# Popular Science Monthly/Volume 52/March 1898/An Apostate Democracy

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* AN APOSTATE DEMOCRACY.
By FRANKLIN SMITH.
WERE the founders of the American Republic to return to the scene of their memorable achievements, that which would surprise them most would not be the railroad or telegraph; it would be the change in the principles and practice of government that has taken place since their day. I do not mean to say that the marvelous discoveries of science would not arrest their attention. By no means were they without appreciation of the things that make for industrial progress. But to them the thing of most importance in the affairs of life was government. They felt that all was lacking where a people lacked the guarantee of freedom and justice. Where these were had, all else was possible. Sooner or later it would come as the triumph of individual thought and effort. Not so now. The government that insures freedom and justice, leaving the citizen to work out his own destiny, moral and industrial, is not the ideal of the statesman and philanthropist of to-day. Reverting to the ideal of feudalism, one that took the Anglo-Saxon four centuries to get away from, they conceive the government to be best that governs most. But in the eyes of the founders of the republic such a government was intolerable; for it was to escape despotism that they fought the Revolution.
These patriots were under as little delusion about the nature of democracy as a political power as they were about the nature of autocracy. What the history of the ancient and mediæval republics had taught them of its capacity for corruption and despotism their own experience had in no way tended to revise and correct. It had accepted bribes; it had exercised a religious intolerance that rivaled the Inquisition; it had sought to fill its exchequer by means as repugnant to honesty and freedom as those of any Valois despot. As ardent a democrat as Jefferson had no more taste for the tyranny of the majority than for any other tyranny. Upon his first inauguration, he seized the occasion to warn his countrymen ​against it. "All . . . will bear in mind this sacred principle," he said, proclaiming a truth more honored in the breach than in the observance, "that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights which equal laws must protect, and to violate which would be oppression." Madison, too, rejected the popular superstition that the government of the majority must be synonymous with wisdom and justice. "Wherever the real power in a government lies," he wrote, "there is danger of oppression. In our government, the real power lies in the government of the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from acts of the government contrary to the sense of the constituents, but from acts in which the government is a mere instrument of the major number of constituents. This is a truth of great importance," he added, disclosing a state of the popular mind that the experience of a century has not bettered, "but not sufficiently attended to." As is well known to the students of American history, the Federalists, who now take high rank among the saints of democracy, were even more distrustful of it than Jefferson and Madison. "General Hamilton," says Morris, presenting that statesman in a light that must make his socialistic worshipers feel that they have been burning incense to a false god, "hated republican government because he confronted it with democratical government, and he disliked the latter because he believed that it must end in despotism and be in the meantime destructive to the public morality." The vehement indictment of bluff old John Adams is worthy of Carlyle himself. "If," he writes, "you give more than a share in the sovereignty to the democrats—that is, if you give them the command or preponderance in the sovereignty, that is, the legislature—they will vote all the property out of the hands of you aristocrats, and if they let you escape with your lives, it will be more humanity, consideration, and generosity than any triumphant democracy ever displayed since creation."
Men possessed of such views of democracy as a political power were not likely to frame a government based upon the deification of the majority. Never having steeped themselves in the mysticism of political romance and speculation, they did not dream that the state could be wiser and more virtuous than the people that composed it. Nor could they think of it as a beneficent power, exhaustless in expedient and resource, that could, like a fairy, turn their footsteps from every pitfall and, by the wave of a wand, shower upon them all the blessings of existence. What they conceived it to be was ​more in touch with reality—a voluntary association of citizens with equal rights. What they expected of it was not so transcendent of the limits of the possible—protection in the enjoyment of those rights. In the Declaration of Independence, so much sneered at and yet so deeply rooted in the truths of social science, they announced that all men were "endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted, . . . deriving their just powers from the consent of the governed." "All men," said one of the Bills of Rights to be found in the State Constitutions that followed in the wake of the Declaration, "are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they can not by any compact deprive or divest their posterity—namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and of pursuing and obtaining happiness and safety." No state socialism here; no feudal regulation of industry or morals: only devotion to a freedom, indispensable to happiness and social development, and a demand for its protection.
Upon the meeting of the convention called to frame a government for the territory wrested from British despotism, there was no purpose in the minds of the delegates more distinct than to insure this protection. Indeed, it was paramount; it dominated every other thought. To "establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity"—such is the simple but noble and adequate motive they ascribed to themselves, a motive hitherto absent from the world of political thought and action. As if apprehensive that these patriots and statesmen had not been sufficiently explicit to guard against despotism, as odious in the government of the many as of the one, the people demanded the amendment that no person shall "be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation." Later, the apprehension still existing that the provision made to "secure the blessings of liberty to ourselves and our posterity "was still imperfect, another amendment was added. "No State," it says, putting a restraint upon a despot that has exercised a power far more destructive of freedom than that feared by the fiercest opponent of the Federal Government, "shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property ​without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Of the pressing need of this restraint, no better proof is to be had than the mass of litigation involving it that has come before the courts since its adoption.
