Part 3

Many of us believe that the compact thus entered into was the prototype of the Constitution of the United States, that the government it established was the beginning of the republican form of government now guaranteed alike to nation and state, and that the covenant it contained for just and equal laws was the germ from which has since developed our whole system of constitutional jurisprudence. This covenant reads: "We ... doe by these presents solemnly & mutualy in ye presence of God, and one of another, covenant & combine our selves togeather into a civill body politick, for our better ordering & preservation & furtherance of ye ends aforesaid; and by vertue hearof to enacte, constitute, and frame such just & equall lawes, ordinances, acts, constitutions, & offices, from time to time, as shall be thought most meete & convenient for ye generall good of y Colonie, unto which we promise all due submission and obedience." Surely, this simple, comprehensive and lofty language, in the style of the Bible open before the Pilgrims, embodies the true and invigorating spirit of our constitutional polity as it flourishes to-day.

In order to appreciate the political greatness and the moral grandeur of the work of the Pilgrims, we should recall that, when the Mayflower Compact was framed, in no part of the world did there exist a government of just and equal laws, and that in no country was there real religious liberty or the complete separation of Church and State.

In fact, the great and now fundamental principle of the separation of Church and State was first made a living reality by the Pilgrims, although, in theory at least, it antedated the voyage of the Mayflower. It was the essence of their holy covenant of congregation entered into years before. And to the Pilgrims chiefly are due the credit and honor of incorporating this principle into Anglo-American polity. A wide gulf separated the Pilgrims from the Puritans in this respect. The Pilgrims, first known in England as the Separatists and Brownists--hated alike by Puritan and Cavalier--advocated religious liberty and the complete separation of Church and State. The Puritans, however, when they secured power in England and later in New England, were intolerant in religion and opposed both to religious liberty and to the separation of Church and State. They were determined that the state should dominate in religious as well as in civil affairs and that it should regulate the religion of all; in truth, they sought to impose a dominant theocracy as completely as Henry VIII. and Elizabeth were determined to have a state church under their own spiritual supremacy and to abolish all "diversity of opinions," if necessary by rack, fire and the scaffold. The Pilgrim, personifying him as you love to in the lofty and generous spirit of Robinson at Leyden, believed in religious freedom, or, as it is differently phrased, in liberty of conscience; the Puritan was determined that all should be coerced by legislation and the sword to conform to his religious views as the only true faith. Although the Puritan theocracy found its most complete development and tyranny in Massachusetts, the colony of Plymouth remained liberal and tolerant. Notwithstanding the terrible record of sanguinary persecutions among other religious denominations of that age, no instance is recorded of religious persecution by the Pilgrims or in the Plymouth colony.[8] You will recall that the famous Pilgrim captain, Myles Standish, never joined the Plymouth church, that no witches were ever burned in Plymouth, and that when a malicious woman accused a neighbor of witchcraft, she was promptly convicted of slander and thereupon fined and publicly whipped. The excesses and fury of religious persecution by Protestants and Catholics alike were the products of the fierce, intolerant and blind spirit of that age. We should judge them not by the standards of the twentieth century, but by those of the sixteenth and seventeenth centuries, and must not overlook the fact that in many cases these persecutions were as much political as they were religious.

In the history of New England the Pilgrim is often confused with the Puritan, undoubtedly because the Puritan soon dominated and ultimately absorbed the Pilgrim. Nevertheless, the differences between them on this question of religious tolerance and the separation of Church and State were implacable, to adopt the word of a great American historian. Yet, in differentiating between Pilgrim and Puritan and in recalling the facts as to the origin of religious freedom and the separation of Church and State, the greatest of all the blessings we now enjoy--in giving most of the glory to the Pilgrims, notwithstanding the claims of Catholic Maryland--I am not at all unmindful that in religion and in politics the Pilgrim and the Puritan had many views in common, that our debt to both is quite inseparable, and that our gratitude to them should be eternal.

It is certainly impossible to exaggerate the debt we owe to the Puritan spirit--fierce, indomitable and undaunted, even if intolerant, for it was that spirit which cemented the foundations of our nation. It was the Puritan spirit that gave to England her noblest figures and her most inspiring traditions of battlefields. Towering above all other Englishmen is the lofty figure of the Puritan Cromwell, and second only to him are the Puritans Hampden, Pym, Selden, Milton, Vane, Hale. Hampden--the highest type of English gentleman, with a nobility and fearlessness of character, self-control, soundness of judgment and perfect rectitude of intention, to which, as Macaulay declared, "the history of revolutions furnishes no parallel or furnishes a parallel in Washington alone." If to-day England is to preserve her empire, upon which she boasts the sun never sets, she must appeal to the energy and fortitude and courage of the Puritan. She must invoke the spirit of Oliver Cromwell, whose mighty arm made the name of England terrible to her enemies and laid the foundations of her empire, who led her to conquest, who never fought a battle without gaining it, whose soldiers' backs no enemy ever saw, who humbled Spain on the land and Holland on the sea, and who left a tradition of military valor which is now the inspiration of the splendid courage, heroism and sacrifice of England's soldiers on the continent of Europe.

