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Title: Ethics in Service

Author: William H. Taft

Release date: December 9, 2006 [eBook #20066]

Language: English

Credits: Produced by Bryan Ness, Colin Bell and the Online
        Distributed Proofreading Team at http://www.pgdp.net (This
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*** START OF THE PROJECT GUTENBERG EBOOK ETHICS IN SERVICE ***




Produced by Bryan Ness, Colin Bell and the Online
Distributed Proofreading Team at http://www.pgdp.net (This
book was produced from scanned images of public domain
material from the Google Print project.)





ETHICS IN SERVICE

BY
William Howard Taft


Addresses Delivered in the Page Lecture
Series, 1914, before the Senior Class of the
Sheffield Scientific School, Yale University

[Illustration: Yale University Press Crest]

NEW HAVEN: YALE UNIVERSITY PRESS
LONDON: HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS
MDCCCCXV

Copyright, 1915
By Yale University Press

First printed October, 1915, 1000 copies




PREFACE


The legal profession discharges a most important function in a civilized
community, and it seems to me that a discussion of the ethics and ideals
of that profession would come within the purpose of the Page foundation,
which is described by the donor as intended to promote "the ethical side
of business life, including the morals and ethics of public service." I
shall first ask your attention to the history of the profession, which
shows that a paid advocacy is the only practical system, and to the
rules of conduct to which lawyers must be held in order that such a
system shall promote justice. I cannot claim to have any peculiar
knowledge upon this subject other than that derived from a somewhat
brief practice of five years at the Bar, from an experience of eleven
years on the Bench of trial and appellate courts, from a somewhat varied
experience in the responsibility of government, not only in this
country, but in those far-distant isles of the Pacific in which the
United States has been grafting the principles of free government upon a
civilization inherited from Spain.




CONTENTS

                                        PAGE

I.   History of the Profession of Law.    1

II.  Legal Ethics                        19

III. The Executive Power                 37

IV.  The Signs of the Times              65

V.   More Signs of the Times             83




CHAPTER I

HISTORY OF THE PROFESSION OF LAW


It is not too much to say that the profession of the law is more or less
on trial. It is certain that there is a crisis in the life of our
courts, and that a great political issue is being forced upon the
people, for they must decide whether the courts are to continue to
exercise the power they now have, and what character of service they
shall be required to render. Judges are lawyers. They ought to be
trained practitioners and learned in the profession of the law before
they ascend the Bench, and generally they are. Therefore, our courts, as
they are now conducted, and our profession, which is the handmaid of
justice, are necessarily so bound together in our judicial system that
an attack upon the courts is an attack upon our profession, and an
attack upon our profession is equally an attack upon the courts.

We have all noted on the stage and in the current literature the
flippant and sarcastic references to the failures of the administration
of justice, and we are familiar with the sometimes insidious and too
often open impeachments of the courts, which appear in the press and
upon the hustings. They are charged with failure to do justice, with bad
faith, with lack of intelligent sympathy for socially progressive
movements, with a rigid and reactionary obstruction to the movement
toward greater equality of condition, and with a hidebound and
unnecessarily sensitive attitude of mind in respect to the rights of
property. One count that looms large in the wide range of the indictment
against our judicial system is the immoral part that lawyers are said
necessarily to play in the perversion of justice by making the worse
appear the better reason. Such a public agitation and such an issue in
politics lead to a consideration of the fundamental reasons for the
existence of our profession in the past, and a further inquiry as to the
need for it in the future, as preliminary to a discussion of the rules
of conduct that should govern its practice.

There are those who intimate that we can learn nothing from the past.
They don't say so in so many words, but they proceed on the theory that
man, under the elevating influences with which they propose to surround
him, is suddenly to become a different creature, prompted by different
motives. But those of us who have been fortunate in having an education
permeated with an atmosphere of common sense, and an idea of how to
deal with human nature as it is, realize that the world is not to be
reformed tomorrow or in a month or a year or in a century, but that
progress is to be made slowly and that the problems before us are not so
widely different from those which were presented to our ancestors as far
back as the Christian era. Nor can we fail to derive some benefit from a
consideration of such troubles, tribulations and triumphs of our
profession in the past as suggest rules of conduct for lawyers in the
future. I do not mean that we are not to aspire for better things. Nor
do I wish to deny us the happiness of hope for reasonable and real
progress toward higher ideals. I simply insist that we ought not to
ignore the lessons of experience when we deal with conditions as they
are and as everybody who is familiar with them knows them to be.

The three civilizations in which we may most profitably study the growth
and development of the legal profession are the Jewish, the Roman and
the English. Among the Jews, the Mosaic law, which went into the
smallest details of personal life, was the guide to their rule of
action. As it had religious sanction, the high priests became the actual
ministers of justice and the preservation of religion and law was united
in them. Acting as their assistants, and as assessors in the tribunals
of which the high priests were the head, were the Scribes. They were
learned in the law; had a religious and priestly character themselves;
interpreted the Mosaic law with a view to its application to the various
facts and issues which arose; and were in addition the teachers of law.
It was to them that the rabbinical injunction was made "to make the
knowledge of the law neither a crown wherewith to make a show, nor a
spade wherewith to dig." And again it was said, "He who uses the crown
of the law for external aims fades away."

In describing the principles of non-remuneration to the Scribes, the
learned German Professor Schurer says: "In Christ's censures of the
Scribes and Pharisees, their covetousness is a special object of
reproof. Hence, even if their instruction was given gratuitously, they
certainly knew how to compensate themselves in some other way." And it
is because of this evasion of this rule that we find those passages in
the eleventh chapter of Luke, the 46th and 52d verses, which read:

     Verse 46. "And he said, Woe unto you also, ye lawyers! for ye lade
     men with burdens grievous to be borne, and ye yourselves touch not
     the burdens with one of your fingers."

     Verse 52. "Woe unto you, lawyers! for ye have taken away the key of
     knowledge: ye entered not in yourselves, and them that were
     entering in ye hindered."

The line between the judicial and advisory functions of the Hebrew
Scribes was not closely or clearly drawn. They were evidently supposed
to occupy a disinterested position toward those who consulted them and
to be in a sense the associates of the judges. Since the motive which
prompted their study of particular cases was supposed to be only that of
vindicators of general justice, the rules which nominally guided their
action, as announced by the lawgivers, required that their services
should always be gratuitous. But quite naturally their consultation with
private litigants prompted such litigants to influence their view of the
law, and command their skill in debate. And so to evade the rule which
prevented remuneration they established the custom of giving presents in
advance. These presents given in advance to secure the kindly favor of
the Scribes are interesting as the precursors of that institution dear
to every English barrister, and not unknown--nor even objectionable--to
American lawyers, to wit, the Retainer. In fact it was the impossibility
of finding men who could remain judicial in their attitude when the
thought of remuneration moved them to advocate the cause of one of the
litigants, that put the Scribes of those days in an indefensible
position and led to the attacks upon them that we find in the New
Testament.

And so it was in Rome. There the progenitor of the lawyer was first the
priest, the _Pontifex_, mingling judicial and advisory functions, and
then the _patronus_ or the orator, a man of wealth and high standing in
the community, who had gathered about him freed men and Plebeians as his
supporters. The latter were known as his _clientes_, from which term our
word is derived. When one of his clients became involved in a lawsuit,
the _patronus_ appeared to advise the judge--a magistrate acting only as
vindicator of general justice and often not learned in the principles of
law--and was not supposed to receive any compensation. Less than the
_patronus_, but exercising similar functions, was the _advocatus_--who,
though perhaps not so learned in the law, nor so formidable as a person,
was able to assist the _patronus_ before the tribunal on behalf of
others. There was in addition a body of men called "jurist consults,"
learned in the law and able to advise, who came to be recognized as the
members of a select profession in the time of Augustus.

In the year 200 before Christ, the Cincian law was enacted, requiring
that service of the _patronus_ and the advocate should be gratuitous,
but it was soon evaded even as the Jewish laws had been. Again presents
were made to secure the skilled advocacy of men learned in the law and
acute in debate. These gifts like the Hebrew ones were paid in advance
and were called "honorariums," another term which suggests the modern
retainer. Neither an _advocatus_ nor a _patronus_ could sue for such
honorarium at law because it was a violation of law, but once paid, the
honorarium could not be recovered. Cicero boasted that he never violated
the Cincian law, but historians of his period intimate that by secret
loans and testamentary gifts his practice proved to be very profitable.
And it is certain, at least, that many of his contemporaries were made
very rich by professional remuneration. Augustus directed the passage of
another law forbidding compensation to orators and advocates, but it was
disregarded and subsequent emperors contented themselves with fixing
limits for the fees to be charged. In the golden age of the Roman law,
therefore, the payment of the profession became recognized as legitimate
and the profession itself became a definite body with clearly understood
functions.

In England, for two hundred years after the Conquest, the priests were
the only learned men, and they, too, like the Scribes, acted as judges
and advisers of litigants. Even as late as the time of Henry VIII, as we
know, the Keeper of the King's Conscience and the head of the Court of
Equity, was an Ecclesiastic in the formidable person of Cardinal
Woolsey. About the reign of King John, laymen became lawyers, and in
Henry III's time the Pope forbade priests to fit themselves in civil law
or to act as advisers in respect to it. We may properly say that the
profession of the Bar, as a recognized English institution, had its
beginnings in the struggle for individual rights by which the English
race forced the great charter from King John. We find that in the
history of the early English administration of justice, bailiffs,
undersheriffs, clerical attachés and the underlings of the courts had
gone into the business of acting as attorneys, of cheating their
clients, and of stirring up litigation. While statutes were directed
against their abuses, I cannot find that there was any English statute
forbidding lawyers to receive compensation for their services, although
the action of the Pope in forbidding his priests to study and practice
law in England may indicate some such abuses. It is certain that legal
services were not regarded as creating a debt due from the client to the
lawyer who had served him. By statute, now, attorneys and solicitors in
England are entitled to fixed fees for professional services. But in the
case of barristers, down to the present time, while they may demand a
retainer for their services in advance, they still cannot recover by
suit if the services are rendered without receiving it. This may
possibly be derived from the early Roman and Jewish view of the
professional relation and suggests the probability that early in English
history professional services were deemed to be gratuitous.

The grant of Magna Charta by King John, in response to the demand of the
Barons at Runnymede, gave birth to the Bar in its modern character.
Articles 17 and 18 of that instrument provided that Common Pleas should
not follow the court of the King, but should be held in a certain place,
and that trials upon certain writs should not be taken outside of their
proper counties. It provided further that the King or the Chief Justice
should send two justiciaries into each county, four times in the year,
to hold certain assizes within the county, with four knights of the
county, chosen by it, on the day, and at the place appointed. The 45th
article promised that the King would not make Justiciaries, Constables,
or Bailiffs excepting of such as knew the laws of the land and were well
disposed to observe them. The result of this provision by which Common
pleas courts came to be held at Westminster, while regular assizes were
held in the counties, was the establishment of the four Inns of Court,
so-called, Lincoln's Inn, the Inner and the Middle Temple, and Gray's
Inn, together with a number of others known as Chancery Inns, which
have of late years disappeared. Henry III took these Inns under his
especial protection and prohibited the study of law anywhere in London
save in the Inns of Court. They were the homes of the Bar, for within
their walls lawyers had their offices, and there students of the law
received their education. In fact, they may be said to constitute the
foundation of the modern profession of the law in the English-speaking
race.

The Inns of Court were at first an aristocratic institution, and only
men of good blood were permitted to practice in them. Indeed, that was
the case in the early days in Rome. Pliny reports that no one could
become a _jurist consult_, an _advocatus_ or a _patronus_ except he be
of the Patrician class. But soon after the Empire began, this rule broke
down and the Roman Bar became open to all. So, too, in the English Bar
at first admission was controlled by the Benchers or governing bodies of
the Inns of Court and the students were chosen only from good families.
It was probably this that led to their unpopularity and to the
denunciation which they received in Wat Tyler's day, in the fourteenth
century, and from Jack Cade's followers whom Shakespeare makes wish to
kill all the lawyers in the next century. Their exclusive spirit passed
away, however, and while aristocratic class distinctions were rigidly
maintained in English society, the Bar became most democratic through
the avenue to positions of highest influence on the Bench and in
politics which it freely offered to able men from the people. And,
indeed, there is no part of English history that is so full of interest
as the stories of her great lawyers, who, beginning in the humblest
conditions of life, fought their way by real merit into positions of
control in the government and thus gave ability and strength to the
aristocracy of which they became a part.

