Ideals of the republic

Preface

The purpose of the present volume is to trace out those fundamental ideas, social and political, to which America owes peculiarly her progress and prosperity, and to consider the application of those ideas to present conditions. The substance of these chapters is comprised in occasional lectures given by the author in 1906-08 at the Johns Hopkins University, to close a connection of seventeen years with its Historical Department.

September, 1908.

Chapter I The Rights Of Human Nature

Modern diffusion of news and influence — AxeLaIcs's new example to Europe — human rights as defined by Declaration of 1776 — 'origin of such maxims — John Locke and our Revolutionary leaders — life, liberty and the pursuit of happiness — property and family rights — man's real entrance into political society — rights unalienable and rights by sovereign favor I

Chapter II

The equal creation of mankind — equality in unalienable rights — natural endowments as affected by environ and education — theories of heredity and of natural equality compared — American experience as to leaders exceptionally great — 'Social inequalities reconciled — a final difficulty as to racial distinctions — historical changes, ancient and modern, in leading types — ethnological study of the negro — Indians, Africans and Asiatics in our American experiment — the racial problems of to-day — universal brotherhood in the future, or else the separate independence of races 23

Chapter III

Relation of individual to organized society — natural rights as adapted to citizenship — definitions under our amended vii viii CONTENTS constitution — civil rights and their limits — present fundamental maxims considered — due process of law, just compensation, habeas corpus, restricted right of search — safeguards in criminal prosecution: jury trial, evidence, etc. — fair bail, punishments and fines — testimony by the accused — present methods in criminal procedure imperfect , 47

Chapter IV

Political and civil rights distinguished — allegiance and modern self -expatriation — freedom of speech or press — freedom to peaceably assemble, petition, etc. — local self-government favored — army, navy, militia — treason and its punishment — insurrection or civil war — American experience in 1866 — participation in government as office-holder — tests and requirements — participation by voting — modern extension of suffrage, ballot reforms, etc. — closer popular government by referendum or initiative — strength of an intelligent democracy — religious rights 71

Chapter V

This the fundamental basis in American conception — governments many and independent — a public strength and security — theory of compact or common consent — good of the whole, not of greatest number — government essential to society, not a punisher only — men born and created equal — religious inspiration of our founders — other forms of government by consent than republic — right to reform or alter institutions — respect for custom and existing government — the Dorr rebellion and its lesson

CONTENTS ix

Chapter VI

American political calendar fixed — March 4th and national elections — origin of our written schemes of government — colonial charters and the theory of popular compact — declaration of rights and a framework — advantage and disadvantage of written schemes of government — interpretation of a written text — methods of amendment — rigidity or elasticity in construction — popular self -constraint — public opinion the final arbiter, if court fails in duty in

Chapter VII

American and English documents of freedom — ours a compound scheme: e pluribus unum — colonies developed into States — State constitutions popularized; the referendum, etc. — colonial difference — Union reached with difficulty — colonial tendencies to unite — Confederation; the more perfect Union — not national to-day, but federo-national — constitutional construction in federal courts — relative authority — frequent recurrence to fundamental principles 133

Chapter VIII

Natural and social or political freedom — full individual freedom impossible — just and reasonable restraints considered — religion, laws and government — Mill's essay on liberty — despotic and liberal institutions — individualism not a true democracy — the Mill theory too broad — restraints upon drink, etc. — Bellamy's dream of socialism — all government imports authority — ideals of conformity should be cherished 158

CONTEXTS

Chapter IX Three Departments Of Government

Separation of powers, legislative, executive and judiciary — the Montesquieu maxim — each department independent of the other, but all answerable to the people — legislature and a representative system — the Roman senate — local self-government in its origin — Parliamentary government compared with our own — how far initiative and referendum may apply — the American executive, State and federal — rotation and stability — the veto power, etc. — our judiciary and its functions — checks and balances in the three departments 182

