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Two Interpretations of the State and Government: The Pragmatic Skepticism of Mr. Justice Oliver Wendall Holmes Contrasted With the Natural Law Philosophy of Mr. Justice James Wilson.

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F O R D H A M U N IV E R SIT Y
G R A D U A T E SCHOOL
June.. .19.40.
This dissertation prepared under my direction by
Re v.r.Eug.e.ne...E......Gallagher..
entitled .Two...Interpretations... o f . . . t h e . . . S . t ^ The
Pragmatic Skepticism of Mr* Justice Oliver Wendell Holmes
Contrasted with the Natural Law Philosophy of Mr* Justice
James Wilson.
has been accepted in partial fulfilment of the requirements for the
Degree of
.P octor p f .Philpsqphy
(F aculty A dviser)
WO
INTERPRETATIONS OP THE
STATE AMD GOVERNMENT
The Pragmatic Scepticism of Mr. Justice
Oliver Wendell Holmes contrasted with
the Natural law Philosophy of
Mr. Justice James Wilson
BY
EUGENE R. GALLAGHER
M.A., Seton Hall College, 12£
DISSERTATION
SUBMITTED IN PARTIAL FULFILLMENT OP THE
REQUIREMENTS FOR THE DEGREE OP DOCTOR OF
PHILOSOPHY IN THE DEPARTMENT OP POLITICAL
PHILOSOPHY AT PORDHAM UNIVERSITY
NEW YORK
1940
ProQuest N um ber: 10992501
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iii
"i
S?ABLE OF CONTENTS
-Chapt er
1#
11.
111.
IV.
V.
VI.
Vll.
L
INTRODUCTION............................
Commonly Held Opinions in Regard to
the Constitution
Mr. Holmes
Mr. Wilson
Page 1
TWO VIEWPOINTS IN REGARD TO T R U T H ......*
The Traditional and the Sceptical
IMPORTANT EFFECTS OF THIS DIFFERENCE
OF VIEWPOINT
Effects on the Principles of
Constitutional Theory and the
State in general
.♦
ORIGIN AND SOURCE OF GOVERNMENTAL AUTHORITY
ACCORDING TO WILSON AND H O I M E S
Force as a Sanction
Man as an Individual and as a
Social Being
Holmes* Distinction between Moral
and Legal Right not Valid. Both
Based on Force.
WILSON* S THEORY OF THE NATURAL LAW AS
FOUNDATION OF SOCIETY AND THE ONLY
RATIONAL SANCTION FOR THE AUTHORITY
OF GOVERNMENT ......................
Holmes* Skepticism
Wilson*s Natural Law
The Origin of Society - and of the State
The Obligation of Law ^ Natural -r Human
APPLICATION OF HOIMES* AND WILSON*S
THEORIES ..........................
Holmes* Doctrine of Sovereignty in
205, U.S. 349
Wilson*s Moral Obligation Theory in
"Legislative Authority of British
Parliament **
14
21
25
42
63
CONCLUSION .............................
72
B I B L I O G R A P H Y ...............................
74
J
TWO INTERPRETATIONS OF THE
STATE AND GOVERNMENT
The Pragmatic Scepticism of Mr. Justice
Oliver Wendell Holmes contrasted with
the Natural Law Philosophy of
Mr. Justice James Wilson
1
1
CHAPTER 1
IUTRODUCTIOH
In .the years that have elapsed since the Constitution
of the United States was drawn up and adopted hy the several
states, a wide variety of opinions concerning the philosophy
of our constitutional form of government have become current
among the American people*
These opinions, despite the fact
that they frequently blend into each other, may be separated
into three general classes#
As to the first opinion, it will be recalled to begin
with, that very little philosophy is found in the actual
phrases of the Constitut ion.
The philosophical foundation
was laid in the Constitutional Convention, where, by pro­
tracted debate it was decided what things should be in­
corporated in the instrument and on what grounds they
should be so incorporated*
When decisions had been reached
as to what was to be done, it was not necessary nor ad­
vantageous to put into the document itself the reasons for
the decisions.
On the other hand, when the Constitution
was presented to the states for ratification, its sponsors
explained in detail, in their appeals to the people, the
j
principles underlying the instrument itself and the
reasons for its various provisions*
Once the ratification
of the Constitution became an accomplished fact and the
government was set up, there no longer remained the same
urgent need for explanation and defense and, consequently,
as the nation grew older and the people became accustomed
to having a constitutional government, they soon forgot
the debates that had raged over its establishment.
Hence,
many today accept the Constitution without the question,
and reverence it as the charter of our liberties without
being aware of what, if any, philosophical principles it
is built on.
The second popular conception, with regard to our
constitutional government, is that which holds that it is
based on the political philosophy of such men as locke
and Rousseau, among others.
It is the popular belief with
many Americans that, beginning with the Protestant Revolt,
the human race began progressively to throw off the shack­
les of ancient tyranny (real or imagined) and that all
revolutions, generally speaking, are glorious manifesta­
tions of an historical, progressive and liberalizing
movement which has for its aim the destruction of en­
trenched, autocratic authority.
Many do not know or
believe, for example, that the French and American Re­
volutions arose from quite different theories of law and
government.
The Rousseauistic ^Declaration of the Rights
of Man” is as much admired as the Declaration of In­
dependence and the Constitution; and "liberty, Equality
and Fraternity” are considered but a variation of "all
men are created equal and are endowed .•• with certain
inalienable rights
The blame for this confusion can not be placed on
the shoulders of the ordinary citizen.
For generations
he has been taught that there is in man a craving for
freedom and a yearning for the right to govern himself.
This is alleged to be a residue of an original and
felicitous state of nature in which man was totally free
and did as he pleased.
But for various reasons, as
expounded at length by Rousseau, Locke, Hobbes and others
man in this state of nature, while theoretically free,
was actually very hampered in his freedom by the un­
restrained exercise of freedom on the part of others.
Driven by evil necessity, therefore, man enters society
and forms a government.
The government protects some of
his rights, but is perforce obliged to deprive him of
others, and as time goes on this deprivation tends to
become constantly enlarged until finally man is, or is
about to become, the slave of the state.
The old craving
for freedom is ever present, nevertheless, and man always
longs to break his bonds.
As a result, when tyranny, or
even the old order of things, are thought to be frustrat­
ing the desire for freedom, man, it is said, has always
4
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found his salvation in revolution, the destruction of
the ancient regime, the crushing of the old authority
and the subsequent setting-up of a new and liberal order*
On these assumptions it is argued that there m s
little
difference between the French and American Revolutions
and that the political philosophy of the Founding Fathers
was closely akin to that of Locke, Rousseau and their
followers of the "state of nature” and "evil necessity*”
school of thought*
It is not the intention of this paper to refute
Locke and Rousseau and to show that the claim, that our
Constitution is founded on their theories, is without
foundation.
That has already been very ably done.'*' The
purpose at this point is merely to remark on the wide­
spread but erroneous belief that the American Revolution
was inspired by the same spirit as the French Revolution,
namely, the revolt against all government as such, and
the hatred for all authority, whether lawfully constituted
p
or not.
It is hoped that in the pages that follow it will
1. Vide "The American and the French Revolutions” - M.F.X*
Millar, Thought, September, 1939.
2. How easily it is overlooked or forgotten that we had a
Constitution long before the French could use one and that
we have managed to keep ours intact through the vicissitudes
of all the years, while France and other nations whose con­
stitutions do derive from the French theories of government
are habitually falling into such disorder that they find it
necessary to put their constitutions in storage periodically
while some dictator self-appointed or otherwise puts the
country in order*
L
J
become more apparent that this revolutionary spirit was
not the spirit motivating the men who established a
lawful government of the United States; by revolution
it is true, but on justifiable grounds, namely, that the
former government of Britain had lost its claim to
obedience, by attempting to exercise unlawful authority.
A third but less widespread conception about the
philosophy underlying the Constitution starts out by
denying that there is any underlying philosophy*
This
kind of opinion does not deny that the writers of the
Constitution had a philosophy, but it recognizes their
philosophy only to ridicule it and to assert that it did
not influence them when they sat down to write the Con­
stitution.
The philosophy of the Founding Fathers is
discounted as being archaic, mediaeval, even ntheological”
and it was argued that, while the Fathers thought they
were planning a form of government according to fixed
principles and immutable truths, actually they were being
moved to action by forces which were nothing more than
the product of the moment and of the existing conditions*
These forces are held to have been inherent in the
politic-economic situation of the thirteen colonies*
A
desire for order and a recognition that authority was
necessary, both for order and for economic progress and
security, conflicted strongly with the deep-seated re­
luctance of pioneer people to surrender any of their
6
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1
pioneer liberty of action and freedom from restraint.
But in spite of the conflict, the men who established
the government were first and foremost practical men.
Consequently, it is said that our government arose merely
from the practical compromises which practical men saw
had to be made and that, in particular, the Constitution
is nothing more than a pragmatie makeshift, a mere
assemblage of measures which men, who were determined to
establish a stable central government, forced through the
Constitutional Convention.
Whether these measures had
any inherent validity or foundation in objective truth is
held to be of no importance*
It is admitted that there were theorists among the
delegates to Constitutional Convention.
But the assumption
is that their theories carried very little weight with the
pragmatic framers of the Constitution who were mostly
interested in working results, and were little concerned
with whether their decisions agreed with sound philosophy.
The only sanction that the Constitution needs or could be
given is the c-fact that, with some timely alterations in
the form of amendments, it has worked.
Whether it embodies
in substance any application of the natural and essential
relationship between man and government is considered
speculative theorizing with which philosophers may amuse
themselves, but which has no bearing on practical problems*
This stressing of the practicality of governmental
i_measures has always found great favor with the American
j
people, who, like the English, are distrustful of
theorists, on the supposition that they usually are
lacking in common sense,
likewise popular with our
people and especially with those who hold this pragmatic
explanation of our democracy, are public men, who, im­
patient of theories, brush them aside and settle issues
by the simple expedient of finding out on which side lies
the preponderant weight of public opinion.
This is done
in the name of common sense, on the assumption that
common sense will be found to be the possession of the
greater number, while the minority may be ignored as being
composed of cranks, propagandists or impractical dreamers.
Undaunted by the fact that often in our history that which
appeared to be "practical” later turned out to be unwork­
able, our people continue to scorn sound political theory
and to be distrustful of philosophers while at the same
time they express unbounded admiration for the public man
who manifests in his public utterances an abundant share
of the much admired pragmatic practicality.
JUSTICE HOIMES
Such a "practical” man was Mr. Justice Oliver Wendell
Holmes, late of the Supreme Court of the United States, a
public figure who has been and is admired by millions of
j
our people and especially by those who adhere to the
third conception with respect to our Constitutional
Democracy*
It must he stated at once that it is not
intended to imply that Mr. Holmes was ignorant of
philosophy or devoid of political or legal theory.
Nothing could he further from the truth.
But it can he
said here that in his public speeches and even in his
writings Mr. Holmes often expressed a preference for
practical considerations over philosophical theory, and
in his opinions in court he seldom (fortunately) allowed
his own philosophy and theories to intrude themselves in
his judgments.
