The Freeman Book

THE MAIDEN DEW

(Translated from the Polish by Stanislava Piotrowska.)

THERE was at Ludimier, near the river Black Dunajec, a monastery of Cistercian Brothers. It was the wojewoda, Ivo Cedro, who established it; and when he did so, a little devil peeped over his shoulder. One could see it even on his picture hanging behind the altar in the church.

In the monastery was a certain young monk, named Augustin. He was most ardent in his faith, and very severe with pagans. The peasants in that country were full of sin, and if anyone called to them, “May Jesus Christ be praised!” they would answer, “Praise him yourself, if you have time to spare.” So, one day, Brother Augustin said to the abbot, “Reverend father, I shall go out and convert these people.”

“But where?” asked the abbot, stroking his stomach. He had just had a nice salmon for supper.

“Up in the mountains.” Brother Augustin pointed from the Maryanski hills up to the great Tatra.

“Pooh!” shouted the abbot. “Brother Paul and Brother Jacob went there and they never came back. We do not even know, may the Lord give light to their souls, where their unburied bodies lie. Wolves ate them or robbers killed them. They may even have suffered a martyr’s death, and the monastery might have become famous for ever through them. Already the Dominicans reproach us for not producing enough saints. Whom would you convert out there? Those robber-mountaineers, among whom we can hardly live? I can not complain: there are game, deer, hares, stags; there are mushrooms, berries, martens, and lapwings’ eggs for Lent; there—there are— But people! Let the devil convert them! It is hard enough to live with them, the thieves! Thank God, they have never dared to rob the monastery yet. By St. Kunegunda and St. Remigeus our protector! Better to leave the church to God’s care and the monastery to owls and crows! Szczyrzyc is a nice place——”

“O, it is not right to speak thus, it is not, reverend father!” cried Brother Augustin. “The more difficult the task, the greater the glory. Let me go, reverend father. I feel God’s voice calling me and the spirit is stirring within me.”

Finally the abbot permitted him to go. He dared not disobey God’s voice, but he tried to justify himself before the sacristan: “He told me that the spirit is moving within him.”

“Perhaps so,” answered the sacristan. “Yes, I dare say it is. But I don’t know. In my time, it was called by a different name.”

One morning in May, with the rising of the sun, when the air was fresh and laden with the scent of blossoms, Brother Augustin went forth from the monastery-gate. He carried nothing in his hands wherewith to defend himself, nor was he even followed by one of the coarse-haired dogs which the monks bred. He went forth serene under the protection of the Providence that inspired him.

He crossed the Dunajec, and followed the rocks in the direction of the second fork in the river. The forest began a little farther on. There were a few settlements in it. Singing hymns, with a scapulary on his breast and a rosary in his hands, Brother Augustin proceeded on his mission to convert the heathen.

Terrible beasts crossed his path, wolves, wild boars of enormous size, bears as big as cows; but he passed them safely through faith. For half a day he walked through the forest without meeting a soul. But just at noon he heard the clap of hands and a woman’s voice singing. He rejoiced. He thirsted to begin his holy task; besides, he was already longing for the sight of human beings. He walked in the direction of the voice.

Already he heard quite plainly the words: “I’ll go, I’ll go on the river to-night!”

Among the trees he saw a meadow in which were several barns surrounded by an embankment, behind which were flower-beds. There were cultivated fields nearby with oats, cabbages and other crops which looked fresh and green. A young girl of about seventeen years was kneeling by the stream, washing shirts and beating them with a wooden stick. Several of them were stretched on the shore in the sun. She wore a white linen handkerchief bound under her chin, an open blouse showing her young breasts, and a linen skirt tucked up to her knees. Her sleeves were rolled up above her elbows.

The priest emerged from the trees. At the sight of him the girl got up quickly and raised the stick ready to strike him.

“May Jesus Christ be praised!” cried the priest, and involuntarily his eyes lingered on the open blouse.

“What do you want?” shouted the girl sharply.

“I praise God.”

“God?” The girl looked at the monk and lowered her arm. “He is not harmful, and he is handsome,” she thought.

“But what do you want?” she asked more softly.

“I bring God.”

“God does not need you to bring him. If he wishes, he will come himself.”

The priest approached the girl who, seeing his slender figure, regarded him with kind pity rather than fear.

“Who are you? Where do you come from? Do you want something to eat?”

“I ate berries in the forest and I brought cheese and bread with me. May God reward you. I come from the monastery at Ludimier, bringing the true God.”

“I have told you already that God does not need you to bring him. So, you are from the monastery? I know. You can not go with girls nor have a wife. Yes, I have heard about that.”

“O no——no——”

“Poor thing! How could you stand living without love? Perhaps it was just on that account that you ran away?”

The priest was offended, but restrained himself.

“O young pagan,” he said meekly, “he who gives his whole life to the Lord God, his holy Son and his Mother, the holy Virgin Mary, can not know any other kind of love.”

