The Freeman 1968

theFreemanVOL. 18, NO.9. SEPTEMBER 1968

Misrepresentations of Capitalism John O. Nelson 515Protesting the treatment accorded the builders of the free economy by somelatter-day interpreters.

Failure of Politics George Hagedorn 524Taxing producers invariably aggravates the problems of the poor.

life Begins at Seventy Leonard E. Read 527Concerning the danger of retirement before one has come to maturity.

The Rise and Fall of England:7. The Industrial Surge Clarence B. Carson 532

Describing the improved agricultural and industrial production and trade duringthe eighteenth and nineteenth centuries.

Cheating Without Knowing It Paul L. Poirot 544How we shortchange ourselves when we hide in a majority and impose our willon others at their expense.

Freedom Cuts Two Ways Robert C. Tyson 548Before any of us can blithely dismiss our external restraints, each of us mustassume a solemn moral obligation to restrain himself.

Separation of Powers and the Labor Act:III. Judicial Courts vs. Administrative Courts Sylvester Petro 553

The Constitutional arrangement of the judiciary functions of government makesthe difference between the rule of law and control by dictatorial whim.

Devolution James E. McAdoo 567What happens when a creature loses its freedom and dignity.

The Exploitation of the Virtuous Robert James Bidinotto 568A young man reminds us that the chief victims of the welfare state are thoserobbed of their properties - including their integrity.

Book Reviews 573"Special Counsel" by William A. Rusher"The Jeweler's £ye"by Witli-am F. Buckley, Jr.

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MISREPRESENTATIONS OF CAPITALISM

PROPONENTS of laissez-faire capitalism find, like Socrates, thattheir most implacable and influential accuser is nameless: a greatand almost infinite mass of historical distortion. This distortiontakes two forms. One consists inthe presentation of what neverwas fact as historical fact. A casein point would be the mephiticbutchering practices depicted inUpton Sinclair's The Jungle andin the multitudinous accounts ofthe meat-packing industry thattrace their lineage to that libelousfigment of Mr. Sinclair's imagina-

Dr. Nelson is Professor of Philosophy at theUniversity of Colorado where he has taughtsince 1950. Articles and papers by him haveappeared in numerous scholarly journals andbooks in the United States and abroad.

tion. The other form consists inpresenting as fact what was fact,but putting upon the facts an interpretation that entirely discolors them. In certain respects,this last method of denigratinglaissez-faire capitalism is morepersuasive, as it is more common,than the first. Plain misstatementof fact can be easily hit and exploded. Colored interpretations offact offer a tougher target, offwhich even well-directed fire canglance harmlessly.

In this essay, I shall concentrateupon the last form of distortion.Although helpful, general considerations and arguments cannotdisarm these distortions. Like therepressions in hysteria, they must

516 THE FREEMAN September

be disarmed by concrete exposure- one by one. This is slow work,but there is no substitute for it.

So, let us begin with a recentarticle in that popular but prestigious emporium of the AmericanPast, the magazine, AmericanHeritage. The article, "The Kingof the Ranchers,"1 is a descriptionby Bernard Taper of the life andcareer of the cattle-raiser, HenryMiller.

Distorting the Picture

By interpreting in emotivelydenigrating terms various facts ofMiller's life and activities whichseem prima facie praiseworthy,and which by libertarian standards are praiseworthy, Taper manages to produce a picture of thelaissez-faire capitalism of theAmerican Past that depicts it assomething distasteful, even immoral, and deservedly displaced.The analogy that comes to mind isof a person who holds up to a gleaming white snow-scape a red-colored pane of glass and, beckoningus to look through the glass, thentries to convince us how ghastlyand bloody the snow is. But letme now substantiate this claim indetail. I shall use for my witnesses Taper's own statements offact.

1 Bernard Taper, "The King of theRanchers," American Heritage, August,19&7.

We learn from Taper thatMiller was born in 1827 "in thelittle town of Brackenheim inWlirttemberg, Germany," the sonof a butcher. He was apprenticedto the trade at eight and at fourteen he ran away to the UnitedStates. Nine years later, when 22,he made his way to the goldbooming California of 1850 withsix dollars in his pocket. When hedied in California in 1916, his"estate was appraised at fortymillion dollars, a sizable increase[Taper notes] over the six dollarshe had started with...." This estate consisted almost entirely infarm and cattle-land and cattle.

In summary, then, Miller, aGerman immigrant withoutfriends or fortune, came as a veryyoung man to this country andafter a few years, with six dollarsin his pocket, arrived in California, where he died 66 years laterleaving an estate in cattle-landand cattle worth forty million dollars. In the older tradition ofHoratio Alger, we should want topraise this progress from rags toriches and think of it as exemplifying the rewards of virtue, hardwork, invention, and thrift. Howdoes Taper refer to it? He quotesfrom Carey McWilliams' tendentious work, Factories in the Field,to the following effect: "His[Miller's] career is almost with.out parallel in the history of land

1968 MISREPRESENTATIONS OF CAPITALISM 517

monopolization in America. Hemust be considered as a memberof the great brotherhood of buccaneers: the Goulds, the Harrimans, the Astors, the Vanderhilts." In this quotation Taperclearly intends to be presentinghis own interpretation of Miller.Thus, he, too, wants to convinceus that Miller was a "land monopolist" and a "buccaneer."

How Big Is a Monopoly?

In dissecting this harsh accusation we might pause first overthe epithet "land monopolization."Now what can land monopolization by a private individual consist in? If one owns a certainamount of land In his own name,is he a land monopolist? If, then,I own in my own name a half-acrelot in suburbia, am I a land monopolist? Predictably, neither McWilliams nor Taper means that.But by the same token, if I ownedone thousand acres or a millionacres, I should not for that reasonalone be a land monopolist.

What could an individual possibly be taken to mean if he said,"I have a monopoly on land" ?Surely, he could only mean that hehad some kind of exclusive control of the ownership of land.Thus, if uttering such a remarkin the United States, he wouldhave to mean either that he ownedall the land in the United States

or that he had some sort of charterthat gave him exclusive controlover the ownership of land in theUnited States. Plainly, Miller wasas far as Taper himself from falling into either category; for, aswe have seen, ownership of someland (as opposed to all land) doesnot make one a land monopolist.

Actually, it is inconceivablethat any private individual couldbe a land monopolist. This sort ofmonopoly, like most others, wouldhave to reside in the State, andtypically it has. In the face ofsuch obvious discrepancy withfact and theory, what then can bethe point of McWilliams' andTaper's description of Miller asa land monopolist? We can thinkof only one possible answer. In the"Brave New World" laboratoriesof Marx and his latter-day followers, the term "monopoly" hasbeen given a sense denoting demons and demonocracy and, justas unfairly, has been reserved forprivate individuals and privatebusiness (instead of governmentwhere its older and true application lay). Whatever McWilliams'and Taper's conscious intentionmay have been, therefore, in calling Miller a land monopolist, thepoint is made that Miller and hisactivities were somehow diabolical. By obvious implication, thevirtues and ideals of laissez-fairecapitalism are also sullied.


Pirate Without Portfolio

Do we find any closer fit ofphrase and fact in the descriptionof Henry Miller as a "buccaneer"?According to Webster's dictionary, a buccaneer is "a pirate; esp.one of the freebooters preyingupon early Spanish-American vessels and settlements in the 17thand 18th century." Since Millerlived in the nineteenth and twentieth centuries and had only abrief and nodding acquaintancewith the sea, we must assume thatTaper and his authority, McWilliams, are here being purely fanciful. Presumably, what theymean, if they mean anything factual, is that Miller obtained hiswealth and possessions throughrobbery of one sort or another.Let us see then what facts Taperadduces for this serious charge.

Four paragraphs following hisstigmatization of Miller as a buccaneer, Taper describes in specific detail Miller's general outlookand methods. We find that Millerabj ured easy and capricious waysof making a fortune for sheerhard work, industry, honesty, andthrift. Taper tells us:

Fronl the beginning, the gold mineshad no lure for l\1iller. He was asfully certain as the miners that theWest was the land of opportunity,but he expected to have to work hardfor his reward, not to have it handedto him as a pile of nuggets. He be-

came a butcher's assistant, laboringearly and late seven days a weekand indulging in none of the pleasures of what was then the mostriotous, fun-loving city in the country. A contemporary gives us a telling glimpse of young Miller at thestart of his career in 1850. Thewriter was wending his way home atdawn after a night of carousing andpassed Miller on the street. Millerwas on his way to open the butchershop. He was bent over, carrying onhis shoulders a calf he had slaughtered an hour earHer in the stockadeat the other end of town.

Are we reminded by this description of anything resemblingrobbery? I trust that we are not.Does the fact that Miller workedand saved while much of SanFrancisco caroused suggest piracy? Surely, it does not.

Taper several times refers toMiller's foresight, organizinggenius, and consummate knowledge of the cattle business. According to Taper, Miller had "afabulous memory, brilliant organizing power, and a fanatic devotion to work." He rode day andnight supervising his vast holdings and herds, composing meanwhile an almost endless stream ofinsightful and knowledgeablememoranda covering an amazingvariety of details and topics:

As Miller travelled there used toemanate from him a steady stream


of letters to the various supervisors,agents, foremen, and other satraps(sic) of his business empire. Writtenon cheap ruled paper at any opportune moment of the day - beforesunup, late at night, during pauseson the dusty roads and trails - Miller's letters contained advice and instructions on the nl0st minute detailsof his far-flung operations: how tomake use of cow chips as fuel torun the farm machinery, what to doabout anthrax and blackleg, the advantages of opening haystacks at thesouth side, Miller's displeasure atfinding canned milk served in hishotel in the heart of the dairy country, the inlportance of rubbing saltover a hide to keep it from shrivelling, etc. . . A good many of thethousands of letters of instructionhe wrote have been preserved, andthey are quite remarkable documents, constituting something of acomprehensive manual of cattle raising.

To judge from this presentationof fact Miller was not only ahardworking and prudent businessman but an imaginative andscientific one also. And this impression is borne out by somelater remarks of Taper's. Consider these statements:

He [Miller] affected the development of the Far West, particularlyof California, in a number of uniqueand significant ways. He put thebusiness of raising livestock onto asystematic basis for the first time.He developed a breed of cattle par-

ticularly suited to the West - a mixture of Hereford, Devon, and Durham - and inlproved the breeds ofsheep. He has been credited with being one of the first agriculturists inCalifornia to experiment with thestrange new crop called alfalfa, andhe was anlong the first to plant cotton and rice, both now staples of thestate's agriculture.

Of even more far-reaching consequence were his reclamation and irrigation projects ... Miller was alsothe first to do something practicalon a large scale to assure a constantwater supply - he built thousands ofmiles of levees and irrigation ditches,three major canals with a totallength of 190 miles (!), and a 350foot danl across the San JoaquinRiver. It is estimated that he thereby made fertile over 150,000 acres ofnear-desert land.

Land Acquisition

To almost anyone of uncorrupted mind and feelings, thisaccount of Miller would seem topicture, not a malefactor and robber of men, but a creative geniusof the highest order and a benefactor of. both his own generationand subsequent generations. Wetherefore repeat: what possiblycan Taper and McWilliams meanfactually by calling Miller a buccaneer or robber? Did Miller perhaps steal his land holdings andcattle from other men? This doesnot seem to be true either.

The first land Miller owned was


purchased in 1863 with some tenthousand dollars he had savedfrom working (as we have seen)in a butcher's shop and then operating one himself in San Francisco. As far as one can tell fromTaper's article, whatever landMiller acquired from individualsor the government, he acquiredby purchase or other legal means.He forc·ed no one to sell land tohim, an innuendo of Taper's to thecontrary notwithstanding. SaysTaper:

Like many of his contemporarytitans of private enterprise, Millerhad few scruples to deter him inhis quest for gain. One of his methods of acquiring land was to buyout one or more of the heirs to aSpanish land grant. This would givehim grazing rights over the wholeranch and before long he would sodominate the land that the otherheirs would sell out to him at anominal price.

/lFacts that Can't StandClose Examination/l

Let us examine this colored version of Miller's "method" morenarrowly. Miller would buyoutone or more of the heirs of aSpanish land grant. There is nothing unscrupulous in that! "Thiswould give him grazing rightsover the whole ranch and beforelong he would so dominate theland that the other heirs would

sell out to him at a nominal price,"adds Taper. But unless greatlyenlarged upon and those enlargements substantiated in all sortsof detail, this blanket· indictmentcarries no weight whatsoever. Itdoes not even make much sense.Buying out one heir would notgive Miller sole grazing rightsover a ranch if there were otherheirs. He would possess just somuch right as his portion of theestate entitled him to. Had hepurchased a controlling interest?Then, of course, he "dominated"the ranch, but what would oneexpect? If the other heirs possessed the controlling interest,they and not Miller would "dominate" the ranch. Did the heirs toSpanish grants really sell out toMiller at "nominal prices"? Whatwere the exact circumstances ifthey did? Was the land unimproved and did its improvemententail a great deal of expensewhich they were not prepared toshare with Miller? These are questions that minimum fairnesswould demand be answered beforeaccusing a great and gifted manlike Miller of sharp practices,and, in particular, such a seedylooking practice as "so dominatingthe land" that heirs to Spanishgrants were forced "to sell outat a nominal price." From whatwe learn elsewhere about Miller'sabilities and achievements, he


neither did engage in sharp practices in order to obtain businesssuccess nor did he have to.

But, again, Taper tells us withtesty indignation that Miller "alsoengaged in the practice of making extensive loans on farm properties and then foreclosing on themortgages." Let us suppose this'were so. Miller forced no one toaccept the loans in question. Onthe contrary, one can imaginethat those who received the loanswould have been outraged hadTaper raced up during one of thesaid transactions and cried, "Youdare not - you cannot - borrowthis money from Miller!" DidMiller foreclose on unpaid loanson farm properties? Suppose hedid. How coul_d one possibly remain solvent if he did not? Doesthe government waive foreclosurewhen not paid on loans to it orwhen its coercive tax-levies arenot paid? But even Taper's imputation that Miner avariciouslyforeclosed on farm mortgageswhenever he could and indeedloaned money on farms just inorder to be able to foreclose onthem is invalidated by his ownsubsequent testimony. For soonafterwards he tells us that "oneday during the depression of thenineties he [Miller] called everybody in the region who owed himmoney and gave back all theirIOU's. 'It's time for a clean start,'

he said gruffly, wiping $350,000off his books." Let us put this factin the scales against the charge,for whatever weight it has, thatMiller loaned money to farmerssimply in order to foreclose onthem and gain possession of theirlands. Here was his supreme opportunity, and he did the very opposite from what the charge predicates. Surely, therefore, the chargein question weighs out as merevilification.

