  a  series  of  constructive 


78          THE  THEORY  OF  SOCIAL  REVOLUTIONS 

decisions  like  M'Culloch  v.  Maryland,  Cohens  v. 
Virginia,  and  Gibbons  v.  Odgen.  In  these  de- 
cisions he  either  upheld  actual  national  legislation, 
or  else  the  power  of  the  nation  to  legislate.  Con- 
versely, 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  Ameri- 
can constitutional  development,  judicial  activity 
had  been  always  negative.  Unfortunately,  as  I 
believe,  it  has  extended  into  the  domain  of  legis- 
lation. I  will  take  the  Dred  Scott  Case  once 


LIMITATIONS   OF  THE   JUDICIAL   FUNCTION       79 

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  com- 
promise 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  com- 
mended 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. 


CHAPTER  III 

AMERICAN   COURTS   AS   LEGISLATIVE   CHAMBERS 

IN  one  point  of  view  many  of  the  greatest  of 
the  Federalists  were  idealists.  They  seem  sin- 
cerely to  have  believed  that  they  could,  by  some 
form  of  written  words,  constrain  a  people  to  be 
honest  against  then-  will,  and  almost  as  soon  as 
the  new  government  went  into  operation  they 
tested  these  beliefs  by  experiment,  with  very  in- 
different 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  prin- 
ciples 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 
80 


AMERICAN  COURTS   AS   LEGISLATIVE  CHAMBERS      8l 

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.  Be- 
fore 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  ap- 
plied 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 


82  THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  press- 
ure, which  may  deflect  them  from  impartiality 
as  between  suitors.  In  modern  civilization,  es- 
pecially, 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  cal- 
culated to  bear  the  strain,  it  being  inflexible.  In 
theory  the  English  law  moves  logically  from  prec- 
edent 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  rec- 
tifying the  wrong.  The  Romans,  who  were  gifted 
with  a  higher  legal  genius  than  we,  managed 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS      83 

better.  The  praetor,  by  his  edict,  suppressed  in- 
convenient precedents,  and  hence  the  Romans 
maintained  flexibility  in  their  municipal  law  with- 
out 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  pos- 
sible, 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 


84  THE  THEORY  OF  SOCIAL   REVOLUTIONS 

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  ac- 
celeration of  movement  by  electricity  and  steam. 
They  could  not  foresee  the  rapidity  and  the  pro- 
fundity 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  sover- 
eignty, 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  justice- 
ship, because  there  he  thought  he  could  make  his 
influence  felt  most  widely.  If  so  he  had  his  wish, 
and  very  shortly  met  with  disappointment.  In 
the  August  Term  of  1792,  one  Chisholm,  a  citizen 
of  South  Carolina,  sued  the  State  of  Georgia  for 
a  debt.  Georgia  declined  to  appear,  and  in  Feb- 
ruary, 1793,  Jay,  in  an  elaborate  opinion,  gave 
judgment  for  Chisholm.  Jay  was  followed  by  his 
associates  with  the  exception  of  Iredell,  J.,  of 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS      85 

North  Carolina.  Forthwith  a  ferment  began,  and 
in  the  very  next  session  of  Congress  an  amend- 
ment 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  mortifica- 
tion at  having  his  only  important  constitu- 
tional 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  for- 
bade 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. 


86          THE  THEORY  OF  SOCIAL   REVOLUTIONS 

All  contracts  were  to  be  held  sacred.  Their 
greater  or  less  importance  was  immaterial. 

In  1 8 10  Marshall  expounded  this  general  prin- 
ciple in  Fletcher  v.  Peck.1  "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.2  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,  hi  1819,  Marshall  may,  per- 
haps, 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  con- 
vinced the  Democrat,  Joseph  Story,  —  a  man 

1  6  Cranch  135. 

1  New  Jersey  r.  Wilson,  7  Cranch  164,  decided  in  1812. 


AMERICAN  COURTS  AS   LEGISLATIVE   CHAMBERS      87 

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  there- 
upon 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  pro- 
longed consideration  Marshall  concluded  that  it 
did,  and  I  conceive  that,  in  the  eye  of  history, 
he  was  right.  Throughout  the  Middle  Ages  cor- 
porate privileges  of  all  kinds,  but  especially  mu- 
nicipal corporate  privileges,  had  been  subjects  of 
purchase  and  sale,  and  indeed  the  mediaeval  social 
system  restecl  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 


88         THE  THEORY  OF   SOCIAL  REVOLUTIONS 

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  char- 
ters, 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  prop- 
erty which  the  aristocracy  had  invested  in  par- 
liamentary 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  com- 
pensated the  owners  would  have  entailed  a  con- 
siderable 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 


AMERICAN  COURTS   AS  LEGISLATIVE  CHAMBERS      89 

was  attained  by  a  legal  somerset  which  has  dis- 
ordered 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,  ad- 
joining the  church,  to  be  used  as  a  churchyard 
for  the  burial  of  the  dead.  In  1823  the  govern- 
ment 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.1 

The  court  thus  simply  dispensed  the  legislature 
from  obedience  to  the  law,  saying  in  effect,  "al- 
though the  Constitution  forbids  impairing  con- 
tracts, and  although  this  is  a  contract  which  you 
have  impaired,  yet,  in  our  discretion,  we  suspend 
the  operation  of  the  Constitution,  in  this  instance, 

1  Coates  v.  Mayor  of  New  York,  7  Cowen  585. 


90         THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  as- 
sociates, 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,  author- 
izing it,  by  way  of  consideration,  to  collect  tolls 
for  forty  years.  In  1792  the  franchise  was  ex- 
tended to  seventy  years,  when  the  bridge  was  to 
revert  to  the  Commonwealth.  In  1828  the  legis- 
lature chartered  the  Warren  Bridge  Company, 
expressly  to  build  a  bridge  parallel  to  and  practi- 
cally adjoining  the  Charles  River  Bridge,  the  War- 
ren Bridge  to  become  a  free  bridge  after  six  years. 
The  purpose,  of  course,  was  to  accelerate  movement 
by  ruining  the  Charles  River  Bridge  Company. 


AMERICAN  COURTS  AS  LEGISLATIVE   CHAMBERS      91 

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  ob- 
tain 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  com- 
mon 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  in- 
vested in  railroads  and  canals,  upon  lines  of 
travel  which  had  been  before  occupied  by  turn- 
pike corporation's,  will  be  put  in  jeopardy"  if  this 
doctrine  is  to  prevail.1 

The   effect  of  the   adoption  by  the   Supreme 

1  Charles  River  Bridge  ».  Warren  Bridge,  n  Peters  420,  553. 


92 


THE  THEORY  OF  SOCIAL  REVOLUTIONS 


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  al- 
most 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  Coun- 
cil of  Constance,  inheres  in  the  Church,  to  "grant 
indulgences  for  reasonable  causes."  I  suppose 
nothing  in  modern  judicial  history  has  ever  re- 
sembled this  assumption ;  and  yet,  when  we  ex- 
amine 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  Con- 
stitution, commanded  that  all  contracts  should  be 
sacred.  Therefore  he,  as  a  judge,  had  but  two 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS      93 

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  with- 
stand; therefore,  the  Court  yielded,  declaring 
that  if  impairing  a  contract  were,  on  the  whole, 
for  the  public  welfare,  the  Constitution,  as  Mar- 
shall 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 


94 


THE  THEORY  OF  SOCIAL  REVOLUTIONS 


subjection  to  this  power.  All  personal,  as  well 
as  property  rights  must  be  held  subject  to  the 
Police  Power  of  the  state."  l 

Once  the  theory  of  the  Police  Power  was  es- 
tablished it  became  desirable  to  define  the  limits 
of  judicial  discretion,  but  that  proved  to  be  im- 
possible. 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,  trans- 
lated 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  per- 
colated 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  dramati- 
cally enough  in  the  temperance  agitation. 

Up  to  about  the  middle  of  the  last  century  the 
lawfulness  of  the  liquor  business  had  been  un- 
questioned in  the  United  States,  and  money  had 
been  invested  as  freely  in  it  as  in  any  other  legiti- 

1  Boston  &  Maine  Railroad  v.  County  Commissioners,  79  Maine 
393- 


AMERICAN  COURTS  AS   LEGISLATIVE  CHAMBERS      95 

mate  enterprise ;  but,  as  the  temperance  agitation 
swept  over  the  country,  in  obedience  to  the  im- 
pulsion 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  com- 
pensation, or  without  due  process  of  law.  Such 
a  provision  existed  in  the  constitution  of  the  State 
of  New  York,  adopted  in  1846,  and  it  was  to  in- 
voke the  protection  of  this  clause  that  one  Wyne- 
hamer,  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.1 

1  Wynehamer  v.  The  People,  13  N.Y.  393. 


g6         THE  THEORY  OF  SOCIAL  REVOLUTIONS 

This  decision,  which  represented  the  profound- 
est  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  exer- 
cising 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  over- 
throw 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.1  The  same  series  of  phenomena 
have  appeared  in  regard  to  laws  confiscating  prop- 

1  Mugler  v.  Kansas,  123  U.S.  623. 


AMERICAN  COURTS  AS   LEGISLATIVE   CHAMBERS      97 

erty  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  re- 
lieve the  City  of  Chicago  of  its  offal.1  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  every- 
thing the  popular  majority  demanded  under  the 
pretext  of  the  War  Power,  as  in  peace  they  have 
sanctioned  confiscations  for  certain  popular  pur- 
poses, under  the  name  of  the  Police  Power.  But 
then,  courts  have  always  been  sensitive  to  financial 
influences,  and  if  they  have  been  flexible  in  per- 
mitting popular  confiscation  when  the  path  of 
least  resistance  has  lain  that  way,  they  have  gone 

1  Fertilizing  Co.  v.  Hyde  Park,  97  U.S.  659. 


98         THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  con- 
fiscation of  the  property  of  their  own  citizens,  pro- 
vided contracts  were  not  impaired,  it  was  only  in 
1868,  by  the  passage  of  the  Fourteenth  Amend- 
ment, 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  "reason- 
ableness" 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 


AMERICAN  COURTS  AS  LEGISLATIVE   CHAMBERS      99 

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  dis- 
trict 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."  1 

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. 

1  Slaughter  House  Cases,  16  Wallace  78,  decided  in  1873. 


100       THE  THEORY  OF   SOCIAL  REVOLUTIONS 

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  ele- 
vators. 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  ad- 
judication :  The  first,  which  by  courtesy  might 
be  termed  legal,  was  whether  the  fixing  of  prices 
by  statute  was  a  prerogative  which  a  state  legis- 
lature 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 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       101 

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  represen- 
tatives of  the  people,  which  was  impossible.  I 
well  remember  the  stir  made  by  the  case  of  Munn 
v.  Illinois.1 

Both  hi  and  out  of  the  legal  profession,  those  in 
harmony  with  the  great  vested  interests  com- 
plained 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, 
'94  U.S.  113. 


102       THE  THEORY  OF   SOCIAL   REVOLUTIONS 

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  sover- 
eignty, 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  hi  the  interest  of  the  strongest 
force  for  the  time  being,  that  force  being  actually 
financial.  By  the  year  1890  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  extraor- 
dinary pressure.  Mr.  Justice  Bradley,  however, 
was  not  an  ordinary  man.  He  was,  on  the  con- 
trary, one  of  the  ablest  and  strongest  lawyers 
who  sat  on  the  federal  bench  during  the  last  half 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       103 

of  the  nineteenth  century;  and  Bradley,  like 
Story  before  him,  remonstrated  against  turning 
the  bench  of  masigtrates,  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  un- 
constitutional, because  it  was  unreasonable,  and 
the  majority  of  the  Court  sustained  their  con- 
tention.1 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  con- 
clusive, 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. 

1  Chicago,  Milwaukee  &  St.  Paul  Ry.  r.  Minnesota,  134  U.S.  461, 
decided  March  24,  1890. 


104       THE  THEORY   OF  SOCIAL   REVOLUTIONS 

Illinois.  .  .  .  The  governing  principle  of  those 
cases  was  that  the  regulation  and  settlement  of 
the  fares  of  railroads  and  other  public  accommo- 
dations 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  reason- 
able, 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  con- 
siderations 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  author- 
ity 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 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       105 

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  meet- 
ing. 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 


106       THE  THEORY  OF  SOCIAL   REVOLUTIONS 

usage,  or  held  by  ...  preponderant  opinion  to 
be  ...  necessary  to  the  public  welfare."  1 

A  representative  chamber  reaches  its  con- 
clusions 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  corve*e,  threw  wide  the  gate  by 
which  the  aristocracy  of  France  passed  to  the 
guillotine.  The  ruling  of  the  Superior  Court  of 

1  Noble  State  Bank  v.  Haskell,  219  U.S.  104. 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       107 

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  magis- 
trate should  be  no  respecter  of  persons.  The  vice 
of  our  sytem  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.  Disregard- 
ing 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,1 1  will  take,  nearly 

1  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  Mete.  (Kentucky)  589. 


108       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  stor- 
age 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 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       109 

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,1  and  dismissed  Brass  to  his  fate. 

The  converse  case  is  a  very  famous  one  known 
as  Smyth  v.  Ames,2  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  ex- 
ceedingly prosperous  and  influential  Chicago, 
Burlington  &  Quincy  Railway.  No  one  pretended 
that,  were  the  law  to  be  enforced,  the  total  rev- 
enues of  the  Burlington  would  be  seriously  im- 
paired, nor  was  it  even  clear  that,  were  the  estimate 
of  reduction,  revenue,  and  cost  confined  alto- 
gether to  the  commerce  carried  on  within  the 
limits  of  the  State  of  Nebraska,  leaving  interstate 

1  Brass  v.  North  Dakota,  153  U.S.  391. 
1  169  U.S.  466. 


HO       THE  THEORY  OF  SOCIAL   REVOLUTIONS 

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  con- 
ceding 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  Ne- 
braska 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 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       ill 

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  represen- 
tative body."  1  I  apprehend  that  courts  can  per- 
form no  such  office  and  that  hi  assuming  attri- 
butes beyond  the  limitations  of  their  being  they, 
as  history  has  abundantly  proved,  not  only  fail 
in  their  object,  but  shake  the  foundations  of  au- 
thority, and  immolate  themselves.  Hitherto  I 
have  confined  myself  to  adducing  historical  evi- 
dence 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 

1  The  Federalist,  No.  LXXVIII. 


112       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  prom- 
ising 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  develop- 
ment, 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  supe- 
riority, it  is  probably  true  that  the  Romans  owed 
much  of  their  success  in  codification  to  the  greater 
permanence  of  the  Roman  legislative  tenure  of 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       113 

office,  and,  therefore,  stability  of  policy,  — phenom- 
ena which  were  both  probably  effects  of  a  slower 
social  movement  among  the  ancients.  The  Ro- 
mans, therefore,  had  less  need  than  we  of  a  per- 
manent 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  jus- 
tice 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  legis- 
latures 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 


114       THE  THEORY  OF  SOCIAL   REVOLUTIONS 

character.  For  example,  the  House  of  Lords  in 
England  has  long  discharged  the  duties  of  a  tri- 
bunal of  last  resort  for  the  empire,  and  with 
general  approbation,  but  only  because,  when 
sitting  as  a  court,  the  law  lords  sit  alone.  Poli- 
ticians 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  prin- 
ciple can  be  deduced  which  shall  protect  the  civil 
rights  of  those  who  cannot  protect  themselves, 
against  the  arbitrary  exactions  of  powerful  neigh- 
bors. 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 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       115 

are  bound  to  guard  indifferently.  If  the  courts 
do  not  perform  this,  their  first  and  most  sacred 
duty,  I  apprehend  that  order  cannot  be  perma- 
nently maintained,  for  this  is  equality  before  the 
law ;  and  equality  before  the  law  is  the  corner- 
stone of  order  in  every  modern  state. 

I  conceive  that  the  lawyers  of  the  age  of  Wash- 
ington were  the  ablest  that  America  has  ever  pro- 
duced. No  men  ever  understood  the  principle 
of  equality  before  the  law  more  thoroughly  than 
they,  and  after  the  establishment  of  this  govern- 
ment 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  dete- 
rioration 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 


Il6       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

illustrate  my  meaning  I  shall  refer  to  but  one 
litigation,  but  that  one  is  so  extraordinary  that  I 
must  deal  with  it  hi  detail. 

In  1890  the  dread  of  the  enhancement  of  prices 
by  monopoly,  as  the  Supreme  Court  itself  has  ex- 
plained, 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  ob- 
noxious 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  judi- 
ciary, exposed  as  the  judiciary,  under  our  system, 
is  exposed. 

The  Trans-Missouri  Case  was  argued  on  Decem- 
ber 8,  1896,  very  elaborately  and  by  the  most 
eminent  counsel.  After  long  consideration,  and 
profound  reflection,  Mr.  Justice  Peckham,  speak- 
ing for  the  majority  of  the  tribunal,  laid  down  a 
general  principle  hi  conformity  to  the  legislative 
will,  precisely  as  Marshall  had  laid  down  a  general 
principle  hi  the  Dartmouth  College  Case,  or  Story 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       117 

in  the  Charles  River  Bridge  Case,  or  Waite  in 
Munn  v.  Illinois,  or  Bradley  in  the  Minnesota 
Rate  Case.  Then  the  process  of  agitation  im- 
mediately 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  com- 
merce to  be  subjected  to  reasonable  restraints."  1 

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  un- 
lawful, 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  per- 
mitted. Judicial  duty  ended  there. 

The  Court  being  found  to  be  inflexible,  recourse 

1  221  U.S.  91. 


Il8       THE  THEORY  OF  SOCIAL   REVOLUTIONS 

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  govern- 
ment 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  monop- 
oly anew,  and  in  1909  Senator  Nelson  presented 
an  exhaustive  report  against  the  proposed  re- 
laxation. Thereupon  the  Senate  indefinitely  post- 
poned 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,  com- 
prehensive, certain  and  highly  remedial.  It  prac- 
tically covers  the  field  of  federal  jurisdiction,  and 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       IIQ 

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  rec- 
ommend the  indefinite  postponement  of  the 
bill."  l 

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  posi- 
tion that  it  could  so  yield,  without  stultifying 
itself  hopelessly  before  the  legal  profession  and 

1  6oth  Congress,  2d  Session,  Senate,  Report  No.  848,  Adverse 
Report  by  Mr.  Nelson,  Amending  Anti-trust  Act,  January  26,  1909, 
page  n. 


120        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

the  public.  In  striving  to  reach  this  position, 
however,  I  apprehend  that  the  Chief  Justice,  un- 
reservedly, 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  Con- 
gress, 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  dis- 
quisition 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  par- 
ticular cause.  For  the  Chief  Justice  very  readily 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       121 

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  argu- 
ment 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  fundamen- 
tal principle,  and  yet  to  appear  to  make  no  surren- 
der 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  some- 
times 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  prin- 
ciple which  he  might  be  supposed  to  renounce, 
but  this  apparent  discrepancy  involved  no  con- 


122       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

tradiction.  It  was  only  a  progression  in  thought. 
For,  he  continued,  the  judges  who,  on  various 
previous  occasions,  sustained  that  general  prin- 
ciple, must  have  reached  their  conclusions  by  the 
light  of  reason ;  to-day  we  reach  a  contrary  con- 
clusion, 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,  how- 
ever much  superficially  they  may  seem  to  differ.1 

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  para- 
graphs, 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 

1  Standard  Oil  Company  r.  United  States,  221  U.S.  i. 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       123 

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,'  hi  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."  1 

The  phenomenon  which  amazed  Mr.  Justice 
Harlan  is,  I  conceive,  perfectly  comprehensible, 
if  we  reflect  a  little  on  the  conflict  of  forces  in- 
volved, 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 

1  United  States  v.  American  Tobacco  Company,  221  U.S.  191, 
192, 


124       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

Congress,  while  the  financiers,  as  financiers  always 
have  and  always  will,  took  shelter  behind  the 
courts.  Congress,  in  1890,  passed  a  statute  to  con- 
strain monopolies,  against  which  financiers  pro- 
tested as  being  a  species  of  confiscation,  and  which 
the  Chief  Justice  himself  thought  harsh.  To  this 
statute  the  Supreme  Court  gave  a  harsh  construc- 
tion, 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  Hep- 
burn 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 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       125 

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  repug- 
nant 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  im- 
pression. 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. 


126       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

Nor  is  it  unworthy  of  remark  that  the  Chief 
Justice,  in  abstaining  from  questioning  the  con- 
stitutionality 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.1 

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  amend- 
ment unconstitutional  as  denying  to  the  Court 

1  221   U.S.  69. 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       127 

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  hi  the  hands  of  the  judiciary, 
which  they  may  twist  and  shape  into  any  form 
they  please."  1  And  however  much  we  may  re- 
coil 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  pro- 
gression has  been  steady  and  uniform,  each 
advance  toward  an  assumption  of  the  legis- 
lative 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  Madi- 
son in  the  impeachment  of  Chase,  because,  as  Giles 
explained,  if  judges  were  to  annul  laws,  the  domi- 
nant party  must  have  on  the  bench  judges  they 

1  To  Spencer  Roane,  Sept.  6,  1819,  Ford,  10,  141. 


128       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  con- 
stitutional 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 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       129 

about  us.  Experience  has  shown,  in  New  York 
and  elsewhere,  that  an  election,  even  for  a  some- 
what 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  vicissi- 
tudes this  ancient  chamber  had  performed  func- 
tions 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 


130       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  antici- 
pated. 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  con- 
flicting 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 


AMERICAN  COURTS  AS  LEGISLATIVE  CHAMBERS       131 

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  move- 
ment. It  would  undertake  to  correct  a  disturb- 
ance 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. 