“What you say sounds very queer,” said the young girl; “you can easily confuse me. What sort of a God is this who has a son? And this Mary, or whatever her name is—she wasn’t married then? So they had the son together? Well?”

“I shall explain everything to you, young pagan,” said Brother Augustin. “What is your name?”

“My name? Dew. But people call me Little Dew.”

“Dew?”

“Yes, I am named after the dew.”

“Then listen, Little Dew, my child—” the priest began.

“Your child? But you are only a child yourself. I don’t think you are much older than I am.”

Brother Augustin approached the stream and sat on a stone.

“Are you tired?” asked Little Dew.

“I walked a long way.”

“Then rest a little. But you are not hungry, are you?”

“No, but listen, Little Dew, my child in Christ. What do you believe in?”

“Me? What could I believe in? The Weather and the Mischief, the Verdant Goddess, and the Goddess of Flowers, of Plague, of Showers, of Hail and Thunder. O, there are enough different gods, but above them all is Time.”

“By God’s name!” cried Brother Augustin. “So you are a true pagan!” He started to cross himself as though to send away the devil.

“What are you doing?” asked the girl in surprise. “Why do you swing your hands so fast?”

“I am crossing myself in God’s name, to drive the devil from me and from you. Did you really never hear about the Christian God?”

“Which is he?”

“He who rewards the good and punishes the evil. He whom one must praise and ask him——”

“Does he always give?”

Brother Augustin thought a while, then answered: “According to his will.”

“I usually ask only when I know it is not in vain.”

“He who created heaven and hell.”

“I know heaven; but hell?”

“Where burn the souls of people damned for ever!”

“Who are those people damned for ever?”

“Those who do not worship him.”

“Is that so? Then your God likes to take revenge. Well, but what is to be done to obtain his grace?”

“It is necessary to give up all the vanities of life.”

“Which are they?”

“Those created by the devil.”

“The devil? Still, he is always nearer to man.”

Brother Augustin sighed to himself. “They have heard of the devil here before they heard of God.” Then aloud he said, “One must for the love of God give up all earthly pleasures.”

“What! I am to give up dancing because of some god? Why, our gods are ready to dance with us themselves.”

“One must mortify the body, fast, flagellate, wear haircloth, sleep on the bare ground.”

“Oh,” cried the girl, much shocked. “I don’t want even to hear about such a god!”

Brother Augustin paused and thought. “She must be a very hardened pagan. She has no idea of the holy Catholic religion. To convert and save this soul is my duty. But it is first necessary to learn in detail all her mistakes and heresies.” He asked, “What are your gods?”

“My gods,” replied the girl, “are not like yours at all. They do not demand that one should give up everything. If you only give them a little honey and bread, and a green wreath, or flowers to hang up, and light a bonfire, they are quite satisfied. But the best of them all is the Verdant Goddess.” Half singing, half talking, she continued, “The Verdant Goddess walks through the meadows, through the green grass and the forests, through the waters and the mountains. It is she who sows for us the new flowers, plants, green herbs and leafy trees. She likes to wear a wreath of flowers, and clothe herself in fleecy clouds. You will see her in the sunshine in the Great and Little May, when she wanders through the fields. Girls with garlands in the moonlight, they raise to her an altar out of flowers and red berries in the great feast of the Green Goddess. Flowers, moonshine and big fires. All the people dance around the fire in that warm bright night of May. They sing around the fire. But those who are still maidens make a separate smaller circle and sing like this:

‘Verdant Goddess,
Our beloved Goddess,
Touch our little breasts.
Touch our eyes and cheeks.
Goddess, our beloved,
We are worthy still
Of your hand that sows
Flowers on the earth.
We have never yet
Shared our bed with man.
We are still as pure
As white snow; as dew
We have still the bloom
Painted like a rose.
Goddess, our beloved
Goddess, it is your day!’

“While they sing, the boys creep behind the bushes and suddenly rush out towards them. The girls flee into the forest. They try to escape, the boys in pursuit. Some of the boys seize fiery branches and run with them. All the forest is full of shrieking laughter, noise and fires. Such is the day of the Green Goddess! The girls who fail to escape belong to the boys who happen to catch them. But there are very few who really try to run away.

Such is the great feast of our Verdant Goddess at the full moon in the forest. The night of love, holy night——”

Brother Augustin listened, quite enthralled. He was so young and had never comprehended God’s world until now. He listened and was dazzled. “The night of love—holy night,” he repeated.

“Do you know what?” said the girl. “You shall help me to stretch my shirts on the grass. I’ll give you your lunch for it. But stretch them a little higher up, not so close to the stream.”

He hardly noticed when she gave him a couple of damp shirts, and without realizing what he was doing, he started to stretch them on the grass. His heart was beating, his hands were trembling, and the words “The night of love, holy night” still rang in his ears.

“Do you know, this little shirt, with the lace around the neck, this is for the feast. Only those who are still maidens may wear such a shirt.”

“You are a maiden then?” the priest cried involuntarily.

