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Main currents in American thought An interpretation of American literature from the beginnings to 1920

Vernon Louis Parrington

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