Mr. Holmes, besides being possessed of qualities
which appeal to the average citizen, also had qualities
and talents which have made him the idol of a segment
of the legal profession and strangely enough also, as it
will appear, the idol of certain self-denominated liberals
Without doubt, there are very few who would deny to Mr.
Holmes his great reputation as a lawyer and judge, for
it is generally and properly conceded that, he had an
extraordinary legal mind.
On the bench he had the ImacM
of cutting through irrelevant trappings, getting to the
core of a legal problem and rendering a decision with
precision, force and usually in excellent literary style.
Add to this the undoubted charm of Mr. Holmes1 personality
his high character, his urbanity, his gift for anecdote
9
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n
and illustration, and it can "be easily understood why
Mr, Holmes came to be one of the most well-known of our
public men and one of the most admired justices ever to
sit in our Supreme Court,
But the impartial and discerning student of political
philosophy and law must be somewhat puzzled by the mystic
aureole which he finds surrounding the writings and public
utterances of Mr. Holmes, especially those dealing with
the Constitution and the nature of the state.
Many
people, including not a few prominent lawyers, have as­
sumed that Mr. Holmes was an eminent philosopher, an
outstanding interpreter of our democratic government and
institutions and an indefatigable champion of the rights
of man as against the oppressive power of the state.
That
this is a good description of what precisely Mr-. Holmes
was not, we hope to be able to indicate, and at the same
time to show that his philosophy was fundamentally
illiberal and that his principles of government and his
interpretation of the source and authority of our Con­
stitution, if carried to their logical conclusions,
would eventually rob the American people of the democracy
and liberty they have so far enjoyed.
This conclusion is exactly the opposite of that
expounded by Mr. Felix Frankfurter in his "Justice Holmes
Defines the Constitution", where, among other extra­
ordinary statements we read that "Mr. Justice Holmes was
L
j
led by the divination of the philosopher and the imagin­
ation of the poet*11^
This gives .one an idea perhaps of
what Mr. Frankfurter means toy philosophy and is thoroughly
in line with and possitoly inspired toy the article of Mr.
George R. Farnum, entitled "Holmes - The Mystic Philoso­
pher."
As a prelude to his observations on Justice
Holmes, Mr. Farnum quotes the following curious passage
from Emerson:
In common parlance, what one man is said to
learn toy experience a man of extraordinary
sagacity is said, without experience, to
divine. The Arabians say that Abdul Khain,
the mystic, and Abu Ali Seens, the philosopher,
conferred together; and, on parting, the
philosopher said, "All that he sees, I know,”
g
and the mystic said, "All that he knows, I see."
This is illustrative of what is meant toy the mystic
aureole which so many put about Mr. Justice Holmes.
He
is assumed to have been guided toy some inner wisdom, a
kind of godlike intuition that made people accept his
pronouncements on government as they might accept utter­
ances from the oracle.
That this is unfortunate from a
critical point of view is obvious, especially so when a
man of M r • Frankfurter’s prominence encourages this
popular misconception toy representing Mr. Holmes1
philosophy as toeihg a sound interpretation of the spirit
of the Constitution.
1.
2.
Felix Frankfurter "Justice Holmes Defines the Con­
stitution" Atlantic Monthly, October 1938, P. 489.
George R. Farnum "Holmes — ? The Mystic Philosopher"
American Lawyer, December 1937, P. 12.
11
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1
Contrary to Mr. Frankfurter’s beliefs that
"the
enduring contribution of Mr. Justice Holmes to American
History is his constitutional philosophy11 and "his
conception of the Constitution must become part of the
political habits of the country if our constitutional
system is to endure .
we hope to show that Mr. Justice
Holmes* philosophy of the Constitution, while perhaps the
philosophy of much present-day Americanism, was not the
philosophy of at least one man who had a very great part
in the making of the Constitution.
That man was James Wilson, a man whose philosophy is
far too little known by those who are sincerely intent on
preserving our constitutional system and to whose prin­
ciples of government and law we had better give more heed,
if we are not to allow ourselves to surrender our liberties
to whatever stronger power manages to get the upper hand.
JUSTICE WILSOIff
James Wilson, signer of the Declaration of Independ­
ence and one of "only six of the *signers* who retained
their political reputation long enough to sign the Con­
stitution of the United States,*^ was born in Scotland,
September 14, 1742.
As a youth he studied at the
1.
Felix Frankfurter "Justice Holmes Defines the Con­
stitution" Atlantic Monthly, P. 490.
2.
Randolph G. Adams, "Introductory Essay to Selected
Political Essays of James Wilson", P. 11.
j
IB
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Universities of St. Andrews, Glasgow and Edinburgh, and
at the age of twenty-three he came to lew York.
Shortly
after his arrival in this country he moved to Philadelphia
and began to read law in the office of John Dickenson.
Having been admitted to the Pennsylvania bar, Wilson
quickly began to gain for himself a great reputation.
His integrity and fearlessness were on a par with his
ability.
Unfortunately, his tendency to intransigency
and a certain over-aggressiveness which he displayed when
dealing with his opponents or expounding his principles,
apparently did not win him the large circle of friends
which might have been expected in view of his other
qualities•
Parenthetically, it may be observed that Wilson1s
severity of character which made him highly respected, but
it seems not much liked by his contemporaries, may in some
measure explain why he is and has been so little known
and why his great contribution to the formation of the
1
Constitution has been so little recognized.
1.
In this connection it is interesting to note that
Wilson, himself, commented on the fact that the fame
of many men, great in their own day, has not been
passed on to posterity. Speaking of lord Baltimore
and the fact that it was in his colony of Maryland
that religious toleration was established in 1649,
long before it was established in Europe, Wilson adds,
"Indeed, the character of this excellent man has been
too little k n o w n ....... . Similar to that of Calvert
has been the fate of many other valuable characters
in America. They have been too little known.......
The Works of James Wilson, ed. James De Witt Andrews,
Chicago", 1896, Vol. 1,"Pages 4-5
13
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Wilson*s subsequent career was one of great public
service.
He "became a member of the Pennsylvania Pro­
vincial Convention in 1775.
He was elected to the Con­
tinental Congress in 1775-1777, -1782, -1783, 1785-1787*
He signed the Declaration of Independence, the Constitution,
and from 1789 till his death in Edenton, North Carolina
in 1798, he was an Associate Justice of the Supreme Court
of the United States.
Why a man who was thus for so many years a very
prominent figure in our early national life is not "better
known and appreciated at the present day is difficult to
explain.
Some, it is true, have recognized his worth.
Randolph G. Adams points out that American constitutional
historians have never denied that Wilson held first rank
among the members of the Constitutional Convention.
Mr.
Adams also quoted James Bryce to the effect that "few men
in that great generation to which Wilson "belongs equalled
him,11 and Justice Harlan*s statement that Wilson was
recognized as the most learned member of the Constitutional
Convention.
Finally, he notes that Max Farrand in ap­
praising the actors at the Convention put James Madison
first, and almost equal to him James Wilson, and Adams
asks pertinently why it is that Madison is universally
esteemed while Wilson is almost as universally neglected.^
1.
L
Adams, Introductory Essay, James Wilson, Page 19.
j
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CHAPTER IX
TWO VIEWPOINTS IS REGARD TO TRUTH
The first issue to he dealt with in comparing the
thought of WiXson and Holmes is their respective atti­
tudes in regard to truth.
Mr. Wilson was certain that
it is possible for man to know and recognize truths
which are self-evident, universal and eternal.
Mr. Holmes,
on the contrary, belonging to that group who believed
that
finality is nowhere within human ken" and who
are content, apparently, to .•* "live and die in terms of
surmise . .."^ denied the existence of absolute truth,
and measured the truth or falsity of any proposition on
g
its acceptance or rejection by the preponderant majority.
The original measure of truth, according to Holmes,
is found in a purely personal feeling that a given
L
1*
Wilson Works, Vol. 1, P. 216 ff.
2.
Barrett Wendell, A Packet of Wendell - William James
letters, ed. M. A. DeWolfe HoweS'crijfeners, Dec.,
1928, P. 686.
3.
250 U. S. 630, Abrams et al vs. U.S. Dissent
J
15
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i
proposition is true.
In a letter to his friend, William
James, he wrote:
... for a good many years I have had a
formula for truth which seems to he
humhler than those you give ... hut I
don't know whether it is pragmatic or
not.
I have been in the hahit of saying
that all I mean hy truth is what I can't
help thinking.
Again he says, "When I say a thing is true, I mean
p
that I can not help believing it." Whether the thing which
he "can't help believing" is actually true or not, Mr.
Holmes considers to he unimportant, even unknowable.
He
writes, "I don't believe or know anything about absolute
truth.
The "can't help" test of truth discloses, of course,
nothing about the objective truth of any proposition.
Others may have the same "can't helps," but even that
fact is no guide to absolute truth.
Mr. Holmes defines
the truth as the "system of my limitations," and leaves
absolute truth "for those who are better e q u i p p e d . I f
he finds that he is alone in his "can't help," he concludes
"probably something is wrong with my w o r k s , a n d
if
others find it out "they send for a doctor or lock me up."
1.
2.
3.
Ralph Barton Perry, Thought and Character of William
James, Vol. 11, P. "4W.---------------------------Holmes, Collected Legal Papers, P.
304.
4.
Holmes, Book Hot ices, Uncollected Letters, Papers,
P. 165"^ letter to Hr. Wa, 6/14/2^
Holmes, Col, legal Papers. P. 305.
5.
Ibid.
P. 311.
16
“i
Truth objectively considered, according to Holmes,
is that belief which is held by the preponderant majority.
”The best test of truth,” he says, ”is the power of
thought to get itself accepted in the competition of the
market. ”**• If Mr. Holmes intended that this dictum should
apply to scientific truth also -? and there is no reason
to believe that he did not - we should have to come to
the interesting conclusion that for centuries the earth
was flat, but that shortly after 1492 it changed its shape
and became spherical.
Moreover, according to this test
of truth, the content of truth itself is variable and
what was true - that is to say, what was accepted in one
age - is not accepted and therefore not true at a later
time.
It was said that William James used to like to
shock his hearers by announcing that falsehood was just
as powerful as truth.
He failed to point out, however,
that it is only when falsehood wears the mask of truth
that is has any power or influence at all.
People are,
of course, influenced by what they believe at the moment
to be the truth,
later on it may become clear that what
seemed to be the truth actually was false.
The falsehood
has influence, not because of its falsity, but because
of its appearance of truth.
When this is borne in mind,
Mr. Holmes1 statements that ”We have been cock-sure of
c
many things that were not so” and ” ... time has upset
many fighting faiths”
1.
2.
3.
lose their point, and, if we
250 TJ*S. 630
Holmes, Col. Legal Papers , P. 311
250 U.S. 616
-i
17
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1
remember the distinction between abstract or necessary
truth and contingent truth, the remarks lose all
revelance even.
In contrast to this skepticism, we find James Wilson
holding as self-evident and a necessary foundation of all
thought the fact that we can know truth.
With him, as
with Aquinas, the testimony of the senses is the reliable
starting point of our knowledge of the material world.
