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THE THEORY OF SOCIAL 
 REVOLUTIONS 
 
THE MACiMII.LAN COMPANY 
 
 NEW VOriK ■ BOSTON • CHICAGO • DALLAS 
 ATLANTA • SAN FRANCISCO 
 
 MACMILLAN & CO., Limited 
 
 IXINDON • BOMBAY • CALCUTTA 
 MKLBOURNE 
 
 THE MACMILLAN CO. OF CANADA, Ltd. 
 
 TOROMTO 
 
THE THEORY OF SOCIAL 
 REVOLUTIONS 
 
 BY 
 
 BROOKS ADAMS 
 
 THE MACMILLAN COMPANY 
 1913 
 
 All rights reierved 
 
A3 
 
 Copyright, 1913, 
 By the ATLANTIC MONTHLY COMPANY. 
 
 Copyright, 1913, 
 By the MACMILLAN COMPANY. 
 
 Set up and electrotyped. Published September, 1913. 
 
 NorSnoob ^tese 
 
 J. 8. Gushing Co. — Berwick & Smith Co. 
 
 Norwood, Mass., U.S.A. 
 
 ©Ci.A354094 
 
PREFATORY NOTE 
 
 The first chapter of the following book was 
 published, in substantially its present form, in 
 the Atlantic Monthly for April, 19 13. I have 
 to thank the editor for his courtesy in assenting 
 to my wish to reprint. The other chapters have 
 not appeared before. I desire also to express 
 my obligations to my learned friend, Dr. M. M. 
 Bigelow, who, most kindly, at my request, read 
 chapters two and three, which deal with the 
 constitutional law, and gave me the benefit of 
 his most valuable criticism. 
 
 Further than this I have but one word to 
 add. I have written in support of no political 
 movement, nor for any ephemeral purpose. I 
 have written only to express a deep convic- 
 tion which is the result of more than twenty 
 years of study, and reflection upon this subject. 
 
 BROOKS ADAMS. 
 
 QuiNCY, Massachusetts, 
 May 17, 1913; 
 
CONTENTS 
 
 CHAPTER PAGE 
 
 I. The Collapse of Capitalistic Government . i 
 
 II. The Limitations of the Judicial Function . 36 
 
 III. American Courts as Legislative Chambers . 80 
 
 IV. The Social Equilibrium 132 
 
 V. Political Courts 160 
 
 VI. Inferences . 203 
 
 INDEX .231 
 
THE THEORY OF SOCIAL 
 REVOLUTIONS 
 
 CHAPTER I 
 
 THE COLLAPSE OF CAPITALISTIC GOVERNMENT 
 
 Civilization, I apprehend, is nearly synony- 
 mous with order. However much we may differ 
 touching such matters as the distribution of prop- 
 erty, the domestic relations, the law of inheri- 
 tance and the like, most of us, I should suppose, 
 woxild agree that without order civilization, as 
 we imderstand it, cannot exist. Now, although 
 the optimist contends that, since man cannot 
 foresee the future, worry about the future is 
 futile, and that everything, in the best possible 
 of worlds, is inevitably for the best, I think it 
 clear that within recent years an uneasy suspicion 
 has come into being that the principle of authority 
 has been dangerously impaired, and that the 
 social system, if it is to cohere, must be reorganized. 
 So far as my observation has extended, such in- 
 tuitions are usually not without an adequate 
 
2 THE THEORY OF SOCIAL REVOLUTIONS 
 
 cause, and if there be reason for anxiety anywhere, 
 it surely should be in the United States, with its 
 unwieldy bulk, its heterogeneous population, and 
 its complex government. Therefore, I submit, 
 that an hour may not be quite wasted which is 
 passed in considering some of the recent phenom- 
 ena which have appeared about us, in order to 
 ascertain if they can be grouped together in any 
 comprehensible relation. 
 
 About a century ago, after the American and 
 French Revolutions and the Napoleonic wars, 
 the present industrial era opened, and brought 
 with it a new governing class, as every consider- 
 able change in human environment must bring 
 with it a governing class to give it expression. 
 Perhaps, for lack of a recognized name, I may 
 describe this class as the industrial capitalistic 
 class, composed in the main of administrators 
 and bankers. As nothing in the universe is 
 stationary, ruling classes have their rise, culmina- 
 tion, and decline, and I conjecture that this class 
 attained to its acme of popularity and power, at 
 least in America, toward the close of the third 
 quarter of the nineteenth century. I draw this 
 inference from the fact that in the next quarter 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 3 
 
 resistance to capitalistic methods began to take 
 shape in such legislation as the Interstate Com- 
 merce Law and the Sherman Act, and almost 
 at the opening of the present century a progres- 
 sively rigorous opposition found for its mouth- 
 piece the President of the Union himself. His-** 
 tory may not be a very practical study, but it 
 teaches some useful lessons, one of which is that 
 nothing is accidental, and that if men move in a 
 given direction, they do so in obedience to an 
 impulsion as automatic as is the impulsion of 
 gravitation. Therefore, if Mr. Roosevelt be- 
 came, what his adversaries are pleased to call, 
 an agitator, his agitation had a cause which is as 
 deserving of study as is the path of a cyclone. 
 This problem has long interested me, and I harbor 
 no doubt not only that the equilibrium of society 
 is very rapidly shifting, but that Mr. Roosevelt ^ 
 has, half-automatically, been stimulated by the 
 instability about him to seek for a new centre of 
 social gravity. In plain English, I infer that he^ 
 has concluded that industrialism has induced 
 conditions which can no longer be controlled by ^ 
 the old capitalistic methods, and that the country 
 must be brought to a level of administrative ^ 
 
4 THE THEORY OF SOCIAL REVOLUTIONS 
 
 efficiency competent to deal with the strains and 
 stresses of the twentieth century, just as, a 
 hundred and twenty-five years ago, the country 
 was brought to an administrative level competent 
 for that age, by the adoption of the Constitution. 
 Acting on these premises, as I conjecture, whether 
 consciously worked out or not, Mr. Roosevelt's 
 next step was to begin the readjustment; but, 
 I infer, that on attempting any correlated measures 
 of reform, Mr. Roosevelt found progress impossible, 
 because of the obstruction of the courts. Hence 
 his instinct led him to try to overleap that ob- 
 struction, and he suggested, without, I suspect, 
 examining the problem very deeply, that the 
 people should assume the right of "recalling" 
 judicial decisions made in causes which involved 
 the nullifying of legislation. What would have 
 happened had Mr. Roosevelt been given the op- 
 portunity to thoroughly formulate his ideas, even 
 in the midst of an election, can never be known, 
 for it chanced that he was forced to deal with 
 subjects as vast and complex as ever vexed a 
 statesman or a jurist, under difficulties at least 
 equal to the difficulties of the task itself. 
 
 If the modern mind has developed one char- 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 5 
 
 acteristic more markedly than another, it is an 
 impatience with prolonged demands on its at- 
 tention, especially if the subject be tedious. No 
 one could imagine that the New York press of 
 to-day would print the disquisitions which Hamil- 
 ton wrote in 1788 in support of the Constitution, 
 or that, if it did, any one would read them, least 
 of all the lawyers; and yet Mr. Roosevelt's 
 audience was emotional and discursive even for 
 a modern American audience. Hence, if he 
 attempted to lead at all, he had little choice but 
 to adopt, or at least discuss, every nostrum for 
 reaching an immediate millennium which happened 
 to be uppermost; although, at the same time, 
 he had to defend himself against an attack com- 
 pared with which any criticism to which Hamilton 
 may have been subjected resembled a caress. 
 The result has been that the Progressive move- ' 
 ment, bearing Mr. Roosevelt with it, has de- 
 generated into a disintegrating rather than a 
 constructive energy, which is, I suspect, likely to 
 become a danger to every one interested in the * 
 maintenance of order, not to say in the stability 
 of property. Mr Roosevelt is admittedly a strong - 
 and determined man whose instinct is arbitrary, 
 
6 THE THEORY OF SOCIAL REVOLUTIONS 
 
 ' and yet, if my analysis be sound, we see him, at 
 
 ^^ the supreme moment of his life, diverted from his 
 
 chosen path toward centralization of power, and 
 
 '' projected into an environment of, apparently, for the 
 
 ^ most part, philanthropists and women, who could 
 
 hardly conceivably form a party fit to aid him 
 
 * in establishing a vigorous, consolidated, adminis- 
 
 * trative system. He must have found the pressure 
 
 toward disintegration resistless, and if we consider 
 
 this most significant phenomenon, in connection 
 
 with an abundance of similar phenomena, in 
 
 other countries, which indicate social incoherence, 
 
 we can hardly resist a growing apprehension 
 
 touching the future. Nor is that apprehension 
 
 allayed if, to reassure ourselves, we turn to history, 
 
 for there we find on every side long series of 
 
 precedents more ominous still. 
 
 Were all other evidence lacking, the inference 
 that radical changes are at hand might be deduced 
 from the past, /in the experience of the English- 
 speaking race, about once in every three genera- 
 ■ tions a social convulsion has occurred ; and prob- 
 ably such catastrophes must continue to occur in 
 order that laws and institutions may be adapted 
 to physical growth./. Human society is a living 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 7 
 
 organism, working mechanically, like any other ^ 
 organism. It has members, a circulation, a 
 nervous system, and a sort of skin or envelope, 
 consisting of its laws and institutions. /xhis skin, 
 or envelope, however, does not expand automati- 
 cally, as it would had Providence intended human- 
 ity to be peaceful, but is only fitted to new con- 
 ditions by those painful and conscious efforts 
 which we call revolutions^/' Usually these revolu- 
 tions are warlike, but sometimes they are benign, 
 as was the revolution over which General Washing- 
 ton, our first great" Progressive," presided, when 
 the rotting Confederation, under his guidance, was 
 converted into a relatively excellent administrative 
 system by the adoption of the Constitution. 
 
 Taken for all in all, I conceive General Washing- ^ 
 ton to have been the greatest man of the eighteenth 
 century, but to me his greatness chiefly consists 
 in that balance of mind which enabled him to 
 recognize when an old order had passed away, and ^ 
 to perceive how a new order could be best intro- 
 duced. Joseph Story was ten years old in 1789 
 when the Constitution was adopted; his earliest 
 impressions, therefore, were of the Confederation, 
 and I know no better description of the interval 
 
8 THE THEORY OF SOCIAL REVOLUTIONS 
 
 just subsequent to the peace of 1783, than is 
 contained in a few Unes in his dissenting opinion 
 in the Charles River Bridge Case : — 
 
 "In order to entertain a just view of this sub- 
 ject, we must go back to that period of general 
 bankruptcy, and distress and difficulty (1785). . . . 
 The union of the States was crumbling into ruins, 
 under the old Confederation. Agriculture, manu- 
 factures, and commerce were at their lowest ebb. 
 There was infinite danger to all the States from 
 local interests and jealousies, and from the ap- 
 parent impossibility of a much longer adherence 
 to that shadow of a government, the Continental 
 Congress. And even four years afterwards, when 
 every evil had been greatly aggravated, and civil 
 war was added to other calamities, the Constitu- 
 tion of the United States was all but shipwrecked 
 in passing through the state conventions." ^ 
 
 This crisis, according to my computation, was 
 the normal one of the third generation. Between 
 1688 and 1765 the British Empire had physically 
 outgrown its legal envelope, and the consequence 
 was a revolution. The thirteen American colonies, 
 which formed the western section of the imperial 
 
 ^ Charles River Bridge ?;. Warren Bridge, ii Peters, 608, 609. 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 9 
 
 mass, split from the core and drifted into chaos, 
 beyond the constraint of existing law. Washing- 4 
 ton was, in his way, a large capitalist, but he was 
 much more. He was not only a wealthy planter, • 
 but he was an engineer, a traveller, to an extent a 
 manufacturer, a politician, and a soldier, and he 
 saw that, as a conservative, he must be " Pro- * 
 gressive" and raise the law to a power high enough 
 to constrain all these thirteen refractory units. "^ 
 For Washington understood that peace does not 
 consist in talking platitudes at conferences, but 
 in organizing a sovereignty strong enough to 
 coerce its subjects. 
 
 The problem of constructing such a sovereignty 
 was the problem which Washington solved, tem- 
 porarily at least, without violence. He prevailed 
 not only because of an intelligence and elevation 
 of character which enabled him to comprehend, 
 and to persuade others, that, to attain a common 
 end, all must make sacrifices, but also because 
 he was supported by a body of the most remarkable 
 men whom America has ever produced. Men who,' 
 though doubtless in a numerical minority, taking 
 the country as a whole, by sheer weight of ability 
 and energy, achieved their purpose. 
 
lO THE THEORY OF SOCIAL REVOLUTIONS 
 
 Yet even Washington and his adherents could 
 not alter the limitations of the human mind. He 
 could postpone, but he could not avert, the impact 
 of conflicting social forces. In 1789 he com- 
 promised, but he did not determine the question 
 of sovereignty. He eluded an impending conflict 
 by introducing courts as political arbitrators, 
 and the expedient worked more or less well until 
 the tension reached a certain point. Then it 
 broke down, and the question of sovereignty had 
 to be settled in America, as elsewhere, on the field 
 of battle. It was not decided until Appomattox. 
 But the function of the courts in American life 
 is a subject which I shall consider hereafter. 
 
 If the invention of gunpowder and printing in 
 the fourteenth and fifteenth centuries presaged 
 the Reformation of the sixteenth, and if the In- 
 dustrial Revolution of the eighteenth was the 
 forerunner of political revolutions throughout the 
 Western World, we may well, after the mechanical 
 and economic cataclysm of the nineteenth, cease 
 wondering that twentieth-century society should 
 be radical. 
 
 Never since man first walked erect have his 
 relations toward nature been so changed, within 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT ii 
 
 the same space of time, as they have been since 
 Washington was elected President and the Parisian 
 mob stormed the Bastille. Washington foimd 
 the task of a readjustment heavy enough, but the 
 civilization he knew was simple. When Washing- 
 ton lived, the fund of energy at man's disposal 
 had not very sensibly augmented since the fall 
 of Rome. In the eighteenth, as in the fourth 
 century, engineers had at command only animal 
 power, and a little wind and water power, to which 
 had been added, at the end of the Middle Ages, 
 a low explosive. There was nothing in the daily 
 life of his age which made the legal and adminis- 
 trative principles which had sufficed for Justinian 
 insufficient for him. Twentieth-century society 
 rests on a basis not different so much in degree, as 
 in kind, from all that has gone before. Through 
 applied science infinite forces have been domes- 
 ticated, and the action of these infinite forces 
 upon finite minds has been to create a tension, 
 together with a social acceleration and concen- 
 tration, not only imparalleled, but, apparently, 
 without limit. Meanwhile our laws and in- 
 stitutions have remained, in substance, constant. 
 I doubt if we have developed a single important. 
 
12 THE THEORY OF SOCIAL REVOLUTIONS 
 
 administrative principle which would be novel 
 to Napoleon, were he to live again, and I am 
 quite sure that we have no legal principle younger 
 than Justinian. 
 As a result, society has been squeezed, as it 
 ' were, from its rigid eighteenth-century legal shell, 
 and has passed into a fourth dimension of space, 
 where it performs its most important fxmctions 
 ' beyond the cognizance of the law, which remains 
 - in a space of but three dimensions. Washington 
 encountered a somewhat analogous problem when 
 dealing with the thirteen petty independent states, 
 which had escaped from England; but his prob- 
 lem was relatively rudimentary. Taking the 
 theory of sovereignty as it stood, he had only to 
 apply it to communities. It was mainly a ques- 
 tion of concentrating a sufficient amount of energy 
 to enforce order in sovereign social units. The 
 whole social detail remained unchanged. Our 
 conditions would seem to imply a very consider- 
 able extension and specialization of the principle 
 of sovereignty, together with a commensurate 
 increment of energy, but unfortunately the twen- 
 tieth-century American problem is still further 
 complicated by the character of the envelope in 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 
 
 13 
 
 which this highly volatilized society is theoreti- 
 cally contained. To attain his object, Washing- 
 ton introduced a written organic law, which of all 
 things is the most inflexible. No other modern 
 nation has to consider such an impediment. 
 
 Moneyed capital I take to be stored human 
 energy, as a coal measure is stored solar energy; 
 and moneyed capital, under the stress of modern 
 life, has developed at once extreme fluidity, and 
 an equivalent compressibility. Thus a small 
 number of men can control it in enormous masses, 
 and so it comes to pass that, in a community 
 like the United States, a few men, or even, in 
 certain emergencies, a single man, may become 
 clothed with various of the attributes of sover- 
 eignty. Sovereign powers are powers so important 
 that the community, in its corporate capacity, 
 has, as society has centralized, usually found it 
 necessary to monopolize them more or less ab- 
 solutely, since their possession by private persons 
 causes revolt. These powers, when vested in 
 some official, as, for example, a king or emperor, 
 have been held by him, in all Western countries 
 at least, as a trust to be used for the common 
 welfare. A breach of that trust has commonly 
 
14 THE THEORY OF SOCIAL REVOLUTIONS 
 
 been punished by deposition or death. It was 
 upon a charge of breach of trust that Charles I, 
 among other sovereigns, was tried and executed. 
 In short, the relation of sovereign and subject 
 has been based either upon consent and mutual 
 obligation, or upon submission to a divine com- 
 mand; but, in either case, upon recognition of 
 responsibility. Only the relation of master and 
 slave implies the status of sovereign power vested 
 in an unaccountable superior. Nevertheless, it is 
 in a relation somewhat analogous to the latter, 
 that the modern capitalist has been placed toward 
 his fellow citizens, by the advances in applied 
 science. An example or two will explain my 
 meaning. 
 
 High among sovereign powers has always 
 ranked the ownership and administration of high- 
 ways. And it is evident why this should have 
 been so. Movement is life, and the stoppage of 
 movement is death, and the movement of every 
 people flows along its highways. An invader has 
 only to cut the communications of the invaded to 
 paralyze him, as he would paralyze an animal by 
 cutting his arteries or tendons. Accordingly, 
 in all ages and in all lands, down to the nineteenth 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 15 
 
 century, nations even partially centralized have, 
 in their corporate capacity, owned and cared for 
 their highways, either directly or through ac- 
 countable agents. And they have paid for them 
 by direct taxes, like the Romans, or by tolls levied 
 upon traffic, as many mediaeval governments 
 preferred to do. Either method answers its 
 purpose, provided the government recognizes its 
 responsibility ; and no government ever recognized 
 this responsibility more fully than did the auto- 
 cratic government of ancient Rome. So the 
 absolute regime of eighteenth-century France 
 recognized this responsibility when Louis XVI 
 undertook to remedy the abuse of unequal taxa- 
 tion, for the maintenance of the highways, by 
 abolishing the corvee. 
 
 Toward the middle of the nineteenth century, 
 the application, by science, of steam to locomotion, 
 made railways a favorite speculation. Forth- 
 with, private capital acquired these highways, 
 and because of the inelasticity of the old law, 
 treated them as ordinary chattels, to be admin- 
 istered for the profit of the owner exclusively. 
 It is true that railway companies posed as public 
 agents when demanding the power to take pri- 
 
l6 THE THEORY OF SOCIAL REVOLUTIONS 
 
 vate property ; but when it came to charging for 
 use of their ways, they claimed to be only private 
 carriers, authorized to bargain as they pleased. 
 Indeed, it grew to be considered a mark of efficient 
 railroad management to extract the largest rev- 
 enue possible from the people, along the lines 
 of least resistance ; that is, by taxing most heavily 
 those individuals and localities which could least 
 resist. And the claim by the railroads that they 
 might do this as a matter of right was long up- 
 held by the courts,^ nor have the judges even 
 yet, after a generation of revolt and of legislation, 
 altogether abandoned this doctrine. 
 
 The courts — reluctantly, it is true, and prin- 
 cipally at the instigation of the railways them- 
 selves, who found the practice unprofitable — 
 have latterly discountenanced discrimination as 
 to persons, but they still uphold discrimination 
 as to localities.^ Now, among abuses of sover- 
 eign power, this is one of the most galling, for of 
 all taxes the transportation tax is perhaps that 
 
 ^ Fitchburg R. R. v. Gage, 12 Gray 393, and innumerable cases 
 following it. 
 
 2 See the decisions of the Commerce Court on the Long and Short- 
 Haul Clause. Atchison, T. & S. F. Ry. v. United States, 191 Federal 
 Rep. 856. 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 17 
 
 which is most searching, most insidious, and, 
 when misused, most destructive. The price paid 
 for transportation is not so essential to the public 
 welfare as its equality; for neither persons nor 
 localities can prosper when the necessaries of life 
 cost them more than they cost their competitors. 
 In towns, no cup of water can be drunk, no crust 
 of bread eaten, no garment worn, which has not 
 paid the transportation tax, and the farmer's 
 crops must rot upon his land, if other farmers 
 pay enough less than he to exclude him from 
 markets toward which they all stand in a position 
 otherwise equal. Yet this formidable power has 
 been usurped by private persons who have used 
 it purely selfishly, as no legitimate sovereign 
 could have used it, and by persons who have 
 indignantly denounced all attempts to hold them 
 accountable, as an infringement of their con- 
 stitutional rights. Obviously, capital cannot as-' 
 sume the position of an irresponsible sovereign,, 
 living in a sphere beyond the domain of law, with- 
 out inviting the fate which has awaited all sover- 
 eigns who have denied or abused their trust. 
 
 The operation of the New York Clearing-House 
 is another example of the acquisition of sovereign 
 
l8 THE THEORY OF SOCIAL REVOLUTIONS 
 
 power by irresponsible private persons. Pri- 
 marily, of course, a clearing-house is an innocent 
 institution occupied with adjusting balances be- 
 tween banks, and has no relation to the volume 
 of the currency. Furthermore, among all highly 
 centralized nations, the regulation of the cur- 
 rency is one of the most jealously guarded of the 
 prerogatives of sovereignty, because all values 
 hinge upon the relation which the volume of the 
 currency bears to the volume of trade. Yet, as 
 everybody knows, in moments of financial panic, 
 the handful of financiers who, directly or in- 
 directly, govern the Clearing-House, have it in 
 their power either to expand or to contract the 
 currency, by issuing or by withdrawing Clearing- 
 House certificates, more effectually perhaps than 
 if they controlled the Treasury of the United 
 States. Nor does this power, vast as it is, at all 
 represent the supremacy which a few bankers 
 enjoy over values, because of their facilities for 
 manipulating the currency and, with the cur- 
 rency, credit ; facilities, which are used or abused 
 entirely beyond the reach of the law. 
 
 Bankers, at their conventions and through the 
 press, are wont to denounce the American mone- 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 19 
 
 tary system, and without doubt all that they say, 
 and much more that they do not say, is true; 
 and yet I should suppose that there could be 
 little doubt that American financiers might, after 
 the panic of 1893, and before the administration 
 of Mr. Taft, have obtained from Congress, at 
 most sessions, very reasonable legislation, had 
 they first agreed upon the reforms they demanded, 
 and, secondly, manifested their readiness, as a 
 condition precedent to such reforms, to submit to 
 effective government supervision in those depart- 
 ments of their business which relate to the in- 
 flation or depression of values. They have shown 
 little inclination to submit to restraint in these 
 particulars, nor, perhaps, is their reluctance sur- 
 prising, for the possession by a very small favored 
 class of the unquestioned privilege, whether 
 actually used or not, at recurring intervals, of 
 subjecting the debtor class to such pressure as the 
 creditor may think necessary, in order to force 
 the debtor to surrender his property to the 
 creditor at the creditor's price, is a wonder 
 beside which Aladdin's lamp burns dim. 
 
 As I have already remarked, I apprehend that 
 sovereignty is a variable quantity of administra- 
 
20 THE THEORY OF SOCIAL REVOLUTIONS 
 
 tive energy, which, in civiHzations which we call 
 advancing, tends to accumulate with a rapidity 
 proportionate to the acceleration of movement. 
 That is to say, the community, as it consolidates, 
 finds it essential to its safety to withdraw, more 
 or less completely, from individuals, and to 
 monopolize, more or less strictly, itself, a great 
 variety of functions. At one stage of civilization 
 the head of the family administers justice, main- 
 tains an armed force for war or police, wages war, 
 makes treaties of peace, coins money, and, not 
 infrequently, wears a crown, usually of a form to 
 indicate his importance in a hierarchy. At a 
 later stage of civilization, companies of traders 
 play a great part. Such aggregations of private 
 and irresponsible adventurers have invaded and 
 conquered empires, founded colonies, and ad- 
 ministered justice to millions of human beings. 
 In our own time, we have seen the assumption of 
 many of the functions of these and similar private 
 companies by the sovereign. We have seen the 
 East India Company absorbed by the British 
 Parliament; we have seen the railways, and the 
 telephone and the telegraph companies, taken 
 into possession, very generally, by the most pro- 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 21 
 
 gressive governments of the world ; and now we 
 have come to the necessity of deahng with the 
 domestic-trade monopoly, because trade has fallen 
 into monopoly through the centralization of capi- 
 tal in a constantly contracting circle of owner- 
 ship. 
 
 Among innumerable kinds of monopolies none 
 have been more troublesome than trade monop- 
 olies, especially those which control the price of 
 the necessaries of life ; for, so far as I know, no 
 people, approximately free, have long endured 
 such monopolies patiently. Nor could they well 
 have done so without constraint by overpowering 
 physical force, for the possession of a monopoly 
 of a necessary of life by an individual, or by a 
 small privileged class, is tantamount to investing 
 a minority, contemptible alike in numbers and 
 in physical force, with an arbitrary and un- 
 limited power to tax the majority, not for public, 
 but for private purposes. Therefore it has not 
 infrequently happened that persistence in ad- 
 hering to and in enforcing such monopolies has 
 led, first, to attempts at regulation, and, these 
 failing, to confiscation, and sometimes to the 
 proscription of the owners. An example of such 
 
22 THE THEORY OF SOCIAL REVOLUTIONS 
 
 a phenomenon occurs to me which, just now, 
 seems apposite. 
 
 In the earher Middle Ages, before gunpowder 
 made fortified houses untenable when attacked 
 by the sovereign, the highways were so dangerous 
 that trade arid manufactures could only survive 
 in walled towns. An unarmed urban population 
 had to buy its privileges, and to pay for these a 
 syndicate grew up in each town, which became 
 responsible for the town ferm, or tax, and, in 
 return, collected what part of the municipal ex- 
 penses it could from the poorer inhabitants. 
 These syndicates, called guilds, as a means of 
 raising money, regulated trade and fixed prices, 
 and they succeeded in fixing prices because they 
 could prevent competition within the walls. Pres- 
 ently complaints became rife of guild oppression, 
 and the courts had to entertain these complaints 
 from the outset, to keep some semblance of order ; 
 but at length the turmoil passed beyond the 
 reach of the courts, and Parliament intervened. 
 Parliament not only enacted a series of statutes 
 regulating prices in towns, but supervised guild 
 membership, requiring trading companies to re- 
 ceive new members upon what Parliament con- 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 23 
 
 sidered to be reasonable terms. Nevertheless, 
 friction continued. 
 
 With advances in science, artillery improved^ 
 and, as artillery improved, the police strength- 
 ened until the king could arrest whom he pleased. 
 Then the country grew safe and manufactures 
 migrated from the walled and heavily taxed towns 
 to the cheap, open villages, and from thence 
 undersold the guilds. As the area of competition 
 broadened, so the guilds weakened, until, under 
 Edward VI, being no longer able to defend them- 
 selves, they were ruthlessly and savagely plun- 
 dered; and fifty years later the Court of King's 
 Bench gravely held that a royal grant of a mo- 
 nopoly had always been bad at common law.^ 
 
 Though the Court's law proved to be good, 
 since it has stood, its history was fantastic; for 
 the trade-guild was the offspring of trade mo- 
 nopoly, and a trade monopoly had for centuries 
 been granted habitually by the feudal landlord 
 to his tenants, and indeed was the only means 
 by which an urban population could finance its 
 military expenditure. Then, in due course, the 
 Crown tried to establish its exclusive right to 
 
 ^ Darcy v. Allein, 11 Rep. 84. 
 
24 
 
 THE THEORY OF SOCIAL REVOLUTIONS 
 
 grant monopolies, and finally Parliament — or 
 King, Lords, and Commons combined, being the 
 whole nation in its corporate capacity, — ap- 
 propriated this monopoly of monopolies as its 
 supreme prerogative. And with Parliament this 
 monopoly has ever since remained. 
 
 In fine, monopolies, or competition in trade, 
 appear to be recurrent social phases which depend 
 upon the ratio which the mass and the fluidity of 
 capital, or, in other words, its energy, bears to 
 the area within which competition is possible. 
 In the Middle Ages, when the town walls bounded 
 that area, or when, at most, it was restricted to a 
 few lines of communication between defensible 
 points garrisoned by the monopolists, — as were 
 the Staple towns of England which carried on the 
 wool trade with the British fortified counting- 
 houses in Flanders, — a small quantity of slug- 
 gish capital sufiiced. But as police improved, and 
 the area of competition broadened faster than 
 capital accumulated and quickened, the com- 
 petitive phase dawned, whose advent is marked 
 by Darcy v. AUein, decided in the year 1600. 
 Finally, the issue between monopoly and free 
 trade was fought out in the American Revolution, 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 25 
 
 for the measure which precipitated hostilities 
 was the effort of England to impose her monopoly 
 of the Eastern trade upon America. The Boston 
 Tea Party occurred on December i6, 1773. Then 
 came the heyday of competition with the accept- 
 ance of the theories of Adam Smith, and the 
 political domination in England, towards 1840, 
 of the Manchester school of political economy. 
 
 About forty years since, in America at least, 
 the tide would appear once more to have turned. 
 I fix the moment of flux, as I am apt to do, by a 
 lawsuit. This suit was the Morris Run Coal 
 Company v. Barclay Coal Company,^ which is 
 the first modern anti-monopoly litigation that I 
 have met with in the United States. It was 
 decided in Pennsylvania in 1871 ; and since 1871, 
 while the area within which competition is possible 
 has been kept constant by the tariff, capital has 
 accumulated and has been concentrated and 
 volatilized until, within this republic, substantially 
 all prices are fixed by a vast moneyed mass. This 
 mass, obeying what amounts to being a single 
 volition, has its heart in Wall Street, and per- 
 vades every corner of the Union. No matter 
 
 1 68 Pa. 173. 
 
26 THE THEORY OF SOCIAL REVOLUTIONS 
 
 what price is in question, whether it be the price 
 of meat, or coal, or cotton cloth, or of railway 
 transportation, or of insurance, or of discounts, 
 the inquirer will find the price to be, in essence, 
 a monopoly or fixed price; and if he will follow 
 his investigation to the end, he will also find that 
 the first cause in the complex chain of cause and 
 effect which created the monopoly is that mys- 
 terious energy which is enthroned on the Hudson. 
 The presence of monopolistic prices in trade is 
 not always a result of conscious agreement; 
 more frequently, perhaps, it is automatic, and is 
 an effect of the concentration of capital to a point 
 where competition ceases, as when all the capital 
 engaged in a trade belongs to a single owner. 
 Supposing ownership to be enough restricted, com- 
 bination is easier and more profitable than com- 
 petition; therefore combination, conscious or 
 unconscious, supplants competition. The infer- 
 ence from the evidence is that, in the United 
 States, capital has reached, or is rapidly reaching, 
 this point of concentration; and if this be true, 
 competition cannot be enforced by legislation. 
 But, assuming that competition could still be 
 enforced by law, the only effect would be to make 
 
COLLAPSE OF CAPITALISTIC GOVERNMEISIT 27 
 
 the mass of capital more homogeneous by ehmi- 
 nating still further such of the weaker capitalists 
 as have survived. Ultimately, unless indeed 
 society is to dissolve and capital migrate else- 
 where, all the present phenomena would be in- 
 tensified. Nor would free trade, probably, have 
 more than a very transitory effect. In no depart- 
 ment of trade is competition freer than in the 
 Atlantic passenger service, and yet in no trade is 
 there a stricter monopoly price. 
 
 The same acceleration of the social movement 
 which has caused this centralization of capital 
 has caused the centralization of another form of 
 human energy, which is its negative : labor unions 
 organize labor as a monopoly. Labor protests 
 against the irresponsible sovereignty of capital, 
 as men have always protested against irresponsible 
 sovereignty, declaring that the capitalistic social 
 system, as it now exists, is a form of slavery. Very 
 logically, therefore, the abler and bolder labor 
 agitators proclaim that labor levies actual war 
 against society, and that in that war there can 
 be no truce until irresponsible capital has capitu- 
 lated. Also, in labor's methods of warfare the 
 same phenomena appear as in the autocracy of 
 
28 THE THEORY OF SOCIAL REVOLUTIONS 
 
 capital. Labor attacks capitalistic society by 
 methods beyond the purview of the law, and may, 
 at any moment, shatter the social system ; while, 
 under our laws and institutions, society is helpless. 
 Few persons, I should imagine, who reflect on 
 these phenomena, fail to admit to themselves, 
 whatever they may say publicly, that present so- 
 cial conditions are unsatisfactory, and I take the 
 cause of the stress to be that which I have stated. 
 
 ,. We have extended the range of applied science 
 until we daily use infinite forces, and those forces 
 must, apparently, disrupt our society, unless we 
 can raise the laws and institutions which hold 
 
 . society together to an energy and efficiency com- 
 mensurate to them. How much vigor and ability 
 would be required to accomplish such a work may 
 be measured by the experience of Washington, 
 who barely prevailed in his relatively simple task, 
 surrounded by a generation of extraordinary men, 
 and with the capitalistic class of America behind 
 him. Without the capitalistic class he must have 
 failed. Therefore one most momentous problem 
 of the future is the attitude which capital can or 
 will assume in this emergency. 
 
 That some of the more sagacious of the capital- 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 29 
 
 istic class have preserved that instinct of self- 
 preservation which was so conspicuous among 
 men of the type of Washington, is apparent from 
 the position taken by the management of the 
 United States Steel Company, and by the Repub- 
 lican minority of the Congressional Committee 
 which recently investigated the Steel Company; 
 but whether such men very strongly influence 
 the genus to which they belong is not clear. If 
 they do not, much improvement in existing con- 
 ditions can hardly be anticipated. 
 
 If capital insists upon continuing to exercise 
 sovereign powers, without accepting responsibility 
 as for a trust, the revolt against the existing order 
 must probably continue, and that revolt can only 
 be dealt with, as all servile revolts must be dealt 
 with, by physical force. I doubt, however, if 
 even the most ardent and optimistic of capitalists 
 would care to speculate deeply upon the stability 
 of any government capital might organize, which 
 rested on the fundamental principle that the 
 American people must be ruled by an army. On 
 the other hand any government to be effective 
 must be strong. It is futile to talk of keeping 
 peace in labor disputes by compulsory arbitration, 
 
30 THE THEORY OF SOCIAL REVOLUTIONS 
 
 if the government has not the power to command 
 obedience to its arbitrators' decree ; but a govern- 
 ment able to constrain a couple of hundred thou- 
 sand discontented railway employees to work 
 against their will, must differ considerably from 
 the one we have. Nor is it possible to imagine 
 that labor will ever yield peaceful obedience to 
 such constraint, unless capital makes equivalent 
 concessions, — unless, perhaps, among other 
 things, capital consents to erect tribunals which 
 shall offer relief to any citizen who can show him- 
 self to be oppressed "by the monopolistic price. 
 In fine, a government, to promise stability in the 
 future, must apparently be so much more powerful 
 than any private interest, that all men will stand 
 equally before its tribunals; and these tribunals 
 must be flexible enough to reach those categories 
 of activity which now lie beyond legal jurisdiction. 
 If it be objected that the American people are 
 incapable of an effort so prodigious, I readily ad- 
 mit that this may be true, but I also contend that 
 the objection is beside the issue. What the 
 American people can or cannot do is a matter of 
 opinion, but that social changes are imminent 
 appears to be almost certain. Though these 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 31 
 
 changes cannot be prevented, possibly they may, 
 to a degree, be guided, as Washington guided the 
 changes of 1789. To resist them perversely, as 
 they were resisted at the Chicago Convention of 
 191 2, can only make the catastrophe, when it 
 comes, as overwhelming as was the consequent 
 defeat of the Republican party. 
 