In the three centuries or more after the establishment of the Inns of
Court, no division appeared in the profession of the law, and it was not
until about 1556 that the profession became separated into attorneys at
law and solicitors in chancery, on the one hand, and barristers on the
other. The former dealt directly with clients and performed the
preliminary work of drafting documents and preparing briefs, while the
latter, the barristers, drafted the pleadings and presented the causes
in court. A similar division of functions prevailed in the Roman Bar. I
shall have occasion later to comment on the advantages and disadvantages
of this division, but this summary reference is sufficient for my
present purpose in tracing the history of the Bar in England. During
this period, after the establishment of the Inns of Court, the
unpopularity of the Bar manifested itself in the enactment of statutes
forbidding the election of lawyers to Parliament. This gave rise to the
noted Parliament known as the "Dunces Parliament," because everybody who
knew anything about the law, and therefore about the framing or the
operation of statutes, was excluded from membership.

In his interesting history of the American Bar, Mr. Charles Warren, of
the Boston Bar, says:

     "Lawyers, as the instruments through which the subtleties and
     iniquities of the Common Law were enforced, were highly unpopular
     as a class in England during the period of Cromwell and Milton."

Milton wrote:

     "Most men are allured to the trade of law, grounding their purposes
     not on the prudent and heavenly contemplation of justice and
     equity, which was never taught them, but on the promising and
     pleasing thoughts of litigious terms, fat contentions and flowing
     fees."

As examples of a lawyer's reputation in London in the seventeenth
century, Mr. Warren cites the titles of the following tracts printed at
that time: "The Downfall of Unjust Lawyers"; "Doomsday Drawing Near
with Thunder and Lightning for Lawyers"; "A Rod for Lawyers who are
Hereby declared Robbers and Deceivers of the Nation"; "Essay where is
Described the Lawyers, Smugglers and Officers Frauds."

I note these facts as I progress to indicate and reinforce my original
statement that the present time is not the only time in the history of
civilization when lawyers have received the condemnation of their fellow
subjects or fellow citizens. Yet not only has the profession survived
such movements but its usefulness has been recognized in succeeding
crises.

I need hardly mention that most of the progress toward individual
liberty in English history was made through the successful struggle of
the lawyers against the assertion of the divine right of Kings and
through the defence of privilege by members of our profession. Lawyers
like Lord Coke and Lord Hale stand out in the profession for their
maintenance of the independence of the judiciary and their support of
the liberties of subjects. The great charters, the Petition of Right,
the Habeas Corpus Act, the Bill of Rights, and the Acts of Settlement,
establishing the judiciary independent of Royal control, were obtained
at the instance of lawyers who knew better than any other class the
absolute necessity for such reforms in the maintenance of free
institutions.

The evolution of the Bar in this country during colonial
times--especially in New England--was a curious counterpart of the
history of the English Bar three centuries before. The founders of New
England came here to escape a persecution for their religious beliefs
and law was closely connected in their minds with the injustices, the
inequalities and the rigid hardships of the common law as administered
by judges appointed and removable at the will of the Tudors and Stuarts.
At that time lawyers exercising their profession were the instruments of
a system that had become non-progressive. They had lost the principles
of justice in technicalities and had become mere political tools in the
hands of tyrants. But in England, the law soon lost its narrowing, hard
and inflexible character through the intervention of courts of equity
and through the genius and broad views of great judges of common law
like Mansfield. It was modified further by the civil law and by the
needs of a developing world commerce, and after the action of the Long
Parliament and the Revolution it was no longer used as an instrument of
tyranny.

In this country, however, the Puritans and the Pilgrims approved of
neither the common law nor the English judicial system, and as lawyers
were only part of that system, they considered the abolition of the
profession from their society as an end devoutly to be wished for and
promptly sought. Among the Pilgrim fathers there was not a single
lawyer, while among the Puritans there were only four or five who had
been educated as lawyers and even they had never practiced. The
consequence was that during the seventeenth century and far into the
eighteenth, lawyers had little place in the social or political
institutions of the colonies. In New England there was a theocracy. The
judges--none of them lawyers--were all either ministers or directly
under the influence of the clergy. A colonial common law grew up among
them, based on a theological reasoning and was really administered
without lawyers. In the Massachusetts body of liberties, it was provided
that a man unfit to plead might employ a person not objectionable to the
Court to plead for him, on condition that he give him no fee or reward.
In 1663 a usual or common attorney was prohibited from sitting in the
general court.

As society progressed, however, as commerce and trade increased, as
wealth grew, as business transactions became more extended and as
learning spread from the clergy to other persons, opportunity and
inducement were furnished for the study of the law, and professional
training became more general. The crying need for a learned and
honorable profession of the law was made manifest by the growth of a
class of advocates and advisers whose influence was most pernicious.
Litigants needed guidance in the presentation of their cases and no
learned profession being available, the underbailiffs, undersheriffs,
clerks and other underlings of the administration of justice began to
practice, without real knowledge. Greedy and lacking in principle, they
developed trickery and stirred up litigation for their own profit, just
as their predecessors had done three hundred years before in England.
Colonial statutes were then passed, forbidding such underlings of the
court to practice law at all. But lawyers were not popular in colonial
days even after the Bar became able and respectable. In fact a bitter
spirit was manifested against lawyers even as late as Shays's Rebellion
after the Revolutionary War.

Between the years 1750 and 1775, more than a hundred and fifty young men
from the colonies were admitted to one of the four Inns of Court and
became educated lawyers with the purpose of entering the profession in
their native colonies. How far the presence of such a class of educated
lawyers through the colonies contributed to the resentment against the
stupidity and injustice of the English colonial policy which brought
about the Revolution, cannot be estimated exactly; but certain it is
that the preparation of the lawyers who were then in their prime appears
to have been Providential interference in behalf of the people of the
United States. Never in history has the profession of the law received
so great a harvest of profound students of the constitutional principles
of government as did our country at this time. Our lawyers signed the
Declaration of Independence, served in the Continental Congress, acted
as delegates to the Constitutional Convention, and met in the various
conventions called by the states to consider the ratification of that
great instrument. They not only knew that common law, but they had
studied closely the political history of Greece and Rome, and were
familiar with the principles of government as set forth by Montesquieu
and Adam Smith.

It was the American Bar that gave to the people of the United States
such lawyers as Alexander Hamilton, John Jay, James Madison, George
Mason, Thomas Jefferson, Patrick Henry, John Adams, James Otis, Samuel
Chase, Samuel Adams, Roger Sherman, Oliver Ellsworth, James Wilson,
Edmund Randolph and many others not less learned and brilliant, to
establish their liberties, frame the limitations of their government and
care for the protection of individual rights. The same Bar furnished a
little later that lawyer and judge, John Marshall, whose interpretation
of the Constitution was as important in its beneficent effect as its
original framing. That Bar not only helped largely in constructing the
ship of state but it was also most instrumental in launching it on a
triumphant and useful course through a century and a quarter. The
profound gratitude of succeeding generations owing to such a Bar ought
never to be dimmed by partisan or misguided diatribes upon lawyers and
judges.




CHAPTER II

LEGAL ETHICS


I have heard the utility of legal ethics denied. It is said that the
rules in legal ethics are the same as the moral rules that govern men in
every branch of society and in every profession--except as there may be
certain conventions as to professional etiquette--and that if a man is
honest, there ought to be no difficulty in his following the right
course in the discharge of his professional duties. If a man is lacking
in probity of character, it is said the discussion of legal ethics will
do him no particular good, because if he is tempted to a crooked path or
an unjust act by his pecuniary interest, he will yield, and neither
lectures on ethics nor the establishment of an ethical code will make
him good; whereas the upright man will either not be so tempted, or
should he be, he will clearly perceive the necessity for resisting the
temptation.

In the course of my consideration of this subject, I looked into a
text-book on moral philosophy and the general system of ethics with the
hope that I might find something there that would suggest, by analogy,
a proper treatment of the subject in hand. I consulted Paulsen's "A
System of Ethics." The analogy between moral philosophy and legal ethics
is not very close, but I found a passage or two bearing on this very
issue, which it seems to me might not be inappropriately quoted here. In
the conclusion of his introduction, Paulsen says:

     "Let me say a word concerning the _practical value_ of ethics. Can
     ethics be a practical science, not only in the sense that it deals
     with practice, but that it influences practice? This was its
     original purpose. 'It is the function of ethics,' says Aristotle,
     'to act, not only to theorize.'"

Paulsen refers to the fact that Schopenhauer takes a different view:

     "All philosophy," he says, "is theoretical. Upon mature reflection
     it ought finally to abandon the old demand that it become
     practical, guide action, and transform character, for here it is
     not dead concepts that decide, but the innermost essence of the
     human being, the demon that guides him. It is as impossible to
     teach virtue as it is to teach genius. It would be as foolish to
     expect our moral systems to produce virtuous characters and saints
     as to expect the science of æsthetics to bring forth poets,
     sculptors and musicians." To this view Paulsen replies:

     "I do not believe that ethics need be so faint-hearted. Its first
     object, it is true, is to understand human strivings and modes of
     conduct, conditions and institutions, as well as their effects upon
     individual and social life. But if knowledge is capable of
     influencing conduct--which Schopenhauer himself would not deny--it
     is hard to understand why the knowledge of ethics alone should be
     fruitless in this respect.... Moral instruction, however, can have
     no practical effect unless there be some agreement concerning the
     nature of the final goal--not a mere verbal agreement, to be sure,
     but one based upon actual feeling.... It will be the business of
     ethics to invite the doubter and the inquirer to assist in the
     common effort to discover fixed principles which shall help the
     judgment to understand the aims and problems of life."

What is here said concerning the usefulness of an investigation of fixed
ethical principles has application to a consideration of what rules of
conduct should prevail in the legal profession. The high social purpose
of the profession, its beneficial function, and the limitations upon its
action that should be self-enforced in order to make the calling an
advantage and not a detriment to the public weal, should be understood.
Indeed, the profession of the law, if it serves its high purpose, and
vindicates its existence, requires a double allegiance from those who
have assumed its obligations, first, a duty toward their clients, and
second, a duty toward the court. And though the two sometimes seem to
conflict, they must be reconciled in the way which will best promote the
effective administration of justice and the peace of society. The path
to be followed in achieving this golden mean in the intricacies of
professional relations is not as manifest as the rule of honesty and
morality in ordinary life. The great problem of government that is never
completely solved and that is changing with changing conditions is how
to reconcile the protection of individual rights, helpful to the pursuit
of happiness and the welfare of society, with the necessary curtailment
of those rights and freedom, by governmental restriction, to achieve the
same object. So the adjustment of the duties of the lawyer toward his
client and toward the court in the interest of society, are not always
easily distinguishable and an attempt to make them clear, therefore, is
justified.

An understanding between the client and his representative that
remuneration is a proper incident to their relation insures a greater
confidence in the activity and devotion of his lawyer to his interest on
the part of the client and stimulates industry and sincere effort on
the part of the lawyer. It is far better that the employment on a
pecuniary basis should be understood by all men, by the courts and by
the parties, than that some secret arrangements should exist unknown to
the court and the opposing party. But it is said that to give to
counsel, skilled, learned and familiar with the arts of advocacy and the
preparation of cases, a pecuniary motive to make the worse appear the
better reason, necessarily leads him to an attempt to influence the
court against a just result. For since one or the other conclusion must
be unjust, one of the paid attorneys arguing the cause before the court
must be arguing for the unjust side and in favor of wrong. Hence, it is
claimed, the system of paid advocacy must in every case tend to an
effort on one side or the other to pervert justice and mislead the
judges into inequity and wrong.

It may be agreed that if there were not certain limitations upon the
means which counsel may take to maintain the justice of their clients'
cause, if they were justified in suborning witnesses, and coaching them
to testify to an unfounded state of facts, if they were permitted to
misstate the evidence after it has been adduced, if it were regarded as
proper for them to accept employment in the prosecution of a cause which
they knew to be brought only for a wrong purpose and without any just
foundation, or if in a civil cause they were retained to make a defence
which they were advised was false and wrong, then it might be that
advocacy under such freedom from limitation would not aid the judges in
avoiding wrong conclusions and unjust judgments. But there are
limitations upon the duty of counsel to their clients. There are also
limitations upon a lawyer's action which he cannot violate without a
breach of his duty to the court of which he is an officer and to the
public interest in the maintenance of the proper administration of
justice. We find, therefore, that the goal to be reached in reference to
the ethical duty of an attorney in the discharge of the functions
assigned to him by the law, is the reconciliation of his duty to his
client, with his duty to the court. To mark out this line in advance is
easier than to determine each special duty in a concrete way, yet
neither is free from difficulty and each requires a calm and clear
understanding of the function of counsel as an instrument in the
machinery of justice. This is the main object of legal ethics. It covers
other fields and is important in those fields, but no other is of such
primary importance.

