LIBRARY 
 
 UNIVER9ITY OF 
 CALIFORNIA 
 SAN DIEGO
 
 8CK1PPS (NST1TUTIO 
 
 KOR ^^ 
 
 BfOLOOlCAL RBSBASW" 
 
 WIT'HO^WN
 
 THE PEOPLE'S 
 GOVERNMENT
 
 Books By David Jayne Hill 
 
 A History of Diplomacy in the In* 
 ternational Development of Europe. 
 
 Vol. I The Struggle for Universal Empire. 
 With 5 Colored Maps, Chronological Tables, 
 List of Treaties and Index. Pp. XXlll- 
 482. $5.00. 
 
 Vol. II. The Establishment of Territorial 
 Sovereignly. With 4 Colored Maps, Ta- 
 bles, etc. Pp. XXIV -688. $5.00. 
 
 Vol. III. The Diplomacy of the Age of 
 Absolutism. With 5 Colored Maps, Tables, 
 etc. Pp. XXV 1-7 06. $6.00. 
 
 World Organization, as Affected by the Nature 
 of the Modern State. Pp. IX-214. $1.50. 
 Translated also into French and German. 
 
 The People's Government. 
 
 Pp. X-288. $1.50 net.
 
 "OR 
 
 THE PEOPLE'S 
 GOVERNMENT 
 
 BY 
 
 DAVID JAYNE HILL, LL.D. 
 
 D. APPLETON AND COMPANY 
 
 NEW YORK AND LONDON 
 
 1915
 
 COPTBIGHT, 1915, BT 
 
 D. APPLETON AND COMPANY 
 
 Printed in the United States of America
 
 The corruption of each form of 
 government commences with 
 the decay of its principles. 
 
 MONTESQUIEU.
 
 PREFACE 
 
 In every generation there is need of examin- 
 ing anew the foundations of government. At the 
 present time this duty is more imperative than 
 usual; for we have recently been passing through 
 a period of criticism upon our institutions that 
 has created in some quarters an unwarranted de- 
 preciation of their value, in others a genuine 
 solicitude for their preservation. 
 
 Unfortunately, little comfort is to be derived 
 from the example of other nations. A period of 
 unprecedented social unrest in most civilized coun- 
 tries has been followed by the breaking out of an 
 armed conflict between ten Sovereign States, in- 
 cluding five of the Great Powers of Europe a 
 conflict which for some of them involves a verita- 
 ble struggle for existence. 
 
 What then is the State, and what is it capable 
 
 of becoming? How did it originate? Whence 
 
 is its authority derived? Is there any proper 
 
 limit to its authority? How far are its results 
 
 vii
 
 PREFACE 
 
 dependent upon the forms of government? Is 
 there any possible modus vivendi whereby the 
 different classes and races of mankind may dwell 
 together in peace? 
 
 Undoubtedly these questions appeal to the in- 
 telligence of every thoughtful man, but they can- 
 not be answered in an off-hand manner. The 
 State is not a product of individual volition, and 
 cannot be transformed in fact by a mere change 
 in theory. It is, on the contrary, an historical 
 product, and the examination of it should be ap- 
 proached in an historical spirit. In order to grasp 
 the real problem, namely, progress toward our 
 highest human ideals, it is necessary to take into 
 account the natural conditions in which our hu- 
 man existence is placed. Only by an historical 
 and comparative study of the nature of the State 
 can we comprehend why it is that it does not 
 actually afford to mankind that security of well- 
 being which those who bear its burdens might 
 reasonably expect. 
 
 To many it may seem that, after all, they have 
 
 little or nothing to do with the State; but very 
 
 brief reflection shows how much the State has to 
 
 do with us. Through the Law it touches every 
 
 viii
 
 PREFACE 
 
 interest and relation of our lives. Our family, 
 property and social relations are all affected by 
 it. The Law not only claims the privilege of 
 regulating our conduct toward others, and even 
 our personal habits, but it takes our possessions 
 for public purposes and employs the public pow- 
 ers to enforce our obedience to all its requirements. 
 Whence then its authority? Is its right of com- 
 mandment indefinite and unlimited? If not, what 
 are the limits beyond which it may not justly go? 
 And, finally, to whose hands and by what means 
 shall be entrusted the lofty prerogative of laying 
 down and enforcing upon us the rules according 
 to which our whole existence is to be regulated? 
 
 We have, no doubt, a laudable pride in thinking 
 of ourselves as "Citizens" rather than "Subjects" ; 
 but if our citizenship is to be anything more than 
 a disguised serfdom, we must possess guaran- 
 tees of our rights and liberties. What then is 
 our place and our part in the State, and in rela- 
 tion to the Law? 
 
 Here are three concepts the State, the Law 
 and the Citizen that are fundamental to the real- 
 ization of any high ideal of human society. They 
 are not merely imaginary elements in a theory of 
 
 
 
 IX
 
 PREFACE 
 
 politics ; they are the existing realities upon which 
 any sound theory of political relations must be 
 based. They are not only the results of a long 
 historical process; they are, in fact, the most 
 important products of social evolution in its 
 progress from savagery to civilization. 
 
 It is, therefore, with these three concepts, 
 which include all the essential elements of the Peo- 
 ple's Government,, that we are to deal in the fol- 
 lowing chapters. The substance of them was 
 originally presented in the form of lectures be- 
 fore the Law School of the Boston University 
 during the winter of 1915, when a strong desire 
 was expressed that they might have a wider au- 
 dience. In preparing them for publication, care 
 has been taken to avoid all technicalities and to 
 render them easy of comprehension by the gen- 
 eral reader. 
 
 Beginning with the State as an embodiment of 
 force, we shall trace its development as a human 
 ideal. We shall see it long dominated by Law 
 regarded as a sovereign decree, until this con- 
 ception has been, in some parts of the earth at 
 least, superseded by the idea of Law as mutual 
 obligation, We shall witness the apparition of 
 
 x
 
 PREFACE 
 
 a wholly new phenomenon, the Citizen the self- 
 conscious and responsible constituent of the 
 State no longer mutely receiving commands from 
 a being of a different order, to whom he stands 
 in the relation of a subject; but, as Law-maker, 
 himself voluntarily determining the limits to which 
 Law may extend, and, as subject to Law, accept- 
 ing and respecting the principles which he him- 
 self has adopted. And thus we shall find, it is 
 hoped, in the Citizen the solution of the problem 
 of human government, and also of the co-ordina- 
 tion of human governments in the world-organiza- 
 tion of humanity; for human rights are not the 
 gift of governments, and governments need to 
 be so organized as to furnish a complete security 
 and guarantee for human rights. Upon this 
 basis, and upon this basis alone, is it possible for 
 all governments to submit their own conduct also 
 to the rule of Law. 
 
 In the light of the principles here set forth 
 which in the main have entered into the distinc- 
 tive American conception of the State the ques- 
 tion naturally arises: Will the experience of the 
 United States of America be of any service to 
 those who, when the battlefields are silent and the 
 
 xi
 
 PREFACE 
 
 dead are buried, will be called upon to reunite the 
 shattered amities of Europe? 
 
 An important lesson of history is, that the 
 value of a system of government does not reside 
 exclusively in its form, but chiefly in its spirit. 
 No matter in what guise injustice may appear, 
 whether in that of Imperialism or that of Democ- 
 racy, the exploitation of the many by the few, or 
 of. the few by the many, the crime remains the 
 same. 
 
 Whatever the immediate influence of ethical con- 
 ceptions and moral standards upon statesmanship 
 may be, in millions of hearts, when in the night- 
 watches the question is wafted from unmarked 
 graves, "Is it not possible for men to live together 
 upon the earth in peace and with honor?" the 
 answer will be, "Yes." And when at last the voices 
 of Reason and Conscience are heard, there will be 
 a demand everywhere for the People's Government. 
 
 Washington, D. C., 
 May, 1915.
 
 CONTENTS 
 
 CHAPTER PAGE 
 
 I. THE STATE AS AN EMBODIMENT OF 
 
 FORCE 3 
 
 The Development of Social Status. The 
 Emergence of the "State." The Persist- 
 ence of Primitive Elements. The Assimi- 
 lating Power of the State. The Appropria- 
 tion of Religion by the State. The State 
 and Government. The Preeminence of 
 Force in the State. The Machiavellian Con- 
 ception of the State. The Influence of the 
 Machiavellian Conception. Jean Bodin's Po- 
 litical Philosophy. The Appeal to Religion 
 for Authority. The Repudiation of the 
 State as Irresponsible Power. The Trans- 
 fer of Power to the People. 
 
 II. THE STATE AS A HUMAN IDEAL . . 47 
 
 The Slowness of Political Progress. Prog- 
 ress and Retrogression. The Substitution of 
 Thought for Force. The Seat of Public Au- 
 thority. The Theory of Divine Right. Sov- 
 ereignty Conceived as Inherent in the Body 
 
 xiii
 
 CONTENTS 
 
 CHAPTER PAGE 
 
 Politic. The State as a Responsible Entity. 
 The True Nature of Authority. The Im- 
 personality of Authority. The Foundation 
 of the State. 
 
 III. LAW AS A SOVEREIGN DECREE . . 91 
 
 Law Conceived as Commandment. The Myth 
 of Absolute Sovereignty. The Genesis of 
 Popular Sovereignty. Absolute Sovereignty 
 a Denial of Human Rights. ..The True 
 Foundation of the State. The Relation of 
 Rights to Law. The Supremacy of Law. 
 
 IV. LAW AS MUTUAL OBLIGATION . . 135 
 
 The Intuition of Obligation. The Appli- 
 cation to Experience. The Right to Life. 
 The Right to Liberty. The Right to Prop- 
 erty. The Problem of Partition. The In- 
 justice of Monopoly. The Relation of Mo- 
 nopoly to Law. The Alleged Community of 
 Property. The Necessity of a Fundamental 
 Law. The Nature of a Fundamental Law. 
 The Constitution as a Guarantee of Rights. 
 The Opposition to Fundamental Law. 
 
 V. THE CITIZEN AS A LAW-MAKER . . 181 
 
 Respect for the Constitution as the Guaran- 
 tor of Liberty. The Surcharging of Funda- 
 mental Law. The Extension of Guarantees 
 to Emancipated Slaves. The Effect of Con- 
 
 xiv
 
 CONTENTS 
 
 CHAPTER PAGE 
 
 stitutional Guarantees. Attacks upon Funda- 
 mental Law. The Nature of the Opposition 
 to the Constitution. Alleged Constitutional 
 Barriers to Reform. The Relation of Re- 
 form to Public Opinion. The Conflict of 
 Constitutionalism with Imperialism. Prin- 
 ciples and Personalities. The Danger of 
 Authoritative Democracy. Government by 
 Official Oligarchy. 
 
 VI. THE CITIZEN AS SUBJECT TO LAW . 233 
 
 The Character of the American Revolution. 
 The Character of the French Revolution. 
 The Constitution a Bar to Revolution. The 
 Attack on the Judicial Authority. Alleged 
 Usurpation of the Supreme Court. The Al- 
 leged " Judicial Oligarchy." The Value of 
 the Judicial Function. The Doctrine of 
 " Judicial Supremacy." Obstacles to Judi- 
 cial Supremacy. The Danger of Recur- 
 rent Absolutism. 
 
 INDEX > ,.: ,. ,. 377
 
 THE STATE AS AN EMBODIMENT 
 OF FORCE
 
 
 THE STATE AS AN EMBODIMENT OF FORCE 
 
 Until recent years it was the custom to re- 
 gard all human institutions as the products 
 of conscious intelligence. Today we are 
 aware of the fact that in many phases of 
 human development the role of conscious re- 
 flection was originally very slight. In its 
 primitive stages human life depended in 
 great part upon the instincts shared by man 
 with his humbler fellow-creatures of the ani- 
 mal world. Modes of existence respecting 
 such primary needs as food, shelter, and de- 
 fense were influenced chiefly by urgent ne- 
 cessities enforced by the natural environ- 
 ment. All the elemental arts grew out of 
 these necessities. For science there was as 
 yet no place. 
 
 3
 
 THE PEOPLE'S GOVERNMENT 
 
 It is idle, therefore, in framing theories of 
 the origin and essential nature of the State, 
 to place emphasis upon abstract ideas, and 
 to imagine that primitive communities or 
 any communities until recent times busied 
 themselves with problems of government and 
 the fabrication of laws. It was only grad- 
 ually, through a long process of time, and 
 parallel with human development along 
 other lines, that any community of men ar- 
 rived at a stage of social consciousness suffi- 
 ciently clear and intense to grasp the mean- 
 ing of law, either in its natural or its juristic 
 sense. 
 
 It was in the period of semi-conscious and 
 unreflecting social development that were 
 generated most of the abiding social in- 
 stincts, such as fear of the strong, dread and 
 distrust of the stranger, the impulse to de- 
 fend the community from attack, and attach- 
 ment to the tribe. These primary instincts 
 of society are the most persistent. Essential-
 
 STATE AS EMBODIMENT OF FORCE 
 
 ly local in their origin, they spontaneously 
 resist the idea of more extended unity. Even 
 much reflection upon advantages to be 
 gained from wider association often fails to 
 overcome them. The stranger long con- 
 tinues to be regarded as an enemy. 
 
 THE DEVELOPMENT OF SOCIAL STATUS 
 
 When, finally, the period of reflective con- 
 sciousness is reached by a primitive com- 
 munity, it is evidently already subject to 
 law; but it is a form of law imposed chiefly 
 by natural necessity. Unconsciously, how- 
 ever, without purpose or definite intention, 
 a status has been created, in which, if there 
 are marked differences in the powers of in- 
 dividuals, there are corresponding differences 
 in their positions in the community. The 
 weak have unconsciously been made subject 
 to the strong, and it is the will of the stronger 
 that rules the group. If a neighboring tribe
 
 THE PEOPLE'S GOVERNMENT 
 
 is conquered, it is reduced to slavery. Caste 
 is thereby established, privilege is asserted 
 and exercised, and there is one code of con- 
 duct for the ruler and another for the ruled. 
 Self-preservation favors the progressive cen- 
 tralization of power in the hands of the rul- 
 ing class. Thus is gradually built up a 
 system of relations based on superior force. 
 Ability to compel obedience to an order is 
 soon recognized as rightful authority; and 
 the power of command, accorded freely for 
 the common good in time of war, becomes a 
 permanent possession of the chiefs in time of 
 peace. Rivalry between them eliminates the 
 less powerful competitors for headship, or 
 reduces most of them to a position of subor- 
 dination, rendered effective and permanent 
 by the domination of the supreme leader, who 
 preserves his theoretical supremacy by con- 
 ceding to these subordinates local authority 
 so long as it is coupled with acknowledged 
 subjection to himself. 
 
 6
 
 STATE AS EMBODIMENT OF FORCE 
 THE EMERGENCE OF THE "STATE" 
 
 The status thus created is the beginning 
 of the "State" in its accepted historic sense. 
 Primarily, it is the product of contending 
 forces, at first purely unconscious and in- 
 stinctive, but finally becoming aware of the 
 advantages afforded by the possession of 
 personal supremacy and its recognition by 
 others, with a progressive acquisition of the 
 means by which it may be more effectively 
 sustained and extended. 
 
 In the first stages of the evolution of the 
 State there is no evidence of any "contract,'* 
 express or tacit ; or of any convention of any 
 kind. Nor is there any evidence of a concep- 
 tion of law as a consciously accepted rule of 
 action. Law there is, but it is simply the 
 mode of behavior, conditioned and deter- 
 mined by the operation of unconscious forces ; 
 and, therefore, closely analogous to natural 
 law in its scientific sense, as the rule of se- 
 
 7
 
 THE PEOPLE'S GOVERNMENT 
 
 quence in the realm of physical causation. 
 The human mind, in the plenitude of its 
 powers, has not yet been brought into 
 action; and, in this period, the community 
 has not attained complete self-conscious- 
 ness. 
 
 The State, then, is older than philosophy, 
 older than art, older than a generally exer- 
 cised reflective consciousness. Men did not 
 consciously create it, they were born into it. 
 It developed as they matured. The State is 
 a primal reality, practically coeval with man 
 as a social being. 
 
 Such being its origin, its primal law is 
 force. For a long period men acted as they 
 must, rather than as they would. In the 
 struggle for existence the first law was nat- 
 ural law. The long arm, the strong hand, 
 the fleet foot, the heavier bulk these were 
 the titanic forces that laid the foundations of 
 the State. War with wild beasts, the conflicts 
 over the possession of their remains these 
 
 a
 
 STATE AS EMBODIMENT OF FORCE 
 
 formed the first hard school in which the 
 science of politics learned its A, B, C, and 
 for long ages all its literature was spelled 
 in the runic letters first traced by the prim- 
 itive weapons of the Stone Age upon the 
 field of battle. 
 
 THE PERSISTENCE OF PRIMITIVE ELEMENTS 
 
 Will it ever be possible to write the history 
 of the State in other characters? Certainly, 
 it cannot be disputed that for thousands of 
 years it continued to be recorded almost en- 
 tirely in these. During centuries upon cen- 
 turies of time, who ever ruled except through 
 the possession of superior force? Is it even 
 now possible to dispense with physical cate- 
 gories in the exposition of political science? 
 The "ruler" and the "ruled" the impres- 
 sive antithesis of strength and weakness 
 persist through all the sequence of rising 
 and fallen kingdoms and empires. Here 
 
 9
 
 THE PEOPLE'S GOVERNMENT 
 
 lies the key of history dynasties dating 
 from the battlefield and perishing before 
 some new paladin better armed, more nu- 
 merously followed, or still heroic with the 
 strength of untamed youth, bearing down to 
 defeat and death the senile victims of luxury 
 and debauchery, sustained in power only by 
 the illusion of a multitude too feeble to over- 
 come its own fears of possible destruction in 
 case of resistance. 
 
 It would be unprofitable to review the 
 pageant of conquerors and the conquered 
 which by preeminence has long called itself 
 "history" the succession of decisive battles 
 upon which are hinged the great periods in 
 the life of mankind events which, almost 
 exclusively, men have thought worthy in the 
 long roll of human achievements of being 
 remembered and recorded. The generaliza- 
 tion is too self-evident to require argument: 
 the archives of the world, down to a very 
 recent period, consist of the story of trium- 
 
 10
 
 STATE AS EMBODIMENT OF FORCE 
 
 phant force, flaunting its banners to the seat 
 of power, and taking possession of the earth 
 in the name of the State. 
 
 The language of history, symbolic or ar- 
 ticulate, is largely a survival of the primitive 
 forms of expressing power. "I sing of 
 arms," begins the famous epic designed to 
 celebrate the foundation of the world's great- 
 est empire. The wolf stands sponsor for the 
 State, and nourishes its founders. The eagle, 
 swiftest of birds, symbolizes its majesty. 
 The lion, strongest of animals, is set in stone 
 or bronze to guard the city's gates. The 
 dart, the mace, the spear, the sword, the 
 battle-axe, form the sign manual of the 
 State's omnipotence, are figured in the seal 
 placed upon its property, and furnish the 
 symbolism of its coat of arms, expressing its 
 power to defend its possessions against all 
 comers a token of caution to the would-be 
 trespasser. The sense of sight alone is not 
 a sufficient medium for the proclamation of 
 
 11
 
 THE PEOPLE'S GOVERNMENT 
 
 the power of the State. The battle-cry, the 
 beating and rattling of drums, the thunder 
 of artillery, voice its power to compel or an- 
 nihilate. The ambassador is welcomed at 
 the palace gate by a salute that couples 
 friendly salutation with the undertone of 
 formidable strength in the roar of cannon. 
 Among the Byzantines the foreign envoy, 
 surrounded by mailed warriorS, was led by 
 an escort of troops from the frontier through 
 well-guarded defiles, over narrow bridges, 
 through stone gateways, by a long detour, 
 into the capital, where great bodies of in- 
 fantry and cavalry, changing their costumes 
 and returning again and again to the field of 
 review, were deployed before him, in order 
 to impress him with the inexhaustible power 
 of the Empire, and with the thought that 
 whatever consideration he might have rea- 
 son to expect, that consideration would be 
 an act of grace and not a deed of compul- 
 sion. 
 
 12
 
 STATE AS EMBODIMENT OF FORCE 
 
 THE ASSIMILATING POWER OF THE STATE 
 
 Originally a military supremacy, the au- 
 thority of the State does not rest satisfied 
 with the power to exact tribute and compel 
 obedience by the exercise of superior phys- 
 ical force alone. It keeps pace with the 
 whole onward march of society, carefully 
 estimates the value of all its phases of men- 
 tal development, and promptly appropriates 
 all its newly generated powers of achieve- 
 ment. If the mechanical arts show improve- 
 ment, the State immediately, and first of all, 
 applies them to the strengthening of its own 
 forces. If a man of letters manifests dis- 
 tinguished talent, it is at once appropriated 
 for the glorification of the State. Great ar- 
 tists are made to add to its embellishment, 
 great thinkers to justify its claims to respect 
 and obedience, great poets to sing its 
 praises, great lawyers to defend the rightful- 
 ness of its authority. There is no source of 
 
 13
 
 THE PEOPLE'S GOVERNMENT 
 
 power at which it does not seek to refresh 
 its strength, and upon which it does not place 
 the sign of its possession. 
 
 So true and so evident is this, that, spon- 
 taneously, by common consent, the word 
 "civilization," the process or result of civiliz- 
 ing, has come to stand for the totality of hu- 
 man culture, as distinguished from barbar- 
 ism, the condition of society where the State 
 has not accomplished this work of stimula- 
 tion and appropriation. It is historically 
 necessary to say the "State," because this 
 progress has been made nowhere where the 
 State did not previously exist. 
 
 And here we are able to see what it is that 
 has justified and still continues to commend 
 the existence of the State. Primarily found- 
 ed on the idea of force, and always includ- 
 ing that element as essential to it, the State 
 does not rely upon physical force alone, but 
 aspires to the control of all the powers which 
 influence the activities of men, 
 
 14
 
 STATE AS EMBODIMENT OF FORCE 
 
 It has been, and still is, the essential pre- 
 requisite of civilization. It is, in fact, the 
 chief agent of human progress. To the 
 rapacity of the individual and of groups of 
 individuals it opposes its prohibitions. To 
 the artificer, it says: "Work on in peace, 
 improve your workmanship." To the artist : 
 "Seek and find beauty in form and color, and 
 give it perfect expression." To the poet: 
 "Sing of all that is great and heroic in life." 
 To the thinker: "Apply your faculties to 
 the great problems of existence, and elevate 
 the multitude by the nobility of your 
 thought." But to all of these it has usually 
 said: "Exercise all your native powers, vig- 
 orously, constantly, and fruitfully; but, see 
 to it, that you think and say nothing ill of 
 me!" 
 
 THE APPROPRIATION OF RELIGION BY THE 
 STATE 
 
 In one great branch of human culture, 
 religion, the State has frequently, and in 
 
 15
 
 THE PEOPLE'S GOVERNMENT 
 
 fact usually, claimed a large right of super- 
 intendence, at the same time asserting the 
 necessity of maintaining its own supremacy. 
 Religious faith, on the other hand, rising 
 above the merely personal interests of the 
 individual, and laying hold of what is most 
 deep, most constant, and most mysterious 
 in human existence, has always challenged 
 mere human power, however strong and 
 however well organized. Death, the extreme 
 penalty which the State can inflict upon the 
 disobedient, to the religious devotee is merely 
 the door of entrance into another form of 
 existence, where faith, courage, and sacrifice 
 are to receive their reward. Here, then, the 
 State has sometimes found an irreconcilable 
 adversary a foe to its pretensions and a 
 rival to its authority. The empire of souls 
 has, therefore, always been of interest to the 
 State, and, in proportion as that has become 
 formidable, it has been thought necessary 
 either to suppress or to appropriate it. 
 
 16
 
 STATE AS EMBODIMENT OF FORCE 
 
 What the State has gained, or seemed to 
 gain, by alliance with religion, religion has 
 usually lost through the predominance of 
 the State. This, in spite of the inherent 
 potency of religious feeling, has been in- 
 evitable; for the State could never tolerate 
 any power superior to its own, and its aims 
 and interests have never been quite coinci- 
 dent with those of religion. In truth, re- 
 ligion, except when completely conquered 
 and reduced to a position of abject servitude 
 to the State, has often been so bold as to re- 
 pudiate State control, claiming as its own 
 domain, under the sway of a Higher Power, 
 the whole realm of the inner life of thought 
 and feeling, and resigning to its rival only 
 the outer relations of men as alone subject 
 to its jurisdiction. 
 
 The conflict between these two claims to 
 
 obedience has been as prolonged, as general, 
 
 and as tragic as the contests between rival 
 
 States. Neither has in the end greatly 
 
 3 17
 
 THE PEOPLE'S GOVERNMENT 
 
 profited by their union, which has nearly 
 always proved to be a merely transient com- 
 promise. The theocratic State has shown 
 itself to be the rudest, narrowest, and most 
 oppressive form of power; for, from the mo- 
 ment the State has attempted to take pos- 
 session of the inner life, and to impose its 
 arbitrary decrees upon all that is personal 
 in belief, sentiment, loyalty, v and devotion, 
 it has begotten hypocrisy, formalism, and 
 moral cowardice; thus ultimately choking 
 the well-springs of sincere religious faith by 
 destroying the freedom of the spirit in its 
 search for truth. In the end, however, wher- 
 ever the union between Church and State 
 has been unlimited, it has been the State 
 that has ultimately triumphed. And the 
 reason for it is evident. Religion is not, and 
 cannot be, identified with outward forms 
 and organization. The further the alliance 
 is pressed, the more mere forms and organ- 
 ization triumph ; religion, which is essentially 
 
 18
 
 STATE AS EMBODIMENT OF FORCE 
 
 an expanding life drawing its sustenance 
 from the unseen, is cramped and atrophied. 
 The State aims at mechanism, which light- 
 ens its task of control ; but religion perishes 
 when it is brought under the bondage of 
 merely mechanical devices. 
 
 THE STATE AND GOVERNMENT 
 
 The State, as power, must, no doubt, al- 
 ways act in its own defense, must protect 
 its own existence. This is, indeed, neces- 
 sary to the well-being of society; for the 
 State means order, security, the enjoyment 
 by the individual of a part at least of the 
 fruits of his own labors. The destruction 
 of the State results in anarchy, which means 
 the ruin of society. 
 
 The State is not a mere abstraction; it 
 is everywhere a concrete and tangible form 
 of existence. Its forms may vary, but form 
 it must always have. Its organs are mul- 
 
 19
 
 THE PEOPLE'S GOVERNMENT 
 
 tiple, but organs there must always be. 
 When we set out to seek it, we come at once 
 in contact with persons, who claim to rep- 
 resent it. If you would address the State, 
 you must speak to them. If you would 
 change the State, you must influence them. 
 If you would reform the State, you must 
 sometimes antagonize them. These persons 
 are not the State ; they are the government. 
 Governments are of different kinds, good 
 and bad, weak and strong, progressive and 
 reactionary. They possess all the qualities 
 that is, all the virtues and all the vices 
 of persons, for the reason that they are per- 
 sons. Governments can never be much bet- 
 ter or much worse than the persons who 
 compose them. Wisdom and folly, loyalty 
 and dishonor, greed and self-sacrifice, suc- 
 ceed each other in the control of political 
 power; and the State, and the people who 
 compose the community, must endure all 
 this. It is the price of civilized existence! 
 
 20
 
 STATE AS EMBODIMENT OF FORCE 
 
 Still, governments are not always quite 
 as good, or quite as bad, as the persons who 
 compose them. Something depends upon 
 the form in which they are cast, which may 
 either extend or limit the powers of per- 
 sons within the State. The three great 
 types are, of course, monarchy, oligarchy, 
 and democracy; which, by their very names, 
 express a variation in the concentration or 
 diffusion of power exercised by the govern- 
 ment. These types, though nominal, sel- 
 dom exist in perfect purity; for in every 
 State the council influences the monarch, 
 the leader influences the ruling class, and 
 the masses of the people act and are acted 
 upon in a manner which affects the des- 
 tinies of the State. 
 
 THE PREEMINENCE OF FORCE IN THE STATE 
 
 The important point to consider at this 
 time is, that, however it may be localized or 
 
 21
 
 THE PEOPLE'S GOVERNMENT 
 
 distributed, it is force which always re- 
 mains, under every form of government, 
 the effective attribute of the State, and the 
 one by which it is preeminently character- 
 ized. Of this fact there cannot be the 
 slightest doubt. Monarchies, oligarchies', 
 and democracies alike claim to represent, 
 and if they be actual governments, do rep- 
 
 t 
 
 resent, the whole force of the community. 
 If this were not so, the distinction between 
 forms of government would be of little 
 moment. What renders it important is, 
 that the omnipotence of the State is in ques- 
 tion. Shall its power be limited, or shall 
 it be unlimited? Shall it be concentrated, 
 or shall it be divided? Shall it be heredi- 
 tary, or shall it be elective? Shall it be 
 accorded for a long time, or be subject to 
 frequent changes in the government? 
 These are the fundamental questions of 
 political organization, and it is of conse- 
 quence to ask them anew from time to time.
 
 Let there be no illusion regarding the 
 affinities of different forms of government 
 as respects the possession of power. It is 
 an error to imagine that monarchy is more 
 greedy of omnipotence than oligarchy, or 
 oligarchy than democracy. The history of 
 the world is an overwhelming refutation of 
 such a misconception. The possession of 
 power is absolutely essential to the State, 
 which can never be governed by phrases 
 and formulas. As for its distribution, that 
 is another question; and the kind and de- 
 gree of distribution called for by a given 
 community will depend upon the degree of 
 equality or inequality of its constituent 
 members, the general intelligence they may 
 possess, their devotion to public interests, 
 and many other special circumstances; but, 
 in no case, will the State, as a State, freely 
 permit its power to be alienated or dimin- 
 ished or brought into question. It will 
 claim, even though the government be a 
 
 23
 
 THE PEOPLE'S GOVERNMENT 
 
 pure democracy, and all the more because it 
 is a pure democracy, entire freedom from 
 every form of external coercion, and the 
 unconditional exercise of its perfect autono- 
 my. The right of self-defense for its own 
 reasons, the power of life and death over its 
 own constituent members, the right to de- 
 fine and punish treason, the prerogative of 
 laying tribute and distributing the proceeds 
 all these have been and will be as com- 
 pletely and as unreservedly exercised by a 
 democracy as by the most absolute sover- 
 eign. The State that disavows its own au- 
 tonomy thereby ceases to be a State. There 
 must be somewhere a power that is superior 
 to all other powers, and which can command 
 the obedience of all. 
 
 THE MACHIAVELLIAN CONCEPTION OF THE 
 STATE 
 
 Of this truth there has never been any 
 serious question; but how to set it forth.
 
 STATE AS EMBODIMENT OF FORCE 
 
 how to formulate it, and how to justify it 
 to the human mind that has been a prob- 
 lem which has long occupied the thoughts 
 of men. 
 
 For a long period the simple fact of the 
 imperium, or right of command proceeding 
 from the power to enforce commands, ap- 
 peared sufficient. Order, which is the first 
 social necessity, requires the observance of 
 rules of conduct on the part of the commun- 
 ity. Unless these are in some way ordained, 
 and unless obedience to them can be en- 
 forced, order is impossible, life and prop- 
 erty are in constant danger, and rapine will 
 inevitably ensue. Enemies of order, both 
 within and without the community, must be 
 guarded against, resisted, repressed, and 
 punished. This was long esteemed to be 
 the function of the "prince," who thereby 
 became the "savior of society." 
 
 This is, in effect, Machiavelli's whole con- 
 ception of the State. To his mind it is es- 
 
 K!
 
 THE PEOPLE'S GOVERNMENT 
 
 sentially non-moral. Its one problem is to 
 maintain itself, in order to accomplish its 
 task, which is to compel obedience. For 
 this purpose it may ally itself with religion, 
 but not to the extent of becoming a mere 
 subject power. If the religious faith of the 
 people prompts them to obey the State, it 
 may well be cultivated and promoted; but 
 only as a means to the one end which the 
 State has in view, namely, the augmentation 
 of its own power and resistance to all that 
 opposes it. 
 
 A strong State, the great Florentine con- 
 tends, can never be produced by its own 
 component elements. The reason for this 
 is that men are essentially corrupt and self- 
 seeking. Each will pursue his own inter- 
 est, and the common good will be neglected. 
 There is necessary, therefore, a powerful 
 despot, who is able to impose his will upon 
 all others. He alone can produce and 
 maintain order, and for this any means may
 
 STATE AS EMBODIMENT OF FORCE 
 
 be employed. Deceit, falsehood, even as- 
 sassination, if necessary, are permissible. 
 Above the "prince" there is no law. He is 
 the creator of law. His will is law. With- 
 out him, there would be no morality, but 
 theft, murder, license in every form. If he 
 did not possess force he would be impotent 
 to end them. He must, therefore, as much 
 as possible, and by every means, increase his 
 force. Thus only can he maintain the exis- 
 tence of the State. 
 