Chapter X Parties And Party Spout

Two opposing parties not alwaj-s needful — eras of good feeling — party spirit. English and American — love of country paramount — parties should be agencies of the people for definite achievement — parry organization in our history — " Republican " and "' Democratic " machines — independence in politics — power of the press and oratory — recent reforms : the Australian ballot, primaries, voting machines, etc. — voters above party managers 207

Chapter XI

Servants or agents at the law — public servants answerable to their masters, the people — public employment freely open — sinecures, nepotism, rule of rotation — spoils or civil sen-ice rnethods — boards and commissions — recent municipal experiments in simplified rule — theory of three departments here inapplicable — public servants and public-utility concerns — our post office and the railways — government regulation rather than ownership 232

CONTENTS xi

Chapter XII

Its relation to social equality — the two correlated forces of American life — our social development in such respects — equalizing tendencies should restrain the strife to surpass — modern corporate methods in business — responsibility of directors — labor and capital — great contrast of wealth and poverty undesirable — social duties of the rich and prosperous — duty of government by indirect checks, etc. — tariff, income and inheritance taxes

— government prevention better than punishment — punishment should be with forbearance — serenity in rule better than severity — inordinate greed our radical trouble

— the promotion of good humor 259

Chapter I The Rights Of Human Nature

THE round world which we inhabit seems at this late day smaller to grasp and comprehend in its surface life than ever before; and this, notwithstanding its constant increase in numbers, its complexity of peoples and pursuits. The rapid and universal diffusion of daily news accounts largely for the change wrought in this respect. We may not be more patriotic, more earnest, stronger in natural vigor and the power to construct and originate than were our ancestors of a hundred years or more ago, but we see and touch things in much broader relations than they ever did or dreamed of doing. Take, for instance, the immense development of steam transportation by land and water during the last sixty years, which brings countries, once far apart, so close together ; which enables us to traverse distant parts of the globe once separated, or indeed to go wholly round it. Think, too, of the marvellous triumphs achieved in the instantaneous transmission of news by the electric spark,— with cables and a wire ligature, or by oral converse through the telephone for long distances. All such inventions draw the human race into closer intercourse, change the old laws of commerce and trade, and with the aid of our modern journalism, enterprising as never before, bring the chronicle of distant nations and their rulers into the full meridian light of a single day ; exposing the public conduct of human affairs, national or international, the acts or accidents of life, to the constant and contemporaneous inspection and criticism of the whole civilized world, as though before some vast tribunal constantly in session.

How differently might our Revolution of 1776 have worked out, had not these thirteen colonies been practically remote from the mother country, when they threw off their allegiance and pronounced unitedly for freedom. How differently developed might have been certain crises in our Civil War which depended upon European combinations and diplomacy, had not the Atlantic cable, whose success we prematurely proclaimed in 1858, lain a dead mass of wire in the ocean's bed, until renewed after the Union had been re-established.

Out of this modern approach to a combined universal knowledge and forcefulness come a closer conformity or rivalry in government methods, a convulsion of social elements favorable to democracy, and a sort of comprehensive review, from day to day, of the pageant of passing events the world over, with the consequent force applied of an international public opinion daily formulated. " The Parliament of man, the federation of the world," may yet be realized on this globe by another century.

Yet, scarcely a century ago, thrones throughout

Europe were overturned, blood was poured out profusely, revenues were forcefully exacted and prodigally spent. Such are the direful perils with which one new century or another opens. And as Lord Byron, early in the nineteenth century, hailed this new republic across the seas where freedom's sun then shone serenely, while on his own continent " the name of commonwealth was past and gone," so did the American people, in those years of their youthful strength, confidently hold in sight of that older continent the torch of their own example and maintain the faith of those precious institutions which the fathers had struggled to establish. " We stand the latest and if we fall probably the last of mankind," was the adjuration of one of our own orators, which sank into heedful minds.