Courts sit to hear controversies between parties over facts and law.
Rules of procedure are for the purpose of reducing the issues of fact
and law in such controversies to a form as narrow and concrete as
possible. Men who are able to present a clear statement of the evidence
and who are learned in the principles of the law and their application
to the facts as they are developed are in a position to assist the judge
to a quick and thorough understanding of the exact question which he is
to decide. The real enthusiasm of advocacy which is necessarily
developed by the relation of attorney and client would doubtless have a
tendency to mislead the court if exerted in behalf of one side only, but
where both sides are represented, where the same earnestness in the
proceeding of each side is present, it is the best method within human
ken to reach a sound conclusion both as to the facts and as to the law.
No one who has had experience on the Bench in reaching judicial
conclusions and who has thereafter been obliged in an executive position
to reach important, and it may be final, conclusions upon questions
involving both fact and law, can fail to recognize and acknowledge the
powerful influence for justice that honorable and learned members of the
law exert in the causes which they present to a court. The counsel who
argues the losing side of a case contributes quite as much to the
assistance of the court as the successful advocate. The friction of
counsel's argument against counsel's argument develops every phase of
possible error in a conclusion and thereby enables a just, intelligent,
acute and experienced court to see clearly what is the right which
should be embodied in its judgment.

The practical value of argument by paid counsel on both sides is shown
in many ways. In the first place, it is well understood in weighing
legal precedents that there is little authority in the decision of a
court which has been reached without the benefit of the argument of
counsel. In some states, courts are required to answer questions from
the legislature as to the constitutionality of proposed laws. The best
authorities hold that opinions given under such circumstances are merely
advisory, since they lack opposing arguments made by counsel whom the
spirit of professional advocacy arouses to industry in the search for
precedent. They go so far as to say that answers so given should not
conclude the same court in a litigated case arising subsequently. An
earnest and commendable desire to win leads the counsel to search not
only libraries but his own brain for the strongest reasons that he can
summon upon which to base a judgment in behalf of his client. Why is it
that a great Bar makes a great court? Though it may seem a truism, I
repeat, it is because the great Bar furnishes to the court all the
reasons that can possibly be urged in each case and enables it to select
from among all the reasons developed by the ingenuity and intense
interest of men skilled in the law.

Counsel ought to decline to conduct a civil cause or to make a defence
when convinced that it is intended merely to harass the opposite party
or to work oppression. His appearance in court should, therefore, be
deemed equivalent to an assertion on his honor that in his opinion his
client's case is a debatable one and one proper for judicial
determination. He should know that under a proper code of ethics, no
lawyer is obliged to act either as adviser or as advocate for every
person who may wish to become his client; that he has the right to
decline employment, and that each lawyer on his own responsibility must
decide what business he will accept as counsel, what causes he will
bring into court for plaintiffs, and what suits he will contest in court
for defence. The court knows that the responsibility for bringing
questionable suits or for urging questionable defences, is the lawyer's
responsibility. He can not escape it by urging as an excuse that he is
only following his client's instruction. The judge knows that no
honorable lawyer would coach a witness to testify falsely, and that in
dealing with the court each lawyer is required to act with entire candor
and fairness in the statements upon which he invokes its action. The
judge knows that it would not be candid or fair for the lawyer
knowingly to misquote the contents of a paper, the testimony of a
witness, the argument of opposing counsel, the language of a decision,
or the wording of a text-book. He may fairly rely on a lawyer not to
cite a decision that he knows has been overruled, or a statute that he
knows has been repealed. He may properly rely on the counsel's not
asserting a fact that has not been proven.

Yet he knows that lawyers owe entire devotion to the interest of the
client, and warm zeal in the maintenance of his rights and that they
will exert their utmost ability lest anything be taken or be withheld
from him, save by the rules of law, legally applied. He knows that
counsel has the right to proceed in the view that his client is entitled
to the benefit of every remedy and defence authorized by the law of the
land and that the lawyer is expected to assert every such remedy or
defence. But it is steadfastly to be borne in mind that the great trust
to the lawyer is to be formed within and not without the bounds of the
law. The office of a lawyer does not permit, much less does it demand of
him, violation of law or any manner of fraud for any client. He must
obey his own conscience and not that of his client. These limitations
are binding upon the lawyer as a sworn officer of the court, and
compliance with them is the true reconciliation of the primary duty of
fidelity to the client, with the constant and ever present duty owing to
the minister of justice in the person of the judge. These statements of
the duty of the lawyer to the court in the advocacy of causes and in the
presentation of his client's case, are taken from the Code of Legal
Ethics, which was approved by the American Bar Association. I think that
all lawyers and judges will agree that when lawyers live up to them, the
danger of injustice from the enthusiasm, skill or eloquence of their
advocacy is quite remote.

I don't mean to say that lawyers do not differ in the force of their
statements, in their logical faculty, in their method of arranging
arguments, in their fluency and in the cogency with which they present
the cause of their respective clients. Of course the man who is
fortunate enough to engage the abler lawyer enjoys the advantage of
those gifts with which nature has endowed his representative, but that
element of inequality can hardly be eliminated from the administration
of justice. It has more weight in a jury trial than it has before a
court, for the lawyers before a court are matching their acuteness and
learning not alone with the counsel for the other side, but with the
cold scrutiny of a calm, intellectual and judicial mind, trained to
consider argument, and experienced in the elimination of the
irrelevant, the emotional and the illogical.

The jury system, though somewhat crude and not always certain, has
advantages that outweigh its possibility of injustice in the judicial
system of a free government among a free people. It is important that
the people shall have confidence in the courts, and it is important that
they shall feel that they may themselves be a part of the judicial
machinery. The value of popular confidence in the verdict of a jury
selected at random from a community is great enough to offset any
tendency to error that may at times arise from the undue influence of a
jury advocate upholding one side of the controversy before them. If the
jury is misled by the histrionic eloquence of counsel so that it clearly
violates justice in its verdict, the court may always set aside its
decision and give a new trial. Moreover, in any properly adjusted
system, the judge should be able to clear the atmosphere of any false
emotion that counsel may have created. He can remind the jury in his
charge that they are judges, who may not indulge their emotions or their
prejudices. He should follow closely the argument of counsel to the jury
in order that his charge may clear up the evidence by inviting the
attention of the jury to the weakness of proof at critical points of the
cause, or by pointing out either the bias of witnesses or their
opportunity or lack of it for observation, thereby eliminating those
phases of the controversy that the earnestness of counsel may have
seized upon to divert the attention of the jury from the real issue.

I have recently heard an arraignment of our present judicial system in
the trial of causes by a prominent, able and experienced member of the
Boston Bar. (I am glad to call him a friend. I value him highly as
such.) He ascribes what he calls the growing lack of confidence in the
justice and equity of litigation in the courts to the fundamental error
in their procedure. He feels that the procedure now in vogue authorizes
and in fact requires counsel to withhold facts from the court which
would help the cause of justice if they were brought out by his own
statement. To remedy this he suggests that all counsel should be
compelled to disclose any facts communicated to them by their clients
which would require a decision of the case against the clients. He
contends further that the rules of procedure, which exclude hearsay
evidence, and prevent the jury from hearing many facts which business
men regard as important evidence, make it difficult to reach the truth
which is essential to justice.

I set out this view as a possible basis for a discussion of the grounds
for popular criticism of the courts. To require the counsel to disclose
the confidential communications of his client to the very court and jury
which are to pass on the issue which he is making, would end forever the
possibility of any useful relation between lawyer and client. It is
essential for the proper presentation of the client's cause that he
should be able to talk freely with his counsel without fear of
disclosure. This has always been recognized and has acted as a most
salutary restriction on the conduct of counsel. No litigants, or
intending litigants, would employ counsel if the latter were to assume
the duty of extracting from their clients all their innermost thoughts
with a view to revealing them to the court. The useful function of
lawyers is not only to conduct litigation but to avoid it, where
possible, by advising settlement or withholding suit. Thus, any rule
that interfered with the complete disclosure of the client's inmost
thoughts on the issue he presents would seriously obstruct the peace
that is gained for society by the compromises which the counsel is able
to advise.

The objection to the exclusion of hearsay evidence is equally unfounded.
Its uses are said to be threefold, to convince in affairs of the world,
to serve as the basis of action for business men, and to prevent
opportunity for false witness. Yet it is not admissible in a court of
justice to prove or disprove either a cause or a defence. The rules of
evidence have been worked out by centuries of experience of courts in
jury trials, and are admirably adapted to avoid the danger of error as
to fact. I fully agree that in American courts the trial judges have not
been entrusted with as wide discretion in the matter of admitting or
rejecting evidence as they should have, and judgments have been reversed
on technical errors in admitting testimony which should have been
affirmed. As time goes on, however, the rule against hearsay evidence,
instead of losing its force, is demonstrating its usefulness. The error
and injustice that are committed in the public press by inaccurate,
garbled and sometimes false statements of facts are increased in their
injurious effect by the wider publication that newspapers have today,
and the requirement that when a fact is to be proven in court it should
be proven by those who have a personal knowledge of it, is one of the
most wholesome and searching tests of truth that the whole range of
adjective law furnishes. The opportunity for cross-examination, for
finding out the bias of the witness, the advantage or disadvantage of
his point of observation, the accuracy or inaccuracy in his recollection
of the details of what he saw, are all means of reaching the real truth
that the introduction of hearsay evidence would entirely exclude.

It is now more than fifteen years since this country was following with
bated breath the judicial investigation of the charges against Captain
Dreyfus for treason in having sold secrets of the French War Office to
Germany. Under the civil law procedure, there is little, if any,
limitation upon the kind of evidence which can be introduced to sustain
the issue on either side, and the rule against hearsay evidence does not
prevail. The shock given to the whole community of the United States by
the character of evidence received to help the court determine the
Dreyfus issue, was itself enough to show that the confidence of the
public in the justice of the rule against hearsay evidence had grown
rather than diminished with years.

Yet I am far from saying that we may not have improvement in our laws
concerning testimony in court. The protection of those accused of crime
contained in some of our constitutional restrictions may be too great.
The charge against the administration of justice in the present system
is that it is nothing but a game of wits, of cunning, and of
concealment, promoted by the rules of procedure. I think this
characterization is most unjust and most unwise because it aids the
attack on a valuable and indispensable institution without suggesting
any real security for such evils and defects as there are. An experience
of many years in the trial of all sorts of causes as lawyer and judge
and in framing a judicial system convinces me that the present method of
hearing causes is correct. The enthusiastic advocacy of counsel when
they are properly restrained as above suggested, and the rules of
evidence adapted to winnowing out the false from the true, are admirably
adapted to bringing about right results.

It is also asked whether members of the Bar live up to these rules
restraining their enthusiasm and limiting their proper conduct in the
advocacy of their clients' causes. One can reply that counsel differ in
that regard, but that generally such rules are fairly well observed. The
earnestness of advocacy often blinds them to the proprieties and the
requirements of candor and fairness. They fall into the same errors that
their clients do, though with a better knowledge of their duties in this
regard. They share what has been characteristic of our entire people in
the last two decades. The minds of the great majority have been focused
on business success, on the chase for the dollar, where success seems to
have justified some departure from the strict line of propriety or
fairness, so long as it has not brought on criminal prosecution or
public denunciation.

More than this, the tendency of legislatures, too often controlled by
lawyers engaged in active practice, has been to distrust judges and to
take away from them the power to control in the court room, as they do
in the English and Federal courts. This has had a tendency to transfer
to counsel greater discretion in respect to their conduct of cases and
greater opportunity to depart from ethical rules with impunity in the
somewhat reckless spirit of the times. The hampered power of the court
to prevent the misconduct of counsel in many western states has not been
conducive to certainty of justice nor has it been of a character to
strengthen public confidence in just results. We find the bitterest
attacks upon the administration of justice in those jurisdictions in
which the people and the legislatures have themselves laid the
foundation for the very abuses they subsequently criticise by taking
away the power of the judge.