But liberty and justice, the sole warrant of any community to the title of a free democracy, are not born of a constitution, however ingeniously provided with checks and balances or devoutly worshiped in leader and speech. Hardly had the new Government been launched before there was another of the countless demonstrations that the wisest resolution is no certain bar to the greatest folly—that boast as the political quack may of the efficacy of his machinery, it has neither potency nor virtue beyond the people that work it. Despite the sacredness of the Constitution, so piously worshiped by the party in power, it was remorselessly wrenched to add Louisiana to the Federal domain. With like disregard of its inviolable principles of freedom, the alien and sedition laws were passed in a time of peace; and without the excuse of war, the embargo was established. Under the Nemesis of political intrigue, the electoral provisions of the new Magna Charta were permitted to lapse without a twinge of remorse. Long before the republic, so solemnly ordained "to establish justice" and to "promote the general welfare," had passed the first half century of its existence, its citizens had discovered how it could be converted into a powerful instrument of private greed. The tariffs of 1816, 1824, and 1828 were progressive applications of the ethics of the robber barons. The American spoils system, an institution sacred to the memory of the most democratic of democrats, was only a metamorphosis in the interest of the politician of the monarchical system of official favorites.
Despite these violations of liberty and justice, the theory and practice of government for the first seventy years of the republic were in the main a realization of Jefferson's ideal. If it had not always been "wise," it had been "frugal." If it had sometimes taken "from the mouth of labor the bread it had earned," it had restrained "men from injuring one another," and left "them otherwise free to regulate their own pursuits of industry and improvement." Under this regime of freedom, the American people wrought the greatest industrial miracle of history. They won a continent from savagery, and turned forests and prairies into farms and gardens; they built hundreds of towns and cities, and established industries of mining and manufacturing of fabulous wealth; they engaged in moral and social reforms that promised a new earth, if not a new heaven. In a word, they ​exhibited a capacity unparalleled since the advent of man to solve "the problems of life" without other impulse than their love of toil and devotion to improvement. But, with the outbreak of the civil war, a new political and social philosophy became the vogue. It was the product of the conditions that always spring from desperate conflicts. Men of action, coping with insurrection, had no taste for the refinements of political speculation, and no use for the limitations of a Constitution. Nothing was of importance to them except the measures that would save the Union. Even freedom, private interests, and cherished institutions had to yield to the exigencies of the hour. Hamilton had feared that "the States, with every power in their hands, will make encroachments upon the national authority till the Union is weakened and dissolved"; but under the terrific stress of war the Federal Government became omnipotent, threatening to reduce them to administrative departments. Whatever power was thought necessary to raise troops, or to provide revenue, or to crush opposition, was intrusted to it or arrogated by it. No matter how violative of moral or economic law, every act was defended, first, on the ground of necessity, and, later, on the ground of wisdom. When the war was over, the Federal Government, which had performed such miracles, had not simply become all-powerful; it had become all-wise. There was no work it was not thought fitted to do.
When account is taken of the resistless influence of war upon thought and institutions, the revolution wrought in the theory and practice of government in the United States within the past thirty years does not belong to the domain of mystery. It is not to be classed as an inscrutable decree of Providence, designed to hasten the work of civilization. This enlargement of the sphere of government and the loss of freedom it involves have a less cheerful significance. Thy mean that a nation has suffered from the ravages of conflict. Instead, therefore, of welcoming the change as a beneficent "tendency of the times," to use the current phrase, it should be resisted as an onslaught of the forces of barbarism.
To be sure, the founders of the republic had not worked out with Mr. Spencer's precision a theory of government. Science had not put them in possession of the knowledge that has enabled him to define the limits of public authority. Yet in their denunciations of British despotism and in the Bills of Rights with which they prefaced their Constitutions, they set forth principles quite as hostile as those of his Justice to the state socialism now current. Neither did they apply with his rigor of logic the principles of freedom they did proclaim. Widely, at times, did they depart, as I have said, from ​their political creed. But if not averse to the encouragement of industry that a moderate tariff would give, they never imagined that the throttling of trade, such as began with the Morrill act and ended with that of Mr. Dingley, would come to be defended as a blessing in itself, and turned into a gospel of national wealth and happiness. Nor did they conceive that the Constitution, framed while the memory of the countless evils of an irredeemable currency was still fresh, would ever be quoted in approval of a step so calamitous. Least of all did it occur to them to resort to the power of taxation to suppress the right of a bank to issue its notes, and, with such tyranny as a precedent, to crush a growing traffic in a wholesome food, like the chemical substitutes for butter and cheese, and to extinguish a gambler's passion, like the patronage of a lottery or the solution of missing-word puzzles. They believed with Mr. Spencer that government had a different object. When, however, a nation becomes perverted, as Americans have been, by the evils and ethics of war, the maintenance of peace and freedom ceases to be an article of passionate faith; it is no longer an object of ceaseless pursuit. With ideas and feelings unconsciously and irresistibly shaped, not by constitutions and rational discussion, but by militant necessities, people do not look to themselves for the blessings of life; they look to the power that has shielded them from ruin. To it they intrust, without a doubt of their wisdom or a suspicion of their enslavement, a thousand duties that they alone should assume.
