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 in 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, combination is easier and more profitable than competition; therefore combination, conscious or unconscious, supplants competition. The inference 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 the mass of capital more homogeneous by eliminating still further such of the weaker capitalists as have survived. Ultimately, unless indeed society is to dissolve and capital migrate elsewhere, all the present phenomena would be intensified. Nor would free trade, probably, have more than a very transitory effect. In no department 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 capitulated. Also, in labor's methods of warfare the same phenomena appear as in the autocracy of 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 social 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 commensurate 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 capitalistic 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 Republican 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 conditions 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, if the government has not the power to command obedience to its arbitrators' decree; but a government able to constrain a couple of hundred thousand 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 himself 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 admit 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 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 appreciating 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 proposition is, that amidst disorder, capital and credit, which constitute the pith of our civilization, 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, it is evident that capitalists must accept a position of equality before the law under the domination 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 immediate control, they preferred to shatter the instrument by which they sustained their ascendancy. 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 seriously 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 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 compensation 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 assuming that the great industrial and capitalistic interests would be prepared to assist a movement toward consolidation, as their ancestors assisted Washington, I deem it far from probable that they could succeed with the large 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 unconscious 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 administrative 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 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 Constitution, 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 remain semi-political 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 inexorable 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 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 wisdom 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 unlimited judicial power, save in so far as they were checked by the divine interference usually signified through some prophet.
Now David was, admittedly, one of the best sovereigns and judges who ever held office in Jerusalem, and, in the days of David, Nathan was the leading prophet of the dominant political party. "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 he came unto him, and said unto him, There were two men in 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." 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 Solomon, 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 Perrers, the mistress of Edward III, sat on the bench at Westminster and intimidated the judges into deciding for suitors who had secured her services. 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 prosecutions 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 Algernon 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, witnesses 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 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 followed 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 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 Revolution, 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 consistent in his attitude. A judiciary is either an end in 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 removed 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 instrument for advancing the fortunes of a majority or a dominant class, as David used the Jewish judiciary, 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 restrictions. 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 upon for permanent effects. Particular provisions, 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 maintain 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 Constitution. For, under the American system, the Constitution, 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 remove. 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 in 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 English 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 imitated us, though all have borrowed freely from the parliamentary system of England.6
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 Parliament, but they do not pretend to limit the exercise of power when the seat of power has been established. 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 administrative device. Not only has constant judicial 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 necessary to political success. Consequently, political 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 Theodore 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 time 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 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 Washington'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.7
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 Constitution was under discussion. Substantially the same arguments were advanced by others during the actual debate, if not quite so lucidly or connectedly then, as afterward by him.
Very well, said Jefferson, in answer to Hamilton, admitting, for the moment, that the central government shall define its own powers, and that the courts shall be the organ through which the exposition shall be made, both of which propositions 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 in those controversies they cannot fail to be influenced 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 controls 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 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 amendment 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 not to allow political influences to weigh with them when deciding political questions. Pushed to its logical end, concluded he, the Jeffersonian argument would prove that there should be no judges distinct from legislatures.8
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 legislation, 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 irresponsible men under pretence of dispensing justice, but really in a spirit of hypocrisy, 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.