however great his powers in other respects. This was primarily due to
the conception of the States that then prevailed. While they had created
a central government for certain specified purposes, they yet regarded
themselves as sovereign nations, and their representatives in the Senate
were, in a sense, their ambassadors. They were as little inclined to
permit the President of the United States to make treaties or declare
war at will in their behalf as the European nations would be to-day to
vest a similar authority in the League of Nations. It was, therefore,
first proposed that the power to make treaties and appoint diplomatic
representatives should be vested exclusively in the Senate, but as that
body was not always in session, this plan was so far modified as to give
the President, who is always acting, the power to _negotiate_ treaties
"with the advice and consent of the Senate." As to making war, the
framers were not willing to entrust the power even to the President and
the Senators, and it was therefore expressly provided that only Congress
could take this momentous step.
Here, again, the theory of the Constitution was necessarily somewhat
modified in practical administration, for under the power of nominating
diplomatic representatives, negotiating treaties, and in general, of
executing the laws of the nation, the principle was soon evolved that
the conduct of foreign affairs was primarily the function of the
President, with the limitation that the Senate must concur in diplomatic
appointments and in the validity of treaties, and that only both Houses
of Congress could jointly declare war. This cumbrous system necessarily
required that the President in conducting the foreign relations of the
Government should keep in touch with the Senate, and such was the
accepted procedure throughout the history of the nation until President
Wilson saw fit to ignore the Senate, even when the Senate had indicated
its dissent in advance to some of his policies at the Versailles
Conference.
I suppose that since that conference no part of our constitutional
system has caused more adverse comment in Europe than this system. It
often handicaps the United States from taking a speedy and effectual
part in international negotiations, although if the President and the
Senate be in harmony and collaborate in this joint responsibility, there
is no necessary reason why this should be so.
I share the view of many Americans that this provision of the
Constitution was wise and salutary, especially at this time, when the
United States has taken such an important position in the councils of
civilization. The President is a very powerful Executive, and his
tenure, while short, is fixed. Generally he is elected by little more
than a majority of the people, and sometimes through the curious
workings of the electoral college system, he has been only the choice
of a minority of the electorate. For these reasons, the framers of the
Constitution were unwilling to vest in the President exclusively the
immeasurable power of pledging the faith, man-power, and resources of
the nation and of declaring war. The heterogeneous character of our
population especially emphasizes the wisdom of this course, for it would
be difficult, if not impossible, for an American President to make an
offensive and defensive alliance with any nation or declare war against
another nation without running counter to the racial interests and
passions of a substantial part of the American nation. For better or
worse, the United States has limited, but not destroyed, as the world
war showed, its freedom to antagonize powerful nations from whose people
it has drawn large numbers of its own citizenship. The domestic harmony
of the nation requires that before the United States assumes treaty
obligations or makes war such policy shall represent the largely
preponderating sentiment of its people, and nothing could more
effectually secure this end than to require the President, before making
a treaty, to secure the assent of two-thirds of the Senate and a
majority of both Houses of Congress before making war.
While this may lead, as it has in recent years, to temporary and
regrettable embarrassments, yet in the long run, it is not only better
for the United States, but it is even to the best interests of other
nations, for in this way they are safeguarded against the possible
action of an Executive with whom racial instincts might still be very
influential. In your country, where the Government of the day is subject
to immediate dismissal for want of confidence, such power over foreign
relations can be safely entrusted to a few men, but in the United
States, with its fixed tenures of office, a President could pledge the
faith and involve his nation in war against the interests and will of
the people. Suppose the President had unlimited power over our foreign
relations and that within the next ten years an American, whose parents
were born in any European nation, was elected on purely domestic issues,
he could, with his assured four years of power, bring about a new
alignment of nations and shake the political equilibrium of the world.
The Constitution wisely refused to grant such a power. Hence the
provision for the concurrence of the legislative representatives of the
nation. At all events, it constitutes a system which, as the last
presidential election showed, the American people will not willingly
forgo. It is true that this system makes it difficult for the United
States to participate effectively in the main purpose of the League of
Nations to enforce peace by joint action at Geneva, but to ask the
United States to surrender a vital part of its constitutional system,
upon which its domestic peace so largely depends, in order to promote
the League, seems to me as unreasonable as it would be to ask your
country to abolish the Crown, to which it is sincerely attached as a
vital part of its system, as a contribution towards international
co-operation. You would not surrender such an integral part of your
system, and therefore it is not reasonable to expect a similar sacrifice
on our part, even though the meritorious purposes of the League be
freely recognized.