He stated:
She truths conveyed by the evidence of the
external senses are the first principles,
from which we judge and reason with regard
to the material world, and from which all
our knowledge of it is deduced ,3And again he says:
The truths given in evidence by the external
senses are the first principles from which
we reason concerning matter, and from which
all our knowledge of the material world is
drawn,2
According to Wilson, man knows without doubt that the
senses are to be believed and to attempt to prove directly
that the senses ought to be trusted is unnecessary,
besides being impossible,^
Continuing along the same lines, Wilson staunchly
defends the possibility and fact .of one having certain
and objective intellectual knowledge.
1 * Wilson Works, Vol. 1,
2, Ibid.
3. ”
L.
With him it is
Page 488.
Page 493.
Page 489*
J
18
l
but common sense to 'believe that we understand and grasp
truth and that first principles are self-evident and
stand in need of proof*
He asks:
If reason may mistake;;* how shall the
mistake he rectified? Shall it he done
hy a second process of reasoning, as
likely to he mistaken as the first?
Are we thus involved, hy the constitution
of our nature , in a labyrinth, intricate
and endless, in which there .is no clue to
guide, nor ray to enlighten us? Is that
true philosophy? *•• Ho. .•• Such a degenerate philosophy let us abandon: .
It is hut common sense, Wilson says, to recognize
the fact that first principles are in themselves apparent,
and that if we pretend that nothing is self-evident, then
we remove the possibility eft' knowing anything because
without self-evident first principles there can he
neither reason nor reasoning.
In the process of
reasoning we have to start somewhere, and if every pro­
position had to he proved, then proof would extend to
infinity, and we would know nothing with certainty.
Common sense tells us, Wilson concludes, that there are
first principles which are self-evident.
These first
principles are intuitively grasped hy the mind.
are the foundation of discursive reasoning.
They
They are
the common possession of every man who has the un­
trammeled use of his mind.
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WilsQn Works, Vol. 1, P. 231
2.
Ibid.
P.
231 ff
J
19
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i
But Hr. Wilson’s first principles are not the same
as Mr. Holmes1 ’’can’t helps” *
These latter are not Basic
first principles, hut rather any item of thought, no
matter how trivial.
As Mr. Holmes himself remarks:
’’They may he as inconsequential as a liking for a glass
of beer or preference for champagne over ditch water.’’-1They are personal and subjective*
(I) • •* don’t venture to assume that my
’’can’t helps” , which I call reason and truth,
are cosmic ’’can’t helps” . I know nothing
ahout it .
A sort of objective validity as to the truth of a
proposition, is obtained if it is found that the majority
of people experience the same ’’can’t help” in respect to
it, but the validity may in time be discarded as accepted
opinion changes*
The crass conferring of temporary
validity on any received opinion whatsoever, so fashion­
able among modern thinkers, has resulted in skepticism
so sterile that science and philosophy have been instrumentalit ies not for the pursuit of truth, but merely
exercises in logic which produce nothing of any lasting
value.
The formula has been:
Start with whatever
assumption you wish and proceed logically until a con­
clusion is reached.
L
1.
Perry, James, letter of Holmes, P. 460.
£•
Holmes, Uncollected Letters, P. 165
J
Mr. Holmes says this in almost these very words.
A hundred years ago men explained any part
of the universe hy showing its fitness for
certain ends and demonstrating what they
conceived to he the final cause, according
to a providential scheme. In our less
theological and more scientific days we
explain an object hy tracing the order and
progress of its growth and development from
a starting point assumed as given.
A belief of this hind not only results in quiescent
skepticism, hut is ultimately destructive of morality
and society, and of all values that contribute anything
to the development of society*
^sfcsje
1*
Holmes, Collected legal Papers, P. £10,
law in Science and Science in law*
ai
~i
CHAPTER 111
EFFECTS OF-THIS DIFFERENCE IN VIEWPOINTS
This complete divergence of viewpoints is of the
utmost importance when one remembers that Wilson helped
to frame the Constitution while Holmes, the skeptic, is
accepted as an authentic interpreter of the Constitution.
On the one hand Wilson1s whole theory of government was
based on what he believed to be eternal and universal
principles, in respect to the nature of man, man’s
relation to the Creator, the origin of the State, the
1
source of authority, and the sanction of law.
On the
other hand, Mr. Holmes * believing that the truth changes
with circumstances of time, place and utility, put no
firmer foundation under the principles of government and
law than their general acceptance and practical workability.
At first glance this might seem to many to be
a good and sufficient foundation for government, and, if
we were dealing with \ar people who had no admiration for
the ideals of liberty and self-government, it perhaps
would be a sufficient, if not justifiable foundation.
1*
2.
Wilson Works, Vol. 1, PP. 95, 124, 125.
~
Holmes, Col. Legal Papers, Natural law, P. 310 ff.
_i
But Mr* Holmes and those who admire his philosophy of
government are the very ones who are insistent in their
praise of human freedom, liberty and self-government.
They do not see that, if their theories were fully borne
out, these concepts which they cherish would quickly
cease to be, for, when the unchanging truths which we
know about man, his relations to others and to G-od are
denied as being unchanging, then the foundations on which
rests the demand for liberty and equality are destroyed
and no reason can be advanced why they should be allowed
to exist in the world,
Wilson would have stated, for
example, as an unchanging truth, that all men are created
free and equal* ^
Holmes would say that since that pro­
position was accepted in 1776, and is still accepted to
a large extent today, it is a true proposition.
may not be true fifty years from now.
But it
Consequently, some
time in the future it may be perfectly right and moral
for whatever government is in control, to scrap the Bill
of Rights, put half the population in chains, commit legal
murder at will and reduce man to the condition of a
chattel or a beast of burden.
The only Justification
needed for such a program would be that by some unhappy
chance laws authorizing it had gotten themselves written
on the statute books, and the preponderant majority
approved or at least acquiesced.
1*
2.
2
It is difficult to see
Wilson Works, Vo. 11, P. 507.
Holmes, Col. Legal Papers, P. 257, Uncol. Papers, P. 107,
what other conclusion can be drawn*
If there is no such
thing as unalterable truth, then it is futile to speak of
inalienable rights, liberty or equality as being values
that should be cherished and defended at all costs.
It may be that these concepts are not founded in
the nature of man, but rather the result of our times,
our place on the globe, as Mr. Holmes believes, and the
fact that they are useful to our civilization here and
now.
If such is the case, then perhaps those who defend
them and are opposed to their destruction are really
reactionary.
It may be that these concepts are now
antiquated and even "theological” and that to go on
insisting on them is evidence of an obstructionistic
turn of mind.
Perhaps it is time for all the old values
on which the Constitution was based to be discarded, and
our whole system of government to be retired in favor
of some system imported from abroad.
Those arguments
would sound familiar and even gratifying to those who
are now engaged in labeling democracy as the tottering
relic of an age of impractical idealism.
They sound in
fact very much like the arguments that are advanced to
justify the programs of various totalitarian regimes.
It is unnecessary to add, however, that they find no
favor with those who still believe in equality and free­
dom, and those who hold that these are the rightful
prerogatives of all men.
It is only when one begins to inquire on what
grounds these prerogatives are established that the
most widespread confusion of thought about the problem
begins to appear.
It should be clear that, if they are
merely founded on the will of the power in control - as
many believe - then by a mere fiat of the same or
another power they can be denied and utterly abrogated.
It might be objected that this could not be lawfully done
without the consent of the governed*
But how can we be
sure that the principle of the consent of the governed
is a true principle?
Here and now the majority thinlc
it is, but what of the future?
This may in time become
an untrue principle, and in its place may be substituted
the will of a dictator, or of an all-powerful party bloc.
If it is based merely on the fact that it finds favor
with most people today, then it loses all claim to
permanency, because what a misguided or tyrannized
people may do in the future is unpredictable.
If, on
the contrary, it is based on the absolute truth, that
rational men, being essentially free and equal, they
must be governed in accordance with that nature, namely
by their consent, then, no matter what tyranny and evils
and unhappy future may bring to them, there is always
the hope that men will rise and throw off their
oppressors and be morally right in so doing.
25
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n
CHAPTER IV
•ORIGIE AED THE SOURCE OF GOVERHMEHIA1
AUTHORITY, ACCORLI1G TO WILSOE AED HOIMES
Force as a Sanction
There are two things here to he considered.
The first
is the origin of society and the second is the origin of
the state and its authority*
In regard to the first,
Mr. Holmes considers that it is purely adventitious that
men live together.
It is neither natural nor unnatural
for them to do so, rather it just happens that generally
speaking they have found it more convenient to live in
society than out of it.
The basic desire to live, even
is not natural*
As an arbitrary fact, Mr. Holmes says, people
wish to live and we say with various degrees
of certainty and that they can do so only on
certain conditions. To do it they must eat
and drink. This necessity is absolute.i
This last statement is not fully consistent with
Mr. Holmes1 basic philosophy.
Since he has insisted that
he knows nothing about absolute truth, he can not logically
state that he knows that to go on living it is absolutely
necessary to eat and drink.
1*
Mr. Holmes continues:
Holmes, Collected Legal Papers - Hatural Law, Page 312.
86
i
It is a necessity of less degree, tut
practically general that they should live
in society.
If they live in society, so far
as we can see there are further conditions.
Reason, working on experience, does tell us
no doubt that if our wish to live continues,
we can do it only on those terms. But that
seems to me the whole of the matter.
I see no
a priori duty to live with others and in that
way, but simply a statement of what I must do
if I wish to remain alive.-1This statement amounts to an over-simplification which
explains none of those things which rational man seeks to
know concerning the origin of society and the justification
for its existence.
Merely to observe the fact that men live
together and not alone is a very slight contribution to
political philosophy.
As Mr. Holmes himself said, in
another connection, nWe want reasons more than life
histories.11
The immediate conclusions which Mr, Holmes draws from
this general necessity deriving from an arbitrary fact,
explain, according to him, the second problem, namely,
the origin of the state and the source of its authority.
From the mere fact that men live together and that some
of them have in some unexplained manner gotten the upper
hand, arises the state and the government and with it the
crass physical necessity of those not having the upper
hand, to conform themselves to those who have.
Once a
person has arbitrarily decided that he wants to live and
1.
Holmes, Collected Legal Papers - natural Law, Page 313.
27
r
i
has discovered that it will he more convenient to live
in society, the following, according to Mr. Holmes, is
what happens to him:
If I do live with others, they tell me
that I must do and abstain from doing
various things or they will put the screws
on me. I believe that they will and, being
of the same mind as to their conduct, I not
only accept the rules, but come in time to
accept them with sympathy and emotional
affirmation and begin to talk about duties
and right.1
The only justification here discernible for the
existence o£ government is that in some way or other one
group has become dominant and has the power to impose its
will on the rest.
The will of this dominant group is the
source of the individuals rights and duties.
Once a
man has decided that he wants to live with others, he
enters into such a group as a sort of neutral being,
having neither rights nor duties nor governed by any law
except his arbitrary wish to continue living.
He is not
an autonomous moral being governed by a natural law.
He
is neither good nor bad, moral nor amoral, any more than
a vegetable or an animal is, but once he steps into
society and under the government of the "rest" he im­
mediately becomes transformed, he is assigned to duties
and he is endowed with rights, all his morality, his
rightness he derives from the rules which the others have
made.
L 1#
And the rules themselves are those things which
Holmes, — Collected
Legal Papers - natural Law, Page 313.