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  move- 
ment 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  intellec- 
tual adaptability  of  the  individual  man  is  very 
limited.  A  ruling  class  is  seldom  conscious  of  its 

132 


THE  SOCIAL  EQUILIBRIUM  133 

own  decay,  and  most  of  the  worst  catastrophes  of 
history  have  been  caused  by  an  obstinate  resist- 
ance 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 


134 


THE   THEORY  OF   SOCIAL  REVOLUTIONS 


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  dis- 
missing 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.  Al- 
though 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 


THE  SOCIAL  EQUILIBRIUM  135 

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  sur- 
vived to  this  day,  although  shorn  of  much  of  the 
influence  which  they  might  very  probably  have 
retained  had  they  solved  more  correctly  the  prob- 
lem 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 


136       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  re- 
mained, 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  adminis- 
trative 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  mouth- 
piece 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 


THE  SOCIAL  EQUILIBRIUM  137 

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  hi  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  hi  England  members  of  the  House  of 
Commons,  who  sat  for  nomination  boroughs, 
did  not,  either  in  fact  or  theory,  represent  the  in- 
habitants 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  adminis- 
trative system,  was  the  decay,  after  1760,  of  the 
physical  force  which  had  engendered  it  and  de- 
fended it.  As  in  England  the  ascendancy  of  the 
landlords  passed  away  when  England  turned 
from  an  agricultural  into  an  industrial  society, 


138       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  quarter- 
ings  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  gram  trade,  explained  that  kings  in  the 
past  by  ordinance,  or  the  police  without  royal 
authority,  had  compiled  a  body  "of  legislation 


THE  SOCIAL  EQUILIBRIUM  139 

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  central- 
ized government  taxes  must  be  equal  and  move- 
ment 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  be- 
come 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  magis- 


140       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

tracy,  and  on  the  death  of  his  father  he  obtained 
a  small  place  hi  the  Court  of  Parliament.  After- 
ward he  became  a  Master  of  Requests,  and  served 
for  seven  years  in  that  judicial  position,  before 
he  was  made  Intendant  of  the  Province  of  Limou- 
sin. Even  thus  early  in  life  Turgot  showed  politi- 
cal sagacity.  In  an  address  at  the  Sorbonne  he 
supported  the  thesis  that  "well- tuned  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  hi  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  corve"e 
threw  the  burden  of  maintaining  the  highways  on 
the  peasantry  by  exacting  forced  labor.  It  was 
admittedly  the  most  hateful,  the  most  burden- 
some, 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 


THE  SOCIAL  EQUILIBRIUM  141 

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  origi- 
nally the  exemption  from  taxation,  which  the  no- 
bility enjoyed,  might  have  been  defended  on  the 
ground  that  the  nobles  were  bound  to  yield  mili- 
tary 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  privi- 
lege, assumed  their  defence.  To  be  binding,  the 
edicts  had  to  be  registered  by  the  Parliament 
among  the  laws  of  France,  and  Parliament  de- 
clined to  make  registration  on  the  ground  that 


142       THE  THEORY  OF  SOCIAL   REVOLUTIONS 

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  preserv- 
ing the  rights  of  property,  but  still  more  in 
preserving  those  belonging  to  the  person,  which 
arise  from  the  prerogative  of  birth  and  of  posi- 
tion. .  .  .  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  re- 
sult 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  envi- 
ronment, which  had  once  made  caste  a  necessity, 
had  yielded  to  another  which  made  caste  an  im- 
possibility. In  vain  Turgot  and  his  contempora- 


THE  SOCIAL  EQUILIBRIUM  143 

lies  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  conse- 
quences, the  Nobility  and  Clergy  elected  to  risk 
revolt,  because  they  did  not  believe  that  revolt 
could  prevail  against  them.  Nothing  is  so  im- 
pressive 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  reorgan- 
ized the  courts,  that  they  might  have  an  instru- 
ment 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, 


144       THE  THEORY  OF   SOCIAL   REVOLUTIONS 

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  ob- 
serving, "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  Com- 
mons waited.  Then  on  June  10,  the  Abbe"  Sieyes 
said,  "Let  us  cut  the  cable.  It  is  time."  So 


THE  SOCIAL  EQUILIBRIUM  145 

the  Clergy  and  the  Nobility  were  summoned,  and 
some  of  the  Clergy  obeyed.  This  sufficed.  On 
motion  of  Sieyes,  the  Commons  proclaimed  them- 
selves the  National  Assembly,  and  the  orders 
fused.  Immediately  caste  admitted  defeat  and 
through  its  mouthpiece,  the  King,  commanded 
the  Assembly  to  dissolve.  The  Commons  re- 
fused 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  im- 
pregnable, 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 


146       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

themselves.  Becoming  at  length  partly  conscious 
of  a  lack  of  physical  force  hi  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  i,  1789,  a  great  military  banquet  was 
given  at  Versailles.  The  King  and  Queen  with 
the  Dauphin  were  present.  A  royalist  demonstra- 
tion began.  The  bugles  sounded  a  charge,  the 
officers  drew  their  swords,  and  the  ladies  of  the 
court  tore  the  tri-color  from  the  soldiers'  coats 
and  replaced  it  with  the  white  cockade.  On  Octo- 
ber 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  constitu- 
tion. 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  Belittle*  himself,  after  the  rising  at  Nancy, 


THE  SOCIAL  EQUILIBRIUM  147 

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  i4th  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  of- 
fered his  services.  The  court  sneered  at  him  as 
a  dupe.  The  Queen  wrote,  "We  make  use  of 
Mirabeau,  but  we  do  not  take  him  seriously." 
When  Mirabeau  awoke  to  his  predicament,  he 
broke  out  in  mixed  wrath  and  scorn:  "Of  what 
are  these  people  thinking?  Do  they  not  see  the 
abyss  yawning  at  their  feet  ?  Both  the  King  and 
Queen  will  perish,  and  you  will  live  to  see  the 
rabble  spurn  their  corpses." 

The  King  and  Queen,  the  Nobility  and  Clergy, 
could  not  see  the  abyss  which  Mirabeau  saw,  any 
more  than  the  lawyers  could  see  it,  because  of  the 
temper  of  their  minds.  In  the  eye  of  caste 
Europe  was  not  primarily  divided  into  nations  to 
whom  allegiance  was  due,  but  into  superimposed 


148       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

orders.  He  who  betrayed  his  order  committed 
the  unpardonable  crime.  Death  were  better 
than  that.  But  to  the  true  aristocrat  it  was  in- 
conceivable that  serfs  could  ever  vanquish  nobles 
in  battle.  Battle  must  be  the  final  test,  and  the 
whole  aristocracy  of  Europe  was  certain,  French- 
men knew,  to  succor  the  French  aristocracy  in 
distress. 

So  in  the  winter  of  1790  the  French  fugitives 
congregated  at  Coblentz  on  the  German  frontier, 
persuaded  that  they  were  performing  a  patriotic 
duty  in  organizing  an  invasion  of  their  country 
even  should  their  onset  be  fatal  to  their  relatives 
and  to  their  King.  And  Louis  doubted  not  that 
he  also  did  his  duty  as  a  trustee  of  a  divine  com- 
mission when  he  in  one  month  swore,  before  the 
Assembly,  to  maintain  the  constitution  tendered 
him,  and  in  the  next  authorized  his  brother,  the 
Comte  d'Artois,  to  make  the  best  combination 
he  could  among  his  brother  sovereigns  for  the 
gathering  of  an  army  to  assert  his  divine  prerog- 
ative. On  June  21,  1791,  Louis  fled,  with  his 
whole  family,  to  join  the  army  of  Bouille,  with 
intent  to  destroy  the  entire  race  of  traitors  from 
Mirabeau  and  Lafayette  down  to  the  peasants. 


THE  SOCIAL  EQUILIBRIUM  149 

He  managed  so  ill  that  he  was  arrested  at 
Varennes,  and  brought  back  whence  he  came,  but 
he  lied  and  plotted  still. 

Two  years  had  elapsed  between  the  meeting 
of  the  States-General  and  the  flight  to  Varennes, 
and  in  that  interval  nature  had  been  busy  in 
selecting  her  new  favored  class.  Economists 
have  estimated  that  the  Church  owned  one-third 
of  the  land  of  Europe  during  the  Middle  Ages. 
However  this  may  have  been  she  certainly  held 
a  very  large  part  of  France.  On  April  16,  1790, 
the  Assembly  declared  this  territory  to  be  national 
property,  and  proceeded  to  sell  it  to  the  peasantry 
by  means  of  the  paper  assignats  which  were  issued 
for  the  purpose,  and  were  supposed  to  be  secured 
upon  the  land.  The  sales  were  generally  made 
in  little  lots,  as  the  sales  were  made  of  the  public 
domain  in  Rome  under  the  Licinian  Laws,  and 
with  an  identical  effect.  The  Emperor  of  Ger- 
many and  the  King  of  Prussia  met  at  Pilnitzin 
August,  1791,  to  consider  the  conquest  of  France, 
and,  on  the  eve  of  that  meeting,  the  Assembly 
received  a  report  which  stated  that  these  lands  to 
the  value  of  a  thousand  million  francs  had  already 
been  distributed,  and  that  sales  were  going  on. 


150       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

It  was  from  this  breed  of  liberated  husbandmen 
that  France  drew  the  soldiers  who  fought  her 
battles  and  won  her  victories  for  the  next  five 
and  twenty  years. 

Assuming  that  the  type  of  the  small  French 
landholder,  both  rural  and  urban,  had  been  pretty 
well  developed  by  the  autumn  of  1791,  the  crisis 
came  rapidly,  for  the  confiscations  which  created 
this  new  energy  roused  to  frenzy,  perhaps  the  most 
formidable  energy  which  opposed  it.  The  Church 
had  not  only  been  robbed  of  her  property  but  had 
been  wounded  hi  her  tenderest  part.  By  a  de- 
cree of  June  12,  1790,  the  Assembly  transferred 
the  allegiance  of  the  French  clergy  from  the  Pope 
to  the  state,  and  the  priesthood  everywhere  vowed 
revenge.  In  May,  1791,  the  Marquis  de  la 
Rouerie,  it  is  true,  journeyed  from  his  home  in 
Brittany  to  Germany  to  obtain  the  recognition 
of  the  royal  princes  for  the  insurrection  which 
he  contemplated  in  La  Vende*e,  but  the  insurrec- 
tion when  it  occurred  was  not  due  so  much  to 
him  or  his  kind  as  to  the  influence  of  the  non- 
juring  priests  upon  the  peasant  women  of  the 
West. 

The  mental  condition  of  the  French  emigrants 


THE  SOCIAL  EQUILIBRIUM  151 

at  Coblentz  during  this  summer  of  1791  is  nothing 
short  of  a  psychological  marvel.  They  regarded 
the  Revolution  as  a  jest,  and  the  flight  to  the  Rhine 
as  a  picnic.  These  beggared  aristocrats,  male 
and  female,  would  throw  their  money  away  by 
day  among  the  wondering  natives,  and  gamble 
among  themselves  at  night.  If  they  ever  thought 
of  the  future  it  was  only  as  the  patricians  in  Pom- 
pey's  camp  thought;  who  had  no  tune  to  prepare 
for  a  campaign  against  Caesar,  because  they  were 
absorbed  in  distributing  offices  among  themselves, 
or  in  inventing  torments  to  inflict  on  the  rebels. 
Their  chief  anxiety  was  lest  the  resistance  should 
be  too  feeble  to  permit  them  to  glut  themselves 
with  blood.  The  creatures  of  caste,  the  emigrants 
could  not  conceive  of  man  as  a  variable  animal, 
or  of  the  birth  of  a  race  of  warriors  under  their 
eyes.  To  them  human  nature  remained  con- 
stant. Such,  they  believed,  was  the  immutable 
will  of  God. 

So  it  came  to  pass  that,  as  the  Revolution  took 
its  shape,  a  vast  combination  among  the  antique 
species  came  semi-automatically  into  existence, 
pledged  to  envelop  and  strangle  the  rising  type 
of  man,  a  combination,  however,  which  only 


152       THE  THEORY  OF  SOCIAL  REVOLUTIONS 

attained  to  maturity  in  1793,  after  the  execution 
of  the  King.  Leopold  II,  Emperor  of  Germany, 
had  hitherto  been  the  chief  restraining  influence, 
both  at  Pilnitz  and  at  Paris,  through  his  corre- 
spondence with  his  sister,  Marie  Antoinette;  but 
Leopold  died  on  March  i,  1792,  and  was  suc- 
ceeded by  Francis  II,  a  fervid  reactionist  and  an 
obedient  son  of  the  Church.  Then  caste  fused 
throughout  Germany,  and  Prussia  and  Austria 
prepared  for  war.  Rouerie  had  returned  to  Brit- 
tany and  only  awaited  the  first  decisive  foreign 
success  to  stab  the  Revolution  in  the  back.  Eng- 
land also  was  ripening,  and  the  instinct  of  caste, 
incarnated  in  George  III,  found  its  expression 
through  Edmund  Burke.  In  1790  Burke  pub- 
lished his  "Reflections,"  and  on  May  6,  1791,  in  a 
passionate  outbreak  in  the  House  of  Commons, 
he  renounced  his  friendship  with  Fox  as  a  traitor 
to  his  order  and  his  God.  Men  of  Burke's  tem- 
perament appreciated  intuitively  that  there  could 
be  no  peace  between  the  rising  civilization  and  the 
old,  one  of  the  two  must  destroy  the  other,  and 
very  few  of  them  conceived  it  to  be  possible  that 
the  enfranchised  French  peasantry  and  the  small 
bourgeoisie  could  endure  the  shock  of  all  that,  in 


THE  SOCIAL  EQUILIBRIUM  153 

their  eyes,  was  intelligent,  sacred,  and  martial  in 
the  world. 

Indeed,  aristocracy  had,  perhaps,  some  justifica- 
tion for  arrogance,  since  the  revolt  in  France  fell 
to  its  lowest  depth  of  impotence  between  the 
meeting  at  Pilnitz  in  August,  1791,  and  the  reor- 
ganization of  the  Committee  of  Public  Safety  in 
July,  1793.  Until  August,  1792,  the  executive 
authority  remained  with  the  King,  but  the  court 
of  Louis  was  the  focus  of  resistance  to  the  Revolu- 
tion, and  even  though  a  quasi-prisoner  the  King 
was  still  strong.  Monarchy  had  a  firm  hold  on 
liberal  nobles  like  Mirabeau  and  Lafayette,  on 
adventurers  like  Dumouriez,  and  even  on  lawyers 
like  Danton  who  shrank  from  excessive  cruelty. 
Had  the  pure  Royalists  been  capable  of  enough 
intellectual  flexibility  to  keep  faith  upon  any 
reasonable  basis  of  compromise,  even  as  late  as 
1792,  the  Revolution  might  have  been  benign. 
In  June,  1792,  Lafayette,  who  commanded  the 
army  of  the  North,  came  to  Paris  and  not  only 
ventured  to  lecture  the  Assembly  on  its  duty,  but 
offered  to  take  Louis  to  his  army,  who  would  pro- 
tect him  against  the  Jacobins.  The  court  laughed 
at  Lafayette  as  a  Don  Quixote,  and  betrayed  his 


154       THE  THEORY  OF  SOCIAL   REVOLUTIONS 

plans  to  the  enemy.  "I  had  rather  perish,"  said 
the  Queen,  "than  be  saved  by  M.  de  Lafayette 
and  his  constitutional  friends."  And  in  this  she 
only  expressed  the  conviction  which  the  caste  to 
which  she  belonged  held  of  their  duty.  Cazale"s 
protested  to  the  Assembly,  "Though  the  King 
perish,  let  us  save  the  kingdom."  The  Arch- 
duchess Christina  wrote  to  her  sister,  Marie  An- 
toinette, "What  though  he  be  slain,  if  we  shall 
triumph,"  and  Conde,  in  December,  1790,  swore 
that  he  would  march  on  Lyons,  "come  what  might 
to  the  King." 

France  was  permeated  with  archaic  thought 
which  disorganized  the  emerging  society  until  it 
seemingly  had  no  cohesion.  To  the  French  emi- 
grant on  the  Rhine  that  society  appeared  like  a 
vile  phantom  which  had  but  to  be  exorcised  to 
vanish.  And  the  exorcism  to  which  he  had  re- 
course was  threats  of  vengeance,  threats  which 
before  had  terrified,  because  they  had  behind 
them  a  force  which  made  them  good.  Torture 
had  been  an  integral  part  of  the  old  law.  The 
peasant  expected  it  were  he  insubordinate.  Death 
alone  was  held  to  be  too  little  to  inspire  respect 
for  caste.  Some  frightful  spectacle  was  usually 


THE  SOCIAL  EQUILIBRIUM  155 

provided  to  magnify  authority.  Thus  Bouille 
broke  on  the  wheel,  while  the  men  were  yet  alive, 
every  bone  in  the  bodies  of  his  soldiers  when  they 
disobeyed  him ;  and  for  scratching  Louis  XV,  with 
a  knife,  Damiens,  after  indescribable  agonies,  was 
torn  asunder  by  horses  in  Paris,  before  an  im- 
mense multitude.  The  French  emigrants  believed 
that  they  had  only  to  threaten  with  a  similar  fate 
men  like  Kellermann  and  Hoche  to  make  them 
flee  without  a  blow.  What  chiefly  concerned 
the  nobles,  therefore,  was  not  to  evolve  a  masterly 
campaign,  but  to  propound  the  fundamental  prin- 
ciples of  monarchy,  and  to  denounce  an  awful 
retribution  on  insurgents. 

By  the  middle  of  July,  1792,  the  Prussians  were 
ready  to  march,  and  emperors,  kings,  and  generals 
were  meditating  manifestoes.  Louis  sent  the 
journalist  Mallet  du  Pan  to  the  Duke  of  Bruns- 
wick, the  commander-in-chief,  to  assist  him  in  his 
task.  On  July  24,  and  on  August  4,  1792,  the 
King  of  Prussia  laid  down  the  law  of  caste  as  em- 
phatically as  'had  the  Parliament  of  Paris  some 
twenty  years  before.  On  July  25,  the  Duke  of 
Brunswick  pronounced  the  doom  of  the  conquered. 
I  come,  said  the  King  of  Prussia,  to  prevent 


156       THE  THEORY  OF  SOCIAL   REVOLUTIONS 

the  incurable  evils  which  will  result  to  France,  to 
Europe  and  to  all  mankind  from  the  spread  of 
the  spirit  of  insubordination,  and  to  this  end  I 
shall  establish  the  monarchical  power  upon  a 
stable  basis.  For,  he  continued  hi  the  later 
proclamation,  "the  supreme  authority  in  France 
being  never  ceasing  and  indivisible,  the  King  could 
neither  be  deprived  nor  voluntarily  divest  himself 
of  any  of  the  prerogatives  of  royalty,  because  he 
is  obliged  to  transmit  them  entire  with  his  own 
crown  to  his  successors." 

The  Duke  of  Brunswick's  proclamation  con- 
tained some  clauses  written  expressly  for  him  by 
Mallet  du  Pan,  and  by  Limon  the  Royalist. 

If  the  Palace  of  the  Tuileries  be  forced,  if  the 
least  violence  be  offered  to  their  Majesties,  if 
they  are  not  immediately  set  at  liberty,  then  will 
the  King  of  Prussia  and  the  Emperor  of  Germany 
inflict  "  on  those  who  shall  deserve  it  the  most 
exemplary  and  ever-memorable  avenging  punish- 
ments." 

These  proclamations  reached  Paris  on  July  28, 
and  simultaneously  the  notorious  Fersen  wrote 
the  Queen  of  France,  "You  have  the  manifesto, 
and  you  should  be  content." 


THE  SOCIAL  EQUILIBRIUM  157 

The  court  actually  believed  that,  having  in- 
sulted and  betrayed  Lafayette  and  all  that  body 
of  conservative  opinion  which  might  have  steadied 
the  social  equilibrium,  they  could  rely  on  the 
fidelity  of  regiments  filled  with  men  against 
whom  the  emigrants  and  their  allies,  the  Prussians, 
had  just  denounced  an  agonizing  death,  such  as 
Bouille's  soldiers  had  undergone,  together  with  the 
destruction  of  their  homes. 

All  the  world  knows  what  followed.  The 
Royalists  had  been  gathering  a  garrison  for  the 
Tuileries  ever  since  Lafayette's  visit,  in  anticipa- 
tion of  a  trial  of  strength  with  the  Revolutionists. 
They  had  brought  thither  the  Swiss  guard,  fifteen 
hundred  strong;  the  palace  was  full  of  Royalist 
gentlemen;  Mandat,  who  commanded  the  Na- 
tional Guard,  had  been  gained  over.  The  ap- 
proaches were  swept  by  artillery.  The  court  was 
very  confident.  On  the  night  of  August  9,  Mandat 
was  murdered,  an  insurrectional  committee  seized 
the  City  Hall,  and  when  Louis  XVI  came  forth 
to  review  the  troops  on  the  morning  of  the  loth 
of  August,  they  shouted,  "Vive  la  Nation"  and 
deserted.  Then  the  assault  came,  the  Swiss  guard 
was  massacred,  the  Assembly  thrust  aside,  and 


158        THE  THEORY    OF  SOCIAL  REVOLUTIONS 

the  royal  family  were  seized  and  conveyed  to  the 
Temple.  There  the  monarchy  ended.  Thus  far 
had  the  irrational  opposition  of  a  moribund  type 
thrown  into  excentricity  the  social  equilibrium 
of  a  naturally  conservative  people.  They  were 
destined  to  drive  it  still  farther. 