I have thus summarized briefly and most inadequately some of the
essential principles of the Constitution. I have only been able to
suggest very impressionistically what they are and the lessons to be
drawn from them. If I were able to deliver a dozen addresses on the
subject in this historic Hall and with this indulgent audience I would
not scratch even the surface. To understand the Constitution of the
United States you must not only read the text but the thousands of
opinions rendered in the last 130 years by the Supreme Court in its
great task of interpreting this wonderful document. Few documents have
been the subject of more extended commentaries. The four thousand words
have been meticulously examined through intellectual microscopes in
judicial opinions, textbooks, and other commentaries which are as "thick
as autumnal leaves that strow the brooks in Vallombrosa."
One can say of this document as Dr. Furness, in his variorum edition of
_Hamlet_, says of the words of that character:
"No words by him let fall, no syllable by him uttered, but has been
caught up and pondered, as no words except those of Holy Writ."
But what of its future and how long will the Constitution wholly resist
the washing of time and circumstance? Lord Macaulay once ventured the
prediction that the Constitution would prove unworkable as soon as there
were no longer large areas of undeveloped land and when the United
States became a nation of great cities. That period of development has
arrived. In 1880 only 15 per cent. of the American population lived in
the cities and the remainder were still on the farms. To-day over 52 per
cent, are crowded in one hundred great cities. Lord Macaulay added:
"I believe America's fate is only deferred by physical causes.
Institutions purely democratic will sooner or later destroy liberty
or civilization, or both.... The American Constitution is all sail
and no anchor."
In this last commentary Lord Macaulay was clearly mistaken. As I have
shown, the Constitution is not "purely democratic." It is amazing that
so great a mind should have so little understood that more than any
other Constitution, that of America imposes powerful restraints on
democracy. The experience of a century and a quarter has shown that
while the anchor may at times drag, yet it measurably holds the ship of
state to its ancient moorings. The American Constitution still remains
in its essential principles and still enjoys not only the confidence but
the affection of the great and varied people whom it rules. To the
latter this remarkable achievement must be attributed rather than to any
inherent strength in parchment or red seals, for in a democracy the
living soul of any Constitution must be such belief of the people in its
wisdom and justice. If it should perish to-morrow, it would yet have
enjoyed a life and growth of which any nation or age might be justly
proud. Moreover, it could claim with truth, if it finally perished, that
it had been subjected to conditions for which it was never intended and
that some of its essential principles had been ignored.
The Constitution is something more than a written formula of
government--it is a great spirit. It is a high and noble assertion,
and, indeed, vindication, of the morality of government. It "renders
unto Caesar [the political state] the things that are Caesar's," but in
safeguarding the fundamental moral rights of the people, it "renders
unto God the things that are God's."
In concluding, I cannot refrain from again reminding you that this
consummate work of statecraft was the work of the English-speaking race,
and that your people can therefore justly share in the pride which it
awakens. It is not only one of the great achievements of that _gens
aeterna_, but also one of the great monuments of human progress. It
illustrates the possibilities of true democracy in its best estate. When
the moral anarchy out of which it was born is called to mind, it can be
truly said that while "sown in weakness, it was raised in power."
To the succeeding ages, it will be a flaming beacon, and everywhere men,
who are confronted with the acute problems of this complex age, can
take encouragement from the fact that a small and weak people, when
confronted with similar problems, had the strength and will to impose
restraint upon themselves by peacefully proclaiming in the simple words
of the noble preamble to the Constitution:
"We, the people of the United States, in order to form a more
perfect union, establish justice, ensure domestic tranquillity,
provide for the common defence, promote the general welfare, and
secure the blessings of liberty to ourselves and our posterity, do
ordain and establish this Constitution for the United States of
America."
Note the words "ordain and establish." They imply perpetuity. They make
no provision for the secession of any State, even if it deems itself
aggrieved by federal action. And yet the right to secede was urged for
many years, but Lincoln completed the work of Washington, Franklin,
Madison and Hamilton by establishing that "a government for the people,
by the people and of the people should not perish from the earth."
_IV. The Revolt Against Authority_
"Where there is no vision, the people perish: but he that keepeth the
law, happy is he."
PROVERBS xxix. 18.
One of the most quoted--and also mis-quoted--proverbs of the wise
Solomon says, as translated in the authorized version: "Where there is
no vision, the people perish." What Solomon actually said was: "Where
there is no vision, the people _cast off restraint_." The translator
thus confused an effect with a cause. What was the vision to which the
Wise Man referred? The rest of the proverb, which is rarely quoted,
explains:
"Where there is no vision, the people cast off restraint: _but he that
keepeth the law, happy is he_."
The vision, then, is the authority of law, and Solomon's warning is
that to which the great and noble founder of Pennsylvania, William Penn,
many centuries later gave utterance, when he said:
"That government is free to the people under it, where the laws rule and
the people are a party to those laws; and all the rest is tyranny,
oligarchy and confusion."
It is my present purpose to discuss the moral psychology of the present
revolt against the spirit of authority. Too little consideration has
been paid by the legal profession to questions of moral psychology.
