СНАР. XXX The Privileged Are "'Best'' People CHAPTER XXX EQUALIZATION POWERFUL motive is ever at work to stereotype social inequalities. In order to secure for their descendants the inheritance of a good place in society, the high are in a tacit conspiracy to rear barriers against the irruption of ability from below. A man who has a title, a high office, or an honorable function will keep it in his family line, if he can. However proud he may be of having risen by his own efforts, the "self-made" man generally leaves his money to his son, although by so doing he spoils his son's chance to "make" himself. With rare exceptions the successful have done their best to perpetuate in their families their every social advantage, even if they had to deform the system which let them succeed. As we have seen, such a closed upper caste soon becomes a Rarely the sham. Robes, titles, pomp, and state cannot hide from the shrewd eye the growing mediocrity of the so-called "best." From the eugenic standpoint the hereditary ease of the privileged families is quite the worst thing that could befall them, for it enables their fools to survive and multiply. The whole theory of caste shatters on the iron fact that achievers are not mating with their like and hence do not transmit their gifts undiminished to their sons. In truth, the leading element in a healthy democracy, recruited. as it is, from every stratum, more nearly comprises "the best people" than a titular nobility. A society following an élite made up of those who have met successfully all tests, of many who have come up under heavy handicap, is more truly "aristocratic" than one ruled by a privileged order. The Fight on Who resist the endeavor of the successful to warp the social system toward status? Who level the barriers they have raised? Certainly not the ignorant and inert masses. The nether strata of a caste system are quite too short-sighted to make sacrifices to keep the gangways open for the ascent of their posterity. They will be found more intent on some immediate benefit - bread and circuses, largess and festivals than on opportunities for their children. How often conservatives have won the votes of the populace with money, drinks, or shows! It is the middle class, which has at once the wit to assault the doors of opportunity and the capacity to fill the posts to which they admit, that fights in the forefront of the battle for the restoration of competition, although it is reinforced as layer after layer of the common people is enlightened. СНАР. XXX State Govern and Re Lord to Private An early step toward competition is to wrest the control of the The Civie state from the upper class and to make it a civic or community Resumes institution. The feudal state knows subjects, not citizens, and mental these subjects are subordinate to magnates rather than to the Powers state itself. The civic state tolerates no intermediate powers duces the between it and the citizen, allows no personal fealty to take prece- the Status dence over one's civic obligation, and bears upon the individual of directly, instead of leaving him under the jurisdiction of his social Citizen superior. The state suppresses the superior's rights to judge and punish, to coin money, to keep armed men, and to wage private war. Public offices are no longer inherited, but are intrusted to those who are loyal to the state rather than to their order. The making of law is wrenched from the hands of the upper caste and shared among the strong and rising elements in society. Then begins the unbuilding of the rampart of privilege and the recognition in the inferior of rights which enable him to show what pith there is in him. PERSONAL FREEDOM Inequality depends greatly on how much power the law allows one human being to have over another. Is the husband at liberty to chastise, let, or sell his wife? Can the parent sell his child or bind it out during its minority or control its marriage? Does a debt or other obligation descend automatically to one's children? Is responsibility for it shared by one's kinsmen? Can the creditor seize the person of the delinquent debtor, cast him into prison, hold him to labor, or sell him? Is the son bound to follow the ancestral calling? Even under slavery the status of the slave greatly varies. Sometimes the master is complete owner of the unfree, so that nothing he can do to him is unlawful; but in other cases the unfree has only a few duties to pay his master. Between these ex CHAP. The Law Gives the Slave Rights against His Master Abolition of Serfdom Of Impris- Of Peonage Of Involuntary Servitude Of Indentured Coolie Labor tremes there is every stage. In the heyday of ancient slavery the slave had, in the eye of the law, no rights of any kind. He could not frequent the gymnasium or the public assembly nor follow certain arts all these being reserved to the freeman. He could not atone for an offense with a fine; he must "pay with his body," i.e., be whipped. He could not testify save under torture, i.e., he "spoke with his body." But in time the law curtailed the master in punishing his slave and gave the slave the right to support, the right to hold property, and to dispose of it by will. The serf, who, being attached to the farm (adscriptus glebae), could not be sold from home and family, was in a better position than the slave, who was a chattel. The substitution of fixed dues in work or money for the serf's unlimited obligation to serve his lord was an easement. Then doors of escape opened - manumission, purchase of one's freedom, military service, living for a year and a day in a borough. But then, for fear one parish might have to support a pauper chargeable on another, England passed acts of settlement which for two hundred years tied poor men down to selling their labor to local employers, because they were liable to be ejected from a strange parish. In England even into the nineteenth century traces of serfdom survived in the system of