Main currents in American thought An interpretation of American literature from the beginnings to 1920
it stood naked to its enemies. In presence of the skepticism of the
burgesses it could no longer sell its miracles in the open market,
could no longer persuade men that it was God’s vicegerent with powers
of binding and loosing; and with its divine sanctions gone, its
wealth-hoards lay unprotected before the cupidity of king, noble, and
commoner. The spoliation of the monasteries was the prelude to the long
movement of the Reformation in England, and made possible its success.
So long as the church retained its lands and treasure it could not
easily be overturned; so a greedy King and greedy nobles took effective
measures to disarm it, and having got their hands on the substantial
plunder they left to Genevan ministers the lesser business of disputing
over the form and doctrine of the new church. The revolution had
already been accomplished; and this revolution--the transfer from
priest to layman of a third of the wealth of England--was but prelude
to still greater revolutions that were preparing, and which began
with the pouring into England of the gold and silver from the Spanish
treasure-ships. The spoiling of Rome and the spoiling of the Spaniard
were both buccaneering adventures undertaken by zealous Protestants.
Drake and Hawkins--pirate and slaver--were “hot gospellers,” ready
to fight, plunder, or rape for the glory of God and the profit of
England; and it was such men who diverted to London the flood of
Spanish-American silver that issued from the rich mines of Potosi.
Potosi was discovered in 1545, and from that event Adams dates the
rise of the commercial activity that was to prepare the way for the
Industrial Revolution, which came to flower two centuries later.
This vast upheaval that destroyed the older feudal England, was the
immediate outcome of the plundering of India that brought to London the
vast treasure-hoards of the East. The eviction of the peasants from
their lands had already provided a plentiful supply of cheap labor,
the machinery of credit and exchange had been created, and with this
immense influx of capital the Industrial Revolution was a matter of
course. The manufacturers seized control of England and ruled till
approximately 1810, when their authority was disputed by the financiers
who gradually displaced them. The Bank Act of 1844, which yielded the
control of the currency to the bankers, marked the definite transfer
of sovereignty to Lombard Street; Samuel Lloyd, the banker, completed
the work begun in 1523 by Thomas Cromwell, burgess-adventurer--the
work of bringing England under the authoritative sway of the principle
of greed. Since 1844 western civilization has lain helpless under the
heel of the usurer, who levies his tax upon production by expanding and
contracting the currency at will, and rules society through his control
of the political state. The triumph of the economic mind is complete.
The aristocracy which wields this autocratic power is beyond
attack, for it is defended by a wage-earning police, by the side of
which the legions were a toy--a police so formidable that, for the
first time in history, revolt is hopeless and is not attempted. The
only question which preoccupies the ruling class is whether it is
cheaper to coerce or bribe.[722]
_The Law of Civilization and Decay_ is an extraordinarily provocative
study, the main principles of which he elaborated and applied in later
historical studies, the result of which was to emphasize for him the
determining influence of economics and geography in the rise and fall
of empires.[723] Equipped thus with a comprehensive philosophy of
history, he turned in a later work to examine certain aspects of the
play of social forces in America, in the light of universal social
experience. The particular object of his inquiry in _The Theory of
Social Revolutions_ is the machinery of social control developed in
America during the movement of capitalistic centralization, and its
probable adequacy to meet the future stresses of acceleration. The
problem of security for the capitalistic order resolves itself, he
decides, into the problem of a sufficient protective police; and
since every non-military masterclass must depend upon some form of
mercenary Swiss guard, the solution in America has assumed a form not
uncommon in earlier European experience, but which every European
country has learned at bitter cost to reject. In the face of a strong
anti-militaristic public sentiment that forbids a coercive army and
navy, the financial masters have had recourse to the courts; and it is
the eventual effect of such perversion of the courts to non-judicial
ends that he considers in this frank inquiry.
Historically, he points out, the courts have at times exercised two
diverse functions, the judicial and the political; and the problem
of justice and equity before the law, it has been found by long and
bitter experience, resolves itself into the total separation of
the one from the other. The judicial function is that of impartial
arbitrament in accordance with an established _corpus juris_; it is
judgment and not will. The enactment of the law, on the other hand,
is a political function, residing in the legislature. When therefore,
the courts exercise the political function, they not only assert
that the judicial will is sovereign, but they engage in a perilous
struggle for mastership and involve themselves in all the passions
of partisan objectives. Every “dominant class, as it has arisen, has
done its best to use the machinery of justice for its own benefit.”