 Approached thus, that Convention of 191 2 has 
 more than a passing importance, since it would 
 seem to indicate the ordinary phenomenon, that 
 a declining favored class is incapable of appre- 
 ciating an approaching change of environment 
 which must alter its social status. I began with 
 the proposition that, in any society which we 
 now understand, civilization is equivalent to 
 order, and the evidence of the truth of the prop- 
 osition is, that amidst disorder, capital and 
 credit, which constitute the pith of our civiliza- 
 tion, perish first. For more than a century past, 
 capital and credit have been absolute, or nearly 
 so ; accordingly it has not been the martial type 
 which has enjoyed sovereignty, but the capitalistic. 
 The warrior has been the capitalists' servant. 
 But now, if it be true that money, in certain 
 crucial directions, is losing its purchasing power, 
 
32 
 
 THE THEORY OF SOCIAL REVOLUTIONS 
 
 it is evident that capitalists must accept a posi- 
 tion of equality before the law under the domina- 
 tion of a type of man who can enforce obedience ; 
 their own obedience, as well as the obedience of 
 others. Indeed, it might occur, even to some 
 optimists, that capitalists would be fortunate if 
 they could certainly obtain protection for another 
 fifty years on terms as favorable as these. But at 
 Chicago, capitalists declined even to consider 
 receding to a secondary position. Rather than 
 permit the advent of a power beyond their im- 
 mediate control, they preferred to shatter the 
 instrument by which they sustained their ascend- 
 ancy. For it is clear that Roosevelt's offence in 
 the eyes of the capitalistic class was not what he 
 had actually done, for he had done nothing se- 
 riously to injure them. The crime they resented 
 was the assertion of the principle of equality before 
 the law, for equality before the law signified the 
 end of privilege to operate beyond the range of 
 law. If this principle which Roosevelt, in theory 
 at least, certainly embodied, came to be rigorously 
 enforced, capitalists perceived that private persons 
 would be precluded from using the functions of 
 sovereignty to enrich themselves. There lay the 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 33 
 
 parting of the ways. Sooner or later almost 
 every successive ruling class has had this dilemma 
 in one of its innumerable forms presented to them, 
 and few have had the genius to compromise while 
 compromise was possible. Only a generation ago 
 the aristocracy of the South deliberately chose a 
 civil war rather than admit the principle that at 
 some future day they might have to accept com- 
 pensation for their slaves. 
 
 • A thousand other instances of similar incapacity 
 might be adduced, but I will content myself 
 with this alone. 
 
 Briefly the precedents induce the inference 
 that privileged classes seldom have the intelligence 
 to protect themselves by adaptation when nature 
 turns against them, and, up to the present moment, 
 the old privileged class in the United States has 
 shown little promise of being an exception to the 
 rule. 
 
 Be this, however, as it may, and even assum- 
 ing that the great industrial and capitalistic 
 interests would be prepared to assist a move- 
 ment toward consolidation, as their ances- 
 tors assisted Washington, I deem it far from 
 probable that they could succeed with the large 
 
34 THE THEORY OF SOCIAL REVOLUTIONS 
 
 American middle class, which naturally should 
 aid, opposed, as it seems now to be, to such a 
 movement. Partially, doubtless, this opposition 
 is born of fear, since the lesser folk have learned 
 by bitter experience that the powerful have 
 yielded to nothing save force, and therefore that 
 their only hope is to crush those who oppress 
 them. Doubtless, also, there is the inertia incident 
 to long tradition, but I suspect that the resistance 
 is rather due to a subtle and, as yet, nearly un- 
 conscious instinct, which teaches the numerical 
 majority, who are inimical to capital, that the 
 shortest and easiest way for them to acquire 
 autocratic authority is to obtain an absolute 
 mastery over those political tribunals which we 
 call courts. Also that mastery is being by them 
 rapidly acquired. So long as our courts retain 
 their present functions no comprehensive admin- 
 istrative reform is possible, whence I conclude 
 that the relation which our courts shall hold to 
 politics is now the fundamental problem which 
 the American people must solve, before any stable 
 social equilibrium can be attained. 
 
 Theodore Roosevelt's enemies have been many 
 and bitter. They have attacked his honesty, his 
 
COLLAPSE OF CAPITALISTIC GOVERNMENT 35 
 
 sobriety, his intelligence, and his judgment, but 
 very few of them have hitherto denied that he has 
 a keen instinct for political strife. Only of late 
 has this gift been doubted, but now eminent 
 politicians question whether he did not make a 
 capital mistake when he presented the reform of 
 our courts of law, as expounders of the Constitu- 
 tion, as one of his two chief issues, in his canvass 
 for a nomination for a third presidential term. 
 
 After many years of study of, and reflection upon, 
 this intricate subject I have reached the conviction 
 that, though Mr. Roosevelt may have erred in the 
 remedy which he has suggested, he is right in the 
 principle which he has advanced, and in my next 
 chapter I propose to give the evidence and explain 
 the reasons which constrain me to believe that 
 American society must continue to degenerate 
 until confusion supervenes, if our courts shall re- 
 main semipolitical chambers. 
 
CHAPTER II 
 
 THE LIMITATIONS OF THE JUDICIAL FUNCTION 
 
 Taking the human race collectively^, its ideal of 
 a court of justice has been the omniscient and in- 
 exorable judgment seat of God. Individually, 
 on the contrary, they have dearly loved favor. 
 Hence the doctrine of the Intercession of the 
 Saints, which many devout persons have sincerely 
 believed could be bought by them for money. 
 The whole development of civilization may be 
 followed in the oscillation of any given society 
 between these two extremes, the many always 
 striving to so restrain the judiciary that it shall 
 be unable to work the will of the favored few. 
 On the whole, success in attaining to ideal justice 
 has not been quite commensurate with the time 
 and effort devoted to solving the problem, but, 
 until our constitutional experiment was tried in 
 America, I think it had been pretty generally 
 admitted that the first prerequisite to success 
 was that judges should be removed from political 
 
 36 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 37 
 
 influences. For the main difficulty has been that 
 every dominant class, as-iflias arisen, has done its 
 best to use the naoCliinery of justice for its own 
 benefit. ^^ 
 
 No argument ever has convinced like a parable, 
 and a very famous story in the Bible will illustrate 
 the great truth, which is the first lesson that a 
 primitive people learns, that unless the judge can 
 be separated from the sovereign, and be strictly 
 limited in the performance of his functions by a 
 recognized code of procedure, the public, as against 
 the dominant class, has, in substance, no civil 
 rights. The kings of Israel were judges of last 
 resort. Solomon earned his reputation for wis- 
 dom in the cause in which two mothers claimed 
 the same child. They were indeed both judge and 
 jury. Also they were prosecuting officers. Also 
 they were sheriffs. In fine they exercised un- 
 limited judicial power, save in so far as they were 
 checked by the divine interference usually signi- 
 fied through some prophet. 
 
 Now David was, admittedly, one of the best 
 sovereigns and judges who ever held office in 
 Jerusalem, and, in the days of David, Nathan was 
 the leading prophet of the dominant political party. 
 
38 THE THEORY OF SOCIAL REVOLUTIONS 
 
 "And it came to pass in an eveningtide, that 
 David arose from off his bed, and walked upon the 
 roof of the king's house : and from the roof he saw 
 a woman washing herself; and the woman was 
 very beautiful to look upon. And David sent 
 and enquired after the woman. And one said, 
 Is not this Bath-sheba, the daughter of Eliam, 
 the wife of Uriah the Hittite? And David sent 
 messengers, and took her ; and she came in unto 
 him, and he lay with her ; . . . and she returned 
 unto her house." 
 
 Uriah was serving in the army under Joab. 
 David sent for Uriah, and told him to go home to 
 his wife, but Uriah refused. Then David wrote 
 a letter to Joab and dismissed Uriah, ordering him 
 to give the letter to Joab. And David "wrote 
 in the letter, saying. Set ye Uriah in the forefront 
 of the hottest battle, and retire ye from him, that 
 he may be smitten and die. . . . 
 
 "And the men of the city went out and fought 
 with Joab ; and there fell some of the people of 
 the servants of David; and Uriah the Hittite 
 died also. . . . But the thing that David had 
 done displeased the Lord. 
 
 "And the Lord sent Nathan unto David. And 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 39 
 
 he came unto him, and said unto him, There 
 were two men in one city; the one rich and the 
 other poor. The rich man had exceeding many 
 flocks and herds : 
 
 "But the poor man had nothing, save one little 
 ewe lamb, which he had bought and nourished up : 
 and it grew up together with him, and with his 
 children ; it did eat of his own meat and drank 
 of his own cup, and lay in his bosom, and was 
 unto him as a daughter. 
 
 "And there came a traveller unto the rich man, 
 and he spared to take of his own flock, . . . but 
 took the poor man's lamb, and dressed it for the 
 man that was come to him. 
 
 "And David's anger was greatly kindled against 
 the man ; and he said to Nathan, As the Lord 
 liveth, the man that hath done this thing shall 
 surely die : . . . 
 
 "And Nathan said to David, Thou art the man. 
 Thus saith the Lord God of Israel. . . . Now 
 therefore the sword shall never depart from 
 thine house ; because thou has despised me. . . . 
 Behold, I will raise up evil against thee out of 
 thine own house, and I will take thy wives before 
 thine eyes, and give them unto thy neighbor." 
 
40 THE THEORY OF SOCIAL REVOLUTIONS 
 
 Here, as the heading to the Twelfth Chapter of 
 Second Book of Samuel says, "Nathan's parable 
 of the ewe lamb causeth David to be his own 
 judge," but the significant part of the story is 
 that Nathan, with all his influence, could not force 
 David to surrender his prey. David begged very 
 hard to have his sentence remitted, but, for all 
 that, "David sent and fetched [Bathsheba] to his 
 house, and she became his wife, and bare him a 
 son." Indeed, she bore him Solomon. As against 
 David or David's important supporters men like 
 Uriah had no civil rights that could be enforced. 
 
 Even after the judicial function is nominally 
 severed from the executive function, so that the 
 sovereign himself does not, like David and Solo- 
 mon, personally administer justice, the same 
 result is reached through agents, as long as the 
 judge holds his office at the will of the chief of a 
 political party. 
 
 To go no farther afield, every page of EngHsh 
 history blazons this record. Long after the law 
 had taken an almost modern shape, Alice Ferrers, 
 the mistress of Edward III, sat on the bench at 
 Westminster and intimidated the judges into 
 deciding for suitors who had secured her services. 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 41 
 
 The chief revenue of the rival factions during the 
 War of the Roses was derived from attainders, 
 indictments for treason, and forfeitures, avowedly 
 partisan. Henry VII used the Star Chamber to 
 ruin the remnants of the feudal aristocracy. 
 Henry VIII exterminated as vagrants the wretched 
 monks whom he had evicted. The prosecu- 
 tions under Charles I largely induced the Great 
 Rebellion; and finally the limit of endurance was 
 reached when Charles II made Jeffreys Chief 
 Justice of England in order to kill those who 
 were prominent in opposition. Charles knew 
 what he was doing. "That man," said he of 
 Jeffreys, "has no learning, no sense, no manners, 
 and more impudence than ten carted street- 
 walkers." The first object was to convict Al- 
 gernon Sidney of treason. Jeffreys used simple 
 means. Usually drunk, his court resembled the 
 den of a wild beast. He poured forth on "plaintiffs 
 and defendants, barristers and attorneys, wit- 
 nesses and jurymen, torrents of frantic abuse, 
 intermixed with oaths and curses." The law 
 required proof of an overt act of treason. Many 
 years before Sidney had written a philosophical 
 treatise touching resistance by the subject 
 
42 THE THEORY OF SOCIAL REVOLUTIONS 
 
 to the sovereign, as a constitutional principle. 
 But, though the fragment contained nothing 
 more than the doctrines of Locke, Sidney had 
 cautiously shown it to no one, and it had only 
 been found by searching his study. Jeffreys told 
 the jury that if they believed the book to be 
 Sidney's book, written by him, they must convict 
 for scribere est agere, to write is to commit an overt 
 act. 
 
 A revolution followed upon this and other 
 like convictions, as revolutions have usually fol- 
 lowed such uses of the judicial power. In that 
 revolution the principle of the limitation of the 
 judicial function was recognized, and the English 
 people seriously addressed themselves to the 
 task of separating their courts from political 
 influences, of protecting their judges by making 
 their tenure and their pay permanent, and of 
 punishing them by removal if they behaved 
 corruptly, or with prejudice, or transcended the 
 limits within which their duty confined them. 
 Jeffreys had legislated when he ruled it to be the 
 law that, to write words secretly in one's closet, 
 is to commit an overt act of treason, and he did 
 it to kill a man whom the king who employed 
 
* LIMITATIONS OF THE JUDICIAL FUNCTION 43 
 
 him wished to destroy. This was to transcend 
 the duty of a judge, which is to expound and not 
 to legislate. The judge may develop a principle, 
 he may admit evidence of a custom in order to 
 explain the intentions of the parties to a suit, as 
 Lord Mansfield admitted evidence of the customs 
 of merchants, but he should not legislate. To do 
 so, as Jeffreys did in Sidney's case, is tantamount 
 to murder. Jeffreys never was duly punished 
 for his crimes. He died the year after the Revolu- 
 tion, in the Tower, maintaining to the last that he 
 was innocent in the sight of God and man because 
 "all the blood he had shed fell short of the King's 
 command." 
 
 And Jeffreys was perfectly logical and con- 
 sistent in his attitude. A judiciary is either an 
 end in itself or a means to an end. If it be designed 
 to protect the civil rights of citizens indifferently, 
 it must be free from pressure which will deflect 
 it from this path, and it can only be protected 
 from the severest possible pressure by being re- 
 moved from politics, because politics is the struggle 
 for ascendancy of a class or a majority. If, on the 
 other hand, the judiciary is to serve as an instru- 
 ment for advancing the fortunes of a majority or a 
 
44 THE THEORY OF SOCIAL REVOLUTIONS 
 
 dominant class, as David used the Jewish judi- 
 ciary, or as the Stuarts used the Enghsh judiciary, 
 then the judicial power must be embodied either 
 in a military or political leader, like David, who 
 does the work himself, or in an agent, more or 
 less like Jeffreys, who will obey his orders. In 
 the colonies the subserviency of the judges to 
 the Crown had been a standing grievance, and 
 the result of this long and terrible experience, 
 stretching through centuries both in Europe and 
 America, had been to inspire Americans with a fear 
 of intrusting power to any man or body of men. 
 They sought to limit everything by written restric- 
 tions. Setting aside the objection that such a 
 system is mechanically vicious because it involves 
 excessive friction and therefore waste of energy, 
 it is obviously futile unless the written restrictions 
 can be enforced, and enforced in the spirit in which 
 they are drawn. Hamilton, whose instinct for 
 law resembled genius, saw the difficulty and 
 pointed out in the Federalist that it is not a writing 
 which can give protection, but only the intelligence 
 and the sense of justice of the community itself. 
 
 "The truth is, that the general genius of a 
 Government is all that can be substantially relied 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 45 
 
 upon for permanent effects. Particular pro- 
 visions, though not altogether useless, have far 
 less virtue and efficiency than are commonly 
 ascribed to them; and the want of them will 
 never be, with men of sound discernment, a decisive 
 objection to any plan which exhibits the leading 
 characters of a good Government." After an 
 experience of nearly a century and a quarter we 
 must admit, I think, that Hamilton was right. 
 In the United States we have carried bills of 
 right and constitutional limitations to an extreme, 
 and yet, I suppose that few would care to main- 
 tain that, during the nineteenth century, life and 
 property were safer in America, or crime better 
 dealt with, than in England, France, or Germany. 
 The contrary, indeed, I take to be the truth, and 
 I think one chief cause of this imperfection in 
 the administration of justice will be found to 
 have been the operation of the written Constitu- 
 tion. For, under the American system, the Con- 
 stitution, or fundamental law, is expounded by 
 judges, and this function, which, in essence, is 
 political, has brought precisely that quality of 
 pressure on the bench which it has been the labor 
 of a hundred generations of our ancestors to re- 
 
46 THE THEORY OF SOCL\L REVOLUTIONS 
 
 move. On the whole the result has been not to 
 elevate poHtics, but to lower the courts toward 
 the poHtical level, a result which conforms to 
 the a priori theory. 
 
 The abstract vhrtue of the written Constitution 
 was not, however, a question in issue when 
 Washington and his contemporaries set themselves 
 to reorganize the Confederation. Those men had 
 no choice but to draft some kind of a platform 
 on which the states could agree to imite, if they 
 were to unite peacefully at all, and accordingly 
 they met in convention and drew the best form of 
 agreement they could ; but I more than suspect 
 that a good many very able FederaHsts were quite 
 aHve to the defects in the plan which they adopted. 
 
 Hamilton was outspoken in preferring the Eng- 
 lish model, and I am not aware that Washington 
 ever expressed a preference for the theory that, 
 because of a written fundamental law, the court 
 should nullify legislation. Nor is it unworthy of 
 remark that aU foreigners, after a prolonged and 
 attentive observation of our experiment, have 
 avoided it. Since 1789, every highly civiHzed 
 Western people have readjusted their institutions 
 at least once, yet not one has in this respect 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 47 
 
 imitated us, though all have borrowed freely 
 from the parliamentary system of England.^ 
 
 Even our neighbor, Canada, with no adverse 
 traditions and a population similar to ours, has 
 been no exception to the rule. The Canadian 
 courts indeed define the limits of provincial and 
 federal jurisdiction as fixed under an act of Parlia- 
 ment, but they do not pretend to limit the exercise 
 of power when the seat of power has been estab- 
 lished. I take the cause of this distrust to be 
 obvious. Although our written Constitution was 
 successful in its primary purpose of facilitating 
 the consolidation of the Confederation, it has not 
 otherwise inspired confidence as a practical ad- 
 ministrative device. Not only has constant judi- 
 cial interference dislocated scientific legislation, 
 but casting the judiciary into the vortex of civil 
 faction has degraded it in the popular esteem. 
 In fine, from the outset, the American bench, 
 because it deals with the most fiercely contested 
 of political issues, has been an instrument neces- 
 sary to political success. Consequently, political 
 
 ^ The, relation of courts to legislation in European countries has 
 been pretty fully considered by Brinton Coxe, injudicial Power and 
 Constitutional Legislation. 
 
48 THE THEORY OF SOCIAL REVOLUTIONS 
 
 parties have striven to control it, and therefore 
 the bench has always had an avowed partisan 
 bias. This avowed political or social bias 
 has, I infer, bred among the American people 
 the conviction that justice is not administered 
 indifferently to all men, wherefore the bench is 
 not respected with us as, for instance, it is in Great 
 Britain, where law and politics are sundered. 
 Nor has the dissatisfaction engendered by these 
 causes been concealed. On the contrary, it has 
 found expression through a series of famous 
 popular leaders from Thomas Jefferson to Theo- 
 dore Roosevelt. 
 
 The Constitution could hardly have been 
 adopted or the government organized but for 
 the personal influence of Washington, whose power 
 lay in his genius for dealing with men. He 
 lost no time or strength in speculation, but, 
 taking the Constitution as the best implement at 
 hand, he went to the work of administration by 
 including the representatives of the antagonistic 
 extremes in his Cabinet. He might as well have 
 expected fire and water to mingle as Jefferson and 
 Hamilton to harmonize. Probably he had no 
 delusions on that head when he chose them 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 49 
 
 for his ministers, and he accomplished his object. 
 He paralyzed opposition until the new mechanism 
 began to operate pretty regularly, but he had not 
 an hour to spare. Soon the French Revolution 
 heated passions so hot that long before Washing- 
 ton's successor was elected the United States was 
 rent by faction. 
 
 The question which underlay all other questions, 
 down to the Civil War, was the determination 
 of the seat of sovereignty. Hamilton and the 
 Federalists held it to be axiomatic that, if the 
 federal government were to be more than a 
 shadow, it must interpret the meaning of the 
 instrument which created it, and, if so, that it 
 must signify its decisions through the courts. 
 Only in this way, they argued, could written 
 limitations on legislative power be made effective. 
 Only in this way could statutes which contravened 
 the Constitution be set aside.^ 
 
 Jefferson was abroad when Hamilton wrote 
 The Federalist, but his views have since been so 
 universally accepted as embodying the opposition 
 to Hamilton, that they may be conveniently taken 
 as if they had been published while the Constitu- 
 
 1 Federalist, No. LXXVIII. 
 
50 THE THEORY OF SOCIAL REVOLUTIONS 
 
 tion was under discussion. Substantially the 
 same arguments were advanced by others during 
 the actual debate, if not quite so lucidly or con- 
 nectedly then, as afterward by him. 
 
 Very well, said Jefferson, in answer to Hamilton, 
 admitting, for the moment, that the central gov- 
 ernment shall define its own powers, and that 
 the courts shall be the organ through which the 
 exposition shall be made, both of which proposi- 
 tions I vehemently deny, you have this result : 
 The judges who will be called upon to pass upon 
 the validity of national and state legislation will be 
 plunged in the most heated of controversies, and 
 in those controversies they cannot fail to be in- 
 fluenced by the same passions and prejudices 
 which sway other men. In a word they must 
 decide like legislators, though they will be exempt 
 from the responsibility to the public which con- 
 trols other legislators. Such conditions you can 
 only meet by making the judicial tenure of office 
 ephemeral, as all legislative tenure is ephemeral. 
 
 It is vain to pretend, continued he, in support ^^ 
 of fixity of tenure, that the greater the pressure on 
 the judge is likely to be, the more need there 
 is to make him secure. This may be true of 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 51 
 
 judges clothed with ordinary attributes, like 
 English judges, for, should these try to nullify 
 the popular will by construing away statutes, 
 Parliament can instantly correct them, or if 
 Parliament fail in its duty, the constituencies, 
 at the next election, can intervene. But no one 
 will be able to correct the American judge who 
 may decline to recognize the law which would 
 constrain him. Nothing can shake him save 
 impeachment for what is tantamount to crime, 
 or being overruled by a constitutional amend- 
 ment which you have purposely made too hard 
 to obtain to be a remedy. He is to be judge 
 in his own case without an appeal. 
 
 Nowhere in all his long and masterly defence 
 of the Constitution did Hamilton show so much 
 embarrassment as here, and because, probably, 
 he did not himself believe in his own brief. He 
 really had faith in the English principle of an 
 absolute parliament, restrained, if needful, b> 
 a conservative chamber, like the House of Lords, 
 but not in the total suspension of sovereignty 
 subject to judicial illumination. Consequent! v 
 he fell back on platitudes about judicial high 
 mindedness, and how judges could be trusted 
 
52 ' THE THEORY OF SOCIAL REVOLUTIONS 
 
 not to allow political influences to weigh with them 
 when deciding political questions. Pushed to its 
 logical end, concluded he, the Jeffersonian argu- 
 ment would prove that there should be no judges 
 distinct from legislatures.^ 
 
 Now, at length, exclaimed the Jeffersonian in 
 triumph, you admit our thesis. You propose to 
 clothe judges with the highest legislative functions, 
 since you give them an absolute negative on legis- 
 lation, and yet you decline to impose on them the 
 responsibility to a constituency, which constrains 
 other legislators. Clearly you thus make them 
 autocratic, and in the worst sense, for you permit 
 small bodies of irresponsibile men under pretence 
 of dispensing justice, but really in a spirit of hy- 
 pocrisy, to annul the will of the majority of the 
 people, even though the right of the people to 
 exercise their will, in the matters at issue, be 
 clearly granted them in the Constitution. 
 
 No, rejoined Hamilton, thus driven to the wall, 
 judges never will so abuse their trust. The duty 
 of the judge requires him to suppress his will, 
 and exercise his judgment only. The Constitution 
 will be before him, and he will have only to say 
 
 1 The Federalist, No. LXXVIII. 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 53 
 
 whether authority to legislate on a given subject 
 is granted in that instrument. If it be, the 
 character of the legislation must remain a matter 
 of legislative discretion. Besides, you must re- 
 pose confidence somewhere, and judges, on the 
 whole, are more trustworthy than legislators. 
 How can you say that, retorted the opposition, 
 when you, better than most men, know the line 
 of despotic legal precedents from the Ship Money 
 down to the Writs of Assistance ? 
 
 Looking back upon this initial controversy 
 touching judicial functions under the Constitution, 
 we can hardly suppose that Hamilton did not per- 
 ceive that, in substance, Jefferson was right, and 
 that a bench purposely constructed to pass upon 
 political questions must be politically partisan. 
 He knew very well that, if the Federalists prevailed 
 in the elections, a Federalist President would 
 only appoint magistrates who could be relied on 
 to favor consolidation. And so the event proved. 
 General Washington chose John Jay for the first 
 Chief Justice, who in some important respects was 
 more Federalist than Hamilton, while John 
 Adams selected John Marshall, who, though one 
 of the greatest jurists who ever lived, was hated 
 
54 THE THEORY OF SOCIAL REVOLUTIONS 
 
 by Jefferson with a bitter hatred, because of his 
 political bias. As time went on matters grew 
 worse. Before Marshall died slavery had become 
 a burning issue, and the slave-owners controlled 
 the appointing power. General Jackson appointed 
 Taney to sustain the expansion of slavery, and 
 when the anti-slavery party carried the country 
 with Lincoln, Lincoln supplanted Taney with 
 Chase, in order that Chase might stand by him 
 in his struggle to destroy slavery. And as it has 
 been, so must it always be. As long as the 
 power to enact laws shall hinge on the complexion 
 of benches of judges, so long will the ability to 
 control a majority of the bench be as crucial 
 a political necessity as the ability to control a 
 majority in avowedly representative assemblies. 
 
 Hamilton was one of the few great jurists and 
 administrators whom America has ever produced, 
 and it is inconceivable that he did not understand 
 what he was doing. He knew perfectly well that, 
 other things being equal, the simplest adminis- 
 trative mechanism is the best, and he knew also 
 that he was helping to make an extremely compli- 
 cated mechanism. Not only so, but at the heart 
 of this complexity lay the gigantic cog of the 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 55 
 
 judiciary, which was obviously devised to stop 
 movement. He must have had a reason, beyond 
 the reason he gave, for not only insisting on cloth- 
 ing the judiciary with these unusual political 
 and legislative attributes, but for giving the 
 judiciary an unprecedented fixity of tenure. I 
 suspect that he was actuated by some such con- 
 siderations as these : 
 
 The Federalists, having pretty good cause to 
 suppose themselves in a popular minority, pur- 
 posed to consolidate the thirteen states under a 
 new sovereign. There were but two methods by 
 which they could prevail ; they could use force, 
 or, to secure assent, they could propose some 
 system of arbitration. To escape war the Fed- 
 eralists convened the constitutional convention, 
 and by so doing pledged themselves to arbitra- 
 tion. But if their plan of consolidation were to 
 succeed, it was plain that the arbitrator must 
 arbitrate in their favor, for if he arbitrated as 
 Mr. Jefferson would have wished, the United 
 States under the Constitution would have differed 
 little from the United States under the Confedera- 
 tion. The Federalists, therefore, must control 
 the arbitrator. If the Constitution were to be 
 
56 THE THEORY OF SOCIAL REVOLUTIONS 
 
 adopted, Hamilton and every one else knew that 
 Washington would be the first President, and 
 Washington could be relied on to appoint a 
 strong Federalist bench. Hence, whatever might 
 happen subsequently, when the new plan first 
 should go into operation, and when the danger 
 from insubordination among the states would 
 probably be most acute, the judiciary would be 
 made to throw its weight in favor of consolidation, 
 and against disintegration, and, if it did so, it 
 was essential that it should be protected against 
 anything short of a revolutionary attack. 
 
 In the convention, indeed, Charles Pinckney of 
 South Carolina suggested that Congress should 
 be empowered to negative state legislation, but 
 such an alternative, for obvious reasons, would 
 have been less palatable to Hamilton, since 
 Congress would be only too likely to fall under the 
 control of the Jeffersonian party, while a bench of 
 judges, if once well chosen, might prove to be for 
 many years an "excellent barrier to the encroach- 
 ments and oppressions of the representative body." ^ 
 
 I infer that Hamilton and many other Federalists 
 reasoned somewhat thus, not only from what 
 
 1 The Federalist, No. LXXVIII. 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 57 
 
 they wrote, but from the temper of their minds, 
 and, if they did, events largely justified them. 
 John Jay, Oliver Ellsworth, and John Marshall 
 were successively appointed to the office of Chief 
 Justice, nor did the complexion of the Supreme 
 Court change until after 1830. 
 
 What interests us, however, is not so much what 
 the Federalists thought, or the motives which 
 actuated them, as the effect which the clothing of 
 the judiciary with political functions has had 
 upon the development of the American republic, 
 more especially as that extreme measure might 
 have been avoided, had Pinckney's plan been 
 adopted. Nor, looking back upon the actual 
 course of events, can I perceive that, so far as the 
 movement toward consolidation was concerned, 
 the final result would have varied materially 
 whether Congress or the Supreme Court had 
 exercised control over state legislation. Marshall 
 might just as well, in the one case as the other, 
 have formulated his theory of a semi-centralized 
 administration. He would only have had uni- 
 formly to sustain Congress, as an English judge 
 sustains Parliament. Nor could either Congress 
 or the Court have reached a definite result with- 
 
58 THE THEORY OF SOCIAL REVOLUTIONS 
 
 out an appeal to force. Either chamber might 
 expound a theory, but nothing save an army- 
 could establish it. 
 
 For two generations statesmen and jurists 
 debated the relation of the central to the local 
 sovereignties with no result, for words alone 
 could decide no such issue. In America, as else- 
 where, sovereignty is determined by physical 
 force. Marshall could not conquer Jefferson, 
 he could at most controvert Jefferson's theory. 
 This he did, but, in doing so, I doubt if he were 
 quite true to himself. Jefferson contended that 
 every state might nullify national legislation, as 
 conversely Pinckney wished Congress to be given 
 explicitly the power to nullify state legislation; 
 and Marshall, very sensibly, pointed out that, 
 were Jefferson's claim carried into practice, it 
 would create " a hydra in government," ^ yet I 
 am confident that Marshall did not appreciate 
 whither his own assertion of authority must 
 lead. In view of the victory of centralization in 
 the Civil War, I will agree that the Supreme 
 Court might have successfully maintained a 
 position as arbitrator touching conflicting juris- 
 
 1 Cohens v. Virginia, 6 Wheaton 415. 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 59 
 
 dictions, as between the nation and the states, 
 but that is a different matter from assuming to 
 examine into the wisdom of the legislation itself. 
 The one function might, possibly, pass by courtesy 
 as judicial; the other is clearly legislative. 
 
 This distinction only developed after Marshall's 
 death, but the resentment which impelled Mar- 
 shall to annul an act of Congress was roused by 
 the political conflict which preceded the election 
 of 1800, in which Marshall took a chief part. 
 Apparently he could not resist the temptation 
 of measuring himself with his old adversary, 
 especially as he seems to have thought that he 
 could discredit that adversary without giving 
 him an opportunity to retaliate. 
 
 In 1798 a Federalist Congress passed the Alien 
 and Sedition Acts, whose constitutionality no 
 Federalist judge ever doubted, but which Jefferson 
 considered as clearly a violation of the fundamental 
 compact, since they tended to drive certain 
 states, as he thought, into "revolution and blood." 
 Under this provocation Jefferson proclaimed that 
 it was both the right and the duty of any state, 
 which felt itself aggrieved, to intervene to arrest 
 ^'the progress of the evil," within her territory, 
 
6o THE THEORY OF SOCIAL REVOLUTIONS 
 
 by declining to execute, or by "nullifying, "the 
 objectionable statutes. As Jefferson wrote the 
 Kentucky Resolutions in 1798 and was elected 
 President in 1800, the people at least appeared 
 to have sustained him in his exposition of the 
 Constitution, before he entered into office. 
 
 At this distance of time we find it hard to reahze 
 what the election of 1800 seemed to portend to 
 those who participated therein. Mr. Jefferson 
 always described it as amounting to a revolution 
 as profound as, if less bloody than, the revolution 
 of 1776, and though we may be disposed to imagine 
 that Jefferson valued his own advent to power at 
 its full worth, it must be admitted that his enemies 
 regarded it almost as seriously. Nor were they 
 without some justification, for Jefferson certainly 
 represented the party of disintegration. "Nulli- 
 fication" would have been tantamount to a re- 
 turn to the condition of the Confederation. 
 Besides, Jefferson not so many years before had 
 written, in defence of Shays's rebellion, that the 
 tree of Liberty could never flourish unless re- 
 freshed occasionally with the blood of patriots 
 and tyrants. To most Federahsts Jefferson 
 seemed a bloodthirsty demagogue. 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 6 1 
 
 In 1796 Oliver Ellsworth had been appointed 
 Chief Justice by General Washington in the place 
 of Jay, who resigned, and in 1799 John Adams 
 sent Ellsworth as an envoy to France to try to 
 negotiate a treaty which should reestablish peace 
 between the two countries. Ellsworth succeeded 
 in his mission, but the hardships of his journey 
 injured his health, and he, in turn, resigned in 
 the autumn of 1800. Then Adams offered the 
 Chief Justiceship to Jay, but Jay would not return 
 to office, and after this the President selected his 
 Secretary of State, John Marshall, one of the 
 greatest of the great Virginians, but one of Jef- 
 ferson's most irreconcilable enemies. Perhaps at 
 no moment in his life did John Adams demon- 
 strate his legal genius more convincingly than 
 in this remarkable nomination. Yet it must be 
 conceded that, in making John Marshall Chief 
 Justice, John Adams deliberately chose the man 
 whom, of all his countrymen, he thought to be 
 the most formidable champion of those views 
 which he himself entertained, and which he con- 
 ceived that he had been elected President to ad- 
 vance. Nor was John Adams deceived. For 
 thirty-four years John Marshall labored ceaselessly 
 
62 THE THEORY OF SOCIAL REVOLUTIONS 
 
 to counteract Jefferson's constitutional prin- 
 ciples, while Jefferson always denounced the 
 political partiality of the federal courts, and above 
 all the "rancorous hatred which Marshall bears 
 to the government of his country, and . . . the 
 cunning and sophistry within which he is able to 
 enshroud himself. " ^ 
 
 No one, at this day, would be disposed to dispute 
 that the Constitution, as a device to postpone 
 war among the states, at least for a period, was 
 successful, and that, as I have already pointed out, 
 during the tentative interval which extended 
 until Appomattox, the Supreme Court served 
 perhaps as well, in ordinary times, as an arbiter 
 between the states and the general government, 
 as any which could have been suggested. So 
 much may be conceded, and yet it remains true, as 
 the record will show, that when it passed this 
 point and entered into factional strife, the Supreme 
 Court somewhat lamentably failed, probably in- 
 juring itself and popular respect for law, far more 
 by its errors, than it aided the Union by its political 
 adjudications. 
 
 Although John Marshall, by common consent, 
 
 ^To Madison, Ford, 9, 275. 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 63 
 
 ranks as one of the greatest and purest of Ameri- 
 cans, yet even Marshall had human weaknesses, 
 one of which was a really unreasonable antipathy 
 to Thomas Jefferson; an antipathy which, I 
 surmise, must, when Jefferson was inaugurated, 
 have verged upon contempt. At least Marshall 
 did what cautious men seldom do when they 
 respect an adversary, he took the first oppor- 
 tunity to pick a quarrel with a man who had the 
 advantage of him in position. 
 
 In the last days of his presidency John Adams 
 appointed one William Marbury a justice of the 
 peace for the District of Columbia. The Senate 
 confirmed the appointment, and the President 
 signed, and John Marshall, as Secretary of State, 
 sealed Marbury's commission ; but in the hurry of 
 surrendering office the commission was' not de- 
 livered, and Jefferson found it in the State Depart- 
 ment when he took possession. Resenting violently 
 these "midnight" appointments, as he called them, 
 Jefferson directed Mr. Madison, his Secretary 
 of State, to withhold the commission ; and, at the 
 next December term of the Supreme Court, 
 Marbury moved for a rule to Madison to show 
 cause why he should not be commanded to deliver 
 
64 THE THEORY OF SOCIAL REVOLUTIONS 
 
 to the plaintiff the property to which Marbury 
 pretended to be entitled. Of course Jefferson 
 declined to appear before Marshall, through his 
 Secretary of State, and finally, in February, 1803, 
 Marshall gave judgment, in what was, without any 
 doubt, the most anomalous opinion he ever de- 
 hvered, in that it violated all judicial conventions, 
 for, apparently, no object, save to hirniihate a 
 political opponent. 
 
 Marshall had no intention of commanding 
 Madison to surrender the commission to Marbury. 
 He was too adroit a politician for that. Marshall 
 knew that he could not compel Jefferson to obey 
 such a writ against his will, and that in issuing 
 the order he would only bring himself and his 
 court into contempt. What he seems to have 
 wished to do was to give Jefferson a lesson in de- 
 portment . Accordingly, instead of dismissing Mar- 
 bury's suit upon any convenient pretext, as, accord- 
 ing to legal etiquette, he should have done if he 
 had made up his mind to decide against the plain- 
 tiff, and yet thought it inexpedient to explain his 
 view of the law, he began his opinion with a long 
 and extra-judicial homily, first on Marbury's 
 title to ownership in the commission, and then on 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 65 
 
 civil liberty. Having affirmed that Marbury's 
 right to his office vested when the President had 
 signed, and the Secretary of State had sealed the 
 instrument, he pointed out that withholding the 
 property thus vested was a violation of civil rights 
 which could be examined in a court of justice. 
 Were it otherwise, the Chief Justice insisted, 
 the government of the United States could 
 not be termed a government of laws and not of 
 men. 
 
 All this elaborate introduction was in the nature 
 of a solemn lecture by the Chief Justice of the 
 Supreme Court to the President of the United 
 States upon his faulty -discharge of his official 
 duties. Having eased his mind on this head, 
 Marshall went on, very dexterously indeed, but 
 also very palpably, to elude the consequences 
 of his temerity. He continued : The right of 
 property being established, and the violation 
 of that right clear, it is plain that a wrong has 
 been committed, and it only remains to determine 
 whether that wrong can be redressed under this 
 form of procedure. We are of opinion that it 
 cannot, because Congress has no constitutional 
 power to confer upon the Supreme Court original 
 
66 THE THEORY OF SOCIAL REVOLUTIONS 
 
 jurisdiction in this class of litigation. In the 
 lower courts alone can the relief prayed for be 
 obtained. 
 
