The Theory of Social Revolutions - Brooks Adams
In the earlier Middle Ages, before gunpowder made fortified houses
untenable when attacked by the sovereign, the highways were so dangerous
that trade and manufactures could only survive in walled towns. An
unarmed urban population had to buy its privileges, and to pay for these
a syndicate grew up in each town, which became responsible for the town
ferm, or tax, and, in return, collected what part of the municipal
expenses 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. Presently 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
receive new members upon what Parliament considered to be reasonable
terms. Nevertheless, friction continued.
With advances in science, artillery improved, and, as artillery
improved, the police strengthened 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 themselves, they were ruthlessly and savagely plundered; and
fifty years later the Court of King's Bench gravely held that a royal
grant of a monopoly had always been bad at common law.[4]
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
monopoly, 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
grant monopolies, and finally Parliament--or King, Lords, and Commons
combined, being the whole nation in its corporate capacity,
--appropriated 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 sluggish capital sufficed. But as police improved, and
the area of competition broadened faster than capital accumulated and
quickened, the competitive phase dawned, whose advent is marked by Darcy
_v_. Allein, decided in the year 1600. Finally, the issue between
monopoly and free trade was fought out in the American Revolution, for
the measure which precipitated hostilities was the effort of England to
impose her monopoly of the Eastern trade upon America. The Boston Tea
Party occurred on December 16, 1773. Then came the heyday of competition
with the acceptance 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,[5] 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 pervades every corner of the Union. No matter 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 in that mysterious 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 in a point where competition
ceases, as when all the capital engaged in a trade belongs to a single
owner. Supposing ownership to be enough restricted, combination is
easier and more profitable than competition; therefore combination,
conscious or unconscious, supplants competition. The inference from the
evidence is that, in the United States, capital has reached, or is
rapidly reaching, this point of concentration; and if this be true,
competition cannot be enforced by legislation. But, assuming that
competition could still be enforced by law, the only effect would be to
make the mass of capital more homogeneous by eliminating still further
such of the weaker capitalists as have survived. Ultimately, unless
indeed society is to dissolve and capital migrate elsewhere, all the
present phenomena would be intensified. Nor would free trade, probably,
have more than a very transitory effect. In no department of trade is
competition freer than in the Atlantic passenger service, and yet in no
trade is there a stricter monopoly price.
The same acceleration of the social movement which has caused this
centralization of capital has caused the centralization of another form
of human energy, which is its negative: labor unions organize labor as a
monopoly. Labor protests against the irresponsible sovereignty of
capital, as men have always protested against irresponsible sovereignty,
declaring that the capitalistic social system, as it now exists, is a
form of slavery. Very logically, therefore, the abler and bolder labor
agitators proclaim that labor levies actual war against society, and
that in that war there can be no truce until irresponsible capital has
capitulated. Also, in labor's methods of warfare the same phenomena
appear as in the autocracy of capital. Labor attacks capitalistic
society by methods beyond the purview of the law, and may, at any
moment, shatter the social system; while, under our laws and
institutions, society is helpless.
Few persons, I should imagine, who reflect on these phenomena, fail to
admit to themselves, whatever they may say publicly, that present social
conditions are unsatisfactory, and I take the cause of the stress to be
that which I have stated. We have extended the range of applied science
until we daily use infinite forces, and those forces must, apparently,
disrupt our society, unless we can raise the laws and institutions which
hold society together to an energy and efficiency commensurate to them.
How much vigor and ability would be required to accomplish such a work
may be measured by the experience of Washington, who barely prevailed in
his relatively simple task, surrounded by a generation of extraordinary
men, and with the capitalistic class of America behind him. Without the
capitalistic class he must have failed. Therefore one most momentous
problem of the future is the attitude which capital can or will assume
in this emergency.
That some of the more sagacious of the capitalistic class have
preserved that instinct of self-preservation which was so conspicuous
among men of the type of Washington, is apparent from the position taken
by the management of the United States Steel Company, and by the
Republican minority of the Congressional Committee which recently
investigated the Steel Company; but whether such men very strongly
influence the genus to which they belong is not clear. If they do not,
much improvement in existing conditions can hardly be anticipated.
