mately say whether or not a given legislative act shall be the law, and in such condition it must necessarily follow that the executive power in its last analysis is but a perfunctory agency for carrying into effect the mandate of the law-declaring power and not that of the lawmaking power. The judicial power to declare statutes void for unconstitutionality is a veto power far greater than that of the executive, whose veto may be overcome by a two-thirds vote. Even the unanimous concurrence of the executive and both houses of the legislature, in either State or National government, cannot make a law in opposition to the will of the Supreme Court. Nor can the people of a whole State even amend their Constitution by an overwhelming majority, without the concurrence of the Supreme Court, for amendments to the constitutions of the various states have been frequently declared unconstitutional by the local supreme courts. But the hackneyed ground of unconstitutionality is no longer the only means of overturning a statute. Statutes are nowadays vitiated by the courts because they appear to the courts "unreasonable," or upon the ground that the statute conflicts with some implied reservation or limitation upon the legislative power, etc. (Loan Association versus Topeka, 20 Wall. U. S. 655.) The Tudors pretended to annul acts of parliament by virtue of a "dispensing power." Such a power is exercised by no earthly sovereign of the civilized world to-day, outside of the American courts. Nor was this power confided in their courts by the American people. The courts have simply seized the power, notwithstanding the opposition of men like Jefferson, Jackson and Lincoln. Jefferson said in a letter to Judge Roane (Jefferson's Letters, Randolph's ed., vol. 4, pp. 317, 318): "My construction of the constitution is that each department is thoroughly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal." And then, illustrating his position, he stated that he had pardoned persons convicted under the Sedition law, on the ground that the law was "unauthorized by the Constitution, and therefore null.” "These," he added, "are examples of my position that each of the three departments is equally to decide for itself what is its duty under the Constitution, without any regard to what the others have decided for themselves under a similar question." President Jackson's views upon this subject are in his message vetoing the United States Bank charter, as follows: "If the Supreme Court of the United States covered the whole ground of this act, it ought not to control the coördinate authorities of this government. The Congress, the Executive, and the court, must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President, to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive, when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.” Jefferson, Jackson and Lincoln each crime being accorded the right of trial in turn adhered in the course of administration to the views they had so forcibly expressed regarding the distinct and independent nature of the three departments of government; the first in resisting the mandamus in Marbury versus Madison, the second in refusing to aid in the execution of the mandate of the Supreme Court in the case of Worcester versus State of Georgia, and the third in resisting a habeas corpus by Chief Justice Taney to enlarge a military prisoner in Fort McHenry. But since Lincoln's time there has been no indication of executive resistance to the encroachments of the judiciary. Meanwhile the legislative departments of the various states, and of the nation, have been powerless to resist the steady march of judicial legislation. No legislative body in this country can create a retroactive or an ex post facto law, but every day the courts are rendering decisions that are in effect both retroactive and ex post facto. This is the effect of every court decision changing a rule of law or affecting property rights which have become vested under previous decisions. No legislative body can bastardize a child. The recent decision of the United States Supreme Court in the Haddock divorce case has bastardized many children. Whether by coincidence or design, it is a singular fact that "judge-made law” is rarely or never in the public interest. We did not get freedom of the press, free speech, trial by jury or religious toleration or the habeas corpus from the courts, but the judiciary has given us the summary process of contempt, and "government by injunction." Formerly it was universally held that injunction would not lie to prevent the commission of a crime, the penal statutes being enacted for that purpose, and those accused of by jury. But now the universal trend of judicial decisions is to grant injunctions to restrain anticipated injury to "property rights," and violators of the injunction are triable, not by jury, but by the summary process of contempt, wherein no jury is allowed to judge of the facts, and wherein the executive branch of the government has no power to pardon. The ascendancy of the judiciary is thus complete. 