The temptation to such perversion is perennial; it is the particular
and besetting temptation of an unmartial monied class; and in times
of social stress it becomes acute. In revolutionary crises--as in
England under Lord Chief-Justice Jeffreys and in France under the
Revolutionary Tribunal--the political function overrides the judicial,
the last protection of the individual is swept away, and society lies
helpless before the ruling power. Thus to pervert the legitimate
functions of the courts is a dangerous game to play--most dangerous
for a non-military group for whom the courts are protectors; and yet
it is precisely this game that capitalism in America, heedless of the
teachings of experience, has long been playing. Using the courts as a
police power it has brought contempt upon them and thereby weakened the
arm upon which alone it can hope to rely in periods of acute stress. In
short, capitalism has assumed the functions of sovereignty in America,
but it has refused to assume the responsibilities of sovereignty. To
gain immediate ends it has shut its eyes to future consequences; and
what those future consequences are likely to be Brooks Adams is at
pains to point out.
The kernel of his argument, obviously, lies in the thesis that the
federal courts have assumed political functions; and into this question
he delves with the equipment of the lawyer added to that of the
philosophical historian. “Politics,” he asserts realistically, “is the
struggle for ascendancy of a class or a majority.” Under the “American
system, the Constitution ... is expounded by judges, and this function,
which, in essence, is political, has brought precisely that quality
of pressure on the bench which it has been the labor of a hundred
generations of our ancestors to remove.”[724] Hence, “from the outset,
the American bench, because it deals with the most fiercely contested
of political issues, has been an instrument necessary to political
success. Consequently, political parties have striven to control it,
and, therefore, the bench has always had an avowed partisan bias.”[725]
From so anomalous a situation two curious developments have resulted:
in the rôle of guardians of the Constitution the courts have assumed
sovereign powers over the legislature, and at the same time, by a
clever nonjudicial hocus-pocus they have declared themselves superior
to the Constitution, possessed of the prerogative of dispensation.
How the first came into being Adams traces in detail from the time
of Marbury vs. Madison in 1803, when Marshall asserted a supervisory
jurisdiction over Congress, to Standard Oil Company vs. United States
in 1911, when the Court amended an act of Congress that Congress
had declined to amend. How the second came into being is a curious
story. It arose, according to Adams, from the rigidity of a written
constitution, that having been interpreted narrowly must somehow be
stretched to meet public needs. In such an emergency the “Supreme Court
of New York imagined the theory of the Police Power,” saying in effect,
“in our discretion, we suspend the operation of the Constitution, in
this instance, by calling your act an exercise of a power unknown to
the framers of the Constitution.”[726]
In other words, having, by the assumption of sovereignty, nullified
the legislative power from which relief would naturally come, and
having awakened a hostile public opinion by its narrow interpretation
of contractual rights, the court was embarrassed and looked about for
a loophole of escape; and the most convenient loophole was the novel
doctrine of judicial prerogative:
No legislature could intervene, and a pressure was brought to bear
which the judges could not withstand; therefore, the Court yielded,
declaring that if impairing a contract were, on the whole, for
the public welfare, the Constitution, as Marshall interpreted it,
should be suspended in favor of the legislation which impaired it.
They called this suspension the operation of the “Police Power.”
It followed, as the “Police Power” could only come into operation
at the discretion of the Court, that, therefore, within the limits
of judicial discretion, confiscation, however arbitrary and to
whatever extent, might go on.[727]
The effect of the adoption by the Supreme Court of the United
States of the New York theory of the Police Power was to vest
in the judiciary, by the use of this catch-word, an almost
unparallelled prerogative. They assumed a supreme function which
can only be compared to the Dispensing Power claimed by the
Stuarts, or to the authority which, according to the Council
of Constance, inheres in the Church, to “grant indulgences for
reasonable causes.” I suppose nothing in modern judicial history
has ever resembled this assumption....[728]
It is this amazing principle of the judicial prerogative which sets
the Courts above the Constitution and grants them the privilege of
dispensing Indulgences, that has perverted their functions from the
judicial to the political. If Indulgences are for sale, naturally the
wealthy will buy them. And since corporate wealth is regarded by the
judiciary with a more than friendly eye, it rarely finds difficulty
in securing such Indulgences as it seeks. The Courts have become, in
consequence, not so much the Swiss Guards of capitalism, as a pliant
sovereign lord who dispenses rewards to his favorites. The capitalist
is “the most lawless” of citizens. In his attitude towards the state he
is essentially anarchistic; he evades or nullifies a law that he does
not like, while clamorous for the enforcement of a law that works in
his favor.
If the capitalist has bought some sovereign function, and wishes to
abuse it for his own behoof, he regards the law which restrains him
as a despotic invasion of his constitutional rights, because, with
his specialized mind, he cannot grasp the relation of a sovereign
function to the nation as a whole. He, therefore, looks upon the
evasion of a law devised for public protection, but inimical to
him, as innocent or even meritorious.
This attitude of capital has had a profound effect upon shaping
the American legal mind. The capitalist, as I infer, regards the