 THE INFLUENCE OF THE MACHIAVELLIAN 
 CONCEPTION 
 
 However much our feelings may revolt 
 against this crude form of political philoso- 
 phy, it must be admitted that it was long 
 dominant in Europe, and that Machiavelli's 
 famous treatise, "The Prince" written in 
 1513 to restore the glory of his beloved 
 Florence which he described as "more cap- 
 
 27
 
 THE PEOPLE'S GOVERNMENT 
 
 live than the Jews, more enslaved than the 
 Persians, more divided than the Athenians, 
 without a head, bruised, despoiled, lacer- 
 ated, ravaged, and subjected to every kind 
 of affliction" has remained for centuries 
 the classic manual of European statesman- 
 ship. It is certain that the Emperor 
 Charles V and King Philip ,11 of Spain 
 were close students of it. Catherine de 
 Medici introduced it into France, and both 
 Henry III and Henry IV had a copy of it 
 on their persons when they were murdered. 
 Richelieu esteemed it highly, and it was 
 known and studied by several of the kings 
 of England. Pope Sixtus V, though he 
 publicly condemned it, made a digest of 
 its contents in his own handwriting, and 
 Queen Christina of Sweden left a copy of 
 it marked with interesting marginal annota- 
 tions. 
 
 It is, however, to Machiavelli that we owe 
 in part the subsequent revolt against per- 
 
 28
 
 STATE AS EMBODIMENT OF FORCE 
 
 sonal despotism. In composing its bible he 
 was also writing its epitaph. The "Alcoran 
 de Louis XIV" declares the following lines, 
 under the tutorship of Mazarin, had to be 
 learned by Louis XIV : 
 
 ' 'My son, in whom do you believe?' 
 
 " 'In Nicholas Machiavelli.' 
 
 " 'Who was this Nicholas Machiavelli?' 
 
 'The father of politicians, and the one 
 who has taught princes the art of reigning.' ' 
 
 Thus publicly pilloried as a system re- 
 sponsible for the reign of absolutism, the 
 teachings of Machiavelli were accepted as 
 a concrete statement of the actual practices 
 of monarchs, which were, therefore, the 
 more readily condemned by those who had 
 suffered from the application of Machia- 
 velli's principles. Frederick the Great, as 
 Crown Prince, formally repudiated Machi- 
 avelli's teachings in his "Anti-Machiavel" ; 
 but, as King of Prussia, he did not fail to 
 do honor to the Florentine by demonstrat-
 
 THE PEOPLE'S GOVERNMENT 
 
 ing that he considered force, uncontrolled 
 by ethics, an essential attribute of the State. 
 
 JEAN BODIN'S POLITICAL PHILOSOPHY 
 
 It is not, however, quite just to Machia- 
 velli to load his name and memory with a 
 burden of infamy for expounding as a 
 theory what history shows to have been the 
 general practice of most of his contempo- 
 raries, and long continued to be considered 
 essential to statesmanship by those who 
 came after him. Moreover, that which 
 made his exposition most repugnant has 
 been substantially embodied in most subse- 
 quent theories of the true nature of the 
 State, namely, the idea that it is essentially 
 a creation of "blood and iron," and not sub- 
 ject to any law other than that of its own 
 omnipotence. 
 
 Jean Bodin's conception of sovereignty 
 (1530-1596) a conception designed to 
 
 30
 
 STATE AS EMBODIMENT OF FORCE 
 
 veil the omnipotence of the State under a 
 guise of juristic philosophy is, in reality, 
 not widely separated from it, and yet it is 
 substantially the basis of the theory of the 
 State which still prevails. 
 
 Bodin's aim was to establish a reasonable 
 natural foundation for royal omnipotence. 
 The principle from which he deduces it is 
 the idea of "supreme power" as essential to 
 the State, which he then tranquilly identifies 
 with supreme authority. This, he holds, 
 exists in every independent community, and 
 is both absolute and perpetual. It is from 
 this source that all laws proceed. It is the 
 very substance of the State. 
 
 To such "supreme power" he gives the 
 name "sovereignty," equivalent to the 
 imperium of the Roman Law, which in his 
 Latin edition of 1591 he calls "majestas" 
 Although in deducing this principle he re- 
 frains from advocating any particular form 
 of government, it is evident that "supreme 
 
 81
 
 THE PEOPLE'S GOVERNMENT 
 
 power" must be exercised by a person; and, 
 in fact, his exposition proves to be only a 
 philosophic disguise for the idea of absolute 
 royal authority. Still, it is not strictly 
 necessary that "supreme power" be exer- 
 cised by a royal person; for the idea of 
 sovereignty, as "supreme power," is equally 
 applicable to every form o government. 
 The future development of Bodin's prin- 
 ciple, which he contends is "absolute, in- 
 divisible, and inalienable," shows that it can 
 be equally applied to a monarchy, an oli- 
 garchy, or a democracy. 
 
 The defect in Bodin's conception of sover- 
 eignty is not that it is essentially baseless, 
 but that it is a purely mechanical concep- 
 tion. It belongs to the category of might, 
 but not to the category of right. The 
 State, he contends, commands simply be- 
 cause it has the power to command. But, 
 if that be true, what authority does it pos- 
 sess if one has the power to disobey? If 
 
 32
 
 STATE AS EMBODIMENT OF FORCE 
 
 authority is based merely on the power to 
 compel, there is equal authority in the power 
 to resist; and government thus becomes 
 merely a problem in the balance of mechani- 
 cal forces. The State, upon this theory, 
 has no authority whatever, except that de- 
 rived from its superior force. But there is 
 not in mere force, even though it be 
 supreme, any right to command. Can hu- 
 man nature be required to bow before 
 "supreme power," merely because, as power, 
 it is supreme? Is it possible that all that is 
 dear to the affections, all that is true to the 
 intelligence, all that is obligatory to the 
 moral sense, reason and conscience, must be 
 tacitly surrendered and openly sacrificed 
 merely because the possessor of irresistible 
 force speaks in the name of the State? Can 
 it be a duty on the part of a human being 
 to obey the arbitrary decrees of power, sim- 
 ply because it is power? It may be that, as 
 a question of fact, submission can be en- 
 
 4 ' 33
 
 THE PEOPLE'S GOVERNMENT 
 
 forced; but can that mere fact create an 
 obligation? How is it possible for men to 
 respect, much less to sustain by their free 
 volitions, an institution that demands 
 obedience upon such terms? And, further, 
 can it be that, in their relations to one an- 
 other, States the highest forms of social 
 development are merely so many embodi- 
 ments of arbitrary force contending with 
 one another for the mastery of the world, 
 restrained by no law, subject to no control, 
 and bound by no obligation? 
 
 THE APPEAL TO RELIGION FOR AUTHORITY 
 
 It is clear that the idea of "supreme 
 power," even though it be a primary and 
 essential attribute of the State, is a wholly 
 inadequate basis for the conception of right- 
 ful authority. It furnishes neither the ele- 
 ments necessary for a logical definition of 
 authority, nor the foundation of an accept- 
 
 34
 
 STATE AS EMBODIMENT OF FORCE 
 
 able theory of governmental action. The 
 mere power of the State, even though it be 
 supreme, is no more worthy of respect, and 
 no more entitled to obedience, than any 
 other power ; unless, in addition, it possesses 
 attributes of an entirely different order. 
 Sovereignty, conceived merely as power to 
 compel obedience, may be and is essential 
 to the State; but it is not a principle from 
 which can be deduced rightful authority 
 to exact obedience. Either its professed 
 rightful supremacy does not exist, or it 
 must be derived from some other source. 
 
 Very early in the process of political de- 
 velopment it was perceived that ability to 
 compel action was not sufficient to inspire 
 the assent of the governed. Even alleged 
 utility to the community was incapable of 
 awakening that moral support which every 
 government considers it expedient to pos- 
 sess. Appeal was, therefore, made to re- 
 ligion, and the State was represented as a 
 
 35
 
 THE PEOPLE'S GOVERNMENT 
 
 divine institution. In the period of pagan- 
 ism the Roman Emperors were regarded not 
 only as the instruments and organs of 
 divinity, but as themselves inchoate deities, 
 to be apotheosized at death and admitted to 
 the Pantheon as objects of religious wor- 
 ship. 
 
 It is unnecessary to follow closely the 
 historical development of the claim that the 
 State derives its authority directly from the 
 Divine Will, the recognized source of all 
 power and all authority. It would, indeed, 
 be convenient for supreme power to clothe 
 itself with the garment of supreme author- 
 ity, if it could show credentials for appear- 
 ing as an authorized agent for the execution 
 of the divine commands. It was, therefore, 
 to be expected that the throne would seek 
 the support of a divine commission. 
 
 It was upon this ground of a special dele- 
 gation of divine authority that, in the 
 seventeenth century, royal absolutism en- 
 
 36
 
 STATE AS EMBODIMENT OF FORCE 
 
 deavored to erect its foundation. The prin- 
 ciple cujus regio, ejus religio was a conven- 
 ient compromise which accorded to each 
 sovereign ruler the decision as to the form 
 of religious faith Catholic, Lutheran, or 
 Calvinist which should prevail in the ter- 
 ritory over which he exercised jurisdiction; 
 and, whatever this faith might be, it sup- 
 plied the monarch with the same justifica- 
 tion for the exercise of his supreme will. In 
 a sermon preached by Bishop Ogier at 
 Miinster, during the Congress of West- 
 phalia, Christ, as "King of kings," was 
 represented as announcing to the assembled 
 princes: "I have made you my lieutenants 
 in this world, to be dispensers of my justice 
 upon other men. I have placed you in a 
 state that is hardly lower than that of my 
 angels: they give impulsion to the heavenly 
 bodies; you give motion to the mechanism 
 of the earth. I have crowned you with 
 honor and glory, and I have established you 
 
 37
 
 THE PEOPLE'S GOVERNMENT 
 
 over the most beautiful works of my hands. 
 Finally, I have put under your feet all 
 other mortals." 
 
 Without doubt, some of the princely audi- 
 tors who listened to this declaration of their 
 "divine right" as rulers, solemnly believed 
 that they were thus divinely appointed to be 
 dispensers of justice, and even strove with 
 a good conscience to perform this lofty mis- 
 sion; but the evidence upon which this as- 
 sumption is based is not very impressive to 
 the modern mind. Still, in the time when 
 the ff culte du roi" was the accepted founda- 
 tion of the State, it was possible for Omer 
 Talon to say to the child Louis XIV: "The 
 seat of Your Majesty represents the throne 
 of the Living God"; and, later, for the 
 scrupulous Lamoignon to declare to the 
 young king, in the presence of the Parlia- 
 ment of Paris : "This company regards you 
 as the living image of divinity." Soon 
 afterward Bossuet completed the hyperbole 
 
 38
 
 STATE AS EMBODIMENT OF FORCE 
 
 by solemnly affirming: "The royal throne 
 is not the throne of a man, but the throne 
 of God himself. . . . The prince should ren- 
 der to no one an account of what he does." 
 
 THE REPUDIATION OF THE STATE AS 
 IRRESPONSIBLE POWER 
 
 It required only a short experience of the 
 Bourbon dynasty to demonstrate to a faith- 
 ful and loyal people the consequences of this 
 doctrine, that "the prince should render to 
 no one an account of what he does." Thus 
 enthroned, the basest personal passions and 
 the most inept statesmanship were sancti- 
 fied by the assumption that the king, as the 
 chosen representative of the Deity, could do 
 no wrong. 
 
 From this unhappy union religion suf- 
 fered even more than the State, for both 
 w r ere soon challenged and overwhelmed by 
 outraged reason and conscience. The whole 
 structure of society was thus for a time 
 
 39
 
 THE PEOPLE'S GOVERNMENT 
 
 swept away in the blood and fire of the 
 French Revolution. The burden upon faith 
 had become too great to be borne. In the 
 face of such preposterous contradictions 
 and such brazen insincerity as the era of 
 absolutism presented, it was impossible to 
 respect the State, and equally impossible to 
 accept a form of religious belief that 
 shielded its vices and enormities. Every 
 throne in Europe was shaken by the reac- 
 tion. The State, as irresponsible power, 
 could no longer be tolerated. If it could 
 not be radically reformed so profound was 
 the revolt against it it must disappear al- 
 together; but with its disappearance was 
 threatened for a time the destruction of the 
 whole edifice of civilization. 
 
 It was necessary, therefore, to lay new 
 foundations. "Sovereignty," Rousseau had 
 said, "is not an attribute of kings, but of the 
 people." Upon this new basis, then, the 
 State was to be reconstructed. 
 
 40
 
 STATE AS EMBODIMENT OF FORCE 
 
 i 
 
 Unhappily, the conception of sover- 
 eignty remained substantially unmodified. 
 For the "supreme power" of kings was to 
 be substituted the "supreme power" of the 
 people. 
 
 As a matter of fact, the people had be- 
 come more powerful than their rulers. It 
 was, therefore, their turn to rule; their turn 
 to become the source of law; their turn to 
 impose their absolute will; their turn to de- 
 fine treason, and to inflict death as a punish- 
 ment. 
 
 THE TRANSFER OF POWER TO THE PEOPLE 
 
 The fact of this reversal of positions is 
 not, however, so significant for the welfare 
 of the community as it may at first appear. 
 The substance of the State was not essen- 
 tially altered by a mere change of masters. 
 Supreme power, which had previously been 
 exclusively in the hands of monarchs, aided 
 by their counselors, was, indeed, transferred 
 
 41
 
 THE PEOPLE'S GOVERNMENT 
 
 to the hands of the people, or of those who 
 were supposed to represent them; but the 
 change was far less a transformation of the 
 State than a mere alteration in the control 
 of its power to exact obedience. 
 
 Call the roll of the persons who, after 
 the Revolution in France, became the chief 
 depositories of power, and ask the question, 
 "In what sense was its exercise amelio- 
 rated?" and you are immediately impressed 
 by the fact that authority, in any defensible 
 sense, had made no substantial progress in 
 defining its essential nature, as distin- 
 guished from mere power to compel obedi- 
 ence. The populace of Paris; Brissot, with 
 his policy of a universal "war on kings"; 
 Danton, and the massacres of the nobility 
 by the Commune; Robespierre, and the 
 "culte de la Raison"; the impersonal reign 
 of War and Famine in the midst of uni- 
 versal terror; the Directory; the Consulate; 
 Napoleon Bonaparte liberator, emperor, 
 
 42
 
 STATE AS EMBODIMENT OF FORCE 
 
 and conqueror of Europe were these less 
 tyrannical than the King they had super- 
 seded? 
 
 In all this dreadful drama, there is not 
 one act or scene that has not had its de- 
 fenders; not one that did not seem to some 
 enthusiast to have a justification for its 
 enormity in still greater enormities which 
 it was intended to suppress. And behind all 
 this continued tragedy there was always one 
 and the same philosophy : the theory that the 
 State is power, "supreme power," exercised 
 in the name of some isolated virtue the re- 
 dress of wrong, the establishment of right- 
 perpetual homage to the idea of justice; but 
 justice ill conceived and violently adminis- 
 tered ! 
 
 Where, then, is the true theory of the 
 State to be found? Evidently, it is not to 
 be sought in the idea of power alone, no 
 matter by whom it is possessed and exer- 
 cised. Monarchies, oligarchies, and de- 
 
 43
 
 THE PEOPLE'S GOVERNMENT 
 
 mocracies, all and equally, have failed, and 
 will always continue to fail, so long as they 
 cling to the belief that power to command 
 and to enforce obedience is the true essence 
 of public authority. Nor can it be found 
 in the idea of abstract justice as a merely 
 personal conception. To give it stability 
 and to evoke for it universal respect, a lar- 
 ger consensus and a more impersonal origin 
 are demanded. To discover and to formu- 
 late the true nature of the State, appeal must 
 be made to a more complete analysis of the 
 constitution of man and of society than that 
 which is embodied in the empirical art of 
 imposing a dominant will. The true prin- 
 ciple of authority is not to be found in any 
 attribute of the ruler, whoever the ruler 
 may be, but in the nature of the being who 
 is to be ruled. The ultimate foundation of 
 the law, as an expression of the power of 
 the State, is to be sought in the virtue of 
 the citizen. 
 
 41
 
 n 
 
 THE STATE AS A HUMAN 
 IDEAL
 
 II 
 
 THE STATE AS A HUMAN IDEAL 
 
 If society were a purely human invention, 
 and if the conditions of existence could be 
 determined entirely by human laws, life on 
 this planet would be somewhat different 
 from what it is. The more we reflect upon 
 the subject, however, the more evident it 
 appears that the nature of man as an indi- 
 vidual, the essential relations of men in their 
 community life, and especially the material 
 conditions upon which the continuance of 
 life depends, are, for the most part, beyond 
 the power of the human will to control, or 
 even appreciably to change. Nature has so 
 completely fashioned her human product, 
 and so bound him by her own ties of instinct 
 and habit, that he remains, in spite of all the 
 
 47
 
 THE PEOPLE'S GOVERNMENT 
 
 efforts of culture, from generation to gen- 
 eration, in a certain sense, the "natural 
 man.'* 
 
 This statement is intended to convey the 
 truth that the larger part of human activ- 
 ity is the product of unconscious causes. It 
 is not without interest to recall how com- 
 plicated and how complete the structure of 
 the human body must be before individual 
 consciousness is possible, and how long a 
 time must elapse after consciousness begins 
 before we are aware of even the most ele- 
 mentary conditions of our own existence. 
 Manhood itself is only a prolonged child- 
 hood. How long, then, must men have 
 waited, how completely must community 
 life have been developed, before reflective 
 social consciousness ever came into exis- 
 tence? When it did, the body politic was 
 already there. The State, in a rudimen- 
 tary form at least, had spontaneously come 
 into being. 
 
 48
 
 THE STATE AS A HUMAN IDEAL 
 
 But this social consciousness, when de- 
 veloped, was not equally possessed by all 
 individuals ; and, in fact, the communities of 
 men are rare, if they anywhere exist, even in 
 the present stage of human culture, where 
 interest in the community is equally dis- 
 tributed. The immediate personal needs of 
 the individual, for the most part, absorb his 
 attention and preoccupy his mind. Only 
 the few reflect upon the general condition 
 of society; and to those who have known no 
 better fortunes, so long as customary con- 
 ditions are not disturbed, these appear to 
 be tolerable, and even satisfactory. In- 
 stinct and habit dominate; the cycle of in- 
 dividual life is soon completed; with each 
 generation tradition binds the community 
 more firmly to the past; and the familiar 
 thus comes to be regarded as the normal, 
 the reasonable, and the authoritative order 
 of existence.
 
 THE PEOPLE'S GOVERNMENT 
 THE SLOWNESS OF POLITICAL PROGRESS 
 
 In all primitive communities, therefore, 
 the spirit of conservatism prevails; and 
 wisely so, for even slight experience teaches 
 how infrequently sudden and lasting 
 changes in the conditions of human life can 
 be produced by mere volition.^ The illusion 
 that thought can be readily transformed 
 into reality is persistent; and yet, when the 
 trial is made, men quickly discover how 
 difficult the process is. It then becomes 
 easy for them to decide to accept what cir- 
 cumstances grant to them, to adapt them- 
 selves to stern realities, and thus maintain 
 an existence which a more spirited effort to 
 introduce changes might put in jeopardy. 
 
 The first great obstacle to social change 
 is found in the material conditions of life. 
 Against this array of purely natural forces 
 the mind rebels in vain. The fact that a 
 large portion of every twenty-four hours 
 
 50
 
 THE STATE AS A HUMAN IDEAL 
 
 must be spent in restoring exhausted 
 energies, that food and shelter are necessary 
 to existence, and that the individual capable 
 of toil and conflict is closely associated with 
 the incapable, who demand a portion of his 
 energy for their support and protection, 
 compels the units composing society to rest 
 content with what it is possible to obtain 
 under existing limitations. 
 
 Even a slight material difference may 
 prove an impediment to liberty of action or 
 afford an advantage in determining social 
 position, whether regarded from the eco- 
 nomical or the political point of view. Take 
 into account, for example, the difference 
 that existed in the feudal age between men 
 of equal bodily strength and equal mental 
 powers, produced by a circumstance at first 
 thought so trivial as the possession of a 
 horse and a suit of mail. Yet in this simple 
 difference lay the distinction between the 
 abject helplessness of the peasant and the 
 
 51
 
 THE PEOPLE'S GOVERNMENT 
 
 power of compulsion possessed by the armed 
 knight or the country squire, for whose pro- 
 tection as a dispenser of justice the unarmed 
 man was willing to accept the position of a 
 serf, bowing with reverence before a fellow- 
 creature upon whose clemency toward his 
 proteges hung the issues of life and death. 
 
 Consider also for a moment the revolu- 
 tion that occurred in the nature of the State 
 as an institution, when the invention of gun- 
 powder and the use of artillery concentrated 
 power in the hands of those who alone were 
 able to possess them. In the presence of 
 this new set of material conditions the 
 mailed knight was an anachronism. 
 
 Unless he possessed the means to arm 
 with muskets his troop of vassals, and even 
 to provide them with artillery, the superior- 
 ity formerly afforded him by the ownership 
 of a horse and a suit of armor suddenly dis- 
 appeared. Only a few powerful princes 
 could organize standing armies equipped 
 
 52
 
 THE STATE AS A HUMAN IDEAL 
 
 with the new weapons. In the presence of 
 these more capable protectors the mailed 
 cavalier, armed with spear and battle-axe, 
 even though he dwelt in a castle, was a poor 
 competitor. The king now superseded the 
 feudal overlord. To strengthen his hands 
 against the local despot, from whose extor- 
 tions he alone could rescue them, the people 
 were willing to contribute freely of their 
 substance. What they paid in regularly 
 assessed taxes was less than they had for- 
 feited in arbitrarily exacted tribute, and 
 they were thus made faithful partisans of 
 royal supremacy. Before this formidable 
 concentration and centralization of power 
 feudalism gradually vanished away. The 
 monarch became the sole dispenser of 
 favors, his court the center of all that was 
 potent or brilliant within his realm, his 
 service the only pathway to distinction 
 within the State. 
 
 In such conditions, what had at first been 
 
 53
 
 THE PEOPLE'S GOVERNMENT 
 
 freely accorded by the people, for the pur- 
 pose of obtaining exemption, was demanded 
 and enforced as a sovereign right. Mon- 
 archy, in time, becoming absolute, was even 
 more oppressive than feudalism had once 
 been. In place of trivial combats, in which 
 a handful of servile followers fought body 
 to body with a posse of equally rude con- 
 testants, under the walls of rival castles, at 
 whose feet the medieval villages sheltered 
 their dependent inhabitants, great armies 
 were mustered and led afar upon ambitious 
 schemes of world conquest, in which every 
 subject of the Crown was compelled to con- 
 tribute without murmuring his substance, 
 his service, and, in case of need, his life. 
 
 Not until after large sums of money 
 were needed for these vast enterprises did 
 the will of the commons become the balance 
 of power in the State, able to determine 
 peace or war by according or withholding 
 the needed tribute. It was by the triumph 
 
 54,
 
 of financial economy on the part of the 
 people that in England parliamentary gov- 
 ernment was finally enforced not only the 
 right of the people to be represented in 
 Parliament, but the right of Parliament to 
 accord or withhold contributions to the royal 
 treasury. Originally the admitted privilege 
 of landed proprietors only, with the growth 
 of industrialism as a coordinate producer 
 and controller of wealth, parliamentary gov- 
 ernment has finally become but only after 
 long and bitter struggles the recognized 
 prerogative of all civilized peoples. 
 
 PROGRESS AND RETROGRESSION 
 
 In the light of this short review of politi- 
 cal progress, it becomes clear that no form 
 of political advancement can be made with- 
 out regard to the material conditions upon 
 which it must depend. It would, however, 
 be a serious error to assume that, because 
 
 55
 
 THE PEOPLE'S GOVERNMENT 
 
 of this dependence, there is an inherently 
 necessary principle of progress, or any 
 naturally predetermined process of political 
 evolution which automatically brings to 
 realization certain desirable results. 
 
 There is, in fact, no such principle, and 
 there is no such process. Expressions of 
 this kind are deceptive and illusory. They 
 originate from purely abstract reasoning, 
 and have no validity. On the contrary, if 
 we regard the facts of history inductively, 
 and above all genetically, we are forced to 
 the conclusion that there is no "inherent 
 law" of political progress. If we extend 
 our range of observation sufficiently, we 
 shall see that advance is often followed by 
 recession, not only in one country but in 
 the whole world. There is no such phe- 
 nomenon as a regular, unbroken, linear 
 advance toward any political ideals what- 
 ever. Reasoning based upon such an as- 
 sumption is misleading; and, in view of 
 
 56
 
 THE STATE AS A HUMAN IDEAL 
 
 its possible consequences, even dangerous. 
 Without the continued vigorous assertion of 
 the resolution by which it has been acquired, 
 liberty has no security. Every type of 
 government, if left to itself, tends to degen- 
 erate into some form of tyranny. 
 
 Not only this, but it is necessary to take 
 into account the fact that the failure to 
 realize political ideals for which a struggle 
 has once been undertaken is often followed 
 by a period not merely of reaction, but of 
 dejection and hopelessness. No pessimist 
 is so bitter as a disappointed optimist. The 
 lesson of history is, that it is only by per- 
 sistent and unrelaxing effort that political 
 progress can be maintained. As in the hu- 
 man body, so in the body politic, a daily 
 renewal of energy is essential to counter- 
 balance the forces of disintegration which 
 incessantly tear down that which is not un- 
 ceasingly rebuilt. 
 
 That this is true in principle as well as 
 
 57
 
 THE PEOPLE'S GOVERNMENT 
 
 in fact is evident from the universal result 
 of the uncontrolled play of natural forces. 
 The processes of nature uniformly move in 
 the form of cycles. These may be of greater 
 or less extent and duration, but they consist 
 without exception of a period of integration 
 followed by a period of disintegration. They 
 tear down with the same facility with which 
 they build up. Every natural structure 
 tends to degenerate. It may be renewed, 
 it may be surpassed by others ; but, as a con- 
 crete thing, it tends to return to its con- 
 stituent elements. 
 
 THE SUBSTITUTION OF THOUGHT FOR FORCE 
 
 There is, then, in the course of political 
 development, no natural or unconscious 
 process upon which it is possible to depend 
 to assure either its progress or its perma- 
 nence in any ideal sense. Material condi- 
 tions there are, but these are not causes; 
 
 58
 
 they merely furnish occasions for the opera- 
 tion of a constructive power above and out- 
 side of them. That power is the human 
 mind. 
 
 Left to itself, let us repeat, every type 
 of government tends to degenerate into 
 some form of tyranny. Just in proportion 
 as the mental determinations which have en- 
 tered into the development of the State are 
 withdrawn from action, in that degree the 
 purely natural, or mechanical, forces regain 
 the ascendancy. In the end, therefore, if the 
 determination on the part of the community 
 to maintain the rights and liberties already 
 acquired were to cease, society would soon 
 return to the condition of social unconscious- 
 ness in which the autocratic State was spon- 
 taneously formed by the interplay of purely 
 natural forces. The physically stronger 
 would dominate over the weaker ; the antith- 
 esis of "ruler" and "ruled" would be re- 
 stored; and government would return en- 
 
 59
 
 THE PEOPLE'S GOVERNMENT 
 
 tirely to the category of might, from which, 
 under the impulsion of the idea of right, it 
 has slowly and painfully emerged. 
 
 Never, however, since men began to think, 
 has mere force, unaided, been sufficient to 
 inspire with sincere respect the minds of 
 men. Always, in addition, there has been 
 needed some alliance of the po^er to enforce 
 obedience with the right to command it; 
 and thought has, therefore, played a large 
 role in the development of the modern 
 State. 
 
 Historically, as well as theoretically, it is 
 through their own thoughts, as well as by 
 brute force, that men have been governed. 
 Behind the reasoning there has always 
 gleamed the glaive, but even the naked 
 sword has made its appeal to reason. In 
 truth, the history of the State, and of the 
 theories of the State, reveals a progressive 
 substitution of thought for force. 
 
 60
 
 THE STATE AS A HUMAN IDEAL 
 
 THE SEAT OF PUBLIC AUTHORITY 
 
 It would carry us far beyond the limits 
 of time to which this discussion must of 
 necessity be confined, to notice, even in a 
 summary manner, all the stages of thought 
 through which the conception of the State 
 has passed. First of all, would be the glori- 
 fication of the hero, the reverence for the 
 person of the one who, by courage and 
 achievement, seemed to share in the powers 
 of divinity, and through his godlike supe- 
 riority appeared to deserve the right to com- 
 mand obedience. Thus, in the very begin- 
 ning of conscious reflection upon the nature 
 of authority, the ruler was invested with 
 qualities of a moral nature and became in 
 the minds of the people an incarnation of 
 virtue, the personal embodiment of the ideals 
 of his time. 
 
 From this stage of hero worship to the 
 conception of the ruler as the delegate and 
 
 61
 
 THE PEOPLE'S GOVERNMENT 
 
 representative of divine power and author- 
 ity the transition was not difficult. Even 
 upon a high plane of culture and mental 
 development, this tendency to see in rulers 
 the bearers of a divine commission is not 
 only possible but almost universal. The 
 craving of the mind for the embodiment of 
 ideals is irresistible. The abstract virtues 
 and the social needs such as public order, 
 personal security, and established justice- 
 seem barren and incomplete until they are 
 personified. When it is considered how 
 many artificial ways there are in which to 
 crown a man in power with a halo of right- 
 eousness, and how strong the temptation is 
 to employ such means, it is not wonderful 
 that, even in an age of enlightenment, public 
 authority is readily attributed to those who 
 profess, in the name of their superior per- 
 sonal excellence, to prescribe the conduct of 
 all others. 
 
 It cannot be doubted that minds wholly
 
 THE STATE AS A HUMAN IDEAL 
 
 incapable of conceiving, in a scientific sense, 
 of an institution so complex as the State, 
 or of forming any consistent theory of the 
 source of its authority, have nevertheless 
 contributed greatly to the process of polit- 
 ical development by sustaining the personal 
 ideals of great leaders whom they have con- 
 sidered as intrinsically worthy to command 
 their support. 
 
 The transition of confidence from a per- 
 son to a dynasty, and from a dynasty to 
 monarchy as an institution, was a process 
 of extreme simplicity, finally ending in the 
 dogma, "The king can do no wrong." Thus, 
 mere power has often come to be identified 
 with rightful authority, which has been felt 
 to be a social necessity, not because it has 
 been proved to exist, but because it was evi- 
 dently needed. 
 
 In fact, the claim to authority is older 1 
 than any theory of its origin. The theories 
 have been invented to justify the claim; but 
 
 63
 
 THE PEOPLE'S GOVERNMENT 
 
 the claim is, none the less, in part a result 
 of purely mental action. Although the au- 
 thority of the State existed before a theory 
 of its nature was attempted, it was never- 
 theless assumed, conceded, and exercised. 
 It is only when it is challenged that its 
 nature and validity become a question. 
 Neither the fact that it is exercised, or as- 
 sumed, or conceded, can, however, be offered 
 as a sufficient justification for its existence. 
 Until authority can be placed upon a logical 
 foundation, the human mind, which has 
 aided in establishing it, cannot be quite sat- 
 isfied with its own achievements. Heroes 
 have been applauded, they have been in- 
 vested with superhuman powers, they have 
 been glorified as the personification of vir- 
 tue, they have been conceded to possess 
 moral as well as physical supremacy, they 
 have been esteemed as the source of law, 
 placed above the law, and regarded as abso- 
 lute; but the question long remained unan- 
 
 64
 
 THE STATE AS A HUMAN IDEAL 
 
 swered, by what right they were entitled to 
 command and to compel obedience. This 
 question gave birth to theories regarding the 
 true nature of public authority and of the 
 State. 
 
 THE THEORY OF DIVINE RIGHT 
 
 There is something at first thought ex- 
 tremely plausible in the assertion that 
 princes rule by divine right. Assuming the 
 existence of a Divine Being as the Creator 
 of the world, omnipotent, omniscient, and 
 benevolent, it would seem unreasonable to 
 doubt that, somewhere in the scheme of crea- 
 tion, provision would be made for the right- 
 ful governance of mankind. What, then, 
 more simple than to suppose that the actual 
 rulers of the world possess a commission of 
 divine authority? Having admitted its ex- 
 istence, the State would at once be clothed 
 with all the claims to respect, fidelity, and 
 self-sacrificing devotion that could be con- 
 6 65
 
 THE PEOPLE'S GOVERNMENT 
 
 ferred by the most sacred religious obliga- 
 tion. Were it not for the moral contradic- 
 tions revealed by a comparison of these lofty 
 claims with the actual practices of sovereign 
 rulers, this theory could hardly fail to secure 
 the assent of all religious minds. It was 
 not until these contradictions had become so 
 numerous, so palpable, and so shocking as to 
 discredit this theory in the minds of all 
 thinking men, that another foundation for 
 the State seemed to be required. 
 