Stolen Cattle

Can it be maintained, perhaps,that though Miller did not robothers of their land, he robbedthem of their cattle and for thisreason deserves the appelation,"buccaneer"? Once more the factsrise in opposition. What we learnis that - far from robbing othersof cattle - Miller was the constanttarget of such robbery and that,moreover, the government courts,instead of protecting Miller fromthis robbery, condoned and abetted it. We read:

Miller's attitude toward those whoattempted to rob him was realistic.He knew that he was a naturaltarget and that it was a rare jurythat would bring in a convictionagainst a person accused of stealingfrom the man who owned more livestock and land than any person inAmerica. In one case a defendantwas acquitted after being caught


red-handed. After the trial he saidreproachfully to one of Miller's superintendents, "I'm surprised at Mr.Miller. He ought to be a better businessman than to prosecute me. Itcost me a thousand dollars to bribethat jury. Look at all the cattle I'mgoing to have to steal now to getthat back."

Weare tempted to exclaim:Mr. Taper, these are the facts byyour own admission! Look atthem for heaven's sake! Now whowere the buccaneers? Indeed, except for just Henry Miller, whowas not!

Taper is not satisfied with calling Miller a "buccaneer"; he callshim a "grasping, dominating, humorless man." These ugly traitsare evidently supposed to lie behind and explain Miller's being abuccaneer or, what seems to cometo the same thing in Taper's Lexicon, a successful businessman. Asuccessful entrepreneur just hasto be grasping, dominating, andhumorless! What truth is there inthis first article of the anticapitalist's creed? Once more we shall letTaper's own statements be ourwitnesses.

Acts of Benevolence

Let us take the accusation thatMiller was grasping. We have already cited the instance of his returning $350,000 worth of IOU'sin the depression of the nineties.

This act of benevolence, we discover, was merely one of a greatmany. For example,. Miller "wasapt to leave a twenty-dollar goldpiece in one of his boots as a tipfor the maid who shined them"a queer form of graspingness, onemust say! Or consider these policies of Miller's as set down byTaper:

[Miller] never prosecuted anyone- settlers or bandits - who killed hiscattle for food. Miller asked onlythat whoever killed any of his steersshould hang the hides on a treewhere Miller's cowboys could findthem. Hides, after all, were worthfour dollars apiece. It was surprising how often even bandits took thetrouble to comply with this request.

He let it be widely known that anysettler should feel free to pick up alVIiller cow on the range and takeher home as a milk cow for thefamily, provided the settler saw toit that the unweaned calves did notsuffer.

Miller had a long list of peopleto whom he regularly sent gifts,and he knew better than to try tostint or economize here. "There's ncuse giving a person a turkey and expecting him to appreciate it unles~

it is in fine condition," Miller onCEsaid to a penny-pinching foreman"It's better not to send a gift at all.'

Miller's prudently calculated gen,erosity extended to tramps and otheJvagrants, to whom he gave severathousand free meals a year.


Humorless?

Taper's charge that Miller washumorless - and certainly that isa charge of which, for all weknow, Taper himself might beguilty - is not so easy to counter.What strikes one person as humoris apt to strike another as not humol". For my own part, I detectwry humor in Miller's instructionfor "the care of hoboes":

Never make a tramp work for hismeal. He won't thank you if you do.Anyhow he is too weak to work before a meal and too lazy to workafter a meal.

I detect a twinkle of humor inMiller's leaving twenty-dollar goldpieces in his boots for the maidswho shined them. But supposeMiller lacked any sense of humor:how uncharitable to bring thisfact up against Miller as if enumerating the counts of an indictment: grasping, dominating, humorless!

In a widely read and admiredjournal devoted to the history ofthis country, then, we find a greatentrepreneur of our recent pastdescribed as a "buccaneer" and,given the harshest intonation,"grasping." Our vision being colored by these interpretations, weare apt to think that we are reading an account of some unmitigated thief and scoundrel. Whenwe look hard at the facts provided

us, we find instead that the person being d,escribed was in realityintelligent, industrious, imaginative, saving, prudently generous,and completely honest, and thathis immense success in businessstemmed from these virtues andfrom a corresponding lack of vice.

Destroying the foundersDenies Our Heritage

I have gone to these lengths todemonstrate the distortion and deception that have been practiced inTaper's article for reasons that arenot negligible. Taper's distortionand deception are not isolated.They are representative of thetreatment accorded for many yearsnow and still accorded to the greatgeniuses of this country's laissezfaire past. In so denigrating thesemen, historians and economistshave also blackened the virtuesand achievements of such persons.In doing this, they have made itseem that one ought to be ashamedof the very traits, persons, andachievements that in another timeit was perceived one should rightly be proud of. The tragic upshotof this denigration of laissezfaire history, achievement, andvirtues is that the present generation, taken in by the deception,finds itself emulating, not the trueheroes of civilization like Miller,but the constant oppressors ofmankind, the Castros, Mao-tse-


tungs, and Lenins. One hardlyneeds to point to the already terrible devastation of mind, morality, spirit, and material well-beingthat this subversion of truth andhistory has produced in America.In less than two generations, "theland of the free and the brave"has become the limbo of the coerced and the fearful; the land ofopportunity, the limbo of despair;the land of the beautiful, the limbo of the ugly.

Taper, McWilliams, and theirfellow anticapitalists, while pointing at the Millers and Carnegiesof our past and shouting "robber,"have themselves engaged in themost frightening robbery of all:first, robbing great men of reputations fairly won and the gratitude that we owe them; and sec-

Failureof

PoliticsGEORGE HAGEDORN

Mr. Hagedorn is Economist and Vice-President of the National Association of Manufacturers. This article is from his column inNAM Reports, June 24, 1968.

ond, in doing so, robbing us of arich heritage. It is important thatwhat has been taken from us bydeception be taken back by forceof fact and demonstration.

The country's great past and itsgreat men - the Fords, Rockefellers, Vanderbilts, Astors, Millers,Jim Hills - have been buried under a mountain of muckraking innuendo, misrepresentation, andoutright libel. Our future lies buried under this same mountain ofcollectivist refuse. One of the maj or tasks of the libertarian scholar - perhaps the first of his tasks- is to remove this kitchen middenof hatred and envy that obscuresthe past greatness of America andso retrieve the visible foundationsof a right civilization and rightphilosophy. ~

PROSPERITY is another name forabundance. A nation can have anabundance of goods and servicesonly if it produces an abundanceof goods and services. It can produce an abundance of goods andservices only if it is organized insuch a way as to release the energies, initiative, and skills of suchof its citizens as possess thosequalities.

Unfortunately energy, initiative, and skill are not distributed

1968 FAILURE OF POLITICS 525

evenly among all the groups inany society. They are not evenlydistributed among the nations ofthe world. It is likely that the differences are not so much geneticas they are cultural. But in anycase the disparities exist and theyare wide.

This gives rise to a feeling - itis a world-wide phenomenonthat where abundance is lackingit is hecause the group affected is(or has been) exploited by someone else. The road to prosperityfor all is to suppress the exploitersby political action, rather than toprovide goods and services by productive action.

This is the prevailing sentimentin most of the undeveloped nationsof the world. It is the chief barrier to their development intoprosperous members of the familyof nations. It is a rising sentiment in many of the industrial nations and is the chief threat totheir continued prosperity.

Case histories are abundant. InBolivia a revolutionary government nationalizes the tin mines.What had been the chief nationalasset under private ownership becomes, under government control,an inefficient and wasteful operation. An enormous influx of foreign aid from the U.S. is throwndown the drain in subsidizing socialistic government enterprises orcorrupt government officials.

The story is much the same inother parts of Latin America, inIndonesia, and in many of the newnations of Africa. For reasonswhich should, but don't, embarrassthe governmental leaders, the departure of the "exploiters" produced more widespread povertyrather than the promised universal prosperity.

There is a small number ofnations which illustrate the opposite side of the coin. Hong Kongand Malaysia have encouragedprivate enterprise. Their prosperity and productivity shine outfrom an otherwise dismal picturein the less developed world.

At the same time we see someof the advanced nations going theother way. In France a large segment of the working population,animated by revolutionary fervor,has decided to give itself payraises of 10 per cent to 15 percent, together with longer vacations. It is truly astonishing tosee the illusion, in an intelligentand sophisticated nation, thateverybody's welfare will be improved by higher pay for lesswor]c.

In the U. S. the belief that poverty is the result of robbery byan exploiting class has not yet become the dominant mode of thinking. But it is making progress.In certain circles the middle classis more likely to be despised for


its "affluence" rather than admired for the productivity whichmade that affluence possible.Henceforth, it is urged, we mustwork to eliminate poverty throughredistributive political action rather than through productive actionin the mill and market place. Atleast this is what many of theprograms advocated to eliminatepoverty - a higher level of government social action supportedby higher taxation, or a negativeincome tax - seem to come down to.

The spirit of enterprise amongAmericans - that willingness toinvest one's own sweat and resources in opportunities one findsfor oneself - is a tough bird andwill be hard to kill. But it can beseriously crippled both by verbalabuse and by higher levels oftaxation. Worse, it can be misdirected, by government interv~n

tion, into unproductive or counterproductive channels. And thosewho don't share the spirit of enterprise will suffer along withthose who do.

Individuals who are resourceful by nature will usually makeout in any kind of society. In afree enterprise society, personswho combine native resourcefulness with high ability will oftenrise to the top, by activities which

benefit everyone else. In a societywhere economic decisions are madeby a political power struggle, thenatively resourceful (whether genuinely able or not) will take prominent parts in that struggle. Buttheir efforts are unlikely to contribute anything positive to thewelfare of their fellow citizens.

A society which rewards itsparticipants in proportion to theircontribution to the production ofgoods and services other peoplewant is, on the record, the mosteffective in reducing the prevalence of poverty. All this is elementary in principle and abundantly illustrated in practice. Wecan only express astonishmentthat it has become the fashionin intellectual circles to ignoreit. It is as though we were toagree that, since the fact thatgrass is green is an old and tritetruth rather than a fresh newone, we will henceforth believethat grass is red.

Raising taxes on the productiv€groups in society in order to expand antipoverty programs isn'1essentially different from expropriating the owners of tin mine~

in order to make the Boliviarpopulace richer. And it isn't likel3to be any more successful. ~

Life Beginsat SEVENTY

LEONARD E. READ

POPULAR EXPRESSION has it that"life begins at forty," thirty yearsahead of my suggested figure. Butlife really begins each moment onegrows in awareness, perception,consciousness; that is, the buddingprocess is a continuous beginning.The moons that have come andgone do not necessarily measuregrowth or its ending; now andthen life flags in the teens; onoccasion it accelerates in the nineties. If seventy seems less likelythan forty for a ne,v beginning,the reason is that so many havedied on the vine in that interval.

Glory to the man who can truthfully attest, "Life begins atninety!"

Twenty years ago - at the ageof fifty - I discovered this: "Thenormal human brain always contains a greater store of neuroblasts than can possibly developinto neurons during the span of

life, and the potentialities of thehuman cortex are never fully realized. There is a surplus and, depending upon physical factors, education, environment, and conscious effort, more or less of theinitial store of neuroblasts will develop into mature, functioningneurons. The development of themore plastic and newer tissue ofthe brain depends to a large extent upon the conscious effortsmade by the individual. There isevery reason to assume that development of cortical functions ispromoted by mental activity andthat continued mental activity isan important factor in the retention of cortical plasticity into latelife. Goethe . . . [and others] areamong the numerous examples ofmen whose creative mental activities extended into the years associated with physical decline....There also seem sufficient grounds


for the assumption that habitualdisuse of these highest centers results in atrophy or at least bringsabout a certain mental decline."!

And now, on rereading Ortega,I find: "As one advances in life, onerealizes more and more that themajority of men - and of women- are incapable of any other effortthan that strictly imposed on themas a reaction to external compulsion. And for that reason, the fewindividuals we have come acrosswho are capable of a spontaneousand joyous effort stand out isolated, monumentalized, so to speak,in our experience. These are theselect men, the nobles, the onlyones who are active and not merelyreactive, for whom life is a perpetual striving, an incessantcourse of training."2

Enter into Life

There is more to the observationof these two scholars - a biochemist and a philosopher - than firstmeets the eye. A worthy ambition,they quite correctly imply, is "todie with your boots on" or "godown with your colors flying."For what other reason are we herethan to get ever deeper into life?

1 See Fearfully and lVonderfully JI;!adeby Renee von Eulenburg-Wiener (NewYork, N. Y.: The Macmillan Company,1938) , p. 310.

2 See Revolt of the Masses by Orteg-a yGasset (New York, N. Y.: W. W. Norton& Co., Inc., 1932), p. 71.

And if there be any certain keyto personal happiness, it involvesthe use and development of thefaculties - the expanding mindbeing the most important and, byand large, all that remains for theelder citizen.

But there is another reason forlooking so favorably on those whoinsist on "a perpetual striving, anincessant course of training" :Each of us has a vested interestin these "select men, the nobles."3We can live our o'wn lives to thefullest only insofar as they dwellamong us. The society in whichwe live - the environment - isconditioned by the absence or presence of those who persistentlypursue excellence. The rise andfall of society depends upon thiskind of nobility. These "selectmen" are essential to us, andstriving to be numbered amongthem is a worthy aspiration.

Yet, many persons lack such aspiration. Analogous is the treewith every appearance of health,its blossoms beautiful to behold,fruit developing normally towardfull size. But, alas, before itripens, the fruit falls to the ground- big and well-shaped, but useless!

We witness so many promisingindividuals falling by the wayside,stepping away from life, forsaking

3 Thomas Jefferson: "There is a natural aristocracy among men. The g-roundsof this are virtue and talents ..."

1968 LIFE BEGINS AT SEVENTY 529

the effort essential to life's fullcycle, just when the process ofmaturing is to begin! In a word,the fruit of life abandoned!

To associate old age with maturejudgment is indeed a mistake,simply because, as Ortega suggests, too many elders react onlyto external compulsion. The innerdevelopment that is prerequisiteto maturity tends to terminate toosoon. Old age, more often thannot, can be associated with senility. Yet, the greater the age, thericher the maturity, assuming, ofcourse, that the budding processis alive and functioning. In theserare cases, old age and maturejudgment go hand-in-hand; theolder the wiser!

If I am not mistaken, freedomis to be expected only in societiesdistinguished by a significantnumber of mature and wise men.And maturity and ,visdom of thequality required is reserved tothose who can retain the buddingphenomenon - cortical plasticityinto those years normally associated with physical decline, that is,into the period when maturing ofthe intellect becomes at least apossibility.4 In any event, I am

4 Conceded, many a young personreaches a higher state of maturity thandoes the octogenarian. This is becausesome are born more highly endowed thanothers. However, my poin t is not aimedat such comparisons but, rather, at the

certain that the type of maturityhere in question will never issuealTIOng those ,vho, for whateverreason, permit themselves to "dieon the vine." Thus, it is of the utmost importance that we reflecton the obstacles to maturity. Ifthey can be identified, we can,hopefully, reduce them.

