The Second Forgotten Man

I

I SHOULD say at the outset, perhaps, that my title bears no relation to Mr. Norman Hall’s striking story in the March Atlantic. My mind reverts to the year 1883, when Professor William Graham Sumner, for many years Professor of Sociology at Yale University, delivered a lecture entitled ‘The Forgotten Man.’ Most schemes of social reform, Professor Sumner said, proceed along the following lines: ‘As soon as A observes something which seems to him to be wrong, from which X is suffering, A talks it over with B, and A and B then propose to get a law passed to remedy the evil and help X. This law always proposes to determine what C shall do for X, or, in the better case, what A, B, and C shall do for X. As for A and B, who get a law to make themselves do for X what they are willing to do for him, we have nothing to say except that they might better have done it without any law, but what I want to do is to look up C. I want to show you what manner of man he is. I call him the Forgotten Man.’

This is all very well so far as it goes, but it appears to me that there are two forgotten men instead of one in the cast of Professor Sumner’s little drama. There is C, whom A and B seek to compel to help X, but there is also X, whom A and B seek to help. Usually X has not asked help from anyone and is not consulted about whether he needs help or not. I call him the Second Forgotten Man, and what I want to do is to discuss his connection with some of the problems of popular lawmaking.

The concept of law is, I suppose, one of the very oldest in the history of civilization. In every moderately advanced state of society, except that of early England, the word ‘law’ has had only one significance — namely, a rule prescribed by a superior. A given situation has arisen and people have said, ‘What was the decree of the chief in cases like this?’ or ‘What is the decree of the chief in this case?’ or ‘Let the tribe vote to decide what shall be done,’ or ‘What do the wise men say?’ or, what is in practice the same as the last, ‘What is the will of the god?’ Now our Anglo-Saxon ancestors, at least in England, never asked questions or made statements at all like these. Instead they asked a paradoxical question. Whether the paradox implied in the question is true or false or partly true and partly false will appear hereafter. But the question was: ‘What is the law?’ This means that our ancestors regarded the law, not as a rule laid down by anybody to meet the exigencies of a particular case or set of cases, but as an existing thing and a thing which had existed from ‘time whereof the memory of man runneth not to the contrary.’ To borrow a theological expression, they habitually thought of law as something begotten, not made.

One of the necessary results of this conception is interest in and regard for ancient customs. If the law is indeed immemorially old, there is no better evidence of what the law is than timehonored practices, and the older a practice is the better evidence it becomes. You remember what Sir Richard, the Norman, says about his Saxon friend in Puck of Pook’s Hill: ‘His Saxons would laugh and jest with Hugh, and Hugh with them, and — this was marvelous to me — if even the meanest of them said that such and such a thing was the Custom of the Manor, then straightway would Hugh and such old men of the Manor as might be near forsake everything else to debate the matter — I have seen them stop the mill with the corn half ground — and if the custom or usage were proven to be as it was said, why, that was the end of it, even though it were flat against Hugh, his wish and command. Wonderful!’

So it came about in England that all men knew the exact rights of a widow in her deceased husband’s estate and the precise penalty for cutting off a man’s hand, not only centuries before there was a written law governing these subjects, but centuries before there was any formal declaration, whether written or oral, that a widow had any rights in her deceased husband’s estate, or any formal prohibition against doing hurt to one’s neighbor. And in theory, as I have said, a man did one thing and avoided another, not out of deference to custom, but out of deference to law. The law already existed and the custom was evidence of it — that was all.

All this is interesting enough as a mere matter of legal history, but the really important question is how much truth there is in the proposition that the law exists antecedently to any written or oral statement of it and that the office of courts and legislative bodies is only to declare the law. In one sense — though a sense which is, I think, both narrow and superficial — the proposition is certainly not true. I mean that when a new condition arises in the world — as, for instance, by the invention of the aeroplane — it is absurd to suppose that there is, eo instante, a law to meet the precise condition thus created. All that the common law has to say about aeroplanes is that the owner of land owns the air above the land as high as to the sky — a pronouncement which was born in an age when a man could not make use of air to a greater height than he could build, and which, consequently, will not square with the facts of the present day.