 Of all the events of Marshall's life this contro- 
 versy with Jefferson seems to me the most equivo- 
 cal, and it was a direct effect of a constitutional 
 system which has permitted the courts to become 
 the censor of the political departments of the 
 government. Marshall, probably, felt exasperated 
 by Jefferson's virulence against these final appoint- 
 ments made by John Adams, while Marshall 
 was Secretary of State, and for which he may 
 have felt himself, in part, responsible. Possi- 
 bly, even, he may have taken some of Jeffer- 
 son's strictures as aimed at himself. At all 
 events he went to extreme lengths in retalia- 
 tion. He might have dismissed the litigation 
 in a few words by stating that, whatever 
 the abstract rights of the parties might have 
 been, the Supreme Court had no power to 
 constrain the President in his official functions ; 
 but he yielded to political animosity. Then, 
 having taken a position practically untenable, he 
 had to find an avenue of retreat, and he found 
 it by asserting a supervisory jurisdiction over 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 67 
 
 Congress, a step which, even at that early period, 
 was most hazardous.-^ 
 
 In reahty Jefferson's temper, far from being 
 vindictive and revolutionary, as his enemies 
 believed, was rather gentle and timid, but he 
 would have been more than mortal had he endured 
 such an insult in silence. Nor coxild he, perhaps, 
 have done so without risking the respect of his 
 followers. So he decided on reprisals, and a 
 scheme was matured among influential Virginians, 
 like John Randolph and Senator William Giles, to 
 purge the Supreme Court of FederaHsts. Among 
 the associate justices of this court was Samuel 
 Chase, a signer of the Declaration of Independence 
 and an able lawyer, but an arrogant and indiscreet 
 partisan. Chase had made himself obnoxious on 
 various public occasions and so was considered to 
 be the best subject to impeach; but if they suc- 
 ceeded with him the Jeffersonians proclaimed their 
 intention of removing all his brethren seriatim, 
 including the chief offender of all, John Marshall. 
 
 ^ Marshall's constitutional doctrine was not universally accepted, 
 even in the courts of the northern states, until long afterward. As 
 erninent a jurist as Chief Justice Gibson of Pennsylvania, as late as 
 1825, gave a very able dissenting opinion in opposition in Eakin v. 
 Raub, 12 S. & R., 344. * 
 
68 THE THEORY OF SOCIAL REVOLUTIONS 
 
 One day in December, 1804, Senator Giles, of 
 Virginia, in a conversation which John Quincy 
 Adams has reported in his diary, discussed the 
 issue at large, and that conversation is most 
 apposite now, since it shows' how early the in- 
 evitable tendency was developed to make judges 
 who participate in political and social contro- 
 versies responsible to the popular will. The 
 conversation is too long to extract in full, but a 
 few sentences will convey its purport : — 
 
 "He treated with the utmost contempt the idea 
 of an independent judiciary. . . . And if the 
 judges of the Supreme Court should dare, as they 
 had done, to declare an act of Congress unconstitu- 
 tional, or to send a mandamus to the Secretary 
 of State, as they had done, it was the undoubted 
 right of the House of Representatives to impeach 
 them, and of the Senate to remove them, for giving 
 such opinions, however honest or sincere they 
 may have been in entertaining them. * * * And 
 a removal by impeachment was nothing more than 
 a declaration by Congress to this effect : You hold 
 dangerous opinions, and if you are suffered to carry 
 them into effect you will work the destruction of 
 the nation. We want your offices, for the pur- 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 69 
 
 pose of giving them to men who will fill them 
 better." ^ 
 
 Jefferson, though he controlled a majority in 
 the Senate, failed by a narrow margin to obtain 
 the two-thirds vote necessary to convict Chase. 
 Nevertheless, he accomplished his object. Chase 
 never recovered his old assurance, and Marshall 
 never again committed a solecism in judicial 
 manners. On his side, after the impeachment, 
 Jefferson showed moderation. He might, if he 
 had been malevolent, without doubt, have ob- 
 tained an act of Congress increasing the member- 
 ship of the Supreme Court enough to have put 
 Marshall in a minority. Then by appointing men 
 like Giles he could have compelled Marshall to 
 resign. He did nothing of the kind. He spared 
 the Supreme Court, which he might have over- 
 thrown, and contented himself with waiting until 
 time should give him the opportunity to correct 
 the poHtical tendencies of a body of men whom 
 he sincerely regarded as a menace to, what he con- 
 sidered, popular institutions. Thus the ebullition 
 caused by Marshall's acrimony toward Jefferson, 
 because of Jefferson's strictures on the appoint- 
 
 ^ Memoirs, I, 322. 
 
70 THE THEORY OF SOCIAL REVOLUTIONS 
 
 ments made by his predecessor subsided, leaving 
 no very serious immediate mischief behind, save 
 the precedent of the nullification of an act of Con- 
 gress by the Supreme Court. That precedent, 
 however, was followed by Marshall's Democratic 
 successor. And nothing can better illustrate the 
 inherent vice of the American constitutional sys- 
 tem than that it should have been possible, in 
 1853, to devise and afterward present to a tribunal, 
 whose primary purpose was to administer the 
 municipal law, a set of facts for adjudication, on 
 purpose to force it to pass upon the validity of 
 such a statute as the Missouri Compromise, which 
 had been enacted by Congress in 1820, as a sort 
 of treaty of peace between the North and South, 
 and whose object was the limitation of the spread 
 of slavery. Whichever way the Court decided, 
 it must have fallen into opprobrium with one-half 
 the country. In fact, having been organized by 
 the slaveholders to sustain slavery, it decided 
 against the North, and therefore lost repute with 
 the party destined to be victorious. I need not 
 pause to criticise the animus of the Court, nor yet 
 the quality of the law which the Chief Justice 
 there laid down. It suffices that in the decade 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 71 
 
 which preceded hostilities no event, in all proba- 
 bility, so exasperated passions, and so shook the 
 faith of the people of the northern states in the 
 judiciary, as this decision. Faith, whether in the 
 priest or the magistrate, is of slow growth, and 
 if once impaired is seldom fully restored. I doubt 
 whether the Supreme Court has ever recovered 
 from the shock it then received, and, considered 
 from this point of view, the careless attitude of 
 the American people toward General Grant's 
 administration, when in 1871 it obtained the 
 reversal of Hepburn v. Griswold by appointments 
 to the bench, assumes a sombre aspect. 
 
 Of late some sensitiveness has been shown in 
 regard to this transaction, and a disposition has 
 appeared to defend General Grant and his At- 
 torney-General against the charge of manipulating 
 the membership of the bench to suit their own 
 views. At the outset, therefore, I wish to dis- 
 claim any intention of entering into this discussion. 
 To me it is immaterial whether General Grant 
 and Mr. Hoar did or did not nominate judges 
 with a view to obtaining a particular judgment. 
 I am concerned not with what men thought, 
 but with what they did, and with the effect of 
 
72 
 
 THE THEORY OF SOCIAL REVOLUTIONS 
 
 their acts at the moment, upon their fellow- 
 citizens. 
 
 Hepburn v. Griswold was decided in conference 
 on November 27, 1869, when eight justices were 
 on the bench. On February i, following, Justice 
 Grier resigned, and, on February 7, judgment was 
 entered, the court then being divided four to 
 three, but Grier having been with the majority, 
 the vote in reality stood five to three. Two 
 vacancies therefore existed on February 7, one 
 caused by the resignation of Grier, the other by 
 an act of Congress which had enlarged the court 
 by one member, and which had taken effect in 
 the previous December. 
 
 Chief Justice Chase held that the clause of the 
 currency laws of 1862 and 1863 which made 
 depreciated paper a legal tender for preexisting 
 debts was unconstitutional. No sooner had the 
 judgment been recorded than all the world per- 
 ceived that, if both vacancies should be filled with 
 men who would uphold the acts, Hepburn v. Gris- 
 wold might be reversed by a majority of one. 
 
 The Republican party had full control of the 
 government and was united in vehement support 
 of the laws. On March 21, the second of the two 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 73 
 
 new judges received his commission, and precisely 
 ten days afterward the Attorney- General moved 
 for a rehearing, taunting the Chief Justice with 
 having changed his opinion on this point, and 
 intimating that the issue was in reality political, 
 and not judicial at all. 
 
 In the December Term following Knox v. Lee 
 was argued by the Attorney- General, and, on May 
 I, 187 1, judgment was entered reversing Hepburn 
 V. Griswold, both the new judges voting with the 
 former minority, thus creating the necessary 
 majority of one. No one has ever doubted that 
 what General Grant did coincided with the drift 
 of opinion, and that the Republican party sup- 
 ported him without inquiring how he had achieved 
 success.^ After this it is difficult to suppose that 
 much respect could remain among the American 
 people for the sanctity of judicial political de- 
 cisions, or that a President, at the head of a popu- 
 lar majority, would incur much odium for in- 
 tervening to correct them, as a party measure. 
 
 The last example of judicial interference which 
 
 ^Hepburn v. Griswold, 8 Wallace 603. Decided in conference 
 on Nov. 27, 1869, more than a month before Grier's resignation. 
 Knox V. Lee, 12 Wallace 457. 
 
74 THE THEORY OF SOCIAL REVOLUTIONS 
 
 I shall mention was the nullification, in 1895, of a 
 statute of Congress which imposed an income tax. 
 The states have since set this decision aside by- 
 constitutional amendment, and I should suppose 
 that few would now dispute that the Court when 
 it so decided made a serious political and social 
 error. As Mr. Justice White pointed out, the 
 judges undertook to deprive the people, in their 
 corporate capacity, of a power conceded to Con- 
 gress "by universal consensus for one hundred 
 years." ^ These words were used in the first 
 argument, but on the rehearing the present Chief 
 Justice waxed warm in remonstrating against the 
 unfortunate position in which his brethren placed 
 the Court before the nation, protesting with 
 almost passionate earnestness against the reversal 
 by half-a-dozen judges of what had been the uni- 
 versally accepted legal, political, and economic 
 policy of the country solely in order that "in- 
 vested wealth " might be read " into the consti- 
 tution " as a favored and protected class of 
 property. Mr. Justice White closed by saying that 
 by this act the Supreme Court had "deprived [the 
 Government] of an inherent attribute of its being." ^ 
 
 1 157 U. S. 608. 
 
 2 Pollock V. The Farmers' Loan & Trust Co., 158 U. S. 715. 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 75 
 
 I might go on into endless detail, but I ap- 
 prehend that these cases, which are the most, 
 important which have ever arisen on this issue, 
 suffice for my purpose.-"^ I contend that no court ! 
 can, because of the nature of its being, effectively ( 
 check a popular majority acting through a co- 
 
 ^In 1889 Mr. J. C. Bancroft Davis compiled a table of the acts of 
 Congress which up to that time had been held to be unconstitutional. 
 It is to be found in the Appendix to volume 131 U. S. Reports, page 
 ccxxxv. Mr. Davis has, however, omitted from his list the Dred 
 Scott Case, probably for the technical reason that, in 1857, when the 
 cause was decided, the Missouri Compromise had been repealed. 
 Nevertheless, though this is true, Taney's decision hinged upon the 
 invalidity of the law. 
 
 Besides the statutes which I have mentioned in the text, the two 
 most important, I suppose, which have been annulled, have to me no 
 little interest. These are the Civil Rights Act of 1875, and the Em- 
 ployers' Liability Act of 1906. The Civil Rights Act of 1875 grew 
 rapidly unpopular, and the decision which overturned it coincided 
 with the strong drift of opinion. The Civil Rights Cases were de- 
 cided in October, 1883, a-iid Mr. Cleveland was elected President in 
 1884. Doubtless the law would have been repealed had the judiciary 
 supported it. Therefore this adjudication stood. 
 
 On the other hand, the Employers' Liability Act of 1906 was held 
 bad because Congress undertook to deal with commerce conducted 
 wholly within the states, and therefore beyond the national jurisdic- 
 tion. The Court, consequently, in the Employers' Liability Cases, 
 simply defined the limits of sovereignty, as a Canadian Court might 
 do ; it did not question the existence of sovereignty itself. In 1908 
 Congress passed a statute free from this objection, and the Court, in 
 the Second Employers' Liability Cases, 223 U. S. i, sustained the 
 legislation in the most thoroughgoing manner. I know not where to 
 look for two better illustrations of my theory. 
 
76 THE THEORY OF SOCIAL REVOLUTIONS 
 
 ordinate legislative assembly, and I submit that 
 the precedents which I have cited prove this con- 
 tention. The only result of an attempt and failure 
 is to bring courts of justice into odium or contempt, 
 and, in any event, to make them objects of attack 
 by a dominant social force in order to use them as 
 an instrument, much as Charles II used Jeffreys. 
 The moment we consider the situation philo- 
 sophically we perceive why using a court to control 
 a coordinate legislature must, nearly inevitably, 
 be sooner or later fatal to the court, if it asserts 
 its prerogative. A court to be a fit tribunal to 
 administer the municipal law impartially, or 
 even relatively impartially, must be a small body 
 of men, holding by a permanent and secure tenure, 
 guarded from all pressure which may unduly in- 
 fluence them. Also they should be men of much 
 experience and learned in the precedents which 
 should make the rules which they apply stable and 
 consistent. In short, a court should be rigid and 
 emotionless. It follows that it must be con- 
 servative, for its members should long have passed 
 that period of youth when the mind is sensitive 
 to new impressions. Were it otherwise, law would 
 cease to be cohesive. 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 77 
 
 A legislature is nearly the antithesis of a court. 
 It is designed to reflect the passions of the voters, 
 and the majority of voters are apt to be young. 
 Hence in periods of change, when alone serious 
 clashes between legislatures and courts are likely 
 to occur, as the social equilibrium shifts the 
 , legislature almost certainly will reflect the rising, 
 the court the sinking power. I take the Dred 
 Scott Case as an illustration. In 1857 the slave- 
 holding interest had passed the zenith of high 
 fortune, and was hastening toward its decline. 
 In the elections of 1858 the Democratic party, 
 which represented slavery, was defeated. But 
 the Supreme Court had been organized by Demo- 
 crats who had been dominant for many years, and 
 it adhered, on the principle laid down by Jeffreys, 
 to the master which created it. 
 
 Occasionally, it is true, a court has been con- 
 structed by a rising energy, as was the Supreme 
 Court in 1789, but then it is equally tenacious to 
 the instinct which created it. The history of the 
 Supreme Court is, in this point of view, emi- 
 nently suggestive. The Federalist instinct was 
 constructive, not destructive, and accordingly 
 Marshall's fame rests on a series of constructive 
 
78 THE THEORY OF SOCIAL REVOLUTIONS 
 
 decisions like M'Culloch v. Maryland, Cohens v. 
 Virginia, and Gibbons v. Odgen. In these de- 
 cisions he either upheld actual national legislation, 
 or else the power of the nation to legislate. Con- 
 versely, whenever Marshall or his successors 
 have sought to obstruct social movement they 
 have not prospered. Marbury v. Madison is not 
 an episode on which any admirer of Marshall 
 can linger with satisfaction. In theory it may be 
 true, as Hamilton contended, that, given the fact 
 that a written constitution is inevitable, a bench 
 of judges is the best tribunal to interpret its 
 meaning, since the duty of the judge has ever been 
 and is now to interpret the meaning of written 
 instruments; but it does not follow from this 
 premise that the judges who should exercise this 
 ofl&ce should be the judges who administer the 
 municipal law. In point of fact experience has 
 proved that, so far as Congress is concerned, the 
 results of judicial interference have been negative. 
 And it would be weU if in other spheres of Ameri- 
 can constitutional development, judicial activity 
 had been always negative. Unfortunately, as I 
 believe, it has extended into the domain of legis- 
 lation. I will take the Dred Scott Case once 
 
LIMITATIONS OF THE JUDICIAL FUNCTION 79 
 
 more to illustrate my meaning. The North found 
 it bad enough for the Supreme Court to hold 
 that, under the Constitution, Congress could not 
 exclude slavery from the national territory beyond 
 a certain boundary which had been fixed by com- 
 promise between the North and South. But the 
 North would have found it intolerable if the Court, 
 while fully conceding that Congress might so 
 legislate, if the character of the legislation com- 
 mended itself to the judges, had held the Missouri 
 Compromise to be unconstitutional because they 
 thought it unreasonable. Yet this, in substance, 
 is what our courts have done. And this brings 
 me to the consideration of American courts as 
 legislative chambers. 
 
CHAPTER III 
 
 AMERICAN COURTS AS LEGISLATIVE CHAMBERS 
 
 In one point of view many of the greatest of 
 the Federalists were ideaHsts. They seem sin- 
 cerely to have believed that they could, by some 
 form of written words, constrain a people to be 
 honest against their will, and almost as soon as 
 the new government went into operation they 
 tested these beliefs by experiment, with very in- 
 different success. I take it that jurists like Jay 
 and Marshall held it to be axiomatic that rules 
 of conduct should be laid down by them which 
 would be applicable to rich and poor, great and 
 small, alike, and that courts could maintain such 
 rules against aU pressure. Possibly such prin- 
 ciples may be enforced against individuals, but 
 they cannot be enforced against communities, 
 and it was here that the Federalist philosophy 
 collapsed, as Hamilton, at least partly, foresaw 
 that it must. 
 
 Sovereigns have always enjoyed immunity 
 
 80 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 8l 
 
 from suit by private persons, unless they have 
 been pleased to assent thereto, not because it is 
 less wrongful for a sovereign than for an individual 
 to cheat, but because the sovereign cannot be 
 arrested and the individual can. With the 
 Declaration of Independence the thirteen colonies 
 became sovereigns. Petty sovereigns it is true, 
 and singly contemptible in physical force as 
 against most foreign nations, but none the less 
 tenacious of the attributes of sovereignty, and 
 especially of the attribute which enabled them 
 to repudiate their debts. Jay, Marshall, and 
 their like, thought that they could impose the 
 same moral standard upon the states as upon 
 private persons ; they were unable to do so, but 
 in making the attempt they involved the American 
 judicial system in a maze of difhculties whose 
 gravity, I fear, can hardly be exaggerated. Be- 
 fore entering upon this history, however, I must 
 say a word touching the nature of our law. 
 
 Municipal law, to be satisfactory, should be a 
 body of abstract principles capable of being ap- 
 plied impartially to all relevant facts, just as 
 Marshall and Jay held it to be. Where exceptions 
 begin, equality before the law ends, as I have 
 
82 THE THEORY OF SOCIAL REVOLUTIONS 
 
 tried to show by the story of King David and 
 Uriah, and therefore the great effort of civiUzation 
 has been to remove judges from the possibility 
 of being subjected to a temptation, or to a press- 
 ure, which may deflect them from impartiaHty 
 as between suitors. In modern civiHzation, es- 
 pecially, nothing is so fatal to the principle of 
 order as inequality in the dispensation of justice, 
 and it would have been reasonable to suppose 
 that Americans, beyond all others, would have 
 been alive to this teaching of experience, and have 
 studiously withdrawn their bench from politics. 
 In fact they have ignored it, and instead they 
 have set their judiciary at the focus of conflicting 
 forces. The result has been the more unfortunate 
 as the English system of jurisprudence is iU cal- 
 culated to bear the strain, it being inflexible. In 
 theory the English law moves logically from prec- 
 edent to precedent, the judge originating nothing, 
 only elaborating ideas which he has received from 
 a predecessor, and which are binding on him. If 
 the line of precedents leads to wrongful conclusions, 
 the legislature must intervene with a statute rec- 
 tifying the wrong. The Romans, %ho were gifted 
 with a higher legal genius than we, managed 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 83 
 
 better. The prsetor, by his edict, suppressed in- 
 convenient precedents, and hence the Romans 
 maintained flexibiHty in their municipal law with- 
 out falling into confusion. We have nothing to 
 correspond to the praetor. 
 
 Thus the English system of binding precedents 
 is troublesome enough in a civilization in chronic 
 and violent flux like modern civilization, even 
 when applied to ordinary municipal law which 
 may be changed at will by legislation, but it 
 brings society almost to a stand when applied to 
 the most vital functions of government, with no 
 means at hand to obtain a corrective. For the 
 court of last resort having once declared the 
 meaning of a clause of the Constitution, that 
 meaning remains fixed forever, unless the court 
 either reverses itself, which is a disaster, or the 
 Constitution can be amended by the states, which 
 is not only difficult, but which, even if it be pos- 
 sible, entails years of delay. 
 
 Yet pressing emergencies arise, emergencies in 
 which a settlement of some kind must almost 
 necessarily be reached somewhat rapidly to avert 
 very serious disorders, and it has been under this 
 tension, as I understand American constitutional 
 
84 THE THEORY OF SOCIAL REVOLUTIONS 
 
 development, that our courts have resorted to 
 legislation. Nor is it fair for us to measure the 
 sagacity of our great jurists by the standard of 
 modern experience. They lived before the ac- 
 celeration of movement by electricity and steam. 
 They could not foresee the rapidity and the pro- 
 fundity of the changes which were imminent. 
 Hence it was that, in the spirit of great lawyers, 
 who were also possibly men tinged with a certain 
 enthusiasm for the ideal, they began their work 
 by ruling on the powers and limitations of sover- 
 eignty, as if they were ruling on the necessity of 
 honest intent in dealings with one's neighbor. 
 
 In 1789 General Washington is said to have 
 offered John Jay his choice of offices under the 
 new government, and Jay chose the chief justice- 
 ship, because there he thought he could make his 
 influence felt most widely. If so he had his wish, 
 and very shortly met with disappointment. In 
 the August Term of 1792, one Chisholm, a citizen 
 of South Carolina, sued the State of Georgia for 
 a debt. Georgia declined to appear, and in Feb- 
 ruary, 1793, Jay, in an elaborate opinion, gave 
 judgment for Chisholm. Jay was followed by his 
 associates with the exception of Iredell, J., of 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 85 
 
 North Carolina. Forthwith a ferment began, and 
 in the very next session of Congress an amend- 
 ment to the Constitution was proposed to make 
 such suits impossible. In January, 1798, five 
 years after the case was argued, this amendment 
 was declared to be adopted, but meanwhile Jay 
 had resigned to become governor of New York. 
 In December, 1800, he was again offered the chief 
 justiceship by John Adams, on the resignation of 
 Oliver Ellsworth, but Jay resolutely declined. I 
 have often wondered whether Jay's mortifica- 
 tion at having his only important constitu- 
 tional decision summarily condemned by the 
 people may not have given him a distaste for 
 judicial life. 
 
 The Federalist attempt to enforce on the states 
 a positive ride of economic morality, therefore, 
 collapsed at once, but it still remained possible to 
 approach the same problem from its negative side, 
 through the clause of the Constitution which for- 
 bade any state to impair the validity of contracts, 
 and Marshall took up this aspect of the task where 
 Jay left it. In Marshall's mind his work was 
 simple. He had only to determine the nature of 
 a contract, and the rest followed automatically. 
 
86 THE THEORY OF SOCIAL REVOLUTIONS 
 
 All contracts were to be held sacred. Their 
 greater or less importance was immaterial. 
 
 In 1810 Marshall expounded this general prin- 
 ciple in Fletcher v. Peck.^ "When ... a law 
 is in its nature a contract ... a repeal of the law 
 cannot devest" rights which have vested under it. 
 A couple of years later he applied his principle 
 to the extreme case of an unlimited remission of 
 taxation.^ The State of New Jersey had granted 
 an exemption from taxation to lands ceded to 
 certain Indians. Marshall held that this contract 
 ran with the land, and inured to the benefit of 
 grantees from the Indians. If the state cared 
 to resume its power of taxation, it must buy the 
 grant back, and the citizens of New Jersey must 
 pay for their improvidence. 
 
 Seven years later, in 1819, Marshall may, per- 
 haps, be said to have reached the culmination of 
 his career, for then he carried his moral standard 
 to a breaking strain. But, though his theory broke 
 down, perhaps the most striking evidence of his 
 wonderful intellectual superiority is that he con- 
 vinced the Democrat, Joseph Story, — a man 
 
 ^ 6 Cranch 135. 
 
 2 New Jersey v. Wilson, 7 Cranch 164, decided in 181 2. 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 87 
 
 who had been nominated by Madison to oppose 
 him, and of undoubted strength of character, — 
 of the soundness of his thesis. In 1769 ELing 
 George III incorporated certain Trustees of 
 Dartmouth College. The charter was accepted 
 and both real and personal property were there- 
 upon conveyed to this corporate body, in trust 
 for educational purposes. In 18 16 the legislature 
 of New Hampshire reorganized the board of 
 trustees against their will. If the incorporation 
 amounted to a contract, the Court was clear that 
 this statute impaired it ; therefore the only really 
 debatable issue was whether the grant of a charter 
 by the king amounted to a contract by him, with 
 his subjects to whom he granted it. After pro- 
 longed consideration Marshall concluded that it 
 did, and I conceive that, in the eye of history, 
 he was right. Throughout the Middle Ages cor- 
 porate privileges of aU kinds, but especially mu- 
 nicipal corporate privileges, had been subjects of 
 purchase and sale, and indeed the mediaeval social 
 system rested on such contracts. So much was 
 this the case that the right to return members 
 of Parliament from incorporated boroughs was, 
 as Lord Eldon pointed out in the debates on the 
 
88 THE THEORY OF SOCIAL REVOLUTIONS 
 
 Reform Bill, as much private property "as any of 
 your lordships' " titles and peerages. 
 
 It was here that Marshall faltered. He felt 
 that the public would not support him if he held 
 that states could not alter town and county char- 
 ters, so he arbitrarily split corporations in halves, 
 protecting only those which handled exclusively 
 private funds, and abandoning "instruments of 
 government," as he called them, to the mercy of 
 legislative assemblies. 
 
 Toward 1832 it became convenient for middle 
 class Englishmen to confiscate most of the prop- 
 erty which the aristocracy had invested in par- 
 liamentary boroughs, and this social revolution 
 was effected without straining the judicial system, 
 because of the supremacy of Parliament. In 
 America, at about the same time, it became, in 
 like manner, convenient to confiscate numerous 
 equally well-vested rights, because, to have com- 
 pensated the owners would have entailed a con- 
 siderable sacrifice which neither the public nor 
 the promoters of new enterprises were willing to 
 make. The same end was reached in America as 
 in England, in spite of Chief Justice Marshall and 
 the Dartmouth College Case, only in America it 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 89 
 
 was attained by a legal somerset which has dis- 
 ordered the course of justice ever since. 
 
 In 1697 King William III incorporated Trinity 
 Church in the City of New York, confirming to 
 the society the possession of a parcel of land, ad- 
 joining the church, to be used as a churchyard 
 for the burial of the dead. In 1823 the govern- 
 ment of New York prohibited interments within 
 the city limits, thus closing the churchyard for 
 the purposes for which it had been granted. As 
 compensation was refused, it appeared to be a 
 clear case of confiscation, and Trinity resisted. 
 In the teeth of recent precedents the Supreme 
 Court of New York decided that, under the 
 Police Power, the legislature of New York might 
 authorize this sort of appropriation of private 
 property for sanitary purposes, without paying the 
 owners for any loss they might thereby sustain.^ 
 
 The court thus simply dispensed the legislature 
 from obedience to the law, saying in effect, "al- 
 though the Constitution forbids impairing con- 
 tracts, and although this is a contract which you 
 have impaired, yet, in our discretion, we suspend 
 the operation of the Constitution, in this instance, 
 
 ^ Coates V. Mayor of New York, 7 Cowen 585. 
 
90 THE THEORY OF SOCIAL REVOLUTIONS 
 
 by calling your act an exercise of a power unknown 
 to the framers of the Constitution." I cannot 
 doubt that Marshall would have flouted this 
 theory had he Hved to pass upon it, but Marshall 
 died in 1835, and the Charles River Bridge Case, 
 in which this question was first presented to the 
 Supreme Court of the United States, did not come 
 up until 1837. Then Joseph Story, who remained 
 as the representative of Marshall's philosophy 
 upon the bench, vehemently protested against the 
 latitudinarianism of Chief Justice Taney and his as- 
 sociates, but without producing the slightest effect. 
 In 1785 the Massachusetts legislature chartered 
 the Charles River Bridge Company to build a 
 bridge between Boston and Charlestown, author- 
 izing it, by way of consideration, to collect tolls 
 for forty years. In 1792 the franchise was ex- 
 tended to seventy years, when the bridge was to 
 revert to the Commonwealth. In 1828 the legis- 
 lature chartered the Warren Bridge Company, 
 expressly to build a bridge parallel to and practi- 
 cally adjoining the Charles River Bridge, the War- 
 ren Bridge to become a free bridge after six years. 
 The purpose, of course, was to accelerate movement 
 by ruining the Charles River Bridge Company. 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 91 
 
 The Charles River Bridge Company sought to 
 restrain the building of the Warren Bridge as a 
 breach of contract by the State, but failed to ob- 
 tain reHef in the state courts, and before the cause 
 could be argued at Washington the Warren Bridge 
 had become free and had destroyed the value of 
 the. Charles River Bridge, though its franchise 
 had still twenty years to run. As Story pointed 
 out, no one denied that the charter of the Charles 
 River Bridge Company was a contract, and, as he 
 insisted, it is only common sense as well as com- 
 mon justice and elementary law, that contracts 
 of this character should be reasonably interpreted 
 so far as quiet enjoyment of the consideration 
 granted is concerned ; but all this availed nothing. 
 The gist of the opposing argument is contained 
 in a single sentence in the opinion of the Chief 
 Justice who spoke for the majority of the court : 
 "The millions of property which have been in- 
 vested in railroads and canals, upon lines of 
 travel which had been before occupied by turn- 
 pike corporations, will be put in jeopardy" if this 
 doctrine is to prevail.^ 
 
 The effect of the adoption by the Supreme 
 
 * Charles River Bridge v. Warren Bridge, 1 1 Peters 420, 553. 
 
92 THE THEORY OF SOCIAL REVOLUTIONS 
 
 Court of the United States of the New York 
 theory of the Pohce Power was to vest in the 
 judiciary, by the use of this catch-word, an al- 
 most unparalleled prerogative. They assumed a 
 supreme function which can, only be compared 
 to the Dispensing Power claimed by the Stuarts, 
 or to the authority which, according to the Coun- 
 cil of Constance, inheres in the Church, to "grant 
 indulgences for reasonable causes." I suppose 
 nothing in modern judicial history has ever re- 
 sembled this assumption; and yet, when we ex- 
 amine it, we find it to be not only the logical, but 
 the inevitable, effect of those mechanical causes 
 which constrain mankind to move along the lines 
 of least resistance. 
 
 Marshall, in a series of decisions, laid down a 
 general principle which had been proved to be 
 sound when applied by ordinary courts, dealing 
 with ordinary social forces, and operating under 
 the corrective power of either a legislature or a 
 praetor, but which had a different aspect under 
 the American constitutional system. He held 
 that the fundamental law, embodied in the Con- 
 stitution, commanded that all contracts should be 
 sacred. Therefore he, as a judge, had but two 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 93 
 
 questions to resolve : First, whether, in the case 
 before him, a contract had been proved to exist. 
 Second, admitting that a contract had been 
 proved, whether it had also been shown to have 
 been impaired. 
 
 Within ten years after these decisions it had 
 been found in practice that pubhc opinion would 
 not sustain so rigid an administration of the law. 
 No legislature could intervene, and a pressure was 
 brought to bear which the judges could not with- 
 stand; therefore, the Court yielded, declaring 
 that if impairing a contract were, on the whole, 
 for the public welfare, the Constitution, as Mar- 
 shall interpreted it, should be suspended in favor 
 of the legislation which impaired it. They called 
 this suspension the operation of the "Police 
 Power." It followed, as the "Police Power" 
 could only come into operation at the discretion 
 of the Court, that, therefore, within the limits of 
 judicial discretion, confiscation, however arbitrary 
 and to whatever extent, might go on. In the 
 energetic language of the Supreme Court of 
 Maine: "This duty and consequent power 
 override all statute or contract exemptions. The 
 state cannot free any person or corporation from 
 
94 THE THEORY OF SOCIAL REVOLUTIONS 
 
 subjection to this power. All personal, as well 
 as property rights must be held subject to the 
 Police Power of the state." ^ 
 
 Once the theory of the Police Power was es- 
 tablished it became desirable to define the limits 
 of judicial discretion, but that proved to be im- 
 possible. It could not be determined in advance 
 by abstract reasoning. Hence, as each litigation 
 arose, the judges could follow no rule but the rule 
 of common sense, and the Police Power, trans- 
 lated into plain English, presently came to signify 
 whatever, at the moment, the judges happened 
 to think reasonable. Consequently, they began 
 guessing at the drift of pubhc opinion, as it per- 
 colated to them through the medium of their 
 education and prejudices. Sometimes they guessed 
 right and sometimes wrong, and when they guessed 
 wrong they were cast aside, as appeared dramati- 
 cally enough in the temperance agitation. 
 
 Up to about the middle of the last century the 
 lawfulness of the liquor business had been un- 
 questioned in the United States, and money had 
 been invested as freely in it as in any other legiti- 
 
 1 Boston & Maine Railroad v. County Commissioners, 79 Maine 
 393- 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 95 
 
 mate enterprise ; but, as the temperance agitation 
 swept over the country, in obedience to the im- 
 pulsion given by science to the study of hygiene, 
 dealing in liquor came to be condemned as a crime. 
 Presently legislatures began to pass statutes to 
 confiscate, more or less completely, this kind of 
 property, and sufferers brought their cases before 
 the courts to have the constitutionality of the 
 acts tested, under the provisions which existed 
 in all state constitutions, forbidding the taking, 
 by the public, of private property without com- 
 pensation, or without due process of law. Such 
 a provision existed in the constitution of the State 
 of New York, adopted in 1846, and it was to in- 
 voke the protection of this clause that one Wyne- 
 hamer, who had been indicted in 1855, carried his 
 case to the Court of Appeals in the year 1856. 
 In that cause Mr. Justice Comstock, who was 
 one of the ablest jurists New York ever produced, 
 gave an opinion which is a model of judicial 
 reasoning. He showed conclusively the absurdity 
 of constitutional restrictions, if due process of 
 law may be held to mean the enactment of the 
 very statute drawn to work confiscation.^ 
 
 ^ Wynehamer v. The People, 13 N.Y, 393. 
 
g6 THE THEORY OF SOCIAL REVOLUTIONS 
 
 This decision, which represented the profound- 
 est convictions of men of the cahbre of Comstock 
 and Denio, deserves to rank with Marshall's 
 effort in the Dartmouth College Case. In both 
 instances the tribunal exerted itself to carry out 
 Hamilton's principle of judicial duty by exer- 
 cising its jtddgment and not its will. In other 
 words, the judges propounded a general rule and 
 then simply determined whether the set of facts 
 presented to them fell within that rule. They 
 resolutely declined to legislate by entering upon 
 a consideration of the soundness or reasonableness 
 of the poUcy which underlay the action of the 
 legislature. In the one case as in the other the 
 effort was unavailing, as Jefferson prophesied 
 that it would be. I have told of Marshall's over- 
 throw in the Charles River Bridge Case, and in 
 1887, after controversies of this category had 
 begun to come before the Supreme Court of the 
 United States under the Fourteenth Amendment, 
 Mr. Justice Harlan swept Mr. Justice Comstock 
 aside by quietly ignoring an argument which was 
 unanswerable.^ The same series of phenomena 
 have appeared in regard to laws confiscating prop- 
 
 ^Mugler V. Kansas, 123 U.S. 623. 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 97 
 
 erty invested in lotteries, when opinion turned 
 against lotteries, or in occupations supposed to be 
 unsanitary, as in the celebrated case of the taxing 
 out of existence of the rendering establishment 
 which had been erected as a pubHc benefit to re- 
 lieve the City of Chicago of its offal.\ In fine, 
 whenever pressure has reached a given intensity, 
 on one pretext or another, courts have enforced 
 or dispensed with constitutional limitations with 
 quite as much facility as have legislatures, and for 
 the same reasons. The only difference has been 
 that the pressure which has operated most directly 
 upon courts has not always been the pressure 
 which has swayed legislatures, though sometimes 
 both influences have combined. For example, 
 during the Civil War, the courts sanctioned every- 
 thing the popular majority demanded under the 
 pretext of the War Power, as in peace they have 
 sanctioned confiscations for certain popular pur- 
 poses, under the name of the Police Power. But 
 then, courts have always been sensitive to financial 
 influences, and if they have been flexible in per- 
 mitting popular confiscation when the path of 
 least resistance has lain that way, they have gone 
 
 1 Fertilizing Co. v. Hyde Park, 97 U.S. 659. 
 
98 THE THEORY OF SOCIAL REVOLUTIONS 
 
 quite as far in the reverse direction when the 
 amount of capital threatened has been large enough 
 to be with them a countervailing force. 
 
