GIFT OF 
 
CtPT 
 JAN 9 1917 
 
 An Inquiry into the Constitutional Valid- 
 ity of Divers Acts of the Present 
 Occupant of the Presidential Chair, 
 The Which is an Appeal to the People 
 of the United States, Regardless of 
 Party Affiliations, to Unite and Rescue 
 the Constitution, that Sacred Heritage 
 of Blood and Treasure, from the 
 Usurping, Maladministrating Hand of 
 the Occupant Aforesaid. 
 ,, For Abundant Proof of Such Violations, 
 Inquire Within, . 
 
 T. A. SHERWOOD, L. L D. 
 
 itth^^ 
 
Compliments of the A uthor 
 
 Copyright 1916 
 
 by 
 T. A. Sherwood 
 
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An Inquiry Into the Constitutional Validity of Divers Acts of the 
 Present Occupant of the Presidential Chair. 
 
 At this important juncture of our national affairs, when the ad- 
 ministration which took office, March 4th, 1913, has completed the 
 second year of its allotted term, it is deemed not inopportune, to offer 
 for consideration some questions which seem second to none in the 
 fundamental importance which they bear to the welfare of our country. 
 
 These questions are: First: What are the powers and duties of 
 the President of the United States under the Constitution ? 
 
 Second: Has the present incumbent exceeded, fallen short of, or 
 in any manner stepped aside from, such powers and duties, and if so, 
 wherein ? 
 
 Third : Other observations deemed pertinent to this investigation. 
 
 Fourth : The consequences which would normally arise from such 
 derelictions from duty, or the usurpation of non-granted powers ? 
 
 These powers and duties are thus catalogued in the instrument 
 which creates and commands their obedience: Article 2, Sec. 1, re- 
 quires this oath: "I do solemnly swear (or affirm) that I will faith- 
 fully execute the office of President of the United States, and will to 
 the best of my ability, preserve, protect and defend the Constitution 
 of the United States." 
 
 Sec. 2 makes the President commander-in-chief of the army and 
 navy of the United States, 'and of the militia, etc. 
 
 He may require the opinion in writing of the principal officer in 
 each of the executive departments upon any subject relating to the 
 duties of their respective offices, and has power to grant reprieves and 
 pardons for offenses against the United States, etc. 
 
 With the advice and consent of the Senate, he also has power to 
 make treaties, provided two-thirds of the Senators present concur, 
 and he shall nominate, and by and with the advice and consent of the 
 Senate, shall appoint ambassadors, other public ministers and consuls, 
 judges of the Supreme Court, and all other officers of the United 
 States not herein otherwise provided for, but the Congress may by 
 law, vest the appointment of such inferior officers, as they think 
 proper, etc. During the recess of the Senate, the President has power 
 to fill up vacancies which occur during the interim, etc. Sec. .3 thus 
 sums up his further powers and duties: 
 
 He :s required, from time to time, to give to the Congress infor- 
 mation of the state of the Union, and recommend to their consideration 
 such measures as he shall judge necessary and expedient; he may, 
 on extraordinary occasions, convene both houses, or either of them, 
 and in case of disagreement between them, with respect to the time 
 of adjournment, he may adjourn them to such time as he shall think 
 proper; he shall receive ambassadors and other public ministers; he 
 shall take care that the laws be faithfully executed, and shall commis- 
 sion all officers of the United States. 
 
 Under Sec. 7, Art. 1, will be found what Chancellor Kent terms 
 the ''qualified negative of the President." To the language of the Con- 
 stitution containing the carefully measured recitals of the executive 
 powers specifically granted in toto to the President, is to be applied 
 
 346201 
 
the maxim, expressio unius est exclusio alterius, or the expression of 
 one thing-, is the exclusion of another; in short, affirmative specifica- 
 tion excludes impjication. This maxim is "an axiom of the law," 
 19 Cyc. 27, and cases cited.. Speaking of constitutions, Denio, C. J., 
 applies the same rule to them as to other instruments. He says: 
 "Every positive direction contains an implication against any thing 
 contrary to it." People v. Draper, 15 N. Y. 532. Judge Cooley says: 
 "If directions are given respecting the times and modes of proceeding 
 in which a power should be exercised, there is at least a strong pre- 
 sumption that the people designed it should be exercised in that time 
 and mode only, and we impute to the people a want of due appreciation 
 of the purpose and proper province of such an instrument, when we 
 infer that such directions were given to any other end." Const., Liaos (WL i 
 114-15. 
 
 Marshall, C. J., said, in Gibbons v. Ogden, 9 Wheat. 1, 188 : The 
 framers of the constitution, and the people who adopted it, "must be 
 understood to have employed words in their natural sense and to have 
 intended what they have said." 
 
 Guided by the authorities quoted, it is readily determined that 
 the language aforesaid, set the bounds and fixed the limits of the pres- 
 idential authority as effectually as though words of prohibition were 
 used. 
 
 In a recently written entertaining narrative, written by our for- 
 mer President, Colonel Roosevelt, and which may eventuate in an 
 autobiography, he relates, that when President, he felt free to dis- 
 regard constitutional language containing no prohibitory words, 
 though this was, as he admits, contrary to the course pursued by 
 President Taft, that eminent jurist, as well as by the predecessors of 
 the writer. 
 