In  this  supreme  moment,  while  the  Prussians 
were  advancing,  France  had  no  stable  government 
and  very  imperfect  means  of  keeping  order.  All 
the  fighting  men  she  could  muster  had  marched 
to  the  frontier,  and,  even  so,  only  a  demoralized 
mass  of  levies,  under  Dumouriez  and  Kellermann, 
lay  between  the  most  redoutable  regiments  of  the 
world  and  Paris.  The  emigrants  and  the  Germans 
thought  the  invasion  but  a  military  promenade. 
At  home  treason  to  the  government  hardly  cared 
to  hide  itself.  During  much  of  August  the  streets 
of  Paris  swarmed  with  Royalists  who  cursed  the 
Revolution,  and  with  priests  more  bitter  than  the 
Royalists.  Under  the  windows  of  Louis,  as  he  lay 
in  the  Temple,  there  were  cries  of  "Long  live  the 
King,"  and  in  the  prisons  themselves  the  nobles 
drank  to  the  allies  and  corresponded  with  the 
Prussians.  Finally,  Roland,  who  was  minister, 
so  far  lost  courage  that  he  proposed  to  withdraw 


THE  SOCIAL  EQUILIBRIUM  159 

beyond  the  Loire,  but  Danton  would  hear  of  no 
retreat.  "De  1'audace,"  he  cried,  "encore  de 
1'audace,  et  toujours  de  1'audace." 

The  Assembly  had  not  been  responsible  for  the 
assault  on  the  Tuileries  on  August  10,  1792. 
Filled  with  conservatives,  it  lacked  the  energy. 
That  movement  had  been  the  work  of  a  knot  of 
radicals  which  had  its  centre  in  Danton's  Club  of 
the  Cordeliers.  Under  their  impulsion  the  sec- 
tions of  Paris  chose  commissioners  who  should 
take  possession  of  the  City  Hall  and  eject  the 
loyalist  Council.  They  did  so,  and  thus  Danton 
became  for  a  season  the  Minister  of  Justice  and 
the  foremost  man  in  France.  Danton  was  a  semi- 
conservative.  His  tenure  of  power  was  the  last 
possibility  of  averting  the  Terror.  The  Royalists, 
whom  he  trusted,  themselves  betrayed  him,  and 
Danton  fell,  to  be  succeeded  by  Robespierre  and 
his  political  criminal  courts.  Meanwhile,  on 
September  20,  1792,  the  Prussian  column  recoiled 
before  the  fire  of  Kellermann's  mob  of  "vagabonds, 
cobblers  and  tailors,"  on  the  slope  of  Valmy, 
and  with  the  victory  of  Valmy,  the  great  eigh- 
teenth-century readjustment  of  the  social  equi- 
librium of  Europe  passed  into  its  secondary  stage. 


CHAPTER  V 

POLITICAL  COURTS 

IN  the  eye  of  philosophy,  perhaps  the  most 
alluring  and  yet  illusive  of  all  the  phenomena 
presented  by  civilization  is  that  which  we  have 
been  considering.  Why  should  a  type  of  mind 
which  has  developed  the  highest  prescience  when 
advancing  along  the  curve  which  has  led  it  to 
ascendancy,  be  stricken  with  fatuity  when  the 
summit  of  the  curve  is  passed,  and  when  a  mis- 
calculation touching  the  velocity  of  the  descent 
must  be  destruction? 

Although  this  phenomenon  has  appeared  pretty 
regularly,  at  certain  intervals,  in  the  development 
of  every  modern  nation,  I  conceive  its  most 
illuminating  example  to  be  that  intellectual  limi- 
tation of  caste  which,  during  the  French  Revolu- 
tion, led  to  the  creation  of  those  political  criminal 
tribunals  which  reached  perfection  with  Robes- 
pierre. 

When  coolly  examined,  at  the  distance  of  a 

160 


POLITICAL  COURTS  161 

century,  the  Royalist  combination  for  the  sup- 
pression of  equality  before  the  law,  as  finally 
evolved  in  1792,  did  not  so  much  lack  military 
intelligence,  as  it  lacked  any  approximate  compre- 
hension of  the  modern  mind.  The  Royalists 
proposed  to  reestablish  privilege,  and  to  do  this 
they  were  ready  to  immolate,  if  necessary,  their 
King  and  Queen,  and  all  of  their  own  order  who 
stayed  at  home  to  defend  them.  Indeed,  speak- 
ing generally,  they  valued  Louis  XVI,  living, 
cheaply  enough,  counting  him  a  more  considerable 
asset  if  dead.  "What  a  noise  it  would  make 
throughout  Europe,"  they  whispered  among  them- 
selves, "if  the  rabble  should  kill  the  King." 

Nor  did  Marie  Antoinette  delude  herself  on 
this  score.  At  Pilnitz,  hi  1791,  the  German 
potentates  issued  a  declaration  touching  France 
which  was  too  moderate  to  suit  the  emigrants, 
who  published  upon  it  a  commentary  of  their  own. 
This  commentary  was  so  revolting  that  when  the 
Queen  read  her  brother-in-law's  signature  ap- 
pended to  it,  she  exclaimed  —  "Cain." 

The  Royalist  plan  of  campaign  was  this :  They 
reckoned  the  energy  of  the  Revolution  so  low  that 
they  counted  pretty  confidently,  in  the  summer 


162        THE  THEORY  OF  SOCIAL   REVOLUTIONS 

of  1792,  on  the  ability  of  their  party  to  defend  the 
Tuileries  against  any  force  which  could  be  brought 
against  it;  but  assuming  that  the  Tuileries  could 
not  be  defended,  and  that  the  King  and  Queen 
should  be  massacred,  they  believed  that  their 
own  position  would  be  improved.  Their  monar- 
chical allies  would  be  thereby  violently  stimulated. 
It  was  determined,  therefore,  that,  regardless  of 
consequences  to  their  friends,  the  invading  army 
should  cross  the  border  into  Lorraine  and,  march- 
ing by  way  of  Sierk  and  Rodemach,  occupy 
Chalons.  Their  entry  into  Chalons,  which  they 
were  confident  could  not  be  held  against  them, 
because  of  the  feeling  throughout  the  country, 
was  to  be  the  signal  for  the  rising  in  Vendee  and 
Brittany  which  should  sweep  down  upon  Paris 
from  the  rear  and  make  the  capital  untenable. 
At  Chalons  the  allies  would  be  but  ninety 
miles  from  Paris,  and  then  nothing  would  remain 
but  vengeance,  and  vengeance  the  more  complete 
the  greater  the  crime  had  been. 

All  went  well  with  them  up  to  Valmy.  The 
German  advance  on  August  n,  1792,  reached 
Rodemach,  and  on  August  19,  the  bulk  of  the 
Prussian  army  crossed  the  frontier  at  Redagne. 


POLITICAL  COURTS  163 

On  August  20,  1792,  Longwy  was  invested  and 
in  three  days  capitulated.  In  the  camp  of  the 
Comte  d'Artois  "there  was  not  one  of  us,"  wrote 
Las  Casas,  "who  did  not  see  himself,  in  a  fort- 
night, triumphant,  in  his  own  home,  surrounded 
by  his  humbled  and  submissive  vassals."  At 
length  from  their  bivouacs  at  Saint-Remy  and  at 
Suippes  the  nobles  saw  in  the  distance  the  towers 
of  Chalons. 

The  panic  at  Chalons  was  so  great  that  orders 
were  given  to  cut  the  bridge  across  the  Marne, 
but  it  was  not  until  about  September  2,  that  the 
whole  peril  was  understood  at  Paris.  It  is  true 
that  for  several  weeks  the  government  had  been 
aware  that  the  West  was  agitated  and  that 
Rouerie  was  probably  conspiring  among  the 
Royalists  and  nonjuring  priests,  but  they  did  not 
appreciate  the  imminence  of  the  danger.  On 
September  3,  at  latest,  Dan  ton  certainly  heard 
the  details  of  the  plot  from  a  spy,  and  it  was 
then,  while  others  quailed,  that  he  incited 
Paris  to  audacity.  This  was  Danton's  culmina- 
tion. 

As  we  look  back,  the  weakness  of  the  Germans 
seems  to  have  been  psychological  rather  than 


164        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

physical.  At  Vaimy  the  numbers  engaged  were 
not  unequal,  and  while  the  French  were,  for  the 
most  part,  raw  and  ill-compacted  levies,  with  few 
trained  officers,  the  German  regiments  were  those 
renowned  battalions  of  Frederick  the  Great  whose 
onset,  during  the  Seven  Years'  War,  no  adversary 
had  been  able  to  endure.  Yet  these  redoubtable 
Prussians  fell  back  in  confusion  without  having 
seriously  tried  the  French  position,  and  their 
officers,  apparently,  did  not  venture  to  call  upon 
them  to  charge  again.  In  vain  the  French  gentle- 
men implored  the  Prussian  King  to  support  them 
if  they  alone  should  storm  Kellermann's  batteries. 
Under  the  advice  of  the  Duke  of  Brunswick  the 
King  decided  on  retreat.  It  is  said  that  the  Duke 
had  as  little  heart  in  the  war  as  Charles  Fox,  or, 
possibly,  Pitt,  or  as  his  own  troops.  And  yet 
he  was  so  strong  that  Dumouriez,  after  his  victory, 
hung  back  and  offered  the  invaders  free  passage 
lest  the  Germans,  if  aroused,  should  turn  on  him 
and  fight  their  way  to  the  Marne. 

To  the  emigrants  the  retreat  was  terrible.  It 
was  a  disaster  from  which,  as  a  compact  power, 
they  never  recovered.  The  rising  in  Vendee  tem- 
porarily collapsed  with  the  check  at  Chalons, 


POLITICAL  COURTS  165 

and  they  were  left  literally  naked  unto  their 
enemy.  Some  of  them  returned  to  their  homes, 
preferring  the  guillotine  to  starvation,  others, 
disguised  hi  peasants'  blouses,  tried  to  reach 
Rouerie  in  La  Vendee,  some  died  from  hardship, 
some  committed  suicide,  while  the  bulk  regained 
Liege  and  there  waited  as  suppliants  for  assist- 
ance from  Vienna.  But  these  unfortunate  men, 
who  had  entered  so  gayly  upon  a  conflict  whose 
significance  they  could  not  comprehend,  had  by 
this  time  lost  more  than  lands  and  castles.  Many 
of  them  had  lost  wives  and  children  in  one  of 
the  most  frightful  butcheries  of  history,  and  a 
butchery  for  which  they  themselves  were  respon- 
sible, because  it  was  the  inevitable  and  logical 
effect  of  their  own  intellectual  limitations. 

When,  after  the  affair  of  August  10,  Danton 
and  his  party  became  masters  of  the  incipient 
republic,  Paris  lay  between  two  perils  whose  rela- 
tive magnitude  no  one  could  measure.  If  Chalons 
fell,  Vendee  would  rise,  and  the  Republicans  of 
the  West  would  be  massacred.  Five  months  later 
Vendee  did  rise,  and  at  Machecoul  the  patriots 
were  slaughtered  amidst  nameless  atrocities, 
largely  at  the  instigation  of  the  priests.  In 


166        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

March,  1793,  one  hundred  thousand  peasants 
were  under  arms. 

Clearly  the  West  could  not  be  denuded  of 
troops,  and  yet,  if  Chalons  were  to  be  made  good, 
every  available  man  had  to  be  hurried  to  Keller- 
mann,  and  this  gigantic  effort  fell  to  the  lot  of  a 
body  of  young  and  inexperienced  adventurers 
who  formed  what  could  hardly  be  dignified  with 
the  name  of  an  organized  administration. 

For  a  long  time  Marat,  with  whom  Danton 
had  been  obliged  to  coalesce,  had  been  insisting 
that,  if  the  enemy  were  to  be  resisted  on  the 
frontier,  Paris  must  first  be  purged,  for  Paris 
swarmed  with  Royalists  wild  for  revenge,  and 
who  were  known  to  be  arming.  Danton  was  not 
yet  prepared  for  extermination.  He  instituted 
domiciliary  visits.  He  made  about  three  thou- 
sand arrests  and  seized  a  quantity  of  muskets, 
but  he  liberated  most  of  those  who  were  under 
suspicion.  The  crisis  only  came  with  the  news, 
on  September  2,  of  the  investment  of  Verdun, 
when  no  one  longer  could  doubt  that  the  net 
was  closing  about  Paris.  Verdun  was  but  three 
or  four  days'  march  from  Chalons.  When  the 
Duke  of  Brunswick  crossed  the  Marne  and 


POLITICAL  COURTS  167 

Brittany  revolted,  the  government  would  have 
to  flee,  as  Roland  proposed,  and  then  the  Royalists 
would  burst  the  gates  of  the  prisons  and  there 
would  be  another  Saint  Bartholomew. 

Toward  four  o'clock  in  the  afternoon  of  Sep- 
tember 2,  1792,  the  prison  of  the  Abbaye  was 
forced  and  the  massacres  began.  They  lasted 
until  September  6,  and  through  a  circular  sent 
out  by  Marat  they  were  extended  to  Lyons,  to 
Reims,  and  to  other  cities.  About  1600  prisoners 
were  murdered  in  Paris  alone.  Hardly  any  one 
has  ever  defended  those  slaughters.  Even  Marat 
called  them  "disastrous,"  and  yet  no  one  inter- 
fered. Neither  Danton,  nor  Roland,  nor  the 
Assembly,  nor  the  National  Guard,  nor  the  City 
of  Paris,  although  the  two  or  three  hundred 
ruffians  who  did  the  work  could  have  been  dis- 
persed by  a  single  company  of  resolute  men,  had 
society  so  willed  it.  When  Robespierre's  time 
came  he  fell  almost  automatically.  Though  the 
head  of  the  despotic  "Committee  of  Public 
Safety,"  and  nominally  the  most  powerful  man 
in  France,  he  was  sent  to  execution  like  the  vilest 
and  most  contemptible  of  criminals  by  adver- 
saries who  would  not  command  a  regiment. 


168        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

The  inference  is  that  the  September  massacres, 
which  have  ever  since  been  stigmatized  as  the 
deepest  stain  upon  the  Revolution,  were,  veri- 
tably, due  to  the  Royalists,  who  made  with  the 
Republicans  an  issue  of  self-preservation.  For 
this  was  no  common  war.  In  Royalist  eyes  it 
was  a  servile  revolt,  and  was  to  be  treated  as 
servile  revolts  during  the  Middle  Ages  had  always 
been  treated.  Again  and  again,  with  all  solem- 
nity, the  Royalists  had  declared  that  were  they 
to  return  as  conquerors  no  stone  of  Paris  should 
be  left  standing  on  another,  and  that  the  inhabi- 
tants should  expire  in  the  ashes  of  their  homes  on 
the  rack  and  the  wheel. 

Though  Danton  had  many  and  obvious  weak- 
nesses he  was  a  good  lawyer,  and  Danton  per- 
ceived that  though  he  might  not  have  been  able 
to  prevent  the  September  massacres,  and  although 
they  might  have  been  and  probably  were  in- 
evitable under  the  tension  which  prevailed,  yet 
that  any  court,  even  a  political  court,  would  be 
better  than  Marat's  mob.  Some  months  later  he 
explained  his  position  to  the  Convention  when  it 
was  considering  the  erection  of  the  tribunal 
which  finally  sent  Danton  himself  to  the  scaffold. 


POLITICAL  COURTS  169 

"Nothing  is  more  difficult  than  to  define  a  polit- 
ical crime.  But,  if  a  simple  citizen,  for  any  or- 
dinary crime,  receives  immediate  punishment,  if 
it  is  so  difficult  to  reach  a  political  crime,  is  it 
not  necessary  that  extraordinary  laws  ...  in- 
timidate the  rebels  and  reach  the  culpable? 
Here  public  safety  requires  strong  remedies  and 
terrible  measures.  I  see  no  compromise  between 
ordinary  forms  and  a  revolutionary  tribunal. 
History  attests  this  truth;  and  since  members 
have  dared  in  this  assembly  to  refer  to  those 
bloody  days  which  every  good  citizen  has  la- 
mented, I  say  that,  if  such  a  tribunal  had  then 
existed,  the  people  who  have  been  so  often  and 
so  cruelly  reproached  for  them,  would  never  have 
stained  them  with  blood ;  I  say,  and  I  shall  have 
the  assent  of  all  who  have  watched  these  move- 
ments, that  no  human  power  could  have  checked 
the  outburst  of  the  national  vengeance." 

In  this  perversion  of  the  courts  lay,  as  I  under- 
stand it,  the  foulest  horror  of  the  French  Revolu- 
tion. It  was  the  effect  of  the  rigidity  of  privilege, 
a  rigidity  which  found  its  incarnation  in  the  judi- 
ciary. The  constitutional  decisions  of  the  par- 
liaments under  the  old  regime  would  alone  have 


170        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

made  their  continuance  impossible,  but  the 
worst  evil  was  that,  after  the  shell  crumbled,  the 
mind  within  the  shell  survived,  and  discredited 
the  whole  regular  administration  of  justice. 
When  the  National  Assembly  came  to  examine 
grievances  it  found  protests  against  the  judicial 
system  from  every  corner  of  France,  and  it  re- 
ferred these  petitions  to  a  committee  which  re- 
ported in  August,  1789.  Setting  aside  the  cen- 
tralization and  consolidation  of  the  system  as 
being,  for  us,  immaterial,  the  committee  laid 
down  four  leading  principles  of  reform.  First, 
purchase  of  place  should  be  abolished,  and  judicial 
office  should  be  recognized  as  a  public  trust. 
Second,  judges  should  be  confined  to  applying, 
and  restrained  from  interpreting,  the  law.  That 
is  to  say,  the  judges  should  be  forbidden  to  legis- 
late. Third,  the  judges  should  be  brought  into 
harmony  with  public  opinion  by  permitting  the 
people  to  participate  in  their  appointment. 
Fourth,  the  tendency  toward  rigor  in  criminal 
cases,  which  had  become  a  scandal  under  the  old 
regime,  should  be  tempered  by  the  introduction 
of  the  jury.  Bergasse  proposed  that  judicial 
appointments  should  be  made  by  the  executive 


POLITICAL   COURTS  171 

from  among  three  candidates  selected  by  the 
provincial  assemblies.  After  long  and  very  re- 
markable debates  the  plan  was,  in  substance, 
adopted  in  May,  1790,  except  that  the  Assembly 
decided,  by  a  majority  of  503  to  450,  that  the 
judges  should  be  elected  by  the  people  for  a  term 
of  six  years,  without  executive  interference.  In 
the  debate  Cazales  represented  the  conservatives, 
Mirabeau  the  liberals.  The  vote  was  a  test  vote 
and  shows  how  strong  the  conservatives  were  in 
the  Assembly  up  to  the  reorganization  of  the 
Clergy  in  July,  1790,  and  the  electoral  assemblies 
of  the  districts,  which  selected  the  judges,  seem, 
on  the  whole,  to  have  been  rather  more  conserva- 
tive than  the  Assembly.  In  the  election  not  a 
sixth  of  those  who  were  enfranchised  voted  for 
the  delegates  who,  in  turn,  chose  the  judges,  and 
these  delegates  were  usually  either  eminent  lawyers 
themselves,  or  wealthy  merchants,  or  men  of 
letters.  The  result  was  a  bench  not  differing 
much  from  an  old  parliament,  and  equally  in- 
capable of  understanding  the  convulsion  about 
them. 

Installed  early  in  1791,  not  a  year  elapsed  before 
these  magistrates  became  as  ill  at  ease  as  had 


172        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

been  those  whom  they  displaced,  and  in  March, 
1792,  Jean  Debry  formally  demanded  their  recall, 
although  their  terms  properly  were  to  expire  in 
1796.  During  the  summer  of  1792  they  sank 
into  contempt  and,  after  the  massacres,  the  Legis- 
lative Assembly,  just  before  its  dissolution,  pro- 
vided for  a  new  constituency  for  the  judicial  elec- 
tions. This  they  degraded  so  far  that,  out  of 
fifty-one  magistrates  to  be  chosen  in  Paris,  only 
twelve  were  professionally  trained.  Nor  did  the 
new  courts  inspire  respect.  After  the  loth  of 
August  one  or  two  special  tribunals  were  organ- 
ized to  try  the  Swiss  Guard  who  surrendered  in 
the  Palace,  and  other  political  offenders,  but 
these  proved  to  be  so  ineffective  that  Marat 
thrust  them  aside,  and  substituted  for  them  his 
gangs  of  murderers.  No  true  and  permanent 
political  court  was  evolved  before  Danton  had  to 
deal  with  the  treason  of  Dumouriez,  nor  was  this 
tribunal  perfected  before  Danton  gave  way  to 
the  Committee  of  Public  Safety,  when  French 
revolutionary  society  became  incandescent, 
through  universal  attack  from  without  and  through 
insurrection  within. 

