{"collection":"philosophy-ethics","full_text_available":true,"graph_url":"https://unchartedknowledge.5gfusion.net/v2/api/page/gutenberg_20066/graph","html_url":"https://unchartedknowledge.5gfusion.net/v2/page/gutenberg_20066","id":"gutenberg_20066","license":"Public Domain (US)","rights_basis":"gutenberg_metadata_copyright_false","source":"gutenberg","source_url":"https://www.gutenberg.org/ebooks/20066","summary":null,"tags":["Category: Essays, Letters & Speeches","Category: Law & Criminology","Category: Philosophy & Ethics","Legal ethics","Presidents -- United States","United States -- Politics and government"],"text":"Produced by Bryan Ness, Colin Bell and the Online\nDistributed Proofreading Team at http://www.pgdp.net (This\nbook was produced from scanned images of public domain\nmaterial from the Google Print project.)\n\n\n\n\n\nETHICS IN SERVICE\n\nBY\nWilliam Howard Taft\n\n\nAddresses Delivered in the Page Lecture\nSeries, 1914, before the Senior Class of the\nSheffield Scientific School, Yale University\n\n[Illustration: Yale University Press Crest]\n\nNEW HAVEN: YALE UNIVERSITY PRESS\nLONDON: HUMPHREY MILFORD\nOXFORD UNIVERSITY PRESS\nMDCCCCXV\n\nCopyright, 1915\nBy Yale University Press\n\nFirst printed October, 1915, 1000 copies\n\n\n\n\nPREFACE\n\n\nThe legal profession discharges a most important function in a civilized\ncommunity, and it seems to me that a discussion of the ethics and ideals\nof that profession would come within the purpose of the Page foundation,\nwhich is described by the donor as intended to promote \"the ethical side\nof business life, including the morals and ethics of public service.\" I\nshall first ask your attention to the history of the profession, which\nshows that a paid advocacy is the only practical system, and to the\nrules of conduct to which lawyers must be held in order that such a\nsystem shall promote justice. I cannot claim to have any peculiar\nknowledge upon this subject other than that derived from a somewhat\nbrief practice of five years at the Bar, from an experience of eleven\nyears on the Bench of trial and appellate courts, from a somewhat varied\nexperience in the responsibility of government, not only in this\ncountry, but in those far-distant isles of the Pacific in which the\nUnited States has been grafting the principles of free government upon a\ncivilization inherited from Spain.\n\n\n\n\nCONTENTS\n\n                                        PAGE\n\nI.   History of the Profession of Law.    1\n\nII.  Legal Ethics                        19\n\nIII. The Executive Power                 37\n\nIV.  The Signs of the Times              65\n\nV.   More Signs of the Times             83\n\n\n\n\nCHAPTER I\n\nHISTORY OF THE PROFESSION OF LAW\n\n\nIt is not too much to say that the profession of the law is more or less\non trial. It is certain that there is a crisis in the life of our\ncourts, and that a great political issue is being forced upon the\npeople, for they must decide whether the courts are to continue to\nexercise the power they now have, and what character of service they\nshall be required to render. Judges are lawyers. They ought to be\ntrained practitioners and learned in the profession of the law before\nthey ascend the Bench, and generally they are. Therefore, our courts, as\nthey are now conducted, and our profession, which is the handmaid of\njustice, are necessarily so bound together in our judicial system that\nan attack upon the courts is an attack upon our profession, and an\nattack upon our profession is equally an attack upon the courts.\n\nWe have all noted on the stage and in the current literature the\nflippant and sarcastic references to the failures of the administration\nof justice, and we are familiar with the sometimes insidious and too\noften open impeachments of the courts, which appear in the press and\nupon the hustings. They are charged with failure to do justice, with bad\nfaith, with lack of intelligent sympathy for socially progressive\nmovements, with a rigid and reactionary obstruction to the movement\ntoward greater equality of condition, and with a hidebound and\nunnecessarily sensitive attitude of mind in respect to the rights of\nproperty. One count that looms large in the wide range of the indictment\nagainst our judicial system is the immoral part that lawyers are said\nnecessarily to play in the perversion of justice by making the worse\nappear the better reason. Such a public agitation and such an issue in\npolitics lead to a consideration of the fundamental reasons for the\nexistence of our profession in the past, and a further inquiry as to the\nneed for it in the future, as preliminary to a discussion of the rules\nof conduct that should govern its practice.\n\nThere are those who intimate that we can learn nothing from the past.\nThey don't say so in so many words, but they proceed on the theory that\nman, under the elevating influences with which they propose to surround\nhim, is suddenly to become a different creature, prompted by different\nmotives. But those of us who have been fortunate in having an education\npermeated with an atmosphere of common sense, and an idea of how to\ndeal with human nature as it is, realize that the world is not to be\nreformed tomorrow or in a month or a year or in a century, but that\nprogress is to be made slowly and that the problems before us are not so\nwidely different from those which were presented to our ancestors as far\nback as the Christian era. Nor can we fail to derive some benefit from a\nconsideration of such troubles, tribulations and triumphs of our\nprofession in the past as suggest rules of conduct for lawyers in the\nfuture. I do not mean that we are not to aspire for better things. Nor\ndo I wish to deny us the happiness of hope for reasonable and real\nprogress toward higher ideals. I simply insist that we ought not to\nignore the lessons of experience when we deal with conditions as they\nare and as everybody who is familiar with them knows them to be.\n\nThe three civilizations in which we may most profitably study the growth\nand development of the legal profession are the Jewish, the Roman and\nthe English. Among the Jews, the Mosaic law, which went into the\nsmallest details of personal life, was the guide to their rule of\naction. As it had religious sanction, the high priests became the actual\nministers of justice and the preservation of religion and law was united\nin them. Acting as their assistants, and as assessors in the tribunals\nof which the high priests were the head, were the Scribes. They were\nlearned in the law; had a religious and priestly character themselves;\ninterpreted the Mosaic law with a view to its application to the various\nfacts and issues which arose; and were in addition the teachers of law.\nIt was to them that the rabbinical injunction was made \"to make the\nknowledge of the law neither a crown wherewith to make a show, nor a\nspade wherewith to dig.\" And again it was said, \"He who uses the crown\nof the law for external aims fades away.\"\n\nIn describing the principles of non-remuneration to the Scribes, the\nlearned German Professor Schurer says: \"In Christ's censures of the\nScribes and Pharisees, their covetousness is a special object of\nreproof. Hence, even if their instruction was given gratuitously, they\ncertainly knew how to compensate themselves in some other way.\" And it\nis because of this evasion of this rule that we find those passages in\nthe eleventh chapter of Luke, the 46th and 52d verses, which read:\n\n     Verse 46. \"And he said, Woe unto you also, ye lawyers! for ye lade\n     men with burdens grievous to be borne, and ye yourselves touch not\n     the burdens with one of your fingers.\"\n\n     Verse 52. \"Woe unto you, lawyers! for ye have taken away the key of\n     knowledge: ye entered not in yourselves, and them that were\n     entering in ye hindered.\"\n\nThe line between the judicial and advisory functions of the Hebrew\nScribes was not closely or clearly drawn. They were evidently supposed\nto occupy a disinterested position toward those who consulted them and\nto be in a sense the associates of the judges. Since the motive which\nprompted their study of particular cases was supposed to be only that of\nvindicators of general justice, the rules which nominally guided their\naction, as announced by the lawgivers, required that their services\nshould always be gratuitous. But quite naturally their consultation with\nprivate litigants prompted such litigants to influence their view of the\nlaw, and command their skill in debate. And so to evade the rule which\nprevented remuneration they established the custom of giving presents in\nadvance. These presents given in advance to secure the kindly favor of\nthe Scribes are interesting as the precursors of that institution dear\nto every English barrister, and not unknown--nor even objectionable--to\nAmerican lawyers, to wit, the Retainer. In fact it was the impossibility\nof finding men who could remain judicial in their attitude when the\nthought of remuneration moved them to advocate the cause of one of the\nlitigants, that put the Scribes of those days in an indefensible\nposition and led to the attacks upon them that we find in the New\nTestament.\n\nAnd so it was in Rome. There the progenitor of the lawyer was first the\npriest, the _Pontifex_, mingling judicial and advisory functions, and\nthen the _patronus_ or the orator, a man of wealth and high standing in\nthe community, who had gathered about him freed men and Plebeians as his\nsupporters. The latter were known as his _clientes_, from which term our\nword is derived. When one of his clients became involved in a lawsuit,\nthe _patronus_ appeared to advise the judge--a magistrate acting only as\nvindicator of general justice and often not learned in the principles of\nlaw--and was not supposed to receive any compensation. Less than the\n_patronus_, but exercising similar functions, was the _advocatus_--who,\nthough perhaps not so learned in the law, nor so formidable as a person,\nwas able to assist the _patronus_ before the tribunal on behalf of\nothers. There was in addition a body of men called \"jurist consults,\"\nlearned in the law and able to advise, who came to be recognized as the\nmembers of a select profession in the time of Augustus.\n\nIn the year 200 before Christ, the Cincian law was enacted, requiring\nthat service of the _patronus_ and the advocate should be gratuitous,\nbut it was soon evaded even as the Jewish laws had been. Again presents\nwere made to secure the skilled advocacy of men learned in the law and\nacute in debate. These gifts like the Hebrew ones were paid in advance\nand were called \"honorariums,\" another term which suggests the modern\nretainer. Neither an _advocatus_ nor a _patronus_ could sue for such\nhonorarium at law because it was a violation of law, but once paid, the\nhonorarium could not be recovered. Cicero boasted that he never violated\nthe Cincian law, but historians of his period intimate that by secret\nloans and testamentary gifts his practice proved to be very profitable.\nAnd it is certain, at least, that many of his contemporaries were made\nvery rich by professional remuneration. Augustus directed the passage of\nanother law forbidding compensation to orators and advocates, but it was\ndisregarded and subsequent emperors contented themselves with fixing\nlimits for the fees to be charged. In the golden age of the Roman law,\ntherefore, the payment of the profession became recognized as legitimate\nand the profession itself became a definite body with clearly understood\nfunctions.\n\nIn England, for two hundred years after the Conquest, the priests were\nthe only learned men, and they, too, like the Scribes, acted as judges\nand advisers of litigants. Even as late as the time of Henry VIII, as we\nknow, the Keeper of the King's Conscience and the head of the Court of\nEquity, was an Ecclesiastic in the formidable person of Cardinal\nWoolsey. About the reign of King John, laymen became lawyers, and in\nHenry III's time the Pope forbade priests to fit themselves in civil law\nor to act as advisers in respect to it. We may properly say that the\nprofession of the Bar, as a recognized English institution, had its\nbeginnings in the struggle for individual rights by which the English\nrace forced the great charter from King John. We find that in the\nhistory of the early English administration of justice, bailiffs,\nundersheriffs, clerical attaches and the underlings of the courts had\ngone into the business of acting as attorneys, of cheating their\nclients, and of stirring up litigation. While statutes were directed\nagainst their abuses, I cannot find that there was any English statute\nforbidding lawyers to receive compensation for their services, although\nthe action of the Pope in forbidding his priests to study and practice\nlaw in England may indicate some such abuses. It is certain that legal\nservices were not regarded as creating a debt due from the client to the\nlawyer who had served him. By statute, now, attorneys and solicitors in\nEngland are entitled to fixed fees for professional services. But in the\ncase of barristers, down to the present time, while they may demand a\nretainer for their services in advance, they still cannot recover by\nsuit if the services are rendered without receiving it. This may\npossibly be derived from the early Roman and Jewish view of the\nprofessional relation and suggests the probability that early in English\nhistory professional services were deemed to be gratuitous.\n\nThe grant of Magna Charta by King John, in response to the demand of the\nBarons at Runnymede, gave birth to the Bar in its modern character.\nArticles 17 and 18 of that instrument provided that Common Pleas should\nnot follow the court of the King, but should be held in a certain place,\nand that trials upon certain writs should not be taken outside of their\nproper counties. It provided further that the King or the Chief Justice\nshould send two justiciaries into each county, four times in the year,\nto hold certain assizes within the county, with four knights of the\ncounty, chosen by it, on the day, and at the place appointed. The 45th\narticle promised that the King would not make Justiciaries, Constables,\nor Bailiffs excepting of such as knew the laws of the land and were well\ndisposed to observe them. The result of this provision by which Common\npleas courts came to be held at Westminster, while regular assizes were\nheld in the counties, was the establishment of the four Inns of Court,\nso-called, Lincoln's Inn, the Inner and the Middle Temple, and Gray's\nInn, together with a number of others known as Chancery Inns, which\nhave of late years disappeared. Henry III took these Inns under his\nespecial protection and prohibited the study of law anywhere in London\nsave in the Inns of Court. They were the homes of the Bar, for within\ntheir walls lawyers had their offices, and there students of the law\nreceived their education. In fact, they may be said to constitute the\nfoundation of the modern profession of the law in the English-speaking\nrace.\n\nThe Inns of Court were at first an aristocratic institution, and only\nmen of good blood were permitted to practice in them. Indeed, that was\nthe case in the early days in Rome. Pliny reports that no one could\nbecome a _jurist consult_, an _advocatus_ or a _patronus_ except he be\nof the Patrician class. But soon after the Empire began, this rule broke\ndown and the Roman Bar became open to all. So, too, in the English Bar\nat first admission was controlled by the Benchers or governing bodies of\nthe Inns of Court and the students were chosen only from good families.\nIt was probably this that led to their unpopularity and to the\ndenunciation which they received in Wat Tyler's day, in the fourteenth\ncentury, and from Jack Cade's followers whom Shakespeare makes wish to\nkill all the lawyers in the next century. Their exclusive spirit passed\naway, however, and while aristocratic class distinctions were rigidly\nmaintained in English society, the Bar became most democratic through\nthe avenue to positions of highest influence on the Bench and in\npolitics which it freely offered to able men from the people. And,\nindeed, there is no part of English history that is so full of interest\nas the stories of her great lawyers, who, beginning in the humblest\nconditions of life, fought their way by real merit into positions of\ncontrol in the government and thus gave ability and strength to the\naristocracy of which they became a part.