The Spirit of America Part 5

What if neither party seems to him clear or consistent or satisfactory?

Still he must go with one or the other, or else be content to a.s.sert his individuality and lose his electoral efficiency by going in with one of the three or four little parties which stand for moral protest, or intellectual whim, or political vagary, without any possible chance of carrying the election.

A thoughtful man sometimes feels as if he were almost helpless amid the intricacies of the system by which his opinion on national affairs is asked. He sits with his vote in his hand as if it were some strange and antiquated instrument, and says to himself, "Now what, in heaven's name, am I going to do with this?"

In the large cities, especially, this sense of impotence is likely to trouble the intelligent and conscientious American. For here a species of man has developed called the _Boss_, who takes possession of the political machinery and uses it for his own purposes. He controls the party through a faction, and the faction through a gang, and the gang through a ring, and the ring by his own will, which is usually neither sweet nor savoury. He virtually owns the public franchises, the public offices, the public payroll. Like Rob Roy or Robin Hood, he takes tribute from the rich and distributes it to the poor,--for a consideration; namely, their personal loyalty to him. He leads his followers to the polls as a feudal chief led his retainers to battle.

And the men whom he has chosen, the policies which he approves, are the ones that win.

What does this mean? The downfall of democracy? No; only the human weakness of the system in which democracy has sought to reach its ends; only the failure in duty, in many cases, of the very men who ought to have watched over the system in order to prevent its corruption.

It is because good men in America too often neglect politics that bad men sometimes control them. And, after all, when the evil goes far enough, it secretes its own remedy,--popular discontent, a reform movement, a peaceful revolution. The way is open. Speech is free. There is no need of pikes and barricades and firebrands. There is a more powerful weapon in every man's hand. Persuade him to use it for his own good. Combine the forces of intelligence and conscience, and the city which sees its own interest will find out how to secure it.

But the trouble, with such a ma.s.s of voters, is to produce this awakening, to secure this combination of better forces. It is a trouble which Americans often feel deeply, and of which they sometimes complain bitterly. But after all, if you can get down to the bottom of their minds, you will find that they would rather take their trouble in this form than in any other. They feel that there is something wholesome and bracing in the idea that people must want good government before they can get it. And for the sake of this they are willing, upon the whole, and except during intervals, to give that eternal vigilance which is the price of fair play.

It is not, however, of democracy as it has taken shape in political forms that I would speak; but rather of democracy as a spirit, a sentiment existing in the soul of the American people. The root of it is the feeling that the openings of life, so far as they are under human control, ought to be equal for all. The world may be like a house of many stories, some higher, some lower. But there shall be no locked doors between those stories. Every stairway shall be unbarred. Every man shall have his chance to rise. Every man shall be free to pursue his happiness, and protected in the enjoyment of his liberty, and secure in the possession of his life, so far as he does not interfere with others in the same rights.

This does not mean that all shall be treated alike, shall receive the same rewards. For, as Plato says, "The essence of equality lies in treating unequal things unequally." But it means what the first Napoleon called _la carriere ouverte aux talents_. Nay, it means a little more than that. For it goes beyond the talents, to the mediocrities, to the inefficiencies, and takes them into its just and humane and unprejudiced account. It means what President Roosevelt meant when he spoke of "_the square deal for everybody_." The soul of the American people answered to his words because he had expressed one of their dominant ideals.

You must not imagine that I propose to claim that this ideal has been perfectly realized in America. It is not true that every man gets justice there. It is not true that none are oppressed or unfairly treated. It is not true that every one finds the particular stairway which he wishes to climb open and unenc.u.mbered. But where is any ideal perfectly realized except in heaven and in the writings of female novelists? It is of the real desire and purpose, the good intention, the aim and temper of the American people, that I speak. And here I say, without doubt, the spirit of fair play has been, and still is, one of the creative and controlling factors of America.

If you should ask me for the best evidence to support this statement, I should at once name the Const.i.tution and the Supreme Court of the United States. Here is an original inst.i.tution, created and established by the people at the very birth of the nation, peculiar in its character and functions, I believe, to America, and embodying in visible form the spirit of fair play.

The laws under which a man must live in America are of three kinds.

There is first the common law, which prevails in all the States except Louisiana, which is still under the Napoleonic Code. The common law, inherited from England, is contained in the ma.s.s of decisions and precedents handed down by the duly established courts from generation to generation. It is supposed to cover the principles which are likely to arise in almost all cases. But when a new principle appears, the judge must decide it according to his conscience and create the legal right.

