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Title: The Constitution of the United States
A Brief Study of the Genesis, Formulation and Political
Philosophy of the Constitution
Author: James M. Beck
Release Date: November 12, 2003 [EBook #10065]
Language: English
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[Illustration: _Photo Henry Dixon & Son_ _From the Portrait painted by
Harrington Mann for Gray's Inn_]
JAMES M. BECK
HONORARY BENCHER OF GRAY'S INN
_The Constitution of the United States_
_A brief Study of the Genesis, Formulation and Political Philosophy of
the Constitution of the United States_
_By James M. Beck, LL.D_.
_Solicitor-General of the United States, Honorary Bencher of Gray's Inn_
_With a Preface by The Earl of Balfour_
"_Where there is no vision, the people perish; but he that keepeth the
Law, happy is he."--Proverbs xxix_. 18
"_Remove not the ancient landmark, which thy fathers have
set."--Proverbs xxii_. 28
TO THE HON. HARRY M. DAUGHERTY
ATTORNEY-GENERAL OF THE UNITED STATES
A TRUE AND LOYAL FRIEND, A FAIR AND CHIVALROUS FOE
With whom it is the author's great privilege to collaborate as
Solicitor-General in defending and vindicating in the Supreme Court of
the United States the principles and mandates of its Constitution
_Chamonix_,
_July_ 14 1922
_Preface by the Earl of Balfour_[1]
I have been greatly honoured by your invitation to take the chair on
this interesting occasion. It gives me special pleasure to be able to
introduce to this distinguished audience my friend, Mr. Beck,
Solicitor-General of the United States. It is a great and responsible
office; but long before he held it he was known to the English public
and to English readers as the author who, perhaps more than any other
writer in our language, contributed a statement of the Allied case in
the Great War which produced effects far beyond the country in which it
was written or the public to which it was first addressed. Mr. Beck
approached that great theme in the spirit of a great judge; he
marshalled his arguments with the skill of a great advocate, and the
combination of these qualities--qualities, highly appreciated
everywhere, but nowhere more than in this Hall and among a Gray's Inn
audience--has given an epoch-making character to his work. To-day he
comes before us in a different character. He is neither judge nor
advocate, but historian: and he offers to guide us through one of the
most interesting and important enterprises in which our common race has
ever been engaged.
The framers of the American Constitution were faced with an entirely new
problem, so far, at all events, as the English-speaking world was
concerned; and though they founded their doctrines upon the English
traditions of law and liberty, they had to deal with circumstances which
none of their British progenitors had to face, and they showed a
masterly spirit in adapting the ideas of which they were the heirs to a
new country and new conditions. The result is one of the greatest pieces
of constructive statesmanship ever accomplished. We, who belong to the
British Empire, are at this moment engaged, under very different
circumstances, in welding slowly and gradually the scattered fragments
of the British Empire into an organic whole, which must, from the very
nature of its geographical situation, have a Constitution as different
from that of the British Isles, as the Constitution of the British Isles
is different from that of the American States. But all three spring from
one root; all three are carried out by men of like political ideals; all
three are destined to promote the cause of ordered liberty throughout
the world. In the meanwhile we on this side of the Atlantic cannot do
better than study, under the most favourable and fortunate conditions,
the story of the great constitutional adventure which has given us the
United States of America.
A.J.B.
[Footnote 1: [Address of the Earl of Balfour as Chairman on the occasion
of the delivery on June 13, 1922, in Gray's Inn of the first of the
lectures herein reprinted.]]
_Introduction by Sir John Simon, K.C._[2]
I have the privilege and the honour of adding a few words to express our
thanks to the Solicitor-General of the United States for this memorable
course of lectures. They are memorable alike for their subject and their
form; alike for the place in which we are met and for the man who has so
generously given of his time and learning for our instruction. Mr. Beck
is always a welcome visitor to our shores, and nowhere is he more
welcome than in these ancient Inns of Court which are the home and
source of law for Americans and Englishmen alike. In contemplating the
edifice reared by the Fathers of the American Constitution we take pride
in remembering that it was built upon British foundations by men, many
of whom were trained in the English Courts; and when Mr. Beck lectures
on this subject to us, our interest and our sympathy are redoubled by
the thought that whatever differences there may be between the Old World
and the New, citizens of the United States and ourselves are the Sons of
a Common Mother and jointly inherit the treasure of the Common Law. And
we cannot part with Mr. Beck on this occasion without a personal word.
Plato records a saying of Socrates that the dog is a true philosopher
because philosophy is love of knowledge, and a dog, while growling at
strangers, always welcomes the friends that he knows. And the British
public often greets its visitors with a touch of this canine philosophy.
We regard Mr. Beck, not as a casual visitor, but as a firm friend to
whom we owe much; he has been here again and again and we hope will
often repeat his visits, and Englishmen will never forget how, at a
crisis in our fate, Mr. James Beck profoundly influenced the judgment of
the neutral world and vindicated, by his masterly and sympathetic
argument, the justice of our cause.
[Footnote 2: Address of Sir John Simon on the conclusion, on June
19,1922, of the three lectures herein printed.]
_Author's Introduction_
This book is a result of three lectures, which were delivered in the
Hall of Gray's Inn, London, on June 13, 15, and 19, 1922, respectively,
under the auspices and on the invitation of the University of London.
The invitation originated with the University of Manchester, which,
through its then Vice-Chancellor, Dr. Ramsay Muir, two years ago
graciously invited me to visit Manchester and explain American political
institutions to the undergraduates. Subsequently I was greatly honoured
when the Universities of Cambridge, Edinburgh and London joined in the
invitation.
Unfortunately for me--for I greatly valued the privilege of explaining
the institutions of my country to the undergraduates of these great
Universities--my political duties made it impossible for me to visit
England prior to June 1, about which time the Supreme Court of the
United States, in which my official duties largely preoccupy my time,
adjourns for the summer. Any dates after June 1 were inconvenient to the
first three Universities, but it was my good fortune that the University
of London was able to carry out the plan, and that it had the cordial
co-operation of that venerable Inn of Court, Gray's Inn, one of the
"noblest nurseries of legal training."
Thus I was privileged to address at once an academic and a professional
audience.
I came to England for this purpose as a labour of love. I had no
anticipation of success, for I feared that the interest in the
subject-matter of my lectures would be very slight.
My surprise and gratification increased on the occasion of each lecture,
as the audiences grew in numbers and distinction. Many leading jurists
and statesmen took more than a mere complimentary interest, and some of
them, although pressed with social and public duties, honoured me with
their attendance at all three lectures. How can I adequately express my
appreciation of the great honour thus done me by the Earl of Balfour,
the Lord Chancellor, Lord Justice Atkin, the Vice-Chancellor of the
University of London, and many other leaders in academic and legal
circles--not to forget the Chief Justice of the United States, who paid
me the great compliment of attending the last lecture. To one and nil of
my auditors, my heartfelt thanks!
I also must not fail to acknowledge the generous space given in the
British Press to these lectures, and the even more generous allusions to
them in the editorial columns. An especial acknowledgment is due to
Viscount Burnham and _The Daily Telegraph_ for their generous interest
in this book. The good cause of Anglo-American friendship has no better
friend than Lord Burnham.
This experience has convinced me that now, more than ever before, there
is in England a deep interest in American institutions and their
history. This is as it should be, for--for better or worse--England and
America will play together a great part in the future history of the
world. In double harness they are destined to pull the heavy load of the
world's problems. Therefore these "yoke-fellows in equity" must know
each other better, and, what is more, _pull together_.
As I was revising the proofs of these lectures in beautiful Chamonix,
the prospectus of the Scottish-American Association reached me, in which
its Honorary Secretary and my good friend, Dr. Charles Sarolea, took
occasion to make the following suggestion to his British compatriots:
"To remove those causes of estrangement, to avoid a fateful
catastrophe, in other words, to bring about a cordial understanding
_with_ America, the first condition must be an understanding _of_
America. Such an understanding, or even the atmosphere in which such
an understanding may grow, has still to be created. It is indeed
passing strange that in these days of cheap books and free
education, America should be almost a '_terra incognita_,' that we
should know next to nothing of American history, of the American
Constitution, of American practical politics, of the American
mentality. We scarcely read American newspapers or American books.
Even such masters of classical prose as Francis Parkman, perhaps the
greatest historian who has used the English language as his vehicle,
are almost unknown to the average reader. Our students do not visit
American universities as they used before the War to visit German
universities. The consequence is that again and again we are running
the risk of perpetrating the most grotesque errors of judgment, of
committing the most serious political blunders, in defiance of
American public opinion."
The success of my Gray's Inn lectures convinces me that Dr. Sarolea
underestimates the interest in America and its history in England.
However, the episode, which is treated in these lectures, is, as he
says, "_terra incognita_" not only in England, but even in the United
States. It is amazing how little is known in America of the facts given
in my second lecture. The American student, after rejoicing in the
victory at Yorktown and the end of the War of Independence, generally
skips about eight years to 1789, mid his interest in the history of his
own country recommences with the inauguration of President Washington.
Students of history in both countries thus miss one of the most
interesting and instructive chapters of American history, and indeed of
any history.
I have ventured to add to my Gray's Inn lectures another address, which
I delivered as the "annual address" at the session of the American Bar
Association in Cincinnati, Ohio, on August 31, 1921. I do so, because it
has a direct bearing on the decay of the spirit of constitutionalism
both in America and elsewhere. It discusses a great _malaise_ of our
age, for which, I fear, no written Constitution, however wise, is an
adequate remedy. It was published in condensed form in the issue of the
_Fortnightly_ for October, 1921, and an acknowledgment is due to its
courteous editor for permission to republish it.
I have forborne in these lectures to make more than a passing reference
to the League of Nations and the great Conference which framed it,
tempting as the obvious analogy was. The reader who studies the
appendices will see that the Covenant of the League more nearly
resembles the Articles of Confederation than the Constitution of 1787.
I only mention the subject to suggest that the reader of these lectures
will better understand why the American people take the written
obligations of the League so seriously and literally. We have been
trained for nearly a century and a half to measure the validity and
obligations of laws and executive acts in Courts of Justice and to apply
the plain import of the Constitution. Our constant inquiry is, "Is it so
nominated" in that compact? In Europe, and especially England,
constitutionalism is largely a spirit of great objectives and ideals.
Therefore, while in these nations the literal obligations of Articles X,
XI, XV, and XVI of the Covenant of the League are not taken rigidly, we
in America, pursuant to our life-long habit of constitutionalism,
interpret these clauses as we do those of our Constitution, and we ask
ourselves, Are we ready to promise to do, that which these Articles
literally import, join, for example, in a commercial, social and even
military war against any nation that is deemed an aggressor, however
remote the cause of the war may be to us? Are we prepared to say that in
the event of a war or threatened danger of war, the Supreme Council of
the League may take any action it deems wise and effectual to maintain
peace? This is a very serious committal. Other nations may not take it
so literally, but with our life-long adherence to a written Constitution
as a solemn contractual obligation, we do.
This is said in no spirit of hostility to the League, but only to
explain the American point of view. Since I delivered these lectures, I
took a short trip to the Continent, and while sojourning in Geneva, made
a visit to the offices of the League. All I there saw greatly interested
me, and I could have nothing but a feeling of admiration for the
effective and useful administrative work which the League is doing.
The men who framed the Covenant of the League tried to do, under more
difficult, but not dissimilar, conditions, what the framers of the
American Constitution did in 1787. In both cases the aim was high, the
great purpose meritorious. Those Americans who, for the reasons stated,
are not in sympathy with the structural form and political objectives of
the League, are not lacking in sympathy for its admirable administrative
work in co-ordinating the activities of civilized nations for the common
good. In any study of a World Constitution, the example of those who
framed the American Constitution can be studied with profit.
JAMES M. BECK.
_Chamonix_,
July 14, 1922.
_Contents_
PREFACE BY THE EARL OF BALFOUR
INTRODUCTION BY SIR JOHN SIMON
AUTHOR'S INTRODUCTION
FIRST LECTURE: THE GENESIS OF THE CONSTITUTION
SECOND LECTURE: THE FORMULATION OF THE CONSTITUTION
THIRD LECTURE: THE POLITICAL PHILOSOPHY OF THE CONSTITUTION
THE REVOLT AGAINST AUTHORITY
_I. The Genesis of the Constitution of the United States_
I trust I need not offer this audience, gathered in the noble hall of
this historic Inn--of "old Purpulei, Britain's ornament"--any apology
for challenging its attention in this and two succeeding addresses to
the genesis, formulation, and the fundamental political philosophy of
the Constitution of the United States. The occasion gives me peculiar
satisfaction, not only in the opportunity to thank my fellow Benchers of
the Inn for their graciousness in granting the use of this noble Hall
for this purpose, but also because the delivery of these addresses now
enables me to be, for the moment, in fact as in honorary title a
Bencher, or Reader, of this time-honoured society.
If I needed any justification for addresses, which I was graciously
invited to deliver under the auspices of the University of London, an
honour which I also gratefully acknowledge, it would lie in the fact
that we are to consider one of the supremely great achievements of the
English-speaking race. It is in that aspect that I shall treat my theme;
for, as a philosophical or juristic discussion of the American
Constitution, my addresses will be neither as "deep as a well, nor as
wide as a church door."
My auditors will bear in mind that I must limit each address to the
duration of an hour, and that I cannot go deeply or exhaustively into a
subject that has challenged the admiring comment and profound
consideration of the intellectual world for nearly a century and a half.
If England and America are to act together in the coming time--and the
destinies of the world are, to a very large extent, in their keeping,
then they must know each other better, and, to this end, they must take
a greater interest in each other's history and political institutions.
My principal purpose in these lectures is to deepen the interest of this
great nation in one of the very greatest and far-reaching achievements
of our common race.
Americans have never lacked interest in English history; for however
broad the stream of our national life, how could we ignore its chief
source?
But is there in England an equal interest in the history of America,
whose origin and development constitute one of the most dramatic and
significant dramas ever played upon the stage of this "wide and
universal theatre of man"? It is true that Thackeray, in his
_Virginians_, gave us in fiction the finest picture of our colonial
life, and the late and deeply lamented Lord Bryce wrote one of the best
commentaries upon our institutions in _The American Commonwealth_. In
more recent years two of the most moving portraits of our Hamilton and
Lincoln are due to your Mr. Oliver and Lord Charnwood. We gratefully
recognize this; and yet, how many educated Englishmen have studied that
little known chapter of our history, which gave to the progress of
mankind a contribution to political science which your Gladstone praised
as the greatest "ever struck off at a given time by the brain and
purpose of man"? If "peace hath her victories no less renown'd than
war," this achievement may well justify your study and awaken your
admiration; for, as I have already said and cannot too strongly
emphasize, it was the work of the English-speaking race, of men who,
shortly before they entered upon this great work of constructive
statecraft, were citizens of your Empire. The conditions of colonial
development had profoundly stimulated in these English pioneers the
sense and genius for constitutionalism.
In his speech on Conciliation with America of March 22, 1775, Edmund
Burke showed his characteristically philosophic comprehension of this
powerful constitutional conscience of the then American subjects of the
Empire. After stating that in no other country in the world was law so
generally studied, and referring to the fact that as many copies of
Blackstone's Commentaries had been sold in America as in England, he
added:
"This study renders men acute, inquisitive, dexterous, prompt in
attack, ready in defence, full of resources. In other countries the
people, more simple and of a less mercurial cast, judge of an ill
principle in government only by an actual grievance; here they
anticipate the evil, and judge of the pressure of the grievance by
the badness of the principle."
Moreover, these hardy pioneers were the privileged heirs of the great
political traditions of England. While the Constitution of the United
States was very much more than an adaptation of the British
Constitution, yet its underlying spirit was that of the English speaking
race and the Common Law. Behind the framers of the Constitution, as they
entered upon their momentous task, were the mighty shades of Simon de
Montfort, Coke, Sandys, Bacon, Eliot, Hampden, Lilburne, Milton,
Shaftesbury and Locke. Could there be a better illustration of Sir
Frederick Pollock's noble tribute to the genius of the common law:
"Remember that Our Lady, the Common Law, is not a task-mistress, but
a bountiful sovereign, whose service is freedom. The destinies of
the English-speaking world are bound up with her fortunes and
migrations and its conquests are justified by her works"?
Another reason makes the consideration of the subject not only
interesting but opportune. "These are the times that try men's souls."
It is a time of sifting, when men of all nations in civilization in
these critical days are again testing the value even of those political
institutions which have the sanction of the past. Society is in a state
of flux. Everywhere the foundations of governmental structures seem to
be settling--let us hope and pray upon a _surer_ foundation--and when
the seismic convulsion of the world war is taken into account, it is not
surprising that this is so. While the storm is not yet past and the
waves have not wholly subsided, it is natural that everywhere thoughtful
men as true mariners are taking their reckonings to know where they are
and whether the frail bark of human institutions is still sufficiently
seaworthy to keep afloat.
Moreover, the patent evidences of weakness in the international
organization that we call civilization, the imperative need of ending
the spirit of moral anarchy, and the urgent necessity of rebuilding the
shattered ruins of the social edifice on surer foundations by the
integration of the nations, if possible, into some new form of world
organization, gives peculiar interest in these terrible days to the
manner in which the American people solved a similar problem more than a
century ago.
Then, as now, a world war had ended. Then, as now, half the world was
prostrated by the wounds of fratricidal strife. As Washington said: "The
whole world was in an uproar," and he added that the task "was to steer
safely between Scylla and Charybdis." The problem, then as now, was not
only to make "the world safe for democracy," but to make democracy, for
which there is no alternative, safe for the world. The thirteen colonies
in 1787, while small and relatively unimportant, were, however, a little
world in themselves, and, relatively to their numbers and resources,
this problem, which they confronted and solved, differed in degree but
not in kind from that which now confronts civilization. Impoverished in
resources, exhausted by the loss of the flower of their youth,
demoralized by the reaction from feverish strife, the forces of
disintegration had set in in the United States between 1783 and 1787.
Law and order had almost perished and the provisional government had
been reduced to impotence. A few wise and noble spirits, true Faithfuls
and Great Hearts, led a despondent people out of the Slough of Despond
till their feet were again on firm ground and their faces turned towards
the Delectable Mountains of peace, justice, and liberty. Let it be
emphasized that they did this, not by seeking more power, but by
imposing restraints upon themselves. That spirit of self-restraint is
the essence of the American Constitution.
So enduring was their achievement that to-day the Constitution of the
United States is the oldest comprehensive written form of government now
existing in the world. Few, if any, forms of government have better
withstood the mad spirit of innovation, or more effectively proved their
merit by the "arduous greatness of things done."
For this reason, as the nations of the world are now trying in a cosmic
form and under similar conditions to do that which the founders of the
American Republic in 1787 did in a microcosmic form, a short narration
of that earlier achievement may not be unprofitable in this day and
generation, when we are blindly groping towards some common basis for
international co-ordination.
One of England's greatest Prime Ministers, William Pitt, shortly after
the adoption of the Constitution, prophetically said that it would be
the admiration of the future ages and the pattern for future
constitution building. Time has verified his prediction, for
constitution making has been, since the American Constitution was
adopted, a continuous industry. The American Constitution has been the
classic model for the federated State. Lieber estimated that three
hundred and fifty constitutions were made in the first sixty years of
the nineteenth century, and, in the constituent States of the American
Union, one hundred and three new Constitutions were promulgated in the
first century of the United States.