 This view, however, wholly overlooks the thought that negatives 
 can as well be conveyed through the media of affirmative specification 
 used in commands, as though such behests were knotted all over with 
 negatives; indeed, such is the usual course, when constitutions are 
 drafted. These observations find frequent illustration in the daily ex- 
 perience of common life. 
 
 Exempli gratia: Giving Jones money, you say, "Go on market, 
 and buy me 50 Black Horses." No need for further words, nor those 
 of descriptive negation. The veriest yokel that ever kicked up dust 
 with a splay foot on a country road would bar every other color except 
 the one affirmatively specified, so of the words of the Constitution in 
 reference to the executive. Speaking of these words. Chancellor Kent 
 observes: "The propriety and simplicity of these duties speak for 
 themselves." 1 Kent, 289. Elsewhere, when speaking of Congress be- 
 ing the supreme power in the state consequent on the possession of 
 the law-making power and "naturally having such a preponderance in 
 the political system and acting with such mighty force on the public 
 mind," he states this required "that the line of separation between that . 
 and the other branches of the government to be marked very dis- 
 tinctly, and with the most careful precision," he goes on to say : "The 
 Constitution of the United States has effected this purpose with great 
 felicity of execution, and in a way well calculated to preserve the equal 
 balance of the government, and the harmony of its operations. It 
 has not only made the delegation of the legislative power to one 
 branch of the government, of the executive to another, and of the 
 judicial to the third, but it has specifically defined the general powers 
 and duties of each of these departments." 1 Kent, 221. 
 
On the same page, repeating the idea of segregation, it is stated: 
 "By the Constitution all the legislative powers therein granted are 
 vested in a Congress, consisting of a Senate and House of Representa- 
 tives." Art. 1, Sec. 1, Const. And still further on, as if to indelibly 
 instill in the minds of his students the doctrine of the absolute segre- 
 gation of the different branches of the government, the lecturer states : 
 "By the Constitution, it is ordained, that the executive power shall be 
 invested in a President." lb 271. Art. 2, Sec. 1. Similar views find 
 expression as to the vesting of the exclusive judicial power. lb 291. 
 Art. 3, Sec. 1. Having thus laid the basis for the proposed investiga- 
 tion, in the authorities cited, with others yet to be called in aid, re- 
 liance will be based on the facts as furnished by the utterances of the 
 daily press. And such inquiry will treat the Constitution of the 
 United States as simply a legal document (Const. Lim. 88), as read, 
 interpreted and construed by eminent jurists, and more especially 
 where adjudication has occurred by that final arbiter on such matters, 
 to-wit, the Supreme Court of the United States. 
 
 The first item to be considered is the mission of Mr. Bryan to 
 Sacramento, on which he was projected by the President on his inter- 
 meddling itinerancy. The legislature of California were then engaged 
 in completing the Anti-Alien Land Law, and this, in compliance with 
 Sec. 4, Art. XIX, of the Constitution of 1879. 
 
 "The presence of foreigners ineligible to become citizens is de- 
 clared to be dangerous to the well being of the state, and the legisla- 
 ture shall discourage their immigration by all the means within its 
 power." Mr. Bryan had no call to visit California to instruct the legis- 
 lature, and to dissuade them from performing their constitutional 
 duty ; all needful to do, was to lay before the dread Baron Chinda, the 
 treaty of Feb. 1911, with Japan, side by side with the proposed law, 
 and it would have at once appeared that such treaty, while it granted 
 mercantile, manufacturing and commercial rights to each of the high 
 contracting parties, industriously refused to grant any agricultural 
 rights whatever, and therefore, a law forbidding what that treaty did 
 not grant could not possibly violate such treaty. Besides, the rule of 
 international law is that a treaty grants nothing except what is in 
 terms explicitly granted. 
 
 The convention which framed the Constitution of the United 
 States established a government of "enumerated powers, the national 
 constitution being the instrument which specifies them, and in which 
 authority should be found for the exercise of any power which the 
 national government assumes to possess." Const. Lim. 11, 242, 266 
 and cas. cit. Conforming to this plainly expressed rule, whereabouts 
 in that Constitution can the present incumbent look to find authority 
 which he "assumed to possess," when sending his premier on his un- 
 heard of mission, to dictate to a state, or persuade its legislature to 
 disobey its constitutional duty? There is no such grant of power, 
 consequently, when giving that order, he was guilty of a sheer usurpa- 
 tion of an ungranted power. Gov. Hiram Johnson had just as much 
 authority to send his Secretary of State on to Washington to instruct 
 or dictate to Congress concerning their duties. 
 
 The second point for review is furnished in the authority given 
 the President to "nominate, and by and with the advice and consent 
 of the Senate, appoint ambassadors, other public ministers and con- 
 suls." This language specifically confines the appointing power of the 
 President to those sent on foreign missions, who were thus designated 
 by and with the advice and consent of the Senate. John Lind was 
 
 5 
 
neither ambassador, public minister, nor consul, nor were the Senate 
 asked for its advice or consent regarding him. He was the mere 
 creature and* "personal envoy," as he was called, of the President. 
 Such an appointee the Constitution does not specifically authorize, and 
 therefore forbids. Princip. Consti. Law, 28. This marks another de- 
 parture from the Constitution by the present incumbent. 
 