Here, then, developed thus early, on virgin soil, a United States of America, swellingly proud of the stars and stripes and other emblems of a sovereignty ; encouraging by their own high example the weaker peoples of Spanish and Indian origin who sought a similar system of self-government free from all European dictation ; we shed the light of rational liberty as a beacon to the oppressed of mankind the world over. And the cause of America's influence already, as a world's power, was the knowledge she diffused on problems of self-sovereignty, and the new faith she inspired through institutions deeply grounded upon the universal rights of human nature.

Let us, in these chapters, begin by discussing at length those fundamental truths announced for ourselves and for all nations or commonwealths organized upon a popular plan after our own example, in the noble phrasing of the Declaration of 1776: 11 That all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness; that to secure these rights government is instituted among men."

These truths were announced as self-evident, and were held to be such by all who signed the instrument at Philadelphia and made themselves responsible for the ordeal of bloody resistance to Great Britain at the peril of lives and fortunes. Furthermore, they were set forth by our Continental Congress solemnly and devoutly. Like the agreement of the people of England on parental soil, in an earlier century, when they rebelled against their King, Americans of 1776 claimed such individual rights as the endowment of their Creator. It was not that men are simply born equal in respect of such rights — perchance under some blind and fatalistic scheme of natural necessity — but that they are created so, and that the intelligent source of our dignified state of existence, whence each derived so noble a birthright with a portion of divine intelligence, is the Almighty Himself. America holds, and the people of all civilized nations in all ages should hold, as essential to any just progression of the human race, a rational belief of some kind in man's intelligent subordination to God's law, in our eternal derivation for an eternal life, in each one's personal responsibility for his own career in this life, with preparation for an immortal existence hereafter. Men of learning grow material on this point in their ardor for material facts ; yet materialism causes the one fascinating secret of nature, the one problem that interests all mankind, to elude and escape them. M Never," observes Canon Scott-Holland, " was the contrast more vivid or more crushing than now, between the astounding practical efficiency of our scientific handling of earth's material treasures and the futility of our search for the hidden mystery."

Truths " self-evident," however, must long have been recognized by a people before they can be rationally promulgated in such a form or accepted as an inducement to cooperative action. The Virginian who composed this Declaration, did not claim to have originated such a philosophy; nor did Franklin or John Adams, his elders of the subcommittee who fully approved what he had drafted ; nor did those Continental delegates who voted and signed, with but few verbal changes, the solemn instrument. When challenged in later life as to his authorship, Jefferson disclaimed all pretence of inventing what he had here formulated, but said that he had expressed himself simply as the thoughts shaped themselves out in his own mind, turning neither to book nor pamphlet while he wrote the paragraphs. This assertion we may well believe. John Adams, in a letter of 1822, which was meant to serve history, gave due credit to the composition as it came from one whom his colleagues trusted, reporting hastily the instrument to Congress in Jefferson's own handwriting. But with somewhat captious jealousy he adds : " there is not an idea in it but what had been hackneyed in Congress for two years before." And in proof of this he refers to a Declaration contained in the Journals of Congress of 1774, — as also to a Boston pamphlet voted and printed by the town of Boston before the first Congress met at all, which was composed, he says, by James Otis and pruned and polished by Samuel Adams. 1

" Hackneyed " in ideas as to the whole instrument is strong language to use. Xo document which for the first time announces a solemn Revolutionary purpose can fairly be deemed a document of hackneyed ideas; its very essence is that of a new determination. For not until leaders and a constituency are fully ripe for throwing off their accustomed allegiance as subjects do they adopt the tone of defiance in place of protest and petition; still less do they announce the intention to plant themselves upon the assertion of natural and individual rights as a basis for new institutions to be founded in and through their own consent.