"Have you a copy of the French Constitution?" was asked of a bookseller
during the second French Empire, and the characteristically witty Gallic
reply was: "We do not deal in periodical literature."
Constitutions, as governmental panaceas, have come and gone; but it can
be said of the American Constitution, paraphrasing the noble tribute of
Dr. Johnson to the immortal fame of Shakespeare, that the stream of
time, which has washed away the dissoluble fabric of many other paper
constitutions has left almost untouched its adamantine strength.
Excepting the first ten amendments, which were virtually a part of the
original charter, only nine others have been adopted in more than one
hundred and thirty years.
A constitution, while primarily for the distribution of governmental
powers, is, in its last analysis, a formal expression of adherence to
that which in modern times has been called the higher law, and which in
ancient times was called natural law. The jurisprudence of every nation
has, with more or less clearness, recognized the existence of certain
primal and fundamental laws which are superior to the laws, statutes, or
conventions of living generations. The original use of the term was to
import the superiority of the Imperial edict to the laws of the Comitia.
All nations have recognized this higher law to a greater or less extent.
If we turn to the writings of the most intellectual race in ancient
time and possibly in recorded history--the Greeks--we shall see the
higher law vindicated with incomparable power in the moral philosophy of
its three greatest dramatists, Aeschylus, Sophocles, and Euripides. How
was it better expressed than by Antigone when she was asked whether she
had transgressed the laws of the state and replied:
"Yes, for that law was not from Zeus, nor did Justice, dweller with
the gods below, establish it among men; nor deemed I that thy
decree--mere mortal that thou art--could override those unwritten
and unfailing mandates, which are not of to-day or yesterday, but
ever live and no one knows their birthtide."
Five centuries later the greatest of the Roman lawyers and orators,
Cicero, spoke in the same terms of a higher law, "which was never
written and which we are never taught, which we never team by reading,
but which was drawn by nature herself."
The Roman jurists gave it express recognition. They always recognized
the distinction between _jus civile_, or the law of the State, and the
_jus naturale_, or the law of Nature. They nobly conceived that human
society was a single unit and that it was governed by a law that was
both antecedent and paramount to the law of Rome. Thus, the idea of a
higher law transcending the power of a living generation, and therefore
eternal as justice itself--became lodged in our system of jurisprudence.
Nor was the Common Law wanting in a recognition of a higher law that
would curb the power of King or Parliament, for its earlier masters,
including four Chief Justices (Coke, Hobart, Holt, and Popham),
supported the doctrine, as laid down by Coke, that the judiciary had the
power to nullify a law if it were "against common right and
reason."--(_Bonham's Case_, 8 Coke Reports, 114.)
This view as to the limitation of government and the denial of its
omnipotence was powerfully accentuated in America by the very conditions
of its colonization. The good yeomen of England who journeyed to America
went in the spirit of the noble and intrepid Kent, when, turning his
back upon King Lear's temporary injustice, he said that he would "shape
his old course in a country new." Was it strange that the early
colonists, as they braved the hardships and perils of a dangerous
voyage, only to be confronted in the wilderness by disease, famine and
massacre, should fall back for their own government upon these primal
verities of human society, and claim not only their inherited rights as
Englishmen, but also the peculiar privileges of pioneers in an
unconquered wilderness?
This spirit of constitutionalism in America, which culminated in the
Constitution of the United States, had its institutional origin in the
spacious days of Queen Elizabeth. That wonderful age, which gave to the
world not only Shakespeare, Spenser and Jonson, but also Drake,
Frobisher and Raleigh, was the Anglo-Saxon reaction to the Renaissance.
The spirit of man had a new birth and was breaking away from the too
rigid bonds of ancient custom and authority.
Among the notable, but little known, leaders of that time was Sir Edwin
Sandys, the leading spirit of the London (or Virginia) company. He was a
Liberal when to be such was an "extra hazardous risk." He was the son of
a Liberal, for his father, a great prelate, had been sent to the Tower
for preaching in defence of Lady Jane Grey. The son, Sir Edwin, was the
foe of monopolies, and in the same Parliament that impeached the great
genius of this Inn, Francis Bacon, Sandys advocated the then novel
proposition that accused prisoners should have the right to be
represented by counsel, to which the strange objection was made that it
would subvert the administration of justice. As early as 1613, he had
boldly declared in Parliament that even the King's authority rested upon
the clear understanding that there were reciprocal conditions which
neither ruler nor subject could violate with impunity. He might not too
fancifully be called the "Father of American Constitutionalism," for he
caused a constitution--possibly the first time that that word was ever
applied to a comprehensive scheme of government--to be drafted for the
little colony of Virginia in 1609 and amplified in 1612. Speaking in
this venerable Hall, whose very walls eloquently remind us of the mighty
genius of Francis Bacon, it is interesting to recall that these two
charters of government, which were the beginning of Constitutionalism in
America and therefore the germ of the Constitution of the United States,
were put in legal form for royal approval by Lord Bacon himself. Thus
the immortal Treasurer of this Inn is directly linked with the
development of Constitutional freedom in America.
Bacon became a member of the council for the Virginia Company in 1609.
His deep interest in it is attested in the dedication to him by William
Strachey in 1618 of the latter's _Historie of Travaile into Virginia
Brittania_.
In his speech in the House of Commons on January 30, 1621, Bacon saw a
vision of the future and predicted the growth of America, when he said:
"This kingdom now first in His Majesty's Times hath gotten a lot or
portion in the New World by the plantation of Virginia and the
Summer Islands. And certainly it is with the kingdoms on earth as it
is in the kingdom of heaven, sometimes a grain of mustard seed
proves a great tree."
Truly the mustard seed of Virginia did become a great tree in the
American Commonwealth.
One of Bacon's nephews, also of the Inns of Court, Nathaniel Bacon,
became the first Liberal leader in the Colonies, and led the first
revolt against colonial misrule. He was probably of Gray's Inn, for it
is difficult to imagine a Bacon studying in any Inn than the one to
which the great Bacon had given so much loving care.
Due to these charters, on July 30, 1619, the little remnant of colonists
whom disease and famine had left untouched were summoned to meet in the
church at Jamestown to form the first parliamentary assembly in America,
the first-born of the fruitful Mother of Parliaments. It was due to
Sandys not only that the first permanent English settlement in the
Western World was planted at Jamestown in 1607, but that a later group
of "adventurers"--for such they called themselves--destined to be more
famous, were driven by chance of wind and wave to land on the coast of
Massachusetts. Thus was established, not only the beginning of England's
colonial Empire--still one of the most beneficent forces in the
world--but also the principle of local self-government, which, in the
Western World, was destined to develop the American Commonwealth. The
compact, signed in the cabin of the _Mayflower_, while not in strictness
a constitution, like the Virginia Charter, was yet destined to be a
landmark of history.
Sandys suffered for his convictions, for the party of reaction convinced
King James that Virginia was a nest of sedition, and the arbitrary
ruler, in the reorganization of the London company, gave a pointed
admonition by saying: "Choose the devil, if you will, but not Sir Edwin
Sandys." In 1621 he was committed to the Tower and only released after
the House of Commons had made a vigorous protest against his
incarceration. His successor as treasurer of the London company was
Shakespeare's patron, the Earl of Southampton, and it is not a fanciful
conjecture to assume that, when the news of the disaster which befell
one of the fleets of the London Company on the Island of Bermuda reached
England, it inspired Shakespeare to write his incomparable sea idyl,
_The Tempest_. If so, this lovely drama was Shakespeare's unconscious
apostrophe to America, for in Ariel--seeking to be free--can be
symbolized her awakening spirit, while Prospero, with his thaumaturgic
achievements, suggests a constructive genius, which in a little more
than a century has made one of the least of the nations to-day one of
the greatest.
Bacon, Sandys, Southampton and the Liberal leaders of the House of
Commons had implanted in the ideas of the colonists the spirit of
constitutionalism, which was destined to influence profoundly the whole
development of the American colonies, and finally to culminate in the
Constitution of the United States.
The later struggle in the Long Parliament, the fall of Charles I, and
more especially the deposition of James II, the accession of William of
Orange, and the substitution for the Stuart claim of divine right that
of the supremacy of the people in Parliament, naturally had their
reaction in the Western World in intensifying the spirit of
constitutionalism in the growing American Commonwealth.
The colonial history was therefore increasingly marked by a spirit of
individualism, a natural partiality for local rule, and a tenacious
adherence to their special privileges, whether granted to Crown
colonies, like New Hampshire, New York, New Jersey, Virginia, the two
Carolinas, and Georgia, or proprietary governments, like Maryland,
Delaware, and Pennsylvania, or charter governments, such as
Massachusetts, Rhode Island, and Connecticut. In the three colonies last
named formal corporate charters were granted by the Crown, which in
themselves were constitutions in embryo, and the colonists thus acquired
written rights as to the government of their internal affairs, upon the
maintenance of which they jealously insisted. Thus arose the spirit in
America, which treated constitutional rights, not so much as special
privileges granted by plenary Sovereignty, but as contractual
obligations which could be enforced in the Courts against the Sovereign.
All this developed in the colonists a powerful sense of constitutional
morality, and its pertinency to my present theme lies in the fact that
when each of the thirteen colonies became, at the conclusion of the War
of Independence, a separate and independent nation, they were more
concerned, in establishing a central government, to limit its authority
and to maintain local self-government than they were to give to the
new-born nation the powers which it needed. They carried their
constitutionalism to extremes, which nearly made a strong and efficient
central government an impossibility.
Nothing was less desired by them than a unified government. It was
destined to be wrung from their hard necessities. The Constitution was
the reflex action of two opposing tendencies, the one the imperative
need of an efficient central government, and the other the passionate
attachment to local self-rule. Co-operation between the colonies had
been a matter of long discussion and earnest debate, and primarily
resulted from the necessity of defence against a common foe the French
in Canada, and the Indians of the forest. In 1643 four of the New
England colonies united in a league to defend themselves. In 1693
William Penn made the first suggestion for a union of all the colonies.
In 1734 a council was held at Albany at the instance of the Crown to
provide the means for the defence against France in Canada, and it was
then that Franklin submitted the first concrete form for a union of the
colonies into a permanent alliance. It was in advance of the times, for,
conservative as it was, it was unfortunately opposed both by the Crown
and the colonies themselves.
The time was not ripe for any such union, and the reason was apparent.
The colonies differed very much in the character of their populations,
in the nature of their economic interests, and in their political
antecedents. They were not wholly of the English race. Many nations in
Europe had already contributed to the population. For example, New York
was partly Dutch, and in Pennsylvania there was a considerable element
of the Swedes, Germans, and Swiss. Moreover, the colonists were as
widely separated from each other, measured by the facilities of
locomotion, as are the most remote nations of the world to-day. Only a
few men ever found occasion to leave their colony to journey to another,
and most men never left, from birth to death, the community in which
they lived. Outside of the few scattered communities in the different
colonies there was an almost unbroken wilderness, with few wagon roads
and in places only a bridle path. The only methods of communication were
the letters and still fewer newspapers, which were carried by post
riders often through an almost trackless wilderness.
Obviously, a working government could not easily be constituted between
peoples of different religions, races, and economic interests, who, for
the most part, never met each other face to face and with whom frequent
communication was impossible.
The differences between the colonies and the mother-country with respect
to internal taxation slowly developed into an issue of constitutionalism
rather than of legislative policy. As in England, the immediate question
affected the power of the Crown to give to the customs inspectors the
power to make general searches and seizures, to enforce the navigation
laws. In 1761 James Otis, of Massachusetts, made a fateful speech before
the colonial legislature, in which, asserting the illegality of the
search warrants on the ground that they violated the constitutional
rights of Englishmen to protection in their own homes, he asserted that
Acts of Parliament which violated the sanctity of the home were void and
that, more specifically, they violated the charter granted to
Massachusetts. Asserting the doctrine which at that time was the
doctrine of the English common law, as stated by Coke and three other
Chief Justices, he said:
"To say the parliament is absolute and arbitrary is a contradiction.
The Parliament cannot make two and two five. Omnipotency cannot do
it.... Parliaments are in all cases to declare what is for the good
of the whole; but it is not the declaration of parliament that makes
it so: there must be in every instance a higher authority, viz.,
GOD. Should an Act of Parliament be against any of His natural laws,
which are immutably true, their declaration would be contrary to
eternal truth, equity and justice, and consequently void; and so it
would be adjudged by the Parliament itself, when convinced of their
mistake."
It is a curious fact that in the reaction from the tyranny of the
Stuarts your country abandoned this principle of the common law by
substituting for the omnipotence of the Crown the omnipotence of
Parliament, while in my country the somewhat vague and unworkable
principle of the common law, which gave the judiciary the power to
invalidate an act of the legislature, when against natural reason and
justice, was developed into the great principle, without which
institutions in an heterogeneous and widely scattered democracy would be
unworkable, namely that the powers of government are strictly defined,
and that neither the executive, the legislative, nor the judicial
departments of the government can go beyond the precise limits
established by the fundamental law. Like the common law, the
Constitution was thus the result of a slow evolution. Mr. Gladstone, in
his oft-quoted remark, gave an erroneous impression when he said:
"As the British Constitution is the most subtle organism which has
proceeded from progressive history, so the American Constitution is
the most wonderful work ever struck off, at a given time by the
brain and purpose of man."
This assumes that the Constitution sprang, like Minerva, armed
_cap-à-pie,_ from the brain of the American people, whereas it was as
much the result of a slow, laborious, and painful evolution as was the
British Constitution. Probably Gladstone so understood the development
of the American Constitution and recognized that its framing was only
the culmination of an evolution of many years.
When the constitutional struggle between the colonies and the Parliament
became acute, the necessity of a union for a common defence became
imperative. As early as July, 1773, Franklin recommended the "convening
of a General Congress" so that the colonies would act together. His
suggestion was introduced in the Virginia House of Burgesses in May,
1774, and as a result there met in Philadelphia on September 5 of that
year the first Continental Congress, styled by themselves: "The
Delegates appointed by the Good People of these Colonies." Nothing was
further from their purpose than to form a central government or to
separate from England. This Congress only met as a conference of
representatives of the colonies to defend what they conceived to be
their constitutional rights.
Before the second Continental Congress met in the following year, the
accidental clash at Lexington and Concord had taken place, and as the
Congress again re-convened a momentous change had taken place, which
was, in fact, the beginning of the American Commonwealth. The Congress
became by force of circumstances a provisional government, and as such
it might well have claimed plenary powers to meet an immediate exigency.
So indisposed were they to separate from England or to substitute for
its rule that of a new government, that the Continental Congress, when
it then involuntarily took over the government of America, failed to
exercise any adequate power. It remained simply a conference without
real power. Each colony had one vote and the rule of unanimity
prevailed. Even its decisions were largely advisory, for they amounted
to little more than recommendations to the constituent States as to what
measures should be taken. Each colony complied with the recommendation
in its discretion and in its own way. Notwithstanding this fatal lack of
authority, the Continental Congress, then actually engaged in civil war,
created an army, and, through its committees, entered into negotiations
with foreign nations. To support the former, it issued paper money, with
the disastrous result that could be readily anticipated. While it had a
presiding officer, it had no executive, and the new nation, which was
hardly conscious of its own birth, had no judiciary.
Had this _de facto_ government assumed the plenary powers which
provisional governments must, under similar circumstances, necessarily
assume, it would have been better for the cause of the colonists. For
want of an efficient central government, the civil administration of the
infant nation was marked by a weakness and incapacity that defeated
Washington's plans and nearly broke his spirit. Washington's little army
was the victim of the gross incapacity of an impotent government. The
soldiers came and went, not as the general commanded, but as the various
colonies permitted. The tragedy of Valley Forge, when the little army
nearly starved to death, and literally the soldiers could be tracked
over the snows by their bleeding, unshod feet, was not due to lack of
clothing and provisions, but to the gross incapacity of a headless
government that if it had had the wisdom to act lacked the authority.
The situation was one of chaos. The colonies recruited their own
contingents, paid such taxes as they pleased, which grew increasingly
less, and the Congress had no coercive power to enforce its policies,
either with reference to internal or external affairs. This situation
was so clearly recognized that immediately after the Declaration of
Independence on July 4, 1776, the draft of a constitution was proposed
to give the central government more effective power; but, although the
necessity was manifest and most urgent, the so-called Articles of
Confederation, which were then drafted in 1776, were never finally
adopted by the requisite number of States until March, 1781, when the
war was nearly over. As the result proved, they marked only a very small
advance over the existing _de facto_ government, for the constituent
States were still too jealous of each other and too hostile to the
creation of a central government to form a truly effective government.
The founders of the Republic could only learn from their errors, but it
is their great merit that they had the ability to profit in the stern
school of experience, of which Franklin has said that it is a "dear
school, but fools will learn in no other."
The founders of the Republic were not fools, and while they did not, as
Gladstone seems to intimate, have the inspired wisdom to develop a
wonderful Constitution by sheer intuition unaided by experience, they
did have the ability to make of their very errors the stepping-stones to
a higher destiny.
By the Articles of Confederation, which, as stated, became effective in
1781, the conduct of foreign affairs was vested in the new government,
which was also given the power to create admiralty courts, regulate
coinage, maintain an army and navy, borrow money, and emit bills of
credit, but the great limitation was that in all other respects the
constituent States retained absolute power, especially with reference to
commerce and taxation. All that the central government could do was to
requisition the States to furnish food supplies, and the States were
then left to impose the taxes and, if necessary, to enforce their
payment in their own way, with the inevitable result that they vied with
each other in the struggle to evade them. The Confederation had no
direct power over the citizens of the several States. Moreover, the
Congress could not levy any taxes, or indeed pass any measure unless
nine out of the thirteen States agreed, and the Constitution could not
be amended except by unanimous vote. While the Congress could select a
presiding officer to serve for one year, yet he had no real executive
authority. During the recess of the Congress, a committee of thirteen,
consisting of one delegate from each State, had _ad interim_ powers, but
not greater than the Congress, which they represented.
Such a government would have been fatal to any people, and so it nearly
proved to be to the infant nation. Two circumstances saved them from the
consequences of such incapacity: one was the invaluable aid of France,
and the other the personality of George Washington. Of this great
leader, one of the noblest that ever "lived in the tide of time," it is
only necessary to quote the fine tribute paid to him by the greatest of
the Victorian novelists in his _Virginians_:
"What a constancy, what a magnanimity, what a surprising
persistence against fortune!... Washington, the chief of a nation
in arms, doing battle with distracted parties; calm in the midst of
conspiracy; serene against the open foe before him and the darker
enemies at his back; Washington, inspiring order and spirit into
troops hungry and in rags; stung by ingratitude, but betraying no
anger, and every ready to forgive; in defeat invincible, magnanimous
in conquest and never so sublime as on that day when he laid down
his victorious sword and sought his noble retirement--here, indeed,
is a character to admire and revere; a life without a stain, a fame
without a flaw."
A year after the Articles of Confederation had been adopted, the war
came to an end by a preliminary treaty on November 30, 1782.