 Passing to the third point for investigation, the Constitution as 
 above quoted requires that the President ''shall from time to time 
 give to the Congress information of the state of the Union, and rec- 
 ommend to their consideration such measures as he shall judge neces- 
 sary and expedient." The Constitution having thus given specific di- 
 rections as to the times and modes the executive power should be ex- 
 ercised towards the legislative branch, indubitably fixes and estab- 
 lishes such mode as a formal communication only, and all other meth- 
 ods of communication were inevitably forbidden, as though expressly 
 negatived; and this has been the contemporaneous construction since 
 the Constitution was adopted. Const. Lim. 102, 106. 
 
 Nowhere, than in this regulation, is the wonderful prescience of 
 the eminent men who framed the Constitution more signally displayed. 
 Obedience to it cuts off all small talk, dickers and unseemly bargains 
 between the two branches; for instance: Candidate for re-election: 
 "If I vote for this repeal act, my people will beat me for renomination." 
 Response: "Never mind that, we'll take care of you." Plainly, a prof- 
 fered bribe, which, if accepted and acted on, is one for which not a few 
 legislators have donned stripes and done time. 
 
 The fourth point for consideration is this: Under the Constitu- 
 tion each branch is a co-ordinate branch of the government, independ- 
 ent of, and equal in power and dignity to any other. But under the 
 new regime, as related by Samuel G. Blythe, a personal friend of the 
 President, in the Saturday Evening Post, when speaking in terms of 
 praise of the President (mark you), and of his attitude toward Con- 
 gressmen, says: "He's got them cowed; and they come and eat out 
 of his hands !" Can an American read this story of fathomless degra- 
 dation, without a blush? 
 
 Under such manipulations the wall of separation between the 
 executive and the legislature has been broken down, in direct violation 
 of the organic law. 
 
 Bolder instances of similar sort are yet to be recounted ; they con- 
 stitute, en masse, the fifth point of view, which clusters around the 
 validity of the present incumbent's actions; as to the meaning of the 
 word "recommend"; as to his message of March 5th, 1914, and all 
 therein professedly discussed, and what followed such message, and 
 all related matters. 
 
 The message is the following: 
 
 "Washington, March 5. 
 
 "Gentlemen of Congress: I have come to you on an errand which 
 can be very briefly performed, but I beg you will not measure its im- 
 portance by the number of sentences in which I state it. No com- 
 munication that I have addressed to Congress has carried with it a 
 more grave or far-reaching implication to the interests of the coun- 
 try, and I come now to speak upon a matter with regard to which I 
 am charged to a peculiar degree, by the Constitution itself, with per- 
 sonal responsibility. I come to ask the repeal of that provision of the 
 Panama Canal Act of August 24, 1912, which exempts vessels en- 
 gaged in coastwise trade of America from the payment of tolls, and 
 
to urge on yoa the justice and wisdom and large policy of such a repeal 
 with the utmost earnestness of which I am capable. In my own judg- 
 ment, maturely formed, after careful consideration, I believe that ex- 
 emption constitutes a mistaken economic policy from every point of 
 view, and is moreover in plain contravention of the treaty with Great 
 Britain concerning the canal, concluded November 18, 1901. But I 
 have not come before you to urge my personal views. T come to state 
 a fact and a situation. Whatever may be our own differences of opin- 
 ion concerning the much debated measure, its meaning is not debated 
 outside of the United States.. Everywhere the language of the treaty 
 is given but one interpretation, and that interpretation precludes the 
 exemption I am asking you to repeal. We consented to the treaty; 
 its language we accepted, if we did not originate it, and we are too 
 big, too powerful and too veif -respectinjf a nation to interpret with 
 too strained or refined reading the words of our own promises just 
 because we have power enough to gi\^e us le-^ive to read them as we 
 please. The large thing to do, is the only thing to do, is the only thing 
 we can afford to do, and that is a voluntary withdrawal from a i)osi- 
 tion everywhere questioned and misunderstood. We ought to reverse 
 our action without raising the question of whether we are right or 
 wrong, and so once more deserve our reputation for generosity and 
 redemption of every obligation without quibble or hesitation. I ask 
 this of you in support of the foreign policy of my administration. I 
 shall not know how to deal with other oaaatters of even greater delicacy 
 and nearer consequence if you do^^^nt it to me in an ungrudging 
 measure." 
 
 The explanatory editorial comment on the message, in the Long 
 Beach Press, is this: "The last sentence of the address was consid- 
 ered significant. It was taken as a veiled reference to the President's 
 acknowledged desire to accede to England's wishes, relative to canal 
 tolls, as a means of insuring British support for the administration's 
 course in Mexico." 
 
 How is the president to "recommend" a measure to the legis- 
 lature? Obviously, in a bold, straightforward, manly way, without 
 cryptic meaning, delphic utterances, or the gamester's trick of slip- 
 ping a card up his sleeve. According to lexicographers, the word 
 "recommend" conveys the meaning "to put in a favorable light be- 
 fore any one; "request, to ask for;" "entreat, to ask earnestly for;" 
 "beg," the same; "persuade, to influence, or gain over, by argument, 
 advice, entreaty, expostulation." Depend upon it, our forbears al- 
 though of the "grandfather" class, understood their own vernacular, 
 when drafting the constitution, and measuring their words, they 
 wrote down, not request, not entreat, not beg, nor persuade, but 
 simply "recommend." There must be no urging, advocacy or persua- 
 sion and this the obvious and all-sufficient reason: 
 