It is not the ignorant and thoughtless that fall a prey to the operation of a social law that they do not understand. People of intelligence and learning as well yield to the bondage of their environment. A member of the United States Supreme Court has repudiated as completely as any blatant socialist the peerless truth that the only government of a free democracy is the one that Jefferson described—the one that "shall restrain men from injuring one another" and "leave them otherwise free to regulate their own pursuits of industry and improvement." In an address before the American Bar Association, Justice Brown endowed the State with the paternal authority of a feudal despotism. "It may," he said, "fix the number of hours of a legal day's work, provide that payment be made at certain stated periods, protect the life and health of workingmen against accidents or diseases arising from ill-constructed machinery, badly ventilated rooms, defective appliances, or dangerous occupations, and may limit or prohibit altogether the labor of women and children in employments injurious to their health or beyond their strength. . . . It may," he added, describing still further the attributes of a government of the fourteenth century instead of the nineteenth, "by constitutional amendment, if necessary, ​forbid the charter of business corporations for any other purpose thanthose of mining, manufacturing, insurance, or transportation, and especially may inhibit those for farming and trading purposes, or trafficking in any manner in the necessaries of life. . . . It may put an end to combinations having for their object the control and monopoly of particular articles of manufacture. . . . It may put a stop to the vicious system of building railroads and other public works through construction companies organized by the directors of their road in their own interest." He went so far as to express his belief that, if need be, the State might limit the size of bequests. "With its unlimited power to dispose of decedents' estates," he continued, "I know of no reason why the Legislature may not limit the amount which any single individual may take by gift or devise, and thus bring about, to a certain extent, the breaking up of enormous fortunes upon the death of the owner." Becoming the victim of a principle based upon a false practice, he plunged to deeper depths of paternal despotism. "I have never been able," he argued, as is so frequently done these days, "to perceive why, if the Government may be safely intrusted to carry our letters and papers, it may not with equal propriety carry our telegrams and parcels; . . . or why, if our municipalities may supply us with water, they may not also supply us with gas, electricity, telephones, and street cars."
Were such apostasy to the principles of the founders of the republic confined to the expression of opinion, there might be little occasion for protest or alarm. But it has passed into legislation, both State and Federal, there to work its inevitable havoc, both moral and industrial. Since the close of the war, the laws proposed and enacted in Congress have constantly increased in scope and volume. The solicitude of statesmen is not that of Hamilton and Jefferson—to make the Federal Government the preserver of peace and the protector of freedom—but to convert it into a universal beneficence to fit out fools with brains and to render innocuous the virus of indolence and perversity. Upon the assumption that the American farmers, who have solved so many problems, from the extirpation of beasts and savages to the reclamation of forests and bogs, are no longer able to cope with a grub or beetle or to renew the life of an exhausted soil, an insignificant bureau has been turned into a great department of state. Not only has it been charged with the distribution of seeds, often more valuable to politicians than to agriculturalists, and of voluminous reports more common in junk shops than in libraries, but it has just been authorized to furnish its helpless wards with sample stretches of model roads. As if those miracles of ​industrialism, the railroads of the country, had fallen into the hands of incompetent knaves to be used to plunder and impoverish their patrons, a powerful commission has been mercifully provided to avert the disaster. So slight is the confidence to be placed in the integrity of the men of genius intrusted with the solution of the difficult and complicated problems of transportation that they are denied the freedom to make the needful agreements to forestall the ruin of cutthroat competition. With the faith of idolaters in a state supervision that has been pronounced a failure, the apostates propose that the Government shall depart still further from its legitimate functions, and assume itself the ownership of the railroads, thus adding billions to the spoils to be fought for in caucus and convention. Enamored of the dubious success of the Postal Department, whose wretched management has furnished a deficit for sixty years, they demand that it shall saddle itself with a telegraph service and a savings attachment. A postmaster general has so far taken leave of his senses as to suggest that the savings shall be devoted to the construction of public buildings, which would necessitate the taxation of the depositors to meet the interest paid to them, and make it impossible to provide ready money in case of a run. But it is not alone in the regulation of the great interests of life like agriculture and transportation that the Federal Government has favored the American people with its paternal care and superior wisdom. Descending to more personal matters, it has begun to look after their food and drink. I have mentioned the legislation against the chemical substitutes for butter and cheese. Other legislation, equally violative of personal freedom, seeks to rescue the country from the degradation due to the cheaper grades of tea. Thanks to enlightened statesmen, it must be over a brew of the leaf that has met the official test that the assassins of character will continue the pursuit of their favorite diversion.
The loss of freedom involved in the thousand restraints upon activities that have no kinship with crime is not, however, the most odious product of the civil war. That distinction belongs to the spirit of proscription that now animates the American people—the spirit that formerly took, and still takes to some extent, in the militant countries of Europe, the hideous form of a barbarous persecution of the Jewish race. For three quarters of a century they boasted that the United States were the refuge of the oppressed and unfortunate of all countries. Heartily did they welcome every immigrant, not a pauper or criminal, that was willing to work, no matter whether ignorant or literate, yellow or white. They even sent agents abroad to seduce with stories of freedom and plenty the impoverished victims of military despotisms. With their vast ​resources undeveloped, they felt, as does every free industrial nation before its apostasy, that too many strangers anxious to better their lot could not come among them and share their blessings. But after the curse of militancy had inclined them, as it inclined the republic of Athens and that of the Dutch, to proscription, they began to change their attitude toward aliens. From the policy of excluding the products of foreign labor, they passed to the policy of excluding foreign labor itself. At the same time they sought to justify themselves with the specious logic that springs from war. Though always contentious of the inevitable triumph of their civilization, they declared that it could not withstand the invasion of Oriental habits and customs. In the face of the fact that no amount of knowledge ever transformed vice into virtue, they insisted that without the test of literacy to bar the ignorance and crime of Europe, the institutions of the republic could not survive. Nothing more hypocritical can be found in the pleas of any of the great brigands of history for their assaults upon the rights or territory of the people ill fated enough to evoke their envy or hatred.