— — ——
—
j
have managed to get themselves accepted for the time
being, the things which the dominant group have agreed
upon, at least temporarily.
The state or the "others" is thus the sole source
of rights, that is to say once man has arbitrarily
decided that he wants to live, he finds
that hemust
live with others and that when he lives
with others
the others demand certain things of him and grant him
certain rights.
The state is the mouthpiece and over­
seer employed by the others.
from the state.
Rights and duties come
The result is that our rights depend
on our brute power to demand and secure
whatwe desire,
and our duties are simply those things which
we must do,
because others will force us to do them.’**
It is hardly necessary to point out the violent
contrast between all this and the concepts which have
been always recognized as essential to the principles
of democratic government, and especially the American
Constitutional principles which were held by the mahers
of the Constitution such as James Wilson.
In the first
place, it was precisely because the British government
was attempting to tell the Colonists what they must do
and precisely because the former was prepared and actually
did nput the screws on" the latter that the Colonists
rebelled.
1.
Nothing could possibly have been further
Holmes, Col. Legal Papers, Pages 313-14.
29
1
from their minds than to naecept the rules” of Parliament
and to "accept them with sympathy and emotional affirm­
ation.11
If there is one thing above all that the
Founding Fathers were absolutely sure of, it was that
their rights as free men and free subjects did not derive
from what the "others” - that is the Parliament - would
allow them to do, but that they were their inalienable
possessions, belonging to them as men and human beings
and not conferred on them by any society or government
and not to be wrested from them by any dominant power or
majority#1
Possibly in an effort to modify the shock which his
explanation of crass state power must convey to people
who have cherished the delusion that they were free men
and that the government was of their own choice and under
their control, Mr. Holmes asserted that while government
2
is essentially arbitrary and ruthless, nevertheless a
good government will exact its demands with as little
inconvenience to the individuals of the community as
possible.
In other words, all government is untrammeled
tyranny, but good government is benevolent tyranny.
The
force which government exercises completely untrammeled,
but nevertheless with as.ilittle distress as possible to
L
1.
Wilson Works, Vol. 11, P. 507-8 ff
2.
Holmes* Common Law, P. 45-44, Col. Legal Papers, P.
257-8, 205 U.S. 549.
J
so
r
1
the individual, is likened hy Mr. Holmes to the force
which individuals are said to bring to hear upon each
other*
Here, also, with the development of social life,
the force is hidden in the amenities, hut it is still
there, nevertheless, even as the force of government is
always at hand, not to protect or aid the individual,
hut to sacrifice him and his welfare, if necessary.
Mr. Holmes says that
The ever-growing value set upon peace and
the social relations tends to give the law
of social heing the appearance of the law of
all heing. But it seems to me clear that
the ultima ratio, not only regum, hut of
private persons, is force, and that at the
bottom of all private relations, however
tempered hy sympathy and all the social
,
feelings is a justifiable self-preference.
Thus the justifiable self-preference regum permits it to
exercise its force, tempered perhaps hy sympathy and the
social feelings, on the individual to his disadvantage.
If this is actually the case, then there is no longer
anyreason to continue
speaking ofthe rights of
in the moral sense, or of liberty,
democracy heing free.
or of people
citizens,
in a
All these concepts are merely
delusions, fanciful dreams to he ignored hy the dominant
power when they interfere with the "justifiable” self­
preference.
1.
Holmes, Common Law, Page 44.
j
31
1
r
The relationship between the individual and the
government is thus held to he one of struggle, the
latter making rules which are irksome to the former,
against which the former fights, as far as he is able*
On the other hand, the good government, moved by humane
considerations or prudence, modifies its arbitrary
exactions as much as possible,
nevertheless, the essential
struggle, like the perennial struggle among the animals
remains.
We read:
The struggle for life, undoubtedly, is
constantly putting the interests of men at
variance with those of the lower animals.
And the struggle does not stop in the ascending
scale with the monkeys, but is equally the law
of human existence.
Outside of legislation
this is undeniable.
It is mitigated by
sympathy, prudence, and all the social and
moral qualities. But in the last resort a
man rightly prefers his own interest to that
of his neighbors. And this is as true in
legislation as in any other form of corporate
action. All that can be expected from modern
improvements is that legislation should easily
and quickly, yet not too quickly, modify itself
in accordance with the will of the de facto
supreme power in the community, and that the spread
of an educated sympathy should reduce the
sacrifice of minorities to a minimum. ... the
more powerful interests must be more or less
reflected in legislation; which,, like any
other device of man or beast must'' attend in
^
the long run to aid the survival of the fittest.
In statements'of~this kind we find no appreciation of
the fact that government is necessary for the realization
of human happiness and perfection, no conviction that the
object of government is the common good, the good of each
1.
Holmes, Uncollected Papers, Page 107.
and all.
On the contrary, the purpose of government is
held to he the satisfaction of the demands of the majority,
with consequent unavoidable sacrifice of the minority.
It is the greatest good of the greatest number, the
welfare of the majority, who, ” ... having the power in
their hands, put burdens which are disagreeable to them
on-the shoulders of some one else.”
This theory of the all-importance, the necessity
and the dominance of force is not very different, it
seems, from the widely abhorred theories of force which
have been the controlling principle in various parts of
Europe.
In the theory being outlined, the ruthlessness
of force is represented as being moderated by social
feelings and the desire for peace.
is used by force in the other ease.
A different disguise
We read:
The national socialist leaders carried into
practice the new doctrine of violence, the
doctrine that spiritual assets are of value
for the legitimation of political power and
for nothing else; such things have no in­
trinsic authority, no value in themselves;
there is nothing that counts, except force;
it is by force alone that the elite comes to
the top. Force is applied at all times, for
the one purpose of maintaining the elite in
power - and applied ruthlessly, brutally,
instantaneously. But it is discreet to
provide a reason in justification for this
application of force, through a suitable
ideology.2
According to this theory and according to Mr. Holmes,
force is the thing that counts, the incidental trappings,
Holmes^ Uncol. Papers» P. 108.
E.
Also vide Col. Papers»
Herman Rauschning, The Revolution of M h i l i s m , P. 31. j
33
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n
whether ideologies or sympathetic feelings, are of no
importance.
If the above quotation presents an accurate
picture, then we have a perfect example of Mr, Holmes’
theories in practice.
Who are the elite, hut the
"others11, the "dominant power" which has its way hy the
ruthless exercise of force?
Paradoxical as it may seem
to admirers of Mr. Holmes, and especially to Mir. Frank­
furter, it would have heen necessary for him to approve
of the
rule of the "elite".
he held was desirable.
It is a kind of rule which
Mr. Holmes wrote:
we read that the most perfect government
is that which attains its ends with the least
cost, so that the one which leads men in the
way most according to their inclinations is
best. What havw £00 years added? What
proximate test of excellence can be found
except correspondence to the actual equili­
brium of force in a community -that is,
conformity to the wishes of the dominant
party? Of course, such conformity may lead
to destruction and it is desirable that the
dominant pov/er should be wise. But wise or jj
not, the proximate test of a good government </
is that the dominant power has its way.-*How to reconcile these theories of the dominance of
force with democratic .theories is a well-nigh impossible
task.
Granting the former, it becomes quixotic for the
individual to assejpttthat he has any rights as against
the state.
Yet this principle is the foundation stone
of democratic government and the only rational basis for
political and civil liberty which Mr. Holmes undoubtedly
believes in.
1.
l
For an attempted explanation recurrence must
Holmes, Col. legal Papers, P. £57-8. The first sentence
refers to Monte'squien* s Lettres Persanes.
j
34
r
be had. to the theory that governmental restraint is an
evil, hut an evil of a necessary kind,
i
Man viewed as an
individual only, with no reference to his social nature
is considered to he absolutely free in the sense that he
is free, even from the law of his own nature.
When the
essential sociability of man is denied, or, as Mr. Holmes
would have put it, when it is held that there is no a
priori duty to live with others, the restrictions which
society puts on man for the sake of its own existence
must he considered to he a necessary evil which man
would rather he free of, hut which he tolerates through
fear of having “the screws put on him.”
If it is held
that man is absolutely free, that he is a completely
autonomous heing, having all rights and no duties, it
becomes impossible to explain hy what rules his rights
may he restricted and duties demanded of him, except hy
the rule of force.
Mr. Holmes is realist enough to see
that while people may like to say that they are or should
he absolutely free, there are circumstances in which the
freedom of the individual is, as he says, “sacrificed
to the will and welfare of the rest.”
He writes:
... the dogma of equality makes an equation
between individuals only, not between an
individual and the community. Ho society
has ever admitted that it could not sacrifice
individual welfare to its own existence.
If
conscripts are necessary for its army, it
seizes them and marches them with bayonets
in their rear to death.
It runs highways
and railroads through old family places
L
J
35
“I
in spite of the owner's protest, paying
in this instance the market value, to he
sure, because no civilize! government
sacrifices the citizen more than it can
help, hut still sacrificing his will and
his welfare to that of the rest.1
The government, according to this explanation, always
does what it pleases since it is always stronger than the
individual, and thus the supposed absolute freedom of
the individual is seen to he non-existent whenever the
will of the government comes into conflict with the
supposed rights of the individual.
If the question is
one of equality of force or power, as between the in­
dividual and the government, the latter naturally has the
advantage.
But if the question is as to the equality in
nature, between the rights of man and the power of govern­
ment , then there is true equality and the humblest citizen
may assert his right against the most powerful government.
If man is so autonomous an individual, and his rights so
absolute, then the only way in which he can be controlled
by government is by absolute coercion, and conversely the
only way he can preserve any of his rights is by like
absolute force which he secures by weight of numbers as
is found in the dominant power.
Thus the theory which
starts out by proclaiming the absolute original freedom
of man - freedom even from the law of his human nature ends up by denying him any freedom whatsoever, except
1.
Holmes, Common L a w , Page 43.
j
what freedom he can obtain by the exercise of crass force
or whatever liberties a benign government may deign to
grant him*
This theory of the relatiohship between the individual
and the government fails to allow for an essential con­
sideration, namely, that man is not only an individual,
but that by nature he is also a social being, and by that
fact, is determined by nature to be a member of society.
Considered solely as an individual, man is truly an
autonomous being, possessed thereby of inalienable rights
which derive from the fact that his soul is directly
created and sustained by G-od, is destined for an un­
created end and is in its nature independent of creatures*
But man is also by nature a social being, destined to live
in society and under government of some hind.
From this
aspect of man arises his duties as respects other men.
For, while the soul, as regards its existence and end,
is independent of matter, yet in the human being it
actually is, here and now, united to the'- body. an& exercises
its faculties through the impressions conveyed to it by
the senses of the body,
fhese impressions, if they
contained nothing human ( in the supposed case of one
living apart from society) would be unable to develop
anything human in the recipient, and consequently such a
recipient might fortuitously live to develop as a human
animal, but certainly not as a rational human being.
37
Consequently, no one can develop the possibilities of
the human personality in any recognizable way, except by
living with other human beings in society, by means of
which living together the various members of the community
supplement and develop each other in human perfectability.