The Urge to Quit

The most formidable obstacleon the. ,vay to maturity is coveredby the idea of retirement! Twoforces move us toward retirement,namely, temptation and compulsion.

Many are congenitally lazy, ifnot physically, at least mentally.Their menta1 activities have stagnated, leaving them uninterestingeven to themselves, let alone toothers; they cannot stand theirown company or abide being alonewith their thoughts. They seekmerriment and diversion suppliedby others, like a man walkingdown the street ,vith a radio gluedto his ear. Any excuse, howeverflimsy, to avoid thinking for self!Such persons have no fruit toripen, no mental activity to mature.

There are others who have hadno thought since early adulthood

need of maturity regardless of how highor low the endowments. Mankind losesmost when those of high endowment failto mature.


but to "get it made." By the timethat goal is achieved, abstractthought has been too long neglected for reactivation or renewal;half-hearted attempts prove unrewarding, .so the temptation is toforswear any conscious effort. Mature thoughts are out of the question.

Ever so many persons of highpotential look to a vocation forfame or fortune and forget tochoose one in harmony with theirunique capabilities. As a consequence, the job is likely to ~e boring; holidays and vacations - littleretirements - are highlights of theseasons; and as the years pass,full retirement seems more andmore attractive. There is no incentive to extend mental activityto its maturity.

Relative Retirement

The thought of retirement is anathema to me. I have not experienced any of the temptations and,thus, can list only a few of themore obvious examples. But itseems clear that there would belittle drive for compulsory retirement if retirement were not acommon goal. It seems to add upto this: Let's formalize and legalize that which the vast majorityso ardently favor! The followingexamples of compulsive forcesstem from these common temptations.

Retirement, of course, is a relative term. The shortened workweek, enforced by edict, is a casein point. One must retire, notwork beyond the legal forty hours,or the employer will be forced topay a higher hourly rate, in effect,a fine.

Legal holidays seem never to beabandoned even after the causethey were meant to celebrate hasbeen forgotten. Instead, there arecountless excuses for increasingtheir number. Minor retirementsen masse!

Social security payments arewithheld from senior citizens whoelect to work and earn. Activity ispenalized; inactivity is rewarded.

Governmental unemploymentpayments often exceed what somepersons could earn by working,thus inducing retirement.

Most corporations, educationaland religious institutions, chambers of commerce, trade associations, and other organizations compel retirement at 65; many makeit attractive to retire at 60; andwe hear more and more of retiringat 55. The sole criterion is thenumber of moons that have comeand gone; whether the buddingprocess is dead, or at its verypeak, is not even considered. As aconsequence of this indiscriminate,rule-of-thumb procedure, many ofthe nation's best men are "put outto pasture."

1968 LIFE BEGINS AT SEVENTY 531

These illustrations suffice to emphasize the retirement syndrome.It is, today, the common fetishand the end is not in sight. Underthese CirCUlTIstances, it is remarkable that even a few individualsare capable of spontaneous andjoyous effort, that is, are able toexperience the maturing period.No wonder that the perceptiveOrtega observed such individualsto "stand out isolated, monumentalized" !

In one sense, it is lamentablethat those who have advanced inwisdom and maturity should"stand out isolated, monumentalized." Far better if there weremore such persons - the few lessconspicuous than they are. Not

everyone will make it, of course,but maturity surely is within thereach of thousands at the modestprice of conscious, persistent, dedicated, prayerful effort. The reward for realizing one's potentialities, whatever they are, maybe the highest earthly life has toconfer.

That my life still begins witheach moment can be assigned inpart to a stroke of good fortunevocation and avocation are identical; work and pleasure are one andthe same.

Beyond this, I have a first-rateretirement policy: short of effective compulsions to the contrary,I propose to ride my bicycle tillI fall off! ~

Accept the Challenge

IT IS MEN who have counted struggle as a blessing who got the

big rewards of life. As Emerson said, "God keeps an honest

account with men."

The hard surgical cases, where life hangs on a heart beat, do

not go to the dilettante surgeon. The tough engineering problem,

like building a bridge across a mighty river, does not go to the

engineer who has always looked for the easy jobs. And the same

for lawyers and top executives in business.

If at times you feel that you have not had the same chance

that others have, ask yourself what chance did Abraham Lincoln

have? Remember that "it is not so much the size of the dog in

the fight that counts, but the size of the fight in the dog."

SAMUEL B. PETTENGILL

CLARENCE B. CARSON

C!Euglaub

7. THE INDUSTRIAL SURGE

THERE was a great surge of productivity accompanied by increasing exchange activity in Englandin the latter part of the eighteenth century and extending intoand through most of the nineteenth. This productivity occurredin almost every field and was byno means confined to what is usually thought of as industrial.There were, for example, considerable increases in production ofbasic agricultural commodities.As one authority says, "Statisticsof the output of grain are few andunreliable. It is, however, beyonddoubt that annual production rose

Dr. Carson, Professor of History at Grove CityCollege, Pennsylvania, will be remembered forhis earlier FREEMAN series, The FatefulTurn, The American Tradition, and TheFlight from Reality.

532

considerably in the second half ofthe century." Not only was moreland brought under cultivationbut also there were considerableincreases of production per acre,as much as one third in the yieldof wheat between 1750 and 1800.1

There appears to have been asimilar increase in the productionof cattle for market during roughly the same period. In 1750, alittle under 71,000 head were soldat the major market at Smithfield. In 1794, there were over109,000 offered for sale.2 It isgenerally held, too, that the average weight of cattle offered for

1 T. S. Ashton, An Economic Historyof England: The 18th Century (NewYork: Barnes and Noble, 1955), p. 51.

2 Ibid., p. 245.

1968 THE INDUSTRIAL SURGE 533

sale had greatly increased. Onewriter says that the averageweight of oxen offered at Smithfield had increased from 370pounds in 1710 to 800 pounds in1795.3

Sheep for sale at this marketdid not increase quite so dramatically: from approximately656,000 in 1750 to about 718,000in 1794.4 But sheep were gettingmuch heavier on the average thanformerly, also.

Manufacturing

The surge in manufacturingproduction was much more markedthan in farming. The most dramatic increase occurred in themaking of cotton goods. Ashtonsays, "The number of pieces ofbroadcloth milled in Yorkshirerose from an average of 34,400 in1731-40, to one of 229,400 in 17911800. Between the first and lastdecade of the century the annualoutput of printed cloths grewfrom 2.4 million to 25.9 millionyards. . . ."5 The woolens industry expanded much less rapidly. Avigorous pottery industry, however, was developed in the latterpart of the eighteenth century.

Mining and iron and steel man-

3 Paul Mantoux, The Industrial Revolution in the Eigh teenth Century (London: Jonathan Cape,1961,rev.ed.),p.161.

4 Ashton, Ope cit., p. 245.

5 Ibid., p. 124.

ufactures developed at a rapidpace. "The output of pig-iron inGreat Britain in 1788 was 68,000tons. In 1796 it was, for Englandand Wales alone, 125,000 tons, anda few thousand tons must be added for Scotland's contribution. In1806 the British total had swollento 258,000 tons."6 As for coal,"There are no valid statistics ofthe production of coal, but the annual figures of exports from thegreat northern field may serve asa guide. For the decade 1701-10they give an average of 183,000Newcastle Chaldrons; for 17911800 the figure is 758,000." Indications are that production increaseelsewhere was even greater.7

Shipping and Trade

Perhaps the best indicators ofthe great surge of production arethe shipping and trade figures.The most reliable statistics existfor these undertakings also. Thetonnage of boats leaving Englishports in 1700 was 317,000 registered tons; by 1751 it was 661,000tons; it had reached 1,924,000 in1800.8 In pounds sterling the value of English exports in 1700 wasabout 71;2 millions; in 1750, 15millions; in 1800, 42 millions. Im-

6 J. Steven Watson, The Reign ofGeorge III (London: Oxford UniversityPress, 1960), p. 505.

7 Ashton, Ope cit., p. 124.

8 Mantoux, Ope cit., p. 100.


ports had risen comparably, asmight be expected.9 The export ofcotton goods rose precipitatelywithin a few years. The total value of such goods was only about360,000 pounds sterling in 1780.By 1800 it was more than five anda half millions. The import of cotton as raw material for manufacturing shows a similar increase:in 1781 it was 5,300,000 pounds ofcotton and by 1800 it had risen to56 million pounds.10

The Spirit of 'nnovation

The great surge of productionand increase of trade was preceded as well as accompanied bymechanical inventions, new practices, new processes, reorganizations of production, and improvedtransportation facilities. The spirit of innovation, change, and invention seemed to be abroad in theland in the latter part of the eighteenth century. Samuel Johnsonobserved cryptically that "the ageis running mad after innovation,"that "all the business of the worldis to be done in a new way; menare to be hanged in a new way;Tyburn itself is not safe from thefury of innovation."ll

The inventions which were most

9 Ibid., p. 102.10 Ibid., p. 252.11 Quoted in T. S. Ashton, The Indus

trialRevolution (New York: Oxford University Press, 1964), p. 10.

impressive in that day and are thebest known to this day were themachines which were applied totextile manufacturing. Earliestinventive attention was given tospeeding up spinning, for in theearly eighteenth century it tookabout ten spinners to provide theyarn for one weaver. This disparity was increased by JohnKay's flying shuttle, patented in1733, which enabled the weaver towork without the former assis...tance he needed. Lewis Paul developed a device for roller spinning in 1738 which was supposedto aid in the task of spinning; butin the form that he contrived it,it was never much used. Muchmore effective was the spinningjenny devised by J ames Hargreaves in the 1760's. It simplylinked several spinning wheels together so that a spinner could spinseveral threads rather than onewith the same motion.

Another step in acceleratingspinning was Richard Arkwright'swater frame, a machine that wasoperated by water power, patentedin 1768. In the 1780's, SamuelCrompton developed the mule, acontrivance that could spin a greatnumber of threads at once thatwould be of very high quality. Thespeeding up of weaving now became most important. The Reverend Edmund Cartwright designed an ·effective power loom in


1784.12 Most of these inventionswere rather quickly adopted andthus began the transformation oftextile manufacturing.

Improved Farm Practices

These were probably among themost famous inventions of theeighteenth century, but they wereby no means the only importantinnovations for increased productivity. Almost every area of productivity was enhanced by changes in processes or practices. Certainly, a great deal of ingenuitywent into improving farmingpractices and propagating them.Jethro Tull was one of the earlyleaders in farm improvements. Hepublished a book in 1731 in whichhe advocated intensive farming. "He recommended deep hoeing and ploughing, and a systemof continuous rotation of crops,thanks to which the land couldbear, without exhaustion, a succession of varied harvests, and thewasteful practice of fallows couldbe suppressed or reduced. He explained the importance of winterfood for the cattle and showed towhat account could be turned nutritious roots such as turnips andbeets."13

At about the same time, Lord

12 Michael W. Flinn, An Economic andSocial History of Britain (London: Macmillan, 1961), pp. 163-65.

13 Mantoux, op. cit., p. 158.

Townshend showed on his estateshow wasteland could be reclaimedby drainage, manure, and theplanting of grasses. Robert Bakewell was the most notable innovator in developing new breeds ofcattle and sheep. "He began hiswork in 1745, scouring the neighborhood for the breeding animalswhich came nearest to his ideals,and later breeding in and in fromhis own stock only, selecting thebest and selling the less good ramsand bulls to other breeders." Sosuccessful was he that "visitorscame from far and wide, Russianprinces and German grand dukesincluded, to see his farm andstock, and pick up all the information with regard to his methodsthat he could be induced to impart."14 Horses began increasingly to be substituted for oxen topull plows in the course of theeighteenth century. Along withthis change, there was increasinguse of iron in the making ofplows.

New or improved techniquesand inventions appeared in manyfields. Thomas Newcomen inventeda steam pump in 1709, and JamesWatt constructed an effectivesteam engine in the 1760's. Thislatter was used mainly for pumping water out of mines at first, but

14 Gilbert Slater, The Growth of Modern England (London: Constable, 1939,2nd ed.), pp. 190-10.


by the nineteenth century its useto turn machinery was being exploited. The overshot water wheelreplaced the undershot wheel. Cokewas effectively used to make ironby Abraham Darby. Henry Cortpatented proc.esses for rolling andpuddling iron in the 1780's. Intextiles the use of chlorine andother chemicals greatly acceleratedthe bleaching process.

Better Transportation

One of the developments whichgreatly facilitated the productivesurge was that of improved transportation facilities. In the latterpart of the eighteenth centurythere was much building of improved roads in England, and theera of canal building got underway. These were aided both bynew processes and engineeringfeats which were the marvel ofthe day. At the beginning of theeighteenth century roads in England were probably in no bettershape than they had been five hundred years before. "Apart fromLondon, there was not a singletown which had permanent business connections with the rest ofthe country." About the middle ofthe century, turnpikes began tobe authorized on a large scale."Between 1760 and 1774 Parliament passed no fewer than fourhundred and fifty-two Acts in connection with the construction and

upkeep of roads." The most effective turnpike builder in thecentury vvas John Metcalf, a blindman. He developed a process formaking a firm surface over bogs,and repaired and built many goodroads.15 These pikes did link England fairly well by the beginningof the nineteenth century; but itwas by the efforts of Telford andMacadam after 1810 that superiorroads were built.

The first of the great canalswas the Worsley canal built forthe Duke of Bridgewater byJ ames Brindley. He undertook thebuilding of it in 1759 and completed it in 1761. A few yearslater the great Mersey canal wasbegun. Work on many others soonfollowed suit: the Grand Trunk,the Bolton, the Bury, and theKendal.16 The peak of canal building was reached between about1795 and 1815. "Between 1793 and1805 the Grand Junction canallinked London with vVarwickshire,with a side line to Oxford. TheLeeds and Liverpool canal was being pushed up 600 feet to cross thePennines by locks and so, via theold Aire and Calder navigation,linked up with the Humber. Birmingham was connected with theSevern."17 So it was that England'sgreat cities became canal ports.