The step from attacking foreigners by prohibitory tariffs and immigration laws to attacking them by means more direct is only a short one. That the American people have taken it already once or twice, and are about to take it again, need cause no surprise. When they were under the domination of slavery, a militant institution stimulative of aggression, it was but yielding to the barbarous impulse that possessed them to annex Texas, to wrest from Mexico a vast domain, and to seek to own the island of Cuba. It was but yielding to the same hateful impulse when, a few years after the close of the civil war, they tried to make Santo Domingo a part of the Union. That act of apostasy to the principles of a free democracy was only averted by the courageous efforts of the few men in public life that still felt profoundly the truths of the Farewell Address. Since then, however, the teachings of Washington have again fallen into disrepute. In the clamor for a "vigorous foreign policy" and the annexation of Hawaii, we have another manifestation of the spirit of aggression that nerved the arm of the slave driver as he wielded the lash and fired him with lust for the lands of other peoples.
The impulse toward despotism since the outbreak of the civil war has not been confined to the Federal Government. The forces of aggression let loose by that terrific struggle have passed to every part of the body politic. It has seemed, in fact, as if they gathered momentum as they became diffused. While the States have not, as already said, encroached upon the rights of the central authority, they have ravaged like flames the field of individual rights. History ​does not name the despot that rivaled them in edicts for the regulation of the conduct of his subjects. The enactments of some legislatures number more than a thousand in a single session, and the enactments of all of them more than ten thousand. Is it any wonder that the accumulated mass of these experiments in legislation is fast throwing the law into a state of confusion, defying the labors of lawyers to master it, and of judges to interpret it, and that the American people are beginning to grasp wildly for any scheme that promises deliverance from the evil?
Like the Federal Constitution, the State Constitutions exhibit an anxious desire to rescue from destruction "the unalienable rights." Nearly all of them contain a version of the famous clause of the Magna Charta. "Were the fundamental principles of government set forth in them rigidly observed, the political despotism that now threatens to overthrow free institutions as completely as in Italy at the close of the middle ages would not be possible. "Absolute, arbitrary power over the lives, liberty, or property of freemen," says the Constitution of Wyoming as well as that of Kentucky, "exists nowhere in a republic, not even in the largest majority." More specific, the Constitution of North Dakota declares that "all men are by nature equally free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property and reputation, and pursuing and obtaining safety and happiness." Nothing could be more admirable than the Constitution of Missouri. It asserts that "all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails of its design." The indisputable implication is that the functions of government should be limited to the preservation of order and the enforcement of justice. Were it to undertake anything else, it would not promote "the general welfare"; it would promote the welfare of some at the expense of others. Instead of the system of distribution by private contract, the only equitable one possible, it would introduce the system of distribution by force or favor. Instead of insuring to people "the enjoyment of the gains of their own industry," it would take the gains of some to bestow upon others.
But there is no such correspondence between principle and practice. More even than the acts of Congress do the acts of legislatures illustrate the impotency of any political contrivance, however ingenious, to curb the instincts of a degenerate democracy. Until ​recent years the theory of constitution-makers has been that general rules would suffice for the guidance of the patriots that represent the people. But the creed of the Russian highwayman, who offers a prayer before he commits a crime, could hardly be more impotent. Then the theory was adopted that more specific directions would possess a greater virtue. Accordingly, the inhibitions of a statute rather than the principles of a charter became the dominant trait of later constitutions. But all in vain. One has been as impotent as the other. "No act," says the Constitution of Indiana, "shall take effect until the same shall have been published and circulated in the several counties in this State by authority, except in case of emergency, which emergency shall be declared in the preamble or the body of the law." Still, out of two hundred laws passed at one session of the legislature, more than two thirds of them contained the lying declaration that "whereas an emergency exists for the immediate taking effect of this act, it shall therefore be in force from and after its passage." "The General Assembly," says the Constitution of Ohio, repeating a provision common to the Constitutions of other States, "shall pass no special act conferring corporate powers." Yet, of the laws of a single session, fifty were in violation of this provision. A similar provision exists in the Constitution of Tennessee. But only thirty-five of the two hundred and sixty-five acts passed at one session omitted the flagrant falsehood that the "public welfare" required their immediate enforcement. One of these laws so essential to the "public welfare" provided only for the change of the line of a lot. "No county, city, town, or village," says the new Constitution of New York, "shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, or association, or corporation." To such an extent has this important restriction been disregarded that in one year alone over three million dollars of public funds were put into the hands of private charities. Clergymen and philanthropists even defended the shameless evasion, and the consequent plunder of taxpayers, in the name of humanity.
