Part 5 (2/2)
I have thus summarized briefly and most inadequately some of the essential principles of the Const.i.tution. 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 Const.i.tution 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 doc.u.ment. Few doc.u.ments 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 doc.u.ment 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 Const.i.tution wholly resist the was.h.i.+ng of time and circ.u.mstance? Lord Macaulay once ventured the prediction that the Const.i.tution 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. Inst.i.tutions purely democratic will sooner or later destroy liberty or civilization, or both.... The American Const.i.tution is all sail and no anchor.”
In this last commentary Lord Macaulay was clearly mistaken. As I have shown, the Const.i.tution is not ”purely democratic.” It is amazing that so great a mind should have so little understood that more than any other Const.i.tution, 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 s.h.i.+p of state to its ancient moorings. The American Const.i.tution 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 Const.i.tution 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 Const.i.tution is something more than a written formula of government-it is a great spirit. It is a high and n.o.ble a.s.sertion, 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 G.o.d the things that are G.o.d'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 ill.u.s.trates 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 n.o.ble preamble to the Const.i.tution:
”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 Const.i.tution 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 Was.h.i.+ngton, Franklin, Madison and Hamilton by establis.h.i.+ng 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 n.o.ble 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 Was.h.i.+ngton'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 ill.u.s.trative 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 d.i.c.k 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]
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