Now follows the least known chapter in American history. It was a period
of travail, of which the Constitution of the United States and the
present American nation were born. The government slowly succumbed from
its own weakness to its inevitable death. Only the shreds and patches of
authority were left. Gradually the union fell apart. Of the Continental
Congress only fifteen members, representing seven colonies, remained to
transact the affairs of the new nation. The army, which previously to
the termination of the war had dissolved by the hundreds, was now unpaid
and in a stale of revolt. Measure after measure was proposed in Congress
to raise money to pay the interest on the bonded indebtedness, which was
in arrears, and to provide funds for the most necessary expenses, but
these failed, in Congress for the want of the necessary nine votes or,
if enacted, the States treated the requisitions with indifference. The
currency of the United States had fallen almost as low as the Austrian
kronen, and men derisively plastered the walls of their houses with the
worthless paper of the Continental Congress. Adequate authority no
longer remained to carry out the terms of the treaties with England and
France, and they were nullified by the failure of the infant nation to
comply with its own obligations and the consequent refusal of the other
contracting parties to comply with theirs. The government made a call
upon the States to raise $8,000,000 for the most vital needs, but only
$400,000 was actually received. Then Congress asked the States to vest
in it the power to levy a tax of five per cent, on imports for a limited
period, but, after waiting two years for the action of the States, less
than nine concurred. The States were then asked to pledge their own
internal revenue for twenty-five years to meet the national
indebtedness, but this could only be done by unanimous consent, and
while twelve States concurred, Rhode Island refused and the measure was
defeated. It was again the infinite folly of the _liberum veto_ which,
prior to the great partition, condemned Poland to chronic anarchy.
The impotence of the new government, which was still sitting in
Philadelphia, can be measured by the fact that on June 9, 1783, word
came that eighty soldiers were on their way to Philadelphia to demand
relief. They stacked their arms in front of the State House, where the
Congress was then sitting, and refused to disband, when requested by
Col. Alexander Hamilton, as the representative of the Congress, to do
so. When Congress appealed to the government of Pennsylvania for
protection, it was advised that the Pennsylvania militia was likewise
insubordinate. The Congress then hastily fled by night and became a
fugitive.
The impotence of the Confederation can be measured by the fact that in
the last fourteen months of its existence its receipts were less than
$400,000, while the interest on the foreign debt alone was over
$2,400,000, and the interest on the internal debt was five-fold greater.
In the absence of any government and in the period of general
prostration it was not unnatural that the spirit of Bolshevism grew with
alarming rapidity. It even permeated the officers of the Army. In March,
1783, an anonymous communication was sent to Washington's officers to
meet in secret conference to take some action, possibly to overthrow the
government. A copy fell into Washington's hands and, while he forbade
the assemblage of the officers under the anonymous call, he himself
directed the officers to assemble. He unexpectedly appeared at the
meeting and, being no speaker, he had reduced his appeal to writing. As
he adjusted his spectacles to read it, he pathetically said: "I have not
only grown gray but blind in your service." He then made a touching
appeal to them not to increase by example the spreading spirit of
revolt. The very sight of their old commander turned the hearts of the
revolting element and the officers remained loyal to their noble leader.
Where the spirit of disaffection was thus found in high places it
naturally prevailed more widely among the masses who had been driven to
frenzy by their sufferings. This culminated in a revolt in Massachusetts
under the leadership of an old soldier named Shays, and it spread with
such rapidity that not only did one-fifth of the people join in
attempting to overthrow the remnant of established authority in
Massachusetts, but it rapidly spread to other States. The offices of
government and the courthouses were seized, the collection of debts was
forbidden, and private property was forcibly appropriated to meet the
common needs.
Chaos had come again. It filled Washington's heart with disgust and
despair. After surrendering his commission to the pitiful remnant of the
government he had retired to Mount Vernon, and for a time declined to
act further as the leader of his people. Thus, in October, 1785, he
wrote James Warren, of Massachusetts:
"The war, as you have very justly observed, has terminated most
advantageously for America, and a fair field is presented to our
view; but I confess to you freely, my dear sir, that I do not think
we possess wisdom or justice enough to cultivate it properly.
Illiberality, jealousy, and local policy mix too much in all our
public councils for good government of the union. In a word, the
Confederation appears to me to be little more than a shadow without
the substance, and Congress a nugatory body, their ordinances being
little attended to.... By such policy as this the wheels of
government are clogged, and our brightest prospects, and that high
expectation which was entertained of us by the wondering world, are
turned into astonishment; and, from the high ground on which we
stood, we are descending into the vale of confusion and darkness."
Again he wrote to George Mason:
"I have seen without despondency, even for a moment, the hours which
America has styled its gloomy ones, but I have beheld no day since
the commencement of hostilities that I thought our liberties in such
imminent danger as at present. Indeed, we are verging so fast to
destruction that I am feeling that sense to which I have been a
stranger until within these three months."
Again in 1786 he writes:
"I think often of our situation, and view it with concern. From the
high ground we stood upon, from the plain path which invited our
footsteps, to be so fallen, so lost, is mortifying; but everything
of virtue has, in a degree, taken its departure from our land....
What, gracious God, is man that there should be such inconsistency,
and perfidiousness in his conduct! It was but the other day that we
were shedding our blood to obtain the Constitutions under which we
now live, and now we are unsheathing our swords to overturn them.
The thing is so unaccountable that I hardly know how to realize it
or to persuade myself that I am not under an illusion of a dream."
It was, however, the darkest hour before the dawn, and again it was
Washington who became his country's saviour. In 1785, some commissioners
from the States of Virginia and Maryland visited Mount Vernon to pay
their respects to the well-loved commander. After conferring with him
upon the chaos of the times, they decided to issue a call for a general
conference of the representatives of the States to be held on September
11, 1786, at Annapolis, Maryland, to discuss how far the States
themselves could agree on common regulations of commerce. At the
appointed time the delegates assembled from Virginia, Pennsylvania,
Delaware, New York and New Jersey, and finding themselves too few in
number to achieve the great objective, the convention contented itself
by issuing another call, drafted by Alexander Hamilton, then under
thirty years of age, to all the States to send delegates to a convention
to be held in Philadelphia on the second Monday in May, 1787, "to take
into consideration the situation of the United States, to devise such
further provisions as should appear to them necessary to render the
Constitution of the Federal Government adequate to the exigencies of the
Union."
The dying Congress tardily approved of this suggestion, but finally, on
January 21, 1787, grudgingly adopted a resolution that--
"It is expedient that on the second Monday in May next a convention
of delegates, who shall have been appointed by the several States,
be held at Philadelphia _for the sole and express purpose of
revising the Articles of Confederation_ and reporting to Congress
and the several legislatures such alterations and provisions therein
as shall, _when agreed to in Congress_ and conformed to by the
States, render the Federal Constitution adequate to the exigency of
the government and the preservation of the union."
It will be noted by the italicized portions of the resolution that this
impotent body thus vainly attempted to cling to the shadow of its
vanished authority by stating that the proposed constitutional
convention should merely revise the worthless Articles of Confederation
and that such amendments should not have validity until adopted by
Congress as well as by the people of the several States. How this
mandate was disregarded and how the convention was formed, and
proceeded to create a new government with a new Constitution, and how
it achieved its mighty work, will be the subject of the next lecture.
Anticipating the masterly ability with which a seemingly impotent and
dying nation plucked from the nettle of danger the flower of safety, let
me conclude this first address by quoting the words of de Tocqueville,
in his remarkable work _Democracy in America_, where he says:
"The Federal Government, condemned to impotence by its Constitution
and no longer sustained by the presence of common danger ... was
already on the verge of destruction when it officially proclaimed
its inability to conduct the government and appealed to the
constituent authority of the nation.... It is a novelty in the
history of a society to see a calm and scrutinizing eye turned upon
itself, when apprised by the legislature that the wheels of
government are stopped; to see it carefully examine the extent of
the field and patiently wait for two years until a remedy was
discovered, which it voluntarily adopted, without having ever wrung
a tear or a drop of blood from mankind."
_II. The Great Convention_
Now follows a notable and yet little known scene in the drama of
history. It reveals a people who, without shedding a drop of blood,
calmly and deliberately abolished one government, substituted another,
and erected it upon foundations which have hitherto proved enduring.
Even the superstructure slowly erected upon these foundations has
suffered little change in the most changing period of the world's
history, and until recently its additions, few in number, have varied
little from the plans of the original architects. The Constitution is
to-day, not a ruined Parthenon, but rather as one of those Gothic
masterpieces, against which the storms of passionate strife have beaten
in vain. The foundations were laid at a time when disorder was rampant
and anarchy widely prevalent. As I have already shown in my first
lecture, credit was gone, business paralysed, lawlessness triumphant,
and not only between class and class, but between State and State, there
were acute controversies and an alarming disunity of spirit. To weld
thirteen jealous and discordant States, demoralized by an exhausting
war, into a unified and efficient nation against their wills, was a
seemingly impossible task. Frederick the so-called Great had said that a
federal union of widely scattered communities was impossible. Its final
accomplishment has blinded the world to the essential difficulty of the
problem.
The time was May 25, 1787; the place, the State House in Philadelphia, a
little town of not more than 20,000 people, and, at that time, as
remote, measured by the facilities of communication, to the centres of
civilization as is now Vladivostok.
The _dramatis personae_ in this drama, though few in numbers, were,
however, worthy of the task.
Seventy-two had originally been offered or given credentials, for each
State was permitted to send as many delegates as it pleased, inasmuch as
the States were to vote in the convention as units. Of these, the
greatest actual attendance was fifty-five, and at the end of the
convention a saving remnant of only thirty-nine remained to finish a
work which was to immortalize its participants.
While this notable group of men contained a few merchants, financiers,
farmers, doctors, educators, and soldiers, of the remainder, at least
thirty-one were lawyers, and of these many had been justices of the
local courts and executive officers of the commonwealths. Four had
studied in the Inner Temple, at least five in the Middle Temple, one at
Oxford under the tuition of Blackstone and two in Scottish Universities.
Few of them were inexperienced in public affairs, for of the original
fifty-five members, thirty-nine had been members of the first or second
Continental Congresses, and eight had already helped to frame the
constitutions of their respective States. At least twenty-two were
college graduates, of whom nine were graduates of Princeton, three of
Yale, two of Harvard, four of William and Mary, and one each from the
Universities of Oxford, Columbia, Glasgow, and Edinburgh. A few already
enjoyed world-wide fame, notably Doctor Franklin, possibly the most
versatile genius of the eighteenth century and universally known and
honoured as a scientist, philosopher, and diplomat, and George
Washington, whose fame, even at that day, had filled the world with the
noble purity of his character.
It was a convention of comparatively young men, the average age being
little above forty. Franklin was the oldest member, being then
eighty-one; Dayton, the youngest, being twenty-seven. With the
exception of Franklin and Washington, most of the potential
personalities in the convention were under forty. Thus, James Madison,
who contributed so largely to the plan that he is sometimes called "The
Father of the Constitution," was thirty-six. Charles Pinckney, who,
unaided, submitted the first concrete draft of the Constitution, was
only twenty-nine, and Alexander Hamilton, who was destined to take a
leading part in securing its ratification by his powerful oratory and
his very able commentaries in the Federalist papers, was only thirty.
Above all they were a group of gentlemen of substance and honour, who
could debate for four months during the depressing weather of a hot
summer without losing their tempers, except momentarily--and this
despite vital differences--and who showed that genius for toleration and
reconciliation of conflicting views inspired by a common fidelity to a
great objective that is the highest mark of statesmanship. They
represented the spirit of representative government at its best in
avoiding the cowardice of time-servers and the low cunning of
demagogues. All apparently were inspired by a fine spirit of
self-effacement. Selfish ambition was conspicuously absent. They
differed, at times heatedly, but always as gentlemen of candour and
honour. The very secrecy of their deliberations, of which I shall
presently speak, is ample proof how indifferent they were to popular
applause and the _civium ardor prava jubentium_.
The convention had been slow in assembling. Ample notice had been given
that it would convene on May 13, 1787, but when that day arrived a mere
handful of the delegates, less than a quorum, had assembled.
The Virginia delegation, six in number, and forming probably the ablest
delegation from any State, arriving in time, and failing to find a
quorum then assembled, employed the period of waiting in submitting to
the Pennsylvania delegation the outlines of a plan for the new
Constitution. The plan was largely the work of James Madison, and how
long it had been in preparation cannot be definitely stated. It is clear
that four years before a Philadelphia merchant, one Peletiah Webster,
had published a brochure proposing a scheme of dual sovereignty, under
which the citizens would owe a double allegiance--one to the constituent
States within the sphere of their reserved powers, and one to a
federated government within the sphere of its delegated powers. Leagues
of States had often existed, but a league which, within a prescribed
sphere, would have direct authority over the citizens of the constituent
States, without, however, abolishing the authority of such States as to
their reserved sphere of power, was a novel theory. How far the Virginia
project had been influenced by Webster's suggestion is not clear, but it
is certain that before the convention met Pennsylvania and Virginia,
two of the most powerful States, were committed to it.
The suggestion was a radical one, for the States, with few exceptions,
were chiefly insistent upon the preservation of their sovereignty, and
while they were willing to amend the Articles of Confederation by giving
fuller authority to the central government, such as it was, the
suggestion of subordinating the States to a new sovereign power, whose
authority within circumscribed limits was to be supreme, was opposed to
all their conventions and traditions. Washington, however, had warmly
welcomed the creation of a strong central government, and his
correspondence with the leading men of the colonies for some years
previously had been burdened with arguments to convince them that a mere
league of States would not suffice to create a stable nation. To George
Washington, soldier and statesman, is due above all men the ideal of a
federated union, for without his influence--that of a noble and
unselfish leader--the great result would probably never have been
secured. While still waiting for the convention, to meet, and while
discussing what was expedient and practicable when they did meet,
Washington one day said to a group of delegates, who were considering
the acute nature of the crisis:
"It is too probable that no plan that we propose will be adopted.
Perhaps another dreadful conflict is to be sustained. If, to please
the people, we offer what we ourselves disapprove, how can we
afterwards defend our work? Let us raise a standard to which the
wise and just can repair. The event is in the hand of God."
Noble words, fit to be written in letters of gold over the portal of
every legislature of the world, and it was in this spirit that the
convention finally convened on May 25th, 1787.
When the delegates from nine States had assembled, Washington was
unanimously elected the presiding officer of the convention. It began by
adopting rules of order, and the most significant of these was the
provision for secrecy. No copy should be taken of any entry on the
Journal, or even permission given to inspect it, without leave of the
convention, and "nothing spoken in the house be printed or otherwise
published or communicated without leave." The yeas and nays should not
be recorded. The rule of secrecy was enlarged by an unwritten
understanding that, even when the convention had adjourned, no
disclosure should be made of its proceedings during the life of its
members. When after nearly four months, the convention adjourned, the
secret had been kept, and no one knew even the concrete result of its
deliberations until the Constitution itself, and nothing else, was
offered to the approval of the people. The high-way, upon which the
State House fronted, was covered with earth, to deaden the noise of
traffic, and sentries were posted at every means of ingress and egress,
to prevent any intrusion upon the privacy of the convention. The members
were not photographed daily for the pictorial Press, nor did any cinema
register their entrance into the simple colonial hall where they were to
meet. Notwithstanding this limitation--for no present-day conference or
assembly can proceed with its labours until its members are photographed
for the curiosity of the public--these simple-minded gentlemen--less
intent upon their appearance than their task--were to accomplish a work
of enduring importance.
The extreme care which was taken to preserve this secrecy inviolate, and
its purpose, were indicated in an incident handed down by tradition.
One of the members dropped a copy of a proposition then before the
convention for consideration, and it was found by another of the
delegates and handed to General Washington. At the conclusion of the
session, Washington arose and sternly reprimanded the member for his
carelessness by saying:
"I must entreat gentlemen to be more careful, lest our transactions
get into the newspapers and disturb the public repose by premature
speculations. I know not whose paper it is, but there it is
[_throwing it down on the table_]. Let him who owns it, take it."
He then bowed, picked up his hat and left the room with such evidences
of annoyance that, like school-children, no delegate was willing to
admit the ownership of the paper.
The thought suggests itself: How different the result at Versailles and
Genoa might have been had there been the same reasonable provisions for
discussion and action uninfluenced by too premature public comment of
the day! In these days, when representative government has degenerated
into government by a fleeting public opinion, the price we pay for such
government by, for and of the Press, is too often the inability of
representatives to do what they deem wise and just.
At the close of the convention its records were committed into the
keeping of Washington, with instructions to "retain the journal and
other papers, subject to order of Congress, if ever formed under the
Constitution."
Even the journal consisted of little more than daily memoranda, from
which the minutes ought to have been, but never were, made; and these
fragmentary records of the proceedings of a convention which had been in
continuous session for nearly four months were never published until the
year 1819, or thirty-two years after the close of the convention. Thus,
the American people knew nothing of their greatest convention until a
generation later, and then only a few bones of the mastodon were
exhibited to their curious gaze.
The members of the convention kept its secrets inviolate for many years.
With few exceptions, the great secrets of the convention died with them.
Only one, James Madison, left a comprehensive statement of the more
formal proceedings. With this notable exception, only a few anecdotes,
handed down by tradition, escaped oblivion. The first of the number to
break the pledge of secrecy was Robert Yates, Chief Justice of New York,
who, in 1821, published his recollections; but, as he had left the
convention a few months after it began, his notes ceased with the 5th of
July.
The world would thus have been for ever ignorant of the details of one
of the most remarkable conventions in the annals of mankind had it not
been that one of the ablest of their number, James Madison, regularly
attended the sessions and kept notes from day to day of the debates.
While he was not a stenographer, he had a gift for condensing a speech
and fairly representing its substance. He jealously guarded his Journal
of the Convention until his death. Its very existence was known to few.
He died in 1836, and four years later the government purchased the
manuscript from his widow. Then, for the first time, the curtain was
measurably raised upon the proceedings of a convention which had
created, as we now know, one of the greatest nations in history.
Fifty-three years after the close of the convention, and when nearly
every one of its participants were dead, Madison's Journal was first
published.
When was a great secret better kept? Grateful as posterity must be for
this inestimable gift of great human enterprise, yet even Madison's
careful journal fills one with the deepest regret that this wonderful
debate, which lasted for nearly four months between men of no ordinary
ability, could not have been preserved to the world.
Two or three of the speeches which Madison gives in his Journal are
complete, for when Doctor Franklin spoke he reduced his remarks to
writing and gave a copy to Madison, but of the other speeches only a
fragrant remains. Thus, that "admirable Crichton," Alexander Hamilton,
addressed the convention in a speech that lasted five hours, in which he
stated his philosophy of government, but of that only a short
condensation, and possibly not even an accurate fragment, remains.
Without this extraordinary provision for secrecy, which is so opposed to
modern democratic conventions, and which so little resembles the famous
point as to "open covenants openly arrived at," the convention could not
have accomplished its great work, for these wise men realized that a
statesman cannot act wisely under the observation of a gallery, and
especially when the gallery compels him by the pressure of public
opinion to work as it directs. I recognize that public opinion--often
temporarily uninformed but in the end generally right--does often save
the democracies of the world from the selfish ends of self-seeking and
misguided leadership; but, given noble and wise representatives, they
work best when least influenced by the fleeting passions of the day.
It is evident that if the framers of the Constitution had met, as
similar conventions have within recent years met at Versailles and
Genoa, with the world as their gallery and with the representatives of
the Press as an integral part of the conference, they would have
accomplished nothing. The probability is that the convention would not
have lasted a month if their immediate purpose had been to placate
current opinion. It may be doubted whether such a convention, if called
to-day, either in your country or mine, could achieve like results, for
in this day of unlimited publicity, when men divide not as individuals
but in powerful and organized groups, a constitutional convention would,
I fear, prove a witches' cauldron of class legislation and demagoguery.