 As the federal Constitution originally contained 
 no restriction upon the states touching the con- 
 fiscation of the property of their own citizens, pro- 
 vided contracts were not impaired, it was only in 
 1868, by the passage of the Fourteenth Amend- 
 ment, that the Supreme Court of the United 
 States acquired the possibility of becoming the 
 censor of state legislation in such matters. Nor 
 did the Supreme Court accept this burden very 
 willingly or in haste. For a number of years it 
 labored to confine its function to defining the 
 limits of the Police Power, guarding itself from 
 the responsibility of passing upon the "reason- 
 ableness" with which that power was used. It 
 was only by somewhat slow degrees, as the value 
 of the threatened property grew to be vast, that 
 the Court was deflected from this conservative 
 course into effective legislation. The first prayers 
 for relief came from the Southern states, who were 
 still groaning under reconstruction governments; 
 but as the Southern whites were then rather poor, 
 their complaints were neglected. The first very 
 
AMERICAN COURTS AS . LEGISLATIVE CHAMBERS 99 
 
 famous cause of this category is known as the 
 Slaughter House Cases. In 1869 the Carpet Bag 
 government of Louisiana conceived the plan of 
 confiscating most of the property of the butchers 
 who slaughtered for New Orleans, within a dis- 
 trict about as large as the State of Rhode Island. 
 The Fourteenth Amendment forbade states to 
 deprive any person of life, liberty, or property, 
 without due process of law, and the butchers of 
 New Orleans prayed for protection, alleging that 
 the manner in which their property had been 
 taken was utterly lawless. But the Supreme 
 Court declined to interfere, explaining that the 
 • Fourteenth Amendment had been contrived to 
 protect the emancipated slaves, and not to make 
 the federal judiciary "a perpetual censor upon 
 all legislation of the states, on the civil rights of 
 their own citizens, with authority to nuUify such 
 as it did not approve." ^ 
 
 Although, even at that relatively early day, this 
 conservatism met with strong opposition within 
 the Court itself, the pressure of vested wealth 
 did not gather enough momentum to overcome the 
 inertia of the bench for nearly another generation. 
 
 ^ Slaughter House Cases, 16 Wallace 78, decided in 1873. 
 
lOO THE THEORY OF SOCIAL REVOLUTIONS 
 
 It was the concentration of capital in monopoly, 
 and the consequent effort by the public to regulate 
 monopoly prices, which created the stress which 
 changed the legal equilibrium. The modern 
 American monopoly seems first to have generated 
 that amount of friction, which habitually finds 
 vent in a great litigation, about the year 1870; 
 but only some years later did the states enter 
 upon a determined policy of regulating monopoly 
 prices by law, with the establishment by the 
 Illinois legislature of a tariff for the Chicago ele- 
 vators. The elevator companies resisted, on the 
 ground that regulation of prices in private business 
 was equivalent to confiscation, and so in 1876 the 
 Supreme Court was dragged into this fiercest of 
 controversies, thereby becoming subject to a 
 stress to which no judiciary can safely be exposed. 
 Obviously two questions were presented for ad- 
 judication : The first, which by courtesy might 
 be termed legal, was whether the fixing of prices 
 by statute was a prerogative which a state legis- 
 lature might constitutionally exercise at all; the 
 second, which was purely political, was whether, 
 admitting that, in the abstract, such a power 
 could be exercised by the state, Illinois had, in 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS loi 
 
 this particular case, behaved reasonably. The 
 Supreme Court made a conscientious effort to 
 adhere to the theory of Hamilton, that it should, 
 in emergencies like this, use its jtulgment only, 
 and not its will; that it should lay down a rule, 
 not vote on the wisdom of a policy. So the judges 
 decided that, from time immemorial, the fixing of 
 prices in certain trades and occupations had been a 
 legislative function, which they supposed might be 
 classified as a branch of the Police Power, but they 
 declared that with this expression of opinion their 
 jurisdiction ended. When it came to asking 
 them to criticise the propriety of legislation, it 
 was, in substance, proposing that they should 
 substitute their will for the ivill of the represen- 
 tatives of the people, which was impossible. I 
 well remember the stir made by the case of Munn 
 V. Illinois.^ 
 
 Both in and out of the legal profession, those in 
 harmony with the great vested interests com- 
 plained that the Court had shirked its duty. But 
 these complaints soon ceased, for a movement 
 was in progress which swept, for the moment, all 
 before it. The great aggregations of capital, 
 194U.S. 113. 
 
I02 THE THEORY OF SOCIAL REVOLUTIONS 
 
 which had been accumulating ever since the 
 Charles River Bridge Case, not long after Munn 
 V. Illinois attained to a point at which they began 
 to grasp many important prerogatives of sover- 
 eignty, and to impose, what was tantamount to, 
 arbitrary taxation upon a large scale. The crucial 
 trial of strength came on the contest for control of 
 the railways, and in that contest concentrated 
 capital prevailed. The Supreme Court reversed 
 its attitude, and undertook to do that which it 
 had solemnly protested it could not do. It began 
 to censor legislation in the interest of the strongest 
 force for the time being, that force being actually 
 financial. By the year 1890 the railway interest 
 had expanded prodigiously. Between 1876 and 
 1890 the investment in railways had far more 
 than doubled, and, during the last five years of 
 this period, the increment had been at an average 
 of about $450,000,000 annually. At this point 
 the majority of the court yielded, as ordinary 
 political chambers always must yield, to extraor- 
 dinary pressure. Mr. Justice Bradley, however, 
 was not an ordinary man. He was, on the con- 
 trary, one of the ablest and strongest lawyers 
 who sat on the federal bench during the last half 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 103 
 
 of the nineteenth century; and Bradley, like 
 Story before him, remonstrated against turning 
 the bench of masigtrates, to which he belonged, 
 from a tribunal which should propound general 
 rules applicable to all material facts, into a jury 
 to find verdicts on the reasonableness of the votes 
 of representative assemblies. The legislature of 
 Minnesota, in 1887, passed a statute to regulate 
 railway rates, and provided that the findings of 
 the commission which it erected to fix those rates 
 should be final. The Chicago, Milwaukee & St. 
 Paul Railway contended that this statute was um- 
 constitutional, because it was unreasonable, and 
 the majority of the Court sustained their con- 
 tention.^ Justices Bradley, Gray, and Lamar 
 dissented, and Bradley on this occasion delivered 
 an opinion, from which I shall quote a paragraph 
 or two, since the argument appears to me con- 
 clusive, not only from the point of view of law, 
 but of political expediency and of common 
 sense : — 
 
 "I cannot agree to the decision of the court 
 in this case. It practically overrules Munn v. 
 
 1 Chicago, Milwaukee & St. Paul Ry. v. Minnesota, 134 U.S. 461, 
 decided March 24, 1890. 
 
I04 THE THEORY OF SOCIAL REVOLUTIONS 
 
 Illinois. . . . The governing principle of those 
 cases was that the regulation and settlement of 
 the fares of railroads and other public accommo- 
 dations is a legislative prerogative, and not a 
 judicial one. This is a principle which I regard 
 as of great importance. ... 
 
 "But it is said that all charges should be reason- 
 able, and that none but reasonable charges can be 
 exacted ; and it is urged that what is a reasonable 
 charge is a judicial question. On the contrary, it 
 is preeminently a legislative one, involving con- 
 siderations of policy as well as of remuneration. . . . 
 By the decision now made we declare, in effect, 
 that the judiciary, and not the legislature, is the 
 final arbiter in the regulation of fares and freights 
 of railroads. ... It is an assumption of author- 
 ity on the part of the judiciary which, ... it has 
 no right to make. The assertion of jurisdiction 
 by this court makes it the duty of every court of 
 general jurisdiction, state or federal, to entertain 
 complaints [of this nature], for all courts are bound 
 by the Constitution of the United States, the 
 same as we are." 
 
 There is little to add to these words. When 
 the Supreme Court thus imdertook to determine 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 105 
 
 the reasonableness of legislation it assumed, under 
 a somewhat thin disguise, the position of an upper 
 chamber, which, though it could not originate, could i 
 absolutely veto most statutes touching the use! 
 or protection of property, for the administration 
 of modem American society now hinges on this 
 doctrine of judicial dispensation under the Police 
 Power. Whether it be a regulation of rates and 
 prices, of hours of labor, of height of buildings, of^ 
 municipal distribution of charity, of flooding a 
 cranberry bog, or of prescribing to sleeping-car 
 porters duties regarding the lowering of upper 
 berths, — in questions great and small, the courts 
 vote upon the reasonableness of the use of the 
 PoHce Power, like any old-fashioned town meet- 
 ing. There is no rule of law involved. There is 
 only opinion or prejudice, or pecuniary interest. 
 The judges admit frankly that this is so. They 
 avow that they try to weigh public opinion, as 
 well as they can, and then vote. In 191 1 Mr 
 Justice Holmes first explained that the Police 
 Power extended to all great public needs, and 
 then went on to observe that this Police Power, or 
 extraordinary prerogative, might be put forth by 
 legislatures "in aid of what is sanctioned by 
 
I06 THE THEORY OF SOCIAL REVOLUTIONS 
 
 usage, or held by . . . preponderant opinion to 
 be . . . necessary to the public welfare." ^ 
 
 A representative chamber reaches its con- 
 clusions touching "preponderant opinion" by a 
 simple process, but the influences which sway 
 courts are obscurer, — often, probably, beyond 
 the sphere of the consciousness of the judges 
 themselves. Nor is this the worst ; for, as I have 
 already explained, the very constitution of a court, 
 if it be a court calculated to do its legitimate 
 work upon a lofty level, precludes it from keeping 
 pace with the movement in science and the arts. 
 Necessarily it lags some years behind. And this 
 tendency, which is a benefit in the dispensation of 
 justice as between private litigants, becomes a 
 menace when courts are involved in politics. A 
 long line of sinister precedents crowd unbidden 
 upon the mind. The Court of King's Bench, 
 when it held Hampden to be liable for the Ship 
 Money, draped the scaffold for Charles I. The 
 Parliament of Paris, when it denounced Turgot's 
 edict touching the corvee, threw wide the gate by 
 which the aristocracy of France passed to the 
 guillotine. The ruling of the Superior Court of 
 
 ^ Noble State Bank v. Haskell, 219 U.S. 104. 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 107 
 
 the Province of Massachusetts Bay, in the case 
 of the Writs of Assistance, presaged the American 
 Revolution ; and the Dred Scott decision was the 
 prelude to the Civil War. 
 
 The capital essential of justice is that, under 
 like conditions, all should fare alike. The magis- 
 trate should be no respecter of persons. The vice 
 of our sytem of judicial dispensation is that it 
 discriminates among suitors in proportion to their 
 power of resistance. This is so because, under 
 adequate pressure, our courts yield along the path 
 of least resistance. I should not suppose that any 
 man could calmly turn over the pages of the recent 
 volumes of the reports of the Supreme Court of 
 the United States and not rise from the perusal 
 convinced that the rich and the poor, the strong 
 and the weak, do not receive a common measure 
 of justice before that judgment seat. Disregard- 
 ing the discrimination which is always apparent 
 against those who are unpopular, or who suffer 
 under special opprobrium, as do liquor dealers, 
 owners of lotteries, and the like,^ I will take, nearly 
 
 ^ See the extraordinary case of Douglas v. Kentucky, 168 U.S. 488, 
 which must be read in connection with Gregory v. Trustees of Shelby 
 College, 2 Mete. (Kentucky) 589. 
 
lo8 THE THEORY OF SOCIAL REVOLUTIONS 
 
 at random, a couple of examples of rate regulation, 
 where tenderness has been shown property in 
 something approaching to a mathematical ratio to 
 the amount involved. 
 
 In April, 1894, a record was produced before 
 the Supreme Court which showed that the State 
 of North Dakota had in 1891 established rates 
 for elevating and storing grain, which rates the 
 defendant, named Brass, who owned a small 
 elevator, alleged to be, to him in particular, 
 utterly ruinous, and to be in general unreasonable. 
 He averred that he used his elevator for the stor- 
 age of his own grain, that it cost about $3000, 
 that he had no monopoly, as there were many 
 hundred such elevators in the state, and, as land 
 fit for the purpose of building elevators was plenty 
 and cheap, that any man could build an elevator 
 in the town in which he lived, as well as he ; that 
 the rates he charged were reasonable, and that, 
 were he compelled to receive grain generally at 
 the rates fixed by the statute, he could not store 
 his own grain. All these facts were admitted by 
 demurrer, and Brass contended that if any man's 
 property were ever to be held to be appropriated 
 by the public without compensation, and under no 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 109 
 
 form of law at all save a predatory statute, it 
 should be his ; but the Supreme Court voted the 
 Dakota statute to be a reasonable exercise of the 
 Police Power/ and dismissed Brass to his fate. 
 
 The converse case is a very famous one known 
 as Smyth v. Ames,^ decided four years later, in 
 1898. In that case it appeared that the State of 
 Nebraska had, in 1893, reduced freight rates 
 within the state about twenty-nine per cent, in 
 order to bring them into some sort of relation to 
 the rates charged in the adjoinmg State of Iowa, 
 which were calculated to be forty per cent lower 
 than the Nebraska rates. Several of the most 
 opulent and powerful corporations of the Union 
 were affected by this law, among others the ex- 
 ceedingly prosperous and influential Chicago, 
 Burlington & Quincy Railway. No one pretended 
 that, were the law to be enforced, the total rev- 
 enues of the Burlington would be seriously im- 
 paired, nor was it even clear that, were the estimate 
 of reduction, revenue, and cost confined alto- 
 gether to the commerce carried on within the 
 limits of the State of Nebraska, leaving interstate 
 
 ^ Brass v. North Dakota, 153 U.S. 391. 
 2 169 U.S". 466. 
 
no THE THEORY OF SOCIAL REVOLUTIONS 
 
 commerce out of consideration, a loss would be 
 suffered during the following year. Trade might 
 increase with cheaper rates, or economies might 
 be made by the company, or both causes and many 
 others of increased earnings might combine. 
 Corporation counsel, however, argued that, were 
 the principle of the statute admitted, and should 
 all the states through which the line passed do 
 the like, ultimately a point might be reached at 
 which the railway would be unable to maintain, 
 even approximately, its dividend of eight per cent, 
 and that the creation of such a possibility was con- 
 ceding the power of confiscation, and, therefore, 
 an unreasonable exercise of the PoHce Power, by 
 the State of Nebraska. With this argument the 
 Supreme Court concurred. They held the Ne- 
 braska statute to be unreasonable. Very possibly 
 it may have been unsound legislation, yet it is 
 noteworthy that within three years after this 
 decision Mr. Hill bought the Chicago, Burlington 
 & Quincy, at the rate of $200 for every share of 
 stock of the par value of $100, thus fixing forever, 
 on the community tributary to the road, the 
 burden of paying a revenue on just double the 
 value of all the stock which it had been found 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS m 
 
 necessary to issue to build the highway. Even 
 at this price Mr. Hill is supposed to have made 
 a brilliant bargain. 
 
 6Tliis brings me to the heart of my theorem. 
 Ever since Hamilton's time, it has been assumed 
 as axiomatic, by conservative Americans, that 
 courts whose function is to expound a written 
 constitution can and do act as a "barrier to the 
 encroachments and oppressions of the represen- 
 tative body." ^ I apprehend that courts can per- 
 form no such office and that in assuming attri- 
 butes beyond the limitations of their being they, 
 as history has abundantly proved, not only fail 
 in their object, but shake the foundations of au- 
 thority, and immolate themselves. Hitherto I 
 have confined myself to adducing historical evi- 
 dence to prove that American courts have, as a 
 .whole, been gifted with so little political sagacity 
 that their interference with legislation, on behalf 
 of particular suitors, has, in the end, been a danger 
 rather than a protection to those suitors, because 
 of the animosity which it has engendered. I shall 
 now go further. For the sake of argument I am 
 willing to admit that the courts, in the exercise 
 
 ^The Federalist, No. LXXVIU. 
 
112 THE THEORY OF SOCIAL REVOLUTIONS 
 
 of the dispensing prerogative, called the Police 
 Power, have always acted wisely, so much so that 
 every such decree which they have issued may be 
 triumphantly defended upon economic, moral, or 
 social grounds. Yet, assuming this to be true, 
 though I think I have shown it to be untrue, the 
 assumption only strengthens my contention, that 
 our courts have ceased to be true courts, and are 
 converted into legislative chambers, thereby prom- 
 ising shortly to become, if they are not already, 
 a menace to order. I take it to be clear that the 
 , function of a legislature is to embody the will of 
 the dominant social force, for the time being, in a 
 political policy explained by statutes, and when 
 that policy has reached a certain stage of develop- 
 ment, to cause it to be digested, together with the 
 judicial decisions relevant to it, in a code. This 
 process of correlation is the highest triumph of 
 the jurist, and it was by their easy supremacy in 
 this field of thought, that Roman lawyers chiefly 
 showed their preeminence as compared with 
 modern lawyers. Still, while admitting this supe- 
 riority, it is probably true that the Romans owed 
 much of their success in codification to the greater 
 permanence of the Roman legislative tenure of 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 113 
 
 office, and, therefore, stability of policy, — phenom- 
 ena which were both probably effects of a slower 
 social movement among the ancients. The Ro- 
 mans, therefore, had less need than we of a per- 
 manent judiciary to counteract the disintegrating 
 tendency of redundant legislation ; a fortiori, of 
 course, they had still less to isolate the judiciary 
 from political onslaughts which might cause jus- 
 tice to become a series of exceptions to general 
 principles, rather than a code of unvarying rules. 
 
 It is precisely because they are, and are intended 
 to he) arenas of political combat, that legislatures 
 cannot be trustworthy courts, and it was because 
 this fact was notorious that the founders of this 
 government tried to separate the legislative from 
 the judicial function, and to make this separation 
 the foundation of the new republic. They failed, 
 /as I conceive, not because they made their legis- 
 latures courts, but because, under the system they 
 devised, their courts have become legislatures. 
 A disease, perhaps, the more insidious of the two. 
 Insidious because it undermines, order, while 
 legislative murder and confiscation induce reaction. 
 
 If a legislative chamber w^ould act as a court, 
 the first necessity is to eliminate its legislative. 
 
114 THE THEORY OF SOCIAL REVOLUTIONS 
 
 character. For example, the House of Lords in 
 England has long discharged the duties of a tri- 
 bunal of last resort for the empire, and with 
 general approbation, but only because, when 
 sitting as a court, the law lords sit alone. Poli- 
 ticians and political influences are excluded. 
 Where political influences enter disaster follows. 
 Hence the infamous renown of political decisions 
 in legal controversies, such as bills of attainder 
 and ex post facto laws, or special legislation to 
 satisfy claims which could not be defended before 
 legitimate courts, or the scandals always attending 
 the trial of election petitions. The object of 
 true courts is to shield the public from these and 
 kindred abuses. 
 
 In primitive communities courts are erected to 
 defend the weak against the strong, by correlating 
 local customs in such wise that some general prin- 
 ciple can be deduced which shall protect the civil 
 rights of those who cannot protect themselves, 
 against the arbitrary exactions of powerful neigh- 
 bors. In no community can every person have 
 equal civil rights. That is impossible. Civil 
 rights must vary according to status. But such 
 rights as any person may have, those the courts 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 115 
 
 are bound to guard indifferently. If the courts 
 do not perform this, their first and most sacred 
 duty, I apprehend that order cannot be perma- 
 nently maintained, for this is equality before the 
 law ; and equality before the law is the corner- 
 stone of order in every modem state. 
 
 I conceive that the lawyers of the age of Wash- 
 ington were the ablest that America has ever pro- 
 duced. No men ever understood the principle 
 of equality before the law more thoroughly than 
 they, and after the establishment of this govern- 
 ment a long series of great and upright magistrates 
 strove, as I have shown, to carry this principle 
 into effect. Jay and Marshall, Story and Bradley, 
 and many, many more, struggled, protested, and 
 failed. Failed, as I believe, through no fault of 
 their own, but because fortune had placed them 
 in a position untenable for the judge. When 
 plunged in the vortex of politics, courts must 
 waver as do legislatures, and nothing is to me 
 more painful than to watch the process of dete- 
 rioration by which our- judges lose the instinct 
 which should warn them to shun legislation as a 
 breach of trust, and to cleave to those general 
 principles which permit of no exceptions. To 
 
Il6 THE THEORY OF SOCIAL REVOLUTIONS 
 
 illustrate my meaning I shall refer to but one 
 litigation, but that one is so extraordinary that I 
 must deal with it in detail. 
 
 In 1890 the dread of the enhancement of prices 
 by monopoly, as the Supreme Court itself has ex- 
 plained, caused Congress to pass the famous 
 Sherman Act, which prohibited indiscriminately 
 all monopolies or restraints of trade. Presently 
 the government brought a bill to dissolve an ob- 
 noxious railway pool, called the Trans-Missouri 
 Freight Association, and in 1896 the case came up 
 for adjudication. I have nothing to say touching 
 the policy involved. I am only concerned with 
 , a series of phenomena, developed through several 
 years, as effects of pressure acting upon a judi- 
 ciary, exposed as the judiciary, under our system, 
 is exposed. 
 
 The Trans-Missouri Case was argued on Decem- 
 ber 8, 1896, very elaborately and by the most 
 eminent counsel. After long consideration, and 
 profound reflection, Mr. Justice Peckham, speak- 
 ing for the majority of the tribunal, laid down a 
 general principle in conformity to the legislative 
 will, precisely as Marshall had laid down a general 
 principle in the Dartmouth College Case, or Story 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 117 
 
 in the Charles River Bridge Case, or Waite in 
 Munn V. Illinois, or Bradley in the Minnesota 
 Rate Case. Then the process of agitation im- 
 mediately began. In the words of Mr. Justice 
 Harlan, fifteen years later: "But those who 
 were in combinations that were illegal did not 
 despair. They at once set up the baseless claim 
 that the decision of 1896 disturbed the 'business 
 interests of the country/ and let it be known that 
 they would never be content until the rule was 
 established that would permit interstate com- 
 merce to be subjected to reasonable restraints." ^ 
 
 Other great causes, involving the same issue, 
 were tried, the question was repeatedly reargued, 
 but the Supreme Court tenaciously adhered to its 
 general principle, that, under the Sherman Act, 
 all restraints of trade, or monopolies, were un- 
 lawful, and, therefore, the Court had but two 
 matters before it, first to define a restraint of 
 trade or a monopoly, second to determine whether 
 the particular combination complained of fell 
 within that definition. ^No discretion was per- 
 mitted. Judicial duty ended there. 
 
 The Court being found to be inflexible, recourse 
 
 1 221 U.S. 91. 
 
Il8 THE THEORY OF SOCIAL REVOLUTIONS 
 
 was had to Congress, and a bill in the form of an 
 amendment to the Sherman Act was brought into 
 the Senate authorizing, in substance, those who felt 
 unsafe under the law, to apply to certain govern- 
 ment officials, to be permitted to produce evidence 
 of the reasonable methods they employed, and, if 
 the evidence were satisfactory, to receive, what 
 was tantamount to, an indulgence. The subject 
 thus reopened, the Senate Committee on the 
 Judiciary went into the whole question of monop- 
 oly anew, and in 1909 Senator Nelson presented 
 an exhaustive report against the proposed re- 
 laxation. Thereupon the Senate indefinitely post- 
 poned further consideration of the amendment. 
 The chief reasons given by Senator Nelson were 
 summed up in a single sentence: "The defence 
 of reasonable restraint would be made in every 
 case and there would be as many different rules 
 of reasonableness as cases, courts, and juries. . . . 
 To amend the anti-trust act, as suggested by this 
 bill, would be to entirely emasculate it, and for all 
 practical purposes render it nugatory as a remedial 
 statute. . . . The act as it exists is clear, com- 
 prehensive, certain and highly remedial. It prac- 
 tically covers the field of federal jurisdiction, and 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 119 
 
 is in every respect a model law. To destroy or 
 undermine it at the present juncture, . . . would 
 be a calamity. 
 
 " In view of the foregoing, your committee rec- 
 ommend the indefinite postponement of the 
 bill." 1 
 
 And so the Senate did indefinitely postpone the 
 bill. 
 
 Matters stood thus when the government 
 brought process to dissolve the Standard Oil 
 Company, as an unlawful combination. The 
 cause was decided on May 15, 191 1, the Chief 
 Justice speaking for the majority of the bench, 
 in one of the most suggestive opinions which I 
 have ever read. To me this opinion, like Taney's 
 opinion in the Charles River Bridge Case, indicates 
 that the tension had reached the breaking point, 
 the court yielding in all directions at once, while 
 the dominant preoccupation of the presiding judge 
 seemed to be to plant his tribunal in such a posi- 
 tion that it could so yield, without stultifying 
 itself hopelessly before, the legal profession and 
 
 ^ 60th Congress, 2d Session, Senate, Report No. 848, Adverse 
 Report by Mr. Nelson, Amending Anti-trust Act, January 26, 1909, 
 page II. 
 
I20 THE THEORY OF SOCIAL REVOLUTIONS 
 
 the public. In striving to reach this position, 
 however, I apprehend that the Chief Justice, un- 
 reservedly, crossed the chasm on whose brink 
 American jurists had been shuddering for ninety 
 years. The task the Chief Justice assumed was 
 difficult almost beyond precedent. He proposed 
 to surrender to the vested interests the principle 
 of reasonableness which they demanded, and which 
 the tribunal he represented, together with Con- 
 gress, had refused to surrender for fifteen years. 
 To pacify the public, which would certainly resent 
 this surrender, he was prepared to punish two hated 
 corporations, . while he strove to preserve, so far 
 as he could, the respect of the legal profession and 
 of the public, for the court over which he presided, 
 by maintaining a semblance of consistency. 
 
 To accomplish these contradictory results, the 
 Chief Justice began, rather after the manner of 
 Marshall in Marbury v. Madison, by an extra- 
 judicial disquisition. The object of this dis- 
 quisition was to justify his admission of the 
 evidence of reasonableness as a defence, although 
 it was not needful to decide that such evidence 
 must be admitted in order to dispose of that par- 
 ticular cause. For the Chief Justice very readily 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 121 
 
 agreed that the Standard Oil Company was, 
 in fact, an unreasonable restraint of trade, and 
 must be dissolved, no matter whether it were 
 allowed to prove its reasonable methods or not. 
 Accordingly, he might have contented himself 
 with stating that, admitting for the sake of argu- 
 ment but without approving, all the defendant 
 advanced, he should sustain the government; 
 but to have so disposed of the case would not 
 have suited his purpose. What the Chief Justice 
 had it at heart to do was to surrender a fundamen- 
 tal principle, and yet to appear to make no surren- 
 der at all. Hence, he prepared his preliminary 
 and extra-judicial essay on the human reason, 
 of whose precise meaning, I must admit, I still, 
 after many perusals, have grave doubts. I some- 
 times suspect that the Chief Justice did not wish to 
 be too explicit. So far as I comprehend the Chief 
 Justice, his chain of reasoning amounted to 
 something like this : It was true, he observed, 
 that for fifteen years the Supreme Court had 
 rejected the evidence of reasonableness which he 
 admitted, and had insisted upon a general prin- 
 ciple which he might be supposed to renounce, 
 but this apparent discrepancy involved no con- 
 
122 THE THEORY OF SOCIAL REVOLUTIONS 
 
 tradiction. It was only a progression in thought. 
 For, he continued, the judges who, on various 
 previous occasions, sustained that general prin- 
 ciple, must have reached their conclusions by the 
 light of reason ; to-day we reach a contrary con- 
 clusion, but we also do so by the light of reason ; 
 therefore, as all these decisions are guided by the 
 light of reason they fundamentally coincide, how- 
 ever much superficially they may seem to differ.^ 
 
 I have never supposed that this argument carried 
 complete conviction either to the legal profession, 
 to the public, or to Congress. Certainly, it did 
 not convince Mr. Justice Harlan, who failed to 
 fathom it, and bluntly expressed his astonishment 
 in a dissenting opinion in another cause from which 
 I regret to say I can only quote a couple of para- 
 graphs, although the whole deserves attentive 
 perusal : — 
 
 "If I do not misapprehend the opinion just 
 delivered, the Court insists that what was said in 
 the opinion in the Standard Oil Case, was in 
 accordance with our previous decisions in the 
 Trans-Missouri and Joint Traffic Cases, ... if 
 we resort to reason. This statement surprises me 
 
 ^ Standard Oil Company v. United States, 221 U.S. i. 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 123 
 
 quite as much as would a statement that black 
 was white or white was black." 
 
 "But now the Court, in accordance with what 
 it denominates the ' rule of reason/ in effect 
 inserts in the act the word ' undue, ' which means 
 the same as 'unreasonable,' and thereby makes 
 Congress say what it did not say. . . . And what, 
 since the passage of the act, it has explicitly 
 refused to say. ... In short, the Court now, 
 by judicial legislation, in effect, amends an Act 
 of Congress relating to a subject over which 
 that department of the Government has exclusive 
 cognizance." ^ :i 
 
 The phenomenon which amazed Mr. Justice 
 Harlan is, I conceive, perfectly comprehensible, 
 if we reflect a little on the conflict of forces in- 
 volved, and on the path of least resistance open to 
 an American judge seeking to find for this conflict, 
 a resultant. The regulation or the domination of 
 monopoly was an issue going to the foundation of 
 society, and popular d,nd financial energy had 
 come into violent impact in regard to the control 
 of prices. Popular energy found vent through 
 
 1 United States v. American Tobacco Company, 221 U.S. 191, 
 .192. 
 
124 THE THEORY OF SOCIAL REVOLUTIONS 
 
 Congress, while the financiers, as financiers always 
 have and always will, took shelter behind the 
 courts. Congress, in 1890, passed a statute to con- 
 strain monopolies, against which financiers pro- 
 tested as being a species of confiscation, and which 
 the Chief Justice himself thought harsh. To this 
 statute the Supreme Court gave a harsh construc- 
 tion, as the Chief Justice had more than once 
 pointed out, when he was still an associate upon 
 the bench. From a series of these decisions an 
 appeal had been made to Congress, and the 
 Senate, in the report from which I have quoted, 
 had sustained the construction given to the 
 statute by the majority of his brethren with 
 whom the Chief Justice differed. Since the last 
 of these decisions, however, the complexion of the 
 bench had been considerably changed by new 
 appointments, much as it had been after Hep- 
 burn V. Griswold, and an opportunity seemed 
 to be presented to conciliate every one. 
 
 In any other country than the United States, 
 a chief justice so situated would doubtless have 
 affirmed the old precedents, permitting himself, at 
 most, to point out the mischief which, he thought, 
 they worked. Not so a lawyer nurtured under 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 125 , 
 
 the American constitutional system, which breeds 
 in the judge the conviction that he is superior 
 to the legislator. His instinct, under adequate 
 pressure, is always to overrule anything repug- 
 nant to him that a legitimate legislative assembly 
 may have done. In this instance, had the case 
 been one of first impression, nothing would have 
 been easier than to have nullified the Sherman Act 
 as an unreasonable exercise of the Police Power, 
 as judges had been nullifying statutes of which 
 they disapproved for a couple of generations 
 previously ; but the case was not one of first im- 
 pression. On the contrary, the constitutionality 
 of the Sherman Act had been so often upheld 
 by the judiciary that the Chief Justice himself 
 admitted that so long as Congress allowed him 
 to use his reason, these "contentions [were] 
 plainly foreclosed." Therefore, for him the path 
 * of least resistance was to use his reason, and, as a 
 magistrate, to amend a statute which Congress 
 ought to have amended, but had unreasonably 
 omitted to amend. Such was the final and logical 
 result of the blending of judicial and legislative 
 functions in a court, as they are blended under the 
 American constitutional system. 
 
126 THE THEORY OF SOCIAL REVOLUTIONS 
 
 Nor is it unworthy of remark that the Chief 
 Justice, in abstaining from questioning the con- 
 stitutionahty of the act, expressly intimated that 
 he did so because, by the use of his reason, he 
 could make that reasonable and constitutional 
 which otherwise might be unreasonable and 
 unconstitutional. The defendants pressed the 
 argument that destroying the freedom of contract, 
 as the Sherman Law destroyed it, was to infringe 
 upon the "constitutional guaranty of due process 
 of law." To this the Chief Justice rejoined : "But 
 the ultimate foundation of all these arguments 
 is the assumption that reason may not be resorted 
 to in interpreting and applying the statute. . . . 
 As the premise is demonstrated to be unsound by 
 the construction we haye given the statute," 
 these arguments need no further notice.^ 
 
 Should Congress amend the Sherman Act, as 
 it seems somewhat disposed to do, by explicitly 
 enacting the rule of the Trans-Missouri Case, 
 a grave issue would be presented. The Chief 
 Justice might submit, and thus avert, temporarily 
 at least, a clash ; or, he might hold such an amend- 
 ment unconstitutional as denying to the Court 
 
 ^ 221 U.S. 69. 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 127 
 
 the right to administer the law according to due 
 process. A trial of strength would then be 
 imminent. 
 
 Nearly a century ago, Jefferson wrote to Spencer 
 Roane, "The Constitution, on this hypothesis, is a 
 mere thing of wax in the hands of the judiciary, 
 which they may twist and shape into any form 
 they please." ^ And however much we may re- 
 coil from admitting Jefferson's conclusion to be 
 true, it none the less remains the fact that it has 
 proved itself to be true, and that the people 
 have recognized it to be true, and have taken 
 measures to protect themselves by bringing the 
 judiciary under the same degree of control which 
 they enforce on other legislators. The pro- 
 gression has been steady and uniform, each 
 advance toward an assumption of the legis- 
 lative function by the judiciary having been 
 counterbalanced by a corresponding extension 
 of authority over the courts by the people. 
 First came the protest against Marbury and Madi- 
 son in the impeachment of Chase, because, as Giles 
 explained, if judges were to annul laws, the domi- 
 nant party must have on the bench judges they 
 
 ^ To Spencer Roane, Sept. 6, 1819, Ford, 10, 141. 
 
128 THE THEORY OF SOCIAL REVOLUTIONS 
 
 could trust. Next the Supreme Court of New 
 York imagined the theory of the PoHce Power, 
 which was adopted by the Supreme Court of the 
 United States in 1837. But it stood to reason that 
 if judges were to suspend constitutional limitations 
 according to their notions of reasonableness, the 
 people must have the means of securing judges 
 whose views touching reasonableness coincided 
 with their own. And behold, within ten years, 
 by the constitution of 1846, New York adopted 
 an elective judiciary. 
 
 Then followed the Dred Scott Case, the Civil 
 War, and the attack on legislative authority in 
 Hepburn v. Griswold. Straightway the Court 
 received an admonition which it remembered for 
 a generation. Somewhat forgetful of this, on 
 May 15, 191 1, Chief Justice White gave his opinion 
 in the Standard Oil Case, which followed hard 
 upon a number of state decisions intended to 
 override legislation upon several burning social 
 issues. Forthwith, in 191 2, the proposition to 
 submit aU decisions involving a question of con- 
 stitutional law to a popular vote became an issue 
 in a presidential election. Only one step farther 
 could be taken, and that we see being takei^ all 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 129 
 
 about US. Experience has shown, in New York 
 and elsewhere, that an election, even for a some- 
 what short term, does not bring the judge so 
 immediately under popular control that decisions 
 objectionable to the majority may not be made. 
 Hence the recall. The degradation of the judicial 
 function can, in theory at least, go no farther. 
 Thus the state courts may be said already to be 
 prostrate, or likely shortly to become prostrate. 
 The United States courts alone remain, and, should 
 there be a struggle between them and Congress, 
 the result can hardly be doubted. An event has 
 recently occurred abroad which we may do well 
 to ponder. 
 
 Among European nations England has long 
 represented intelligent conservatism, and at the 
 heart of her conservatism lay the House of Lords. 
 Through many centuries and under many vicissi- 
 tudes this ancient chamber had performed func- 
 tions of the highest rAoment, until of late it had 
 come to occupy a position not dissimilar to that 
 which the Supreme Court of the United States 
 yet holds. On one side it was the highest legal 
 tribunal of the Empire, on the other it was a non- 
 representative assembly, seldom indeed originating 
 
130 THE THEORY OF SOCIAL REVOLUTIONS 
 
 important legislation, but enjoying an absolute 
 veto on legislation sent it from the Commons. 
 One day in a moment of heated controversy the 
 Lords vetoed a bill on which the Commons had 
 determined. A dissolution followed and the House 
 of Lords, as a political power, faded into a shadow; 
 yet, notwithstanding this, its preeminence as a court 
 has remained intact. Were a similar clash to 
 occur in America no such result could be antici- 
 pated. Supposing a President, supported by a 
 congressional majority, were to formulate some 
 policy no more subversive than that which has 
 been formulated by the present British Cabinet, 
 and this policy were to be resisted, as it surely 
 would be, by potent financial interests, the con- 
 flicting forces would converge upon the Supreme 
 Court. The courts are always believed to tend 
 toward conservatism, therefore they are generally 
 supported by the conservative interest, both here 
 and elsewhere. In this case a dilemma would be 
 presented. Either the judges would seek to give 
 expression to "preponderant" popular opinion, 
 or they would legislate. In the one event they 
 would be worthless as a restraining influence. 
 In the other, I apprehend, a blow would fall similar 
 
AMERICAN COURTS AS LEGISLATIVE CHAMBERS 131 
 
 to the blow which fell upon the House of Lords, 
 only it would cut deeper. Shearing the House 
 of Lords of political power did not dislocate the 
 administration of English justice, because the 
 law lords are exclusively judges. They never 
 legislate. Therefore no one denounced them. 
 Not even the wildest radical demanded that their 
 tenure should be made elective, much less that 
 they should be subjected to the recall. With us an 
 entirely different problem would be presented for 
 solution. A tribunal, nominally judicial, would 
 throv/ itself across the path of the national move- 
 ro.ent. It would undertake to correct a disturb- 
 ance of the social equilibrium. But what a 
 shifting of the social equilibrium means, and 
 what follows upon tampering with it, is a subject 
 which demands a chapter by itself. 
 