The second source of law is found in statutes of the United States enacted by Congress, in the const.i.tutions of the different States, and in the statutes enacted by the State legislatures. Here we have definite rules and regulations, not arising out of differences or disputes between individuals, but framed on general principles, and intended to cover all cases that may arise under them.

The third source of law is the Const.i.tution of the United States, which is supreme and sovereign over all other laws. It is the enactment of the whole people. Congress did not create it. It created Congress. No legislation, whether of a State or of the nation, can impair or contravene its authority. It can only be changed by the same power which made it,--the people of the United States, expressing their will, first through a two-thirds majority of the national House and Senate, and then directly through the vote of three-fourths of the forty-six States.

Any statute which conflicts with the Const.i.tution is invalid. Any State const.i.tution which fails to conform to it is, in so far forth, non-existent. Any judicial decision which contradicts it is of no binding force. Over all the complexities of legislation and the perplexities of politics in America stands this law above the laws, this ultimate guarantee of fair play.

The thing to be noted in the Const.i.tution is this: brief as it is for the creative doc.u.ment of a great nation, it contains an ample _Bill of Rights_, protecting every man alike. The Const.i.tution, as originally framed in 1787, had omitted to do this fully, though it prohibited the States from pa.s.sing any law to impair the validity of contracts, from suspending the writ of habeas corpus in time of peace, and from other things contrary to the spirit of fair play. But it was evident at once that the Const.i.tution would not be ratified by a sufficient number of the States unless it went much farther. Ma.s.sachusetts voiced the Spirit of America in presenting a series of amendments covering the ground of equal dealing with all men in the matters most essential to individual freedom and security. In 1790 these amendments, numbered from I to X, were pa.s.sed by Congress, and in 1791 they became part of the Const.i.tution.

What do they do? They guarantee religious liberty, freedom of speech and of the press, and the right of popular a.s.sembly and pet.i.tion. They protect every man, in time of peace, from criminal indictment except by a grand jury, from secret trial, from compulsion to testify against himself, from being tried again for an offence of which he has been once acquitted, and from the requisition of excessive bail and the infliction of cruel or unusual punishments. They guarantee to him the right to be tried by an impartial jury of his peers and neighbours in criminal cases and in all suits under common law when the amount in controversy exceeds twenty dollars in value. They protect his house from search except under legal and specific warrant, and his property from appropriation for public use without just compensation. They a.s.sure him that he shall not be deprived of life, liberty, or property without due process of law.

The remarkable thing about these provisions for fair play is not so much their nature as the place where they are put. In England there is a Bill of Rights, embodied in various enactments, which covers pretty much the same ground. But these, as Mr. James Bryce says, "are merely ordinary laws, which could be repealed by Parliament at any moment in exactly the same way as it can repeal a highway act or lower the duty on tobacco."

But in America they are placed upon a secure and lofty foundation, they are lifted above the pa.s.sing storms of party politics. No State can touch them. No act of Congress can touch them. They belong to the law above laws.

Nor is this all. A supreme tribunal, coordinate with the national executive and legislature, independent and final in its action, is created by the Const.i.tution itself to interpret and apply this supreme law. The nine judges who compose this court are chosen from the highest ranks of the legal profession, appointed by the President, and confirmed by the Senate. They hold office for life. Their court room is in the centre of the national Capitol, between the wings appropriated to the Senate and the House.

It is to that quiet chamber, so rich, so n.o.ble in its dignity and simplicity, so free from pomp and ostentation, so remote from turmoil and confusion, so filled with the tranquil glory of intelligence and conscience, so eloquent of confidence in the power of justice to vindicate itself,--it is to that room that I would take a foreigner who asked me why I believe that democracy in America has the promise of endurance. Those nine men, in their black judicial robes (the only officials of the nation who have from the beginning worn a uniform of office), are the symbols of the American conscience offering the ultimate guarantee of fair play. To them every case in law and equity arising under the Const.i.tution, treaties and laws of the United States, every case of admiralty and marine jurisdiction, every case between citizens of different States, or between two States, every case in which the United States itself is a party, may be brought for final decision.

For more than a hundred years this court has discharged its high functions without a suspicion of corruption or a shadow of reproach.