CHAPTER III

THE EXECUTIVE POWER


I have been introduced at a great many places by the exuberant chairman
of a committee who referred to the fact that he was about to introduce a
gentleman who exercised the greatest power in the world. While the power
of the President may be very great as compared with the power of rulers
of other countries, I can testify that when you are exercising it, you
don't think of its extent so much as you do of its limitations. I think
a study of the relative power of the King of England, the President of
France, the Emperor of Germany, the King of Italy, the Emperor of
Austria and the Emperor of Russia might involve a very interesting
investigation. I am not sufficiently familiar with the power of those
executive heads to speak on the subject, though I do know something of
the power of the King of England. In England and all of her colonies
they have a so-called responsible government. The English King is said
to reign and not to rule, while the actual ruler is the Premier, who
combines executive and legislative power by virtue of his position as
head of the controlling party in Parliament. When the legislative
majority fails him, he goes out of office. It is a government
responsible both for legislation and for executive work.

With us, as you know, the President is a permanent officer for four
years. It is quite possible that he may be elected as President at the
same time that a Congress hostile to him is put into power. Such was the
case when Mr. Hayes was elected, and indeed when Mr. Cleveland was first
elected there was a majority against him in the Senate. It happens more
frequently, however, that at the end of two years a majority of the
opposing party is elected to a Congress at the mid-term election. Our
method has been criticised as rigid and unresponsive to change in
popular opinion, but I venture to think that it has some advantages over
the English one. It may be good for a country to have an occasional rest
from legislation, to let it digest what reformers have already gotten on
its statute book, and the period when the President differs from
Congress offers such an opportunity for test and rest. We have rests in
music, which are necessary to a proper composition, and I do not see why
we should not have rests in politics.

I think, however, that we might advantageously give greater power to the
President in the matter of legislation. One of the difficulties about a
Congress--I say it with deference to that body--is that it does not know
enough about the executive facts which ought to control legislation in
the course of an efficient government. The introduction of cabinet
officers on the floor of the House and the floor of the Senate to urge
legislation on the one hand, and to point out the defects of proposed
legislation, on the other hand, would furnish the necessary element.
This would, of course, make it requisite that cabinet officers should be
able to look after themselves on their feet. They would have to know
their Department and be ready to answer such questions as are put to
cabinet officers on the floor of Parliament.

President Wilson has inaugurated the policy of delivering his message to
Congress personally. I think that is a good innovation. A Democrat could
have made it, not a Republican. Washington had to go to Congress, so had
Adams, but when Jefferson came in he said, "No, that is monarchical, and
I will just write a letter to Congress," and so he did. Washington went
once to the Senate and attempted to have the Senate concur with him in a
treaty with the Indians. He took with him General Knox, who had
frequently dealt with Indians. John Quincy Adams, in his diary,
describes what happened as he learned it from a member of the Senate at
that time. He says that in the conference, Washington found that every
member of the Senate thought he knew more about the Indian treaty than
General Knox. Whereupon, he, the father of our country, who has been
represented as a model in every way, proved that he was no such "sissy"
as some of his historians would like to make him out. His character was
one which develops into grand proportions when you study it, but he was
no mere steel engraving of copy-book perfection. When he got through
with that particular session, he turned to Knox as he went out, and said
he would be damned if he would come to the Senate again. Now I do not
approve of profanity generally, but somehow or other I rather like that
story because it lets in a little light on Washington and shows he was a
man with good red blood.

The first power of the President that I wish to consider is the veto
power. The English King has it, but never exercises it, i.e., he has not
exercised it for two hundred years. If he attempted to exercise it under
the present British Constitution, he would shake the throne and should
he try it a second time he might not have a throne under him. The
President, however, has the veto power under a provision of the
Constitution. When he decides to differ with both Houses, certain
members of demagogic tendency rise to say that the President is
exercising a royal prerogative power, or that he is going back to the
time of Imperial Rome. This might frighten an inexperienced man, but in
reality it is mere bluster. As a matter of fact, the President
represents the people in a much wider sense than any particular
Congressional orator, for he was elected by all the people, while the
Congressman was chosen by only one district. The Constitution says that
if he disapproves of an act, he shall send it back with his objections
and it enjoins upon him the duty of examining every act and every bill
that comes to him, to see whether it ought to pass. He vetoes,
therefore, in his representative capacity, with legislative and
suspensive, but not absolute, power. A vetoed act is returned to the
House, and if its supporters can succeed in getting a two-thirds
majority in each House, the bill can still pass over his veto. This
rarely happens, however, for the President can usually give reasons good
enough to command the vote of at least the one-third of one House that
is necessary to sustain his veto.

The second great control exercised by the President is that of
Commander-in-Chief. This includes, first of all, his command over the
army, which is complete. He can send the army where he chooses and he
can call out the state militia to repel invasion, to suppress
insurrection and to execute the laws, if the army or militia be
necessary. Of that he alone is the judge. Early in our history certain
state judges thought that the commander of the militia in each state
should pass on the question as to whether an emergency had arisen which
would justify the President in calling out the militia, but that was one
hundred years ago.

To illustrate our practice now in regard to the execution of laws with
the aid of the army, there is one very striking instance which occurred
within my memory. Debs organized the American Railway Union in order to
take the American people by the throat and say to them: "You shall not
have any milk for your babies, you shall not have any food, you shall
not have anything. I am going to stop every railroad in the country
until you come with me and make Pullman pay his men what I think they
ought to have, and what they think they ought to have." That was a
secondary boycott, which Mr. Cleveland said ought to be suppressed.
Since it involved the stoppage of mails and interstate commerce, the
United States courts issued injunctions to prevent the malcontents from
continuing their work of obstruction. When Debs's Union defied the court
injunction, the President sent General Miles out to Chicago with a
military force to suppress that obstruction to the United States laws.

At this Governor Altgeld protested. "I can take care of this; I have
not asked you to bring these men in here. Under the Constitution it is
necessary for the governor or legislature to request the President to
send troops in to suppress domestic insurrection which the governor of
the state cannot control."

To which Mr. Cleveland and Mr. Olney answered: "That is true where the
insurrection does not relate to the United States laws, but where there
is an obstruction of the United States laws, the Supreme Court has
decided repeatedly that the President is dealing, not with state
territory, but with the territory of the United States. He can execute
the laws of the United States on every foot of United States soil and
have the whole army enforce them." And so he did.

Another indirect power of the President as Commander-in-Chief was
exhibited in a most remarkable way during the Spanish War. We took over
successively Cuba, Porto Rico and the Philippines, but for three years
after we had annexed the Philippines, Congress took no action in regard
to any of them. They formed territory ceded to us by virtue of the
Treaty of Paris and Congress thought the Philippines were a poker that
was a little bit hot for it to handle. The responsibility for them,
therefore, fell upon the President, and as Commander-in-Chief he
introduced a quasi-civil government, appointing a civil governor and
commission, whom he authorized to pass laws--subject to veto of the
Secretary of War--and to enforce them. He thus carried on a complete
government in Porto Rico, Cuba and the Philippines under his power as
Commander-in-Chief until Congress became sufficiently advised to enact
needed legislation for their government. Cuba was turned over to her
people, a Republic was set going. Then after several years,
circumstances made it necessary for us to step in and take Cuba again.
They had gotten into a row, as they frequently do in those
Latin-American countries, and they were having a revolution.

When we first let Cuba go, we made what was called the Platt Amendment
to the Cuban Treaty, suggested by Senator Platt of this state. That
amendment provided for the restoration of order by the United States
whenever law and order were disturbed and whenever life, liberty and
property were not secure. Mr. Roosevelt, therefore, sent me down to Cuba
with Mr. Bacon to see if we could not adjust the matter. When we
arrived, we found twenty thousand revolutionist troops outside the city
of Havana. President Palma had been so certain of peace that he had made
no provision to suppress insurrections, and these troops were just about
ready to march into Havana when I got there. I went out to stay at the
house of the American Minister in a suburb just between the lines, and
we did what we could to compose the situation. In those countries when
they have a revolution, the first thing they do is to elect generals.
The next thing they do is to determine what the uniform of the generals
shall be, and then they get the guns and last of all they organize.
President Palma became discouraged and resigned so that I had to
proclaim myself Provisional Governor of Cuba. The Platt Amendment said
that the United States could go into Cuba to preserve order; but the
question was whether the President had the authority to go in without
authorization by a resolution of Congress. I always thought that he had
and Congress seemed to agree to it. So we went in, established a
provisional government, passed a good election law, held an election
and, at the end of a year, turned back the government to the Cubans,
where it now is.

The President has not the power to declare war. Congress has that power;
but if a foreign nation invades our country, the President must, without
awaiting such declaration, resist and use the army and navy for that
purpose. It is, therefore, possible for us to actually get into war
before Congress makes a formal declaration. That is what happened in the
Civil War. The Southern states seceded and Mr. Lincoln had war on his
hands before Congress could declare it. The President thereupon declared
a blockade of the Southern ports and the question then came up as to
whether it was a legal blockade so that prizes might be taken as in a
naval war. Our war vessels had captured merchant vessels trying to run
the blockade, had taken them into prize courts, and had sold them there,
distributing the proceeds among themselves. The owners fought the
proceedings and these suits, called "The Prize Cases," were carried to
the Supreme Court of the United States. The court held that while
Congress under the Constitution had sole power to declare war,
nevertheless, actual war might follow with all its legal consequences if
a nation invaded our country or if such an insurrection arose as that
which had just taken place in the Civil War.

Let me give you an example of presidential authority exercised in
pursuance of his constitutional duty to execute the laws even when
Congress passes no law on the subject-matter. The Canal Zone was
acquired by a treaty with Panama that followed its recognition--a
recognition made with such promptness that it has since attracted some
criticism. Congress passed a law that the President should have power to
govern that country for a year, but failed to renew the grant of power.
The question arose then as to what was to be done in the Canal Zone. A
prior act covering the building of the Panama Canal required the
President to build it through a commission, but that was all. He might
build it anywhere, either in Nicaragua or Panama, but he had no express
governmental power over the Canal territory. He had, however, to see
that the laws were executed, which meant that he must look after every
piece of territory belonging to the United States and safeguard it in
the interest of the people. It seemed to us, therefore, to be within the
executive authority, until Congress should act, to continue the
government of the Zone, maintain courts, execute men who committed
murder, and discharge all the political functions required to constitute
a law-abiding community.

Let me give you another instance of the President's exercising a law
that Congress did not pass. Sarah Althea Hill thought she was married to
Senator Sharon, at least she said she thought so. Senator Sharon was a
rich man. She wished to share it. So she brought in the State courts of
California a suit for divorce and alimony against the senator and
exhibited a letter purporting to have been written by the senator
admitting the marriage. She got into a great deal of litigation and
employed as her lawyer Judge Terry. Senator Sharon then brought suit in
the United States Court in California to have this letter declared a
forgery and delivered up to him. Justice Field of the United States
Supreme Court heard the case on the circuit. Judge Terry, who had been
on the Supreme Court of California in its early days and had served on
the same court with Judge Stephen J. Field, was a noted duelist and was
known to have killed one man in a duel. Mr. Justice Field had been
appointed from the California court to be a Supreme Justice of the
United States by Mr. Lincoln during the war. Pending the litigation,
Senator Sharon died and soon thereafter the association of Miss Hill and
Judge Terry as client and counsel developed into a warmer relation and
they became man and wife. She was a very violent woman, as Judge Terry
was a violent man, and made threatening demonstrations in court when
Justice Field gave the judgment against her. Justice Field sentenced
Mrs. Terry to thirty days' imprisonment for contempt because in her fury
she insulted the Court and attempted to commit violence upon the Judge.
The bitterness of feeling between the Terrys and Justice Field was
really heightened by the old association between Judge Terry and Justice
Field as judicial colleagues. The Terrys frequently declared their
intention, when occasion offered, to kill Judge Field. Word of this came
to the Attorney-General, then W. H. H. Miller, in Mr. Harrison's
administration. He notified the United States Marshal to direct a
deputy to follow Justice Field in his Circuit work and protect him
against any threatened attack.

As Justice Field was proceeding north from Los Angeles to San Francisco
to hold court there, he got out for breakfast at Fresno. Unfortunately
the Terrys reached the same station on another train at the same time.
Justice Field and Neagle, the deputy marshal, got out of the train, went
into the restaurant and sat down. When Judge and Mrs. Terry came in and
Mrs. Terry saw Justice Field, she ran out to the car to get a revolver
she had left in her satchel by an oversight. In the meantime Judge Terry
went up to Justice Field, denounced him and struck him from behind.
Thereupon Neagle arose, saying, "I am an officer, keep off," but Judge
Terry continued to assault Justice Field. Neagle said he thought Judge
Terry reached for a knife. At any rate, Neagle shot, and Terry fell dead
at the feet of Justice Field.