15 Mantoux, Ope cit., pp. 108-17.16 Ibid., pp. 124-25.17 Watson, Ope cit., pp. 518-19.


EntrepreneurshipIncreased Production

Inventions, processes, methods,and technical know-how mightwell have gone for naught hadit not been for the developmentof entrepreneurship during. thisage. Entrepreneurs emerged tolink together capital, labor, andraw materials and organize themfor effective productive purposes.A good' example of the new typeof farmer entrepreneur was Cokeof Holkham. He introduced newimplements and 'methods, encouraged his tenants by granting longleases, and by careful husbandryincreased the value of his estatetenfold during his lifetime.is

Such attention to estates becamequite the fashion in the eighteenthcentury. "George III had a modelfarm and welcomed the title of'Farmer George.' Of Sir RobertWalpole, England's first 'primeminister,' it was said that 'heopened the letters of his farmsteward' before state correspondence.... When Fox visited theLouvre, his mind was filled withthe thought 'whether the weatherwas favourable to his turnips.'''19

But entrepreneurship reached itsepitome with the manufacturers.These were the men who not only

18 Mantoux, op. cit., pp. 160-61-19 E. Lipson, The Growth of English

Society (London: A. and C. Black, 1959,4th ed.), p. 140.

brought together capital, labor,and materials but also made thegreat innovation which we knowas the factory system. The powerneeded to turn the ever largermachines could not be convenientlyprovided in the' homes; hence,workers, machines, power, andmaterials were concentrated infactories. (Of course, on a smallscale such concentrations had longexisted in such activities as milling.) Among the most famous ofsuch men - themselves sometimesinventors or introducers of newprocesses - were Josiah Wedgewood, Mathew Boulton, RichardArkwright, Jedediah Strutt, Samuel Oldknow, Robert Dale Owen,Thomas Walker, and RobertPee1.20 These men and others likethem gave great impetus to theindustrial surge.

No Real Revolution

The changes and developmentsdiscussed above are ordinarilydescribed as the Industrial Revolution. They have been generallyso-called since a book by ArnoldToynbee was published under thattitle in 1884. H. L. Beales notessome rather strong objections tothe phrase, "The Industrial Revolution." He says, "The changes

20 Witt Bowden, Industrial Society inEngland towards the End. of the Eighteenth Century (New York: Barnes andNoble, 1965, 2nd ed.), pp. 137-38.


which are described as revolutionary rose spontaneously fromordinary economic practice, andthey were constructive in thatthey gave an increasing power ofsatisfying wants. It is impossible,too, to find a beginning or anending of these developments. Theinventions on which rested theenlargement of industrial enterprise established themselves onlyslowly.... The extended probingsof scholars . . . seem to showthat there never was an industrial revolution at a11."21 Nonetheless, he and most others havecontinued to use the phrase.

Though the present writer hasno illusions that his preferenceswill have any effect, he prefers amuch less loaded phrase, such asthe "Industrial Surge" to describethe early developments, and refersto the old usage only for identifying what is being discussed inconventional terms. That therewas a considerable surge of productivity there can be no doubt.That this surge got under wayin England before it did in otherlands is a matter of universalagreement. That the innovationsand organization which promotedit spread from there and continueto enliven production whereverthey are employed should be clearalso.

21 H. L. Beales, The Industrial Revolution (London: Frank Cass, 1958), p. 28.

Lessons for Today

Much attention has been focused upon the early years of thisindustrial surge in England. Inview of the great concern at thepresent time with economicgrowth it would be understandable if a great deal more interestwere shown than· is. Certainly,anyone wishing to industrializemight expect to find instructionin what happened during theseyears. Economic historians, andothers, have given considerableattention to describing and attempting to account for the surge.

The usual approach is to account for industrialization by acomplex of conditions which setthe stage for it. Before going into these, however, it will be wellto discount one explanation thatis sometimes given. Namely, somehave attributed the rise of productivity in England to the impetus provided by the wars England participated in, more specifically, to those of the FrenchRevolution and the NapoleonicEra. If that were the case, itwould still not be clear why England preceded other countries,because they were engaged in warfare also and some of them hadsimilar pressing needs.

But the evidence does not evenpoint in this direction. The mostdramatic spurt in productive activity occurred during the 1780'S,


after peace had been made withthe United States and other countries. Ashton says, "After 1782almost every statistical series ofproduction shows a sharp upwardturn. More than half the growthin the shipments of coal and themining of copper, more thanthree-quarters of the increase ofbroadcloths, four-fifths of that ofprinted cloth, and nine-tenths ofthe exports of cotton goods wereconcentrated in the last eighteenyears of the century."22 It is truethat the impetus continued afterwar broke out in 1793, but it wasalready well underway. Neitherevidence nor logic supports thenotion that the development canbe attributed to war.

Some writers propose, too, thatincreased demand accounts forgreater output. When rightly understood, this claim is both trueand irrelevant. It is of the sameorder of explanation as that whichwould explain the sleep-inducingquality of the sleeping pill by itssoporific character. Or, the demand theory amounts to claimingthat increased productivity iscaused by increased productivity.When we keep clearly before usthe realization that money is amedium of exchange, that effectivedemand arises from goods andservices (not from money), it is

22 Ashton. An Economic History ofEngland, p. 125.

not difficult to understand thatthe demand theory really explainsnothing.

Many Contributing Factors

Such fallacies aside, however,the explanation in terms of several conditions has merit. Thefollowing is an example of suchan explanation, one that is alongthe lines of the background whichhas already been dealt with inthis work in earlier chapters:

Many circumstances thus combinedto create a condition favorable formechanical improvements. The incoming of independent-minded and skilledartisans from the Continent; theescape, especially in the north, fromthe monopolistic restrictions of corporations and gilds; the social ferments tending to dissolve the traditions opposed to change; the rise ofrationalism and experimental and applied sciences.... 23

He would add to these also theteaching of evangelical Protestants and the opportunity forprofitable application of machinery.

Ashton adds to the above suchfactors as lower interest rates,the role of entrepreneurs, thepart played by dissenters, thestimulation and impetus given byvarious societies; and so on.24 And

23 Bowden, op. cit., p. 65.24 Ashton, The Industrial Revolution,

pp.10-17.


the list of the particular conditions which set the stage for industrialization in England couldprobably be extended.

The present writer shares withthese and other historians theconviction that the industrialsurge arose out of the particularconditions that existed in Englandplus the efforts of men. Yet hefeels that an enumeration of circumstances which could be extended almost indefinitely does notsatisfy. It does not satisfy becauseit does not pin down what impelled the development, because itdoes not distinguish between whatwas essential and what merelyadventitious, and because it doesnot provide that instruction whichwe would have from history. Inthe final analysis, it does not satisfy because there is a way ofdealing with all the essential conditions by reducing them undera single heading.

"Economy" the Key

Economy is the key to the industrial surge. Men were impelledto the adoption of new proceduresand the making of inventions bythe desire for economy, and it waseconomy in operation that enabledthem to increase production sorapidly. Evidence for this' and examples to show it in operationneed to be examined, but beforedoing this a profound theoretical

objection to it needs to be dealtwith.

Economy would not appear tobe an appropriate heading for anhistorical explanation. Economycan be considered a constant, whilehistory deals with change. In itsbasic meaning, men are bent bynature toward economy. The rootmeaning of economy is the thriftyuse of resources. More broadly,to be economical is to employ aslittle as possible of the resourcesof production -land, labor, andcapital- to achieve the largestamount of goods and services. Itwould seem likely that men haveever been inclined to do this.

No doubt, each individual isinclined to behave economicallyin the employment of his resources. He is inclined to putforth as little effort as possible,to use his capital sparingly, andto employ as small amount of materials as possible to effect thegreater increase in· his income.As such, this penchant might beexpected to be a constant throughout history. But what is economical for an individual is not, undercertain circumstances, economicalfor people generally. That is, it ispossible for an individual to bequite thrifty with his resourcesand increase his income withoutincreasing the general store ofgoods. Stealing is the obvious example. But all use of force to


effect an increase of somebodyor other's goods is of a similarcharacter. The most common suchuse of force is government intervention in the economy.

Special Privilege

When government interventionis general in a land, it is frequently economical for individualswho benefit from it not to increasethe general supply of goods andservices. An individual who hasa monopoly can actually increasehis income by decreasing the goodsoffered at a particular time. Theprice of services can be enhancedby keeping newcomers from offering theirs. The mercantilismwhich was rife in Europe in thesixteenth through the eighteenthcenturies affords numerous examples of the economy for individuals of possessing special privileges. So does the feudalismwhich preceded it. Whole ageshave been dominated by the effortsof men to get and keep specialprivileges from government forthemselves. It is this that makesthe practice of Economy the subj ect matter of history and appropriate for historical explanation.

If men cannot use force to increase their incomes, they mustincrease the supply of goods andservices in order to do so. Bya kind of common consent thisis what men have agreed to call

economy. Since the latter part ofthe eighteenth century there haveexisted elaborate explanations ofhow in the absence of force whenan individual increases his ownincome he is at the same timebehaving in a way economicallybeneficial to society.

Away from Privilege

The productive surge came inEngland when a sufficient portionof the people turned their attention away from getting specialprivileges to finding ways to saveresources and increase production.Even the spurt of productive activity which came in the 1780'sillustrates the point. After 1782,British merchants no longer hadspecial privileges on continentalAmerica. There was not only aspurt in shipbuilding in England,since they could no longer usethe American colonies as a source,but also reinvestment of fundsin such undertakings as domesticmanufacturing which had formerly been employed in the maintenance of markets for whichBritish merchants had exclusiveprivileges.

But Englishmen had been turning toward economy and awayfrom special privileges for a considerable period before the 1780's.For more than 150 years the assault on privilege had been goingon, in mounting fervor from the


1640's, and it was to continue oninto the nineteenth century. Indeed, the battle between Economyand Privilege was a long and bitter one. Every step of the way,the attempt to practice economywas contested. Kings tried tocling to their monopoly-grantingpowers. Then Parliament took togranting monopolies when thepower had been wrested from theking. Rural enclosures by whichthe land could be economically employed were only accomplished bythe grudging consent of Parliament and over the emotional protests of poets. New processes encountered tremendous resistancefrom those accustomed to the old.Workers sometimes rioted againstthe introduction of new machines.

Yet, skirmish by skirmish,Economy won the day in England.I t won as special privileges wereremoved and restrictions whichobstructed economy lost the forceof law. It won as men witnessedthe superiority of new techniquesand machines. It won as enlightenment as to its public benefitsgained sway over superstitions ofthe past.

There should be no doubt thatthe inventions, processes, methods, and organizations which ledto the industrial surge were economical. The horse saved labor,for the same workman could plowa great deal more land with the

fast-stepping horse than with theplodding ox. New breeds of cattleturned feed to greater amounts offlesh and less to bone. The overshot water wheel could provide thesame amount of power with muchless water used. One man couldproduce six times as much threadby turning the spinning jenny ashe could formerly with the spinning wheel. The canals saved animmense amount of time in shipments of heavy goods. The steampump made it possible to utilizemines much more fully and completely. The list could be extendedbut the point has surely beenmade.

Knowledge Is Power

That Englishmen were increasingly aware of and concernedwith economy can be shown inmany ways. Thrift was much advanced by banks and savings associations. Inventions were promoted by various societies. DanielDefoe explored the rudiments ofeconomy in his fictional RobinsonC1"u8oe. Jethro TuB had focusedattention on rural economy by hiswritings. Adam Smith made adefinitive case for economy in ThelVealth of Nations.

And, the conditions which setthe stage for the industrial surg€were conditions which permittedeconomy. The limitations of government which preceded and ac-


companied it freed the energiesof the English people to behaveeconomically. The security of liberty and property enabled men tobehave economically as individualsand made it necessary for the'mto behave economically in a wayto benefit society if they wouldprosper. The moral base whichdirected the energies of men toconstructive purposes inculcateda sense of stewardship whichwould have men be thrifty andindustrious. The very thrust ofmen to employ reason in moreand more areas was a thrust toeconomy of thought.

In short, as rnenestablishedconditions which made individualeconomy socially beneficial, they

directed their energies towardachieving Economy. This was aproduct both of the struggle ofcertain elements for political power, which resulted in the limitation of power, and increasingknowledge born of new ways oflearning.

The industrial surge continuedinto the nineteenth century. Thegreat productivity provided thernaterial base for the greatnessand leadership of England. It isnow in order to make an accountof England at the height of herleadership role in Western Civilization, in the course of which itwill also be possible to indicatethe more specific benefits to Englishmen of productivity. ~

The next article of this series will describe the Pax Britannica.

Mass Production

THE OUTSTANDING FACT about the Industrial Revolution is thatit opened an age of mass production for the needs of the masses.The wage earners are no longer people toiling merely for otherpeople's well-being. They themselves are the main consumers ofthe products the factories turn out. Big business depends uponmass consumption. There is, in present-day America, not a singlebranch of big business that would not cater to the needs of themasses. The very principle of capitalist entrepreneurship is toprovide for the common man. In his capacity as consumer thecommon man is the sovereign whose buying or abstention frombuying decides the fate of entrepreneurial activities. There isin the market economy no other means of acquiring and preserving wealth than by supplying the masses in the best andcheapest way with all the goods they ask for.

LUDWIG VON l\IISES, Human Action

CHEATINGWITHOUT KNOWING IT

PAUL L. POIROT

THE JUDGE was about to pronounce sentence upon the convicted confidence man. "Youshould be ashamed to cheat thosewho trust you," he admonished.

"But, Judge," came the response, "who else can I cheat?"

Most of us presumably knowthe rewards of serving rather thancheating those \vho trust us. Hown1any times this very day haveyou served others to obtain whatyou wanted from them? Did younot buy or sell some commodityor service - thus serving a trustedand trusting friend? Did it occurto you to cheat, even if dealingwith a stranger who might notknow whether to trust you?

Presumably, we know it iswrong to cheat and know why it is·wrong. The something he gainsthrough fraud is subtracted fromthe character of the cheater; itdegrades him. To cheat another isto cheat oneself in the process.

544

To cheat knowingly is seriousenough; but perhaps worse is tocheat without knowing it, for thisleaves less chance of catching theculprit and correcting the problem.

Did I cheat today? Perhapswithout knowing it? Let's approach this difficult question fromanother direction: Was I cheatedtoday? Reflecting on my variouspurchases at the barber shop, restaurant, grocery store, servicestation, it seems unlikely. Thesefriends surely would not cheatme, nor would I knowingly cheatthem. As far as I know, these suppliers held clear title to theirwares, delivering them to me asrepresented and unencumbered byother claims. Likewise, the moneyor whatever else I willingly gavein exchange was mine and now istheirs - entirely acceptable fortheir own use or as a medium forfurther exchange. We traded be-

1968 CHEATING WITHOUT KNOWING IT 545

cause each of us wanted to, eachgaining something more valuableto him at the time than the property he relinquished. And we willexpress our mutual satisfactionthrough similar transactions tomorrow or next week or nextmonth or whenever the needa r is e s . But not if 0 n e 0 f usthought the other had cheated. Inthat case, the one injured mightseek restitution or take his business elsewhere - probably both.To continue to trade with one whocheats would be to work for nothing; and most of us are allergicto work on those terms!