The address made (October 26th) by the Congress of 1774 is before me, with its "humble petition," "earnestly beseeching of his Majesty a gracious answer," and wishing him " a long and glorious reign." Wrongs suffered are here set forth, to be sure, as a catalogue of grievances; but they are stated astutely, as rather the infliction of legislators in Parliament, of the governors and other agents sent hither by a sovereign, than of the sovereign himself. For practical redress, the effort, first of all, had been to separate the King from bad counsellors and trust to his personal intervention at home to correct the grievances of these distant subjects. So Congress, in 1774, on the common behalf, vouched for the people as the King's " loyal

x 2 John Adams's Works, 512.

subjects, who fly to the foot of his throne and implore his clemency for protection." " We ask but for peace, liberty and safety; we wish not a diminution of the prerogative, nor do we solicit any new right in our favor." " We yield to no British subjects in affectionate attachment to your Majesty's person, family or government." And proceeding in such a strain Congress defies the most subtle and inveterate enemies of these colonies to trace the unhappy differences in America to an earlier period or to any other causes than those herein stated. All this language of dutiful supplication suited the prevailing temper," more especially in those middle and southern colonies where oppression had not been great. In short, the Confederate Congress of 1774 spoke, while war clouds were gathering, the sentiment of that earlier year, just as our national Congress in 1860-61 made utterance on the slavery question; each conforming to a reluctant public sentiment at a time when relief was sought and hoped for without resort to dire extremities. But the Declaration of Grievances, to which John Adams more particularly refers, claims boldly 1 that these colonies " are entitled to life, liberty and property, and they have never ceded to any sovereign power whatever a right to dispose of either without their consent."

A sterner document, no doubt, was that to which John Adams referred as emanating from the town meeting of Boston, still earlier. In the press of that town was advertised, during 1773, " The American alarm, or the Bostonian plea for the rights and

1 By way of amendment proposed by John Sullivan of New Hampshire to the original draft. See 2 John Adams's Works, appx. 535.

liberties of the people." 1 All this, however, we may surmise, in default of clearer testimony, was the language of rebellious opposition, not of pronounced revolution; and Massachusetts in such utterances was quite in advance of the other colonies.

But Boston had, still earlier, disseminated her views of the coming crisis by local correspondence, and indeed had published them to the world, by way of self-defence against the crown. In fact, an earlier Boston pamphlet, which records the proceedings of a town meeting held in November, 1772, seems really to have contained the germ of Jefferson's later statement of the rights of mankind, such as I am considering; and most likely it is that pamphlet to which John Adams's letter refers in connection with James Otis's composition. For here the inhabitants in their " vindication to the world," published a committee report which set forth (1) the rights of these colonists as men, as Christians and as subjects, and (2) the infringement and violation of those rights from which they suffered. To this enumeration of natural rights I shall refer presently. 2

Once more, some have claimed that our Declaration of 1776 bears a strong resemblance to that of the United Netherlands in 1581. True, the action of our thirteen colonies parallels in history that of Holland nearly two centuries earlier ; but no careful

1 The Massachusetts Gazette reports this town meeting of 1773 as issuing " an earnest and inflammatory address, indignant over the wrongs from which that province suffered," which recited at length the various encroachments made upon the inherent privileges of Massachusetts freemen by the parent government, and declared indignantly that these rights they would not subject to " any usurper under heaven." I cannot find an authentic copy of this address.

3 See copy in Boston Athenaeum which I have examined.

reader of Motley's ' ' Dutch Republic ' ' would undertake to pronounce the two instruments of independence at all alike in expression. There is not the slightest likelihood that the earlier one in its strange tongue served in any sense as a model for the later. Motley himself, who taught his fellow-countrymen to :ompare the two revolutions by his scholarly research among the records of the Netherlands, bells us positively in his narrative that the old Dutch Declaration, in respect of primal truths, put forth simply the idea that all government should De conducted for the benefit of the governed, and he idds that its framers were content with their own listoric and monarchical institutions as then existing, rhis Dutch instrument argued approvingly the divine ight of kings, even while justifying the people n the dethronement of their monarch. " Like the ictors in our own great national drama, before the crisis came, they were struggling to sustain, not to )verthrow ; unlike them, they claimed no theoretical reedom for humanity, promulgated no doctrine of popular sovereignty." x