 This dogma had, indeed, an ancient rival. 
 Long before Jean Jacques Rousseau chal- 
 lenged the theory of divine right with the 
 declaration that the People are the rightful 
 sovereign, John Locke had announced and 
 defended that doctrine. Even long before 
 Locke, Jean Jandun, at the University of 
 Paris, in the first quarter of the fourteenth 
 century, had taught that sovereignty is in- 
 herent in the people, who merely confer it 
 upon their ruler. But even Jandun's doc- 
 
 66
 
 THE STATE AS A HUMAN IDEAL 
 
 trine was only a revival of what from the 
 second to the sixth century of our era had 
 been the interpretation of the "Lex Regia" 
 by the Roman jurisconsults. 
 
 It is curious how a great and fertile idea 
 could, after having once been so clearly ex- 
 pressed, so long lie dormant. "Quidquid 
 principi placuit legis habet vigorem" was, 
 indeed, a maxim of the Roman jurispru- 
 dence as transmitted to us by Justinian; 
 but, in stating that the will of the prince is 
 law, he had not forgotten the true source of 
 imperial authority. Quite as distinctly, it 
 was stated, "Populus el et in eum suum im- 
 perium et potestatem conferat" It was only 
 by long abuse that in the Roman Empire 
 the power of the State had been violently 
 acquired, and had ceased to be conferred by 
 the free act of the people, in whom it was 
 still believed legally to reside. 
 
 It was a German emperor, Frederick II, 
 who, in his contest with the Italian munici- 
 
 67
 
 THE PEOPLE'S GOVERNMENT 
 
 palities, in the twelfth century, first openly 
 and boldly challenged this ancient restraint 
 upon imperial absolutism, and extorted 
 from his jurisconsults the formal decision 
 that the emperor is "lex animata in terris," 
 the living law for the whole earth, re- 
 sponsible to no one but God, in whose name 
 he proclaimed his legislation ; but even some 
 of these obsequious flatterers could not 
 accept the unlimited authority of their am- 
 bitious lord. Walking, one day, with Bul- 
 garus and Martinus, Barbarossa is said to 
 have asked if they did not think he was 
 rightfully master of the world. "Yes," re- 
 plied Martinus. "No," answered Bulgarus, 
 "not as to property." Having proved the 
 better courtier, Martinus, it is said, was re- 
 warded with the present of a horse. Bul- 
 garus, whose conscience was more tender, 
 was obliged to console himself by making a 
 Latin pun. "Amissi equum," he wrote, 
 "quia dixi aequum!" 
 
 68
 
 THE STATE AS A HUMAN IDEAL 
 
 SOVEREIGNTY CONCEIVED AS INHERENT IN 
 THE BODY POLITIC 
 
 It is chiefly in periods of material change 
 that thought obtains its opportunity of free 
 expression. Potent as it may be in arriv- 
 ing at rationally defensible theories, it is 
 only when exempt from forcible suppression 
 that the human mind may freely apply itself 
 to the unfettered discussion of the true na- 
 ture of the State. It is such periods, there- 
 fore, that form the milestones in the progress 
 of political development. 
 
 It was in such a period, for example, when 
 the United Netherlands in the sixteenth 
 century had thrown off the yoke of Spain, 
 and were making an experiment in self- 
 government, that Johannes Althusius, a 
 German jurist resident in Holland, made a 
 new attempt to discover the true foundation 
 of the State. 
 
 Like Jean Bodin, Althusius (1567-1638) 
 
 69
 
 THE PEOPLE'S GOVERNMENT 
 
 regarded sovereignty as "indivisible, incom- 
 municable, and imprescriptible"; but, seek- 
 ing for its substance, not in "supreme pow- 
 er," but in some form of moral obligation, 
 he defined it as, "a right inherent in the entire 
 body politic to unite by free association for 
 its own protection and government." 
 
 Thus conceived, sovereignty is not de- 
 rived from force, but from the right to 
 employ force for the protection of society. 
 Even more skillfully than Rousseau, who 
 wrote long after him, Althusius derives it, 
 not vaguely from the "people," but from 
 the "body politic" as a moral organism. It 
 is not, as he conceives it, an attribute of in- 
 dividuals, considered singly or as a mass; 
 but of a community of free men united to 
 secure and preserve their inherent rights to 
 life, to property, and to liberty. As an ex- 
 pression of a moral necessity, he contends, 
 the substance of the State is not "supreme 
 power," or power of any kind. The State 
 
 70
 
 THE STATE AS A HUMAN IDEAL 
 
 has authority because it is a moral organism, 
 founded on moral principle, and represent- 
 ing a totality of human rights. Thus it 
 belongs primarily and exclusively to the 
 category of right, rather than to the cate- 
 gory of might. 
 
 The State, thus defined, at once takes its 
 place in the realm of jurisprudence. It ex- 
 ists de jure, but also sub jure. In this it 
 differs from the State conceived as absolute, 
 and by the diameter of the universe from 
 the State conceived as "supreme power." It 
 may have but little power, but its right is 
 indefeasible. A greater force may over- 
 whelm it, take possession of its territory, 
 enslave its population, and obliterate its 
 name; but, in writing its epitaph, we may 
 place over its grave the legend: "Here lies 
 the victim of a crime!" 
 
 De jure, a State thus destroyed still con- 
 tinues to exist, and may at any time reassert 
 its existence. But, even at the maximum of 
 
 71
 
 THE PEOPLE'S GOVERNMENT 
 
 its powers, it exists sub jure also. Belong- 
 ing by definition to the order of jurispru- 
 dence, a State, however powerful, is essen- 
 tially under law. As a member of the 
 society of States, every State is responsible 
 for its acts, and possesses outwardly as well 
 as inwardly its rights and duties. The laws 
 that govern its conduct may be % enforceable 
 or not, its obligations remain the same. As 
 a moral organism endowed with conscious- 
 ness of its rights and duties, it may be re- 
 garded as a moral person. Justly consid- 
 ered, it sustains to other like communities 
 of men all the relations of a person. It may 
 properly sue and be sued in a legal process 
 before a court of its own election. It is, in 
 brief, a responsible being, and the human 
 mind cannot, without a defect in its logical 
 procedure or the sacrifice of a fundamental 
 principle essential to the very conception of 
 a State, plead its irresponsibility.
 
 THE STATE AS A HUMAN IDEAL 
 THE STATE AS A RESPONSIBLE ENTITY 
 
 All this cannot, of course, be said of the 
 State regarded merely as "supreme power." 
 With such a State goes the crude concep- 
 tion embodied in the old absolutist maxim, 
 "Princeps le gibus solutus est"; a maxim 
 which, unfortunately, has outlived the sys- 
 tem of which it formed a part. If, in fact, 
 the prince is exempt from obedience to the 
 laws, then the State has no place in the 
 sphere of jurisprudence; it is merely a force 
 among other forces of a like kind. If it is 
 the stronger, it may overwhelm and destroy 
 without scruple everything that opposes it. 
 If it is the weaker, it must submit to the iron 
 law of conquest, and surrender to its phys- 
 ical superior. 
 
 Unhappily, this relic of the age of abso- 
 lutism still survives, and even enjoys a place 
 of honor in the thoughts of statesmen and 
 even of jurists. Sovereignty, whether of a 
 
 73
 
 THE PEOPLE'S GOVERNMENT 
 
 monarch or of a republic, is still identified 
 with ''supreme power"; and the power of 
 the State is still regarded as exempt from 
 obedience to law. The alleged "right of 
 conquest" still permits the stronger to im- 
 pose an arbitrary and irresponsible will 
 upon the conquered. The mere fact of war, 
 which any sovereign State may at any time 
 begin, is considered to signify the termina- 
 tion of all treaties. Of a modern State, of 
 a constitutional State, even of a State 
 founded upon the "sovereignty of the peo- 
 ple," equally with the absolutist State, which 
 no civilized people would longer tolerate, 
 it may still be said, when its outward rela- 
 tions alone are considered, "Legibus solutus 
 est! 3 ' 
 
 The indictment may appear severe, but 
 no well-informed person will dispute it. 
 Within our century, within the present dec- 
 ade, within the year not yet ended, all this 
 has been illustrated upon a scale that fills 
 
 74
 
 THE STATE AS A HUMAN IDEAL 
 
 the human mind with a sense of horror. 
 And there is no modern nation that can 
 show clean hands; for there is none that 
 would not invoke, as an excuse for not ap- 
 pearing before a tribunal of justice, the 
 sovereign right of a State to determine its 
 own conduct on the principle of legibus 
 solutus. For the State there is no binding 
 and authoritative law which, upon the plea 
 of its own supremacy, it cannot openly 
 violate. 
 
 What renders the reality most deplorable 
 is that it is within the range of human deter- 
 mination to place the State frankly and un- 
 equivocally within the sphere of recognized 
 juristic principles, binding it to observe the 
 maxims of human conduct which within its 
 own limits and upon its own members it re- 
 gards itself as authorized to enforce; yet 
 there is no direct, persistent, and general 
 movement in this direction. 
 
 75
 
 THE PEOPLE'S GOVERNMENT 
 
 THE TRUE NATURE OF AUTHORITY 
 
 What, then, is the foundation of this au- 
 thority which the State, as sovereign, as- 
 sumes to exercise? Does it really extend to 
 the unqualified claim of unlimited privilege 
 implied in the idea of absolute supremacy? 
 In brief, is absolute supremacy a right, or 
 is it a mere assumption? 
 
 We shall struggle in vain to derive right- 
 ful supremacy from the idea of "supreme 
 power," in which sovereignty is ordinarily 
 assumed to consist, whether this be possessed 
 by a monarch or by a people. The concep- 
 tion gains no moral increment from its 
 source so long as it remains mere "power." 
 The "people" can confer upon the State no 
 right that is absolutely without limits, for 
 the reason that they themselves possess no 
 unlimited rights. So long as the discussion 
 is kept within the bounds of jurisprudence, 
 all rights are definite and limited. This re- 
 
 76
 
 THE STATE AS A HUMAN IDEAL 
 
 suits from their very nature. A right that 
 cannot be defined is no right at all. 
 
 What is it, we may ask, in the nature of 
 the "people," that gives them unlimited au- 
 thority? The fact, it may be answered, that 
 there is no authority superior to themselves. 
 But is it true that there is no authority su- 
 perior to themselves? 
 
 The problem presses itself upon us : What 
 is the source of the alleged authority of the 
 people? In what does it consist? Is it their 
 unqualified will, their mere power, or their 
 determination to do a certain thing, or to 
 pursue a certain course? If the source of 
 authority is mere power, or determination, 
 or volition, then, certainly, authority is a 
 measurable magnitude, a quantity that can 
 be calculated, weighed, and placed in com- 
 parison with another quantity. It partakes 
 then of the nature of force, and is, in fact, 
 only another name for force. It becomes a 
 mere problem in arithmetic. 
 
 77
 
 THE PEOPLE'S GOVERNMENT 
 
 But, in truth, authority, in any sense 
 which a jurist can recognize, is not a quan- 
 tity, it is a quality. It proceeds from a dis- 
 crimination between what is right and what 
 is wrong. That distinction cannot be cre- 
 ated, and it cannot be destroyed, by mere 
 volition. It cannot be reduced to terms of 
 force. It cannot be expressed^ in terms of 
 arithmetic. It is apprehended through none 
 of the external senses; it is an affair of the 
 human mind. 
 
 Are we dealing now with mere verbal re- 
 finements and metaphysical conceptions? 
 On the contrary, we are dealing with one 
 of the most immediate, universal, and indis- 
 putable of human intuitions the distinction 
 between right and wrong. 
 
 What is the validity of this intuition? It 
 is the same as that of any axiom whatever, 
 namely, that thought is impossible without 
 it. Define them, classify them, or dispute 
 about them as we may, it is impossible tg 
 
 78
 
 THE STATE AS A HUMAN IDEAL 
 
 regard human relations without making a 
 distinction between right and wrong ; as im- 
 possible, in fact, as to fix the attention upon 
 objects in space without being aware that 
 the shortest distance between any two points 
 is a straight line. 
 
 Authority, therefore, has its true source 
 in the nature of intelligence, which discrim- 
 inates between that which "ought" and that 
 which "ought not" to be done. It proceeds 
 from an apprehension of a mandatory rule 
 of action; rationally mandatory, but not 
 physically compulsory, for obedience and 
 disobedience are matters of choice and voli- 
 tion. Corresponding to them, in the sphere 
 of feeling, are the sense of innocence and 
 the sense of guilt. Thus the whole nature 
 of man responds to the voice of an authority 
 higher than that of the human will as pos- 
 sessing a rightful claim to obedience. 
 
 79
 
 THE PEOPLE'S GOVERNMENT 
 
 THE IMPERSONALITY OF AUTHORITY 
 
 Thus conceived, authority does not pri- 
 marily pertain in any sense to persons. It 
 is no more an attribute of the people than 
 it is of the prince. The doctrine of popular 
 sovereignty teaches otherwise, hut its foun- 
 dation is as faulty and its logic is as de- 
 fective as that involved in the theory of 
 divine right. 
 
 It is of the highest importance that this 
 should be understood ; at least, that it should 
 not be misunderstood, of which there is grave 
 danger. 
 
 We are accustomed to think of the "will 
 of the people" as the source of that form of 
 authority which is expressed in the State, 
 but this is inexact. The error owes its origin 
 to the bodily transfer of a vague conception 
 from monarchy to democracy, without even 
 an attempt at analysis. If we are right in 
 denying that the mere will of the prince is 
 
 80
 
 THE STATE AS A HUMAN IDEAL 
 
 the source of law, upon what principle can 
 we claim that the mere will of the people is 
 the source of law? The truth is that law, 
 in any defensible sense, is not to be derived 
 from will, but from reason; but reason is 
 not a private and purely personal possession, 
 it is a common and universal standard of 
 judgment, a tribunal to which all men may 
 appeal, because it is the final source of au- 
 thority by which rational intelligence must 
 be guided. 
 
 While we properly employ the word "rea- 
 son" to designate a faculty of the mind, we 
 do not mean that it is in any sense an 
 arbitrary faculty, capable of making its own 
 independent determinations, or in any re- 
 spect similar to the faculty of choice. We 
 cannot by mere thinking make black white, 
 or a whole greater or less than the sum of 
 its parts. Subjectively, reason is a personal 
 capacity for apprehending principles; but 
 objectively, it is entirely impersonal, consti- 
 7 81
 
 THE PEOPLE'S GOVERNMENT 
 
 tuting the very framework of the universe. 
 When men "reason" together they try to 
 meet on this common, objective ground. 
 They appeal from that which is individual 
 to that which is common to them all; but 
 which is, at the same time, above and beyond 
 their individuality, or personal power of de- 
 termination. It is before this* superior tri- 
 bunal that the human mind appears when 
 it tries its cases in the highest court of 
 appeal. 
 
 It is not, therefore, from volition, and it 
 is not even from subjective reason, that au- 
 thority is derived. It is, on the contrary, in 
 reason as objective and impersonal the 
 common bond of all intelligence that au- 
 thority resides. 
 
 Can it be for a moment contended that 
 this impersonal reason does not exist, or that 
 it does not possess authority? What is it, 
 then, that controls the operation of the hu- 
 man understanding, and decides between the 
 
 82
 
 THE STATE AS A HUMAN IDEAL 
 
 validity or invalidity of its processes of re- 
 flection? No man really doubts the imma- 
 nence within himself of that which is not 
 himself, but to which he constantly makes 
 appeal to justify his judgments and opin- 
 ions. He knows perfectly that his own in- 
 terests, his appetites, his desires, and his 
 sentiments the phases of his consciousness 
 which are strictly personal to himself pos- 
 sess no inherent authority, and that no soph- 
 istry can make them authoritative. His 
 will, in so far as it is made up of these 
 purely subjective elements, possesses no 
 claim above that of any other will ; and there 
 is nothing in its nature as mere volition that 
 can be considered final and rightfully com- 
 manding. It is only when it is fortified by 
 an appeal to principles which are not per- 
 sonal, and which have the quality of regu- 
 lative standards or norms of judgment, 
 that any man's will can possess authority. 
 Whatever authority it ever does possess is 
 
 83
 
 THE PEOPLE'S GOVERNMENT 
 
 derived from its conformity to this imper- 
 sonal source. 
 
 Such a doctrine, it may be said, will do 
 very well for philosophers, but what does 
 the common man know of these things? 
 
 It is precisely the common man whose 
 mind is clearest on this subject. It is the 
 sophisticated only who have .iheir doubts. 
 The authority of reason is not subject to 
 any man's monopoly. It dwells in the cot- 
 tage as well as in the palace. It needs no 
 earthly throne to give it supremacy, for it 
 is enthroned in every man's intelligence and 
 speaks in every man's sense of obligation. 
 Its language all may understand. When 
 questions are asked, it replies imperatively: 
 "You ought" or "You ought not" Doubt 
 begins only when self-interest, in some form, 
 refuses to accept the answer and hedges it- 
 self about with arguments. 
 
 84
 
 THE STATE AS A HUMAN IDEAL 
 THE FOUNDATION OF THE STATE 
 
 Whence, then, does the State derive its 
 authority? Certainly not from the "will of 
 the prince," and with equal certainty not 
 from the "will of the people." It does not 
 proceed from any mere will whatever. 
 
 If behind the mere phenomena of exist- 
 ence we place in our thought a supreme cre- 
 ative power whence all things proceed, and 
 name it the Divine Will, that is a philosoph- 
 ical conception which we are not called upon 
 here to discuss, much less to dispute; but, 
 by the very terms of the conception, this 
 fons et origo of power and authority is above 
 and beyond mere human personality. It is 
 objective and impersonal, in the sense here 
 intended; that is, it is no quality of the hu- 
 man individual. The human individual has 
 no attribute that he can transfer to the State 
 which can give it rightful authority to com- 
 mand and enforce obedience. 
 
 85
 
 THE PEOPLE'S GOVERNMENT 
 
 The State, therefore, must base its au- 
 thority upon some other foundation than 
 the "will of the prince" or the "will of the 
 people." 
 
 At first thought, there is a great differ- 
 ence between the "will of the prince" and 
 the "will of the people." The former, it 
 may be said, may be partial, arbitrary, and 
 unjust; in any case it is purely individual. 
 But may not the "will of the people" also, 
 if it is based on interests, appetites, desires, 
 and sentiments and let us add class or sec- 
 tional enmities be equally partial, arbi- 
 trary and unjust? Not only so, but it also, 
 in the last analysis, in addition to being even 
 more effectual, is equally individual. How 
 is it possible to derive from a mere numerical 
 collection of private wills an authority that 
 does not inhere in any one of them? What 
 right is possessed by ten men that justifies 
 them in imposing their private wills in any 
 arbitrary sense on an eleventh man who does 
 
 86
 
 THE STATE AS A HUMAN IDEAL 
 
 not consent to obey them, and wishes to 
 prove that their requirements are unjust? 
 
 It is evident, therefore, that the State, 
 equally with the individual, must derive its 
 authority from principles which can justify 
 their existence before the bar of reason. 
 The real problem is: Are there any prin- 
 ciples so clear, so self-evident, and so im- 
 perative in their nature that men may justly 
 be compelled to obey them, whether as indi- 
 viduals they consent to do so or not? 
 
 Can men agree upon any such principles ? 
 Is it possible to form any such conception of 
 law as to give it, in all its applications, the 
 quality of inherent authority? That is the 
 fundamental question that underlies all leg- 
 islation, and that must in the end determine 
 the relation of the citizen to the State.
 
 Ill 
 
 LAW AS A SOVEREIGN 
 DECREE
 
 Ill 
 
 LAW AS A SOVEREIGN DECREE 
 
 The State, as it exists, is neither ex- 
 clusively the embodiment of force nor the 
 perfect realization of a human ideal. It is, 
 on the contrary, a compromise between in- 
 herited conditions on the one hand and suc- 
 cessive social reforms on the other. It is, 
 in part, the work of Nature, which has im- 
 posed upon men certain necessities from 
 which, even by their united efforts, they 
 cannot entirely free themselves ; and, in part, 
 the work of Reason, which has striven, with 
 some success, to surmount the obstacles 
 arising from the appetites, the enmities, 
 and the ambitions of mankind. 
 
 Food, raiment, shelter, and other sub- 
 sidiary commodities are essential to human 
 
 91
 
 THE PEOPLE'S GOVERNMENT 
 
 existence and well-being. To produce 
 these, human activity is necessary; and, to 
 divide and distribute them in a satisfactory 
 manner, so that each may possess and enjoy 
 his own and receive the just fruits of his 
 labor, it has been needful to devise obliga- 
 tory rules of action, imposing upon each 
 individual in the community certain duties 
 of performance and certain obligations of 
 restraint. 
 
 To define and enforce these rules of 
 action is the recognized function of the 
 State. In the most primitive and rudimen- 
 tary forms of society, in which the popula- 
 tion was nearly homogeneous and the tasks 
 of life were nearly uniform, the inherited 
 customs of the community furnished, for the 
 most part, the rules of conduct. Whatever 
 else was necessary for the regulation of life 
 was determined by the chief person or per- 
 sons in the community, whose decisions had 
 the force of law. With the growing com- 
 
 92
 
 LAW AS A SOVEREIGN DECREE 
 
 plexity of social relations, new rules were 
 constantly required; and, in time, when the 
 necessary level of culture was attained, each 
 community, according to its form of organi- 
 zation, added to the customary usages and 
 traditional precepts more definite prescrip- 
 tions of conduct in the shape of written 
 regulations. 
 
 Without entering upon the details of 
 legal history, it is sufficient for our purpose 
 to call attention to the fact, that, with the 
 differentiation of the community into a 
 * 'governing" and a "governed" class, the 
 process of law-making assumed the form 
 of legislation by decree. Whatever the 
 specific type of the law-making power, 
 whether that of popular assemblies or of 
 individual autocrats, the power that made 
 the laws gradually came to be regarded as 
 possessing unlimited authority to do so. In 
 this manner grew up the conception of an 
 imperium, a majestas, or ''sovereignty,"
 
 THE PEOPLE'S GOVERNMENT 
 
 charged with the function, and possessing 
 the exclusive right, of determining the rules 
 of action which the community must ob- 
 serve. 
 
 That such a delegation of power was 
 necessary as well as convenient, is evident; 
 for legislation en masse by any community 
 of men in a complex condition of society is 
 hardly conceivable. But the development, 
 through centuries of time, of the idea that 
 there exists somewhere an exclusive sover- 
 eign power, whose sphere is undefined, 
 whose operation is incessant, whose decrees 
 are materially irresistible, and whose author- 
 ity is, therefore, not to be questioned, has 
 introduced into the world a cause of dis- 
 turbance which has profoundly affected not 
 only the realm of thought but the field of 
 action. It has sown the seeds of inconse- 
 quence in the theories of government, and 
 of revolution in the minds of overburdened 
 populations. 
 
 94
 
 LAW AS A SOVEREIGN DECREE 
 LAW CONCEIVED AS COMMANDMENT 
 
 Rightly understood and intelligently con- 
 sidered, law should evoke not only universal 
 respect, but even the sincere reverence of 
 those called upon to yield their obedience; 
 but, in many instances, it is regarded as a 
 burdensome restraint upon personal liberty 
 which, whenever possible, it is permissible 
 secretly to evade. 
 
 The reasons for this attitude of mind are 
 manifold, but one of them at least is not 
 without justification; for laws may be so 
 arbitrary and so evidently unjust as to do 
 violence to both reason and conscience. It 
 then ceases to be a duty to obey them. It 
 may even be a duty to resist them. 
 
 It has not infrequently happened that the 
 requirements of the law and the dictates 
 of reason and conscience have been in such 
 violent opposition that those in power have 
 esteemed it desirable to silence and sup- 
 
 95
 
 THE PEOPLE'S GOVERNMENT 
 
 press altogether the free exercise of intelli- 
 gence, and to demand unhesitating compli- 
 ance with the mandates issued by the State. 
 Force has then taken the place of argument ; 
 and law has, therefore, been made to seem 
 even more arbitrary, unjust, and odious 
 than before. 
 
 In substituting a purely factitious form 
 of authority for that which might be accept- 
 able to human intelligence, the State has 
 done itself incalculable harm. Not the 
 least part of the injury inflicted is the ap- 
 parent justification of the idea that the 
 State is the enemy, rather than the friend, 
 of the common man. Thus has been built 
 up along with the artificial distinction be- 
 tween "rulers" and "subjects" a certain 
 antagonism between them; the former pos- 
 sessing the unlimited right to command, and 
 the latter being bound, against their will, by 
 the necessity of unquestioning obedience. 
 
 So completely has this antithesis become 
 
 96
 
 LAW AS A SOVEREIGN DECREE 
 
 ingrained into the thoughts of men, that 
 even great and independent thinkers have 
 made it the foundation of their philosophy 
 of jurisprudence. Thus, for example, the 
 celebrated English jurist, John Austin, de- 
 fines "law" as "the commandments imposed 
 by a supreme authority upon persons wholly 
 subordinate to it. 31 
 
 Whatever does not fall within this defini- 
 tion, declares the learned jurist, is not law. 
 As a consequence, there is not, and cannot 
 be, such a thing as "law international"; for, 
 since there is no "supreme authority "capa- 
 ble of issuing "commandments" to inde- 
 pendent sovereign nations, there is not, and 
 there cannot be, any law for them. Being 
 sovereign, they are, by definition, above the 
 law; and, therefore, cannot be subject to it. 
 Legibus solutus must, of necessity, be ap- 
 plied to every sovereign power thus con- 
 ceived. 
 
 To the student of comparative juris- 
 
 8 97
 
 THE PEOPLE'S GOVERNMENT 
 
 prudence, especially when regarded from 
 the historical point of view, such a definition, 
 entirely apart from the absurdity of its 
 consequences, is evidently insufficient; and 
 the attempt to fit customary law and judi- 
 cial decisions to this procrustean standard 
 makes it still clearer how inadequate this 
 conception is. To give it the appearance of 
 validity, it is necessary to reason in a circle, 
 attempting alternately to prove the exis- 
 tence of a sovereign from the existence of 
 law, and the existence of law from the 
 existence of a sovereign. 
 
 There is, in truth, no proof whatever that 
 law is essentially and exclusively a "com- 
 mandment." It may be merely a tradi- 
 tional usage, a tacit agreement, or a public 
 convention. We may, indeed, speak of the 
 "commandments" of the law; but the idea 
 that the law emanates from a power having 
 authority to impose it upon persons entirely 
 subordinate to it must at least be qualified 
 
 98
 
 LAW AS A SOVEREIGN DECREE 
 
 by the statement that the subjects of law and 
 the makers of law, in the modern State, 
 may be identically the same. 
 
 If this be true, Austin's denial of the pos- 
 sibility of international law is purely dog- 
 matic, and has no foundation in the essen- 
 tial nature of law. Rules of action laid 
 down by the voluntary agreement of sover- 
 eign states possess all the qualities and all 
 the authority of law, even though they are 
 not imposed by any superior power ; for law 
 is not essentially a decree, it is a rule which 
 it is agreed shall be accepted and obeyed. 
 
 In truth, decrees become law only where 
 there exists a self-sufficient and unlimited 
 form of authority that is passively accepted 
 as final and supreme. In the modern con- 
 stitutional State such a form of authority 
 does not exist. With us in the United 
 States, for example, we choose representa- 
 tives to formulate, interpret, and execute 
 certain rules of action which we believe will 
 
 99
 
 THE PEOPLE'S GOVERNMENT 
 
 be for the benefit of the community. Our 
 statutes, as well as our traditional usages 
 and judicial decisions, which have the force 
 of law, are not "commandments" so much 
 as they are agreements. Our legislators 
 agree upon what shall become legislation, 
 our judges declare what the laws thus en- 
 acted are, and our executives .see that the 
 decisions thus reached are executed. With 
 us the antithesis between the "ruler" and the 
 "ruled" has disappeared, and with it the 
 notion of law as mere "commandment." 
 
 Although the conception of law has 
 changed with the process of law-making, 
 the idea that it is in effect a command issu- 
 ing from absolute sovereignty lingers on in 
 our legal classics, our political theories, our 
 forms of speech, and even in our profes- 
 sional arguments. But, considered in the 
 light of actuality in the United States, and 
 many other countries, John Austin's defini- 
 tion of law would never be suggested to 
 
 100
 
 8CRIPPS fNSTlTUTKMI 
 
 LAW AS A SOVEREIGN DECREED 
 
 the mind as an induction from existing 
 facts. Based on a particular artificial order 
 of things that has almost entirely passed 
 away, it is at present an anachronism in 
 juristic science which may very well be 
 finally dismissed. 
 
 THE MYTH OF ABSOLUTE SOVEREIGNTY 
 
 And what has just been said with regard 
 to the notion of law as a decree may be said 
 with equal truth of the idea of absolute 
 sovereignty, upon which it is founded. The 
 conception is, in fact, a mere generalization 
 from a condition created by a passing as- 
 sumption of authority that has no logical 
 justification. Along \vith the supreme and 
 unlimited authority of the prince goes the 
 whole foundation of arbitrary power. And 
 yet there lingers in many minds a craving 
 for government by decree, if only what is 
 commanded is in accordance with precon- 
 
 101
 
 THE PEOPLE'S GOVERNMENT 
 
 ceived ideas of what the law should be. 
 Our time shows a marked revival of this 
 tendency. Originally, the American peo- 
 ple, having thrown off the yoke of royal 
 authority, and even the supremacy of a for- 
 eign parliament, were deeply interested in 
 preserving individual liberty. Today, very 
 largely owing to the influence of foreign 
 example and theory, introduced into our 
 country partly through the addition to our 
 population of elements with less mature 
 political experience and partly through aca- 
 demic ideas borrowed from foreign teachers, 
 many persons are ready to abolish the guar- 
 antees of personal freedom, if thereby they 
 may exercise their will upon their fellow-citi- 
 zens. 
 
 Equality before the law does not seem to 
 them quite satisfactory. They would not 
 only redistribute the wealth of the nation; 
 they would lay down sumptuary laws for 
 the regulation of the whole of life. They 
 
 102
 
 LAW AS A SOVEREIGN DECREE 
 
 do not like our system of legislation by 
 agreement on the basis of accepted principles 
 of justice. Power, they contend, is thus so 
 divided and distributed that "commands" 
 cannot be imposed upon those whom they 
 would render "entirely subordinate to 
 them." All this ill befits a people that has 
 struggled successfully to throw off the yoke 
 of absolute sovereignty. It is the old story 
 of egoism and autocratic ambition in a new 
 guise. If the legislative body is too slow to 
 enact the particular legislation desired, if 
 the judiciary finds it when thus enacted not 
 in harmony with the guarantees of personal 
 liberty already agreed upon, this tendency 
 to rule by "commandments" manifests it- 
 self in urging upon the executive the duty 
 of compelling these other branches of gov- 
 ernment to obey his will. 
 
 It is not always perceived, that this is a 
 return to a baseless conception of the true 
 nature of law, namely, that it is a mere de- 
 
 103
 
 THE PEOPLE'S GOVERNMENT 
 
 cree of sovereign power. Sovereign power 
 is, indeed, essential to the very existence of 
 the State; but it is not an unlimited sover- 
 eignty, capable of issuing purely arbitrary 
 commandments. The "citizen," equally with 
 the "subject," must obey the law, when it 
 is once declared to be law; but the ques- 
 tion before us now is: What is law, in ac- 
 cordance with the conception of the State 
 as a moral organism, as distinguished from 
 arbitrary power? 
 
 Technically, no doubt, from the point of 
 view of the practical lawyer, the citizen is 
 bound to obey any law, whatever it may be, 
 if it can be enforced upon him, whether it 
 be just or unjust; but we are regarding the 
 question at this time from a higher point of 
 view. There are commandments which can 
 never be made law without subverting the 
 true conception of the State, which is not 
 merely an embodiment of power but an 
 organ of human justice. 
 
 104
 
 LAW AS A SOVEREIGN DECREE 
 
 To be a science, jurisprudence must main- 
 tain that even the State cannot be permitted 
 to be unjust, or to impose unjust command- 
 ments. It must stand for that which is 
 defensible in the realm of thought, and must 
 be consistent with clear principles of jus- 
 tice. The law, in this sense, cannot issue 
 from mere arbitrary will, no matter whose 
 will it is. If it is to be considered as an 
 expression of will at all, it must be a de- 
 termination of will emanating from reason; 
 for reason is to will what the united evidence 
 of our senses is to our personal sensations 
 and emotions the objective standard by 
 which error is to be corrected and the truth 
 determined. But reason does not deal with 
 the unlimited and the absolute, which are 
 not comprised in any individual experience. 
 Its province is to define limits, to set bounds, 
 and to establish relations which are just. 
 Neither in the nature of the prince nor in 
 the nature of the Deople is there any right 
 
 105
 
 THE PEOPLE'S GOVERNMENT 
 
 of absolute or unlimited command. Abso- 
 lutism is essentially unreasonable. It is a 
 usurpation of authority, and can be sus- 
 tained only by force. Absolute sovereignty, 
 no matter by whom it is claimed, is a myth. 
 