Some persons, of course, areallergic to work on any terms;and this may tempt such a personto try to cheat. An employee, forinstance, might "soldier" on thejob, producing far less than hecould or should in return for hiswage. A butcher with a heavythumb, a short-change artist atthe cash register, trash in thebottom of the basket, rocks in thecoal, checks that bounce, buildinglots under water or inaccessibleto water, counterfeit currencyplenty of ways to cheat if onewants to try. But it's no way tobuild a steady business with satisfied customers. There's no greatfuture in it. And perhaps this explains why most of us rarely encounter such fraudulent practicesin our daily affairs.

Possibly we may conclude thatnone of us knowingly cheated today. And how very nice for all ofus! But let's have one final checkbefore closing the books on thisknotty problem.

The New School Building

What of the gathering this evening in the home of a neighborto discuss plans for the new$6,000,000 high school? Anycheating going on there? Theseare good neighbors, hard-working,God-fearing, helpful and friendlypeople, none of whom would thinkof cheating. They will carefullydiscuss the importance of education for all children in the growing community. Some will recallthe amounts by which schooltaxes have risen over the past tenyears; they will understand thatthe new school means a 10 percent tax increase next year andprobably for many years to come.They will conscientiously reviewthe facts and circumstances, eachtrying to decide how to vote inthe coming school election.

But will it occur to anyone ofthem that such a collective decision-making process, the resultsof which are to be binding uponevery taxpayer in the district,might be something like cheating?What of the young Jones couplewho had counted on that extra$50 of school-taxes to help defray


the costs of an operation for thebaby? Or the elderly Smith couple,barely able now to maintain theirmodest home and cover the othernecessities of life? Or the hundreds of other needs other families in the school district face thatto them might seem more urgentat the moment than a $6,000,000new high school and the attendantcosts for operation and perpetualcare?

True, everyone will have hadan opportunity to be heard, achance to vote. But in the finalanalysis, some will be compelledto buy ,educational facilities whichthey neither want nor can afford.And the compulsion will have beenapplied by their friendly, kindly,well-meaning neighbors who consider education to be one of theproper functions of the policepower.1

Public Housing

Perhaps it calls for too harsh ajudgment upon one's most intimate friends to conclude that theyare cheating when they compelothers to help build the schoolsthat some believe to be needed.

1 The value of education or need for itare not at issue here - only the methodsused. The case for voluntary ratherthan compulsory schooling is discussedat length in the book, Anything That'sPeaceful by Leonard E. Read. (Irvington-on-Hudson, N. Y.: The Foundationfor Economic Education, 1964), pp.180-221.

That such action involves cheatingsurely must be a minority pointof view in most communities, ifit is believed at all. Nevertheless,it may serve to illustrate the possibility of our cheating withoutrealizing it. If we were to usesuch tactics to compel the Mormons of our community to helpbuild Sunday school facilities inthe local Presbyterian church,many persons would think wewere cheating.

Good Presbyterians, of course,would never do such a thing!Those concerned would pledgetheir own resources to build andoperate their own church school.But what of the proposal considered this evening by the rulingelders: Should the Presbyterianchurch join other churches of thecommunity in support of the Interfaith Housing Corporation?Any cheating here? Certainly noton the surface, at least. Thechurch pays $25.00 a year to become a voting member of the corporation - no strings attached orother obligations. The purpose ofthe corporation is to alleviate theshortage of low-rent housing, especially for families of minoritygroups some of whom may be displaced by a proposed new highway. Surely a project worthy ofthe cooperation of the various religious groups in the community!But what is a thoughtful Chris-

1968 CHEATING WITHOUT KNOWING IT 547

tian to do when he later discoversthat the Interfaith Housing Corporation is simply a front to request Federal funds for housingto be built, not voluntarily by concerned individuals and religiousgroups of the community, but bythe coercive procedures of the taxcollector and the police power?Isn't it something like cheatingto compel someone else to carryout one's own charitable impulse?

Organized Violence

To cross a union picket line,either to fill a vacated job or tobuy goods or services from thebesieged supplier - or to activelyquestion the propriety of a student sit-in or campus demonstration - is thought by many to bea form of cheating. It is to be a"scab," "strike-breaker," "UncleTom" - at the very least, a"square." But how can it logicallybe anything but cheating whenmen organize to prevent othersfrom performing essential services which they themselves refuse to perform? It is, or used tobe, considered cheating to copyanother student's answer on aquiz and claim credit for it asone's own. But isn't it also a formof cheating on the part of any organized group of students whenthey attempt by force or threatof force to foreclose an institutionof learning or some part of it

from use by other students andby faculty members wishing to engage in the peaceful pursuit ofknowledge? Are we not cheatingothers if we deny them, in wholeor in part, the use of their facultiesor their property for any peacefulpurpose they might choose?

The ways in which man maycheat are perhaps infinite. Even atiny child, when he puts his mindto it, will baffle many an adult.And among adults are experts atthe art of deception. But it is notthe diverse and deliberate effortsof unorganized individuals to obtain something for nothing thatmost seriously concern us. Thisis not our real problem. By andlarge, we may and we must trustone another to behave as best eachknows how.

The form of cheating mostharmful to us as individuals andas a society occurs when we hidein a majority and quite thoughtlessly act to achieve our ends atthe expense of somebody else.2 Weheedlessly authorize the government to do for us what we couldnever, in serious contemplation,bring ourselves to do on our own.Thus does one become the victimof his own' irresponsibility, cheating without knowing it, and cheating himself most of all. ~

2 See "The American System and Majority Rule" by Edmund A. Opitz, THEFREEMAN, November, 1962, pp. 28-39.

FREEDOMCUTSTWOWAYS

ROBERT C. TYSON

ABRAHAM: LINCOLN, speaking inBaltimore in 1864, beautifullybrought out the double-edged nature of freedom. He did thisthrough a parable, after first explaining that the word freedomfor some may mean for each manto do as he pleases solely withhimself and the product of hislabor, while for others the sameword may mean for some men todo as they please with other menand the product of other men'slabor.

The parable had to do with ashepherd, a sheep, and a wolf. Thewolf feels free to attack the sheep.But the shepherd drives the wolf

Mr. Tyson is Chairman of the Finance Committee, United States Steel Corporation. Thisarticle is from his commencement remarks tothe graduating class of the Voorhees TechnicalInstitute, June 3, 1968.

from the sheep's throat. The sheepthanks the shepherd as his liberator, while the wolf denounces himfor the very same act. Plainly,Lincoln noted, the sheep and the,volf are not agreed on a definition of freedolu.

To me the parable illustratesthe conflicting meanings derivedfrom freedom. 'roday we hear offreedom as never before, but justwhat does it lnean? We hear ofFreedom Workers, FreedomMarchers, Freedom Fighters. Wehear of Freedom Now, Freedomfor Students, Freedom from Want,Freedom from Authority, and, forall I know, maybe even Freedomfrom Freedom.

Yet in all this clamor over freedom, I find little or no referenceto what I think is the necessary

1968 FREEDOM CUTS TWO WAYS 549

concomitant of freedom, the verything that gives man his essentialdignity, the factor that makes asociety livable, creative, and trulyfree: namely, responsibility.

Without responsibility - bywhich I mean primarily self-responsibility - liberty becomes license, morals become elastic, andsociety becomes predatory, its people tending to become like the wolfin Lincoln's parable, lunging atthe other fellow's throat.

Neither License Nor Anarchy

No, as I understand it, freedomis not license; it is not anarchy.Under freedom, no man is free todo entirely as he likes. After all,freedom involves morality; it involves discipline, an inner discipline, a conscience within the individual ever reminding him thathis freedom stops where the otherfellow's freedom begins, that noman is really free if he rendersanother man less free. And itmakes no difference who lessensfreedom, whether it stems fromprivate or public sources. The factis that most usurpation of freedom has stemmed from the latter.As liberal reformer 'Voodrow Wilson noted: "The history of libertyis a history of the limitations ofgovernmental power, not the increase of it."

Indeed, this was the design forthe American dream, for our Con-

stitutional society. The design wascarefully laid down by the Founding Fathers. They realized thatfreedom was not a grant of government. Such a grant would thenbe but a slender reed, for whatgovernment could grant, government could clearly also take away.In fact, freedom stems from amuch Higher Authority than government. The Declaration of Independence holds "that all men are

. . . endowed by their Creatorwith certain unalienable Rights,that among these are Life, Liberty, and the pursuit of Happiness."

So through the Constitution andthe Bill of Rights, the authors ofour Federal Republic insisted forthe sake of liberty that men inpublic office could not be blindlytrusted, that they had to be madeaccountable and responsible, thatthe American government was tobe strictly limited in its powers,subject to checks and balances,and expressly prohibited from infringing on the endowed freedomof the individual. Ours was to be agovernment of law, not of men.

Political foundations offreedom in America

Thus, the theory of governmentput forth by the designers ofthe Constitution was somethingunique in the history of government. They laid down the founda-


tions of a society that was essentially dependent on individual conscience, on self-government, oneach individual's sense of responsibility, love of justice, and respect for the framework of dueprocess of law - that is, respectfor the other fellow's freedom.Hence, our society was built onnot one but many centers of governing authority, beginning withthe governing authority withinthe person himself and extendingto families and churches, communities and states, business enterprises, and other voluntary associations.

So ours is a society - thanksto self-government, to self-realization - that strives to encourageevery individual to achieve whatever rank or distinction of whichhe is capable. It is a society withConstitutionally guaranteed freedoms of press, speech, assembly,and petition. It is a society ofpolitical freedom of choice for theindividual citizen. It is a societywhose economic system is builtupon individual enterprise andownership within the frameworkof a free market. As you know,this economic system has made usthe most productive people in allhistory with the world's highestliving standards. The system furthermore provides far and awayour greatest weapon in the Waron Poverty.

Signs of SicknessYet, because the responsibility

side of freedom has been somehovv lost sight of, our society andeconomy are not well; indeed,they are sick, and the evidence ofthis sickness can be readily foundin the daily headlines, notwithstanding all the so-called references to freedom. Rioters in thestreets· are beleaguering our major cities. Crime rates keep onhitting new records, with moreyouthful offenders than ever before. Teenage shoplifting is amounting problem for our stores.Drug addiction, especially byyoung people, is an increasinglycorruptive and corrosive socialproblem. Family ties are vveakening. Promiscuity is rising.

In higher education we havealso seen a marked deteriorationin moral standards. Cribbing during exams, for example, has always been a problem, but todaymore and more students seem toattach no dishonor to it whatsoever. Students talk of StudentPower but precious little of Student Responsibility. Students haveeven taken over academic buildings by force and have held captive campus recruiters, deans, andother college administrators ironically and clearly diminishingthe freedom of the captives,all toooften in the name of civil libertiesand civil disobedience. Even the

1968 FREEDOM CUTS TWO WAYS 551

code of civil disobedience calls foraccepting responsibility in termsof the consequences for infractionsof the law. Yet when apprehendedby the authorities, what is the first"demand" of the disobeying students? It's amnesty. But such amnesty hardly squares with responsibility.

One more point on campus rioting: In practically all the disturbances at our educational institutions, a small but noisy nihilisticminority has commandeered facilities and effectively blocked thefreedom of the student majorityto attend classes. The adverselyaffected majority all too often hasbeen silent and has looked theother way. This response of indifference also strikes me as irresponsible. I do not suggest thatthe majority do battle with thedisturbers, but rather that theyrally to the cause of peace and rational discussion of issues, thatthey support the university administrators who are trying to maintain order and so to protect theirfreedom.

Inflation Attends

the Welfare State

Economically, we also see signsof fever - and lack of responsibility. Maybe you heard of the response of the man getting his annual physical checkup to the doctorwho told him that he was as sound

as a dollar; the man shot back:"Doctor, am I that bad?"

Well, is the economy really sick?The apswer depends on how youmeasure economic symptoms. Certainly, signs of inflationary stressand strain abound. The Federalbudget is in perennial and everrising deficit. The U. S. balance ofpayments is also in perennial andever rising deficit. Our stock ofgold has been dissipated to a dangerously low level. All manner ofcontrols have been applied toAmerican lending and investingoverseas, although history is replete with their failure in previousapplications. And, although the socalled "voluntary" wage-priceguideposts proved to be a demonstrable failure, talk persists ofnew controls over wages andprices, while little is done aboutthe underlying fiscal and legislative forces of inflation. That inflation is compounded by wage andsalary demands by leaders of organized employees both privateand public, both professional andnonprofessional, far beyond anysemblance of producti vity ormerit. It is compounded by demands for all manner of handoutsfrom the government - local, state,and especially Federal. In thename of welfare, these demandsare for more and more - not tomorrow but today. These demandsstrain the body politic - and eco-


nomic - and erode the foundationsof our liberty.

In all these examples of socialand economic sickness we seeabuse of freedom; 'we see abandonment of discipline and responsibility - of self-discipline andself-responsibility - by those inprivate and public life. In otherwords, we see the elnergence ofthe kind of freedom exemplified bythe wolf in Lincoln's parable. Thewolfish freedom may not alwaysbe overt and violent. It can becovert and subtle. It can be seenin disrespect for due process oflaw. It can be seen in a growingmoral laxness, in indifference to

corruption, in an ethical softnessthat is steadily eating away at ourvalues and virtues, in the creditthat every man is a law unto himself.

I guess what I am trying to sayboils down to this: The other sideof the coin of individual freedomis individual responsibility. Youcan't have the one without theother. Before you and I can govern others, each and everyoneof us must first learn to governhimself. Before any of us canblithely dismiss our external restraints, each of us must assumea solemn moral obligation to restrain himself. ~

Character Must Be Earned

WHEN a man is on his own, an individual responsible for him

self, he must earn a character-a personal character that is

perhaps his first necessity. Others may then learn and imitate

his qualities and capabilities. In a planned society he has no

need of a character, for no such thing is wanted. No national

or universal plan can afford to take the least notice of his

personal character.

As an individual responsible for himself, a man must also

acquire credit. Others must be convinced that he is credit-worthy;

that he can be trusted; that what he undertakes he will perform

to the limits of his ability. But when he is planned, nothing so

troublesome is in the least n"ecessary.

SIR ERNEST BENN, Rights for Robots

Separation of Powers

and tlie Labor Act

Ill. JUDICIAL COURTSversus ADMINISTRATIVE COURTS

SYLVESTER PETRO

THE institutional setting of eachmember of the National Labor Relations Board is a five-year appointment to what is known as aquasi-judicial tribunal, located bylaw, fact, and tradition in the executive branch of government. Appointment is by the President,with the advice and consent of theSenate. The duties are essentiallyjudicial in character. One hearsvarying opinions, concerningwhether or not the Board members should conceive of themselvesas essentially policy-making participants in any current Administration, on the one hand, or judgeson the other. The "Eisenhower

Dr. Petro is Professor of Law at New YorkUniversity School of Law. He has writtenseveral books, including The Labor Policy ofthe Free Society (1957) and Power Unlimited: The Corruption of Union Leadership( 1959) , and is a noted lecturer and contributor to magazines.