Neagle was at once indicted by a state jury for murder. He went into the
Federal Court and got a writ of _habeas corpus_, asking to be released
on the ground that he was discharging a duty under the government of the
United States. Judge Sawyer granted the writ and released Neagle. The
state of California took the case to the Supreme Court of the United
States. The court divided, with the Chief Justice and Justice Lamar
dissenting. The majority of the court held, Mr. Justice Miller
pronouncing the judgment, that the President was justified by the duty
imposed upon him by the Constitution to see that the laws were
faithfully executed. Although there was no specific law on the statute
book conferring upon the President authority to direct Neagle to take
the action he did, there was an implied obligation on the part of the
government to protect its judges in discharging their duty from the
violence of disappointed litigants, and this obligation was a law which
it was the duty of the President to see executed. The President,
therefore, has the right through his Attorney-General, who is the finger
of his hand, to direct an officer of the United States to protect to the
uttermost a justice while on judicial duty, even if it necessitates
killing an assailant.

I cannot tell you all the officers of the United States--internal
revenue men, customs men, post-office men, immigrant inspectors, public
land men, reclamation men, marine hospital men--certainly 150,000 in
number, who are subject to the direction of the President. In the
executive work under this head, he wields a most far-reaching power in
the interpretation of Congressional acts. A great many statutes never
come before the court. The President or his officers for him have
finally to decide what a statute means when it directs them to do
something. Many statutes contain a provision that under that statute,
regulations must be made by executive officers in order to facilitate
their enforcement. This is quasi-legislative work. The situation in
regard to the present income tax illustrates the necessity for
regulations. You will recognize that regulations adopted by the
President and his subordinates are sometimes necessary to straighten out
law. If you desire to study a maze or look into a labyrinth, I commend
you to the present income tax law.

Then often Congress relies upon the discretion of the President to
accomplish such tremendous things as in the Panama Canal. It directed
the President to build the Canal. It remained for him to appoint all the
persons engaged in the work, and he became responsible for every one of
them. Another notable instance of the reliance of Congress upon the
President occurred in the Spanish War, when it appropriated $50,000,000
to be allotted at his discretion.

Yet it seems to me that a curtailment of the small duties now imposed on
the President might well be made. The number of his appointments, for
instance, might well be lessened. The President ought, of course, to
appoint his Cabinet, the Supreme Court, ambassadors, ministers,
generals and admirals, but beyond that I think appointments ought to be
made without bothering the President about them. We have introduced a
Civil Service reform system with a Civil Service Commission, and I trust
that the matter of taking these subordinate officers out of politics
will be pressed generally as a much-needed reform.

Is the position occupied by a postmaster of sufficient importance to
justify the President in bothering with his appointment when he has such
a problem as the Mexican situation on his hands? We are coming to the
time when there are great complicated duties to perform under the
government. We have departed from the Jefferson view, and we now think
that the government can do a great many things helpfully, provided it
has experts to do them. Is it not entitled to the best men to do these
things? Yet how are experts obtainable unless they are selected to
permanent positions by those who are looking for experts and not looking
for men who exercise influence at the polls?

I recommended to Congress four times, that is, in each annual message,
that it enable me to put these men under the Civil Service law and in
the classified service; but it did not do it, and why? Because all local
officers now have to be confirmed by the Senate. That power of
confirmation gives a hold on the Executive and each Senator and each
Congressman wants to name the postmaster and the other local officers in
his district or state. The consequence is that Congressmen do not wish
the Senate to lose the power of confirmation. They believe this personal
patronage to be a means of perpetuating their own tenure. As a matter of
fact, this is not the case. Few men help themselves politically in the
long run through the use of patronage. It is a boomerang. Some few
manage to make it useful, but generally when a man secures an
appointment for a henchman, as the saying is in Washington--and it is a
very true one--he makes one ingrate and twenty enemies. The result is
that after he has served a term or two, he begins to find those aspiring
constituents, whom he did not appoint, rising like snakeheads to strike
him down.

Therefore, if Congressmen really had wisdom and looked ahead, they would
rid themselves of responsibility for these appointments, would abolish
the necessity for confirmation by the Senate, and would thus enable the
President to classify them under the Civil Service law and merit system.
But we have made progress and I am not discouraged about it. Ultimately
we shall get the Senate to consent to give up that power, though at
present the Democratic majority in the two Houses is fierce against such
a suggestion, and quite naturally so, for, while the Republican party
has been in control for sixteen years, the trend into office has been
Republican and the Democrats wish to change it. That is human nature,
and I am merely regretting, not condemning it. Perhaps if the
Republicans come back into power after four years, they will not be
quite so hungry as the Democrats were after sixteen years of famine, and
we may have a little less wolfish desire to get at the offices.

The time taken up in the consideration of minor appointments by
executive officers, the President and Cabinet officers especially, is a
great waste and no one can know the nervous vitality that can be
expended upon them until he has had actual experience.

Of course they lead to some amusing experiences, for there is nothing
which gives such a chance for the play of human impulse as
office-seeking. I remember having a lady come into my office when I was
Secretary of War. Her boy had passed the examination for West Point, but
a medical board had examined him and found that his chest did not
measure enough for his height. She came in to urge me to waive that
defect. I explained to her the necessity for great care in the
appointment of army officers, because if, after being commissioned, they
had any organic trouble, they were disqualified for further discharge of
their duty, and would be retired on three-fourths pay without rendering
any real service to the government. She listened with gloom to my
explanation, and asked me to look at the papers. I took them in her
presence and went through them. I found that the young man had, on the
basis of 100, made 93 per cent in all his mental examinations. That
isn't done by every candidate for West Point, and there is no reason why
we should not have brains as well as brawn in army officers. So I looked
again at the measurements and concluded he was a man we ought not to
lose. I told her: "Madam, I did not have so much difficulty in filling
out my chest measurement. Your boy shows such general intelligence that
I have no doubt he will have sense enough to pursue a regimen that will
make him sufficiently enlarge his chest measurement, so I am going to
waive the objection and let him in." She had not expected so quick a
decision in her favor, and was taken back a little. She hesitated a
minute, and then, with an angelic smile, she said to me, "Mr. Secretary,
you are not nearly so fat as they say you are."

Then I had another experience. A lady in Washington, whose husband had
some political influence, came and labored with me for six weeks or more
to appoint her son to a position. She secured the aid of Senators and
Congressmen in formidable number and came with them to see that they
spoke with emphasis. The place was one requiring technical
qualification, and following the recommendation of the head of the
Bureau, I appointed somebody else. I then received a letter from the
mother, saying that I was most ungrateful, since I declined to make her
a happy woman as I could have done by a turn of my hand. She complained
further that she had labored with her state delegation and got all the
votes for an administration bill in which I was especially interested
and this was the way I had rewarded her.

When you get a letter like that, the first thing you do is to think how
you can be severe with a person who has committed an impropriety, or
even been a little impertinent. Then you may compose an answer. Then if
you are wise, you will put the letter in a drawer and lock the drawer.
Take it out in the course of two days--such communications will always
bear two days' delay in answering--and when you take it out after that
interval, you will not send it. That is just the course I took. After
that, I sat down and wrote her just as polite a letter as I could,
telling her I realized a mother's disappointment under such
circumstances, but that really the appointment was not left to my mere
personal preference, that I had to select a man with technical
qualifications, and had, therefore, to follow the recommendation of the
head of the Bureau. I expressed the hope that her son would go on to
accomplish what she had hoped for him in the position which he then had.
That mollified her and she wrote me a note saying she was sorry she had
written as she had.

But the appointment I sent in was not confirmed at once and after an
interval I received a letter which purported to come from her husband,
though it was in the same handwriting as all the others. I was therein
advised that, due to the nervous prostration that had followed her
disappointment in this case, she had to take to her bed and had
developed a most serious case of cancer of the stomach. Would I not
restore her to health by withdrawing the first name and replacing it by
her son's? I had to write another letter, this one to the husband, to
say that I hoped the diagnosis would prove to be inaccurate, that I
sympathized with him in the sorrow he must have in the serious illness
of his wife, but that it was impossible to withdraw the name sent in.
The man whom I appointed was confirmed, and within two days after I
received that letter, we gave a musicale at the White House. The first
two people to greet Mrs. Taft and me were this husband and wife, though
the wife had so recently been _in articulo mortis_.

Another great power of the President is his control of our foreign
relations. In domestic matters, the Federal government shares every
field, executive, judicial and legislative, with the states, but in
foreign affairs, the whole governmental control is with the President,
the Senate and Congress. The states have nothing to do with it. The
President initiates a treaty and the Senate confirms it. The Senate,
however, cannot initiate a treaty, the President alone can do that.
Congress' powers to declare war and regulate our foreign commerce are
its chief powers in respect to our foreign relations. So that, except in
ratifying treaties, in regulating commerce and in declaring war, the
President guides our whole foreign policy.

Through the State Department he conducts all negotiation and
correspondence with other governments and according to the Constitution
he receives ambassadors and foreign ministers. Now you might possibly
think that that meant only that he must have a flunky at the White House
to take their cards--but it means a good deal more. He appoints
ambassadors and ministers to other countries and instructs them. He
receives the diplomatic representatives from other countries and does
business with them. He construes treaties and asserts the rights of our
government and our citizens under them. He considers and decides the
rights of other governments and their subjects in a way which
practically binds our government and people. And in order to receive
ambassadors and ministers, he must determine whether they have been
properly accredited, so that they have the proper authority to act for
the country they claim to represent.

When there is a dispute as to what person is the chief executive of a
foreign country and therefore entitled to send an ambassador or
minister, the President must decide it. In other words, he alone can
exercise the power of recognition. How important a power this is, we may
know from our recent experiences with Mexico, for President Wilson, by
withholding recognition from General Huerta, was able to render his
longer tenure as chief executive impossible.

In our foreign relations it is often the President's duty to formulate
the national claim of sovereignty over territory whose ownership is in
dispute. This is a political question and his decision or claim in
regard to it is taken as final by the Supreme Court.

In the Fur-Seal Controversy, Mr. Blaine took the position that our
jurisdiction reached out over the Bering Sea. The question was contested
in the Supreme Court by the British and the Canadian governments. The
Supreme Court said: "We cannot determine this. It is a political
question and must, therefore, be decided by the President through his
Secretary of State." We then submitted the issue to an international
tribunal, and the decision was against us.

Another great power of the President is the power of pardons and
reprieves. This is not to be determined by rules of law nor indeed by
absolute rules of any kind and must, therefore, be wielded skilfully
lest it destroy the prestige and supremacy of law. Sometimes one is
deceived. I was. Two men were brought before me, both of whom were
represented as dying. When a convict is near his end, it has been the
custom to send him home to die. So, after having all the surgeons in the
War Department examine them to see that the statements made to me about
them were correct, I exercised the pardoning power in their favor. Well,
one of them kept his contract and died, but the other seems to be one of
the healthiest men in the community today.

The President is also the titular head of a party and ought to have a
large influence in legislation. He is made responsible to the country
for his party's majority in Congress, and does thereby have some voice
in legislation. Some Presidents have more control than others, but all
Presidents find as the patronage is distributed, and as the term goes
on, that the influence and power that they have over legislation rapidly
diminishes. In fact, when there are no more offices to distribute and
somebody else comes into view as the next President, the authority of
the incumbent becomes strictly limited to his constitutional functions.
All of this tends to show that a President who seeks legislative changes
and reforms should begin early.

The people think that the Presidency gives a man an opportunity to make
a lot of personal appointments. I can recall some of these personal
appointments, but I tell you they are very few. There are certain
political obligations involving the recognition of party leaders which
he has to take into consideration with reference to some appointments.
But when it comes to purely personal appointments, one can count them on
the fingers of one hand. It is well that it is so. A President with his
proper sense of duty finds many men in office whom he ought to let
continue and the question of friendship for others can play no part in
displacing them.

The social influence of the President in Washington is not much. I think
perhaps it might be useful if it were a little more, for the question of
precedence, which makes everybody outside of Washington laugh, sometimes
becomes a very serious matter. As the French ambassador once said, when
there are three hundred people, they cannot all go through the door at
one time. Somebody has to go first, therefore it is most important to
fix who that somebody shall be. But nobody in Washington has the
authority to say. If only the army and navy were concerned, the matter
would be easy enough, because they are controlled by the President and
he can issue orders that they must respect, but with civil officers he
has no such authority. Congress could, of course, provide rules of
social and official precedence, either by legislation or executive
order, as is done in all European countries. But here such a proposal
would be laughed out of Congressional halls, though it would be a wise
measure to prevent confusion, unnecessary friction and heartburning.