But, in a much wider and deeper sense, I think that the proposition of the common law is true. I will go a step further. The truth which lies at the centre of it is the same truth which lies at the centre of democracy, and upon a realization of that truth the health and safety of our American body politic and the integrity of our contribution to the political heritage of the future very largely depend. In order to justify these convictions, something must be said, if only by way of definition, about the nature of democracy.

II

The word ‘democracy’ is commonly used to mean, first, a political party — in the United States — as opposed to Republicanism; secondly, a form of government — sometimes called a pure democracy — as opposed to a republic; and, thirdly, a form of state, as opposed to a monarchy or an aristocracy. In what follows I am using the word only in the third sense.

Now democracy in this sense is indeed partly conceptual and approximate — becoming rather than being, evolving rather than evolved. The ideal democracy, like the kingdom of God, does not exist, and perhaps will never exist, on earth; but a faith in democracy presupposes, and the practice of democracy requires, the existence of a popular will which may be determined at least with a working degree of accuracy from day to day. Let me illustrate what I mean by referring to the common experience known as ‘making up one’s mind’ — a phrase which, rightly considered, is itself enlightening.

I suppose a man approaches most of the important questions of his life with conflicting preferences. Ambition urges him, let us say, to run for public office. Prudence suggests that in doing so he will be likely to neglect his business. Perhaps what he conceives to be his duty to his family impels him in one direction and what he conceives to be his duty to his state or nation in another. A dozen other considerations pull him this way and that. Some of these considerations may be selfish and some unselfish, or they may be all selfish or all unselfish. At any rate, after a longer or shorter period of indecision, the man is said to ‘make up his mind,’ and thereafter the whole man is determined to run for office or not to run, as the case may be. Democracy has staked everything upon the proposition that the mind of a people may be made up in like manner from the discordant inclinations of all the individuals concerned.

I am aware that the proposition just stated has been regarded as fanciful by Dean Inge and others, who contend that democracy means the rule of the majority and nothing more. I do not wonder that the Dean, having accepted this definition, has little zeal for democratic institutions. If the United States were governed by a single despot who ordered my head to be cut off next Monday morning I should feel, to put it mildly, exceedingly ill used. But if the United States were governed by an oligarchy of one hundred and this oligarchy ordered my head to be cut off next Monday morning I should feel equally ill used. Finally, if the Constitution of the United States were amended in a perfectly lawful way— as it might be — so as to permit the President to designate those whose heads were to be cut off next Monday morning, and the President, in the exercise of the discretion vested in him, ordered my head to be cut off, I should not be comforted in the smallest degree by the assurance that a substantial majority of my fellow citizens were in favor of the whole proceeding. If this be democracy, there is indeed only one reason for being a democrat, and that a very selfish one — namely, that, whereas I should have only one chance in a hundred million of being the absolute monarch of the United States and only one chance in a million of belonging to an oligarchy of a hundred, I have, as between myself and the whole number of voting electors, a little more than one chance in two of being on the winning side at every election. In brief, such a theory leaves the forgotten man, if he happens to be in the minority, as completely forgotten in a democracy as anywhere else.

But democracy, as I see it, is not fundamentally concerned with majorities or minorities at all. What democracy assumes is unanimity — that is to say, a common mind. This assumption is, in practice, never entirely true, and yet, as Professor Santayana has pointed out, we vote only about minor matters. The really significant fact about a presidential election in the United States is not how many voters are Republicans and how many Democrats, but rather that all of the voters presumably regard either a Republican or a Democratic administration as desirable from one point of view and at least tolerable from any other. ‘Were this not the case, a decision by vote would be as alien a fatality to any minority as the decree of a foreign tyrant, and at every election the right of rebellion would come into play.... To leave a decision to the majority is like leaving it to chance — a fatal procedure unless one is willing to have it either way. ... It is therefore actually required that juries, whose decisions may really be of moment, should be unanimous; and parliaments and elections are never more satisfactory than when a wave of national feeling runs through them and there is no longer any minority nor any need of voting.’

