Nathaniel Hillyer. Egleston.

The North American review (Volume 139) online

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tains more professional demagogues than formerly ; and their
increase has been out of all proportion to the increase of popu
lation. If we compare its daily proceedings with those of
former times, we are struck with the great increase of purely
" buncombe " resolutions. How much more frequent is the small
demagogue's cry of " economy " than formerly ! Every Presi
dential election is now preceded by a foolish wrangle over the
appropriation bills, though the treasury contains millions where
it formerly had hundreds ; but when the election is past, how
ready these " economists " are to squander large sums in mere
sham u investigations ?; ! And how much more frequent than
formerly are measures proposed with a full knowledge of their
absurdity and in the hope and expectation that they may not
pass ; or, if they should pass, then comes the shameless apology
or explanation that they " amount to nothing," and were merely
intended to satisfy some insane local clamor.


Congress contains another element which is comparatively
new. Lucky speculators and stock-jobbers possessors of sud
denly acquired wealth by some capricious and unexpected turn
of good luck seem to be pressing into it from all sides; and as
it would sound very ludicrous to ascribe their elevation to their
brains, it must be put down to their money. It would be quite
as ludicrous to assume that they are somehow miraculously
transformed into statesmen by the mere transfer of their bodies
to seats in Congress, or that their methods of treating questions
of state-craft differ materially from their accustomed method of
treating questions with which they are more familiar, namely,
by the standard of money alone. It ought to create no surprise,
then, if monopolies and moneyed corporations should sometimes
make their power felt at the national capital, and that legislation
should take the direction indicated by the lobby. The marvel
is not that "jobs 77 and legislative scandals should be more fre
quent than formerly, but that they should not be more frequent
and shameless than they are.

We hear a great deal just now about civil service reform,
and all efforts in that direction are highly commendable. They
respond to an enlightened and patriotic sentiment which rises
above all considerations of mere party. But why attempt the
impossible task of cleansing the stream before purifying the
fountain ? Why not adopt the more rational course of purifying
the fountain, and thus prepare the stream to cleanse itself?
Who does not perceive the impracticability of any substantial
or permanent reform in our civil service without the hearty
cooperation of Congress? But this cooperation can never be
obtained so long as congressmen regard civil offices as rewards
for political influence ; and such offices will continue to be so
regarded by them just so long as seats in Congress are won by
promises of reward for services at the primaries. And the
managers of the primaries will continue to decide who shall go
to Congress just so long as more than one-third of the voting
population is illiterate and hopelessly ignorant of their duties
and responsibilities as electors, as is the case to-day in nearly
half the States of the Union. Consequently, with universal or
" tramp " suffrage, no civil service reform worthy of the name
is possible.

To check this downward progress, two methods have been
suggested. One is a system of compulsory education by the


national government; that is, that the government become
paternal in form, and, by playing the role of school-master,
endeavor to educate the masses up to a given standard of intel
ligence and virtue. The other is that, since it was they who put
us on the downward slope to perdition, the State govern
ments shall now put on the brakes, by restricting the privi
leges of the ballot to persons qualified by intelligence to use
without abusing it, and, above all, by abolishing their foolish
constitutional provisions for an elective judiciary for short

The first meets with opposition from the "State Eights"
people. In politics, as in religion, prejudice is sometimes
stronger than principle; and the party that fought national
banks, opposed internal improvements by the general govern
ment, and now relinquishes its cherished dogma of " State
sovereignty" with a sort of mental reservation, would not
readily favor a system of compulsory education by the national
government. The measure is open to the objection, also, that,
even if successfully inaugurated, one generation must pass
away before its benefits could be realized. It would, moreover,
involve some important modifications of our naturalization laws.
Naturalized foreigners have usually passed that period of life
wherein character yields to the plastic hand of the school
master ; but if they were still of teachable age, we could hardly
undertake to educate the illiterate and morally deformed of the
whole world.

The second proposition excites opposition from a class of
humanitarians. Like the Jacobiiis of the first French Revolu
tion, they never weary of shouting, " Universal fraternity and
equality." They assume that any restriction of the ballot im
plies distrust of the people, and that distrust of the people
proceeds from a want of high moral perceptions. Unlike the
Jacobins, they are probably sincere in this belief ; but if we
grant their sincerity, it must be at the expense of their under
standing. For it seems never to have occurred to them that the
question is not one of morals at all, but one of judgment only.
It seems never to have occurred to them that a man may
honestly disbelieve in the political capacity of the mob without
being deficient in Christian or humanitarian principles j that
there is a wide distinction between equality before the law and
equality of the right to govern ; and that it is sheer nonsense


to talk about a thing "being " right 77 or u wrong/ 7 when we only
mean that it is either wise or foolish.