Twenty-one times it has annulled the action of Congress and declared it _ultra vires_. More than two hundred times it has found that State statutes were contrary to the Const.i.tution and therefore practically non-existent. And these decisions are not made in the abstract, on theory, but in the concrete, on actual cases when the principle of fair play under the Const.i.tution is at stake.

Let me ill.u.s.trate this. In 1894 a law was pa.s.sed by Congress taxing all incomes over a certain sum at certain rates. This was, in effect, not a tax based proportionally upon population, but a special tax upon a part of the population. It was also a direct tax levied by the national legislature. There was no necessity of discussing the abstract question of the wisdom or righteousness of such taxation. The only question was whether it was fair play under the Const.i.tution. A citizen of New York refused to pay the tax; the case was brought to the Supreme Court and argued by Mr. Choate, the late American Amba.s.sador to Great Britain. The court held that Congress had no power to impose such a tax, because the Const.i.tution forbids that body to lay any direct tax, "unless in proportion to the census." By this one decision the income-tax law became null, as if it had never been.

Again, a certain citizen had obtained from the State of Georgia a grant of land upon certain terms. This grant was subsequently repealed by the State by a general statute. A case arose out of the conveyance of this land by a deed and covenant, and was carried to the Supreme Court. The court held that the statute of the State which took the citizen's land away from him was null, because it "impaired the obligation of a contract," which the Const.i.tution expressly forbids.

Again, in 1890, Congress pa.s.sed a measure commonly called the Sherman Anti-Trust Act, declaring "every contract, combination in the form of trusts or otherwise, or conspiracy in restraint of trade or commerce among the several States" to be illegal. This was undoubtedly intended to prevent the merger of railroads and manufacturing concerns into gigantic trusts with monopolistic powers. The American spirit has always understood liberty as including the right of the citizen to be free in the enjoyment of all his faculties, to live and work where he will, and in so doing to move freely from State to State. So far as the trusts were combinations in restraint of this right, the statute properly declared them illegal, and the Supreme Court so interpreted and applied it. But it soon became evident that combinations of labour might restrain trade just as much as combinations of capital. A strike or a boycott might paralyze an industry or stop a railroad. The Supreme Court did not hesitate to apply the same rule to the employees as to the employers. It held that a combination whose professed object is to arrest the operation of railroads whose lines extend from a great city into adjoining States until such roads accede to certain demands made upon them, whether such demands are in themselves reasonable or unreasonable, just or unjust, is certainly an unlawful conspiracy in restraint of commerce among the States.

Again and again the Supreme Court has interfered to prevent citizens of all the States from being deprived by the action of any State of those liberties which belong to them in common. Again and again its decisions have expressed and ill.u.s.trated the fundamental American conviction which is summed up in the strong words of Justice Bradley: "The right to follow any of the common occupations of life is an inalienable right."

I have not spoken of the other federal courts and of the general machinery of justice in the United States, because there is not time to do so. If it were possible to characterize the general tendency in a sentence, I would say that it lays the primary emphasis on the protection of rights, and the secondary emphasis on the punishment of offences. Looking at the processes of justice from the outside, and describing things by their appearance, one might say that in many parts of the continent of Europe an accused man looks guilty till he is proved innocent; in America he looks innocent until his guilt is established.

The American tendency has its serious drawbacks,--legal delays, failures to convict, immunity of criminals, and so on. These are unpleasant and dangerous things. Yet, after all, when the thoughtful American looks at his country quietly and soberly he feels that a fundamental sense of justice prevails there not only in the courts but among the people. The exceptions are glaring, but they are still exceptions. And when he remembers the immense and inevitable perils of a republic, he rea.s.sures himself by considering the past history and the present power of the Supreme Court, that great bulwark against official encroachment, legislative tyranny, and mobocracy,--that grave and majestic symbol of the spirit of fair play. A republic with such an inst.i.tution at the centre of its national conscience has at least one instrument of protection against the dangers which lurk in the periphery of its own pa.s.sions.