Democracy, says Professor Santayana, in substance, presupposes fundamental unanimity, and in a hearty and sound democracy the office of a representative assembly is only to announce the decision which has already been arrived at. The common law presupposes that laws are first born and afterward declared by judges and legislators. It is clear that these two suppositions are, in effect, one and the same, or, to put the matter in another way, that the Anglo-Saxon conception of law is essentially democratic in character. And so we return from politics to law and to the Second Forgotten Man. His connection with the problems of popular lawmaking arises chiefly in determining the limits of what are loosely called police powers.

III

I desire to be as concrete as possible, because it is always in the concrete that disagreements about the police power occur, and, accordingly, let us suppose in the first place that X is a man who keeps his pigs in the parlor. I am aware that I have a natural predisposition toward liberalism, and yet that man, at least if he lives in a city, will get no help from me. It will avail him nothing to say that he is the lawful owner of both the pigs and the parlor, or that his ancestors have kept pigs in the parlor time out of mind. I am satisfied that the practice is a menace not only to the health of the owner of the pigs but to that of others as well, and I will wil1ingly support any law or ordinance intended to put a stop to it. I am sure that every reader of this paper will agree with me.

Let us look now at the other side of the shield and let us suppose, in the second place, that X is a man who desires to eat five meals a day. I know a number of such men. Suppose it to be proved, as indeed I think it might be, that dyspepsia causes some of the most poignant and terrible ills of life. Suppose that if all the dyspeptics in the United States were marched two abreast down Pennsylvania Avenue it would require forty-seven months for the ghastly procession to pass the national Capitol. Suppose that the amount paid annually to doctors and druggists as the direct result of indigestion would, if expended annually in the erection and maintenance of schools and colleges, wipe out illiteracy in the United States in the course of a single generation. Suppose that a dyspeptic husband means an illtreated wife and unhealthy children, and that a nation of dyspeptics means a nation of overflowing jails and crowded almshouses. Suppose, I say, that all these things were conclusively proved to be true. I think that every one of my readers would still be opposed to a law forbidding the preparation of pâté de foie gras, or fixing the number of meals which a man may lawfully eat in twenty-four hours.

Well, somewhere between pigs in the parlor and pâté de foie gras runs the line which marks the proper limits of the police power.

I am satisfied that nearly all our difficulties in matters of this sort would be resolved by paying attention to the principle of the common law of which so much mention has been made — that is, by ceasing to ask ourselves whether the practice laid down by such and such a proposed statute is, of and by itself, good or bad, and by asking ourselves what the current practice, whether intrinsically good or bad, actually is.

The fact that a given sort of conduct makes in a general way for good health and good morals is a valid reason for urging that sort of conduct upon everyone, but, without more, it is no reason at all for imposing it on anyone. You cannot make a law to determine what conduct shall be, because the stubborn fact is that, in a democracy, it is conduct which determines what the law shall be. If we are all in favor of fining the man who keeps his pigs in the parlor, I suggest that the reason is that keeping pigs in the parlor falls short of the sanitary standards generally observed in towns and cities throughout the United States, and if we are all opposed to limiting the amount which a man may lawfully eat, I suggest that the reason is that Americans habitually eat as much as they please. If keeping pigs in the parlor were more dangerous to society than overeating, that fact would, in my opinion, be entirely irrelevant. In truth, it is much less dangerous to society than overeating, but that fact is equally irrelevant. The proper limits of the police power change from generation to generation and from day to day, but these limits, at any given time, are fixed by the public opinion of that time, and the best evidence of public opinion is not what men say but what men customarily do.