Is it not possible that modern democracy is in danger of strangulation
by its present-day methods and ideals? Again the words of Washington
suggest themselves: "If, to please the people, we offer what we
ourselves disapprove, how can we afterwards defend our work? Let us
raise a standard to which the wise and just can repair."
Working with a sad sincerity and with despair in their hearts, this
little band of men wrought a work of surpassing importance, and if they
did not receive the immediate plaudits of the living generation, their
shades can at least solace themselves with the reflection that posterity
has acclaimed their work as one of the greatest political achievements
of man.
The rules of order and the nature of the proceedings thus determined,
the convention opened by an address by Mr. Randolph of Virginia, in
which he submitted, in the form of fifteen points--nearly the number of
the fatal fourteen--the outlines for a new government. He himself in his
opening speech summarized the propositions by candidly confessing "that
they were not intended for a federal government" (thereby meaning a mere
league of States) but "a strong consolidated union." Upon this radical
change the convention was to argue earnestly and at times bitterly for
many a weary day. The plan provided for a national legislature of which
the lower branch should be elected by the people and the upper branch by
the lower branch upon the nomination of the legislatures of the States.
This legislature should enjoy all the legislative rights given to the
federation, and there followed the sweeping grant that it "could
legislate in all cases to which the separate States are incompetent or
in which the harmony of the United States may be interrupted by the
exercise of individual legislation," with power "to negative all laws
passed by the several States contravening in the opinion of the national
legislature the Articles of the Union."
A national executive was proposed, together with a national judiciary,
and these two bodies were given authority "to examine every act of the
national legislature before it shall operate and every act of a
particular legislature before a negative thereon shall be final." This
marked an immense advance over the Articles of Confederation, under
which there was no national executive or judiciary, and under which the
legislature had no direct power over the citizens of the States, and
could only impose duties upon the States themselves by the concurrence
of nine of the thirteen.
Hardly had Mr. Randolph submitted the so-called Virginia plan when
Charles Pinckney, of South Carolina, a young man of twenty-nine years
of age, with the courage of youth submitted to the House a draft of the
future federal government. Curiously enough, it did not differ in
principle from the Virginia plan, but was more specific and concrete in
stating the powers which the federal government should exercise, and
many of its provisions were embodied in the final draft. Indeed,
Pinckney's plan was the future Constitution of the United States in
embryo; and when it is read and contrasted with the document which has
so justly won the acclaim of men throughout the world, it is amazing
that so young a man should have anticipated and reduced to a concrete
and effective form many of the most novel features of the Federal
Government. As the only copy of Pinckney's plan was furnished years
afterwards to Madison for his journal, it is possible that some of its
wisdom was of the _post factum_ variety.
Having received the two plans, the convention then went, on May 30,
into a committee of the whole to consider the fifteen propositions in
the Virginia plan _seriatim_. They wisely concluded to determine
abstract ideas first and concrete forms later. Apparently for the time
being little attention was paid to Pinckney's plan, and this may have
been due to the hostile attitude of the older members of the convention
to the presumption of his youth.
Then ensued a very remarkable debate on the immediate propositions and
the principles of government which underlay them, which lasted for two
weeks. On June 13 the committee rose. Even the fragments of this debate,
which may well have been one of the most notable in history, indicate
the care with which the members had studied governments of ancient and
modern times. There were many points of difference, but chief of them,
which nearly resulted in the collapse of the convention, was the
inevitable difficulty which always arises in the formation of a league
of States or an association of nations between the great and the little
States.
The five larger States had a population that was nearly twice as great
as the remaining eight States. Thus Virginia's population was nearly
ten-fold as great as Georgia. Moreover, the States differed greatly in
their material wealth and power. Nevertheless, all of them entered the
convention as independent sovereign nations, and the smaller nations
contended that the equality in suffrage and political power which
prevailed in the convention (in which each State, large or small, voted
as a unit), should and must be preserved in the future government. To
this the larger States were quite unwilling to yield, and when the
committee rose they reported, in substance, the Virginia plan, with the
proviso that representation in the proposed double-chambered Congress
should be "according to some equitable ratio of representation."
On June 15 the small States presented their draft, which was afterwards
known as the New Jersey plan, because it was introduced by Mr. Patterson
of that State. It only contemplated an amendment to the existing
Constitution and an amplification of the powers of the impotent
Confederation. Its chief advance over the existing government was that
it provided for a federal executive and a federal judiciary, but
otherwise the government remained a mere league of States, in which the
central government could generally act only by the vote of nine States,
and in which their power was exhausted when they requested the States to
enforce the decrees. Its chief advance over the Articles of
Confederation, in addition to the creation of an executive, was an
assertion that the acts of Congress "shall be the supreme law of the
respective States ... and that the judiciary of the several States shall
be bound thereby in their decisions," and that "if any State or any
body of men in any State shall oppose or prevent the carrying into
execution of such acts or treaties the federal executive shall be
authorized to call forth the power of the confederated States ... to
enforce and compel obedience to such acts or an observance of such
treaties."
While this was some advance toward a truly national government, it yet
left the national executive dependent upon the constituent States, for
if they failed to respond to the call above stated the national
government had no direct power over their citizens.
The New Jersey plan precipitated a crisis, and thereafter, and for many
days, the argument proceeded, only to increase in bitterness.
On June 18 Alexander Hamilton, who agreed with no one else, addressed
the convention for the first time. He spoke for five hours and reviewed
exhaustively the Virginia and New Jersey plans, and possibly the
Pinckney draft. Even the fragment of the speech, as taken in long-hand
by Madison, shows that it was a masterly argument. He stated his belief
"that the British Government was the best in the world and that he
doubted much whether anything short of it would do in America." He
praised the British Constitution, quoting Monsieur Necker as saying that
"it was the only government in the world which unites government
strength with individual security." He analysed and explained your
Constitution as it then was and advocated an elective monarchy in form
though not in name. It is true that he called the executive a "governor"
and not a king, but the governor, so-called, was to serve for life and
was given not only "a negative on all laws about to be passed," but even
the execution of all duly enacted laws was in his discretion. The
governor, with the consent of the Senate, was to make war, conclude all
treaties, make all appointments, pardon all offences, with the full
power through his negative of saying what laws should be passed and
which enforced. Hamilton's governor would have been not dissimilar to
Louis XIV, and could have said with him, "_L'état, c'est moi_!" The
Senate also served for life, and the only concession which Hamilton made
to democracy was an elective house of representatives. Thinly veiled,
his plan contemplated an elective king with greater powers than those of
George III, an imitation House of Lords and a popular House of Commons
with a limited tenure.
Hamilton's plan was never taken seriously and, so far as the records
show, was never afterwards considered. His admirers have given great
praise to his work in the federal convention. His real contribution lay
in the fact that when the Constitution was finally drafted and offered
to the people, while he regarded it as a "wretched makeshift," to use
his own expression, yet he was broad and patriotic enough to surrender
his own views and advocate the adoption of the Constitution. In so
doing, he fought a valorous fight, secured the acquiescence of the State
of New York, and without its ratification the Constitution would never
have been adopted. Hamilton later thought better of the Constitution,
and its successful beginning is due in large measure to his genius for
constructive administration.
As the debate proceeded, the crisis precipitated by the seemingly
insoluble differences between the great and little States became more
acute. The smaller States contended that the convention was
transgressing its powers, and they demanded that the credentials of the
various members be read. In this there was technical accuracy, for the
delegates had been appointed to revise the Articles of Confederation and
not to adopt a new Constitution. A majority of the convention, however,
insisted upon the convention proceeding with the consideration of a new
Constitution, and their views prevailed. It speaks well for the honour
of the delegates that although their differences became so acute as to
lead at times to bitter expressions, neither side divulged them to the
outside public. The smaller States could easily have ended the
convention by an appeal to public opinion, which was not then prepared
for a "consolidated union," but they were loyal enough to fight out
their quarrels within the walls of the convention hall.
At times the debate became bitter in the extreme. James Wilson, a
delegate of Pennsylvania and a Scotchman by birth and education, turning
to the representatives of the little States, passionately said:
"Will you abandon a country to which you are bound by so many strong
and enduring ties? Should the event happen, it will neither stagger
my sentiments nor duty. If the minority of the people refuse to
coalesce with the majority on just and proper principles, if a
separation must take place, it could never happen on better
grounds."
He referred to the demand of the larger States that representation
should be proportioned to the population. To this Bedford, of Delaware,
as heatedly replied;
"We have been told with a dictatorial air that this is the last
moment for a fair trial in favour of good government. It will be the
last, indeed, if the propositions reported by the committee go forth
to the people. The large States dare not dissolve the convention. If
they do, the small ones will find some foreign ally of more honour
and good faith, who will take them by the hand and do them justice."
Finally, the smaller States gave their ultimatum to the larger States
that unless representation in both branches of the proposed legislature
should be on the basis of equality--each State, whether large or small,
having one vote--they would forthwith leave the convention. An
eye-witness says that, at that moment, Washington, who was in the chair,
gave old Doctor Franklin a significant look. Franklin arose and moved an
adjournment for forty-eight hours, with the understanding that the
delegates should confer with those with whom they disagreed rather than
with those with whom they agreed.
A recess was taken, and when the convention re-convened on July 2, a
vote was taken as to equality of representation in the Senate and
resulted in a tie vote. It was then decided to appoint a committee of
eleven, one from each State, to consider the question, and this
committee reported three days later, on July 5, in favour of
proportionate representation in the House and equal representation in
the Senate. This suggestion, which finally saved the situation, was due
to that wise old utilitarian philosopher, Franklin. Again, a vehement
and passionate debate followed. Vague references were made to the sword
as the only method of solving the difference.
On July 9 the committee again reported, maintaining the principle of
their recommendation, while modifying its details, and the debate then
turned upon the question to what extent the negro slaves should count in
estimating population for the purposes of proportionate representation
in the lower House. Various suggestions were made to base representation
upon wealth or taxation and not upon population. For several days the
debate lasted during very heated weather, but on the night of July 12
the temperature dropped and with it the emotional temperature of the
delegates.
Some days previous, namely, June 28, when the debates were becoming so
bitter that it seemed unlikely that the convention could continue,
Doctor Franklin, erroneously supposed by many to be an atheist, made
the following solemn and beautiful appeal to their better natures. He
said:
"The small progress we have made after four or five weeks' close
attendance and continual reasonings with each other--our different
sentiments on almost every question, several of the last producing
as many noes as ayes, is, methinks, a melancholy proof of the
imperfection of the human understanding. We indeed seem to feel our
own want of political wisdom, since we have been running about in
search of it. We have gone back to ancient history for models of
government, and examined the different forms of those Republics
which, having been formed with the seeds of their own dissolution,
now no longer exist. And we have viewed modern States all around
Europe, but find none of their constitutions suitable to our
circumstances.
"In this situation of this Assembly, groping as it were in the dark
to find political truth, and scarce able to distinguish it when
presented to us, how has it happened, sir, that we have not hitherto
once thought of humbly applying to the Father of Lights to
illuminate our understandings?... And have we now forgotten that
powerful Friend or do we imagine that we no longer need His
assistance? I have lived, sir, a long time, and the longer I live,
the more convincing proofs I see of this truth: That _God governs in
the affairs of men_. And if a sparrow cannot fall to the ground
without His notice, is it probable that an empire can rise without
His aid? We have been assured, sir, in the sacred writings, that
'except the Lord build the House they labour in vain that build it.'
I firmly believe this; and I also believe that without His
concurring aid we shall succeed in this political building no better
than the builders of Babel. We shall be divided by our little
partial local interests; our projects will be confounded, and we
ourselves shall become a reproach and byword down to future ages.
And what is worse, mankind may hereafter from this unfortunate
instance, despair of establishing governments by human wisdom and
leave it to chance, war, and conquest.
"I therefore beg leave to move that henceforth prayers imploring the
assistance of Heaven, and its blessings on our deliberations, be
held in this Assembly every morning before we proceed to business,
and that one or more of the clergy of this city be requested to
officiate in that service."
It may surprise my audience to know the sequel. The resolution was voted
down, partly on the ground that if it became known to the public that
the convention had finally resorted to prayers it might cause undue
alarm, but also because the convention was by that time so low in funds
that, as one of the members said, it did not have enough money to pay a
clergyman his fees for the service. I suspect that their controlling
reason was their indisposition to break their self-imposed rule of
secrecy by contact with the outer world until their work was completed.
Perhaps they thought that "God helps those who help themselves."
On July 16 the compromise was finally adopted of recognizing the claims
of the larger States to proportionate representation in the House of
Representatives, and recognizing the claims of the smaller States by
according to them equal representation in the Senate. This great result
was not effected without the first break in the convention, for the
delegates from New York left in disgust and never returned, with the
exception of Hamilton, who occasionally attended subsequent sessions.
Such was the great concession that was made to secure the Constitution;
and the only respect in which the Constitution to-day cannot be amended
is that by express provision the equality of representation in the
Senate shall never be disturbed. Thus it is that to-day some States,
which have less population than some of the wards in the city of New
York, have as many votes in the Senate as the great State of New York.
It is unquestionably a palpable negation of majority rule, for as no
measure can become a law without the concurrence of the Senate--now
numbering ninety-six Senators--a combination of the little States, whoso
aggregate population is not a fifth of the American people, can defeat
the will of the remaining four-fifths. Pennsylvania and New York, with
nearly one-sixth of the entire population of the United States, have
only four votes in ninety-six votes in the Senate.
Fortunately, political alignments have rarely been between the greater
and the smaller States exclusively. Their equality in the Senate was a
big price to pay for the Union, but, as the event has shown, not too
great.
The convention next turned its attention to the Executive and the manner
of its selection, and upon this point there was the widest contrariety
of view, but, fortunately, without the acute feeling that the relative
power of the States had occasioned.
Then the judiciary article was taken up, and there was much earnest
discussion as to whether the new Constitution should embody the French
idea of giving to the judiciary, in conjunction with the Executive, a
revisory power over legislation. Three times the convention voted upon
this dangerous proposition, and on one occasion it was only defeated by
a single vote. Fortunately, the good sense of the convention rejected a
proposition, that had caused in France constant conflicts between the
Executive and the Judiciary, by substituting the right of the President
to veto congressional legislation, with the right of Congress, by a
two-thirds vote of each House, to override the veto, and secondly by an
implied power in the Judiciary to annul Congressional or State
legislation, not on the grounds of policy, but on the sole ground of
inconsistency with the paramount law of the Constitution. In this
adjustment, the influence of Montesquieu was evident.
These and many practical details had resulted in an expansion of the
fifteen proposals of the Virginia plan to twenty-three.
Having thus determined the general principles that should guide them in
their labours, the convention, on July 26 appointed a Committee on
Detail to embody these propositions in the formal draft of a
Constitution and adjourned until August 6 to await its report. That
report, when finally completed, covered seven folio pages, and was found
to consist of a Preamble and twenty-three Articles, embodying
forty-three sections. The draft did not slavishly follow the Virginia
propositions, for the committee embodied some valuable suggestions which
had occurred to them in their deliberations. Nevertheless, it
substantially put the Virginia plan into a workable plan which proved to
be the Constitution of the United States in embryo.
When the committee on detail had made its report on August 6, the
convention proceeded for over a month to debate it with the most minute
care. Every day for five weeks, for five hours each day, the members
studied and debated with meticulous care every sentence of the proposed
Constitution. Time does not suffice even for the barest statement of the
many interesting questions which were thus discussed, but they nearly
ran the whole gamut of constitutional government. Many fanciful ideas
were suggested but with unvarying good sense they were rejected. Some of
the results were, under the circumstances, curious. For example,
although it was a convention of comparatively young men, and although
the convention could have taken into account the many successful young
men in public life in Europe--as, for example, William Pitt--they put a
disqualification upon age by providing that a Representative must be
twenty-five years of age, a Senator thirty years of age, and a President
thirty-five years of age. When it was suggested that young men could
learn by admission to public life, the sententious reply was made that,
while they could, they ought not to have their education at the public
expense.
The debates proceeded, however, in better temper, and almost the only
question that again gave rise to passionate argument was that of
slavery. The extreme Southern States declared that they would never
accept the new plan "except the right to import slaves be untouched."
This question was finally compromised by agreeing that the importation
of slaves should end after the year 1808. It however left the slave
population then existing in a state of bondage, and for this necessary
compromise the nation seventy-five years later was to pay dearly by one
of the most destructive civil wars in the annals of mankind.
August was now drawing to a close. The convention had been in session
for more than three months. Of its work the public knew nothing, and
this notwithstanding the acute interest which the American people, not
merely facing the peril of anarchy, but actually suffering from it, must
have taken in the convention. Its vital importance was not
under-estimated. While its builders, like all master builders, did
"build better than they knew," yet it cannot be said that they
under-estimated the importance of their labours. As one of their number,
Gouveneur Morris said: "The whole human race will be affected by the
proceedings of this convention." After it adjourned one of its greatest
participants, James Wilson, of Pennsylvania, said:
"After the lapse of six thousand years since the creation of the
world, America now presents the first instance of a people assembled
to say deliberately and calmly and to decide leisurely and peaceably
on the form of government by which they will bind themselves and
their posterity."
In the absence of any authentic information, the rumour spread through
the colonies that the convention was about to reconstitute a monarchy by
inviting the second son of George III, the Bishop of Osnaburg, to be
King of the United States; and these rumours became so persistent as to
evoke from the silent convention a semi-official denial. There is some
reason to believe that a minority of the convention did see in the
restoration of a constitutional monarchy the only solution of the
problem.
On September 8 the committee had finally considered and, after
modifications, approved the draft of the Committee on Detail, and a new
committee was thereupon appointed "to revise the style of and arrange
the articles that had been agreed to by the House." This committee was
one of exceptional strength. There were Dr. William Samuel Johnson, a
graduate of Oxford and a friend of his great namesake, Samuel Johnson;
Alexander Hamilton, Gouveneur Morris, a brilliant mind with an unusual
gift for lucid expression; James Madison, a true scholar in politics,
and Rufus King, an orator who, in the inflated language of the day, "was
ranked among the luminaries of the present age."
The convention then adjourned to await the final revision of the draft
by the Committee on Style.
On September 12 the committee reported. While it is not certain, it is
believed that its work was largely that of Gouveneur Morris.
September 13 the printed copies of the report of the Committee on Style
were ready, and three more days were spent by the convention in
carefully comparing each article and section of this final draft.
On September 15 the work of drafting the Constitution was regarded as
ended, and it was adopted and ordered to be engrossed for signing.
It may be interesting at this point to give the result of their labours
as measured in words, and if the framers of the Constitution deserve the
plaudits of posterity in no other respect they do in the remarkable
self-restraint which those results revealed.
The convention had been in session for 81 continuous days. Probably
they had consumed over 300 hours in debate. If their debates had been
fully reported, they would probably have filled at least fifty volumes,
and yet the net result of their labours consisted of about 4,000 words,
89 sentences, and about 140 distinct provisions. As the late Lord Bryce,
speaking in this age of unbridled expression, both oral and printed, so
well has said:
"The Constitution of the United States, including the amendments,
may be read aloud in twenty-three minutes. It is about half as long
as Saint Paul's Epistle to the Corinthians, and one-fourth as long
as the Irish Land Act of 1881. History knows few instruments which
in so few words lay down equally momentous rules on a vast range of
matters of the highest importance and complexity."
Even including the nineteen amendments, the Constitution, after one
hundred and thirty-five years of development, does not exceed 7,000
words. What admirable self-restraint! Possibly single opinions of the
Supreme Court could be cited which are as long as the whole document of
which they are interpreting a single phrase. This does not argue that
the Constitution is an obscure document, for it would be difficult to
cite any political document in the annals of mankind that was so simple
and lucid in expression. There is nothing Johnsonese about its style.