"Can we believe," said De Tocqueville, grasping sixty years ago the melancholy significance of this want of deference to the most solemn obligations that can be put upon people that govern themselves, "that democracy, which has destroyed the feudal system, will respect the rights of the citizen and capitalist? Will it stop now that it has grown so strong and its adversaries so weak?" If there is little in its contempt for written constitutions to warrant a cheerful answer, there is still less in the most cursory analysis of its State and Territorial legislation. "Statutes have been passed," said Mr. James M. Woolworth before the American Bar Association, giving a glimpse of the character of this legislation, "which have usurped a ​man's right to his own, and made contracts for him that he would not have made for himself."
Not the slightest heed is given to the fundamental induction of social science that the advancement of civilization means the enlargement of individual freedom and the growth of moral control. So vast and complex is the machinery of modern industrialism that its management must be left to the people that have staked their fortunes and reputations upon its success. They alone possess the incentive to pursue the line of conduct that shall not evoke the censure of the community, and to make the changes in production and distribution that shall always be adjusted to varying needs and tastes. But the new theory of civilization is that the more enlightened a people become the more unfit they are to shape their own private conduct and to control their own private business. The corollary is that the only power competent to take charge of both and thus avert the untimely crack of doom is the one generated by those marvelous mechanisms of intrigue and corruption—the ballot box and party government. Contemptuous of the irrefutable statement of Buckle that "the best laws which have been passed have been the laws by which some former laws were repealed," legislators are reviving in the New World all the restrictions that crushed the individual and industry in the Old. Creating boards, superintendents, and commissions for almost every conceivable purpose, from the examination of barbers and plumbers to the control of insurance and railroad companies, they are subverting not only personal freedom but local self-government. "One may wonder," says Mr. Gamaliel Bradford in a letter to the Boston Herald, calling attention to this amazing reversion to the despotism of the past, "how many people are aware of the social revolution which is going on year by year at the statehouse; the steady undermining of the local self-government which has been the pride and boast of the State for more than two centuries; the process by which we are being drawn under the centralizing despotism of the Legislature exercised through commissions set up. . . at its pleasure. There are now thirty-four of these," he says, giving figures being rapidly duplicated in other States, "many having extensive executive powers and under no effective responsibility whatever." Like the legislatures themselves, they are new centers of intrigue, corruption, and despotism. Playing the role of the old court favorites, intrusted with some monopoly by a complaisant autocrat, they bestow privileges and suppress rights.
The form of property that has most frequently attracted the malign attention of the apostates of democracy is corporate property. Especially provocative of their philanthropy and greed have been those large combinations of capital known as trusts, which are now ​the great engines of demagogues to inflame the passions of ignorance and poverty, and to extort blackmail with which to carry on political campaigns and to promote private enrichment. Little or no effort is made to discover whether they are the product of vicious legislation, like tariff laws or imperfect corporation laws, or whether they grow out of economic conditions beyond human control. It is enough that they exist; that, like other members of the society that fosters them, they exercise despotic power; that they serve the purpose of a telling battle cry; that they may be pitilessly plundered. Hence their suppression has become within a year or two a favorite outlet for legislative ignorance, prejudice, and rapacity. Much of the legislation against them is for political purposes, and was never intended to be enforced. But that does not alter the fact that it is violative of the fundamental principles of a free democracy, and indicative of the vice that is fast subverting the purposes of the republic. The antitrust law of New York authorizes one of the most odious practices of the Inquisition—namely, the citation of a witness suspected of a crime under it to give testimony that shall furnish a basis for his indictment and punishment. The antitrust law of Mississippi makes any evidence that a trust or combination intended to affect the price of a commodity, conclusive that the price was affected, and authorizes the infliction upon the innocent of the penalty that should be reserved for the guilty alone. What points could not the authors of such laws have given to the famous despots of history?
The corporate property that has suffered most from the raids of these modern Vandals is the railroads. Originally regarded as the most important and valuable contribution that invention had made to civilization, they were fostered in every way. Now they are regarded as among the greatest of "the social evils" that statesmanship and philanthropy are combating so energetically. By a feat of logic not uncommon to "thinkers" as well as to demagogues, they have been differentiated as creatures of the State, having no rights except those that the State concedes. Upon the vicious theory first proclaimed in the famous Chicago elevator case, that, unlike other forms of business to meet human needs, they are "affected with public interest," and are not, therefore, private property, entitled to all its rights and privileges, they have been subjected to a despotic supervision that has brought them to the verge of ruin. Denied the right of freedom of contract, one of the "unalienable rights," they are not permitted to make their own rates of transportation. Not ​believed to be moved, like other commercial enterprises, to seek the convenience and approval of their patrons, they have been forced to construct depots in towns of a certain size, no matter whether business warranted it, to arrange the movement of trains on connecting lines to save a traveler from delay, and to post bulletins to acquaint the impatient public with belated trains and the hour of their arrival. It is assumed by another class of legislation that they revel in the destruction of life and property and the persecution of their employees. One State at least requires the erection of stage planks or the use of trucks for the reception of baggage. In another, locomotives must be armed with lookouts to warn heedless trespassers, and in case of injury or death the company must prove affirmatively that it was not guilty of negligence. In still other States it is provided that there shall be no reduction of salary without a month's notice, no discharge of employees without reasons, if demanded, and no record, or black list, of incompetents or rascals. Even the establishment of relief departments, to which no one is obliged to contribute, is prohibited. To show still further that railroads have no rights that the high-minded legislator is bound to respect, it is provided by one law that they shall pay the charges of other carriers on freight delivered to them; by a second, that they shall issue passes to shippers of certain commodities; and by a third, not confined to railroads, that they shall not employ detectives or other persons to discover dishonesty or to protect their property from the destruction of rioters. In so humane an age as the present, thieves would hardly be refused a privilege so unquestionably just.