The consequence is that, to borrow a phrase made famous by President Cleveland, it is a condition, rather than a theory, which confronts us. I suppose that in achieving the condition ethical considerations are sometimes involved which are not wholly free from doubt. There is probably no sensible person who believes literally that all the statutes on the books ought to be enforced. On the other hand, a man is certainly not justified in violating every statute of which he happens to disapprove. The blue laws are obsolete, but what moral judgment shall we pass upon the first man in the United States who said to himself that he was going to work in his garden on Sunday whether the law forbade it or not? He was a lawbreaker, but he stands vindicated by the practice of posterity. The point is, however, that by being a lawbreaker he initiated the very practice by which he stands vindicated. In any event, it will not do to dismiss the subject by saying that good citizens ought to obey the law of the land. Such a statement is contrary to the whole weight of our political traditions because it ignores the underlying question, ‘What is the law of the land ? ‘

I remember being taught in public school a story about how William Penn was once tried in England for refusing to take off his hat to a magistrate. He had been indicted under an act of Parliament duly and regularly passed, and he did not contradict the witnesses who testified against him. The judge who tried the case charged the jury that the guilt or innocence of the accused was necessarily for them to decide, but that, under the law and the evidence, a verdict of guilty was the only one which could conceivably be arrived at. The jury, without leaving the jury box, returned a verdict of not guilty, and the judge berated them from the bench for violating their oaths.

I am bound to say that, if the judge and not the jury was intended as the hero of this story, my teacher and I both misread our text in a most singular fashion.

But if it be answered that the history of England in the eighteenth century is full of obnoxious and tyrannical laws, it becomes necessary to turn to the history of the United States in the nineteenth century. The Fugitive Slave Law was adopted by Congress in accordance with every legal formality, and the Dred Scott decision represented the deliberate judgment of the Supreme Court of the United States. For all that, the representatives of the Southern States correctly appraised the situation when they opposed the modification of the Fugitive Slave Law so as to secure trial by jury to Negroes arrested as fugitives, on the ground that no Northern jury would ever return a Negro; and I know of no instance in which the operations of the ' underground railroad ‘ came to an end out of respect for the conclusion expressed by our highest court in the Dred Scott decision, it happens that I am proud of these facts and believe that the men who conducted the underground railroad were not the worse citizens on that account. Such a feeling on my part is, perhaps, merely the result of a geographical accident, but every American has been brought up to be proud in one connection or another because his ancestors in both the Old and the New World had the courage to assert in conduct as well as in debate that not all statutes are really laws.

IV

It is a charge frequently made against our laws that they are always behind, never abreast or ahead of, public opinion. Of course the answer is that a law, whether intrinsically good or bad, which is ahead of public opinion is simply no law at all. The way to get a law, as our ancestors knew well enough, is to practise it first and to promulgate it afterward. A penal code does not precede, but follows, an orderly civilization. When the members of a community go to church and refrain from work and diversion on Sunday they will make statutes commanding regular attendance at church and forbidding Sabbath-breaking. When the descendants of such men and women have lost their ancestors’ passionate unanimity in religious matters, they do not repeal the statutes of their ancestors, but they cease to follow their ancestors’ ways. It is worth mentioning that the intermittent efforts to repeal the so-called blue laws have never won much support from those who are, within the definition of such laws, Sabbath-breakers. In the main the Sabbath-breakers have been content to follow a very ancient tradition and let well enough alone. If the way to make a law is to follow a practice, the way to repeal a law is to discontinue the practice; and a law that nobody observes is no law at all.