If you should ask me for a second ill.u.s.tration of the spirit of fair play in America, I should name religious liberty and the peaceful independence of the churches within the state. I do not call it the "Separation of Church and State," because I fear that in France the phrase might carry a false meaning. It might convey the impression of a forcible rupture, or even a feeling of hostility, between the government and the religious bodies. Nothing of that kind exists in America. The state extends a firm and friendly protection to the adherents of all forms of religious belief or unbelief, defending all alike in their persons, in the possession of their property, and in their chosen method of pursuing happiness, whether in this world or in the next. It requires only that they shall not practise as a part of their cult anything contrary to public morality, such as polygamy, or physical cruelty, or neglect of children. Otherwise they are all free to follow the dictates of conscience in worshipping or in not worshipping, and in so doing they are under the shield of government.

This is guaranteed not only by the Const.i.tution of the United States, but also by the separate State const.i.tutions, so far as I know, without exception. Moreover, the general confidence and good-will of the state towards the churches is shown in many ways. Property used for religious purposes is exempted from taxation,--doubtless on the ground that these purposes are likely to promote good citizenship and orderly living.

Religious marriage is recognized, but not required; and the act of a minister of any creed is, in this particular, as valid and binding as if he were a magistrate. But such marriages must be witnessed and registered according to law, and no church can annul them. It is the common practice to open sessions of the legislature, national and State, with an act of prayer; but partic.i.p.ation in this act is voluntary. The President, according to ancient custom, appoints an annual day of national thanksgiving in the month of November, and his proclamation to this effect is repeated by the governors of the different States. But here, again, it is a proclamation of liberty. The people are simply recommended to a.s.semble in their various places of worship, and to give thanks according to their conscience and faith.

The laws against blasphemy and against the disturbance of public worship which exist in most of the States offer an equal protection to a Jewish synagogue, a Catholic cathedral, a Buddhist temple, a Protestant church, and a Quaker meeting-house; and no citizen is under any compulsion to enter any one of these buildings, or to pay a penny of taxation for their support. Each religious organization regulates its own affairs and controls its own property. In cases of dispute arising within a church the civil law has decided, again and again, that the rule and const.i.tution of the church itself shall prevail.

But what of the religious bodies which exist under this system? Do not imagine that they are small, feeble, or insignificant; that they are content to be merely tolerated; that they feel themselves in any way impotent or slighted. They include the large majority of the American people. Twelve millions are adherents of the Catholic Church. The adherents of the Protestant churches are estimated to number between forty and fifty millions. But neither as a whole, nor in any of their separate organizations, do the religious people of America feel that they are deprived of any real rights or robbed of any just powers.

It is true that the different churches are sometimes very jealous of one another. But bad as that may be for them, from a political point of view it is rather a safeguard.

It is true that ecclesiastics sometimes have dreams, and perhaps schemes, which look towards the obtaining of special privileges or powers for their own organization. But that is because ecclesiastics are human and fallible. In the main, you may say with confidence that there is no party or sect in America that has the slightest wish to see church and state united, or even entangled. The American people are content and happy that religion should be free and independent. And this contentment arises from three causes.

First, religious liberty has come naturally, peacefully, in a moderate and friendly temper, with consideration for the conscience and the rights of all, and at the same time, if I mistake not, with a general recognition that the essence of religion, personal faith in a spiritual life and a Divine law, is a purifying, strengthening, elevating factor in human society.

Second, the churches have prospered in freedom; they are well-to-do, they are active, they are able to erect fine edifices, to support their clergy, to carry on benevolent and missionary enterprises on an immense scale, costing many millions of dollars every year. The voluntary system has its great disadvantages and drawbacks,--its perils, even. But upon the whole, religious people in America, Catholics, Protestants, and Jews alike, feel that these are more than counterbalanced by the devotion which is begotten and nourished by the very act of making gifts and sacrifices, and by the sober strength which comes into a man's faith when he is called to support it by his works.

Men value what they pay for. But this is true only when they pay for what they really want.

Third, and chiefly, religious liberty commends itself to the Americans because they feel that it is the very highest kind of fair play. That a man should have freedom in the affairs of his soul is certainly most vital to his pursuit of happiness. The n.o.ble example of tolerance which was set to the American colonies by the Quakers of Pennsylvania, the Baptists of Rhode Island, and the Catholics of Maryland, prevailed slowly but surely over the opposite example of the Puritans of Ma.s.sachusetts and the Anglicans of Virginia. The saying of William of Orange, "Conscience is G.o.d's province," has become one of the watchwords of America.