66 To quiet the fears of those who oppose the supremacy of the judiciary over the two coördinate" branches of government, it has been customary to urge that the power of the court is only a moral power, and that it must necessarily rest upon the popular consent. But, in every case where tyranny exists or absolutism holds sway, the structure rests upon the passive consent of the populace. Government, whatever its form, is largely a matter of free will. No government can exist in opposition to the will of the overwhelming majority of its subjects. And yet tyrannical governments have always existed. Judicial supremacy may be a benevolent despotism, but it is despotism for all that, and in realizing it we approach the condition which Alexander Hamilton conceived in the following words: "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, or a few, or pointed, or elective, may justly be promany, and whether hereditary, self-apnounced the very definition of tyranny. that the three great departments of power The preservation of liberty requires should be separate and distinct." And Alexander Hamilton was the incarnation of American Federalism! THOMAS SPEED MOSBY. Jefferson, Mo. SEVE THE SPIRIT OF AMERICAN LITERATURE. BY WINIFRED WEBB. EVERAL months ago there appeared in the pages of a leading magazine a brilliant essay cast in the mold of large critical survey, wherein, accompanied by the tone and gesture of denunciation, the term "bourgeois" was applied to American literature. The writer was an American of note,-an American woman. This was in itself singular enough to arrest attention. But when from month to month our critics have flamed out, like beacon-fires on a chain of hills, answering not the essay (wherein much else was also said), but this single term, the situation assumes an aspect, in my judgment, hardly less than startling. Are we then so easily touched? Above all, is it possible that this is our tender spot? I cannot believe it. The gravity seems to me far graver in significance than its cause. I cannot think that these strident voices indicate the highest or even the general level of our critical acumen. A contributor to the Boston Transcript has gone so far toward the position I am about to take, as to say: "The mistake made by the opponents of Mrs. Atherton has been in attempting to disprove the fact that American literature is bourgeois, instead of admitting it and giving the best excuses they could." "Admitting it?" I assert it. "Giving the best Giving the best excuses they could?" To me there is nothing about American literature concerning which one would more gladly or more properly assure himself than this very fact. Josephine Daskam Bacon, writing shortly after, declares that neither Mrs. Atherton, nor anyone else, knows what she meant by her assertion. This may then have been the case. The keen common-sense of Mrs. Bacon seldom leads her into error. One might wish that it But it has become were still the case. apparent, even to the point of definition, that the people who have gathered so solemnly about this little foreign word, believe that they know what she meant. Snobs may seem to walk in darkness, but to them the darkness is as light. It is worth while, sometimes, to take even a snob in detail. It may tend toward checking the propagation of the species. What, then, is this highly inflammable word? In the first place it is not an English word. There is not so much as the twist of an Anglo-Saxon root to recommend its transplanting to our AngloSaxon earth uses. I question the taste of the American who admits it to his vocabulary. One might, were he nice, go so far as to challenge his scholarship who would venture to apply it to American institutions. If belongs to another element. It is French, body and soul. It adheres to the soil that has nourished class-distinctions. It smacks of feudal aristocracy, of medieval solemnity on the subject of "caste." To us,-Americanborn and bred, these distinctions are supposed to seem trivial. We acknowledge their significance in history,-looking up from the pages of classic drama, and studying the developments of dead centuries,-but we laugh, and long may we laugh at any misled scion of this honest republic who affects their use! Nor are we the only ones who find him ludicrous. Will he be less so in the eyes of those to the manner born? The Nobility, the Clergy, and the Third Estate. How little history one needs know to see that only an arrogant and corrupt aristocracy finds an anticlimax in this familiar arrangement o terms. "What is the Third Estate?" asked Abbé Siéyès. And his answer rang back in no uncertain tone: "It is everything!" Guizot, writing many years later, upholds this dramatic utterance with the calm assertion of the historian's study. "The Third Estate has been the most active and determining element in the process of French civilization." With whom, pray, should an American citizen sympathize if not with those who for centuries offered strong resistance to the encroachments of an absolute monarchy, and wrought for constitutional government; whose very name has become synonymous with the prosperity that crowns honesty and thrift, with appreciation for the grandeur of law, with reverence for the dignity of moral order? If in that land that has been called the pestle for grinding up the problems of European civilization, the land whose sons could follow a Napoleon Napoleon "across the night, across the day," the land that has ever been prone to love glory not wisely and too well, these homely and stalwart virtues have failed sometimes of due recognition, who can forget that the land itself has paid the price in its own blood and tears? If I read aright the minds of our fathers and the spirit of this republic, nothing is clearer than that we have sought to avoid the error of gloryloving France. The stone they once rejected to their cost, we have made the chief cornerstone of the building. We have taken that leaven and prayed that it might leaven the whole mass. We have looked upon this rugged and despised word without condescension. Its inherent nobility is apparent to us. We call only those ignoble who repudiate it. Can it be possible that one of us should wince under this "charge" from the lips of a sensational and reckless woman? Yet these words have been written: "The majority of American writers, both men and women, have been strictly bourgeois. They have gone with the tide. They have worshiped at the shrine of convention, and have been sticklers for form and respectability. They have rebelled at nothing, always upholding church and