As yet but two other classes of corporations outside of elevator and railroad companies have been denied the right to fix the price of their services. This baleful movement of democratic despotism has overtaken telegraph and telephone companies, and threatens the gas and street-car companies. The corporations still free from it have not, however, escaped the blasting solicitude of the social reformers. The owners of mills, factories, and mines have suffered severely from it. But if their hours of toil have been shortened to the verge of disaster; if their discipline of the careless and incompetent has been modified to the point of impotency; if they have had to put up their buildings and to guard their machinery in prescribed ways, not always the wisest; if, in a word, they have been bound and gagged by regulations that rival those with which Colbert throttled the industries of France, the story of their oppression is too much like that of the railroads to need recital. Of more interest because more novel is the oppression of the insurance companies, which, like the railroads, require ability and character of the highest order, and a special knowledge that few legislators take the trouble to master. ​Yet they, too, have been treated like fools or knaves. In both fire and life insurance, heavy inroads have been made upon the right of private contract. Fire-insurance companies are forbidden to limit their liability. To encourage the industry of the incendiary, they are denied the right to contest on the ground of fraud the loss they shall pay. Besides crushing their freedom, legislators have raided their revenues. In one State at least contributions are exacted in support of the fire departments in towns of a given size. More onerous than those of fire insurance, the laws in regulation of life insurance declare that the statements made in a policy shall be representations only, and even if false, shall not impair the validity of the contract; that an agreement that a contest shall defeat recovery shall be void; and notwithstanding any provisions of the policy, the non-forfeiture law of the State shall control its interpretation. Official forms of contracts, deemed by Leroy Beaulieu to be the very essence of socialism, are framed and enforced. Although the mortality of blacks is greater than that of whites, no discrimination is permitted; and should an agent wish to add to his business by the abatement of his commissions, he can do so only at the risk of prosecution as a criminal. As well might the physician or attorney be punished for the acceptance of a fee below an official rate.
The vicious assaults of the legislatures upon the rights of corporations are paralleled by equally vicious assaults upon the rights of individuals. Here the police powers of the State have been subjected to the same abuse that has overtaken "the general welfare" clause of the Federal Constitution. Under the cover of them, greed and philanthropy have made equal inroads upon the liberty that Americans boast of so frequently and violate so shamelessly. To such a degree have they been stretched that scarcely a form of human activity from birth to death, both included, has not been subjected to meddlesome supervision. In the absurd attempt of impertinent persons to square the conduct of neighbors to their own notions of right and wrong, the whole field of health, labor, morals, and education has been cultivated with a zeal unequaled in modern times.
Take the laws in revival of the old trade and professional corporations, which were so long a bar to civilization, and did so much to inflame the French Revolution. Those that the plumbers, undertakers, and horseshoers on the one hand, and the dentists, druggists, and physicians on the other, have obtained are as repugnant to the principles of a free democracy as the feudal monopolies of Louis XI and Queen Elizabeth. Yet they have the sanction of the highest court in the land. "In the nature of things," says Justice Bradley, defending this despotic exercise of the police powers of the State, ​"it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator," he added, framing a rule that would apply to every form of human activity from that of a cook to that of a statesman, "to prescribe regulations founded upon Nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence." Going a step further in the assertion of this power of a paternal despotism, Judge Napton, of the highest court of Missouri, has declared that "the State legislatures have the power, unless there be something in their own Constitution to prohibit it, of entirely abolishing or placing under restrictions any trade or profession which they may think expedient." Imagine what Jefferson would think of such a doctrine, one that would have obliged him to hunt for a licensed blacksmith to shoe the horse that he rode to the capital to deliver his famous address! Imagine what John Adams would say at the discovery of a law that would not have permitted him to build a drain to his own house, or to buy of a jobber the pipes and faucets needed to repair his plumbing! Would they not be moved to issue a new Declaration, and to fight another War of Independence?