Board" avowed and to some extent adopted a judicial stance; the"Roosevelt-Truman-KennedyJohnson" Boards, while still notentirely disavowing a judicialrole, have on the whole adopted anessentially policy-making stanceconformable to that of the Administration in power.

Federal judges also are appointed by the President, with the advice and consent of the Senate. Tothis extent, the institutional setting of Federal judges and NLRBmembers is the same. But to thisextent alone. No Federal judge hasever asserted that his job is toeffectuate the policies of a givenexecutive administration. On thecontrary, when Federal judges discuss the question, their uniformaffirmation is one of obedience tothe Constitution and to the Con-


gressional intent expressed invalid legislation.

The Supreme Court of theUnited States has been accusedof policy-making ambitions, bothcurrently and in the past. Whetheror not you or I credit such accusations is not material to the present inquiry. For no one can validly accuse the Supreme Court of apeculiar policy bias conceived andpursued essentially because thatpolicy is favored by the incumbentadministration.

Supreme Court justices havebeen a constant source of surpriseto the presidents who appointedthem. Justice Holmes's contemptfor antitrust law and policy - ashock to the President who appointed him - is only one exampleof a number of such cases. It isincorrect to believe that the present Supreme Court, "activist"though it may well be called, isacting the way it is because itbelieves that the present or anypast Administration wished it toact in that particular way.

A Case for Tenure

We come, then, to the first oftwo sharp distinctions betweenmembership in the NLRB andFederal judicial office: the fiveyear terms of the former and thelife tenure of the latter. The fiveyear term of office goes far towardinsuring allegiance in each NLRB

member to the Administrationwhich appointed him, to the onewith power to re-appoint him, orto both. There is no need to oversimplify the situation. Traditionmay call for a "pro-union" Administration to appoint one or two"pro-employer" types to theBoard. In such a case, the "proemployer" Board member wouldbe unfaithful to the Administration if he abandoned his formerstance as a means of insuring reappointment. In order to keep the"bipartisan" show going, he mustmaintain some semblance of thepenchant which got him his appointment in the first place.

If a Board member wishes reappointment at the end of his fiveyear term, he must satisfy theAdministration then in power thathe can be relied upon to act in accordance with that Administration's labor-policy views, subjectto the "bipartisan" tradition. Thereis nothing sinister and nothingsurprising about this. On the contrary, a given Administration hasno basis for its appointments tothe NLRB other than furtheranceof its policies and political ambitions or payment of its politicaldebts. Expecting an Administration which has gained power withthe assistance of trade unions toappoint a Board which would dealas rigorously with unions as thelaw requires - that is as realistic

1968 JUDICIAL COURTS VERSUS ADMINISTRATIVE COURTS 555

as it would be to run for office ona platform which the voters demonstrably oppose.

The Political Process

It is true that a Board memberis always in a position to "betray"the President who appointed him.The betrayal may even win himreappointment from a succeedingPresident who approves his newposition. But this is of little significance. The fact remains that amajority of the Board will alwaysbe governed sooner or later by thepolitical position of the Administration in power; five-year termsexpire; then the Administration'slabor policies reflect themselves inthe new appointments. PresidentKennedy had a majority within ayear or so of his accession.

It is possible that the Administration's labor policies will coincide precisely with those of theCongress which passed the legislation in question. Possible, butnot likely. As time passes, thelikelihood diminishes. An Actpassed by Congress in 1947 is notlikely to express exactly the policies that an Administration in1967, or 1987, finds suited to itspolitical and social objectives.

But even when Administrationobjectives coincide exactly withthe legislatively expressed policies,it will be the Administrationwhich controls the action of the

quasi-judicial executive agency,not the legislation. It is importantto bear this in mind because resuIts in particular cases will beaffected. Thus, though there maybe a general policy coincidence between the legislation and the Administration, the Administrationmay still feel that in a particularcase, for one reason or another, itis desirable that the impact of thelegislation be softened, hardened,or redirected in some other way.

Plotting a Course

Our present structure of "administrative law" leaves plenty ofroom for this sort of thing. A busyGeneral Counsel has to pick andchoose the cases which he willprosecute. He cannot prosecutethem all. Certainly he need notprosecute them all with equalvigor and persistence and acumen.After all, the main thing is tokeep the staff busy. If it is keptbusy in spite of the fact that oneparticular case is not prosecutedat all, or that it is put "on theback burner," what great harmhas been done?

Or suppose the case is prosecuted so that it gets before theBoard. Courts may not substitutetheir conclusions for those of theBoard where there is substantialevidence in the record consideredas a whole which supports theBoard's finding. Not uncommonly,


the record as a whole will sustaincontrary findings. In such a case,the reviewing court, if faithful tothis basic principle of "administrative law," may not vacate theBoard finding, no matter whichway it goes. Hence, it is perfectlypermissible for the Board to goeither way. And the judge whokeeps faith with the law - as mostFederal judges do - must enforcethe Board order in either case. Allthis being true, the Board itselfis in a position to do exactly whatthe General Counsel does in picking the cas·es to prosecute. It is ina position, in short, to make anexception whenever doing so is ofgreat importance to the Administration of which it considers itselfa part.

Proper Judicial Procedure

I am no muckraker and do notwish to exaggerate the incidenceof such conduct on the part ofeither the Board or its GeneralCounsel. In any event, it is enoughthat such possibilities exist, evenif they have never actually occurred. Indeed, the analysis willproceed more disinterestedly andmore expeditiously if it is realized that there is no necessity toestablish that this sort of thinghas or has not happened in anyparticular case.

For the major point in our inquiry is that nothing of the kind

can reasonably be expected wherejudicial power is confined to menwith life tenure who have beenappointed to the insulated judicialdepartment of government. If theSupreme Court is indeed an activist, consciously policy-makingagency, rather than a genuinecourt of law, it is so because thatis the way it conceives its function. If there is a flaw in theCourt's position, that flaw is nota product of any defect in theConstitution, in the principle ofthe separation of powers, or in theinstitution of life tenure for judicial officers. It is a flaw, instead,in the conception of judicial officeheld by individual members of theCourt. It is a product of their failure to understand the functionalinadequacy of the courtroom as apolitical, policy-making institution, and the functional superiority of the courtroom as an institution in which justice under lawmay be distributed among particular parties litigant on the basisof minute consideration of theparticular facts and of the legalarguments which the adversarysystem is bound in individualcases to bring to the attention ofthe judges.

The Court May Err

If misunderstanding and ineffective corrective measures are tobe avoided, it is necessary to un-


derstand, as well as we can, whatmotivates the Supreme Court totake an activist, policy-makingposition. Of course, it is alwayspossible to jump to the conclusionthat the Court does not care aboutthe Constitution; that the justicesare arrogantly determined to follow their own will; that they areengaged in a completely extralegaland ·extraconstitutional strugglefor supreme power in the government of the United States. Thisis not only a possible position; inmy opinion, there are occasionsupon which it seems the mostplausible explanation of certaindecisions of the Court. As an example, I would cite the recent(1967) decision of a bare majorityof the Court in the N ationalWoodwork case.40

Mr. tJustice Brennan wrote theopinion of the court for himselfand Justices Warren, White, andFortas. A majority was made bythe special concurrence of JusticeHarlan in the Brennan decision.Justices Black, Douglas, and Clarkconcurred in a dissenting opinionby Justice Stewart. With thesedissenting justices I have concluded that Justice Brennan'sopinion so blatantly flouted theclear meaning and intent of thestatutory provision involved thatthe only possible explanation wasa determination by the majority

40 For footnotes, see page 566.

to challenge Congress's policymaking supremacy under the Constitution.41 In my view, JusticeStewart was correct in callingJustice Brennan's opinion "a protracted review of legislative anddecisional history in an effort toshow that the clear words of thestatute should be disregarded...."42

Not Structural Defects

However, I would remind thereader here of two points. Thefirst is that Justice Brennan couldnot possibly have been meaning tocurry favor with the Administration which appointed him; he wasan Eisenhower appointee. Norcould he have been motivated bya desire to promote his own careerby currying favor with the presentAdminstration. There is nothingthat the current Administrationcan do either to hurt or, help himon the Court.

The second point to rememberis that, no matter how blatantlya life-tenure justice may seem tomisconstrue legislation, there isalways, in the end, an objectivelyinsoluble problem concerning motivation. We may eliminate economic insecurity where the judgehas life-tenure and the positionpays him enough to preclude ambition. We may eliminate vulgarcorruption, owing to the traditionsand the high dignity of the Court.We may eliminate light frivolity,


for there is plenty of reason tobelieve that the justices take theirrole seriously. But when these andother such motivating factors areeliminated, it is still not possiblefor the external observer-analystto be sure about the causal factoror factors which actually producedthe judicial opinion in question. Itcould have been so trivial a thingas stupidity, a law clerk who dida fragmentary job of researchamong the authorities or in therecord of the case, or an appealing argument on the wrong side,or simply the hard case whichmakes bad law.

An Understandable Confusion

It is best, then, to operate on theassumption that, however egregiously the justices may act inparticular cases, they neverthelessperform their duties in good faith- by which I mean, in accordancewith their conception of their roleon the Court. Often, we must remind ourselves, the Court interprets Congress's statutes well andfaithfully, reversing the NLRBin the process. Often, owing to theinherent ambiguities of languageor to sloppy or evasive work inCongress, an interpretation cango either way, and the critic cannot complain with any great forcemerely because the Court hasadopted an alternative which hewould have rejected.

Moreover, with law professorsin a state of great confusion overthe judicial role with respect tostatutory interpretation, it is easyto understand that at least someof the justices will .share theirconfusion. A professor of law hasrecently published the followingstatement:

The myth that the courts onlyfollow the intent of Congress inhibits most judges from examiningsolutions worked out in other countries, even when Congress had nointent or when that intent was notto solve but to avoid the problem.Thus, the Court in the LockoutCases condemned the NLRB for "unauthorized assumption ... of majorpolicy decisions properly made byCongress," and then fabricated aCongressional intent to support itsown policy decision. The Court couldhave gained greater insight into theproblem and made a more responsible decision if it had examined thealternative solutions from othercountries; but that would requirean open admission that the Courtwas making the policy decision whichCongress had refused to make.43

The Charges Re-examined

The foregoing comment may bebroken down as follows:1. Courts do not merely follow

the will of Congress.2. They are policy-makers.3. It is proper that they make

policy.


4. Congress did not express apolicy on the legality of collective-bargaining lockouts.

5. The Supreme Court mad·e itsown policies in the LockoutCases, but it did so inadequately because it was. afraidto admit that it was makingpolicy which Congress had declined to make.

The first two statements are inaccurate, though not completely incorrect. The vast preponderance ofFederal judges other than Supreme-Court Justices not only saythat they are bound by Congressionally declared policies but actin accordance with that declaration, subject to three qualifications: (a) sometimes statutoryambiguity or other deficiencies require the court to contribute something more than mere interpretation to the decision which it mustreach; (b) at times a Federaljudge does play fast and loose withlegal doctrine and statutory interpretation; (c) sometimes thecourt must follow an interpretation at variance with the plainmeaning of the statute becausethe Supreme Court has alreadyimposed such a variant. The latteris peculiarly relevant in labor .law.A large proportion of CircuitCourt affirmances of NLRB decisions is owing to the fact that theSupreme Court has so often endorsed the NLRB's revisions of

the Labor Act. After the Courthas done so, the Circuit Courts ofAppeals· have no real alternativebut togo and do likewise.

The third statement is not onlyincorrect, but seriously so. Asidefrom "gap-filling" and selectionamong alternatives where legislation is ambiguous, the Federalcourts, including the SupremeCourt, act improperly when theymake policy. They act improperlyfrom all relevant points of view:from the point of view of personalmorality; from the point of viewof Constitutional legitimacy; andfrom the point of view of functional-practicality. All Federaljudges swear to uphold the Constitution as a prerequisite to theiroffice. The Constitution (as well asthe basic concept of representativegovernment which underlies it)states that:

All legislative Powers hereingranted shall be vested in a Congress of the United States,which shallconsist of a Senate and House ofRepresentatives.

For reasons already stated, nocourt of law can represent the nation adequately; confined to a particular dispute in the courtroomsetting, broad policy-making byjudges is bound to be abortive.The nation, the law, multitudes ofpersons, and the future of representative government in the


United States - all are in a stateof crisis today owing in no smallpart to the Supreme Court's assumption of policy-making andeven constitution-making powersover the past thirty years or so.

The fourth and fifth statementsare incorrect. Congress did notsay in so many words that thecollective-bargaining lockout waslawful. But such a lockout wasplainly lawful at common law, andthere was no language or no policyin the National Labor RelationsAct from which an inference ofCongressional determination tochange the common law couldproperly or logically be drawn. Onthe contrary, there was much Congressional language from whichthe Court could - and did - inferthat Congress intended to preservethe legality of the collective-bargaining (as contrasted to the coercive anti-union) lockout. The Supreme-Court decisions in the Lockout Cases were manifestly correctinterpretations and applications ofCongressional intent. Moreover, tosuggest that the Court should havereferred to European experiencein order to determine how to govern A mericans demonstrates adoubly peculiar lack of understanding of the system of government of the United States. It failsto understand not only what representative government means, butalso what the constituency is

whose views and preferences areto be represented by government&nd reflected in law.

I have discussed the foregoingcomment on judicia}:-policy-makingpower at some length because ofthe help it affords in understanding the policy-making penchant ofthe Supreme Court. The commentdoes not represent the aberrantview of a single law-school professor. It represents, to n1Y personal knowledge, a substantialbody of opinion among law teachers, and therefore of necessityamong law students, practitioners,and even judges. It is really ingrained enough to be called anunreconciled contradiction in ourlegal tradition - one which can beremoved only by spreading a better understanding of the meaningand the requirements of representative government and of theConstitution.

Different Traditions

We have come now to the secondsharp distinction between the institutional framework of the Federal judiciary and that of quasijudicial administrative tribunals:the history and the traditionswithin which they respectivelyoperate.

It would be a mistake to assumethat an administrative agencysuch as the NLRB is somethingnew, without history or tradition.


The mistake is understandable because that history and that tradition are hidden and forgotten. Thehistory and tradition which theNLRB carries forward today wasrejected in the middle of theseventeenth century in England. Itwas rejected on the basis of experience so repugnant, and sotragic for men who prized law anddecency, that it could not be revived till consciousness of its terrible consequences .had dimmedwith the passage of more than 250years.