\n\nIn the three centuries or more after the establishment of the Inns of\nCourt, no division appeared in the profession of the law, and it was not\nuntil about 1556 that the profession became separated into attorneys at\nlaw and solicitors in chancery, on the one hand, and barristers on the\nother. The former dealt directly with clients and performed the\npreliminary work of drafting documents and preparing briefs, while the\nlatter, the barristers, drafted the pleadings and presented the causes\nin court. A similar division of functions prevailed in the Roman Bar. I\nshall have occasion later to comment on the advantages and disadvantages\nof this division, but this summary reference is sufficient for my\npresent purpose in tracing the history of the Bar in England. During\nthis period, after the establishment of the Inns of Court, the\nunpopularity of the Bar manifested itself in the enactment of statutes\nforbidding the election of lawyers to Parliament. This gave rise to the\nnoted Parliament known as the \"Dunces Parliament,\" because everybody who\nknew anything about the law, and therefore about the framing or the\noperation of statutes, was excluded from membership.\n\nIn his interesting history of the American Bar, Mr. Charles Warren, of\nthe Boston Bar, says:\n\n     \"Lawyers, as the instruments through which the subtleties and\n     iniquities of the Common Law were enforced, were highly unpopular\n     as a class in England during the period of Cromwell and Milton.\"\n\nMilton wrote:\n\n     \"Most men are allured to the trade of law, grounding their purposes\n     not on the prudent and heavenly contemplation of justice and\n     equity, which was never taught them, but on the promising and\n     pleasing thoughts of litigious terms, fat contentions and flowing\n     fees.\"\n\nAs examples of a lawyer's reputation in London in the seventeenth\ncentury, Mr. Warren cites the titles of the following tracts printed at\nthat time: \"The Downfall of Unjust Lawyers\"; \"Doomsday Drawing Near\nwith Thunder and Lightning for Lawyers\"; \"A Rod for Lawyers who are\nHereby declared Robbers and Deceivers of the Nation\"; \"Essay where is\nDescribed the Lawyers, Smugglers and Officers Frauds.\"\n\nI note these facts as I progress to indicate and reinforce my original\nstatement that the present time is not the only time in the history of\ncivilization when lawyers have received the condemnation of their fellow\nsubjects or fellow citizens. Yet not only has the profession survived\nsuch movements but its usefulness has been recognized in succeeding\ncrises.\n\nI need hardly mention that most of the progress toward individual\nliberty in English history was made through the successful struggle of\nthe lawyers against the assertion of the divine right of Kings and\nthrough the defence of privilege by members of our profession. Lawyers\nlike Lord Coke and Lord Hale stand out in the profession for their\nmaintenance of the independence of the judiciary and their support of\nthe liberties of subjects. The great charters, the Petition of Right,\nthe Habeas Corpus Act, the Bill of Rights, and the Acts of Settlement,\nestablishing the judiciary independent of Royal control, were obtained\nat the instance of lawyers who knew better than any other class the\nabsolute necessity for such reforms in the maintenance of free\ninstitutions.\n\nThe evolution of the Bar in this country during colonial\ntimes--especially in New England--was a curious counterpart of the\nhistory of the English Bar three centuries before. The founders of New\nEngland came here to escape a persecution for their religious beliefs\nand law was closely connected in their minds with the injustices, the\ninequalities and the rigid hardships of the common law as administered\nby judges appointed and removable at the will of the Tudors and Stuarts.\nAt that time lawyers exercising their profession were the instruments of\na system that had become non-progressive. They had lost the principles\nof justice in technicalities and had become mere political tools in the\nhands of tyrants. But in England, the law soon lost its narrowing, hard\nand inflexible character through the intervention of courts of equity\nand through the genius and broad views of great judges of common law\nlike Mansfield. It was modified further by the civil law and by the\nneeds of a developing world commerce, and after the action of the Long\nParliament and the Revolution it was no longer used as an instrument of\ntyranny.\n\nIn this country, however, the Puritans and the Pilgrims approved of\nneither the common law nor the English judicial system, and as lawyers\nwere only part of that system, they considered the abolition of the\nprofession from their society as an end devoutly to be wished for and\npromptly sought. Among the Pilgrim fathers there was not a single\nlawyer, while among the Puritans there were only four or five who had\nbeen educated as lawyers and even they had never practiced. The\nconsequence was that during the seventeenth century and far into the\neighteenth, lawyers had little place in the social or political\ninstitutions of the colonies. In New England there was a theocracy. The\njudges--none of them lawyers--were all either ministers or directly\nunder the influence of the clergy. A colonial common law grew up among\nthem, based on a theological reasoning and was really administered\nwithout lawyers. In the Massachusetts body of liberties, it was provided\nthat a man unfit to plead might employ a person not objectionable to the\nCourt to plead for him, on condition that he give him no fee or reward.\nIn 1663 a usual or common attorney was prohibited from sitting in the\ngeneral court.\n\nAs society progressed, however, as commerce and trade increased, as\nwealth grew, as business transactions became more extended and as\nlearning spread from the clergy to other persons, opportunity and\ninducement were furnished for the study of the law, and professional\ntraining became more general. The crying need for a learned and\nhonorable profession of the law was made manifest by the growth of a\nclass of advocates and advisers whose influence was most pernicious.\nLitigants needed guidance in the presentation of their cases and no\nlearned profession being available, the underbailiffs, undersheriffs,\nclerks and other underlings of the administration of justice began to\npractice, without real knowledge. Greedy and lacking in principle, they\ndeveloped trickery and stirred up litigation for their own profit, just\nas their predecessors had done three hundred years before in England.\nColonial statutes were then passed, forbidding such underlings of the\ncourt to practice law at all. But lawyers were not popular in colonial\ndays even after the Bar became able and respectable. In fact a bitter\nspirit was manifested against lawyers even as late as Shays's Rebellion\nafter the Revolutionary War.\n\nBetween the years 1750 and 1775, more than a hundred and fifty young men\nfrom the colonies were admitted to one of the four Inns of Court and\nbecame educated lawyers with the purpose of entering the profession in\ntheir native colonies. How far the presence of such a class of educated\nlawyers through the colonies contributed to the resentment against the\nstupidity and injustice of the English colonial policy which brought\nabout the Revolution, cannot be estimated exactly; but certain it is\nthat the preparation of the lawyers who were then in their prime appears\nto have been Providential interference in behalf of the people of the\nUnited States. Never in history has the profession of the law received\nso great a harvest of profound students of the constitutional principles\nof government as did our country at this time. Our lawyers signed the\nDeclaration of Independence, served in the Continental Congress, acted\nas delegates to the Constitutional Convention, and met in the various\nconventions called by the states to consider the ratification of that\ngreat instrument. They not only knew that common law, but they had\nstudied closely the political history of Greece and Rome, and were\nfamiliar with the principles of government as set forth by Montesquieu\nand Adam Smith.\n\nIt was the American Bar that gave to the people of the United States\nsuch lawyers as Alexander Hamilton, John Jay, James Madison, George\nMason, Thomas Jefferson, Patrick Henry, John Adams, James Otis, Samuel\nChase, Samuel Adams, Roger Sherman, Oliver Ellsworth, James Wilson,\nEdmund Randolph and many others not less learned and brilliant, to\nestablish their liberties, frame the limitations of their government and\ncare for the protection of individual rights. The same Bar furnished a\nlittle later that lawyer and judge, John Marshall, whose interpretation\nof the Constitution was as important in its beneficent effect as its\noriginal framing. That Bar not only helped largely in constructing the\nship of state but it was also most instrumental in launching it on a\ntriumphant and useful course through a century and a quarter. The\nprofound gratitude of succeeding generations owing to such a Bar ought\nnever to be dimmed by partisan or misguided diatribes upon lawyers and\njudges.\n\n\n\n\nCHAPTER II\n\nLEGAL ETHICS\n\n\nI have heard the utility of legal ethics denied. It is said that the\nrules in legal ethics are the same as the moral rules that govern men in\nevery branch of society and in every profession--except as there may be\ncertain conventions as to professional etiquette--and that if a man is\nhonest, there ought to be no difficulty in his following the right\ncourse in the discharge of his professional duties. If a man is lacking\nin probity of character, it is said the discussion of legal ethics will\ndo him no particular good, because if he is tempted to a crooked path or\nan unjust act by his pecuniary interest, he will yield, and neither\nlectures on ethics nor the establishment of an ethical code will make\nhim good; whereas the upright man will either not be so tempted, or\nshould he be, he will clearly perceive the necessity for resisting the\ntemptation.\n\nIn the course of my consideration of this subject, I looked into a\ntext-book on moral philosophy and the general system of ethics with the\nhope that I might find something there that would suggest, by analogy,\na proper treatment of the subject in hand. I consulted Paulsen's \"A\nSystem of Ethics.\" The analogy between moral philosophy and legal ethics\nis not very close, but I found a passage or two bearing on this very\nissue, which it seems to me might not be inappropriately quoted here. In\nthe conclusion of his introduction, Paulsen says:\n\n     \"Let me say a word concerning the _practical value_ of ethics. Can\n     ethics be a practical science, not only in the sense that it deals\n     with practice, but that it influences practice? This was its\n     original purpose. 'It is the function of ethics,' says Aristotle,\n     'to act, not only to theorize.'\"\n\nPaulsen refers to the fact that Schopenhauer takes a different view:\n\n     \"All philosophy,\" he says, \"is theoretical. Upon mature reflection\n     it ought finally to abandon the old demand that it become\n     practical, guide action, and transform character, for here it is\n     not dead concepts that decide, but the innermost essence of the\n     human being, the demon that guides him. It is as impossible to\n     teach virtue as it is to teach genius. It would be as foolish to\n     expect our moral systems to produce virtuous characters and saints\n     as to expect the science of aesthetics to bring forth poets,\n     sculptors and musicians.\" To this view Paulsen replies:\n\n     \"I do not believe that ethics need be so faint-hearted. Its first\n     object, it is true, is to understand human strivings and modes of\n     conduct, conditions and institutions, as well as their effects upon\n     individual and social life. But if knowledge is capable of\n     influencing conduct--which Schopenhauer himself would not deny--it\n     is hard to understand why the knowledge of ethics alone should be\n     fruitless in this respect.... Moral instruction, however, can have\n     no practical effect unless there be some agreement concerning the\n     nature of the final goal--not a mere verbal agreement, to be sure,\n     but one based upon actual feeling.... It will be the business of\n     ethics to invite the doubter and the inquirer to assist in the\n     common effort to discover fixed principles which shall help the\n     judgment to understand the aims and problems of life.\"\n\nWhat is here said concerning the usefulness of an investigation of fixed\nethical principles has application to a consideration of what rules of\nconduct should prevail in the legal profession. The high social purpose\nof the profession, its beneficial function, and the limitations upon its\naction that should be self-enforced in order to make the calling an\nadvantage and not a detriment to the public weal, should be understood.\nIndeed, the profession of the law, if it serves its high purpose, and\nvindicates its existence, requires a double allegiance from those who\nhave assumed its obligations, first, a duty toward their clients, and\nsecond, a duty toward the court. And though the two sometimes seem to\nconflict, they must be reconciled in the way which will best promote the\neffective administration of justice and the peace of society. The path\nto be followed in achieving this golden mean in the intricacies of\nprofessional relations is not as manifest as the rule of honesty and\nmorality in ordinary life. The great problem of government that is never\ncompletely solved and that is changing with changing conditions is how\nto reconcile the protection of individual rights, helpful to the pursuit\nof happiness and the welfare of society, with the necessary curtailment\nof those rights and freedom, by governmental restriction, to achieve the\nsame object. So the adjustment of the duties of the lawyer toward his\nclient and toward the court in the interest of society, are not always\neasily distinguishable and an attempt to make them clear, therefore, is\njustified.\n\nAn understanding between the client and his representative that\nremuneration is a proper incident to their relation insures a greater\nconfidence in the activity and devotion of his lawyer to his interest on\nthe part of the client and stimulates industry and sincere effort on\nthe part of the lawyer. It is far better that the employment on a\npecuniary basis should be understood by all men, by the courts and by\nthe parties, than that some secret arrangements should exist unknown to\nthe court and the opposing party. But it is said that to give to\ncounsel, skilled, learned and familiar with the arts of advocacy and the\npreparation of cases, a pecuniary motive to make the worse appear the\nbetter reason, necessarily leads him to an attempt to influence the\ncourt against a just result. For since one or the other conclusion must\nbe unjust, one of the paid attorneys arguing the cause before the court\nmust be arguing for the unjust side and in favor of wrong. Hence, it is\nclaimed, the system of paid advocacy must in every case tend to an\neffort on one side or the other to pervert justice and mislead the\njudges into inequity and wrong.\n\nIt may be agreed that if there were not certain limitations upon the\nmeans which counsel may take to maintain the justice of their clients'\ncause, if they were justified in suborning witnesses, and coaching them\nto testify to an unfounded state of facts, if they were permitted to\nmisstate the evidence after it has been adduced, if it were regarded as\nproper for them to accept employment in the prosecution of a cause which\nthey knew to be brought only for a wrong purpose and without any just\nfoundation, or if in a civil cause they were retained to make a defence\nwhich they were advised was false and wrong, then it might be that\nadvocacy under such freedom from limitation would not aid the judges in\navoiding wrong conclusions and unjust judgments. But there are\nlimitations upon the duty of counsel to their clients. There are also\nlimitations upon a lawyer's action which he cannot violate without a\nbreach of his duty to the court of which he is an officer and to the\npublic interest in the maintenance of the proper administration of\njustice. We find, therefore, that the goal to be reached in reference to\nthe ethical duty of an attorney in the discharge of the functions\nassigned to him by the law, is the reconciliation of his duty to his\nclient, with his duty to the court. To mark out this line in advance is\neasier than to determine each special duty in a concrete way, yet\nneither is free from difficulty and each requires a calm and clear\nunderstanding of the function of counsel as an instrument in the\nmachinery of justice. This is the main object of legal ethics. It covers\nother fields and is important in those fields, but no other is of such\nprimary importance.\n\nCourts sit to hear controversies between parties over facts and law.