CHAPTER IV 
 
 THE SOCIAL EQUILIBRIUM 
 
 I ASSUME it as self-evident that those who, at 
 '^' any given moment, are the strongest in any 
 ^ civihzation, will be those who are at once the 
 ruling class, those who own most property, and 
 / those who have most influence on legislation. 
 The weaker will fare hardly in proportion to their 
 weakness. Such is the order of nature. But, 
 since those are the strongest through whom nature 
 finds it, for the time being, easiest to vent her 
 energy, and as the whole universe is in ceaseless 
 change, it follows that the composition of ruling 
 \ classes is never constant, but shifts to correspond 
 with the shifting environment. When this move- 
 ment is so rapid that men cannot adapt themselves 
 to it, we call the phenomenon a revolution, and 
 ' it is with revolutions that I now have to do. 
 
 Nothing is more certain than that the intellec- 
 tual adaptability of the individual man is very 
 limited. A ruling class is seldom conscious of its 
 
 132 
 
THE SOCIAL EQUILIBRIUM 153 
 
 own decay, and most of the worst catastrophes of 
 history have been caused by an obstinate resist- 
 ance to change when resistance was no longer 
 possible. Thus while an incessant alteration in 
 social equilibrium is inevitable, a revolution is a 
 problem in dynamics, on the correct solution of 
 which the fortunes of a declining class depend. 
 
 For example, the modem English landlords 
 replaced the military feudal aristocracy during 
 the sixteenth century, because the landlords had 
 more economic capacity and less credulity. The 
 men who supplanted the mediaeval soldiers in 
 Great Britain had no scruple about robbing the 
 clergy of their land, and because of this quality 
 they prospered greatly. Ultimately the landlords 
 reached high fortune by controlling the boroughs 
 which had, in the Middle Ages, acquired the right 
 to return members to the House of Commons. 
 Their domination lasted long ; nevertheless, about 
 1760, the rising tide of the Industrial Revolution 
 brought forward another type of mind. Flushed 
 by success in the Napoleonic wars the Tories 
 failed to appreciate that the social equilibrium, 
 by the year 1830, had shifted, and that they no 
 longer commanded enough physical force to 
 
134 THE THEORY OF SOCIAL REVOLUTIONS 
 
 maintain their parliamentary ascendancy. They 
 thought they had only to be arrogant to prevail, 
 and so they put forward the Duke of Wellington 
 as their champion. They could hardly have made 
 a poorer choice. As Disraeli has very truly said, 
 "His Grace precipitated a revolution which 
 might have been delayed for half a century, and 
 need never have occurred in so aggravated a 
 form." The Duke, though a great general, 
 lacked knowledge of England. He began by dis- 
 missing William Huskisson from his Cabinet, 
 who was not only its ablest member, but perhaps 
 the single man among the Tories who thoroughly 
 comprehended the industrial age. Huskisson's 
 issue was that the franchise of the intolerably 
 corrupt East Retford should be given to Leeds 
 or Manchester. Having got rid of Huskisson, 
 the Duke declared imperiously that he would 
 concede nothing to the disfranchised industrial 
 magnates, nor to the vast cities in which they 
 lived. A dissolution of Parliament followed and 
 in the election the Tories were defeated. Al- 
 though Wellington may not have been a sagacious 
 statesman, he was a capable soldier and he knew 
 when he could and when he could not physically 
 
THE SOCIAL EQUILIBRIUM 135 
 
 fight. On this occasion, to again quote Disraeli, 
 "He rather fled than retired." He induced his 
 friends to absent themselves from the House of 
 Lords and permit the Reform Bill to become law. 
 Thus the English Tories, by their experiment 
 with the Duke of Wellington, lost their boroughs 
 and with them their political preeminence, but at 
 least they saved themselves, their families, and the 
 rest of their property. As a class they have sur- 
 vived to this day, although shorn of much of the 
 influence which they might very probably have 
 retained had they solved more correctly the prob- 
 lem of 1830. In sum, they were not altogether 
 impervious to the exigencies of their environment. 
 The French Revolution is the classic example of 
 the annihilation of a rigid organism, and it is 
 an example the more worthy of our attention as 
 it throws into terrible relief the process by which 
 an intellectually inflexible race may convert 
 the courts of law which should protect their 
 dechne into the most awful engine for their 
 destruction. 
 
 The essence of feudalism was a gradation of 
 rank, in the nature of caste, based upon fear. The 
 clergy were privileged because the laity believed 
 
136 THE THEORY OF SOCIAL REVOLUTIONS 
 
 that they could work miracles, and could dispense 
 something more vital even than life and death. 
 The nobility were privileged because they were 
 resistless in war. Therefore, the nobility could 
 impose all sorts of burdens upon those who were 
 unarmed. During the interval in which society 
 centralized and acquired more and more a modern 
 economic form, the discrepancies in status re- 
 mained, while commensurately the physical or 
 imaginative force which had once sustained 
 inequality declined, until the social equilibrium 
 grew to be extremely unstable. Add to this that 
 France, under the monarchy, was ill consolidated. 
 The provinces and towns retained the adminis- 
 trative complexity of an archaic age, even to local 
 tariffs. Thus under the monarchy privilege and 
 inequality pervaded every phase of life, and, as 
 the judiciary must be, more or less, the mouth- 
 piece of society, the judiciary came to be the 
 incarnation of caste. 
 
 Speaking broadly, the judicial ofhce, under the 
 monarchy, was vendible. In legal language, it 
 was an incorporeal hereditament. It could be 
 bought and sold and inherited like an advowson, 
 or right to dispose of a cure of souls in the English 
 
THE SOCIAL EQUILIBRIUM 137 
 
 Church, or of a commission in the English army. 
 The system was well recognized and widespread 
 in the eighteenth century, and worked fairly well 
 with the French judiciary for about three hundred 
 years, but it was not adapted to an industrial 
 environment. The judicial career came to be 
 pretty strongly hereditary in a few families, and 
 though the members of these families were, on the 
 whole, self-respecting, honest, and learned, they 
 held office in their own right and not as a public 
 trust. So in England members of the House of 
 Commons, who sat for nomination boroughs, 
 did not, either in fact or theory, represent the in- 
 habitants of those boroughs, but patrons ; and in 
 like manner French judges could never learn to 
 regard themselves as the trustees of the civil 
 rights of a nation, but as a component part of a 
 class who held a status by private title. Looked 
 at as a problem in dynamics the inherent vice 
 in all this kind of property and in all this adminis- 
 trative system, was the decay, after 1760, of the 
 physical force which had engendered it and de- 
 fended it. As in England the ascendancy of the 
 landlords passed away when England turned 
 from an agricultural into an industrial society, 
 
138 THE THEORY OF SOCIAL REVOLUTIONS 
 
 SO in France priests and nobles fell into contempt, 
 when most peasants knew that the Church could 
 neither harm by its curse nor aid by its blessing, 
 and when commissions in the army were given 
 to children or favorites, as a sort of pension, while 
 the pith of the nation was excluded from military 
 command because it could not prove four quarter- 
 ings of nobility. Hardly an aristocrat in France 
 had shown military talent for a generation, while, 
 when the revolution began, men like Jourdan and 
 Kleber, Ney and Augereau, and a host of other 
 future marshals and generals had been dismissed 
 from the army, or were eating out their hearts 
 as petty officers with no hope of advancement. 
 Local privileges and inequalities were as intolerable 
 as personal. There were privileged provinces 
 and those administered arbitrarily by the Crown, 
 there were a multiplicity of internal tariffs, and 
 endless municipal franchises and monopolies, 
 so much so that economists estimated that, 
 through artificial restraints, one-quarter of the 
 soil of France lay waste. Turgot, in his edict 
 on the grain trade, explained that kings in the 
 past by ordinance, or the police without royal 
 authority, had compiled a body "of legislation 
 
THE SOCIAL EQUILIBRIUM 139 
 
 equivalent to a prohibition of bringing grain 
 into Paris," and this condition was universal. 
 One province might be starving and another 
 oppressed with abundance. 
 
 Meanwhile, under the stimulant of applied 
 science, centralization went on resistlessly, and 
 the cost of administration is proportionate to 
 centralization. To bear the burden of a central- 
 ized government taxes must be equal and move- 
 ment free, but here was a rapidly centralizing 
 nation, the essence of whose organism was that 
 taxes should be unequal and that movement 
 should be restricted. 
 
 As the third quarter of the eighteenth century 
 closed with the death of Louis XV, all intelligent 
 French administrators recognized the dilemma; 
 either relief must be given, or France must be- 
 come insolvent, and revolution supervene upon 
 insolvency. But for the aristocracy revolution 
 had no terrors, for they believed that they could 
 crush revolution as their class had done for a 
 thousand years. 
 
 Robert Turgot was born in 1727, of a respectable 
 family. His father educated him for the Church, 
 but lack of faith caused him to prefer the magis- 
 
I40 
 
 THE THEORY OF SOCIAL REVOLUTIONS 
 
 tracy, and on the death of his father he obtained 
 a small place in the Court of Parliament. After- 
 ward he became a Master of Requests, and served 
 « for seven years in that judicial position, before 
 he was made Intendant of the Province of Limou- 
 sin. Even thus early in life Turgot showed politi- 
 cal sagacity. In an address at the Sorbonne he 
 supported the thesis that "well-timed reform 
 alone averts revolution." Distinguishing himself 
 ' as Intendant, on the death of Louis XV the King 
 called Turgot to the Council of State, and in 
 August, 1774, Turgot became Minister of Finance. ^ 
 He came in pledged to reform, and by January, 
 1776, he had formulated his plan. In that month 
 he presented to the King his memorable Six 
 Edicts, the first of which was the most celebrated 
 state paper he ever wrote. It was the Edict for 
 the Suppression of the Corvee. The corvee 
 threw the burden of maintaining the highways on 
 the peasantry by exacting forced labor. It was 
 admittedly the most hateful, the most burden- 
 some, and the most wasteful of all the bad taxes 
 of the time, and Turgot, following the precedent 
 of the Roman Empire, advised instead a general 
 highway impost. The proposed impost in itself 
 
THE SOCIAL EQUILIBRIUM I41 
 
 was not considerable, and would not have been 
 extraordinarily obnoxious to the privileged classes, 
 but for the principle of equality by which Turgot 
 justified it : "The expenses of government having 
 for their object the interests of all, all should 
 contribute to them; and the more advantages a 
 man has, the more that man should contribute." 
 
 Nor was this the most levelling of Turgot's 
 arguments. He pointed out that though origi- 
 nally the exemption from taxation, which the no- 
 bility enjoyed, might have been defended on the 
 ground that £he nobles were bound to yield mili- 
 tary service without pay, such service had long 
 ceased to be performed, while on the contrary 
 titles could be bought for money. Hence every 
 wealthy man became a noble when he pleased, 
 and thus exemption from taxation had come 
 to present the line of cleavage between the rich 
 and poor. By this thrust the privileged classes 
 felt themselves wounded in their vitals, and 
 the Parliament of Paris, the essence of privi- 
 lege, assumed their defence. To be binding, the 
 edicts had to be registered by the Parliament 
 among the laws of France, and Parliament de- 
 clined to make registration on the ground that 
 
142 THE THEORY OF SOCIAL REVOLUTIONS 
 
 the edicts were unconstitutional, as subversive 
 of the monarchy and of the principle of order. 
 The opinion of the court was long, but a single 
 paragraph gives its purport: "The first rule of 
 justice is to preserve to every one what belongs 
 to him: this rule consists, not only in preserv- 
 ing the rights of property, but still more in 
 preserving those belonging to the person, which 
 arise from the prerogative of birth and of posi- 
 tion. . . . From this rule of law and equity it 
 follows that every system which, under an 
 appearance of humanity and beneficence, would 
 tend to establish between men an equality of 
 duties, and to destroy necessary distinctions, 
 would soon lead to disorder (the inevitable re- 
 sult of equality), and would bring about the 
 overturn of civil society." 
 
 This judicial opinion was an enunciation of the 
 archaic law of caste as opposed to the modern 
 law of equality, and the cataclysm of the French 
 Revolution hinged upon the incapacity of the 
 French aristocracy to understand that the envi- 
 ronment, which had once made caste a necessity, 
 had yielded to another which made caste an im- 
 possibility. In vain Turgot and his contempora- 
 
THE SOCIAL EQUILIBRIUM 143 
 
 ries of the industrial t)^e, represented in England /^ 
 by Adam Smith or even by the younger Pitt, 
 explained that unless taxes were equalized and 
 movement accelerated, insolvency must supervene, 
 and that a violent readjustment must follow upon 
 insolvency. With their eyes open to the conse- 
 quences, the NobiHty and Clergy elected to risk 
 revolt, because they did not believe that revolt 
 could prevail against them. Nothing is so im- 
 pressive in the mighty convulsion which ensued 
 as the mental opacity of the privileged orders, 
 which caused them to increase their pressure in 
 proportion as resistance increased, until finally 
 those who were destined to replace them reorgan- 
 ized the courts, that they might have an instru- 
 ment wherewith to slaughter a whole race down 
 to the women and children. No less drastic 
 method would serve to temper the rigidity of the 
 aristocratic mind. The phenomenon well repays 
 an hour of study. 
 
 Insolvency came within a decade after Turgot's 
 fall, as Turgot had demonstrated that it must 
 come, and an insolvency immediately precipitated 
 by the rapacity of the court which had most need 
 of caution. The future Louis XVIII, for example, 
 
144 THE THEORY OF SOCIAL REVOLUTIONS 
 
 who was then known as the Comte de Provence, 
 on one occasion, when the government had made a 
 loan, appropriated a quarter of it, laughingly ob- 
 serving, "When I see others hold out their hands, 
 I hold out my hat." In 1787 the need for money 
 became imperative, and, not daring to appeal to 
 the nation, the King convoked an assembly of 
 "notables," that is to say of the privileged. 
 Calonne, the minister, proposed pretty much the 
 measures of Turgot, and some of these measures 
 the "notables" accepted, but the Parliament of 
 Paris again intervened and declined to register 
 the laws. The Provincial Parliaments followed 
 the Parliament of Paris. After this the King 
 had no alternative but to try the experiment of 
 calling the States- General. They met on May 4, 
 1789, and instantly an administrative system, 
 which no longer rested upon a social centre of 
 gravity, crumbled, carrying the judiciary with it. 
 At first the three estates sat separately. If this 
 usage had continued, the Clergy and the Nobles 
 combined would have annulled every measure 
 voted by the Commons. For six weeks the Com- 
 mons waited. Then on June 10, the Abbe Sieyes 
 said, "Let us cut the cable. It is time." So 
 
THE SOCIAL EQUILIBRroM 145 
 
 the Clergy and the NobiHty were summoned, and 
 some of the Clergy obeyed. This sufficed. On 
 motion of Sieyes, the Commons proclaimed them- 
 selves the National Assembly, and the orders 
 fused. Immediately caste admitted defeat and 
 through its mouthpiece, the King, commanded 
 the Assembly to dissolve. The Commons re- 
 fused to dissolve, and the Nobles prepared for a 
 coup d^etat. The foreign regiments, in the pay of 
 the government, were stationed about Paris, 
 while the Bastille, which was supposed to be im- 
 pregnable, was garrisoned with Swiss. In reply, 
 on July 14, 1789, the citizens of Paris stormed the 
 Bastille. An imstable social equilibrium had been 
 already converted by pressure into a revolution. 
 Nevertheless, excentric as the centre of gravity 
 had now become, it might have been measurably 
 readjusted had the privileged classes been able to 
 reason correctly from premise to conclusion. 
 Men like Lafayette and Mirabeau still controlled 
 the Assembly, and if the; King and the Nobility 
 had made terms, probably the monarchy might 
 have been saved, certainly the massacres would 
 have been averted. As a decaying class is apt 
 to do, the Nobility did that which was worst for 
 
146 THE THEORY OF SOCIAL REVOLUTIONS 
 
 themselves. Becoming at length partly conscious 
 of a lack of physical force in France to crush the 
 revolution, a portion of the nobility, led by the 
 Comte d'Artois, the future Charles X, fled to 
 Germany to seek for help abroad, while the bolder 
 remained to plan an attack on the rebellion. 
 On October i, 1789, a great military banquet was 
 given at Versailles. The King and Queen with 
 the Dauphin were present. A royahst demonstra- 
 tion began. The bugles sounded a charge, the 
 officers drew their swords, and the ladies of the 
 court tore the tri-color from the soldiers' coats 
 and replaced it with the white cockade. On Octo- 
 ber 5, a vast multitude poured out of Paris, and 
 marched to Versailles. The next day they broke 
 into the palace, killed the guards, and carried 
 the King and Queen captive to the Tuileries. But 
 Louis was so intellectually limited that he could 
 not keep faith with those who wished him well. 
 On July 14, 1790, the King swore, before half a 
 million spectators, to maintain the new constitu- 
 tion. In that summer he was plotting to escape 
 to Metz and join the army which had been 
 collected there under the Marquis de Bouille, 
 while Bouille himself, after the rising at Nancy, 
 
THE SOCIAL EQUILIBRIUM 147 
 
 was busy in improving discipline by breaking on 
 the wheel a selection of the soldiers of the Swiss 
 regiment of Chateauvieux which had refused to 
 march against Paris on the 14th of July, 1789. 
 In October, 1790, Louis wrote to the King of 
 Spain and other sovereigns to pay no heed to his 
 concessions for he only yielded to duress, and all 
 this even as Mirabeau made his supreme ejffort 
 to save those who were fixed upon destroying 
 themselves. Mirabeau sought the King and of- 
 fered his services. The court sneered at him as 
 a dupe. The Queen wrote, "We make use of 
 Mirabeau, but we do not take him seriously." 
 When Mirabeau awoke to his predicament, he 
 broke out in mixed wrath and scorn: "Of what 
 are these people thinking? Do they not see the 
 abyss yawning at their feet ? Both the King and 
 Queen will perish, and you will live to see the 
 rabble spurn their corpses." 
 
 The King and Queen, the Nobility and Clergy, 
 could not see the abyss which Mirabeau saw, any 
 more than the lawyers could see it, because of the 
 temper of their minds. In the eye of caste 
 Europe was not primarily divided into nations to 
 whom allegiance was due, but into superimposed 
 
148 THE THEORY OF SOCIAL REVOLUTIONS 
 
 orders. He who betrayed his order committed 
 [the unpardonable crime. Death were better 
 than that. But to the true aristocrat it was in- 
 conceivable that serfs could ever vanquish nobles 
 in battle. Battle must be the final test, and the 
 whole aristocracy of Europe was certain, French- 
 men knew, to succor the French aristocracy in 
 distress. 
 
 So in the winter of 1790 the French fugitives 
 congregated at Coblentz on the German frontier, 
 persuaded that they were performing a patriotic 
 duty in organizing an invasion of their country 
 even should their onset be fatal to their relatives 
 and to their King. And Louis doubted not that 
 he also did his duty as a trustee of a divine com- 
 mission when he in one month swore, before the 
 Assembly, to maintain the constitution tendered 
 him, and in the next authorized his brother, the 
 Comte d'Artois, to make the best combination 
 he could among his brother sovereigns for the 
 gathering of an army to assert his divine prerog- 
 ative. On June 21, 1791, Louis fled, with his 
 whole family, to join the army of Bouille, with 
 intent to destroy the entire race of traitors from 
 Mirabeau and Lafayette down to the peasants. 
 
THE SOCIAL EQUILIBRIUM 149 
 
 He managed so ill that he was arrested at 
 Varennes, and brought back whence he came, but 
 he lied and plotted still. 
 
 Two years had elapsed between the meeting 
 of the States-General and the flight to Varennes, 
 and in that interval nature had been busy in 
 selecting her new favored class. Economists 
 have estimated that the Church owned one-third 
 of the land of Europe during the Middle Ages. 
 However this may have been she certainly held 
 a very large part of France. On April 16, 1790, 
 the Assembly declared this territory to be national 
 property, and proceeded to sell it to the peasantry 
 by means of the paper assignats which were issued 
 for the purpose, and were supposed to be secured 
 upon the land. The sales were generally made 
 in little lots, as the sales were made of the public 
 domain in Rome under the Licinian Laws, and 
 with an identical effect. The Emperor of Ger- 
 many and the Kjng of Prussia met at Pilnitzin 
 August, 1 791, to consider the conquest of France, 
 and, on the eve of that meeting, the Assembly 
 received a report which stated that these lands to 
 the value of a thousand million francs had already 
 been distributed, and that sales were going on. 
 
150 THE THEORY OF SOCIAL REVOLUTIONS 
 
 It was from this breed of liberated husbandmen 
 that France drew the soldiers who fought her 
 battles and won her victories for the next five 
 and twenty years. 
 
 Assuming that the type of the small French 
 landholder, both rural and urban, had been pretty 
 well developed by the autumn of 1791, the crisis 
 came rapidly, for the confiscations which created 
 this new energy roused to frenzy, perhaps the most 
 formidable energy which opposed it. The Church 
 had not only been robbed of her property but had 
 been wounded in her tenderest part. By a de- 
 cree of June 12, 1790, the Assembly transferred 
 the allegiance of the French clergy from the Pope 
 to the state, and the priesthood everywhere vowed 
 revenge. In May, 1791, the Marquis de la 
 Rouerie, it is true, journeyed from his home in 
 Brittany to Germany to obtain the recognition 
 of the royal princes for the insurrection which 
 he contemplated in La Vendee, but the insurrec- 
 tion when it occurred was not due so much to 
 him or his kind as to the influence of the non- 
 juring priests upon the peasant women of the 
 West. 
 
 The mental condition of the French emigrants 
 
THE SOCIAL EQUILIBRIUM 151 
 
 at Coblentz during this summer of 1791 is nothing 
 short of a psychological marvel. They regarded 
 the Revolution as a jest, and the flight to the Rhine 
 as a picnic. These beggared aristocrats, male 
 and female, would throw their money away by 
 day among the wondering natives, and gamble 
 among themselves at night. If they ever thought 
 of the future it was only as the patricians in Pom- 
 pey's camp thought; who had no time to prepare 
 for a campaign against Caesar, because they were 
 absorbed in distributing offices among themselves, 
 or in inventing torments to inflict on the rebels. 
 Their chief anxiety was lest the resistance should 
 be too feeble to permit them to glut themselves 
 with blood. The creatures of caste, the emigrants 
 could not conceive of man as a variable animal, 
 or of the birth of a race of warriors under their 
 eyes. To them human nature remained con- 
 stant. Such, they believed, was the immutable 
 will of God. 
 
 So it came to pass that, as the Revolution took 
 its shape, a vast combination among the antique 
 species came semi-automatically into existence, 
 pledged to envelop and strangle the rising type 
 of man, a combination, however, which only 
 
152 THE THEORY OF SOCIAL REVOLUTIONS 
 
 attained to maturity in 1793, after the execution 
 of the King. Leopold II, Emperor of Germany, 
 had hitherto been the chief restraining influence, 
 both at Pihiitz and at Paris, through his corre- 
 spondence with his sister, Marie Antoinette; but 
 Leopold died on March i, 1792, and was suc- 
 ceeded by Francis II, a fervid reactionist and an 
 obedient son of the Church. Then caste fused 
 throughout Germany, and Prussia and Austria 
 prepared for war. Rouerie had returned to Brit- 
 tany and only awaited the first decisive foreign 
 success to stab the Revolution in the back. Eng- 
 land also was ripening, and the instinct of caste, 
 incarnated in George III, found its expression 
 through Edmund Burke. In 1790 Burke pub- 
 lished his "Reflections," and on May 6, 1791, in a 
 passionate outbreak in the House of Commons, 
 he renounced his friendship with Fox as a traitor 
 to his order and his God. Men of Burke's tem- 
 perament appreciated intuitively that there could 
 be no peace between the rising civilization and the 
 old, one of the two must destroy the other, and 
 very few of them conceived it to be possible that 
 the enfranchised French peasantry and the small 
 bourgeoisie could endure the shock of all that, in 
 
THE SOCIAL EQUILIBRIUM 153 
 
 their eyes, was intelligent, sacred, and martial in 
 the.. world. 
 
 Indeed, aristocracy had, perhaps, some justifica- 
 tion for arrogance, since the revolt in France fell 
 to its lowest depth of impotence between the 
 meeting at Pilnitz in August, 1791, and the reor- 
 ganization of the Committee of Public Safety in 
 July, 1793. Until August, 1792, the executive 
 authority remained with the King, but the court 
 of Louis was the focus of resistance to the Revolu- 
 tion, and even though a quasi-prisoner the King 
 was still strong. Monarchy had a firm hold on 
 liberal nobles like Mirabeau and Lafayette, on 
 adventurers hke Dumouriez, and even on lawyers 
 like Danton who shrank from excessive cruelty. 
 Had the pure Royalists been capable of enough 
 intellectual flexibility to keep faith upon any 
 reasonable basis of compromise, even as late as 
 1792, the Revolution might have been benign. 
 In. June, 1792, Lafayette, who commanded the 
 army of the North, came to Paris and not only 
 ventured to lecture the Assembly on its duty, but 
 offered to take Louis to his army, who would pro- 
 tect him against the Jacobins. The court laughed 
 at Lafayette as a Don Quixote, and betrayed his 
 
154 THE THEORY OF SOCIAL REVOLUTIONS 
 
 plans to the enemy. "I had rather perish," said 
 the Queen, "than be saved by M. de Lafayette 
 and his constitutional friends." And in this she 
 only expressed the conviction which the caste to 
 which she belonged held of their duty. Cazales 
 protested to the Assembly, "Though the King 
 perish, let us save the kingdom." The Arch- 
 duchess Christina wrote to her sister, Marie An- 
 toinette, "What though he be slain, if we shall 
 triumph," and Conde, in December, 1790, swore 
 that he would march on Lyons, "come what might 
 to the King." 
 
 France was permeated with archaic thought 
 which disorganized the emerging society until it 
 seemingly had no cohesion. To the French emi- 
 grant on the Rhine that society appeared like a 
 vile phantom which had but to be exorcised to 
 vanish. And the exorcism to which he had re- 
 course was threats of vengeance, threats which 
 before had terrified, because they had behind 
 them a force which made them good. Torture 
 had been an integral part of the old law. The 
 peasant expected it were he insubordinate. Death 
 alone was held to be too little to inspire respect 
 for caste. Some frightful spectacle was usually 
 
THE SOCIAL EQUILIBRIUM 155 
 
 provided to magnify authority. Thus Bouille 
 broke on the wheel, while the men were yet alive, 
 every bone in the bodies of his soldiers when they 
 disobeyed him ; and for scratching Louis XV, with 
 a knife, Damiens, after indescribable agonies, was 
 torn asunder by horses in Paris, before an im- 
 mense multitude. The French emigrants believed 
 that they had only to threaten with a similar fate 
 men like Kellermann and Hoche to make them 
 flee without a blow. What chiefly concerned 
 the nobles, therefore, was not to evolve a masterly 
 campaign, but to propound the fundamental prin- 
 ciples of monarchy, and to denoimce an awful 
 retribution on insurgents. 
 
 By the middle of July, 1792, the Prussians were 
 ready to march, and emperors, kings, and generals 
 were meditating manifestoes. Louis sent the 
 joumahst Mallet du Pan to the Duke of Bruns- 
 wick, the commander-in-chief, to assist him in his 
 task. On July 24, and on August 4, 1792, the 
 King of Prussia laid down the law of caste as em- 
 phatically as had the Parliament of Paris some 
 twenty years before. On July 25, the Duke of 
 Brimswick pronounced the doom of the conquered. 
 I come, said the King of Prussia, to prevent 
 
156 THE THEORY OF SOCIAL REVOLUTIONS 
 
 the incurable evils which will result to France, to 
 Europe and to all mankind from the spread of 
 the spirit of insubordination, and to this end I 
 shall estabhsh the monarchical power upon a 
 stable basis. For, he continued in the later 
 proclamation, "the supreme authority in France 
 being never ceasing and indivisible, the King could 
 neither be deprived nor voluntarily divest himself 
 of any of the prerogatives of royalty, because he 
 is obliged to transmit them entire with his own 
 crown to his successors." 
 
 The Duke of Brunswick's proclamation con- 
 tained some clauses written expressly for him by 
 Mallet du Pan, and by Limon the Royalist. 
 
 If the Palace of the Tuileries be forced, if the 
 least violence be offered to their Majesties, if 
 they are not immediately set at liberty, then will 
 the King of Prussia and the Emperor of Germany 
 inflict " on those who shall deserve it the most 
 exemplary and ever-memorable avenging punish- 
 ments." 
 
 These proclamations reached Paris on July 28, 
 and simultaneously the notorious Fersen wrote 
 the Queen of France, "You have the manifesto, 
 and you should be content." 
 
THE SOCIAL EQUILIBRIUM 1 57 
 
 The court actually believed that, having in- 
 sulted and betrayed Lafayette and all that body 
 of conservative opinion which might have steadied 
 the social equilibrium, they could rely on the 
 fidelity of regiments filled with men against 
 whom the emigrants and their alHes, the Prussians, 
 had just denounced an agonizing death, such as 
 Bouille's soldiers had undergone, together with the 
 destruction of their homes. 
 
 All the world knows what followed. The 
 Royalists had been gathering a garrison for the 
 Tuileries ever since Lafayette's visit, in anticipa- 
 tion of a trial of strength with the Revolutionists. 
 They had brought thither the Swiss guard, fifteen 
 hundred strong; the palace was full of Royalist 
 gentlemen; Mandat, who commanded the Na- 
 tional Guard, had been gained over. The ap- 
 proaches were swept by artillery. The court was 
 very confident. On the night of August 9, Mandat 
 was murdered, an insurrectional committee seized 
 the City Hall, and when Louis XVI came forth 
 to review the troops on the morning of the loth 
 of August, they shouted, "Vive la Nation" and 
 deserted. Then the assault came, the Swiss guard 
 was massacred, the Assembly thrust aside, and 
 
158 THE THEORY OF SOCIAL REVOLUTIONS 
 
 the royal family were seized and conveyed to the 
 Temple. There the monarchy ended. Thus far 
 had the irrational opposition of a moribund type 
 thrown into excentricity the social equilibrium 
 of a naturally conservative people. They were 
 destined to drive it still farther. 
 
 In this supreme moment, while the Prussians 
 were advancing, France had no stable government 
 and very imperfect means of keeping order. All 
 the fighting men she could muster had marched 
 to the frontier, and, even so, only a demoralized 
 mass of levies, imder Dumouriez and Kellermann, 
 lay between the most redoutable regiments of the 
 world and Paris. The emigrants and the Germans 
 thought the invasion but a military promenade. 
 At home treason to the government hardly cared 
 to hide itself. During much of August the streets 
 of Paris swarmed with Royalists who cursed the 
 Revolution, and with priests more bitter than the 
 Royalists. Under the windows of Louis, as he lay 
 in the Temple, there were cries of "Long live the 
 King," and in the prisons themselves the nobles 
 drank to the allies and corresponded with the 
 Prussians. Finally, Roland, who was minister, 
 so far lost courage that he proposed to withdraw 
 
THE SOCIAL EQUILIBRIUM 159 
 
 beyond the Loire, but Danton would hear of no 
 retreat. "De I'audace," he cried, "encore de 
 I'audace, et toujours de I'audace." 
 
 The Assembly had not been responsible for the 
 assault on the Tuileries on August 10, 1792. 
 Filled with conservatives, it lacked the energy. 
 That movement had been the work of a knot of 
 radicals which had its centre in Danton's Club of 
 the Cordeliers. Under their impulsion the sec- 
 tions of Paris chose commissioners who should 
 take possession of the City Hall and eject the 
 loyalist Council. They did so, and thus Danton 
 became for a season the Minister of Justice and 
 the foremost man in France. Danton was a semi- 
 conservative. His tenure of power was the last 
 possibility of averting the Terror. The Royalists, 
 whom he trusted, themselves betrayed him, and 
 Danton fell, to be succeeded by Robespierre and 
 his political criminal courts. Meanwhile, on 
 September 20, 1792, the Prussian column recoiled 
 before the fire of Kellermann's mob of "vagabonds, 
 cobblers and tailors," on the slope of Valmy, 
 and with the victory of Valmy, the great eigh- 
 teenth-century readjustment of the social equi- 
 librium of Europe passed into its secondary stage. 
 
CHAPTER V 
 
 POLITICAL COURTS 
 
 In the eye of philosophy, perhaps the most 
 alluring and yet illusive of all the phenomena 
 presented by civilization is that which we have 
 been considering. Why should a type of mind 
 which has developed the highest prescience when 
 advancing along the curve which has led it to 
 ascendancy, be stricken with fatuity when the 
 summit of the curve is passed, and when a mis- 
 calculation touching the velocity of the descent 
 must be destruction? 
 
 Although this phenomenon has appeared pretty 
 regularly, at certain intervals, in the development 
 of every modern nation, I conceive its most 
 illuminating example to be that intellectual limi- 
 tation of caste which, during the French Revolu- 
 tion, led to the creation of those political criminal 
 tribunals which reached perfection with Robes- 
 pierre. 
 
 When coolly examined, at the distance of a 
 1 60 
 
POLITICAL COURTS l6l 
 
 century, the Royalist combination for the sup- 
 pression of equality before the law, as finally 
 evolved in 1792, did not so much lack military 
 intelligence, as it lacked any approximate compre- 
 hension of the modern mind. The Royalists 
 proposed to reestablish privilege, and to do this 
 they were ready to immolate, if necessary, their 
 King and Queen, and ail of their own order who 
 stayed at home to defend them. Indeed, speak- 
 ing generally, they valued Louis XVI, living, 
 cheaply enough, counting him a more considerable 
 asset if dead. "What a noise it would make 
 throughout Europe," they whispered among them- 
 selves, "if the rabble should kill the King." 
 
 Nor did Marie Antoinette delude herself on 
 this score. At Pilnitz, in 1791, the German 
 potentates issued a declaration touching France 
 which was too moderate to suit the emigrants, 
 who published upon it a commentary of their own. 
 This commentary was so revolting that when the 
 Queen read her brother-in-law's signature ap- 
 pended to it, she exclaimed — " Cain." 
 
 The Royalist plan of campaign was this : They 
 reckoned the energy of the Revolution so low that 
 they counted pretty confidently, in the summer 
 
l62 THE THEORY OF SOCIAL REVOLUTIONS 
 
 of 1792, on the ability of their party to defend the 
 Tuileries against any force which could be brought 
 against it; but assuming that the Tuileries could 
 not be defended, and that the King and Queen 
 should be massacred, they believed that their 
 own position would be improved. Their monar- 
 chical allies would be thereby violently stimulated. 
 It was determined, therefore, that, regardless of 
 consequences to their friends, the invading army 
 should cross the border into Lorraine and, march- 
 ing by way of Sierk and Rodemach, occupy 
 Chalons. Their entry into Chalons, which they 
 were confident could not be held against them, 
 because of the feeling throughout the country, 
 was to be the signal for the rising in Vendee and 
 Brittany which should sweep down upon Paris 
 from the rear and make the capital untenable. 
 At Chalons the allies would be but ninety 
 miles from Paris, and then nothing would remain 
 but vengeance, and vengeance the more complete 
 the greater the crime had been. 
 
 All went well with them up to Valmy. The 
 German advance on August 11, 1792, reached 
 Rodemach, and on August 19, the bulk of the 
 Prussian army crossed the frontier at Redagne. 
 
POLITICAL COURTS 163 
 
 On August 20, 1792, Longwy was invested and 
 in three days capitulated. In the camp of the 
 Comte d'Artois "there was not one of us," wrote 
 Las Casas, "who did not see himself, in a fort- 
 night, triumphant, in his own home, surrounded 
 by his humbled and submissive vassals." At 
 length from their bivouacs at Saint-Remy and at 
 Suippes the nobles saw in the distance the towers 
 of Chalons. 
 
 The panic at Chalons was so great that orders 
 were given to cut the bridge across the Marne, 
 but it was not until about September 2, that the 
 whole peril was understood at Paris. It is true 
 that for several weeks the government had been 
 aware that the West was agitated and that 
 Rouerie was probably conspiring among the 
 Royalists and nonjuring priests, but they did not 
 appreciate the imminence of the danger. On 
 September 3, at latest, Danton certainly heard 
 the details of the plot from a spy, and it was 
 then, while others quailed, that he incited 
 Paris to audacity. This was Danton's culmina- 
 tion. 
 
 As we look back, the weakness of the Germans 
 seems to have been psychological rather than 
 
l64 THE THEORY OF SOCIAL REVOLUTIONS 
 
 physical. At Valmy the numbers engaged were 
 not unequal, and while the French were, for the 
 most part, raw and ill-compacted levies, with few 
 trained officers, the German regiments were those 
 renowned battalions of Frederick the Great whose 
 onset, during the Seven Years' War, no adversary 
 had been able to endure. Yet these redoubtable 
 Prussians fell back in confusion without having 
 seriously tried the French position, and their 
 officers, apparently, did not venture to call upon 
 them to charge again. In vain the French gentle- 
 men implored the Prussian King to support them 
 if they alone should storm Kellermann's batteries. 
 Under the advice of the Duke of Brunswick the 
 King decided on retreat. It is said that the Duke 
 had as little heart in the war as Charles Fox, or, 
 possibly, Pitt, or as his own troops. And yet 
 he was so strong that Dumouriez, after his victory, 
 hung back and offered the invaders free passage 
 lest the Germans, if aroused, should turn on him 
 and fight their way to the Marne. 
 