Danton,  though  an  orator  and  a  lawyer,  pos- 


POLITICAL  COURTS  173 

sibly  even  a  statesman,  was  not  competent  to 
cope  with  an  emergency  which  exacted  from  a 
minister  administrative  genius  like  that  of  Car- 
not.  Danton's  story  may  be  briefly  told.  At 
once  after  Valmy  the  Convention  established  the 
Republic;  on  January  21,  1793,  Louis  was  be- 
headed; and  between  these  two  events  a  new 
movement  had  occurred.  The  Revolutionists  felt 
intuitively  that,  if  they  remained  shut  up  at  home, 
with  enemies  without  and  traitors  within,  they 
would  be  lost.  If  the  new  ideas  were  sound  they 
would  spread,  and  Valmy  had  proved  to  them 
that  those  ideas  had  already  weakened  the  invad- 
ing armies.  Danton  declared  for  the  natural 
boundaries  of  France,  —  the  Rhine,  the  Alps,  and 
the  ocean,  —  and  the  Convention,  on  January  29, 
1 793,  threw  Dumouriez  on  Holland.  This  provoked 
war  with  England,  and  then  north,  south,  and 
east  the  coalition  was  complete.  It  represented 
at  least  half  a  million  fighting  men.  Danton, 
having  no  military  knowledge  or  experience,  fixed 
his  hopes  on  Dumouriez.  To  Danton,  Dumouriez 
was  the  only  man  who  could  save  France.  On 
November  6,  1792,  Dumouriez  defeated  the  Aus- 
trians  at  Jemmapes;  on  the  i4th,  he  entered 


174        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

Brussels,  and  Belgium  lay  helpless  before  him. 
On  the  question  of  the  treatment  of  Belgium,  the 
schism  began  which  ended  with  his  desertion. 
Dumouriez  was  a  conservative  who  plotted  for  a 
royal  restoration  under,  perhaps,  Louis  Philippe. 
The  Convention,  on  the  contrary,  determined  to 
revolutionize  Belgium,  as  France  had  been  revolu- 
tionized, and  to  this  end  Cambon  proposed  to 
confiscate  and  sell  church  land  and  emit  assignats. 
Danton  visited  Dumouriez  to  attempt  to  pacify 
him,  but  found  him  deeply  exasperated.  Had 
Danton  been  more  sagacious  he  would  have  been 
suspicious.  Unfortunately  for  him  he  left  Du- 
mouriez in  command.  In  February,  Dumouriez 
invaded  Holland  and  was  repulsed,  and  he  then 
fell  back  to  Brussels,  not  strong  enough  to  march 
to  Paris  without  support,  it  is  true,  but  probably 
expecting  to  be  strong  enough  as  soon  as  the  Ven- 
dean  insurrection  came  to  a  head.  Doubtless  he 
had  relations  with  the  rebels.  At  all  events,  on 
March  10,  the  insurrection  began  with  the  mas- 
sacre of  Machecoul,  and  on  March  12,  1793,  Du- 
mouriez wrote  a  letter  to  the  Convention  which 
was  equivalent  to  a  declaration  of  war.  He  then 
tried  to  corrupt  his  army,  but  failed,  and  on 


POLITICAL  COURTS  175 

April  4,  1793,  fled  to  the  Austrians.  Meanwhile, 
La  Vendee  was  in  flames.  To  appreciate  the  situa- 
tion one  must  read  Carnot's  account  of  the  border 
during  these  weeks  when  he  alone,  probably, 
averted  some  grave  disaster.  For  my  purpose  it 
suffices  to  say  that  the  pressure  was  intense,  and 
that  this  intense  pressure  brought  forth  the 
Revolutionary  Tribunal,  or  the  political  court. 

On  March  10,  1793,  the  Convention  passed  a 
decree  constituting  a  court  of  five  judges  and  a 
jury,  to  be  elected  by  the  Convention.  To  these 
was  joined  a  public  prosecutor.  Fouquier-Tin- 
ville  afterward  attained  to  a  sombre  fame  in 
this  position.  Six  members  of  the  Convention 
were  to  sit  as  a  commission  to  supervise  drawing 
the  indictments,  the  preparation  of  evidence,  and 
also  to  advise  the  prosecutor.  The  punishments, 
under  the  limitations  of  the  Penal  Code  and  other 
criminal  laws,  were  to  be  within  the  discretion  of 
the  court,  whose  judgments  were  to  be  final.1 
Death  was  accompanied  by  confiscation  of 
property. 

Considering  that  this  was  an  extraordinary 
tribunal,  working  under  extreme  tension,  which 

1  Histoire  du  Tribunal  Revolulionaire  de  Paris,  H.  VVallon,  i,  57. 


1 76        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

tried  persons  against  whom  usually  the  evidence 
was  pretty  conclusive,  its  record  for  the  first  six 
months  was  not  discreditable.  Between  April  6 
and  September  21,  1793,  it  rendered  sixty-three 
sentences  of  death,  thirteen  of  transportation,  and 
thirty-eight  acquittals.  The  trials  were  held  pa- 
tiently, testimony  was  heard,  and  the  juries  duly 
deliberated.  Nevertheless  the  Terror  deepened 
as  the  stress  upon  the  new-born  republic  in- 
creased. Nothing  more  awful  can  be  imagined 
than  the  ordeal  which  France  endured  between 
the  meeting  of  the  Convention  in  September,  1792, 
and  the  completion  of  the  Committee  of  Public 
Safety  in  August,  1793.  Hemmed  in  by  enemies, 
the  revolution  glowed  in  Paris  like  molten  lava, 
while  yet  it  was  torn  by  faction.  Conservative 
opinion  was  represented  by  the  Girondists,  rad- 
ical opinion  by  the  Mountain,  and  between  the  two 
lay  the  Plain,  or  the  majority  of  the  Conven- 
tion, who  embodied  the  social  centre  of  gravity. 
As  this  central  mass  swayed,  so  did  supremacy 
incline.  The  movement  was  as  accurate  as  that 
of  any  scientific  instrument  for  registering  any 
strain.  Dumouriez's  treason  hi  April  left  the 
northern  frontier  open,  save  for  a  few  fortresses 


POLITICAL  COURTS  177 

which  still  held  out.  When  those  should  fall 
the  enemy  could  make  a  junction  with  the  rebels 
in  Vendee.  Still  the  Girondists  kept  control, 
and  even  elected  Isnard,  the  most  violent  among 
them,  President  of  the  Convention.  Then  they  had 
the  temerity  to  arrest  a  member  of  the  Commune 
of  Paris,  which  was  the  focus  of  radicalism.  That 
act  precipitated  the  struggle  for  survival  and  with 
it  came  the  change  in  equilibrium.  On  June  2, 
Paris  heard  of  the  revolt  of  Lyons  and  of  the 
massacre  of  the  patriots.  The  same  day  the  Sec- 
tions invaded  the  Convention  and  expelled  from 
their  seats  in  the  Tuileries  twenty-seven  Girondists. 
The  Plain  or  Centre  now  leant  toward  the  Moun- 
tain, and,  on  July  10,  the  Committee  of  Public 
Safety,  which  had  been  first  organized  on  April 
6,  1793,  directly  after  Dumouriez's  treason,  was 
reorganized  by  the  adition  of  men  like  Saint- Just 
and  Couthon,  with  Prieur,  a  lawyer  of  ability  and 
energy,  for  President.  On  July  12,  1793,  the 
Austrians  took  Conde,  and  on  July  28,  Valen- 
ciennes; while  on  July  25,  Kleber,  starving,  sur- 
rendered Mayence.  Nothing  now  but  their  own 
inertia  stood  between  the  allies  and  La  Vend6e. 
Thither  indeed  Kellermann's  men  were  sent,  since 


178        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

they  had  promised  not  to  serve  against  the  coali- 
tion for  a  year,  but  even  of  these  a  division  was 
surrounded  and  cut  to  pieces  in  the  disaster  of 
Torfou.  A  most  ferocious  civil  war  soon  raged 
throughout  France.  Caen,  Bordeaux,  Lyons, 
Marseilles,  declared  against  the  Convention.  The 
whole  of  the  northwest  was  drenched  in  blood  by 
the  Chouans.  Sixty  departments  were  in  arms. 
On  August  28  the  Royalists  surrendered  Toulon 
to  the  English,  who  blockaded  the  coasts  and 
supplied  the  needs  of  the  rebels.  About  Paris 
the  people  were  actually  starving.  On  July  27 
Robespierre  entered  the  Committee  of  Safety; 
Carnot,  on  August  14.  This  famous  committee 
was  a  council  of  ten  forming  a  pure  dictatorship. 
On  August  1 6,  the  Convention  decreed  the  Levee 
en  Masse. 

When  Carnot  became  Minister  of  War  to  this 
dictatorship  the  Republic  had  479,000  demor- 
alized soldiers  with  the  colors,  under  beaten  and 
discredited  commanders.  Bouille  had  conspired 
against  the  States- General,  Lafayette  against  the 
Legislative  Assembly,  and  Dumouriez  against  the 
Convention.  One  year  from  that  time  it  had 
a  superb  force,  732,000  strong,  commanded  by 


POLITICAL  COURTS  179 

Jourdan  and  Pichegru,  Hoche,  Moreau,  and  Bo- 
naparte. Above  all  Carnot  loved  Hoche.  Up  to 
Valmy  the  old  regular  army,  however  shaken, 
had  remained  as  a  core.  Then  it  became  merged  in 
a  mass  of  volunteers,  and  these  volunteers  had 
to  be  armed  and  disciplined  and  fed  and  led 
against  the  greatest  and  strongest  coalition  which 
the  modern  world  had  ever  seen.  France,  under 
Carnot,  became  a  vast  workshop.  Its  most 
eminent  scientific  men  taught  the  people  how  to 
gather  saltpetre  and  the  government  how  to 
manufacture  powder  and  artillery.  Horses  had 
to  be  obtained.  Carnot  was  as  reckless  of  himself 
as  of  others.  He  knew  no  rest.  There  was  that 
to  be  done  which  had  to  be  done  quickly  and  at 
any  cost;  there  was  that  or  annihilation. 

On  October  21,  1794,  when  the  people  had 
gathered  in  the  Champ  de  Mars  to  celebrate  the 
Festival  of  Victories,  after  the  President  of  the 
Convention  had  proclaimed  that  the  Republic 
had  been  delivered,  Carnot  announced  what  had 
been  accomplished. 

France  had  won  twenty-seven  victories,  of  which 
eight  had  been  pitched  battles. 

One  hundred  and  twenty  lesser  combats. 


l8o        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

France  had  killed  eighty  thousand  enemies. 

Had  taken  ninety-one  thousand  prisoners. 

Also  one  hundred  and  sixteen  places  or  towns, 
six  after  siege. 

Two  hundred  and  thirty  forts  or  redoubts. 

Three  thousand  eight  hundred  cannon. 

Seventy  thousand  muskets. 

Ninety  flags. 

As  Benjamin  Constant  has  observed,  nothing 
can  change  the  stupendous  fact  "that  the  Conven- 
tion found  the  enemy  at  thirty  leagues  from  Paris, 
.  .  .  and  made  peace  at  thirty  leagues  from 
Vienna." 

Under  the  stimulus  of  a  change  in  enviroment 
a  new  type  of  mind  is  apt  to  expand  with  something 
of  this  resistless  energy.  It  did  so  in  the  Reforma- 
tion. It  may  be  said  almost  invariably  to  do  so, 
when  decay  does  not  supervene,  and  it  now  con- 
cerns us  to  consider,  in  some  rough  way,  what  the 
cost  to  the  sinking  class  of  attempting  repression 
may  be,  when  it  miscalculates  its  power  hi  such 
an  emergency. 

I  take  it  to  be  tolerably  clear  that,  if  the  French 
privileged  classes  had  accepted  the  reforms  of 
Turgot  in  good  faith,  and  thus  had  spread  the 


POLITICAL  COURTS  181 

movement  of  the  revolution  over  a  generation, 
there  would  have  been  no  civil  war  and  no  confisca- 
tions, save  confiscations  of  ecclesiastical  property. 
I  take  it  also  that  there  would  have  been  no 
massacres  and  no  revolutionary  tribunals,  if  France 
in  1793  had  fought  foreign  enemies  alone,  as  Eng- 
land did  in  1688.  Even  as  it  was  the  courts  did 
not  grow  thoroughly  political  until  the  preserva- 
tion of  the  new  type  of  mind  came  to  hinge  largely 
on  the  extermination  of  the  old.  Danton's  first 
and  relatively  benign  revolutionary  tribunal,  es- 
tablished in  March,  1793,  was  reorganized  by  the 
Committee  of  Public  Safety  in  the  following 
autumn,  by  a  series  of  decrees  of  which  the  most 
celebrated  is  that  of  September  17,  touching 
suspected  persons.  By  these  decrees  the  tribunal 
was  enlarged  so  that,  in  the  words  of  Danton, 
every  day  an  aristocratic  head  might  fall.  The 
committee  presented  a  list  of  judges,  and  the 
object  of  the  law  was  to  make  the  possession 
of  a  reactionary  mind  a  capital  offence.  It  is 
only  in  extreme  exigencies  that  pure  thinking  by 
a  single  person  becomes  a  crime.  Ordinarily,  a 
crime  consists  of  a  malicious  thought  coupled 
with  an  overt  act,  but  in  periods  of  high  tension, 


182        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

the  harboring  of  any  given  thought  becomes 
criminal.  Usually  during  civil  wars  test  oaths  are 
tendered  to  suspected  persons  to  discover  their 
loyalty.  For  several  centuries  the  Church  habit- 
ually burnt  alive  all  those  who  denied  the  test 
dogma  of  transubstantiation,  and  during  the 
worst  spasm  of  the  French  Revolution  to  believe  in 
the  principle  of  monarchy  and  privilege  was  made 
capital  with  confiscation  of  property. 

The  question  which  the  Convention  had  to  meet 
was  how  to  establish  the  existence  of  a  criminal 
mind,  when  nothing  tangible  indicated  it.  The 
old  regime  had  tortured.  To  prove  heresy  the 
Church  also  had  always  used  torture.  The 
Revolution  proceeded  more  mildly.  It  acted  on 
suspicion.  The  process  was  simple.  The  Com- 
mittee, of  whom  in  this  department  Robespierre 
was  the  chief,  made  lists  of  those  who  were  to  be 
condemned.  There  came  to  >be  finally  almost  a 
complete  absence  of  forms.  No  evidence  was 
necessarily  heard.  The  accused,  if  inconvenient, 
was  not  allowed  to  speak.  If  there  were  doubt 
touching  the  probability  of  conviction,  pressure 
was  put  upon  the  court.  I  give  one  or  two  ex- 
amples :  SceUier,  the  senior  associate  judge  of 


POLITICAL  COURTS  183 

the  tribunal,  appears  to  have  been  a  good  lawyer 
and  a  fairly  worthy  man.  One  day  in  February, 
1794,  Scellier  was  at  dinner  with  Robespierre, 
when  Robespierre  complained  of  the  delays  of  the 
court.  Scellier  replied  that  without  the  observ- 
ance of  forms  there  could  be  no  safety  for  the 
innocent.  "Bah!"  replied  Robespierre,  —  "you 
and  your  forms :  wait ;  soon  the  Committee  will 
obtain  a  law  which  will  suppress  forms,  and  then 
we  shall  see."  Scellier  ventured  no  answer.  Such 
a  law  was  drafted  by  Couthon  and  actually  passed 
on  22  Prairial  (June  10,  1794),  and  yet  it  altered 
little  the  methods  of  Fouquier-Tinville  as  prose- 
cuting officer.  Scellier  having  complained  of  this 
law  of  Prairial  to  Saint- Just,  Saint- Just  replied 
that  if  he  were  to  report  his  words,  or  that  he  was 
flinching,  to  the  Committee,  Scellier  would  be 
arrested.  As  arrest  was  tantamount  to  sentence 
of  death,  Scellier  continued  his  work. 

Without  reasoning  the  subject  out  logically 
from  premise  to  conclusion,  or  being,  of  course, 
capable  of  doing  so  in  the  mass,  Frenchmen  had 
collectively  received  the  intuition  that  everything 
must  be  endured  for  a  strong  government,  and 
that  whatever  obstructed  that  government  must 


184        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

be  eliminated.  For  the  process  of  elimination 
they  used  the  courts.  Under  the  conditions  in 
which  they  were  placed  by  the  domestic  enemy, 
they  had  little  alternative.  If  a  political  party 
opposed  the  Dictatorship  in  the  Convention,  that 
party  must  be  broken  down ;  if  a  man  seemed 
likely  to  become  a  rival  for  the  Dictatorship,  that 
man  must  be  removed ;  all  who  conspired  against 
the  Republic  must  be  destroyed  as  ruthlessly  at 
home  as  on  the  battle-field.  The  Republic  was 
insolvent,  and  must  have  money,  as  it  must  have 
men.  If  the  government  needed  men,  it  took 
them,  —  all.  If  it  needed  money,  and  a  man  were 
rich,  it  did  not  hesitate  to  execute  him  and  con- 
fiscate his  property.  There  are  very  famous  ex- 
amples of  all  these  phenomena  strewn  through 
the  history  of  the  Terror. 

The  Girondists  were  liberals.  They  always 
had  been  liberals;  they  had  never  conspired 
against  the  Republic ;  but  they  were  impracticable. 
The  ablest  of  them,  Vergniaud,  complained  before 
the  Tribunal,  that  he  was  being  tried  for  what  he 
thought,  not  for  what  he  had  done.  This  the 
government  denied,  but  it  was  true.  Nay,  more ; 
he  was  tried  not  for  positive  but  for  negative 


POLITICAL  COURTS  185 

opinions,  and  he  was  convicted  and  executed,  and 
his  friends  were  convicted  and  executed  with  him, 
because,  had  they  remained  in  the  Convention, 
the  Dictatorship,  through  their  opposition,  would 
have  lost  its  energy.  Also  the  form  of  the  con- 
viction was  shocking  in  the  extreme.  The  de- 
fence of  these  twenty-one  men  was,  practically, 
suppressed,  and  the  jury  were  directed  to  bring 
in  a  verdict  of  guilty.  Still  the  prosecutions 
of  the  Girondists  stopped  here.  When  they  re- 
frained from  obstruction,  they  were  spared. 

Danton  and  his  friends  may  have  been,  and 
probably  were,  whether  intentionally  or  by  force 
of  circumstances,  a  menace  to  the  Dictatorship. 
Either  Robespierre  or  Danton  had  to  be  eliminated. 
There  was  not  room  for  both.  On  April  i,  1793, 
Danton,  Camille  Desmoulins,  and  others  were 
arrested  on  a  warrant  signed  by  such  men  as  Cam- 
baceres,  Carnot,  and  Prieur.  Carnot  in  particular 
was  a  soldier  of  the  highest  character  and  genius. 
He  would  have  signed  no  such  warrant  had  he  not 
thought  the  emergency  pressing.  Nor  was  the 
risk  small.  Danton  was  so  popular  and  so  strong 
before  a  jury  that  the  government  appears 
to  have  distrusted  even  Fouquier-Tinville,  for 


186        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

an  order  was  given,  and  held  in  suspense,  ap- 
parently to  Henriot,  to  arrest  the  President  and 
the  Public  Prosecutor  of  the  Revolutionary  Tri- 
bunal, on  the  day  of  Danton's  trial. 

Under  such  a  stimulant  Fouquier  did  his  best, 
but  he  felt  himself  to  be  beaten.  Examining 
Cambon,  Danton  broke  out:  "Do  you  believe 
us  to  be  conspirators  ?  Look,  he  laughs,  he  don't 
believe  it.  Record  that  he  has  laughed."  Fou- 
quier was  at  his  wits'  end.  If  the  next  day  the 
jury  were  asked  if  they  had  heard  enough,  and 
they  answered,  "No,"  there  would  be  an  acquittal, 
and  then  Fouquier's  own  head  would  roll  into  the 
basket.  Probably  there  might  even  be  insurrec- 
tion. Fouquier  wrote  to  the  Committee  that  they 
must  obtain  from  the  Convention  a  decree  silencing 
the  defence.  So  grave  was  the  crisis  felt  to  be 
that  the  decree  was  unanimously  voted.  When 
Fouquier  heard  that  the  decree  was  on  its  way,  he 
said,  with  a  sigh  of  relief,  —  "Faith,  we  need  it." 
But  when  it  was  read,  Danton  sprung  to  his  feet, 
raging,  declaring  that  the  public  cried  out  treason 
upon  it.  The  President  adjourned  the  court  while 
the  hall  resounded  with  the  protests  of  the  de- 
fendants and  the  shouts  of  the  police  as  they  tore 


POLITICAL  COURTS  187 

the  condemned  from  the  benches  which  they 
clutched  and  dragged  them  through  the  corridors 
toward  the  prison.  They  emerged  no  more  until 
they  mounted  the  carts  which  took  them  to  the 
scaffold. 

Nor  was  it  safe  to  hesitate  if  one  were  attached 
to  this  court.  Fouquier  had  a  clerk  named  Paris- 
Fabricius.  Now  Paris  had  been  a  friend  of  Danton 
and  took  his  condemnation  to  heart.  He  even 
declined  to  sign  the  judgment,  which  it  was  his 
duty  to  do.  The  next  day,  when  he  presented 
himself  to  Fouquier,  Fouquier  looked  at  him 
sourly,  and  observed,  "We  don't  want  men  who 
reason  here;  we  want  business  done."  The 
following  morning  Paris  did  not  appear.  His 
friends  were  disturbed,  but  he  was  not  to  be  found. 
He  had  been  cast  into  a  secret  dungeon  in  the 
prison  of  the  Luxembourg. 

So,  if  a  man  were  too  rich  it  might  go  hard  with 
him.  Louis-Philippe-Joseph,  Due  d' Orleans,  after- 
ward known  as  Egalite,  was  one  of  the  most 
interesting  figures  among  the  old  nobility.  The 
great-great-great-grandson  of  Louis  XIII,  he  was  a 
distant  cousin  of  Louis  XVI,  and  ranked  as  the 
first  noble  of  France  beyond  the  royal  family. 