In a country which, as a matter of fact, is predominantly Christian and Protestant, there is neither establishment nor proscription of any form of faith. In the President's cabinet (1908) I personally know a Jew, a Catholic, a Presbyterian, an Episcopalian, and a Methodist. The President himself is a member of one of the smallest denominations in the country, the Dutch Reformed.

Nor is unfaith penalized or persecuted. A recent writer on America has said that "an avowed atheist is not received in any social circles above that of the ordinary saloon." Well, an atheist avowed in definite and unmistakable terms, a man who positively affirms that there is no G.o.d, is a very difficult person to find in this world of mystery. But a positivist, a free-thinker, a Voltairean, a sceptic, an agnostic, an antisupernaturalist of any kind, has the same rights and privileges as any other man. In America, if his life is clean and his manners decent, he goes everywhere. You may meet him in the best clubs, and in social circles which are at the farthest remove from the saloon. This is not because people like his opinions, but because they feel he is ent.i.tled to form them for himself. They take it for granted that it is as impossible to correct unbelief by earthly penalties as it is to deprive faith of its heavenly rewards.

I do not say that this is the right att.i.tude, the only reasonable att.i.tude. I do not wish to persuade any one to adopt it. I say only that it is the characteristic att.i.tude of the Americans, and that sincerely religious people hold it, in the Catholic Church and in the Protestant Church. It may be that the spirit of fair play has blinded them. It may be that it has enlightened them. Be that as it may, they have pa.s.sed beyond the point of demanding freedom of conscience for themselves to that of conceding it to others. And in this they think that they are acting in accordance with the Divine will and example.

An anecdote will ill.u.s.trate this att.i.tude better than many paragraphs of explanation. In the older American colleges, which were independent of state control, the original course of study was uniform and prescribed, and chapel services were held which the students were required to attend. Elective studies came in. The oldest of the universities made attendance at chapel voluntary. "I understand," said a critic to the president of the university, "that you have made G.o.d an elective in your college." The President thought for a moment. "No," said he, "we understand that He has made Himself elective everywhere."

There are certain singular limitations in the spirit of fair play in America of which I must say a word in order to play fair. Chief among these is the way in which the people of the colonies and of the United States dealt for many years with the races which have not a white skin.

The American Indians, in the seventeenth and eighteenth centuries, undoubtedly sinned as much as they were sinned against. They were treacherous, implacable, unspeakably cruel, horribly bloodthirsty. It is no wonder that the colonists regarded them as devils. It is no wonder that the feeling of mistrust and resentment persisted from one generation to another. But the strange thing is that when the Indians were subjugated and for the most part pacified, America still treated them from a hostile and alien point of view, denied them the rights of citizenship, took their property from them, and made it very difficult for them to pursue happiness in any reasonable form. For many years this treatment continued. It was so glaring that a book was written which described the Indian policy of the United States, not altogether unjustly, as _A Century of Dishonor_. To-day all this is changed. The scattered and diminished remnants of the red men are admitted to citizenship if they wish it, and protected in their rights, and private benevolence vies with government in seeking to better their condition.

The African race, introduced into America for industrial reasons, multiplied more rapidly there than in its native home, and soon became a large factor in the population. But it was regarded and treated from a point of view totally different from that which controlled the treatment of the white factors. It did not share in the rights enumerated in the Declaration of Independence. It was an object of commerce, a source of wealth, a necessity of agriculture. The system of domestic slavery held practically all of the negroes in bondage (in spite of the fact that the Northern States abandoned it, and many of the best men in the South disliked it and protested against it) until the third quarter of the nineteenth century. It was approved, or at least tolerated, by the majority of the people until the Civil War did away with it. It has left as a legacy of retribution the most difficult and dangerous problem of America,--perhaps the greatest and most perplexing problem that any nation has ever had to face.

Nine millions of negroes, largely ignorant and naturally ill-fitted for self-government, are domiciled in the midst of a white population which in some sections of the South they outnumber. How to rule, protect, and educate this body of coloured people; how to secure them in their civil rights without admitting them to a racial mixture--that is the problem.

The Oriental races, recently coming to America in increasing numbers, receive from the people a welcome which cannot be described as cordial.

The exclusion of the Chinese from citizenship, and in some States from immigration, is but a small symptom of the general situation. If any considerable number of Burmese or East Indians or j.a.panese should come, the situation would be the same, and it would be intensified with the increase of the numbers. They would not find the Americans inclined to make an open career for the Oriental talents.