The very men who make most fun of such matters and profess to despise
their consideration are in actual practice the most unreasonable as to
their own places at functions. The House of Representatives is supposed
to be the embodiment of democracy and contempt for social distinctions,
yet of all the people in the world who have made a fuss over the matter
of precedence, speakers of the House of Representatives have been the
most insistent on their proper place at official dinners. The speaker
says: "I represent the body of the people who come from the soil and the
people who make this country. Therefore, I decline to sit after the
presiding officer of the Senate." An ambassador says: "I am the personal
representative of my sovereign. If he were here in Washington, he would
sit next to the President." The Cabinet officer says: "The President is
the head. I am connected with him as Secretary of War, the Cabinet is a
small body and the Senate is a large body. Therefore, we are bigger men
than the Senate and we ought to have precedence." In fact, the head of a
scientific bureau came in to see me one day and said, "I think you ought
to put me after the Supreme Court." He even filed a brief with me on the
subject, to the effect that "I run an independent department. The judges
represent the judicial branch, and the President the executive branch,
and the heads of the two Houses, the legislative branch, while I
represent the scientific branch." Indeed, the matter of procedure is not
such a joke as it seems outside. It is not so important as to who comes
first as that their order of precedence should be once determined.

The President is made responsible for everything, especially for hard
times. Of course his supporters claim credit for good crops, so that
perhaps it is not so unfair to charge him with responsibility for bad
crops and for everything else that happens wrong during his term. Every
President strives to do the best he can for the country. It is a great
task, one of the heaviest in the world. A man does not really know,
until he gets out of the office, what the strain is. And, therefore,
knowing that he is struggling to do the best he can, while he may differ
with you, while he may do things that seem to you absurd, consider that
he is there, elected by the American people, as your representative, and
remember that while he is in office he is entitled to your respect. Now,
don't be flippant in regard to him. Don't think it shows you to be a big
man to criticise him or speak contemptuously of him. You may differ with
his policy, but always maintain a profound respect for a man who
represents the majesty and the sovereignty of the American people.




CHAPTER IV

THE SIGNS OF THE TIMES


We are living at a time when political and social conditions are a bit
chaotic, and it is a little difficult to distinguish between the
symptoms that are ephemeral and those which are permanent. What we must
do is to try to make things better and to save from the past the things
which are good. It is often true that a movement that is excessive and
destructive in one way, ends by being the basis of great progress after
reaction from its excesses has left what is valuable in it.

Our American Revolution, which we are accustomed to regard as quite
important--and it was for us--did not really represent a great world
change such as was represented in the French Revolution. It grew out of
a very unwise, selfish colonial policy on the part of Great Britain. We
were right and wise in putting it through, and our ancestors
demonstrated great courage and great tenacity in fighting it. It
certainly gave us independence and an opportunity for expansion that we
should not otherwise have had. But the pap that we have been brought up
on with respect to the tremendous outrages which Great Britain
inflicted on us was sweetened a little bit. If you would see the other
side, read Trevelyan's "American Revolution." In this you will see that
while the right was certainly with us, we were not quite so much
outraged as it seemed in our earlier childhood studies. The American
Revolution did as much good for England as it did for us, because it
taught her proper colonial policy, and today the colonial policy of
Great Britain is one of the greatest instances of statesmanship in
history. In her dealing with Canada, with Australia and with the South
African Republic, she has given them such self-government that, far from
wishing to sever the bond with the mother country, they cherish it.

The French Revolution indicated a very much more important movement
among peoples. It developed awful excesses. The wild declarations and
extremes practiced by the Committee of Safety in the French Revolution
were revolting to any man affected by ordinary humane considerations and
had in fact a remarkable effect in strengthening conservatism in
England. Indeed, they caused the issue and the bitter personal quarrel
between the one-time warm associates, Burke and Fox. The natural result
of those excesses was to be expected. It took the shape of the man on
horseback. The imperial control of Napoleon led the French people into
a military waste of strength which has affected the French race even
down to the present time. Yet Napoleon, by building up his Code
Napoleon, and by spreading over Europe the idea that the people were the
basis of government, profoundly affected political conceptions and
conditions. There followed a reaction in the Holy Alliance, which was a
combination to maintain the Divine Right of Kings, and then the spirit
of the French Revolution reasserted itself in 1830. In fact from then on
until now the movement toward more and more popular government has gone
on continuously in France, Germany, Austria and elsewhere. It is
spreading today even more widely than it ever did before, and every
country, even Russia, has to count the cost with respect to the will of
the people.

When I went through Russia after the Russian-Japanese War, I met one of
the leading diplomats of that country who greeted me with, "Well, how do
you like it?" "How do I like what?" I asked. "How do you like helping
Japan to lick Russia?" Those were the homely expressions that he used.
To which I replied, "We did not help Japan to lick Russia." "But," he
said, "you did in effect. Your people and your press sympathized and
they expressed the kindly sympathy that counts for so much at such a
time." "The government cannot control our people," I responded. "They
think for themselves and express themselves as they see fit. We cannot
control the press in our country, but we have observed all the laws of
neutrality with respect to the war, and if some of the people expressed
themselves in favor of Japan, it was only because they were in favor of
the under dog in the fight." "Why did you give up?" I inquired further;
"You were getting stronger and stronger." "Yes," he said, "we had to
fight at the end of a 5,000-mile, single-track railway, but handicapped
as we were, we got our forces out there ready to fight and we could have
gone in and beaten the Japanese." "Why didn't you?" I asked. "Why did
you make peace?" "The trouble is," he explained, "we were living on a
volcano at home. Our people were opposed to the war, and we did not go
on, lest the throne would be a forfeit." This is only an indication that
even in the country that is supposed to represent the most absolute of
empires, the people are manifesting a control. The Douma was given too
much power at first, so that universal suffrage was necessarily a
failure in the condition of the people at that time. But the Douma now
is gradually acquiring useful power and in the course of the next
twenty-five or fifty years Russia will probably have a popular
constitutional government. We have had democracy in this country for
one hundred and twenty-five years, or indeed for two hundred and
twenty-five years. It is now proposed to have more democracy to supply
the present defects of our existing democracy. This is one phase of the
present situation that I wish to discuss. Another is the spread of the
fraternal spirit, the desire of one to help another, the actual
improvement and increase in the brotherhood of man which we are seeing
in society, and a third is trades-unionism, its essence and what is to
be hoped for or feared from it.

If you will read a book like Chamberlain on "The Foundations of the
Nineteenth Century," especially the preface, which is written by a man
who uses a better style than Chamberlain, you will find that he attempts
to summarize the progress of the previous eighteen centuries as a
predicate for the strides of human civilization in the nineteenth. As he
minimizes the effect of one century and then another, you note how few
centuries, in his judgment, play any part in the onward march, and you
are discouraged as to what one man can do to help along any movement
that shall really be world-wide or permanent.

The effect is much the same upon your personal hope of accomplishing
some good in the world as when a professor of astronomy takes you over
to the observatory, lets you look through the telescope, tells you that
light takes something like eight minutes to come the 95,000,000 miles
from the sun to the earth, and then says that the sun after all is a
pretty poor thing considered in connection with what other suns there
are. When you find furthermore that some stars are so far distant that
the light you are now receiving on your retina started from them
centuries ago, you say to yourself: "Well, what's the use? If we are
such atoms and so unimportant in the general result, what's the use?"

Still if you study Chamberlain's history of the eighteen centuries you
will find that, after all, the men who were real factors in the world
civilization were the geniuses who were able to interpret and enforce
what was inchoate in the minds of all but had no definite expression and
led to no useful action. Each atom counts something, two make a molecule
and the world is made up of them--at least it was in my college days.
Therefore, what we are here for is to make the best possible effort to
help along the general weal, and it is no excuse, because we cannot play
a large part, that we should play no part at all and should feel no
sense of responsibility for what we can do.

What then of conditions of civilization in our country in the last
half-century? The Civil War grew out of a great moral and social issue.
It was a moral issue on the part of the North and a social issue on the
part of the South. Material considerations were subordinated. After the
war we had a pretty hard time in getting over its immediate effects. The
panic of 1873, which prostrated all business, was the result of the
excesses of the war, the overissue of legal tender and the feverish,
unhealthy expansion that followed. In 1878, we resumed specie payments.
I presume no country in the world ever showed such an enormous expansion
and such material growth as ours between 1878 and 1907. It was shown in
the useful inventions. Steam had been invented before, but it was
increased in its uses, and electricity was made the tool of man. Now it
is easy to follow that kind of material expansion. We can count the
growth in wealth and trace the effect of it on the people, for they all
got into the chase for the dollar.

In the West, the pioneer spirit was so strong that they were glad to
have anything in the way of development at any cost. Counties would
issue railroad bonds to build railroads and would give the bonds to the
railroads. They would give franchises of all sorts and do everything
that they thought would help open the country. There was a most
substantial increase in the average income, and the average comfort,
especially in the bodily comfort, of everyone. Have you ever thought
that today the humblest workman has more bodily comfort in many ways
than Queen Elizabeth or even George III? We had learned the advantage of
combination in machinery and we adopted it in business.

This brought about great combinations of plant and capital which reduced
the cost of producing commodities necessary to man to a price never
conceived of before. I do not wish to depreciate the value or importance
of improvement in material comfort. When you hear a man denounce it, you
may know that either he is not a clear, calm thinker, or else he is a
demagogue. Material growth and material comfort are essential for the
development of mental and spiritual activities. The result of this
combination and material expansion, however, was to create great
corporations which began to get control of things. The same spirit of
combination entered into politics and we had machines and bosses which
lent their hand to, and furnished a complacent instrument for,
corporations. Time was when they ordered delegates in a convention with
the same degree of certainty that the order would be supplied, as they
did steel rails or any other commodity. That time has passed and why?
Because the danger of plutocracy forced itself on the people. Leaders
took it up and showed it to them; and in the last ten years we have had
a great movement to eliminate corporate and money control in politics.
Great statutes have been passed--the anti-trust law, the interstate
commerce law, the statutes against the use of contributions from
corporations in politics, the statutes requiring the showing of the
electoral expenses, have all been brought about in response to a popular
demand.

The people failed to scrutinize before, but now that they are aroused
and have taken matters in their own hands, they have brought about
reform. The fact that he is supported by bosses is now generally enough
to defeat a man, and the charge that he has a machine with him is enough
to interfere with his electoral success. Organization is necessary for
political success; even reformers find that out after they get into
politics, but today there is an unreasonable prejudice against it. The
great and good effect of the reform, however, is that corporations are
no longer in politics. Of course corruption is not all gone, but it is
largely stayed, and there is no longer any chance that corporations can
control as they did.

But the leviathan of the people cannot be aroused in this way and his
movement stopped at the median line. We must expect unwise excess.
Sincere reformers have reasoned that because we had the representative
form of government during this corrupt period, it is the representative
form of government which is responsible. Because we had courts during
the corrupt period, the courts are responsible for the corruption.
Therefore we must change the representative system by injecting more
democracy into it and we must change the courts by injecting more
democracy into them and require the people at an election to decide
cases instead of judges on the Bench. These are the excesses to which we
trend.

We are a pretty great people. We admit it. We have great confidence in
what we can do, and when we are set, neither an economic law drawn from
political science nor experience seems a very formidable objection. We
are a successful people in machinery, and so we take our analogy for
political reforms from machinery. We found that by uniting various
mechanical elements we could make machines which would do as much as one
hundred or one thousand men in the same time. So we think that if we are
only acute enough to devise a governmental machine which will work
without effort on the part of the people, we can sit at home while
elections run themselves so well that only what the good people desire
in political action will necessarily result. We want the equivalent of
what, in the slang of practical mechanics, we call a fool-proof machine,
because anybody can run it and no fool can interfere with its normal
operation. So these political reformers are hunting a
corrupt-politician-proof machine for government. It does not and cannot
exist. No government can exist which does not depend upon the activity,
the honesty and the intelligence of those who form it. The initiative,
the referendum and the recall have been urged and in many states
adopted, as a machine which no boss or corrupt politician can prevent
from producing honest, effective political results. They are expected to
reform everything and those who doubt their wisdom are, for the time
being, in the minds of many enthusiasts, public enemies.