“Of course, I am a maiden!”

“And you washed this shirt for the holy night of love?”

“Yes, for the first time. I wove the linen and sewed it myself. That’s the custom. When a girl is fifteen, she is given a shirt like this to sew and to wash. But not before.”

“So you are only fifteen?”

“Yes, this summer I am fifteen.”

“And you are a maiden yet?”

“But why do you wonder so much? Perhaps you are still a youth. However you look quite a man already.”

The priest felt hot, but the big blue eyes of Little Dew, full of sparkling light, looked at him with a bold, naïve, inquiring laughter.

“Well, we have done our work nicely. The sun is awfully warm. Let’s go and lie down in the shade.”

The priest stood up and straightened himself.

“Come, let’s lie under that maple tree.”

The priest followed. Something had bewitched him. He lay down on the grass. The girl started to play with his rosary, next his scapulary, then she took off first one, then the other, and he did not defend himself at all, not at all.

Then she played with his curly youthful beard and his soft dark hair.

“You are handsome,” she said, and her breath came quickly. “Handsome,” she repeated, and two slender, strong arms encircled Brother Augustin’s neck.

Not long after that, the Christians had to think of leaving Ludimier. Robbers had started to take their cattle from their pastures and to burn their barns. Like demons they appeared from the dark forest and robbed, burned and destroyed everything around the monastery. They robbed not only by night, but even in broad daylight.

One day the father abbot was standing on the monastery walls, watching the robbers who were trying to drive away the herdsmen. Suddenly he cried:

“Good gracious! Look there, brothers! Can you see that tall peasant in front, wearing the coat with the fur turned out, with a big stick in his hand? And beside him a young girl, also with a stick? By Saint Kunegunda and Saint Remigeus our protector! my eyes do not deceive me. It is Brother Augustin, whom we took for a martyr!”

And the sacristan murmured: “It moved in him . . . it moved . . . it moved . . .”

Soon after, the persecuted brethren left for Szczyrzyc.

K. T. 10. x. 23.

————

THE REASON FOR RHYME

THE attack upon formal poetic metre which our age has witnessed, and which we see to be falling, springs, I suspect, rather from a surfeit of “sure returns of still expected rhymes” than from a disgust with metre as such. I am aware that in the minds of many of the moderns, free verse is vaguely associated with freedom in general; but few of the moderns are philosophical enough to make even a philosophical mistake. They do not understand principles, but they can understand that free verse becomes a practical necessity once rhyme is discarded. Blank verse in English, owing to the character of our language, is necessarily confined either to the decasyllabic line or to imitations of classical forms. How little chance these have of success may be observed in Long-fellow’s hexameters and in “Hiawatha.” But even were they successful, it would still mean that the scope of poetry is immediately restricted once rhyme is abandoned. For noble instrument as blank verse is, it is insufficient for the lyric reaches; hence the attempt to get over the difficulty by abandoning metre. The baby is thrown out with the bath.

This irritation with rhyme is not new. Milton was its first mouthpiece—the Milton of the gloriously rhymed “Lycidas”; and Wordsworth, who had written a mealy-mouthed and slovenly sonnet in defence of the sonnet, went on to write another, and a much better, sonnet to prove that

The grandeur of the forest tree
Comes not by casting in a formal mould,
But from its own divine vitality.

Wordsworth was, of course, too good a poet to deny metre its place in poetry, but he was for the moment irritated by rhyme, possibly owing to his notorious difficulty with it. Both Milton and Wordsworth, however, contented themselves with grumbling. They attempted no technical experiments; they had no longing to burst barriers. They accepted the limits imposed by the English tongue, and went on rhyming when rhymes were called for. Their irritation was not nearly so acute as our own.

But we shall get ourselves into endless trouble if we continue to base our æsthetics upon a mood of impatience. Blank verse alone can not satisfy us. Nothing is more nauseating than a mediocre talent affecting the massive magnificence of the bare line; and although modern blank verse has, in the hands of such men as Frost, Abercrombie and Robinson, shown fresh possibilities, it would soon be wearisome as a steady diet. Moreover, Wilfred Owen’s use of assonance in his fine poem “Strange Meeting” (an assonance that is all but rhyme), would cease, if persisted in, to be refreshing. If we are not to return to rhyme, we must either discover a new blank-verse line or be vers-librists.

We can do neither of these things with any likelihood of success; the language will not suffer it. And even if it were metrically and melodically possible, the fact remains that centuries of Christian civilization have set our spirits hungering for wilder visions and deeper emotions than ever could disturb the serene and sad soul of a pagan. These visions and emotions have sought to find in rhyme one of their outlets. I do not propose, however, to argue the case against free verse: I merely record my conviction. My purpose is to say a few kind words about rhyme.