It follows from this that man by nature has duties of a
social hind and that these duties must be co-ordinated
with his inalienable rights as an individual to the end
that the potentialities of his human nature may be
realized and that' it may be possible for me, as a whole,
to live together with some possibility of order, peace
and progress, and that thus the common good or the good
of each and all may be realized.
On the other hand, Mr. Holmes - while tracing the
origin of duties to the dominance of force - nevertheless
makes a distinction between moral and legal right.'*- But
what he calls moral right is not based on anything in­
herent in the nature of man or anything demanded by his
final end, but is ascribed solely to subjective and
individual sources, as when he says:
... when we speak of the rights of man in
a moral sense, we mean to mark the limits
of interference with individual freedom
which we think are prescribed by conscience
or by our ideal, however.reached.
This reduces moral right to our conscious thinking
about it, or to our measuring our desires with our ideals,
however, reached.
l
1.
2.
Among other interesting deductions from
Holmes, Collected legal Papers, Page 171.
Ibid.
J
38
H
this position would he that idiots, for example, would
he devoid of any moral rights, and perhaps even a person
becoming unconscious would thereby lose his moral rights*
Another result, of this reasoning is, that since each
individual’s moral right is dependent on his conviction
and assertion of it, his realization of it becomes im­
possible, unless by fortuitous chance a majority of the
group happens to have the same consciousness and the same
ideal*
Consequently, the validity of moral right does not
depend on anything intrinsic to man, as man, but depends
on the fact that the individual man1s interpretation of
his conscience and his ideals happen to coincide with the
like interpretat ion and like ideals of the majority*
This
is in full keeping with Mr. Holmes’ repeated insistence on
the all-embracing character of the dominant power - the
power whieh is in control and can force the rest to conform*
It makes moral right to depend solely on the will of the
majority.
For, if moral right depends solely on the in­
dividualistic and subjective opinion and assertion, then
one must conclude that if moral right is to be anything
more than a phrase, it must depend for its existence on
the collective opinion and assertion of the majority.
Hence, if a majority, or a dominant power so wills, it
may abrogate any so-called moral right or might con­
ceivably invent new moral rights.
Consequently, while
Mr. Holmes is very insistent on making a distinction
_j
39
r
-j
between moral and legal right and complains that legal
writers are continually confusing the two,
it appears
that actually, according to his own reasoning, there is
after all no distinction between them.
For a legal
right, according to his view, may be said to be the power
to do, to possess, to act, etc., which the majority or
the dominant power has determined to guarantee to the
rest, and a moral Sight is nothing more than the power
to do, to be, to possess, etc., which the collective con­
sciences and the ideals of the majority or the dominant
power favor, and hence have decided to guarantee to the
rest.
Mr. Holmes admits that there are limits beyond
which no statute-making power would dare to go, because
if it did, the community ?/ould rise in rebellion and
fight,^ but this presumes that those arising to fight are
a majority, or at least a sufficiently large minority,
to make a fight possible.
Cnee again moral right is not,
founded on anything intrinsic to man or anything inherent
in his nature, but simply depends on the power of a
majority or a sufficiently large minority to make a fight
for what it wants.
Thus moral right, like legal right,
is established on the ability of the dominant power to get
what it wants, and as Mr. Holmes, himself, said, when the
dominant power has its way, then you have a good government,
1,
2.
L 3.
Holmes, Col, legal Papers,
I"bid.
Ibid.
P. 171.
P. 172
P. 172
3
40
n
If this is the case, then we may logically conclude
that the more powerful a tyranny is, the better the
government becomes.
It is not even essential that the
dominant power be wise.
be wise,
with.
It is merely desirable that it
and that qualification can easily be dispensed
Following his own theory, Mr. Holmes would have
had to say, for example, that Yenzuela, S.A., had a very
good government for over twenty years under G-omez.
For
that dictator certainly was the dominant power and he
certainly had his way, without any doubt.
But even Mr.
Holmes would be hard pressed to explain how the term
"good government” could ever be applied to the Gomez
regime, notorious as it was for its endless murders,
barbarities and injustices.
Finally, if Mr. Holmes1 theories were applied to
conditions as they existed in the time of James Wilson,
we should find that Mr. Wilson and his colleagues were
very wrong and misguided in their political theories.
For, if the government of George 111 had been a little
more powerful it might have been the dominant power
which had its way, and by that token it would have been
a good government, according to Mr. Holmes,
likewise,
the Colonists would in time, presumably, have begun to
love their chains and would have accepted finally, with
1.
Holmes, Col. legal Papers, Page 258.
_j
41
sympathy and emotional affirmation, those conditions
which they formerly fought against as unjust•
Fortunately
for us, Mr. Wilson and the others had sounder and more
rational opinions as to the origin and the authority
of government,
sic*#
L
42
n
CHAPTER V.
‘WILSOH1S THEORY OF THE HATURA1 M W
as the Foundation of Society and the
only Rational Sanction for the
Authority of Government
The foundation of all society and government, ac­
cording to Wilson, is or should he the natural law.***
In
contrast to Mr. Holmes who indicated that the only
natural law that he knew of, was that a dog will fight
for his hone*
2
Mr. Wilson makes the recognition and
acceptance of the natural law the only rational has is
on which a free man can claim immunity from arbitrary
force and the only reason why a free man should subject
himself to the reasonable commands of government*
Most of those who reject Wilson’s arguments in behalf
of the natural law as mediaevel and authoritatarian are,
like Mr. Holmes, unwilling to distinguish between a
philosophical and a theological argument.
Inevitably
they imagine that if mention is made of t h e ‘Supreme Being
in a philosophical discussion, at that very point the
argument has slipped into theology.
1*
2.
L
Hothing was further
Wilson Works. Vol. 1, P* 95 ff
Holmes, Col. .Legal Papers, P. 314.
Wilson Works, Vol. 1, P. 105.
_i
from Wilson’s purpose than to base his arguments in
respect to government on Revelation,
His purpose was
to show hy reason that there was a natural law, that
society and government worthy of the dignity of free men
is based on it and that the right to rule does not come
from the possession of superior force.
Yet he makes it
clear that, while his conclusions are rational, they are
nevertheless confirmed by Revelation.
He says:
These considerations show that the
Scriptures support, confirm, and
corroborate, but do not supersede
the operations of reason and the
moral sense.^
He points out, however, that
information with regard to our duties and
obligations, drawn from these different
sources, ought not to run in unconnected
and diminished channels; it should flow
in one united stream, which, by its
combined force and just direction, will
impel us uniformly and effectually towards
our greatest good.”
For thus openly expressing his reverence for G-od and
his faith in Divine Providence, Wilson is condemned by the
undiscerning as being merely pietistic and of confusing
what is known by reason with what is believed by Re­
velation.
The same charge is made against the Scholastics
because it is not discerned that they are not basing
their philosophical conclusions on Revelation, but that
they quote from the Scriptures and the Fathers in eonfirmat ion of that which they have already clearly proven
1.
2.
Wilson Works, Vol. 1, Page 123.
Ibid.
44
n
by reason alone.
levertheless if one will admit that reason can
demonstrate the existence of a Supreme Being and that
the human mind is capable of distinguishing with
certitude "between the Creator and creatures, it will "be
easy to follow Wilson*s arguments and to see the un­
doubted reasonableness of them,
lo doubt this would
have been impossible for Mr. Holmes, both because of
his attitude in regard to the attainability of absolute
truth and also his preliminary assumptions to the effect
that the first operation of the mind is an act of faith.
... we begin with an act of faith, with
deciding that we are not God, for if we
were dreaming the universe we should be
God as far as we know.1
likewise, Mr. Holmes1 skepticism and agnosticisn
concerning the nature of man and his place in the universe
would preclude the possibility of his agreeing with Mr.
Wilson^s reasoned conclusions from what was to him, and
are to most people, self-evident principles,
fo Mr. Holmes,
of course, they are not self-evident, but mere assumptions.
You can never prove that you are awake. By an
act of faith I assume that you exist in the same
sense that I do and by the same act assume that
I am in the universe and not it in me.*
1.
Holmes, Uncollected letters
letter to Mr.Wu, 6/16/23, P. 165
E.
Ib id.
45
n
r
Along the same line he says:
I think men even now ••• retain the theological
attitude with regard to themselves, even when
they have given it up for the cosmos* That is,
they think of themselves as little gods over
against the universe whether there is a big
one or not.
I see no warrant for it. I
believe that we are in the universe, not it
in us, that we are part of an unimaginable,
which I will call a whole, in order to name
it, that our personality is a cosmic ganglion,
that just as when certain rays meet and cross
there is white light at the meeting point,
but the rays go on after the meeting as they
did before, so, when certain streams cf'
energy cross, the meeting point can frame
syllogism or wag its tail.
I never forget
that the cosmos has the power to produce
consciousness, intelligent, ideals, out
of a like course of* its. energy, but I see
no reason to assume that these ultimates
for me are cosmic ultimates*
I frame no
predicates about the cosmos*
Since, therefore, man is just the crossing of two streams
of energy which can frame a syllogism, it is easy to
understand how Mr. Holmes con.ld be very unconcerned with
the nature of "cosmic ganglions0 which are unintelligible
parts of an unimaginable whole and how he could protest
that
I don’t believe that it is an absolute
principle or even a human ultimate that
man is always an end in himself - that
his dignity must be respected, etc. 3
and that as a result
our morality seems to me only a check on
the ultimate denomination of force.5
1.
2.
Holmes, Uncollected Papers, letter to Mr. Wu,
5/5/26, P. 185
15id, 8/26/26, P. 187
3.
15id.
46
“i
Consequently, Mr. Holmes would have agreed that man is
ruled by the laws of the ”cosmos” - or we may say the
laws of nature, but he would have denied that he is
ruled by the natural law, of which he claimed he knew
nothing.
As an antidote to this sterile skepticism, this
skepticism which boasts of its knowledge of the physical
universe and glories in its ignorance of the things which
give the universe any significance, namely, God and man,
we continue with Wilson*s exposition of the natural law.
Wilson’s maintenance of the natural law position is
clearly based on reason, allowing, of course, as a pre­
requisite that a rational man will admit that there is
a Supreme Being and that we are His dependent creatures.
The same Supreme Being who made us gave us a law.
This
law is not something extrinsic to man imposed arbitrarily
from above, but it is a law conformable to the very
nature of the creatures for whom it is made and designed
to secure them in their life and their development, ac­
cording to their potentialities.
It is that law given
to man by the Creator of man, and that law so conformable
to man’s nature that without it we would not be what we
are or perhaps what we should be.
There are laws given
to man by God which are to be found in the Sacred
Scriptures and in Revelation, but inasmuch as we are
L_
1.
Wilson Works, Vol. 1, P. 124 ff.
47
concerned here with philosophy and not with theology,
we consider only the Divine law which, as Wilson says,
is known to man hy reason*
This is the natural Law#
The natural law is first of all a law based on
reason.
It is not arbitrary in the sense that it is
based on God's power of will.
Justice Wilson holds
that it is founded in God*s wisdom by which He created
man as he is.
God, knowing what manfs nature is, gave
him a law in conformity with his nature.
As such it is
immutable because as long as man remains man he is
obviously immutable.