No class of people has suffered more from despotism or has a greater interest in freedom than wage-earners. Civilization made its longest stride when they ceased to be slaves or serfs, and gained the right to go wherever work was to be had and to make with their employers such agreements as they pleased. Still, no class has more completely falsified the praise of Sir Henry Maine, the highest that can be paid to a free democracy. "The American people," he wrote scarcely more than a decade ago, "are still of the opinion that more is to be got for human happiness by private energy than by public legislation." To-day it is upon the State rather than public opinion on the one hand, and industry and frugality upon the other, that toilers have come to rely for the redress of grievances and the procurement of abundance. Guilty themselves of every act of aggression they complain of, they have had enacted the most despotic and discriminating legislation to be found in the statute books. Besides the well-known laws in regulation of the work of women and children, there is a multitude of other laws still more destructive of freedom. I have mentioned those that require ​railroads and other corporations to give reasons for dismissals, and forbid them to list the knaves and incompetents. But, whatever be the benefit of such laws, the employees of farmers or merchants have no share in them. Equally odious discriminations provide that goods made by union labor shall have the protection of special labels; that wage creditors shall have the preference over clerks and domestic servants; that in suits for manual services, the plaintiff shall get special attorney's fees from the defendant. To the great inconvenience of labor as well as capital, it is not permitted to pay wages in longer periods than those prescribed, or in commodities other than legal tenders. Finally, there are laws that fix the length of day and the rate of wages on public works, thus plundering the men who have to work a longer day and at the lower wages of free competition. But instead of overthrowing by such enactments the despotism of capital, labor only stimulates its growth. For every bureau, every inspector, every aggression on an employer or a fellow-employee, is another drop of vitriol poured upon its own wounds—another nail driven into the coffin of its own freedom.
Though the descendants of the self-reliant and liberty-loving New-Englanders, the farmers of the United States have also fallen a prey to the vicious principles of an apostate democracy. Many of them have surpassed the foreign-born citizens themselves in their devotion to the political ideas that belong to the military despotisms of Europe. In some of the Southern and Western States, where the Anglo-Saxon blood is purest, the subtreasury scheme, the free coinage of silver, and the government ownership and management of railroads and telegraphs have had their greatest vogue. Only among the peasants of the old régime would it be possible to find the prototypes of the men that have lost their skill in wresting a living from an exhausted or a half-cultivated soil, and clamor for the aid of the State in their struggle with the forces of Nature and the competition of their fellows. When some De Tocqueville of the future shall study the subversion of American freedom, what a curiosity will he find in the law with its bureaucratic machinery for the extirpation of the gypsy moth! How he will marvel over the decadence of the people that appeal to the same power to save their fruit trees from the ravages of disease and insects, and their fields from the invasion of noxious weeds! If the farmers themselves fail to apply the remedies that benevolent legislators have prescribed, equally benevolent officials are authorized to destroy the trees found diseased, and uproot the weeds before they go to seed. Similar laws have been enacted for the protection of the health of domestic animals. One provides that sheep must be annually dipped to guard against scab. In the case of cattle suspected of ​tuberculosis, officials may subject them to tests, and, if necessary, seize and kill them. In many States the pedigree of an animal has become more important than that of a man, and any falsification of the family tree of a horse or pig is severely punished. Other legislation assumes that Yankee prudence and shrewdness have passed away. Instead of facilitating redress against all frauds, it contains elaborate provisions in regard to the sale of bogus seeds and fertilizers. Finally, there is a mass of legislation, like beef-inspection laws and laws for the regulation or suppression of oleomargarine, that pretends devotion to the public welfare. But its principal object is to cater to greed and to establish monopolies.
Of the liveliest interest to the philanthropic statesman have been all subjects that relate to humanity, morality, and education. It has seemed as if he thought that without his malevolent interference his fellows would lapse into hopeless ignorance and barbarism. Accordingly, he has been at infinite pains to suppress intemperance, to stimulate sympathy and acts of kindness, and to break down any monopoly of intelligence and learning. In all the States there have been established huge and costly mechanisms for the wholesale inculcation of public and private wisdom and virtue. That no child might, through a perverse inclination or parental neglect, wander from the ranks of the droves crowding the public schools, compulsory education has been established. Agents have been appointed to hunt down little delinquents, and veritable prisons constructed to force them to quaff at the fountains of knowledge. More antagonistic even to the principles of a free democracy are the private organizations invested with the police powers of the State to suppress cruelty and vice. Outside of the machinery of responsible government, they wield an authority not subject to the checks of the police. The State has no more to do with the appointment of their agents, who may be grossly ignorant and incompetent, than with the appointment of the agents of a railroad or insurance company. Although supposed to be superior men, I have known them to practice tricks to catch their victims that would disgrace a knave, and to violate private rights with a recklessness hardly surpassed in Russia. The great mass of legislation in regulation of bibulous habits and customs is another reckless invasion of private rights. Without trying to discuss a subject that would fill a volume, I may mention two laws at least that illustrate in an alarming way the assimilation of democratic institutions with those of feudalism. One is the liquor law of New York, with its multitude of despotic and discriminating provisions, inviting evasion, and its centralized officialism, already shown to be grossly inefficient, if not depraved, to enforce them. The other is the dispensary law of South Carolina, which has created ​a far more powerful bureaucracy, and has led to much greater social and political demoralization.
The spirit of proscription as well as restriction, so conspicuous in Federal legislation since the civil war, is also potent in State legislation. The Federal Constitution has, of course, made it impossible to establish tariff barriers between the States. But the exaction of licenses of commercial travelers and other checks to inter-State commerce show no lack of will or effort to evade the provision. More successful schemes to prevent foreign competition have been the laws that exclude non-residents from oyster beds and salmon fisheries. Other legislation, equally repugnant to American freedom, forbids to citizens or corporations of other States the ownership and operation of railroads. The feeling against the residents of foreign countries is still more irrational and hostile. The immigration offices established in many States during the period of enlightenment and tolerance have, I believe, with but a single exception, all been abolished. Not only have some of the States forbidden the employment of aliens on public works, but they have forbidden them the ownership of lands within their borders. So rampant has the spirit of intolerance become within the past two years that their exclusion from all other forms of investment has been suggested. Yet we continue to boast of American freedom and enlightenment!