Rhyme is no more than a device designed to heighten poetic perception. Incidentally, it is an invaluable aid to the memory, but although critics now and then defend it on that score, that is not why poets use it. They use it as a net to capture the elusive Muse. It is unnecessary, and would besides be absurd, to contend that the ecstasy of poetic feeling could not be achieved without it. Merely to take one out of a hundred possible citations, lines such as:

In such a night
Stood Dido with a willow in her hand
Upon the wild sea-banks, and waved her love
To come again to Carthage—

achieve without rhyme all that it would have been possible to achieve with it. But however many examples one might adduce on this side of the question, there are far more examples that could be cited upon the side of rhyme; examples of rhymes that cease to be an accident of the poetry and become its very essence. Shakespeare’s twenty-ninth sonnet, for example, would have been a good poem without the double rhyme that transforms it into a marvel:

Yet in these thoughts myself almost despising,
Haply I think on thee, and then my state,
Like to the lark at break of day arising
From sullen earth, sings hymns at heaven’s gate.

The bird, and the imagination, mount from mere words (“like” and “lark”—half-rhymes) upward until the extra syllable of the rhyme carries it out of sight and carries us into the empyrean. The line would have lacked the final touch of rapturous lightness had it not responded to its conclusive rhyme; for this rhyme is the actual embodiment of a certain balance of ideas which, as always happens when rhyme is successfully employed, seem themselves to rhyme together.

Such felicity is not, of course, always attained. It is this felicity however, that is aimed at in rhyme, so that the ringing of two words in unison (a simple affair in itself) shall by its appropriateness illuminate, transfigure and be fused with the content of the poem, thereby adding, as the rhythm has already added, a new but more emphatic corroboration than unsupported rhythm can give to the thought in the poet’s mind. The chiming of these bells triumphantly announces the birth of poetry, and is inseparable from the spirit of the holiday.

Every poet knows that the perfect rhyme exists, could he but find it. He knows, too, that felicity in rhyming bears slight relation to facility in rhyming. Swift, who won his wager by matching “Nebuchadonozer” with “the curse of God, on you sir!” and Browning with his fantastic, Byron with his humorous, and Swinburne with his rhetorical effects were led by their mere aptitude for jingling to use rhyme for its own sake, in order to show off, or to amuse themselves with the pretty bells. Wordsworth, who plodded heavily after his rhymes and could attempt no feats, was saved by sheer slowness from abusing loveliness by too dexterous an exploitation of it.

The stars of midnight shall be dear
To her; and she shall lean her ear
In many a secret place
Where rivulets dance their wayward round,
And beauty born of murmuring sound
Shall pass into her face.

Anyone who had tried to write poetry can see that even here Wordsworth had difficulty with his rhymes. Yet, as is almost always the case with Wordsworth, the sincerity of his artistic purpose enabled him so to use his hackneyed rhymes that their appropriateness bestows inevitability, though hardly a startling inevitability, upon his work.

Keats, however, who possessed gifts that Wordsworth lacked, was often able to do much more. Take his most famous stanza:

Thou wast not born for death, immortal Bird!
No hungry generations tread thee down;
The voice I heard this passing night was heard
In ancient days by emperor and clown:
Perhaps the self-same song that found a path
Through the sad heart of Ruth, when, sick for home,
She stood in tears amid the alien corn;
The same that oft-times hath
Charmed magic casements opening on the foam
Of perilous seas, in faery lands forlorn.

That would have been fine poetry even without rhyme; but it is so much finer with rhyme that we can scarcely conceive of it without. It becomes what it is, moreover, because of one singularly fortunate rhyme: “hath” rhyming with “path” does the trick. It is at once the only possible and (especially because of the splitting of the whole verb) an unusual rhyme, one that is at the same instant surprising and what was expected. This is the secret of its charm. The absence of complete identity of vowel-sound is the key that opens the magic casement over those fairy lands; and the fact that “hath” can be uttered only in a whisper awakens the sense of mystery. This kind of thing could never have been brought about deliberately; it was a slice of the luck that comes to none save great artists; or is it that only great artists are able to take advantage of such luck?

Whatever else rhyme is, it is not an artificiality. I admit that it can be so mishandled, by being overstressed, as almost to be isolated at times from the rest of the poem; but that is no more than another phase of the delicate problem of what constitutes exact poise and proportion. We all know the man who is too well dressed and too elaborate in his politeness to be quite a gentleman. In the same way writers who, like Pope or Poe—to select extremes—obtrude their virtuosity, are really guilty of bad technique, and make their muse rather vulgar by over-dressing the poor thing. Yet all this may be admitted, without admitting that clothes, or rhymes, are nothing but conventions. The matter may easily be tested. It is precisely the simple and happy people who employ rhyme, or some similar device. It is the highly sophisticated person who needs the sharp, bitter taste of free verse as a stimulant to a jaded appetite. A child of his own accord will make up rhymes all day long; my own children do it, even going to the length of inventing words where none exist for their purpose. I do not draw the conclusion that they will be poets; but I think I am correct in concluding that every poet who rhymes has first the simple pleasure of the child in any rhyme before he discovers the subtle pleasure of the apt rhyme. If we were all as natural as children, or as Wordsworth’s forest tree, and had “divine vitality” in sufficient quantity, we would lisp in numbers because the numbers came; and, perhaps, when our simplicity was complete, would make every post-card a sonnet, and frame in triolets our request for a second cup of coffee. It is our unhappy modern prigs and pedants who can not endure the complexity of nature. Like godless Puritans they regard themselves as superior to the gold on the vestments and the carving on the altar, and insist on singing their dreary psalms within whitewashed walls—bare ruined choirs where late the sweet birds sang.