But if it is sometimes charged — as I think, without much understanding of what a law is and what a statute ought to be — that our laws are unprogressive in the sense of not being abreast of the supposed best thought of the age, it is likewise charged that they are too numerous and that there is in America a growing disrespect for law. There is certainly truth in these charges, but, curiously enough, they are often made as if the facts underlying them constituted grounds for separate indictments, instead of being related to one another by way of cause and effect. Thus Kipling, referring to the American, speaks of the spirit

as if the American must be a perverse man indeed, since he greatly desires to make a law and at the same time to break it. Such a criticism is neither fair nor true. What is happening is that our legislative bodies are making entirely too many statutes which, from the Anglo-Saxon standpoint, do not possess the sanction of genuine laws, since they do not represent the practice, and sometimes not even the aspirations, of the great mass of the people. The result is that established practices continue more or less as they were, and, along with their continuance, there is a growing disrespect for statutory law. This is a bad thing, but it begets in the minds of unthinking people a disrespect for all law, which is a much worse thing.

I am aware that for some time I have been very close to the vexed subject of Prohibition, and I do not wish to seem to avoid that vexing discussion too sedulously. To treat it here, however, might draw a red herring across my trail, and I will merely say parenthetically that the supposed invasion by Prohibition of the right of the individual citizen to personal liberty is not among the reasons which have influenced my opinion on this subject. Robinson Crusoe had no legal rights, and, according to my political philosophy, no man has any legal right to personal liberty except the right which the state gives him. Moreover, all laws restrict personal liberty in some sense, and all police regulations, of which I concede many to be valid, restrict it in precisely the same sense as Prohibition. On the other hand, I am not in any wise to be moved by the argument that total abstinence would be a good thing for everyone — conceding, arguendo, that it would be a good thing for everyone, which I doubt. This, as I see it, is the old fallacy that, because the world would be better if the law were so and so, you can make it so merely by passing a statute. You cannot do that, because our law depends not on what public opinion ought to be but on what it is. I have said that the best evidence of public opinion is what people do rather than what they say, and I repeat that here. Of course I cannot speak for all parts of the country. Perhaps good citizens did not drink in Kansas prior to the adoption of Prohibition, and, if so, there can be no valid objection to Prohibition in Kansas — at least on the grounds now under consideration — and the Volstead Act merely operates in restraint of the criminal class and for the discipline of casual visitors. All this may be true, for all I know, in Kansas. But, so far as my own observation goes, Prohibition, whatever its abstract merits may be, seems to me to have become a statute before it was a law, and in consequence of that fact a large number of the readers of the Atlantic, who are supposed to be — and I think are — average Americans or better, violate the Eighteenth Amendment every week.

A final question remains: What about the future, about the law of tomorrow and of the day after to-morrow? Perhaps there is nothing in history more touching than the naïve faith of the first generation of Americans in the results of public education. The men and women of that generation felt, it seems, that the little red schoolhouse at the crossroads would, of and by itself, ensure for all time the health and safety of the body politic. We know now, by bitter experience, that that hope was, in part, ill founded. The ability to read and write is not necessarily incompatible with bad judgment or bad morals. Neither is a common school education an unfailing assurance of public spirit and sound economic views. On the contrary, a man who can read and write is perhaps as likely to be a thief as an illiterate man, and, if he is a thief, he will be more dangerous to society than if he were illiterate.

And yet, in the largest sense, the instinct of our fathers in the matter of public education was wise and sound, and all our hopes for the future rest where their hopes rested. It is easier to discipline than it is to teach, and it is easier to make statutes than to preach sermons; but a statute that merely represents an aspiration is, after all, only a sermon out of place. Unless we deny the faith of our fathers, the only way to make better laws is to make better

men. For the theory of law which I have been expounding is only the legal side of democracy, whose creed is that every man has a voice to be heard; and democracy is only the political side of Christianity, whose creed is that every man has a soul to be saved. And just as we see more clearly every day that, at long last, there can be no salvation worth having for any man without salvation for all men, the perfect democracy will never be realized upon earth until the last man comes in. Politically speaking, dissent means damnation, and in a democracy, as I conceive it, there ought to be no forgotten men.