Without tracing the apostacy of American democracy into the narrower but not poorer field of municipal legislation, with its countless ordinances from the regulation of the use of nursing-bottles to the suppression of department stores, let us inquire into the fruits of these exhaustive labors of philanthropists and statesmen. Let us ask whether the one have been commensurate with the other. Have the American people been made moral and humane? While more insistent upon their own rights, have they become more considerate of the rights of others? Can it be said, in a word, that social, political, and industrial life to-day indicates a higher civilization than before the war?
Not to one of these questions can an affirmative answer be given. At no time since the adoption of the Constitution has there been such widespread and well-founded complaint about the greed of capital, the tyranny and brutality of labor, the shocking prevalence of crime, especially lynchings, and the corruption and degradation of politics with the unprecedented growth of the boss system. A legislature does not sit, be it State or national, that is not besieged by men supposed to represent more than any other class the intelligence and morality of the community for favors of every kind—valuable franchises, exemptions from taxation, or other special privileges. The chief argument in behalf of socialism has come to ​be that in the management of certain important enterprises they are so indifferent to the public welfare that State control or ownership is the only escape from their exactions. Hardly a great strike occurs that is not accompanied by excesses that only barbarians would commit. When there is no violence, the feeling of hatred on the part of union men toward non-union men takes the form of a persecution more intolerable often than personal assault. Despite primary and ballot reforms and the punishment of bribery, the choice of officials has become more and more the work of a few men, who control caucauses, conventions, and legislatures, and use their immense power to blackmail individuals and corporations to enrich themselves or to advance their political fortunes. As to the grosser forms of crime, the multitude of laws passed to check it has proved equally impotent. Of the prevalence of hoodlumism, even in New England, the home of the Puritan, Prof. Charles Eliot Norton has testified in words of astonishment and alarm. Speaking of the murders throughout the country, Dr. Andrew D. White has stated in a public lecture that they number more than ten thousand a year, and are increasing at a frightful rate. Lynch law is no longer confined to the South, so terribly ravaged by the civil war, nor executed upon negroes alone, nor prescribed only for assaults upon women; it has extended to the North and the West; whites are included among its victims, and robbery or murder suffices to invoke its application.
To many social philosophers such phenomena have been as inexplicable as they have been startling. "Why is it," they ask themselves, "that the more we strive by laws and ordinances to hasten the dawn of the millennium, the darker the heavens get? Is democracy a demon that is not amenable to restraint? Is it destined to triumph over the forces of righteousness, and wreck the very civilization that brought it forth?" Yet they go on believing that these thousands and tens of thousands of edicts of despotic democracy, which work a moral as well as economic havoc that passes computation, are so many novel and valuable experiments in social science—so many attempts more or less successful to solve its great problems. As though every other despot from time immemorial had not made them before; as though, in civilized communities, where moral control is fast taking the place of political control, they could produce any other effect than the one so greatly feared! It is not by sowing the wind that the whirlwind is laid. It is not by acts of aggression, no matter how pure their motive or lofty their aim, that the world is bettered. For, gild the deed as we may, every law passed, every office created, every dollar appropriated beyond the preservation of order and the enforcement of justice, the great ​purpose of the founders of the republic, is an invasion of freedom and a step toward degradation. As has invariably happened, and as Hamilton so clearly foresaw, such a policy will eventually turn the most civilized people into a race of barbarians, prone not only to assail one another but to attack their neighbors at home and abroad. In another way, and in that way only, must the goal of human existence be attained; it is to put within the reach of the poorest and weakest the means to resist the rich and strong. Instead of spending countless millions upon a work that should be left to the people themselves, the work of education, the regulation of morals, labor, and trade, the initiation and management of industrial enterprises, spend them, if need be, upon the establishment of a scrupulous justice free to all. Then will it be possible to mitigate and, in time, to end the countless evils of vice and crime that come of war and despotism. Then will people learn to provide for themselves the thousand blessings, moral and material, born of peace and freedom. Then will be solved the only problems of democracy that require or admit of solution—the simple but weighty problems of self-support and self-control.
* ↑ Van Buren Political Parties in the United States, p.80.
* ↑ Works, vol. vi, p. 516.
* ↑ Virginia Constitution of 1776
* ↑ American Orations, vol i, p. 160.
* ↑ American Orations, vol i., p. 46.
* ↑ Proceedings of the American Bar Association, 1893, p. 295 et seq.
* ↑ In this case, it will be remembered, the elevator was private property, built on private bind. No one was compelled to use it. Yet, as it was "affected with public interest," the courts decided that the State Legislature could regulate its charges.
* ↑ Quoted by Tiedeman. Limitations of the Police Power, p. 202.
* ↑ According to Mr. F. J. Stimson, the labor laws enacted during the past ten years number sixteen hundred and thirty-nine. Of these, one hundred and fourteen have been declared unconstitutional, which explains the hostility of labor to the courts, and its preposterous demand that when laws have once been enacted they shall stand until repealed. (Atlantic Monthly, November, 1897, p. 606.)