But to inquire more closely how those first truths :ame to be proclaimed so confidently in our great locument of 1776 and upon what philosophy of ;ivil government this American Union of ours came )ermanently and historically into being. The ixordium, with its unique and original expression )f basic human rights, has, most of all, immortalized ;his instrument and made it educational to posterity. Nhat changes have already been wrought in human

1 3 Motley's Dutch Republic, 51 1 (Part v, c 4).

government, through the steadily pervading force of those terse pellucid phrases, like dropping water! Our states have, one by one, for more than a century, incorporated those same formulas of equal rights and government by consent into their separate constitutions; emulous and struggling republics in the two Americas, and in Switzerland and elsewhere, and possibly France besides, have copied such phrases, almost word for word, and modelled their own governments upon the same theory; and withal, by the logic of a single strong sentence, we ourselves, as a people, were led to strike the manacles from a race once held subject sectionally because of complexion.

To understand the real origin of those pregnant truths, we recall, at the outset, that our Revolutionary fathers were not only British subjects in allegiance, but, for the most part, of British lineage, speakers of the English language, inheritors of the common law. Other elements of our population, like the Dutch, Swedes, Finns or French Huguenots, themselves identified rather with the European mainland, were comparatively scarce among settlers of that century. Anglo-Saxon or Anglo-Norman by an immense preponderance, our immigrants cherished, with their mother tongue, all those rights and privileges which their sturdy progenitors had wrested from British sovereigns: Magna Charta, trial by jury, habeas corpus, the right of representation and the rest. Such phrases of the common law were familiar to them as " life, liberty, property," or in the English wife's version, " life, liberty, dower." Historically, moreover, our colonial migration was connected with the English civil war, so that the ideals of Hampden, Vane, Sidney and the rest, which the later Stuarts frustrated, grew apace on this side of the Atlantic, while they faded out seemingly at home. Even on parental soil, however, reaction against royal prerogative went far enough to bring to the British people the Bill of Rights of 1689; and that kingly concession, secured through Parliament when resettling the crown, proved to our colonists here an important bulwark.

But it was John Locke, the English author and scholar, whose popular essay on government chiefly and most closely embodied and transmitted to our Revolutionary sires the fundamental ideas of civil liberty which their own progenitors had evolved in that earlier protracted struggle on parent soil. Not a practical framer of institutions, so much as a philosopher and guide in abstract principles — and this the failure of his colonial plan for South Carolina shows clearly — he upheld the doctrine of popular rights, with strong insistence, against all arbitrary rule or oppression, and in that respect our American settlers far and wide became his earnest disciples. His life spanned the vicissitudes of that civil strife in England from which a continental sojourn had detached him largely, and he died in 1704, a great disseminator for posterity.

Locke's claims as a philosopher in other fields of speculative thought we need not consider; but what here interests is the political school of ideas to which he gave such strong direction; though himself indebted much, as he acknowledged, to Hooker, that judicious English divine, whose first principles concerning church polity, he himself developed rather for temporal rule. John Locke, then, more than any other man, cast the mould of this American Republic and drew up as architect the plans of our political fabric. " The natural liberty of man," he contends in his treatise on government, " is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only nature for his rule. The liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative power shall enact, according to the trust put in it." When Locke wrote, the modern distinction between executive, legislative and judiciary functions in a state was not clearly conceived ; so that where he thus speaks of legislature or legislative power, he means civil sovereignty in general, however framed or exercised.