\nRules of procedure are for the purpose of reducing the issues of fact\nand law in such controversies to a form as narrow and concrete as\npossible. Men who are able to present a clear statement of the evidence\nand who are learned in the principles of the law and their application\nto the facts as they are developed are in a position to assist the judge\nto a quick and thorough understanding of the exact question which he is\nto decide. The real enthusiasm of advocacy which is necessarily\ndeveloped by the relation of attorney and client would doubtless have a\ntendency to mislead the court if exerted in behalf of one side only, but\nwhere both sides are represented, where the same earnestness in the\nproceeding of each side is present, it is the best method within human\nken to reach a sound conclusion both as to the facts and as to the law.\nNo one who has had experience on the Bench in reaching judicial\nconclusions and who has thereafter been obliged in an executive position\nto reach important, and it may be final, conclusions upon questions\ninvolving both fact and law, can fail to recognize and acknowledge the\npowerful influence for justice that honorable and learned members of the\nlaw exert in the causes which they present to a court. The counsel who\nargues the losing side of a case contributes quite as much to the\nassistance of the court as the successful advocate. The friction of\ncounsel's argument against counsel's argument develops every phase of\npossible error in a conclusion and thereby enables a just, intelligent,\nacute and experienced court to see clearly what is the right which\nshould be embodied in its judgment.\n\nThe practical value of argument by paid counsel on both sides is shown\nin many ways. In the first place, it is well understood in weighing\nlegal precedents that there is little authority in the decision of a\ncourt which has been reached without the benefit of the argument of\ncounsel. In some states, courts are required to answer questions from\nthe legislature as to the constitutionality of proposed laws. The best\nauthorities hold that opinions given under such circumstances are merely\nadvisory, since they lack opposing arguments made by counsel whom the\nspirit of professional advocacy arouses to industry in the search for\nprecedent. They go so far as to say that answers so given should not\nconclude the same court in a litigated case arising subsequently. An\nearnest and commendable desire to win leads the counsel to search not\nonly libraries but his own brain for the strongest reasons that he can\nsummon upon which to base a judgment in behalf of his client. Why is it\nthat a great Bar makes a great court? Though it may seem a truism, I\nrepeat, it is because the great Bar furnishes to the court all the\nreasons that can possibly be urged in each case and enables it to select\nfrom among all the reasons developed by the ingenuity and intense\ninterest of men skilled in the law.\n\nCounsel ought to decline to conduct a civil cause or to make a defence\nwhen convinced that it is intended merely to harass the opposite party\nor to work oppression. His appearance in court should, therefore, be\ndeemed equivalent to an assertion on his honor that in his opinion his\nclient's case is a debatable one and one proper for judicial\ndetermination. He should know that under a proper code of ethics, no\nlawyer is obliged to act either as adviser or as advocate for every\nperson who may wish to become his client; that he has the right to\ndecline employment, and that each lawyer on his own responsibility must\ndecide what business he will accept as counsel, what causes he will\nbring into court for plaintiffs, and what suits he will contest in court\nfor defence. The court knows that the responsibility for bringing\nquestionable suits or for urging questionable defences, is the lawyer's\nresponsibility. He can not escape it by urging as an excuse that he is\nonly following his client's instruction. The judge knows that no\nhonorable lawyer would coach a witness to testify falsely, and that in\ndealing with the court each lawyer is required to act with entire candor\nand fairness in the statements upon which he invokes its action. The\njudge knows that it would not be candid or fair for the lawyer\nknowingly to misquote the contents of a paper, the testimony of a\nwitness, the argument of opposing counsel, the language of a decision,\nor the wording of a text-book. He may fairly rely on a lawyer not to\ncite a decision that he knows has been overruled, or a statute that he\nknows has been repealed. He may properly rely on the counsel's not\nasserting a fact that has not been proven.\n\nYet he knows that lawyers owe entire devotion to the interest of the\nclient, and warm zeal in the maintenance of his rights and that they\nwill exert their utmost ability lest anything be taken or be withheld\nfrom him, save by the rules of law, legally applied. He knows that\ncounsel has the right to proceed in the view that his client is entitled\nto the benefit of every remedy and defence authorized by the law of the\nland and that the lawyer is expected to assert every such remedy or\ndefence. But it is steadfastly to be borne in mind that the great trust\nto the lawyer is to be formed within and not without the bounds of the\nlaw. The office of a lawyer does not permit, much less does it demand of\nhim, violation of law or any manner of fraud for any client. He must\nobey his own conscience and not that of his client. These limitations\nare binding upon the lawyer as a sworn officer of the court, and\ncompliance with them is the true reconciliation of the primary duty of\nfidelity to the client, with the constant and ever present duty owing to\nthe minister of justice in the person of the judge. These statements of\nthe duty of the lawyer to the court in the advocacy of causes and in the\npresentation of his client's case, are taken from the Code of Legal\nEthics, which was approved by the American Bar Association. I think that\nall lawyers and judges will agree that when lawyers live up to them, the\ndanger of injustice from the enthusiasm, skill or eloquence of their\nadvocacy is quite remote.\n\nI don't mean to say that lawyers do not differ in the force of their\nstatements, in their logical faculty, in their method of arranging\narguments, in their fluency and in the cogency with which they present\nthe cause of their respective clients. Of course the man who is\nfortunate enough to engage the abler lawyer enjoys the advantage of\nthose gifts with which nature has endowed his representative, but that\nelement of inequality can hardly be eliminated from the administration\nof justice. It has more weight in a jury trial than it has before a\ncourt, for the lawyers before a court are matching their acuteness and\nlearning not alone with the counsel for the other side, but with the\ncold scrutiny of a calm, intellectual and judicial mind, trained to\nconsider argument, and experienced in the elimination of the\nirrelevant, the emotional and the illogical.\n\nThe jury system, though somewhat crude and not always certain, has\nadvantages that outweigh its possibility of injustice in the judicial\nsystem of a free government among a free people. It is important that\nthe people shall have confidence in the courts, and it is important that\nthey shall feel that they may themselves be a part of the judicial\nmachinery. The value of popular confidence in the verdict of a jury\nselected at random from a community is great enough to offset any\ntendency to error that may at times arise from the undue influence of a\njury advocate upholding one side of the controversy before them. If the\njury is misled by the histrionic eloquence of counsel so that it clearly\nviolates justice in its verdict, the court may always set aside its\ndecision and give a new trial. Moreover, in any properly adjusted\nsystem, the judge should be able to clear the atmosphere of any false\nemotion that counsel may have created. He can remind the jury in his\ncharge that they are judges, who may not indulge their emotions or their\nprejudices. He should follow closely the argument of counsel to the jury\nin order that his charge may clear up the evidence by inviting the\nattention of the jury to the weakness of proof at critical points of the\ncause, or by pointing out either the bias of witnesses or their\nopportunity or lack of it for observation, thereby eliminating those\nphases of the controversy that the earnestness of counsel may have\nseized upon to divert the attention of the jury from the real issue.\n\nI have recently heard an arraignment of our present judicial system in\nthe trial of causes by a prominent, able and experienced member of the\nBoston Bar. (I am glad to call him a friend. I value him highly as\nsuch.) He ascribes what he calls the growing lack of confidence in the\njustice and equity of litigation in the courts to the fundamental error\nin their procedure. He feels that the procedure now in vogue authorizes\nand in fact requires counsel to withhold facts from the court which\nwould help the cause of justice if they were brought out by his own\nstatement. To remedy this he suggests that all counsel should be\ncompelled to disclose any facts communicated to them by their clients\nwhich would require a decision of the case against the clients. He\ncontends further that the rules of procedure, which exclude hearsay\nevidence, and prevent the jury from hearing many facts which business\nmen regard as important evidence, make it difficult to reach the truth\nwhich is essential to justice.\n\nI set out this view as a possible basis for a discussion of the grounds\nfor popular criticism of the courts. To require the counsel to disclose\nthe confidential communications of his client to the very court and jury\nwhich are to pass on the issue which he is making, would end forever the\npossibility of any useful relation between lawyer and client. It is\nessential for the proper presentation of the client's cause that he\nshould be able to talk freely with his counsel without fear of\ndisclosure. This has always been recognized and has acted as a most\nsalutary restriction on the conduct of counsel. No litigants, or\nintending litigants, would employ counsel if the latter were to assume\nthe duty of extracting from their clients all their innermost thoughts\nwith a view to revealing them to the court. The useful function of\nlawyers is not only to conduct litigation but to avoid it, where\npossible, by advising settlement or withholding suit. Thus, any rule\nthat interfered with the complete disclosure of the client's inmost\nthoughts on the issue he presents would seriously obstruct the peace\nthat is gained for society by the compromises which the counsel is able\nto advise.\n\nThe objection to the exclusion of hearsay evidence is equally unfounded.\nIts uses are said to be threefold, to convince in affairs of the world,\nto serve as the basis of action for business men, and to prevent\nopportunity for false witness. Yet it is not admissible in a court of\njustice to prove or disprove either a cause or a defence. The rules of\nevidence have been worked out by centuries of experience of courts in\njury trials, and are admirably adapted to avoid the danger of error as\nto fact. I fully agree that in American courts the trial judges have not\nbeen entrusted with as wide discretion in the matter of admitting or\nrejecting evidence as they should have, and judgments have been reversed\non technical errors in admitting testimony which should have been\naffirmed. As time goes on, however, the rule against hearsay evidence,\ninstead of losing its force, is demonstrating its usefulness. The error\nand injustice that are committed in the public press by inaccurate,\ngarbled and sometimes false statements of facts are increased in their\ninjurious effect by the wider publication that newspapers have today,\nand the requirement that when a fact is to be proven in court it should\nbe proven by those who have a personal knowledge of it, is one of the\nmost wholesome and searching tests of truth that the whole range of\nadjective law furnishes. The opportunity for cross-examination, for\nfinding out the bias of the witness, the advantage or disadvantage of\nhis point of observation, the accuracy or inaccuracy in his recollection\nof the details of what he saw, are all means of reaching the real truth\nthat the introduction of hearsay evidence would entirely exclude.\n\nIt is now more than fifteen years since this country was following with\nbated breath the judicial investigation of the charges against Captain\nDreyfus for treason in having sold secrets of the French War Office to\nGermany. Under the civil law procedure, there is little, if any,\nlimitation upon the kind of evidence which can be introduced to sustain\nthe issue on either side, and the rule against hearsay evidence does not\nprevail. The shock given to the whole community of the United States by\nthe character of evidence received to help the court determine the\nDreyfus issue, was itself enough to show that the confidence of the\npublic in the justice of the rule against hearsay evidence had grown\nrather than diminished with years.\n\nYet I am far from saying that we may not have improvement in our laws\nconcerning testimony in court. The protection of those accused of crime\ncontained in some of our constitutional restrictions may be too great.\nThe charge against the administration of justice in the present system\nis that it is nothing but a game of wits, of cunning, and of\nconcealment, promoted by the rules of procedure. I think this\ncharacterization is most unjust and most unwise because it aids the\nattack on a valuable and indispensable institution without suggesting\nany real security for such evils and defects as there are. An experience\nof many years in the trial of all sorts of causes as lawyer and judge\nand in framing a judicial system convinces me that the present method of\nhearing causes is correct. The enthusiastic advocacy of counsel when\nthey are properly restrained as above suggested, and the rules of\nevidence adapted to winnowing out the false from the true, are admirably\nadapted to bringing about right results.\n\nIt is also asked whether members of the Bar live up to these rules\nrestraining their enthusiasm and limiting their proper conduct in the\nadvocacy of their clients' causes. One can reply that counsel differ in\nthat regard, but that generally such rules are fairly well observed. The\nearnestness of advocacy often blinds them to the proprieties and the\nrequirements of candor and fairness. They fall into the same errors that\ntheir clients do, though with a better knowledge of their duties in this\nregard. They share what has been characteristic of our entire people in\nthe last two decades. The minds of the great majority have been focused\non business success, on the chase for the dollar, where success seems to\nhave justified some departure from the strict line of propriety or\nfairness, so long as it has not brought on criminal prosecution or\npublic denunciation.\n\nMore than this, the tendency of legislatures, too often controlled by\nlawyers engaged in active practice, has been to distrust judges and to\ntake away from them the power to control in the court room, as they do\nin the English and Federal courts. This has had a tendency to transfer\nto counsel greater discretion in respect to their conduct of cases and\ngreater opportunity to depart from ethical rules with impunity in the\nsomewhat reckless spirit of the times. The hampered power of the court\nto prevent the misconduct of counsel in many western states has not been\nconducive to certainty of justice nor has it been of a character to\nstrengthen public confidence in just results. We find the bitterest\nattacks upon the administration of justice in those jurisdictions in\nwhich the people and the legislatures have themselves laid the\nfoundation for the very abuses they subsequently criticise by taking\naway the power of the judge.\n\n\n\n\nCHAPTER III\n\nTHE EXECUTIVE POWER\n\n\nI have been introduced at a great many places by the exuberant chairman\nof a committee who referred to the fact that he was about to introduce a\ngentleman who exercised the greatest power in the world. While the power\nof the President may be very great as compared with the power of rulers\nof other countries, I can testify that when you are exercising it, you\ndon't think of its extent so much as you do of its limitations. I think\na study of the relative power of the King of England, the President of\nFrance, the Emperor of Germany, the King of Italy, the Emperor of\nAustria and the Emperor of Russia might involve a very interesting\ninvestigation. I am not sufficiently familiar with the power of those\nexecutive heads to speak on the subject, though I do know something of\nthe power of the King of England. In England and all of her colonies\nthey have a so-called responsible government. The English King is said\nto reign and not to rule, while the actual ruler is the Premier, who\ncombines executive and legislative power by virtue of his position as\nhead of the controlling party in Parliament. When the legislative\nmajority fails him, he goes out of office. It is a government\nresponsible both for legislation and for executive work.