If ever there was a spontaneous poem it is “Kubla Khan”; and yet these very lines, composed in dream or directly “received,” are more crowded with varied metrical and melodic device than perhaps any others in our literature. Had Coleridge consciously written them, he might not have dared to let their flashing fountains play so audaciously in the sun. At any rate he knew that, broad awake, he could not hope to finish the poem. He would have toned it down and spoiled it.

But oh! that deep, romantic chasm which slanted
Down the green hill athwart a cedarn cover!
A savage place! as holy and enchanted

As e’er beneath a waning moon was haunted
By woman wailing for her demon-lover!

Even the most miserable vers-librist, however, would use nothing but metre and rhyme if he could do it with no more effort than Coleridge had to make. The trouble is that although rhyme is so easy that any child can manage it, excellence of rhyme, rhyme that heightens poetic emotion and is a part of the content of the poem, is a thing so difficult as to be almost a miracle. Mere ingenuity is within the compass of any clever man; and there is a genuine, if not a high, kind of literary delight to be obtained through the rhyming of a Barham or a Gilbert. It is like the pleasure one takes in seeing a man balance a chair on a walking-stick, and a knife on the chair, and a billiard-ball on the knife, and a bowl of gold-fish on the billiard-ball, and the whole affair, spining round, on his nose; but it is a smaller pleasure than one takes in seeing a great actor do what seems more easy and yet is far more difficult. I do not wish an actor to play Hamlet with so much as a walking-stick on his nose, but I do want Hamlet to be spoken as blank verse; and I also want to see a poet adding to the difficulty of his art by writing in rhyme. I want to see this because rhyme is appropriate, even though it is now and then not absolutely essential, to lyric poetry. I want to see it because the difficulty of art is the artist’s opportunity. The poet has not only more freedom but also more fun by recognizing his limits and by working within them. The same thing that holds him down is also his spur. The ship must be ballasted to be buoyant; the bird flies by its weight as well as by its wings.

T. M. 23. i. 24.

————

CHANGEABLE SILK

IN the American political scheme, so realistically adapted for keeping the bit in the mouth of the common man, the Supreme Court occupies a position of peculiar power in that it is the only political organism which in common repute possesses qualities of divination verging on the supernatural. It wears a halo of antiquity and brings to our matter-of-fact world some of the properties of the old mysteries which were so highly regarded as adjuncts of the ancient State. Its high priests are clad in symbolical robes of silk which no ordinary citizen would dare to adopt. Its decisions not only carry all the finality of a Sibylline prophecy, but the mystic sanctity of such prophecy is attached to them. When the robed prophets of the tribunal retire to consult the legalistic omens, presidents and legislatures fade into insignificance and the gods of social progress bow their heads upon the sacrificial altar. Their utterances are weighted with dicta from the earliest beginnings of law and order, and with a marvellous consistency they measure the problems of our complicated society with yardsticks reverently preserved from ancient days when industry was represented by shepherds tending their flocks on the hill-side and husbandmen scratching the stubborn earth with a stick. In this fashion these oracles, serenely aloof and removed from the clamour of struggling men, conserve our society in the mould of continuity and stability.

The history of our court of finalities is of peculiar interest to the student of what certain European economists have called “the political means.” Particularly interesting, as illustrating the mystic divagations of this venerable institution, is its treatment of the Fourteenth Amendment to the Constitution. Doubtless a higher consistency has inspired the tribunal in its successive interpretations of this Constitutional postscript. On the surface the court would seem to have reversed itself and re-reversed itself, to have doubled on its tracks, and strayed and wandered to and fro in an amazingly erratic fashion. As a result this simple Amendment, designed to cover a specific situation, has been magnified until it casts its shadow over the entire social horizon.

The Fourteenth Amendment was proposed after the close of the Civil War and was ratified by 1868. Its projection was the result of a crop of post-war statutes, hastily passed in the Southern States, which, as they were interpreted in the North, were designed to rob the liberated slaves of their rights as freedmen. “No State,” read the vital clause in the Amendment, “. . . shall deprive any citizen of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” The Amendment was strictly a partisan affair. The brilliant Judge Hough of the Federal District Court of New York has pointed out that in all the State legislatures only a single Democrat voted for it—one Barney Cregan of Tammany Hall.