Wilson says:
The law of nature is immutable; not by the
effect of an arbitrary disposition, but
because it has its foundation in the nature,
constitution, and mutual relations of men
and things. While these continue to be the
same, it must continue to be the same also#
This immutability of nature's laws has
nothing in it repugnant to the supreme
power of an all-perfect Being, ilince he,
himself, is the author of our constitution;
he cannot but command or forbid such things
as are necessarily agreeable or disagreeable
to this very constitution. He is under the
glorious necessity of not contradicting
himself. This necessity, far from limiting
or diminishing his perfections, adds to
their external character, and points out
their excellency#-1Since all men have the same human nature, the law of
this nature is universal.
1.
Wilson continues:
Wilson Works, Vol. 1, Page 1E4
LIBRARY
J
48
The law of nature is universal* For it is
true, not onl^: that all men are equally
subject to the command of their Maker; hut
it is true also, that the law of nature,
having its foundation in the constitution
and state of man, has an essential fitness
for all mankind, and hinds them without
distinction#1
The law God gives us is for our own good.
Without
it we could not attain goodness and happiness or our
final destiny.
The Creator, Himself, is infinitely
good and happy and wills happiness for his creatures,
according to their nature.
Because of his infinite
wisdom, God knows and chooses the fittest means for
accomplishing the ends which he proposes.
These ends,
of course, because of God!s infinite goodness, are only
such ends as promote our happiness.
Again, because of
his power he is able to remove whatever may possibly
injure us, and to provide whatever is conducive to our
happiness#
By his wisdom also God knows our nature which
he created; he knows our faculties and our interests.
By his infinite goodness, he proposes our happiness and
in the same divine perfection may be found the principle
of his laws#
The reason is that God being infinitely
and eternally happy in himself, his goodness alone could
move him to create us and give us the means of happiness.
The same principle that moved his creating, namely, GodTs
goodness, moves his governing power.
We shall find the
rule of this resulting government in one paternal command o
let man pursue his own perfection and happiness.
ul.
2.
Wilson Worhs, Vol. 1, Pages 124-5
Ibid,
Page 99
J
49
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n
The problem which now arises is, along what lines
or according to what standards is man to pursue his own
happiness and perfection.
Has the Creator left him in
darkness and ignorance to grope blindly toward his goal,
without ever knowing whether he is really acting for his
own perfection and happiness or contrary to it*
Wilson
remarks that it would he very unnatural and improbable
indeed if the rational and moral world should be
abandoned to the caprices of chance or the ravages eft
disorder, while the inanimate and irrational creation
around and above us evidences such beautiful order in
all its motions and appearances*
Wilson, denying this
unreasonable supposition, maintained that the all-wise
Creator gave man a sure guide on the road to happiness
and human perfection.
He says:
In every period of our existence, in every
situation in which we can be placed, much is
to be known, much is to be done, much is to
be enjoyed* But all that is to be known, all
that is to be done, all that is to be enjoyed,
depends upon the proper exertion and direction
of our numerous powers*
In this immense ocean
of intelligence and action, are we left with­
out a compass and without a chart? Is there
no pole-star by which we may regulate our
course? Has the all-gracious and all-wise
Author of our existence formed us for such
great and such good ends; and has he left us
without a conductor to lead us in the way by
which those ends may be attained? Has he made
us capable of observing a rule, and has he
furnished us with no rule which we ought to
observe? Let us examine these questions for they are important ones - with patience
and with attention. Our labors will, in all
probability, be amply repaid. We shall probably
_i
find that, to direct the more important
parts of our conduct, the bountiful Governor
of the universe has been graciously pleased
to provide us with a law; and that, to direct
the less important parts of it he has made
us capable of providing a law for ourselves.
Both the law which we are given and the laws which we
fashion for ourselves should be such as are in conformity
with our nature.
Reason demonstrates that the former is
in complete conformity with our nature, since it comes
from the all-wise Law Giver.^
Under what conditions the
latter embodies the same conformity will be pointed out
later.
It is clear then, from what has been noted above,
that Wilson held that reason demonstrated the existence
of a natural law which has been given to man by the
Creator.
Before examining the reasons which Wilson
advances to show that man is obliged to obey this natural
law, it will be advantageous at this point to see what
Wilson held in regard to the origin of society.
The
reason for this apparent digression is twofold.
First,
?/ilsonfs arguments for moral obligation to obey divine
law are also arguments for moral obligation to obey manmade law* and this unity of obligation arises from the
fact that to Wilson the existence of human society is but
a manifestation of the essential nature of man or, we
might say, a normal result of the fact of the natural law.
In the second place, before considering the moral
1.
£.
3.
Wilson Works, Vol. 1,
Ibid.
Ibid*
Page 95
Page 99
Page 95 ff
3
obligation of human laws, it is necessary to examine
the origin of society in which these laws are found.
It should be noted that Wilson maintained that it was
possible that there could exist a society without civil
government,^" and it may be on account of this untenable
theory that he did not distinguish more explicitly
between the genesis of obligation of the natural law
and that of human laws.
However, Wilson’s basic theory
of society and government is sound and, according to it,
the ultimate obligation of all law is, as he says, the
will of God.^
The most important feature of Wilson’s theory of
society is that there is in the natural law a mandate
which obliges man to live in society with his fellow men.
Society i£«. therefore, not merely the result of man’s
normal wants or his inclinations, but is something
demanded by man’s essential exigencies.
Leading up to
this position, Wilson first rejects those theories
which hold that society is an evil necessity arising
from the evil tendencies of men.
He says:
(some philosophers) have alleged that society
is not natural, but is only adventitious to us;
that it is the mere consequence of direful ne­
cessity; that by nature, men are wolves to men;
not wolves to wolves; for between them union
and society have a place; but as wolves to
sheep, destroyers and devourers. Men, say
they, are made for rapine; they are destined
M i
V
£.
•— »
—
— —
m h
m~m
—
—
—
—
— —
—
—
■
MM *
——
Wilson Works, Vol. 1, Page 21
Ibid.
Page 105
—
*— •
—
-MM
mm m
—
—
.
—
a
•—
52
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r
to prey upon one another; each is to fight
for victory, and to subdue and enslave as
many of his fellow-creatures as he possibly
can, by treachery or by force. According to
these philosophers, the only natural princi­
ples of man are selfishness and an insatiable
desire of tyranny and dominion* Their con­
clusion is that a state of nature, instead
of being a state of kihdheksfsspcdety^rand
peace^ris a state of selfishness, discord
and war. By a strange perversion of things,
they would explain all the social passions
and natural affections, as to denominate
them of the selfish species.
On the contrary, he holds that the social passions
and natural affections, as well as our intellectual powers,
indicate that we are made for social existence.
The Author of our existence intended us to
be social beings; and has, for that end,
given us social intellectual powers. They
are original parts of our constitution;
and their exertions are no less natural
than the exertions of those powers, which
are solitary and selfish.^
Our moral perceptions, he says, indicate the same
Our moral perceptions, as well as the other
powers of our understanding, indicate, in
the strongest manner, our designation for
society. Veracity, and its corresponding
quality, confidence, show this, in a very
striking point of view.
If we were in­
tended for solitude, those qualities could
have neither operation nor use.
The whole of human nature shows that we are destined
for society.
1.
2.
2.
Works, Vol. 1,
Ibid.
Ibid.
Page 255
Page 258
Page 261
j
53
We have all the emotions, which are
necessary in order that society may he
formed and. maintained ... we have affection
for our children, for our parents, and for
our other relations; we have attachment to
our friends; we have a regard for reputation
and esteem; we possess gratitude and com­
passion; we enjoy pleasure in the happiness
of others, especially when we have heen
instrumental in procuring it ... we feel
delight in the agreeable conception of the
improvement and happiness of mankind.-1’
Wilson1s final argument points out that man lives in
society by moral obligation of the natural law, the law
given him by his Author*
(In society) he who acts on such principles,
and is governed by such affections, as sever
him from the common good and public interest,
works, in reality, towards his own misery:
while he, on the other hand, who operates
for the good of the whole, as is by nature
and by natureTs God appointed him, pursues,
in truth, and at the same time, his own
2
felicity. . . . . . . .....................
To a state of society, then, we are invited
from every quarter.
It is natural; it is
necessary; it is pleasing; it is profitable
to us.
The result of all is, that for a state
of society we are designated by Him, who is
all-wise and all-good.^
Having thus established the need for society in the
natural law, Wilson proceeds to his htudy of
the state.
Thereis no need here to attempt to disprove
his theory
of "natural Society" or society without government.
It is
his exposition of the nature of civil society that is of
1.
2.
Works, Vol. 1, Page 263
Ibid..
Page 270
3.
Ibid.
j
interest at this point.
The state, he says, is an
artificial (moral) person, brought into being by a body
of free persons who have united together for their
common benefit to enjoy peaceably what is their own
and to do justice to others.
This moral person has its
affairs and its interests, its rules, its obligations
and its rights.
A singleness of purpose and intention
among those who constitute the state is necessary for its
formation*
In order to constitute a state, it is
indispensably necessary, that the wills
and the power of all the members be united
in such a manner, that they shall never act
nor desire but one and the same thing, in
whatever relates to the end, for which the
society is established.
It is from this
union of wills and of strength, that the
state or body politic results. The only
rational and natural method, therefore, of
constituting a civil society, is by the
convention or consent of the members, who
compose it. For by a civil society we
properly understand, the voluntary union
of persons in the same end, and in the same
means requisite to obtain that end. This
union is a benefit, not a sacrifice: civil
is an addition to natural order.
It is clear then that Wilson establishes the whole
structure of society on the natural law, and, as a con­
sequence the actual constitution of any given state, its
laws and the obligation to obey its laws must be appraised
a
according to that law.
For if it is man's duty by the
1.
2.
3.
Wilson
Ibid.
Ibid.
Works, Vol. 1, Page 271
Page 272
Pages 93, 137 ft.
Natural law to pursue his perfections and happiness, as
Wilson maintained, and if this can not he done with any
degree of success without civil government,*^ as he likewise
admitted, it follows that, according to Wilson1s own
fundamental principles, the state is a natural institution,
and the author ity^whichiJLt ppssessest.poines to it from
the natural law.
The manner in Vtfhich it obtains this
authority, namely, by consent, has been indicated above.
Men, being under the obligation of perfecting themselves,
fulfill that demand by living in society and under
government.
The government is formed by their mutual
consent for the accomplishment of their purposes.
But
having been formed it has the status of a moral person
with rights, among which principally is the right to
make whatever laws are necessary for the realization of
the purpose for which it was originally established,
namely, human perfectability or the common good, which,
of course, is not the good of the greatest number but
the good of each and all*
Having seen Wilson!s philosophy of the origin of
the state, the next question is what obligation is there
to obey whatever laws the state may make.
It is a
question, of course, of moral obligation because it is
obvious that governments might and, of course, many times
have exacted obedience to law by mere force.
Wilson is
concerned with moral obligation which is the ohly kind
1.
Wilson Works, ¥ol* 1, PP. 344 and 535
_i
that agrees with the rational nature of man.
Since the
claim all along has heen that human law should he in
conformity with natural law, it is necessary to note,
first, what Wilson held in regard to the obligation to
©hey natural law*
There can he no question, he says, hut that the
Creator has the absolute right to make laws for his
creatures and demand their fulfillment.