\n\nWith us, as you know, the President is a permanent officer for four\nyears. It is quite possible that he may be elected as President at the\nsame time that a Congress hostile to him is put into power. Such was the\ncase when Mr. Hayes was elected, and indeed when Mr. Cleveland was first\nelected there was a majority against him in the Senate. It happens more\nfrequently, however, that at the end of two years a majority of the\nopposing party is elected to a Congress at the mid-term election. Our\nmethod has been criticised as rigid and unresponsive to change in\npopular opinion, but I venture to think that it has some advantages over\nthe English one. It may be good for a country to have an occasional rest\nfrom legislation, to let it digest what reformers have already gotten on\nits statute book, and the period when the President differs from\nCongress offers such an opportunity for test and rest. We have rests in\nmusic, which are necessary to a proper composition, and I do not see why\nwe should not have rests in politics.\n\nI think, however, that we might advantageously give greater power to the\nPresident in the matter of legislation. One of the difficulties about a\nCongress--I say it with deference to that body--is that it does not know\nenough about the executive facts which ought to control legislation in\nthe course of an efficient government. The introduction of cabinet\nofficers on the floor of the House and the floor of the Senate to urge\nlegislation on the one hand, and to point out the defects of proposed\nlegislation, on the other hand, would furnish the necessary element.\nThis would, of course, make it requisite that cabinet officers should be\nable to look after themselves on their feet. They would have to know\ntheir Department and be ready to answer such questions as are put to\ncabinet officers on the floor of Parliament.\n\nPresident Wilson has inaugurated the policy of delivering his message to\nCongress personally. I think that is a good innovation. A Democrat could\nhave made it, not a Republican. Washington had to go to Congress, so had\nAdams, but when Jefferson came in he said, \"No, that is monarchical, and\nI will just write a letter to Congress,\" and so he did. Washington went\nonce to the Senate and attempted to have the Senate concur with him in a\ntreaty with the Indians. He took with him General Knox, who had\nfrequently dealt with Indians. John Quincy Adams, in his diary,\ndescribes what happened as he learned it from a member of the Senate at\nthat time. He says that in the conference, Washington found that every\nmember of the Senate thought he knew more about the Indian treaty than\nGeneral Knox. Whereupon, he, the father of our country, who has been\nrepresented as a model in every way, proved that he was no such \"sissy\"\nas some of his historians would like to make him out. His character was\none which develops into grand proportions when you study it, but he was\nno mere steel engraving of copy-book perfection. When he got through\nwith that particular session, he turned to Knox as he went out, and said\nhe would be damned if he would come to the Senate again. Now I do not\napprove of profanity generally, but somehow or other I rather like that\nstory because it lets in a little light on Washington and shows he was a\nman with good red blood.\n\nThe first power of the President that I wish to consider is the veto\npower. The English King has it, but never exercises it, i.e., he has not\nexercised it for two hundred years. If he attempted to exercise it under\nthe present British Constitution, he would shake the throne and should\nhe try it a second time he might not have a throne under him. The\nPresident, however, has the veto power under a provision of the\nConstitution. When he decides to differ with both Houses, certain\nmembers of demagogic tendency rise to say that the President is\nexercising a royal prerogative power, or that he is going back to the\ntime of Imperial Rome. This might frighten an inexperienced man, but in\nreality it is mere bluster. As a matter of fact, the President\nrepresents the people in a much wider sense than any particular\nCongressional orator, for he was elected by all the people, while the\nCongressman was chosen by only one district. The Constitution says that\nif he disapproves of an act, he shall send it back with his objections\nand it enjoins upon him the duty of examining every act and every bill\nthat comes to him, to see whether it ought to pass. He vetoes,\ntherefore, in his representative capacity, with legislative and\nsuspensive, but not absolute, power. A vetoed act is returned to the\nHouse, and if its supporters can succeed in getting a two-thirds\nmajority in each House, the bill can still pass over his veto. This\nrarely happens, however, for the President can usually give reasons good\nenough to command the vote of at least the one-third of one House that\nis necessary to sustain his veto.\n\nThe second great control exercised by the President is that of\nCommander-in-Chief. This includes, first of all, his command over the\narmy, which is complete. He can send the army where he chooses and he\ncan call out the state militia to repel invasion, to suppress\ninsurrection and to execute the laws, if the army or militia be\nnecessary. Of that he alone is the judge. Early in our history certain\nstate judges thought that the commander of the militia in each state\nshould pass on the question as to whether an emergency had arisen which\nwould justify the President in calling out the militia, but that was one\nhundred years ago.\n\nTo illustrate our practice now in regard to the execution of laws with\nthe aid of the army, there is one very striking instance which occurred\nwithin my memory. Debs organized the American Railway Union in order to\ntake the American people by the throat and say to them: \"You shall not\nhave any milk for your babies, you shall not have any food, you shall\nnot have anything. I am going to stop every railroad in the country\nuntil you come with me and make Pullman pay his men what I think they\nought to have, and what they think they ought to have.\" That was a\nsecondary boycott, which Mr. Cleveland said ought to be suppressed.\nSince it involved the stoppage of mails and interstate commerce, the\nUnited States courts issued injunctions to prevent the malcontents from\ncontinuing their work of obstruction. When Debs's Union defied the court\ninjunction, the President sent General Miles out to Chicago with a\nmilitary force to suppress that obstruction to the United States laws.\n\nAt this Governor Altgeld protested. \"I can take care of this; I have\nnot asked you to bring these men in here. Under the Constitution it is\nnecessary for the governor or legislature to request the President to\nsend troops in to suppress domestic insurrection which the governor of\nthe state cannot control.\"\n\nTo which Mr. Cleveland and Mr. Olney answered: \"That is true where the\ninsurrection does not relate to the United States laws, but where there\nis an obstruction of the United States laws, the Supreme Court has\ndecided repeatedly that the President is dealing, not with state\nterritory, but with the territory of the United States. He can execute\nthe laws of the United States on every foot of United States soil and\nhave the whole army enforce them.\" And so he did.\n\nAnother indirect power of the President as Commander-in-Chief was\nexhibited in a most remarkable way during the Spanish War. We took over\nsuccessively Cuba, Porto Rico and the Philippines, but for three years\nafter we had annexed the Philippines, Congress took no action in regard\nto any of them. They formed territory ceded to us by virtue of the\nTreaty of Paris and Congress thought the Philippines were a poker that\nwas a little bit hot for it to handle. The responsibility for them,\ntherefore, fell upon the President, and as Commander-in-Chief he\nintroduced a quasi-civil government, appointing a civil governor and\ncommission, whom he authorized to pass laws--subject to veto of the\nSecretary of War--and to enforce them. He thus carried on a complete\ngovernment in Porto Rico, Cuba and the Philippines under his power as\nCommander-in-Chief until Congress became sufficiently advised to enact\nneeded legislation for their government. Cuba was turned over to her\npeople, a Republic was set going. Then after several years,\ncircumstances made it necessary for us to step in and take Cuba again.\nThey had gotten into a row, as they frequently do in those\nLatin-American countries, and they were having a revolution.\n\nWhen we first let Cuba go, we made what was called the Platt Amendment\nto the Cuban Treaty, suggested by Senator Platt of this state. That\namendment provided for the restoration of order by the United States\nwhenever law and order were disturbed and whenever life, liberty and\nproperty were not secure. Mr. Roosevelt, therefore, sent me down to Cuba\nwith Mr. Bacon to see if we could not adjust the matter. When we\narrived, we found twenty thousand revolutionist troops outside the city\nof Havana. President Palma had been so certain of peace that he had made\nno provision to suppress insurrections, and these troops were just about\nready to march into Havana when I got there. I went out to stay at the\nhouse of the American Minister in a suburb just between the lines, and\nwe did what we could to compose the situation. In those countries when\nthey have a revolution, the first thing they do is to elect generals.\nThe next thing they do is to determine what the uniform of the generals\nshall be, and then they get the guns and last of all they organize.\nPresident Palma became discouraged and resigned so that I had to\nproclaim myself Provisional Governor of Cuba. The Platt Amendment said\nthat the United States could go into Cuba to preserve order; but the\nquestion was whether the President had the authority to go in without\nauthorization by a resolution of Congress. I always thought that he had\nand Congress seemed to agree to it. So we went in, established a\nprovisional government, passed a good election law, held an election\nand, at the end of a year, turned back the government to the Cubans,\nwhere it now is.\n\nThe President has not the power to declare war. Congress has that power;\nbut if a foreign nation invades our country, the President must, without\nawaiting such declaration, resist and use the army and navy for that\npurpose. It is, therefore, possible for us to actually get into war\nbefore Congress makes a formal declaration. That is what happened in the\nCivil War. The Southern states seceded and Mr. Lincoln had war on his\nhands before Congress could declare it. The President thereupon declared\na blockade of the Southern ports and the question then came up as to\nwhether it was a legal blockade so that prizes might be taken as in a\nnaval war. Our war vessels had captured merchant vessels trying to run\nthe blockade, had taken them into prize courts, and had sold them there,\ndistributing the proceeds among themselves. The owners fought the\nproceedings and these suits, called \"The Prize Cases,\" were carried to\nthe Supreme Court of the United States. The court held that while\nCongress under the Constitution had sole power to declare war,\nnevertheless, actual war might follow with all its legal consequences if\na nation invaded our country or if such an insurrection arose as that\nwhich had just taken place in the Civil War.\n\nLet me give you an example of presidential authority exercised in\npursuance of his constitutional duty to execute the laws even when\nCongress passes no law on the subject-matter. The Canal Zone was\nacquired by a treaty with Panama that followed its recognition--a\nrecognition made with such promptness that it has since attracted some\ncriticism. Congress passed a law that the President should have power to\ngovern that country for a year, but failed to renew the grant of power.\nThe question arose then as to what was to be done in the Canal Zone. A\nprior act covering the building of the Panama Canal required the\nPresident to build it through a commission, but that was all. He might\nbuild it anywhere, either in Nicaragua or Panama, but he had no express\ngovernmental power over the Canal territory. He had, however, to see\nthat the laws were executed, which meant that he must look after every\npiece of territory belonging to the United States and safeguard it in\nthe interest of the people. It seemed to us, therefore, to be within the\nexecutive authority, until Congress should act, to continue the\ngovernment of the Zone, maintain courts, execute men who committed\nmurder, and discharge all the political functions required to constitute\na law-abiding community.\n\nLet me give you another instance of the President's exercising a law\nthat Congress did not pass. Sarah Althea Hill thought she was married to\nSenator Sharon, at least she said she thought so. Senator Sharon was a\nrich man. She wished to share it. So she brought in the State courts of\nCalifornia a suit for divorce and alimony against the senator and\nexhibited a letter purporting to have been written by the senator\nadmitting the marriage. She got into a great deal of litigation and\nemployed as her lawyer Judge Terry. Senator Sharon then brought suit in\nthe United States Court in California to have this letter declared a\nforgery and delivered up to him. Justice Field of the United States\nSupreme Court heard the case on the circuit. Judge Terry, who had been\non the Supreme Court of California in its early days and had served on\nthe same court with Judge Stephen J. Field, was a noted duelist and was\nknown to have killed one man in a duel. Mr. Justice Field had been\nappointed from the California court to be a Supreme Justice of the\nUnited States by Mr. Lincoln during the war. Pending the litigation,\nSenator Sharon died and soon thereafter the association of Miss Hill and\nJudge Terry as client and counsel developed into a warmer relation and\nthey became man and wife. She was a very violent woman, as Judge Terry\nwas a violent man, and made threatening demonstrations in court when\nJustice Field gave the judgment against her. Justice Field sentenced\nMrs. Terry to thirty days' imprisonment for contempt because in her fury\nshe insulted the Court and attempted to commit violence upon the Judge.\nThe bitterness of feeling between the Terrys and Justice Field was\nreally heightened by the old association between Judge Terry and Justice\nField as judicial colleagues. The Terrys frequently declared their\nintention, when occasion offered, to kill Judge Field. Word of this came\nto the Attorney-General, then W. H. H. Miller, in Mr. Harrison's\nadministration. He notified the United States Marshal to direct a\ndeputy to follow Justice Field in his Circuit work and protect him\nagainst any threatened attack.\n\nAs Justice Field was proceeding north from Los Angeles to San Francisco\nto hold court there, he got out for breakfast at Fresno. Unfortunately\nthe Terrys reached the same station on another train at the same time.\nJustice Field and Neagle, the deputy marshal, got out of the train, went\ninto the restaurant and sat down. When Judge and Mrs. Terry came in and\nMrs. Terry saw Justice Field, she ran out to the car to get a revolver\nshe had left in her satchel by an oversight. In the meantime Judge Terry\nwent up to Justice Field, denounced him and struck him from behind.\nThereupon Neagle arose, saying, \"I am an officer, keep off,\" but Judge\nTerry continued to assault Justice Field. Neagle said he thought Judge\nTerry reached for a knife. At any rate, Neagle shot, and Terry fell dead\nat the feet of Justice Field.\n\nNeagle was at once indicted by a state jury for murder. He went into the\nFederal Court and got a writ of _habeas corpus_, asking to be released\non the ground that he was discharging a duty under the government of the\nUnited States. Judge Sawyer granted the writ and released Neagle. The\nstate of California took the case to the Supreme Court of the United\nStates. The court divided, with the Chief Justice and Justice Lamar\ndissenting. The majority of the court held, Mr. Justice Miller\npronouncing the judgment, that the President was justified by the duty\nimposed upon him by the Constitution to see that the laws were\nfaithfully executed. Although there was no specific law on the statute\nbook conferring upon the President authority to direct Neagle to take\nthe action he did, there was an implied obligation on the part of the\ngovernment to protect its judges in discharging their duty from the\nviolence of disappointed litigants, and this obligation was a law which\nit was the duty of the President to see executed. The President,\ntherefore, has the right through his Attorney-General, who is the finger\nof his hand, to direct an officer of the United States to protect to the\nuttermost a justice while on judicial duty, even if it necessitates\nkilling an assailant.