I refer, of course, to the abolition in the seventeenth century ofsuch administrative tribunals asthe Star Chamber and the Courtof lIigh Commission. Those agencies, like the NLRB, were rationalized as "expert" tribunals whichcould be relied upon to do "speedyjustice," unhampered by the "technicalities" of the law courts, andobedient to the executive policieswhich parliament and the courtsof law were frustrating.

The constitutional revolutionwhich took place over a period ofmore than forty years in Englandduring the seventeenth centuryhad two significant results, bothrelevant to our present inquiry:(1) the assertion of parliamentarypolicy-making supremacy, involving a radical reduction in thepower of the executive; (2) thecreation of a judiciary insulated

from political pressures by lifetenure in office, involving the abolition of all such quasi-judicialagencies as the Star Chamber.

The English Influence

Two great legal scholars - SirHenry Sumner Maine and Professor William W. Crosskey - havedemonstrated both broadly and indetail that the main features ofthe Constitution of the UnitedStates were the direct product ofthe English experience during theseventeenth century.44 It is impossible to read the Constitutionagainst the background of thatexperience and come to any otherrational conclusion. Article I givesall legislative policy-makingpowers to Congress; Article IIIgives the whole judicial power ofthe United States to life-tenurejudges.

The result was to interrupt thehistory and the traditions of administrative courts. We had nonefor a long time, and even afterthe Interstate Commerce Commission was created at the end of thenineteenth century, we still hadlittle "administrative law" till thethirties. Few lawyers will now remember the names of the menwho served in the Star Chamberor the Court of High Commission,if indeed those names were everwidely known. But neither willmany lawyers remember the


names of ICC or FTC or CAB orNLRB members.

I t seems to be in the nature ofan administrative court to operateanonymously. Even today, NLRBdecisions emerge anonymously.One is tempted to infer a lack ofpride in or perhaps a hesitancy toassume responsibiiity for theNLRB's product. And the inference is strengthened by the factthat normally only dissenting orspecially concurring opinions aresigned by NLRB members.

A Shining History ofIntellectual and Moral Courage

The history and traditions ofthe Federal judiciary are strikingly different. They trace directlyback in an unbroken line to thegreat English chancellors andjudges, even beyond the time whenlife tenure was accorded judges.It is a history full of shining examples of intellectual and moralcourage - of judges who timeafter time vindicated the maxim,"Let justice be done though theheavens fall." Roscoe Pound hasdescribed how the king's judgesdefied the king's will even thoughthey served at their king's pleasure.45 Their names are known;even in the Year Books, the judgesare identified. One does not needto be a legal scholar in order torecognize such names as Coke,Holt, and Mansfield, or Marshall,

Story, Shaw, Field, Holmes,Brandeis, Cardozo, Jackson.

It is a serious shortcoming - afailure to grasp one of the powerful determinants of human action- to underrate the influence ofsuch a tradition, especially in thelaw, where a judge's nose isrubbed willy-nilly so often in whathis predecesso\rs have said or done.

That thinnest, most unperceptive, and most inaccurately designated of all schools of legalthought - "legal realism" - holdsthat judges not only do but shoulddecide cases in accordance withtheir own inner intimations ofimmortality. But the "legal realist" does not explain how a persontrained in the law, acting in a living tradition, thinking, as hemust, in the categories of thoughtwhich prevail in the law, can possibly hand down decisions outsidethat tradition and those categories.

Asking a career, life-tenurejudge to act in the fashion that"legal realism" suggests is thesame as asking a person to writewithout the alphabet. The onlything produced is an unintelligiblemess, and few judges are willingto befoul their tradition and thelaw books that way. And so mostjudges, especially those for whomjudging is a lifetime career, tendafter a while to settle themselvesdown into carrying on the great


tradition of obedience to law asopposed to personal preference orpolitical expediency.

Consistency

Continuity, consistency, predictability - these are the valueswhich most Federal judges prizeand which they try to achieve. Incontrast, the field of "administrative law" presents a spectacle ofviolent change in the "law" witheach change of Administration.Judges think that the function oflaw is to help the community as awhole by giving a firm standardto which persons in general mayadjust their conduct without fearof finding, after they have actedon one legal assumption, that thelaw has been changed. Administrative agencies consider "law"only another tool with which toadvance the interests and policiesof the ....L\.dministration in power.

I remind the reader of the vicious cunning illustrated by theBryant Chucking Grinder case.-!GThe "Eisenhower Board" had heldthat unfair practice charges shouldnot be allowed to relate back topre-election conduct. The rulemade good sense. A party shouldnot consent to an election when hemeans to challenge it thereafterbecause of pre-election conduct.However, the "Kennedy Board"found the rule unacceptable andsimply reversed it. In so doing, it

laid the basis for giving unionsexclusive bargaining status andfor imposing the duty to bargainon employers in hundreds of cases- in spite of the fact that the employees in those cases had, insecret-ballot elections, rej ected collective bargaining.

Courts do make and change lawto some extent. Unfortunately, aswe have seen, they sometimes dothose things even when the existing law is clear enough so thatthey are not required to do so bythe necessity of deciding the casebefore them. Contrary to academicians of the kind I have mentionedabove, there is no justification forsuch conduct. On the other hand,it is well to understand two thingsabout it. First, the phenomenon isconfined to relatively few judges,mainly on the Supreme Court.Second, it creates a power struggle between those few judges, onone side, and Congress, on theother; it does not necessarily alignthe judicial power with the executive power; and thus does notcreate so dangerous a threat tothe principle of the separation ofpowers and to congressionalpolicy-making supren1acy as doesthe grant of judicial power to anexecutive agency.

The Weakest Link

Judicial power is the "weakest"of the three aspects of govern-


mental power. It controls by itselfneither men, nor guns, nor money,nor votes. If Congress did notkeep itself so busy bootlessly trying to legislate this nation into aparadisial state, it could withouttoo much trouble keep the Supreme Court vividly aware of itsinherent weakness. If, for just afew years, Congress would policeSupreme-Court decisions - instantly responding to so blatantan example of statutory misconstruction as occurred in NationalWoodwork by a suitable statutoryamendment - even the dullest orthe most arrogant Supreme Courtjustice would learn that he wasnot commissioned by the Constitution with the supreme and autocratic power which some of thejustices have arrogated to themselves.

That would be a troublesomeand an annoying job for Congress;an unnecessary one, too, since theJustices ought to know better,even if the professoria do not. Butat least it is practical and possiblefor Congress to control the Supreme Court. It is a small body,turning out a limited number ofdecisions. In the last resort, Congress could simply take away muchof its appellate jurisdiction without doing irreparable injury to thenation.

In contrast, the job of policingand controlling the activities of

administrative tribunals is verynearly hopeless. There are somany. They do so many things.They grind out so many decisions.Their activities are as often offthe record as on. The confusionbetween their powers and thoseof the reviewing courts creates aninfinity of problems in itself. Allocating responsibility is extremely difficult. For example, theNLRB constantly contends thatit must be doing a good job because the Courts of Appeals enforce a vast preponderance ofBoard orders. But the Courts ofAppeals 1nust enforce most Boardorders because the substantialevidence rule ties their hands;moreover, by now, with the Supreme Court's support, the Boardhas the bulk of the substantivelaw under the statute in a posturesuch that it can write decisionspretty much at will, no matterwhat the facts are.

Conclusion

Congress's policy-making legislative supremacy, and with itthis country's hope for an effectively operating representativegovernment, is endangered by themerging of judicial power intosuch executive agencies as the National Labor Relations Board.

Delegating judicial power to anadministrative agency is both unconstitutional and impractical. It


is unconstitutional because theConstitution confines the judicialpower of the United States to anindependent judiciary composed oflife-tenure incumbents. It is impractical because competent judg-,ing cannot be expected from limited-tenure political appointeeswho operate outside the long andsustained judicial tradition ofsubservience to law rather than topolitical exigency. The principalargument in favoro{· specializedquasi-judicial administrative tribunals is based upon an erroneousand deceptive conception of "expertise." The relevant "expertise"must be in the art of judging. Thereal experts in that art are thejudges who sit on courts of general jurisdiction.

Creating specialized quasi-judicial administrative courts, subjectto fragmentary and limited judicial review, produces neither expert nor expeditious judicial administration. It produces, instead,uncontrollable confusion. Out ofthat confusion, the executivebranch emerges with precisely theconcentration of governmentalpower which the outstandingachievement of the United StatesConstitution - the principle of separation of powers - was designedto disperse. As Thomas Hobbessaid, liberty is fragmented power.The result today of reconcentrating power is a badly governed

country. Tomorrow, if history isany guide, we shall have tyranny.

The process has gone far already in the field of labor policy.Although these matters are hardto quantify with any precision, inmy judgment the Labor Board hasmanaged to gather a preponderance of the policy-making powerin its hands, together with executive and judicial power. Congress'swill to assert its Constitutionalpower must not be weakened bydoubts of its functional and representational superiority as legislator and policy-maker for the nation. It is nonsense to hold thatthe President or his bureaucracybetter represent the nation. It isequal nonsense to believe thatcourts or administrative agenciescan isolate the consensus of thecommunity into a set of coherentbasic policies better than Congress can.

If Congress wishes to escape thefate of the British House of Lordsand to preserve the representativecharacter of this government, itmust respect and enforce the principle of the separation of powers.This means that Congress mustrepeal its delegation of judicialpower to the National Labor Relations Board and revest that powerin the Federal courts.

Problems will remain. Somejudicial incumbents are unable todistinguish judicial activity from


legislative activity even when thetwo are clearly distinguishable,let alone when, as often happens,it is difficult to distinguish them.Moreover, some judicial incumbents believe that judicial poweris tantamount to legislative power,at least so long as they can getaway with it. Ultimately, however,it is a simpler matter for Congressto correct such judicial mistakesand to subdue such power-lust injudges than it is to maintain its

position against a multi-poweredexecutive.

So, even if Congress, respectingthe Constitution, should confinejudicial power to the Federaljudges, it will have to keep a waryeye on its storehouse of legislative power. Raids by the otherbranches can be expected. But thisis inherent in the nature of menand things. It is not only for liberty that the price is eternalvigilance. ~

FOOTNOTES

40 386 U.S. 612 (1967). I have discussed this case at length in 32 Law andContemp. Probe 319 (1967).

41 Ibid. at pages 337 et seq.

42 386 U.S. at 650.43 Summers, American and European

Labor Law: The Use and Usefulness ofForeign Experience, 15 Buffalo L. Rev.210, 218 (1966).

44 Cf. Maine, Popular Government 196et seq. (1885); 1 Crosskey, Politics andthe Constitution in the History of theUnited States 414-68 (1953).

45 Pound, The Development of Constitutional Guarantees of Liberty 16, 23, 25,32,40 (1957).

46 See the text, supra, at note 20.

The Rule of Law

THE END of the law is, not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beingscapable of laws, where there is no law there is no freedom. Forliberty is to be free from restraint and violence from others;which cannot be where there is no law; and is not, as we aretold, a liberty for every man to do what he lists (For whocould be free when every other man's humour might domineerover him?) But a liberty to dispose, and order as he lists, hisperson, actions, possessions, and his whole property, within theallowance of those laws under which he is, and therein not to bethe subject of the arbitrary will of another, but freely followhis own.

JOH N LOCKE, Second Treatise

DevolutionExperimenting, Nature's hand once flunga fledging from its aerie's lofty roost,and for a moment, one bright arrow hungsuspended where no other had been loosed;one bold bald eagle bravely le-arned to flywhere timid wings had never brushed the sky.

On currents unsuspected until then,one eagle soared, alone, and unconfinedby instincts binding goose and pelicanto paddle in a wake, to fly behindthe bird ahead; to go where leaders went.One eagle circled freely, free, content.

But, faintly, to the eagle's lone domainthere rose enticing songs of happinessfrom birds who never had to brave the rain,or bear the winter's numbing, fierce caress.And as the eagle faced survival's tasks,he came to doubt the price that freedom asks.

Today, the eagle claws a shredded limb,unblinking eyes fixed more than miles beyondhis cage, and broods upon the empty hymnthat brought him drifting slowly to the ground:Free now, from tyranny of endless sky;Free not to hunt,

or build a nest,or fly.

JAMES E. McADOO

567

ROBERT JAMES BIDINOTTO

THE HORDES of the impoverishedwho recently dwelled in Washington demanding more welfareassistance, public housing, and aguaranteed income managed toresurrect as their justificationthe old but familiar cries of "exploitation" and "social injustice"which, they said, had been theirfate under the American system.What these terms meant to thedemonstrators was apparently atodds with what the dictionariessay they mean, but the "liberal"leaders and propagandists repeated them, too, and with eachrepetition of each slogan thepickets and marchers felt morevictimized by the capitalismthey have been taught to hate,and more self-righteous in theircrusade for cradle-to-grave welfare. Their support came fromMr. Bidinotto is a sophomore, specializing ineconomics at Grove City College, Pennsylvania.

568

both those who should know better, and those who do know better. In the latter category arethose who have vested interestsin the pressure-group warfare ofthe welfare state.

It is my contention that thereis officially-sanctioned social injustice in our nation. But thesystem which is its root cause isnot capitalism, nor are the principal victims of this injusticethose for whom the Leftistsmourn.

Let us first discuss the wordjustice. My dictionary definesthe term "just" as "given orawarded rightly, or deserved ...rightful, legitimate, deserved,merited. . . ." The clear implication is that justice consists ofrecognizing and granting thosethings which are rightfully anddeservedly claimed by anotherman, or, giving men exactly what

1968 THE EXPLOITATION OF THE VIRTUOUS 569

they deserve. Any more or anyless is, by definition, a breach ofjustice.

Properly defined then, "socialjustice" would mean the principleof granting and accepting the deserved and rightful in relationsbetween and among groups and individuals in society.

But what is wrong with theconcept of justice promoted bythe welfare-state advocates? It issimply that what they preach isnot justice at all, but out-and-outinjustice. What they favor is anabandonment of the concepts ofdeserved and undeserved, earnedand unearned, and right andwrong. Their aim is as old as theone which motivated the world'sfirst thief: "the fatal tendency,"as Bastiat called it, to live at theexpense of one's fellow meri.

Freedom and Justice

A truly civilized society existsby means of free, voluntary exchange of values between consenting and willing individuals. It isthe function of the government ofa free society to promote justice.One of its more specific missionsis to assure that exchanges arewilling and voluntary, not forcedand fraudulent. The initiation offorce is outlawed by the government of a just culture. Such a society exists using reason, notplunder, as its means of survival.

The state apparatus exists for theexplicit purpose of protecting individual rights.