Every word is a word of plain speech, the ordinary meaning of which even
the man in the street knows. No tautology is to be found and no attempt
at ornate expression. It is a model of simplicity, and as it flows
through the reaches of history it will always excite the admiration of
those who love clarity and not rhetorical excesses. One can say of it as
Horace said of his favourite Spring:
_O, fons Bandusiae, splendidior vitro.
Dulce digne mero, non sine floribus_.
If I be asked why, if this be true, it has required many lengthy
opinions of the Supreme Court in the 256 volumes of its Reports to
interpret its meaning, the answer is that, as with the simple sayings of
the great Galilean, whose words have likewise been the subject of
unending commentary, the question is not one of clarity but of
adaptation of the meaning to the ever-changing conditions of human life.
Moreover, as with the sayings of the Master or the unequalled verse of
Shakespeare, questions of construction are more due to the commentators
than to the text itself.
On September 17 the convention met for the last time. The document was
engrossed and laid before the members for signature. Of the fifty-five
members who had attended, only thirty-nine remained. Of those, a number
were unwilling to sign as individuals. While the members had not been
unconscious of the magnitude of their labours, they were quite
insensible of the magnitude of their achievement. Few there were of the
convention who were enthusiastic about this result. Indeed, as the
document was ready for signature, it became a grave question whether the
remnant which remained had sufficient faith in their own work to
subscribe their names, and if they failed to do so its adoption by the
people would have been impossible. It was then that Doctor Franklin
rendered one of the last and greatest services of his life. With
ingratiating wit and with all the impressiveness that his distinguished
career inspired, Franklin thus spoke:
"I confess that there are several parts of this Constitution which I
do not at present approve, but I am not sure I shall never approve
them. For having lived long I have experienced many instances of
being obliged by better information or fuller consideration, to
change opinions even on important subjects, which I once thought
right, but found to be otherwise. It is therefore that the older I
grow, the more apt I am to doubt my own judgment and to pay more
respect to the judgment of others. Most men indeed as well as most
sects in religion think themselves in possession of all truth, and
that wherever others differ from them it is so far error. Steele, a
Protestant, in a dedication tells the Pope that the only difference
between our Churches in their opinions of the certainty of their
doctrines is, the Church of Rome is infallible and the Church of
England is never in the wrong. But though many private persons think
almost as highly of their own infallibility as of that of their
sect, few express it so naturally as a certain French lady, who in a
dispute with her sister, said: 'I don't know how it happens, sister,
but I meet with nobody but myself that's always in the right.'--_Il
n'y a que moi qui a toujours raison_.
"In these sentiments, sir, I agree to this Constitution with all
its faults, if they are such; because I think a general government
necessary for us, and there is no form of government but what may be
a blessing to the people, if well administered, and I believe
further that this is likely to be well administered for a course of
years, and can only end in despotism as other forms have done before
it, when the people shall become so corrupted as to need despotic
government, being incapable of any other. I doubt, too, whether any
other convention we can obtain may be able to make a better
Constitution. For when you assemble a number of men to have the
advantage of their joint wisdom you inevitably assemble with those
men all their prejudices, their passions, their errors of opinion,
their local interests, and their selfish views. From such an
assembly can a perfect production be expected? It therefore
astonishes me, sir, to find this system approaching so near to
perfection as it does.... Thus, I consent, sir, to this Constitution
because I expect no better, and because I am not sure that it is not
the best. The opinions I have had of its errors I sacrifice to the
public good, I have never whispered a syllable of them abroad.
Within these walls they were born and here they shall die. If every
one of us in returning to our constituents were to report the
objections he has had to it and endeavour to gain partisans in
support of them, we might prevent its being generally received, and
thereby lost all the salutary effects and great advantages resulting
naturally in our favour among foreign nations as well as among
ourselves from our real or apparent unanimity.
"On the whole, sir, I cannot help expressing a wish that every
member of the convention who may still have objections to it, would
with me, on this occasion doubt a little of his own
infallibility--and to make manifest our unanimity, put his name to
this instrument."
Truly this spirit of Doctor Franklin could be profitably invoked in this
day and generation, when nations are so intolerant of the ideas of other
nations.
As the members, moved by Franklin's humorous and yet moving appeal, came
forward to subscribe their names, Franklin drew the attention of some of
the members to the fact that on the back of the President's chair was
the half disk of a sun, and, with his love of metaphor, he said that
painters had often found it difficult to distinguish in their art a
rising from a setting sun. He then prophetically added:
"I have often and often in the course of the sessions and the
vicissitudes of my hopes and fears in its issues, looked at that
behind the President without being able to tell whether it was
rising or setting. But now at length I have the happiness to know
that it is a rising and not a setting sun."
Time has verified the genial doctor's prediction. The career of the new
nation thus formed has hitherto been a rising and not a setting sun. He
had in his sixty years of conspicuously useful citizenship--and perhaps
no nation ever had a more untiring and unselfish servant--done more than
any American to develop the American Commonwealth, but like Moses, he
was destined to see the promised land only from afar, for the new
Government had hardly been inaugurated, before Franklin died, as full of
years as honours. Prophetic as was his vision, he could never have
anticipated the reality of to-day, for this nation, thus deliberately
formed in the light of reason and without blood or passion, is to-day,
by common consent, one of the greatest and, I trust I may add, one of
the noblest republics of all time.
_III. The Political Philosophy of the Constitution_
In my last address I left Doctor Franklin predicting to the discouraged
remnant of the constitutional convention that the nation then formed
would be a "rising sun" in the constellation of the nations. The sun,
however, was destined to rise through a bank of dark and murky clouds,
for the Constitution could not take effect until it was ratified by nine
of the thirteen States; and when it was submitted to the people, who
selected State conventions for the purpose of ratifying or rejecting the
proposed plan of government, a bitter controversy at once ensued between
two political parties, then in process of formation, one called the
Constitution ratified without controversy. In the remaining ten the
struggle was long and arduous, and nearly a year passed before the
requisite nine States gave their assent. Two of the States refused to
become parts of the new nation, even after it began, and three years
passed before the thirteen States were re-united under the Constitution.
It could not have been ratified had there not been an assurance that
there would be immediate amendments to provide a Bill of Rights to
safeguard the individual. Thus came into existence the first ten
amendments to the Constitution, with their perpetual guaranty of the
fundamental rights of religion, freedom of speech and of the Press, the
right of assemblage, the immunity from unreasonable searches and
seizures, the right of trial by jury, and similar guarantees of
fundamental individual rights.
Distrustful as the American people were of the new Constitution, they
yet had the political sagacity to prefer its imperfections, whatever
they imagined them to be, to the mad spirit of innovation; and in order
that the great instrument should not, through the excesses of party
passion or the temporary caprices of fleeting generations, speedily
become a mere "scrap of paper" they very wisely provided that no
amendment should, in the future, be made unless it was proposed by at
least two-thirds of the Senate and the House of Representatives and
ratified by three-fourths of the States through their legislatures or
through special conventions. This was only one of many striking
negations of the principle of majority rule. As a result of this
provision, if we count the first ten amendments as virtually part of the
original document, only nine amendments have been adopted in 185 years,
and of these, excepting the amendments which ended slavery as the result
of the Civil War, only the last three, passed in recent years partly
through the relaxing influence of the world war, mark a serious
departure from the basic principles of the Constitution.
This stability is the more remarkable when we recall the profound and
revolutionary change that has taken place in the social life of man
since the Constitution was adopted. It was framed at the very end of the
pastoral-agricultural age of humanity. The industrial revolution, which
has more profoundly affected man in the last century and a half than all
the changes which had theretofore taken place in the life of man since
the cave-dweller, was only then beginning. Measured in terms of
mechanical power, men when the Constitution was formed were Lilliputians
as compared with the Brobdingnagians of our day, when man outflies the
eagle, outswims the fish, and by his conquest and utilization of the
invisible forces of nature has become the superman; and yet the
Constitution of 1787 is, in most of its essential principles, still the
Constitution of 1922. This surely marks it as a marvel in statecraft
and can only be explained by the fact that the Constitution was
developed by a people who, as "children brave and free of the great
mother-tongue," had a real genius for self-government and its essential
element, the spirit of self-restraint.
While it is true that the _text_ of the instrument has suffered almost
as little change as the Nicene Creed, yet it would be manifest error to
suggest that in its development by practical application the
Constitution has not undergone great changes.
The first and greatest of all its expounders, Chief Justice Marshall,
said, in one of his greatest opinions, that the Constitution was--
"intended to endure for ages to come, and consequently to be
_adapted_ to the various crises of human affairs. To have prescribed
the means by which government should in all future times execute
its powers would have been to change entirely the character of the
instrument and to give it the properties of a legal code. It would
have been an unwise attempt to provide by immutable rules for
exigencies which, if foreseen at all, must have been foreseen dimly,
and can best be provided for as they occur."
In this great purpose of enumerating rather than defining the powers of
government its framers were supremely wise. While it was marvellously
sagacious in what it provided, it was wise to the point of inspiration
in what it left unprovided.
Nothing is more admirable than the self-restraint of men who, venturing
upon an untried experiment, and after debating for four months upon the
principles of government, were content to embody their conclusions in
not more than four thousand words. To this we owe the elasticity of the
instrument. Its vitality is due to the fact that, by usage, judicial
interpretation, and, when necessary, formal amendment, it can be thus
adapted to the ever-accelerating changes of the most progressive age in
history, and that a people have administered the Constitution who, in
the process of such adaptation, have generally shown the same spirit of
conservative self-restraint as did the men who framed it.
The Constitution is neither, on the one hand, a Gibraltar rock, which
wholly resists the ceaseless washing of time or circumstance, nor is it,
on the other hand, a sandy beach, which is slowly destroyed by the
erosion of the waves. It is rather to be likened to a floating dock,
which, while firmly attached to its moorings, and not therefore the
caprice of the waves, yet rises and falls with the tide of time and
circumstance.
While in its practical adaptation to this complex age the men who framed
it, if they could "revisit the glimpses of the moon," would as little
recognize their own handiwork as their own nation, yet they would still
be able to find in successful operation the essential principles which
they embodied in the document more than a century ago.
Its success is also due to the fact that its framers were little
influenced by the spirit of doctrinarianism. They were not empiricists,
but very practical men. This is the more remarkable because they worked
in a period of an emotional fermentation of human thought. The
long-repressed intellect of man had broken into a violent eruption like
that of a seemingly extinct volcano.
From the middle of the eighteenth century until the end of the French
Revolution the masses everywhere were influenced by the emotional, and
at times hysterical, abstractions of the French encyclopedists; and that
these had influenced thought in the American colonies is readily shown
in the preamble of the Declaration of Independence, with its
unqualified assertion of the equality of men and the absolute right of
self-determination. The Declaration sought in its noble idealism to make
the "world safe for democracy," but the Constitution attempted the
greater task of making democracy safe for the world by inducing a people
to impose upon themselves salutary restraints upon majority rule.
Fortunately, the framers of the Constitution had learned a rude and
terrible lesson in the anarchy that had followed the War of
Independence. They were not so much concerned about the rights of man as
about his duties, and their great purpose was to substitute for the
visionary idealism of a rampant individualism the authority of law. Of
the hysteria of that time, which was about to culminate in the French
Revolution, there is no trace in the Constitution.
They were less concerned about Rousseau's social contract than to
restore law and order. Hard realities and not generous and impossible
abstractions interested them. They had suffered grievously for more than
ten years from misrule and had a distaste for mere phrase-making, of
which they had had a satiety, for the Constitution, in which there is
not a wasted word, is as cold and dry a document as a problem in
mathematics or a manual of parliamentary law. Its mandates have the
simplicity and directness of the Ten Commandments, and, like the
Decalogue, it consists more of what shall not be done than what shall be
done. In this freedom from empiricism and sturdy adherence to the
realities of life, it can be profitably commended to all nations which
may attempt a similar task.
While the Constitution apparently only deals with the practical and
essential details of government, yet underlying these simply but
wonderfully phrased delegations of power is a broad and accurate
political philosophy, which goes far to state the "law and the
prophets" of free government.
These essential principles of the Constitution may be briefly summarized
as follows:
1.
_The first is representative government_.
Nothing is more striking in the debates of the convention than the
distrust of its members, with few exceptions, of what they called
"democracy." By this term they meant the power of the people to
legislate directly and without the intervention of chosen
representatives. They believed that the utmost concession that could be
safely made to democracy was the power to select suitable men to
legislate for the common good, and nothing is more striking in the
Constitution than the care with which they sought to remove the powers
of legislation from the _direct_ action of the people. Nowhere in the
instrument is there a suggestion of the initiative or referendum.
Even an amendment to the Constitution could not be directly proposed by
the people in the exercise of their residual power or adopted by them.
As previously said, it could only be proposed by two-thirds of the House
and the Senate, and then could only become effective, if ratified by
three-fourths of the States, acting, not by a popular vote, but through
their chosen representatives either in their legislatures or special
conventions. Thus they denied the power of a majority to alter even the
form of government. Moreover, they gave to the President the power to
nullify laws passed by a majority of the House and Senate by his simple
veto, and yet, fearful of an unqualified power of the President in this
respect, they provided that the veto itself should be vetoed, if
two-thirds of the Senate and House concurred in such action. Moreover,
the great limitations of the Constitution, which forbid the majority, or
even the whole body of the House and Senate, to pass laws either for
want of authority or because they impair fundamental rights of
individuals, are as emphatic a negation of an absolute democracy as can
be found in any form of government.
Measured by present-day conventions of democracy, the Constitution is an
undemocratic document. The framers believed in representative
government, to which they gave the name "Republicanism" as the
antithesis to "democracy." The members of the Senate were to be selected
by State legislatures, and the President himself was, as originally
planned, to be selected by an electoral college similar to the College
of Cardinals.
The debates are full of utterances which explain this attitude of mind.
Mr. Gerry said: "The evils we experience flow from the excesses of
democracy. The people are the dupes of pretended patriots." Mr.
Randolph, the author of the Virginia plan, observed that the general
object of the Constitution was to provide a cure for the evils under
which the United States laboured; that in tracing these evils to their
origin every man had found it in the tribulation and follies of
democracy; that some check, therefore, was to be sought for against this
tendency of our Government.
Alexander Hamilton remarked, on June 18, that--
"the members most tenacious of republicanism were as loud as any in
declaiming against the evils of democracy."
He added:
"Give all the power to the many and they will oppress the few. Give
all the power to the few and they will oppress the many. Both ought,
therefore, to have the power that each may defend itself against the
other."
Perhaps the attitude of the members is thus best expressed by James
Madison, in the 10th of the Federalist papers:
"A pure democracy, by which I mean a State consisting of a small
number of citizens, who assemble and administer the government in
person, can admit of no cure for the mischiefs of faction. Such
democracies have ever been spectacles of turbulence and contention,
and have often been found incompatible with the personal security
and rights of property, and have generally been as short in their
lives as they have been violent in their deaths."
Undoubtedly, the framers of the Constitution in thus limiting popular
rule did not take sufficient account of the genius of an
English-speaking people. A few of their number recognized this.
Franklin, a self-made man, believed in democracy and doubted the
efficacy of the Constitution unless it was, like a pyramid, broad-based
upon the will of the people.
Colonel Mason, of Virginia, who was also of the Jeffersonian school of
political philosophy, said:
"Notwithstanding the oppression and injustice experienced among us
from democracy, the genius of the people is in favour of it, and the
genius of the people must be consulted."
In this they were true prophets, for the American people have refused to
limit democracy as narrowly and rigidly as the framers of the
Constitution clearly intended. The most notable illustration of this is
the selection of the President. It was never contemplated that the
people should directly select the President, but that a chosen body of
electors should, with careful deliberation, make this momentous choice.
While, in form, the system persists to this day, from the very beginning
the electors simply vote as the people who select them desire. It should
here be noted that Thomas Jefferson, the great Democrat and draftsman of
the Declaration of Independence, was not a member of the convention.
During its sessions he was in France. He was instrumental in securing
the first ten Amendments and the subsequent adaptation of the
Constitution to meet the democratic instincts of the American people is
largely due to his great leadership.
Moreover, the spirit of representative government has greatly changed
since the Constitution was adopted. The ideal of the earlier time was
that so nobly expressed by Edmund Burke in his address to the electors
of Bristol, for the framers believed that a representative held a
judicial position of the most sacred character, and that he should vote
as his judgment and conscience dictated without respect to the wishes of
his constituents. To-day, and notably in the last half century, the
contrary belief, due largely to Jefferson's political ideals, has so
influenced American politics that the representatives of the people,
either in the legislature or the executive departments of the
government, are considered by the masses as only the mouthpieces of the
people who select them, and to ignore their wishes is regarded as
virtually a betrayal of a trust and the negation of democracy.
For this change in attitude there has been much justification, for in my
country, as elsewhere, the people do not always select their best men as
representatives, and, with the imperfections of human nature, there has
been so much of ignorance and, at times, venality, that the instinct of
the people is to take the conduct of affairs into their own hands. On
the other hand, this change of attitude has led, in many instances, to
government by organized minorities, for, with the division of the masses
into political parties, it is easy for an organized minority to hold the
balance of power, and thus impress its will upon majorities. Time may
yet vindicate the theory of the framers that the limit of democracy is
the selection of true and tried representatives.
2.
_The second and most novel principle of the Constitution is its dual
form of Government._
This did constitute a unique contribution to the science of politics.
This was early recognized by de Tocqueville, one of the most acute
students of the Constitution, who said that it was based "upon a wholly,
novel theory, which may be considered a great discovery in modern
political science."
Previous to the Constitution it had not been thought possible to divide
sovereignty, or at least to have two different sovereignties moving as
planets in the same orbit. Therefore, all previous federated governments
had been based upon the plan that a league could only effect its will
through the constituent States and that the citizens in these States
owed no direct allegiance to the league, but only to the States of which
they were members. The Constitution, however, developed the idea of a
dual citizenship. While the people remained citizens of their respective
States in the sphere of government which was reserved to the States, yet
they directly became citizens of the central government, and, as such,
ceased to be citizens of the several States in the sphere of government
delegated to the central power; and this allegiance was enforced by the
direct action of the central government on the citizens as individuals.
Thus has been developed one of the most intricately complex governmental
systems in the world.
At the time of the adoption of the Constitution this division of
jurisdiction was quite feasible, for, geographically, the various States
were widely separated, and the lack of economic contact made it easy for
each government to function without serious conflict. The framers,
however, did not sufficiently reckon with the mechanical changes in
society that were then beginning. They did not anticipate, and could not
have anticipated, the centripetal influences of steam and electricity
which have woven the American people into an indissoluble unit for
commercial and many other purposes. As a result many laws of the Federal
Government, in their incidences in this complex age, directly impinge
upon rights of the State governments, and _vice versa_, and the
practical application of the Constitution has required a very subtle
adaptation of a form of government which was enacted in a primitive age
to a form of government of a complex age.