 To the emigrants the retreat was terrible. It 
 was a disaster from which, as a compact power, 
 they never recovered. The rising in Vendee tem- 
 porarily collapsed with the check at Chalons, 
 
POLITICAL COURTS 165 
 
 and they were left literally naked unto their 
 enemy. Some of them returned to their homes,, 
 preferring the guillotine to starvation, others, 
 disguised in peasants' blouses, tried to reach 
 Rouerie in La Vendee, some died from hardship, 
 some committed suicide, while the bulk regained 
 Liege and there waited as suppliants for assist- 
 ance from Vienna. But these unfortunate men, 
 who had entered so gayly upon a conflict whose 
 significance they could not comprehend, had by 
 this time lost more than lands and castles. Many 
 of them had lost wives and children in one of 
 the most frightful butcheries of history, and a 
 butchery for which they themselves were respon- 
 sible, because it was the inevitable and logical 
 effect of their own intellectual limitations. 
 
 When, after the affair of August 10, Danton 
 and his party became masters of the incipient 
 republic, Paris lay between two perils whose rela- 
 tive magnitude no one could measure. If Chalons 
 fell. Vendee would rise, and the Republicans of 
 the West would be massacred. Five months later 
 Vendee did rise, and at Machecoul the patriots 
 were slaughtered amidst nameless atrocities, 
 largely at the instigation of the priests. In 
 
1 66 THE THEORY OF SOCIAL REVOLUTIONS 
 
 March, 1793, one hundred thousand peasants 
 were under arms. 
 
 Clearly the West could not be denuded of 
 troops, and yet, if Chalons were to be made good, 
 every available man had to be hurried to Keller- 
 mann, and this gigantic effort fell to the lot of a 
 body of young and inexperienced adventurers 
 who formed what could hardly be dignified with 
 the name of an organized administration. 
 
 For a long time Marat, with whom Danton 
 had been obliged to coalesce, had been insisting 
 that, if the enemy were to be resisted on the 
 frontier, Paris must first be purged, for Paris 
 swarmed with Royalists wild for revenge, and 
 who were known to be arming. Danton was not 
 yet prepared for extermination. He instituted 
 domiciliary visits. He made about three thou- 
 sand arrests and seized a quantity of muskets, 
 but he liberated most of those who were under 
 suspicion. The crisis only came with the news, 
 on September 2, of the investment of Verdun, 
 when no one longer could doubt that the net 
 was closing about Paris. Verdun was but three 
 or four days' march from Chalons. When the 
 Duke of Brunswick crossed the Marne and 
 
POLITICAL COURTS 167 
 
 Brittany revolted, the government would have 
 to flee, as Roland proposed, and then the Royalists 
 would burst the gates of the prisons and there 
 would be another Saint Bartholomew. 
 
 Toward four o'clock in the afternoon of Sep- 
 tember 2, 1792, the prison of the Abbaye was 
 forced and the massacres began. They lasted 
 until September 6, and through a circular sent 
 out by Marat they were extended to Lyons, to 
 Reims, and to other cities. About 1600 prisoners 
 were murdered in Paris alone. Hardly any one 
 has ever defended those slaughters. Even Marat 
 called them "disastrous," and yet no one inter- 
 fered. Neither Danton, nor Roland, nor the 
 Assembly, nor the National Guard, nor the City 
 of Paris, although the two or three hundred 
 rufhans who did the work could have been dis- 
 persed by a single company of resolute men, had 
 society so willed it. When Robespierre's time 
 came he fell almost automatically. Though the 
 head of the despotic "Committee of Public 
 Safety," and nominally the most powerful man 
 in France, he was sent to execution like the vilest 
 and most contemptible of criminals by adver- 
 saries who would not command a regiment. 
 
1 68 THE THEORY OF SOCL\L REVOLUTIONS 
 
 The inference is that the September massacres, 
 which have ever since been stigmatized as the 
 deepest stain upon the Revolution, were, veri- 
 tably, due to the Royalists, who made with the 
 Republicans an issue of self-preservation. For 
 this was no common war. In RoyaHst eyes it 
 was a servile revolt, and was to be treated as 
 servile revolts during the Middle Ages had always 
 been treated. Again and again, with all solem- 
 nity, the RoyaUsts had declared that were they 
 to return as conquerors no stone of Paris should 
 be left standing on another, and that the inhabi- 
 tants should expire in the ashes of their homes on 
 the rack and the wheel. 
 
 Though Danton had many and obvious weak- 
 nesses he was a good lawyer, and Danton per- 
 ceived that though he might not have been able 
 to prevent the September massacres, and although 
 they might have been and probably were in- 
 evitable imder the tension which prevailed, yet 
 that any court, even a political court, would be 
 better than Marat's mob. Some months later he 
 explained his position to the Convention when it 
 was considering the erection of the tribunal 
 which finally sent Danton himself to the scaffold. 
 
POLITICAL COURTS 169 
 
 "Nothing is more difficult than to define a polit- 
 ical crime. But, if a simple citizen, for any or- 
 dinary crime, receives immediate punishment, if 
 it is so difficult to reach a political crime, is it 
 not necessary that extraordinary laws ... in- 
 timidate the rebels and reach the culpable? 
 Here public safety requires strong remedies and 
 terrible measures. I see no compromise between 
 ordinary forms and a revolutionary tribunal. 
 History attests this truth; and since members 
 have dared in this assembly to refer to those 
 bloody days which every good citizen has la- 
 mented, I say that, if such a tribunal had then 
 existed, the people who have been so often and 
 so cruelly reproached for them, would never have 
 stained them with blood ; I say, and I shall have 
 the assent of all who have watched these move- 
 ments, that no human power could have checked 
 the outburst of the national vengeance." 
 
 In this perversion of the courts lay, as I under- 
 stand it, the foulest horror of the French Revolu- 
 tion. It was the effect of the rigidity of privilege, 
 a rigidity which found its incarnation in the judi- 
 ciary. The constitutional decisions of the par- 
 liaments under the old regime would alone have 
 
I70 THE THEORY OF SOCIAL REVOLUTIONS 
 
 made their continuance impossible, but the 
 worst evil was that, after the shell crumbled, the 
 mind within the shell survived, and discredited 
 the whole regular administration of justice. 
 When the National Assembly came to examine 
 grievances it found protests against the judicial 
 system from every corner of France, and it re- 
 ferred these petitions to a committee which re- 
 ported in August, 1789. Setting aside the cen- 
 tralization and consolidation of the system as 
 being, for us, immaterial, the committee laid 
 down four leading principles of reform. First, 
 purchase of place should be abolished, and judicial 
 office should be recognized as a public trust. 
 Second, judges should be confined to applying, 
 and restrained from interpreting, the law. That 
 is to say, the judges should be forbidden to legis- 
 late. Third, the judges should be brought into 
 harmony with public opinion by permitting the 
 people to participate in their appointment. 
 Fourth, the tendency toward rigor in criminal 
 cases, which had become a scandal under the old 
 regime, should be tempered by the introduction 
 of the jury. Bergasse proposed that judicial 
 appointments should be made by the executive 
 
POLITICAL COURTS 17 1 
 
 from among three candidates selected by the 
 provincial assemblies. After long and very re- 
 markable debates the plan was, in substance, 
 adopted in May, 1790, except that the Assembly 
 decided, by a majority of 503 to 450, that the 
 judges should be elected by the people for a term 
 of six years, without executive interference. In 
 the debate Cazales represented the conservatives, 
 Mirabeau the liberals. The vote was a test vote 
 and shows how strong the conservatives were in 
 the Assembly up to the reorganization of the 
 Clergy in July, 1790, and the electoral assemblies 
 of the districts, which selected the judges, seem, 
 on the whole, to have been rather more conserva- 
 tive than the Assembly. In the election not a 
 sixth of those who were enfranchised voted for 
 the delegates who, in turn, chose the judges, and 
 these delegates were usually either eminent lawyers 
 themselves, or wealthy merchants, or men of 
 letters. The result was a bench not differing 
 much from an old parliament, and equally in- 
 capable of understanding the convulsion about 
 them. 
 
 Installed early in 179 1, not a year elapsed before 
 these magistrates became as Ul at ease as had 
 
172 THE THEORY OF SOCIAL REVOLUTIONS 
 
 been those whom they displaced, and in March, 
 1792, Jean Debry formally demanded their recall, 
 although their terms properly were to expire in 
 1796. During the summer of 1792 they sank 
 into contempt and, after the massacres, the Legis- 
 lative Assembly, just before its dissolution, pro- 
 vided for a new constituency for the judicial elec- 
 tions. This they degraded so far that, out of 
 fifty-one magistrates to be chosen in Paris, only 
 twelve were professionally trained. Nor did the 
 new courts inspire respect. After the loth of 
 August one or two special tribunals were organ- 
 ized to try the Swiss Guard who surrendered in 
 the Palace, and other political offenders, but 
 these proved to be so ineffective that Marat 
 thrust them aside, and substituted for them his 
 gangs of murderers. No true and permanent 
 political court was evolved before Danton had to 
 deal with the treason of Dumouriez, nor was this 
 tribunal perfected before Danton gave way to 
 the Committee of Public Safety, when French 
 revolutionary society became incandescent, 
 through universal attack from without and through 
 insurrection within. 
 
 Danton, though an orator and a lawyer, pos- 
 
POLITICAL COURTS 173 
 
 sibly even a statesman, was not competent to 
 cope with an emergency which exacted from a 
 minister administrative genius like that of Car- 
 not. Danton's story may be briefly told. At 
 once after Valmy the Convention established the 
 Republic; on January 21, 1793, Louis was be- 
 headed; and between these two events a new 
 movement had occurred. The Revolutionists felt 
 intuitively that, if they remained shut up at home, 
 with enemies without and traitors within, they 
 would be lost. If the new ideas were sound they 
 would spread, and Valmy had proved to them 
 that those ideas had already weakened the invad- 
 ing armies. Danton declared for the natural 
 boundaries of France, — the Rhine, the Alps, and 
 the ocean, — and the Convention, on January 29, 
 1 793, threw Dumouriez on Holland. This provoked 
 war with England, and then north, south, and 
 east the coalition was complete. It represented 
 at least half a million fighting men. Danton, 
 having no military knowledge or experience, fixed 
 his hopes on Dumouriez. To Danton, Dumouriez 
 was the only man who could save France. On 
 November 6, 1792, Dumouriez defeated the Aus- 
 trians at Jemmapes; on the 14th, he entered 
 
174 THE THEORY OF SOCL\L REVOLUTIONS 
 
 Brussels, and Belgium lay helpless before him. 
 On the question of the treatment of Belgium, the 
 schism began which ended with his desertion. 
 Dumouriez was a conservative who plotted for a 
 royal restoration under, perhaps, Louis Philippe. 
 The Convention, on the contrary, determined to 
 revolutionize Belgium, as France had been revolu- 
 tionized, and to this end Cambon proposed to 
 confiscate and sell church land and emit assignats. 
 Danton visited Dumouriez to attempt to pacify 
 him, but found him deeply exasperated. Had 
 Danton been more sagacious he would have been 
 suspicious. Unfortimately for him he left Du- 
 mouriez in command. In February, Dumouriez 
 invaded Holland and was repulsed, and he then 
 fell back to Brussels, not strong enough to march 
 to Paris mthout support, it is true, but probably 
 expecting to be strong enough as soon as the Ven- 
 dean insurrection came to a head. Doubtless he 
 had relations with the rebels. At all events, on 
 March lo, the insurrection began with the mas- 
 sacre of Machecoid, and on March 12, 1793, Du- 
 mouriez wrote a letter to the Convention which 
 was equivalent to a declaration of war. He then 
 tried to corrupt his army, but failed, and on 
 
POLITICAL COURTS 175 
 
 April 4, 1793, fled to the Austrians. Meanwhile, 
 La Vendee was in flames. To appreciate the situa- 
 tion one must read Carnot's accoimt of the border 
 during these weeks when he alone, probably, 
 averted some grave disaster. For my purpose it 
 suffices to say that the pressure was intense, and 
 that this intense pressure brought forth the 
 Revolutionary Tribunal, or the political court. 
 
 On March 10, 1793, the Convention passed a 
 decree constituting a court of five judges and a 
 jury, to be elected by the Convention. To these 
 was joined a public prosecutor. Fouquier-Tin- 
 viUe afterward attained to a sombre fame in 
 this position. Six members of the Convention 
 were to sit as a commission to supervise drawing 
 the indictments, the preparation of evidence, and 
 also to advise the prosecutor. The punishments, 
 under the limitations of the Penal Code and other 
 criminal laws, were to be within the discretion of 
 the court, whose judgments were to be final.^ 
 Death was accompanied by confiscation of 
 property. 
 
 Considering that this was an extraordinary 
 tribunal, working under extreme tension, which 
 
 ^ Histoire du Tribunal Revolutionaire de Paris, H. Wallon, i, 57. 
 
176 THE THEORY OF SOCIAL REVOLUTIONS 
 
 tried persons against whom usually the evidence 
 was pretty conclusive, its record for the first six 
 months was not discreditable. Between April 6 
 and September 21, 1793, it rendered sixty-three 
 sentences of death, thirteen of transportation, and 
 thirty-eight acquittals. The trials were held pa- 
 tiently, testimony was heard, and the juries duly 
 deliberated. Nevertheless the Terror deepened 
 as the stress upon the new-born republic in- 
 creased. Nothing more awful can be imagined 
 than the ordeal which France endured between 
 the meeting of the Convention in September, 1792, 
 and the completion of the Committee of Public 
 Safety in August, 1793. Hemmed in by enemies, 
 the revolution glowed in Paris like molten lava, 
 while yet it was torn by faction. Conservative 
 opinion was represented by the Girondists, rad- 
 ical opinion by the Mountain, and between the two 
 lay the Plain, or the majority of the Conven- 
 tion, who embodied the social centre of gravity. 
 As this central mass swayed, so did supremacy 
 incline. The movement was as accurate as that 
 of any scientific instrument for registering any 
 strain. Dumouriez's treason in April left the 
 northern frontier open, save for a few fortresses 
 
POLITICAL COURTS 177 
 
 which still held out. When those should fall 
 the enemy could make a junction with the rebels 
 in Vendee. Still the Girondists kept control, 
 and even elected Isnard, the most violent among 
 them, President of the Convention. Then they had 
 the temerity to arrest a member of the Commune 
 of Paris, which was the focus of radicalism. That 
 act precipitated the struggle for survival and with 
 it came the change in equilibrium. On June 2, 
 Paris heard of the revolt of Lyons and of the 
 massacre of the patriots. The same day the Sec- 
 tions invaded the Convention and expelled from 
 their seats in the Tuileries twenty-seven Girondists. 
 The Plain or Centre now leant toward the Moun- 
 tain, and, on July 10, the Committee of Public 
 Safety, which had been first organized on April 
 6, 1793, directly after Dumouriez's treason, was 
 reorganized by the adition of men like Saint- Just 
 and Couthon, with Prieur, a lawyer of ability and 
 energy, for President. On July 12, 1793, the 
 Austrians took Conde, and on July 28, Valen- 
 ciennes; while on July 25, Kleber, starving, sur- 
 rendered Mayence. Nothing now but their own 
 inertia stood between the allies and La Vendee. 
 Thither indeed Kellermann's men were sent, since 
 
178 THE THEORY OF SOCIAL REVOLUTIONS 
 
 they had promised not to serve against the coali- 
 tion for a year, but even of these a division was 
 surrounded and cut to pieces in the disaster of 
 Torfou. A most ferocious civil war soon raged 
 throughout France. Caen, Bordeaux, Lyons, 
 Marseilles, declared against the Convention. The 
 whole of the northwest was drenched in blood by 
 the Chouans. Sixty departments were in arms. 
 On August 28 the Royalists surrendered Toulon 
 to the English, who blockaded the coasts and 
 supplied the needs of the rebels. About Paris 
 the people were actually starving. On July 27 
 Robespierre entered the Committee of Safety; 
 Carnot, on August 14. This famous committee 
 was a council of ten forming a pure dictatorship. 
 On August 16, the Convention decreed the Levee 
 en Masse. 
 
 When Carnot became Minister of War to this 
 dictatorship the Republic had 479,000 demor- 
 alized soldiers with the colors, under beaten and 
 discredited commanders. Bouille had conspired 
 against the States- General, Lafayette against the 
 Legislative Assembly, and Dumouriez against the 
 Convention. One year from that time it had 
 a superb force, 732,000 strong, commanded by 
 
POLITICAL COURTS 179 
 
 Jourdan and Pichegru, Hoche, Moreau, and Bo- 
 naparte. Above all Carnot loved Hoche. Up to 
 Valmy the old regular army, however shaken, 
 had remained as a core. Then it became merged in 
 a mass of volunteers, and these volunteers had 
 to be armed and disciplined and fed and led 
 against the greatest and strongest coalition which, 
 the modern world had ever seen. France, linger 
 Carnot, became a vast workshop. Its most 
 eminent scientific men taught the people how to 
 gather saltpetre and the government how to 
 manufacture powder and artillery. Horses had 
 to be obtained. Carnot was as reckless of himself 
 as of others. He knew no rest. There was that 
 to be done which had to be done quickly and at 
 any cost; there was that or annihilation. 
 
 On October 21, 1794, when the people had 
 gathered in the Champ de Mars to celebrate the 
 Festival of Victories, after the President of the 
 Convention had proclaimed that the Republic 
 had been delivered, Carnot announced what had 
 been accomplished. 
 
 France had won twenty-seven victories, of which 
 eight had been pitched battles. 
 
 One hundred and twenty lesser combats. 
 
l8o THE THEORY OF SOCIAL REVOLUTIONS 
 
 France had killed eighty thousand enemies. 
 
 Had taken ninety-one thousand prisoners. 
 
 Also one hundred and sixteen places or towns, 
 six after siege. 
 
 Two hundred and thirty forts or redoubts. 
 
 Three thousand eight hundred cannon. 
 
 Seventy thousand muskets. 
 
 Ninety flags. 
 
 As Benjamin Constant has observed, nothing 
 can change the stupendous fact "that the Conven- 
 tion found the enemy at thirty leagues from Paris, 
 . . . and made peace at thirty leagues from 
 Vienna." 
 
 Under the stimulus of a change in enviroment 
 a new type of mind is apt to expand with something 
 of this resistless energy. It did so in the Reforma- 
 tion. It may be said almost invariably to do so, 
 when decay does not supervene, and it now con- 
 cerns us to consider, in some rough way, what the 
 cost to the sinking class of attempting repression 
 may be, when it miscalculates its power in such 
 an emergency. 
 
 I take it to be tolerably clear that, if the French 
 privileged classes had accepted the reforms of 
 Turgot in good faith, and thus had spread the 
 
POLITICAL COURTS l8l 
 
 movement of the revolution over a generation, 
 there would have been no civil war and no confisca- 
 tions, save confiscations of ecclesiastical property. 
 I take it also that there would have been no 
 massacres and no revolutionary tribunals, if France 
 in 1 793 had fought foreign enemies alone, as Eng- 
 land did in 1688. Even as it was the courts did 
 not grow thoroughly political until the preserva- 
 tion of the new type of mind came to hinge largely 
 on the extermination of the old. Danton's first 
 and relatively benign revolutionary tribunal, es- 
 tablished in March, 1793, was reorganized by the 
 Committee of Public Safety in the following 
 autumn, by a series of decrees of which the most 
 celebrated is that of September 17, touching 
 suspected persons. By these decrees the tribunal 
 was enlarged so that, in the words of Danton, 
 every day an aristocratic head might fall. The 
 committee presented a list of judges, and the 
 object of the law was to make the possession 
 of a reactionary mind a capital offence. It is 
 only in extreme exigencies that pure thinking by 
 a single person becomes a crime. Ordinarily, a 
 crime consists of a malicious thought coupled 
 with an overt act, but in periods of high tension, 
 
l82 THE THEORY OF SOCIAL REVOLUTIONS 
 
 the harboring of any given thought becomes 
 criminal. Usually during civil wars test oaths are 
 tendered to suspected persons to discover their 
 loyalty. For several centuries the Church habit- 
 ually burnt alive all those who denied the test 
 dogma of transubstantiation, and during the 
 worst spasm of the French Revolution to believe in 
 the principle of monarchy and privilege was made 
 capital with confiscation of property. 
 
 The question which the Convention had to meet 
 was how to establish the existence of a criminal 
 mind, when nothing tangible indicated it. The 
 old regime had tortured. To prove heresy the 
 Church also had always used torture. The 
 Revolution proceeded more mildly. It acted on 
 suspicion. The process was simple. The Com- 
 mittee, of whom in this department Robespierre 
 was the chief, made lists of those who were to be 
 condemned. There came to be finally almost a 
 complete absence of forms. No evidence was 
 necessarily heard. The accused, if inconvenient, 
 was not allowed to speak. If there were doubt 
 touching the probability of conviction, pressure 
 was put upon the court. I give one or two ex- 
 amples: Scellier, the senior associate judge of 
 
POLITICAL COURTS 183 
 
 the tribunal, appears to have been a good lawyer 
 and a fairly worthy man. One day in February, 
 1794, Scellier was at dinner with Robespierre, 
 when Robespierre complained of the delays of the 
 court. Scellier replied that without the observ- 
 ance of forms there could be no safety for the 
 innocent. "Bah!" replied Robespierre, — "you 
 and your forms : wait ; soon the Committee will 
 obtain a law which will suppress forms, and then 
 we shall see." Scellier ventured no answer. Such 
 a law was drafted by Couthon and actually passed 
 on 22 Prairial (June 10, 1794), and yet it altered 
 little the methods of Fouquier-Tinville as prose- 
 cuting officer. Scellier having complained of this 
 law of Prairial to Saint- Just, Saint- Just replied 
 that if he were to report his words, or that he was 
 flinching, to the Committee, Scellier would be 
 arrested. As arrest was tantamount to sentence 
 of death, Scellier continued his work. 
 
 Without reasoning the subject out logically 
 from premise to conclusion, or being, of course, 
 capable of doing so in the mass. Frenchmen had 
 collectively received the intuition that everything 
 must be endured for a strong government, and 
 that whatever obstructed that government must 
 
l84 THE THEORY OF SOCIAL REVOLUTIONS 
 
 be eliminated. For the process of elimination 
 they used the courts. Under the conditions in 
 which they were placed by the domestic enemy, 
 they had little alternative. If a political party 
 opposed the Dictatorship in the Convention, that 
 party must be broken down; if a man seemed 
 likely to become a rival for the Dictatorship, that 
 man must be removed ; all who conspired against 
 the Republic must be destroyed as ruthlessly at 
 home as on the battle-field. The Republic was 
 insolvent, and must have money, as it must have 
 men. If the government needed men, it took 
 them, — all. If it needed money, and a man were 
 rich, it did not hesitate to execute him and con- 
 fiscate his property. There are very famous ex- 
 amples of all these phenomena strewn through 
 the history of the Terror. 
 
 The Girondists were liberals. They always 
 had been liberals; they had never conspired 
 against the Republic ; but they were impracticable. 
 The ablest of them, Vergniaud, complained before 
 the Tribunal, that he was being tried for what he 
 thought, not for what he had done. This the 
 government denied, but it was true. Nay, more ; 
 he was tried not for positive but for negative 
 
POLITICAL COURTS 185 
 
 opinions, and he was convicted and executed, and 
 his friends were convicted and executed with him, 
 because, had they remained in the Convention, 
 the Dictatorship, through their opposition, would 
 have lost its energy. Also the form of the con- 
 viction was shocking in the extreme. The de- 
 fence of these twenty-one men was, practically, 
 suppressed, and the jury were directed to bring 
 in a verdict of guilty. Still the prosecutions 
 of the Girondists stopped here. When they re- 
 frained from obstruction, they were spared. 
 
 Danton and his friends may have been, and 
 probably were, whether intentionally or by force 
 of circumstances, a menace to the Dictatorship. 
 Either Robespierre or Danton had to be eliminated. 
 There was not room for both. On April i, 1793, 
 Danton, Camille Desmoulins, and others were 
 arrested on a warrant signed by such men as Cam- 
 baceres, Carnot, and Prieur. Carnot in particular 
 was a soldier of the highest character and genius. 
 He would have signed no such warrant had he not 
 thought the emergency pressing. Nor was the 
 risk small. Danton was so popular and so strong 
 before a jury that the government appears 
 to have distrusted even Fouquier-Tinville, for 
 
l86 THE THEORY OF SOCIAL REVOLUTIONS 
 
 an order was given, and held in suspense, ap- 
 parently to Henriot, to arrest the President and 
 the Public Prosecutor of the Revolutionary Tri- 
 bunal, on the day of Danton's trial. 
 
 Under such a stimulant Fouquier did his best, 
 but he felt himself to be beaten. Examining 
 Cambon, Danton broke out: "Do you believe 
 us to be conspirators ? Look, he laughs, he don't 
 believe it. Record that he has laughed." Fou- 
 quier was at his wits' end. If the next day the 
 jury were asked if they had heard enough, and 
 they answered, "No," there would be an acquittal, 
 and then Fouquier's own head would roll into the 
 basket. Probably there might even be insurrec- 
 tion. Fouquier wrote to the Committee that they 
 must obtain from the Convention a decree silencing 
 the defence. So grave was the crisis felt to be 
 that the decree was unanimously voted. When 
 Fouquier heard that the decree was on its way, he 
 said, with a sigh of relief, — "Faith, we need it." 
 But when it was read, Danton sprung to his feet, 
 raging, declaring that the public cried out treason 
 upon it. The President adjourned the court while 
 the hall resounded with the protests of the de- 
 fendants and the shouts of the police as they tore 
 
POLITICAL COURTS 187 
 
 the condemned from the benches which they 
 clutched and dragged them through the corridors 
 toward the prison. They emerged no more until 
 they mounted the carts which took them to the 
 scaffold. 
 
 Nor was it safe to hesitate if one were attached 
 to this court. Fouquier had a clerk named Paris- 
 Fabricius . Now Paris had been a friend of D anton 
 and took his condemnation to heart. He even 
 declined to sign the judgment, which it was his 
 duty to do. The next day, when he presented 
 himself to Fouquier, Fouquier looked at him 
 sourly, and observed, "We don't want men who 
 reason here; we want business done." The 
 following morning Paris did not appear. His 
 friends were disturbed, but he was not to be found. 
 He had been cast into a secret dungeon in the 
 prison of the Luxembourg. 
 
 So, if a man were too rich it might go hard with 
 him. Louis-Philippe- Joseph, Due d'Orleans, after- 
 ward known as Egalite, was one of the most 
 interesting figures among the old nobility. The 
 great-great-great-grandson of Louis XIII, he was a 
 distant cousin of Louis XVI, and ranked as the 
 first noble of France beyond the royal family. 
 
l88 THE THEORY OF SOCIAL REVOLUTIONS 
 
 His education had been unfortunate. His father 
 lived with a ballet-dancer, while his mother, the 
 Princess Henriette de Bourbon- Conti, scandalized 
 a society which was not easily shocked. During 
 the Terror the sans-culottes ever)rwhere averred 
 that the Duke was the son of a coachman in the 
 service of the banker Duruet. Doubtless this 
 was false, but the princess had abundant liaisons 
 not much more reputable. Left to himself at 
 sixteen years old, Egalite led a life of extreme 
 profligacy, but he married one of the most beauti- 
 ful and charming women of the age, whom he 
 succeeded in inspiring with a devoted affection. 
 Born in 1747, his father died in 1785, leaving him, 
 just at the outbreak of the Revolution, the master 
 of enormous wealth, and the father of three sons 
 who adored him. The eldest of these was the 
 future king, Louis-Philippe. The man must 
 have had good in him to have been loved as he was 
 throughout life. He was besides more intelligent 
 touching the Revolution and its meaning than 
 any man approaching him in rank in France. The 
 Duke, when a young man, served with credit in 
 the navy, but after the battle of Ushant, in 1778, 
 where he commanded the blue squadron, he was 
 
POLITICAL COURTS 189 
 
 received with such enthusiasm in Paris, that 
 Ma;rie-Antoinette obtained his dismissal from the 
 service. From this period he withdrew from 
 court and his opposition to the government be- 
 gan. He adopted republican ideas, which he drew 
 from America, and he educated his children as 
 democrats. In 1789 he was elected to the States- 
 General, where he supported the fusion of the 
 orders, and attained to a popularity which, on 
 one occasion, according to Madame de Campan, 
 nearly made the Queen faint from rage and grief. 
 It was from the garden of his palace of the Palais 
 Royal that the column marched on July 14, 
 wearing his colors, the red, white and blue, to 
 storm the Bastille. It seemed that he had only 
 to go on resolutely to thrust the King aside and 
 become the ruler of France. He made no effort 
 to do so. Mirabeau is said to have been disgusted 
 with his lack of ambition. He was charitable 
 also, and spent very large sums of money among 
 the poor of Paris during the years of distress 
 which followed upon the social disorders. The 
 breach with the court, however, became steadily 
 wider, and finally he adhered to the party of 
 Danton and voted for the condemnation of the 
 
igo THE THEORY OF SOCIAL REVOLUTIONS 
 
 King. He sent two of his sons to serve in the 
 army. The elder was still with Dumouriez at 
 the time of his treason. On April 6, 1793, when 
 Dumouriez's treachery had become known, the 
 Assembly ordered the arrest of the whole Bourbon 
 family, and among them the Duke was appre- 
 hended and sent to Marseilles. 
 
 Thus it appears that whatever complaint his 
 own order may have had against Egalite, the 
 Republic certainly had none. No man could have 
 done more for modern France than he. He aban- 
 doned his class, renounced his name, gave his 
 money, sent his sons to the war, and voted for 
 his own relative's death. No one feared him, 
 and yet Robespierre had him brought to Paris 
 and guillotined. His trial was a form. Fouquier 
 admitted that he had been condemned before he 
 left Marseilles. The Duke was, however, very 
 rich and the government needed his money. 
 Every one understood the situation. He was 
 told of the order for his arrest one night when at 
 supper in his palace in Paris with his friend 
 Monsieur de Monville. The Duke, much moved, 
 asked Monville if it were not horrible, after all 
 the sacrifices he had made and all that he had done. 
 
POLITICAL COURTS 191 
 
 "Yes, horrible," said Monville, coolly, "but what 
 would you have? They have taken from your 
 Highness all they could get, you can be of no fur- 
 ther use to them. Therefore, they will do to you, 
 what I do with this lemon " (he was squeezing 
 a lemon on a sole) ; "now I have all the juice." 
 And he threw the lemon into the fireplace. But 
 yet even then Robespierre was not satisfied. He 
 harbored malice against this fallen man. On the 
 way to the scaffold he ordered the cart, in which 
 the Duke sat, to stop before the Palais Royal, which 
 had been confiscated, in order that the Duke 
 might contemplate his last sacrifice for his country. 
 The Duke showed neither fear nor emotion. 
 
 All the world knows the story of the Terror. 
 The long processions of carts carrying victims to 
 the guillotine, these increasing in number until after 
 the Law of Prairial they averaged sixty or seventy 
 a day in Paris alone, while in the provinces there 
 was no end. At Nantes, Carrier could not work 
 fast enough by a court, so he sank boat loads of 
 prisoners in the Loire. The hecatombs sacrificed 
 at Lyons, and the "Red Masses" of Orange, have 
 all been described. The population of Toulon 
 sank from 29,000 to 7,000. All those, in fine. 
 
192 THE THEORY OF SOCIAL REVOLUTIONS 
 
 were seized and slain who were suspected of hav- 
 ing a mind tinged with caste, or of being traitors 
 to the RepubHc. And it was the Centre, or the 
 majority of the Convention, who did this, by 
 tacitly permitting it to be done. That is to say, 
 France permitted it because the onslaught of the 
 decaying class made atrocities such as these 
 appear to be a condition of self-preservation. I 
 doubt if, in human history, there be such another 
 and so awful an illustration of the possible effects 
 of conservative errors of judgment. 
 
 For France never loved the Terror or the loath- 
 some instruments, such as Fouquier-Tinville, or 
 Carrier, or Billaud-Varennes, or CoUot-d'Herbois, 
 , or Henriot, or Robespierre, or Couthon, who 
 conducted it. On this point there can, I think, 
 be neither doubt nor question. I have tried to 
 show how the Terror began. It is easy to show 
 how and why it ended. As it began automatically 
 by the stress of foreign and domestic war, so it 
 ended automatically when that stress was re- 
 lieved. And the most curious aspect of the 
 phenomenon is that it did not end through the 
 application of force, but by common consent, 
 and when it had ended, those who had been used 
 
POLITICAL COURTS 193 
 
 for the bloody work could not be endured, and 
 they too were put to death. The procession of 
 dates is convincing. 
 
 When, on July 27, 1793, Robespierre entered 
 the Committee of Public Safety, the fortunes of 
 the Republic were near their nadir, but almost im- 
 mediately, after Carnot took the War Department 
 on August 14, they began to mend. On October 8, 
 1793, Lyons surrendered; on December 19, 1793, 
 the English evacuated Toulon; and, on De- 
 cember 23, the insurrection in La Vendee receiyed 
 its death blow at Savenai. There had also 
 been success on the frontiers. Carnot put Hoche 
 in command in the Vosges. On December 23, 
 1793, Hoche defeated Wurmser at Freschweiller, 
 when the Austrians, abandoning the lines of Wis- 
 sembourg, fell back across the Rhine. Thus by 
 the end of 1793, save for the great border fortresses 
 of Valenciennes and Conde to the north, which 
 commanded the road from Brussels to . Paris, 
 the soil of France had been cleared of the enemy, 
 and something resembling domestic tranquillity 
 had been restored at home. Simultaneously, 
 as the pressure lessened, rifts began to appear in 
 the knot of men who held the Dictatorship in 
 
194 THE THEORY OF SOCIAL REVOLUTIONS 
 
 the Republic. Robespierre, Couthon, and Saint- 
 Just coalesced, and gained control of the police, 
 while Billaud-Varennes, CoUot-d'Herbois, and, 
 secretly and as far as he dared, Barere, formed an 
 opposition. Not that the latter were more moder- 
 ate or merciful than Robespierre, but because, 
 in the nature of things, there could be but one 
 Dictator, and it became a question of the survival 
 of the fittest. Carnot took little or no part in 
 active politics. He devoted himself to the war, 
 but he disapproved of the Terror and came to 
 a breach with Saint- Just. Robespierre's power 
 culminated on June lo, 1794, with the passage 
 of the Law of 22 Prairial, which put the life of 
 every Frenchman in his hand, and after which, 
 save for some dozen or two of his most intimate 
 and devoted adherents like Saint- Just, Couthon, 
 Le Bas, Fouquier, Fleuriot the Mayor of Paris, 
 and Henriot, the commander of the national 
 guard, no one felt his head safe on his shoulders. 
 It needed but security on the northern frontier 
 to cause the social centre of gravity to shift and 
 Robespierre to fall, and security came with the 
 campaign of Fleurus. 
 Jourdan and Pichegru were in command on 
 
POLITICAL COURTS 195 
 
 the Belgian border, and on June 26, 1794, just 
 sixteen days after the passage of the Law of 
 Prairial, Jourdan won the battle of Fleurus. 
 This battle, though not decisive in itself, led to 
 decisive results. It uncovered Valenciennes and 
 Conde, which were invested, closing the entrance 
 to France. On July 11, Jourdan entered Brus- 
 sels; on July 16, he won a crushing victory 
 before Louvain and the same day Namur opened 
 its gates. On July 2;^, Pichegru, driving the Eng- 
 lish before him, seized Antwerp. No Frenchman 
 could longer doubt that France was delivered, and 
 with that certainty the Terror ended without a 
 blow. Eventually the end must have come, but it 
 came instantly, and, according to the old legend, 
 it came through a man's love for a woman. ^ 
 
 John Lambert Tallien, the son of the butler 
 of the Marquis of Bercy, was born in 1769, and 
 received an education through the generosity 
 of the marquis, who noticed his intelligence. He 
 became a journeyman printer, and one day in the 
 studio of Madame Lebrun, dressed in his work- 
 man's blouse, he met Therezia Cabarrus, Marquise 
 de Fontenay, the most seductive woman of her 
 time, and fell in love with her on the instant. 
 
196 THE THEORY OF SOCIAL REVOLUTIONS 
 
 Nothing, apparently, could have been more hope- 
 less or absurd. But the Revolution came. Tallien 
 became prominent, was elected to the Convention, 
 grew to be influential, and in September, 1793, was 
 sent to Bordeaux, as representative of the Cham- 
 ber, or as proconsul, as they called it. There he, 
 the all-powerful despot, found Therezia, trying to 
 escape to Spain, in prison, humble, poor, shudder- 
 ing in the shadow of the guillotine. He saved 
 her ; he carried her through Bordeaux in triumph 
 in a car by his side. He took her with him to 
 Paris, and there Robespierre threw her into prison, 
 and accused Tallien of corruption. On June 12 
 Robespierre denounced him to the Convention, 
 and on June 14, 1794, the Jacobins struck his 
 name from the list of the club. When Fleurus 
 was fought Therezia lay in La Force, daily ex- 
 pecting death, while Tallien had become the soul 
 of the reactionary party. On the 8 Thermidor 
 (July 26, 1794) Tallien received a dagger wrapped 
 in a note signed by Therezia, — "To-morrow they 
 kill me. Are you then only a coward ?" ^ 
 
 On the morrow the great day ]jad come. Saint- 
 Just rose in the Convention to read a report to 
 
 ^ " C'est demain qu'on me tue; n'etes-vous done qu'un lache?" 
 