Again, it is objected that any restriction of the ballot, after
suffrage has become so well-nigh universal, is impracticable;
that it implies a higher degree of moral courage than is usually
found in representative assemblies; that demagogues would
oppose, and timid but well-meaning men fear to advocate it ;
and that, as the demagogues would thus have the balance of
power, they would be able to create civil commotion.

Let it be admitted, then, once for all, that no great political
reform has ever yet been inaugurated or carried out by timid
men; and, therefore, that timid men would do well to follow, and
not lead, in a reform like this. Let it be admitted, also, that
demagogues usually oppose whatever they conceive to be an at
tempt to lessen their power ; and that, as qualified suffrage would
be such, they would certainly oppose it. Let it be admitted, fur
thermore, that demagogues of the very worst type are already
powerful in our state and national politics; and that, as they
have no interest in the affairs of government beyond their own
selfish ends, they would most likely not hesitate to create com
motion, if by so doing they might keep themselves in position.
The reply is, that if they are already so powerful as to make
cowards of honest men, that is but an additional reason why the
reform cannot begin too soon, nor be too vigorously prosecuted.
It might indeed create some commotion. There was, according
to the classic poet, commotion in heaven when the arch-dema
gogue was cast out from the celestial kingdom; his disciples
and imitators in the natural world would hardly be more con
siderate. But if it was expedient to hazard the peace of heaven
in order to rid it of his power, why should it be thought inex
pedient to run the same risk here below in order to get rid of
his imps in politics ? The midnight fire-bell, says another of our
classics, is seldom a tocsin of agreeable import; it generally
creates commotion, and the result of the disturbance may be
injurious to weak nerves ; but it is usually accepted by prudent
men in preference to a hopeless conflagration.

No thoughtful man in this country believes for a moment
that things can long continue as they now are. A change of
some sort is inevitable. Either the national government must,
as a defensive measure, establish and maintain a system of
public instruction, quite regardless of " State Eights 7; ; or the
VOL. cxxxix. NO. 336. 36


States themselves must take the initiative, either by estab
lishing efficient systems of public instruction or by a judicious
but impartial restriction of the suffrage. In default of some
such measures, our political disorders must, of necessity, go on
from bad to worse until they "burn themselves out"; and this
burning-out process must ultimately end either in organized
anarchy, such as now exists in some of the little Spanish-
American Republics, or in a military despotism, such as followed
the disorders of the first French Republic. Either our civiliza
tion must be sacrificed to licentiousness and anarchy under a
false conception of " liberty and equality," or a portion of that
licentiousness which we mistake for liberty must be sacrificed
in order to preserve our civilization.






THE chief concern of every political society is the establish
ment of rights and of adequate securities for their protection.
In America it has been agreed that this shall be done by the
people themselves ; they shall make their own laws, and choose
their own agents to administer them. But the obvious diffi
culty of doing this directly has been recognized, and the people,
after formulating the charter of government, incorporating in
it such principles as they deem fundamental, content themselves
with delegating all powers of ordinary legislation to representa
tives. Notwithstanding this delegation, much direct legis
lation of a very effective and important nature is constantly
going on, at the time attracting little or no attention. This
is the steady modification of the common law by public senti
ment, noticeable only when it has crystallized in general custom.
The best of all laws for all countries are made in this way.
Custom, when voluntary, is the conclusive proof of the final and
settled conviction of the people as to what the rule of right and
conduct should be on the subject to which it relates, and for
that reason it is likely to receive spontaneously the obedience
that statutes exact by compulsion.

VOL. cxxxix. NO. 337. 3 37


A vague impression prevails that the species of popular legis
lation to which we owe the common law has come to an end, and
that customary law is to be looked upon as a finished code, to
be altered and improved by statute only. As a theory for legal
purposes, this may pass unchallenged ; but it is very far from
expressing the fact. Probably popular legislation was never so
active as now. The reasons for this are all about us in the
wonderful activity of invention and production ; in the marvelous
expansion of business ; in the infinite variety of new conditions
to which the law must be conformed. Sometimes statutes have
sufliciently provided for the new ways, new things, and new
conditions, sometimes imperfectly, and sometimes not at all,
and the legislation of usage must supply the defects. How
effective it is, we only know when the occasions arise for adjudi
cation upon it. The Chicago warehouse cases may furnish an
illustration. The State of Illinois undertook, in the interests
of business, to control a practical monopoly by limiting the
charges. But the business it proposed to control was one
established purely as a private business, on private capital, and
without State grant of either privilege or subsidy. Whence did
the State derive the power to intervene ? The case was new and
without precedent ; and if the Constitution of the State did not
determine the limit of State power, it must be sought for in
such principles of government as were embodied in the common
law, and as have been adopted by the people as part of their
heritage of freedom. The United States Supreme Court, in up
holding the State action, attached importance to a dictum of
Lord Hale that seemed to bear upon the case in hand. But a
dictum of any lawyer, however eminent, when not giving
authoritative judgment, could be only the expression of indi
vidual opinion the application of his own common sense, en
lightened by his learning, to a certain state of facts ; and the
common sense of the general public, enlightened by the broad
and varied experience of the present century, must, in many
cases, be far more worthy of being followed than any dictum
coming to us from the centuries that preceded it. When the
control of a business is in question, there is a necessary pre
sumption that experience is of value ; and old opinions as such
claim no respect.