 THE GENESIS OF POPULAR SOVEREIGNTY 
 
 . 
 
 We often hear it dogmatically stated that 
 the "will of the people" is the ultimate 
 source of public authority, the true fons et 
 origo of law. 
 
 It is of the highest importance to exam- 
 ine this assumption, to trace its develop- 
 ment, and to ask in what sense it is true. 
 
 It is sometimes asserted that the doctrine 
 which declares law to be merely the expres- 
 sion of the "will of the people" is a doctrine 
 of the American Revolution ; and, therefore, 
 necessarily forms a part of the American 
 conception of the State. This is an error. 
 
 The American Revolution, on its nega- 
 
 106
 
 LAW AS A SOVEREIGN DECREE 
 
 tive side, was a revolt against absolutism in 
 every form; and, on its positive side, it was 
 a defense of the inalienable rights of the 
 individual. It was an appeal to general 
 principles of justice to be universally ap- 
 plied, and as much opposed to the arbitrary 
 will of a parliamentary body as to the arbi- 
 trary will of a royal person. Its whole 
 character was determined by that fact. The 
 French Revolution, on the contrary*, was 
 neither of these. It was a transfer of des- 
 potism from one depository to another, but 
 not a revolt against despotism as such; and 
 it was not, in any true sense, a defense of 
 the rights of the individual, but an assertion 
 of the authority of the mass. All the power 
 formerly possessed by the king was in that 
 revolt taken over by the people, undimin- 
 ished in amount, and untempered in quality. 
 The despotism of the Paris mob was more 
 fierce, more arbitrary, and more sanguinary 
 than that of any French monarch had ever 
 
 107
 
 THE PEOPLE'S GOVERNMENT 
 
 been. The philosophy of the State adopted 
 by the Revolution was virtually unaltered. 
 The only substantial change consisted in a 
 substitution of the absolute power of the 
 people for the absolute power of the prince, 
 and its motto in effect was: "Populus, non 
 prince ps> legibus solutus est." 
 
 The correctness of this statement is recog- 
 nized and affirmed by the most impartial 
 and authoritative living writers of France. 
 Speaking of the true nature of the Revolu- 
 tion, Emile Faguet, of the French Acad- 
 emy, in the preface to a recent work, asserts 
 that "the French Revolution neither en- 
 throned individualism nor suppressed abso- 
 lutism. It did precisely the contrary. It 
 displaced absolutism, at the same time reen- 
 forcing it; it displaced despotism only to 
 exercise it more forcibly; and it did nothing 
 else. It put the sovereignty of the people 
 in the place of the sovereignty of the king, 
 and it did nothing else. The omnipotence 
 
 108
 
 LAW AS A SOVEREIGN DECREE 
 
 of the people in place of the omnipotence 
 of the king; the omniscience of the people 
 in place of the omniscience of the king; the 
 unlimited property-right of the people in 
 place of the unlimited property-right of the 
 king ; absolute eff acement- of the individual 
 by the majority of his compatriots in place 
 of the absolute effacement of the individual 
 by. the royal authority; Votre Majorite in 
 place of Votre Majeste that is, without 
 qualification, the sum and substance of the 
 French Revolution." 
 
 No language could more truly or more 
 clearly lay bare the inner motives of that 
 great political upheaval. Between the con- 
 ception of the State entertained by Louis 
 XIV and that of the leaders of the French 
 Revolution there was not the slightest dif- 
 ference. L'etat c'est moi could be said as 
 truly by the one as by the other. Take up 
 one after another the successive administra- 
 tions, and it becomes evident that power, 
 
 109
 
 THE PEOPLE'S GOVERNMENT 
 
 unlimited and irresponsible power, was in 
 the minds of all the salient attribute of the 
 State. The Bastille had fallen; but the 
 more deadly guillotine was established as a 
 permanent institution, beneath whose glit- 
 tering knife the royalists, and even those 
 suspected of sympathy with them, were 
 driven en masse, without distinction of age 
 or sex. The taint of "superiority" in name, 
 or blood, or fortune was a sufficient death- 
 warrant. It is interesting to note the con- 
 stant crescendo in the number of public 
 assassinations. From November, 1793, to 
 March, 1794, it was only sixty-five victims 
 per month; but in the full tide of popular 
 fury the number increased. In the month 
 Ventose of the year II, it was 116; in Ger- 
 minal, 155; in Floreal it was 354; in the 
 first three weeks of Prairial it was 381 ; and 
 after the new law of that month it was 1,366 
 in forty-seven days! 
 
 This is not the place in which to speak in 
 
 110
 
 LAW AS A SOVEREIGN DECREE 
 
 detail of the indecency, the cruelty, and the 
 sanguinary rage of those who, by the will 
 of the majority, in succession possessed the 
 power of the State, and in their turn became 
 its victims. "Are ceremonies necessary to 
 reduce those whom the people have already 
 judged as criminals?" cried the infamous 
 Hebert; and, as a result, the Convention 
 decreed that the formalities of a trial might 
 be dispensed with, and that those who were 
 popularly condemned should perish without 
 an opportunity to plead in their defense. 
 In one day twenty-one deputies of a protest- 
 ing minority were sent to the scaffold. 
 
 It is no extenuation of these horrors to 
 believe that the perpetrators of them were 
 perfectly sincere. "We shall be able to be 
 human when we are assured that we are the 
 victors," wrote a member of the Comite du 
 Salut Publique. "It is our purpose," wrote 
 another, "by the destruction of certain in- 
 dividuals to secure the happiness of poster- 
 in
 
 THE PEOPLE'S GOVERNMENT 
 
 ity." "The sight of two thousand bloody 
 corpses thrown into the Rhone," wrote 
 Fouche from Lyons, "impresses upon the 
 beholders on its two shores . . . the image 
 of the omnipotence of the People! 33 
 
 "The omnipotence of the People!" 
 And how long has any people, unrestrained 
 by fixed principles, ever remained omnipo- 
 tent? What are the fruits of undirected 
 popular omnipotence, the omnipotence of a 
 majority swept onward by a tide of passion? 
 Today it is Robespierre who speaks, saying : 
 "The Republic is to be constituted by the 
 destruction of everything which is opposed 
 to it. He is culpable who does not approve 
 the 'Terror* " ; whereupon twenty protesting 
 members of the Assembly are led out to the 
 guillotine. Tomorrow Robespierre dead, 
 in turn the victim of the popular rage it 
 is Malet who writes: "The mass of the peo- 
 ple, indifferent to the Republic as to the 
 royalty, seek only the local and civil advan- 
 
 112
 
 LAW AS A SOVEREIGN DECREE 
 
 tages of the Revolution; they will receive 
 the law from any master who will know 
 how to enslave them by appealing to their 
 fears and hopes." Thus Napoleon Bona- 
 parte erects his empire upon the grave of 
 the Terrorists. The world, governed by its 
 interests, prefers its safety to its liberty; 
 and the people's will, a flickering flame, is 
 extinguished by the breath of the dictator 
 who can restore to them the security of life 
 and property. 
 
 What, then, shall be said of the famous 
 "Declaration of the Rights of Man and of 
 the Citizen"? 
 
 The first thing to be said of it is, that it 
 was a French paraphrase of an American 
 document, proposed by Lafayette, and soon 
 forgotten. The next thing to be said is, 
 that, according to a contemporary formula, 
 it was by its nature not "the law for the 
 citizen, but the law for the legislator." It 
 was, as it has been expressed, "The light 
 
 9 113
 
 which should precede the law, but not the 
 law itself " It is interesting to observe 
 that the Declaration of Rights has never 
 been embodied in any constitution of 
 France. Immediately after its adoption, 
 Monier declared: "The National Assembly 
 has now issued from the vast region of ab- 
 stractions of the intellectual world, of which 
 it has so painfully traced the metaphysical 
 legislation. It has come back to the real 
 world, and has set itself to frame the Con- 
 stitution of France." Used only to serve 
 as "the condemnation of the ancien regime," 
 as a recent French writer has expressed it, 
 the Declaration was not made the basis 
 of the new political order. It never became 
 in any sense the law of France. On the 
 contrary, under the Republic no restraint 
 was placed upon the "will of the people." 
 Each citizen was conceived as possessing a 
 fractional part of the sovereignty, and 
 sovereignty continued to mean unlimited 
 
 114
 
 LAW AS A SOVEREIGN DECREE 
 
 authority. The majority, unrestrained by 
 any principle whatever, was, therefore, able 
 to express the sovereign will of the people 
 and to represent its undisputed power. 
 
 ABSOLUTE SOVEREIGNTY A DENIAL OF HUMAN 
 RIGHTS 
 
 It is not difficult to perceive that this 
 transfer of unlimited power from the prince 
 to the people adds to it no increment of 
 rightful authority; for the simple reason 
 that, if there exists in the individual any 
 inherent and inalienable rights, no power 
 whatever, no matter how constituted, may 
 rightly take them away. How is it possible 
 to ascribe to a mass of individuals an un- 
 limited right which no one of them pos- 
 sesses? Can it, then, be contended, that 
 absolute sovereignty that is, entire free- 
 dom from the restraint of law is a defen- 
 sible juridical conception? Is it not, on the 
 contrary, plainly and in terms, a denial of 
 
 115
 
 THE PEOPLE'S GOVERNMENT 
 
 subjection to law; and, in effect, therefore, 
 a denial of the authority of law altogether? 
 
 It would seem to be an axiom, that a mere 
 aggregate of similar units cannot contain 
 any qualities which no one of them contains. 
 How, then, can a collection of mere private 
 wills, considered as so many personal ex- 
 pressions of desire, or interest, or determina- 
 tion, possess rightful authority over any 
 individual? If no one of them, regarded 
 singly, possesses such authority, all of them 
 together do not possess it. If there is noth- 
 ing absolute in the individual, there is noth- 
 ing absolute in the mass. A fortiori, there 
 is no absolute authority in mere numerical 
 preponderance. Votre Majorite is as de- 
 void of unlimited authority as Votre Ma- 
 jest e. 
 
 Certainly, this will not be disputed by 
 anyone who accepts the doctrine that the 
 individual possesses "inalienable rights," 
 whatever they may mean ; for, if such rights 
 
 116
 
 LAW AS A SOVEREIGN DECREE 
 
 are "inalienable," no collection of persons, 
 no matter how numerous, may justly take 
 them away. If it be merely a question of 
 force, even a minority, if possessing supe- 
 rior power, may impose its absolute will 
 upon the individual, and may even reduce 
 him to complete servitude. In that case, 
 those possessing the preponderance may 
 logically go to the limit of their force and 
 deprive him of everything he possesses, 
 even of life itself; but, if it be a question of 
 rightful authority, the least infraction of a 
 right is, in principle, as reprehensible as 
 entire spoliation. 
 
 We are here, of course, speaking only in 
 the name of jurisprudence, which deals ex- 
 clusively with rights and obligations; and 
 superiority of force is not at all in question. 
 All the power in the world cannot make 
 wrong right. To say that the State may 
 arbitrarily issue commandments, even at the 
 behest of the people, and enforce them, re- 
 
 117
 
 THE PEOPLE'S GOVERNMENT 
 
 gardless of individual rights, because it has 
 the power to do so, is to abandon entirely 
 the ground of juridical discussion, and pass 
 without logical warrant from the domain of 
 tight to the domain of might. 
 
 If we take our stand solidly upon the 
 ground of right, we perceive that no form 
 of absolutism is defensible. If any form of 
 it could be tolerated, it would be that which 
 was the farthest removed from personal in- 
 terest and the temptation to obtain personal 
 advantage; but there is, in fact, no form of 
 it which is free from this temptation. "A 
 king," it has been well said, "could be lib- 
 eral and impartial, and ought to be; but 
 he never is. 3 ' His omnipotence renders him 
 arbitrary. He will, of necessity, impose 
 his own views, his own force, his own 
 will, or he will virtually cease to be a 
 king. He will even think it his duty to 
 impose them. Is it not precisely for this 
 that he is a king? But his views and his 
 
 118
 
 LAW AS A SOVEREIGN DECREE 
 
 will are, after all, only those of an individual. 
 
 What, then, shall be said of absolutism in 
 a group of individuals? Who among them 
 is devoid of personal interest? Who among 
 them is fitted for absolute rule? What is 
 to be gained by this multiplex royalty, in 
 which irresponsible will is to dominate? 
 What is the guarantee that populus will be 
 wiser or more just than prince ps, if placed 
 above the law? 
 
 It may be said, each one of the indi- 
 viduals constituting the group exercising 
 power possesses "rights," and a decision in 
 which the majority is represented will, 
 therefore, be a right decision. But what of 
 the minority rights that are not represented? 
 And what is the ground of assurance that 
 they will even be considered, if they are 
 opposed to the will of the majority? But 
 are these not equally valid, and are they not 
 equally worthy of respect? What "right," 
 then, can a portion of the community 
 
 119
 
 THE PEOPLE'S GOVERNMENT 
 
 have to disregard or overrule those rights? 
 Let it be admitted, therefore, once for all, 
 that it is upon a voluntary and universal 
 respect for rights that public authority must 
 be founded. There is no other ground upon 
 which true sovereignty can be based. Un- 
 limited sovereignty has as little justification 
 in the people as in the prince. ^ The maxim, 
 "legibus solutus" has no application in the 
 sphere of jurisprudence. It is the denial 
 of its existence. Every man, every com- 
 munity, every so-called sovereign state is 
 bound to limit the range of action, and must 
 either recognize the obligation to observe 
 the principles of justice or confess to open 
 disregard of them. 
 
 THE TRUE FOUNDATION OF THE STATE 
 
 What, then, is the true foundation of the 
 State, and of its authority to regulate the 
 conduct of men? 
 
 120
 
 LAW AS A SOVEREIGN DECREE 
 
 Sovereignty, in some sense, the State 
 must possess, but it is a derived and not an 
 inherent authority; and it is subject to the 
 limitations of its source. That source is 
 the community and correlation of rights 
 possessed by the persons who compose its 
 citizenship. 
 
 This form of statement is designed to 
 mark the distinction between the interests, 
 desires, and volitions of men on the one 
 hand, and their mutual obligations on the 
 other; for "rights" are not to be identified 
 with any of the former, and are to be de- 
 fined only in terms of the latter. It may be 
 my interest, my desire, or my volition to 
 possess what is already rightfully possessed 
 by another; but it is not my right to claim 
 it. My right, whatever it may be, is only 
 another name for your, and all other men's, 
 "duties" toward me. 
 
 This, then, is what is meant by the "com- 
 munity" of rights. If only one man existed 
 
 121
 
 THE PEOPLE'S GOVERNMENT 
 
 in the world, he could, no doubt, without 
 restraint appropriate everything he found 
 useful; but he could not be said to possess 
 any "rights." The conception of rights 
 would be impossible. Rights exist only in 
 a community. The conception arises from 
 the idea of mutual obligation. 
 
 We perceive here also what is meant by 
 
 t. 
 
 the "correlation" of rights. Rights are al- 
 ways relative. There exists no unlimited 
 right, in any definable or conceivable sense; 
 for, where there is no limit to a pretension, 
 there is no means of stating what right 
 exists. An unlimited right is, therefore, in 
 effect, mentally inconceivable. Rights are 
 correlative, because the objects which they 
 concern are con-terminous. My field is 
 bounded by your field. Neither you nor I 
 can rightly possess the whole earth, so long 
 as either of us has any just claim upon it. 
 In relation to your right is set my duty to 
 respect it, and in relation to my right your 
 
 122
 
 LAW AS A SOVEREIGN DECREE 
 
 duty is equally evident. Neither the 
 "right" nor the "duty" exists by itself. 
 Both arise from a mutual obligation. 
 
 THE RELATION OF RIGHTS TO LAW 
 
 All this, it may be said, is entirely true in 
 the sphere of ethics, but it is not a clear 
 statement of the nature of "rights" as un- 
 derstood in law. 
 
 In law, only that is regarded as a "right" 
 which can be enforced by public authority. 
 In this sense, rights are not "inherent," they 
 are usually the results of a status some- 
 how acquired; frequently by some exercise 
 of force, or by concessions made in view of 
 the possible employment of force. In law, 
 men possess only such rights as they have 
 been able to make respected. 
 
 It is not to be denied that, for the prac- 
 tical lawyer and his client, there might as 
 well not exist any so-called "inherent," "in- 
 
 123
 
 THE PEOPLE'S GOVERNMENT 
 
 alienable," or "natural" rights; since these, 
 if they exist at all, can be enforced only in 
 so far as they have secured some outward 
 form of guarantee. It is customary to de- 
 scribe these "rights" as merely "subjective"; 
 and, therefore, practically non-existent. 
 
 It is precisely this distinction between 
 "inherent" and "legal" rights^ that renders 
 important a study of the authority of the 
 law-making pow r er; for, when the matter is 
 looked at historically, we see that rights have 
 generally been treated as if they were not 
 inherent but the gracious gift of govern- 
 ments. Historical jurisprudence busies it- 
 self with showing how legal rights have 
 actually been acquired, either by the grace 
 of sovereigns or the successful urgency of 
 subjects. But, since the historic State was 
 originally a mere embodiment of force, it is 
 not in the history of the State, but in the 
 history of thought about the State that we 
 must seek the evidence that there are inher- 
 
 124
 
 LAW AS A SOVEREIGN DECREE 
 
 ent rights; which, although long unrecog- 
 nized and left without guarantees, are 
 nevertheless as real as any part of human 
 experience. 
 
 If we turn from the history of the State 
 to the history of human thought, with which 
 the mere legalist may consider he has noth- 
 ing to do, we find that the growth of law 
 is nothing else than the progressive embodi- 
 ment of principles of justice inherent in 
 human reason. 
 
 Without the State, men would not be se- 
 cure in the enjoyment of any rights; for 
 life, liberty, and property would have no 
 protection, and the individual would be ex- 
 posed to violence, pillage, and slavery. The 
 State takes possession of him; and, in re- 
 turn for tribute as the price of its protection 
 and obedience to its unquestioned authority, 
 rescues him from these evils. 
 
 As it has become more intelligent, the 
 State has recognized more and more fully 
 
 125
 
 THE PEOPLE'S GOVERNMENT 
 
 the inherent rights of its subjects. At first 
 the conqueror who dictated the law slew the 
 vanquished and carried their wives and chil- 
 dren into captivity. Then came one who, 
 with greater wisdom and foresight, en- 
 camped his nomad horde upon the soil of 
 the conquered territory; and, instead of 
 murdering and robbing the inhabitants, set 
 them to work as serfs upon the land, claim- 
 ing only a portion of their products for his 
 superior vassals, who in turn paid tribute to 
 him, and waited upon him at his court, where 
 the privileges granted could, if opposed, be 
 vindicated. In time the serfs were emanci- 
 pated, the larger landowners were granted 
 the right of assembly, and thus the "com- 
 mons" came at last to participate even in 
 the making of laws, subject to the ap- 
 proval of the king and the lords. 
 
 This happened in England at a compara- 
 tively early date ; but, even in that advanced 
 political system, the "inherent" and "in- 
 
 126
 
 LAW AS A SOVEREIGN DECREE 
 
 alienable" rights of man as an individual 
 were never explicitly guaranteed. 
 
 And yet, whatever learned jurists may 
 say about it, it is certain that legislation 
 can never cease until the human conscience 
 is satisfied. There are certain fundamental 
 human rights that are so clear, so urgent, 
 and so indisputable in their outcry for se- 
 curity, that the undertone of their pleading 
 runs through all the free expressions of the 
 human mind since thought has been re- 
 corded. Our fathers of the colonial period 
 in this country felt the moral pressure of 
 this aspiration for legalized security. 
 Rightly or wrongly, as measured by other 
 systems of legislation, our system was 
 founded by men who believed in certain 
 "natural rights" as firmly as any Roman 
 Stoic ever did. Life, liberty, and property, 
 in their opinion, required guarantees that 
 they would not be exposed to the hazards 
 of any mere decree, or of any unequal law; 
 
 127
 
 THE PEOPLE'S GOVERNMENT 
 
 and any sovereign act that had that effect, 
 even though sustained by a majority of the 
 people, they intended to make, ipso facto, 
 null and void. 
 
 And what is the significance of this? It 
 signifies that, in the United States, the con- 
 ception of "inalienable rights" lies back of 
 our whole system of legislation. It signi- 
 fies that there is no power recognized under 
 our government that can legislate by decree. 
 It signifies that there are "natural rights" 
 inherent in the individual which all law- 
 makers must respect. It signifies that, 
 whatever may be true in other countries and, 
 therefore, taught as true in our country, 
 there is one country in the world where, 
 until the present at least, the individual pos- 
 sesses guarantees which no power not even 
 that of popular majorities can take away. 
 And this is not a theory or an inference; it 
 is the law. 
 
 128
 
 LAW AS A SOVEREIGN DECREE 
 
 THE SUPREMACY OF LAW 
 
 It may be said, and with perfect truth, 
 that, having been embodied in the organic 
 law of the land, the so-called "inherent" 
 and "inalienable" rights of the individual 
 have, in fact, become objective. 
 
 That which it is here important to note 
 is, that legislation can no longer be legally 
 arbitrary. It is limited to a prescribed 
 channel beyond which its flood-tide cannot 
 pass. It may flow on, and on, without ces- 
 sation, until every subjective right is ren- 
 dered objective; that is, until the law be- 
 comes the embodiment of perfect justice. 
 As intelligence becomes more keen and more 
 comprehensive, the law will become more 
 specific, and both its positive and its nega- 
 tive phases may be greatly enlarged; but, 
 so long as the conception of our system 
 remains fundamentally unaltered, there will 
 be no legitimate place for absolutism. There 
 10 129
 
 THE PEOPLE'S GOVERNMENT 
 
 will be in the whole wide field of public 
 authority no person, no party, no class, and 
 no section which can arbitrarily issue its de- 
 crees, or, as a "supreme authority," impose 
 its "commandments" upon "persons wholly 
 subordinate to it." There will continue to 
 be not only laws for the people equal and 
 just laws for all the people but law for the 
 law-makers also. 
 
 Is it possible to maintain against the 
 strong tide of absolutist theory and abso- 
 lutist interests the undiminished supremacy 
 of law? That is the gravest question which 
 can be addressed to a nation composed of 
 free and law-respecting citizens. To an- 
 swer it, we must thoroughly comprehend 
 not only what the law is not, but what in 
 its essence, as understood by us, it is and 
 should remain. 
 
 The present is a time peculiarly fitting 
 for reflection upon this subject. Old forms 
 of absolutism are visibly perishing. Shall 
 
 130
 
 LAW AS A SOVEREIGN DECREE 
 
 new forms of absolutism take their place, 
 or shall we be able to repress it altogether? 
 If we are to do so, it is necessary to reex- 
 amine not only the foundations of the State, 
 but the nature of its authority in relation 
 to the individual. There is no safety in the 
 increased power of the people, unless the 
 people are prepared to use their power in a 
 spirit of perfect justice.
 
 IV 
 
 LAW AS MUTUAL 
 OBLIGATION
 
 IV 
 
 LAW AS MUTUAL OBLIGATION 
 
 If, from the point of view of jurisprud- 
 ence, there exists in human society no un- 
 limited right of legislation, either by the 
 prince or by the people, it is necessary to 
 determine where the proper limit of legisla- 
 tive authority is to be found. 
 
 Without doubt, the State, in order to 
 realize the purpose for which it exists 
 namely, to establish order, and to afford 
 security to the rights of the individuals who 
 compose it must possess some power of 
 restraint; that is, it must be, in some sense, 
 sovereign. The legitimate source of this 
 sovereignty, in the light of what has been 
 said, is evident. It is the same as that from 
 which all individual rights are derived the 
 
 135
 
 THE PEOPLE'S GOVERNMENT 
 
 mutual obligations of the individuals who 
 compose the community. 
 
 It is essential at this point to comprehend 
 the significance of this statement. What is 
 the precise meaning of a "right?" What 
 do we have in mind when we speak of a 
 right as "inherent," and "inalienable"? 
 
 There are those who would reply that 
 these terms "inherent" and % "inalienable" 
 are, in fact, meaningless. There are in the 
 real world, they contend, only concrete 
 forces and their relations. When men have 
 obtained possession of certain material 
 things, or control certain forces, or have 
 established certain social conditions which 
 they can maintain, they may be said to have 
 certain "rights"; that is, "rights" are only 
 such relations between persons as, if ques- 
 tioned, can be maintained by force. The 
 rules of action which grow out of such en- 
 forced relations constitute the law. 
 
 This theory of "rights" is, in truth, a 
 
 136
 
 LAW AS MUTUAL OBLIGATION 
 
 denial of all essential rightf ulness ; and is 
 only another way of declaring that, in the 
 last analysis, might is right. If it were 
 correct, we might with propriety eliminate 
 the word right and its equivalents from our 
 vocabulary, and confine ourselves to the 
 categories of success and failure. There 
 would then be for jurisprudence no place 
 in the realm of thought. We should be 
 compelled to confess that force is the legiti- 
 mate ruler of the world, and that right is a 
 mere fiction of the mind. 
 
 THE INTUITION OF OBLIGATION 
 
 If the conception of "rights" as inherent 
 and inalienable were a merely personal and 
 transient phase of thought, it might be 
 necessary to accept this conclusion, and to 
 speak of so-called "inherent rights" as mere 
 individual aspirations. In view of the whole 
 history of thought, however, we cannot ad- 
 
 137
 
 THE PEOPLE'S GOVERNMENT 
 
 mit that position. Whatever the changing 
 dispositions of force may have been, the 
 idea that human personality, as such, is en- 
 titled to some consideration is as universal 
 as human consciousness. Various as may 
 be the personal estimates of what is intrin- 
 sically right or wrong in human relations, 
 there has never existed a tribe of savages so 
 
 % 
 
 low in intelligence as not to recognize the 
 existence of some rights and duties, entirely 
 apart from every form of physical compul- 
 sion. Not only so, but if there be any 
 standard by which degrees of superiority in 
 human intelligence can be determined, it is 
 to be found precisely in the development of 
 the faculty which distinguishes between 
 what "ought" and what "ought not" to be 
 done, or to be endured. 
 
 It is, then, from this intuition of mutual 
 obligation that, under the guidance of rea- 
 son, all human authority is to be derived; 
 per contra, it cannot possibly exceed 
 
 138
 
 LAW AS MUTUAL OBLIGATION 
 
 the limits of the source from which it 
 springs. 
 
 It is true, that such an intuition, giving 
 rise to the idea of "rights" on the one hand 
 and of "duties" on the other the essential 
 correlates of the idea of obligation is 
 merely a form of intelligence, without con- 
 crete content, until it is applied to the 
 materials of experience. It is analogous to 
 the mathematical intuitions which furnish 
 the regulative norms of all exact science. 
 
 What is here most important to consider 
 is, that in such an intuition there is no ele- 
 ment of will, or interest, or sensibility. 
 There is in it no element of personal deter- 
 mination. Its whole purport is, that some- 
 thing is seen to be true,, namely, that in any 
 organized community of men there must be 
 mutuality of obligation. Each has his 
 sphere of private interests which all others 
 are in justice bound to respect. If they 
 do respect them, that is right ; if they do not 
 
 139
 
 THE PEOPLE'S GOVERNMENT 
 
 respect them, that is wrong. Thus far 
 speaks the intuition; but the specific appli- 
 cation of it depends upon a process of rea- 
 soning. Reason furnishes us with self-evi- 
 dent principles, but it is necessary for us 
 concretely to apply them. We do not 
 create them, and we cannot alter them. We 
 simply see that they are true and fit for 
 
 %. 
 
 guidance. 
 
 THE APPLICATION TO EXPERIENCE 
 
 It was just stated that each person has 
 a sphere of private interests which all others 
 ought to respect. Here, then, are the con- 
 crete contents of experience to which the 
 form of intelligence must be applied. This 
 realm of interests, desires, and volitions is, 
 of course, strictly personal; for it relates to 
 the realm of material things, where the ques- 
 tion of personal claims and the definite 
 limitation of rights are to be decided. 
 What, then, are the rules of action that are 
 
 140
 
 LAW AS MUTUAL OBLIGATION 
 
 to be applied in this sphere of conflicting 
 wills, where opposing forces, animated by 
 contrary purposes, are engaged in partition- 
 ing the desiderata of existence? 
 
 It is at this point that mutual obligation 
 assumes the form of particular laws; and 
 the law, from this point of view, consists in 
 the specific formulas in which mutual obli- 
 gation is expressed. It is here that inher- 
 ent or subjective rights are transformed into 
 objective rights. 
 
 Before we proceed to examine the process 
 of law-making more closely, it may be use- 
 ful to consider briefly the contents of the 
 sphere of personal interests, desires, and 
 volitions. They are, in fact, as varied as 
 the circumstances of human experience; for 
 they include the whole volume of it. Life, 
 liberty, property all that men possess or 
 aspire to possess, all that they may do or be 
 precluded from doing fall within its scope; 
 and yet there is one capital exception; the 
 
 141
 
 THE PEOPLE'S GOVERNMENT 
 
 law cannot reach the inner shrine of per- 
 sonal consciousness, cannot compel and can- 
 not hinder the silent operation of the mind, 
 the free play of the affections, and the in- 
 tuitions of the moral sense. It can only 
 deal with things external, with forms of ex- 
 pression and modes of action. Its domain 
 is exclusively the outward relations of men. 
 When it would go farther, it discovers that 
 there is in the world something other than 
 force, something which force cannot reach 
 and cannot alter. When it has done its ut- 
 most, the law reaches limits which it cannot 
 pass. There is something always reserved 
 to the human soul, which, within its own 
 sphere, is answerable only to its Creator. 
 
 THE RIGHT TO LIFE 
 
 There remains, however, an extended 
 realm in which the law is operative. It in- 
 cludes all that is outward and tangible; and 
 142
 
 LAW AS MUTUAL OBLIGATION 
 
 thus, at least so far as the body is concerned, 
 may affect our very existence. The law, 
 even when based on mutual obligation, may 
 go so far as to deny a man's right to exist. 
 If he will not respect the lives of others, he 
 may be condemned to death. 
 
 It is here, perhaps, that we may most 
 conveniently explain the meaning of a 
 right as "natural" and "inherent." It 
 cannot be contended, even by the most 
 strenuous opponent of the idea of so- 
 called "natural" rights, that the right to 
 live is acquired through the enactment of 
 some positive law by which this privilege is 
 accorded. If it be not inherent, if it be not 
 natural, then it is no right at all. It is true 
 that a natural right may be forfeited; be- 
 cause, resting upon mutual obligation as 
 its ground principle, where that is repudi- 
 ated the right can no longer be said to exist. 
 It is evident, however, that such a right can- 
 not be forfeited except by the person him- 
 
 143
 
 THE PEOPLE'S GOVERNMENT 
 
 self. Not having been accorded by the 
 community, the community cannot arbitrar- 
 ily take it away; for, arising from the prin- 
 ciple of mutual obligation, the right of the 
 individual is as incontestable as the right 
 of existence on the part of the community 
 itself. 
 
 Such a right, it may be replied, is, after 
 all, only metaphysical; and this is true. 
 Physically, no man's life is secure, unless he 
 possesses guarantees that it will be pro- 
 tected. It is precisely to supply these 
 guarantees that the State exists; and it, 
 therefore, becomes the duty of the State to 
 afford this protection. But what shall be 
 said of a State that does not assume this 
 duty, or does not even recognize this right? 
 And what shall be said of a form of sover- 
 eignty so absolute that it possesses the au- 
 thority to take or to sacrifice life where it 
 pleases, and for whatever reason may suit 
 its convenience? 
 
 144
 
 LAW AS MUTUAL OBLIGATION 
 
 What shall be said of the right of a gov- 
 ernment, first, to declare war for the pur- 
 pose of conquest; and, second, by conscrip- 
 tion to force men to leave their business 
 and their families, to take up arms, and to 
 fight in an aggressive war for the purpose 
 of increasing the resources of the State? 
 
 Undoubtedly, from the point of view of 
 absolute sovereignty, a government may do 
 these things, and may pass laws for this pur- 
 pose ; but the moment we stop to reflect upon 
 it, is it not apparent that such a right can 
 never be deduced from the principle of mu- 
 tual obligation? 
 