1 88        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

His  education  had  been  unfortunate.  His  father 
lived  with  a  ballet-dancer,  while  his  mother,  the 
Princess  Henriette  de  Bourbon- Conti,  scandalized 
a  society  which  was  not  easily  shocked.  During 
the  Terror  the  sans-culottes  everywhere  averred 
that  the  Duke  was  the  son  of  a  coachman  in  the 
service  of  the  banker  Duruet.  Doubtless  this 
was  false,  but  the  princess  had  abundant  liaisons 
not  much  more  reputable.  Left  to  himself  at 
sixteen  years  old,  Egalite  led  a  life  of  extreme 
profligacy,  but  he  married  one  of  the  most  beauti- 
ful and  charming  women  of  the  age,  whom  he 
succeeded  in  inspiring  with  a  devoted  affection. 
Born  in  1747,  his  father  died  in  1785,  leaving  him, 
just  at  the  outbreak  of  the  Revolution,  the  master 
of  enormous  wealth,  and  the  father  of  three  sons 
who  adored  him.  The  eldest  of  these  was  the 
future  king,  Louis-Philippe.  The  man  must 
have  had  good  in  him  to  have  been  loved  as  he  was 
throughout  life.  He  was  besides  more  intelligent 
touching  the  Revolution  and  its  meaning  than 
any  man  approaching  him  in  rank  in  France.  The 
Duke,  when  a  young  man,  served  with  credit  in 
the  navy,  but  after  the  battle  of  Ushant,  in  1778, 
where  he  commanded  the  blue  squadron,  he  was 


POLITICAL  COURTS  189 

received  with  such  enthusiasm  in  Paris,  that 
Marie-Antoinette  obtained  his  dismissal  from  the 
service.  From  this  period  he  withdrew  from 
court  and  his  opposition  to  the  government  be- 
gan. He  adopted  republican  ideas,  which  he  drew 
from  America,  and  he  educated  his  children  as 
democrats.  In  1789  he  was  elected  to  the  States- 
General,  where  he  supported  the  fusion  of  the 
orders,  and  attained  to  a  popularity  which,  on 
one  occasion,  according  to  Madame  de  Campan, 
nearly,  made  the  Queen  faint  from  rage  and  grief. 
It  was  from  the  garden  of  his  palace  of  the  Palais 
Royal  that  the  column  marched  on  July  14, 
wearing  his  colors,  the  red,  white  and  blue,  to 
storm  the  Bastille.  It  seemed  that  he  had  only 
to  go  on  resolutely  to  thrust  the  King  aside  and 
become  the  ruler  of  France.  He  made  no  effort 
to  do  so.  Mirabeau  is  said  to  have  been  disgusted 
with  his  lack  of  ambition.  He  was  charitable 
also,  and  spent  very  large  sums  of  money  among 
the  poor  of  Paris  during  the  years  of  distress 
which  followed  upon  the  social  disorders.  The 
breach  with  the  court,  however,  became  steadily 
wider,  and  finally  he  adhered  to  the  party  of 
Danton  and  voted  for  the  condemnation  of  the 


IQO        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

King.  He  sent  two  of  his  sons  to  serve  in  the 
army.  The  elder  was  still  with  Dumouriez  at 
the  time  of  his  treason.  On  April  6,  1793,  when 
Dumouriez's  treachery  had  become  known,  the 
Assembly  ordered  the  arrest  of  the  whole  Bourbon 
family,  and  among  them  the  Duke  was  appre- 
hended and  sent  to  Marseilles. 

Thus  it  appears  that  whatever  complaint  his 
own  order  may  have  had  against  Egalite,  the 
Republic  certainly  had  none.  No  man  could  have 
done  more  for  modern  France  than  he.  He  aban- 
doned his  class,  renounced  his  name,  gave  his 
money,  sent  his  sons  to  the  war,  and  voted  for 
his  own  relative's  death.  No  one  feared  him, 
and  yet  Robespierre  had  him  brought  to  Paris 
and  guillotined.  His  trial  was  a  form.  Fouquier 
admitted  that  he  had  been  condemned  before  he 
left  Marseilles.  The  Duke  was,  however,  very 
rich  and  the  government  needed  his  money. 
Every  one  understood  the  situation.  He  was 
told  of  the  order  for  his  arrest  one  night  when  at 
supper  in  his  palace  in  Paris  with  his  friend 
Monsieur  de  Monville.  The  Duke,  much  moved, 
asked  Monville  if  it  were  not  horrible,  after  all 
the  sacrifices  he  had  made  and  all  that  he  had  done. 


POLITICAL  COURTS  19! 

"Yes,  horrible,"  said  Monville,  coolly,  "but  what 
would  you  have?  They  have  taken  from  your 
Highness  all  they  could  get,  you  can  be  of  no  fur- 
ther use  to  them.  Therefore,  they  will  do  to  you, 
what  I  do  with  this  lemon  "  (he  was  squeezing 
a  lemon  on  a  sole) ;  "now  I  have  all  the  juice." 
And  he  threw  the  lemon  into  the  fireplace.  But 
yet  even  then  Robespierre  was  not  satisfied.  He 
harbored  malice  against  this  fallen  man.  On  the 
way  to  the  scaffold  he  ordered  the  cart,  in  which 
the  Duke  sat,  to  stop  before  the  Palais  Royal,  which 
had  been  confiscated,  in  order  that  the  Duke 
might  contemplate  his  last  sacrifice  for  his  country. 
The  Duke  showed  neither  fear  nor  emotion. 

All  the  world  knows  the  story  of  the  Terror. 
The  long  processions  of  carts  carrying  victims  to 
the  guillotine,  these  increasing  in  number  until  after 
the  Law  of  Prairial  they  averaged  sixty  or  seventy 
a  day  in  Paris  alone,  while  in  the  provinces  there 
was  no  end.  At  Nantes,  Carrier  could  not  work 
fast  enough  by  a  court,  so  he  sank  boat  loads  of 
prisoners  in  the  Loire.  The  hecatombs  sacrificed 
at  Lyons,  and  the  "Red  Masses"  of  Orange,  have 
all  been  described.  The  population  of  Toulon 
sank  from  29,000  to  7,000.  All  those,  in  fine, 


THE  THEORY  OF  SOCIAL  REVOLUTIONS 

were  seized  and  slain  who  were  suspected  of  hav- 
ing a  mind  tinged  with  caste,  or  of  being  traitors 
to  the  Republic.  And  it  was  the  Centre,  or  the 
majority  of  the  Convention,  who  did  this,  by 
tacitly  permitting  it  to  be  done.  That  is  to  say, 
France  permitted  it  because  the  onslaught  of  the 
decaying  class  made  atrocities  such  as  these 
appear  to  be  a  condition  of  self-preservation.  I 
doubt  if,  in  human  history,  there  be  such  another 
and  so  awful  an  illustration  of  the  possible  effects 
of  conservative  errors  of  judgment. 

For  France  never  loved  the  Terror  or  the  loath- 
some instruments,  such  as  Fouquier-Tinville,  or 
Carrier,  or  Billaud-Varennes,  or  Collot-d'Herbois, 
or  Henriot,  or  Robespierre,  or  Couthon,  who 
conducted  it.  On  this  point  there  can,  I  think, 
be  neither  doubt  nor  question.  I  have  tried  to 
show  how  the  Terror  began.  It  is  easy  to  show 
how  and  why  it  ended.  As  it  began  automatically 
by  the  stress  of  foreign  and  domestic  war,  so  it 
ended  automatically  when  that  stress  was  re- 
lieved. And  the  most  curious  aspect  of  the 
phenomenon  is  that  it  did  not  end  through  the 
application  of  force,  but  by  common  consent, 
and  when  it  had  ended,  those  who  had  been  used 


POLITICAL  COURTS  193 

for  the  bloody  work  could  not  be  endured,  and 
they  too  were  put  to  death.  The  procession  of 
dates  is  convincing. 

When,  on  July  27,  1793,  Robespierre  entered 
the  Committee  of  Public  Safety,  the  fortunes  of 
the  Republic  were  near  their  nadir,  but  almost  im- 
mediately, after  Carnot  took  the  War  Department 
on  August  14,  they  began  to  mend.  On  October  8, 
1793,  Lyons  surrendered;  on  December  19,  1793, 
the  English  evacuated  Toulon;  and,  on  De- 
cember 23,  the  insurrection  in  La  Vendee  received 
its  death  blow  at  Savenai.  There  had  also 
been  success  on  the  frontiers.  Carnot  put  Hoche 
in  command  in  the  Vosges.  On  December  23, 
1793,  Hoche  defeated  Wurmser  at  Freschweiller, 
when  the  Austrians,  abandoning  the  lines  of  Wis- 
sembourg,  fell  back  across  the  Rhine.  Thus  by 
the  end  of  1793,  save  for  the  great  border  fortresses 
of  Valenciennes  and  Conde*  to  the  north,  which 
commanded  the  road  from  Brussels  to  Paris, 
the  soil  of  France  had  been  cleared  of  the  enemy, 
and  something  resembling  domestic  tranquillity 
had  been  restored  at  home.  Simultaneously, 
as  the  pressure  lessened,  rifts  began  to  appear  in 
the  knot  of  men  who  held  the  Dictatorship  in 


194        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

the  Republic.  Robespierre,  Couthon,  and  Saint- 
Just  coalesced,  and  gained  control  of  the  police, 
while  Billaud-Varennes,  Collot-d'Herbois,  and, 
secretly  and  as  far  as  he  dared,  Barere,  formed  an 
opposition.  Not  that  the  latter  were  more  moder- 
ate or  merciful  than  Robespierre,  but  because, 
in  the  nature  of  things,  there  could  be  but  one 
Dictator,  and  it  became  a  question  of  the  survival 
of  the  fittest.  Carnot  took  little  or  no  part  in 
active  politics.  He  devoted  himself  to  the  war, 
but  he  disapproved  of  the  Terror  and  came  to 
a  breach  with  Saint- Just.  Robespierre's  power 
culminated  on  June  10,  1794,  with  the  passage 
of  the  Law  of  22  Prairial,  which  put  the  life  of 
every  Frenchman  in  his  hand,  and  after  which, 
save  for  some  dozen  or  two  of  his  most  intimate 
and  devoted  adherents  like  Saint- Just,  Couthon, 
Le  Bas,  Fouquier,  Fleuriot  the  Mayor  of  Paris, 
and  Henriot,  the  commander  of  the  national 
guard,  no  one  felt  his  head  safe  on  his  shoulders. 
It  needed  but  security  on  the  northern  frontier 
to  cause  the  social  centre  of  gravity  to  shift  and 
Robespierre  to  fall,  and  security  came  with  the 
campaign  of  Fleurus. 

Jourdan  and  Pichegru  were  in  command  on 


POLITICAL  COURTS  195 

the  Belgian  border,  and  on  June  26,  1794,  just 
sixteen  days  after  the  passage  of  the  Law  of 
Prairial,  Jourdan  won  the  battle  of  Fleurus. 
This  battle,  though  not  decisive  in  itself,  led  to 
decisive  results.  It  uncovered  Valenciennes  and 
Conde,  which  were  invested,  closing  the  entrance 
to  France.  On  July  n,  Jourdan  entered  Brus- 
sels; on  July  1 6,  he  won  a  crushing  victory 
before  Louvain  and  the  same  day  Namur  opened 
its  gates.  On  July  23,  Pichegru,  driving  the  Eng- 
lish before  him,  seized  Antwerp.  No  Frenchman 
could  longer  doubt  that  France  was  delivered,  and 
with  that  certainty  the  Terror  ended  without  a 
blow.  Eventually  the  end  must  have  come,  but  it 
came  instantly,  and,  according  to  the  old  legend, 
it  came  through  a  man's  love  for  a  woman. 

John  Lambert  Tallien,  the  son  of  the  butler 
of  the  Marquis  of  Bercy,  was  born  in  1769,  and 
received  an  education  through  the  generosity 
of  the  marquis,  who  noticed  his  intelligence.  He 
became  a  journeyman  printer,  and  one  day  in  the 
studio  of  Madame  Lebrun,  dressed  in  his  work- 
man's blouse,  he  met  Therezia  Cabarrus,  Marquise 
de  Fontenay,  the  most  seductive  woman  of  her 
time,  and  fell  in  love  with  her  on  the  instant. 


1 96        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

Nothing,  apparently,  could  have  been  more  hope- 
less or  absurd.  But  the  Revolution  came.  Tallien 
became  prominent,  was  elected  to  the  Convention, 
grew  to  be  influential,  and  in  September,  1793,  was 
sent  to  Bordeaux,  as  representative  of  the  Cham- 
ber, or  as  proconsul,  as  they  called  it.  There  he, 
the  all-powerful  despot,  found  The"rezia,  trying  to 
escape  to  Spain,  in  prison,  humble,  poor,  shudder- 
ing in  the  shadow  of  the  guillotine.  He  saved 
her ;  he  carried  her  through  Bordeaux  in  triumph 
in  a  car  by  his  side.  He  took  her  with  him  to 
Paris,  and  there  Robespierre  threw  her  into  prison, 
and  accused  Tallien  of  corruption.  On  June  12 
Robespierre  denounced  him  to  the  Convention, 
and  on  June  14,  1794,  the  Jacobins  struck  his 
name  from  the  list  of  the  club.  When  Fleurus 
was  fought  Therezia  lay  in  La  Force,  daily  ex- 
pecting death,  while  Tallien  had  become  the  soul 
of  the  reactionary  party.  On  the  8  Thermidor 
(July  26,  1794)  Tallien  received  a  dagger  wrapped 
in  a  note  signed  by  Therezia,  —  "To-morrow  they 
kill  me.  Are  you  then  only  a  coward?"  l 

On  the  morrow  the  great  day  had  come.    Saint- 
Just  rose  in  the  Convention  to  read  a  report  to 

1  "  C'est  demain  qu'on  me  tue;  n'etes-vous  done  qu'un  kche?  " 


POLITICAL  COURTS  197 

denounce  Billaud,  Collot,  and  Carnot.  Tallien 
would  not  let  him  be  heard.  Billaud  followed  him. 
Collot  was  in  the  chair.  Robespierre  mounted 
the  tribune  and  tried  to  speak.  It  was  not  without 
reason  that  Therezia  afterwards  said,  "  This  little 
hand  had  somewhat  to  do  with  overthrowing  the 
guillotine,"  for  Tallien  sprang  on  him,  dagger  in 
hand,  and,  grasping  him  by  the  throat,  cast  him 
from  the  tribune,  exclaiming,  "I  have  armed 
myself  with  a  dagger  to  pierce  his  heart  if  the  Con- 
vention dare  not  order  his  accusation."  Then 
rose  a  great  shout  from  the  Centre,  "Down  with 
the  tyrant,  arrest  him,  accuse  him  !"  From  the 
Centre,  which  until  that  day  had  always  silently 
supported  the  Robespierrian  Dictatorship.  Robes- 
pierre for  the  last  time  tried  to  speak,  but  his 
voice  failed  him.  "It's  Danton's  blood  that 
chokes  him;  arrest  him,  arrest  him  !"  they  shouted 
from  the  Right.  Robespierre  dropped  exhausted 
on  a  bench,  then  they  seized  him,  and  his  brother, 
and  Couthon,  and  Saint- Just,  and  ordered  that 
the  police  should  take  them  to  prison. 

But  it  was  one  thing  for  the  Convention  to 
seize  Robespierre  singly,  and  within  its  own  hall ; 
it  was  quite  another  for  it  to  hold  him  and 


198        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

send  him  to  the  guillotine.  The  whole  physical 
force  of  Paris  was  nominally  with  Robespierre. 
The  Mayor,  Fleuriot,  closed  the  barriers,  sounded 
the  tocsin,  and  forbade  any  jailer  to  receive 
the  prisoners;  while  Henriot,  who  had  already 
been  drinking,  mounted  a  horse  and  galloped 
forth  to  rouse  the  city.  Fleuriot  caused  Robes- 
pierre, Couthon,  and  Le  Bas  to  be  brought 
to  the  City  Hall.  A  provisional  government  was 
completed.  It  only  remained  to  disperse  the 
Assembly.  Henriot  undertook  a  duty  which 
looked  easy.  He  seems  to  have  collected  about 
twenty  guns,  which  he  brought  to  the  Tuileries 
and  trained  on  the  hall  of  the  Convention.  The 
deputies  thought  all  was  over.  Collot-d'Herbois 
took  the  chair,  which  was  directly  in  range,  put 
on  his  hat,  and  calmly  said,  as  Henriot  gave  the 
order  to  fire,  "We  can  at  least  die  at  our  post." 
No  volley  came  —  the  men  had  mutinied.  Then 
the  Convention  declared  Henriot  beyond  the  pro- 
tection of  the  law,  and  Henriot  fled  to  the  City 
Hall.  The  Convention  chose  Barras  to  command 
their  armed  force,  but  save  a  few  police  they  had 
no  force.  The  night  was  wearing  away  and 
Fleuriot  had  not  been  able  to  persuade  Robes- 


POLITICAL  COURTS  199 

pierre  to  take  any  decisive  step.  Robespierre  was, 
indeed,  only  a  pettifogging  attorney.  At  length 
he  consented  to  sign  an  appeal  to  arms.  He  had 
written  two  letters  of  his  name  —  "Ro"  —  when 
a  section  of  police  under  Barras  reached  the  City 
Hall.  They  were  but  a  handful,  but  the  door 
was  unguarded.  They  mounted  the  stairs  and  as 
Robespierre  finished  the  "o",  one  of  these  men, 
named  Merda,  fired  on  him,  breaking  his  jaw. 
The  stain  of  blood  is  still  on  the  paper  where 
Robespierre's  head  fell.  They  shot  Couthon  in 
the  leg,  they  threw  Henriot  out  of  the  window  into 
a  cesspool  below  where  he  wallowed  all  night,  while 
Le  Bas  blew  out  his  brains.  The  next  day  they 
brought  Robespierre  to  the  Convention,  but  the 
Convention  refused  to  receive  him.  They  threw 
him  on  a  table,  where  he  lay,  horrible  to  be  seen, 
his  coat  torn  down  the  back,  his  stockings  falling 
over  his  heels,  his  shirt  open  and  soaking  with 
blood,  speechless,  for  his  mouth  was  filled  with 
splinters  of  his  broken  jaw.  Such  was  the  man 
who  the  morning  before  had  been  Dictator,  and 
master  of  all  the  armies  of  France.  Couthon 
was  in  little  better  plight.  Twenty-one  in  all 
were  condemned  on  the  10  Thermidor  and  taken 


200        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

in  carts  to  the  guillotine.  An  awful  spectacle. 
There  was  Robespierre  with  his  disfigured  face, 
half  dead,  and  Fleuriot,  and  Saint- Just,  and 
Henriot  next  to  Robespierre,  his  forehead  gashed, 
his  right  eye  hanging  down  his  cheek,  dripping 
with  blood,  and  drenched  with  the  filth  of  the  sewer 
in  which  he  had  passed  the  night.  Under  their 
feet  lay  the  cripple  Couthon,  who  had  been 
thrown  in  like  a  sack.  Couthon  was  paralyzed, 
and  he  howled  in  agony  as  they  wrenched  him 
straight  to  fasten  him  to  the  guillotine.  It  took 
a  quarter  of  an  hour  to  finish  with  him,  while  the 
crowd  exulted.  A  hundred  thousand  people  saw 
the  procession  and  not  a  voice  or  a  hand  was  raised 
in  protest.  The  whole  world  agreed  that  the 
Terror  should  end.  But  the  oldest  of  those  who 
suffered  on  the  10  Thermidor  was  Couthon,  who 
was  thirty-eight,  Robespierre  was  thirty-five, 
and  Saint- Just  but  twenty-seven. 

So  closed  the  Terror  with  the  strain  which 
produced  it.  It  will  remain  a  by-word  for  all 
tune,  and  yet,  appalling  as  it  may  have  been, 
it  was  the  legitimate  and  the  logical  result  of  the 
opposition  made  by  caste  to  the  advent  of  equality 
before  the  law.  Also,  the  political  courts  served 


POLITICAL  COURTS  2OI 

their  purpose.  They  killed  out  the  archaic  mind 
in  France,  a  mind  too  rigid  to  adapt  itself  to  a 
changing  environment.  Thereafter  no  organized 
opposition  could  ever  be  maintained  against 
the  new  social  equilibrium.  Modern  France  went 
on  steadily  to  a  readjustment,  on  the  basis  of 
unification,  simplification  of  administration,  and 
equality  before  the  law,  first  under  the  Directory, 
then  under  the  Consulate,  and  finally  under  the 
Empire.  With  the  Empire  the  Civil  Code  was 
completed,  which  I  take  to  be  the  greatest  effort 
at  codification  of  modern  times.  Certainly  it 
has  endured  until  now.  Governments  have 
changed.  The  Empire  has  yielded  to  the  Mon- 
archy, the  Monarchy  to  the  Republic,  the  Republic 
to  the  Empire  again,  and  that  once  more  to  the 
Republic,  but  the  Code  which  embodies  the 
principle  of  equality  before  the  law  has  remained. 
Fundamentally  the  social  equilibrium  has  been 
stable.  And  a  chief  reason  of  this  stability  has 
been  the  organization  of  the  courts  upon  rational 
and  conservative  principles.  During  the  Terror 
France  had  her  fill  of  political  tribunals.  Since 
the  Terror  French  judges,  under  every  govern- 
ment, have  shunned  politics  and  have  devoted 


202        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

themselves  to  construing  impartially  the  Code. 
Therefore  all  parties,  and  all  ranks,  and  all  condi- 
tions of  men  have  sustained  the  courts.  In 
France,  as  in  England,  there  is  no  class  jealousy 
touching  the  control  of  the  judiciary. 