\n\nI cannot tell you all the officers of the United States--internal\nrevenue men, customs men, post-office men, immigrant inspectors, public\nland men, reclamation men, marine hospital men--certainly 150,000 in\nnumber, who are subject to the direction of the President. In the\nexecutive work under this head, he wields a most far-reaching power in\nthe interpretation of Congressional acts. A great many statutes never\ncome before the court. The President or his officers for him have\nfinally to decide what a statute means when it directs them to do\nsomething. Many statutes contain a provision that under that statute,\nregulations must be made by executive officers in order to facilitate\ntheir enforcement. This is quasi-legislative work. The situation in\nregard to the present income tax illustrates the necessity for\nregulations. You will recognize that regulations adopted by the\nPresident and his subordinates are sometimes necessary to straighten out\nlaw. If you desire to study a maze or look into a labyrinth, I commend\nyou to the present income tax law.\n\nThen often Congress relies upon the discretion of the President to\naccomplish such tremendous things as in the Panama Canal. It directed\nthe President to build the Canal. It remained for him to appoint all the\npersons engaged in the work, and he became responsible for every one of\nthem. Another notable instance of the reliance of Congress upon the\nPresident occurred in the Spanish War, when it appropriated $50,000,000\nto be allotted at his discretion.\n\nYet it seems to me that a curtailment of the small duties now imposed on\nthe President might well be made. The number of his appointments, for\ninstance, might well be lessened. The President ought, of course, to\nappoint his Cabinet, the Supreme Court, ambassadors, ministers,\ngenerals and admirals, but beyond that I think appointments ought to be\nmade without bothering the President about them. We have introduced a\nCivil Service reform system with a Civil Service Commission, and I trust\nthat the matter of taking these subordinate officers out of politics\nwill be pressed generally as a much-needed reform.\n\nIs the position occupied by a postmaster of sufficient importance to\njustify the President in bothering with his appointment when he has such\na problem as the Mexican situation on his hands? We are coming to the\ntime when there are great complicated duties to perform under the\ngovernment. We have departed from the Jefferson view, and we now think\nthat the government can do a great many things helpfully, provided it\nhas experts to do them. Is it not entitled to the best men to do these\nthings? Yet how are experts obtainable unless they are selected to\npermanent positions by those who are looking for experts and not looking\nfor men who exercise influence at the polls?\n\nI recommended to Congress four times, that is, in each annual message,\nthat it enable me to put these men under the Civil Service law and in\nthe classified service; but it did not do it, and why? Because all local\nofficers now have to be confirmed by the Senate. That power of\nconfirmation gives a hold on the Executive and each Senator and each\nCongressman wants to name the postmaster and the other local officers in\nhis district or state. The consequence is that Congressmen do not wish\nthe Senate to lose the power of confirmation. They believe this personal\npatronage to be a means of perpetuating their own tenure. As a matter of\nfact, this is not the case. Few men help themselves politically in the\nlong run through the use of patronage. It is a boomerang. Some few\nmanage to make it useful, but generally when a man secures an\nappointment for a henchman, as the saying is in Washington--and it is a\nvery true one--he makes one ingrate and twenty enemies. The result is\nthat after he has served a term or two, he begins to find those aspiring\nconstituents, whom he did not appoint, rising like snakeheads to strike\nhim down.\n\nTherefore, if Congressmen really had wisdom and looked ahead, they would\nrid themselves of responsibility for these appointments, would abolish\nthe necessity for confirmation by the Senate, and would thus enable the\nPresident to classify them under the Civil Service law and merit system.\nBut we have made progress and I am not discouraged about it. Ultimately\nwe shall get the Senate to consent to give up that power, though at\npresent the Democratic majority in the two Houses is fierce against such\na suggestion, and quite naturally so, for, while the Republican party\nhas been in control for sixteen years, the trend into office has been\nRepublican and the Democrats wish to change it. That is human nature,\nand I am merely regretting, not condemning it. Perhaps if the\nRepublicans come back into power after four years, they will not be\nquite so hungry as the Democrats were after sixteen years of famine, and\nwe may have a little less wolfish desire to get at the offices.\n\nThe time taken up in the consideration of minor appointments by\nexecutive officers, the President and Cabinet officers especially, is a\ngreat waste and no one can know the nervous vitality that can be\nexpended upon them until he has had actual experience.\n\nOf course they lead to some amusing experiences, for there is nothing\nwhich gives such a chance for the play of human impulse as\noffice-seeking. I remember having a lady come into my office when I was\nSecretary of War. Her boy had passed the examination for West Point, but\na medical board had examined him and found that his chest did not\nmeasure enough for his height. She came in to urge me to waive that\ndefect. I explained to her the necessity for great care in the\nappointment of army officers, because if, after being commissioned, they\nhad any organic trouble, they were disqualified for further discharge of\ntheir duty, and would be retired on three-fourths pay without rendering\nany real service to the government. She listened with gloom to my\nexplanation, and asked me to look at the papers. I took them in her\npresence and went through them. I found that the young man had, on the\nbasis of 100, made 93 per cent in all his mental examinations. That\nisn't done by every candidate for West Point, and there is no reason why\nwe should not have brains as well as brawn in army officers. So I looked\nagain at the measurements and concluded he was a man we ought not to\nlose. I told her: \"Madam, I did not have so much difficulty in filling\nout my chest measurement. Your boy shows such general intelligence that\nI have no doubt he will have sense enough to pursue a regimen that will\nmake him sufficiently enlarge his chest measurement, so I am going to\nwaive the objection and let him in.\" She had not expected so quick a\ndecision in her favor, and was taken back a little. She hesitated a\nminute, and then, with an angelic smile, she said to me, \"Mr. Secretary,\nyou are not nearly so fat as they say you are.\"\n\nThen I had another experience. A lady in Washington, whose husband had\nsome political influence, came and labored with me for six weeks or more\nto appoint her son to a position. She secured the aid of Senators and\nCongressmen in formidable number and came with them to see that they\nspoke with emphasis. The place was one requiring technical\nqualification, and following the recommendation of the head of the\nBureau, I appointed somebody else. I then received a letter from the\nmother, saying that I was most ungrateful, since I declined to make her\na happy woman as I could have done by a turn of my hand. She complained\nfurther that she had labored with her state delegation and got all the\nvotes for an administration bill in which I was especially interested\nand this was the way I had rewarded her.\n\nWhen you get a letter like that, the first thing you do is to think how\nyou can be severe with a person who has committed an impropriety, or\neven been a little impertinent. Then you may compose an answer. Then if\nyou are wise, you will put the letter in a drawer and lock the drawer.\nTake it out in the course of two days--such communications will always\nbear two days' delay in answering--and when you take it out after that\ninterval, you will not send it. That is just the course I took. After\nthat, I sat down and wrote her just as polite a letter as I could,\ntelling her I realized a mother's disappointment under such\ncircumstances, but that really the appointment was not left to my mere\npersonal preference, that I had to select a man with technical\nqualifications, and had, therefore, to follow the recommendation of the\nhead of the Bureau. I expressed the hope that her son would go on to\naccomplish what she had hoped for him in the position which he then had.\nThat mollified her and she wrote me a note saying she was sorry she had\nwritten as she had.\n\nBut the appointment I sent in was not confirmed at once and after an\ninterval I received a letter which purported to come from her husband,\nthough it was in the same handwriting as all the others. I was therein\nadvised that, due to the nervous prostration that had followed her\ndisappointment in this case, she had to take to her bed and had\ndeveloped a most serious case of cancer of the stomach. Would I not\nrestore her to health by withdrawing the first name and replacing it by\nher son's? I had to write another letter, this one to the husband, to\nsay that I hoped the diagnosis would prove to be inaccurate, that I\nsympathized with him in the sorrow he must have in the serious illness\nof his wife, but that it was impossible to withdraw the name sent in.\nThe man whom I appointed was confirmed, and within two days after I\nreceived that letter, we gave a musicale at the White House. The first\ntwo people to greet Mrs. Taft and me were this husband and wife, though\nthe wife had so recently been _in articulo mortis_.\n\nAnother great power of the President is his control of our foreign\nrelations. In domestic matters, the Federal government shares every\nfield, executive, judicial and legislative, with the states, but in\nforeign affairs, the whole governmental control is with the President,\nthe Senate and Congress. The states have nothing to do with it. The\nPresident initiates a treaty and the Senate confirms it. The Senate,\nhowever, cannot initiate a treaty, the President alone can do that.\nCongress' powers to declare war and regulate our foreign commerce are\nits chief powers in respect to our foreign relations. So that, except in\nratifying treaties, in regulating commerce and in declaring war, the\nPresident guides our whole foreign policy.\n\nThrough the State Department he conducts all negotiation and\ncorrespondence with other governments and according to the Constitution\nhe receives ambassadors and foreign ministers. Now you might possibly\nthink that that meant only that he must have a flunky at the White House\nto take their cards--but it means a good deal more. He appoints\nambassadors and ministers to other countries and instructs them. He\nreceives the diplomatic representatives from other countries and does\nbusiness with them. He construes treaties and asserts the rights of our\ngovernment and our citizens under them. He considers and decides the\nrights of other governments and their subjects in a way which\npractically binds our government and people. And in order to receive\nambassadors and ministers, he must determine whether they have been\nproperly accredited, so that they have the proper authority to act for\nthe country they claim to represent.\n\nWhen there is a dispute as to what person is the chief executive of a\nforeign country and therefore entitled to send an ambassador or\nminister, the President must decide it. In other words, he alone can\nexercise the power of recognition. How important a power this is, we may\nknow from our recent experiences with Mexico, for President Wilson, by\nwithholding recognition from General Huerta, was able to render his\nlonger tenure as chief executive impossible.\n\nIn our foreign relations it is often the President's duty to formulate\nthe national claim of sovereignty over territory whose ownership is in\ndispute. This is a political question and his decision or claim in\nregard to it is taken as final by the Supreme Court.\n\nIn the Fur-Seal Controversy, Mr. Blaine took the position that our\njurisdiction reached out over the Bering Sea. The question was contested\nin the Supreme Court by the British and the Canadian governments. The\nSupreme Court said: \"We cannot determine this. It is a political\nquestion and must, therefore, be decided by the President through his\nSecretary of State.\" We then submitted the issue to an international\ntribunal, and the decision was against us.\n\nAnother great power of the President is the power of pardons and\nreprieves. This is not to be determined by rules of law nor indeed by\nabsolute rules of any kind and must, therefore, be wielded skilfully\nlest it destroy the prestige and supremacy of law. Sometimes one is\ndeceived. I was. Two men were brought before me, both of whom were\nrepresented as dying. When a convict is near his end, it has been the\ncustom to send him home to die. So, after having all the surgeons in the\nWar Department examine them to see that the statements made to me about\nthem were correct, I exercised the pardoning power in their favor. Well,\none of them kept his contract and died, but the other seems to be one of\nthe healthiest men in the community today.\n\nThe President is also the titular head of a party and ought to have a\nlarge influence in legislation. He is made responsible to the country\nfor his party's majority in Congress, and does thereby have some voice\nin legislation. Some Presidents have more control than others, but all\nPresidents find as the patronage is distributed, and as the term goes\non, that the influence and power that they have over legislation rapidly\ndiminishes. In fact, when there are no more offices to distribute and\nsomebody else comes into view as the next President, the authority of\nthe incumbent becomes strictly limited to his constitutional functions.\nAll of this tends to show that a President who seeks legislative changes\nand reforms should begin early.\n\nThe people think that the Presidency gives a man an opportunity to make\na lot of personal appointments. I can recall some of these personal\nappointments, but I tell you they are very few. There are certain\npolitical obligations involving the recognition of party leaders which\nhe has to take into consideration with reference to some appointments.\nBut when it comes to purely personal appointments, one can count them on\nthe fingers of one hand. It is well that it is so. A President with his\nproper sense of duty finds many men in office whom he ought to let\ncontinue and the question of friendship for others can play no part in\ndisplacing them.\n\nThe social influence of the President in Washington is not much. I think\nperhaps it might be useful if it were a little more, for the question of\nprecedence, which makes everybody outside of Washington laugh, sometimes\nbecomes a very serious matter. As the French ambassador once said, when\nthere are three hundred people, they cannot all go through the door at\none time. Somebody has to go first, therefore it is most important to\nfix who that somebody shall be. But nobody in Washington has the\nauthority to say. If only the army and navy were concerned, the matter\nwould be easy enough, because they are controlled by the President and\nhe can issue orders that they must respect, but with civil officers he\nhas no such authority. Congress could, of course, provide rules of\nsocial and official precedence, either by legislation or executive\norder, as is done in all European countries. But here such a proposal\nwould be laughed out of Congressional halls, though it would be a wise\nmeasure to prevent confusion, unnecessary friction and heartburning.\n\nThe very men who make most fun of such matters and profess to despise\ntheir consideration are in actual practice the most unreasonable as to\ntheir own places at functions. The House of Representatives is supposed\nto be the embodiment of democracy and contempt for social distinctions,\nyet of all the people in the world who have made a fuss over the matter\nof precedence, speakers of the House of Representatives have been the\nmost insistent on their proper place at official dinners. The speaker\nsays: \"I represent the body of the people who come from the soil and the\npeople who make this country. Therefore, I decline to sit after the\npresiding officer of the Senate.\" An ambassador says: \"I am the personal\nrepresentative of my sovereign. If he were here in Washington, he would\nsit next to the President.\" The Cabinet officer says: \"The President is\nthe head. I am connected with him as Secretary of War, the Cabinet is a\nsmall body and the Senate is a large body. Therefore, we are bigger men\nthan the Senate and we ought to have precedence.\" In fact, the head of a\nscientific bureau came in to see me one day and said, \"I think you ought\nto put me after the Supreme Court.