In its early decisions, the Supreme Court took occasion to declare the special function of the Fourteenth Amendment. It would never apply, insisted the Court in 1877, except in cases involving the rights of freedmen. In another decision the Court announced that the “due process” clause afforded no protection against an unreasonable regulation by the legislature of public-utility rates. “For protection against abuses by the legislature,” ran the majority opinion written by Chief Justice Waite, “the people must resort to the polls, not to the courts.” It was an era of innocence. The first American case involving the validity of a legislative restriction on women’s hours of labour came before a Massachusetts court in 1876, but the Fourteenth Amendment was never mentioned. The legislation was sustained. As late as 1885 we find the Supreme Court reiterating its language of 1868 and expressing its “increased surprise at the continued misconception of the purpose of the [due process] provision.” Thus, as Professor Robert Eugene Cushman of the University of Minnesota has pointed out, the Court began its interpretation of the Amendment by complete acceptance of the doctrine of judicial noninterference with social and economic legislation.

The Court, however, carefully refrained from committing itself to any definition of the terms “due process” and “equal protection”; and thus, as Professor Cushman again points out, it left the way open for a change of mind. In later years, when a more involved application of the Amendment brought forward the relative status of such things as “police power” and “public interest” as opposed, in legislation, to such matters as “liberty of contract” or “property rights,” these collateral phrases likewise were never subjected to definition; for, as Justice Holmes remarked in one of his opinions, the Court never defines anything if it can help it. Once or twice, in emergency, the Court took refuge in pious ambiguities that might mean anything or nothing. “Where legislative action is arbitrary and has no reasonable relation to a purpose which it is competent for government to effect, legislation transcends the limit of its power,” ran one opinion, written by the cautious Justice Hughes. In another opinion, by Justice Day, the Court conceded that a State legislature might pass a law to protect the health, safety or welfare of the people, but only so far as it did not interfere arbitrarily with “the right to contract and carry on business.” As Abe Potash might say, such definitions, like third mortgages, are nix.

II

By the later ’eighties the personnel of the Court had completely changed from the naïve days of ’68, for even Supreme Court justices are subject to the laws of mortality. In addition, there was a curious ferment in the times. The industrial revolution was beginning to strain the social order. The simple democracy of earlier days had given place to a stratified society in which the majority in the “lower orders” felt themselves under great disadvantage. As yet there was no demand for a complete readjustment of the social system, but a growing sentiment was manifest for tempering social injustices by remedial laws. Under this impulsion, legislation attempting to deal with concrete social and economic problems was cropping up in the States, and the powerful interests affected by it were becoming active in opposition. The trend of the times was towards laws enabling members of the lower caste to rise above the status of mere beasts of burden, and this evolutionary change highly disturbed many worthy people. Historically, however, it would seem correct enough. As Justice Brandeis has stated in one of his distinguished dissenting opinions, up to 1813 English wage-earners were confronted with laws limiting what they could demand. Up to 1824 they could be punished as criminals if they combined, even without striking, to raise wages, shorten hours, or “affect the business in any way.” Up to 1871 it was a crime to go on strike. Not until 1875 was the right of workers to combine conceded by Parliament, and not until 1906 was the ban on peaceful picketing lifted. By the later decades of the last century the toilers were no longer content to secure negative gains from the political power, and in this country, as elsewhere, legislatures were responding more or less reluctantly to their importunities. Laws curbing privilege were actually beginning to replace laws curbing the under dog.

Professor Cushman notes that members of the bar and interests affected by these laws were bringing pressure on the courts for a broader interpretation of the Constitution. Unknown to fame is the name of that shrewd attorney who first persuaded the judicial high priests to dam the rising tide of social legislation with the Fourteenth Amendment. He deserves a niche in the Hall of Fame along with those of Choate and Mr. Elihu Root and other loyal servants of the God of Things as They Are. In 1889 appeared the first nullification of a State law regulating transportation-lines. The court, wrote Judge Hough, in discussing the case in the Harvard Law Review in 1919, “practically arraigned legislators at the bar, and passed judgment, not, mark you, on the justice or wisdom, but on the reason of what they had done.” He adds that of course the term “reason” was not defined. By 1897 the Supreme Court even went so far, however, as to commit itself to a definitive outline of its revised view of the Amendment. This development occurred in a case in which the Court nullified a Louisiana statute forbidding contracts with foreign insurance companies which had not complied with the law of the State. “The liberty mentioned in the Amendment,” ran the opinion, “means not only the right of the citizen to be free from the mere physical restraint of his person . . . but to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation and for that purpose to enter into all contracts which may be proper, necessary and essential.” With this the worthy tribunal formally declared its own sacred opinion of 1868 spurlos versenkt.

