In those earlier days, in whose experience we have just been educated, the human beings in America, who had that mental attitude, were distinguished from the Americans by the name “Tories.” Throughout this book it is that mental attitude which we characterize as “Tory.” It is those who display that mental attitude whom we call “Tories.”
At the time of our Revolution it is a historical fact that about one third of our population was Tory in its mental attitude. Many of the Tories, quite possibly most of them, were actuated by a sincere and deep conviction that it was better for every one that human beings should be subjects. That conviction had been the basis of nearly all science of government for centuries. It is really a remarkable fact that our history should show, from their recorded statements and writings, so many men in 1787 accurately grasping the fallacy of that historical doctrine that men were made for kings or governments.
In our education, we now grasp accurately that the Americans, who ended forever the status of “subject” in America, in their Revolution, had not only to contend with their former omnipotent government but also with one third of their own population, the Tories. When that Revolution had succeeded, when the Statute of ’76 had actually been made the basic law of America, many Tories, in the natural course of events, became citizens of the particular state, now a free republic, in which they lived. When the Convention of 1787 assembled at Philadelphia, when the respective “conventions” in each state later assembled, many delegates were men with a known leaning to the Tory mental attitude. It is not to be understood that, by reason of this fact, their loyalty to the new institutions of their country was not sincere. One of the great liberties secured by those new institutions was the right of the human being to think and talk as he pleased as to what is the mode of government best designed to secure the happiness of men. As a matter of fact, when those “conventions” assembled, many of our most prominent Americans of the Revolution had begun sincerely to doubt whether the American people had yet learned enough to profit most by their legal ability now to dictate to all their governments how much power each government should have. It is the record of impartial history that the people’s distribution of all surrendered power of a national kind, the grant to the new government and reservation to the old state governments, was dictated by two opposite factors. The wise and able leaders, whether their mental attitude was American or Tory, knew that the general government must get a grant of much power of that kind, if it were successfully to promote the welfare of the American people. On the other hand, they knew with certainty that such grants must be specified and enumerated and limited, or the American people would make no grant at all. It was, as it still is, the basic law of America that grants of that kind could only be obtained directly from the people themselves. The American mental attitude, that citizens and not governments shall define the extent of government power to interfere with individual freedom, was the controlling factor when the Constitution made its great distribution of all surrendered powers.
If we go back to the “conventions” of those who established the system, we find a striking fact. In those “conventions” there were many men whose personal opinion always had been and still was in full accord with the Tory concept of what ought to be the relation of government to human being. But these men, with that Tory concept of what government ought to be, were just as keenly aware as were those with the American concept, that the Tory concept had forever disappeared from American law. Whenever any suggestion was based upon the Tory concept, these very men were among the quickest to perceive and the most strenuous to insist that the suggestion could not be met because the American concept had displaced the Tory concept forever in America. If our modern leaders, who have the same Tory concept of what government ought to be, had evinced the same perception and the same insistence, the story of the last five years would be a different story. Because these leaders have had no knowledge of what America is, we average Americans must now come straight from the “conventions” in which the Americans established the Constitution to secure individual freedom and we must educate ourselves in the story of the last five years in which our governments and our leaders have calmly assumed that citizens are subjects.
CHAPTER XVI
THE TORY “EIGHTEENTH AMENDMENT”
In the closing month of 1917, the American people had been for eight months participants in the World War. In that winter, under the direction of their only government, exercising its war power, they were marshalling all that they had to win that war and to win it quickly. The mind of the people themselves was concentrated on that one purpose. The response of the average American citizen to the call of his government, the assembling of millions of average American citizens as soldiers for that war, the outpouring of their money by other millions, should have made it impossible that the government servant of those American citizens should have entirely forgotten and ignored the knowledge of the “conventions” of 1787, that the American is a citizen and not a subject. Even if their personal experience had made them members of the class which naturally have the Tory mental attitude, the spirit of 1917 should have awakened our legislators from their wrong Tory concept of our American basic law. If plain words were needed to teach them that basic law, only ten years earlier the Supreme Court had stated that law in words which even a child can understand.
The powers the people have given to the general government are named in the Constitution, and all not there named ... are reserved to the people and can be exercised only by them, or upon further grant from them. (Justice Brewer, in the Supreme Court, 1907, Turner v. Williams, 194 U. S. 279.)
Yet the statesmen of America, when its citizens were offering their lives and their all, chose that December of 1917 to propose that legislative governments, which have never been the governments of the American citizen, should exercise one of those reserved powers of “the people” and should give to the legislative government of the American citizens future ability to exercise that same power, although American citizens had expressly reserved the power to themselves exclusively.
In December, 1917, as in January, 1790, the American Congress was the only legislative government of the American people.
All powers of a national character which are not delegated to the national government by the Constitution are reserved to the people of the United States. (Justice Brewer, in the Supreme Court, Kansas v. Colorado, 206 U. S. 46 at p. 90.)