 That should the measure recommended be formulated into a law, 
 the executive should be in a state entirely impartial, to approve or 
 disapprove the offered bill; in which state he could not possibly be, 
 were he in advance its pronounced advocate. Again, the words are: 
 "recommend to their consideration such measures." etc. They are 
 recommended to their consideration; not to their adoption. What an 
 exouisite sense of th.e precise meaning of words, those old framers 
 bad! When the formal message, the only one given recognition by 
 the constitute* on. reaches cone-ress. the mea«;ure borne thereby, passes 
 w'th'n the'r exclusive considerat'on ; a consideration not to be shared. 
 
halved, quartered, nor in any other manner subdivided, with any 
 other Hving creature. To a congress brooding over a measure sub- 
 mitted, no secret instructions or messages can go; no more than could 
 be sent by a judge, in like case, to a brooding jury. 
 V* Expressio unis, etc. (U^ 
 
 You will observe, also, that while the constitution grants the 
 executive authority to recommend measures to the consideration of 
 congress, it grants none whatever to oppose pending legislation. The 
 only opposition on his part can occur by veto. So carefully did our 
 forefathers hedge about the executive and keep him on his own res- 
 ervation! Was the course prescribed by the constitution pursued 
 when recommending congress to repeal the Tolls Exemption Act? 
 In the first place, the present incumbent did not "recommend" the 
 repealing act at all; he strenuously and w.th great urgency advocated 
 its passage; something which, as already seen, the constitution plain- 
 ly did not permit him to do. In the second place, to solve this ques- 
 tion, an analysis of the message and what followed it, is requisite. 
 The Tolls Exemption Act, the message condemns, as a mistaken 
 economic policy. How, or in what way, a policy which declines to tax 
 our own vessels, engaged in the coastwise trade, while passing 
 through the canal, in territory of our own, bought by us at great 
 cost, and built by us under our own supervision, at a cost of hun- 
 dreds of millions, could be a mistaken one, economically, would if 
 true, be easy of explanation; if false, difficult; and on this point sil- 
 ence was easiest, and silence was observed. 
 
 But the charge is made that the Tolls Act is in plain contraven- 
 tion of the treaty with Great Brit'an, concerning the canal, conclud- 
 ed Nov. 18, 1901. All this matter had been thoroughly thrashed out, 
 in 1912, when the Tolls Act passed with the approval of President 
 Taft. Not only that, but the Supreme Court of the United States, 
 through Mr. Justice White, ruled in Oelson vs. Smith, 195 U. S. 332, 
 that a British ship, engaged in trade to foreign ports, was not dis- 
 criminated against, when tolls were imposed on it, from which 
 American coastwise vessels were freed, both by federal and 
 state legislation and that such legislation did not, and could 
 not, impinge on the treaty made three years before. And 
 this ruling binds every other branch of government, being 
 made respecting the meaning, force and effect of the words of 
 a treaty, which is part and parcel of the supreme law of the land. 
 Const. Lim. 24,77. And this ruling was stated, during debate on the 
 bill. Besides, as aforesaid, when a nation executes a treaty, nothing 
 passes thereby, to the other contracting party, except explicitly 
 granted. This is a fundamental rule of international law as shown 
 by Richard Olney, Attorney General under Cleveland, in an article 
 on the Hay-Pauncefote treaty, and the Panama Canal. Vol Am. 
 Soc. Internat. Law. As in that treaty, no express concession was 
 made to England, requiring our coastwise vessels to pay tolls, they 
 ■were exemi^t therefrom, by the mere force of the treaty, itself, so 
 far as concerns England, without a statute of exemptions. 
 
 But it is said that foreign powers take a different view of that 
 treaty to that expressed in the Tolls Exemption Act. What of it? 
 Are we sunk so low in servitude as to obey foreign opinion or dicta- 
 tion as to our own treaty's meaning? But it is further said, "We 
 o^ight to reverse our action without raising the question of whether 
 ive are right or wrong, and so once m.ore deserve our reputation for 
 
 8 
 
;generGsity and redemption of every obligation, without quibble or 
 hesitation." 
 
 Vermiculate logic characterizes this language. Obfuscation ob- 
 viously reigned in the mental camera of the distinguished dialecti- 
 cian as he finished that sentence. There is nothing in common be- 
 tween an act of generosity and one paying a debt; and yet these di- 
 verse acts are there jumbled together, in "confusion were confound- JVOT^ 
 ed." In short England must get the Tolls Act repealed; whether as 
 a gift, or whether as a debt. England, in this instance, evidently 
 plays the boy's game with the United States: " Heads, I win. Tails, 
 you lose!" 
 
 If the editorial comment, evidently close and friendly, be taken 
 at its face value, then a secret deal was plainly on between the pres- 
 ent incumbent and the British Embassy, the former in sore straits 
 for that fit emblem of constituent weakness, its foreign policy, the 
 latter, quite willing to accept for assisting a poor weak dependent 
 nation, such as ours is now, and as a quid pro quo, the repeal of the 
 Tolls Act, which repeal would further cripple our merchant marine. 
 If such treaty were made, then doubtless made without the advice 
 and consent of the senate. And indubitably, also, from that ''veiled 
 reference" to "matters of even greater delicacy and nearer conse- 
 quence," more was revealed to England than to our own congress. 
 Did that message "recommend" what it so carefully concealed? Be 
 that as it may, in order to carry out the foreign policy aforesaid, 
 favorable action of congress was necessary. How was this to be ob- 
 tained? Listen: For many years prior to the advent of the present 
 House, tyrannous speakers and overbearing majorities had forged 
 such arbitrary rules and rulings thereon, that free and unfettered 
 debate was not infrequently choked off. To remedy this evil, with 
 the aid of Champ Clark, Oscar Underwood and other leaders, the 
 whole system was remodeled, and the cloture rule abolished and re- 
 publicans, alike with democrats, were abundantly pleased with the 
 new rules, and their impartial administration. 
 