 For a defensive war, however, or for a 
 war rendered necessary to secure the evident 
 rights of the State which cannot be secured 
 in any other way, the decision would be dif- 
 ferent. In that case, does it not become 
 the plain duty of every able-bodied citizen 
 to aid in the defense of his country, or in 
 the protection of the indisputable rights of 
 
 11 145
 
 THE PEOPLE'S GOVERNMENT 
 
 his country, if it is necessary, even though 
 this may involve the sacrifice of his life? 
 
 And here we are able to see the profound 
 difference between the conception of the 
 State which is based upon the idea of sov- 
 ereignty as absolute, and that which is 
 based upon the idea of sovereignty as the 
 expression of inherent rights and mutual 
 obligation. In the one case we have a 
 conception that accords to a government 
 the right of war for any purpose, in the 
 other a conception that limits the right of 
 war to the defense of rights that cannot 
 otherwise be vindicated. 
 
 THE RIGHT TO LIBERTY 
 
 Much that has been said of life may also 
 be said of liberty. But here we enter di- 
 rectly upon the concrete contents of experi- 
 ence, and the question at once arises: How 
 much liberty shall the individual be granted? 
 
 146
 
 LAW AS MUTUAL OBLIGATION 
 
 There is a certain sphere within which free 
 activity must be permitted; but it cannot 
 be unlimited; for, if it were, it would inev- 
 itably encroach upon the liberty of others, 
 and thus by setting no bounds to liberty, it 
 would virtually cease to exist. 
 
 At this point an important distinction be- 
 comes apparent. The right to live is in- 
 herent and natural, but it is distinctly meta- 
 physical. When it emerges into the world 
 of reality, when it confronts the actual con- 
 tents of experience, the right to live turns 
 out to be a poor prerogative, unless it is 
 supplemented with another right, the right 
 to earn a living. This right also is natural 
 and inherent, but it is not a merely meta- 
 physical right. It requires outward liberty. 
 It demands a sphere of free activity, in 
 which the energies of the individual may be 
 put forth in the form of industry and enter- 
 prise, for the purpose of acquiring the means 
 of subsistence. Here, again, the State be- 
 
 147
 
 THE PEOPLE'S GOVERNMENT 
 
 comes necessary. Other individuals may 
 concede to a person the right to live, but 
 deny or obstruct his freedom in employing 
 his faculties for the purpose of obtaining a 
 living. At this point, the law must speak. 
 Its source is evident and its authority is un- 
 questionable. It is mutual obligation. No 
 man and no group of men cap rightly pre- 
 vent the free activity of a member of the 
 community in prosecuting his chosen indus- 
 try or enterprise, so long as it does not 
 interfere with the equal liberty of all others 
 to do the same. 
 
 And what is true of industrial freedom is 
 equally true of the liberty of expression, of 
 instruction, of assembly, and of association. 
 All the energies of men, and all the personal 
 preferences of men, within the community, 
 have an equal right to freedom, so long as 
 they do not interfere with corresponding 
 prerogatives on the part of others. But in 
 this field of activity absolutism is peculiarly 
 
 148
 
 LAW AS MUTUAL OBLIGATION 
 
 tempted to assert itself. Class interests 
 sometimes assume an attitude of arrogance, 
 and endeavor to employ their preponderance 
 of force to assert their supremacy by the 
 dictation of special laws. It is needful, 
 therefore, that personal liberty should re- 
 ceive sufficient guarantees; for it is by re- 
 pression, as well as by compulsion, that 
 natural rights are rendered nugatory. 
 
 THE RIGHT TO PROPERTY 
 
 It is when we arrive at the consideration 
 of the results of industry and enterprise 
 that we reach that form of the contents of 
 experience which has been in the past, and 
 promises to be in the future, one of the chief 
 battlefields of legislation. To the man who 
 finds himself in a condition of want, prop- 
 erty may appear to be, as Proudhon said, 
 a "crime." To the one who, by toil, thrift, 
 sacrifice, and abstinence has acquired a com- 
 
 149
 
 THE PEOPLE'S GOVERNMENT 
 
 petence, it seems, on the contrary, to be a 
 symbol of virtue. 
 
 It cannot, perhaps, be maintained that 
 property is, in itself, a natural or inherent 
 right; since it lies wholly outside of person- 
 ality, and is something that has to be ac- 
 quired. It may be regarded as, in some 
 sense, a personal appropriation of a part of 
 what from one point of view may be con- 
 sidered as common stock. A more intelli- 
 gent way to put the question is, therefore, 
 this: Is there any inherent or natural right 
 to acquire and enjoy property? 
 
 Thus formulated, the question is equiva- 
 lent to the inquiry: Is there a natural or 
 inherent right to possess and enjoy the 
 fruits of one's industry or enterprise? 
 
 Here, as in every other instance where 
 the true nature of the law is in question, it 
 is necessary to revert to the source of all 
 rights, and hence of all public authority, 
 namely, mutual obligation. Is it conceivable 
 
 150
 
 LAW AS MUTUAL OBLIGATION 
 
 that the industrious and the idle, the thrifty 
 and the wasteful, the provident and the im- 
 provident should possess and enjoy the same 
 desiderata of life? 
 
 The problem of the right of property is 
 greatly simplified by treating the subject 
 genetically rather than from a purely mathe- 
 matical point of view. It is, when properly 
 analyzed, seen to be only one particular 
 aspect of the right to personal liberty. Shall 
 the individual be permitted to produce by 
 his industry and his enterprise such value as 
 he can, without interfering with the equal 
 right of others, and be allowed to enjoy the 
 benefit of his endeavors? Or shall he be 
 compelled to limit his powers of production 
 on the one hand, or surrender a portion of 
 the results on the other? 
 
 There is in the principle of mutual obli- 
 gation nothing that justifies either the sup- 
 pression of productive powers or the en- 
 forced surrender of the results of their ex- 
 
 151
 
 THE PEOPLE'S GOVERNMENT 
 
 ercise. The former would lead to compul- 
 sory poverty, and the latter to a condition 
 of serfdom in which capacity would become 
 the slave of incapacity. It is, therefore, 
 impossible to organize human society upon 
 any just principle without admitting the 
 right of property as a consequence of the 
 innocent exercise of individual powers of 
 creating wealth. 
 
 THE PROBLEM OF PARTITION 
 
 But, even considering the right of prop- 
 erty as merely a particular aspect of per- 
 sonal liberty, it must not be overlooked that 
 most property is the result of joint effort. 
 There arises, therefore, the problem of par- 
 tition. As an aspect of liberty the right of 
 property, when the result of joint effort, 
 involves a limitation. There remains the 
 question: How much to each producer? 
 
 This, however, does not seem to be a prob- 
 
 152
 
 LAW AS MUTUAL OBLIGATION 
 
 lem for solution by the authority of the 
 State, unless the State may claim the right 
 to divide the whole proceeds of industry and 
 enterprise, for which it could show no war- 
 rant. Even if it were itself a participant, 
 it could only claim its own share ; and in this 
 the inactive constituents of the State would 
 have no part. The proportions of effort 
 being of necessity variable, no law on this 
 subject could be devised on the basis of 
 mutual obligation. The units of efficiency 
 contributed not being equal, it would be un- 
 reasonable to divide equally the rewards of 
 production. These units not only have dif- 
 ferent values at different times, but they are 
 essentially disparate in their nature and in 
 their cost of maintenance. 
 
 It would appear, therefore, that the only 
 manner in which mutual obligation can be 
 recognized in the process of wealth produc- 
 tion is by permitting the partners in this 
 process freely to estimate the value of their 
 
 153
 
 THE PEOPLE'S GOVERNMENT 
 
 respective contributions by making specific 
 contracts in each particular case. 
 
 THE INJUSTICE OF MONOPOLY 
 
 The just limit of the law in solving the 
 problem of partitioning the results of joint- 
 production would, therefore, seem to be the 
 public guarantee of entire freedom in mak- 
 ing private contractual engagements, so 
 long as these do not infringe upon the lib- 
 erty of others. There is, however, a prac- 
 tical difficulty in preventing this infringe- 
 ment; for it is possible, through association, 
 for some of the participants in production to 
 impose their will upon the others, thus in- 
 terfering with real liberty of contract by 
 taking advantage of their necessities. The 
 case is illustrated when capitalists combine 
 to obtain possession of the tools and mate- 
 rials of production to such an extent that 
 they can arbitrarily impose the conditions 
 
 154
 
 LAW AS MUTUAL OBLIGATION 
 
 of the enterprise by controlling either the 
 means of production or the price of the prod- 
 uct to their private advantage. It is equally 
 well illustrated when labor is so centrally 
 controlled as to confine participation in the 
 process of production to those persons only 
 who are associated for this purpose, to the 
 exclusion of others who, if permitted to act 
 freely, would find employment, or would 
 accept it upon less exacting terms. In both 
 cases we have examples of monopoly in the 
 proper sense of the term. 
 
 There is, no doubt, a difference between 
 associated capital and associated labor in 
 respect to the facilities for the creation of a 
 monopoly; since capital can more readily 
 endure a period of negotiation or a total 
 cessation of operation. The isolated la- 
 borer may not be able to subsist for a long 
 time, unless he can find employment ; and he 
 must, therefore, find it at some price without 
 too long delay, while the capitalist is able to 
 
 155
 
 THE PEOPLE'S GOVERNMENT 
 
 wait. On the other hand, the capitalist can- 
 not thrive without the active employment of 
 his instruments of production and the use 
 of his raw material. He must, if he would 
 continue his operations, come to terms with 
 the laborer. The practical question is, there- 
 fore, at what point can the agreement be 
 made? If either partner in the process of 
 production can arbitrarily dictate to the 
 other, the result is a monopoly ; and monop- 
 oly is the ruin of enterprise. 
 
 Whatever the laws relating to this sub- 
 ject may be, one thing is clear: they must 
 recognize mutual obligation as their only 
 basis, or they will eventually prove nuga- 
 tory. No process of joint-production can 
 long be continued unless the participants 
 derive from it advantages satisfactory to 
 themselves. If too poorly paid, laborers 
 will either quit the employment or become 
 practically useless in it. If subject to ex- 
 actions and incertitude by the excessive de- 
 
 156
 
 LAW AS MUTUAL OBLIGATION 
 
 mands of their employees, men of affairs 
 will not undertake the organization of great 
 enterprises. The result of despotic methods 
 on either side, no matter who is the imme- 
 diate victor, will inevitably react unfavor- 
 ably upon the other. The only path to 
 prosperity lies in cooperation on the part of 
 all the participants in obtaining the most 
 favorable conditions for the enterprise, in 
 which they have a common interest; and in 
 a fair division of the results of their joint 
 endeavors. The exercise of arbitrary power 
 on either side, whether in the form of op- 
 pression or of violence, or in an attempt to 
 enact ex parte laws, only retards the day of 
 prosperity. The recognition of mutual ob- 
 ligation without the law, or the realization 
 of mutual obligation through the law are 
 the only roads to industrial welfare and eco- 
 nomic peace. 
 
 157
 
 THE PEOPLE'S GOVERNMENT 
 THE RELATION OF MONOPOLY TO LAW 
 
 There may be not only monopolies of 
 power in the control of the elements of pro- 
 duction, but monopolies resulting from the 
 overgrowth of forms of business in which 
 the participants have become wholly recon- 
 ciled to one another. Here the antagonism 
 is not between the joint-producers, but be- 
 tween private interests and the public 
 between the producer and the consumer. 
 
 This is, perhaps, the most offensive form 
 of monopoly and the most difficult to exter- 
 minate, because it possesses perfect solidar- 
 ity within itself. All the participants are 
 satisfied. It is the consumer who is robbed. 
 
 If mutual obligation be the true basis of 
 the law, such monopolies cannot be tolerated. 
 It might easily happen that, if these ten- 
 dencies were left unchecked, most of the 
 great interests of life would eventually be- 
 come the domain of such powerful combina- 
 
 158
 
 LAW AS MUTUAL OBLIGATION 
 
 tions. A union between them would create 
 in society a force more powerful than the 
 State; a force that would soon control the 
 State ; and, in time, a condition of feudalism 
 would exist before which the individual 
 would be as powerless as a serf of the Mid- 
 dle Ages against the lord who dwelt in the 
 castle at whose foot he toiled until his master 
 needed him to fight his enemies. 
 
 While such a danger is not to be dis- 
 missed without consideration, it would be a 
 gross injustice to assume that every great 
 and successful enterprise has that character. 
 It is easy to exaggerate the unknown; and 
 where the imagination is the chief factor, it 
 usually far exceeds the limits of reality. In 
 making drastic laws against enterprises that 
 are large, on the assumption that their mag- 
 nitude alone is their condemnation, there is 
 danger of so intimidating enterprise as to 
 paralyze its efficiency. Nothing could be 
 more futile than to attempt to quicken the 
 
 159
 
 THE PEOPLE'S GOVERNMENT 
 
 activity of the unenterprising by an assault 
 upon enterprise. Men will not be made suc- 
 cessful by the destruction of those who have 
 achieved success. 
 
 If the law cannot proceed upon the as- 
 sumption that success is a vice and failure 
 a virtue, it cannot assume that class inter- 
 ests or economic differences should be made 
 
 i 
 
 the basis of special legal rights. Such an 
 assumption would be an admission that so- 
 ciety is merely a balance of powers and not 
 a moral organism. It would abolish the 
 principle of mutual obligation as the basis 
 of the law and substitute in its place the 
 principle of conflict. 
 
 In some of the relations in the economic 
 world, it may, perhaps, appear plausible to 
 insist that the balance between classes needs 
 to be adjusted by legal counterpoise. It is 
 sometimes said that, men being unequal, 
 equal laws are of no benefit to them. What 
 they need is unequal laws ; or, in other terms, 
 
 160
 
 LAW AS MUTUAL OBLIGATION 
 
 laws of equalization. The rich should sup- 
 port the poor; the strong should bear the 
 burdens of the weak; the successful should 
 render impossible the failures of the unsuc- 
 cessful. 
 
 This doctrine may serve very well as an 
 exhortation to voluntary private charity, 
 and may well be remembered by all who are 
 in a position to alleviate the lot of those who 
 have been less fortunate; but to erect this 
 counsel of perfection into a legal enactment, 
 and to impose a penalty for not dividing 
 one's earnings with the idle, the improvident, 
 and the profligate, is a perversion of the 
 principle of mutual obligation, which calls 
 for equal laws but does not demand laws of 
 equalization. Such compulsory partition of 
 wealth would not have the merit of personal 
 charity, and the motive that lies back of the 
 proposal does not bear evidence of personal 
 sacrifice on the part of those who com- 
 mend it. 
 
 12 161
 
 THE PEOPLE'S GOVERNMENT 
 
 THE ALLEGED COMMUNITY OF PROPERTY 
 
 There is, no doubt, a whole scheme of 
 social philosophy underlying the current 
 demand for laws of equalization. Its start- 
 ing-point is a new theory regarding the 
 nature of wealth. The idea that the individ- 
 ual creates wealth and may rjghtly possess 
 it, it is asserted, is an outworn eighteenth 
 century illusion that should be dismissed to 
 the limbo of inalienable individual rights. 
 It was, indeed, entertained by the founders 
 of the American Republic, and has been a 
 persistent American doctrine; but it is no 
 longer worthy of consideration. Wealth, 
 according to the new theory, is a social prod- 
 uct; and, therefore, a rightful social posses- 
 sion. The property of a nation belongs to 
 the people as a whole. It is for them to 
 express their will as to how it shall be divided. 
 
 Plausible as the doctrine may seem, it is 
 founded upon a perversion of obvious facts. 
 
 162
 
 LAW AS MUTUAL OBLIGATION 
 
 Society as a whole never yet initiated, 
 conducted, or brought to a successful 
 achievement any industrial process or any 
 wealth-producing activity. It is always an 
 individual, or a group of individuals, that 
 does these things. It is, therefore, a wholly 
 unwarranted assumption to affirm that the 
 totality of wealth rightfully belongs to so- 
 ciety as a whole. It belongs to those who 
 by their industry, their enterprise, and their 
 skill have produced it, or who by their absti- 
 nence from consuming it have kept it in 
 existence. The only exceptions to this are 
 the natural resources of the national domain, 
 which will in future be turned into wealth, 
 in which the nation, as such, has an eminent 
 right of property. 
 
 The theory that the totality of wealth 
 belongs to the totality of the people has a 
 very simple historical origin. Private prop- 
 erty, in this conception of it, is based only on 
 public permission. All rights and all public 
 
 163
 
 THE PEOPLE'S GOVERNMENT 
 
 powers inhere in the ruler. When the ruler 
 was a prince, the formula was, "The will of 
 the prince is law." Now that the people 
 have become the rulers, the formula has be- 
 come, "The will of the people is law." In 
 both cases, so long as authority remains 
 merely the "good pleasure" of the ultimate 
 power in the State, the doctrine upon which 
 
 4 
 
 it rests is simply the old dogma of absolute 
 sovereignty in a new guise. 
 
 THE NECESSITY OF A FUNDAMENTAL LAW 
 
 Democracy, if it be true to itself, will not 
 base its claims upon such a weak foundation. 
 Its true basic principle is the mutuality of 
 obligation. There should be no absolute 
 power in the State as respects life, liberty, 
 and property. Whatever sovereignty the 
 State may rightly claim to possess is based 
 upon the inherent rights of individuals ; and 
 it cannot, therefore, be logically extended to 
 
 164
 
 LAW AS MUTUAL OBLIGATION 
 
 such a point as to permit the violation of 
 those rights by any power whatever. 
 
 Accordingly, the law must recognize its 
 own limitations. This it does by the formu- 
 lation of a fundamental law, which has for 
 its object not only the creation and coordi- 
 nation of the powers of government, but the 
 guarantee of the inherent rights upon which 
 a rightly constituted State must be founded. 
 Whatever functions it may incidentally as- 
 sume for the welfare of the community, the 
 basic principle of the State is the protection 
 of the rights of its citizens. We say its 
 "citizens," for the State, as here conceived, 
 does not deal with "subjects," unless the 
 word is used in such a sense as to deprive it 
 of its original meaning. 
 
 Of paramount interest to the citizen, 
 therefore, is the fundamental law; for in it 
 is found the sole guarantee of those indi- 
 vidual rights which the citizen must con- 
 serve. Such a law is not an infringement of 
 
 165
 
 THE PEOPLE'S GOVERNMENT 
 
 liberty ; it is, on the contrary, the only means 
 of organizing liberty. Its purpose is to se- 
 cure to the citizen immunity from the des- 
 potism of the law-maker, whoever the law- 
 maker may be, and from those interests and 
 designs which inspire despotic laws. It con- 
 sists in a division and limitation of public 
 powers, with such a balance gf legislative, 
 judicial, and executive functions that it is 
 impossible for any one of them to encroach 
 upon the inherent rights of the citizen. A 
 fundamental law is, in effect, a reservation, 
 and at the same time a renunciation, on the 
 part of the citizens who constitute the State. 
 As a reservation, it forbids the invasion of 
 the personal rights of the individual by any 
 or all of the public powers ; and, as a renun- 
 ciation, it is a voluntary ordinance of self- 
 denial, on the part of the citizen, by which 
 he pledges himself not to invade, or permit 
 others to invade, the domain of individual 
 rights. It is, in brief, a compact made by 
 
 166
 
 LAW AS MUTUAL OBLIGATION 
 
 the people, in which they surrender their 
 private wills to the rule of law. 
 
 THE NATURE OF A FUNDAMENTAL LAW 
 
 Such a compact, serving as an organic 
 law, does not extend to the various details 
 concerning which public opinion may vary. 
 It draws a sharp line of distinction between 
 two different fields of legislation. In the 
 first are included those matters upon which 
 all good citizens can agree without debate, 
 such as the inherent sanctity of life ; the free 
 play of the individual faculties, so long as 
 their action is not injurious to others; and 
 the possession and enjoyment of the results 
 of industry, enterprise, economy, and fore- 
 sight. Within this field the law should be 
 definitive. The disturbance of these rights 
 should be prohibited. Their perpetuity 
 should be guaranteed. This should be the 
 law for the legislator. It should also be the 
 
 167
 
 THE PEOPLE'S GOVERNMENT 
 
 law for the judge and for the executive. 
 Their first duty is to protect these rights and 
 to defend these guarantees. In the second 
 field there must be freedom of legislation. 
 Here public opinion, in all its mutability, 
 may justly rule. Here the "will of the peo- 
 ple" may assert itself and have free play, 
 restrained only by the fundamental law. 
 
 Regarded broadly, it may be said, that 
 the first field serves as an intrenchment of 
 rights intended to be kept inviolable, while 
 the second is the field of experiment in social 
 expediency. 
 
 It is evident that there is an impassable 
 line of demarcation between these two do- 
 mains. It would be ridiculous to surcharge 
 the fundamental law with all kinds of de- 
 tailed provisions of a nature to be frequently 
 reconsidered and modified with every social 
 transformation. On the other hand, to 
 break down the barriers of the fundamental 
 law and sweep away all its guarantees would 
 
 168
 
 LAW AS MUTUAL OBLIGATION 
 
 open the road to many kinds of absolutism. 
 In every class conflict the whole structure 
 of government would then be subject to 
 change, and it is quite impossible to foresee 
 what the result of the change might be. 
 That would depend upon who chanced to 
 be the victor in the struggle. If all legis- 
 lation were left to the prevailing passions 
 of the moment, "Votre Majorite" would 
 soon, no doubt, become "Votre Majeste" 
 The door to demagogism and to revolution 
 would be thrown wide open. 
 
 THE CONSTITUTION AS A GUARANTEE 
 OF RIGHTS 
 
 It is one of the fortunate circumstances 
 in the historical development of our coun- 
 try, that in framing our Federal Constitu- 
 tion this danger was foreseen. Not only 
 were guarantees that mutual obligation 
 should be respected written into that docu- 
 ment, but it was made legally impossible to 
 
 169
 
 THE PEOPLE'S GOVERNMENT 
 
 break down the distinction between laws 
 permitted and laws prohibited. The Con- 
 stitution is, and was designed to be, as no 
 other constitutions ever have been, a law for 
 legislators. It is not only a frame of gov- 
 ernment, it is a Bill of Rights ; and it is not 
 only a bill of inviolable rights, it is a Bill 
 of Rights placed under the protection of 
 the judiciary. Individual rights "natu- 
 ral" rights, if one chooses to call them so 
 are not only recognized in the Constitution; 
 the Constitution is their organized defense. 
 In this, as has been already intimated, 
 the Constitution of the United States and 
 some of the State constitutions stand alone. 
 They have been much imitated, but their 
 unique, distinctive, and original feature has 
 not been adopted in other countries. The 
 reason is not far to seek: the founders of 
 our constitutional system were the first, and 
 they have thus far been the only people who 
 were determined to put an end to absolu- 
 
 170
 
 LAW AS MUTUAL OBLIGATION 
 
 tism in every form, voluntarily limiting their 
 own sovereignty, in the sense of placing 
 themselves and all their organs of govern- 
 ment under the dominion of law. In doing 
 this, thirteen independent communities re- 
 nounced for all time their own arbitrary will, 
 in order to produce an accord based upon 
 principles of justice. Not only so, but they 
 granted the same privilege to other com- 
 munities formed upon territories which, ac- 
 cording to the legal conception of the time, 
 they might have ruled forever as arbitrarily 
 as any absolute sovereign ever ruled a con- 
 quered colony. 
 
 THE OPPOSITION TO FUNDAMENTAL LAW 
 
 It cannot with historical truth be said 
 that this movement was unopposed, or that 
 it was an act of pure and disinterested gen- 
 erosity. Nor, on the other hand, can it be 
 said that the motives which actuated it were 
 
 171
 
 THE PEOPLE'S GOVERNMENT 
 
 merely private and wholly selfish. Not as 
 much, however, can be said in favor of those 
 who in the critical moment of decision op- 
 posed this compact. There was, in truth, 
 at the time when the Federal Constitution 
 was adopted, a large amount of indifference, 
 arising from unreflecting satisfaction with 
 a condition of independence already gained 
 and from a failure to grasp intelligently the 
 momentous significance of the agreement. 
 This, however, is a negligible quantity, for 
 the reason that it represented no quality of 
 real public opinion. There always have 
 been, and it is possible that there may al- 
 ways be, persons who pay little attention to 
 the legal security of their personal rights, 
 so long as they consider that they are not 
 definitely challenged. All the more credit, 
 therefore, to those who apprehend a danger, 
 and upon a timely occasion endeavor to 
 avert it. 
 
 But the fundamental law was, it must be 
 172
 
 LAW AS MUTUAL OBLIGATION 
 
 conceded, actively opposed, not indeed by a 
 majority, or by any considerable body of 
 opponents. It is interesting, therefore, to 
 inquire what their principles and motives 
 were. 
 
 There was, in our early history as a coun- 
 try, and in our public life there has since 
 frequently appeared, a group of persons 
 who, as debtors, repudiators, and advocates 
 of fiat money, were unfavorable to the rights 
 of property and to the principle of mutual 
 obligation as a basis of law. It is not sur- 
 prising, therefore, that these persons, actu- 
 ated by their personal interests, or by the 
 hope of constituting themselves leaders by 
 appealing to such interests, should have op- 
 posed the guarantees of inherent rights in 
 the organic law; and it is to be expected 
 that this opposition will not end, so long as 
 the motives for sustaining it endure. 
 
 This was clearly seen, and the danger it 
 occasions was admirably stated by James 
 
 173
 
 THE PEOPLE'S GOVERNMENT 
 
 Madison, when engaged in defending the 
 Constitution and urging its adoption. "The 
 diversity in the faculties of men, from which 
 the rights of property originate," he says, 
 "is an insuperable obstacle to a uniformity 
 of interests. The protection of these facul- 
 ties is the first object of government. From 
 the protection of unequal faculties of ac- 
 quiring property, the possession of different 
 degrees and kinds of property results; and 
 from the influence of these on the sentiments 
 and views of the respective proprietors, en- 
 sues a division of society into different in- 
 terests and parties. . . . The regulation of 
 these various and interfering interests forms 
 the principal task of modern legislation, and 
 involves the spirit of party and faction in 
 the necessary and ordinary operations of 
 the government." 
 
 There are, then, interests to be defended, 
 because there are interests likely to be at- 
 tacked, If these interests are grounded in 
 
 1 74
 
 LAW AS MUTUAL OBLIGATION 
 
 inherent rights, the principle of mutual 
 obligation fully justifies this defense; but 
 at the same time it condemns the disposition 
 to attack them. It is evident, therefore, 
 that a constitution that defends them from 
 depredation is a necessary safeguard of lib- 
 erty, by establishing equality before the law. 
 It is not the origin of private rights, which 
 exist before it. It merely declares and 
 guarantees them. Its voice is not for one 
 class or another. It knows nothing of dif- 
 ferent interests, and does not stand for 
 them. It merely says that no preponderant 
 power in the State shall destroy the rights 
 upon which the conception of the State is 
 founded and which it exists to protect. It 
 is the friend and the defender of every 
 honest man. 
 
 Will it be said that, in a free democracy, 
 no rights will be in danger, and that the 
 majority will always respect them? Then 
 why not make it the law that they must be 
 
 175
 
 THE PEOPLE'S GOVERNMENT 
 
 respected? And if it be the intention to 
 respect them, why should anyone object to 
 such a fundamental guarantee? 
 
 Is it true that majorities, and the law- 
 making bodies which represent majorities, 
 are always just? Have legislative bodies, 
 even in republics, always set their faces 
 sternly against plunder, extortion, and re- 
 pudiation? "Wherever the real power of 
 government lies," Madison declared, "there 
 is danger of oppression." There is always 
 reason to fear irresponsible power, simply 
 because it is power. The design of consti- 
 tutional government is so to restrain power 
 that it shall be always under the dominion 
 of the law. 
 
 "In our government," as Madison points 
 out, "the real power lies in the majority of 
 the community, and the invasion of private 
 rights is chiefly to be apprehended not from 
 acts of government contrary to the sense 
 of the constituents, but from acts in which 
 
 176
 
 LAW AS MUTUAL OBLIGATION 
 
 the government is the mere instrument of 
 the major number of constituents. . . . 
 Where there is an interest and a power to 
 do wrong, wrong will generally be done, and 
 not the less readily by a powerful and in- 
 terested party than by a powerful and inter- 
 ested prince." 
 
 What, then, should be the attitude of the 
 citizen? That is the all-absorbing question, 
 for it is upon him that rests the grave re- 
 sponsibility of deciding whether or not con- 
 stitutional government shall survive. 
 
 13
 
 THE CITIZEN AS A LAW-MAKER
 
 THE CITIZEN AS A LAW-MAKER 
 
 If the United States has ever possessed 
 a great citizen, it was Abraham Lincoln; 
 and if ever a citizen felt the restraints of 
 the Federal Constitution, it was he. Be- 
 lieving slavery to be a heinous crime, he 
 perceived its supporters taking refuge be- 
 hind the provisions of the Constitution, not 
 only for the maintenance of that institution 
 in the States where it had originally ex- 
 isted, but for its extension into the free 
 territories of the West. 
 
 The Dred Scott decision, by which in 1857 
 the Supreme Court of the United States 
 appeared to have established forever the 
 right of a slaveholder to reclaim possession 
 of a liberated slave wherever the laws of 
 
 181
 
 THE PEOPLE'S GOVERNMENT 
 
 the United States extended, was based upon 
 the following interpretation of the Consti- 
 tution : 
 
 If the Constitution recognizes the 
 right of property of the master in a 
 slave, and makes no distinction between 
 that description of property and any 
 other property owned by a citizen, no 
 tribunal, acting under the authority of 
 the United States, whether it be legis- 
 lative, executive, or judicial, has a right 
 to draw such a distinction, or deny to 
 it the benefit of the provisions and 
 guarantees which have been provided 
 for the protection of private property 
 against the encroachments of the gov- 
 ernment. 
 
 Since the existence of slavery as a fact 
 was recognized in the Constitution, the 
 Court drew the inference that the act of 
 Congress known as the "Missouri Compro- 
 mise" was not constitutional, and was, there- 
 fore, null and void; and that the former 
 
 182
 
 THE CITIZEN AS A LAW-MAKER 
 
 slave, Dred Scott, was not made free by his 
 presence in territory where Congress had 
 prohibited slavery, and would not be even 
 though taken there by his owner with the 
 intention of permanent residence. 
 
 This denial of the right of Congress to 
 exempt any portion of the territories of the 
 United States where slavery did not exist 
 from the recognition of property in human 
 life, was to Lincoln intolerable. Against 
 it his reason and his conscience were in re- 
 volt. So strongly was he moved by what 
 he esteemed a monstrous injustice, that he 
 might easily have felt constrained to con- 
 demn the Constitution as responsible for the 
 wrong; but this seems never to have oc- 
 curred to him. The decision itself he de- 
 nounced on what he believed to be legal as 
 well as moral grounds, but he proposed no 
 amendment of the Constitution. With calm 
 and unshaken faith in the essential sound- 
 ness of the fundamental law, he awaited the 
 
 183
 
 THE PEOPLE'S GOVERNMENT 
 
 day when the right would triumph, not 
 through a modification of the Constitution 
 which was not responsible for the exist- 
 ence of slavery or by disputing the inde- 
 pendence of the judiciary which is the 
 keystone of the entire constitutional system 
 but by the force of public opinion upon a 
 great moral question which would, he be- 
 lieved, in the end result in a reversal of the 
 decision so far as the extension of slavery 
 into free territory was concerned. With the 
 clearness of vision and the patience of a 
 great statesman, he saw that the fault was 
 not in the Constitution, and not in the free- 
 dom of the judiciary, but in treating a hu- 
 man being as property in territories where 
 slavery as an institution had been prohibited 
 by law. In his debate with Stephen A. 
 Douglas, he declared : "We oppose the Dred 
 Scott decision in a certain way. . . . We 
 do not propose that when Dred Scott has 
 been decided to be a slave by the court, we
 
 THE CITIZEN AS A LAW-MAKER 
 
 as a mob, will decide him to be free; . . . 
 but we nevertheless do oppose that decision 
 as a political rule which shall be binding on 
 the voter to vote for nobody who thinks it 
 wrong. . . . We propose so resisting it as 
 to have it reversed if we can, and a new 
 judicial rule established upon this subject." 
 
 In brief, Lincoln regarded the decision 
 as part of an organized conspiracy to ex- 
 tend slavery into free territory. When 
 charged with resisting the decision of the 
 Supreme Court by which Dred Scott was 
 decided to be a slave, and thereby attempt- 
 ing to rob his master of his property, Lin- 
 coln replied: "All that I am doing is refus- 
 ing to obey it as a political rule. ... If I 
 were in Congress and a vote should come up 
 on a question whether slavery should be 
 prohibited in a new territory, in spite of the 
 Dred Scott decision, I would vote that it 
 should." 
 