Take, for example, the power over commerce. According to the
Constitution, the Federal Government had plenary power over foreign
commerce and commerce _between_ the States, but the power over commerce
_within_ a State was reserved to State governments. This presupposed the
power of Government to divide commerce into two water-tight
compartments, or, at least, to regard the two spheres of power as
parallel lines that would never meet; whereas with the coming of the
railroad, steamship and the telegraph commerce has become so unified
that the parallel lines have become lines of interlacing zigzags. To
adapt the commerce clause of the Constitution to these changed
conditions has required, in the highest degree, the constructive genius
of the Supreme Court of the United States, and, in a series of very
remarkable decisions, which are contained in 256 volumes of the official
reports, that great tribunal has tried to draw a line between
inter-State and domestic commerce as nearly to the original plans of the
framers as it was possible; but obviously there has been so much
adaptation to make this possible that if Washington, Franklin, Madison
and Hamilton could revisit the nation they created they would not
recognize their own handiwork.
For the same reason, the dual system of government has been profoundly
modified by the great elemental forces of our mechanical age, so that
the scales, which try to hold in nice equipoise the Federal Government
on the one hand and the States on the other, have been greatly
disturbed. Originally, the States were the powerful political entities,
and the central government a mere agent for certain specific purposes;
but, in the development of the Constitution, the nation has naturally
become of overshadowing importance, while the States have relatively
steadily diminished in power and prestige.
These inevitable tendencies in American politics are called
"centralization," and while for nearly a century a great political party
bitterly contested its steady progress, due to the centripetal
influences above indicated, yet the contest was long since abandoned as
a hopeless one, and the struggle to-day is rather to keep, so far as
possible, the inevitable tendency measurably in check.
Nevertheless, it would be erroneous to suggest that the dual system of
government is a failure. It still endures in providing a large measure
of authority to the States in their purely domestic concerns, and, in a
country that extends from the Atlantic to the Pacific, and from the
Lakes to the Gulf, whose northern border is not very far from the Arctic
Circle, and whose southern border is not many degrees from the Equator,
there are such differences in the habits, conventions, and ideals of the
people that without this dual form of government the Constitution would
long since have broken down. It is not too much to say that the success
with which the framers of the Constitution reconciled national supremacy
and efficiency with local self-government is one of the great
achievements in the history of mankind.
3.
_The third principle was the guaranty of individual liberty through
constitutional limitations._
This marked another great contribution of America to the science of
government. In all previous government building, the State was regarded
as a sovereign, which could grant to individuals or classes, out of its
plenary power, certain privileges or exemptions, which were called
"liberties." Thus the liberties which the barons wrung from King John at
Runnymede were virtually exemptions from the power of government. Our
fathers did not believe in the sovereignty of the State in the sense of
absolute power, nor did they believe in the sovereignty of the people in
that sense. The word "sovereignty" will not be found in the Constitution
or the Declaration of Independence. They believed that each individual,
as a responsible moral being, had certain "inalienable rights" which
neither the State nor the people could rightfully take from him.
This conception of individualism, enforced in courts of law against
executives and legislatures, was wholly new and is the distinguishing
characteristic of American constitutionalism. As to such reserved
rights, guaranteed by Constitutional limitations, and largely by the
first ten amendments to the Constitution, a man, by virtue of his
inherent and God-given dignity as a human soul, has rights, such as
freedom of the Press, liberty of speech, property rights, and religious
freedom, which even one hundred millions of people cannot rightfully
take from him, without amending the Constitution. The framers did not
believe that the oil of anointing that was supposed to sanctify the
monarch and give him infallibility had fallen upon the "multitudinous
tongue" of the people to give it either infallibility or omnipotence.
They believed in individualism. They were animated by a sleepless
jealousy of governmental power. They believed that the greater such
power, the greater the danger of its abuse. They felt that the
individual could generally best work out his own salvation, and that his
constant prayer to Government was that of Diogenes to Alexander: "Keep
out of my sunlight." The worth and dignity of the human soul, the free
competition of man and man, the nobility of labour, the right to work,
free from the tyranny of state or class, this was their gospel.
Socialism was to them abhorrent.
This theory of government gave a new dignity to manhood. It said to the
State: "There is a limit to your power. Thus far and no further, and
here shall thy proud waves be stayed."
4.
_Closely allied to this doctrine of limited governmental powers, even by
a majority, is the fourth principle of an independent judiciary_.
It is the balance wheel of the Constitution, and to function it must be
beyond the possibility of attack and destruction. My country was founded
upon the rock of property rights and the sanctity of contracts. Both the
nation and the several States are forbidden to impair the obligation of
contracts, or take away life, liberty, or property "without due process
of law." The guarantee is as old as Magna Charta; for "due process of
law" is but a paraphrase of "the law of the land," without which no
freeman could be deprived of his liberties or possessions.
"Due process of law" means that there are certain fundamental principles
of liberty, not defined or even enumerated in the Constitution, but
having their sanction in the free and enlightened conscience of just
men, and that no man can be deprived of life, liberty, or property,
except in conformity with these fundamental decencies of liberty. To
protect these even against the will of a majority, however large, the
judiciary was given unprecedented powers. It threw about the individual
the solemn circle of the law. It made the judiciary the final conscience
of the nation. Your nation cherishes the same primal verities of
liberty, but with you, the people in Parliament, is the final judge. We,
however, are not content that a majority of the Legislature shall
override inviolable individual rights, about which the judiciary is
empowered to throw the solemn circle of the law.
This august power has won the admiration of the world, and by many is
regarded as a novel contribution to the science of government. The idea,
however, was not wholly novel. As previously shown, four Chief Justices
of England had declared that an Act of Parliament, if against common
right and reason, could be treated as null and void; while in France the
power of the judiciary to refuse efficacy to a law, unless sanctioned by
the judiciary, had been the cause of a long struggle for at least three
centuries between the French monarch and the courts of France. However,
in England the doctrine of the common law yielded to the later doctrine
of the omnipotence of Parliament, while in France the revisory power of
the judiciary was terminated by the French Revolution.
The United States, however, embodied it in its form of government and
thus made the judiciary, and especially the Supreme Court, the balance
wheel of the Constitution. Without such power the Constitution could
never have lasted, for neither executive officers nor legislatures are
good judges of the extent of their own powers.
Nothing more strikingly shows the spirit of unity which the Constitution
brought into being than the unbroken success with which the Supreme
Court has discharged this difficult and most delicate duty. The
President is the Commander-in-Chief of the Army and the Navy and can
call them to his aid. The legislature has almost unlimited power through
its control of the public purse. The States have their power reinforced
by armed forces, and some of them are as great in population and
resources as many of the nations of Europe. The Supreme Court, however,
has only one officer to execute its decrees, called the United States
Marshal; and yet, without sword or purse, and with only a high sheriff
to enforce its mandates, when the Supreme Court says to a President or
to a Congress or to the authorities of a great--and, in some respects,
sovereign--State that they must do this or must refrain from doing that,
the mandate is at once obeyed. Here, indeed, is the American ideal of "a
government of laws and not of men" most strikingly realized; and if the
American Constitution, as formulated and developed, had done nothing
else than to establish in this manner the supremacy of law, even as
against the overwhelming sentiment of the people, it would have
justified the well-known encomium of Mr. Gladstone.
It must be added, however, that in one respect this function of the
judiciary has had an unfortunate effect in lessening rather than
developing in the people the sense of constitutional morality. In your
country the power of Parliament is omnipotent, and yet in its
legislation it voluntarily observes these great fundamental decencies
of liberty which in the American Constitution are protected by formal
guarantees. This can only be true because either your representatives in
Parliament have a deep sense of constitutional morality, or that the
constituencies which select them have so much sense of constitutional
justice that their representatives dare not disregard these fundamental
decencies of liberty.
In the United States, however, the confidence that the Supreme Court
will itself protect these guaranties of liberty has led to a diminution
of the sense of constitutional morality, both in the people and their
representatives. It abates the vigilance which is said to be ever the
price of liberty.
Laws are passed which transgress the limitations of the Constitution
without adequate discussion as to their unconstitutional character, for
the reason that the determination of this fact is erroneously supposed
to be the exclusive function of the judiciary.
The judiciary, contrary to the common supposition, has no plenary power
to nullify unconstitutional laws. It can only do so when there is an
irreconcilable and indubitable repugnancy between a law and the
Constitution; but obviously laws can be passed from motives that are
anti-constitutional, and there is a wide sphere of political discretion
in which many acts can be done which, while politically
anti-constitutional, are not juridically unconstitutional. For this
reason, the undue dependence upon the judiciary to nullify every law
which either in form, necessary operation, or motive transgresses the
Constitution has so far lessened the vigilance of the people to protect
their own Constitution as to lead to its serious impairment.
5.
_The fifth fundamental principle was a system of governmental checks and
balances_.
The founders of the Republic were not enamoured of power. As they viewed
human history, the worst evils of government were due to excessive
concentration of power, which like Othello's jealousy "makes the meat it
feeds on."
This system of checks and balances again illustrates that the
Constitution is the great negation of unrestrained democracy. The
framers believed that a people was best governed that was least
governed. Therefore, their purpose was not so much to promote efficiency
in legislation as to put a brake upon precipitate action.
Time does not suffice to state the intricate system of checks and
balances whereby the legislature acts as a check upon the executive and
the executive upon the legislature, and the Supreme Court upon both.
When the Republic was small, and its public affairs were few, this
system of checks and balances worked admirably, but to-day, when the
nation is one of the greatest in the world, and its public affairs are
of the most important and complicated character, and often require
speedy action, it may be questioned whether the system is not now an
undue brake upon governmental efficiency, and does _not_ require some
modification to ensure efficiency. Indeed, it is a serious question with
many thoughtful Americans whether the growth of the United States has
not put an excessive strain upon its governmental machinery.
This system was in part due to the confident belief of the framers of
the Constitution in the Montesquieu doctrine of the division of
government into three independent departments--legislative, executive
and judicial; but experience has shown how difficult it is to apply this
doctrine in its literal rigidity. One result of the doctrine was the
mistaken attempt to keep the legislative and the executive as far apart
as possible. The Cabinet system of parliamentary government was not
adopted. While the President can appear before Congress and express his
views, his Cabinet is without such right. In practice, the gulf is
bridged by constant contact between the Cabinet and the committees of
Congress, but this does not wholly secure speedy and efficient
co-operation between the two departments. As I speak, a movement is in
progress, with the sanction of President Harding, to permit members of
his Cabinet to appear in Congress and thus defend directly and in person
the policies of the Executive.
This separation of the two departments, which causes so much friction,
has been emphasized by one feature of the Constitution which again marks
its distrust of democracy, namely the fixed tenure of office. The
Constitution did not intend that public officials should rise or fall
with the fleeting caprices of a constituency. It preferred to give the
President and the members of Congress a fixed term of office, and,
however unpopular they might become temporarily, they should have the
right and the opportunity to proceed even with unpopular policies, and
thus challenge the final verdict of the people.
If a parliamentary form of government, immediately responsive to
current opinion as registered in elections, is the great desideratum,
then the fixed tenure of offices is the vulnerable Achilles-heel of our
form of government. In other countries the Executive cannot survive a
vote of want of confidence by the legislature. In America, the
President, who is merely the Executive of the legislative will,
continues for his prescribed term, though he may have wholly lost the
confidence of the representatives of the people in Congress. While this
makes for stability in administration and keeps the ship of state on an
even keel, yet it also leads to the fatalism of our democracy, and often
the "native hue" of its resolution is thus "sicklied o'er with the pale
cast of thought." Take a striking instance. I am confident that after
the sinking of the _Lusitania_, the United States would have entered the
world war, if President Wilson's tenure of power had then depended upon
a vote of confidence.
6.
_The sixth fundamental principle is the joint power of the Senate and
the Executive over the foreign relations of the Government_.
I need not dwell at length upon this unique feature of our
constitutional system, for since the Versailles Treaty, the world has
become well acquainted with our peculiar system under which treaties are
made and war is declared or terminated. Nothing, excepting the principle
of local rule, was of deeper concern to the framers of the Constitution.
When it was framed, it was the accepted principle of all other nations
that the control of the foreign relations of the Government was the
exclusive prerogative of the Executive. In your country the only
limitation upon that power was the control of Parliament over the purse
of the nation, and some of the great struggles in your history related
to the attempt of the Crown to exact money to carry on the wars without
a Parliament grant.
The framers were unwilling to lodge any such power in the Executive,
however great his powers in other respects. This was primarily due to
the conception of the States that then prevailed. While they had created
a central government for certain specified purposes, they yet regarded
themselves as sovereign nations, and their representatives in the Senate
were, in a sense, their ambassadors. They were as little inclined to
permit the President of the United States to make treaties or declare
war at will in their behalf as the European nations would be to-day to
vest a similar authority in the League of Nations. It was, therefore,
first proposed that the power to make treaties and appoint diplomatic
representatives should be vested exclusively in the Senate, but as that
body was not always in session, this plan was so far modified as to give
the President, who is always acting, the power to _negotiate_ treaties
"with the advice and consent of the Senate." As to making war, the
framers were not willing to entrust the power even to the President and
the Senators, and it was therefore expressly provided that only Congress
could take this momentous step.
Here, again, the theory of the Constitution was necessarily somewhat
modified in practical administration, for under the power of nominating
diplomatic representatives, negotiating treaties, and in general, of
executing the laws of the nation, the principle was soon evolved that
the conduct of foreign affairs was primarily the function of the
President, with the limitation that the Senate must concur in diplomatic
appointments and in the validity of treaties, and that only both Houses
of Congress could jointly declare war. This cumbrous system necessarily
required that the President in conducting the foreign relations of the
Government should keep in touch with the Senate, and such was the
accepted procedure throughout the history of the nation until President
Wilson saw fit to ignore the Senate, even when the Senate had indicated
its dissent in advance to some of his policies at the Versailles
Conference.
I suppose that since that conference no part of our constitutional
system has caused more adverse comment in Europe than this system. It
often handicaps the United States from taking a speedy and effectual
part in international negotiations, although if the President and the
Senate be in harmony and collaborate in this joint responsibility, there
is no necessary reason why this should be so.
I share the view of many Americans that this provision of the
Constitution was wise and salutary, especially at this time, when the
United States has taken such an important position in the councils of
civilization. The President is a very powerful Executive, and his
tenure, while short, is fixed. Generally he is elected by little more
than a majority of the people, and sometimes through the curious
workings of the electoral college system, he has been only the choice
of a minority of the electorate. For these reasons, the framers of the
Constitution were unwilling to vest in the President exclusively the
immeasurable power of pledging the faith, man-power, and resources of
the nation and of declaring war. The heterogeneous character of our
population especially emphasizes the wisdom of this course, for it would
be difficult, if not impossible, for an American President to make an
offensive and defensive alliance with any nation or declare war against
another nation without running counter to the racial interests and
passions of a substantial part of the American nation. For better or
worse, the United States has limited, but not destroyed, as the world
war showed, its freedom to antagonize powerful nations from whose people
it has drawn large numbers of its own citizenship. The domestic harmony
of the nation requires that before the United States assumes treaty
obligations or makes war such policy shall represent the largely
preponderating sentiment of its people, and nothing could more
effectually secure this end than to require the President, before making
a treaty, to secure the assent of two-thirds of the Senate and a
majority of both Houses of Congress before making war.
While this may lead, as it has in recent years, to temporary and
regrettable embarrassments, yet in the long run, it is not only better
for the United States, but it is even to the best interests of other
nations, for in this way they are safeguarded against the possible
action of an Executive with whom racial instincts might still be very
influential. In your country, where the Government of the day is subject
to immediate dismissal for want of confidence, such power over foreign
relations can be safely entrusted to a few men, but in the United
States, with its fixed tenures of office, a President could pledge the
faith and involve his nation in war against the interests and will of
the people. Suppose the President had unlimited power over our foreign
relations and that within the next ten years an American, whose parents
were born in any European nation, was elected on purely domestic issues,
he could, with his assured four years of power, bring about a new
alignment of nations and shake the political equilibrium of the world.
The Constitution wisely refused to grant such a power. Hence the
provision for the concurrence of the legislative representatives of the
nation. At all events, it constitutes a system which, as the last
presidential election showed, the American people will not willingly
forgo. It is true that this system makes it difficult for the United
States to participate effectively in the main purpose of the League of
Nations to enforce peace by joint action at Geneva, but to ask the
United States to surrender a vital part of its constitutional system,
upon which its domestic peace so largely depends, in order to promote
the League, seems to me as unreasonable as it would be to ask your
country to abolish the Crown, to which it is sincerely attached as a
vital part of its system, as a contribution towards international
co-operation. You would not surrender such an integral part of your
system, and therefore it is not reasonable to expect a similar sacrifice
on our part, even though the meritorious purposes of the League be
freely recognized.
I have thus summarized briefly and most inadequately some of the
essential principles of the Constitution. I have only been able to
suggest very impressionistically what they are and the lessons to be
drawn from them. If I were able to deliver a dozen addresses on the
subject in this historic Hall and with this indulgent audience I would
not scratch even the surface. To understand the Constitution of the
United States you must not only read the text but the thousands of
opinions rendered in the last 130 years by the Supreme Court in its
great task of interpreting this wonderful document. Few documents have
been the subject of more extended commentaries. The four thousand words
have been meticulously examined through intellectual microscopes in
judicial opinions, textbooks, and other commentaries which are as "thick
as autumnal leaves that strow the brooks in Vallombrosa."
One can say of this document as Dr. Furness, in his variorum edition of
_Hamlet_, says of the words of that character:
"No words by him let fall, no syllable by him uttered, but has been
caught up and pondered, as no words except those of Holy Writ."
But what of its future and how long will the Constitution wholly resist
the washing of time and circumstance? Lord Macaulay once ventured the
prediction that the Constitution would prove unworkable as soon as there
were no longer large areas of undeveloped land and when the United
States became a nation of great cities. That period of development has
arrived. In 1880 only 15 per cent. of the American population lived in
the cities and the remainder were still on the farms. To-day over 52 per
cent, are crowded in one hundred great cities. Lord Macaulay added:
"I believe America's fate is only deferred by physical causes.
Institutions purely democratic will sooner or later destroy liberty
or civilization, or both.... The American Constitution is all sail
and no anchor."
In this last commentary Lord Macaulay was clearly mistaken. As I have
shown, the Constitution is not "purely democratic." It is amazing that
so great a mind should have so little understood that more than any
other Constitution, that of America imposes powerful restraints on
democracy. The experience of a century and a quarter has shown that
while the anchor may at times drag, yet it measurably holds the ship of
state to its ancient moorings. The American Constitution still remains
in its essential principles and still enjoys not only the confidence but
the affection of the great and varied people whom it rules. To the
latter this remarkable achievement must be attributed rather than to any
inherent strength in parchment or red seals, for in a democracy the
living soul of any Constitution must be such belief of the people in its
wisdom and justice. If it should perish to-morrow, it would yet have
enjoyed a life and growth of which any nation or age might be justly
proud. Moreover, it could claim with truth, if it finally perished, that
it had been subjected to conditions for which it was never intended and
that some of its essential principles had been ignored.
The Constitution is something more than a written formula of
government--it is a great spirit. It is a high and noble assertion,
and, indeed, vindication, of the morality of government. It "renders
unto Caesar [the political state] the things that are Caesar's," but in
safeguarding the fundamental moral rights of the people, it "renders
unto God the things that are God's."
In concluding, I cannot refrain from again reminding you that this
consummate work of statecraft was the work of the English-speaking race,
and that your people can therefore justly share in the pride which it
awakens. It is not only one of the great achievements of that _gens
aeterna_, but also one of the great monuments of human progress. It
illustrates the possibilities of true democracy in its best estate. When
the moral anarchy out of which it was born is called to mind, it can be
truly said that while "sown in weakness, it was raised in power."