A most important aspect of the Pilgrims' contribution to our political institutions is the provision for just and equal laws contained in the Mayflower Compact, for, as I have already suggested, in that provision is embodied the essence of our whole constitutional system. It has become a truism that the characteristic of the American system of constitutional government is equality before the law. We Americans accept this doctrine as of course. But we should appreciate that civil equality or equality before the law was practically unknown in Europe when the Mayflower Compact was written. In this country its development sprang in great measure gradually from the seed first sown by the Pilgrims. Neither the phrase "equality before the law," so familiar to us as expressing a fundamental and self-evident truth, nor the term "the equal protection of the laws," now contained in the fourteenth amendment, is to be found in the English common law. Nor was either term, or any equivalent, in legal use in America at the time of the adoption of the Constitution of the United States. Indeed, the phrase "equality before the law" is said to be a modern translation from the French. Nevertheless, equality in duty, in right, in burden and in protection is the thought which has run through all our constitutional enactments from the beginning.

The Pilgrim Fathers perceived, long before it was generally appreciated, that equal laws might fall far short of political justice and liberty, and hence they provided for "just and equal laws." They realized, perhaps indistinctly, that equality in itself, without other elements, is not sufficient to guarantee justice, and that, under a law which is merely _equal_, all may be equally oppressed, equally degraded, equally enslaved. They well knew that equality is one of the pervading features of most despotisms, and that a law may be equal and yet be grossly arbitrary, tyrannical and unjust. Obviously, a law confiscating all property of a certain kind would be equal if it applied to all having that particular kind of property. The laws of England then in force providing for one form of worship, "for abolishing diversity of opinions," as the title of the act of 31 Henry VIII. recited, or compelling all to attend the same church and to take the same oath of religious supremacy and the sacraments of the same religious denomination, were all equal laws, because they applied to every one, no matter what his conscience might dictate. In the cabin of the Mayflower, the Pilgrim Fathers seem to have had a vision revealing to them the fundamental and essential political truth that equality is but an attribute of the liberty they were then seeking at the peril of their lives and the sacrifice of their fortunes, and that true liberty requires _just_ as well as _equal_ laws. To repeat, it was the Pilgrims who first sowed in our soil the seed of just and equal laws, and that seed has grown into the fixed rule of the American constitutional system, a rule which has spread through all our political and civil rights and duties until it reaches, pervades, unites and invigorates the whole body politic.

The history of the Plymouth colony from 1620 until its absorption by the colony of Massachusetts in 1691, teaches us many lessons in political philosophy. There are two which I desire to recall to you to-night: one as to the right to private property, the other as to pure democracy.

The Pilgrims began government under the Mayflower Compact with a system of communism or common property. The experiment almost wrecked the colony. As early as 1623, they had to discard it and restore the old law of individual property with its inducement and incentive to personal effort. All who now urge communism in one form or another, often in disguise, might profitably study the experience of Plymouth, which followed a similarly unfortunate and disastrous experiment in Virginia. History often teaches men in vain. Governor Bradford's account of this early experiment in communism in his annals of "Plimoth Plantation" is extremely interesting. The book is rich in political principles as true to-day as they were three hundred years ago. After showing that the communal system was a complete failure and that as soon as it was abandoned and a parcel of land was assigned in severalty to each family, those who had previously refused to work became "very industrious," even the women going "willingly into ye feild" taking "their litle-ons with them to set corne, which before would aledg weaknes, and inabilitie," Bradford proceeds as follows:

"The experience that was had in this com̅one course and condition, tried sundrie years, and that amongst godly and sober men, may well evince the vanitie of that conceite of Platos & other ancients, applauded by some of later times;--that ye taking away of propertie, and bringing in com̅unitie into a comone wealth, would make them happy and florishing; as if they were wiser then God. For this comunitie (so farr as it was) was found to breed much confusion & discontent, and retard much imployme̅t that would have been to their benefite and comforte. For ye yong-men that were most able and fitte for labour & service did repine that they should spend their time & streingth to worke for other mens wives and children, with out any recompence. The strong, or man of parts, had no more in devission of victails & cloaths, then he that was weake and not able to doe a quarter ye other could; this was thought injuestice. The aged and graver men to be ranked and equalised in labours, and victails, cloaths, &c., with ye meaner & yonger sorte, thought it some indignite & disrespect unto them.... Let none objecte this is men's corruption, and nothing to ye course it selfe. I answer, seeing all men have this corruption in them, God in his wisdome saw another course fiter for them."[9]

Although the colony of Plymouth began as a pure democracy under which all the men were convened to decide executive and judicial questions, the increase of population and its diffusion over a wider territory necessarily led to the transaction of official business through chosen representatives. The representative system was thus established by the Pilgrims in New England perhaps more firmly than elsewhere, and it became the cardinal principle of whatever efficiency, strength and stability our republican governments now have. This system is menaced by the enthusiasm for change and by the fads of recent years, such as the initiative, the referendum, the recall and direct primaries. In these political nostrums has been revived the crude notion that the masses, inexperienced as they are in the difficult and complex problems of government, are instinctively better qualified to guide than the educated few who are trained, instructed and competent, and who, acting as the representatives of all, are bound in good conscience and sound policy to consider and protect the rights of the minority, of the individual, of the humble and weak, against the arbitrary will or selfish interest or prejudice of the majority.

There is no time to-night, even if your patience would bear with me longer, to trace the growth of the political principles which we find in the history of the Plymouth colony and underlying the experiment in republican government there initiated under the Mayflower Compact. If the tree is to be judged by its fruit, the framing of that compact in 1620 was one of the most important events in the history of the American people, and the document itself is one of the most interesting and inspiring of American constitutional documents. But I feel that I may appropriately suggest to you questions which are of immediate and urgent concern to us all, and they are whether the quickening and stirring message of the Mayflower has really endured--whether the sterling qualities of the Pilgrim and the Puritan have survived--whether the descendants of the Pilgrims have inherited and can perpetuate the invincible spirit, the unconquerable moral energy, the indomitable steadfastness of their ancestors--and whether these qualities are available in our own day to guide the nation safely and wisely through the inevitable crisis which we are approaching as the whole civilization of Europe is being daily more and more engulfed in the abyss of this awful war. These are problems which our generation must face sooner or later. And who should be better qualified to guide us--for it is leadership that we need--than men who inherit the spirit and the traditions of the Pilgrim and the Puritan?

In this crisis, the greatest in our national affairs since 1861, I hope we shall profit by the example of the founders of Plymouth, who, as Palfrey wrote, "gave diligent heed to arrangements for the military defence of the colony." It may be also that Providence will give us, in the descendant of a Pilgrim, the captain who shall be both our shield and our weapon as Myles Standish was the shield and the weapon of your ancestors.

FOOTNOTES:

[Footnote 5: Remarks responding to the toast, "The Mayflower Compact," at the twenty-first annual banquet of the Society of Mayflower Descendants in the State of New York, held at the Hotel St. Regis, New York, November 23, 1915.]

[Footnote 6: Lafcadio Hearn, _Kokoro_, pp. 289-290.]

[Footnote 7: The original manuscript of the Mayflower Compact has been lost or destroyed. The text, as preserved by Governor Bradford in his annals entitled "Of Plimoth Plantation," is as follows:

"In ye name of God, Amen. We whose names are under-writen, the loyall subjects of our dread soveraigne Lord, King James, by ye grace of God, of Great Britaine, Franc, & Ireland king, defender of ye faith, &c., haveing undertaken, for ye glorie of God, and advancemente of ye Christian faith, and honour of our king & countrie, a voyage to plant ye first colonie in ye Northerne parts of Virginia, doe by those presents solemnly & mutualy in ye presence of God, and one of another, covenant & combine our selves togeather into a civill body politick, for our better ordering & preservation & furtherance of ye ends aforesaid; and by vertue hearof to enacte, constitute, and frame such just & equall lawes, ordinances, acts, constitutions, & offices, from time to time, as shall be thought most meete & convenient for ye generall good of ye Colonie, unto which we promise all due submission and obedience. In witnes wherof we have hereunder subscribed our names at Cap-Codd ye 11. of November, in ye year of ye raigne of our soveraigne lord, King James, of England, France, & Ireland ye eighteenth, and of Scotland ye fiftie fourth. Ano: Dom. 1620." Printed in the Collections of the Massachusetts Historical Society, 4th series, vol. III, pp. 89-90. See also the text in Bradford's History of Plymouth Plantation, ed. W.T. Davis (1908), p. 107.]