 There is in Lincoln's speeches, made un- 
 J85
 
 THE PEOPLE'S GOVERNMENT 
 
 der the most trying circumstances, no denial 
 of the binding nature of a court decision as 
 regards the particular case to which the de- 
 cision applies. What he objected to was 
 neither the constitutional prerogative of the 
 court to declare an act of Congress uncon- 
 stitutional nor the immediate effect of the 
 particular decision, but the right of the 
 court to fix for all time the policy of the 
 government on the question of slavery. On 
 this point he expressly states: "Nor is there 
 in this view any assault upon the court or 
 the judges. It is a duty, from which they 
 may not shrink, to decide cases properly 
 brought before them; and it is no fault of 
 theirs if others seek to turn their decisions 
 to political purposes." 
 
 RESPECT FOR THE CONSTITUTION AS THE 
 GUARANTOR OF LIBERTY 
 
 Strong as the temptation was, in the great 
 moral crisis which an ex parte interpretation 
 
 186
 
 THE CITIZEN AS A LAW-MAKER 
 
 of the Constitution had forced upon the 
 country, to criticize the provisions of the 
 organic law itself, no note of censure and 
 no proposal of change came from the states- 
 man who most lamented the construction 
 put upon it. No one can doubt that, as a 
 man of the people, Lincoln had supreme 
 confidence in the wisdom and virtue of his 
 fellow-citizens ; yet he fully realized the value 
 of the restraints imposed by the fundamental 
 law, and there is in his voluminous utter- 
 ances no appeal to their undirected will to 
 correct by an extra-judicial act the wrong 
 which he sought to remedy. In his first in- 
 augural as President of the United States, 
 delivered at a moment when the passions 
 and interests of the Nation were stirred as 
 they had never been before, he expressed in 
 a single sentence his confidence in the de- 
 liberate and balanced judgment of the peo- 
 ple, but at the same time his conviction of 
 the necessity of constitutional restraints. 
 
 187
 
 THE PEOPLE'S GOVERNMENT 
 
 "A majority," he says, "held in restraint by 
 constitutional checks and limitations, and 
 always changing easily with deliberate 
 changes of popular opinion and sentiment, 
 is the only true sovereign of the people." 
 "Whoever rejects it," he adds, "does of ne- 
 cessity fly to anarchy or despotism." 
 
 It is well to ponder these weighty words. 
 The majority, under our system, must ulti- 
 mately rule ; but, in Lincoln's view, it should 
 be a majority acting under two conditions: 
 (1) the restraint of constitutional princi- 
 ples, which set definite limits to the will even 
 of the majority; and (2) it must not be a 
 fixed majority, acting solely in its own 
 interest, but one that changes easily with 
 deliberate changes of popular opinion. 
 Constitutional limitations and deliberate con- 
 sideration these are the two landmarks 
 which indicate the safe channel for the on- 
 flow of progressive action by the people. 
 The alternatives are, as Lincoln said, anar- 
 
 188
 
 THE CITIZEN AS A LAW-MAKER 
 
 chy on the one hand, and despotism on the 
 other. 
 
 As a law-maker and every citizen is a 
 law-maker a recognition of these condi- 
 tions is the first duty of the citizen. If the 
 laws are to be respected, it is necessary that 
 they should contain nothing arbitrary, noth- 
 ing which springs from the mere unreason- 
 ing volition of the law-maker. Every en- 
 actment should be based upon the principle 
 of mutual obligation. 
 
 It is here that the substantial value of a 
 fundamental law becomes apparent, for it 
 contains the only guarantee that unequal 
 legislation will not be enacted. It is the 
 effectual barrier to the triumph of mere 
 class and sectional designs. It is not un- 
 natural, therefore, that these should en- 
 deavor to break it down. All attempts to 
 do so should be regarded with suspicion, for 
 an assault upon it is an attempt to destroy 
 the compact upon which the existing order 
 
 189
 
 THE PEOPLE'S GOVERNMENT 
 
 is based. The anarchist who wishes to de- 
 stroy the system of legal right and the 
 despot who wishes to impose his arbitrary 
 will are powerless so long as this basic law 
 exists. It is the bulwark of human rights 
 and of personal liberty, erected against ab- 
 solutism in every form. 
 
 So evident is this that the enemies of con- 
 stitutional government rarely oppose it by 
 direct attack. Their method is rather to 
 undermine it by insidious changes. These 
 they intend to make progressive rather than 
 immediate, for they may thus the more 
 easily develop and mature their ultimate 
 designs. Thus, for example, previous to 
 1848, Louis Napoleon was the most ad- 
 vanced advocate of democratic ideas in 
 France. His most important writings were 
 on the extinction of pauperism and the neg- 
 lected rights of the working classes. His 
 principal theme was "authoritative democ- 
 racy," to be organized in the interest of the 
 
 190
 
 THE CITIZEN AS A LAW-MAKER 
 
 oppressed. On December tenth, of that 
 year, as the protagonist of the people, he 
 was elected President of the Republic. His 
 first request was, that he be intrusted to re- 
 model the constitution of France, in order 
 to embody in it his conception of authorita- 
 tive democracy. The answer of the plebis- 
 cite that followed was 7,439,216 yeas, and 
 640,737 noes. Four years later, when these 
 changes had been made, the people of France 
 were invited to vote on the question of re- 
 establishing the imperial office, with Louis 
 Napoleon as sole candidate. In response, 
 7,824,189 Frenchmen voted "Yes"; and 
 only 253,145 ventured to vote "No." Such 
 was the result of substituting personality 
 for principles the subordination of a nation 
 to one man. 
 
 THE SURCHARGING OF FUNDAMENTAL LAW 
 
 There is a recurrent disposition not only 
 to alter the fundamental law, but to over- 
 
 191
 
 THE PEOPLE'S GOVERNMENT 
 
 load it with numerous irrelevant details, 
 thus destroying its permanent character and 
 transforming it into a general code of statu- 
 tory legislation. This process, from which 
 our Federal Constitution has thus far been 
 happily spared, has been carried on to an 
 alarming extent in many of the state con- 
 stitutions; which have, therefore, become 
 mere temporary and to a great extent 
 purely experimental digests of what for 
 the moment is fancied to be ideal legisla- 
 tion. 
 
 It is apparent that such attempts to em- 
 body ultimate ideals, especially when based 
 upon extemporaneous theories and a large 
 infusion of adventurous initiative, miss en- 
 tirely the purpose of a fundamental law 
 which is not to codify all the rights and 
 duties of the community, but to define and 
 limit the public powers, and to mark out the 
 boundaries beyond which the process of law- 
 making may not justly go, thus furnishing 
 
 192
 
 THE CITIZEN AS A LAW-MAKER 
 
 to the citizen a substantial guarantee of his 
 inherent rights and liberties. 
 
 If we take up our Federal Constitution 
 and carefully analyze its contents, we realize 
 how admirably the founders of the Nation 
 adhered to the idea of embodying in it only 
 purely constituent formulas. 
 
 The purpose is stated in the Preamble: 
 
 We the people of the United States, 
 in order to form a more perfect union, 
 establish justice, insure domestic tran- 
 quility, provide for the common defense, 
 promote the general welfare, and secure 
 the blessings of liberty to ourselves and 
 our posterity, do ordain and establish 
 this CONSTITUTION for the United 
 States of America. 
 
 It is interesting to note that nothing in 
 the entire document oversteps this general 
 purpose, set forth with such dignity and 
 simplicity. First, comes the frame of gov- 
 ernment, based upon the separation and co- 
 14 193
 
 THE PEOPLE'S GOVERNMENT 
 
 ordination of the public powers, thus pro- 
 viding the organism by which the ends 
 enumerated in the Preamble are to be at- 
 tained. Distinct provision is made for con- 
 fining each branch of the government to its 
 own assigned sphere, thus preventing a 
 usurpation of power by any one of them 
 without a violation of the \aw. Limited 
 terms of office, of comparatively short dura- 
 tion, are ordained, and the Chief Executive 
 and other civil officers are rendered liable to 
 impeachment in case they overstep the 
 bounds. 
 
 Interspersed with the powers accorded to 
 public officers are reservations of personal 
 rights which set a limit to public authority 
 in the interest of personal liberty, such as 
 the prohibition against preventing migration 
 from State to State, suspending the writ of 
 habeas corpus, the passing of bills of at- 
 tainder or ex post facto laws, the unequal 
 imposition of direct taxes (recently changed 
 
 194
 
 THE CITIZEN AS A LAW-MAKER 
 
 by amendment) , the levying of import taxes 
 by the States, etc. 
 
 Although the reaction from absolutism 
 and the distrust of arbitrary power are 
 clearly marked in the Constitution as it came 
 forth from the hands of its framers, the dis- 
 tinct reservation to the States and to the 
 people of all powers not explicitly accorded 
 to the Federal Government was at that time 
 deemed by many an insufficient safeguard 
 of local and personal liberty, and further 
 guarantees were demanded. In the first ten 
 amendments, therefore practically coeval 
 with the Constitution itself we find a de- 
 tailed Bill of Rights in which certain liberties 
 of the people are expressly guaranteed. 
 
 THE EXTENSION OF GUARANTEES TO EMANCI- 
 PATED SLAVES 
 
 Until a very recent period great value was 
 placed upon these guarantees, and the Con- 
 stitution constantly grew in public esteem. 
 
 195
 
 THE PEOPLE'S GOVERNMENT 
 
 The whole drift of popular sentiment was 
 in the direction of augmenting and strength- 
 ening them. After the first twelve amend- 
 ments, no further alteration or addition 
 was, however, considered necessary until the 
 results of the Civil War in 1865 led to 
 the thirteenth amendment, declaring that 
 "neither slavery nor involuntary servitude, 
 except as a punishment for crime whereof 
 the party shall have been duly convicted, 
 shall exist within the United States, or any 
 place subject to their jurisdiction." Three 
 years later, as a necessary step in the recon- 
 struction of the States that had been in re- 
 bellion, the fourteenth amendment was 
 passed, by which it is declared, that "All 
 persons born or naturalized in the United 
 States, and subject to the jurisdiction there- 
 of, are citizens of the United States and of 
 the State wherein they reside." 
 
 The immediate purpose of this new guar- 
 antee was to secure to the enfranchised slaves 
 
 196
 
 THE CITIZEN AS A LAW-MAKER 
 
 the constitutional right of citizenship, but 
 this would have been illusory without secur- 
 ing to them immunity from the invasion of 
 their civil rights by the enactment of dis- 
 criminating local laws. Accordingly, a 
 clause was added, in which it is declared, that 
 "no State shall make or enforce any law 
 which shall abridge the privileges or im- 
 munities 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." 
 
 Thus, at last, with the abolition of slavery 
 an institution to which the spirit of the 
 Constitution had always been opposed all 
 persons born or naturalized in the United 
 States were declared to be citizens, equal 
 before the law, and afforded the benefit of 
 equal guarantees of life, liberty, and prop- 
 erty. 
 
 197
 
 THE PEOPLE'S GOVERNMENT 
 
 THE EFFECT OF CONSTITUTIONAL GUARANTEES 
 
 In thus making the principle of universal 
 mutual obligation the formal basis of the 
 law, by prohibiting unequal legislation, the 
 Federal Constitution, so long as the funda- 
 mental law remains unaltered and is fairly 
 interpreted, places the citizen jn a position 
 of security from the arbitrary action of the 
 State, and also from that of class interests 
 through control of the State. It is a herit- 
 age with which the citizen may well be con- 
 tent, but it is one which he must always 
 defend ; for the forces which have in the past 
 opposed and hindered its creation will prob- 
 ably never cease to plan its destruction. 
 
 Within the fixed limits of the basic com- 
 pact, public opinion has free scope; and 
 public opinion is a force which will never 
 cease to act. There is, therefore, in the na- 
 ture of the constitutional system of govern- 
 ment nothing to obstruct indefinite progress 
 
 198
 
 THE CITIZEN AS A LAW-MAKER 
 
 toward the highest ideals of the community, 
 whenever these become sufficiently clear and 
 accepted by a sufficient number of citizens 
 to influence public opinion and cause it to 
 be effectual. What the constitutional sys- 
 tem does is not to obstruct progress, but 
 simply to provide a safe and well-defined 
 channel through which progressive social 
 ideas may freely flow. 
 
 It is, of course, conceivable that, by writ- 
 ing into the basic law itself ex parte restric- 
 tions upon personal liberty or exactions in- 
 spired by private interests or misconceptions 
 of the public good, the constitutional system 
 might be made the instrument of the grossest 
 tyrannies. It is, therefore, of the highest 
 importance that the citizen, in his capacity 
 of law-maker, should consider it his first 
 duty to guard against such alterations of the 
 fundamental law. While the system of con- 
 stitutional guarantees continues to exist, it 
 will be only through the perversion of it that 
 
 199
 
 THE PEOPLE'S GOVERNMENT 
 
 individual rights and liberties can be seri- 
 ously affected; but it must not be forgotten 
 that the perversion of it is always possible. 
 It is, therefore, of supreme importance to 
 watch over and preserve inviolate that guar- 
 antee of guarantees, deliberation in the 
 process of amendment. "The Congress," 
 runs the amending clause, "whenever two- 
 thirds of both Houses shall deem it neces- 
 sary, shall propose amendments to this Con- 
 stitution, or, on the application of the Leg- 
 islatures of two-thirds of the several States, 
 shall call a convention for proposing amend- 
 ments"; but these, when accepted, must be 
 ratified by the Legislatures of three-fourths 
 of the States, or by conventions of three- 
 fourths of them called for this purpose. 
 
 ATTACKS UPON FUNDAMENTAL LAW 
 
 From the moment when the Federal Con- 
 stitution was framed until the present time, 
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 THE CITIZEN AS A LAW-MAKER 
 
 there have been persons who have either 
 failed to distinguish between fundamental 
 law and current legislation or have opposed 
 the distinction. For them, the only govern- 
 ing authority is the unqualified will of the 
 majority; and they are, therefore, opposed 
 to any guarantees against the operation of 
 that will. 
 
 The defects of this theory of government 
 are obvious. There is no ground of assur- 
 ance that, upon every question, the will of 
 the majority will respect the inherent rights 
 of the minority; and a majority of votes is 
 frequently only an apparent and not a real 
 expression of the deliberate will of the com- 
 munity. Every attempt, therefore, to abol- 
 ish or weaken the guarantees afforded by 
 the fundamental law must be regarded with 
 suspicion. The burden of proof plainly 
 rests upon the person who proposes to abol- 
 ish or weaken those guarantees, and the 
 thesis he is called upon to establish is, that 
 
 201
 
 THE PEOPLE'S GOVERNMENT 
 
 the community as a whole, and not a mere 
 majority, will be benefited by a change. It 
 is reasonable, therefore, that the community 
 as a whole, and not merely an apparent or 
 even a real majority, should decide the ques- 
 tion. It is precisely this for which the 
 amending clause of the Federal Constitution 
 provides, and it is against this guarantee 
 par excellence that the attack is principally 
 leveled. 
 
 So feeble and so indefensible are some of 
 the proposals of change in the organic law, 
 that it is impossible to commend them on 
 their own account; and the position, there- 
 fore, is taken that the process of amending 
 it is too difficult, and that it should be made 
 comparatively easy. Thus, instead of dis- 
 cussing specific changes, the usual attack on 
 the Constitution takes the form of opening 
 wide the door to any change whatever which 
 a class, a section, or an interest may wish to 
 promote. 
 
 202
 
 THE CITIZEN AS A LAW-MAKER 
 
 One writer, having invented a "Plan for 
 the Democratization of the Federal Consti- 
 tution," advocates greater facility of amend- 
 ment, on the ground that this is necessary 
 "in order to render successful the movement 
 of the past few years for the democratization 
 of government in this country, resulting in 
 experiments with the initiative, the referen- 
 dum, the recall, direct nominations, and so 
 forth;" and remarks naively, that "it is sin- 
 gular that the undemocratic nature of the 
 Federal Constitution has not received more 
 attention." The proposal is, then, to sweep 
 away the constitutional guarantees, and 
 thereby to give place to political experi- 
 ments; if happily through a liberal employ- 
 ment of the initiative, the referendum, and 
 the recall, some social advantage to the 
 majority may be produced at the minority's 
 expense. That such supposed advantages 
 would prove to be real, is admitted to be 
 uncertain. The only sure thing is, that 
 
 203
 
 THE PEOPLE'S GOVERNMENT 
 
 they would probably be unconstitutional. 
 "Should the experiments referred to," con- 
 tinues the writer, "prove successful, much 
 of the social legislation secured by their aid 
 would ultimately come before the Supreme 
 Court of the United States"; which would, 
 no doubt, declare it to be unconstitutional, 
 and thus all these social "experiments" would 
 come to naught! To avoid this calamity, 
 the Constitution must be made so readily 
 alterable that nothing desired by the major- 
 ity would be contrary to it in its amended 
 form. 
 
 THE NATURE OF THE OPPOSITION TO THE 
 CONSTITUTION 
 
 What, then, is the social legislation which 
 it is so important to render possible? The 
 complaints made against the Constitution as 
 it is sufficiently reveal its character: 
 
 The Constitution of the United States 
 
 204
 
 THE CITIZEN AS A LAW-MAKER 
 
 was framed by and in the interests of 
 a property-possessing class. 
 
 Property is rightfully the possession 
 of society as a whole ; when detained in 
 private hands it becomes a permanent 
 reward for a temporary service, or for 
 no service at all. 
 
 The pretended right to transmit 
 property from one generation to an- 
 other is not a natural right. 
 
 Corporate properties should be val- 
 ued according to their present cost of 
 physical reproduction, and may rightly 
 be taken over by the people upon that 
 valuation. 
 
 The remuneration of the worker will 
 be determined either by deeds or by 
 needs, as may hereafter be decided ; but 
 most certainly not upon the basis of 
 allowing him a reward according to the 
 importance of his industrial product. 
 
 Employers, as such, have no right to 
 exist. The aim of the employed should 
 be a practice that will enable workers 
 to assume, as the return for their labor, 
 
 205
 
 THE PEOPLE'S GOVERNMENT 
 
 the full control of the various industries. 
 
 The idea of inalienable natural rights 
 is an erroneous eighteenth-century con- 
 ception. Men have no rights, except 
 what society concedes to them by law. 
 
 No court should be permitted to 
 nullify any act of a legislative body on 
 the ground that it is unconstitutional. 
 
 i 
 
 If these propositions were merely aca- 
 demic theses, they might well be passed 
 over in silence; but, on the contrary, they 
 are all of a pragmatic nature, involve the 
 future status and interests of our fellow- 
 citizens, and contemplate legal changes 
 through public action. They supply pre- 
 cisely the kind of materials for disturbing 
 the equanimity of unreflecting minds and 
 for promoting the designs of a demagogue 
 aiming at personal advancement by the 
 creation of a numerous popular following. 
 They are the kind of material we may ex- 
 pect to be employed in those "experiments 
 
 206
 
 THE CITIZEN AS A LAW-MAKER 
 
 in social legislation" which the initiative 
 and the referendum are designed to pro- 
 mote. 
 
 ALLEGED CONSTITUTIONAL BARRIERS TO 
 REFORM 
 
 Unfortunately some of these proposals 
 assume a close connection with the aims of 
 a pure and high-minded philanthropy, which 
 serves to conceal their sordid side and im- 
 parts to them a glamour of righteousness 
 which they do not really possess. Our sym- 
 pathies with poverty and suffering and our 
 antipathy to cruelty and extortion are ap- 
 pealed to, and we are led to believe that 
 nothing can be wrong which brings to 
 terms those who have revolted our con- 
 sciences by their avarice or inhumanity. 
 We are not, in fact, called upon to spare 
 the feelings of those who themselves spare 
 neither manhood nor womanhood nor child- 
 hood in their expedients for extortion. 
 
 207
 
 THE PEOPLE'S GOVERNMENT 
 
 But, on the other hand, we should be very 
 untrue to the cause of humanity, as well as 
 to the cause of justice, if, in our zeal to lift 
 up the downtrodden and to support the weak, 
 we should sweep away the basic guarantees 
 upon which the whole edifice of justice is 
 erected. Loyalty to humanity lays upon us 
 a larger duty than the immediate destruc- 
 tion of some single evil, however monstrous 
 it may seem to us. To cleanse and purify 
 the temple, we do not need to create a con- 
 flagration; for, so far as just and needed 
 social reforms are concerned, there is prob- 
 ably not a single one that requires for its 
 accomplishment any radical change in a 
 system of government by which we have 
 progressively exterminated so many evils. 
 Nor can it be fairly asserted that consti- 
 tutional government, as understood by our 
 fathers, is of interest chiefly to the property- 
 possessing class, particularly the large 
 property-possessing portion of society. It 
 
 208
 
 THE CITIZEN AS A LAW-MAKER 
 
 has never been its aim to protect any par- 
 ticular class to the disadvantage of another; 
 but, on the contrary, to see to it that there 
 be no insurmountable barriers to block the 
 way of human aspiration, with the result 
 that there are few fortunes in our country 
 the foundations of which were not laid by 
 men who once worked for wages. As for 
 the excessively great fortunes, their pos- 
 sessors are the least likely to be affected by 
 any radical legislation, for they will always 
 find a safe asylum in which to meditate 
 upon their woes. It is the wage-earner, 
 and the organizer and administrator of 
 wealth-producing enterprises, whose hopes 
 are threatened by encroachments upon our 
 constitutional guarantees ; for the prosperity 
 of the great mass of our population is de- 
 pendent upon a mutual confidence that in- 
 dustry will be suitably rewarded and enter- 
 prise enabled to prosper. Nothing could so 
 effectively check and permanently embar- 
 
 15 209
 
 THE PEOPLE'S GOVERNMENT 
 
 rass the creative forces of the country as the 
 thought that the results of industry and 
 enterprise will be exposed to future expro- 
 priation. 
 
 THE RELATION OF REFORM TO PUBLIC OPINION 
 
 It is of supreme importance for the citi- 
 zen as a law-maker to form a just conception 
 of the true relation between constitutional 
 guarantees and public opinion. There is 
 no constitutional provision that could long 
 remain effective if opposed by public opin- 
 ion in any real sense ; for the process of con- 
 stitutional amendment, although impossible 
 to a mere majority, presents an open path 
 for the forward movement of a serious pub- 
 lic determination when it has been deliber- 
 ately taken on defensible grounds. 
 
 It is, however, necessary to distinguish 
 between public opinion and a mere majority 
 decision when the latter is evidenced only 
 210
 
 THE CITIZEN AS A LAW-MAKER 
 
 by the counting of affirmative and negative 
 votes. 
 
 A plebiscite including under this term 
 the initiative and the referendum is usu- 
 ally not an expression of opinion in any real 
 sense. It is usually merely an opportunity 
 for a choice between alternatives so ingeni- 
 ously presented as to facilitate decision, with- 
 out analysis and without reflection. Most 
 popular votes are of this character. 
 
 Let us take, for example, the plebiscite 
 by which Louis Napoleon was authorized 
 personally to prepare a constitution for 
 France. In this there was expressed no 
 "opinion," public or private, as to what the 
 constitution should be ; for it was not known 
 what it was designed to be. The vote was, 
 therefore, not an expression of "opinion" in 
 any proper sense, but only an expression of 
 confidence in a particular person, to whom 
 all the authority of the people in this matter 
 was bodily transferred. If we take as an- 
 211
 
 THE PEOPLE'S GOVERNMENT 
 
 other example the plebiscite by which the 
 President of the French Republic was ac- 
 corded the title and functions of emperor, 
 the same may be said; only, in this case, 
 since the President had evidently resolved 
 to absorb most of the public powers, the 
 question presented was merely one of choice 
 between the acceptance of an -emperor or a 
 revolution. There was, therefore, in real- 
 ity leaving aside all doubt regarding the 
 regularity and actual numerical result of 
 the vote no expression of public opinion 
 in a proper sense; that is, of definite con- 
 clusions deliberately arrived at by a balance 
 of considerations. 
 
 The truth is, that, without specific discus- 
 sion and reference to general principles, 
 public opinion does not exist. Popular 
 demonstrations of mere feeling, whether of 
 sympathy or antipathy, do not constitute 
 public opinion, no matter how extensive they 
 may be, even though they include the par- 
 
 212
 
 THE CITIZEN AS A LAW-MAKER 
 
 ticipation of the entire population. With- 
 out a definite proposal, comprising not only 
 some precise end to be attained but a definite 
 means of attaining it and some considera- 
 tion of its effect if successful, public opinion 
 does not exist. Mere popular unrest and 
 vague social aspirations do not of them- 
 selves constitute public opinion. The pres- 
 sure resulting from these may lead to the 
 formation of opinions; and these, if they 
 become general through discussion, may 
 ultimately take on a public character, but 
 not unless they assume the form of definite 
 propositions. 
 
 It is evident, therefore, that reforms, to 
 become effectual, must await the growth of 
 intelligent appreciation. The only way to 
 promote them is to fix attention upon them 
 by debate and by appealing to the reason- 
 ing powers. Until this is done, even though 
 legislation be enacted, it will not be re- 
 spected. It is useless, therefore, to force it 
 
 213
 
 THE PEOPLE'S GOVERNMENT 
 
 prematurely upon society. Merely to ex- 
 periment is worse than useless ; it is danger- 
 ous. It incurs the risk of inducing the 
 general belief that all legislation and all the 
 social arrangements resulting from it are 
 merely empirical; that everything is purely 
 arbitrary; and that nothing is to be de- 
 pended upon. Such a regime would sub- 
 stitute imagination for reason and emotion 
 for experience. In short, government by 
 impulse is only another name for anarchy. 
 
 THE CONFLICT OF CONSTITUTIONALISM WITH 
 IMPERIALISM 
 
 Are these conclusions in any respect a 
 condemnation of democracy? By no means. 
 The error of many political speculations 
 lies in representing that human progress, 
 especially in legislation, consists merely in 
 the triumph of democracy over monarchy, 
 of the will of many over the will of one. A 
 little reflection is sufficient to show that this 
 
 214
 
 THE CITIZEN AS A LAW-MAKER 
 
 is not the case. The real struggle is not be- 
 tween democracy and monarchy, it is be- 
 tween constitutionalism and imperialism ; be- 
 tween the effort to guarantee to every 
 individual his inherent rights and the dis- 
 position to override, to ignore, or to deny 
 them, no matter by whom it is entertained. 
 
 Democracy, as well as monarchy, may be 
 imperial and unconstitutional. The will of 
 many may be as arbitrary, as absolute, as 
 unjust, and even as cruel as the will of one. 
 Progress toward the recognition and the 
 guarantee of all inherent rights can be made 
 only by opposing imperialism in whatever 
 guise it may appear, and by sustaining con- 
 stitutionalism as a system of public guar- 
 antees. 
 
 If we ask ourselves in what form imperial- 
 ism presents itself to us, in this age and in 
 this country, we at once perceive that our 
 dangers do not arise from monarchy but 
 from "authoritative democracy." Wher- 
 215
 
 THE PEOPLE'S GOVERNMENT 
 
 ever the power of government approaches 
 omnipotence, there lies the danger of op- 
 pression. The eternal battle of right 
 against might is not merely between forms 
 of government, but against absolutism in 
 any form of government; for in every form 
 of government there exists a power to legis- 
 late, and the power to legislate affects the 
 lives, the liberties, and the property of all. 
 The question for democracy to answer is, 
 therefore: What does it intend to do in the 
 field of legislation? Will it renounce the 
 passion for omnipotence? Will it restrain 
 and limit its undoubted powers? Will it 
 respect the inherent rights of all, even of a 
 small and otherwise helpless minority? Will 
 it freely and gladly guarantee those rights 
 by a solemn compact? Or, on the other 
 hand, will it glory in its strength, consult 
 only the interest of a controlling group, 
 ignore the politically powerless, and with- 
 draw or remodel, to suit its pleasure, the 
 
 216
 
 THE CITIZEN AS A LAW-MAKER 
 
 guarantees that have been freely accorded 
 by a nobler theory of authority? 
 
 These are questions which the citizen 
 must answer; and, in answering them, he 
 will determine whether we live in an era of 
 progress or an era of retrogression. The 
 starting-point of legislation in modern times 
 was law-making by arbitrary decree, based 
 upon the conception of the absolute nature 
 of the State. The goal toward which 
 political progress has hitherto tended has 
 been legislation on the basis of mutual obli- 
 gation, with the primary guarantee of in- 
 herent rights. Imperialism and constitution- 
 alism these are the great landmarks. It is 
 upon this frontier that the battle must be 
 waged. What is the answer of democracy? 
 
 PRINCIPLES AND PERSONALITIES 
 
 Regarded concretely, this conflict may be 
 reduced to very simple terms. On the one 
 
 217
 
 THE PEOPLE'S GOVERNMENT 
 
 hand are principles capable of clear state- 
 ment and universal application the immu- 
 table principles of justice based on mutual 
 obligation. On the other hand are hu- 
 man personalities often highly intelligent, 
 plausible, eloquent, and sometimes person- 
 ally attractive who, in exchange for power, 
 promise to those who follow them rich re- 
 wards. Trust them, they pledge them- 
 selves, and they will so undo the work of the 
 past, they will so reapportion the wealth of 
 the world, they will so reconstruct society, 
 that those who have felt themselves out- 
 stripped in the race of life shall wear its 
 laurels, shall rejoice in plenty, and shall rule 
 where they have served. 
 
 Delightful and fascinating prospect! 
 But is it possible that these urgent protago- 
 nists of change will in the hour of triumph 
 forget themselves, or permit themselves to 
 be forgotten? For what purpose have they 
 wrought out their theories of social recon- 
 
 218
 
 THE CITIZEN AS A LAW-MAKER 
 
 struction? What new energies of produc- 
 tivity have they brought to light? What 
 means of making two blades of grass grow 
 where only one grew before have they in- 
 vented? What new resources have they 
 discovered? On what, then, do they base 
 their promises? 
 
 Alas, when their proposals are carefully 
 examined, they usually disclose no pro- 
 found economic discovery, no new method 
 of creating anything of value that did not 
 exist before. It is simply a new process of 
 dividing what the industry and enterprise 
 of others have created, or what their pru- 
 dence and abstinence have prevented from 
 being consumed. Now it is the repudiation 
 of previous obligations; now it is the de- 
 preciation of the coinage ; now it is the issue 
 of paper promises to pay in place of actual 
 payment; now it is obtaining something for 
 nothing from the public treasury for local 
 use; now it is to throw the burden of taxa- 
 
 219
 
 THE PEOPLE'S GOVERNMENT 
 
 tion upon this section or upon that class; 
 now it is to appropriate to public use that 
 which has been built up by private enter- 
 prise; now it is to expropriate this industry 
 for the benefit of that political clientele! 
 And what does the honest citizen think of 
 such proposals? Does he imagine that ap- 
 peals to his pride as a partisan, to his in- 
 terest as a member of a guild, to his sym- 
 pathy as belonging to a class or a section 
 will in the end be of any substantial benefit 
 to him? But, even if they were, what, as 
 an honest man, does he think of such 
 methods of procedure ? What will ultimate- 
 ly become of society, if laws of arbitrary re- 
 distribution are substituted for equal laws? 
 And what security is there against such laws, 
 if constitutional guarantees are swept away ? 
 
 THE DANGER OF AUTHORITATIVE DEMOCRACY 
 
 Against the constitutional guarantees it 
 
 220
 
 THE CITIZEN AS A LAW-MAKER 
 
 is often urged that the people are the sover- 
 eigns, and that they have the right to exer- 
 cise their sovereign will in any way they 
 please. 
 
 That is the theory of authoritative de- 
 mocracy as distinguished from constitutional 
 democracy. The one returns to the doc- 
 trine of absolutism and declares, Populus 
 legibus solutus est the people are above 
 the law ; their will is the source of law. The 
 other replies, "The people are sovereign, 
 but there exists no such thing as absolute 
 sovereignty; the sovereign also is subject to 
 law." He is not a true sovereign, in any 
 sense that democracy can accept, who is not 
 willing to set limits to his powers, and to 
 recognize his own subordination to a funda- 
 mental law. 
 
 The basic question underlying the whole 
 subject of the citizen's relation to legislation 
 is this: Are we to have a government of 
 laws, or a government of men? Shall we 
 
 221
 
 THE PEOPLE'S GOVERNMENT 
 
 place the emphasis upon principles, or upon 
 personal volitions? Shall we base govern- 
 ment upon what we can previously agree 
 upon as in accord with mutual obligation, 
 or shall we base it upon the fluctuating 
 wishes of an interested majority? 
 
 Authoritative democracy, the Napoleonic 
 type of democracy, the type which formerly 
 prevailed in France, places its confidence in 
 persons. It results in a government of 
 men. Constitutional democracy, the Wash- 
 ingtonian type of democracy, the type which 
 has hitherto prevailed in the United States, 
 places its confidence in principles. It re- 
 sults in a government of laws. 
 