The only social system basedupon the recognition of individualrights is capitalism. Capitalismrequires of man his creativity - hisability to produce goods and services - as the price of his survival,for it recognizes the essence ofjustice: that a man receive whathe earns by his own effort andthought, and not what he canplunder from the creative effortsof others. It allows men to tradewith one another to mutual advantage in uncoerced exchanges.Capitalism encourages the bestmen have to offer: thrift, practicality, ambition, hard work, andhonesty. Above all, it asks thatmen use to their fullest extentthe productive ingenuity of theirminds. Under laissez-faire capitalism a man is judged by his accomplishments, and the means heemploys to achieve the values heseeks. Capitalism does not separate ends from means.

This system, based on justiceand the respect of individualrights, built the most wealthy,productive, and powerful nationthat has ever existed.

Victims of Intervention

But note what happens whengovernment ceases protecting individual rights and actively vio-


lates those rights instead. Whosuffers and is victimized when ournation accepts the collectivistpremise that it is proper to exploit an individual for the sakeof society, and that individualrights should be subordinate to"public good"- as determined bydemocratically-elected politicians?

Our American welfare state,like other statist-oriented systems,is run on the tacit premise of"from each according to his ability - to each according to hisneed." That is the implied, butseldom-stated, basic principle ofwhich the New Deals, Fair Deals,New Frontiers, and Great Societies are but a manifestation. Itis the implied justification of theGuaranteed Income proponents,the advocates of conscription, andthe Welfare Statists. What thisprinciple means is illuminating.

I t means that the need of oneman constitutes a demand on themen of productive ability to fill it. . . as a matter of right to the"needy" man. The means of enforcing this principle is the coercive power of the state, whichconfiscates the product of the ableand creative to undeservedly benefit those who n-either produce norcreate.

What determines who shall belooted in this manner? Is merepossession of wealth the basis ofthe redistributionist creed? The

answer is no. Wealth is somethingthat has to be produced before itcan be possessed. The allegationthat it is the "possession of excess wealth" that is being rectified by this principle is a smokescreen. The degree to which oneis plundered is determined by thedegree of one's productivity, or asI pointed out earlier, by the degree of one's economy, practicality, ambition, initiative, labor, integrity - the productive virtues.The key virtue being man's rational faculty, his mind, and hiscreative use of that faculty, it iseasy to see what is ultimatelybeing looted and redistributed. Itis man's mind that is being plundered, through confiscation of thefruits of man's intelligence. It isthus the man of the greatest virtue who is hurt the most by redistribution.

Subsidies for Failure

What determines who shall bethe recipient of the plunderedwealth? One's need of that wealth- his inability or unwillingness toproduce and create by using hisintelligence to its fullest extent.In other words, one's faults! Whostands to gain and ,vho stands tolose in such a society? Who is exploiting whom?

The producer is chained to produce for those who cannot maintain their own lives. The creator

1968 THE EXPLOITATION OF THE VIRTUOUS 571

is harnessed to fill the stomachs,clothe the bodies, and build thehouses of those who create nothing. The able man becomes a serfof the man who is not able to fillhis needs, claims, and demands byhis own effort. The best are punished and shackled for the sakeof the least and the worst. Thewelfare state, established to correct an imaginary inj ustice, hasperpetrated the worst immorality:exploiting the virtuous for theirvirtues. In such a society, to improve oneself and show progressmeans that one gradually strangles himself through his own effort; that the better one gets, themore demands are placed uponhim, and the more of a slave tosociety he becomes. And worse:he is a slave not to sOlnebody else'ssuperiority, but to his neighbors'inferiority.

/IMight Makes Right"

When a nation proclaims the superiority of the collective whimover an individual right, it embraces a most peculiar standardof morality, based on the simpleaddition of numbers. The principleinvoked is that might makes right,that the size of one's gang is hissanction to somebody else's property. One might say, "But it's perfectly legal to tax one man tobenefit another. After all, the lawsgoverning welfare were democrati-

cally passed by the majority."This is even worse; it means that(a) the legal system of the nation has been corrupted by theworst of principles,· and that (b)"the majority" recognizes itself asbeing outside the influence of themoral code which the state imposes upon individuals; that anyinjustice can be committed in thename of the "majority," or "society," or "the common good" ;that morality is a numbers gameof factions, individuals, minorities, and the omnipotent majority.The alternatives in the game arestrictly limited. One either becomes a looter, or one is looted;one is either a parasite livingupon others, or one is a victima human sacrifice - to that parasitism.

Join a Pressure Group

How does one cash in on thewelfare state? One joins a pressure group. The purpose of a pressure group is to pressure the legislature to pressure the producervictim-taxpayer, extorting fromhim in proportion and to the extent of his virtues. This leads tothe scandalous corruption of legislators by lobbyists, whose onlyaim is to get a special coerciveadvantage over their neighbors viathe power of the government. Thepresumed beneficiaries of the welfare state are the confirmed para-

572 THE FREEMAN Septembe1

sites; and their victims are thosewho, under fre·e competition,would be the most successful. Andwhile pressure-group warfare escalates,! new bureaucracies arecreated and new bureaucrats employed to legally plunder men'ssavings and distribute the lootamong those seeking favors. Andit is the doer, the thinker, theworker, the producer, who footsall the bills. There is the true "social injustice and exploitation" inAmerica.

The remedy lies in the discovery

1 Walter J. Wessels, "The Theory ofPolitical Escalation," Freeman, February, 1968, p. 81.

of individual rights and the onI)system that can preserve them:capitalism. It is a false idea thaithe producer of wealth should fee:guilty because of his ingenuity:creativity, and riches. Has he notearned the fruits of his effort? Ishe to be apologetic about virtueand success?

It is the task of libertarians touse every opportunity to promotethe system under which no one issacrificed, exploited, or treatedunjustly for another's sake. Thatsystem is capitalism, with its respect for individual rights. Itsruling principle is justice for all.

~

The Interstate Commerce Commission

-a system of laws and rules and an administration of those lawsand rules in which the overweening goal is to maintain at ashigh a level as possible the cost of moving the country's goods,in the interest of the financial welfare of the movers. The basicgoal of regulatory policy is to maximize the earnings of thecommon carriers, particularly those in financial difficulty.

Much attention is given to the effect of technology upon institutions. Perhaps not as frequently noticed is the ability ofinstitutions to counteract technology. The Interstate CommerceCommission and the regulatory system that it has helped tocreate have done a truly remarkable job of battling technologyhead on and, to a considerable extent, winning. The creationand maintenance of large barriers to entry where no significant natural barriers exist (for example, in motor trucking) hasbeen a monumental task, which the ICC has executed successfully in little more than three decades. A motor carrier's largestsingle asset is simply its permission to be a motor carrier.

" . From Indiana Business Review, MarchiApril 1968The NatlOn-Topsy-Turvy World of Transportation Regulation" by

David W. Maxwell, Professor of Business Economics and PublicPolicy, Indiana University

A. REVIEWER'S NOTEBOOK

HAVING LIVED through the pasttwo decades and watched thesteady growth of cliche versionsof history, I doubt that futuregenerations will ever know thetruth about our times. But if errorpersists, it won't be the fault ofWilliam Rusher, the publisher ofNational Review, who has setdown his experiences as a Senatesubcommittee investigator in a remarkable book, Special Counsel(Arlington House, $10).

Bill Rusher went to Washington, D.C., in 1956 to help BobMorris investigate communismfor the Internal Security Subcommittee of the U.S. Senate. Despitethe fact that Senator Joe McCarthy had long since been censured, and was then living out hislast days in innocuous desuetude,anything connected with anticommunist activity was stillcalled "McCarthyism" in the middle fifties. The stereotype had already jelled; no matter how meticulous Bob Morris and Bill Rushermight be, they were still "witchhunters."

Combatting the "witch-hunter"allegation, Bill Rusher's book is an

J OH N C HAM B E R L A IN

attempt to prove to young peopleof the late sixties that the activities of the communist apparatusin the United States of the fiftiesand before were not in the best interests of the Republic. Unlike thelate Senator McCarthy, BillRusher doesn't make mistakes inarithmetic or treat the Englishlanguage as something that is incapable of expressing nuances.But will this book cause a single"liberal," whether young or old,to recheck his sights on history?Perhaps I am too cynical, but Idoubt that Rusher will penetratethe "liberal" hide. He himselfgives the reasons for supposingthis: the "liberals" - and theword should be continuouslyplaced in quotes - had gone overto various variants of socialism inthe New Deal period, and theirown self-regard had become implicated with the craving to believe that Soviet Russia, despiteeverything, must somehow comeout right in the end. Economic determinism, acting on capitalismand communism alike, must leadus all to "convergence" in the "liberal's" mind. In deference to this


view, "Red-baiting" must be regarded as something that is"against history" - and theRushers who presumed in the fifties to help hunt out communistsubversion were simply wastingtime and the taxpayer's money.

The Record Speaks

For those who don't care forstereotypes, however, Rusher'sbook is full of irrefutable stories.It should cause some libertariansto recheck their sights. Too oftenthe libertarian assumes that ifyou put your trust in the market,you don't have to worry aboutsuch things as the Cold War. Butthe Cold War has enabled theSoviets to use the mechanisms ofthe market as a "cover" for dirtyundercover political and paramilitary activity.

For example, the early years ofHarry Gold, the mousy, unobtrusive little man who stole the basicsecret information about the production of the atom bomb and delivered it to the Soviets, werespent in industrial spying for hisforeign masters. Gold was a chemist who, in 1922, worked with asugar company in Philadelphia.The depression gave him proletarian ideas, and he allowed himself to be recruited to steal the accounts of secret manufacturingand synthesizing processes fortransmission to Moscow. In time

Harry Gold was passed for handling to Gaik Ovakimian, a Soviettrading official who worked forAmtorg, the official Russian tradecorporation, in New York City.Ovakimian wasn't in America tobuy and sell goods; he was herefor building an apparatus thatwould enable the Russians to bypass the difficult work of developing their own products for themarket, or for the Soviet armedforces.

One thing led to another, andHarry Gold, after stealing a staggering array of quasi-military industrial secrets for a successionof Russian handlers, found himself in Albuquerque, New Mexico,where he met David Greenglass,an employee at the Los Alamosatomic development installation.The secret designs- of the atombomb passed from Greenglass toGold, and from Gold they went onto Moscow.

Bill Rusher tells this particularstory with a fine relish for detail.What it proves is that communismisn't content to use trading organizations for their stated purpose.If Amtorg had been just a tradecorporation, Harry Gold could nothave succeeded as a spy. Communism isn't primarily interested inmarket considerations; everythingthat it does is subordinated topolitical and military aims. So howdeal with Moscow on a free trade

1968 INTERNAL SECURITY 575

basis? You may be vitally endangering your own free system ifyou do.

Treasury Intrigue

Another poser for those whothink we can do business as business with the communists is BillRusher's tale of how Soviet sympathizers in the U.S. Treasurymanaged to undermine our financial policies vis-a-vis NationalistChina. In the last days of WorldWar II the Chinese governmentof Chiang Kai-shek was threatened with galloping inflation. Secretary of the Treasury HenryMorgenthau had promised to makefive hundred million dollars available to China. It was supposed togo in the form of monthly goldshipments. But Harry DexterWhite and other Treasury employees, for reasons that havenever been fully explored, dribbled the money out at a snail'space. Eventually Henry Morgenthau read the riot act to his dilatory underlings; he had given hiswritten word to China, and, as hesaid, "a person's word, and particularly his written word, meanssomething." "What about thehonor of this Government?," Morgenthau asked his sophistical employees. After Morgenthau had delivered his dressing-down, thegold began to move to NationalistChina in accordance with the

agreement. But by now it was toolate; hyperinflation had alreadyset in, and the financial collapseof the Nationalist governmentcould not be stopped.

Bill Rusher helped investigatethe burrowings of communistsympathizers into the waterfrontunions of the Pacific coast andHawaii. He interviewed the "redefector,,, John Santo, after the collapse of the Hungarian freedommovement in 1956. He helped expose the workings of a communistcell in New Orleans. He and BobMorris poked and prodded witnesses who were sometimes willingto talk without taking the FifthAmendment about such variousthings as our post-war Chinapolicy, or about Communist BellaDodd's alleged pressure tactics inNew York State politics, or aboutthe suicide of Herbert Norman,the Canadian Ambassador toEgypt. The good stories tumbleout of his capacious memory. And,as a lawyer who believes in evidence, the good stories are alwayscarefully documented, carefullychecked.

There is no "McCarthyism"here. Mr. Rusher does not thinkthat the West will die as the resultof a communist "conspiracy." Hethinks it a far greater danger thatthe West may succumb to its lackof compelling belief in its ownfree traditions. But, having put


his priorities in order, Mr. Rusherthinks it useful to expose communist spy policies. He hopes hisbook will be read by the youngwith open minds. ~

~ THE JEWELER'S EYE-A Bookof Irresistible Political Reflectionsby Willianl F. Buckley, Jr. (NewYork: G. P. Putnam's Sons, 1968,378. pp., $6.95)Reviewed by Robert M. ThO?"nton

YEARS AGO H. L. Mencken remarked on the need for a highTory magazine written with goodhumor. In 1955 William F. Buckley, Jr. filled this need with hissprightly fortnightly, NationalReview. A dozen years later he andhis merry band are still goingstrong- to the discomfort of the"liberals." Buckley invites comparison with "The Sage of Baltimore" because he, like Mencken,has a fine command of the English language, is devastating in hisverbal assaults, and is never hesitant about needling the pompousor exposing frauds. That he enjoysthe respect and even the friendship of people on the Left showsthat he is able to attack the ideashe believes wrong without anypersonal animosity.

Buckley admits that he is nooriginal thinker and he offers noserious tomes to undermine theintellectual foundations of "liber-

alism." Although highly learned,he does not try to fill the scholar'sjob. Rather, he has chosen to joustwith the "enemy" on a day-by-daybasis via television, public debates,letters, magazines, books, andnewspapers. He steps gaily intothe arena, seemingly unaware ofthe terrific odds against him. Although he may not always get thebest of his opponents, he at leastkeeps them from "winning" bydefault. Buckley has helped to destroy the false image of the conservative as a stodgy ColonelBlimp. Agree with him or not, youwon't find him dull. Being a conservative can be exciting!

The present book is an excellentcollection of Buckley's observations on the current scene, but thesubtitle is misleading. Besides hislively criticisms of the "liberals"and their nonsense, we have someexcellent reportage. Here again,one is reminded of Mencken, nevershy about voicing his opinions, yetcapable of straight reporting in acrackling, lucid style. Closing outthe book are several tributes tothe deceased among public figures,friends, and family. Along withthe memorials to Henry Luce,Herbert Hoover, and DouglasMacArthur, readers of THE FREE

MAN will be happy to see Buckley'seulogy on Frank Chodorov whofought the good fight back when"liberals" were almost unopposed.

The Freeman 1968

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Transcript of The Freeman 1968