To the succeeding ages, it will be a flaming beacon, and everywhere men,
who are confronted with the acute problems of this complex age, can
take encouragement from the fact that a small and weak people, when
confronted with similar problems, had the strength and will to impose
restraint upon themselves by peacefully proclaiming in the simple words
of the noble preamble to the Constitution:
"We, the people of the United States, in order to form a more
perfect union, establish justice, ensure domestic tranquillity,
provide for the common defence, promote the general welfare, and
secure the blessings of liberty to ourselves and our posterity, do
ordain and establish this Constitution for the United States of
America."
Note the words "ordain and establish." They imply perpetuity. They make
no provision for the secession of any State, even if it deems itself
aggrieved by federal action. And yet the right to secede was urged for
many years, but Lincoln completed the work of Washington, Franklin,
Madison and Hamilton by establishing that "a government for the people,
by the people and of the people should not perish from the earth."
_IV. The Revolt Against Authority_
"Where there is no vision, the people perish: but he that keepeth the
law, happy is he."
PROVERBS xxix. 18.
One of the most quoted--and also mis-quoted--proverbs of the wise
Solomon says, as translated in the authorized version: "Where there is
no vision, the people perish." What Solomon actually said was: "Where
there is no vision, the people _cast off restraint_." The translator
thus confused an effect with a cause. What was the vision to which the
Wise Man referred? The rest of the proverb, which is rarely quoted,
explains:
"Where there is no vision, the people cast off restraint: _but he that
keepeth the law, happy is he_."
The vision, then, is the authority of law, and Solomon's warning is
that to which the great and noble founder of Pennsylvania, William Penn,
many centuries later gave utterance, when he said:
"That government is free to the people under it, where the laws rule and
the people are a party to those laws; and all the rest is tyranny,
oligarchy and confusion."
It is my present purpose to discuss the moral psychology of the present
revolt against the spirit of authority. Too little consideration has
been paid by the legal profession to questions of moral psychology.
These have been left to metaphysicians and ecclesiastics, and yet--to
paraphrase the saying of the Master--"the laws were made for man and not
man for the laws," and if the science of the law ignores the study of
human nature and attempts to conform man to the laws, rather than the
laws to man, then its development is a very partial and imperfect one.
Let me first be sure of my premises. Is there in this day and
generation a spirit of lawlessness greater or different than that that
has always characterized human society? Such spirit of revolt against
authority has always existed, even when the penalty of death was visited
upon nearly all offences against life and property. Blackstone tells us
(Book IV, Chap. I) that in the eighteenth century it was a capital
offence to cut down a cherry tree in an orchard--a drastic penalty which
should increase our admiration for George Washington's courage and
veracity.
We are apt to see the past in a golden haze, which obscures our vision.
Thus, we think of William Penn's "holy experiment" on the banks of the
Delaware as the realization of Sir Thomas More's dream of Utopia; and
yet Pennsylvania was somewhat intemperately called in 1698 "the greatest
refuge for pirates and rogues in America," and Penn himself wrote, about
that time, that he had heard of no place which was "more overrun with
wickedness" than his City of Brotherly Love, where things were so
"openly committed in defiance of law and virtue--facts so foul that I am
forbid by common modesty to relate them."
Conceding that lawlessness is not a novel phenomenon, is not the present
time characterized by an exceptional revolt against the authority of
law? The statistics of our criminal courts show in recent years an
unprecedented growth in crimes. Thus, in the federal courts, pending
criminal indictments have increased from 9503 in the year 1912 to over
70,000 in the year 1921. While this abnormal increase is, in part, due
to sumptuary legislation--for approximately 30,000 cases now pending
arise under the prohibition statutes--yet, eliminating these, there yet
remains an increase in nine years of over 400 per cent, in the
comparatively narrow sphere of the federal criminal jurisdiction. I have
been unable to get the data from the State Courts; but the growth of
crimes can be measured by a few illustrative statistics. Thus, the
losses from burglaries which have been repaid by casualty companies have
grown in amount from $886,000 in 1914 to over $10,000,000 in 1920; and,
in a like period, embezzlements have increased five-fold. It is
notorious that the thefts from the mails and express companies and other
carriers have grown to enormous proportions. The hold-up of railroad
trains is now of frequent occurrence, and is not confined to the
unsettled sections of the country. Not only in the United States, but
even in Europe, such crimes of violence are of increasing frequency, and
a recent dispatch from Berne, under date of August 7, 1921, stated that
the famous International Expresses of Europe were now run under a
military guard.
The streets of our cities, once reasonably secure from crimes of
violence, have now become the field of operations for the foot-pad and
highwayman. The days of Dick Turpin and Jack Sheppard have returned,
with this serious difference--that the Turpins and Sheppards of our day
are not dependent upon the horse, but have the powerful automobile to
facilitate their crimes and make sure their escape.
Thus in Chicago alone, 5000 automobiles were stolen in a single year.
Once murder was an infrequent and abnormal crime. To-day in our large
cities it is of almost daily occurrence. In New York, in 1917, there
were 236 murders and only 67 convictions; in 1918, 221, and 77
convictions. In Chicago, in 1919, there were 336, and 44 convictions.
When the crime wave was at its height a year ago, the police authorities
in more than one American city confessed their impotence to impose
effective restraints. Life and property had seemingly become almost as
insecure as during the Middle Ages.[3]
[Footnote 3: The reader will bear in mind that these words were spoken
in August 1921. Unquestionably, the situation has greatly improved
during the present year(1922).]
As to the subtler and more insidious crimes against the political
state, it is enough to say that graft has become a science in city,
state and nation. Losses by such misapplication of public funds--piled
Pelion on Ossa--no longer run in the millions but the hundreds of
millions. Our city governments are, in many instances, foul cancers on
the body politic; and for us to boast of having solved the problem of
local self-government is as fatuous as for a strong man to exult in his
health when his body is covered with running sores. It has been
estimated that the annual profits from violations of the prohibition
laws have reached $300,000,000. Men who thus violate these laws for
sordid gain are not likely to obey other laws, and the respect for law
among all classes steadily diminishes as our people become familiar
with, and tolerant to, wholesale criminality. Whether the moral and
economic results of Prohibition overbalance this rising wave of crime,
time will tell.
_In limine_, let us note the significant fact that this spirit of
revolt against authority is not confined to the political state, and
therefore its causes lie beyond that sphere of human action.
Human life is governed by all manner of man-made laws--laws of art, of
social intercourse, of literature, music, business--all evolved by
custom and imposed by the collective will of society. Here we find the
same revolt against tradition and authority.
In music, its fundamental canons have been thrown aside and discord has
been substituted for harmony as its ideal. Its culmination--jazz--is a
musical crime. If the forms of dancing and music are symptomatic of an
age, what shall be said of the universal craze to indulge in crude and
clumsy dancing to the vile discords of so-called "jazz" music? The cry
of the time is:
"On with the dance, let joy be" unrefined.
In the plastic arts, the laws of form and the criteria of beauty have
been swept aside by the futurists, cubists, vorticists, tactilists, and
other aesthetic Bolsheviki.
In poetry, where beauty of rhythm, melody of sound and nobility of
thought were once regarded as the true tests, we now have in freak forms
of poetry the exaltation of the grotesque and brutal. Hundreds of poets
are feebly echoing the "barbaric yawp" of Walt Whitman, without the
redeeming merit of his occasional sublimity of thought.
In commerce, the revolt is against the purity of standards and the
integrity of business morals. Who can question that this is
pre-eminently the age of the sham and the counterfeit? Science is
prostituted to deceive the public by cloaking the increasing
deterioration in quality of merchandise. The blatant medium of
advertising has become so mendacious as to defeat its own purpose.
In the recent deflation in commodity values, there was widespread
"welching" among business men who had theretofore been classed as
reputable. Of course, I recognize that a far greater number kept their
contracts, even when it brought them to the verge of ruin. But when in
the history of American business was there such a volume of broken faith
as in the drastic deflation of 1920?
In the greater sphere of social life, we find the same revolt against
the institutions which have the sanction of the past. Social laws, which
mark the decent restraints of print, speech and dress, have in recent
decades been increasingly disregarded. The very foundations of the great
and primitive institutions of mankind--like the family, the Church, and
the State--have been shaken. Nature itself is defied. Thus, the
fundamental difference of sex is disregarded by social and political
movements which ignore the permanent differentiation of social function
ordained by Nature.
All these are but illustrations of the general revolt against the
authority of the past--a revolt that can be measured by the change in
the fundamental presumption of men with respect to the value of human
experience. In all former ages, all that was in the past was
presumptively true, and the burden was upon him who sought to change it.
To-day, the human mind apparently regards the lessons of the past as
presumptively false--and the burden is upon him who seeks to invoke
them.
Lest I be accused of undue pessimism, let me cite as a witness one who,
of all men, is probably best equipped to express an opinion upon the
moral state of the world. I refer to the venerable head of that
religious organization[4] which, with its trained representatives in
every part of the world, is probably better informed as to its spiritual
state than any other organization.
[Footnote 4: Reference is to the late Pope Benedict.]
Speaking last Christmas Eve, in an address to the College of Cardinals,
the venerable Pontiff gave expression to an estimate of present
conditions which should have attracted far greater attention than it
apparently did.
The Pope said that five plagues were now afflicting humanity.
The first was the unprecedented challenge to authority.
The second, an equally unprecedented hatred between man and man.
The third was the abnormal aversion to work.
The fourth, the excessive thirst for pleasure as the great aim of life.
The fifth, a gross materialism which denied the reality of the spiritual
in human life.
The accuracy of this indictment will commend itself to men who like
myself are not of Pope Benedict's communion.
I trust that I have already shown that the challenge to authority is
universal and is not confined to that of the political state. Even in
the narrower confine of the latter, the fires of revolution are either
violently burning, or, at least, smouldering. Two of the oldest empires
in the world, which, together, have more than half of its population
(China and Russia) are in a welter of anarchy; while many lesser nations
are in a stage of submerged revolt. If the revolt were confined to
autocratic governments, we might see in it merely a reaction against
tyranny; but even in the most stable of democracies and among the most
enlightened peoples, the underground rumblings of revolution may be
heard.
The Government of Italy has been preserved from overthrow, not alone by
its constituted authorities, but by a band of resolute men, called the
"fascisti," who have taken the law into their own hands, as did the
vigilance committees in western mining camps, to put down worse
disorders.
Even England, the mother of democracies, and the most stable of all
Governments in the maintenance of law, has been shaken to its very
foundations in the last three years, when powerful groups of men
attempted to seize the State by the throat and compel submission to
their demands by threatening to starve the community. This would be
serious enough if it were only the world-old struggle between capital
and labour and had only involved the conditions of manual toil. But the
insurrection against the political state in England was more political
than it was economic. It marked, on the part of millions of men, a
portentous decay of belief in representative government and its chosen
organ--the ballot box. Great and powerful groups had suddenly
discovered--and it may be the most portentous political discovery of the
twentieth century--that the power involved in their control over the
necessaries of life, as compared with the power of the voting franchise,
was as a forty-two centimetre cannon to the bow and arrow. The end
sought to be attained, namely the nationalization of the basic
industries, and even the control of the foreign policy of Great Britain,
vindicated the truth of the British Prime Minister's statement that
these great strikes involved something more than a mere struggle over
the conditions of labour, and that they were essentially seditious
attempts against the life of the State.[5]
[Footnote 5: I am here speaking of the conditions of 1920. I appreciate
the great improvement, which seems to me to justify the Lincoln-like
patience of Lloyd George.]
Nor were they altogether unsuccessful; for, when the armies of Lenin and
Trotsky were at the gates of Warsaw, in the summer of 1920, the attempts
of the Governments of England and Belgium to afford assistance to the
embattled Poles were paralysed by the labour groups of both countries,
who threatened a general strike if those two nations joined with France
in aiding Poland to resist a possibly greater menace to Western
civilization than has occurred since Attila and his Huns stood on the
banks of the Marne.
Of greater significance to the welfare of civilization is the complete
subversion during the world war of nearly all the international laws
which had been slowly built up in a thousand years. These principles, as
codified by the two Hague Conventions, were immediately swept aside in
the fierce struggle for existence, and civilized man, with his liquid
fire and poison gas and his deliberate; attacks upon undefended cities
and their women and children, waged war with the unrelenting ferocity of
primitive times.
Surely, this fierce war of extermination, which caused the loss of three
hundred billion dollars in property and thirty millions of human lives,
did mark for the time being the "twilight of civilization." The hands on
the dial of time had been put back--temporarily, let us hope and pray--a
thousand years.
Nor will many question the accuracy of the second count in Pope
Benedict's indictment. The war to end war only ended in unprecedented
hatred between nation and nation, class and class, and man and man.
Victors and vanquished are involved in a common ruin. And if in this
deluge of blood, which has submerged the world, there is a Mount Ararat,
upon which the ark of a truer and better peace can find refuge, it has
not yet appeared above the troubled surface of the waters.
Still less can one question the closely related third and fourth counts
in Pope Benedict's indictment, namely the unprecedented aversion to
work, when work is most needed to reconstruct the foundations of
prosperity, or the excessive thirst for pleasure which preceded,
accompanied, and now has followed the most terrible tragedy in the
annals of mankind. The true spirit of work seems to have vanished from
millions of men; that spirit of which Shakespeare made his Orlando
speak when he said of his true servant, Adam:
"O good old man! how well in thee appears
The constant service of the antique world.
When service sweat for duty, not for meed!"
The _moral_ of our industrial civilization has been shattered. Work for
work's sake, as the most glorious privilege of human faculties, has
gone, both as an ideal and as a potent spirit. The conception of work as
a degrading servitude, to be done with reluctance and grudging
inefficiency, seems to be the ideal of millions of men of all classes
and in all countries.
The spirit of work is of more than sentimental importance. It may be
said of it, as Hamlet says of death: "The readiness is all." All of us
are conscious of the fact that, given a love of work, and the capacity
for it seems almost illimitable--as witness Napoleon, with his
thousand-man power, or Shakespeare, who in twenty years could write
more than twenty masterpieces.
On the other hand, given an aversion to work, and the less a man does
the less he wants to do, or is seemingly capable of doing.
The great evil of the world to-day is this aversion to work. As the
mechanical era diminished the element of physical exertion in work, we
would have supposed that man would have sought expression for his
physical faculties in other ways. On the contrary, the whole history of
the mechanical era is a persistent struggle for more pay and less work,
and to-day it has culminated in world-wide ruin; for there is not a
nation in civilization which is not now in the throes of economic
distress, and many of them are on the verge of ruin. In my judgment, the
economic catastrophe of 1921 is far greater than the politico-military
catastrophe of 1914.
The results of these two tendencies, measured in the statistics of
productive industry, are literally appalling.
Thus, in 1920, Italy, according to statistics of her Minister of
Labour, lost 55,000,000 days of work because of strikes alone. From July
to September, many great factories were in the hands of revolutionary
communists. A full third of these strikes had for their end political
and not economic purposes.
In Germany, the progressive revolt of labour against work is thus
measured by competent authority: There were lost in strikes in 1917,
900,000 working days; in 1918, 4,900,000, and, in 1919, 46,600,000.
Even in our own favoured land, the same phenomena are observable. In the
State of New York alone for 1920, there was a loss due to strikes of
over 10,000,000 working days.
In all countries the losses by such cessations from labour are little as
compared with those due to the spirit which in England is called
"ca'-canny" or the shirking of performance of work, and of sabotage,
which means the deliberate destruction of machinery in operation.
Everywhere the phenomenon has been observed that, with the highest wages
known in the history of modern times, there has been an unmistakable
lessening of efficiency, and that with an increase in the number of
workers, there has been a decrease in output. Thus, the transportation
companies in the United States have seriously made a claim against the
United States Government for damages to their roads, amounting to
$750,000,000, claimed to be due to the inefficiency of labour during the
period of governmental operation.
Accompanying this indisposition to work efficiently has been a mad
desire for pleasure, such as, if it existed in like measure in preceding
ages, has not been seen within the memory of living man. Man has danced
upon the verge of a social abyss, and, as previously suggested, the
dancing has, both in form and in accompanying music, lost its former
grace and reverted to the primitive forms of crude vulgarity.
which gives the spectators the maximum of emotional expression with the
minimum of mental effort, had not been eclipsed by the splendour of a
Dempsey or a Carpentier.
Of the last count in Pope Benedict's indictment, I shall say but little.
It is more appropriate for the members of that great and noble
profession which is more intimately concerned with the spiritual advance
of mankind. It is enough to say that, while the Church as an institution
continues to exist, the belief in the supernatural and even in the
spiritual has been supplanted in the souls of millions of men by a gross
and debasing materialism.
If my reader agrees with me in my premises then we are not likely to
disagree in the conclusion that the causes of these grave symptoms are
not ephemeral or superficial; but must have their origin in some
deep-seated and world-wide change in human society. If there is to be a
remedy, we must first diagnose this malady of the human soul.
For example, let us not "lay the flattering unction to our souls" that
this spirit is solely the reaction of the great war.
The present weariness and lassitude of human spirit and the
disappointment and disillusion as to the aftermath of the harvest of
blood, may have aggravated, but they could not cause the symptoms of
which I speak; for the very obvious reason that all these symptoms were
in existence and apparent to a few discerning men for decades before the
war. Indeed, it is possible that the world war, far from causing the
_malaise_ of the age, was, in itself, but one of its many symptoms.
Undoubtedly, there are many contributing causes which have swollen the
turbid tide of this world-wide revolution against the spirit of
authority.
Thus, the multiplicity of laws does not tend to develop a law-abiding
spirit. This fact has often been noted. Thus Napoleon, on the eve of the
18th Brumaire, complained that France, with a thousand folios of law,
was a lawless nation. Unquestionably, the political state suffers in
authority by the abuse of legislation, and especially by the appeal to
law to curb evils that are best left to individual conscience.
In this age of democracy, the average individual is too apt to recognize
two constitutions--one, the constitution of the State, and the second,
an unwritten constitution, to him of higher authority, under which he
believes that no law is obligatory which he regards as in excess of the
true powers of government. Of this latter spirit, the widespread
violation of the prohibition law is a familiar illustration.
A race of individualists obey reluctantly, when they obey at all, any
laws which they regard as unreasonable or vexatious. Indeed, they are
increasingly opposed to any law, which affects their selfish interests.
Thus many good women are involuntary smugglers. They deny the authority
of the state to impose a tax upon a Paquin gown. The law's delays and
laxity in administration breed a spirit of contempt, and too often
invite men to take the law into their own hands. These causes are so
familiar that their statement is a commonplace.
Proceeding to deeper and less recognized causes, some would attribute
this spirit of lawlessness to the rampant individualism, which began in
the eighteenth century, and which has steadily and naturally grown with
the advance of democratic institutions. Undoubtedly, the excessive
emphasis upon the rights of man, which marked the political upheaval of
the close of the eighteenth and the beginning of the nineteenth century,
has contributed to this malady of the age. Men talked, and still talk,
loudly of their rights, but too rarely of their duties. And yet if we
were to attribute the malady merely to excessive individualism, we would
again err in mistaking a symptom for a cause.
To diagnose truly this malady we must look to some cause that is
coterminous in time with the disease itself and which has been operative
throughout civilization. We must seek some widespread change in social
conditions, for man's essential nature has changed but little, and the
change must, therefore, be of environment.
I know of but one such change that is sufficiently widespread and
deep-seated to account adequately for this malady of our time.