 Constitutional democracy takes into ac- 
 count the continuity of national existence 
 and the essential unity of the nation in the 
 past, the present, and the future, as ex- 
 pressed in its deliberately organized insti- 
 tutions. Authoritative democracy takes no 
 account of the unity or the continuity of the 
 
 222
 
 THE CITIZEN AS A LAW-MAKER 
 
 national life. It neither respects the past, 
 nor considers the future ; it acts for the pres- 
 ent only, impelled by volitions that are dom- 
 inant today but may not exist tomorrow. 
 
 But the real danger of authoritative de- 
 mocracy is that it opens the door to imperial- 
 ism. It proposes to rule, not by discussion 
 and deliberation, but by plebiscite. The 
 nominal proposal is that the people are to 
 rule; but the people are occupied with their 
 own affairs. They are, therefore, invited 
 to choose uninstructed plenipotentiaries; and 
 it is these who in reality will decide every- 
 thing. To the people will then remain 
 nothing but the doubtful prerogative of 
 assent. 
 
 GOVERNMENT BY OFFICIAL OLIGARCHY 
 
 How readily, and in a sense uncon- 
 sciously, and yet inevitably, authoritative 
 democracy deserts its own primary idea and 
 
 223
 
 THE PEOPLE'S GOVERNMENT 
 
 substitutes personalities for principles, is 
 illustrated by a proposal recently made by 
 its recognized chief in the United States, 
 for whose eminent ability and high official 
 position it is our duty to entertain a pro- 
 found respect. This does not, however, 
 exempt us from the further duty of sub- 
 jecting to examination the suggestion, 
 
 %. 
 
 officially offered, that legislation and public 
 policies, which hitherto have been proposed 
 and advocated by public representative as- 
 semblies of the people, convoked for this pur- 
 pose, should henceforth be confided solely 
 to a junta of office-holders and office- 
 seekers, the people retaining no other privi- 
 lege than that of giving or withholding 
 their subsequent assent. 
 
 In a message to Congress, the President 
 of the United States has suggested that a 
 federal law be adopted, not only depriving 
 the people of the privilege of meeting in 
 party conventions for the nomination of 
 
 224
 
 THE CITIZEN AS A LAW-MAKER 
 
 candidates for public office, but depriving 
 the people of the right to choose their own 
 delegates to such conventions for the pur- 
 pose of framing a platform of party prin- 
 ciples; that is, of issuing preliminary man- 
 dates to their candidates for office. "I 
 suggest," runs this extraordinary communi- 
 cation which was not called for by any 
 popular interest in the subject or either pre- 
 ceded or followed by public discussion of 
 the proposal "I suggest that conventions 
 for the purpose of adopting a platform 
 should consist, not of delegates chosen for 
 this single purpose, but of the nominees for 
 Congress, the nominees for vacant seats in 
 the Senate of the United States, the Sena- 
 tors whose terms have not yet closed, the 
 national committees, and the candidates for 
 the presidency themselves." * 
 
 What, then, is the purpose of this un- 
 
 i See President Wilson's address to Congress of December 
 2, 1913. 
 
 16 225
 
 THE PEOPLE'S GOVERNMENT 
 
 precedented concentration of power in a 
 few official personalities? It is alleged to 
 be, "that platforms may be framed by those 
 responsible to the people for carrying them 
 into effect"! 
 
 Are political platforms to be held more 
 sacred in the eyes of those who are respon- 
 sible for carrying them into effect because 
 they are their own, and not the people's, 
 platforms? This is the alleged reason for 
 the President's suggestion. Why not, then, 
 hand over to these select officials, prospec- 
 tive and actual, the whole conduct of gov- 
 ernment; since the people may not freely 
 make their own platforms by choosing their 
 own unofficial delegates? But why all this 
 array of "nominees" and "national com- 
 mittees"? If "senators whose terms have 
 not closed" are to be included in the official 
 oligarchy, certainly a president whose term 
 of office has not expired would have a dom- 
 inant influence in this controlling body; 
 
 226
 
 THE CITIZEN AS A LAW-MAKER 
 
 especially, if he also be a nominee to suc- 
 ceed himself. Who, in short, is so clearly 
 "responsible to the people" as the actual 
 head of the State? And who is likely to 
 have so much influence in this indirectly 
 chosen body? Why not, then, be done 
 with it, and place all the power in the hands 
 of the president? Of course, we could not 
 call him "emperor," but we should in that 
 case have a law-maker who could be held 
 "responsible to the people." His problem 
 would, moreover, be a very simple one, 
 namely, to give to the people exactly what 
 he thought the majority wanted! 
 
 This substitution of the Napoleonic for 
 the Washingtonian theory of government 
 would greatly simplify the task of the citi- 
 zen. It would relieve him not only of all 
 responsibility but from all discussion and 
 reflection upon public questions. It is the 
 logical consequence of authoritative de- 
 mocracy, which consists in practice in plac- 
 
 227
 
 THE PEOPLE'S GOVERNMENT 
 
 ing the public powers in the hands of a 
 dominant personality to be used ad libitum; 
 subject only to the assent of those who have 
 ceased to examine public policies for them- 
 selves; who do not care to be represented 
 by others, through whom they may deliber- 
 ately and publicly discuss them; and who 
 are content, by a simple act of will, to trans- 
 fer authority to their uninstructed plenipo- 
 tentiaries, to whose decisions they passively 
 assent. 
 
 Are the American people desirous of 
 adopting this oriental conception of public 
 life, or will they continue to adhere to the 
 representative system of constitutional de- 
 mocracy? This is a question which at this 
 moment demands an answer. If it be an- 
 swered in favor of the system we have in- 
 herited from our fathers, it will be necessary 
 to stand firmly for that system, or the de- 
 cision will be unavailing. Reversion to 
 absolutism is the inevitable consequence of 
 
 228
 
 THE CITIZEN AS A LAW-MAKER 
 
 public indifference. The whole burden of 
 good government rests upon the vigilance 
 of the citizen; first, in guarding his con- 
 stitutional prerogatives, and then in seeing, 
 through those whom he charges with the 
 carrying-out of definite policies, that the, 
 principle of mutual obligation be made ef- 
 fective in legislation. To know and com- 
 prehend this principle requires neither 
 learning, nor superior faculties, nor high 
 social position. Such knowledge is the 
 birthright of the common man, who knows 
 that what is his does not belong to another, 
 and that what belongs to another does not 
 belong to him. It is to the plain citizen, 
 who seeks no public office, envies no man's 
 plunder, and is strong in his own manhood 
 and in his respect for manhood's rights, that 
 we must look for the permanence of the State 
 and the rule of justice in the law. It will be 
 not through numbers, but only through char- 
 acter, that democracy will endure. 
 
 229
 
 VI 
 
 THE CITIZEN AS SUBJECT 
 TO LAW
 
 VI 
 
 THE CITIZEN AS SUBJECT TO LAW 
 
 Thus far our thoughts have been occupied 
 with the nature of the State, the basis of 
 the law, and the function of the citizen as 
 a law-maker. It has been pointed out that 
 the people, duly organized, are sovereign, in 
 the only sense in which sovereignty has a 
 rightful existence; and that every citizen 
 shares in the exercise of this ultimate politi- 
 cal authority. Within the limits of a right- 
 ful rule of the majority, he is a legitimate 
 ruler. It is, perhaps, less flattering to 
 human pride to be obliged to recall the fact 
 that the citizen is also subject to the law, 
 and, if he chance to belong to the minority, 
 subject to forms of law which he has not 
 favored and may not desire to obey. Is he, 
 
 233
 
 THE PEOPLE'S GOVERNMENT 
 
 as a citizen, prepared to stand this test? 
 Will he yield a voluntary obedience to the 
 law, simply because it is the law, when it 
 does not suit his convenience to obey it, and 
 even when in principle it does not receive his 
 approval? 
 
 Upon the answer to this question turns 
 the effective authority, and even the very 
 existence, of the State. If the answer be 
 negative, we are confronted with the spirit of 
 revolution ; and out of revolution, if that 
 spirit continues, must come either a new 
 and more acceptable State, or anarchy. 
 
 It is important to recall the fact that 
 revolution is not an infrequent phenomenon, 
 and that the greater number of modern 
 States are the offspring of revolutionary 
 action. These movements, however, are of 
 quite different types and have produced 
 quite different results. It is, perhaps, 
 worth while to distinguish between them as 
 regards their aims, the permanence of their 
 
 234
 
 THE CITIZEN SUBJECT TO LAW 
 
 effects, and the degree in which they have 
 secured stability to the principles of human 
 justice. 
 
 THE CHARACTER OF THE AMERICAN REVO- 
 LUTION 
 
 The American Revolution, as we have al- 
 ready pointed out, was a revolt, not merely 
 against royal authority, but against the laws 
 of the British Parliament. The objection 
 to these laws was that they were expres- 
 sions of absolute sovereignty, assuming 
 and enforcing the unqualified right of 
 certain men to make laws for other men 
 who were regarded as possessing no 
 rights which their rulers did not accord to 
 them. 
 
 The revolt of the thirteen American 
 colonies was distinctly and exclusively 
 against this doctrine of absolute sover- 
 eignty, to which it opposed the idea of gov- 
 ernment with the "consent of the governed." 
 
 235
 
 THE PEOPLE'S GOVERNMENT 
 
 This necessarily implied the existence of 
 inherent rights on the part of the individual, 
 which government is in principle bound to 
 respect. In constituting a new govern- 
 ment, therefore, these rights were jealously 
 guarded. The idea of a strong central au- 
 thority remote from local influence was 
 looked upon with suspicion. Individual 
 liberty having been secured, it was desirable 
 that it be not carelessly sacrificed. In the 
 State constitutions which were formed dur- 
 ing the Revolution, individual rights and 
 liberties were carefully guarded by the in- 
 clusion of bills of rights in the organic law; 
 and when, after the failure of the defensive 
 league created under the Articles of Con- 
 federation, the Federal Constitution was 
 finally adopted, two provisions were em- 
 bodied in that compact which had never be- 
 fore been united in any federal system : ( 1 ) 
 the reservation by the people of certain 
 rights which could not be legally taken away 
 
 236
 
 THE CITIZEN SUBJECT TO LAW 
 
 by legislative action; and (2) the creation 
 of a judicial tribunal with power to inter- 
 pret the fundamental law, and thus to pre- 
 vent legislative encroachment upon the in- 
 herent rights which had been placed beyond 
 the danger of invasion by any power within 
 the State. 
 
 By these two provisions, for the first time 
 in the history of the world, the citizen was 
 placed in a position of security and assured 
 of the protection of equal laws. The result 
 has been that during a period of a hundred 
 and twenty-five years a nation then contain- 
 ing four or five million inhabitants has 
 grown to be one of nearly a hundred mil- 
 lions, expanded over a territory many times 
 more extensive than that occupied by the 
 original colonies, and composed of more 
 than three times as many States, without 
 the occurrence of a successful revolution; 
 and without a serious revolt of any kind, 
 except an act of attempted separation for 
 
 237
 
 THE PEOPLE'S GOVERNMENT 
 
 the maintenance and extension of the in- 
 stitution of slavery. 
 
 THE CHARACTER OF THE FRENCH REVOLUTION 
 
 Quite different, as we have seen, was the 
 character of the French Revolution. In- 
 spired in a great degree by the example of 
 the American colonies, the people of France 
 revolted against royal authority; but not 
 against the principle of absolute sover- 
 eignty. On the contrary, although the 
 American Declaration of Independence was 
 imitated in the French Declaration of the 
 Rights of Man and of the Citizen, that 
 declaration was, in reality, only a declama- 
 tion against royalism, was not further con- 
 sidered by the revolutionary movement, and 
 was never embodied in any French constitu- 
 tion. From the first one it was expressly 
 excluded, on the ground that an organic 
 law should be confined to the determination 
 
 238
 
 THE CITIZEN SUBJECT TO LAW 
 
 of a form of government, and should not 
 place restrictions upon the powers ordained. 
 
 As a consequence, the French Republic 
 which succeeded the overthrow of the Bour- 
 bon dynasty did not repudiate the principle 
 of absolute sovereignty, but tacitly adopted 
 it as the foundation of the State; simply 
 transferring it from the Crown to the peo- 
 ple, and through the people to the legislative 
 assembly, which retained all the powers that 
 had previously been possessed and exercised 
 by the king. 
 
 Since that time France has been a repub- 
 lic, an empire, a Bourbon kingdom, an 
 Orleans kingdom, a second time a republic, 
 again an empire, and is now for the third 
 time a republic. During this period there 
 have been in France eleven different con- 
 stitutions, no one of which, except the pres- 
 ent, has remained in force for more than 
 twenty years. Under all these regimes 
 France, although nominally a constitutional 
 
 239
 
 THE PEOPLE'S GOVERNMENT 
 
 State, has really been under an absolute 
 sovereignty; that is, a sovereignty upon 
 which there has been no constitutional re- 
 straint beyond a merely formal partition of 
 authority, rendered more or less ineffectual 
 by the actual predominance of some one 
 governmental agency in which the people 
 for the time being have placed their faith. 
 Now it was the parliament, now the king, 
 and now the emperor who possessed the 
 chief power; but there was always some- 
 where in the State an overruling authority 
 able to dictate the law ad libitum. When 
 the parliament became offensive, there was 
 nothing to do but for the king or the 
 emperor to break it up, and either send its 
 members home or put them in prison. 
 When the king became intolerable, there 
 was nothing to do but to dethrone him and 
 supersede his rule by a more popular 
 regime. Nowhere in this system and least 
 of all in a so-called "responsible govern- 
 
 240
 
 THE CITIZEN SUBJECT TO LAW 
 
 merit" changing every few months is 
 there any element of stability. Nor can it 
 be imagined to exist in any parliamentary 
 system whatever, unless this be restricted by 
 constitutional limitations under the protec- 
 tion of an independent judiciary. Without 
 these restraints, there can be no security 
 against the fluctuating decisions of popular 
 majorities, which are frequently influenced 
 by causes that have no connection with the 
 general principles of human justice. Some- 
 times it has been the price of bread, some- 
 times official extravagance, sometimes an 
 error in foreign policy, sometimes mere 
 ennui with a too prosaic administration, and 
 sometimes nothing at all but the declama- 
 tion of an ambitious rhetorician that has 
 upset the government. 
 
 THE CONSTITUTION A BAR TO REVOLUTION 
 
 When we compare our own system with 
 that of other republics especially with 
 
 17 241
 
 THE PEOPLE'S GOVERNMENT 
 
 those in Latin countries, where the tradi- 
 tions of absolutism in some form still linger 
 we find that the chief differences consist 
 in two circumstances: (1) that, in the 
 United States, while many foolish laws, and 
 even some unequal laws, may be passed, 
 these, while the Constitution remains un- 
 changed, cannot be excessively oppressive, 
 because of the explicit guarantees of in- 
 dividual rights and liberties; and (2) that 
 the duty is imposed upon the judiciary by 
 our fundamental law, when appeal is made 
 to it, to declare illegal all legislation which 
 violates these guarantees a security which 
 the Latin republics do not afford. 
 
 Aside from certain minor inconveniences, 
 there is little in the demands made upon his 
 obedience to which a citizen of the United 
 States may not freely assent. His impor- 
 tant rights, at least, have not in the past 
 been greatly menaced. There is, therefore, 
 no great incitement to the revolutionary 
 
 242
 
 THE CITIZEN SUBJECT TO LAW 
 
 spirit on the part of those who in principle 
 are disposed to recognize the supremacy of 
 the law. The constitutional guarantees 
 and the courts are always there to protect 
 him from serious spoliation, and even the 
 political administration is subject to the law. 
 This cannot be said of countries where 
 absolute sovereignty, whether it be vested 
 in the Crown, in the Parliament, or in the 
 people, still prevails. Under such condi- 
 tions there is always a basis for appeal to 
 the revolutionary spirit and for finding revo- 
 lutionary motives. The mere fact that a 
 government is absolute, no matter in what 
 mold it may be cast, is a reason for resist- 
 ance, and sooner or later a concrete occasion 
 is certain to be furnished ; for, if unopposed, 
 it is in the very nature of absolute power 
 to commit excesses. It is only when the 
 principle of absolute sovereignty is entirely 
 abandoned, and the principle of mutual 
 obligation is substituted in its place, that the 
 
 243
 
 THE PEOPLE'S GOVERNMENT 
 
 grounds for revolt are effectually removed. 
 But such a guarantee cannot exist outside 
 of a constitutional reservation of rights 
 which majority legislation cannot invade; 
 and, even if it existed, such a reservation 
 would have no ultimate security unless the 
 obligation to respect it could be sustained 
 by a recognized judicial tribunal. 
 
 Under any system, no doubt, revolution 
 would be conceivable; but, where individual 
 rights and liberties are properly guaranteed, 
 it would at least be unreasonable. Theo- 
 retically, although constitutionalism is an 
 obvious obstruction to revolution, if there 
 should be developed a general hostility to 
 law as law, and if there should be a return 
 to the supremacy of force exercised by the 
 elements of discontent, the Constitution 
 might itself be swept away. The whole of 
 civilization as it exists among us would, in 
 that case, be exposed to the peril of a like 
 calamity. If there should ever come a time 
 244
 
 THE CITIZEN SUBJECT TO LAW 
 
 when powerful interests, of whatever kind, 
 should unite to annihilate the guarantees 
 of the Federal Constitution, such a revolu- 
 tion would exist. If there were no resort 
 to violence, it might be bloodless; but it 
 would be none the less a revolution. It is, 
 therefore, of supreme importance that the 
 friends of law as law should never cease to 
 stand guard over those guarantees of in- 
 dividual rights and liberties upon which our 
 system of government is based. Taken by 
 surprise, they might suddenly awaken to a 
 state of fact of which at present many well- 
 meaning citizens have no suspicion. They 
 would then discover, too late, perhaps, that 
 the noblest political conception that has 
 ever yet entered into the mind of man had 
 been rendered fruitless by private and class 
 interests gradually undermining the guar- 
 antees which have hitherto secured the in- 
 herent rights of individuals and the stability 
 of the State under equal laws. 
 
 245
 
 THE PEOPLE'S GOVERNMENT 
 
 THE ATTACK ON THE JUDICIAL AUTHORITY 
 
 It has been pointed out that the second 
 distinctive characteristic of our political sys- 
 tem is the place assigned in it to the ju- 
 diciary. The Federal Constitution not 
 only fixes limits beyond which legislation 
 by Congress and by the Stages cannot 
 go, but it subjects to the decision of 
 the Supreme Court the questions of con- 
 stitutionality that may arise through the 
 errors or encroachments of legislative en- 
 actments. 
 
 The extent of this prerogative on the part 
 of the judiciary, and even its reality, have 
 more than once been made the subject of 
 discussion; but that the Supreme Court of 
 the United States has, and was intended to 
 have, authority in determining the constitu- 
 tionality of laws does not in the light of his- 
 tory admit of doubt. 
 
 At the time when the Federal Constitu- 
 
 246
 
 THE CITIZEN SUBJECT TO LAW 
 
 tion was adopted, the necessity of placing 
 limitations on the legislative bodies had al- 
 ready been keenly felt. "We had not only 
 been sickened and disgusted for years with 
 . . . the omnipotent power of the British 
 Parliament," wrote James Iredell in 1786, 
 "but had severely smarted under its effects. 
 We felt in all its rigor the mischiefs of an 
 absolute and unbounded authority, . . . and 
 should have been guilty of the basest breach 
 of trust, as well as the grossest folly, if ... 
 w r e had established a despotic power among 
 ourselves. . . . We provided, or meant to 
 provide (God grant our purpose may not 
 be defeated), for the security of every in- 
 dividual, as well as a fluctuating majority 
 of the people." 
 
 The means for obtaining this security 
 were discussed in the Constitutional Con- 
 vention in 1787, and the theory of judicial 
 cooperation in the revision of the laws before 
 they were adopted was debated and re- 
 
 247
 
 THE PEOPLE'S GOVERNMENT 
 
 jected. The alternative was the contention 
 of Iredell, that "the Constitution, being a 
 fundamental law, . . . the judicial power, 
 in the exercise of their authority, must take 
 notice of it as the groundwork of that as 
 well as all other authority ; and, as no article 
 of the Constitution can be repealed by a 
 legislature, which derives its whole power 
 from it, it follows either that the funda- 
 mental unrepealable law must be obeyed, 
 by the rejection of an act unwarranted by 
 and inconsistent with it, or you must obey 
 an act founded on an authority not given by 
 the people, and to which, therefore, the 
 people owe no obedience." 
 
 This was the doctrine distinctly sup- 
 ported by seventeen out of twenty-five of 
 those who took an active part in the pro- 
 ceedings of the Constitutional Convention, 
 and it was opposed by only five persons. In 
 Article VI of the Constitution it is ex- 
 pressly provided that 
 
 248
 
 THE CITIZEN SUBJECT TO LAW 
 
 This Constitution, and the laws of 
 the United States which shall be made 
 in pursuance thereof . . . shall be the 
 supreme law of the land; and the 
 judges in every State shall be bound 
 thereby, anything in the constitution 
 or laws of any State to the contrary 
 notwithstanding. 
 
 Section 2 of Article III further provides 
 that 
 
 The judicial power shall extend to 
 all cases, in law and equity, arising 
 under this Constitution; the laws of 
 the United States, and treaties made, 
 or which shall be made, under their 
 authority. 
 
 If these provisions do not specifically 
 name the Supreme Court, "the judicial 
 power" evidently refers to it, and it is cer- 
 tain that its authority was not intended to 
 be less than that granted explicitly to the 
 State courts. It is worthy of note that Luth- 
 
 249
 
 THE PEOPLE'S GOVERNMENT 
 
 er Martin, who proposed the original form of 
 Article VI, but objected to its final form, 
 wrote to his fellow-citizens of Maryland: 
 "Whether, therefore, any laws or regula- 
 tions of the Congress . . . are contrary to 
 or not warranted by the Constitution rests 
 only with the judges who are appointed by 
 Congress to determine, by whose determina- 
 tion every State must be bound." James 
 Wilson, of Pennsylvania, was if possible, 
 even more explicit. "If," he says, "a law 
 should be made inconsistent with the powers 
 vested by this instrument [the Constitu- 
 tion] in Congress, the judges, as a conse- 
 quence of their independence and the par- 
 ticular powers of government being defined 
 [in the Constitution], will declare such law 
 to be null and void; for the power of 
 the Constitution predominates. Anything, 
 therefore, that shall be enacted by Congress 
 contrary thereto will not have the force of 
 law." Hamilton and Ellsworth expressed 
 250
 
 THE CITIZEN SUBJECT TO LAW 
 
 the same opinion in terms equally unequiv- 
 ocal and in more extended form. 
 
 ALLEGED USURPATION OF THE SUPREME 
 COURT 
 
 This evidence should be sufficient to es- 
 tablish beyond question the authority of the 
 Supreme Court to pass upon the constitu- 
 tionality of legislative acts, and it should 
 conclusively dispose of the insinuation that 
 it was by the interpretation of the Consti- 
 tution given by John Marshall, as Chief 
 Justice of the United States, that power 
 was usurped by the decision of the Court 
 itself; but the accusation is further rebutted 
 by the Judiciary Act of 1789, practically 
 coeval with the Constitution, and approved 
 by President Washington, who had pre- 
 sided over the Constitutional Convention. 
 That Act explicitly recognized the right of 
 a State court to declare void laws of a State 
 as well as laws of the United States, subject 
 to an appeal to the Supreme Court; which 
 
 251
 
 THE PEOPLE'S GOVERNMENT 
 
 therefore possesses the right to declare any 
 law invalid, if it be contradictory to the 
 provisions of the Constitution. It was, in- 
 deed, Chief Justice Marshall, who, by the 
 irrefutable character of his reasoning, set at 
 rest the question regarding the authority of 
 the courts to declare a law of Congress un- 
 constitutional; but, in 1795, ejght years be- 
 fore the celebrated decision in the case of 
 Marbury vs. Madison, to which the "usur- 
 pation" is credited, Justice Paterson, in the 
 Circuit Court of the United States, deliv- 
 ered a charge to a jury in which he ex- 
 plicitly stated the supremacy of the Consti- 
 tution and the authority of the judiciary in 
 the United States, as contrasted with the 
 omnipotence of Parliament and the absence 
 of control over its acts by the judiciary in 
 Great Britain. "The power of Parlia- 
 ment," he says, "is absolute and transcend- 
 ent; it is omnipotent in the scale of political 
 existence. . . . The validity of an Act of 
 
 252
 
 Parliament cannot be drawn into question 
 by the judicial department; it cannot be 
 disputed, and must be obeyed. ... In 
 America the case is entirely different. 
 Every State in the Union has its constitu- 
 tion reduced to written exactitude and pre- 
 cision. What is a constitution? It is the 
 form of government, delineated by the 
 mighty hand of the people, in which certain 
 first principles are established. The Con- 
 stitution is certain and fixed; it contains the 
 permanent will of the people, and is the 
 supreme law of the land. . . . What are 
 legislatures? Creatures of the Constitu- 
 tion; they owe their existence to the Con- 
 stitution; it is their commission; and, there- 
 fore, all their acts must be conformable to it, 
 or else they will be void. . . . Whatever may 
 be the case in other countries, yet in this 
 there can be no doubt that every Act of the 
 Legislature repugnant to the Constitution 
 is absolutely void." 
 
 253
 
 THE PEOPLE'S GOVERNMENT 
 
 With regard to the duty and authority 
 of the Court, the learned Justice is equally 
 clear and equally emphatic. "If a legis- 
 lative act," he says, "impugns a constitu- 
 tional principle, the former must give way, 
 and be rejected on the score of repugnance. 
 I hold it to be a position equally clear and 
 sound, that, in such a case,* it will be the 
 duty of the Court to adhere to the Consti- 
 tution, and to declare the act null and void. 
 The Constitution is the basis of legislative 
 authority; it lies at the foundation of all 
 law, and is a rule and commission by which 
 both legislator and judges are to proceed. 
 . . . The judiciary in this country is not a 
 subordinate, but a coordinate, branch of the 
 government." 
 
 The extent of the authority accorded by 
 the Constitution to the Supreme Court of 
 the United States has at times been hotly 
 debated, especially when the decisions ren- 
 dered by it have aroused against them op- 
 
 254
 
 THE CITIZEN SUBJECT TO LAW 
 
 posing interests ; but it may be said without 
 fear of refutation that every statement made 
 in the passages just cited has been over- 
 whelmingly sustained by public opinion in 
 this country for more than a hundred years. 
 Recently the debate has been reopened, and 
 Chief Justice Marshall has been accused of 
 being the originator of this doctrine ; which, 
 as stated by him in the case of Marbury vs. 
 Madison, it is represented, was nothing 
 less than usurpation of authority by the 
 Court itself. Nothing could more clearly 
 indicate opposition, not only to the Consti- 
 tution itself, but to the primary purpose of 
 a constitution, than such an accusation; for, 
 if objection to the language of the Chief 
 Justice has any significance whatever, it 
 must be based on the distinction he draws 
 between a "superior paramount law" and an 
 "ordinary legislative act." "The Constitu- 
 tion," he writes, "is either a superior para- 
 mount law ... or it is on a level with 
 
 255
 
 THE PEOPLE'S GOVERNMENT 
 
 ordinary legislative acts, and like other acts 
 is alterable when the legislature shall please 
 to alter it." If, he argues, the Constitution 
 is a superior and paramount law, then it 
 must be obeyed; and whatever is contrary 
 to it is legally void. If, on the other hand, 
 the Constitution is alterable at the will of 
 the legislature, "written constitutions are 
 absurd attempts on the part of the people 
 to limit a power in its own nature illimit- 
 able." "Certainly," he concludes, "all those 
 who have framed written constitutions con- 
 templated them as forming the fundamental 
 and paramount law of the nation ; and, con- 
 sequently, the theory of every such govern- 
 ment must be, that an act of the legislature 
 repugnant to the Constitution is void. . . . 
 It is emphatically the province and duty of 
 the judicial department to say what the law 
 is. ... If two laws conflict with each other, 
 the courts must decide on the operation of 
 each." 
 
 256
 
 THE CITIZEN SUBJECT TO LAW 
 
 THE ALLEGED "JUDICIAL OLIGARCHY" 
 
 Obviously, the authority of a court to de- 
 cide what the law is, even to the extent of 
 declaring null and void the acts of a legis- 
 lative body, places in the judiciary a power 
 that might conceivably be made the subject 
 of abuse. It is, therefore, important to note 
 that the same high authority who is held 
 responsible for judicially maintaining the 
 duty of the Supreme Court of the United 
 States to determine the constitutionality of 
 laws has also, in the strongest terms, empha- 
 sized the responsibility of this authoritative 
 body. "The question," says Chief Justice 
 Marshall, "whether a law be void for its 
 repugnancy to the Constitution is at times 
 a question of much delicacy, which ought 
 seldom, if ever, to be decided in the affirma- 
 tive in a doubtful case. . . . The opposition 
 between the Constitution and the law should 
 be such that the judge feels a clear and 
 
 18 257
 
 THE PEOPLE'S GOVERNMENT 
 
 
 strong conviction of their incompatibility 
 with each other." 
 
 This is a sound principle, and a violation 
 of it in the form of a strained decision is, 
 undoubtedly, itself an offense against the 
 Constitution. That there have been occa- 
 sional instances of it may, however, be freely 
 admitted without warranting an assault 
 upon the judiciary as such, and certainly 
 without affording the slightest ground either 
 for revising or for facilitating in general 
 the future amendment of the Constitution. 
 
 When the worst has been said and, un- 
 doubtedly, there is something to be said 
 against certain judicial decisions, especially 
 against those which have been handed down 
 by a bare majority of the Court against the 
 exceptions taken by a minority, there is no 
 just ground for speaking of a "judicial 
 oligarchy"; as if the judges were, as a class, 
 to be condemned as arbitrary rulers, over- 
 riding in their judicial capacity the desires 
 
 258
 
 THE CITIZEN SUBJECT TO LAW 
 
 of the people as expressed by legislative 
 acts. Without a doubt, if the whole body 
 of legislative enactments and the whole body 
 of judicial decisions were taken into account, 
 it would be found that the decisions of the 
 judges would approach much nearer to the 
 public opinion of the time in which they were 
 rendered as to what is just and right than 
 the acts of legislatures they have annulled. 
 
 In this connection it must be borne in 
 mind, as Mr. Lincoln pointed out in regard 
 to the Dred Scott decision, that judicial 
 judgments relate only to specific cases, and 
 that such decisions may be rectified when 
 they are demonstrably wrong. In no case 
 do they irrevocably determine political prin- 
 ciples in opposition to the verdict of delib- 
 erate public opinion. In truth while cer- 
 tain legislative acts, if not judicially set aside 
 as in conflict with the fundamental law, 
 may lay the foundation for extended and 
 irreparable encroachments upon private 
 
 259
 
 THE PEOPLE'S GOVERNMENT 
 
 rights, including the most infamous extor- 
 tions judicial decisions are mainly merely 
 suspensory in their effect, simply declaring 
 that in a particular case an act which the 
 Court, for the reasons which it states, agrees 
 to consider wrong may not be performed. 
 If afterward these reasons are found to be 
 erroneous, there is still room or a different 
 interpretation of the law when such a dif- 
 ferent interpretation can be justified. 
 
 There is, therefore, under our system, no 
 reasonable ground for a general assault upon 
 the judiciary. Errors may have been com- 
 mitted, and judges may sometimes have 
 been influenced by considerations which 
 have perverted their judgment ; but, in spite 
 of these aberrations, the law as judicially 
 interpreted has usually been sanctioned by 
 mature public opinion. Certainly, it would 
 not have been improved by the influence of 
 immature public opinion. There is no doubt, 
 in the domain of judicial decision, large op- 
 
 260
 
 THE CITIZEN SUBJECT TO LAW 
 
 portunity for ex parte criticism. If the 
 defeated contestant could always carry his 
 case before the general public without hav- 
 ing to meet his adversary, he would, un- 
 doubtedly, in many instances obtain a re- 
 versal of the decision; but appeal from an 
 instructed to an uninstructed tribunal would 
 offer no discernible advantage to the cause 
 of justice. The public has, perhaps, a suf- 
 ficient amount of spare time to indulge in 
 sympathy for the apparently oppressed, but 
 hardly enough to constitute itself a superior 
 court of justice. 
 
 THE VALUE OF THE JUDICIAL FUNCTION 
 
 While it is of the highest importance to 
 neglect no means of securing and maintain- 
 ing the independence, the impartiality, and 
 the responsibility of our judiciary, the really 
 important matter is, that we should not fail 
 to appreciate the value of the judicial func- 
 
 261
 
 THE PEOPLE'S GOVERNMENT 
 
 tion. If in any case human perfection could 
 be assumed, we might, perhaps, improve our 
 system of government by selecting the per- 
 fect man and charging him with all the 
 duties and responsibilities of the State. But, 
 until the perfect man is found, we must be 
 reconciled to the necessity of maintaining a 
 system which most nearly approximates per- 
 fection, even though it fall far short of it. 
 