 Well, the message was delivered; and although the present in- 
 cumbent had stated: "No communication that I have made to con- 
 gress, has carried with it a more grave or far-reaching implication 
 to the interests of the country, and I come now to speak upon a mat- 
 ter with regard to which I am charged to a peculiar degree by the 
 constitution itself, with personal responsibility"; yet, hot upon the 
 heels of the message, goes an order from the White House to congress, 
 to re-establish the cloture rule, and to grant but 15 hours for debate 
 on the matter so recently proclaimed by the executive, as so import- 
 ant ! So said, so done ; and the order from the White House, pre- 
 vailed over a most gallant resistance offered by the ablest members 
 of both political parties, on the floor of the House ; thus constituting 
 a direct invasion of the legislative branch, by that of the executive, 
 in the very teeth of the constitution ! 
 
 The president had as much right to appear on the floor of the 
 House; speak and vote there, as to order abolition of its rules, or dole 
 time for the discussion of such momentous measures. And yet no 
 democratic paper cheeped out even a feeble protest at the flagrant 
 outrage ! 
 
 In sharp antithesis to this course, take notice of this incident: 
 In 1866, the legislature sitting in New Orleans, was invaded under 
 
orders from Gen. Grant and two members of that body dragged from 
 the floor by a file of soldiers. 
 
 When the news flashed over the wires, the greatest excitement 
 and indignation prevailed ; meetings assembled in all large cities, par- 
 ticipated in by men of all shades of political opinion, were addressed 
 by Fitz Greene Halleck and other republicans, and the tone, temper 
 and indignation there manifested were such that the outrage was 
 never again attempted. 
 
 What difference is there in point of principle, between exertion 
 of brute force on a legislative body, and over-awing them by executive 
 power, or seducing them by the hope of executive patronage with 75 
 per cent of such patronage still retained in the executive's hands. .. 
 
 Other points present themselves for investigation; they will be 
 considered under one head.. When the Underwood tariff act was 
 enacted, he being the devoted adherent of the American Merchant 
 marine, caused a clause to be inserted therein, granting a preferential 
 duty of 5 per cent upon imports in American bottoms. This clause 
 had been amply vindicated ever since Jefferson's day, and had built 
 up our merchant marine from small beginnings until its sails whit- 
 ened every sea, breeding a hardy race of sailors, that many a time 
 and oft had compelled the haughty Briton to strike his colors in hu- 
 mil'ating defeat ! But this clause, duly made part of the tariff act, a 
 peremptcry order of the executive on the Secretary of the Treasury, 
 forbade to be enforced. 
 
 Aga'n the maxim.um price of $1.25 per ton, was the cost of tolls 
 through the Panama Canal under the law of congress. But what 
 of that? The president declared $1.20 a ton as the fixed charge. He, 
 also, then arrogated to himself authority to charge tonnage on the 
 deck load, so that, as shown by protests of a certain vessel, to the 
 Secretary of War, the tolls which would have amounted on that ship 
 under the law of congress to $5,603.75, were increased under the 
 Presidential tolls on the deck load plan, to $1429.45 more than the- 
 law of congress permitted; totalling $7,033.20. 
 
 Both of the presidential changes aforesaid hurt the merchant 
 V Uf marine, and corresponding ^helped the railroads, and both alike, are 
 ^w'thout the sanction of constitutional authority. "Only the legisla- 
 ture can suspend the operation of a general law, and then the suspen- 
 sion must be general." Const. Lim. 558. 
 
 Chancellor Kent says: "But when laws are duly made and pro- 
 mulgated, they only remain to be executed. No discretion is sub- 
 mitted to the executive officer. It is not for him to deliberate and 
 decide upon the wisdom or expediency of the law." I Kent 271. 
 
 Furthermore, an Anti-trust act was recently enacted. While 
 on its passage. Senator Reid gave notice on the floor of the Senate 
 Chamber, that it bore no sanction clause; no provision for inflicting 
 punishment; was a "toothless tabby cat," yet nevertheless, the pres- 
 ent incumbent gave the defective bill his approval. Was that approv- 
 al given through ignorance of Senator Reid's statement, or of a very 
 common point in law? 
 
 No matter what the cause, it certainly aff'orded opportunity for 
 saying to the people: "See how I curbed those predatory Trusts for 
 
 your sake!" 
 