On some subjects the state of the law at any particular time
is almost of necessity somewhat uncertain; and precedents,


which are supposed to show what the law is, may only tend to con
fuse and mislead when the movement of the time has been away
from them. The United States Supreme Court, in 1857, declared
that persons of African descent were not citizens of the States
of the American Union. Ten years later, independent of con
stitutional amendment, the same Court would have held the
contrary j not merely because there had been great changes in
the Court in the meantime, but because in that short period the
course of public events and the modification of public sentiment
had made the previous decision as much out of harmony with
the existing condition of things as though it had been based on
feudal reasons. If the decision was law when declared, ten
years had made it obsolete.

Some kinds of business are so entirely new in some of their
features that precedents are nearly worthless. The business of
operating a railroad is one of these. Statutes do very much to
determine what the respective rights and obligations of the
public and the proprietors shall be, but constantly some combi
nation of peculiar facts is raising new and peculiar questions upon
which the statutes throw little light, and the courts are com
pelled to determine them upon the reason of the common law.
But on all such questions observation and experience are the
chief teachers ; and the judge, when he comes to deal with them,
finds that everybody in any way concerned in railroads has
been doing something to enlighten his judgment and solve the
legal difficulty. Railroad managers, and conductors, and brake-
men, and switchmen j the shippers and receivers of goods ;
those who travel, and those who go to the trains to receive or
dismiss them ; the very tramps that jump on and off the moving
trains, with occasional loss of foot or arm ; in fact, everybody
who is concerned in providing or appropriating the comforts
and conveniences the railroad affords, has been thinking upon
and in some measure doing something to solve the judicial
problem ; and the judge finds that a store of wisdom has been
accumulated by various classes and various interests wherewith
he may enlighten his mind. He may even find that this is not
only important by way of instruction, but that in fact it has
established rules to which railroad managers, as well as the
community at large, have already begun to conform, or, at least,
have already come to perceive that they must conform when
occasion arises for an authoritative declaration of the law in an


actual controversy. It may be thought that the judge, in thus
taking note of the formation of customs among the people, is in
danger of deferring to public opinion to an extent that may
make him the mere mouth-piece of temporary passion, or preju
dice, or possibly of party views. Undoubtedly, there is some
danger of this, but it is a danger that is encountered necessarily.
The judge who turns a deaf ear to popular clamor at all times,
and means to heed only the voice of the law, is still compelled to
bear in mind, when dealing with common-law questions, that the
common law in its very nature is subject to continuous change,
and that he is always concerned with it as it is at the time,
and can consider what it has been only as an aid in determining
its present state.

One principal difficulty with popular legislation is, that
prevailing opinions are not always either wise or moral ; they
are, moreover, fitful and uncertain, and may demand to-day
wha,t they will anathematize to-morrow. In a particular locality
or section, popular sentiment may attempt to set up a code that
the world abhors, and to engraft a scion of barbarism on modern
civilization. The Mormon in this way endeavors to establish
polygamy, and if not controlled by the preponderating senti
ment of the vast majority of the people, might succeed in doing
so. Still, even the local sentiment is an important factor in
dealing with the evil. The government cannot wholly ignore it,
unless it is ready to incur the risks of permanent rule by the
army or by military commissions, and of having by and by an
Ireland of our own. "We might then discover that if anything
could be worse than the holding of a people in subjection by
a monarchy, it is the holding of them in subjection by a popular
government. In dealing with any evil that has even local pop
ular support, patience is as necessary a virtue as courage or