Fortified by this opinion and by subsequent decisions, the lesser courts set happily about the work of scrapping social legislation of even the mildest brand. “There is no reasonable ground . . . for fixing upon eight hours in one day as the limit within which a woman can work without injury to her physique,” declared the court in Illinois. In New York the court, in killing the statute forbidding night work for women in factories, declared that liberty as defined in the Amendment permitted a woman “to work at any time of the day that suits her.” In California a corporation that employed a man for sixty days and then paid him off by presenting him with an old horse, ran afoul of a State law. Under the statute, the court declared indignantly, “the workingman of intelligence is treated as an imbecile. He is deprived of the right to make a contract.” “In a government like ours,” declared the New York Court of Appeals in its stateliest manner, in the course of throwing out an employers’ liability law, “theories of public good or necessity are often so plausible or sound as to command popular approval, but the courts are not permitted to forget that law is the only chart by which the Ship of State is to be guided.”

III

In the United States Supreme Court the transformation of the Fourteenth Amendment reached its climax with the famous Lochner case, decided in 1905. Under the Fourteenth Amendment an employer was contesting a New York statute limiting the working-hours of bakers to ten hours a day, sixty hours a week. The Court had shortly before declared valid a law creating an eight-hour day for miners; but in the present instance it refused to apply the same principle to bakers on the ground that “innocuous trades can not be arbitrarily regulated by the legislature.” The majority opinion, written by Justice Peckham, is interesting as an illustration of the mental processes of the supreme arbiters of American life.

“An enactment . . . can not invade the rights of persons and property under the guise of police regulation, where it is not such in fact. . . . The general right to make a contract in relation to his business is guaranteed by the Fourteenth Amendment. . . . The right to purchase and sell labour is part of the liberty protected by this Amendment.” To these considerations the Court appended a tender reminder of the right of the individual, “to labour for such time as he may choose,” and to this he added that the law involved “neither the safety, the morals nor the welfare of the public.”

There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights. It may be true that the trade of a baker is not as healthy as some other trades, and is also vastly more healthy than still others. . . . Very likely physicians would not recommend the exercise of that or any other trade or ill health. It is unfortunately true that labour, even in any department, may carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities?

If it was all right for a baker to work ten hours, asked the Court, why if he worked ten and a half hours would his health be endangered and his bread be rendered unhealthy? Would not limiting his working-hours cripple his ability to support his family? If a baker’s hours were to be limited, where would such restrictions stop? With obvious anxiety the Court suggested the possibility of a physician, having finished his legalized daily stint, being faced with the alternatives of sacrificing the life of a fellow-man or becoming a criminal. “We do not believe,” concluded Justice Peckham, “in the soundness of the views which upheld this law”; and he wound up with the intimation, drawn from his inner consciousness, that “there was some other motive dominating the legislature than the purpose to subserve the public health and welfare.”

On this sort of taradiddle no comment is necessary. Justice Peckham has since been called before a court of final decision beside which the Supreme Court seems relatively impermanent. Justices Harlan, White and Day dissented from his opinion on the ground that voiding that statute set a mischievous precedent which might seriously cripple the power of the States to care for the health and well-being of the citizens. Justice Holmes, who also dissented, held that the validity of the statute was none of the Court’s business. “A Constitution,” he reminded his colleagues, “is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State, or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel and even shocking, ought not to conclude our judgment upon the question whether the statutes embodying them conflict with the Constitution of the United States.” It may be added that through all the record of backing and filling by the majority of the Court where social or economic issues were involved, Justice Brandeis has consistently refused assent to decisions which tended to usurp the legislative power.

The slaughter of social legislation aroused an increasing degree of public rancour. Outcries arose against judicial dictatorship. Theodore Roosevelt, then in the White House and in full eruption, was lending a not unsympathetic ear to the protests, and later gave vent to a contagious slogan, “the recall of judicial decisions.” Possibly the high priests of the temple, as they sat in their carven chairs hurling the thunderbolts of the law, were impelled to muse uneasily on the dismal tale of a certain Bourbon monarch, and on the story of that ancient king who defied a rising sea. Perhaps their assurance was disturbed by the barbed dissent of Messrs. Holmes, Harlan, White and Day; and perhaps, under a less hasty judgment, Justice Peckham’s opinion looked a bit shabby. At any rate, two years after Justice Peckham’s decision in the Lochner case, the Court deftly shifted its position once more and decided that an Oregon law decreeing a ten-hour day for women employed in laundries was altogether permissible. An attorney by the name of Louis D. Brandeis had been retained to argue for the law, and he offered such an array of statistics showing that similar legislation was common in every civilized country, that the Court was persuaded to give heed to his extra-legal evidence. “We take judicial cognizance of all matters of general knowledge,” declared the Court urbanely; and again, “It may not be amiss, before examining the Constitutional question, to notice the course of legislation as well as expressions of opinion from other than judicial sources.” By 1915, when a general ten-hour law for manufacturing-establishments in Oregon came up for consideration under the Fourteenth Amendment, the Court had apparently completely forgotten the decision in the Lochner case; at least it never mentioned it.