These have been left to metaphysicians and ecclesiastics, and yet--to
paraphrase the saying of the Master--"the laws were made for man and not
man for the laws," and if the science of the law ignores the study of
human nature and attempts to conform man to the laws, rather than the
laws to man, then its development is a very partial and imperfect one.
Let me first be sure of my premises. Is there in this day and
generation a spirit of lawlessness greater or different than that that
has always characterized human society? Such spirit of revolt against
authority has always existed, even when the penalty of death was visited
upon nearly all offences against life and property. Blackstone tells us
(Book IV, Chap. I) that in the eighteenth century it was a capital
offence to cut down a cherry tree in an orchard--a drastic penalty which
should increase our admiration for George Washington's courage and
veracity.
We are apt to see the past in a golden haze, which obscures our vision.
Thus, we think of William Penn's "holy experiment" on the banks of the
Delaware as the realization of Sir Thomas More's dream of Utopia; and
yet Pennsylvania was somewhat intemperately called in 1698 "the greatest
refuge for pirates and rogues in America," and Penn himself wrote, about
that time, that he had heard of no place which was "more overrun with
wickedness" than his City of Brotherly Love, where things were so
"openly committed in defiance of law and virtue--facts so foul that I am
forbid by common modesty to relate them."
Conceding that lawlessness is not a novel phenomenon, is not the present
time characterized by an exceptional revolt against the authority of
law? The statistics of our criminal courts show in recent years an
unprecedented growth in crimes. Thus, in the federal courts, pending
criminal indictments have increased from 9503 in the year 1912 to over
70,000 in the year 1921. While this abnormal increase is, in part, due
to sumptuary legislation--for approximately 30,000 cases now pending
arise under the prohibition statutes--yet, eliminating these, there yet
remains an increase in nine years of over 400 per cent, in the
comparatively narrow sphere of the federal criminal jurisdiction. I have
been unable to get the data from the State Courts; but the growth of
crimes can be measured by a few illustrative statistics. Thus, the
losses from burglaries which have been repaid by casualty companies have
grown in amount from $886,000 in 1914 to over $10,000,000 in 1920; and,
in a like period, embezzlements have increased five-fold. It is
notorious that the thefts from the mails and express companies and other
carriers have grown to enormous proportions. The hold-up of railroad
trains is now of frequent occurrence, and is not confined to the
unsettled sections of the country. Not only in the United States, but
even in Europe, such crimes of violence are of increasing frequency, and
a recent dispatch from Berne, under date of August 7, 1921, stated that
the famous International Expresses of Europe were now run under a
military guard.
The streets of our cities, once reasonably secure from crimes of
violence, have now become the field of operations for the foot-pad and
highwayman. The days of Dick Turpin and Jack Sheppard have returned,
with this serious difference--that the Turpins and Sheppards of our day
are not dependent upon the horse, but have the powerful automobile to
facilitate their crimes and make sure their escape.
Thus in Chicago alone, 5000 automobiles were stolen in a single year.
Once murder was an infrequent and abnormal crime. To-day in our large
cities it is of almost daily occurrence. In New York, in 1917, there
were 236 murders and only 67 convictions; in 1918, 221, and 77
convictions. In Chicago, in 1919, there were 336, and 44 convictions.
When the crime wave was at its height a year ago, the police authorities
in more than one American city confessed their impotence to impose
effective restraints. Life and property had seemingly become almost as
insecure as during the Middle Ages.[3]
[Footnote 3: The reader will bear in mind that these words were spoken
in August 1921. Unquestionably, the situation has greatly improved
during the present year(1922).]
As to the subtler and more insidious crimes against the political
state, it is enough to say that graft has become a science in city,
state and nation. Losses by such misapplication of public funds--piled
Pelion on Ossa--no longer run in the millions but the hundreds of
millions. Our city governments are, in many instances, foul cancers on
the body politic; and for us to boast of having solved the problem of
local self-government is as fatuous as for a strong man to exult in his
health when his body is covered with running sores. It has been
estimated that the annual profits from violations of the prohibition
laws have reached $300,000,000. Men who thus violate these laws for
sordid gain are not likely to obey other laws, and the respect for law
among all classes steadily diminishes as our people become familiar
with, and tolerant to, wholesale criminality. Whether the moral and
economic results of Prohibition overbalance this rising wave of crime,
time will tell.
_In limine_, let us note the significant fact that this spirit of
revolt against authority is not confined to the political state, and
therefore its causes lie beyond that sphere of human action.
Human life is governed by all manner of man-made laws--laws of art, of
social intercourse, of literature, music, business--all evolved by
custom and imposed by the collective will of society. Here we find the
same revolt against tradition and authority.