The representative system, on the contrary, recognizes that government,
in the actual execution of governmental measures, and in the actual
detailed preparation of governmental measures, is an expert matter. To
attempt to devise and adopt detailed legislative measures to accomplish
the general purpose of the people through a mass vote at a popular
election is just as absurd as it would be for all those present at a
town meeting to say, "We will all of us now go out and build a bridge,
or we will use a theodolite." Thus to say that by injecting more
democracy you can cure the defects of our present democracy is to
express one of those epigrams that, like many of its kind, is either not
true at all or is only partly true and is even more deceptive than if
it were wholly untrue.

Take the power of appointment in executive work. You elect officers,
choosing men of character, intelligence, and experience for a few great
offices, and then what do you do under the Federal Constitution? You
turn over to the President the appointment of great officers because he
needs intelligence, knowledge and skill to make their selections.

Consider the system of general direct primaries in the selection of
judges. There is a ticket at the primaries on which something like
twenty or thirty lawyers run for the Supreme Bench. Some of them go
around and tell the electors how they will decide on questions after
they get in. The qualifications of most of them as lawyers and as men
are not known to the people. Some of them are prominent because they
have been in the headlines of newspapers as figuring in sensational
cases. Others have political prominence but no public experience to test
their judicial capacity. Do you think this method of selection by the
people would lead to the choice of a learned, skilled lawyer with that
experience, courage and fine judicial quality that are to make him a
great judge? Of course it would not. It has been my duty to select more
judges in a term of four years than any other President, and I have had
to look into and compare the results of selection of judicial
candidates by popular general primary and by convention, so that I know
what I am talking about when I say that the primary system has greatly
injured the average capacity of our elective judiciary.

Why should we not use common sense in matters of government just as we
use common sense in our own business? Why should we be afraid to tell
the people that they are not fitted to select high judicial officers?
They are not. You know you are not. You could not tell me who would be
good judges for Connecticut, or for any state in the Union where you
happen to live unless you went about and investigated the matter. If you
are put in a position of responsibility, you have sense enough to know
where to find out the facts and then to make the selection, but the
people lack that opportunity. So how is the question to be solved? By
electing a Chief Executive and charging him with the responsibility of
selecting competent men to act as judges. That is what is meant by the
short ballot.

Reformers-for-politics-only include as many vote-getting planks in a
platform as they can get in it without regard to their consistency or
inconsistency. They sometimes combine the short ballot with the
initiative, referendum and recall though they are utterly at variance.
The referendum is the submission of every issue to the people.

The short ballot, on the contrary, means putting up one or two men whose
names shall not encumber the ballot. Have you ever seen these ballots?
They are a yard long and a yard wide. They have a hundred and twenty
names on them and the people are expected to make a selection. They are
to make a selection of ten out of fifty or one hundred names. Why, it
would seem to be mathematically demonstrable that that is absurd. But
when some men get into politics and talk about the people, it seems as
if they had to abandon ordinary logic. I am just as much in favor of
popular government as anybody, but I am in favor of popular government
as a means to attain good government, not in order to go upon the stump
and say, "Vote for me because I am in favor of the people. The people
are all wise and never make a mistake."

Now what is the initiative? In practice, it means that if 5 per cent of
the electorate can get together and agree on a measure, they shall
compel all the rest of the electorate to vote as to whether it shall
become law or not. There is no opportunity for amendment, or for
discussion. The whole legislative program is put into one act to be
voted on by the people. Speakers will get up and claim that the
millennium will be brought about by some measure that they advocate.
Suppose it is voted in? It never has had the test of discussion and
amendment that every law ought to have. I am not complaining of the
movement that brings about this initiative and referendum, for that is
prompted by a desire to clinch the movement against corruption, on the
theory that you cannot corrupt the whole people and that the initiative
and referendum mean detailed and direct government by the whole people.
But the theory is erroneous. The whole people will not vote at an
election, much less at a primary. When the people are thus represented
at the polls by a small minority there is nothing that the politicians
will not be able to do with that minority when they get their hands in.

This is still a new movement, for which we have little precedent to
guide us, but we have seen politicians fit their methods to any form of
government. Their chance is always through the neglect to vote on the
part of the majority of the electorate and this new system calls out
fewer votes than ever.

Now what is the referendum? It is a reference of the thing proposed by
the initiative to the people who are to vote on it. These
reformers-for-politics-only are never content to acquire a majority of
the electorate vote for the adoption of the measure referred. They seem
to love the promotion of the power of the minority.

What answer do the people themselves give with reference to the wisdom
of the referendum? At many elections candidates run at the same time
that questions are referred to the people, and what is the usual result
of the vote? In Oregon, where they have tried it most, and where the
people are best trained, they do sometimes get as much as 70 per cent of
those who vote on candidates to vote on the referendum; but generally,
as in Colorado, the vote at the same election upon the referendum
measures is not more than 50 per cent--sometimes as low as 25 or 20 per
cent--of those who vote for candidates. Why, in New York they were
voting as to whether they should have a constitutional convention, and
how did the total referendum vote compare with the total electorate? It
was just one-sixth of that total.

They have tried it in Switzerland. We get a good many of these new
nostrums from that country. They said in Switzerland, "These men vote
for candidates, they shall vote on referendums." What was the result?
The electors went up to the polls and solemnly put in tickets. When they
opened the ballots, they were blanks. What does that mean? It means that
the people themselves believe that they do not know how to vote on
those issues, and that such issues ought to be left to the agents whom
they select as competent persons to discuss and pass upon them in
accordance with the general principles that they have laid down in party
platforms. In Oregon, at the last Presidential election, the people were
invited to vote on thirty-one statutes, long, complicated statutes, and
in order to inform them, a book of two hundred and fifty closely printed
pages was published to tell them what the statutes meant.

I ask you, my friends, you who are studious, you who are earnest men who
would like to be a part of the people in determining what their policy
should be, I ask you to search yourselves and confess whether you would
have the patience to go through that book of two hundred and fifty
closely printed pages to find out what those acts meant? You would be in
active business, you would go down to the polls and say, "What is up
today?" You would be told: "Here are thirty-one statutes. Here are two
hundred and fifty pages that we would like to have you read in order
that you may determine how you are to vote on them." You would not do
it.

There was once a Senator from Oregon named Jonathan Bourne, who
advocated all this system of more democracy. He served one term in the
Senate and then sent word back to his constituents that he was not
coming home at the time of the primary. He said that he was not on
trial, for a man who had worked as hard as he had for the people could
not be on trial. Instead, he said, it was the people of Oregon who were
on trial, to say whether they appreciated a service like his. They did
not stand the test, and he was defeated at the primary. Then he
concluded that after all he would have to forgive them and take pity on
their blindness. So he went out to Oregon and ran on another ticket to
give them the benefit of his service. But still they resisted the acid
test. He himself went to the polls to vote at this election where there
were thirty-one statutes to be approved or rejected. How many of the
thirty-one submitted to him do you suppose he voted for? The newspapers
reported him as admitting that he voted on just three, and the other
twenty-eight he left to fate. Now, gentlemen, is not that a
demonstration? Is not that a _reductio ad absurdum_ for this system of
pure and direct democracy?




CHAPTER V

MORE SIGNS OF THE TIMES


The present movement for a purer and more direct democracy--the
initiative, referendum and recall--is clearly an ineffective method of
securing wise legislation, good official agents, or even a real
expression of the people's will. The representative system is the most
valuable system that has thus far been invented to make popular
government possible and the introduction of more democracy, so-called,
is a retrograde step. It is going back to the machinery of the New
England town meeting and of the Republics of Greece and Rome, which we
have given up because conditions have so changed as to make it
impracticable and ineffective.

In the small number of people who constituted the town meeting in New
England, or in a Greek city, it was possible to discharge the
comparatively simple functions fulfilled by government because of the
high average intelligence of the freemen who took part. But even the
Greeks ran into difficulties, and if you will read Lord Acton, possibly
the greatest historical authority on the subject, you will find that
pure democracy, as it is called, resulted in disaster. We now have a
much more complicated government and more democracy will not supply its
needs.

The representative system, much abused as it is, is the system that has
rescued us from plutocracy. Its laws are the laws that have done the
work. Congress has adopted laws that have taken hold of the
corporations, and Congress is the most perfect model of representative
government. Why did Congress act? Because the people were aroused. You
must have the people aroused in order to make any system effective, and
when this is the case under the representative system, there is no
difficulty about its working.

The general primary is, of course, a good thing for certain leading
offices, but if you resort to it for selecting judges or subordinate
officials whose qualifications the public cannot be supposed to know,
the result will be anything but good. Men will be put into office by
some fortuitous circumstance, such as a particular advertisement in the
newspapers. Thus your Senator, and your governor, might well be elected
by the general primary as the result of party selection, but if the
people selected judges and subordinate officers they would have to take
men without regard to their qualifications. The short ballot means, as I
said, that the people should select leading officers who should in turn
select the subordinate officers and appoint the judges.

To the objection that voters will not vote on referendums, it is urged
that they ought to be compelled to do so. This is a futile remedy. Burke
said you cannot bring an indictment against the people, and it is
equally true that you cannot indict a great majority of the electorate
for not complying with their electoral duties. Suppose you attempt to
forfeit their right to vote, you may injure them, but you injure the
whole people a great deal more. The 80 per cent of the population whose
welfare is directly affected by the action of the electorate, but who
are not by law permitted to vote, are entitled to have the more
intelligent voters retained in the electorate. For, I am sorry to say,
it is generally among the intelligent part of the community that we find
neglect of electoral duties. The wisest course, therefore, is to give to
the people as much electoral duty as they are ordinarily able and
willing to perform, and no more. The fundamental fallacies in the
initiative, referendum and recall are, first, that they impose on the
voters three times the electoral work they had to do under the
representative system, and second, that the additional work involved is
of a kind that could be done much better through agents than by the
people directly. As to the recall of officers, I have only to say that
if you elect a man for three years to try to help your city, or state,
you must not make him subject to recall at any moment by those
candidates or people whom he has had to disappoint in order to do his
work effectively. Under the system of recall you are not going to secure
the men who will work well by looking ahead to preserve the real public
interest, but men who are trimmers, devoting their time to politics and
doing as little as possible to avoid criticism. Your executive officers
should be men of independence, courage and ability, who are interested
in the public and willing to encounter criticism for the time being in
order that they may carry out those policies that are going to inure to
public benefit in the end. By making them subject to recall, you
eliminate all independence and courage in your officers.

Another sign of recent times which will repay consideration has been
aptly termed "muck-raking." Mr. Roosevelt took the word from Bunyan's
"Pilgrim's Progress" to describe the irresponsible and slanderous
attacks upon public officials, which were made merely for the purpose of
selling the wares of penny-a-liners. To eliminate corporations from
politics and to bring them under government control, as I have
described, it was doubtless necessary to formulate charges against
individuals and political leaders and it was not to be expected that
misstatements would not creep into such personal attacks. While many
people were doubtless injured unjustly, it was essential that general
corrupt conditions should be revealed to the public. But there were a
great many who were induced to go into outrageous muck-raking solely for
profit, and magazines filled with such stuff and spreading real poison
among the people were sent in the mails at a much less rate than it cost
the government to carry them. I am glad to say muck-raking is not so
profitable now and it has been greatly reduced in volume.

But the opportunity for attacking prominent and powerful men in this way
has served to create a condition that we still suffer from. It has
brought about a feeling that nobody is to be trusted, and it has spread
too far the idea that all men are corrupt. In fact, it has led to the
feeling that everybody is on the same level in matters of character,
learning, skill and effectiveness of labor, and, in short, that every
man is as good as everybody else in everything. The idea is that men are
on a dead level. There is no room for leadership in such a view.
Inequality is essential to progress. If you make a dead level there will
be no interest in life or motive for effort, and you will destroy the
very spring of progress and the fountain of Christian civilization.

We now have political parties that are made by vertical divisions among
the voters. In each party we have the intelligent and the fortunate,
with those who are not so intelligent nor so experienced nor so well
circumstanced. What will be the tendency of this refusal to recognize
intelligence and high character in those who deserve it? It will make
the parties horizontal layers in the body politic. It will unite in one
party those who are ignorant and unfortunate, and array them against the
intelligent and those who have the ability for leadership. When that
comes about, the Republic will be in danger, because the permanence and
usefulness of the Republic rests upon the controlling influence of men
of intelligence, experience, patriotism and character. This array of a
proletariat against intelligent and successful leadership produces
factionalism in society. Factionalism is a class spirit which will
sacrifice the interest of the whole to the interest of the class. It
sometimes permeates a majority, but more frequently a minority. It is
illustrated for us by the militancy of English women suffragists, who
will sacrifice property, art and even life, in order to convince the
majority that unless they receive the vote they will destroy all
society.

We cannot, of course, yield to such a force. Nor can we yield to
trades-unionism when it seeks to promote so-called labor interests by
lawless violence and dynamite. The bonds of society will be loosed if we
do. I would not for a moment be thought to say that those who are in
favor of more democracy, through the initiative and referendum, are
factionalists, and insincere in their view that that system will work a
good result in the fight against corruption in politics. I only think
that they are idealists in this matter, and don't fully understand the
practical operation of the system which they recommend.

In this movement against corruption in politics and corporate control,
it was necessary that corporate control should be attacked. The
muck-raking added to it aroused a spirit against all success in business,
whether the methods pursued were honest or not. The result has been a
hysteria that prompts hostility to capital even when it is working in
honest lines and earning an honest profit. In many states it has led to
excessive restrictive legislation and has terrorized capital; it has
shrunk investments and frightened those who have money until today there
is lots of money in the banks everywhere but it can't be borrowed for
any length of time because nobody will put it into permanent or active
investment.

This state of affairs is likely to continue for some years. I am not
complaining about it because it is part of what we had to pay for the
great reform that was accomplished. After a while confidence will be
restored, and we shall come to our senses, just as they did in Kansas in
the Populist days. The Kansas farmers concluded that all their
unhappiness, and they suffered real stress, was due to the wicked
mortgagees who had lent them money on mortgage security and who insisted
on the payment of interest and even the principal when it was due. So
they elected a Populist legislature and passed a law providing that a
mortgagee could not foreclose his mortgage under two years. They did
this by stay laws and by requiring an obstructive procedure in
collection of debts. As a result, capital fled the state as men would
flee yellow fever. When there was no money at all left in the state and
they found that they couldn't get any, they began to recognize the
benefit in money loaned on mortgages. Their next legislature repealed
all these laws and devoted its attention to advertising their change of
attitude in Eastern markets where money could be had and mortgages could
be floated, promising to be good thereafter, and in general welcoming
the capitalists who would advance money on farms.

The next sign of the times is pleasanter to dwell upon, that is, the
spread of the fraternal spirit that has grown out of this great
material development. Material development in this country had grown
into corruption, undue luxury and waste at the hands of men who did not
realize the responsibility of having been fortunate in accumulating
money, and this absorption in the chase for the dollar began to pall on
the people. They tired of statistics of the growth of business, and
began to look about for some justification for our activities. The
change has brought a greater popular interest in the less fortunate who
have fallen behind in the race.

This feeling has much weakened the influence of the _laissez faire_
school of political and economic thought which was largely in control
when I was in college. Professor Sumner was a strong member of this
school. He was sure of his opinions and taught them. But we have now
drifted away from some of his moorings, and today a good many professors
are giving way to their imagination in suggesting remedies that have not
stood the test of experience. Yet it is generally conceded that the
government can do a lot to help the people that individual enterprise
cannot do. We have also gone far in the matter of regulation, though
there again we are likely to go to excesses.

It is quite probable that we shall find out by hard knocks that the
government cannot perform everything now expected of it. Nevertheless,
under the influence of a greater fraternal spirit, we have done a great
deal. The housing statutes, the safety appliances both for passengers
and employees, the restrictions on the hours of labor, the rules against
child labor, the pure food law, the white slave law, the thorough health
regulations, the control of public utilities, the growth in the public
charitable institutions of the state, the parcels post and the rural
delivery, all are instances of what the government has done to help the
individual by applying the results of public taxation and restrictive
laws. Moreover, we find among rich men a greater feeling of
responsibility for their fortunes, which is proven by their large
donations. Among those less wealthy we find an activity in philanthropic
organizations and in work of a charitable character that has vastly
increased during the last decade. In education, too, we have widened
out, especially in vocational study, by preparing the pupils directly
for wage earning by skilled labor.

Unfortunately, however, many good people in social settlements and in
philanthropic work devote their attention so exclusively to the sore and
rotten spots of society that they lose their sense of proportion, and
bring hysteria even into this movement. Persons so affected come to
think that if suffering, wickedness or squalor is permitted to exist
anywhere, society must all be bad. There must always be sin, and there
must always be neglect and waste until we get to the millennium, which
is not yet so near that we can see and feel it. In making our estimate
of human progress, we must size up the whole situation and take the
average condition. Similarly in attempting to remedy a local or special
evil, we must avoid the injustice of unduly sacrificing the general
welfare. By extreme measures planned to accomplish what may be good in
the abstract but is still not practical, we can make the cause
ridiculous.

Eugenic reformers, for instance, plan to rush right into regulation of
human society and arrange marriages just as horses are bred at a stock
farm. It has made some progress in Wisconsin, where they have required
examination of those about to marry and certificates of health before
issuing the marriage license. But I don't think the American people are
quite ready to submit to that kind of regulation. If it could be
enforced, it might be a good thing for the race, but a strong sentiment
on the other side makes it impractical. In Wisconsin the law is being
ignored and in foreign countries where restrictions upon marriages are
rigorously enforced, marriage is dispensed with and concubinage results.

There is another feature of this present hysterical condition that, I
hope, is going to disappear. But we might as well recognize it. That is
this wish to exculpate the sins of those who are unfortunate by putting
the blame on society at large. The desire seems to be, if possible, to
make scapegoats of those who are fortunate. It is this sentiment that
has given rise to investigations into the cooperative stores in order to
charge their managers with responsibility for the prostitution of some
of their employees because of the wages they pay. As the investigation
shows, there never was a more unfounded charge, but the very fact that
it was used is an indication of what I mean. It manifests itself in the
movement to dispense with all reticence and amplify in every way sex
education on the theory that society is to blame because it is not
telling young people of the danger of sin. You do not have to stand over
a sewer and breathe in the bad smell in order to recognize that it has a
bad smell when you meet it again.

I am strongly in favor of having young men and young women know certain
things about sex matters, the young men through lectures in school or
college, and the young women through instruction by women who can tell
them in a short time all they need to know; but this idea of emphasizing
and expanding the subject and of cultivating a free interchange of
thoughts between the sexes is most dangerous. For one hundred years
these subjects have been suppressed in America to the great benefit of
society and it is well that they should remain so. So-called reforms in
this direction are made the excuse for pruriency in drama, in novels, in
moving pictures and in other ways that are distinctly vicious in their
effect. They promote lubricity and although such literature and
exhibitions may have the support of good people who think they are
advocating great principles, they should be condemned.

Take another instance. Of course we all wish penitentiaries to be free
from disease, and we are interested in prison reform to the extent of
making them as healthful as possible for the prisoners. But this idea of
making society a scapegoat and ridding everybody from responsibility for
his sins, on the theory that his grandfather or grandmother was wicked
and he is only doing it because of his heredity, makes the preservation
of law and order impossible, and destroys the peace and comfort of those
who are law-abiding. The penitentiary is a place for punishment and
reformation. It is not a rest cure or a summer hotel. I have no doubt
that prison discipline can be improved; but changes based on the theory
that convicted criminals are disguised heroes who only need an appeal to
their honor and freedom from restraint to make them good citizens will
have humiliating but perhaps instructive results.

But these extravagances should not blind us to the real benefit of this
growing sense of brotherhood among men. It is shown not only by the fact
that it is preached in the pulpits and emphasized in the press and in
magazines, but, still more, by the fact that it has been taken up by
politicians. When they get hold of a subject and believe it needs
elaboration, you may know that it has a lodgment with the people. Nor
can we ignore the fact that this feeling has been increased by
indignation at the political and social corruption incident to our
enormous material development. The people have become ashamed of it in a
sense.

With many, this growing sense of brotherhood stimulates the movement
toward state socialism. Our excessive paternalism leads on to this. The
view that the government can do anything, remedy every evil, level every
inequality and make everybody happy, would have a most disastrous effect
on production and individual effort and enterprise. The next step will
be to curtail the right of property. It is difficult to define Socialism
as a practical plan of government. The plan as set forth in a little
book published in Austria called "The Quintessence of Socialism" is as
definite as any that I know. It involves such governmental restriction
of individual freedom of action and such real tyranny that the American
people could not stand it. In fact, the regulation of the details of
life by a system of awards for particular work, made by committees
instead of by the operation of the law of supply and demand, would bring
about a condition that would burst itself in a very little time. As
"Billy" Sumner used to say, "If you have that kind of a system, I choose
to be on the committee."

Another sign of the times is trades-unionism. Trades-unionism is
essential in the cause of labor. One man as a laborer is in a position
where it is utterly impossible for him to deal on an equality with his
employer. The employer has capital and can get along without his
services, but he cannot get along without the wages which the employer
pays him. Therefore, laborers unite and contribute to a fund which
enables them to withdraw together and say to the employer: "Here, we
propose to deal with you on a level. We have great force. We have a fund
which will enable us to live while out of work and we are going to
embarrass you as far as possible by withdrawing from your employ unless
you do justice to us in the matter of terms of service." That power of
union cultivated in organized labor has done a great deal to raise
wages and bring about equitable terms of service.

Organized labor is only a small part of labor generally; but organized
labor exercises great influence in legislatures. It is thought to hold
the balance of power at the polls and has undoubtedly exercised
beneficent influence in securing laws to control healthy conditions for
work, safety appliances on railroads, limitation upon the hours of labor
and a number of other laws that would not have been passed if organized
labor had not brought political influence to bear upon members of the
legislature.

On the other hand, a sense of their power has sometimes given leaders of
labor unions a lack of discretion, a truculence and an unreasonable and
unjust attitude. Like the employers, they have been dependent upon
public opinion and after a time public opinion has controlled them.
Probably the greatest evil that stands out from all the good work unions
have done, is the dead level to which they seek to bring the wages of
skilled manual labor. Organized labor insists on making a class and then
having that class receive the same wages, and it does nothing to
encourage individual effort by consenting to the payment of higher wages
to the man of experience, industry and skill than to the mediocre and
lazy. It will in some way have to obviate that difficulty which works
against the cause of labor and the interest of society. Moreover, its
leaders do not discourage, as they should, lawlessness as a means of
achieving their industrial ends. The history of the dynamiters in
California and of the civil war in Colorado shows this.

On the other hand, we find many in the ranks of labor offering the most
effective opposition to the increase in socialism. The leaders of
trades-unionism have no sympathy with the I. W. W. The I. W. W., however,
led by Haywood and others, serve a useful purpose by furnishing an awful
example for the average workingman. When they go around with the signs,
"No God, No Country, No Law," creating disgust and conservatism in the
ranks of organized labor, they do not know what a good thing they are
doing. They act blindly, but they are offering a sample of what may be
expected if organized labor is tempted to excesses. We are going to have
organized labor for all time, and we ought to have it. While I would go
to the fullest extent with courts and even with the army to protect a
non-union man in freedom of labor, if I were a workingman myself I would
join a labor union because I believe that if such unions can be properly
conducted, they are useful to promote the best interests of labor and of
society. What trades-unionism needs is leaders to teach its members
common sense.

The truth is, the longer you live, the more you will find that nothing
is perfect, and everything has a side that can be criticised. What you
have to do is to sum up the whole, take the average benefit which comes
from it, and attempt to increase that average. Now I am an optimist.
People say the initiative and the referendum, against which I have
talked, are like a ratchet wheel. If you extend power to the people and
the voters, you will never get it back again. I agree that is a rule
that generally works, but with respect to the initiative and the
referendum there is an element that may cause an exception to the rule.
The initiative will throw a heavy burden on the electorate. Cranks and
their followers will constantly be compelling voters to act upon wild
proposals. As the popular disgust grows, the requirements in respect to
the number of signers will be made so heavy that a successful petition
can rarely be secured. The referendum will then be limited to such
matters as the legislature chooses to refer and will then cease to be a
practical burden.

We must pray that the injurious excesses which I have been describing as
the cost we have to pay for a great reform, may not unsettle the
foundation of our government and destroy the self-imposed restraint
arranged in the Constitution to make that government just to the
individual, to the minority and to those who do not vote. If we do not
disturb those foundations, we can count on the common sense of the
American people to bring them back to sane views, and we can rejoice and
continue to rejoice in the preservation of a popular government that for
one hundred and twenty-five years has vindicated its conservatism and
justice before the world and will continue to do so forever.




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