The Theory of Social Revolutions | Page 9

privileged classes
seldom have the intelligence to protect themselves by adaptation when
nature turns against them, and, up to the present moment, the old
privileged class in the United States has shown little promise of being
an exception to the rule.
Be this, however, as it may, and even assuming that the great industrial
and capitalistic interests would be prepared to assist a movement
toward consolidation, as their ancestors assisted Washington, I deem it
far from probable that they could succeed with the large American
middle class, which naturally should aid, opposed, as it seems now to
be, to such a movement. Partially, doubtless, this opposition is born of
fear, since the lesser folk have learned by bitter experience that the
powerful have yielded to nothing save force, and therefore that their
only hope is to crush those who oppress them. Doubtless, also, there is
the inertia incident to long tradition, but I suspect that the resistance is
rather due to a subtle and, as yet, nearly unconscious instinct, which
teaches the numerical majority, who are inimical to capital, that the
shortest and easiest way for them to acquire autocratic authority is to
obtain an absolute mastery over those political tribunals which we call
courts. Also that mastery is being by them rapidly acquired. So long as
our courts retain their present functions no comprehensive
administrative reform is possible, whence I conclude that the relation
which our courts shall hold to politics is now the fundamental problem
which the American people must solve, before any stable social

equilibrium can be attained.
Theodore Roosevelt's enemies have been many and bitter. They have
attacked his honesty, his sobriety, his intelligence, and his judgment,
but very few of them have hitherto denied that he has a keen instinct for
political strife. Only of late has this gift been doubted, but now eminent
politicians question whether he did not make a capital mistake when he
presented the reform of our courts of law, as expounders of the
Constitution, as one of his two chief issues, in his canvass for a
nomination for a third presidential term.
After many years of study of, and reflection upon, this intricate subject
I have reached the conviction that, though Mr. Roosevelt may have
erred in the remedy which he has suggested, he is right in the principle
which he has advanced, and in my next chapter I propose to give the
evidence and explain the reasons which constrain me to believe that
American society must continue to degenerate until confusion
supervenes, if our courts shall remain semi-political chambers.
FOOTNOTES:
[1] Charles River Bridge v. Warren Bridge, II Peters, 608, 609.
[2] Fitchburg R.R. v. Gage, 12 Gray 393, and innumerable cases
following it.
[3] See the decisions of the Commerce Court on the Long and
Short-Haul Clause. Atchison, T.&S.F. By. v. United States, 191 Federal
Rep. 856.
[4] Darcy v. Allein, 11 Rep. 84.
[5] 68 Pa. 173.
CHAPTER II
THE LIMITATIONS OF THE JUDICIAL FUNCTION

Taking the human race collectively, its ideal of a court of justice has
been the omniscient and inexorable judgment seat of God. Individually,
on the contrary, they have dearly loved favor. Hence the doctrine of the
Intercession of the Saints, which many devout persons have sincerely
believed could be bought by them for money. The whole development
of civilization may be followed in the oscillation of any given society
between these two extremes, the many always striving to so restrain the
judiciary that it shall be unable to work the will of the favored few. On
the whole, success in attaining to ideal justice has not been quite
commensurate with the time and effort devoted to solving the problem,
but, until our constitutional experiment was tried in America, I think it
had been pretty generally admitted that the first prerequisite to success
was that judges should be removed from political influences. For the
main difficulty has been that every dominant class, as it has arisen, has
done its best to use the machinery of justice for its own benefit.
No argument ever has convinced like a parable, and a very famous
story in the Bible will illustrate the great truth, which is the first lesson
that a primitive people learns, that unless the judge can be separated
from the sovereign, and be strictly limited in the performance of his
functions by a recognized code of procedure, the public, as against the
dominant class, has, in substance, no civil rights. The kings of Israel
were judges of last resort. Solomon earned his reputation for wisdom in
the cause in which two mothers claimed the same child. They were
indeed both judge and jury. Also they were prosecuting officers. Also
they were sheriffs. In fine they exercised unlimited judicial power, save
in so far as they