11 Life, liberty, estate " — " life, liberty, property " — these were inherent rights linked together in speech, and familiar to the free-born Englishman as bosom truths, long before Locke's essay was written. It is not property alone, nor life and liberty alone, for whose protection to the individual government is instituted. These three stand chief among the inherent rights of man, but are not the only ones; and Locke himself mentions, as still another, " the liberty of innocent delights," which doubtless means much the same as what Jefferson in our Declaration styled "the pursuit of happiness" — either term being, perhaps, capable of expression in the sense of working out unmolested as of natural right the fulfilment of one's earthly vocation.

In the pursuit of natural and unalienable rights, as thus set forth, the first thing we encounter in human intercourse is the collision of our own individual rights or desires with those of others ; whereupon force asserts the mastery in a state of nature, failing that persuasion which must rudely enough have been applied in primitive times; and hence the weaker rival goes to the wall, deprived and dispossessed. It is chiefly to apply the paramount rule of impartial justice with its remedies or redress, in all such collisions, all such infringement upon one's natural rights, that government with its organized and irresistible force, capable of supremacy, is instituted by the people. " All men by nature are equals," observes Locke; 1 and again, "men being by nature all free, equal and independent, no one can be put [rightfully] out of his estate and subjected to the political power of another without his own consent." a But, as he also concedes, God makes man a social animal and leads him into society. And (we may add) in the social state these fundamental rights of nature require for their due application that no one, in the enjoyment of his own life, liberty, property or the pursuit of happiness, shall molest the corresponding rights of others. Only an organized government, however, can work out such a principle intelligently or efficiently.

Such, then, was the exposition of natural rights and the origin of government with which our forefathers in these thirteen colonies had become fairly familiar, long before they consented to force a rupture with George III and their mother country.

Here upon a new soil, thinly populated and in its primitive wildness, they seemed face to face with nature herself, and capable of working out, in their own collective experience, the primary problems of human society, such as Locke had expatiated upon in his essay. And as time went on and our several colonies grew stronger, the innate love of personal independence and of equality in social condition asserted itself more and more among our inhabitants, while the desire of a separate public existence increased as royal and parliamentary exactions grew burdensome. Nor was it alone the rights of a loyal British subject that the colonist was led here to consider, but whether a life-long and submissive allegiance to Great Britain rested upon him at all as an inherent duty, because of mere birth in the King's dominions; and whether the peculiar conditions which developed this new hemisphere with Europe so far away might not justify him in asserting independence and home rule at a last extremity. All this brought our individual colonist to a study of first principles and the rights of nature, and those principles had become so rooted in men's minds by 1776 that Jefferson could formulate them in his draft without turning to any book for guidance.

In toasts, in mottoes for public occasions, in epigrams of the local press, and in resolutions adopted by town or county political meetings, sententious expressions such as I have quoted were used for popular effect in those pregnant years. Beccaria, an Italian scholar and philanthropist, published an essay on crimes and punishments which circulated in an English translation; and one passage therein which spoke of " supporting the rights of mankind " John Adams used with effect in 1770, in the Massachusetts colony, when defending some patriot soldiers. Still earlier had James Otis by 1763 denounced the transgressions of British rulers as against the province law of Massachusetts and " the rights of mankind." When the Stamp Act was promulgated, our popular protest was " liberty, property and no stamps." John Dickinson, then of Pennsylvania, whose " Farmer's Letters " of 1767 made so profound an impression through these colonies that Bostonians in Faneuil Hall voted him thanks for his vindication of American rights, laid down as a postulate that " government is instituted for the benefit of those governed," and that " the first principles of government are to be looked for in human nature." And as " Farmer " still, in a somewhat later essay, he claimed " liberty, life and property," as rights which men ought to possess, but could not practically, if others had a right of taking them away at pleasure.

Finally Paine's " Common Sense," — that last and anonymous appeal through the press, whose calm and cogent reasoning brought, most of all, our people and Congress in 1776 to the irrevocable decision, — announced the author as an open and resolute friend and a virtuous supporter of " the rights of mankind " and of " the free and independent States of America." And the title-page of his pamphlet quoted with pertinence a couplet from Thomson, the English poet: