Monday, June 15, 2015

Words on Vellum & Paper: The Magna Carta, The Bill of Rights, H. L. Mencken, and F.D.R.

The impact of words on the law, and what is perceived of as rights and privileges shared by the body politic is hardly a myth when it comes to the language of the Magna Carta. What is important about the document is the resilience of its words. The document may have had little immediate impact (apparently the Pope disallowed it and King John ignored it), but its words were persistently carried forward in time to the point where they did, and still do, have meaning in the law and in practice.
In 1987 I presided over a ceremony celebrating the Magna Carta which resulted in an op-ed article I wrote for the Baltimore Sun. Given the recent debate on the significance of the Magna Carta itself, I returned to my original. article (published September 2, 1987) and an essay I wrote (in Greene, Jack P, and Robert J. Haws. The South's Role in the Creation of the Bill of Rights: Essays. Jackson: University Press of Mississippi, 2009) about the importance of the language as it found its way into the Maryland State Constitution in 1776 where it remains embedded to this day For example, see: Art. 24. That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land (amended by Chapter 681, Acts of 1977, ratified Nov. 7, 1978).
Possibly no single document was as well known by name to the Founding Fathers (and the Founding Mothers, such as Abigail Adams), than the Magna Carta which the Barons forced King John to accept on June 15, 1215. It was a "bill of rights" that formed an integral part of the English legal heritage universally accepted by those who created the 13 original colonies. It took some intense lobbying to get a "bill of rights" into the U. S. Constitution, but a number of states, including Maryland had already incorporated language from the Magna Carta into their state constitutions. From 1776 Maryland's declaration of rights contained the provision "That no freeman ought to be taken, or imprisoned, or dis-seized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land." The language in 1215 read "No Free man shall be taken, imprisoned, dis-seized, outlawed, banished, or in any way destroyed,m nor will we proceed against or prosecute him, except by the lawful judgment of his equals or by the law of the land." It may have taken a long time for this principle to become an integral part of Britain's unwritten constitution (1628?), but it was part of Maryland's written constitution from 1776 and the Nation's from 1788.
In 1934, the Gridiron club chose H. L. Mencken to be the spokesperson for the Republican Party at its annual, off the record, roasting of the President of the United States. In that speech Mencken did not refer directly to the Magna Carta and the language embedded in Maryland's state constitution (he would do that on another occasion), but instead he turned to the 1628 Petition of Right the language of which was in part derived from the Magna Carta. On a "Mencken Day" at the Enoch Pratt Free Library, I delivered the following observations on H. L. Mencken's views on Government.

H.L. Mencken, Franklin D. Roosevelt, and the Petition of Right or What Do We Really Know about H.L. Mencken's Views on Government?

It is common knowledge, at least among Mencken devotees, that on December 8, 1934, H. L. Mencken addressed the Gridiron club at the Willard Hotel in Washington D. C. as the spokesman of the 'loyal opposition,' there being no other obvious candidate able, or perhaps willing, to take on the Administration of Franklin D. Roosevelt. In November, the Republican Party had suffered another defeat in the Congressional elections, losing nine seats in the Senate and nine in the House. On paper at least, there was very little that the Democrats could not do. They controlled 72% of the Senate and nearly 76% of the House of Representatives.
It is also common knowledge that President Roosevelt had the last word of the evening as the Guest of Honor. Both speeches were off the record and the 490 guests in attendance were expected not to break the rule.[the number of guests is taken from Mencken's Diary. Other authorities say 400. (Bode)]
The festivities started at 7:20 in the evening (according to Mencken's Diary) and ended only after the President finished his remarks which he began about 11:30 [one authority says 11:15 p.m., but does not indicate where he got his information. (Carl Bode)]. The program opened with the president of the Gridiron Club, James L. Wright, the correspondent of the Buffalo Evening News, delivering "the keynote of the ... show," in darkness as tradition dictated, except for the glow of a lighted gridiron.

Tonight, my friends, [he said], we train our field glasses on the pompons of the political pageant, on fantastic floats and floating fantasies. Colorful events of recent months will pass quickly in review.
Since we last met beneath the golden gridiron, there have been many changes. The Washington Monument has been washed down and the Republican Party washed up.
Dinner followed (with Terrapin Maryland as a featured course, not [as Carl Bode asserts] in honor of Mencken, but as a tradition 'since the early days' of the club [Brayman], interspersed with skits, songs, and the two main speeches. The opener was a Santa Claus skit on the New Deal in which
Every stocking was filled ere the saint turned to go,
And the manna had fallen as thick as the snow;
And they heard him exclaim, as he flew out of sight:
"Merry Christmas to all --- and be sure you vote right!"
to which the chorus sang:
You better watch out, you better be good,
Better not pout, but vote as you should ---
Santa Claus is comin' to town.
He's making a list and checking it twice,
Gonna find out who's treating him nice,
Santa Claus is comin' to town.

No one knows for certain all of what the President said that night. The only person present to write extensively on his speech claims he began by referring to the night's skits and the "the temperateness of" "My old friend Henry" Mencken's "remarks and criticisms" [Brayman], and then launching into a vicious attack on the Washington Press Corps and Journalists in general.

The notes for FDR's speech survive at Hyde Park with his handwritten annotations. Given the outline in his own hand, I suspect that the President did begin with a comment that the customs of the Gridiron Club seemed to be changing, from an opening crash off stage of broken crockery being dropped from one tin container to another, to a more hopeful Santa Claus skit. He probably observed that his old friend Henry's appearance on behalf of the opposition was not unlike the Prodigal Sun (spelled SUN in reference to Mencken's recently joining the management of the Sun papers) coming back to father. He may have even quoted Jim Watson who said "When you can't Like 'em, join 'em." But what everyone remembers best is what the President said about the Press, although no one is certain that he forwarned his audience that the words were not his own.

["Prejudices", Sixth Series:]

Most of the evils that continue to beset American journalism today, in truth, are not due to the rascality of owners nor even to the Kiwanian bombast of business managers, but simply and solely to the stupidity, cowardice and Philistinism of working newspaper men. The majority of them in almost every American city, are still ignoramuses, and proud of it.
I have myself been damned as a public enemy for calling attention, ever and anon, to the intolerable incompetence and quackery of all save a small minority of the Washington correspondents.

["Prejudices", Third series:]

Third-rate men, of course, exist in all countries, but it is only here that they are in full control of the state, and with it of all the national standards....
That the United States is essentially a common-wealth of third-rate men -- that distinction is easy here because the general level of culture, of information, of taste and judgment, of ordinary competence is so low.

At this point in his remarks, the President may well have informed his audience, if they had not been told already, that he had been quoting from his "old friend Henry."

He may even have continued with the remainder of the excerpts he had collected. They were certainly embarrassing enough, especially given audience and the role Mencken had assumed for the evening:

In his "Notes on Democracy", Mr. Mencken says:

"Politics under democracy consists almost wholly of the discovery, chase and scotching of bugaboos. The statesman becomes, in the last analysis, a mere witch-hunter, a glorified smeller and snooper, eternally chanting "Fe, Fi, Fo, Fum'. It has been so in the United States since the earliest days....

"Government under democracy is thus government by orgy, almost by orgasm. Its processes are most beautifully displayed at times when they stand most naked -- for example, in war days. The history of the American share in the World War is simply a record of conflicting fears, more than once amounting to frenzies. The mob, at the start of the uproar, showed a classical reaction; it was eager only to keep out of danger."

"In Defense of Women", published in 1918, Mr. Mencken says, in part:

"What we need, to ward off mobocracy and safeguard the Constitution and a republican form of government, is more of this sniffing. What we need -- and in the end it must come -- is a sniff so powerful that it will call a halt upon the navigation of the ship from the forecastle, and put a competent staff on the bridge, and lay a course that is describable in intelligible terms."

In the Fifth Series of "Prejudices", Mr. Mencken makes this statement:

"A Washington correspondent is one with a special talent for failing to see what is before his eyes. I have beheld a whole herd of them sit through a national convention without once laughing....

"I know of no American who starts from a higher level of aspiration than the journalist. He is, in his first phase, genuinely romatic. He plans to be both an artist and a moralist -- a master of lovely words and a merchant of sound ideas. He ends, commonly, as the most depressing jackass in his community -- that is, if his career goes on to what is called success."

In "Making a President", by Henry L. Mencken, the author made the following political prophecy:

"Roosevelt will probably carry all the Southern States that Al lost in 1928, despite the difficulties that the repeal plank is bound to raise in some of them, but he will certainly lose New York, and there is little chance that he will carry Massachusetts and its tributaries. He may win nevertheless, but if he does it will be by a kind of miracle."

In the same publication, subsequent to the Chicago Convention, Mr. Mencken said: "But Roosevelt won, and now the party begins the campaign with a candidate who has multitudes of powerful and implacable enemies, and is in general far too feeble and wishy-washy a fellow to make a really effective fight." [Roosevelt papers, Hyde Park].

Edgar Kemler writes that the President also read an even worse Menckonian indictment of the press,

There are managing editors in the United States who have never heard of Kant or Johannes Muller and never read the Constitution of the United States; there are city editors who do not know what a symphony is or a streptococcus, or the Statute of Frauds; there are reporters by the thousands who could not pass the entrance examination for Harvard and Tuskegee, or even Yale. [Kemler, p. 271] but there is no record of it in the Hyde Park papers.

Whatever the President actually read of Mencken's words that evening, the performance did not sit well with their author. The entry in Mencken’s diary for December 9 contains no reflections on either his own or the President’s remarks, although two days later he does mention missing a radio talk by Edwin C. Hill who was present at the dinner in which Hill "apparently gave the impression that the affair was much more serious than it was in fact." [Fecher, p. 77]. In a letter written the same day to his friend Sara Mayfield he was somewhat more truthful. "I got in a bout with a High Personage at the dinner and was put to death with great barbarity. Fortunately, I revived immediately and am still full of sin." [quoted by Brayman, p. 19; Mayfield, p. 210].

Possibly even Roosevelt felt he had gone too far in humiliating Mencken before his peers. Marion Rodgers quotes a letter of FDR's to Arthur Bisbane written two weeks after the dinner in which the President claimed that he "did not really intend to be quite so rough on Henry Mencken but the old quotations which I dug up were too good to be true, and I felt in view of all the amazing but cynically rough things which Henry had said in print for twenty years, he was entitled to ten minutes of comeback." [Marion Rodgers, Mencken and Sara, p. 511, no source cited.]

But what about Mencken's speech that night? Despite what the President did to him, was there anything of value, anything of lasting humor in what H. L. Mencken had to say?

At 9 p.m. (according to Carl Bode), or at 10:30 p.m. (according to Edgar Kemler), following a skit set in the lobby of a New Deal Hotel in which prominent New Deal officials were paid off, either for helping the Democrats win in their home states or, like Rexford Tugwell, by asking them to remaining abroad until the Congressional elections were over, Mr. Mencken rose to speak. Perhaps he had some inkling that the President was looking forward to the last word, although there is no proof, as some have asserted that his remarks had to be submitted in advance to the White House. Just before the banquet Mencken had encountered Roosevelt in the dressing room and noted later in his diary that "he called to me and we had a pleasant meeting. He was extremely cordial, bathed me in his Christian Science smile and insisted on calling me by my first name." But If Mencken was worried, he did not show it. He had worked hard at drafting what he wanted to say.

In contrast to what the President may have said, the text of Mencken's remarks is well documented. Carl Bode discovered three versions among his papers at the Pratt, two of which also found their way into the files of the Gridiron Club. That he had been chosen to be the spokesman for the Republican Party is not surprising. In 1932 Mencken voted for Roosevelt as the lesser of two evils. As the plans for the New Deal unfolded he became increasingly wary and outspoken in his opposition to the growth of government and the abuse of executive power. He had never favored big government.

In the only autograph letter of his owned by the Maryland State Archives Mencken responded to Governor Ritchie's plan for reorganizing State Government in 1921 with the observation that he would be: delighted to read the report on State Reorganization.

I hear that it is a fine piece of work. We have been running on aimlessly in Maryland, adding wing after wing to the house until it now looks like a train of freight cars. I hope you manage to lop off at least 50% of the state boards. A board is inevitably inefficient. One man can always do the work better than two, and two better than three, and so on forever.

Nor did his faith in one man extend to unilateral government by a President, as he made clear in the Evening Sun on March 13, 1933, when he reflected upon President Roosevelt's inaugural address:

Mr. Roosevelt's appeal to the American people ... to convert themselves into "a trained and loyal army willing to scrifice for the good of a common discipline," and his somewhat mysterious demand, immediatelhy following, that they "submit" their LIVES as well as their property to "such discipline" ... have met with a hearty response, and almost all of us are now looking forward confidently to that "larger good" which he promised in the same breath. ... But just what the eminent speaker meant by his mention of lives is not clear. ... We have had two dictatorships in the past, one operated by Abraham Lincoln and the other by Woodrow Wilson. Both were marked by gross blunders and injustices. At the end of each the courts were intimidated and palsied, the books bristled with oppressive and idiotic laws, thousands of men were in jail for their opinions, and great hordes of impudent scoundrels were rolling in money. The natural consequences of the Wilson dictatorship still afflict us ... Thus I hesitate to go with Dr. Roosevelt all the way. My property, it appears, is already in his hands, but for the present, at least, I prefer not to hand over my life.

By May, 1933, Mencken felt the only recourse was to propose Roosevelt for King and let the people decide:

... the state of affairs thus confronting the country prompts me to make a simple suggestion. It is that a convention be called under Article V of the Constitution, and that it consider the desirability of making Dr. Roosevelt King in name as well as in fact. There is no constitutional impediment to such a change, and it would thus not amount to a revolution. The people of the United States are quite as free, under Article V. to establish a monarchy as they were to give the vote to women. Even if it be held, as some argue, that the bill of Rights is inviolable and cannot be changed by constitutional amendment, it may be answered that there is nothing in the Bill of Rights requiring that the national government shall be republican in form. Indeed, a three years later, on the eve of an even greater disaster for the Republican Party than the defeat they had suffered in 1934, he would write in dispair Soon or later, of course, [Evening Sun, October 26, 1936, quoted by Mayo DuBasky, Gist of Mencken, p. 470] a true conflict will have to be joined, but apparently the time is not yet. It may be, indeed, that the Rooseveltian or anti-Jeffersonian concept of the government as a milch cow with 125,000,000 teats still has many years to go. Challenging it today, in the full glory of its heyday, is certainly not an enterprise that promises much of a harvest. Later on, after the cow has begun to dry, it should be measurably easier, but there is not much chance that it will ever become anything properly describable as a cinch.

There is no record of how Mencken felt about a being invited to speak to the Gridiron Club, although Marion Rodgers suggests [without documentation] that he was uncomfortable with giving speeches and practiced his address "before Sara, trying in vain to memorize it, until she advised him to read it instead."

The two drafts and the final copy are brief, but vintage Mencken,and provide insight into the process by which the 54 year old sage of Baltimore honed what he hoped would be an appropriate gridiron roast of the President and all he stood for. The first draft, three and a quarter doubled spaced pages would end up as two and a half pages that might take as much as five minutes to deliver. Each successive draft was somewhat less colloquial and anything that seemed even slightly risque was edited out. Gone were the references to a New Deal which "tackles all its problems, whether soluble or insoluble, in the manner of a young fellow necking a new girl," or to good-humored Americans who "thanks to the public schools ... are more ignorant, and hence happier" than Europeans who "seem to be oppressed by a sense of tragic futility, like a blind man in a nudist camp."

What Mencken did say was tastefully humorous, laced with a warning to the New Dealers not to take themselves too seriously. Like Lincoln at Gettysburg, he chose to be brief and to the point:

Mr. President, Mr. Wright, and Fellow Subjects of the Reich:-

Put up this evening to speak for the Rotten Rich, I find myself under considerable embarrassment, mainly of a pecuniary nature. The fact is that we millionaire newspapers reporters have gone downhill like the rest of you, and I question that the net liquid assets of the Gridiron Club at this minute would be enough to make a pint of alphabet soup. The only thing we have left is liberty to doubt what we are told, and that isn't worth much any more, for what we are told is often incomprehensible and hence unanswerable, and even when we can understand it we are told the exact contrary the next day.

But this is not the time to complain, and indeed there is nothing to complain of. For if the flow of ideas is somewhat confusing, it must still be admitted that the show that goes with it is a very good one. Here we come upon one of the really sound and salient merits of the American republic. It is the most amusing country ever heard of in history. Amusing and good-humored. It tackles all of its most horrible problems in the manner of a young fellow necking a new girl, and even its wars produce quite as many comedians as heroes.

When I sit down with a European, which is very often, I am always struck by his solemnity. And when I go to Europe, which is more seldom, I am depressed by the general gloom. The people over there take politics very seriously and indeed tragically, though even the World War seems to have left many of them more or less alive, and more or less able to eat, drink and curse the government. But in this country we take it more lightly. Every American is born with full confidence that it will probably get well, even if you pick it. No matter how wildly he kicks up, he knows that the judge is likely to be lenient in the morning. And if, by any mischance, he finds himself in the hoosegow or even the death house, he know that he has an inalienable constitutional right to bust out.

I often hear people speculating about how long the New Deal will last. As I go about the country preaching in the Sunday-schools and visiting what we Baltimorons calls the kaifs, I am asked the question constantly. I always answer by advising everyone who asks it trust in Providence, which has always fooled us in the past. Or in the Constitution, which is still to be found in the National Museum, stuffed with excelsior and waiting for the Judgment Day. No doubt the bankers are there too, but what they are waiting for I don't know. I could name some other inmates, but refrain on advice of counsel. Which recalls that a learned judge called me up the other day to say that he had found an article of the Bill of Rights that was still in working order. I put his wild talk down to insomnia, the old curse of the judiciary, but he actually read it to me. It was Article III, reading as follows: "No soldier shall, in time of peace, be quartered in any house without the consent of the owner". Certainly this is something. Small oaks from little acorns grow. Some of these days the Constitution may stage a come-back.

But probably not yet. We are still on a honeymoon, and that honeymoon, for all I know, may last a geological epoch. There seems to be a high mortality in the Brain Trust, but its brains apparently renew themselves like the lost claws of a Chesapeake crab. Their functions, also, are not altogether dissimilar. Maybe we are in the darkness before the dawn. Maybe we are out on a limb. Maybe we are still going up. Maybe we have been up, and are now coming down. Maybe we don't know where we are, or how we got there, or how we are ever going to get back.

Some time ago, while Congress was in session, I had the pleasure of showing my pastor over Washington. I took him to the White House, and then down to the Capitol. He listened while both Houses jawed away, and he peeped into the dreadful refrigerator of the Supreme Court. Then he said to me: "My boy, you cherish a chimera if you ever hope to see the smart fellows who now run this great republic turned out. They are ace high at the White House, and they carry the two Houses of Congress in their two vest pockets. I wouldn't go so far as to say that they influence the courts, but nevertheless you may be sure that the judges have heard of them, and know that they pack a wallop. The overwhelming majority of the American people are with them. Rid your mind of any notion that you will ever see them on their way. They will stick until the last galoot's ashore, and then go on sticking until the shore itself sinks beneath the waves of the sea, and is resolved into its prime, hydrogen, ptomaines and manganese. When you lift on at such colossi you make yourself ridiculous. You'll be 10,000 years old before they let go their hold and fade away.

The pastor's words made a powerful impression on me, and for a couple of weeks I kept off politics and devoted myself to writing about moral science. To this day I often think of them. But maybe I should add something. There were uttered a little less than three years ago, in the forepart of the year 1932, and the chimera that the pastor referred to was not the Brain Trust but the Anti-Saloon League.
It's not what is said but what people think was said that too often is remembered, and even then time distorts meaning and perspective. Mencken was thought to have been demolished that night as the national spokesman for the Republican Party. Even he may have thought so at the time. But what of the substance of Mencken's tasteful criticism of the Administration. How accurate were they as tested by time? How well does the biting humor of what he said stand up to the test of time? In 1921 Mencken agreed that a proliferation of State Government was a waste. In 1933 he questioned the use of a zealous army of New Dealers, and at the Gridiron club he semi-seriously pointed to the third Amendment of the U. S. Constitution which protected the citizenry from the quartering of troops in their homes. That Mencken should point to that provision of the Constitution as the last vestige of rights not yet assailed by the New Deal suggests his profound concern about a Government that not only spent more than it could ever afford (thus milking the cow dry), but also about a government that would trample the rights of its citizens in violation of a principle at least as old as the Petition of Right of 1628. There is no evidence that Mencken had ever read the Petition of Right which was presented to King Charles I by Parliament in 1628, but the language of that Petition was worked into the very fabric of English and American Constitutional law, first as a humble plea that King not quarter soldiers in the homes of his people and then as explicit language in the constitutions written for the states and the nation between 1776 and 1790 that carefully set forth the rights Mencken felt were so forcefully challenged by the New Deal.

The Nation may have thought that H.L.Mencken was on the wrong track in 1934, but was he? Franklin D. Roosevelt may have won the battle of wits late that evening in December 1934, but perhaps H.L. Mencken had the last word after all. Perhaps his concerns about government and the course of unrestrained Federal spending and intrusion to the fabric of American society were not so far off the mark. What solace he might have taken in clipping a 1993 article in the SUN about Presidential Candidate Bill Clinton, headlined "Clinton opens war on waste." What fun he might have had with such quotes as "this government is broke, and we intend to fix it," Mr. Clinton said," or "President [Bush], if you want to know why government doesn't work, look behind you." [Baltimore Sun, September 8, 1993.]

Indeed perhaps it is time to look behind us to H. L. Mencken's speech of December 8, 1934, and to his other humorous attempts to focus the public's attention on the fundamentals of what makes for good government. Perhaps it was not an accident that the only humor in the Constitution that Mencken could find for his speech that night was the third amendment to the Constitution, a right so widely accepted that it has never been tested in the Courts, yet when it was first proposed by Sir Edward Coke in 1628 in the Petition of Right, reflected the reality of the King's troops quartered in private homes. Although perhaps it would be going too far to heap upon the Mencken the praise that that other great Maryland Iconoclast, Luther Martin lavished upon Sir Edward Coke for sacrificing "his vanity, his ambition and his avarice." Those characteristics were so much a part of Mencken's being that no manner of public recognition, improved sales of his publications, or government reform could have ever persuaded him to be otherwise.

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