CHAPTER  VI 

INFERENCES 

As  the  universe,  which  at  once  creates  and  de- 
stroys life,  is  a  complex  of  infinitely  varying  forces, 
history  can  never  repeat  itself.  It  is  vain,  there- 
fore, to  look  in  the  future  for  some  paraphrase  of 
the  past.  Yet  if  society  be,  as  I  assume  it  to  be, 
an  organism  operating  on  mechanical  principles, 
we  may  perhaps,  by  pondering  upon  history, 
learn  enough  of  those  principles  to  enable  us  to 
view,  more  intelligently  than  we  otherwise  should, 
the  social  phenomena  about  us.  What  we  call 
civilization  is,  I  suspect,  only,  in  proportion  to 
its  perfection,  a  more  or  less  thorough  social 
centralization,  while  centralization,  very  clearly,  is 
an  effect  of  applied  science.  Civilization  is  ac- 
cordingly nearly  synonymous  with  centralization, 
and  is  caused  by  mechanical  discoveries,  which  are 
applications  of  scientific  knowledge,  like  the  dis- 
covery of  how  to  kindle  fire,  how  to  build  and 

sail  ships,  how  to  smelt  metals,  how  to  prepare 

203 


204        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

explosives,  how  to  make  paper  and  print  books, 
and  the  like.  And  we  perceive  on  a  little  con- 
sideration that  from  the  first  great  and  funda- 
mental discovery  of  how  to  kindle  fire,  every 
advance  in  applied  science  has  accelerated  social 
movement,  until  the  discovery  of  steam  and 
electricity  in  the  eighteenth  and  nineteenth 
centuries  quickened  movement  as  movement 
had  never  been  quickened  before.  And  this  quick- 
ening has  caused  the  rise  of  those  vast  cities,  which 
are  at  once  our  pride  and  our  terror. 

Social  consolidation  is,  however,  not  a  simple 
problem,  for  social  consolidation  implies  an 
equivalent  capacity  for  administration.  I  take 
it  to  be  an  axiom,  that  perfection  in  administra- 
tion must  be  commensurate  to  the  bulk  and  momen- 
tum of  the  mass  to  be  administered,  otherwise  the 
centrifugal  will  overcome  the  centripetal  force, 
and  the  mass  will  disintegrate.  In  other  words, 
civilization  would  dissolve.  It  is  in  dealing  with 
administration,  as  I  apprehend,  that  civilizations 
have  usually,  though  not  always,  broken  down, 
for  it  has  been  on  administrative  difficulties 
that  revolutions  have  for  the  most  part  super- 
vened. Advances  in  administration  seem  to  pre- 


INFERENCES  205 

suppose  the  evolution  of  new  governing  classes, 
since,  apparently,  no  established  type  of  mind  can 
adapt  itself  to  changes  in  environment,  even  in 
slow-moving  civilizations,  as  fast  as  environments 
change.  Thus  a  moment  arrives  when  the  minds 
of  any  given  dominant  type  fail  to  meet  the 
demands  made  upon  them,  and  are  superseded 
by  a  younger  type,  which  in  turn  is  set  aside 
by  another  still  younger,  until  the  limit  of  the 
administrative  genius  of  that  particular  race 
has  been  reached.  Then  disintegration  sets  in, 
the  social  momentum  is  gradually  relaxed,  and 
society  sinks  back  to  a  level  at  which  it  can 
cohere.  To  us,  however,  the  most  distressing 
aspect  of  the  situation  is,  that  the  social  accelera- 
tion is  progressive  in  proportion  to  the  activity  of 
the  scientific  mind  which  makes  mechanical  dis- 
coveries, and  it  is,  therefore,  a  triumphant  science 
which  produces  those  ever  more  rapidly  recurring 
changes  hi  environment  to  which  men  must  adapt 
themselves  at  their  peril.  As,  under  the  stimulant 
of  modern  science,  the  old  types  fail  to  sustain 
themselves,  new  types  have  to  be  equally  rapidly 
evolved,  and  the  rise  of  a  new  governing  class 
is  always  synonymous  with  a  social  revolution 


206        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

and  a  redistribution  of  property.  The  Industrial 
Revolution  began  almost  precisely  a  century  and 
a  half  ago,  since  when  the  scientific  mind  has 
continually  gained  in  power,  and,  during  that 
period,  on  an  average  of  once  in  two  generations, 
the  environment  has  so  far  shifted  that  a  social 
revolution  has  occurred,  accompanied  by  the 
advent  of  a  new  favored  class,  and  a  readjustment 
of  wealth.  I  think  that  a  glance  at  American 
history  will  show  this  estimate  to  be  within  the 
truth.  At  the  same  tune  such  rapidity  of  intellec- 
tual mutation  is  without  precedent,  and  I  should 
suppose  that  the  mental  exhaustion  incident 
thereto  must  be  very  considerable. 

In  America,  in  1770,  a  well-defined  aristocracy 
held  control.  As  an  effect  of  the  Industrial 
Revolution  upon  industry  and  commerce,  the 
Revolutionary  War  occurred,  the  colonial  aris- 
tocracy misjudged  the  environment,  adhered  to 
Great  Britain,  were  exiled,  lost  their  property, 
and  perished.  Immediately  after  the  American 
Revolution  and  also  as  a  part  of  the  Industrial 
Revolution,  the  cotton  gin  was  invented,  and  the 
cotton  gin  created  in  the  South  another  aristoc- 
racy, the  cotton  planters,  who  flourished  until 


INFERENCES  207 

1860.  At  this  point  the  changing  of  the  environ- 
ment, caused  largely  by  the  railway,  brought  a 
pressure  upon  the  slave-owners  against  which 
they,  also  failing  to  comprehend  their  situation, 
rebelled.  They  were  conquered,  suffered  confisca- 
tion of  their  property,  and  perished.  Furthermore, 
the  rebellion  of  the  aristocracy  at  the  South  was 
caused,  or  at  all  events  was  accompanied  by,  the 
rise  of  a  new  dominant  class  at  the  North,  whose 
power  rested  upon  the  development  of  steam  in 
transportation  and  industry.  This  is  the  class 
which  has  won  high  fortune  by  the  acceleration  of 
the  social  movement,  and  the  consequent  urban 
growth  of  the  nineteenth  century,  and  which  has 
now  for  about  two  generations  dominated  in  the 
land.  If  this  class,  like  its  predecessors,  has  in 
its  turn  mistaken  its  environment,  a  redistribu- 
tion of  property  must  occur,  distressing,  as 
previous  redistributions  have  been,  in  proportion 
to  the  inflexibility  of  the  sufferers.  The  last  two 
redistributions  have  been  painful,  and,  if  we 
examine  passing  phenomena  from  this  standpoint, 
they  hardly  appear  to  promise  much  that  is  re<- 
assuring  for  the  future. 

Administration  is  the  capacity  of  coordinating 


208        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

many,  and  often  conflicting,  social  energies  in  a 
single  organism,  so  adroitly  that  they  shall 
operate  as  a  unity.  This  presupposes  the  power 
of  recognizing  a  series  of  relations  between  numer- 
ous special  social  interests,  with  all  of  which  no 
single  man  can  be  intimately  acquainted.  Prob- 
ably no  very  highly  specialized  class  can  be  strong 
in  this  intellectual  quality  because  of  the  intel- 
lectual isolation  incident  to  specialization;  and 
yet  administration  or  generalization  is  not  only 
the  faculty  upon  which  social  stability  rests,  but 
is,  possibly,  the  highest  faculty  of  the  human 
mind.  It  is  precisely  in  this  preeminent  requisite 
for  success  in  government  that  I  suspect  the 
modern  capitalistic  class  to  be  weak.  The  scope 
of  the  human  intellect  is  necessarily  limited,  and 
modern  capitalists  appear  to  have  been  evolved 
under  the  stress  of  an  environment  which  de- 
manded excessive  specialization  in  the  direction 
of  a  genius  adapted  to  money-making  under 
highly  complex  industrial  conditions.  To  this 
money-making  attribute  all  else  has  been  sacri- 
ficed, and  the  modern  capitalist  not  only  thinks 
in  terms  of  money,  but  he  thinks  in  terms  of 
money  more  exclusively  than  the  French  aristo- 


INFERENCES  209 

crat  or  lawyer  ever  thought  in  terms  of  caste. 
The  modern  capitalist  looks  upon  life  as  a  financial 
combat  of  a  very  specialized  kind,  regulated  by  a 
code  which  he  understands  and  has  indeed  him- 
self concocted,  but  which  is  recognized  by  no  one 
else  in  the  world.  He  conceives  sovereign  powers 
to  be  for  sale.  He  may,  he  thinks,  buy  them; 
and  if  he  buys  them ;  he  may  use  them  as  he 
pleases.  He  believes,  for  instance,  that  it  is  the 
lawful,  nay  more !  in  America,  that  it  is  the 
constitutional  right  of  the  citizen  to  buy  the 
national  highways,  and,  having  bought  them,  to 
use  them  as  a  common  carrier  might  use  a  horse 
and  cart  upon  a  public  road.  He  may  sell  his 
service  to  whom  he  pleases  at  what  price  may 
suit  him,  and  if  by  doing  so  he  ruins  men  and 
cities,  it  is  nothing  to  him.  He  is  not  respon- 
sible, for  he  is  not  a  trustee  for  the  public.  If  he 
be  restrained  by  legislation,  that  legislation  is  in 
his  eye  an  oppression  and  an  outrage,  to  be 
annulled  or  eluded  by  any  means  which  will  not 
lead  to  the  penitentiary.  He  knows  nothing  and 
cares  less,  for  the  relation  which  highways  always 
have  held,  and  always  must  hold,  to  every  civilized 
population,  and  if  he  be  asked  to  inform  himself 


210        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

on  such  subjects  he  resents  the  suggestion  as  an 
insult.  He  is  too  specialized  to  comprehend  a 
social  relation,  even  a  fundamental  one  like  this, 
beyond  the  narrow  circle  of  his  private  interests. 
He  might,  had  he  so  chosen,  have  evolved  a  sys- 
tem of  governmental  railway  regulation,  and  have 
administered  the  system  personally,  or  by  his 
own  agents,  but  he  could  never  be  brought  to 
see  the  advantage  to  himself  of  rational  conces- 
sion to  obtain  a  resultant  of  forces.  He  resisted 
all  restraint,  especially  national  restraint,  believ- 
ing that  his  one  weapon  —  money  —  would  be 
more  effective  in  obtaining  what  he  wanted  in 
state  legislatures  than  in  Congress.  Thus,  of 
necessity,  he  precipitates  a  conflict,  instead  of 
establishing  an  adjustment.  He  is,  therefore,  in 
essence,  a  revolutionist  without  being  aware  of  it. 
The  same  specialized  thinking  appears  in  his 
reasoning  touching  actual  government.  New 
York  City  will  serve  as  an  illustration. 

New  York  has  for  two  generations  been  noted 
for  a  civic  corruption  which  has  been,  theoretically, 
abominable  to  all  good  citizens,  and  which  the 
capitalistic  class  has  denounced  as  abominable  to 
itself.  I  suspect  this  to  be  an  imaginative  con- 


INFERENCES  211 

ception  of  the  situation.  Tammany  Hall  is,  I 
take  it,  the  administrative  bureau  through  which 
capital  purchases  its  privileges.  An  incorruptible 
government  would  offend  capital,  because,  under 
such  a  government,  capital  would  have  to  obey 
the  law,  and  privilege  would  cease.  Occasionally, 
Tammany  grows  rapacious  and  exacts  too  much 
for  its  services.  Then  a  reform  movement  is 
undertaken,  and  finally  a  new  management  is 
imposed  on  Tammany ;  but  when  Tammany  has 
consented  to  a  satisfactory  scale  of  prices,  the 
reform  ends.  To  change  the  system  would  imply 
a  shift  in  the  seat  of  power.  In  fine,  money  is 
the  weapon  of  the  capitalist  as  the  sword  was  the 
weapon  of  the  mediaeval  soldier;  only,  as  the 
capitalist  is  more  highly  specialized  than  the  sol- 
dier ever  was,  he  is  more  helpless  when  his  single 
weapon  fails  him.  From  the  days  of  William  the 
Conqueror  to  our  own,  the  great  soldier  has  been, 
very  commonly,  a  famous  statesman  also,  but  I 
do  not  now  remember,  in  English  or  American 
history,  a  single  capitalist  who  has  earned  emi- 
nence for  comprehensive  statesmanship.  On  the 
contrary,  although  many  have  participated  in 
public  affairs,  have  held  high  office,  and  have 


212        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

shown  ability  therein,  capitalists  have  not  un- 
usually, however  unjustly,  been  suspected  of 
having  ulterior  objects  in  view,  unconnected  with 
the  public  welfare,  such  as  tarirls  or  land  grants. 
Certainly,  so  far  as  I  am  aware,  no  capitalist  has 
ever  acquired  such  influence  over  his  contem- 
poraries as  has  been  attained  with  apparent  ease 
by  men  like  Cromwell,  Washington,  or  even 
Jackson. 

And  this  leads,  advancing  in  an  orderly  manner 
step  by  step,  to  what  is,  perhaps,  to  me,  the 
most  curious  and  interesting  of  all  modern  intel- 
lectual phenomena  connected  with  the  specialized 
mind,  —  the  attitude  of  the  capitalist  toward  the 
law.  Naturally  the  capitalist,  of  all  men,  might 
be  supposed  to  be  he  who  would  respect  and  up- 
hold the  law  most,  considering  that  he  is  at  once 
the  wealthiest  and  most  vulnerable  of  human 
beings,  when  called  upon  to  defend  himself  by 
physical  force.  How  defenceless  and  how  in- 
competent he  is  in  such  exigencies,  he  proved  to 
the  world  some  years  ago  when  he  plunged  him- 
self and  the  country  into  the  great  Pennsylvania 
coal  strike,  with  absolutely  no  preparation. 
Nevertheless,  in  spite  of  his  vulnerability,  he  is 


INFERENCES  213 

of  all  citizens  the  most  lawless.1  He  appears  to 
assume  that  the  law  will  always  be  enforced, 
when  he  has  need  of  it,  by  some  special  personnel 
whose  duty  lies  that  way,  while  he  may  evade  the 
law,  when  convenient,  or  bring  it  into  contempt, 
with  impunity.  The  capitalist  seems  incapable 
of  feeling  his  responsibility,  as  a  member  of  the 
governing  class,  in  this  respect,  and  that  he  is 
bound  to  uphold  the  law,  no  matter  what  the 
law  may  be,  in  order  that  others  may  do  the  like. 
If  the  capitalist  has  bought  some  sovereign  func- 
tion, and  wishes  to  abuse  it  for  his  own  behoof,  he 
regards  the  law  which  restrains  him  as  a  despotic 
invasion  of  his  constitutional  rights,  because, 
with  his  specialized  mind,  he  cannot  grasp  the 
relation  of  a  sovereign  function  to  the  nation  as  a 
whole.  He,  therefore,  looks  upon  the  evasion  of 
a  law  devised  for  public  protection,  but  inimical 
to  him,  as  innocent  or  even  meritorious. 

If  an  election  be  lost,  and  the  legislature,  which 
has  been  chosen  by  the  majority,  cannot  be 

1  In  these  observations  on  the  intellectual  tendencies  of  capital 
I  speak  generally.  Not  only  individual  capitalists,  but  great  corpo- 
rations, exist,  who  are  noble  examples  of  law-abiding  and  intelligent 
citizenship.  Their  rarity,  however,  and  their  conspicuousness,  seem 
to  prove  the  general  rule. 


214        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

pacified  by  money,  but  passes  some  act  which 
promises  to  be  annoying,  the  first  instinct  of  the 
capitalist  is  to  retain  counsel,  not  to  advise  him 
touching  his  duty  under  the  law,  but  to  devise  a 
method  by  which  he  may  elude  it,  or,  if  he  can- 
not elude  it,  by  which  he  may  have  it  annulled  as 
unconstitutional  by  the  courts.  The  lawyer  who 
succeeds  in  this  branch  of  practice  is  certain  to 
win  the  highest  prizes  at  the  bar.  And  as  capital 
has  had  now,  for  more  than  one  or  even  two 
generations,  all  the  prizes  of  the  law  within  its 
gift,  this  attitude  of  capital  has  had  a  profound 
effect  upon  shaping  the  American  legal  mind. 
The  capitalist,  as  I  infer,  regards  the  constitu- 
tional form  of  government  which  exists  in  the 
United  States,  as  a  convenient  method  of  obtain- 
ing his  own  way  against  a  majority,  but  the  lawyer 
has  learned  to  worship  it  as  a  fetich.  Nor  is  this 
astonishing,  for,  were  written  constitutions  sup- 
pressed, he  would  lose  most  of  his  importance  and 
much  of  his  income.  Quite  honestly,  therefore, 
the  American  lawyer  has  come  to  believe  that  a 
sheet  of  paper  soiled  with  printers'  ink  and  inter- 
preted by  half-a-dozen  elderly  gentlemen  snugly 
dozing  in  armchairs,  has  some  inherent  and 


INFERENCES  215 

marvellous  virtue  by  which  it  can  arrest  the 
march  of  omnipotent  Nature.  And  capital  gladly 
accepts  this  view  of  American  civilization,  since 
hitherto  capitalists  have  usually  been  able  to 
select  the  magistrates  who  decide  their  causes, 
perhaps  directly  through  the  intervention  of  some 
president  or  governor  whom  they  have  had  nom- 
inated by  a  convention  controlled  by  their  money, 
or  else,  if  the  judiciary  has  been  elective,  they  have 
caused  sympathetic  judges  to  be  chosen  by  means 
of  a  mechanism  like  Tammany,  which  they  have 
frankly  bought. 

I  wish  to  make  myself  clearly  understood. 
Neither  capitalists  nor  lawyers  are  necessarily,  or 
even  probably,  other  than  conscientious  men. 
What  they  do  is  to  think  with  specialized  minds. 
All  dominant  types  have  been  more  or  less  special- 
ized, if  none  so  much  as  this,  and  this  specializa- 
tion has  caused,  as  I  understand  it,  that  obtuseness 
of  perception  which  has  been  their  ruin  when  the 
environment  which  favored  them  has  changed. 
All  that  is  remarkable  about  the  modern  capitalist 
is  the  excess  of  his  excentricity,  or  his  deviation 
from  that  resultant  of  forces  to  which  he  must  con- 
form. To  us,  however,  at  present,  neither  the 


2l6        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

morality  nor  the  present  mental  excentricity  of 
the  capitalist  is  so  material  as  the  possibility  of 
his  acquiring  flexibility  under  pressure,  for  it 
would  seem  to  be  almost  mathematically  demon- 
strable that  he  will,  in  the  near  future,  be  sub- 
jected to  a  pressure  under  which  he  must  develop 
flexibility  or  be  eliminated. 

There  can  be  no  doubt  that  the  modern  environ- 
ment 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  mass  and  mo- 
mentum of  modern  society  is  prodigious,  it  will 
require  a  correspondingly  prodigious  energy  to 
carry  it  safely  from  an  unstable  to  a  stable  equi- 
librium. The  essential  is  to  generate  the  energy 
which  brings  success;  and  the  more  the  mind 
dwells  upon  the  peculiarities  of  the  modern  capi- 
talistic class,  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. 


INFERENCES  217 

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  attitude  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  edu- 
cation. Apparently  modern  society,  if  it  is  to 
cohere,  must  have  a  high  order  of  generalizing 
mind,  —  a  mind  which  can  grasp  a  multitude  of 
complex  relations,  —  but  this  is  a  mind  which  can, 
at  best,  only  be  produced  in  small  quantity  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  quantity  before 
quality  to  the  limit  which  the  market  will  endure. 
Capitalists  have  never  insisted  upon  raising  an 
educational  standard  save  hi  science  and  me- 
chanics, and  the  relative  overstimulation  of  the 
scientific  mind  has  now  become  an  actual  menace 


2l8        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

to  order  because  of  the  inferiority  of  the  adminis- 
trative 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  im- 
provements, 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  prov- 
ince 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  constitution  whose  object 
was  to  keep  local  sovereignties  intact,  especially 
at  the  South.  Jefferson  insisted  that  each  sov- 
ereignty should  by  means  of  nullification  protect 
itself.  It  was  a  long  step  in  advance  when  the 
nation  conquered  the  prerogative  of  asserting  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 


INFERENCES  219 

1800,  the  success  of  nullification.  I  find  it  diffi- 
cult to  believe  that  capital,  with  its  specialized 
views  of  what  constitutes  its  advantages,  its 
duties,  and  its  responsibilities,  and  stimulated  by 
a  bar  moulded  to  meet  its  prejudices  and  require- 
ments, will  ever  voluntarily  assent  to  the  con- 
solidation of  the  United  States  to  the  point  at 
which  the  interference  of  the  courts  with  legis- 
lation 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 


220   THE  THEORY  OF  SOCIAL  REVOLUTIONS 

same  class  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  experi- 
ence, 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,  there- 
fore, 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,  sup- 
ported only  by  a  faction,  and  were  cast  aside. 
With  that  the  old  regime  fell. 

The  young  Duke  of  Chartres,  the  son  of  Egalit6 
Orleans,  and  the  future  Louis  Philippe,  has  re- 
lated in  his  journal  an  anecdote  which  illustrates 
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 


INFERENCES  221 

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  messen- 
ger 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  hang- 
men 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.1  "  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 

lEy  the  Law  of  November  27,  1790,  priests  refusing  to  swear 
allegiance  to  the  "  civil  constitution  "  of  the  clergy  were  punished  by 
loss  of  pay  and  of  rights  of  citizenship  if  they  continued  their  func- 
tions. By  Law  of  August  26,  1792,  by  transportation  to  Cayenne. 