It was inevitable that these vacillations of the highest tribunal should create some confusion in the lower courts. In their efforts to keep up with the intellectual gyrations of the sacred Nine on Capitol Hill, the State judges were forced into odd mental gymnastics. In 1907, in accordance with the Lochner decision, the Court of Appeals of New York unanimously declared void a State law forbidding night work for women and minors in factories. The Legislature promptly passed a new law of the same character, and in 1915 the same court placidly sanctioned the measure, with the explanation that during the intervening years there had risen a widespread belief that such work was injurious to health, and in the previous case their attention had not been attracted to facts bearing on the hygienic necessity for such a law! The Supreme Court of Illinois executed a similar somersault in the case of a law establishing a ten-hour day for women. In the maze of conflicting opinions the Fourteenth Amendment was not infrequently utilized to crush and to sustain laws of virtually the same character, in different States, on virtually the same date.

IV

Meanwhile the Supreme Court kept a steady course, for over a decade, towards the emancipation of the legislative power of the States. In case after case it withheld the lethal application of the Fourteenth Amendment. It permitted the States to regulate insurance companies, to pass laws guaranteeing bank deposits, to establish rent-laws. It sustained a law forbidding the sale of preservatives containing boric acid. “It is plainly not enough that the subject be regarded as debatable,” declared the opinion in this case. “If it be debatable the legislature is entitled to its own judgment, and that judgment is not to be superseded by the verdict of a jury, upon the issue which the legislature has decided.” The court tolerated a Maine statute permitting cities to sell fuel at cost, and despite loud appeals to the Fourteenth Amendment by certain taxpayers, it permitted the Government of North Dakota to issue bonds to establish State warehouses and a State bank. In fact, it appeared, as Professor Cushman remarked at the end of 1921, that after long and varied wanderings the Supreme Court had at last brought the famous Amendment safely to anchor in a sure harbour. It had reached the point of acknowledging that the legislatures, in matters of fact and of public necessity, were entitled to their own judgment.

Even while Professor Cushman was penning his prophecy, however, the Court had put to sea and was tacking back on its track again. The composition of the venerable tribunal had changed, and Mr. Harding, that indefatigable collector of old ivory, had made several of his characteristically happy appointments. The first case to mark the change involved an Arizona law forbidding the use of injunctions in labour-disputes, except to prevent the destruction of physical property. The owner of a restaurant in Bisbee had had a dispute about wages with his hands; they had struck, picketed his place, and tried to keep off his customers by distributing handbills setting forth their alleged wrongs; and the proprietor sought to nullify the statute in order to obtain an injunction forcing the recalcitrants to accept his terms or sit at home and pray. Justice Taft’s majority opinion, nullifying the State law, was an interesting pæan on property-rights. He declared that the “due process” clause had come down from Magna Charta, and he enfolded the restaurant man in that hoary old parchment. Four justices dissented, Justice Brandeis reminding the Court that “the rights of property and the liberty of the individual must be remoulded, from time to time, to meet the changing needs of society.”

The Court went even farther back in overthrowing a minimum-wage law for women and children in the District of Columbia, in April, 1923. The majority opinion, written by Justice Sutherland, dragged from its long obscurity the Lochner decision, and also the decision invalidating the Louisiana insurance law. It was true, conceded Justice Sutherland, that the court had once permitted an Oregon statute limiting the hours of employment for women, but this decision was based on the theory of inequality between the sexes, and this “ancient inequality” had now come “almost, if not quite, to the vanishing point.” No public body, he contended, could possibly be competent to determine a just minimum wage, for “the amount necessary to maintain a woman in health and morals varies with temperament, habits and thrift.” Moreover, such legislation was likely to ruin employers, while the evidence of its beneficiary effects were only “mildly persuasive.” Therefore, concluded the Justice, the law was “a naked and arbitrary exercise of power that can not be allowed to stand.”

Clearly the Court had gone prancing back to dear old Justice Peckham. It is interesting to note that Chief Justice Taft, in a dissenting opinion, completely overturned his own opinion in the Arizona case of the previous year. “It is not the function of this Court,” he declared, “to hold congressional acts invalid because they are passed to carry out economic views which the Court believes to be unwise or unsound.” Thus, by a neat handspring, the Chief Justice had landed beside Justice Brandeis.

Here, for the present, ends a long record of errancy. After being dragged hither and yon for over half a century, the Fourteenth Amendment is for the time firmly established as a lever for the assumption of supra-legislative power by the judiciary. Its original purpose of protecting the coloured brethren from peculiar discriminations has been completely bleached out. In its adventurous course with the Amendment, our supreme tribunal has given a rare demonstration in prestidigitation. It has swallowed its own decisions and eventually regurgitated them in their pristine integrity. It has stood fast on abstract legal concepts and precedents, and later discarded them in favour of a reasonable consideration of essential realities; and, as the wind shifted, it has again shut its eyes to realities and stuck its head back in the comfortable sands of legal abstraction. It has been aggressively dictatorial one year and passively acquiescent the next. “Mutabile semper,” the motto should read; or, as Abe Potash might remark, “Minds like changeable silk they got it.”

H. K. 5. iii. 24.

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