 And to the Trusts: "See how I outwitted the clamor of the 
 mob, for yours!" 
 
 lO 
 
Did the present incumbent signing that obviously worthless Anti- 
 Trust Act, knowing it impossible of enforcement; when doing so, 
 "faithfully execute the office of president of the United States" and 
 "take care that the laws are faithfully executed?" Some years ago, 
 the pathway was laid out to the precedent derelictions of the present 
 incumbent, before he mobilized them on the floor of congress, as ap- 
 pears by a work which assumes the form of lectures, delivered be- 
 fore the students of Columbia University, entitled (sic) "Constitu- 
 tional Government in the United States." A few outlining excerpts 
 will serve to show the character of the production and how far it 
 departs from the facts and the law in its general make-up. And 
 first, it is put forth as a fact, that in the state governments there is 
 the same partial separation of legislature and executive that is char- 
 acteristic of the federal government. And the reason given there- 
 for, is "because the constitutions of the states were formulated at the 
 same time the government of the United States was formulated." 
 Const. Govt. 41. 
 
 Upon occurrence of the revolution, it swept away all colonial 
 charters, save those of Connecticut and Rhode Island. Thereupon, 
 the people framed new constitutions for themselves. 8 of the orig- 
 inal states did this, in '76, 2 in '77, and 1 in '80. Const. Lim. 55, and 
 note P. 10, Princps. Const. Law. 
 
 The lecturer makes further assertion, "There was never any 
 sovereign government in America; the governments of the colonies 
 operated under charters." Const. Govt. 146. Cooley says: "The 
 states were thus repositories of sovereign power, and wielded them as 
 being theirs by inherent right," Princps. Const. Law, 28. Note the 
 difference ! 
 
 As previously shown by quotations, the framers of the constitu- 
 tion of the United States, made a most industrious and absolute sep- 
 aration of the different departments of government. This though 
 termed a partial seperation by the lecturer, on p. 41, Const. Govt., 
 after building an argument on this theory; near the close of the 
 volume, says of those framers: "They succeeded in actually separ- 
 ating legislature and executive." lb. 201. Why these divergent 
 statements of the same instrument? 
 
 Such absolute separation intimately associates itself with the 
 doctrine of "Checks and balances," which our lecturer holds in such 
 derision. Const. Govt. 56. Nevertheless, Judge Cooley speaks ap- 
 provingly of it: "The American system of government is an elab- 
 orate system of checks and balances," citing Vol. 6, 467 John Adams 
 Works, Princps. Const. Law, 148 lb. 41. Like pronounced praises 
 have been reverentially spoken of the system, by preeminent jurists 
 of the past, and those of the present dav. 1 Kent, supra; Const. 
 Lim. 64, 65, 71, 126; Story Const. S. 424; Black on Const. 
 
 Our lecturer complains of the framers of the constitution that 
 they gave "the executive the veto, as his only check on congress; a 
 power of restraint, not of guidance; empowered him to prevent bad 
 laws, but gave him no opportunity to make good ones." Const. Govt. 
 59, 60. 
 
 And on this point he further says: "Some of our presidents 
 have held themselves off from using the full legitimate power they 
 might have used, because of conscientious scruples; they held the 
 strict literary theory, the Whig theory of the constitution and acted 
 as if they thought that there should be no intimate communication 
 
 II 
 
of any kind between the Capitol and the White House ; that the presi- 
 dent was no more at liberty to lead the houses of congress by persua- 
 sion than he was to dominate them by authority." lb. 70. 
 
 Those presidents in thus obeying their conscientious scruples, 
 simply obeyed their oaths of office; they took the words of the con- 
 stitution in their natural and ordinary meaning, just as Chief Justice 
 Marshall declared should be done; he said: The framers of the con- 
 stitution and the people who adopted it "must be understood- to have 
 employed words in their natural sense and to have intended what they 
 have said." Gibbons vs. Ogden, 9 Wheat, 1, 188. 
 
 Our lecturer admits that when the constitution was formulated, 
 "Checks and balances were then the orthodox gospel of government." 
 "The most serious success of the convention in applying Whig theory 
 to the government they were constructing was the complete separa- 
 tion of congress and the executive which they effected." Const. Govt. 
 201. This being the status of the organic law when its adoption oc- 
 curred, Judge Cooley thereupon says: "The meaning of the constitu- 
 tion is fixed when it is adopted, and it is not different at any subse- 
 quent time when a court has occasion to pass on it." Const. Lim. 89, 
 citing People vs. Blodgett, 13 Mich. 127 ; Scott vs. Sanford, 19 How. 
 393. Notwithstanding these authorities so conclusive in their char- 
 acter respecting the permanency of the constitution, our lecturer, 
 still harping on the theory of the partial separation of the executive 
 and the legislature, insists that though the president is denied access 
 to the floor of congress and direct influence on its deliberations, yet 
 this results, he says, "from custom, not from law." Const. Govt. 73. 
 By the same token, custom, not law, denies access to the judicial de- 
 partment, and participation in its deliberations! 
 
 Further on, he comes out, and again admitting that the framers 
 of the constitution "succeeded in actually separating legislature and 
 executive ;" but thereupon denies "they meant actually to exclude the 
 President and his advisers from all intimate personal consultation 
 with the houses in session." Const. Govt. 201. In other words, that 
 the framers did not mean what they said, but intended to combine 
 "complete separation" close along side of intimate personal consulta- 
 tion! 
 