 The fundamental problem of government 
 is, and has always been, to obtain for each 
 individual full security for his inherent rights 
 against the aggression of the stronger. In 
 brief, the problem is, to substitute for vio- 
 lent and forcible compulsion just judg- 
 ments under equal laws. 
 
 The solution of this problem proposed by 
 the founders of our political system was, as 
 we have seen : ( 1 ) the creation of a form of 
 government in which no public officer should 
 be omnipotent, in which the powers of gov- 
 ernment should be divided and distributed, 
 262
 
 THE CITIZEN SUBJECT TO LAW 
 
 and in which definite limits should be set 
 even to the power of the State as a whole; 
 and (2) the explicit statement of certain 
 general principles of justice, in the equal 
 interest of all, which under all circumstances 
 would have to be respected by all classes and 
 all sections, no matter how powerful in 
 wealth, in numbers, or in any other attribute 
 of power and influence, they might be. 
 
 Government, according to this conception 
 of it, was no longer to consist in the exercise 
 of power by those who for any reason might 
 happen to possess it, but in the uniform ap- 
 plication of principles freely accepted as 
 rules of conduct. 
 
 Inevitably, as human nature is constituted, 
 taking into account the unconscious as well 
 as the conscious springs of action, and judg- 
 ing by all the experience of the past, it was 
 distinctly foreseen that there would be in 
 the community conflicts of interest and con- 
 flicts of opinion which, if unrestrained, would 
 263
 
 THE PEOPLE'S GOVERNMENT 
 
 lead to violence. To prevent that conse- 
 quence, it would be necessary that these con- 
 flicts be adjudicated before the bar of reason, 
 as reason was embodied in the law. The 
 balance-wheel of the entire system, as con- 
 ceived by its founders, was, therefore, the 
 judiciary; to be composed of judges duly 
 set apart and provided for in such a manner 
 as to liberate them from the necessities, the 
 interests, the prejudices, and the ambitions 
 which might actuate other men, and thus 
 render them impartial servants of the State, 
 personally neutral as regards the contestants 
 appealing to them for justice, and animated 
 by no motive except the sentiments of honor 
 and responsibility. 
 
 Such, then, in its nature and intention, is 
 the judicial function, the adjudication of 
 differences in the light of the law. Imper- 
 fect in performance it may always be, and 
 probably will be, so long as human nature 
 remains imperfect; but, if justice, and not 
 
 264
 
 THE CITIZEN SUBJECT TO LAW 
 
 advantage, is to be considered the ideal 
 toward which the State is to approximate, 
 progress will consist, not in unsettling the 
 judiciary, but in rendering it more expert, 
 more independent of popular agitation, and 
 more conscious of its high responsibility. 
 
 THE DOCTRINE OF "JUDICIAL SUPREMACY" 
 
 If there must be in human government 
 any authority deserving to be characterized 
 as "supreme," it is, assuredly, that which is 
 charged with determining what, by the 
 agreement of the people, constitutes the law. 
 
 The Supreme Court of the United States, 
 writes Mr. Bryce, is "the guarantee of the 
 minority, who, when threatened by the im- 
 patient vehemence of a majority, can appeal 
 to this permanent law, finding the inter- 
 preter and enforcer thereof in a court set 
 high above the assaults of faction." 
 
 There is in this comment no invidious 
 
 265
 
 THE PEOPLE'S GOVERNMENT 
 
 distinction between the "majority" and the 
 "minority," as if the greater number were 
 always wrong and the lesser number always 
 right. Its true meaning is, that one man, 
 standing alone if the case may be, and op- 
 posed by powerful interests that otherwise 
 might completely crush him, may appeal to 
 a tribunal which, despite these interests, 
 whatever they are and whatever clamor they 
 may raise, may demand, even against the 
 combined opposition of the government it- 
 self, that justice be accorded him; and, if 
 his cause be just, neither President nor Con- 
 gress, though commanding armies and 
 navies, can wring from him one of his in- 
 herent rights. 
 
 It is readily comprehensible, therefore, 
 that the fathers of the Constitution believed 
 they were inaugurating a new era in the 
 history of the world. For the first time, they 
 were, in reality, subjecting every branch 
 and organ of government to the supremacy 
 
 266
 
 THE CITIZEN SUBJECT TO LAW 
 
 of law as interpreted by impartial judges. 
 In this unique achievement was accomplished 
 all that past ages had striven to obtain the 
 basing of authority on fixed principles of 
 justice rather than upon the will of an abso- 
 lute sovereign ; the elimination of brute force 
 as an element of government; and the pro- 
 tection of individual rights against the en- 
 croachments of individuals, of powerful in- 
 terests, and even of the State itself. 
 
 The passing years only strengthened the 
 conviction of the founders of the nation, and 
 Daniel Webster, the great expositor of the 
 Constitution, voiced the opinion of his time 
 when he said: "No conviction is deeper in 
 my mind than that the maintenance of the 
 judicial power is essential and indispensable 
 to the very being of this government. . . . 
 I am deeply sensible, too, and, as I think, 
 every man must be whose eyes have been 
 open to what has passed around him for the 
 last twenty years, that the judicial power is 
 
 267
 
 THE PEOPLE'S GOVERNMENT 
 
 the protecting power of the whole govern- 
 ment." 
 
 In this respect, the system adopted by the 
 United States is far in advance of any other. 
 From many of the European governments 
 we have, no doubt, much to learn as regards 
 most matters of administration, and espe- 
 cially in respect to the employment of trained 
 experts permanently retained in the service ; 
 but no other country in the world possesses 
 the guarantees of individual liberty and in- 
 herent rights that are accorded by the Con- 
 stitution of the United States. Many other 
 nations have borrowed much from the Amer- 
 ican Republic, in particular a written con- 
 stitution ; but none of them has embodied in 
 its form of government the original feature 
 which chiefly characterizes the American 
 conception, namely, the supremacy of fun- 
 damental law over extemporaneous legisla- 
 tion, with the judicial guarantee afforded by 
 the authority of the State and Federal courts. 
 268
 
 THE CITIZEN SUBJECT TO LAW 
 
 Praise for our system has, nevertheless, not 
 been wanting. Professor Dicey, the great- 
 est, perhaps, of English writers on the 
 subject, though a strong advocate of the 
 British system, has expressed the conviction 
 that the British Empire would be benefited 
 if it possessed an analogue of our Supreme 
 Court; and declares, that the "glory of the 
 United States is, to have devised or adopted 
 arrangements under which the Constitution 
 became in reality the supreme law of the 
 land." 
 
 OBSTACLES TO JUDICIAL SUPREMACY 
 
 Other nations, owing either to the perfec- 
 tion of their administration, the influence of 
 their traditions, or the continuity of their 
 institutions, or all of these combined, have 
 dispensed with the distinctive features of 
 the American Constitution; but the need of 
 the elements characteristic of the American 
 system has been distinctly felt by most of 
 
 269
 
 THE PEOPLE'S GOVERNMENT 
 
 them. This is especially true of their inter- 
 national relations. While the forty-eight 
 States of the American Union, in spite of 
 wide diversities, constitute a unit in which all 
 parts are subject to one judicial control, the 
 States of Europe, large and small, are, for 
 the most part, from a judicial point of view, 
 entirely separate entities, with, no effective 
 means of obtaining a juridical solution of 
 the differences arising between them. 
 
 The efforts put forth in the international 
 conferences at The Hague to develop at 
 least an outline of written law for the con- 
 duct of sovereign States, and to organize 
 an international tribunal of justice for the 
 settlement of their disputes, attest the in- 
 terest felt by several governments in an 
 extension of law, in the sense of mutual obli- 
 gation, even over wholly independent sover- 
 eign powers; but at the same time reveal 
 the nature of the obstacles to that achieve- 
 ment. 
 
 270
 
 THE CITIZEN SUBJECT TO LAW 
 
 Those obstacles are : ( 1 ) the indisposition 
 of certain States, cherishing the idea of 
 absolute sovereignty, to accept the principle 
 of mutual obligation as the basis of the law 
 of nations; and (2) their unwillingness to 
 submit the differences between them to any 
 kind of judicial decision. 
 
 If we were to look to the example of these 
 nations alone for the principles of human 
 government, we should inevitably draw the 
 conclusion that force is still the essential 
 basis of the State, and that it is the pre- 
 rogative of the stronger to dictate the law. 
 It seems at times as if this is the final con- 
 clusion which history compels us to reach; 
 and that the destiny of man is, and will 
 always be, to yield submission to the pre- 
 ponderance of purely arbitrary power, in 
 such forms as it may be able to assume 
 now in the garb of absolute despotism, now 
 in the shape of overwhelming national arma- 
 ments, now in the guise of State control 
 
 71
 
 THE PEOPLE'S GOVERNMENT 
 
 through financial influence, now through the 
 demand of potential classes in the community 
 for obedience to their will, and now through 
 popular misconceptions of equity promoted 
 and rendered influential through the sophis- 
 tries of ambitious disturbers of social order. 
 
 THE DANGER OF RECURRENT 11 ABSOLUTISM 
 
 The important matter for the citizen to 
 comprehend and constantly recall is that a 
 battle of ideas is going on in which, con- 
 sciously or unconsciously, he must take a 
 part. Passivity and inertness simply class 
 him with the party attached to absolutism; 
 for the reason, that, under conditions of 
 passivity and inertness, absolutism, in some 
 form, inevitably resumes its sway. The 
 moment men cease to appreciate their rights 
 and liberties, the unconscious process of 
 political decay proceeds; for, as we have 
 previously seen, there exists no natural and 
 
 272
 
 inherent law of human progress. If not 
 persistently resisted, imperialism, in one or 
 another of its many disguises, is certain to 
 return. The law of the natural world is the 
 survival and the triumph of the strong. It 
 is necessary, therefore, to guard against 
 arbitrary power, under whatever mask it 
 may appear. There is a tendency, one may 
 say even a fatality, in those who possess it 
 to make it the source of law; and this it has 
 always been until intelligence found a way 
 to restrain it. Left to the free play of 
 natural appetites, passions, and ambitions, 
 uncontrolled by respect for the authority of 
 law as mutual obligation without regard 
 to nominal forms of government, whether 
 monarchical, oligarchic, or democratic the 
 State has always become absolute, inherent 
 personal rights have been denied or over- 
 ridden, and the will of the stronger has be- 
 come the rule. 
 
 The only safe refuge from despotism is 
 
 19 273
 
 THE PEOPLE'S GOVERNMENT 
 
 the shelter created by human intelligence, 
 applying to the problems of government the 
 results of experience. The whole of civiliza- 
 tion depends not merely upon obedience to 
 law, but upon the renunciation by each in- 
 dividual of the temptation to make his own 
 will the source of law. And this is true 
 also of governments, in their relation to one 
 another and to the citizen. It is certain 
 that without power to punish disobedience 
 to just laws and to repress violence, the 
 State would be impotent to secure the rights 
 and liberties of which it is the guarantor; 
 and that measure of force, together with 
 the means of defense against external ag- 
 gression, must, therefore, be accorded to the 
 State. But it is only when a State itself 
 submits to law, irrespective of the extent of 
 its power, that it can rightly claim the loyal 
 allegiance of its citizens. 
 
 For a system of government which, in the 
 very charter of its existence, has voluntarily 
 
 274
 
 THE CITIZEN SUBJECT TO LAW 
 
 made this renunciation of arbitrary power, 
 and which faithfully respects its pledges, a 
 right-minded citizen may well entertain a 
 sentiment of unqualified devotion. Such a 
 birthright is not to be lightly regarded ; but 
 it is more than a birthright, it is a sacred 
 trust. To maintain it may require no dan- 
 gerous exposure and no cruel sacrifice, but 
 only vigilant activity ; but, if the call should 
 come, it would be the duty of every citizen 
 to offer freely upon the altar of its defense 
 his possessions, his person, and his life.
 
 INDEX 
 
 Absolutism, no place for, in 
 
 our system, 129, 130 
 danger of recurrent, 272- 
 
 275 
 
 royal, 36-38 
 "Alcoran de Louis XIV" 
 
 on Machiavelli, 29 
 Althusius, Johannes, de- 
 clared sovereignty a 
 right inherent in the 
 body politic, 69, 70 
 Ambassador, meaning of 
 
 salute to, 12 
 American Revolution, the, 
 
 106, 107 
 
 character of, 235-238 
 Arbitrary power must be 
 guarded against, 273- 
 274 
 Assimilating power of the 
 
 State, 13-15 
 
 Austin, John, philosophy of 
 jurisprudence of, 97- 
 100 
 
 dogmatic denial of inter- 
 national law by, 99 
 Authority, absolute, neither 
 in the individual nor in 
 numbers, 115-117 
 
 Authority, rightful, ability 
 of, to compel obedi- 
 ence, 6 
 
 true principle of, in 
 nature of being to be 
 ruled, 44 
 
 seat of public, 61-65 
 question of, 117-120 
 Authority of the State, 
 existence of, before a 
 theory of its nature, 
 64 
 
 impersonality of, 80-84 
 since it resides in reason 
 as objective and im- 
 personal, 81, 82 
 true nature of, 76-79 
 
 Barbarossa and his cour- 
 tiers, Bulgarus and 
 Martinus, 68 
 
 Bodin, Jean, political phi- 
 losophy of, 30-34 
 defect in conception of 
 sovereignty of, 32- 
 33 
 
 Body politic as a moral or- 
 ganism, sovereignty in- 
 herent in the, 70, 71 
 
 277
 
 INDEX 
 
 Bossuet on the divine right 
 of kings, 38, 39 
 
 Bourbon dynasty, the, and 
 "divine right of kings," 
 39 
 
 Brissot and war on kings, 
 42 
 
 Bryce, James, on the Su- 
 preme Court, 265 
 
 Byzantines, reception of 
 ambassador by the, 12 
 
 Capital and labor, relations 
 of, 154-157 
 
 Caste established, 6 
 
 Catherine de Medici intro- 
 duced Machiavelli into 
 France, 28 
 
 Charles V, Emperor, close 
 student of Machiavelli, 
 28 
 
 Christina, Queen of Sweden, 
 annotated a copy of 
 Machiavelli's "Prince," 
 28 
 
 Church and State, 15-19 
 
 Citizen, as law-maker, 181- 
 
 229 
 
 as subject to law, 233- 
 275 
 
 Civilization, the totality of 
 human culture under 
 the State, 14 
 
 Class interests no basis for 
 speciallegal rights, 160- 
 161 
 
 Command, power of, per- 
 manent possession of 
 the chief, 6 
 
 Community life, primitive, 
 
 3-5 
 
 conservatism in, 50 
 not self-conscious, 7, 8 
 order a necessity in, 25 
 relations of men in, be- 
 yond control, 47- 
 48 
 
 slow development of 
 social conscious- 
 ness in, 48 
 Community of property. 
 
 See Property 
 Conflict between religion 
 
 and the State, 17-19 
 Consciousness, reflective so- 
 cial, not equally pos- 
 sessed, 49 
 
 slow evolution of, 48 
 Constitution, Federal, a bar 
 to revolution, 241-245 
 a law for legislation, 170 
 as a guarantee of rights, 
 
 169-171, 186-191 
 attacks upon, 200-204 
 Chief Justice Marshall 
 on, 255-256, 257-258 
 effect of guarantees of, 
 
 198-200 
 extension of guarantees 
 
 of, 195^200 
 James Madison on, 174- 
 
 177 
 nature of opposition to, 
 
 204-207 
 
 opposition to, 171-174 
 purpose of, and first ten 
 amendments, 193- 
 195 
 
 278
 
 INDEX 
 
 Constitution, 13th and 14th 
 amendments to, 196- 
 197 
 
 Constitutionalism, conflict 
 of, with imperialism, 
 214-217 
 
 principles and person- 
 alities in, 217-220 
 Consumer and producer, re- 
 lations of, 158-161 
 Contract, no evidence of, in 
 early evolution of the 
 State, 7 
 Cujus regio, ejus religio, 37 
 
 Danton and the Commune, 
 
 42 
 
 Declaration of the Rights 
 of Man and of the 
 Citizen, 113-114 
 only a declamation against 
 
 royalism, 238 
 
 Democracy, based on mu- 
 tuality of obligation, 
 164-165 
 danger of authoritative, 
 
 220-223 
 
 government by official 
 oligarchy, 223- 
 229 
 
 may be imperial and un- 
 constitutional, 215- 
 217 
 
 Dicey, Professor, on the 
 American Constitution 
 as the supreme law of 
 the land, 269 
 
 Divine right of kings, 35-39 
 theory of, 65-68 
 
 Divine right of kings, re- 
 jected by John Locke 
 and Jean Jandun, 66-67 
 
 Divine will, objective and 
 impersonal, as being 
 no quality of the hu- 
 man individual, 85 
 
 Dred Scott decision, Lin- 
 coln on the, 181-186 
 
 English Parliament, omni- 
 potence of the, 252-253 
 
 Enterprises, large, drastic 
 laws against, 159-161 
 
 Equalization, laws of, 161- 
 162 
 
 Faguet, Emile, on the 
 French Revolution, 
 108-109 
 Force, history the story of 
 
 triumphant, 9-12 
 insufficient to inspire re- 
 spect, 60 
 preeminence of, in the 
 
 State, 21-24 
 seems still the basis of 
 
 the State, 271-272 
 the primal law of the 
 
 State, 8 
 
 Fortunes, excessively great, 
 least likely to be af- 
 fected by radical legis- 
 lation, 209 
 Fouche", on the omnipotence 
 
 of the people, 112 
 France, under eleven con- 
 stitutions since the Rev- 
 olution, 239-241 
 
 279
 
 INDEX 
 
 Frederick II, extorted the 
 decision that the Em- 
 peror is lex animata in 
 terris, 67-68 
 Frederick the Great, on 
 
 Machiavelli, 29-30 
 French Revolution, the, 
 against royal author- 
 ity, 238 
 character of, 107-113, 
 
 238-241 
 
 "supreme power" hi the 
 hands of the people 
 in, 40-43 
 Fundamental law, necessity 
 
 of a, 164-177 
 substantial value of, 189- 
 
 190 
 
 supremacy of, over ex- 
 temporaneous legis- 
 lation, 268 
 surcharging of, 191-193 
 
 Government, by official oli- 
 garchy, 223-229 
 fundamental problem of, 
 
 262-265 
 Governments, all types of, 
 
 tend to tyranny, 59 
 composition and form of, 
 
 19-21 
 
 Group ruled by will of the 
 stronger, 5 
 
 Hague, The, interest of 
 governments in con- 
 ferences at, 270 
 
 Henry III, a student of 
 Machiavelli, 28 
 
 Henry IV, a student of 
 Machiavelli, 28 
 
 Hero worship, 61-63 
 
 History, superior force the 
 key of, 9-12 
 
 Human activities, largely 
 product of unconscious 
 causes, 47^18 
 
 Human mind, a construc- 
 tive power, 59 
 
 Human personality, en- 
 titled to consideration, 
 universally recognized, 
 138-14.2 
 
 Imperium, development of 
 
 conception of, 93-94 
 Jean Bodin on, 31 
 
 Individual absorbed in per- 
 sonal needs, 49 
 
 Industrial freedom, right 
 to, natural and inher- 
 ent, 147-148 
 
 Initiative and referendum, 
 207, 211-213 
 
 Instinct and habit domi- 
 nate, 49 
 
 Instincts, in primitive hu- 
 man life, 3 
 
 primary social, most per- 
 sistent, 4-5 
 
 International law, John Aus- 
 tin's denial of, 97-99 
 
 International tribunal of 
 justice, obstacles to an, 
 269-272 
 
 Iredell, James, on the Con- 
 stitutional provisions 
 for a judiciary, 247-250 
 
 280
 
 INDEX 
 
 Jandun, Jean, on sover- 
 eignty conferred by the 
 people, 66-67 
 Judicial authority, attack 
 
 on, 246-251 
 
 Webster, Daniel, on the 
 judicial power, 267- 
 268 
 Judicial function, value of 
 
 the, 261-265 
 
 Judicial oligarchy, the al- 
 leged, 257-260 
 Judicial supremacy, doc- 
 trine of, 265-269 
 obstacles to, 269-272 
 Justinian on will of the 
 prince and sovereignty 
 of the people, 67 
 
 Kings. See Divine right of 
 
 kings 
 Knight, from armed, to 
 
 King, 50-54 
 
 Labor and capital, relations 
 
 of, 154-157 
 Lamoignon, on the divine 
 
 right of kings, 38 
 Law, as a mutual obliga- 
 tion, 135^177 
 as a sovereign decree, 91- 
 
 131 
 cannot issue from mere 
 
 arbitrary will, 105 
 conceived as command- 
 ment, 95-101 
 imposed by natural neces- 
 sity, 5 
 
 Law, John Austin's philoso- 
 phy of, 97-99 
 made to seem unjust and 
 
 odious, 96 
 
 meaning of, unknown to 
 primitive communi- 
 ties, 4 
 
 mode of behavior, 7-8 
 natural, the first, 8 
 not derived from will but 
 
 from reason, 81 
 of United States not 
 commandments so 
 much as agreements, 
 100 
 
 subjects to and makers of, 
 may be the same, 99 
 supremacy of, 129-131 
 ultimate foundation of, to 
 be sought in virtue 
 of citizen, 81 
 
 Law-making power regard- 
 ed as unlimited devel- 
 oped conception of sov- 
 ereignty, 93-94 
 Legislation en masse hardly 
 
 conceivable, 94 
 Legislative authority, prop- 
 er limit of, 135-137 
 Letters, eminence in, ap- 
 propriated for glorifi- 
 cation of the State, 13 
 Liberty, the right to, 146- 
 
 149 
 
 Liberty of action, impedi- 
 ments to, 51-54 
 Life, human, in its primitive 
 
 stages, 3 
 the right to, 142-146 
 
 281
 
 INDEX 
 
 Life, the State exists to 
 guarantee, 144 
 
 Lincoln, on the Dred Scott 
 
 decision, 181-186 
 on the rule of the ma- 
 jority, 188 
 
 Locke, John, announces and 
 defends the sovereign- 
 ty of the people, 66 
 
 Louis Napoleon, subordina- 
 tion of anation to, 190- 
 191, 211-212 
 
 Machiavellian conception of 
 
 the State, 24-27 
 influence of, in Europe, 
 27-30 
 
 Madison, James, on the 
 purpose of the Federal 
 Constitution, 174-177 
 
 Majestas, Jean Bodin on, 31 
 or sovereignty, 93 
 
 Majority, advocates of the 
 unqualified will of the, 
 200-204 
 
 the only true sovereign of 
 the people, 188-190 
 
 Marshall, John, on the au- 
 thority of the Supreme 
 Court,251, 255,257-258 
 
 Martin, Luther, on the 
 power of the judiciary 
 under the Constitu- 
 tion, 250 
 
 Mechanic arts appropriated 
 by the State, 13 
 
 Monarchy, absolute, more 
 oppressive than feudal- 
 ism, 54 
 
 Monier, on the Declaration 
 
 of Rights, 114 
 Monopoly, the injustice of, 
 
 154-157 
 
 relation of, to law, 158- 
 161 
 
 Napoleon, Louis, and the 
 French nation, 190- 
 191, 211-212 
 
 Napoleon Bonaparte, 42^43 
 Natural man, the, a con- 
 stant product of na- 
 ture, 47-48 
 
 Obligation, application of, 
 
 to experience, 140-142 
 
 law as mutual, 135-177 
 
 the intuition of, 137-140 
 
 the source of all rights, 
 
 150 7 152 
 
 Official oligarchy, govern- 
 ment by, 223-229 
 Ogier, Bishop, on the divine 
 right of princes, 37-38 
 Omnipotence, all forms of 
 government greedy for, 
 23 
 
 of Parliament, 252-253 
 Order, the first social neces- 
 sity, 25 
 
 Parliament, an act of, and 
 
 an act of a legislature, 
 
 252-253 
 Parliamentary government 
 
 recognized, 55 
 Partition, problem of, 152- 
 
 154 
 
 282
 
 INDEX 
 
 Partition, injustice of mo- 
 nopoly and, 154-157 
 Party platforms, President 
 Wilson on the framing 
 of, 224-227 
 
 Paterson, Justice, on dif- 
 ference between an act 
 of Parliament and an 
 act of a legislature, 
 252-254 
 
 Personal freedom, abolition 
 of guarantees of, fa- 
 vored by many in Unit- 
 ed States, 102-103 
 Personal interests, desires 
 and volitions, 140- 
 154 
 
 Philip II of Spain, a close 
 student of Machiavelli, 
 28 
 
 Plebiscite, a, not an expres- 
 sion of real opinion, 
 211-212 
 
 Political progress and retro- 
 gression, 55-58 
 daily renewal of energy 
 
 essential to, 57 
 "inherent law" of, 56 
 slowness of, 50-55 
 Politics, war the first hard 
 school for science of, 
 8-9 
 
 Power, centralization of, 6 
 overcame feudalism, 53 
 supreme, appeal to reli- 
 gion for authority for, 
 of the State, 34-39 
 Jean Bodin's sovereignty, 
 31-32 
 
 Power, transfer of, to the 
 people and the French 
 Revolution, 41-43 
 violently acquired in 
 
 Roman Empire, 67 
 "Prince, The," of Machia- 
 velli, 25-28 
 Prince, the, should render 
 
 account to no one, 39 
 Principles and personalities, 
 
 217-220 
 Producer, how much to 
 
 each? 152-154 
 Producer and consumer, re- 
 lations of, 158-161 
 Property, alleged commun- 
 ity of, 162-164 
 problem of partition of, 
 
 152-154 
 
 the right to, 149-152 
 Public opinion, relation of 
 reform to, 210-214 
 
 Reason, authority resides 
 
 in, 82-84 
 not an arbitrary faculty, 
 
 81 
 
 objectively entirely im- 
 personal, 81-82 
 Reform, alleged constitu- 
 tional barriers to, 207- 
 210 
 relation of, to public 
 
 opinion, 210-214 
 Religion, appeal to, for idea 
 of supreme power of 
 the State, 34-39 
 appropriation of, by the 
 State, 15-19 
 
 283
 
 INDEX 
 
 Religion, conflict between, 
 
 and the State, 17-19 
 Revolution, greater num- 
 ber of modern States 
 offspring of, 234-235 
 Richelieu, esteemed Machia- 
 veffl's" Prince "highly, 
 28 
 
 Right and wrong, distinc- 
 tion between, 78-79 
 respected by savages, 138- 
 
 139 
 
 Right to command does not 
 
 lie in mere force, 32-34 
 
 Rightfulness, theory of 
 
 "rights" a denial of, 
 
 136-137 
 
 Rights, community of, 121- 
 
 123 
 
 Constitution as a guar- 
 antee of, 169-171 
 natural and inalienable, 
 
 the law, 128, 136 
 natural and inherent, 143- 
 
 146 
 not merely personal and 
 
 transient, 137-140 
 public authority founded 
 on respect for, 118- 
 120 
 relation of, to law, 123- 
 
 128 
 Robespierre, and the culte 
 
 de la Raison, 42 
 Roman emperors apotheo- 
 sized, 36 
 
 Rousseau, on sovereignty as 
 an attribute of the peo- 
 ple, 40 
 
 "Ruler" and "ruled," per- 
 sistence of, 9-15 
 
 Rules of action the begin- 
 ning of law, 92-94, 
 136 
 
 Sixtus V, Pope, makes a 
 digest of Machiavelli's 
 "Prince," 28 
 
 Slavery, conquered tribe re- 
 duced to, 5-6 
 Lincoln on the Dred Scott 
 
 decision, 181-186 
 Social change, first great 
 
 obstacle to, 50-51 
 Social legislation, demands 
 of advocates of, 204- 
 207 
 Society, only the few reflect 
 
 on condition of, 49 
 totality of wealth does 
 
 not belong to, 163 
 Sovereignty, absolute, myth 
 
 of, 101-106 
 a denial of human 
 
 rights, 115-120 
 American Revolution 
 a revolt against, 
 235-236 
 
 conception of, as inher- 
 ent in the body po- 
 litic (Althusius), 69- 
 71 
 
 development of, 93-94 
 Jean Bodin's, 30-32 
 Rousseau's, 40, 66 
 essential to existence of 
 State, but not un- 
 limited, 104 
 
 284
 
 INDEX 
 
 Sovereignty, subject to limi- 
 tations of its source, 
 121 
 
 popular, doctrine of, has a 
 faulty foundation, 80 
 extinguished by the 
 breath of the dic- 
 tator, 113 
 French Revolution and, 
 
 107-113 
 
 genesis of, 106-120 
 State, the, cannot be per- 
 mitted to be unjust, 
 105 
 
 conception of, the same 
 to Louis XIV and 
 the leaders of the 
 French Revolution, 
 unlimited power, 
 109-113 
 exists to guarantee the 
 
 right to Me, 144 
 made to appear the ene- 
 my of the common 
 man, 96 
 
 neither an embodiment of 
 force nor realization 
 of a human ideal, 91 
 recognized function of, 
 
 92,93 
 right of, to declare war, 
 
 145, 146 
 
 sovereign power, but not 
 unlimited, essential 
 to existence of, 104 
 true foundation of, the 
 community and cor- 
 relation of rights, 
 120-123 
 
 State, the, as an embodi- 
 ment of force, 3-44 
 
 a divine institution, 35-36 
 
 a primal reality whose 
 law is force, 8 
 
 appeal to religion for au- 
 thority for supreme 
 power of, 34-39 
 
 appropriation of religion 
 by, 15-19 
 
 aspires to control activi- 
 ties of men, 14 
 
 assimilating power of, 13- 
 15 
 
 chief agent of human 
 progress, 15 
 
 emergence of, 7-9 
 
 force the effective attri- 
 bute of, 21-24 
 
 government by, 19-^21 
 
 idle theories of origin and 
 nature of, 4 
 
 Jean Bodin's conception 
 of sovereignty of, 31- 
 33 
 
 Machiavellian conception 
 of, 24-30 
 
 persistence of rule of force 
 in name of, 9-12 
 
 repudiation of, as irre- 
 sponsible power, 39- 
 41 
 
 transfer of power to peo- 
 ple and the French 
 Revolution, 41-43 
 
 true theory of, not in 
 
 power alone, 43-44 
 but in the virtue of the 
 citizen, 44 
 
 285
 
 INDEX 
 
 State, the, as a human 
 ideal, 47-87 
 
 a responsible entity, 73- 
 75 
 
 exists de jure but also sub 
 jure, 71-72 
 
 has authority because it 
 is a moral organism, 
 70-71 
 
 impersonality of author- 
 ity and, 80-84 
 
 legibus solutus est, 74-75 
 
 "natural man" and, 47- 
 48 
 
 parliamentary govern- 
 ment,recognized, 54- 
 55 
 
 principles of, justified be- 
 fore the bar of rea- 
 son, 87 
 
 slowness of political pro- 
 gress, 50-55 
 
 sovereignty conceived as 
 inherent in the body 
 politic, 69-72 
 
 spontaneously came into 
 being, 48 
 
 substitution of thought 
 for force, 58-60 
 
 the foundation of, 85-87 
 
 the seat of public au- 
 thority, 61-65 
 
 the true nature of au- 
 thority, 7^79 
 
 theory of divine right, 
 
 65-68 
 Status, social, development 
 
 of, 5-6 
 Stranger, distrust of the, 4-5 
 
 Subordinates, authority con- 
 ceded to, 6 
 
 Supreme Court of United 
 States, alleged judicial 
 oligarchy, 257-261 
 alleged usurpation of the, 
 
 251-256 
 constitutional provisions 
 
 for, 248-251 
 James Bryce on the, 265- 
 
 266 
 
 Martin and Patterson on 
 the authority of the, 
 251-254 
 
 Symbols of the power of the 
 State, 11 
 
 Talon, Omer, on the divine 
 
 right of rulers, 38 
 Thought, not readily trans- 
 formed into reality, 50 
 substitution of, for force, 
 58-60 
 
 United States, laws of, not 
 so much command- 
 ments as agreements, 
 100 
 
 United States Supreme 
 Court. See Supreme 
 Court. 
 
 War, first hard school for 
 
 science of politics, 8-9 
 
 offensive and defensive, 
 
 right to declare, 143- 
 
 144 
 
 286
 
 INDEX 
 
 Webster, Daniel, on the 
 judicial power, 267-268 
 
 Wilson, James, on the pow- 
 ers granted to the Su- 
 preme Court, 250 
 
 Wilson, President, on fram- 
 ing party platforms, 
 224-228 
 
 Wolf, sponsor for the State, 
 11 
 
 (1)
 
 \ 
 \ \ 
 
 \
 
 640 
 
 Hill, David Jayne. 
 The People's Govenment. 
 
 Annex. 
 SCRIPPS INSTITUTION LIBRARY 
 
 UNIVERSITY OF CALIFORNIA