We depend on
our Creator, hence his absolute power oyer. us.
Wilson
bases God’s right to legislate on his perfections, his
infinite power and his infinite wisdom.
This supreme
right to rule imposes on us a perfect obligation to obey#1
Therefore, we have a perfect obligation to obey the
natural law.
Among the percepts of the natural law, to
repeat, is the command to pursue ondts own happiness and
perfection#^
This is possible only in society and govern­
ment,^ and the latter necessarily implies the existence
of human laws.
Therefore, man has a moral obligation,
based on the natural law, to put himself in conformity
with the human law.
This proposition, of course, pre­
supposes well-known principles, such as that the laws
to be obeyed are just laws, as an unjust law is no law
and hence there is no obligation to obey.
Again, that
the laws really are intended to further the common good
1#
2.
3#
Wilson Works, Vol. 1,
Ibid.
Ibid#
Page 95 ff.
Page 99
Page 270
57
"i
and that they are not arbitrary, capricious, tyrannical,
or have any other qualities which put them at variance
with the natural law*
Ultimately, therefore, there is a moral obligation
to obey all just law*
The efficient cause of this moral
obligation, Wilson states, is the will of God.
To the
(question being stated - what is the efficient cause of
moral obligation - he answers, it is the will of God.
This is the supreme law.'*’ As shown, God has the full
and just right of imposing laws.
obeying them.
We have the duty of
These are the co-ordinated causes of
moral obligation.
Reason or, as Wilson says, the moral
sense or conscience makes it clear to us that we, knowing
what God is and what we are, have the perfect obligation
to obey God.
This is a first principle; we can go no
further and still remain reasonable beings.
If under­
standing the terms one will not admit that man must obey
God, but demands a proof, such a person is unable or
unwilling to recognize a self-evident proposition.
There is a defect in Wilson’s further reasoning on
this subject.
He introduces the idea that one must have
a feeling that he ought to obey his conscience.
a lapse in logic.
This is
The conscience is an act of judgment
of the intellect, not a feeling.
Wilson has already
clearly demonstrated the existence of self-evident first
1.
!_
Wilson Works, Vol. 1, Page 105
_I
58
principles^ among which he finds moral first principles
which, he says, are as intuitively grasped as the axioms
of mathematics.
2
Hence, when the human intellect is
sufficiently developed to grasp the ideas of God, man,
law and obedience, it makes the immediate Judgment, as
stated before, that man must obey God*s law.
Yet Wilson
makes the somewhat obscure statement that
if a person were not possessed of the feeling
before mentioned; (that the conscience ought
to be obeyed) it would not be in the power of
arguments to give him any conception of the
distinction between right and wrong.®
In marked contrast to this conclusion, we find him
saying further on that Tlnever was there any of the human
species above the condition of an idiot to whom all
actions appeared indifferent
From this we must conclude that every man having the
use of reason does knoY<? the difference between right and
wrong, at least in their more basic aspects.
Wilson,
himself, admits this when he says:
As virtue is the business of all men, the
first principles of it are written on their
hearts, in characters so legible, that no
man can pretend ignorance of them, or of his
obligations to practise them.^
1.
2.
5.
4.
Works, Vol. 1, Page 231
Ibid.
Page 516
Ibid.
Page 106
Ibid.
Page 110
5.
Ibid.
Page 111
_i
59
“
n
Consequently, no arguments are needed to convin©e
any rational man of the first principles of right and
wrong.
They are self-evident.
As to secondary, in­
ferential principles, if we admit that the first
principles are known immediately, and we are dealing with
one who has the use of reason, we must conclude that hy
instruction he can he made to understand even secondary
principles of right and wrong.
In any event, no one is
without the scope of the natural law, as Wilson, himself,
implies when he quotes Cicero1s famous definition to the
effect that the natural law f1is diffused among all men,
unchangeable, eternal ... it calls men to their duty ...
it deters them from vice.111
Evidently no one, even if he
does not '^feel*1 the obligation of the lav/, is exempt from
it.
Those who deny that there is a moral obligation to
obey law have always been most ingenious, Wilson notes,
in propounding substitutes and suggesting other reasons
why law should be obeyed.
Among the reasons advanced,
he finds the bare fact of a superior the very relations
of things, the fitness of law, utility, sociability.
As
the idea of superiority may be considered to be synonymous
with force and as a large part of this paper has been
devoted to Mr. Justice Holmes1 theory of force as the
-*-•
!_
Wilson Works, Vol. 1, Page 125.
60
prime factor in government, it may "be proper here to
quote at length Mr. Wilson1s refutation of force as a
reason for submit ting to law.
He writes:
We can distinguish two hinds of superiority
(1) A superiority merely of power; (2) A
superiority of power, accompanied with a
right to exercise that power.1
The reason he makes that important distinction is
because he holds that where there is a right to exercise
power, that power may lawfully be used.
Continuing, he
says:
Is the first (mere power) sufficient to
entitle its possessor to the character and
office of a legislator? If we subscribe to
the doctrines of Mr. Hobbes, we shall say,
that it is.
'To those,1 says he, *whose
power is irresistible, the dominion of all
men adhereth naturally, by their excellence
of power.1
This position, strange as it is, has had its
advocates in ancient, as well as in modern
times. Even the accomplished Athenians, who
excluded it from their municipal code, seem
to have’ considered it as part of the received
law of nations.
'We follow,' says their
ambassador in the name of his commonwealth,
'the common nature and genius of mankind,
which appoints those to be masters, who are
superior in strength* We have not made this
law; nor are we the first who have appealed
to it. We received it from antiquity: we
are determined to transmit it to the most
distant futurity* and we claim and use it
in our own case.
Wilson Works, Vol. 1, Page 62
2.
L-
Ibid.
Pages 62 and 63
-J
61
—i
r
Mr. Wilson,
in further illustration of the
history of the theory of the superiority of power or
force as a title to rule, mentions as exponents of it
Plutarch, and Brennus, leader of the Gauls.
in spite of
give
Nevertheless,
whatever claim to respect its antiquity may
it, he does not hesitate to reject it utterly and
completely.
In stirring and unforgettable words he
declares:
For us it is sufficient, as men, as citizens,
and as states, to say that power is nothing
more than the right of the strongest, and may
he opposed by the same right, by the same
means and by the same principles, which are
employed to establish it. Bare force, far
from producing an obligation to obey, pro­
duces an obligation to resist.-1’
With like emphasis, Mr. Wilson rejects a theory
which is a consequence of the superior force theory,
namely, that men in joining society have given up their
natural liberties and have received in exchange from the
state their nrights.n
He writes:
If this view be a just view of things, then
the consequence undeniable and unavoidable,
is, that, under civil government, the right
of individuals to their private property, to
their personal liberty, to their health, to
their reputation and to their life, flow
from a human establishment, and can be traced
to no higher source. The connection between
man and his natural rights is intercepted by
the institution of civil society*
If this
view be a just view of things, then under
civil society man is not only made for, but
made by the government; he is nothing but what
the society provides. His natural state and his
g
natural rights are withdrawn altogether from notice.
l_
1.
2.
Works, Vol. 1, Page 63
ibid; Vol. 11, Page 302
62
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That the eonelusions here outlined "by Mr. Wilson
are inescapable and that this theory of governmental
power was the one farthest from the minds of James Wilson
and the Founding Fathers must be amply evident. Yet it
is in effect the theory which finds favor with Mr. Holmes
who strangely enough is widely accepted as an authentic
interpreter of the spirit of our Constitution.
This
situation would simply seem to indicate that vast numbers
of the American people and many in high position do not
know on what principles our government was established,
and more importantly do not know that once those sound
principles of representative government have been
abandoned there is nothing short of revolution, as
Mr. Holmes would have put it, that can keep our
democracy from degenerating into ruthless tyranny.
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63
'CHAPTER VI
'APPLICATION OP HOLMES1 AND WILSON1S THEORIES
‘In concluding this consideration of the very widely
divergent theories of Mr* Holmes and Hr. Wilson, it may
he interesting to see what effect their theories of
government had on them when they come to the solution of
the practical problems of political life*
Por both men,
besides being students and philosophers, were pre-eminently
men of action*
Having examined their respective theories,
it is fitting to ash what effect their theories had on
their public activities.
Two examples will suffice.
In
the case of Mr. Holmes, we refer to a decision - typical
of several others - which he delivered while he was
Associate Justice of the Supreme Court.
In this decision
he put into effect his theory of the unlimited power of
the state and declared that no government can make rules
which it, itself, is bound to observe.
In Kawananakoa
vs. Polyblank, he said:
Some doubts have been expressed as to the
source of the immunity of a sovereign power
from suit without its own permission, but
the answer has been public property since
before the days of Hobbes, leviathan, chap.
26,2. A sovereign is exempt from suit, hot
_!
64
n
■because of any formal conception or obsolete
theory, but on the logical and practical
ground that there can be no legal right as
against the authority that makes the law on
which the right depends* 1Car on peut bien
recevoir loy d !autruy, mais il est impossible
1
par nature de se donner loy.1 Bodin, "Republique.”
In refutation of this undemocratic and uneonstitutionalidoctrine, it may be permissible to quote Mr. John
Maxcy Zane, who, branding Holmes1 opinion as a nlegal
heresy", in a lengthy article, showed that the authori­
ties quoted by Mr, Holmes are either no authorities at
all or that they have been misunderstood by him.
Mr, Zane
writer:
The principle asserted here is that no law can
create a legal right against the government ,,.
the divine right of kings fwrit large1. In many
cases the Supreme Court has ruled the exact
opposite.
Such a statement as that no govern­
ment can give law to itself, that the govern­
ment inc.its judicial capacity is not bound by
the laws, must be given a close scrutiny.
If
it be true, as Justice Holmes says in another
place, as a corollary to the proposition that
no laws bind the state, that the government
under the police power can enact as law what­
ever is held by ’strong and preponderant opinion,’
whereas our Supreme Court has said that there
are rights of the citizen which are beyond
’reach of the state’ and which are ’not subject
to the absolute disposition and unlimited control
of even the most democratic depositary of power.’
If we hold our rights ahd our property at the
mere sufferance of ’strong and preponderant
opinion,’ we hafe reached in the domain of legal
thought, a very dangerous stage. But when we find
the originals vouched for what Justice Holmes
asserts to be ’public knowledge since before the
days of Hobbes,’ we shall see that the ancestors
invoked would be the first to repudiate their
alleged deseendant•2
1.
2.
205 U.S., Page~353
UoHh^Maxcy Zane, A Legal Hersey, Celebrated Legal
Essays by Various Authors, northwestern University-*
Press, Chicago, 1919.
65
Mr. Zane continues at great length and makes so
n
devastating a refutation of all Mr. Holmes* theories at
law that when one reads it, one might reflect that it
was unfortunate for Mr- Holmes* reputation that he did
not follow in this ease his usual practice and leave
his theoretical views out of this Opinion.
The example of Mr. Wilson as a philosopher putting
his theories to practice is found in an article which he
published as a protest against the unlawful actions of
the English Parliament in respect to the American Colonies.
It was written in 1774, when Wilson was thirty-two years
old and had been in America only eleven years.