222        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

in  the  public  mind,  which  this  anecdote  shows, 
that  the  September  massacres  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  sum- 
marily. 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  mem- 
ber 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, 


INFERENCES  223 

and  his  other  friends,  and  Danton  at  once  antici- 
pated what  would  be  his  doom.  As  he  entered 
his  cell  he  said  to  his  jailer:  "I  erected  the 
Tribunal.  I  ask  pardon  of  God  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  under- 
stand 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 
tune  being.  Thus  a  political  court  becomes  the 


224        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  cam- 
paign. 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,  con- 
demned 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  n 
Thermidor,  seventy  members,  officers,  or  parti- 


INFERENCES  225 

sans  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  jury- 
men. 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  Sus- 
pected Persons  (loi  des  suspects)  was  passed  on 
September  17,  1793.  On  October  10,  1793,  that 
is  three  weeks  afterward,  Saint- Just  moved  that 
additional  powers  should  be  granted,  by  the  Con- 
vention, to  the  Committee  of  Public  Safety,  de- 
nning, 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,  what- 
ever else  may  happen  in  the  United  States, 
we  certainly  shall  have  no  Revolutionary  Tri- 


226        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

bunal  like  the  French  Tribunal  of  1793,  but 
the  mechanical  principle  of  the  political  court 
always  remains  the  same;  it  is  an  adminis- 
trative board  the  control  of  which  is  useful,  or 
may  be  even  essential,  to  the  success  of  a  domi- 
nant 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  revolu- 
tionary 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  administra- 
tive problems  presented  by  modern  industrial 
civilization  is  beyond  the  compass  of  the  capital- 
istic mind.  If  this  be  so,  American  society,  as  at 
present  organized,  with  capitalists  for  the  domi- 
nant class,  can  concentrate  no  further,  and,  as 


INFERENCES  227 

nothing  in  the  universe  is  at  rest,  if  it  does  not 
concentrate,  it  must,  probably,  begin  to  disin- 
tegrate. Indeed  we  may  perceive  incipient  signs 
of  disintegration  all  about  us.  We  see,  for  ex- 
ample, an  universal  contempt  for  law,  incarnated 
in  the  capitalistic  class  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  ascend- 
ancy; 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  dis- 
solution of  the  family  is  peculiarly  a  phenome- 
non of  our  industrial  age,  and  it  is  caused 
by  the  demand  of  industry  for  the  cheap  labor 
of  women  and  children.  Napoleon  told  the  law- 
yers 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 


228        THE  THEORY  OF  SOCIAL  REVOLUTIONS 

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  adminis- 
trative 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  hitherto 
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  disin- 
tegration will  intensify.  As  they  intensify,  the 
ability  of  industrial  capital  to  withstand  the  at- 
tacks 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 


INFERENCES 


229 


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,  how- 
ever, 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  drasti- 
cally as  she  is  apt  to  settle  human  perturba- 
tions, and  she  will  follow  logically  in  the 
infinitely  extended  line  of  her  own  most  impres- 
sive precedents. 


INDEX 


Adams,  John:  appoints  Marshall 
Chief  Justice,  53-61 ;  sent  Ells- 
worth to  France,  61 ;  offered  office 
to  Jay;  chose  Marshall,  61. 

Adams,  John  Quincy:  extract  from 
diary  of,  68. 

Administration:  inefficiency  of,  in 
twentieth  century,  3-4 ;  relation  to 
mass,  204 ;  definition  of,  207  el  seq. ; 
lack  of  ability  in,  217;  need  for,  hi 
modern  society,  217,  218. 

Alien  and  Sedition  Acts:  59. 

American  Revolution :  a  revolt 
against  Monopoly,  25  ;  begins  with 
Bpston  Tea- party,  25. 

Arbitration:  compulsory,  29,  30; 
strong  government  needed  for,  29, 
30. 

Aristocracy:  See  Ruling  Class. 

Artois,  Comte  d':  emigrates,  146; 
authorized  to  organize  an  army, 
148. 

Assignats:  issued,  149;  Cambon 
wishes  to  emit  hi  Belgium,  174. 

Bastille:  stormed,  145. 

Bench :  See  Judiciary,  and  Courts. 

Billaud-  Varenne :  an  Instrument  of 
the  Terror,  191 ;  quarrels  with 
Robespierre,  194 ;  leads  Revolu- 
tion of  Thermidor,  197 ;  wants  to 
kill  Danton,  222. 

Bouille:  commands  Army  of  the 
North,  146 ;  executes  soldiers,  147 ; 
tortures  soldiers,  155. 

Bradley,  Mr.  Justice:  opinion  of,  in 
Chicago,  Milwaukee  and  St.  Paul 
Railway  vs.  Minnesota,  102,  103 ; 
failed  to  sustain  equality  before 
the  law,  115. 

Brass  vs.  North  Dakota:  108. 


Brunswick,  Duke  of:  manifesto  of, 
155;  threatens  reprisals,  156;  re- 
treat of,  from  Valmy,  164. 

Burke,  Edmund:  publishes  Reflec- 
tions, and  quarrels  with  Fox,  152 ; 
Caste  incarnated  in,  152. 

Cabarrus,  Tkerezia,  Marquise  de  Fon- 
lenay:  meets  Tallien,  195;  ad- 
ventures of,  196 ;  imprisoned  in  La 
Force,  196 ;  sends  Tallien  a  dagger, 
196;  closes  Jacobin  Club,  224. 

Capitalistic  Class:  have  assumed 
sovereign  powers  in  America,  13 
et  seq.;  irresponsible,  14,  17;  have 
levied  taxes,  15;  have  regulated 
the  currency,  1 7  et  seq. ;  have  con- 
trolled prices,  25  et  seq. ;  supported 
Washington,  28;  now  responsible 
for  structure  of  American  Society, 
28  et  seq. ;  have  failed  as  politicians, 
31  et  seq.;  must  accept  conse- 
quences of  failure,  32  et  seq.;  prob- 
ably incapable  of  appreciating 
failure,  33 ;  prevail  with  Supreme 
Court  in  Income  Tax  Case,  74; 
deflected  Supreme  Court  from  its 
fundamental  principle,  98  et  seq.; 
antagonistic  to  equality  before  the 
law,  107 ;  favored  by  Supreme 
Court,  108  et  seq.;  its  pressure  on 
Judiciary  in  favor  of  Monopoly, 
116-125;  apparently  breaking 
down,  207  ;  too  highly  specialized, 
208;  arbitrary,  209  et  seq.;  gov- 
erns by  money,  210  etseq.;  inferior 
as  Statesmen  and  Soldiers,  211- 
212;  attitude  toward  law,  212  et 
seq.;  probably  conscientious,  215; 
owns  universities,  217;  uses  court 
to  elude  majority,  219;  physically 


231 


232 


INDEX 


helpless,  227;  likely  to  abandon 
America,  288-289;  see  English 
Landlords;  see  Ruling  Class, 
French. 

Carnot:  action  of,  at  Dumouriez's 
treason,  175;  joins  Committee  of 
Public  Safety,  178;  becomes  Min- 
ister of  War,  178;  announces 
French  victory,  179;  signs  war- 
rant to  arrest  Danton,  185 ;  char- 
acter of,  185 ,  success  of,  as  War 
Minister,  193 ;  breach  of,  with 
Saint  Just,  194;  denounced  by 
Saint  Just,  197. 

Carrier:  drowns  prisoners  at  Nantes, 
191;  trial  of,  executed,  224. 

Caste:  nature  of,  135  el  seq.;  French 
Judiciary,  incarnation  of,  136  ;  law 
of,  by  Parliament  of  Paris,  142 ; 
defeated  in  National  Assembly, 
145 ;  European  Society  divided  by, 
147  et  seq.;  first  duty  of  nobility 
to  defend,  148;  fused,  throughout 
Europe,  152 ;  law  of,  laid  down  at 
Pilnitz,  155;  killed  out  by  Revolu- 
tionary Tribunal,  200,  201. 

Centre:  Party  of,  supported  Party  of 
Mountain,  177;  supports  Robes- 
pierre, 192;  attacks  Robespierre, 
197- 

Chalons:  objective  point  of  Valmy 
Campaign,  162. 

Charles  I:  execution  of,  14. 

Charles  X:  See  Comte  d'Ariois. 

Chartres,  Duke  of:  extract  from 
diary  of,  221. 

Chase:  appointed  Chief  Justice,  54; 
decides  Hepburn  vs.  Griswold,  72. 

Chase,  Samuel:  impeached,  67. 

Chdteauvieux,  Regiment  of:  punished 
after  mutiny  at  Nancy,  146,  147 ; 
soldiers  of,  tortured,  155. 

Chicago,  Milwaukee  and  St.  Paul 
R.  R.  vs.  Minnesota:  103  et  seq. 

Chisholm  vs.  Georgia:  84. 

Church:  landed  ownership  of,  149; 
confiscation  of  land  of,  149;  sale 
of  land  of,  149;  made  hostile  by 
confiscation,  150;  constitutional 
reform  of,  150  ;  221. 


Clergy:  See  Church. 

Coates  vs.  Mayor  of  New  York:  89. 

Coblenz:  centre  of  French  Emigra- 
tion, 151. 

Code,  Civil:  established  by  Empire, 
20 1 ;  impartially  enforced,  202. 

Collot  d'Herbois:  quarrels  with 
Robespierre,  194;  denounced  by 
Saint- Just,  197 ;  presides  in  Con- 
vention on  Thermidor,  198. 

Committee  of  Public  Safety:  organ- 
ized, 177 ;  reorganized,  178;  Robes- 
pierre and  Carnot  join,  178;  dis- 
cord in,  194;  powers  of,  enlarged, 
225. 

Commons;  House  of:  landlords'  su- 
premacy over,  133,  134;  reform 
of,  134,  135.  See  Parliament. 

Comslock,  Mr.  Justice:  in  Wyneha- 
mer  vs.  the  People,  95. 

Condi,  Prince  de:  154. 

Congress:  judicial  interference  with, 
68-79.  * 

Constitution:  supported  by  Wash- 
ington, 7;  crisis  when  adopted,  8, 
9;  an  imperfect  protection,  45; 
judicial  interpretation  of,  in  Ameri- 
ica,  44,  45 ;  only  in  America  inter- 
preted by  judiciary,  47 ;  contro- 
versy between  Jefferson  and  Ham- 
ilton touching,  40-53 ;  inoperative 
to  restrain  Congress,  75-79,  in; 
made  inflexible  by  judicial  de- 
cision, 83;  altered  by  judicial 
legislation,  89 ;  according  to  Jeffer- 
son, wax  in  hands  of  judiciary, 
127;  fetich  to  lawyers,  214,  219. 
See  Police  Power. 

Convention:  meets  directly  after 
Valmy,  173;  establishes  Republic, 
173;  organizes  Revolutionary  Tri- 
bunal, 175;  Girondists  expelled 
from,  177;  declares  levee  en  masse, 
178;  reorganizes  Committee  of 
Public  Safety,  177;  reorganizes  Tri- 
bunal, 181 ;  passes  law  of  Prairial, 
183;  supports  dictatorship  of 
Robespierre,  184  et  seq.;  stops 
Danton's  defence,  186;  Revolu- 
tion of  Thermidor,  196-198. 


INDEX 


233 


Confe:  Parliamentary  decision 
touching,  106 ;  nature  of,  140 ; 
Edict  touching,  140;  Edict  of, 
rejected  by  Parliament,  142. 

Courts,  American:  obstruct  Mr. 
Roosevelt,  4 ;  have  assumed  polit- 
ical power;  See  Courts,  Political; 
have  sustained  Capital,  16;  un- 
suited  to  decide  political  questions, 
78;  unable  to  bar  encroachments  on 
American  Constitution,  75,  in; 
a  bar  to  administrative  reforms, 
218;  have  become  a  menace  to 
order,  2ig ;  tending  to  become  ad- 
ministrative boards,  226;  unlikely 
to  be  a  protection  to  Capital,  22g. 
See  Courts  below. 

Courts,  French:  Parliament  of  Paris, 
the  essence  of  privilege,  offices  in, 
vendible,  136,  141 ;  refuses  to  regis- 
ter Turgot's  edict  touching  corvee, 
141 ;  defines  law  of  caste,  142 ;  tor- 
ture* regularly  used  by,  154;  old 
jMicial  system  reorganized  by 
National  Assembly,  169  et  seq.; 
reorganization  inevitable  since  old 
courts  were  semi-political,  169  et 
seq.;  pure  political  courts  organ- 
ized by  Danton,  175  et  seq.;  reor- 
ganized, 181 ;  see  Revolutionary 
Tribunal,  Danton,  and  Fouquier- 
Tinville;  Modern  French  courts, 
organized  under  Empire,  have  been 
stable  because  non-political,  201 ; 
while  old  French  courts  had  polit- 
ical bias,  and  therefore  abolished, 
220;  the  revolutionary  criminal 
courts  were  administrative  boards, 
223.  See  Political  Courts. 

Courts,  Judicial:  definition  of,  76; 
relation  of,  to  Legislature,  76; 
should  administer  a  code  of  ab- 
stract principles,  81  et  seq.;  this 
function  impossible  in  America,  81, 
82,  83 ;  essentially  conservative  in 
contrast  to  legislatures,  106; 
should  never  discriminate,  106, 
107;  legislation  by,  destroys,  113; 
duty  of,  to  protect  civil  rights,  114, 
115;  English  and  modern  French 


Courts  true  judicial  Courts,  114, 
129, 130,  201,  202 ;  a  defence  to  the 
weak,  219. 

Courts,  Political:  Roosevelt's  at- 
tacks on,  4;  hi  America,  34;  ef- 
fective administration  with,  im- 
possible, 34 ;  Kings  of  Israel,  polit- 
ical judges,  37 ;  David  and  Uriah 
the  Hittite,  38  et  seq.;  English 
political  courts,  40  et  seq.;  Jeffreys, 
C.  J.,  41  et  seq.;  American  and 
foreign  courts,  45;  interference 
with  legislation  makes  courts 
political,  47 ;  political  parties  have 
tried  to  control  American  courts, 
48  et  seq.;  political  controversies 
touching,  in  America,  50  et  seq, 
54 ;  Kentucky  Resolutions,  59,  60 ; 
Marbury  vs.  Madison,  63  et  seq.; 
Impeachment  of  Chase,  67  et  seq.; 
Dred  Scott  Case,  70 ;  Hepburn  vs. 
Griswold,  71  et  seq.;  Income  Tax 
Case,  74;  Distinction  between 
municipal  and  political  law,  81  et 
seq.;  Police  Power,  a  political 
function,  89  et  seq.;  see  Police 
Power;  system  tends  to  create 
active  judicial  legislation,  124, 
125;  Trans-Missouri  and  Stand- 
ard Oil  Cases,  116  et  seq.;  Judi- 
cial political  functions,  lead  to 
elective  judiciary  and  recall,  128; 
old  French  judiciary  political,  141 
et  seq.;  Danton's  Revolutionary 
Tribunal  a  political  court,  168  et 
seq.;  see  Revolutionary  Tribunal; 
in  France  political  courts  ceased 
with  the  Terror,  200,  201 ;  in 
France  political  courts  existed  prior 
to  Revolution,  220;  for  that  cause 
abolished,  220;  Danton's  explana- 
tion of,  in  Revolution,  221,  222; 
Danton  condemned  by,  222,  223; 
are  administrative  boards,  223 ; 
no  protection  to  Capital,  229. 

Courts,  Roman:  112,113.  See  Prae- 
tor. 

Court,  Supreme:  partisan,  54,  57; 
arbitrator  between  Nation  and 
States,  58,  59,  62;  Marbury  w. 


234 


INDEX 


Madison,  63  el  seq. ;  attack  on  and 
impeachment  of  Chase,  67;  Mis- 
souri Compromise,  70;  Hepburn 
vs.  Griswold,  71 ;  Rnox  vs.  Lee,  73 ; 
Income  Tax  Case,  74 ;  reorganized 
by  slave-owners,  77 ;  constructive, 
under  Marshall,  77;  failure  of,  to 
control  Congress,  78;  Jay,  Chief 
Justice  of,  84 ;  Chisholm  vs. 
Georgia,  84;  Marshall,  Chief  Jus- 
tice, 85 ;  Dartmouth  College  Case, 
87  et  seq.;  Charles  River  Bridge 
Case,  91 ;  construction  of  Police 
Power  by,  96  et  seq. ;  subject  to 
financial  influences,  97 ;  follows 
path  of  least  resistance,  97;  Cen- 
sor of  State  legislation,  09;  rate 
regulation  by,  100  et  seq.;  defines 
police  power,  105;  tends  to  dis- 
criminate, 107;  Brass  vs.  N.  Da- 
kota, 108;  Smith  vs.  Ames,  109 
et  seq.;  failed  to  enforce  equality 
before  the  law  because  political, 
115;  exposition  of  Sherman  Act 
by,  116  et  seq.;  White,  Chief  Jus- 
tice, in  Standard  Oil  Case,  119  et 
seq.;  at  first  aided  Centralization, 
218;  likely  to  become  an  admin- 
istrative board,  226.  See  Fourteenth 
Amendment,  and  Dred  Scott  Case. 
Couthon:  drafted  law  of  Prairial, 
183;  hateful  to  France,  192; 
gains  control  of  police,  adherent 
of  Robespierre,  194;  imprisoned 
on  Thermidor,  197;  liberated  and 
reached  City  Hall,  198;  wounded, 
109;  executed,  200. 

Damiens:  execution  of,  155.  See 
Torture. 

Danton:  a  conservative  and  a  lawyer, 
153;  counsels  audacity,  becomes 
Minister  of  Justice,  159;  first 
heard  of  Vendee  plot,  163;  coa- 
lesces with  Marat,  166 ;  responsibil- 
ity for  September  massacres,  166 
et  seq.;  defines  political  crimes, 
169;  claimed  natural  boundaries 
of  France,  173 ;  provoked  war  with 
England,  173 ;  sustained  Dumou- 


riez,  173;  reorganizes  Tribunal, 
181;  arrested,  185;  convicted, 
186;  advocates  Tribunal,  222; 
trial  of,  223 ;  condemnation  of,  223. 

Dartmouth  College  Case:  87. 

David,  King  of  Israel:  37  et  seq. 

Disraeli,  Benjamin :  opinion  of  Well- 
ington, 134. 

Dred  Scott  Case:  70,  77,  78,  107. 

Dumouriez:  an  adventurer  and  con- 
servative, succeeds  Lafayette  in 
command,  153;  wins  Jemmapes, 
173;  trusted  by  Danton,  173; 
plots  restoration,  174  et  seq.; 
invades  Holland,  174;  treason  of, 
174,  175- 

Ellsworth,  Oliver:  appointed  Chief 
Justice,  6 1 ;  sent  Envoy  to  France, 
6 1 ;  resigns,  61. 

Emigrants,  French:  emigration  be- 
gins, 146;  mental  condition  of, 
151 ;  plans  of,  151 ;  threats  of, 
154  et  seq.;  confidence  of,  158; 
sufferings  after  Valmy,  164  et  seq. 

Environment:  effect  of,  231,  consolida- 
tion, result  of,  204,  205 ;  revolu- 
tions, follow  changes  in,  180,  206  ; 
changes  in,  rapid  in  proportion  to 
advances  in  science,  206  et  seq.; 
changes  in  America  inimical  to  polit- 
ical courts,  218  et  seq.;  modern, 
is  too  complex  for  the  predomi- 
nance of  the  present  capitalistic 
type,  226  et  seq. 

Financiers:  See  Capitalistic  Class. 

Fletcher  vs.  Peck:  86. 

Fleuriot:  mayor  of  Paris,  194;  sup- 
ported Robespierre  in  Thermidor, 
198;  executed,  200. 

Fleurus:  Campaign  of,  195,  196,  224. 

Fouquier-Tinvitte:  made  prosecuting 
officer  of  Tribunal,  175;  prose- 
cutes Danton,  185;  asked  Con- 
vention to  silence  Danton,  186; 
imprisons  Paris-Fabricius,  187 ; 
condemned,  224. 

Fourteenth  Amendment:  broadens 
jurisdiction  of  Supreme  Court, 


INDEX 


235 


96;  effect  of,  99  et  seq.;  Standard 
Oil  Case  under,  126. 

France:  old  regime  in,  136  et  seq.; 
Privilege  in,  138;  condition  of  in 
1793,  139-  See  Courts,  French; 
Emigrants;  Revolution;  Revolu- 
tionary Tribunal. 

Francis  II:  comes  to  throne,  152. 

George  III:  reactionist,  152. 

Giles,  William  Branch:  Conversa- 
tion of,  68. 

Girondists:  expelled  from  Assembly, 
177;  executed,  184,  185. 

Grant,  U.  S.,  General:  reverses  Hep- 
burn vs.  Griswold,  71. 

Guilds:  monopolies,  22;  regulation 
of,  by  Parliament,  22 ;  destroyed 
by  invention  of  artillery,  23. 

Hamilton,  Alex.:  defence  of  Consti- 
tution, 5;  distrusts  constitutional 
limitations,  44,  45;  theories  of 
American  sovereignty,  40-55;  his 
controversy  with  Jefferson  touch- 
ing constitutional  limitations,  49- 
53 ;  defines  judicial  will  and  judg- 
ment, 52,  06, 101 ;  theory  of,  touch- 
ing liability  of  sovereign,  80,  81. 

Harlan,  Mr.  Justice:  in  Standard 
Oil  Case,  122  et  seq. 

Henriot:  ordered  to  arrest  Fouquier, 
186;  friend  of  Robespierre,  194 ;  his 
action  on  10  Thermidor,  198;  exe- 
cuted, 200. 

Hepburn  vs.  Griswold:  71-73,  124. 

Highways:  an  attribute  of  Sover- 
eignty, 14;  administration  of  by 
Romans,  15;  by  France,  15;  views 
of  capitalists  touching,  209. 

Hoar,  Samuel  B.:  interferes  in  Hep- 
burn vs.  Griswold,  71-73. 

Hoche:  preferred  by  Carnot,  179; 
defeats  Austrians,  193. 

Holmes,  Mr.  Justice:  kdefines  Police 
Power,  105,  106. 