\" He even filed a brief with me on the\nsubject, to the effect that \"I run an independent department. The judges\nrepresent the judicial branch, and the President the executive branch,\nand the heads of the two Houses, the legislative branch, while I\nrepresent the scientific branch.\" Indeed, the matter of procedure is not\nsuch a joke as it seems outside. It is not so important as to who comes\nfirst as that their order of precedence should be once determined.\n\nThe President is made responsible for everything, especially for hard\ntimes. Of course his supporters claim credit for good crops, so that\nperhaps it is not so unfair to charge him with responsibility for bad\ncrops and for everything else that happens wrong during his term. Every\nPresident strives to do the best he can for the country. It is a great\ntask, one of the heaviest in the world. A man does not really know,\nuntil he gets out of the office, what the strain is. And, therefore,\nknowing that he is struggling to do the best he can, while he may differ\nwith you, while he may do things that seem to you absurd, consider that\nhe is there, elected by the American people, as your representative, and\nremember that while he is in office he is entitled to your respect. Now,\ndon't be flippant in regard to him. Don't think it shows you to be a big\nman to criticise him or speak contemptuously of him. You may differ with\nhis policy, but always maintain a profound respect for a man who\nrepresents the majesty and the sovereignty of the American people.\n\n\n\n\nCHAPTER IV\n\nTHE SIGNS OF THE TIMES\n\n\nWe are living at a time when political and social conditions are a bit\nchaotic, and it is a little difficult to distinguish between the\nsymptoms that are ephemeral and those which are permanent. What we must\ndo is to try to make things better and to save from the past the things\nwhich are good. It is often true that a movement that is excessive and\ndestructive in one way, ends by being the basis of great progress after\nreaction from its excesses has left what is valuable in it.\n\nOur American Revolution, which we are accustomed to regard as quite\nimportant--and it was for us--did not really represent a great world\nchange such as was represented in the French Revolution. It grew out of\na very unwise, selfish colonial policy on the part of Great Britain. We\nwere right and wise in putting it through, and our ancestors\ndemonstrated great courage and great tenacity in fighting it. It\ncertainly gave us independence and an opportunity for expansion that we\nshould not otherwise have had. But the pap that we have been brought up\non with respect to the tremendous outrages which Great Britain\ninflicted on us was sweetened a little bit. If you would see the other\nside, read Trevelyan's \"American Revolution.\" In this you will see that\nwhile the right was certainly with us, we were not quite so much\noutraged as it seemed in our earlier childhood studies. The American\nRevolution did as much good for England as it did for us, because it\ntaught her proper colonial policy, and today the colonial policy of\nGreat Britain is one of the greatest instances of statesmanship in\nhistory. In her dealing with Canada, with Australia and with the South\nAfrican Republic, she has given them such self-government that, far from\nwishing to sever the bond with the mother country, they cherish it.\n\nThe French Revolution indicated a very much more important movement\namong peoples. It developed awful excesses. The wild declarations and\nextremes practiced by the Committee of Safety in the French Revolution\nwere revolting to any man affected by ordinary humane considerations and\nhad in fact a remarkable effect in strengthening conservatism in\nEngland. Indeed, they caused the issue and the bitter personal quarrel\nbetween the one-time warm associates, Burke and Fox. The natural result\nof those excesses was to be expected. It took the shape of the man on\nhorseback. The imperial control of Napoleon led the French people into\na military waste of strength which has affected the French race even\ndown to the present time. Yet Napoleon, by building up his Code\nNapoleon, and by spreading over Europe the idea that the people were the\nbasis of government, profoundly affected political conceptions and\nconditions. There followed a reaction in the Holy Alliance, which was a\ncombination to maintain the Divine Right of Kings, and then the spirit\nof the French Revolution reasserted itself in 1830. In fact from then on\nuntil now the movement toward more and more popular government has gone\non continuously in France, Germany, Austria and elsewhere. It is\nspreading today even more widely than it ever did before, and every\ncountry, even Russia, has to count the cost with respect to the will of\nthe people.\n\nWhen I went through Russia after the Russian-Japanese War, I met one of\nthe leading diplomats of that country who greeted me with, \"Well, how do\nyou like it?\" \"How do I like what?\" I asked. \"How do you like helping\nJapan to lick Russia?\" Those were the homely expressions that he used.\nTo which I replied, \"We did not help Japan to lick Russia.\" \"But,\" he\nsaid, \"you did in effect. Your people and your press sympathized and\nthey expressed the kindly sympathy that counts for so much at such a\ntime.\" \"The government cannot control our people,\" I responded. \"They\nthink for themselves and express themselves as they see fit. We cannot\ncontrol the press in our country, but we have observed all the laws of\nneutrality with respect to the war, and if some of the people expressed\nthemselves in favor of Japan, it was only because they were in favor of\nthe under dog in the fight.\" \"Why did you give up?\" I inquired further;\n\"You were getting stronger and stronger.\" \"Yes,\" he said, \"we had to\nfight at the end of a 5,000-mile, single-track railway, but handicapped\nas we were, we got our forces out there ready to fight and we could have\ngone in and beaten the Japanese.\" \"Why didn't you?\" I asked. \"Why did\nyou make peace?\" \"The trouble is,\" he explained, \"we were living on a\nvolcano at home. Our people were opposed to the war, and we did not go\non, lest the throne would be a forfeit.\" This is only an indication that\neven in the country that is supposed to represent the most absolute of\nempires, the people are manifesting a control. The Douma was given too\nmuch power at first, so that universal suffrage was necessarily a\nfailure in the condition of the people at that time. But the Douma now\nis gradually acquiring useful power and in the course of the next\ntwenty-five or fifty years Russia will probably have a popular\nconstitutional government. We have had democracy in this country for\none hundred and twenty-five years, or indeed for two hundred and\ntwenty-five years. It is now proposed to have more democracy to supply\nthe present defects of our existing democracy. This is one phase of the\npresent situation that I wish to discuss. Another is the spread of the\nfraternal spirit, the desire of one to help another, the actual\nimprovement and increase in the brotherhood of man which we are seeing\nin society, and a third is trades-unionism, its essence and what is to\nbe hoped for or feared from it.\n\nIf you will read a book like Chamberlain on \"The Foundations of the\nNineteenth Century,\" especially the preface, which is written by a man\nwho uses a better style than Chamberlain, you will find that he attempts\nto summarize the progress of the previous eighteen centuries as a\npredicate for the strides of human civilization in the nineteenth. As he\nminimizes the effect of one century and then another, you note how few\ncenturies, in his judgment, play any part in the onward march, and you\nare discouraged as to what one man can do to help along any movement\nthat shall really be world-wide or permanent.\n\nThe effect is much the same upon your personal hope of accomplishing\nsome good in the world as when a professor of astronomy takes you over\nto the observatory, lets you look through the telescope, tells you that\nlight takes something like eight minutes to come the 95,000,000 miles\nfrom the sun to the earth, and then says that the sun after all is a\npretty poor thing considered in connection with what other suns there\nare. When you find furthermore that some stars are so far distant that\nthe light you are now receiving on your retina started from them\ncenturies ago, you say to yourself: \"Well, what's the use? If we are\nsuch atoms and so unimportant in the general result, what's the use?\"\n\nStill if you study Chamberlain's history of the eighteen centuries you\nwill find that, after all, the men who were real factors in the world\ncivilization were the geniuses who were able to interpret and enforce\nwhat was inchoate in the minds of all but had no definite expression and\nled to no useful action. Each atom counts something, two make a molecule\nand the world is made up of them--at least it was in my college days.\nTherefore, what we are here for is to make the best possible effort to\nhelp along the general weal, and it is no excuse, because we cannot play\na large part, that we should play no part at all and should feel no\nsense of responsibility for what we can do.\n\nWhat then of conditions of civilization in our country in the last\nhalf-century? The Civil War grew out of a great moral and social issue.\nIt was a moral issue on the part of the North and a social issue on the\npart of the South. Material considerations were subordinated. After the\nwar we had a pretty hard time in getting over its immediate effects. The\npanic of 1873, which prostrated all business, was the result of the\nexcesses of the war, the overissue of legal tender and the feverish,\nunhealthy expansion that followed. In 1878, we resumed specie payments.\nI presume no country in the world ever showed such an enormous expansion\nand such material growth as ours between 1878 and 1907. It was shown in\nthe useful inventions. Steam had been invented before, but it was\nincreased in its uses, and electricity was made the tool of man. Now it\nis easy to follow that kind of material expansion. We can count the\ngrowth in wealth and trace the effect of it on the people, for they all\ngot into the chase for the dollar.\n\nIn the West, the pioneer spirit was so strong that they were glad to\nhave anything in the way of development at any cost. Counties would\nissue railroad bonds to build railroads and would give the bonds to the\nrailroads. They would give franchises of all sorts and do everything\nthat they thought would help open the country. There was a most\nsubstantial increase in the average income, and the average comfort,\nespecially in the bodily comfort, of everyone. Have you ever thought\nthat today the humblest workman has more bodily comfort in many ways\nthan Queen Elizabeth or even George III? We had learned the advantage of\ncombination in machinery and we adopted it in business.\n\nThis brought about great combinations of plant and capital which reduced\nthe cost of producing commodities necessary to man to a price never\nconceived of before. I do not wish to depreciate the value or importance\nof improvement in material comfort. When you hear a man denounce it, you\nmay know that either he is not a clear, calm thinker, or else he is a\ndemagogue. Material growth and material comfort are essential for the\ndevelopment of mental and spiritual activities. The result of this\ncombination and material expansion, however, was to create great\ncorporations which began to get control of things. The same spirit of\ncombination entered into politics and we had machines and bosses which\nlent their hand to, and furnished a complacent instrument for,\ncorporations. Time was when they ordered delegates in a convention with\nthe same degree of certainty that the order would be supplied, as they\ndid steel rails or any other commodity. That time has passed and why?\nBecause the danger of plutocracy forced itself on the people. Leaders\ntook it up and showed it to them; and in the last ten years we have had\na great movement to eliminate corporate and money control in politics.\nGreat statutes have been passed--the anti-trust law, the interstate\ncommerce law, the statutes against the use of contributions from\ncorporations in politics, the statutes requiring the showing of the\nelectoral expenses, have all been brought about in response to a popular\ndemand.\n\nThe people failed to scrutinize before, but now that they are aroused\nand have taken matters in their own hands, they have brought about\nreform. The fact that he is supported by bosses is now generally enough\nto defeat a man, and the charge that he has a machine with him is enough\nto interfere with his electoral success. Organization is necessary for\npolitical success; even reformers find that out after they get into\npolitics, but today there is an unreasonable prejudice against it. The\ngreat and good effect of the reform, however, is that corporations are\nno longer in politics. Of course corruption is not all gone, but it is\nlargely stayed, and there is no longer any chance that corporations can\ncontrol as they did.\n\nBut the leviathan of the people cannot be aroused in this way and his\nmovement stopped at the median line. We must expect unwise excess.\nSincere reformers have reasoned that because we had the representative\nform of government during this corrupt period, it is the representative\nform of government which is responsible. Because we had courts during\nthe corrupt period, the courts are responsible for the corruption.\nTherefore we must change the representative system by injecting more\ndemocracy into it and we must change the courts by injecting more\ndemocracy into them and require the people at an election to decide\ncases instead of judges on the Bench. These are the excesses to which we\ntrend.\n\nWe are a pretty great people. We admit it. We have great confidence in\nwhat we can do, and when we are set, neither an economic law drawn from\npolitical science nor experience seems a very formidable objection. We\nare a successful people in machinery, and so we take our analogy for\npolitical reforms from machinery. We found that by uniting various\nmechanical elements we could make machines which would do as much as one\nhundred or one thousand men in the same time. So we think that if we are\nonly acute enough to devise a governmental machine which will work\nwithout effort on the part of the people, we can sit at home while\nelections run themselves so well that only what the good people desire\nin political action will necessarily result. We want the equivalent of\nwhat, in the slang of practical mechanics, we call a fool-proof machine,\nbecause anybody can run it and no fool can interfere with its normal\noperation. So these political reformers are hunting a\ncorrupt-politician-proof machine for government. It does not and cannot\nexist. No government can exist which does not depend upon the activity,\nthe honesty and the intelligence of those who form it. The initiative,\nthe referendum and the recall have been urged and in many states\nadopted, as a machine which no boss or corrupt politician can prevent\nfrom producing honest, effective political results. They are expected to\nreform everything and those who doubt their wisdom are, for the time\nbeing, in the minds of many enthusiasts, public enemies.\n\nThe representative system, on the contrary, recognizes that government,\nin the actual execution of governmental measures, and in the actual\ndetailed preparation of governmental measures, is an expert matter. To\nattempt to devise and adopt detailed legislative measures to accomplish\nthe general purpose of the people through a mass vote at a popular\nelection is just as absurd as it would be for all those present at a\ntown meeting to say, \"We will all of us now go out and build a bridge,\nor we will use a theodolite.\" Thus to say that by injecting more\ndemocracy you can cure the defects of our present democracy is to\nexpress one of those epigrams that, like many of its kind, is either not\ntrue at all or is only partly true and is even more deceptive than if\nit were wholly untrue.\n\nTake the power of appointment in executive work. You elect officers,\nchoosing men of character, intelligence, and experience for a few great\noffices, and then what do you do under the Federal Constitution? You\nturn over to the President the appointment of great officers because he\nneeds intelligence, knowledge and skill to make their selections.