His "advertisement” for this article ”0n the Legis­
lative Authority of the British Parliament” is most
interesting, as showing how his ideas on the subject
developed as he studied the problem.
He writes:
Many will, perhaps, be surprised to see the
legislative authority of the British Parliament
over the Colonies denied in every instance.
Those the writer informs that, when he began
this piece, he would probably have been sur­
prised at such an opinion himself; for that
it was the result, and not the occasion, of
his disquisitions. He entered upon them with
a view and expectation of being able to trace
some constitutional line between those eases
in which we ought, and those in which we ought
not, to acknowledge the power of Parliament
over us.
In the prosecution of his inquiries,
2.
”In writing decisions, while one always has one*s
theoretical views in the back of one*s head, one
generally, I think, finds it better not to exhibit
them too freely, as one doesn’t wish to seem
pedantic or unpractical.”
Holmes, Uncollected Papers. Letter to M r . W u , P. 192
lie 'became fully convinced that such a line
does hot exist; and that there can he no
medium between acknowledging and denying
that power in all eases•
In this introduction we see foreshadowed the im­
portance which Wilson attaches to moral obligation as a
reason for submitting to lawful government.^ Throughout
the entire essay Wilson is concerned only with moral
obligation and moral right.
To obey because of mere
force is to him nothing else than slavery.
3
True to his
underlying philosophy, he is ready and determined to
resist if he can find no moral obligation to submit to
authority.
He notes that it may be futile to resist,
nevertheless the attempt ought to be made.
Though the
Colonists should suffer defeat, they may even, when
living under tyranny, console themselves with the know­
ledge that they fought in a noble cause and though they
may be made to suffer unjustly, they are nevertheless
superior to the proudest slaves.
On the contrary, if it
should happen that the Americans should be re-installed
in the enjoyment of those rights to which they are entitled
2.
3.
Wilson Works, Vol. 11, Page 503
Wilson, in this article, is protesting, of course, only
against the unlawful exercise of power by the
Parliament. Allegiance to the king he still holds
to be the duty of the Colonies* The time and
circumstances were not yet ripe for the complete
break with the British government, which came two
years later.
Wilson Works, Vol. 11, Page 505
67
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n
by the laws of nature and the principles of the British
constitution, then they will reap the glorious fruit of'
their labors;
and they shall, at the same time, give to
the world an example that the cause of liberty ought not
to be despaired of, and that a wholehearted struggle in
that cause is not always unattended with success.^
It is in the nature of government, Wilson notes,
that it should possess sovereignty,
fhis sovereignty
might conceivably be of a supreme, irresistible and
uncontrolled kind, and, presuming that as such, it was
nevertheless founded on the free consent of those who
were governed under it, it could be a prerogative of
p
lawful government*
But he is quick to ask if such a
sovereignty would contribute to the happiness of the
American Colonies.^ He does not think it will, and con­
cludes that if it does not contribute to their happiness
it is not proper that the Parliament should have such
powerFor
the "happiness of society," rather than
that the "dominant power has its way," is, according to
Wilson, the first law of every government.^
1*
2.
3.
4..
5.
Wilson Works, Vol. 11, P. 506
Ibid.
P. 507
Ibid
P. 509
P. 521
Ibid
Ibid
P. 508
_j
68
~i
Nevertheless, it appears that the Parliament claims
such supreme sovereign power over the Colonies,
As
regards the English people, no such claim has any
foundation.
The Parliament is on the contrary very
controlled and it can he resisted.
The English people
elect their representatives, and that at frequent
intervals, and they likewise can easily recall them.
This right of controlling the sovereignty of Parliament
is clearly the right of the English,-*have no such rights.
But the Americans
They should have them, Wilson says,
and asks:
Can the Americans, who are descended from
British ancestors, and inherit all their
rights, he blamed - can they he blamed BY
THEIR BRETHREN IN BRITAIN - for claiming
still to enjoy those rights? But can they
enjoy them, if they are hound by the Acts
of a British Parliament? Upon what
principle does the British Parliament found
their power? Is it founded on the prerogative
of the King? His prerogative does not extend
to make laws to hind any of his subjects.
Poes it reside in the House of lords? The
Peers are a collective, and not a representative
body.
If it resides anywhere, then, it must
reside in the House of Commons,2
Should any one object here, that it does not reside
in the House of Commons only, because that House can not
make lav/s without the consent of the King and of the
Lords; the answer is clear.
Though the concurrence of
all the branches of the legislature is necessary to every
1.
2.
Wilson Works, Vol. 11, P. 509 ff
Ibid.
P. 521
_!
law; yet the same laws "bind different persons for
different reasons, and on different principles.
King is hound, because he assented to therm
are hound, because they voted for them.
The
The lords
The Representa­
tives of the Commons, for the same reason, hind them*1
selves, and those whom they represent.
It v^ould he
difficult to find a better exposition of the force of
moral obligation as a universal force binding for
different reasons to the observance of the law, not only
the people but the government as well.
If moral
obligation carried no weight as against superior power either of the government or of the people - then it would
have been futile and a waste of time for Wilson to write
as he does of the King being bound, the lords and the
Representatives, and those whom they represent, the
people being bound by law.
Turning to the consideration of why the people may
be bound to obey, not by force,of course, but morally
bound, Wilson continues with increasing eloquence:
If the Americans are bound neither by the
assent of the King, nor by the votes of the
lords, to obey Acts of the British Parliament,
the sole reason why they are bound is, because
the representatives of the Commons of Great
Britain have given their suffrages in favor
of these Acts-.*
But, are the Representatives of the Commons of
Great Britain the representatives of the Americans?
they elected by the Americans?
Are
The answer, of course, is
1.~ Wils‘on“ WorksT Vol .~11 ,~p 7 521
2. Ibid.
1
70
negative and the result is that the former felloweitizens of the Americas, namely, the English, have
taken upon themselves, through their representatives in
Parliament, the assumed power of ruling the Americans*
On what grounds, Wilson demands, have they assumed this
right♦
Have they a natural right to> make laws,
hy which we may he deprived of our
properties, of our liberties, of our
lives? By what title do they claim to
he our masters? What act of ours has
rendered us subject to those, to whom
we were formerly equal?1
There is no justification for this assumption of
power, for, as Wilson has insisted, there is no title
hy which among men who are hy nature free and equal,
one group should presume to impose its will on another
group contrary to the latter1s consent.
2
Since the
"dominant” or the "preponderant” group has no right to
demand compliance, except the unwarranted right of
superior force, Wilson is prepared to resist to the
utmost.
This stand was, of course, the traditional one
taken hy the Colonies.
Wilson writes:
My sentiments concerning this matter are not
singular. They coincide with the declarations
and remonstrances of the Colonies against the
statutes imposing taxes on them.
It was their
unanimous opinion that the Parliament have no
right to exact obedience to those statutes;
and, consequently, that the Colonies are under
no obligation to obey them.^
1.
2.
i_ 3.
Wilson Works, Vol. 11, P. 521
fbid.
’
PP. 507-508
Ibid.
P. 536
71
r
n
There beirg no obligation to obey where there is
no right t o rule, the only way in which a man of
Wilson1s sentiments could "be made to obey is by superior
force.
This, as he has noted, reduces one to the
condition of slavery.
1
^ ^^
1.
L
Wilson Works, Vol. 11, P. 508
72
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r
CHAPTER ¥11
GOTCHUSIOH
Thus it is clear that to Wilson and his colleagues,
the thought of unbridled governmental power was abhorrent •
Force, as Wilson said, was not a motive for obedience,
but it produced an obligation to resist - an obligation
that is to defend with all their power their rights which
they had received from God and which they must defend by
virtue of the God-given command too pursue their own
happiness and perfection.
On their nature, as creatures
of God, bound to him by immutable natural law, they
predicated their natural inalienable rights.
They de­
fended them on those self-evident principles which their
reason taught them were not mediaeval or theological, but
a consequence of the essential relationships existing
between God and man, and between men themselves.
But, as
has been well said recently:
In the course of the. nineteenth century it
ceased to be intellectually respectable to
affirm that any principle is self-evident,
inalienable, eternal and universal. And
thus, there was cut away the ultimate
ground on which liberty can alone be
defended, as ^against the argument from
expedience and the prestige of power and
success*1
l- 1.
Walter lippman - Hew York Herald Tribune, 12/14/39
j
73
H
r
That ultimate ground is the natural law.
The men
who framed the Constitution were so sure that their
inalienable rights were established in the nature of
man as he was created by God, that they considered it
almost a religious duty to defend those rights against
tyrannical power.
illegal —
In their philosophy, oppression was
even if done under the forms of law.
If laws
contravening their inalienable rights were made, whhther
by Icings or parliaments, by popular majorities or pre­
ponderant opinion, they were prepared to disobey.
to have resisted would have been to disobey God.
Hot
If
superior power attempted to coerce them they were pre­
pared to rebel.
Their later inevitable rebellion was not
against authority.
It was against arbitrary force
masquerading as lawful authority.
Having finally rejected unlawful government, they
then established a lawful government of their own - a
government which was constructed according to the exi­
gencies of human nature in regard to society and the
state, a government established according to the consent
of the governed, a government whose ultimate authority
proceeds from the Author of human nature , a government
according to the Hatural Law*
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74
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BIBLIOGRAPHY
B’arnum, George R.
Holmes, The Mystic Philosopher,
American Lawyer, December 1937.
Frankfurter, Felix
Justice Holmes Defines the
Constitution, Boston,
Atlantic Monthly, October 1938
Howe, M.A. De Wolfe (ed.)
A Packet of Wend.ell-James
Letters, Hew York, Scribners,
December 1928.
Holmes, Oliver Wendell, Jr. Collected Legal Papers,
H e w York, Harcourt , 1920.
Holmes, Oliver Wendell, Jr. His Book Hot ices and
Uncollected Letters and
Papers (el. Harry '£. Sbiriver),
Hew York Central Book Co., 1936.
Holmes, Oliver Wendell, Jr. The Common Law, Boston,
Lit'tie Brown, 1938.
Lippmann, Walter
Today and Tomorrow, Hew York
Herald 'Tribime, 12/14/39
Perry, Ralph Barton
Thought and Character of
William James, Boston,
Little Brown, 1936
Raus chning, Hermann
The Revolution of Uihilism
H e w York, Alliance Book (Jo.,
1939.
Wilson, James
L
The Works of James Wilson
Ted. James De Witt Andrews)
2 vols., Chicago, Callaghan,
1896.
_i
75
n
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BIBLIOG-RAPHY - (Continued)
L
Wilson, James
Selected Political Essays
of James Wilson (ed.
Randolph Ck Adams) Hew York,
Knapf, 1920.
Zane, John Maxcy
A Legal Heresv, Celebrated
Xegal Essays' by Various
Authors^ dnieag o, North­
western University Press,
1919,
r
YIPA
Hame
Eugene Raymond Gallagher
Bate of Birth
November 10, 1897
Elementary School
Graduated
Public School, Rahway, Hew
Jersey, 19IS#
High School
Graduated
St. Peters Preparatory School,
Jersey City, Hew Jersey, 1916.
Baccalaureate Begree
College
Bate
A.B.
Seton Hall College
1920
Other Begrees
College
Bate
L_
M.A.
Seton Hall College
1922
_i
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