 Quoting further from our lecturer, he says: "The Constitution 
 cannot be regarded as a legal document to be read as a will or contract 
 would b.3. It must of the necessity of the case, be a vehicle of life. 
 As the life of the nation changes, so must the interpretation of the 
 document which contains it change, by a nice adjustment, determined, 
 not by the original intention of tho^e who drew the paper, 
 but by the exigencies and the new aspects of life itself. 
 Const. Govt. 192. Could language .be more intangibly and 
 unspeakably vague than this? By what skillful diagnosis shall 
 the interpreter of the document determine by a nice adjustment, just 
 when the precise "psychological moment" arrives, for the momentous 
 exuviation to occur; a change, mark you, brought about "by the 
 exigencies and the new aspects of life itself?" Who shall the nice 
 adjuster be, and by whom appointed, who overturns the old consti- 
 tution, with all of its vested rights, in the twinkling of an eye, and by 
 a single stroke of his pen? You will observe that under this new in- 
 vention of questionable shape, "If shape it might be called that shape 
 has none," no provision is made for amending the constitution as the 
 fram.ers devised should be done; Art. V of the Constitution is dis- 
 
 12 
 
tinctly and utterly repudiated. By what authority is this done? By 
 the mighty authority of our lecturer! Very different views are held 
 on this subject by Judge Cooley, who treats the Constitution like any 
 other written instrument; an instrument of permanency; he says: 
 "A cardinal rule in dealing with written instruments is that they are 
 to receive an unvarying interpretation and that their practical con- 
 struction is to be uniform. A constitution is not to be made to mean 
 one thing at one time, and another at some subsequent time when 
 the circumstances may have so changed as perhaps to make a dif- 
 ferent rule in the case seem desirable. A principal share of the bene- 
 fit expected from written constitutions would be lost if the rules they 
 established were so flexible as to bend to circumstances or be modi- 
 fied by public opinion. It is with special reference to the varying 
 moods of public opinion, and with a view to putting the fundamentals 
 of government beyond their control, that these instruments are 
 
 framed but a court or legislature which should allow a change 
 
 in public sentiment to influence it in giving to a written constitution 
 a construction not warranted by the intention of its founders, would 
 be justly chargeable with reckless disregard of official oath and public 
 duty; and if its course could become a precedent, these instruments 
 
 would be of little avail What a court is to do, therefore, is 
 
 to declare the law as written, leaving it to the people themselves, to 
 make such changes as new circumstances may require." Const. Lim. 
 88-89. 
 
 Other quotations from our lecturer's thesis are these: "There 
 can be no constitutional government where the organs of government 
 (i. e. the men who conduct it) are not constantly under the control 
 of public opinion." Const. Govt. 83. 
 
 "He (the President) is the one person who can form public opin- 
 ion by his own direct influence, and act upon the whole country at 
 once." lb. 127. 
 
 "The President is undoubtedly the only spokesman of the whole 
 
 people The constitution bids him speak, and times of stress 
 
 and change must more and more thrust upon him the attitude of 
 originator of policies." lb. 73. "The President is at liberty, both at 
 law and in conscience, to be as big a man as he can. His capacity 
 will set the limit; and if Congress be overborne by him, it will be no 
 fault of the makers of the Constitution; it will be from no lack of 
 constitutional powers on its part, but only because the President has 
 the nation behind him, and Congress has not. He has no means of 
 compelling Congress, except through public opinion." lb. 70-71. 
 
 Otherwise stated, it makes no difference what barriers the Con- 
 stitution has raised to prevent the President from "overbearing" Con- 
 gress, and grasping in his own hands the legislative power; he can 
 gain his end ; batter down the bulwarks of the Constitution, and reign 
 triumphant over a conquered Congress, if he have the nation at his 
 back and public opinion in his favor! 
 
 Further quotation from the book is needless. Though professedly 
 written on a subject of the highest importance, "Constitutional Gov- 
 ernment," yet not an authority is cited, nor, indeed, could there be, 
 as its whole warp, woof and fiber is utterly at war with all heretofore 
 written or ruled on the subject in hand. True, our lecturer mentions 
 the name of Chief Justice Marshall, but quotes him not; to do so, 
 would be to be : 
 
 "Hoist with his own petar!" 
 
 13 
 
In the august presence of that Great Chief Justice, dogmatic as- 
 sertion might well hold its peace, and arrogant assumption forever 
 stand abashed! 
 
 But the book coincides alike in theory and practice with the acts 
 of the present incumbent heretofore related. He has grasped in his 
 hands the legislative power of the government; indulges in daily 
 "intimate personal consultation" with the houses in session, right in 
 the face of the Constitution ! 
 
 The same thought finds expression elsewhere. On Feb. 9th, on 
 the floor of the Senate Chamber, this statement was made: "The 
 proceedings of th^'s Senate in the last week have been a burlesque on 
 constitutional government," said Senator O'Gorman. "The command 
 came from without the walls of the Capitol to pass this ship purchase 
 bill before the appropriation bills Concluding, Senator O'Gor- 
 man declared there would be as much warrant for the president send- 
 ing for the chief justice of the United States to come to the White 
 House to discuss a pending case, as to send for a senator to take 
 his orders." 
 
 At the outset of this investigation, it was promised that the 
 normal consequences of the derelictions aforesaid, would be stated. 
 In order, however, for any such result to follow, there must, of course, 
 be a legislative tody to prefer charges. 
 
 But, as recently remarked by a Republican Senator, "the Presi- 
 dent has abolished Congress!" 
 
 That superservile body of men only sit now to register the decrees 
 of their master the President ! The question used to be asked : What 
 is Congress going to do ? 
 
 Now it is, what is Wilson going to do? 
 