\n\nConsider the system of general direct primaries in the selection of\njudges. There is a ticket at the primaries on which something like\ntwenty or thirty lawyers run for the Supreme Bench. Some of them go\naround and tell the electors how they will decide on questions after\nthey get in. The qualifications of most of them as lawyers and as men\nare not known to the people. Some of them are prominent because they\nhave been in the headlines of newspapers as figuring in sensational\ncases. Others have political prominence but no public experience to test\ntheir judicial capacity. Do you think this method of selection by the\npeople would lead to the choice of a learned, skilled lawyer with that\nexperience, courage and fine judicial quality that are to make him a\ngreat judge? Of course it would not. It has been my duty to select more\njudges in a term of four years than any other President, and I have had\nto look into and compare the results of selection of judicial\ncandidates by popular general primary and by convention, so that I know\nwhat I am talking about when I say that the primary system has greatly\ninjured the average capacity of our elective judiciary.\n\nWhy should we not use common sense in matters of government just as we\nuse common sense in our own business? Why should we be afraid to tell\nthe people that they are not fitted to select high judicial officers?\nThey are not. You know you are not. You could not tell me who would be\ngood judges for Connecticut, or for any state in the Union where you\nhappen to live unless you went about and investigated the matter. If you\nare put in a position of responsibility, you have sense enough to know\nwhere to find out the facts and then to make the selection, but the\npeople lack that opportunity. So how is the question to be solved? By\nelecting a Chief Executive and charging him with the responsibility of\nselecting competent men to act as judges. That is what is meant by the\nshort ballot.\n\nReformers-for-politics-only include as many vote-getting planks in a\nplatform as they can get in it without regard to their consistency or\ninconsistency. They sometimes combine the short ballot with the\ninitiative, referendum and recall though they are utterly at variance.\nThe referendum is the submission of every issue to the people.\n\nThe short ballot, on the contrary, means putting up one or two men whose\nnames shall not encumber the ballot. Have you ever seen these ballots?\nThey are a yard long and a yard wide. They have a hundred and twenty\nnames on them and the people are expected to make a selection. They are\nto make a selection of ten out of fifty or one hundred names. Why, it\nwould seem to be mathematically demonstrable that that is absurd. But\nwhen some men get into politics and talk about the people, it seems as\nif they had to abandon ordinary logic. I am just as much in favor of\npopular government as anybody, but I am in favor of popular government\nas a means to attain good government, not in order to go upon the stump\nand say, \"Vote for me because I am in favor of the people. The people\nare all wise and never make a mistake.\"\n\nNow what is the initiative? In practice, it means that if 5 per cent of\nthe electorate can get together and agree on a measure, they shall\ncompel all the rest of the electorate to vote as to whether it shall\nbecome law or not. There is no opportunity for amendment, or for\ndiscussion. The whole legislative program is put into one act to be\nvoted on by the people. Speakers will get up and claim that the\nmillennium will be brought about by some measure that they advocate.\nSuppose it is voted in? It never has had the test of discussion and\namendment that every law ought to have. I am not complaining of the\nmovement that brings about this initiative and referendum, for that is\nprompted by a desire to clinch the movement against corruption, on the\ntheory that you cannot corrupt the whole people and that the initiative\nand referendum mean detailed and direct government by the whole people.\nBut the theory is erroneous. The whole people will not vote at an\nelection, much less at a primary. When the people are thus represented\nat the polls by a small minority there is nothing that the politicians\nwill not be able to do with that minority when they get their hands in.\n\nThis is still a new movement, for which we have little precedent to\nguide us, but we have seen politicians fit their methods to any form of\ngovernment. Their chance is always through the neglect to vote on the\npart of the majority of the electorate and this new system calls out\nfewer votes than ever.\n\nNow what is the referendum? It is a reference of the thing proposed by\nthe initiative to the people who are to vote on it. These\nreformers-for-politics-only are never content to acquire a majority of\nthe electorate vote for the adoption of the measure referred. They seem\nto love the promotion of the power of the minority.\n\nWhat answer do the people themselves give with reference to the wisdom\nof the referendum? At many elections candidates run at the same time\nthat questions are referred to the people, and what is the usual result\nof the vote? In Oregon, where they have tried it most, and where the\npeople are best trained, they do sometimes get as much as 70 per cent of\nthose who vote on candidates to vote on the referendum; but generally,\nas in Colorado, the vote at the same election upon the referendum\nmeasures is not more than 50 per cent--sometimes as low as 25 or 20 per\ncent--of those who vote for candidates. Why, in New York they were\nvoting as to whether they should have a constitutional convention, and\nhow did the total referendum vote compare with the total electorate? It\nwas just one-sixth of that total.\n\nThey have tried it in Switzerland. We get a good many of these new\nnostrums from that country. They said in Switzerland, \"These men vote\nfor candidates, they shall vote on referendums.\" What was the result?\nThe electors went up to the polls and solemnly put in tickets. When they\nopened the ballots, they were blanks. What does that mean? It means that\nthe people themselves believe that they do not know how to vote on\nthose issues, and that such issues ought to be left to the agents whom\nthey select as competent persons to discuss and pass upon them in\naccordance with the general principles that they have laid down in party\nplatforms. In Oregon, at the last Presidential election, the people were\ninvited to vote on thirty-one statutes, long, complicated statutes, and\nin order to inform them, a book of two hundred and fifty closely printed\npages was published to tell them what the statutes meant.\n\nI ask you, my friends, you who are studious, you who are earnest men who\nwould like to be a part of the people in determining what their policy\nshould be, I ask you to search yourselves and confess whether you would\nhave the patience to go through that book of two hundred and fifty\nclosely printed pages to find out what those acts meant? You would be in\nactive business, you would go down to the polls and say, \"What is up\ntoday?\" You would be told: \"Here are thirty-one statutes. Here are two\nhundred and fifty pages that we would like to have you read in order\nthat you may determine how you are to vote on them.\" You would not do\nit.\n\nThere was once a Senator from Oregon named Jonathan Bourne, who\nadvocated all this system of more democracy. He served one term in the\nSenate and then sent word back to his constituents that he was not\ncoming home at the time of the primary. He said that he was not on\ntrial, for a man who had worked as hard as he had for the people could\nnot be on trial. Instead, he said, it was the people of Oregon who were\non trial, to say whether they appreciated a service like his. They did\nnot stand the test, and he was defeated at the primary. Then he\nconcluded that after all he would have to forgive them and take pity on\ntheir blindness. So he went out to Oregon and ran on another ticket to\ngive them the benefit of his service. But still they resisted the acid\ntest. He himself went to the polls to vote at this election where there\nwere thirty-one statutes to be approved or rejected. How many of the\nthirty-one submitted to him do you suppose he voted for? The newspapers\nreported him as admitting that he voted on just three, and the other\ntwenty-eight he left to fate. Now, gentlemen, is not that a\ndemonstration? Is not that a _reductio ad absurdum_ for this system of\npure and direct democracy?\n\n\n\n\nCHAPTER V\n\nMORE SIGNS OF THE TIMES\n\n\nThe present movement for a purer and more direct democracy--the\ninitiative, referendum and recall--is clearly an ineffective method of\nsecuring wise legislation, good official agents, or even a real\nexpression of the people's will. The representative system is the most\nvaluable system that has thus far been invented to make popular\ngovernment possible and the introduction of more democracy, so-called,\nis a retrograde step. It is going back to the machinery of the New\nEngland town meeting and of the Republics of Greece and Rome, which we\nhave given up because conditions have so changed as to make it\nimpracticable and ineffective.\n\nIn the small number of people who constituted the town meeting in New\nEngland, or in a Greek city, it was possible to discharge the\ncomparatively simple functions fulfilled by government because of the\nhigh average intelligence of the freemen who took part. But even the\nGreeks ran into difficulties, and if you will read Lord Acton, possibly\nthe greatest historical authority on the subject, you will find that\npure democracy, as it is called, resulted in disaster. We now have a\nmuch more complicated government and more democracy will not supply its\nneeds.\n\nThe representative system, much abused as it is, is the system that has\nrescued us from plutocracy. Its laws are the laws that have done the\nwork. Congress has adopted laws that have taken hold of the\ncorporations, and Congress is the most perfect model of representative\ngovernment. Why did Congress act? Because the people were aroused. You\nmust have the people aroused in order to make any system effective, and\nwhen this is the case under the representative system, there is no\ndifficulty about its working.\n\nThe general primary is, of course, a good thing for certain leading\noffices, but if you resort to it for selecting judges or subordinate\nofficials whose qualifications the public cannot be supposed to know,\nthe result will be anything but good. Men will be put into office by\nsome fortuitous circumstance, such as a particular advertisement in the\nnewspapers. Thus your Senator, and your governor, might well be elected\nby the general primary as the result of party selection, but if the\npeople selected judges and subordinate officers they would have to take\nmen without regard to their qualifications. The short ballot means, as I\nsaid, that the people should select leading officers who should in turn\nselect the subordinate officers and appoint the judges.\n\nTo the objection that voters will not vote on referendums, it is urged\nthat they ought to be compelled to do so. This is a futile remedy. Burke\nsaid you cannot bring an indictment against the people, and it is\nequally true that you cannot indict a great majority of the electorate\nfor not complying with their electoral duties. Suppose you attempt to\nforfeit their right to vote, you may injure them, but you injure the\nwhole people a great deal more. The 80 per cent of the population whose\nwelfare is directly affected by the action of the electorate, but who\nare not by law permitted to vote, are entitled to have the more\nintelligent voters retained in the electorate. For, I am sorry to say,\nit is generally among the intelligent part of the community that we find\nneglect of electoral duties. The wisest course, therefore, is to give to\nthe people as much electoral duty as they are ordinarily able and\nwilling to perform, and no more. The fundamental fallacies in the\ninitiative, referendum and recall are, first, that they impose on the\nvoters three times the electoral work they had to do under the\nrepresentative system, and second, that the additional work involved is\nof a kind that could be done much better through agents than by the\npeople directly. As to the recall of officers, I have only to say that\nif you elect a man for three years to try to help your city, or state,\nyou must not make him subject to recall at any moment by those\ncandidates or people whom he has had to disappoint in order to do his\nwork effectively. Under the system of recall you are not going to secure\nthe men who will work well by looking ahead to preserve the real public\ninterest, but men who are trimmers, devoting their time to politics and\ndoing as little as possible to avoid criticism. Your executive officers\nshould be men of independence, courage and ability, who are interested\nin the public and willing to encounter criticism for the time being in\norder that they may carry out those policies that are going to inure to\npublic benefit in the end. By making them subject to recall, you\neliminate all independence and courage in your officers.\n\nAnother sign of recent times which will repay consideration has been\naptly termed \"muck-raking.\" Mr. Roosevelt took the word from Bunyan's\n\"Pilgrim's Progress\" to describe the irresponsible and slanderous\nattacks upon public officials, which were made merely for the purpose of\nselling the wares of penny-a-liners. To eliminate corporations from\npolitics and to bring them under government control, as I have\ndescribed, it was doubtless necessary to formulate charges against\nindividuals and political leaders and it was not to be expected that\nmisstatements would not creep into such personal attacks. While many\npeople were doubtless injured unjustly, it was essential that general\ncorrupt conditions should be revealed to the public. But there were a\ngreat many who were induced to go into outrageous muck-raking solely for\nprofit, and magazines filled with such stuff and spreading real poison\namong the people were sent in the mails at a much less rate than it cost\nthe government to carry them. I am glad to say muck-raking is not so\nprofitable now and it has been greatly reduced in volume.\n\nBut the opportunity for attacking prominent and powerful men in this way\nhas served to create a condition that we still suffer from. It has\nbrought about a feeling that nobody is to be trusted, and it has spread\ntoo far the idea that all men are corrupt. In fact, it has led to the\nfeeling that everybody is on the same level in matters of character,\nlearning, skill and effectiveness of labor, and, in short, that every\nman is as good as everybody else in everything. The idea is that men are\non a dead level. There is no room for leadership in such a view.\nInequality is essential to progress. If you make a dead level there will\nbe no interest in life or motive for effort, and you will destroy the\nvery spring of progress and the fountain of Christian civilization.\n\nWe now have political parties that are made by vertical divisions among\nthe voters. In each party we have the intelligent and the fortunate,\nwith those who are not so intelligent nor so experienced nor so well\ncircumstanced. What will be the tendency of this refusal to recognize\nintelligence and high character in those who deserve it? It will make\nthe parties horizontal layers in the body politic. It will unite in one\nparty those who are ignorant and unfortunate, and array them against the\nintelligent and those who have the ability for leadership. When that\ncomes about, the Republic will be in danger, because the permanence and\nusefulness of the Republic rests upon the controlling influence of men\nof intelligence, experience, patriotism and character. This array of a\nproletariat against intelligent and successful leadership produces\nfactionalism in society. Factionalism is a class spirit which will\nsacrifice the interest of the whole to the interest of the class. It\nsometimes permeates a majority, but more frequently a minority. It is\nillustrated for us by the militancy of English women suffragists, who\nwill sacrifice property, art and even life, in order to convince the\nmajority that unless they receive the vote they will destroy all\nsociety.\n\nWe cannot, of course, yield to such a force. Nor can we yield to\ntrades-unionism when it seeks to promote so-called labor interests by\nlawless violence and dynamite. The bonds of society will be loosed if we\ndo. I would not for a moment be thought to say that those who are in\nfavor of more democracy, through the initiative and referendum, are\nfactionalists, and insincere in their view that that system will work a\ngood result in the fight against corruption in politics. I only think\nthat they are idealists in this matter, and don't fully understand the\npractical operation of the system which they recommend.\n\nIn this movement against corruption in politics and corporate control,\nit was necessary that corporate control should be attacked. The\nmuck-raking added to it aroused a spirit against all success in business,\nwhether the methods pursued were honest or not. The result has been a\nhysteria that prompts hostility to capital even when it is working in\nhonest lines and earning an honest profit. In many states it has led to\nexcessive restrictive legislation and has terrorized capital; it has\nshrunk investments and frightened those who have money until today there\nis lots of money in the banks everywhere but it can't be borrowed for\nany length of time because nobody will put it into permanent or active\ninvestment.