Beginning with the close of the eighteenth century, and continuing
throughout the nineteenth, a prodigious transformation has taken place
in the environment of man, which has done more to revolutionize the
conditions of human life than all the changes that had taken place in
the 500,000 preceding years which science has attributed to man's life
on the planet. Up to the period of Watt's discovery of steam vapour as a
motive power, these conditions, so far as the principal facilities of
life, were substantially those of the civilization which developed
eighty centuries ago on the banks of the Nile and later on the
Euphrates. Man had indeed increased his conquest over Nature in later
centuries by a few mechanical inventions, such as gunpowder, telescope,
magnetic needle, printing-press, spinning jenny, and hand-loom, but the
characteristic of all those inventions, with the exception of gunpowder,
was that they still remained a subordinate auxiliary to the physical
strength and mental skill of man. In other words, man still dominated
the machine, and there was still full play for his physical and mental
faculties. Moreover, all the inventions of preceding ages, from the
first fashioning of the flint to the spinning-wheel and the hand-lever
press, were all conquests of the tangible and visible forces of Nature.
With Watt's utilization of steam vapour as a motive power, man suddenly
passed into a new and portentous chapter of his varied history.
Thenceforth, he was to multiply his powers a thousandfold by the
utilization of the invisible powers of Nature--such as vapour and
electricity. This prodigious change in his powers, and therefore his
environment, has proceeded with ever-accelerating speed.
Man has suddenly become the superman. Like the giants of the ancient
fable, he has stormed the very ramparts of Divine power, or, like
Prometheus, he has stolen fire of omnipotent forces from Heaven itself
for his use. His voice can now reach from the Atlantic to the Pacific,
and, taking wing in his aeroplane, he can fly in one swift flight from
Nova Scotia to England, or he can leave Lausanne and, resting upon the
icy summit of Mont Blanc--thus, like "the herald, Mercury, new-lighted
on a heaven-kissing hill"--he can again plunge into the void, and thus
outfly the eagles themselves.
In thus acquiring from the forces of Nature almost illimitable power, he
has minimized the necessity for his own physical exertion or even
mental skill. The machine now not only acts for him, but too often
_thinks_ for him.
Is it surprising that so portentous a change should have fevered his
brain and disturbed his mental equilibrium? A new ideal, which he
proudly called "progress," obsessed him, the ideal of quantity and not
quality. His practical religion became that of acceleration and
facilitation--to do things more quickly and easily--and thus to minimize
exertion became his great objective. Less and less he relied upon the
initiative of his own brain and muscle, and more and more he put his
faith in the power of machinery to relieve him of labour. The evil of
our age is that its values are all false. It overrates speed, it
underrates sureness; it overrates the new, it underrates the old; it
overrates automatic efficiency, it underrates individual craftsmanship;
it overrates rights, it underrates duties; it overrates political
institutions, it underrates individual responsibility. We glory in the
fact that we can talk a thousand miles, but we ignore the greater
question, whether when we thus out-do Stentor, we have anything worth
saying. We have now made the serene spaces of the upper Heavens our
media to transmit market reports and sporting news, second-rate music
and worse oratory and in the meantime the great masters of thought,
Homer and Shakespeare, Bach and Beethoven remain unbidden on our library
shelves. What a sordid Vanity Fair is our modern Civilization!
This incalculable multiplication of power has intoxicated man. The lust
has obsessed him, without regard to whether it be constructive or
destructive. Quantity, not quality, becomes the great objective. Man
consumes the treasures of the earth faster than he produces them,
deforesting its surface and disembowelling its hidden wealth. As he
feverishly multiplied the things he desired, even more feverishly he
multiplied his wants.
To gain these, man sought the congested centres of human life. While
the world, as a whole, is not over-populated, the leading countries of
civilization were subjected to this tremendous pressure. Europe, which,
at the beginning of the nineteenth century, barely numbered 100,000,000
people, suddenly grew nearly five-fold. Millions left the farms to
gather into the cities to exploit their new and seemingly easy conquest
over Nature.
In the United States, as recently as 1880, only 15 per cent. of the
people were crowded in the cities, 85 per cent. remained upon the farms
and still followed that occupation, which, of all occupations, still
preserves, in its integrity, the dominance of human labour over the
machine. To-day, 52 per cent. of the population is in the cities, and
with many of them existence is both feverish and artificial. While they
have employment, many of them do not themselves work, but spend their
lives in watching machines work.
The result has been a minute subdivision of labour that has denied to
many workers the true significance and physical benefit of labour.
The direct results of this excessive tendency to specialization, whereby
not only the work but the worker becomes divided into mere fragments,
are threefold. Hobson, in his work on John Ruskin, thus classifies them.
In the first place, _narrowness_, due to the confinement to a single
action in which the elements of human skill or strength are largely
eliminated; secondly, _monotony_, in the assimilation of man to a
machine, whereby seemingly the machine dominates man and not man the
machine, and, thirdly, _irrationality_, in that work became dissociated
in the mind of the worker with any complete or satisfying achievement.
The worker does not see the fruit of his travail, and cannot therefore
be truly satisfied. To spend one's life in opening a valve to make a
part of a pin is, as Ruskin pointed out, demoralizing in its
tendencies. The clerk who only operates an adding machine has little
opportunity for self-expression.
Thus, millions of men have lost both the opportunity for real physical
exertion, the incentive to work in the joyous competition of skill, and
finally the reward of work in the sense of achievement.
More serious than this, however, has been the destructive effort of
quantity, the great object of the mechanical age, at the expense of
quality.
Take, for example, the printing-press: No one can question the immense
advantages which have flowed from the increased facility for
transmitting ideas. But may it not be true that the thousandfold
increase in such transmission by the rotary press has also tended to
muddy the current thought of the time? True it is that the
printing-press has piled up great treasures of human knowledge which
make this age the richest in accessible information. I am not speaking
of knowledge, but rather of the current thought of the living
generation.
I gravely question whether it has the same clarity as the brain of the
generation which fashioned the Constitution of the United States. Our
fathers could not talk over the telephone for three thousand miles, but
have we surpassed them in thoughts of enduring value? Washington and
Franklin could not travel sixty miles an hour in a railroad train, or
twice that speed in an aeroplane, but does it follow that they did not
travel to as good purpose as we, who scurry to and fro like the ants in
a disordered ant-heap?
Unquestionably, man of to-day has a thousand ideas suggested to him by
the newspaper and the library where our ancestors had one; but have we
the same spirit of calm inquiry and do we co-ordinate the facts we know
as wisely as our ancestors did?
Athens in the days of Pericles had but thirty thousand people and few
mechanical inventions; but she produced philosophers, poets and artists,
whose work after more than twenty centuries still remain the despair of
the would-be imitators.
Shakespeare had a theatre with the ground as its floor and the sky as
its ceiling; but New York, which has fifty theatres and annually spends
$100,000,000 in the box offices of its varied amusement resorts, has
rarely in two centuries produced a play that has lived.
To-day, man has a cinematographic brain. A thousand images are impressed
daily upon the screen of his consciousness, but they are as fleeting as
moving pictures in a cinema theatre. The American Press prints every
year over 29,000,000,000 issues. No one can question its educational
possibilities, for the best of all colleges is potentially the
University of Gutenberg. If it printed only the truth, its value would
be infinite; but who can say in what proportions of this vast volume of
printed matter is the true and the false? The framers of the
Constitution had few books and fewer newspapers. Their thoughts were few
and simple, but what they lacked in quantity they made up in unsurpassed
quality.
Before the beginning of the present mechanical age, the current of
living thought could be likened to a mountain stream, which though
confined within narrow banks yet had waters of transparent clearness.
May not the current thought of our time be compared with the mighty
Mississippi in the period of a spring freshet? Its banks are wide and
its current is swift, but the turbid stream that flows onward is one of
muddy swirls and eddies and overflows its banks to their destruction.
The great indictment, however, of the present age of mechanical power is
that it has largely destroyed the spirit of work. The great enigma which
it propounds to us, and which, like the riddle of the Sphinx, we will
solve or be destroyed, is this:
_Has the increase in the potential of human power, through
thermodynamics, been accompanied by a corresponding increase in the
potential of human character?_
To this life and death question, a great French philosopher, Le Bon,
writing in 1910, replied that the one unmistakable symptom of human life
was "the increasing deterioration in human character," and a great
physicist has described the symptom as "the progressive enfeeblement of
the human will."
In a famous book, _Degeneration_, written at the close of the nineteenth
century, Max Nordau, as a pathologist, explains this tendency by arguing
that our complex civilization has placed too great a strain upon the
limited nervous organization of man.
A great financier, the elder J.P. Morgan, once said of an existing
financial condition that it was suffering from "undigested securities,"
and, paraphrasing him, is it not possible that man is suffering from
undigested achievements and that his salvation must lie in adaptation to
a new environment, which, measured by any standard known to science, is
a thousandfold greater in this year of grace than it was at the
beginning of the nineteenth century?
No one would be mad enough to urge such a retrogression as the
abandonment of labour-saving machinery would involve. Indeed, it would
be impossible; for, in speaking of its evils, I freely recognize that
not only would civilization perish without its beneficent aid, but that
every step forward in the history of man has been coincident with, and
in large part attributable to, a new mechanical invention.
But suppose the development of labour-saving machinery should reach a
stage where all human labour was eliminated, what would be the effect on
man? The answer is contained in an experiment which Sir John Lubbock
made with a tribe of ants. Originally the most voracious and militant of
their species, yet when denied the opportunity for exercise and freed
from the necessity of foraging for their food, in three generations they
became anaemic and perished.
Take from man the opportunity of work and the sense of pride in
achievement and you have taken from him the very life of his existence.
Robert Burns could sing as he drove his ploughshare through the fields
of Ayr. To-day millions who simply watch an automatic infallible
machine, which requires neither strength nor skill, do not sing at their
work but too many curse the fate, which has chained them, like Ixion, to
a soulless machine.
The evil is even greater.
The specialization of our modern mechanical civilization has caused a
submergence of the individual into the group or class. Man is fast
ceasing to be the unit of human society. Self-governing groups are
becoming the new units. This is true of all classes of men, the employer
as well as the employee. The true justification for the American
anti-monopoly statutes, including the Sherman anti-trust law, lies not
so much in the realm of economics as in that of morals. With the
submergence of the individual, whether he be capitalist or wage-earner,
into a group, there has followed the dissipation of moral
responsibility. A mass morality has been substituted for individual
morality, and unfortunately, group morality generally intensifies the
vices more than the virtues of man.
Possibly, the greatest result of the mechanical age is this spirit of
organization.
Its merits are manifold and do not require statement; but they have
blinded us to the demerits of excessive organization.
We are now beginning to see--slowly, but surely--that a faculty of
organization which, as such, submerged the spirit of individualism, is
not an unmixed good.
Indeed, the moral lesson of the tragedy of Germany is the demoralizing
influence of organization carried to the _n_th power. No nation was ever
more highly organized than this modern State. Physically, intellectually
and spiritually it had become a highly developed machine. Its dominating
mechanical spirit so submerged the individual that, in 1914, the paradox
was observed of an enlightened nation that was seemingly destitute of a
conscience.
What was true of Germany, however, was true--although in lesser
degree--of all civilized nations. In all of them, the individual had
been submerged in group formations, and the effect upon the character of
man has been destructive of his nobler self.
This may explain the paradox of so-called "progress." It may be likened
to a great wheel, which, from the increasing domination of mechanical
forces, developed an ever-accelerating speed, until, by centrifugal
action, it went off its bearings in 1914 and caused an unprecedented
catastrophe. As man slowly pulls himself out of that gigantic wreck and
recovers consciousness, he begins to realize that speed is not
necessarily progress.
Of all this, the nineteenth century, in its exultant pride in its
conquest of the invisible forces, was almost blind. It not only accepted
progress as an unmistakable fact--mistaking, however, acceleration and
facilitation for progress--but in its mad folly believed in an immutable
law of progress which, working with the blind forces of machinery, would
propel man forward.
A few men, however, standing on the mountain ranges of human
observation, saw the future more clearly than did the mass. Emerson,
Carlyle, Ruskin, Samuel Butler, and Max Nordau, in the nineteenth
century, and, in our time, Ferrero, all pointed out the inevitable
dangers of the excessive mechanization of human society. The prophecies
were unhappily as little heeded as those of Cassandra.
One can see the tragedy of the time, as a few saw it, in comparing the
first _Locksley Hall_ of Alfred Tennyson, written in 1827, with its
abiding faith in the "increasing purpose of the ages" and its roseate
prophecies of the golden age, when the "war-drum would throb no longer
and the battle flags be furled in the Parliament of Man and the
Federation of the World," and the later _Locksley Hall_, written sixty
years later, when the great spiritual poet of our time gave utterance to
the dark pessimism which flooded his soul:
"Gone the cry of 'Forward, Forward,' lost within a growing gloom;
Lost, or only heard in silence from the silence of a tomb.
Half the marvels of my morning, triumphs over time and space,
Staled by frequence, shrunk by usage, into commonest commonplace!
Evolution ever climbing after some ideal good,
And Reversion ever dragging Evolution in the mud.
Is it well that while we range with Science, glorying in the Time,
City children soak and blacken soul and sense in city slime?"
Am I unduly pessimistic? I fear that this is the case with most men who,
like Dante, have crossed their fiftieth year and find themselves in a
"dark and sombre wood."
My reader will probably subject me to the additional reproach that I
suggest no remedy.
There are many palliatives for the evils which I have discussed. To
rekindle in men the love of work for work's sake and the spirit of
discipline, which the lost sense of human solidarity once inspired,
would do much to solve the problem, for work is the greatest moral force
in the world. But I must frankly add that I have neither the time nor
the qualifications to discuss the solution of this grave problem.
If we of this generation can only recognize that the evil exists, then
the situation is not past remedy; for man has never yet found himself in
a blind alley of negation. He is still "master of his soul and captain
of his fate," and, to me, the most encouraging sign of the times is the
persistent evidence of contemporary literature that thoughtful men now
recognize that much of our boasted progress was as unreal as a rainbow.
While the temper of the times seems for the moment pessimistic, it
merely marks the recognition of man of an abyss whose existence he
barely suspected but over which his indomitable courage will yet carry
him.
I have faith in the inextinguishable spark of the Divine, which is in
the human soul and which our complex mechanical civilization has not
extinguished. Of this, the world war was in itself a proof. All the
horrible resources of mechanics and chemistry were utilized to coerce
the human soul, and all proved ineffectual. Never did men rise to
greater heights of self-sacrifice or show a greater fidelity "even unto
death." Millions went to their graves, as to their beds, for an ideal;
and when that is possible, this Pandora's box of modern civilization,
which contained all imaginable evils, as well as benefits, also leaves
hope behind.
I am reminded of a remark that the great Roumanian statesman, Taku
Jonescu, made during the Peace Conference at Paris. When asked his views
as to the future of civilization, he replied: "Judged by the light of
reason there is but little hope, but I have faith in man's
inextinguishable impulse to live."
Happily, that cannot be affected by any change in man's environment! For
even when the cave-man retreated from the advance of the polar cap,
which once covered Europe with Arctic desolation, he not only defied the
elements but showed even then the love of the sublime by beautifying the
walls of his icy prison with those mural decorations which were the
beginning of art.
Assuredly, the man of to-day, with the rich heritage of countless ages,
can do no less. He has but to diagnose the evil and he will then, in
some way, meet it.
But what can man-made law do in this warfare against the blind forces of
Nature?
It is easy to exaggerate the value of all political institutions; for
they are generally on the surface of human life and do not reach down to
the deep under-currents of human nature. But the law can do something to
protect the soul of man from destruction by the soulless machine.
It can defend the spirit of individualism. It must champion the human
soul in its God-given right to exercise freely the faculties of mind and
body. We must defend the right to work against those who would either
destroy or degrade it. We must defend the right of every man, not only
to join with others in protecting his interests, whether he is a brain
worker or a hand worker--for without the right of combination the
individual would often be the victim of giant forces--but we must
vindicate the equal right of an individual, if he so wills, to depend
upon his own strength.
The tendency of group morality to standardize man--and thus reduce all
men to the dead level of an average mediocrity--is one that the law
should combat. Its protection should be given to those of superior skill
and diligence, who ask the due rewards of such superiority. Any other
course, to use the fine phrase of Thomas Jefferson in his first
inaugural, is to "take from the mouth of labour the bread it has
earned."
Of this spirit one of the noblest expressions is the Constitution of the
United States. That Magna Charta has not wholly escaped the destructive
tendencies of a mechanical age. It was framed at the very end of the
pastoral-agricultural age and at a time when the spirit of
individualism was in full flower. The hardy pioneers who, with their
axes, made straight the pathway of an advancing civilization, were
sturdy men who need not be undervalued to us of the mechanical age. The
"prairie schooner," which met the elemental forces of Nature with the
proud challenge: "Pike's Peak or bust," produced as fine a type of
manhood as the age which travels either in Mr. Ford's "fliver" or the
more luxurious Rolls-Royce.
The Constitution was framed in the period that marked the passing of the
primitive age and the dawn of the day of the machine. Watt had recently
discovered the potency of steam vapour as a motive power; but its only
use at first was for pumping water out of the mines.
When the framers of the Constitution met in high convention in
Philadelphia in the summer of 1787, a Connecticut Yankee, John Fitch,
was then also working in Philadelphia upon his steamboat; but twenty
years were to pass before the prow of the _Clermont_ was to part the
waters of the Hudson, and nearly a half century before transportation
was to be revolutionized by the utilization of Watt's invention in the
locomotive. Of the wonders of the steamship, the railroad, the
telegraphic cable, the wireless, the gasoline engine, and a thousand
other mechanical miracles, the framers of the American Constitution did
not even dream.
The greatest and noblest purpose of the Constitution was not alone to
hold in nicest equipose the relative powers of the nation and the
States, but also to maintain in the scales of justice a true equilibrium
between the rights of government and the rights of an individual. It did
not believe that the State was omnipotent or infallible, and yet it
proclaimed its authority within wise and just limits. It defended the
integrity of the human soul.
In other governments, these fundamental decencies of liberty rest upon
the conscience of the legislature. Under the American Constitution,
they are part of the fundamental law, and, as such, enforceable by
judges sworn to defend the integrity of the individual as fully as the
integrity of the State.
When did a nobler "vision" inspire men in the political annals of
mankind? Without that vision to restrain each succeeding generation of
Americans from the tempting excesses of political power, the American
Commonwealth, with its great heterogeneous democracy, would probably
perish.
That vision still remains as an ideal with the American people and still
leads them to ever-higher achievements, for in all the mad changes of a
frenzied hour, they have not yet lost faith in or love for the
Constitution of the Fathers! That vision will remain with them as long,
and no longer, as there is in their hearts a conscious and willing
acquiescence in its wisdom and justice. Obviously, it can have no
inherent vigour to perpetuate itself. If it ceases to be of the spirit
of the people, then the yellow parchment whereon it is inscribed can
avail nothing. When that parchment was last taken from the safe in the
State Department, the ink in which it had been engrossed nearly 134
years ago was found to have faded. All who believe in constitutional
government must hope that this is not a portentous symbol. The American
people must write the compact, not with ink upon parchment, but with
"letters of living light"--to use Webster's phrase--upon their hearts.
Again the solemn warning of the wise man of old recurs to us:
"Where there is no vision, the people perish; but he that keepeth the
law, happy is he."
End of the Project Gutenberg EBook of The Constitution of the United States
by James M. Beck
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