[Footnote 8: The legislation against the Quakers as enforced in the Plymouth colony seems to have been essentially political. The records, so far as we have them, indicate that the Quakers were proceeded against because of their attempts to disturb the peace and overthrow established law and order, and not because of their religious beliefs.]

[Footnote 9: Collections of the Massachusetts Historical Society, 4th series, vol. III, pp. 134-136.]

CONSTITUTIONAL MORALITY[10]

The text of this address is taken from Grote's "History of Greece." The historian, reviewing the state of the Athenian democracy in the age of Kleisthenes, points out that it became necessary to create in the multitude, and through them to force upon the leading men, the rare and difficult sentiment which he terms constitutional morality. He shows that the essence of this sentiment is self-imposed restraint, that few sentiments are more difficult to establish in a community, and that its diffusion, not merely among the majority, but throughout all classes, is the indispensable condition of a government at once free, stable and peaceable. Whoever has studied the history of Greece knows that the Grecian democracy was ultimately overthrown by the acts of her own citizens and their disregard of constitutional morality rather than by the spears of her conquerors.

We American lawyers would be blind, indeed, if we did not recognize that there is at the present time a growing tendency throughout the country to disregard constitutional morality. On all sides we find impatience with constitutional restraints, manifesting itself in many forms and under many pretences, and this impatience is particularly strong with the action of the courts in protecting the individual and the minority against unconstitutional enactments favoring one class at the expense of another. However worded and however concealed under professions of social reform or social justice, the underlying spirit in most instances is that of impatience with any restraint or rule of law.

We are meeting again the oldest and the strongest political plea of the demagogue, so often shown to be the most fallacious and dangerous doctrine that has ever appeared among men, that the people are infallible and can do no wrong, that their cry must be taken as the voice of God, and that whatever at any time seems to be the will of the majority, however ignorant and prejudiced, must be accepted as gospel. The principal political battle-cry to-day seems to be that, if the people are now fit to rule themselves, they no longer need any checks or restraints, that the constitutional form of representative government under which we have lived and prospered has become antiquated and unsatisfactory to the masses, and that we should adopt a pure democracy and leave to the majority itself the decision of every question of government or legislation, with the power to enforce its will or impulse immediately and without restraint.

We find many political and social reformers advocating an absolute legislative body, whose edicts, in response to the wishes, interests, or prejudices of the majority, shall at once become binding on all, no matter how unjust or oppressive these edicts may be. Those who are loudest in thus demanding the supremacy of the legislative power are equally loud in charging that our legislatures are inefficient or corrupt and in proclaiming distrust of the people's representatives in legislative bodies. In one breath we are asked to vest legislatures with power and discretion beyond the control of the courts, and in the next breath we are told that legislative bodies are not to be trusted by the people, and hence that we must have the initiative and the referendum.

Other reformers would vest greater power in the executive, so as to enable him to dictate to legislatures whatever he deemed or professed to think best for the common welfare or for social progress. In the final analysis this would, of course, reduce us to a despotism pure and simple, and place Congress and the state legislatures in the condition of the Roman senate in the second century. Argue as we may from the admonitions and experience of the past, the defiant answer is that the people will select the executive and are prepared to trust him, an answer that singularly disregards the fact that they now select the legislators whom they no longer trust, and that practical reform in legislation is ready to their hand if they will only insist upon character and ability in their representatives.

Others again would deny to the courts the power and duty to declare unconstitutional and void any enactment of a legislative body that was in conflict with the constitution, or, if not going quite so far, would give the courts power to disregard constitutional limitations whenever the judges found or fancied that an enactment was in consonance with prevailing morality or the opinion of the majority in respect of matters relating to the police power or social progress or social justice. They would have the judiciary interpret and enforce a constitution not according to the mandate of the people who adopted it, nor according to the true meaning and intent of the language employed by the framers, nor according to settled general rules and principles, but according to the ever-changing desires or notions or opinions of the majority and the personal ideas of so-called progressive or sympathetic judges. Many of those who charge the judiciary with having usurped the power to determine whether a particular enactment does or does not conflict with the fundamental and supreme law as established by the people themselves, would now place a far greater power in the hands of the courts by authorizing them to expand or contract a constitution by judicial construction, and would thus in reality vest in the judges an arbitrary discretion. Under this doctrine, practically every constitutional restraint could be readily circumvented, perverted, or nullified; constitutional rights could be frittered away, and great landmarks of human progress could be undermined.