\n\nThis state of affairs is likely to continue for some years. I am not\ncomplaining about it because it is part of what we had to pay for the\ngreat reform that was accomplished. After a while confidence will be\nrestored, and we shall come to our senses, just as they did in Kansas in\nthe Populist days. The Kansas farmers concluded that all their\nunhappiness, and they suffered real stress, was due to the wicked\nmortgagees who had lent them money on mortgage security and who insisted\non the payment of interest and even the principal when it was due. So\nthey elected a Populist legislature and passed a law providing that a\nmortgagee could not foreclose his mortgage under two years. They did\nthis by stay laws and by requiring an obstructive procedure in\ncollection of debts. As a result, capital fled the state as men would\nflee yellow fever. When there was no money at all left in the state and\nthey found that they couldn't get any, they began to recognize the\nbenefit in money loaned on mortgages. Their next legislature repealed\nall these laws and devoted its attention to advertising their change of\nattitude in Eastern markets where money could be had and mortgages could\nbe floated, promising to be good thereafter, and in general welcoming\nthe capitalists who would advance money on farms.\n\nThe next sign of the times is pleasanter to dwell upon, that is, the\nspread of the fraternal spirit that has grown out of this great\nmaterial development. Material development in this country had grown\ninto corruption, undue luxury and waste at the hands of men who did not\nrealize the responsibility of having been fortunate in accumulating\nmoney, and this absorption in the chase for the dollar began to pall on\nthe people. They tired of statistics of the growth of business, and\nbegan to look about for some justification for our activities. The\nchange has brought a greater popular interest in the less fortunate who\nhave fallen behind in the race.\n\nThis feeling has much weakened the influence of the _laissez faire_\nschool of political and economic thought which was largely in control\nwhen I was in college. Professor Sumner was a strong member of this\nschool. He was sure of his opinions and taught them. But we have now\ndrifted away from some of his moorings, and today a good many professors\nare giving way to their imagination in suggesting remedies that have not\nstood the test of experience. Yet it is generally conceded that the\ngovernment can do a lot to help the people that individual enterprise\ncannot do. We have also gone far in the matter of regulation, though\nthere again we are likely to go to excesses.\n\nIt is quite probable that we shall find out by hard knocks that the\ngovernment cannot perform everything now expected of it. Nevertheless,\nunder the influence of a greater fraternal spirit, we have done a great\ndeal. The housing statutes, the safety appliances both for passengers\nand employees, the restrictions on the hours of labor, the rules against\nchild labor, the pure food law, the white slave law, the thorough health\nregulations, the control of public utilities, the growth in the public\ncharitable institutions of the state, the parcels post and the rural\ndelivery, all are instances of what the government has done to help the\nindividual by applying the results of public taxation and restrictive\nlaws. Moreover, we find among rich men a greater feeling of\nresponsibility for their fortunes, which is proven by their large\ndonations. Among those less wealthy we find an activity in philanthropic\norganizations and in work of a charitable character that has vastly\nincreased during the last decade. In education, too, we have widened\nout, especially in vocational study, by preparing the pupils directly\nfor wage earning by skilled labor.\n\nUnfortunately, however, many good people in social settlements and in\nphilanthropic work devote their attention so exclusively to the sore and\nrotten spots of society that they lose their sense of proportion, and\nbring hysteria even into this movement. Persons so affected come to\nthink that if suffering, wickedness or squalor is permitted to exist\nanywhere, society must all be bad. There must always be sin, and there\nmust always be neglect and waste until we get to the millennium, which\nis not yet so near that we can see and feel it. In making our estimate\nof human progress, we must size up the whole situation and take the\naverage condition. Similarly in attempting to remedy a local or special\nevil, we must avoid the injustice of unduly sacrificing the general\nwelfare. By extreme measures planned to accomplish what may be good in\nthe abstract but is still not practical, we can make the cause\nridiculous.\n\nEugenic reformers, for instance, plan to rush right into regulation of\nhuman society and arrange marriages just as horses are bred at a stock\nfarm. It has made some progress in Wisconsin, where they have required\nexamination of those about to marry and certificates of health before\nissuing the marriage license. But I don't think the American people are\nquite ready to submit to that kind of regulation. If it could be\nenforced, it might be a good thing for the race, but a strong sentiment\non the other side makes it impractical. In Wisconsin the law is being\nignored and in foreign countries where restrictions upon marriages are\nrigorously enforced, marriage is dispensed with and concubinage results.\n\nThere is another feature of this present hysterical condition that, I\nhope, is going to disappear. But we might as well recognize it. That is\nthis wish to exculpate the sins of those who are unfortunate by putting\nthe blame on society at large. The desire seems to be, if possible, to\nmake scapegoats of those who are fortunate. It is this sentiment that\nhas given rise to investigations into the cooperative stores in order to\ncharge their managers with responsibility for the prostitution of some\nof their employees because of the wages they pay. As the investigation\nshows, there never was a more unfounded charge, but the very fact that\nit was used is an indication of what I mean. It manifests itself in the\nmovement to dispense with all reticence and amplify in every way sex\neducation on the theory that society is to blame because it is not\ntelling young people of the danger of sin. You do not have to stand over\na sewer and breathe in the bad smell in order to recognize that it has a\nbad smell when you meet it again.\n\nI am strongly in favor of having young men and young women know certain\nthings about sex matters, the young men through lectures in school or\ncollege, and the young women through instruction by women who can tell\nthem in a short time all they need to know; but this idea of emphasizing\nand expanding the subject and of cultivating a free interchange of\nthoughts between the sexes is most dangerous. For one hundred years\nthese subjects have been suppressed in America to the great benefit of\nsociety and it is well that they should remain so. So-called reforms in\nthis direction are made the excuse for pruriency in drama, in novels, in\nmoving pictures and in other ways that are distinctly vicious in their\neffect. They promote lubricity and although such literature and\nexhibitions may have the support of good people who think they are\nadvocating great principles, they should be condemned.\n\nTake another instance. Of course we all wish penitentiaries to be free\nfrom disease, and we are interested in prison reform to the extent of\nmaking them as healthful as possible for the prisoners. But this idea of\nmaking society a scapegoat and ridding everybody from responsibility for\nhis sins, on the theory that his grandfather or grandmother was wicked\nand he is only doing it because of his heredity, makes the preservation\nof law and order impossible, and destroys the peace and comfort of those\nwho are law-abiding. The penitentiary is a place for punishment and\nreformation. It is not a rest cure or a summer hotel. I have no doubt\nthat prison discipline can be improved; but changes based on the theory\nthat convicted criminals are disguised heroes who only need an appeal to\ntheir honor and freedom from restraint to make them good citizens will\nhave humiliating but perhaps instructive results.\n\nBut these extravagances should not blind us to the real benefit of this\ngrowing sense of brotherhood among men. It is shown not only by the fact\nthat it is preached in the pulpits and emphasized in the press and in\nmagazines, but, still more, by the fact that it has been taken up by\npoliticians. When they get hold of a subject and believe it needs\nelaboration, you may know that it has a lodgment with the people. Nor\ncan we ignore the fact that this feeling has been increased by\nindignation at the political and social corruption incident to our\nenormous material development. The people have become ashamed of it in a\nsense.\n\nWith many, this growing sense of brotherhood stimulates the movement\ntoward state socialism. Our excessive paternalism leads on to this. The\nview that the government can do anything, remedy every evil, level every\ninequality and make everybody happy, would have a most disastrous effect\non production and individual effort and enterprise. The next step will\nbe to curtail the right of property. It is difficult to define Socialism\nas a practical plan of government. The plan as set forth in a little\nbook published in Austria called \"The Quintessence of Socialism\" is as\ndefinite as any that I know. It involves such governmental restriction\nof individual freedom of action and such real tyranny that the American\npeople could not stand it. In fact, the regulation of the details of\nlife by a system of awards for particular work, made by committees\ninstead of by the operation of the law of supply and demand, would bring\nabout a condition that would burst itself in a very little time. As\n\"Billy\" Sumner used to say, \"If you have that kind of a system, I choose\nto be on the committee.\"\n\nAnother sign of the times is trades-unionism. Trades-unionism is\nessential in the cause of labor. One man as a laborer is in a position\nwhere it is utterly impossible for him to deal on an equality with his\nemployer. The employer has capital and can get along without his\nservices, but he cannot get along without the wages which the employer\npays him. Therefore, laborers unite and contribute to a fund which\nenables them to withdraw together and say to the employer: \"Here, we\npropose to deal with you on a level. We have great force. We have a fund\nwhich will enable us to live while out of work and we are going to\nembarrass you as far as possible by withdrawing from your employ unless\nyou do justice to us in the matter of terms of service.\" That power of\nunion cultivated in organized labor has done a great deal to raise\nwages and bring about equitable terms of service.\n\nOrganized labor is only a small part of labor generally; but organized\nlabor exercises great influence in legislatures. It is thought to hold\nthe balance of power at the polls and has undoubtedly exercised\nbeneficent influence in securing laws to control healthy conditions for\nwork, safety appliances on railroads, limitation upon the hours of labor\nand a number of other laws that would not have been passed if organized\nlabor had not brought political influence to bear upon members of the\nlegislature.\n\nOn the other hand, a sense of their power has sometimes given leaders of\nlabor unions a lack of discretion, a truculence and an unreasonable and\nunjust attitude. Like the employers, they have been dependent upon\npublic opinion and after a time public opinion has controlled them.\nProbably the greatest evil that stands out from all the good work unions\nhave done, is the dead level to which they seek to bring the wages of\nskilled manual labor. Organized labor insists on making a class and then\nhaving that class receive the same wages, and it does nothing to\nencourage individual effort by consenting to the payment of higher wages\nto the man of experience, industry and skill than to the mediocre and\nlazy. It will in some way have to obviate that difficulty which works\nagainst the cause of labor and the interest of society. Moreover, its\nleaders do not discourage, as they should, lawlessness as a means of\nachieving their industrial ends. The history of the dynamiters in\nCalifornia and of the civil war in Colorado shows this.\n\nOn the other hand, we find many in the ranks of labor offering the most\neffective opposition to the increase in socialism. The leaders of\ntrades-unionism have no sympathy with the I. W. W. The I. W. W., however,\nled by Haywood and others, serve a useful purpose by furnishing an awful\nexample for the average workingman. When they go around with the signs,\n\"No God, No Country, No Law,\" creating disgust and conservatism in the\nranks of organized labor, they do not know what a good thing they are\ndoing. They act blindly, but they are offering a sample of what may be\nexpected if organized labor is tempted to excesses. We are going to have\norganized labor for all time, and we ought to have it. While I would go\nto the fullest extent with courts and even with the army to protect a\nnon-union man in freedom of labor, if I were a workingman myself I would\njoin a labor union because I believe that if such unions can be properly\nconducted, they are useful to promote the best interests of labor and of\nsociety. What trades-unionism needs is leaders to teach its members\ncommon sense.\n\nThe truth is, the longer you live, the more you will find that nothing\nis perfect, and everything has a side that can be criticised. What you\nhave to do is to sum up the whole, take the average benefit which comes\nfrom it, and attempt to increase that average. Now I am an optimist.\nPeople say the initiative and the referendum, against which I have\ntalked, are like a ratchet wheel. If you extend power to the people and\nthe voters, you will never get it back again. I agree that is a rule\nthat generally works, but with respect to the initiative and the\nreferendum there is an element that may cause an exception to the rule.\nThe initiative will throw a heavy burden on the electorate. Cranks and\ntheir followers will constantly be compelling voters to act upon wild\nproposals. As the popular disgust grows, the requirements in respect to\nthe number of signers will be made so heavy that a successful petition\ncan rarely be secured. The referendum will then be limited to such\nmatters as the legislature chooses to refer and will then cease to be a\npractical burden.\n\nWe must pray that the injurious excesses which I have been describing as\nthe cost we have to pay for a great reform, may not unsettle the\nfoundation of our government and destroy the self-imposed restraint\narranged in the Constitution to make that government just to the\nindividual, to the minority and to those who do not vote. If we do not\ndisturb those foundations, we can count on the common sense of the\nAmerican people to bring them back to sane views, and we can rejoice and\ncontinue to rejoice in the preservation of a popular government that for\none hundred and twenty-five years has vindicated its conservatism and\njustice before the world and will continue to do so forever.\n\n\n\n\nPAGE LECTURES\n\nPUBLISHED BY YALE UNIVERSITY PRESS\n\n\nMORALS IN MODERN BUSINESS. Addresses by Edward D. Page, George W.\nAlger, Henry Holt, A. Barton Hepburn, Edward W. Bemis and James McKeen.\n\n_(Second printing) 12mo, cloth binding, leather label, 162 pages,\nsyllabi. Price $1.25 net, delivered._\n\nEVERYDAY ETHICS. Addresses by Norman Hapgood, Joseph E. Sterrett, John\nBrooks Leavitt, Charles A. Prouty.\n\n_12mo, cloth binding, leather label, 150 pages, index. Price $1.25 net,\ndelivered._\n\nINDUSTRY AND PROGRESS. By Norman Hapgood.\n\n_12mo, cloth binding, 123 pages. Price $1.25 net, delivered._\n\nPOLITICIAN, PARTY AND PEOPLE. By Henry C. Emery.\n\n_12mo, cloth binding, 183 pages, index. Price $1.25 net, delivered._\n\nQUESTIONS OF PUBLIC POLICY. Addresses by J. W. Jenks, A. Platt Andrew,\nEmory R. Johnson and Willard V. King.\n\n_12mo, cloth binding, leather label, 140 pages, index. Price $1.25 net,\ndelivered._\n\nTRADE MORALS: THEIR ORIGIN, GROWTH AND PROVINCE. By Edward D. Page.\n\n_12mo, cloth binding, 276 pages, index. Price $1.50 net, delivered._\n\nETHICS IN SERVICE. By William Howard Taft.\n\n_12mo, cloth binding, 101 pages, index. Price $1.15 net, delivered._\n\n[Transcriber's Note: this list of publications appeared inside the front\ncover of the original book]","title":"Ethics in Service","tradition":"philosophy-ethics","translated_text":null,"word_count":23263}