If capital insists upon continuing to exercise sovereign powers, without
accepting responsibility as for a trust, the revolt against the existing
order must probably continue, and that revolt can only be dealt with, as
all servile revolts must be dealt with, by physical force. I doubt,
however, if even the most ardent and optimistic of capitalists would
care to speculate deeply upon the stability of any government capital
might organize, which rested on the fundamental principle that the
American people must be ruled by an army. On the other hand any
government to be effective must be strong. It is futile to talk of
keeping peace in labor disputes by compulsory arbitration, if the
government has not the power to command obedience to its arbitrators'
decree; but a government able to constrain a couple of hundred thousand
discontented railway employees to work against their will, must differ
considerably from the one we have. Nor is it possible to imagine that
labor will ever yield peaceful obedience to such constraint, unless
capital makes equivalent concessions,--unless, perhaps, among other
things, capital consents to erect tribunals which shall offer relief to
any citizen who can show himself to be oppressed by the monopolistic
price. In fine, a government, to promise stability in the future, must
apparently be so much more powerful than any private interest, that all
men will stand equally before its tribunals; and these tribunals must be
flexible enough to reach those categories of activity which now lie
beyond legal jurisdiction. If it be objected that the American people
are incapable of an effort so prodigious, I readily admit that this may
be true, but I also contend that the objection is beside the issue. What
the American people can or cannot do is a matter of opinion, but that
social changes are imminent appears to be almost certain. Though these
changes cannot be prevented, possibly they may, to a degree, be guided,
as Washington guided the changes of 1789. To resist them perversely, as
they were resisted at the Chicago Convention of 1912, can only make the
catastrophe, when it comes, as overwhelming as was the consequent defeat
of the Republican party.
Approached thus, that Convention of 1912 has more than a passing
importance, since it would seem to indicate the ordinary phenomenon,
that a declining favored class is incapable of appreciating an
approaching change of environment which must alter its social status. I
began with the proposition that, in any society which we now understand,
civilization is equivalent to order, and the evidence of the truth of
the proposition is, that amidst disorder, capital and credit, which
constitute the pith of our civilization, perish first. For more than a
century past, capital and credit have been absolute, or nearly so;
accordingly it has not been the martial type which has enjoyed
sovereignty, but the capitalistic. The warrior has been the capitalists'
servant. But now, if it be true that money, in certain crucial
directions, is losing its purchasing power, it is evident that
capitalists must accept a position of equality before the law under the
domination of a type of man who can enforce obedience; their own
obedience, as well as the obedience of others. Indeed, it might occur,
even to some optimists, that capitalists would be fortunate if they
could certainly obtain protection for another fifty years on terms as
favorable as these. But at Chicago, capitalists declined even to
consider receding to a secondary position. Rather than permit the advent
of a power beyond their immediate control, they preferred to shatter the
instrument by which they sustained their ascendancy. For it is clear
that Roosevelt's offence in the eyes of the capitalistic class was not
what he had actually done, for he had done nothing seriously to injure
them. The crime they resented was the assertion of the principle of
equality before the law, for equality before the law signified the end
of privilege to operate beyond the range of law. If this principle which
Roosevelt, in theory at least, certainly embodied, came to be rigorously
enforced, capitalists perceived that private persons would be precluded
from using the functions of sovereignty to enrich themselves. There lay
the parting of the ways. Sooner or later almost every successive ruling
class has had this dilemma in one of its innumerable forms presented to
them, and few have had the genius to compromise while compromise was
possible. Only a generation ago the aristocracy of the South
deliberately chose a civil war rather than admit the principle that at
some future day they might have to accept compensation for their slaves.
A thousand other instances of similar incapacity might be adduced, but I
will content myself with this alone.
Briefly the precedents induce the inference that privileged classes
seldom have the intelligence to protect themselves by adaptation when
nature turns against them, and, up to the present moment, the old
privileged class in the United States has shown little promise of being
an exception to the rule.
Be this, however, as it may, and even assuming that the great industrial
and capitalistic interests would be prepared to assist a movement toward
consolidation, as their ancestors assisted Washington, I deem it far
from probable that they could succeed with the large American middle
class, which naturally should aid, opposed, as it seems now to be, to
such a movement. Partially, doubtless, this opposition is born of fear,
since the lesser folk have learned by bitter experience that the
powerful have yielded to nothing save force, and therefore that their
only hope is to crush those who oppress them. Doubtless, also, there is
the inertia incident to long tradition, but I suspect that the
resistance is rather due to a subtle and, as yet, nearly unconscious
instinct, which teaches the numerical majority, who are inimical to
capital, that the shortest and easiest way for them to acquire
autocratic authority is to obtain an absolute mastery over those
political tribunals which we call courts. Also that mastery is being by
them rapidly acquired. So long as our courts retain their present
functions no comprehensive administrative reform is possible, whence I
conclude that the relation which our courts shall hold to politics is
now the fundamental problem which the American people must solve, before
any stable social equilibrium can be attained.
Theodore Roosevelt's enemies have been many and bitter. They have
attacked his honesty, his sobriety, his intelligence, and his judgment,
but very few of them have hitherto denied that he has a keen instinct
for political strife. Only of late has this gift been doubted, but now
eminent politicians question whether he did not make a capital mistake
when he presented the reform of our courts of law, as expounders of the
Constitution, as one of his two chief issues, in his canvass for a
nomination for a third presidential term.