House  of  Lords:  highest  English 
tribunal,  114;  as  court,  political 
influences  excluded  from,  114; 
fall  of,  1 29  et  seq. ;  remains  highest 
court  of  appeal,  130. 


Huskisson,  Wm.:  breach  with  Well- 
ington, 134. 

Interstate  Commerce  Law:  3. 

Jackson,  General:  appointed  Taney 
Chief  Justice,  54;  successful  poli- 
tician, 212. 

Jay,  John:  appointed  Chief  Justice, 
53 ;  legal  theories  of,  80 ;  in  "  Chis- 
holm  vs.  Georgia,"  84;  declines 
Chief  Justiceship  in  1800,  85; 
failed  to  sustain  equality  before 
the  law,  115. 

Jemmapes:  Dumouriez  wins  battle 
of,  173- 

Jejfreys,  Chief  Justice:  41,  43. 

Jefferson,  Thomas:  dislikes  judicial 
interpretation  of  Constitution,  48 ; 
controversy  with  Hamilton  on  it, 
48,  49,  50,  51;  controversy  with 
Marshall,  59;  nullification,  60; 
Kentucky  resolutions,  60;  con- 
troversy touching  Marbury  vs. 
Madison,  63-66 ;  impeaches  Chase, 
67;  declares  Constitution  to  be 
wax  in  hands  of  judiciary,  127; 
insisted  on  nullification,  218. 

Jourdain:  Carnot  puts  in  command, 
179 ;  campaign  of  Fleurus,  195. 

Judicial  Function:  considered,  Chap. 
II,  36 ;  severed  from  executive 
function,  40,  43 ;  judicial  will  and 
judgment  defined,  52;  cannot  be 
mingled  with  politics,  127,  219  et 
seq.  See  Courts  and  Revolutionary 
Tribunal. 

Judiciary:  subserviency  of,  44;  sub- 
jected to  pressure  because  of  con- 
stitution, 45,  47;  censorship  of 
legislatures  confined  to  America, 
47;  political,  53,  54;  political  must 
be  partisan,  53-57 ;  distinction  be- 
tween courts  and  legislatures,  76; 
exposed  to  pressure,  82;  elective 
in  New  York,  128;  recall  of,  129; 
status  of  old  French,  136  el  seq.; 
modern  French  abstains  from  poli- 
tics, 20 1 ;  tends  to  become  tool 
of  majority  when  invested  with 


236 


INDEX 


political  power,  226.     See  Courts 
and  Revolutionary  Tribunal. 

KMcrmann:  wins  victory  of  Valmy, 

ISO- 

Kentucky  Resolutions:  60. 
Knox  vs.  Lee:  73. 

Labor:  a  monopoly,  27;  war  on 
capital,  28;  coercive  arbitration 
of,  30 ;  government  unable  to  con- 
trol, 227. 

Lafayette:  a  conservative,  153;  tried 
to  save  the  king  in  1702,  153; 
laughed  at  by  Court,  153;  Queen 
refused  to  be  saved  by,  154;  be- 
trayed by  Court,  157. 

Landlords,  English:  hold  seats  in 
House  of  Commons  as  incorporeal 
hereditaments,  87,  88 ;  rise  of,  133 ; 
control  of  House  of  Commons,  133 ; 
fall  of,  135. 

Law:  relative  development  of,  in 
eighteenth  and  twentieth  centuries, 
ii,  12;  Washington's  problem 
touching,  simple,  12;  twentieth 
century  insufficient  for  modern 
purposes,  12,  13;  equality  before, 
30,  82;  Roman,  flexible,  83; 
Praetor's  function,  83;  codifica- 
tion of,  112  et  seq. ;  equality  before, 
under  written  constitution,  115; 
of  Caste,  142,  152,  155;  tortures 
under,  154,  182;  see  Torture; 
combination  to  suppress  equality 
before,  in  French  Revolution,  161 ; 
reformed  by  National  Assembly, 
ifoetseq.;  of  Prairial,  183;  equal- 
ity before,  established  in  modern 
France,  201 ;  attitude  of  capital- 
ists toward,  212  et  seq.;  of  Jaco- 
bins toward  "suspected  persons," 
225;  Saint- Just  denounces  "the 
rich"  under,  225. 

Lawyers:  Roman,  superiority  of, 
112;  ability  of,  in  the  age  of 
Washington,  115;  attitude  toward 
Constitution,  214;  selected  by 
Capitalistic  Class,  214;  reverence 
Constitution,  219 ;  French,  220. 


Legislatures:  the  antithesis  of 
courts,  76;  dispensations  to, 
granted  by  courts  under  Police 
Power,  89 ;  cannot  be  trustworthy 
court,  113.  See  Police  Power. 

Leopold  II:  conference  at  Pilnitz, 
149 ;  restraining  influence  on  Marie 
Antoinette,  152;  death  of,  152. 

Lincoln,  Abraham:  appointed 
Chase  Chief  Justice,  54. 

Louis  XVI:  attends  banquet  at 
Versailles,  146;  carried  to  Paris, 
146;  captive  in  Tuileries,  146; 
plots  escape  to  Metz,  146 ;  created 
by  Caste,  147  et  seq.;  defends 
Caste,  148;  tries  to  join  Army  of 
Bouille,  148;  captured  in  Tuile- 
ries, 157-158;  imprisoned  in 
Temple,  158;  Royalist  indiffer- 
ence to  life  of,  161;  beheaded, 
173- 

Louis  XVIII:  See  Comiede  Provence. 

Machecoul:  massacres  at,  165;  in- 
surrection of  Vended  begins  at, 
174. 

Mallet  du  Pan:  sent  to  Duke  of 
Brunswick,  155;  helps  to  draw 
Manifesto,  156. 

Marbury  vs.  Madison:  63-66,  67. 

Marie  Antoinette:  attends  banquet 
at  Versailles,  146 ;  carried  to  Paris, 
146;  sneers  at  Mirabeau,  147; 
created  by  Caste,  147  et  seq.; 
sneered  at  Lafayette,  and  refused 
to  be  saved  by  him,  153,  154; 
sent  to  Temple,  158;  her  distrust 
of  her  brother-in-law,  161 ;  dis- 
like of  the  Duke  of  Orleans,  189. 

Marshall,  John:  appointed  Chief 
Justice,  53,  54,  61 ;  constitutional 
theories,  57,  58;  controversy  with 
Jefferson,  59;  character  of,  62, 
63 ;  decides  Marbury  vs.  Madison, 
63,  64 ;  constructive  genius  of,  77 ; 
legal  theories  of,  80 ;  theory  touch- 
ing contracts,  85-88;  in  Dart- 
mouth College  Case,  87 ;  failed  to 
sustain  equality  before  the  law, 
US- 


INDEX 


237 


Massacres:  of  Guards  at  Versailles, 
146;  of  the  Swiss  Guard,  157; 
September,  167  et  seq.;  at  Mache- 
coul,  174;  of  patriots  at  Lyons, 
177;  Carrier's  massacres  at 
Nantes,  101. 

Mirabeau:  intrigues  with  Court,  147  ; 
exasperated  with  Queen,  147 ;  a 
conservative,  145,  153. 

Missouri  Compromise;  70,  79. 

Monopoly:  sovereign  powers  are  a, 
13 ;  tendency  of  government  to 
absorb,  20;  trade,  21;  regulation 
of,  21 ;  mediaeval,  22  ;  Guilds,  22  ; 
regulation  of  by  Parliament,  22  ; 
royal  grants  of,  held  bad,  23,  24  ; 
anti-monopoly  litigation,  25 ;  not 
always  formed  consciously,  26; 
automatic  result  of  concentration 
of  capital,  26 ;  of  labor  27  ;  causes 
rate  regulation,  and  judicial  su- 
pervision, 100  et  seq.;  Trans- 
Missouri  Case,  116;  Standard  Oil, 
1 19;  statute  to  restrain,  124. 

Munn  vs.  Illinois:  101. 

National  Assembly:  States  General 
declared  to  be,  145 ;  orders  fused 
in,  145 ;  King  dissolves,  145 ;  is- 
sues assignats,  confiscates  Church 
property,  149;  secularizes  alle- 
giance of  the  clergy,  150;  reforms 
law,  170  et  seq. 

Nelson,  Senator  Knute:  report  on 
Sherman  Act,  118,  119. 

New  Jersey  vs.  Wilson:  86.  See 
Taxes. 

New  York  City:  politics  of,  capita- 
lists corrupt,  2 10  et  seq.  See  Tam- 
many Hall. 

Notables:  assembly  of,  144. 

Orleans,  Duke  of:  called  £galit6, 
history  of,  187,  188  et  seq.;  ar- 
rested by  Robespierre,  190;  exe- 
cuted, 191. 

Parliament,  English:  regulates  medi- 
aeval monopoly,  22;  absolute,  51  ; 
sole  grantor  of  monopoly,  24; 


seats  in,  private  property,  87,  88; 
landlords  acquired  right  to  return 
members  of,  133 ;  Wellington  op- 
poses reform  of,  134;  Reform  bill 
Passed,  135 ;  right  to  return  mem- 
bers of  House  of  Commons  an 
incorporeal  hereditament,  88,  137. 
Parliament  of  Paris:  offices  in,  pur- 
chasable, 136;  judicial  position  in 
heritable,  137;  Turgot  obtained 
place  in,  140 ;  constitutional  power 
of,  141 ;  opinion  of  touching  Cor- 
vee, 142;  refused  to  register  laws 
passed  by  notables,  144;  used  tor- 
ture, 154,  155;  discredited,  170; 
new  judiciary  resembled,  171 ; 
caused  friction  which  contributed 
to  revolution,  219;  a  semi-politi- 
cal court,  141,  220. 
Pichegru:  put  in  command,  179; 

takes  Antwerp,  195. 
Pilnitz:   meeting   at,  149;   manifes- 
toes at,  155,  156;    royalist   com- 
mentary on  declaration  at,  in  1791, 
161. 

Pinckney,  Charles:  suggests  con- 
gressional power  over  State  legis- 
lation, 56. 

Police  Power:  orgination  of,  theory 
of,  89;  defined,  92,  93,  94,  105 ;  ex- 
tension of,  06-106;  effort  at  defi- 
nition of,  98,  105 ;  reasonable  ex- 
ercise of,  98-105,  108,  109  et  seq.; 
exercise  of  in  Standard  Oil  Case, 
1 25  ;  identical  with  principle  under- 
lying Revolutionary  Tribunal,  223. 
Proctor:  Roman,  function  of,  83. 
Prairial:    law     of,     drafted,     183; 

executions  under,  191. 
Prices:  See  Monopoly. 
Prussia:  King  of,   at    Pilnitz,    149; 
manifesto  of,  155,  at  Valmy,  164. 

Railways:  highways,  15;  public 
agents,  15  ;  owned  by  private  per- 
sons, 16;  rates  are  taxes,  16,  17; 
Trans-Missouri  Case,  116  et.  teq. 

Recall:  Mr.  Roosevelt's  proposition 
to  recall  judicial  decisions,  4 ;  of 
judges,  an  effect  of  political  courts, 


238 


INDEX 


129;  of  judges,  a  revolutionary 
measure,  226. 

Reform  BUI:  of  1832,  135. 

Revolution,  French:  caused  by  in- 
tellectual rigidity,  135 ;  condition 
of  France  prior  to,  136  et  seq.; 
judicial  system  contributed  to,  137 ; 
unequal  taxes  contributed  to,  138, 
139;  Turgot  attempted  to  mod- 
erate, 140  et  seq.;  destroyed  Caste, 
143,  201 ;  beginning  of,  144,  145 ; 
aristocracy  failed  to  understand, 
147  et  seq.;  caused  emigration  of 
aristocracy,  148;  created  peasant 
land-owners,  149,  150;  Caste  re- 
sisted, 152 ;  combination  to  sup- 
press, 151,  155;  won  at  Valmy, 
159;  royalist  theories  concerning, 
161 ;  September  massacres,  167 ; 
considered  servile  revolt,  168;  due 
to  Royalists,  165, 168;  refonnslaw, 
170  etseq.;  coalition  against,  com- 
pleted, 173;  culminates  in  1793, 
1 76 ;  see  Committee  of  Public  Safety ; 
insurrection  against,  178;  vic- 
tories won  by,  179,  180;  creates  a 
criminal  process,  182  et  seq.; 
famous  trials  during,  184  et  seq.; 
violent  period  of,  ends  with  Thermi- 
dor,  196;  can  never  be  repeated, 
203,  225. 

Revolution,  Industrial:  causes  fall  of 
English  landlords,  133 ;  causes 
American  revolution,  206;  causes 
rise  of  Southern  planters,  206;  of 
industrial  capitalists,  207. 

Revolutionary  Tribunal:  organized, 
175;  executions  by,  in  1793,  175, 
176;  reorganized  by  Danton,  181 ; 
denned  treason,  181  et  seq.;  in- 
timidated, 182-187;  Danton  be- 
wailed erection  of,  223 ;  an  ad- 
ministrative board,  223;  always 
obeyed  the  majority,  224;  con- 
demns the  rich,  225 ;  impossible  in 
America,  225,  226. 

Revolutions:  occur  periodically,  6  et 
seq.;  caused  by  advance  in  applied 
science,  10;  violent  revolutions 
caused  by  resistance  to  change, 


133;  frequent  in  proportion  to 
changes  in  environment,  204-208; 
intellectual  exhaustion  caused  by, 
proportionate  to  frequency,  206. 

Robespierre:  joins  Committee  of 
Public  Safety,  178;  demands  sup- 
pression of  forms  in  Tribunal,  183 ; 
malice  toward  Duke  of  Orleans, 
191 ;  quarrels  with  Billaud  and 
Callot,  194;  power  culminates, 
194;  denounces  Tallien,  196;  sends 
The>6zia  to  La  Force,  106;  im- 
prisoned, 198;  liberated,  198; 
wounded  on  Thermidor,  199; 
executed,  200. 

Roland:  would  abandon  Paris,  158, 
159;  failed  to  stop  Massacres,  167. 

Roosevelt,  Theodore:  his  problem  in 
1912,3;  difficulties  of,  in  1912, 4,  5, 
6;  attitude  to  centralization,  6; 
offence  against  capital,  32. 

Rouerie,  Marquis  de  la:  goes  to 
Coblenz,  150. 

Ruling  Class:  rigid,  33;  in  France, 
nobility,  clergy,  and  lawyers,  142— 
143;  necessarily  destroyed,  143, 
201 ;  struggle  between  them  and 
Commons,  145 ;  politically  incapa- 
ble, 147  et  seq.;  emigrants,  148, 
151 ;  creatures  of  Caste,  151  etseq.; 
manifestoes  of,  155  et  seq.;  de- 
feated at  Valmy,  159;  their  plan 
of  campaign,  161  et  seq.;  brought 
on  massacres,  165  et  seq. ;  error  of, 
touching  Revolution,  168;  wage 
civil  war  in  France,  178;  exter- 
minated, 201  ;  shifts  of,  205. 

Saint- Just:  denounces  Billaud,  Col- 
lot,  and  Carnot,  197;  executed, 
200;  denounces  rich  under  law 
of  "suspected  persons,"  225. 

Science,  Applied:  the  cause  of  Rev- 
olution, 10 ;  effect  of,  in  nine- 
teenth century,  n  et  seq.;  effect 
of  applied  science  on  sovereignty, 
14;  effect  on  Police,  23;  effect  on 
Labor,  27;  increases  cost  of  ad- 
ministration, 139;  causes  social 
acceleration  and  disintegration, 


INDEX 


239 


203-205 ;  capitalists  raise  standard 
of,  217;  its  predominance,  a  men- 
ace, 217. 

Sherman  Act:  3;  Senate  sustains, 
118;  passed  in  1800,  124;  Con- 
gress may  amend,  126;  amended 
by  White,  C.  J.,  119,  123-126. 

Slaughter-House  Cases:  99. 

Smith  vs.  Ames:  109. 

Sovereignty:  Washington's  problem 
touching,  9  et  seq.;  powers  of,  de- 
nned, 13 ;  held  as  a  trust,  13 ; 
when  held  irresponsibly,  termed 
slavery,  14;  absorbed  in  United 
States  by  private  persons,  15  et 
seq.;  sovereignty  is  a  concentra- 
tion of  energy,  19  et  seq.;  a  true 
monopoly,  20-24;  capital  as  sov- 
ereign, 29 ;  capitalistic  sovereignty 
must  be  strong,  20-34;  relation 
of  courts  to,  34;  political  courts, 
instruments  of  despotic,  37-44 ; 
Jefferson's  theory  touching  usur- 
pation of,  by  American  courts,  52, 
127;  State  sovereignty,  80-8 1 ; 
courts  usurp  under  Police  Power, 
91  el  seq.;  American  now  hinges 
on  Police  Power,  105;  see  Police 
Power;  cannot  be  limited  by 
courts,  in  et  seq.;  French  sover- 
eignty passes  to  National  Assem- 
bly, 145 ;  caste  sovereignty,  fall 
of,  1 48  et  seq.;  see  Caste;  absorbed 
by  Committee  of  Public  Safety, 
178;  see  Committee  of  Public 
Safety;  Revolution,  French;  and 
Revolutionary  Tribunal;  capitalist, 
conceives  sovereign  powers  to  be 
for  sale,  209;  capitalistic  notion 
of  sovereign  functions,  213  et  seq.; 
sovereignty  of  U.  S.  once  asserted 
through  Supreme  Court,  218; 
Supreme  Court  now  disintegrates 
sovereignty,  218,  219;  adminis- 
trative sovereignty  cannot  be 
exercised  through  true  courts,  223, 
224;  see  Political  Courts;  modern 
capitalists  apparently  unable  to 
hold  their  sovereignty,  226  et  seq. 
Standard  Oil  Case :  119  et  seq. 


States  General:  summoned,  144.    See 

National  Assembly. 
Story,  Joseph:  extract  from  opinion 

of,  in  Charles  River  Bridge  Case, 

8;  view  in   Charles  River  Bridge 

Case,  90,  91. 

Tattien:  sketch  of,  195;  fell  in  love 
with  Th£rezia  Cabarrus,  195; 
elected  to  Convention,  196;  saves 
Ther&ia,  196;  attacks  Robes- 
pierre, 197;  joined  party  of  the 
Right,  224. 

Tammany  Hall:  capitalistic  engine, 
211 ;  used  to  nominate  judges,  215. 

Taney:  Chief  Justice,  appointed 
by  Jackson,  54;  in  Dred  Scott 
Case,  70 ;  in  Charles  River  Bridge 
Case,  91. 

Terror:  how  caused,  176  et  seq.;  how 
ended,  192  et  seq.;  loathed  by 
France,  192 ;  instruments  of,  put 
to  death,  193 ;  end  of,  195,  200. 
See  French  Revolution  and  Com- 
mittee of  Public  Safety. 

Thermidor,  Tenth  of:  Saint-Just  tries 
to  denounce  Billaud,  Collot,  and 
Carnot,  196-197;  attack  on  Robes- 
pierre and  Saint-Just,  197;  suc- 
cessful, 198  et  seq.;  executions  on 
eleventh  of,  224,  225. 

Torture:  used  as  means  of  punish- 
ment in  army,  147,  155 ;  an  inte- 
gral part  of  the  old  French  law, 
154;  public  torture  habitual,  tor- 
ture of  Damiens,  154,  155;  French 
emigrants  believed  that  they  could 
intimidate  the  revolutionary  army 
by  threats  of,  151, 154, 155  ;  threat- 
ened by  them  and  by  the  Duke  of 
Brunswick,  156,  157;  used  by  the 
insurgents  at  Machecoul  in  Vendee, 
165;  a  scandal  under  the  old  r6- 
gime  and  suppressed  by  Revolu- 
tion, 170,  182;  Church  for  ages 
habitually  tortured,  and  so  did 
French  courts,  182. 

Toulon :  surrendered  to  English,  1 78 ; 
decrease  in  population  of,  191 ; 
evacuated,  193. 


240 


INDEX 


Trans-Missouri  Case:     116  et  seg.; 

rule   in,    approved    by   Congress, 

118;  overruled  by  White,  C.  J., 

119  et  seq. 
Tuileries:     stormed     August    loth, 

157;  plan  for  defence  of,  157,  162. 
Turgot,   Robert:    history  of,    139  et 

seq.;  edict  touching  Corv6e,  140; 

breach     with     Parliament,     141 ; 

predicts  insolvency  of  France,  143. 

Uriah,  the  Bittile:  Case  of,  38. 

U.  S.  Steel  Co. :  management  of,  20. 

Valmy:  victory  of,  159,  161  et  seq. 

Vendee,  La:  cause  of  insurrection  in, 
150;  begins  in,  165,  174;  massa- 
cre at  Machecoul,  165;  defeat  of 
insurrection  in,  193. 


Vergniaud:  trial  of,  184. 
ditto. 


SeeGiron- 


War  Power:  97. 

Washington,  General:  reform  of  Con- 
federation by,  7 ;  his  solution  of 
problems  presented  by  Confedera- 
tion, 9,  10 ;  his  advantage  as  a  re- 
former in  eighteenth  century,  1 1 ; 
eighteenth  century  law  sufficed 
for,  12,  13;  appoints  John  Jay 
Chief  Justice,  53 ;  appoints  Ells- 
worth Chief  Justice,  61. 

Wellington,  Duke  of:  in  the  reform 
agitation,  134,  135 ;  Disraeli's 
opinion  of,  134,  135. 

White,  Edward  Douglas:  Chief  Jus- 
tice, in  Income  Tax  Case,  74;  in 
Standard  Oil  Case,  119,  120  el  seq. 


T 


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a  like  effect  with  them." 

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and  German  Socialism,  in  the  knowledge  of  which  the  author  probably 
has  few  superiors  in  this  country."  —  Literary  Digest. 


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