POLITICAL COURTS I97 
 
 denounce Billaud, CoUot, and Carnot. Tallien 
 would not let him be heard. Billaud followed him. 
 CoUot was in the chair. Robespierre mounted 
 the tribune and tried to speak. It was not without 
 reason that Therezia afterwards said, "This little 
 hand had somewhat to do with overthrowing the '' 
 guillotine," for Tallien sprang on him, dagger in 
 hand, and, grasping him by the throat, cast him 
 from the tribune, exclaiming, "I have armed 
 myself with a dagger to pierce his heart if the Con- 
 vention dare not order his accusation." Then 
 rose a great shout from the Centre, "Down with 
 the tyrant, arrest him, accuse him !" From the 
 Centre, which until that day had always silently 
 supported the Robespierrian Dictatorship. Robes- 
 pierre for the last time tried to speak, but his 
 voice failed him. "It's Danton's blood that 
 chokes him; arrest him, arrest him !" they shouted 
 from the Right. Robespierre dropped exhausted 
 on a bench, then they seized him, and his brother, 
 and Couthon, and Saint- Just, and ordered that 
 the police should take them to prison. 
 
 But it was one thing for the Convention to 
 seize Robespierre singly, and within its own hall ; 
 it was quite another for it to hold him and 
 
198 THE THEORY OF SOCIAL REVOLUTIONS 
 
 send him to the guillotine. The whole physical 
 force of Paris was nominally with Robespierre. 
 The Mayor, Fleuriot, closed the barriers, sounded 
 the tocsin, and forbade any jailer to receive 
 the prisoners; while Henriot, who had already 
 been drinking, mounted a horse and galloped 
 forth to rouse the city. Fleuriot caused Robes- 
 pierre, Couthon, and Le Bas to be brought 
 to the City Hall. A provisional government was 
 completed. It only remained to disperse the 
 Assembly. Henriot undertook a duty which 
 looked easy. He seems to have collected about 
 twenty guns, which he brought to the Tuileries 
 and trained on the hall of the Convention. The 
 deputies thought all was over. Collot-d'Herbois 
 took the chair, which was directly in range, put 
 on his hat, and calmly said, as Henriot gave the 
 order to fire, "We can at least die at our post." 
 No volley came — the men had mutinied. Then 
 the Convention declared Henriot beyond the pro- 
 tection of the law, and Henriot fled to the City 
 Hall. The Convention chose Barras to command 
 their armed force, but save a few police they had 
 no force. The night was wearing away and 
 Fleuriot had not been able to persuade Robes- 
 
POLITICAL COURTS I99 
 
 pierre to take any decisive step. Robespierre was, 
 indeed, only a pettifogging attorney. At length 
 he consented to sign an appeal to arms. He had 
 written two letters of his name — "Ro" — when 
 a section of police under B arras reached the City 
 Hall. They were but a handful, but the door 
 was unguarded. They mounted the stairs and as 
 Robespierre finished the "o", one of these men, 
 named Merda, fired on him, breaking his jaw. 
 The stain of blood is still on the paper where 
 Robespierre's head fell. They shot Couthon in 
 the leg, they threw Henriot out of the window into 
 a cesspool below where he wallowed all night, while 
 Le Bas blew out his brains. The next day they 
 brought Robespierre to the Convention, but the 
 Convention refused to receive him. They threw 
 him on a table, where he lay, horrible to be seen, 
 his coat torn down the back, his stockings falling 
 over his heels, his shirt open and soaking with 
 blood, speechless, for his mouth was filled with 
 splinters of his broken jaw. Such was the man 
 who the morning before had been Dictator, and 
 master of all the armies of France. Couthon 
 was in little better plight. Twenty-one in all 
 were condemned on the 10 Thermidor and taken 
 
200 THE THEORY OF SOCIAL REVOLUTIONS 
 
 in carts to the guillotine. An awful spectacle. 
 There was Robespierre with his disfigured face, 
 half dead, and Fleuriot, and Saint- Just, and 
 Henriot next to Robespierre, his forehead gashed, 
 his right eye hanging down his cheek, dripping 
 with blood, and drenched with the filth of the sewer 
 in which he had passed the night. Under their 
 feet lay the cripple Couthon, who had been 
 thrown in like a sack. Couthon was paralyzed, 
 and he howled in agony as they wrenched him 
 straight to fasten him to the guillotine. It took 
 a quarter of an hour to finish with him, while the 
 crowd exulted. A hundred thousand people saw 
 the procession and not a voice or a hand was raised 
 in protest. The whole world agreed that the 
 Terror should end. But the Oldest of those who 
 suffered on the lo Thermidor was Couthon, who 
 was thirty-eight, Robespierre was thirty-five, 
 and Saint- Just but twenty-seven. 
 
 Sa closed the Terror with the strain which 
 produced it. It will remain a by-word for all 
 .time, and yet, appalling as it may have been, 
 it was the legitimate and the logical result of the 
 opposition made by caste to the advent of equality 
 before the law. Also, the political courts served 
 
POLITICAL COURTS 201 
 
 their purpose. They killed out the archaic mind 
 .in France, a mind too rigid to adapt itseK to a 
 changing environment. Thereafter no organized 
 opposition could ever be maintained against 
 the new social equilibrium. Modern France went 
 on steadily to a readjustment, on the basis of 
 unification, simplification of administration, and 
 equality before the law, first under the Directory, 
 then under the Consulate, and finally under the 
 Empire. With the Empire the Civil Code was 
 completed, which I take to be the greatest effort 
 at codification of modern times. Certainly it 
 has endured until now. Governments have 
 changed. The Empire has yielded to the Mon- 
 archy, the Monarchy to the Republic, the Republic 
 to the Empire again, and that once more to the 
 Republic, but the Code which embodies the 
 principle of equality before the law has remained. 
 Fundamentally the social equilibrium has been 
 stable. And a chief reason of this stability has 
 been the organization of the courts upon rational 
 and conservative principles. During the Terror 
 France had her fiU of political tribunals. Since 
 the Terror French judges, under every govern- 
 ment, have shunned politics and have devoted 
 
202 THE THEORY OF SOCIAL REVOLUTIONS 
 
 themselves to construing impartially the Code. 
 Therefore all parties, and all ranks, and all condi- 
 tions of men have sustained the courts. In 
 France, as in England, there is no class jealousy 
 touching the control of the judiciary. 
 
CHAPTER VI 
 
 INTERENCES 
 
 As the universe, which at once creates and de- 
 stroys life, is a complex of infinitely varying forces, 
 history can never repeat itself. It is vain, there- 
 fore, to look in the future for some paraphrase of 
 the past. Yet if society be, as I assume it to be, 
 an organism operating on mechanical principles, 
 we may perhaps, by pondering upon history, 
 learn enough of those principles to enable us to 
 view, more intelligently than we otherwise should, 
 the social phenoniena about us. What we call 
 civilization is, I suspect, only, in proportion to 
 its perfection, a more or less thorough social 
 centralization, while centralization, very clearly, is 
 an effect of applied science. Civilization is ac- 
 cordingly nearly synonymous with centralization, 
 and is caused by mechanical discoveries, which are 
 applications of scientific knowledge, like the dis- 
 covery of how to kindle fire, how to build and 
 
 sail ships, how to smelt metals, how to prepare 
 
 203 
 
204 THE THEORY OF SOCIAL REVOLUTIONS 
 
 explosives, how to make paper and print books, 
 and the like. And we perceive on a little con- 
 sideration that from the first great and funda- 
 mental discovery of how to kindle fire, every 
 advance in applied science has accelerated social 
 movement, until the discovery of steam and 
 electricity in the eighteenth and nineteenth 
 centuries quickened movement as movement 
 had never been quickened before. And this quick- 
 ening has caused the rise of those vast cities, which 
 are at once our pride and our terror. 
 
 Social consolidation is, however, not a simple 
 problem, for social consolidation implies an 
 equivalent capacity for administration. I take 
 it to be an axiom, that perfection in administra- 
 tion must be commensurate to the bulk and momen- 
 tum of the mass to be administered, otherwise the 
 centrifugal will overcome the centripetal force, 
 and the mass will disintegrate. In other words, 
 civilization would dissolve. It is in dealing with 
 administration, as I apprehend, that civilizations 
 have usually, though not always, broken down, 
 for it has been on administrative difficulties 
 that revolutions have for the most part super- 
 vened. Advances in administration seem to pre- 
 
INFERENCES 205 
 
 suppose the evolution of new governing classes, 
 since, apparently, no established t)^e of mind can 
 adapt itself to changes in environment, even in 
 slow-moving civilizations, as fast as environments 
 change. , Thus a moment arrives when the minds 
 of any given dominant type fail to meet the 
 demands made upon them, and are superseded 
 by a younger type, which in turn is set aside 
 by another still younger, until the limit of the 
 administrative genius of that particular race 
 has been reached. Then disintegration sets in, 
 the social momentum is gradually relaxed, and 
 society sinks back to a level at which it can 
 cohere. To us, however, the most distressing 1/ 
 aspect of the situation is, that the social accelera- ^ 
 tion is progressive in proportion to the activity of 
 the scientific mind which makes mechanical dis- 
 coveries, and it is, therefore, a triumphant science 
 which produces those ever more rapidly recurring 
 changes in environment to which men must adapt 
 themselves at their peril. As, under the stimulant 
 of modern science, the old types fail to sustain 
 themselves, new t3^es have to be equally rapidly 
 evolved, and the rise of a new governing class ^ 
 is always synonymous with a social revolution - 
 
2o6 THE THEORY OF SOCIAL REVOLUTIONS 
 
 and a redistribution of property. The Industrial 
 Revolution began almost precisely a century and 
 a half ago, since when the scientific mind has 
 continually gained in power, and, during that 
 period, on an average of once in two generations, 
 the environment has so far shifted that a social 
 revolution has occurred, accompanied by the 
 advent of a new favored class, and a readjustment 
 of wealth. I think that a glance at American 
 history will show this estimate to be within the 
 truth. At the same time such rapidity of intellec- 
 tual mutation is without precedent, and I should 
 suppose that the mental exhaustion incident 
 thereto must be very considerable. 
 
 In America, in 1770, a well-defined aristocracy 
 held control. As an effect of the Industrial 
 Revolution upon industry and commerce, the 
 Revolutionary War occurred, the colonial aris- 
 tocracy misjudged the environment, adhered to 
 Great Britain, were exiled, lost their property, 
 and perished. Immediately after the American 
 Revolution and also as a part of the Industrial 
 Revolution, the cotton gin was invented, and the 
 cotton gin created in the South another aristoc- 
 racy, the cotton planters, who flourished until 
 
INFERENCES 207 
 
 i860. At this point the changing of the environ- 
 ment, caused largely by the railway, brought a 
 pressure upon the slave-owners against which 
 they, also failing to comprehend their situation, 
 rebelled. They were conquered, suffered confisca- 
 tion of their property, and perished. Furthermore, 
 the rebellion of the aristocracy at the South was 
 caused, or at all events was accompanied by, the 
 rise of a new dominant class at the North, whose 
 power rested upon the development of steam in 
 transportation and industry. This is the class 
 which has won high fortune by the acceleration of 
 the social movement, and the consequent urban 
 growth of the nineteenth century, and which has 
 now for about two generations dominated in the 
 land. If this class, like its predecessors, has in 
 its turn mistaken its environment, a redistribu- 
 tion of property must occur, distressing, as 
 previous redistributions have been, in proportion 
 to the inflexibility of the sufferers. The last two 
 redistributions have been painful, and, if we 
 examine passing phenomena from this standpoint, 
 they hardly appear to promise much that is re- 
 assuring for the future. 
 /Administration is the capacity of coordinating f 
 
2o8 THE THEORY OF SOCIAL REVOLUTIONS 
 
 many, and often conflicting, social energies in a 
 single organism, so adroitly that they shall 
 operate as a unity. This presupposes the power 
 of recognizing a series of relations between numer- 
 ous special social interests, with all of which no 
 single man can be intimately acquainted. / Prob- 
 ably no very highly specialized class can be strong^ 
 in this intellectual quality because of the intel- 
 lectual isolation incident to specialization'; and 
 yet administration or generalization is not only 
 the faculty upon which social stability rests, but 
 is, possibly, the highest faculty of the human 
 mind. It is precisely in this preeminent requisite 
 for success in government that I suspect the 
 modern capitalistic class to be weak. The scope 
 of the human intellect is necessarily limited, and 
 modern capitalists appear to have been evolved 
 under the stress of an environment which de- 
 manded excessive specialization in the direction 
 of a genius adapted to money-making under 
 highly complex industrial conditions. To this 
 money-making attribute all else has been sacri- 
 ficed, and the modern capitalist not only thinks 
 in terms of money, but he thinks in terms of 
 money more exclusively than the French aristo- 
 
INFERENCES 209 
 
 crat or lawyer ever thought in terms of caste. 
 The modern capitahst looks upon life as a financial 
 combat of a very specialized kind, regulated by a 
 code which he understands and has indeed him- 
 self concocted, but which is recognized by no one 
 else in the world. He conceives sovereign powers 
 to be for sale. He may, he thinks, buy them; 
 and if he buys them ; he may use them as he 
 pleases. He believes, for instance, that it is the 
 lawful, nay more ! in America, that it is the 
 constitutional right of the citizen to buy the 
 national highways, and, having bought them, to 
 use them as a common carrier might use a horse 
 and cart upon a public road. He may sell his 
 service to whom he pleases at what price may 
 suit him, and if by doing so he ruins men and 
 cities, it is nothing to him. He is not respon- 
 sible, for he is not a trustee for the public. If he 
 be restrained by legislation, that legislation is in 
 his eye an oppression and an outrage, to be 
 annulled or eluded by any means which will not 
 lead to the penitentiary. He knows nothing and 
 cares less, for the relation which highways always 
 have held, and always must hold, to every civilized 
 population, and if he be asked to inform himself 
 
2IO THE THEORY OF SOCIAL REVOLUTIONS 
 
 on such subjects he resents the suggestion as an 
 insult. He is too specialized to comprehend a 
 social relation, even a fundamental one like this, 
 beyond the narrow circle of his private interests. 
 He might, had he so chosen, have evolved a sys- 
 tem of governmental railway regulation, and have 
 administered the system personally, or by his 
 own agents, but he could never be brought to 
 see the advantage to himself of rational conces- 
 sion to obtain a resultant of forces. He resisted 
 all restraint, especially national restraint, believ- 
 ing that his one weapon — money — would be 
 more effective in obtaining what he wanted in 
 state legislatures than in Congress. Thus, of 
 necessity, he precipitates a conflict, instead of 
 establishing an adjustment. He is, therefore, in 
 essence, a revolutionist without being aware of it.. 
 The same specialized thinking appears in his 
 reasoning touching actual government. New 
 York City will serve as an illustration. 
 
 New York has for two generations been noted 
 for a civic corruption which has been, theoretically, 
 abominable to all good citizens, and which the 
 capitalistic class has denounced as abominable to 
 itself. I suspect this to be an imaginative con- 
 
INFERENCES 211 
 
 ception of the situation. Tammany Hall is, I 
 take it, the administrative bureau through which 
 capital purchases its privileges. An incorruptible 
 government would offend capital, because, under 
 such a government, capital would have to obey 
 the law, and privilege would cease. Occasionally, 
 Tammany grows rapacious and exacts too much 
 for its services. Then a reform movement is 
 undertaken, and finally a new management is 
 imposed on Tammany ; but when Tammany has 
 consented to a satisfactory scale of prices, the 
 reform ends. To change the system would imply 
 a shift in the seat of power. In fine, money is 
 the weapon of the capitalist as the sword was the 
 weapon of the mediaeval soldier; only, as the 
 capitalist is more highly specialized than the sol- 
 dier ever was, he is more helpless when his single 
 weapon fails him. From the days of William the 
 Conqueror to our own, the great soldier has been, 
 very commonly, a famous statesman also, but I 
 do not now remember, in English or American 
 history, a single capitalist who has earned emi- 
 nence for comprehensive statesmanship. On the 
 contrary, although many have participated in 
 public affairs, have held high office, and have 
 
212 THE THEORY OF SOCIAL REVOLUTIONS 
 
 shown ability therein, capitalists have not un- 
 usually, however unjustly, been suspected of 
 having ulterior objects in view, unconnected with 
 the public welfare, such as tariffs or land grants. 
 Certainly, so far as I am aware, no capitalist has 
 ever acquired such influence over his contem- 
 poraries as has been attained with apparent ease 
 by men like Cromwell, Washington, or even 
 Jackson. 
 
 And this leads, advancing in an orderly manner 
 step by step, to what is, perhaps, to me, the 
 most curious and interesting of all modern intel- 
 lectual phenomena connected with the specialized 
 mind, — the attitude of the capitalist toward the 
 law. Naturally the capitalist, of all men, might 
 be supposed to be he who would respect and up- 
 hold the law most, considering that he is at once 
 the wealthiest and most vulnerable of human 
 beings, when called upon to defend himself by 
 physical force. How defenceless and how in- 
 competent he is in such exigencies, he proved to 
 the world some years ago when he plunged him- 
 self and the country into the great Pennsylvania 
 coal strike, with absolutely no preparation. 
 Nevertheless, in spite of his vulnerability, he is 
 
INFERENCES 213 
 
 of all citizens the most lawless.^ He appears to, 
 assume that the law will always be enforced, 
 when he has need of it, by some special personnel 
 whose duty lies that way, while he may evade the 
 law, when convenient, or bring it into contempt, 
 with impunity. The capitalist seems incapable 
 of feeling his responsibility, as a member of the 
 governing class, in this respect, and that he is 
 bound to uphold the law, no matter what the 
 law may be, in order that others may do the like. 
 If the capitalist has bought some sovereign func- 
 tion, and wishes to abuse it for his own behoof, he 
 regards the law which restrains him as a despotic 
 invasion of his constitutional rights, because, 
 with his specialized mind, he cannot grasp the 
 relation of a sovereign function to the nation as a 
 whole. He, therefore, looks upon the evasion of 
 a law devised for public protection, but inimical 
 to him, as innocent or even meritorious. 
 
 If an election be lost, and the legislature, which 
 has been chosen by the majority, cannot be 
 
 ^/In these observations on the intellectual tendencies of capital 
 I speak generally. Not only individual capitalists, but great corpo- 
 rations, exist, who are noble examples of law-abiding and intelligent 
 citizenship. Their rarity, however, and their conspicuousness, seem 
 to prove the general rule. 
 
214 THE THEORY OF SOCIAL REVOLUTIONS 
 
 pacified by money, but passes some act which 
 promises to be annoying, the first instinct of the 
 capitalist is to retain counsel, not to advise him 
 touching his duty under the law, but to devise a 
 method by which he may elude it, or, if he can- 
 not elude it, by which he may have it annulled as 
 unconstitutional by the courts. The lawyer who 
 succeeds in this branch of practice is certain to 
 win the highest prizes at the bar. And as capital 
 has had now, for more than one or even two 
 generations, all the prizes of the law within its 
 gift, this attitude of capital has had a profound 
 effect upon shaping the American legal mind. 
 The capitalist, as I infer, regards the constitu- 
 tional form of government which exists in the 
 United States, as a convenient method of obtain- 
 ing his own way against a majority, but the lawyer 
 has learned to worship it as a fetich. Nor is this 
 astonishing, for, were written constitutions sup- 
 pressed, he would lose most of his importance and 
 much of his income. Quite honestly, therefore, 
 the American lawyer has come to believe that a 
 sheet of paper soiled with printers' ink and inter- 
 preted by half-a-dozen elderly gentlemen snugly 
 dozing in armchairs, has some inherent and 
 
INFERENCES 21$ 
 
 marvellous virtue by which it can arrest the 
 march of omnipotent Nature. And capital gladly 
 accepts this view of American civilization, since 
 hitherto capitalists have usually been able to 
 select the magistrates who decide their causes, 
 perhaps directly through the intervention of some 
 president or governor whom they have had nom- 
 inated by a convention controlled by their money, 
 or else, if the judiciary has been elective, they have 
 caused sympathetic judges to be chosen by means 
 of a mechanism like Tammany, which they have 
 frankly bought. 
 
 I wish to make myself clearly understood. 
 Neither capitalists nor lawyers are necessarily, or 
 even probably, other than conscientious men. 
 What they do is to think with specialized minds. 
 All dominant t5^es have been more or less special-* 
 ized, if none so much as this, and this specializa-^ 
 tion has caused, as I imderstand it, that obtuseness 
 of perception which has been their ruin when the 
 environment which favored them has changed. 
 All that is remarkable about the modern capitalist 
 is the excess of his excentricity, or his deviation 
 from that resultant of forces to which he must con- 
 form. To us, however, at present, neither the 
 
2l6 THE THEORY OF SOCIAL REVOLUTIONS 
 
 morality nor the present mental excentricity of 
 the capitalist is so material as the possibility of 
 his acquiring flexibility under pressure, for it 
 would seem to be almost mathematically demon- 
 strable that he will, in the near future, be sub- 
 jected to a pressure under which he must develop 
 flexibility or be eliminated. 
 
 / There can be no doubt that the modern environ- 
 ment is changing faster than any environment 
 ever pireviously changed; therefore, the social 
 centre of gravity constari^Jy tends to shift more 
 rapidly; and therefore, tnodern civilization has 
 unprecedented need of the administrative or 
 generalizing mind. But, as the mass and mo- 
 mentum of modern society is prodigious, it will 
 require a correspondingly prodigious energy to 
 carry it safely from an unstable to a stable equi- 
 / librium. The essential is to generate the energy 
 which brings success; and the more the mind 
 dwells upon the peculiarities of the modern capi- 
 talistic class, the more doubts obtrude themselves 
 touching their ability to make the effort, even 
 at present, and still more so to make it in the 
 future as the magnitude of the social organism 
 grows. 
 
INFERENCES 217 
 
 One source of capitalistic weakness comes from 
 a lack of proper instruments wherewith to work, 
 even supposing the will of capital to be good ; and 
 this lack of administrative ability is somewhat 
 due to the capitalistic attitude toward education. 
 In the United States capital has long owned the 
 leading universities by right of purchase, as it 
 has owned the highways, the currency, and the 
 press, and capital has used the universities, in a 
 general way, to develop capitalistic ideas. This, 
 however, is of no great moment. What is of 
 moment is that capital has commercialized edu- 
 cation. Apparently modern society, if it is to 
 cohere, must have a high order of generalizing 
 mind, — a mind which can grasp a multitude of 
 complex relations, — but this is a mind which can, 
 at best, only be produced in small quantity and at 
 high cost. Capital has preferred the specialized 
 mind and that not of the highest quality, since 
 it has found it profitable to set quantity before 
 quality to the limit which the market wUl endure. 
 Capitalists have never insisted upon raising an 
 educational standard save in science and me- 
 chanics, and the relative overstimulation of the 
 scientific mind has now become an actual menace 
 
2l8 THE THEORY OF SOCIAL REVOLUTIONS 
 
 to order because of the inferiority of the adminis- 
 trative intelligence. 
 
 Yet, even supposing the synthetic mind of the 
 highest power to be increasing in proportion to 
 the population, instead of, as I suspect, pretty 
 rapidly decreasing, and supposing the capitalist 
 to be fully alive to the need of administrative im- 
 provements, a phalanx of Washingtons would 
 be impotent to raise the administrative level of 
 the United States materially, as long as the courts 
 remain censors of legislation ; because the prov- 
 ince of the censorial court is to dislocate any 
 comprehensive body of legislation, whose effect 
 would be to change the social status. That was 
 the fundamental purpose which underlay the 
 adoption of a written constitution whose object 
 was to keep local sovereignties intact, especially 
 at the South. Jefferson insisted that each sov- 
 ereignty should by means of nullification protect 
 itself. It was a long step in advance when the 
 nation conquered the prerogative of asserting its 
 own sovereign power through the Supreme Court. 
 Now the intervention of the courts in legislation 
 has become, by the change in environment, as 
 fatal to administration as would have been, in 
 
INFERENCES 219 
 
 1800, the success of nullification. I find it difii- 
 cult to believe that capital, with its speciaHzed 
 views of what constitutes its advantages, its 
 duties, and its responsibilities, and stimulated by 
 a bar moulded to meet its prejudices and require- 
 ments, will ever voluntarily assent to the con- 
 solidation of the United States to the point at 
 which the interference of the courts with legis- 
 lation might be eliminated; because, as I have 
 pointed out, capital finds the judicial veto useful 
 as a means of at least temporarily evading the law, 
 while the bar, taken as a whole, quite honestly 
 believes that the universe will obey the judicial 
 decree. No delusion could be profounder and 
 none, perhaps, more dangerous. Courts, I need 
 hardly say, cannot control nature, though by trying 
 to do so they may, like the Parliament of Paris, 
 create a friction which shall induce an appalling 
 catastrophe. 
 
 True judicial courts, whether in times of peace 
 or of revolution, seldom fail to be a substantial 
 protection to the weak, because they enforce an 
 established corpus juris and conduct trials by 
 recognized forms. It is startling to compare the 
 percentage of convictions to prosecutions, for the 
 
220 THE THEORY OF SOCIAL REVOLUTIONS 
 
 same class of offences, in the regular criminal 
 courts during the French Revolution, with the 
 percentage in the Revolutionary Tribunal. And 
 once a stable social equilibrium is reached, all 
 men tend to support judicial courts, if judicial 
 courts exist, from an instinct of self-preservation. 
 This has been amply shown by French experi- 
 ence, and it is here that French history is so 
 illuminating to the American mind. Before the 
 Revolution France had semi-political courts which 
 conduced to the overthrow of Turgot, and, there- 
 fore, wrought for violence; but more than this, 
 France, under the old regime, had evolved a legal 
 profession of a cast of mind incompatible with an 
 equal administration of the law. The French 
 courts were, therefore, when trouble came, sup- 
 ported only by a faction, and were cast aside. 
 With that the old regime fell. 
 
 The young Duke of Chartres, the son of Egalite 
 Orleans, and the future Louis Philippe, has re- 
 lated in his journal an anecdote which illustrates, 
 that subtle poison of distrust which undermines 
 all legal authority, the moment that suspicion of 
 political partiality in the judiciary enters the 
 popular mind. In June, 1791, the Duke went 
 
INFERENCES 221 
 
 down from Paris to Vendome to join the regiment 
 of dragoons of which he had been commissioned 
 colonel. One day, soon after he joined, a messen- 
 ger came to him in haste to tell him that a mob 
 had gathered near by who were about to hang 
 two priests. "I ran thither at once," wrote the 
 Duke ; "I spoke to those who seemed most excited 
 and impressed upon them how horrible it was to 
 hang men without trial ; besides, to act as hang- 
 men was to enter a trade which they all thought 
 infamous; that they had judges, and that this 
 was their affair. They answered that their judges 
 were aristocrats, and that they did not punish 
 the guilty." That is to say, although the priests 
 were non-jurors, and, therefore, criminals in the 
 eye of the law, the courts would not enforce the 
 law because of political bias.^ " It is your fault, " 
 I said to them, " since you elected them [the 
 judges], but that is no reason why you should do 
 justice yourselves." 
 
 Danton explained in the Convention that it 
 was because of the deep distrust of the judiciary 
 
 ^By the Law of November 27, 1790, priests refusing to swear 
 allegiance to the " civil constitution " of the clergy were punished by 
 loss of pay and of rights of citizenship if they continued their func- 
 tions. By Law of August 26, 1792, by transportation to Cayenne. 
 
222 THE THEORY OF SOCIAL REVOLUTIONS 
 
 in the public mind, which this anecdote shows, 
 that the September massacres occurred, and it 
 was because all republicans knew that the state 
 and the army were full of traitors like Dumouriez, 
 whom the ordinary courts would not punish, that 
 Danton brought forward his bill to organize a 
 true political tribunal to deal with them sum- 
 marily. When Danton carried through this 
 statute he supposed himself to be at the apex of 
 power and popularity, and to be safe, if any man 
 in France were safe. Very shortly he learned 
 the error in his calculation. Billaud was a mem- 
 ber of the Committee of Public Safety, while 
 Danton had allowed himself to be dropped from 
 membership. Danton had just been married, 
 and to an aristocratic wife, and the turmoil of 
 office had grown to be distasteful to him. On 
 March 30, 1794, Billaud somewhat casually 
 remarked, "We must kill Danton; " for in 
 truth Danton, with conservative leanings, was 
 becoming a grave danger to the extreme Jacobins. 
 Had he lived a few months longer he would have 
 been a Thermidorist. Billaud, therefore, only 
 expressed the prevailing Jacobin opinion; so the 
 Jacobins arrested Danton, Camille Desmoulins, 
 
INFERENCES 223 
 
 and his other friends, and Danton at once antici- 
 pated what would be his doom. As he entered 
 his cell he said to his jailer: "I erected the 
 Tribunal. I ask pardon of God and men." But 
 even yet he did not grasp the full meaning of 
 what he had done. At his trial he wished to 
 introduce his evidence fully, protesting "that he 
 should understand the Tribunal since he created 
 it;" nevertheless, he did not understand the 
 Tribunal, he still regarded it as more or less a 
 court. Topino-Lebrun, the artist, did under- 
 stand it. Topino sat on the jury which tried 
 Danton, and observed that the heart of one of 
 his colleagues seemed failing him. Topino took 
 the waverer aside, and said : "This is not a trial, 
 it is a measure. Two men are impossible; one 
 must perish. Will you kill Robespierre ? — No. 
 — Then by that admission you condemn Danton." 
 Lebrun in these few words went to the root of the 
 matter, and stated the identical principle which 
 underlies our whole doctrine of the Police Power. 
 A political court is not properly a court at all,! 
 but an administrative board whose function is to 
 work the will of the dominant faction for the 
 time being. Thus a political court becomes the 
 
224 THE THEORY OF SOCIAL REVOLUTIONS 
 
 most formidable of all engines for the destruction 
 of its creators the instant the social equilibrium 
 shifts. So Danton found, in the spring of 1794, 
 when the equilibrium shifted; and so Robespierre, 
 who slew Danton, found the next July, when the 
 equilibrium shifted again. 
 
 Danton died on the 5th April, 1794; about 
 three months later Jourdan won the Fleurus cam- 
 paign. Straightway Thermidor followed, and 
 the Tribunal worked as well for the party of 
 Thermidor as it had for the Jacobins. Carrier, 
 who had wallowed in blood at Nantes, as the 
 ideal Jacobin, walked behind the cart which 
 carried Robespierre to the scaffold, shouting, 
 "Down with the tyrant;" but that did not save 
 him. In vain he protested to the Convention 
 that, were he guilty, the whole Convention was 
 guilty, "down to the President's bell." By a 
 vote of 498 out of 500, Carrier was sent before 
 the Tribunal which, even though reorganized, con- 
 demned him. Therezia Cabarrus gaily presided at 
 the closing of the Jacobin Club, Tallien moved 
 over to the benches on the right, and therefore the 
 court was ruthless to Fouquier. On the 11 
 Thermidor, seventy members, officers, or parti- 
 
INFERENCES 225 
 
 sans of the Commune of Paris, were sent to the 
 guillotine in only two batches. On the next day 
 twelve more followed, four of whom were jury- 
 men. Fouquier's turn came later. It may also 
 be worth while for Americans to observe that a 
 political court is quite as effective against property "^ 
 as against life. The Duke of Orleans is only the 
 most celebrated example of a host of Frenchmen 
 who perished, not because of revenge, fear, or 
 jealousy, but because the party in power wanted 
 their property. The famous Law touching Sus- 
 pected Persons (loi des suspects) was passed on 
 September 17, 1793. On October 10, 1793, that 
 is three weeks afterward, Saint- Just moved that 
 additional powers should be granted, by the Con- 
 vention, to the Committee of Public Safety, de- 
 fining, by way of justification for his motion, those 
 who fell within the purview of this law. Among 
 these, first of all, came " the rich," who by that 
 fact alone were to be considered, prima facie, 
 enemies to their coimtry. 
 
 As I stated at the beginning of this chapter, 
 history never can repeat itself; therefore, what- 
 ever else may happen in the United States, 
 we certainly shall have no Revolutionary Tri- 
 
226 THE THEORY OF SOCIAL REVOLUTIONS 
 
 bunal like the French Tribunal of 1793, but 
 the mechanical principle of the political court 
 always remains the same; it is an adminis- 
 trative board the control of which is useful, or 
 may be even essential, to the success of a domi- 
 nant faction, and the instinctive comprehension 
 which the American people have of this truth is 
 demonstrated by the determination with which 
 they have, for many years, sought to impose the 
 will of the majority upon the judiciary. Other 
 means failing to meet their expectations, they 
 have now hit on the recall, which is as revolu- 
 tionary in essence as were the methods used 
 during the Terror. Courts, from the Supreme 
 Court downward, if purged by recall, or a process 
 tantamount to recall, would, under proper stress, 
 work as surely for a required purpose as did the 
 tribunal supervised by Fouquier-Tinville. 
 v^ These considerations rather lead me to infer 
 I that the extreme complexity of the administra- 
 tive problems presented by modern industrial 
 civilization is beyond the compass of the capital- 
 istic mind. If this be so, American society, as at 
 present organized, with capitalists for the domi- 
 nant class, can concentrate no further, and, as 
 
INFERENCES 227 
 
 nothing in the universe is at rest, if it does not 
 concentrate, it must, probably, begin to disin- 
 tegrate. Indeed we may perceive incipient signs 
 of disintegration all about us. We see, for ex- 
 ample, an universal contempt for law, incarnated 
 in the capitalistic class itself, which is responsible 
 for order, and in spite of the awful danger which 
 impends over every rich and physically helpless 
 t3/pe should the coercive power collapse. We 
 see it even more distinctly in the chronic war 
 between capital and labor, which government is 
 admittedly unable to control; we see it in 
 the slough of urban politics, inseparable from 
 capitalistic methods of maintaining its ascend- 
 ancy; and, perhaps, most disquieting of all, we 
 see it in the dissolution of the family which 
 has, for untold ages, been the seat of discipline 
 and the foundation of authority. For the dis- 
 solution of the family is peculiarly a phenome- 
 non of our industrial age, and it is caused 
 by the demand of industry for the cheap labor 
 of women and children. Napoleon told the law- 
 yers who drafted the Code that he insisted on 
 one thing alone. They must fortify the family, 
 for, said he, if the family is responsible to the 
 
228 THE THEORY OF SOCIAL REVOLUTIONS 
 
 father and the father to me, I can keep order in 
 France. One of the difficuhies, therefore, which 
 capital has to meet, by the aid of such adminis- 
 trative abiHty as it can command, is how to keep 
 order when society no longer rests on the cohesive 
 family, but on highly volatilized individuals as 
 incohesive as grains of sand. 
 
 Meditating upon these matters, it is hard 
 to resist the persuasion that unless capital 
 can, in the immediate future, generate an 
 intellectual energy, beyond the sphere of its 
 specialized calling, very much in excess of 
 any intellectual energy of which it has hitherto 
 given promise, and unless it can besides rise to an 
 appreciation of diverse social conditions, as well 
 as to a level of political sagacity, far higher than 
 it has attained within recent years, its relative 
 power in the community must decline. If this 
 be so the symptoms which indicate social disin- 
 tegration will intensify. As they intensify, the 
 ability of industrial capital to withstand the at- 
 tacks made upon it will lessen, and this process 
 must go on until capital abandons the contest to 
 defend itself as too costly. Then nothing remains 
 but flight. Under what conditions industrial 
 
INFERENCES 229 
 
 capital would find migration from America possible, 
 must remain for us beyond the bounds even of 
 speculation. It might escape with little or no loss. 
 On the other hand, it might fare as hardly as did 
 the southern slaveholders. No man can foresee 
 his fate. In the event of adverse fortune, how- 
 ever, the position of capitalists would hardly 
 be improved by the existence of political courts 
 serving a malevolent majority. Whatever may 
 be in store for us, here at least we reach an 
 intelligible conclusion. Should Nature follow such 
 a course as I have suggested, she will settle all 
 our present perplexities as simply and as drasti- 
 cally as she is apt to settle human perturba- 
 tions, and she will follow logically in the 
 infinitely extended line of her own most impres- 
 sive precedents. 
 
INDEX 
 
 Adams, John: appoints Marshall 
 Chief Justice, 53-61 ; sent Ells- 
 worth to France, 61 ; offered office 
 to Jay; chose Marshall, 61. 
 
 Adams, John Quincy: extract from 
 diary of, 68. 
 
 Administration: inefficiency of, in 
 twentieth century, 3-4 ; relation to 
 mass, 204; definition of, 207 etseq.; 
 lack of ability in, 217; need for, in 
 modem society, 217, 218. 
 
 Alien and Sedition Acts: sg. 
 