state. They have been fairly comfortable in the way of worldly goods, and not above the mania of wanting to own things. They have been placid, passionless and eminently respectable. .. They are as harmless as pap and about as virile. They have never sinned, suffered, and repented. . Let them be taken hence to the abyss of eternal oblivion, and may God have mercy on their souls!" Who is this who has arisen among us with such a pallor on his phrases? What would he have of American men or of American writers? When an American citizen can set the prosperity, the energy, the stamina, the poise and moral integrity of his own people in so hostile, so sickly a light as this, it is time that he should be reminded of the significance of his own wild words. I forsee the objection that I am writing of politics, not literature. I am writing of the spirit of this republic. I hold that no criticism can flourish outside the bars of its own cult, that no literature can endure beyond the paltry span of a day, which has not in its body the spirit of its own people. Do we read Homer for those glorious words, those matchless cadences and meters? Yes, as a man passes tender hands over the face of the woman he loves, lingering on the beauty because of the loved life in the woman. Were even the words and cadences of Homer isolate, stagnant, dead charms he could not so hold the ages spellbound. Life to that beautiful body, even its very soul, is the spirit of the Greek who lives in its lines, his passions, his fears, his faith and his wisdom drawn so near that it is as if one felt his breath on one's face. This is creation. This is living art. We are a bourgeois nation,-if you like the term,- -a nation founded and built on the middle classes. What then shall be our literature? As well Homer other than barbaric, other than pagan, other than Greek, as for us to lust after the songs of other ages and of other lands. Would we sing their songs if we could? Individually, as you will. Henry James and the Hawthorne of The Marble Faun doubtless will have their successors, and it is to be hoped, will always find an American audience. We would limit in no way the clean curiosity, the broad culture of our readers. And of whom can we learn with more pleasure of that which is alien to our instincts, than from one whose instincts are related to ours while he is informing us of the alien? But let our writers continue to go abroad when with Hawthorne, their genius "rebels at the difficulty of writing romance about a country where there is no shadow, no antiquity, no mystery, no picturesque and gloomy wrong, nor anything but a commonplace prosperity in broad and simple daylight, as is happily the case with our native land." Let them show the sanity and patriotism of the wish which immediately succeeds these words: "May it be long before romance writers find congenial and easily handled themes either in the annals of our stalwart republic or in any characteristic and probable events of our individual life. Romance and poetry, lichens and wallflowers need ruins to make them grow." As a nation we desire that American literature shall be American. I do not affirm that in such a condition we shall harmonize antagonistic advantages. I would not attempt to support the assertion that we can cover such honors in art as Turgèneff, Tolstoi, Ibsen, Sudermann, D'Annunzio or many others who might be named. But I do venture to believe that we would not sell our birthright for the mess of pottage that nourishes their hungry art. Does it take a Hawthorne to see that the yearning for a liberty we already possess gives the sting of a lash to their art; that it is a sensuousness against which we have not to contend which leads their tragedies to such utter depths of gloom? Those are their ques With these forms their spirits wrestle. What is that to thee, oh son of this young republic? Perhaps they are thinking of the past' of the brilliancy of Dumas pére or of Duman fils; of the historical significance of Balzac; of the glories of classic French drama. I have heard, and I have loved to hear the proud Frenchman boast of his firmament. As for Italy, as for Rome, as for the Greeks and the Hebrews, who would not claim their stars for his native land if he could! But who, even for this would barter the youth of a republic? Who would shorten by one day the time when a nation is in her first strengthable to cope with the corruption that has ever assailed a state; free from morbid selfconsciousness; free from lasciviousness, free from doubt and fear and all the "ruins" which Hawthorne knew to be but too often the setting for the supreme, the swan song. But did Hawthorne forget for the moment that there are songs of youth as well as of age? Youth may learn of age; learn devotion to the vital in its own time; learn to scorn the trivial distinctions made by the condescending, the superficial, the fanatical tribe of "short-haired women and long-haired men" who too often assume to rally under the banner of "Art." Chaucer sang in the morning and he sang of the morning, to the adornment of the literature of his own land, and the joy of all time. Or perhaps by "virility" it is implied that we need gravity more than mirth, rebuke rather than the caress of humor. Surely there is no dearth of inspiration for such a message. Because we have made our serfs farmers; because our women's eyes are open and more nearly on a level with those of their brothers than other lands allow; because no czar stands before us in bewilderment between a crumbling past and a future he dares not trust; because our shoulders have not to bear the weight of dead empires, nor our feet to travel through the devastation of the armies of past centuries; because we are not Russia, nor Italy, nor Greece, have we then no dangers, no problems, no temptations? I believe that a stream |