But very much of popular law-making requires expression
under legislative forms before it can become authoritative;
and the legislator is under the necessity of recognizing and
deferring to public sentiment where it neither has been nor can
be consolidated into custom. The legislator, it is true, during
his term of office is entitled to independence of action; he
cannot be authoritatively instructed ; he cannot be compelled
to obey the popular will. But he is, after all, only a repre
sentative; and the necessities of his position require that he


should allow the popular voice to speak in Ms acts. To some
extent he may be able to lead the public sentiment, and to
become a teacher of the people ; and in his legislation he may
safely be somewhat in advance of a sentiment that he perceives
is improving, and that he is aiding to improve. But to be in
his legislation far in advance of the public opinion of the day
would be as fatal as for a military commander, in his eagerness
for victory, to outrun his supports. The most perfect law,
abstractly considered, if it lacks the popular approval, can seldom
in the full and proper sense be a law at all, because habitual
obedience will not be accorded to it, and it will be disobeyed
whenever it seems safe to do so. And it is generally safe in a
free country to disobey any statute that lacks the foundation of
general consent. Still, the public opinion that is to be con
sidered is not that of the passing day merely, which may be
excited and passionate, and quite unlikely to be permanent,
and for that reason maybe disregarded and even set at defiance;
as Pitt for a time, when he first succeeded to power, set at
defiance the wishes of Parliament until the deliberate judgments
of the people had been formed and had been given expression.
Every statesman long in public life has had occasion thus
for a time to disobey the popular will; and his statesmanship
is shown by his skill in judging what is the passing breeze of
opinion, and what the fixed and certain current. To the
former he may trim his sails for the time, but the latter is his
master. Sir Robert Peel, the protectionist, repealed the corn-
laws; and Disraeli, the Tory, granted an enlargement of the
franchise, because the time had come when these measures were
inevitable, and the ruler must yield them or cease to rule.
So the time came in America when a reform in the civil serv
ice must be granted. And who must grant it? Obviously,
whether willing or unwilling, the party in power.

But the danger in legislation under the force of popular senti
ment is not so much that legislators will fail to recognize it
sufficiently, as that they will play the part of demagogues, and
cater to popular passions and prejudices for purposes of their
own. This is especially the danger when class legislation is
called for ; and the demand for this in the immediate future is
likely to be more frequent and more persistent than ever. It is
also likely to be directed against classes that may easily be made
the objects of popular prejudice ; against those who carry on


particular employments, or perhaps against the managers of
many kinds of employment. A government may easily be made
a tyranny by mere over-legislation, and it may become intoler
able if the legislation is purposely hostile. We sometimes say
with truth that the best government is that which governs
least j by which we mean the one that interferes least with our
domestic and business affairs, that makes the fewest exactions,
and leaves to us the largest share of individual liberty. But in
another sense the best government is that which governs most,
which is most certainly present at all times with its protecting
arm, and for that reason gives a perpetual sense of security.
The great problem in government is, how to have a maximum
of protection with a minimum of official or legislative interfer
ence 5 and the proper method of solving this is manifestly not by
way of class legislation. On the contrary, the true principle
would seem to be, to extend self-government as much as may be
found consistent with the safety of the state and the good order
of society. We begin self-government in the family ; we estab
lish it in the several towns, cities, counties, and states ; and we
suffer it to exist, also, in the several trades and occupations.
Thus, bankers have special rules of their own making for the
regulation of their business, common carriers for theirs, tele
graph companies for theirs, etc. ; and we must all conform to
these rules when having business with those who establish them.
This the law does not merely tolerate, but encourages, because
those engaged in the business know best what the rules should
be, and the rules are made by experts after experience and ob
servation have demonstrated their usefulness. This is legislation
by the parties who most of all are competent to deal wisely with
the subject; and so long as it is properly limited, the state would
be inexcusable if, by the agency of legislators of less experience
and less competency, it were to interfere. Boards of trade go
farther ; they not only legislate, but they establish judicial tri
bunals to enforce their legislation $ and, though these are with
out legal authority, they have means of making it for the inter
est of parties concerned to submit to their judgments and keep
away from the tribunals of the state. Associated railroad com
panies are coming to have formal legislative bodies as well as
judicial tribunals of their own ; and they confer upon these a
power of regulation that alone can preserve those for whom they
act from destructive rivalry. The state complains of none of


these voluntary arrangements until it is found that something
is done under them that conflicts with the public interest. Just
as the union of the people living in one locality in town and
municipal organizations is likely to promote the best local gov
ernment, so the union of the persons engaged in the same em
ployment in business organizations is likely to bring out the best
results in the particular business.

The state does not, indeed, make the local government inde
pendent; there must be a wisdom applied to its affairs that
looks beyond the territorial limits, and considers how the local
affects the general. The town is an inseparable part of the
state, and chargeable with many state duties, and unless prop
erly governed may cause mischief to the commonwealth at
large. But here, as in the case of the natural person, the super
vision of the state is to be directed, not to thinking and acting
for the people in what concerns themselves exclusively, which the
people themselves must be assumed to understand best, but to
keeping the local authority within bounds, and preventing the

Online LibraryNathaniel Hillyer. EglestonThe North American review (Volume 139) → online text (page 49 of 60)