 American Revolution : a revolt 
 against Monopoly, 25 ; begins with 
 Boston Tea-party, 25. 
 
 Arbitration: compulsory, 2g, 30; 
 strong government needed for, 29, 
 30. 
 
 Aristocracy: See Ruling Class. 
 
 Artois, Comte d': emigrates, 146; 
 authorized to organize an army, 
 148. 
 
 Assignats: issued, 149; Cambon 
 wishes to emit in Belgiiun, 174. 
 
 Bastille: stormed, 145. 
 
 Bench: See Judiciary, and Courts. 
 
 Billaud-Varenne: an Instrument of 
 the Terror, 191 ; quarrels with 
 Robespierre, 194; leads Revolu- 
 tion of Thermidor, 197; wants to 
 kill Dan ton, 222. 
 
 Bouilli: commands Army of the 
 North, 146 ; executes soldiers, 147 ; 
 tortures soldiers, 155. 
 
 Bradley, Mr. Justice: opinion of, in 
 Chicago, Milwaukee and St. Paul 
 Railway vs. Minnesota, 102, 103; 
 failed to sustain equality before 
 the law, 115. 
 
 Brass vs. North Dakota: 108. 
 
 Brunswick, Duke of: manifesto of, 
 155; threatens reprisals, 156; re- 
 treat of, from Valmy, 164. 
 
 Burke, Edmund: publishes Reflec- 
 tions, and quarrels with Fox, 152; 
 Cjiste incarnated in, 152. 
 
 Cabarrus, Therezia, Marquise de Fon- 
 tenay: meets TalUen, 195; ad- 
 ventures of, 196 ; imprisoned in La 
 Force, 196 ; sends Tallien a dagger, 
 196 ; closes Jacobin Club, 224. 
 
 Capitalistic Class: have assumed 
 sovereign powers in America, 13 
 etseq.; irresponsible, 14, 17; have 
 levied taxes, 15 ; have regulated 
 the currency, 17 e< seq.; have con- 
 trolled prices, 25 et seq.; supported 
 Washington, 28; now responsible 
 for structure of American Society, 
 29>et seq. ; have failed as politicians, 
 31 et seq.; must accept conse- 
 quences of failxu-e, 32 ei seq.; prob- 
 ably incapable of appreciating 
 failure, 33; prevail with Supreme 
 Court in Income Tax Case, 74; 
 deflected Supreme Court from its 
 fundamental principle, 98 et seq.; 
 antagonistic to equality before the 
 law, 107; favored by Supreme 
 Court, 108 et seq.; its pressure on 
 Judiciary in favor of Monopoly, 
 116-125; apparently breaking 
 down, 207 ; too highly specialized, 
 208; arbitrary, 209 et seq.; gov- 
 erns by money, 210 etseq.; inferior 
 as Statesmen and Soldiers, 211- 
 212; attitude toward law, 212 et 
 seq.; probably conscientious, 215; 
 owns universities, 217; uses court 
 to elude majority, 219; physically 
 
 231 
 
232 
 
 INDEX 
 
 helpless, 227; likely to abandon 
 America, 288-289; see English 
 Landlords; see Ruling Class, 
 French. 
 
 Carnot: action of, at Dumouriez's 
 treason, 17s; joins Committee of 
 Public Safety, 178; becomes Min- 
 ister of War, 178; annomices 
 French victory, 179; signs war- 
 rant to arrest Danton, 185 ; char- 
 acter of, 185 , success of, as War 
 Minister, 193; breach of, with 
 Saint Just, 194; denounced by 
 Saint Just, 197. 
 
 Carrier: drowns prisoners at Nantes, 
 191; trial of, executed, 224. 
 
 Caste: nature of, 135 et seq.; French 
 Judiciary, incarnation of, 136 ; law 
 of, by Parhament of Paris, 142 ; 
 defeated in National Assembly, 
 14s ; Eiuropean Society divided by, 
 147 et seq.; first duty of nobility 
 to defend, 148; fused, throughout 
 Europe, 152 ; law of, laid down at 
 Pilnitz, 155; killed out by Revolu- 
 tionary Tribunal, 200, 201. 
 
 Centre: Party of, supported Party of 
 Mountain, 177; supports Robes- 
 pierre, 192 ; attacks Robespierre, 
 
 197- 
 Chalons: objective point of Valmy 
 
 Campaign, 162. 
 Charles I: execution of, 14. 
 Charles X: See Comte d'Ariois. 
 Chartres, Duke of: extract from 
 
 diary of, 221. 
 Chase: appointed Chief Justice, 54; 
 
 decides Hepburn vs. Griswold, 72. 
 Chase, Samuel: impeached, 67. 
 Ckdteauvieux, Regiment of: pxmished 
 
 after mutiny at Nancy, 146, 147; 
 
 soldiers of, tortured, 155. 
 Chicago, Milwaukee and St. Paul 
 
 R. R. vs. Minnesota: 103 et seq. 
 Chisholm vs. Georgia: 84. 
 Church: landed ownership of, 149; 
 
 confiscation of land of, 149 ; sale 
 
 of land of, 149; made hostile by 
 
 confiscation, 150; constitutional 
 
 reform of, 150 ; 221. 
 
 Clergy: See Church. 
 
 Coates vs. Mayor of New York: 89. 
 
 Coblenz: centre of French Emigra- 
 tion, 151. 
 
 Code, Civil: established by Empire, 
 201 ; impartially enforced, 202. 
 
 Collot d'Herbois: quarrels with 
 Robespierre, 194; denounced by 
 Saint- Just, 197; presides in Con- 
 vention on Thermidor, 198. 
 
 Committee of Publi( Safety: organ- 
 ized, 177 ; reorganized, 178; Robes- 
 pierre and Carnot join, 178; dis- 
 cord in, 194; powers of, enlarged, 
 225. 
 
 Commons; House of: landlords' su- 
 premacy over, 133, 134; reform 
 of, 134, 135. See Parliament. 
 
 Corns took, Mr. Justice: in Wyneha- 
 mer vs. the People, 95. 
 
 Condi, Prince de: 154. 
 
 Congress: judicial interference with, 
 68-79. 
 
 Constitution: supported by Wash- 
 ington, 7; crisis when adopted, 8, 
 9; an imperfect protection, 45; 
 judicial interpretation of, in Ameri- 
 ica, 44, 45 ; only in America inter- 
 preted by judiciary, 47; contro- 
 versy between Jefferson and Ham- 
 ilton touching, 49-53 ; inoperative 
 to restrain Congress, 75-79, in; 
 made inflexible by judicial de- 
 cision, 83; altered by judicial 
 legislation, 89 ; according to Jeffer- 
 son, wax in hands of judiciary, 
 127; fetich to lawyers, 214, 219. 
 See Police Power. 
 
 Convention: meets directly after 
 Valmy, 173; establishes Republic, 
 173; organizes Revolutionary Tri- 
 bunal, 17s ; Girondists expelled 
 from, 177; declares lev&e en masse, 
 178; reorganizes Committee of 
 Public Safety, 177; reorganizes Tri- 
 bunal, 181 ; passes law of Prairial, 
 183 ; supports dictatorship of 
 Robespierre, 184 et seq.; stops 
 Danton's defence, 186; Revolu- 
 tion of Thermidor, 196-198. 
 
INDEX 
 
 233 
 
 Coruie: Parliamentary decision 
 
 touching, 106 ; nature of, 140 ; 
 Edict touching, 140; Edict of, 
 rejected by ParUament, 142. 
 t Courts, American: obstruct Mr. 
 Roosevelt, 4 ; have assumed polit- 
 ical power; See C our is, Political; 
 have sustained Capital, 16; im- 
 suited to decide political questions, 
 78 ; imable to bar encroachments on 
 American Constitution, 75, in; 
 a bar to administrative reforms, 
 218; have become a menace to 
 order, 219 ; tending to become ad- 
 ministrative boards, 226; imlikely 
 to be a protection to Capital, 229. 
 See Courts below. 
 
 Courts, French: Parliament of Paris, 
 the essence of privilege, offices in, 
 vendible, 136, 141 ; refuses to regis- 
 ter Turgot's edict touching corvee, 
 141 ; defines law of caste, 142 ; tor- 
 ture regularly used by, 154; old 
 judicial system reorganized by 
 National Assembly, 169 et seq.; 
 reorganization inevitable since old 
 courts were semi-poUtical, 169 et 
 seq.; puie political coiu:ts organ- 
 ized by Danton, 175 et seq.; reor- 
 ganized, 181; see Revolutionary 
 Tribunal, Danton, and Fouquier- 
 Tinville; Modern French courts, 
 organized under Empire, have been 
 stable because non-f)olitical, 201 ; 
 while old French coiurts had poht- 
 ical bias, and therefore abolished, 
 220; the revolutionary criminal 
 coirrts were administrative boards, 
 223. See Political Courts. 
 
 Courts, Judicial: definition of, 76; 
 relation of, to Legislature, 76; 
 should administer a code of ab- 
 stract principles, 81 et seq.; this 
 function impossible in America, 81, 
 82, 83; essentially conservative in 
 contrast to legislatures, 106; 
 should never discriminate, 106, 
 107; legislation by, destroys, 113; 
 duty of, to protect civil rights, 114, 
 115; English and modern French 
 
 Courts true judicial Courts, 114, 
 129, 130, 201, 202 ; a defence to the 
 weak, 219. 
 
 Courts, Political: Roosevelt's at- 
 tacks on, 4; in America, 34; ef- 
 fective administration with, im- 
 possible, 34 ; Kings of Israel, polit- 
 ical judges, 37; David and Uriah 
 the Hittite, 38 et seq.; English 
 political courts, 40 etseq.; Jeffreys, 
 C. J., 41 et seq.; American and 
 foreign courts, 45; interference 
 with legislation makes courts 
 political, 47 ; political parties have 
 tried to control American coiu-ts, 
 48 et seq.; political controversies 
 touching, in America, 50 et seq, 
 S4 ; Kentucky Resolutions, 59, 60 ; 
 Marbury vs. Madison, 63 et seq.; 
 Impeachment of Chase, 67 et seq.; 
 Dred Scott Case, 70; Hepburn vs. 
 Griswold, yi et seq.; Income Tax 
 Case, 74; Distinction between 
 municipal and political law, 81 e^ 
 seq.; Police Power, a political 
 function, 89 et seq.; see Police 
 Power; system tends to create 
 active judicial legislation, 124, 
 125; Trans-Missouri and Stand- 
 ard Oil Cases, 116 et seq.; Judi- 
 cial political functions, lead to 
 elective judiciary and recall, 128; 
 old French judiciary political, 141 
 et seq.; Danton's Revolutionary 
 Tribunal a political court, 168 et 
 seq.; see Revolutionary Tribunal; 
 in France political courts ceased 
 with the Terror, 200, 201; in 
 France poUtical comrts existed prior 
 to Revolution, 220; for that cause 
 abolished, 220; Danton's explana- 
 tion of, in Revolution, 221, 222; 
 Danton condemned by, 222, 223; 
 are administrative boards, 223; 
 no protection to Capital, 229. 
 
 Courts, Roman: 112,113. See Prae- 
 tor. 
 
 Court, Supreme: partisan, 54, 57; 
 arbitrator between Nation and 
 States, 58, 59, 62; Marbury vs. 
 
234 
 
 INDEX 
 
 Madison, 63 etseq.; attack on and 
 impeachment of Chase, 67; Mis- 
 souri Compromise, 70; Hepburn 
 vs. Griswold, 71 ; Knox vs. Lee, 73 ; 
 Income Tax Case, 74 ; reorganized 
 by slave-owners/ 77; constructive, 
 under Marshall, 77; failure of, to 
 control Congress, 78; Jay, Chief 
 Justice of, 84; Chisholm vs. 
 Georgia, 84; Marshall, Chief Jus- 
 tice, 85 ; Dartmouth College Case, 
 87 et seq.; Charles River Bridge 
 Case, 91 ; construction of Police 
 Power by, 96 et seq.; subject to 
 financial influences, 97 ; follows 
 path of least resistance, 97; Cen- 
 sor of State legislation, 99; rate 
 regulation by, 100 et seq.; defines 
 police power, 105 ; tends to dis- 
 criminate, 107; Brass vs. N. Da- 
 kota, 108; Smith vs. Ames, 109 
 et seq.; failed to enforce equality 
 before the law because political, 
 115; exposition of Sherman .Act 
 by, 116 ei seq.; White, Chief Jus- 
 tice, in Standard Oil Case, iig et 
 seq.; at first aided Centralization, 
 218; likely to become an admin- 
 istrative board, 226. See Fourteenth 
 Amendment, and Dred Scott Case. 
 Couthon: drafted law of Prairial, 
 183; hateful to France, 192; 
 gains control of police, adherent 
 of Robespierre, 194; imprisoned 
 on Thermidor, 197; liberated and 
 reached City Hall, 198; wounded, 
 199; executed, 200. 
 
 Damiens: execution of, 155. See 
 Torture. 
 
 Danton: a conservative and a lawyer, 
 153; counsels audacity, becomes 
 Minister of Justice, 159; first 
 heard of Vendee plot, 163; coa- 
 lesces with Marat, 166 ; responsibil- 
 ity for September massacres, 166 
 et seq.; defines political crimes, 
 169; claimed natural boundaries 
 of France, 173 ; provoked war with 
 England, 173 ; sustained Dumou- 
 
 riez, 173; reorganizes Tribunal, 
 181; arrested, 185; convicted, 
 186; advocates Tribunal, 222; 
 trial of, 223 ; condemnation of, 223. 
 
 Dartmouth College Case: 87. 
 
 David, King of Israel: sj et seq. 
 
 Disraeli, Benjamin : opinion of Well- 
 ington, 134. 
 
 Dred Scott Case: 70, 77, 78, 107. 
 
 Dumouriez: an adventurer and con- 
 servative, succeeds Lafayette in 
 command, 153; wins Jemmapes, 
 173; trusted by Danton, 173; 
 plots restoration, 174 et seq.; 
 invades Holland, 174; treason of, 
 174, I7S- 
 
 Ellsworth, Oliver: appointed Chief 
 Justice, 61 ; sent Envoy to France, 
 61 ; resigns, 61. 
 
 Emigrants, French: emigration be- 
 gins, 146; mental condition of, 
 151; plans of, 151; threats of, 
 154 et seq.; confidence of, 158 ; 
 sufferings after Valmy, 164 et seq. 
 
 Environment: effect of, 231, consolida- 
 tion, result of, 204, 205; revolu- 
 tions, follow changes in, 180, 206 ; 
 changes in, rapid in proportion to 
 advances in science, 206 et seq.; 
 changes in America inimical to poUt- 
 ical courts, 218 e^ seq.; modem, 
 is too complex for the predomi- 
 nance of the present capitalistic 
 type, 226 e^ seq. 
 
 Financiers: See Capitalistic Class. 
 
 Fletcher vs. Peck : 86. 
 
 Flsuriot: mayor of Paris, 194; sup- 
 ported Robespierre in Thermidor, 
 198; executed, 200. 
 
 Fleurus: Campaign of, 195, 106, 224. 
 
 Fouquier-Tinville : made prosecuting 
 officer of Tribunal, 175; prose- 
 cutes Danton, 185; asked Con- 
 vention to silence Danton, 186; 
 imprisons Paris-Fabricius, 187 ; 
 condemned, 224. 
 
 Fourteenth Amendment: broadens 
 jurisdiction of Supreme Court, 
 
INDEX 
 
 23s 
 
 96; effect of, gg et seq.; Standard 
 Oil Case under, 126. 
 
 France: old regime in, 136 et seq.; 
 Privilege in, 138; condition of in 
 1793, 139- See Courts, French; 
 Emigrants; Revolution; Revolu- 
 tionary Tribunal. 
 
 Francis II: comes to throne, 152. 
 
 George III: reactionist, 152. 
 
 Giles, William Branch: Conversa- 
 tion of, 68. 
 
 Girondists: expelled from Assembly, 
 177; executed, 184, 185. 
 
 Grant, U. S., General: reverses Hep- 
 bum vs. Griswold, 71. 
 
 Guilds: monopolies, 22; regulation 
 of, by Parliament, 22 ; destroyed 
 by invention of artiUery, 23. 
 
 Hamilton, Alex.: defence of Consti- 
 tution, 5; distrusts constitutional 
 limitations, 44, 45; tiieories of 
 American sovereignty, 49-55; his 
 controversy with Jefferson touch- 
 ing constitutional limitations, 49- 
 53 ; defines judicial wiU and judg- 
 ment, 52, 96, loi ; theory of, touch- 
 ing liability of sovereign, 80, 81. 
 
 Harlan, Mr. Justice: in Standard 
 Oil Case, 122 et seq. 
 
 Henriot: ordered to arrest Fouquier, 
 186; friend of Robespierre, 194 ; his 
 action on 10 Thermidor, 198; exe- 
 cuted, 200. 
 
 Hepburn vs. Griswold: 71-73, 124. 
 
 Highways: an attribute of Sover- 
 eignty, 14; administration of by 
 Romans, 15; by France, 15; views 
 of capitalists touching, 209. 
 
 Hoar, Samuel B.: interferes in Hep- 
 bum vs. Griswold, 71-73- 
 
 Hoche: preferred by Camot, 179; 
 defeats Austrians, 193. 
 
 Holmes, Mr. Justice: ^defines Police 
 Power, 105, 106. 
 
 House of Lords: highest English 
 tribunal, 114; as court, political 
 influences excluded from, 114; 
 fall of, 129 et seq.; remains highest 
 cpyrt of appeal, 130. 
 
 Huskisson, Wm.: breach with Well- 
 ington, 134. 
 
 Interstate Commerce Law: 3. 
 
 Jackson, General: appointed Taney 
 Chief Justice, 54; successful poli- 
 tician, 212. 
 
 Jay, John: appointed Chief Justice, 
 S3 ; legal theories of, 80 ; in " Chis- 
 holm vs. Georgia," 84; declines 
 Chief Justiceship in 1800, 85; 
 failed to sustain equality before 
 the law, 115. 
 
 Jemmapes: Dumouriez wins battle 
 of, 173- 
 
 Jeffreys, Chief Justice: 41, 43. 
 
 Jefferson, Thomas: dislikes judicial 
 interpretation of Constitution, 48; 
 controversy with Hamilton on it, 
 48, 49, 50, 51 ; controversy with 
 Marshall, 59; nullification, 60; 
 Kentucky resolutions, 60; con- 
 troversy touching Marbury vs. 
 Madison, 63-66 ; impeaches Chase, 
 67; declares Constitution to be 
 wax in hands of judiciary, 127; 
 insisted on nullification, 218. 
 
 Jourdain: Carnot puts in command, 
 179 ; campaign of Fleurus, 195. 
 
 Judicial Function : considered. Chap. 
 II, 36; severed from executive 
 function, 40, 43; judicial will and 
 judgment defined, 52; cannot be 
 mingled with politics, 127, 219 et 
 seq. See Courts and Revolutionary 
 Tribunal. 
 
 Judiciary: subserviency of, 44; sub- 
 jected to pressure because of con- 
 stitution, 45, 47; censorship of 
 legislatures confined to America, 
 47; political, 53, 54; political must 
 be partisan, 53-57 ; distinction be- 
 tween courts and legislatures, 76; 
 exposed to pressxire, 82; elective 
 in New York, 128; recall of, 129; 
 status of old French, 136 et seq.; 
 modern French abstains from poli- 
 tics, 201; tends to become tool 
 of majority when invested with 
 
236 
 
 INDEX 
 
 political power, 226. See Courts 
 and Revolutionary Tribunal. 
 
 Kellermann: wins victory of Valmy, 
 
 ISO- 
 Kentucky Resolutions: 60. 
 Knox vs. Lee: 73. 
 
 Labor: a monopoly, 27; war on 
 capital, 28; coercive arbitration 
 of, 30 ; government unable to con- 
 trol, 227. 
 
 Lafayette: a conservative, 153; tried 
 to save the king in 1792, 153; 
 laughed at by Court, 153 ; Queen 
 refused to be saved by, 154; be- 
 trayed by Coiurt, 157. 
 
 Landlords, English: hold seats in 
 House of Commons as incorporeal 
 hereditaments, 87, 88 ; rise of, 133 ; 
 control of House of Commons, 133 ; 
 fall of, 135. 
 
 Law: relative development of, in 
 eighteenth and twentieth centvuies, 
 II, 12; Washington's problem 
 touching, simple, 12; twentieth 
 century insufficient for modern 
 purposes, 12, 13; equality before, 
 30, 82; Roman, flexible, 83; 
 Praetor's function, 83; codifica- 
 tion of, 112 etseq.; equality before, 
 under written constitution, 115; 
 of Caste, 142, 152, 155; tortures 
 under, 154, 182; see Torture; 
 combination to suppress equaUty 
 before, in French Revolution, 161 ; 
 reformed by National Assembly, 
 170 etseq.; of Prairial, 183; equal- 
 ity before, estabUshed in modem 
 France, 201 ; attitude of capital- 
 ists toward, 212 et seq.; of Jaco- 
 bins toward "suspected persons," 
 22s; Saint- Just denounces "the 
 rich" under, 225. 
 
 Lawyers: Roman, superiority of, 
 112; abiUty of, in the age of 
 Washington, lis; attitude toward 
 Constitution, 214; selected by 
 CapitaUstic Class, 214; reverence 
 Constitution, 219 ; French, 220. 
 
 Legislatures: the antithesis of 
 courts, 76; dispensations to, 
 granted by courts imder Police 
 Power, 89 ; cannot be trustworthy 
 court, 113. StQ Police Power. 
 
 Leopold II: conference at Pilnitz, 
 149 ; restraining influence on IVf arie 
 Antoinette, 152 ; death of, 152. 
 
 Lincoln, Abraham: appointed 
 Chase Chief Justice, 54. 
 
 Louis XVI: attends banquet at 
 Versailles, 146; carried to Paris, 
 146; captive in Tuileries, 146; 
 plots escape to Metz, 146 ; created 
 by Caste, 147 et seq.; defends 
 Caste, 148; tries to join Army of 
 Bouill^, 148; captured in Tuile- 
 ries, IS7-IS8; imprisoned in 
 Temple, 158; Royalist indiffer- 
 ence to life of, 161; beheaded, 
 173- 
 
 Louis XVIII: See Comte de Provence. 
 
 Machecoul: massacres at, 165; in- 
 surrection of Vendee begins at, 
 174- 
 
 Mallet du Pan: sent to Duke of 
 Bnmswick, 155; helps to draw 
 Manifesto, 156. 
 
 Marbury vs. Madison: 63-66, 67. 
 
 Marie Antoinette: attends banquet 
 at Versailles, 146 ; carried to Paris, 
 146; sneers at Mirabeau, 147; 
 created by Caste, 147 et seq.; 
 sneered at Lafayette, and refused 
 to be saved by him, 153, 154; 
 sent to Temple, 158; her distrust 
 of her brother-in-law, 161 ; dis- 
 like of the Duke of Orleans, 189. 
 
 Marshall, John: appointed Chief 
 Justice, S3, 54, 61 ; constitutional 
 theories, 57, 58; controversy with 
 Jefferson, 59; character of, 62, 
 63 ; decides Marbury vs. Madison, 
 63, 64 ; constructive genius of, 77 ; 
 legal theories of, 80 ; theory touch- 
 ing contracts, 85-88; in Dart- 
 mouth College Case, 87; failed to 
 sustain equality before the law, 
 IIS. 
 
INDEX 
 
 237 
 
 Massacres: of Guards at Versailles, 
 146; of the Swiss Guard, 157; 
 September, 167 et seq.; at Mache- 
 coul, 174; of patriots at Lyons, 
 177; Carrier's massacres at 
 Nantes, igi. 
 
 Mirabeau: intrigues with Court, 147 ; 
 exasperated with Queen, 147; a 
 conservative, 14s, 153. 
 
 Missouri Compromise; 70, 79. 
 
 Monopoly: sovereign powers are a, 
 13 ; tendency of government to 
 absorb, 20; trade, 21 ; regulation 
 of, 21 ; mediaeval, 22 ; Guilds, 22 ; 
 regulation of by Parliament, 22 ; 
 royal grants of, held bad, 23, 24 ; 
 anti-monopoly litigation, 25 ; not 
 always formed consciously, 26; 
 automatic result of concentration 
 of capital, 26 ; of labor 27 ; causes 
 rate regulation, and judicial su- 
 pervision, 100 et seq.; Trans- 
 Missomri Case, 116 ; Standard Oil, 
 119; statute to restrain, 124. 
 
 Munn vs. Illinois : loi. 
 
 National Assembly: States General 
 declared to be, 14s; orders fused 
 in, 14s ; King dissolves, 14s ; is- 
 sues assignats, confiscates Church 
 property, 149; secularizes alle- 
 giance of the clergy, 150; reforms 
 law, 170 et seq. 
 
 Nelson, Senator Knute: report on 
 Sherman Act, 118, 119. 
 
 Nem Jersey vs. Wilson: 86. See 
 Taxes. 
 
 New York City: politics of, capita- 
 lists corrupt, 210 et seq. See Tam^ 
 many Hall. 
 
 Notables: assembly of, 144. 
 
 Orleans, Duke of: called EgaUt6, 
 history of, 187, 188 et seq.; ar- 
 rested by Robespierre, 190; exe- 
 cuted, 191. 
 
 Parliament, English: regulates medi- 
 aeval monopoly, 22; absolute, 51 ; 
 sole grantor of monopoly, 24; 
 
 seats in, private property, 87, 88 ; 
 landlords acquired right to return 
 members of, 133 ; Wellington op- 
 poses reform of, 134; Reform bill 
 passed, 135 ; right to return mem- 
 bers of House of Commons an 
 incorporeal hereditament, 88, 137. 
 
 Parliament of Paris: offices in, pur- 
 chasable, 136; judicial position in 
 heritable, 137; Turgot obtained 
 place in, 140; constitutional power 
 of, 141 ; opinion of touching Cor- 
 vee, 142; refused to register laws 
 passed by notables, 144 ; used tor- 
 ture, 154, iss; discredited, 170; 
 new judiciary resembled, 171 ; 
 caused friction which contributed 
 to revolution, 219; a semi-pohti- 
 cal court, 141, 220. 
 
 Pichegru: put in command, 179; 
 takes Antwerp, 195. 
 
 Pilnitz: meeting at, 149; manifes- 
 toes at, ISS, 156; royalist com- 
 mentary on declaration at, in 1791, 
 161. 
 
 Pinckney, Charles: suggests con- 
 gressional power over State legis- 
 lation, 56. 
 
 Police Power: orgination of, theory 
 of, 89 ; defined, 92, 93, 94, los ; ex- 
 tension of, 96-106; effort at defi- 
 nition of, 98, los; reasonable ex- 
 ercise of, 98-ios, 108, 109 et seq.; 
 exercise of in Standard Oil Case, 
 I2S ; identical with principle under- 
 lying Revolutionary Tribunal, 223. 
 
 Preetor: Roman, fimction of, 83. 
 
 Pr atrial: law of, drafted, 183; 
 executions under, 191. 
 
 Prices: See Monopoly. 
 
 Prussia: King of, at Pilnitz, 149; 
 manifesto of, isS, at Valmy, 164. 
 
 Railways: highways, is; pubUc 
 agents, is ; owned by private per- 
 sons, 16; rates are taxes, 16, 17; 
 Trans-Missouri Case, 116 et. seq. 
 
 Recall: Mr. Roosevelt's proposition 
 to recall judicial decisions, 4; of 
 judges, an effect of political courts. 
 
238 
 
 INDEX 
 
 129; of judges, a revolutionary 
 measure, 226. 
 
 Reform Bill: of 1832, 135. 
 
 Revolution, French: caused by in- 
 tellectual rigidity, 135; condition 
 of France prior to, 136 et seq.; 
 judicial system contributed to, 137 ; 
 unequal taxes contributed to, 138, 
 139; Turgot attempted to mod- 
 erate, 140 et seq.; destroyed Caste, 
 143, 201 ; beginning of, 144, 145 ; 
 aristocracy faUed to imderstand, 
 147 et seq.; caused emigration of 
 aristocracy, 148; created peasant 
 land-owners, 149, 150; Caste re- 
 sisted, 152; combination to sup- 
 press, 151, 155; won at Valmy, 
 159; royalist theories concerning, 
 161 ; September massacres, 167 ; 
 considered servile revolt, 168; due 
 to Royalists, 165, 168; reforms law, 
 170 etseq.; coalition against, com- 
 pleted, 173; culminates in 1793, 
 176 ; see Committee of Public Safety ; 
 insurrection against, 178; vic- 
 tories won by, 179, 180; creates a 
 criminal process, 182 et seq.; 
 famous trials diuing, 184 et seq.; 
 violent period of, ends with Thermi- 
 dor, 196; can never be repeated, 
 203, 225. 
 
 Revolution, Industrial: causes fall of 
 English landlords, 133 ; causes 
 American revolution, 206; causes 
 rise of Southern planters, 206; of 
 industrial capitaUsts, 207. 
 
 Revolutionary Tribunal: organized, 
 175; executions by, in 1793, 175, 
 176 ; reorganized by Danton, 181 ; 
 defined treason, 181 et seq.; in- 
 timidated, 182-187; Danton be- 
 wailed erection of, 223; an ad- 
 ministrative board, 223; always 
 obeyed the majority, 224; con- 
 demns the rich, 225 ; impossible in 
 America, 225, 226. 
 
 Revolutions: occur periodically, 6 et 
 seq.; caused by advance in applied 
 science, 10; violent revolutions 
 caused by resistance to change, 
 
 133; frequent in proportion to 
 changes in environment, 204-208; 
 intellectual exhaustion caused by, 
 proportionate to frequency, 206. 
 
 Robespierre: joins Committee of 
 Public Safety, 178; demands sup- 
 pression of forms in Tribunal, 183 ; 
 mahce toward Duke of Orleans, 
 191 ; quarrels with BiUaud and 
 Callot, 194; power culminates, 
 194; denounces TaUien, 196; sends 
 Therezia to La Force, 196; im- 
 prisoned, 198; liberated, 198; 
 wounded on Thermidor, 199; 
 executed, 200. 
 
 Roland: would abandon Paris, 158, 
 159; faUed to stop Massacres, 167. 
 
 Roosevelt, Theodore: his problem in 
 1912, 3 ; difiSculties of, in 1912, 4, 5, 
 6; attitude to centrahzation, 6; 
 offence against capital, 32. 
 
 Rouerie, Marquis de la: goes to 
 Coblenz, 150. 
 
 Ruling Class: rigid, 33; in France, 
 nobility, clergy, and lawyers, 142— 
 143 ; necessarily destroyed, 143, 
 201 ; struggle between them and 
 Commons, 145; politically incapa- 
 ble, 147 et seq.; emigrants, 148, 
 151 ; creatures of Caste, 151 etseq.; 
 manifestoes of, 155 et seq.; de- 
 feated at Valmy, 159; their plan 
 of campaign, 161 et seq.; brought 
 on massacres, 165 et seq.; error of, 
 touching Revolution, 168; wage 
 civil war in France, 178; exter- 
 minated, 201 ; shifts of, 205. 
 
 Saint- Just: denounces Billaud, Col- 
 lot, and Camot, 197; executed, 
 200; denounces rich under law 
 of "suspected persons," 225. 
 
 Science, Applied: the cause of Rev- 
 olution, 10; effect of, in nine- 
 teenth century, 11 et seq.; effect 
 of applied science on sovereignty, 
 14 ; effect on Police, 23 ; effect on 
 Labor, 27 ; increases cost of ad- 
 ministration, 139; causes social 
 acceleration and disintegration. 
 
INDEX 
 
 239 
 
 203-205 ; capitalists raise standard 
 of, 217; its predominaiice, a men- 
 ace, 217. 
 
 Sherman Act: 3 ; Senate sustains, 
 118; passed in 1890, 124; Con- 
 gress may amend, 126 ; amended 
 by White, C. J., 119, 123-126. 
 
 Slaughter-Eouse Cases: 99. 
 
 Smith vs. Ames: 109. 
 
 Sovereignty: Washington's problem 
 touching, 9 et seq.; powers of, de- 
 fined, 13 ; held as a trust, 13 ; 
 when held irresponsibly, termed 
 slavery, 14; absorbed in United 
 States by private persons, 15 et 
 seq.; sovereignty is a concentra- 
 tion of energy, 19 et seq.; a true 
 monopoly, 20-24; capital as sov- 
 ereign, 29 ; capitalistic sovereignty 
 must be strong, 29-34; relation 
 of coiu-ts to, 34; political courts, 
 instruments of despotic, 37-44; 
 Jefferson's theory touching usur- 
 pation of, by American coxirts, 52, 
 127 ; State sovereignty, 80-81 ; 
 courts usurp imder Police Power, 
 gi et seq.; American now hinges 
 on Police Power, 105; see Police 
 Power; cannot be limited by 
 courts, III et seq.; French sover- 
 eignty passes to National Assem- 
 bly, 14s ; caste sovereignty, fall 
 oi, 148 et seq.; see Caste; absorbed 
 by Committee of Public Safety, 
 178; see Committee of Public 
 Safety; Revolution, French; and 
 Revolutionary Tribunal; capitalist, 
 conceives sovereign powers to be 
 for sale, 209; capitalistic notion 
 of sovereign functions, 213 et seq.; 
 sovereignty of U. S. once asserted 
 through Supreme Court, 218; 
 Supreme Court now disintegrates 
 sovereignty, 218, 219; adminis- 
 trative sovereignty cannot be 
 exercised through true courts, 223, 
 224; see Political Courts; modern 
 capitalists apparently unable to 
 hold their sovereignty, 226 et seq. 
 
 Standard Oil Case: iig et seq. 
 
 States General: summoned, 144. See 
 
 National Assembly. 
 Story, Joseph: extract from opinion 
 
 of, in Charles River Bridge Case, 
 
 8; view in Charles River Bridge 
 
 Case, 90, 91. 
 
 Tallien: sketch of, 195; fell in love 
 with Therezia Cabarrus, 195; 
 elected to Convention, 196; saves 
 Therezia, 196; attacks Robes- 
 pierre, 197; joined party of the 
 Right, 224. 
 
 Tammany Hall: capitalistic engine, 
 211; used to nominate judges, 215. 
 
 Taney: Chief Justice, appointed 
 by Jackson, 54; in Dred Scott 
 
 ^ Case, 70 ; in Charles River Bridge 
 Case, 91. 
 
 Terror: how caused, 176 et seq.; how 
 ended, 192 et seq.; loathed by 
 France, 192 ; instnmients of, put 
 to death, 193 ; end of, 195, 200. 
 See French Revolution and Com- 
 mittee of Public Safety. 
 
 Thermidor, Tenth of: Saint-Just tries 
 to denounce Billaud, CoUot, and 
 Carnot, 196-197 ; attack on Robes- 
 pierre and Saint- Just, 197; suc- 
 cessful, 198 et seq.; executions on 
 eleventh of, 224, 225. 
 
 Torture: used as means of pimish- 
 ment in army, 147, 155 ; an inte- 
 gral part of the old French law, 
 154; public torture habitual, tor- 
 ture of Damiens, 154, 155 ; French 
 emigrants believed that they could 
 intimidate the revolutionary army 
 by threats of, 151, 154, 155 ; threat- 
 ened by them and by the Duke of 
 Brunswick, 156, 157 ; used by the 
 insurgents at Machecoul in Vendue, 
 165 ; a scandal vmder the old re- 
 gime and suppressed by Revolu- 
 tion, 170, 182 ; Church for ages 
 habitually tortured, and so did 
 French courts, 182. 
 
 Toulon: surrendered to English, 178; 
 decrease in population of, 191 ; 
 evacuated, 193. 
 
240 
 
 INDEX 
 
 Trans-Missouri Case: ii6 et seq.; 
 
 mle in, approved by Congress, 
 
 ii8; overruled by White, C. J., 
 
 1 19 et seq. 
 TuUeries: stormed August loth, 
 
 157; plan for defence of, 157, 162. 
 Turgot, Robert: history of, 139 et 
 
 seq.; edict touching Corvee, 140; 
 
 breach with Parhament, 141; 
 
 predicts insolvency of France, 143. 
 
 Uriah, the Eittite: Case of, 38. 
 
 TJ. S. Steel Co. : management of, 29. 
 
 Valmy: victory of, 159, 161 et seq. 
 
 Vendee, La: cause of insurrection in, 
 150; begins in, 165, 174; massa- 
 cre at Machecoul, 165; defeat of 
 insurrection in, 193. 
 
 Vergniaud: trial of, 184. 
 dists. 
 
 See Giron- 
 
 War Power: 97. 
 
 Washington, General: reform of Con- 
 federation by, 7; his solution of 
 problems presented by Confedera- 
 tion, 9, 10; his advantage as a re- 
 former in eighteenth century, 11; 
 eighteenth century law sufficed 
 for, 12, 13 ; appoints John Jay 
 Chief Justice, 53; appoints Ells- 
 worth Chief Justice, 61. 
 
 Wellington, Duke of: in the reform 
 agitation, 134, 135; Disraeli's 
 opinion of, 134, 135. 
 
 White, Edward Douglas: Chief Jus- 
 tice, in Income Tax Case, 74; in 
 Standard Oil Case, 119, 120 et seq. 
 
T 
 
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