After many years of study of, and reflection upon, this intricate
subject I have reached the conviction that, though Mr. Roosevelt may
have erred in the remedy which he has suggested, he is right in the
principle which he has advanced, and in my next chapter I propose to
give the evidence and explain the reasons which constrain me to believe
that American society must continue to degenerate until confusion
supervenes, if our courts shall remain semi-political chambers.
FOOTNOTES:
[1] Charles River Bridge _v_. Warren Bridge, II Peters, 608, 609.
[2] Fitchburg R.R. _v_. Gage, 12 Gray 393, and innumerable cases
following it.
[3] See the decisions of the Commerce Court on the Long and Short-Haul
Clause. Atchison, T.&S.F. By. _v_. United States, 191 Federal Rep. 856.
[4] Darcy _v_. Allein, 11 Rep. 84.
[5] 68 Pa. 173.
CHAPTER II
THE LIMITATIONS OF THE JUDICIAL FUNCTION
Taking the human race collectively, its ideal of a court of justice has
been the omniscient and inexorable judgment seat of God. Individually,
on the contrary, they have dearly loved favor. Hence the doctrine of the
Intercession of the Saints, which many devout persons have sincerely
believed could be bought by them for money. The whole development of
civilization may be followed in the oscillation of any given society
between these two extremes, the many always striving to so restrain the
judiciary that it shall be unable to work the will of the favored few.
On the whole, success in attaining to ideal justice has not been quite
commensurate with the time and effort devoted to solving the problem,
but, until our constitutional experiment was tried in America, I think
it had been pretty generally admitted that the first prerequisite to
success was that judges should be removed from political influences.
For the main difficulty has been that every dominant class, as it has
arisen, has done its best to use the machinery of justice for its own
benefit.
No argument ever has convinced like a parable, and a very famous story
in the Bible will illustrate the great truth, which is the first lesson
that a primitive people learns, that unless the judge can be separated
from the sovereign, and be strictly limited in the performance of his
functions by a recognized code of procedure, the public, as against the
dominant class, has, in substance, no civil rights. The kings of Israel
were judges of last resort. Solomon earned his reputation for wisdom in
the cause in which two mothers claimed the same child. They were indeed
both judge and jury. Also they were prosecuting officers. Also they were
sheriffs. In fine they exercised unlimited judicial power, save in so
far as they were checked by the divine interference usually signified
through some prophet.
Now David was, admittedly, one of the best sovereigns and judges who
ever held office in Jerusalem, and, in the days of David, Nathan was the
leading prophet of the dominant political party. "And it came to pass
in an eveningtide, that David arose from off his bed, and walked upon
the roof of the king's house: and from the roof he saw a woman washing
herself; and the woman was very beautiful to look upon. And David sent
and enquired after the woman. And one said, Is not this Bath-sheba, the
daughter of Eliam, the wife of Uriah the Hittite? And David sent
messengers, and took her; and she came in unto him, and he lay with her;
... and she returned unto her house."
Uriah was serving in the army under Joab. David sent for Uriah, and told
him to go home to his wife, but Uriah refused. Then David wrote a letter
to Joab and dismissed Uriah, ordering him to give the letter to Joab.
And David "wrote in the letter, saying, Set ye Uriah in the forefront of
the hottest battle, and retire ye from him, that he may be smitten and
die....
"And the men of the city went out and fought with Joab; and there fell
some of the people of the servants of David; and Uriah the Hittite died
also.... But the thing that David had done displeased the Lord.
"And the Lord sent Nathan unto David. And he came unto him, and said
unto him, There were two men in one city; the one rich and the other
poor. The rich man had exceeding many flocks and herds:
"But the poor man had nothing, save one little ewe lamb, which he had
bought and nourished up: and it grew up together with him, and with his
children; it did eat of his own meat and drank of his own cup, and lay
in his bosom, and was unto him as a daughter.
"And there came a traveller unto the rich man, and he spared to take of
his own flock, ... but took the poor man's lamb, and dressed it for the
man that was come to him.
"And David's anger was greatly kindled against the man; and he said to
Nathan, As the Lord liveth, the man that hath done this thing shall
surely die: ...