 The premises considered, an aged man, a life-long Democrat, 
 standing on 
 
 "The very verge of the churchyard's mold," who loves his country, 
 well, in this her hour of prec'pitant peril, ra'ses h"s voice :"n warn'ng 
 to his countrymen, that her constitution is being assailed in the in- 
 nermost seats of its foundations, by one who has sworn to preserve, 
 protect and defend it to the best of his ability. The most solemn 
 oath an American could take ; an oath preservative, it is true, of a 
 mere lega^ c'ocument, but one which contains all we hold most dear; 
 all that the "wandering Lotophagi forgot ; home and co^mtry and 
 friends." A mere legal docum.ent, it is true, but one for whose sake, 
 and under whose shadow, on many a bloody field, great heroes have 
 died. 
 
 "The blood of martvrs is the seed of the church;" the blood of 
 patriots is the seed of liberty. May that patriot blood appeal to us 
 one and all, to rescue that sacred document from further aggressions, 
 come from what quarter they will! 
 
 When Caesar sprang from the deck of his s'nk'ng ship into the 
 tempestuous waves of the Adriatic Sea, with one hand he smote the 
 fierce waves, as he swam towards the shore, and w'th the other, he 
 held his precious "Commentaries on the Gallic War," h'gh above the 
 surging billows around him; so may each one of us, whenever occa- 
 sion demands, ra^.se the Constitution of our countrv, high above the 
 boding waves of overvaulting and unscrupulous ambition; and as the 
 last act of our lives, if need be, hold it up! Hold it up! 
 
 Long Beach, California, March, 1915. 
 
 14 
 
BILL OF PARTICULARS FROM WHAT NEWSPAPERS AND 
 OTHER SOURCES CHARGES IN ARTICLE DEfllVED 
 
 1. Bryan's Itinerary to Sacramento. — All the Newspapers 5 
 
 2. Sending John Lind to Mexico as Personal Envoy without 
 
 Senate's Consent. — All the Newspapers 5 
 
 3. Proposal to Congressman to "Take Care of Him" if Beaten 
 
 for Renomination for Voting for Repeal Act. — Examiner . . 6 
 
 4. He's Got 'Em Cowed, etc. — Blythe in Saturday Evening Post 6 
 
 5. Message to Congress, March 5, 1914. Explanatory Notes 
 
 Thereon. — Long Beach Press, Comments of Editor 7 
 
 6. Order from White House to Congress to Re-establish Cloture 
 
 Rule then Recently Abolished, and to Give but Fifteen 
 Hours on Repeal of Tolls Exemption Act. — Examiner and 
 Congressional Record 9 
 
 7. Executive Order Forbidding Enforcement of Preferential 
 
 Duty on Am. Bot. — Examiner. . 10 
 
 8. Executive Order Changing Law of Congress on Tolls Through 
 
 Panama Canal. — Examiner 10 
 
 9. Approval of Wilson of Obviously Worthless Anti-Trust Act, 
 
 Though Denounced as Such by Senator Reed in Senate 
 Chamber. — Globe Democrat or Examiner 10 
 
 10. Critique of Wilson's Book, Const. Govt, in U. S., Showing 
 
 What Wretched Drivel It Is 11 
 
 11. Speech of Senator O'Gorman in Senate Chamber, Denouncing 
 
 Wilson's Acts in Making Senators His Errand Boys — 
 Globe Democrat, Feb. 9, 1915 14 
 
 The people of any township in the State, may peaceably assemble 
 and petition Congress for redress of any abuses or usurpations of 
 power done by any federal officer even of the highest grade; prefer 
 charges, and Congress is bound to attend to such charges and take 
 suitable action thereon. Cooley Const. Lim. 7th Ed., 497, 498 and note 
 3. 
 
 The right to petition Congress is one of the attributes of national 
 Citizenship, and as such is under the protection of the national author- 
 ity. U. S. V. Cruikshank, 92 U. S. 542. 
 
 Speaking of the rights of the Publishers of News, Cooley says : 
 
 "It is one thing to produce in the newspapers injurious reports 
 respecting individuals, however willing the public may be to hear 
 them, and a very different thing to discuss the public conduct of high 
 officials. If they may not publish news with impunity, they may at 
 least discuss with freedom and boldness all matters of public concern, 
 because this is the privilege of every one. The privilege extends to 
 matters of government in all its grades and all its branches, et cetera. 
 The law invites such discussion, because of the public interest in it, 
 and extends its protection to all publications which do not appear on 
 their face, and not shown otherwise to have been inspired by malice. 
 Because the discussion is the common right and liberty of everv citi- 
 zen." Const. Lim. 7th Ed., 645-6, note 3. 
 
"Constitutional Government in the United States," commented on 
 within, consists of Lectures delivered before the students of Columbia 
 University by Woodrow Wilson, President of Princeton University, 
 displays either an utter ignorance of all constitutional principles, or 
 else a predetermination to pervert such principles to some ulterior and 
 sinister purpose; there is no halfway house between these alternate 
 conclusions. 
 
 The part most singular taken in this matter, however, is that of 
 the University of Columbia, that erstwhile with reverence listened 
 to the revered lips of Kent, Story and others discoursing on constitu- 
 tional questions, yet, in the year of grace 1907, stood Godfather of, 
 and gave the seal and sign manual of its approval to the wretched 
 drivel those lectures contain. 
 
 Is this another deplorable instance of the Dwarfing Colleges' Pale 
 Abortions ? 
 
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