agricultural labor under year contract, with imprisonment for the laborer who broke his contract. On the Continent the rootage of domestic service in serfdom was long manifest in the employment of servants by the year, with imprisonment or holding back of wages as a means of enforcement. In the American colonies the system of indentured apprenticeship amounted to term serfdom. In the second quarter of the last century the new legal principle that failure to pay a debt cannot impair one's personal freedom 1 cut the nerve of imprisonment for debt, and in 1867 peonage was made unlawful. The refusal of American law to require specific performance of the contract to perform labor saves men from being tied down by a promise made in a moment of rashness or distress. The recent recognition of the seaman's right to quit the ship any time the anchor is down removes the last vestige of involuntary servitude under American law. It is only lately that the death blow has been 1 In 1829 it was estimated that 75,000 persons were annually imprisoned for debt in the United States. CHAP. XXX Unfulfilled Prophecies given to the system of indentured coolie labor under which in the British colonies thousands of Asiatics have been bound by an enforced state-regulated contract to work for five years. Every enlargement of personal freedom has been resisted by the powerful as a blow aimed at the foundations of society. To of Disaster take away the creditor's power over the person of the insolvent debtor would, it was claimed, cut off the poor from borrowing. To set free the serf from the glebe would result in untilled fields and tramp-infested roads. To abolish the master's power to whip or jail the worker who did not serve through the period of labor agreed on would kill enterprise by legalizing strikes. To cut the lariat of debt slavery by which the planter holds the peon would cause the plantations to be abandoned, while the erstwhile peons would lead a lazy half-wild life in their shacks in the jungle. Yet none of these predictions have come true because in every case a higher type of relation was discovered. Thus, when Hawaii became a part of the United States, the Hawaiian sugar planters anticipated ruin because American law would not prevent their Japanese laborers from striking in the critical canecutting season and from exacting an exorbitant wage. What happened, however, was that groups of laborers entered into agreements to raise cane on shares under the planter's direction, and that adjustment, instead of being made by coercion, was brought about on a higher plane - that of partnership. INALIENABLE RIGHTS In the early history of contract absolute freedom to bind one's self is the badge of a free man, since any restriction upon such freedom would tend to assimilate him to the slave, who is below the level of contract. It was only after a long and terrible experience with debt slavery that the ancient lawgivers recognized that free will is not always a will to freedom and that they denied a man the power to bind himself into thraldom or to pledge his person for the repayment of a loan. Under the feudal system the law of contract well-nigh swallowed public law. By the oath of commendation men could destroy at a stroke their own freedom and that of their descendants. The extension of such far-reaching effect to a promise was freedom of contract gone mad. The doctrine that men are "born free and equal" is not an assertion of natal equality in body or Economic Relations a Higher СНАР. XXX The Right to Contract Curtailed in the Interest of Freedom Legal mind, but a rejection of the principle of inferior heredity status fixed by the act of some ancestor. Gradually it was found necessary to recognize in the normal individual certain powers essential to self-effectuation, of which he cannot divest himself, i.e., "inalienable rights." Hence modern law gives no force to a contract which without due equivalent cripples one's future freedom to act or to contract, e.g., to live in a certain place or outside a certain place, to marry or not to marry a certain person, not to carry on one's trade or business, not to exercise the right of franchise or to exercise it in a certain way, or to forego one's legal rights, as, e.g., the passenger's right to damages for injury through the fault of a common carrier. Society will not permit the surrender of rights essential to the public welfare. Thus in some of our states the debtor cannot Can Divest waive the statutory exemptions in his favor nor the mortgager No One Himself his equity of redemption. Legal standard insurance policies have virtually removed insurance from the domain of contract. Personal safety is not to be contracted away; one cannot legally bind himself to engage in dangerous work or to remain in a dangerous place. Statutes clothing the worker with the right to be paid his wages in cash and the right to indemnity for injuries received in the course of his work will not allow him to contract himself out of these rights. An agreement to assign to one's employer the patents of all one's future inventions is invalid unless restricted to inventions of a particular character. The courts throw out an unlimited contract of a technical employee not to set himself up in business, not to use in the service of another knowledge of secret processes which he may have acquired in the course of his employment. In Germany there is doubt as to the validity of the clause in the contract of an apprentice binding him not to compete with his master in later life or to follow his trade within the German Empire. In all these cases, what at first glance appears a fetter on the worker's freedom to contract is really an enlargement of his freedom, since it prevents the stronger from snatching out of the passing distress or dependence of the weaker a lasting advantage over him. Thus we see that the celebrated assertion of the American Declaration of Independence that men "are endowed by their |