In music, its fundamental canons have been thrown aside and discord has
been substituted for harmony as its ideal. Its culmination--jazz--is a
musical crime. If the forms of dancing and music are symptomatic of an
age, what shall be said of the universal craze to indulge in crude and
clumsy dancing to the vile discords of so-called "jazz" music? The cry
of the time is:
"On with the dance, let joy be" unrefined.
In the plastic arts, the laws of form and the criteria of beauty have
been swept aside by the futurists, cubists, vorticists, tactilists, and
other aesthetic Bolsheviki.
In poetry, where beauty of rhythm, melody of sound and nobility of
thought were once regarded as the true tests, we now have in freak forms
of poetry the exaltation of the grotesque and brutal. Hundreds of poets
are feebly echoing the "barbaric yawp" of Walt Whitman, without the
redeeming merit of his occasional sublimity of thought.
In commerce, the revolt is against the purity of standards and the
integrity of business morals. Who can question that this is
pre-eminently the age of the sham and the counterfeit? Science is
prostituted to deceive the public by cloaking the increasing
deterioration in quality of merchandise. The blatant medium of
advertising has become so mendacious as to defeat its own purpose.
In the recent deflation in commodity values, there was widespread
"welching" among business men who had theretofore been classed as
reputable. Of course, I recognize that a far greater number kept their
contracts, even when it brought them to the verge of ruin. But when in
the history of American business was there such a volume of broken faith
as in the drastic deflation of 1920?
In the greater sphere of social life, we find the same revolt against
the institutions which have the sanction of the past. Social laws, which
mark the decent restraints of print, speech and dress, have in recent
decades been increasingly disregarded. The very foundations of the great
and primitive institutions of mankind--like the family, the Church, and
the State--have been shaken. Nature itself is defied. Thus, the
fundamental difference of sex is disregarded by social and political
movements which ignore the permanent differentiation of social function
ordained by Nature.
All these are but illustrations of the general revolt against the
authority of the past--a revolt that can be measured by the change in
the fundamental presumption of men with respect to the value of human
experience. In all former ages, all that was in the past was
presumptively true, and the burden was upon him who sought to change it.
To-day, the human mind apparently regards the lessons of the past as
presumptively false--and the burden is upon him who seeks to invoke
them.
Lest I be accused of undue pessimism, let me cite as a witness one who,
of all men, is probably best equipped to express an opinion upon the
moral state of the world. I refer to the venerable head of that
religious organization[4] which, with its trained representatives in
every part of the world, is probably better informed as to its spiritual
state than any other organization.
[Footnote 4: Reference is to the late Pope Benedict.]
Speaking last Christmas Eve, in an address to the College of Cardinals,
the venerable Pontiff gave expression to an estimate of present
conditions which should have attracted far greater attention than it
apparently did.
The Pope said that five plagues were now afflicting humanity.
The first was the unprecedented challenge to authority.
The second, an equally unprecedented hatred between man and man.
The third was the abnormal aversion to work.
The fourth, the excessive thirst for pleasure as the great aim of life.
The fifth, a gross materialism which denied the reality of the spiritual
in human life.
The accuracy of this indictment will commend itself to men who like
myself are not of Pope Benedict's communion.
I trust that I have already shown that the challenge to authority is
universal and is not confined to that of the political state. Even in
the narrower confine of the latter, the fires of revolution are either
violently burning, or, at least, smouldering. Two of the oldest empires
in the world, which, together, have more than half of its population
(China and Russia) are in a welter of anarchy; while many lesser nations
are in a stage of submerged revolt. If the revolt were confined to
autocratic governments, we might see in it merely a reaction against
tyranny; but even in the most stable of democracies and among the most
enlightened peoples, the underground rumblings of revolution may be
heard.
The Government of Italy has been preserved from overthrow, not alone by
its constituted authorities, but by a band of resolute men, called the
"fascisti," who have taken the law into their own hands, as did the
vigilance committees in western mining camps, to put down worse
disorders.
Even England, the mother of democracies, and the most stable of all
Governments in the maintenance of law, has been shaken to its very
foundations in the last three years, when powerful groups of men
attempted to seize the State by the throat and compel submission to
their demands by threatening to starve the community. This would be
serious enough if it were only the world-old struggle between capital
and labour and had only involved the conditions of manual toil. But the
insurrection against the political state in England was more political
than it was economic. It marked, on the part of millions of men, a
portentous decay of belief in representative government and its chosen
organ--the ballot box. Great and powerful groups had suddenly
discovered--and it may be the most portentous political discovery of the
twentieth century--that the power involved in their control over the
necessaries of life, as compared with the power of the voting franchise,
was as a forty-two centimetre cannon to the bow and arrow. The end
sought to be attained, namely the nationalization of the basic
industries, and even the control of the foreign policy of Great Britain,
vindicated the truth of the British Prime Minister's statement that
these great strikes involved something more than a mere struggle over
the conditions of labour, and that they were essentially seditious
attempts against the life of the State.[5]