"And Nathan said to David, Thou art the man. Thus saith the Lord God of
Israel ... Now therefore the sword shall never depart from thine house;
because thou has despised me ... Behold, I will raise up evil against
thee out of thine own house, and I will take thy wives before thine
eyes, and give them unto thy neighbor." Here, as the heading to the
Twelfth Chapter of Second Book of Samuel says, "Nathan's parable of the
ewe lamb causeth David to be his own judge," but the significant part of
the story is that Nathan, with all his influence, could not force David
to surrender his prey. David begged very hard to have his sentence
remitted, but, for all that, "David sent and fetched [Bathsheba] to his
house, and she became his wife, and bare him a son." Indeed, she bore
him Solomon. As against David or David's important supporters men like
Uriah had no civil rights that could be enforced.
Even after the judicial function is nominally severed from the executive
function, so that the sovereign himself does not, like David and
Solomon, personally administer justice, the same result is reached
through agents, as long as the judge holds his office at the will of the
chief of a political party.
To go no farther afield, every page of English history blazons this
record. Long after the law had taken an almost modern shape, Alice
Perrers, the mistress of Edward III, sat on the bench at Westminster and
intimidated the judges into deciding for suitors who had secured her
services. The chief revenue of the rival factions during the War of the
Roses was derived from attainders, indictments for treason, and
forfeitures, avowedly partisan. Henry VII used the Star Chamber to ruin
the remnants of the feudal aristocracy. Henry VIII exterminated as
vagrants the wretched monks whom he had evicted. The prosecutions under
Charles I largely induced the Great Rebellion; and finally the limit of
endurance was reached when Charles II made Jeffreys Chief Justice of
England in order to kill those who were prominent in opposition. Charles
knew what he was doing. "That man," said he of Jeffreys, "has no
learning, no sense, no manners, and more impudence than ten carted
street-walkers." The first object was to convict Algernon Sidney of
treason. Jeffreys used simple means. Usually drunk, his court resembled
the den of a wild beast. He poured forth on "plaintiffs and defendants,
barristers and attorneys, witnesses and jurymen, torrents of frantic
abuse, intermixed with oaths and curses." The law required proof of an
_overt act_ of treason. Many years before Sidney had written a
philosophical treatise touching resistance by the subject to the
sovereign, as a constitutional principle. But, though the fragment
contained nothing more than the doctrines of Locke, Sidney had
cautiously shown it to no one, and it had only been found by searching
his study. Jeffreys told the jury that if they believed the book to be
Sidney's book, written by him, they must convict for _scribere est
agere_, to write is to commit an overt act.
A revolution followed upon this and other like convictions, as
revolutions have usually followed such uses of the judicial power. In
that revolution the principle of the limitation of the judicial function
was recognized, and the English people seriously addressed themselves to
the task of separating their courts from political influences, of
protecting their judges by making their tenure and their pay permanent,
and of punishing them by removal if they behaved corruptly, or with
prejudice, or transcended the limits within which their duty confined
them. Jeffreys had legislated when he ruled it to be the law that, to
write words secretly in one's closet, is to commit an overt act of
treason, and he did it to kill a man whom the king who employed him
wished to destroy. This was to transcend the duty of a judge, which is
to expound and not to legislate. The judge may develop a principle, he
may admit evidence of a custom in order to explain the intentions of the
parties to a suit, as Lord Mansfield admitted evidence of the customs of
merchants, but he should not legislate. To do so, as Jeffreys did in
Sidney's case, is tantamount to murder. Jeffreys never was duly punished
for his crimes. He died the year after the Revolution, in the Tower,
maintaining to the last that he was innocent in the sight of God and man
because "all the blood he had shed fell short of the King's command."
And Jeffreys was perfectly logical and consistent in his attitude. A
judiciary is either an end in itself or a means to an end. If it be
designed to protect the civil rights of citizens indifferently, it must
be free from pressure which will deflect it from this path, and it can
only be protected from the severest possible pressure by being removed
from politics, because politics is the struggle for ascendancy of a
class or a majority. If, on the other hand, the judiciary is to serve as
an instrument for advancing the fortunes of a majority or a dominant
class, as David used the Jewish judiciary, or as the Stuarts used the
English judiciary, then the judicial power must be embodied either in a
military or political leader, like David, who does the work himself, or
in an agent, more or less like Jeffreys, who will obey his orders. In
the colonies the subserviency of the judges to the Crown had been a
standing grievance, and the result of this long and terrible experience,
stretching through centuries both in Europe and America, had been to
inspire Americans with a fear of intrusting power to any man or body of
men. They sought to limit everything by written restrictions. Setting
aside the objection that such a system is mechanically vicious because
it involves excessive friction and therefore waste of energy, it is
obviously futile unless the written restrictions can be enforced, and
enforced in the spirit in which they are drawn. Hamilton, whose instinct
for law resembled genius, saw the difficulty and pointed out in the
_Federalist_ that it is not a writing which can give protection, but
only the intelligence and the sense of justice of the community itself.